State v. Lavoie.

453 P.3d 229, 145 Haw. 409

• Court: Hawaii Supreme Court
• Decided: November 22, 2019
• Docket: SCWC-15-0000643
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 22-NOV-2019 09:11 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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STATE OF HAWAII, Respondent/Plaintiff-Appellee,

vs.

MARLIN L. LAVOIE, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 13-1-0236(3))

NOVEMBER 22, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

The circuit court in its pretrial order in this case

excluded evidence of “other bad acts” committed by the

defendant. At trial, however, the court ruled that the

defendant, by questioning a State’s witness about a single

instance of separation between the defendant and the decedent,

opened the door to the defendant’s prior acts of abuse. Over

objection, the court admitted into evidence five instances of ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

prior abuse that were not shown to be followed by a period of

separation between the defendant and the decedent. The prior

misconduct in this case was admitted to rebut the affirmative

defenses of lack of penal responsibility and extreme mental and

emotional distress. In an unsuccessful appeal to the

Intermediate Court of Appeals, the defendant argued that the

circuit court erred in admitting the prior incidents of abuse,

failed to properly limit consideration of the prior misconduct

evidence, and omitted a requisite jury instruction on merger.

On certiorari, we review the “opening the door”

doctrine and determine whether the circuit court correctly ruled

that the door was opened in this case. We also address, in the

context of a limiting instruction, the crucial difference

between a defendant’s state of mind to commit an offense and a

defendant’s mental condition as it applies to the affirmative

defenses of lack of penal responsibility and extreme mental and

emotional distress. Finally, we consider whether the crimes of

felon in possession and place to keep are continuous crimes,

necessitating a merger instruction in this case.

Based upon our review, we conclude that the five prior

acts of abuse were erroneously admitted. We also hold that the

circuit court erred by not submitting a merger instruction to

the jury because the crimes of felon in possession and place to

keep are continuous crimes and the determination of merger must

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be made by the trier of fact. Accordingly, we vacate the

convictions in this case and remand for further proceedings

consistent with this opinion.

I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS

On March 20, 2013, Malia Kahalewai was fatally shot at

the Kawela Barns Apartments on the island of Molokai. Kahalewai

was the longtime girlfriend of Marlin L. Lavoie, with whom she

lived in Honouliwai Valley, and the couple had four children

together.

Lavoie was charged by complaint in the District Court

of the Second Circuit with the following offenses: murder in the

second degree in violation of Hawaii Revised Statutes (HRS)

§ 707-701.5;1 carrying or use of a firearm in the commission of a

separate felony in violation of HRS § 134-21(a);2 ownership or

possession prohibited of any firearm in violation of HRS § 134-

7(b);3 and place to keep loaded firearms other than pistols and

1 HRS § 707-701.5 (1993) provides in pertinent part: “Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.” 2 HRS § 134-21(a) (2011) provides in pertinent part:

It shall be unlawful for a person to knowingly carry on the person or have within the person’s immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not. 3 HRS § 134-7(b) (2011) provides in full:

(continued . . .)

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revolvers in violation of HRS § 134-23(a).4 An amended complaint

was subsequently filed in the Circuit Court of the Second

Circuit (circuit court).5

A. Motion to Determine Fitness to Proceed and Penal Responsibility

Lavoie moved for an examination of his fitness to

proceed and penal responsibility pursuant to HRS § 704-404 (1993

& Supp. 2008). A three-doctor panel examined Lavoie, and the

examiners filed their reports with the court on October 17,

2013. At a hearing, Lavoie stipulated that he was fit to

proceed.6

(. . . continued)

No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor. 4 HRS § 134-23(a) (2011) provides in pertinent part:

Except as provided in section 134-5, all firearms shall be confined to the possessor’s place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms in an enclosed container from the place of purchase to the purchaser’s place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn . . . . 5 The amended complaint removed a charge of terroristic threatening in the first degree in violation of HRS § 707-716(e) (Supp. 2011) that was included in the initial complaint and added a misdemeanor count of abuse of family or household member in violation of HRS § 709-906 (1993 & Supp. 2012) and a misdemeanor count of assault in the third degree in violation of HRS § 709-712(1)(a) (1993). Both of the added offenses were later dismissed without prejudice. 6 The motion and trial proceedings were presided over by the Honorable Joseph Cardoza.

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On May 15, 2015, a hearing was held on motions in

limine, at which time the court granted the defense’s motion to

preclude the use of any prior bad acts at trial. The motion in

limine was granted without objection by the State although the

prosecutor stated that, “should the door be opened” through

cross-examination by the defense or in the defense’s case-in-

chief, it would ask for the court’s reconsideration. The

court’s written order excluded testimonial and documentary

evidence relating to Lavoie’s prior criminal history and “bad

acts” committed by Lavoie that included allegations of any

crimes of violence.

B. Trial

The State called Nicole Aea, a friend of Kahalewai,

who testified that she was with Kahalewai in the hours leading

up to the shooting at their mutual friend Barbara Haliniak’s

apartment. Aea testified that Kahalewai had been alternating

between staying with Haliniak and Haliniak’s neighbor, Victoria

Toledo. Aea stated that, when Lavoie arrived at Haliniak’s

apartment on the evening of the shooting, she was with Kahalewai

and her two friends Maile Manintin and Leilani Mollena in

Haliniak’s bedroom. Manintin later testified that, when they

were told that Lavoie was in the house, they shut off the lights

in the bedroom and closed the door. She said that Lavoie came

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into the room by pushing the door open while one of her friends

was still holding on to the doorknob.

Lavoie asked Kahalewai to talk to him alone and to

come home, Aea said, but Kahalewai repeatedly told him no. Aea

stated that Lavoie told Kahalewai that their children missed her

and continued to ask her to talk to him, to which Kahalewai kept

responding, “no, go away.” After five to ten minutes of Lavoie

begging Kahalewai to come with him, his eyes started to tear-up

and he became “clearly upset and sad,” Aea testified.

Eventually, Aea stated, she and Kahalewai left the

bedroom and went out to the porch. Aea indicated that they were

joined by Manintin and Mollena. Aea testified that while the

four were socializing, Lavoie was at the bottom of the porch

still teary-eyed and continuing to ask Kahalewai to come home.

Lavoie recounted in an interview with Detective (Det.) Jeffrey

Mahoney, recorded the morning after the shooting, that when they

were on the porch Kahalewai would reply only by calling him

names and saying things such as “I no love you, I no like be

with you,” “go be with a guy,” and “fuck you faggot, fuck, I no

love you faggot, you ugly.” Manintin testified that she heard

Lavoie say to Kahalewai “why no like me, you no love me, we have

a family . . . we got family together, just come home.” Aea

said that the conversation ended when Kahalewai told Lavoie “you

should find a guy because this bitch not going to take care of

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you anymore.” Lavoie told Det. Mahoney that this made him

“freak[] out” and “[he] just snapped.”

Lavoie stated in the interview that he asked

Kahalewai, “[T]hat’s what you think I am?” and then went to his

car and retrieved his rifle. Aea testified that when Lavoie

came back to the porch, he said, “[Y]ou gonna leave me,” and

shot her once in the chest from close range. Kahalewai was

transported to the Molokai General Hospital where she was

pronounced dead shortly thereafter.7

During the police interview, Lavoie said that after

the shooting, he immediately “freaked out” and ran away. He

stated that he returned to his vehicle with his rifle, drove to

his home, and hid the rifle in bushes on his neighbor’s

property. Lavoie told Det. Mahoney that his father, who was at

home when he returned, advised him to turn himself into the

police.8

During his interrogation, Lavoie admitted to Det.

Mahoney that he shot Kahalewai. Lavoie told Det. Mahoney that

he had bipolar disorder, and on the night of the shooting he

snapped because Kahalewai’s comments made him “depressed, but

not pissed off.” He said that he did not plan to go to

7 An autopsy determined that the cause of death was a single gunshot wound to the chest. 8 Det. Greg Katayama testified that Lavoie turned himself in the morning after the shooting.

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Haliniak’s house to kill her, but “[d]arkness took over [him]”

and he “just lost [his] mind.”9

During defense counsel’s cross-examination of Aea,

counsel requested a bench conference to notify the court that

his questioning of Aea might elicit information on what “could

be conceivably construed as a prior bad act” addressed in

Lavoie’s motion in limine. Defense counsel stated that he

intended to question Aea about “[Kahalewai] leaving [Lavoie] in

the aftermath of arguments for some period of time.” The

prosecutor did not object but stated that such questions would

open the door to why she would leave and what the arguments were

about. Defense counsel responded by saying, “That may be the

case.”

Defense counsel asked Aea the following:

Q. We were talking about the arguments that [Lavoie] and [Kahalewai] would get into over the course of their relationship. After some of those arguments, you’re aware that [Kahalewai] would leave [Lavoie], leave the family, and go stay at friends’ houses. Correct?

A. Yeah, for a couple of days.

Q. Okay. Sometimes even for like a week or two. Right?

A. Barely. Maybe once in a great, great while, depending on how big the argument was before.

Q. One time she left for Oahu. Correct?

9 Det. Mahoney testified that he did not detect Lavoie to be under the influence of alcohol or drugs during the interview. Det. Mahoney spent five to six hours with Lavoie from the start of the interview through transport back to Wailuku cellblock, and in that time, Lavoie did not say that he was hearing voices or seeing anything on the night of the shooting.

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A. Yes.

Q. And she stayed away for like maybe a week and a half, two weeks with your friend [Jamie Maikui]?

. . .

A. Yeah.

Q. Okay. On the night in question, [Kahalewai] had been apart from [Lavoie] for approximately four days. Correct?

Q. And you knew that for at least the last two days prior to the shooting, [Lavoie] had been looking around for [Kahalewai]. Right?

Q. Okay. But [Kahalewai] wanted to stay out that night because you guys had planned to do a girls night on the 20th. Right?

Q. Okay. And there was a bachelorette party--your bachelorette party, right, that she had been attending over those four days?

Q. And you knew that [Lavoie] was upset that [Kahalewai] had been away for those four days. Right?

Following defense counsel’s cross-examination of Aea,

the prosecutor requested a bench conference and asserted that,

because the defense asked about past arguments, “the door has

been open for us to ask the nature of those arguments.” The

prosecutor stated that the testimony would show that “at least

some of these arguments involved a prior abuse, and [Kahalewai]

leaving to get away from the defendant.” Defense counsel

objected, arguing that the door had not been opened and that Aea

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had no personal knowledge of the reasons behind the various

separations between Kahalewai and Lavoie. The prosecutor sought

to introduce evidence of a prior incident from February 2007 in

which Lavoie threatened Kahalewai with a gardening pick in the

presence of Aea. Defense counsel objected to the introduction

of this incident on the grounds that it was more prejudicial

than probative given how temporally remote it was to the

shooting.

The trial court allowed the evidence, finding that the

door “perhaps” had been opened not just for Aea but other

witnesses as well. Specifically, the trial court responded to

defense counsel as follows:

Because your line of questioning has suggested that [Kahalewai]’s departure caused a reaction which caused him to lose control of his thoughts and his actions, or ultimately it’s going to be for the trier of fact to determine whether or not, from the defendant’s standpoint, if he’s been inflicting abuse on [Kahalewai], whether it would be reasonable, from his standpoint, to then become upset or enraged by her departure, such that it would mean that the--that defense would be a viable one. And then there’s the whole 704 issues.

The prosecutor then asked Aea about arguments between

Lavoie and Kahalewai that she had witnessed. Aea testified that

Lavoie and Kahalewai had “normal fights, there was no shock they

were grumbling; they’d fight, she dig out, she’d come back.”

These arguments were mostly about Kahalewai wanting more space

to “hang out with friends, [and] do her own thing,” Aea said.

Aea agreed that the type of argument the couple was having on

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the night of the shooting appeared to be “nothing new.” When

questioned about the February 2007 incident, Aea testified, over

defense objection, that she witnessed Lavoie “grumbling” with

Kahalewai before he picked up a gardening pick and said “nobody

going to find you, you guys.” There was no testimony that

Kahalewai left Lavoie after this incident.

The State sought to admit other instances of abuse by

Lavoie through Haliniak’s sister, Alexis Haliniak (A. Haliniak).

Before she took the stand, defense counsel requested a bench

conference where he requested a proffer from the State as to

what A. Haliniak would be testifying about and how her testimony

would relate to the opening of the door. The prosecutor

responded that it sought to introduce testimony about two prior

incidents of Lavoie’s abuse: one where A. Haliniak saw Lavoie

choke Kahalewai; and another where she witnessed Lavoie yell at

and allegedly threaten Kahalewai during a poker game. Lavoie

objected on the basis that these incidents were not relevant

because there was no indication that they had any connection to

“[Kahalewai] separating herself from [Lavoie], and that [Lavoie]

react[ed] violently to that separation.”

The court sustained Lavoie’s objection as to the poker

game incident because of the vagueness of Lavoie’s behavior

proffered by the State. As to A. Haliniak’s testimony regarding

the incident of alleged choking, the court ruled that the door

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had been opened and the incident held “significant probative

value concerning the reasonableness of the explanation” for

Lavoie’s emotional distress. The trial court further ruled that

the reasonableness of the explanation, on one hand, trying to cope with the loss of a partner is one thing. Causing the loss of a partner by acts of physical abuse, and then saying you’re overwhelmed by that may be viewed entirely different by the trier of fact. And that may not be viewed as reasonable. So I think the door has been opened to that.

A. Haliniak then testified that two to four months

prior to October 2012, she witnessed Lavoie choking Kahalewai

until “the color on [Kahalewai]’s face was turning a little

pinkish red.” Lavoie only stopped after her boyfriend

threatened to call the police, A. Haliniak testified. Again,

there was no testimony that Kahalewai left Lavoie after the

incident.

The State called Jamie Maikui, a close friend of

Kahalewai, to testify about a domestic violence incident that

occurred between Lavoie and Kahalewai on March 16, 2013--the

event that led to the separation before the shooting. Maikui

testified that while she and Kahalewai were driving, they saw

that Lavoie was following them in his car. They pulled into a

church parking lot and lit a cigarette, Maikui said, at which

point Lavoie approached the car; Kahalewai rolled the window

down to pass him a cigarette. Maikui testified that Lavoie then

opened the door with his spare key. Maikui stated that she

tried to drive away, but that Lavoie held on to the car until 12 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

she stopped. She testified that after the car stopped, Lavoie

punched her three times and elbowed Kahalewai in the face in the

process of taking the keys from the ignition.

The State also attempted to question Maikui regarding

incidents when she had witnessed Lavoie “do anything physical or

threatening to [Kahalewai] before.” After proffering that

Maikui would testify about the gardening pick incident that Aea

had testified about and an incident four to five years before

the shooting where, as Maikui was driving by, she saw Lavoie

punch Kahalewai, the court excluded the testimony over concerns

about the time frame. The prosecutor told the court that there

were further witnesses that he could bring in rebuttal to show a

continuing pattern of abuse followed by Kahalewai leaving Lavoie

but always returning.

The State also called as a witness Victoria Toledo.10

Toledo testified that, on the day of the shooting, Lavoie came

10 Prior to Toledo taking the stand, defense counsel stated in a bench conference that he anticipated Toledo would testify regarding an encounter with Lavoie that Toledo would claim occurred on the day of the shooting. Counsel explained, however, that the prosecutor had disclosed that Toledo had told the prosecutor, in an interview at which there were no other witnesses present, that the encounter with Lavoie had occurred several days before the shooting. Defense counsel requested that the court preclude the State from calling Toledo as a witness if the prosecutor was going to remain the State’s lead attorney, as defense counsel would be forced to call the prosecutor as a witness in the defense case. In response, the prosecutor suggested that at defense counsel’s request, he would make a representation on the record before the jury as an officer of the court. Defense counsel agreed to the prosecutor’s proposed procedure. Both the State and defense questioned Toledo regarding the inconsistency of her accounts, but she maintained that she had only ever given one version of events. Thus, in accordance with the (continued . . .)

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to her apartment and asked her boyfriend if Kahalewai was

“fooling around on him.” She told Lavoie that Kahalewai was not

fooling around on him, Toledo stated, but Lavoie responded “[i]f

I can’t have her no one will.” Toledo acknowledged on cross-

examination that she disliked Lavoie because he had killed her

friend, and that she did not relate her story to the police

because, despite saying they would follow up, they never

contacted her.11

Dr. Kohn, a neurologist, psychiatrist, and

psychotherapist was called to testify by the defense.12 Dr. Kohn

diagnosed Lavoie with bipolar disorder and testified that “as a

component of that mental disorder, [Lavoie] has been psychotic

on a recurring or continuous basis.” In his medical opinion,

Dr. Kohn stated, on March 20, 2013, Lavoie suffered a

“dissociative episode in which, faced with this experience that

agreed-upon procedure, at the completion of Toledo’s testimony, the prosecutor stated in open court the following:

[P]ursuant to our bench conference, as an officer of the court, Your Honor, I would like to put on record that on July 18, 2014, in a telephone conversation with [] Victoria Toledo, I recall her saying that Marlin Lavoie told her, “If I can’t have Malia, nobody else will,” and that the conversation took place a few days before the shooting. 11 At the close of the State’s case-in-chief, the parties stipulated that prior to March 20, 2013, Lavoie was previously convicted of a felony. 12 Dr. Kohn testified that he was board certified in neurology by the American Board of Psychiatry and Neurology and taught psychiatry at the University of Chicago Medical School.

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was unmanageable for him, he could not think clearly.”13 Dr.

Kohn found that there were several “factors that contributed to

[Lavoie]’s inability to understand what was happening to him and

to manage his feelings and actions.” These factors included

brain injury from repeated trauma, his family history of mental

illness, his history of being sexually abused as a child, and

his history of psychiatric treatment.14 Dr. Kohn testified that

these factors, compounded with Lavoie’s bipolar disorder,

“prevented him[] from controlling himself from understanding

what was happening and behaving in a way that would have been

expected of him.” As a result, Dr. Kohn opined, Lavoie lacked

substantial capacity to conform his conduct to the requirements

of the law. Dr. Kohn testified that Lavoie “had awareness that

what he was doing was wrong and bad but wasn’t able to stop

himself.”

Additionally, Dr. Kohn opined that Lavoie was under

the influence of an extreme mental or emotional disturbance

13 Dr. Kohn also testified that Lavoie told him that he was hearing voices at the time. 14 Dr. Kohn testified that Lavoie experienced three instances of sexual abuse as a child: once by his babysitter, and the other two incidents involving “older teenagers that [Lavoie] was riding bikes with in the neighborhood.” Dr. Kohn stated that Lavoie told him that his mother said to “get over it,” and his father “was similarly unsupportive.” He further testified that Lavoie’s mother had undergone a psychiatric hospitalization and was diagnosed as being schizophrenic. As an adult, Dr. Kohn testified, Lavoie had been institutionalized in the Alaska Psychiatric Institute for manic episodes with psychosis.

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(EMED) at the time of the shooting. Dr. Kohn testified that

Lavoie’s mind was “dominated by intense emotion in a way that

altered his usual process of thought and interfered

substantially with his ability to reason.” This was brought

about by two main factors, Dr Kohn stated: first, Lavoie “was

distraught over [Kahalewai’s] absence” and “was in the middle of

a reaction to separation and loss” that caused him to be

depressed and suicidal; and second, Lavoie was “unable to manage

his feelings in reaction to [Kahalewai’s] provocations,”

including when she mocked him with sexual taunts in front of

others, showing “her contempt rather than compassion for the

history that he’d revealed to her.” While Dr. Kohn testified

that Lavoie and Kahalewai had a “mutually abusive” relationship,

he said that those prior instances of violence were consistent

with his opinion.

The defense then called Dr. Marvin Acklin, who was

qualified as an expert in forensic psychology.15 Dr. Acklin

diagnosed Lavoie with “bipolar disorder type 1 versus disruptive

mood disorder,” and borderline personality disorder and

“perhaps, anti-social personality traits.” Several factors were 15 Dr. Acklin testified that he was board certified in psychology, clinical psychology, and forensic psychology. He stated that he was a professor of psychology at Loyola University of Chicago before becoming a faculty member at the John A. Burns School of Medicine at the University of Hawaii in the department of psychiatry. In addition to his academic experience, he also testified that he maintained an independent practice in psychology.

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important in his diagnosis, Dr. Acklin testified: Lavoie’s

“extensive mental health history,” his family’s history of

mental illness, the tests that Dr. Acklin had conducted on

Lavoie, the accounts of Lavoie’s relationship with Kahalewai,

the sexual abuse that Lavoie experienced as a child, and

Lavoie’s history of head trauma.

Dr. Acklin further testified that Lavoie had three

psychiatric “treatment episodes”: one in Alaska when Lavoie was

18, one in 2008 or 2009, and one after the shooting. Dr. Acklin

stated that Lavoie was admitted to the Alaska Psychiatric

Institute and was believed to be suffering from “some form of

psychosis with paranoid delusions.” Lavoie was prescribed

Haldol, a “commonly used antipsychotic medication,” both after

the Alaska hospitalization and after the shooting, Dr. Acklin

explained. Dr. Acklin concluded that at the time of the

shooting Lavoie was aware that what he was doing was wrong, but

he was not able to stop himself; that is, he “lacked substantial

capacity to conform his conduct to the requirements of the

law.”16

Dr. Acklin also concluded that at the time of the

shooting, Lavoie was under the influence of EMED as he was in a

16 Dr. Acklin indicated that Lavoie would not have “lacked substantial capacity to control his actions” if he had a plan to kill Kahalewai.

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state of desperation because he believed that Kahalewai was

abandoning him. Dr. Acklin testified that Lavoie’s feeling of

abandonment was a “primary factor” in his emotional disturbance,

but public shame also played a role. Kahalewai’s leaving and

the “traumatizing break up” constituted a reasonable explanation

for Lavoie’s EMED, Dr. Acklin explained.

In addition, Dr. Acklin testified that Lavoie’s

relationship with Kahalewai involved “emotional turmoil” and was

“unstable,” “stormy,” and abusive. He noted two particular

instances of physical abuse: first, the incident on March 16,

2013, when Lavoie elbowed Kahalewai in the face; and second, a

2008 conviction for abusing Kahalewai. Dr. Acklin also

testified on cross-examination that Lavoie wrote a note after

his 2008 conviction that “could be construed as a threat to kill

himself.”17 Dr. Acklin stated that the threat did not influence

his ultimate opinion in the case.

17 Before testifying about the note, the court instructed the jury that the “evidence is being offered in relation to the--or in connection with the expert’s opinion, and it may be considered only on the issue of the defendant’s intent and for no other purpose.” On rebuttal, the State called Rochelle Tempo, an employee at Molokai Alternatives to Violence to testify about the note and other oral statements that Lavoie made at that time. The defense objected on the grounds that the evidence had already been admitted through Dr. Acklin and further testimony about the statements would be cumulative and prejudicial. The prosecutor responded that the statement had not previously been admitted for substantive purposes and that it was now attempting to do so. The court overruled the objection and instructed the jury that the evidence, if believed, was to be “considered only on the issue of the defendant’s intent to commit the offenses charged in this case.”

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Lavoie called Dr. Martin Blinder, who was qualified as

an expert in the fields of “psychiatry, forensic psychiatry, and

mental state at the time of the offense.”18 Dr. Blinder

diagnosed Lavoie with having post-traumatic encephalopathy

caused by “head/brain injury due to multiple blows,” post-

traumatic stress disorder as a result of being sexually abused

and physically assaulted throughout his lifetime, and

schizophrenic spectrum disorder. At the time of the shooting,

Dr. Blinder testified, Lavoie experienced a dissociative episode

and therefore had no useful judgment over his decision-making

process.19

Dr. Blinder stated that the main stressor that

contributed to Lavoie’s dissociative episode was the pattern of

inconsistency in his relationship with Kahalewai; in the months

leading up to the shooting, the relationship was “hot and cold.”

Lavoie’s “psychic survival depend[ed] on remaining connected to

[Kahalewai], so [he went] through months and years of these

increasing stressors rather than going out the door,” Dr.

Blinder testified. And finally, Dr. Blinder said, “it reache[d]

18 Dr. Blinder testified that he was a licensed psychiatrist, was the chief of private inpatient psychiatric services at the University of California Hospital in San Francisco, and taught at University of California at Hastings law school for 17 years before his retirement. 19 Dr. Blinder testified that the fact Lavoie had a gun in his car that night was not necessarily reflective of a plan to commit the shooting. Dr. Blinder stated that Lavoie told him that the rifle was in the car because he was planning to sell it.

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the point where after years of this, [Lavoie] flipped out.”

This culminated in gaps in Lavoie’s memory on the night of the

shooting, particularly after Kahalewai’s friends began laughing

at him, Dr. Blinder testified. As a result of Lavoie’s

dissociative episode, Dr. Blinder concluded, Lavoie knew the

difference between right and wrong but lacked substantial

capacity to conform his conduct to the requirements of the law.

After the defense rested its case, the State recalled

Haliniak during its rebuttal case. During her rebuttal

testimony, Haliniak testified about two additional incidents

between Lavoie and Kahalewai. Before she was called, the

parties and the judge had a bench conference where defense

counsel objected to the admission of the two incidents. The

prosecutor argued that the incidents rebutted the notion that

the shooting came from a psychiatric disorder and showed an

abusive relationship rather than a mental disorder. The court,

in overruling Lavoie’s objection, noted that defense counsel

elicited opinions as to both the EMED and a lack of penal

responsibility defenses, so the prosecution could be rebutting

either.

The first incident, Haliniak said, occurred while she

and Kahalewai were playing poker in Haliniak’s house. Haliniak

testified that Lavoie was sleeping upstairs at the time and came

downstairs after the poker game awoke him. He “was very upset

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that [Kahalewai] didn’t wake him up to play,” punched the beam

that supported the porch, and tried to grab Kahalewai’s arm

while yelling at her in a “very loud, angry tone,” Haliniak

stated.

Haliniak also testified about an incident in the

spring of 2012 when Haliniak stated she was picking up Kahalewai

from school and Lavoie confronted Kahalewai. Haliniak said that

Kahalewai told Lavoie that she did not want to talk to him so he

grabbed her and head-butted her. Haliniak testified that

Kahalewai then got into Haliniak’s van and the two drove off

while Lavoie was telling Kahalewai not to go with her.

The State also recalled Maikui to testify about a

previously excluded incident in 2007 or 2008 when she saw Lavoie

punch Kahalewai in his car. The defense objected that the

incident was “extremely remote in time in relation to the

[shooting],” prejudicial, and not probative. The court

overruled the objection, stating that the incident would be

admitted because, during Lavoie’s case-in-chief, there was “a

significant amount of testimony concerning the [E]MED

[defense].” Maikui then testified that in 2007 or 2008, as she

was driving by, she saw Lavoie punch Kahalewai in the arm.

Maikui said that she turned her car around and took Kahalewai

away from the scene.

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There was no testimony that Kahalewai had separated

from Lavoie after any of the incidents about which Haliniak or

Maikui testified.

The State also called Dr. George Choi and Dr. Tom

Cunningham from the court-ordered panel that had examined

Lavoie. Both doctors were admitted as experts in the field of

forensic psychology.20 Based on his evaluation of Lavoie, Dr.

Choi diagnosed him with substance abuse induced mood disorder.

He testified that his opinion was based on the inconsistencies

in Lavoie reporting his psychiatric symptoms to different people

over time and Lavoie’s tendency to over-report psychiatric

symptoms. Dr. Choi stated that Lavoie’s ability to control

himself on the night of the shooting was impaired and his

ability to know right from wrong in that moment was “moderately”

impaired, but that Lavoie was not “substantially” impaired in

his capacity to know right from wrong or conform his conduct to

the law.

Dr. Cunningham opined that Lavoie was “malingering,

exaggerating symptoms, or inventing them completely.” Lavoie

did not lack substantial capacity to appreciate the wrongfulness

of his conduct, Dr. Cunningham testified, nor did he lack

20 Dr. Choi testified that he was a licensed psychologist and had a private psychology practice. Dr. Cunningham stated that he was licensed in psychology and had worked at the Hawaii State Health Department as a psychologist since 1988.

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substantial capacity to conform his conduct to the requirements

of the law. Dr. Cunningham said that he came to this conclusion

because of “inconsistencies in the record” such as Lavoie’s

“auditory hallucinations.” In Dr. Cunningham’s opinion, Lavoie

was very angry when he shot Kahalewai.21

The State also called Dr. Valli Kalei Kanuha to

testify as an expert in the field of domestic violence. Dr.

Kanuha stated that, in general, when there is an intimate

relationship between a male and female, a man may abuse a woman

because societal norms make the man think that he is the one in

charge of the relationship and the woman should do what the man

wants. Dr. Kanuha testified that batterers often view

themselves as the victims and that it is common for a batterer

to cry or beg when the partner threatens to leave the

relationship.

At the conclusion of the evidence, the court

instructed the jury that if it found that the State proved all

elements of the charged offenses beyond a reasonable doubt, then

21 Dr. Cunningham did not believe that Lavoie’s family history of mental illness was a significant consideration, did not consider Lavoie’s abuse by his father to be significant to his analysis, did not mention Lavoie’s history of being sexually abused in his report, and did not consider it relevant that Lavoie was placed on suicide watch from March 22 through April 17, 2013 and again on August 5, 2013. In addition, Dr. Cunningham acknowledged that he did not review medical records of Lavoie’s head injuries although they were provided to him. Dr. Cunningham also opined that Lavoie’s anger was exacerbated by drinking during the day, although he acknowledged on cross-examination that there was no evidence in any of the police reports that Lavoie was intoxicated.

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the jury must consider whether Lavoie was criminally responsible

for his conduct.22 The court’s instruction about prior bad acts

stated the following:

During this trial, you have heard evidence that the defendant at other times may have engaged in or committed crimes, wrongs or acts. This evidence, if believed by you, may be considered only on the issue of defendant’s intent to commit the offenses charged in this case. Do not consider this evidence for any other purpose. You must not use this evidence to conclude that because the defendant, at other times, may have engaged in or committed other crimes, wrongs or acts, that he is a person of bad character and, therefore, must have committed the offenses charged in this case.

The court instructed the jury that an EMED defense to

murder has two elements: (1) that Lavoie was under the influence

of EMED; and (2) there was a reasonable explanation for the EMED

as determined from the viewpoint of a reasonable person under

the circumstances that Lavoie believed them to be. In addition,

the court instructed the jury that Lavoie’s “self-control or

lack of it at the time of the offense is a significant factor in

determining whether he was under the influence of [EMED].”

Lavoie objected to this instruction, arguing that it

unnecessarily highlighted and isolated self-control.

The court also instructed the jury as to the elements

of the offenses of possession of a prohibited firearm (felon in

22 The court instructed the jury that “[t]he defendant is not criminally responsible for his conduct if, at the time of the offense and as a result of a physical or mental disease, disorder or defect, the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”

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possession) and place to keep loaded firearms (place to keep).

As to the felon in possession offense, the jury was instructed

that to convict Lavoie of this offense they must find that he

knowingly possessed the firearm on March 20, 2013. As to the

place to keep offense, the jury was informed that to convict

Lavoie of this offense they must find that he intentionally

possessed the loaded firearm on March 20, 2013, in a place other

than in a place of business, residence, or sojourn. The court

did not provide, nor did the parties request, a merger

instruction.

Lavoie was found guilty as charged on all the

offenses. On August 13, 2015, the circuit court denied Lavoie’s

Motion to Compel State to Dismiss Count 3 or 4 Due to Merger.

The court ruled that there was no merger of the offenses because

the felon in possession offense was committed prior to Lavoie

leaving his home on March 20 and the place to keep offense

occurred when the firearm was being transported to the scene of

the shooting; thus, no merger instruction was required.

Lavoie was sentenced to a life sentence with the

possibility of parole in Count 1, twenty years in prison in

Count 2, and ten years in prison each in Count 3 and Count 4.

The court ordered that Counts 1 and 2 be served concurrently,

and Counts 3 and 4 be served consecutively to each other and

consecutively to Counts 1 and 2. Lavoie appealed from the

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judgment of conviction and sentence to the Intermediate Court of

Appeals (ICA).

II. ICA PROCEEDINGS

The ICA in its Memorandum Opinion first addressed

Lavoie’s objection to the lack of a jury instruction defining

EMED. The ICA concluded that State v. Haili, 103 Hawaii 89, 79

P.3d 1263 (2003), was dispositive because it held that EMED was

not defined by the legislature, and thus the courts need not

define it in their jury instructions. Further, the ICA stated

that while HRS § 707-702(2) does not refer to self-control,

Hawaii courts have repeatedly recognized that it is a

significant factor in EMED determinations.23

Turning to the merger instruction, the ICA

acknowledged that “Hawaii case law indicates that felon-in-

possession and place-to-keep charges are often intertwined, in

turn necessitating a merger instruction.” However, the ICA

agreed with the circuit court that the felon in possession

offense was completed before Lavoie left his house on March 20, 23 HRS § 707-702(2) (1993 & Supp. 2003) provides as follows:

(2) In a prosecution for murder or attempted murder in the first and second degrees it is an affirmative defense, which reduces the offense to manslaughter or attempted manslaughter, that the defendant was, at the time the defendant caused the death of the other person, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a reasonable person in the circumstances as the defendant believed them to be.

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2013, and the place to keep offense was committed when the

firearm was placed in Lavoie’s car.24 Thus, the ICA held that

the circuit court did not err in failing to give a merger

The ICA also found no error in the circuit court’s

limiting instruction about the use of prior bad acts. The ICA

concluded that the jury instruction limited the jury’s use of

Lavoie’s prior bad acts in compliance with Hawaii Rules of

Evidence (HRE) Rule 404(b), which permits prior bad acts if such

evidence is probative of intent. The ICA relied on State v.

Maelega, 80 Hawaii 172, 907 P.2d 758 (1995), and held that the

prior bad acts were relevant to rebut Lavoie’s EMED defense

because such acts were probative of his intent.

Finally, the ICA affirmed the circuit court’s

determination that Lavoie opened the door to allow the State to

elicit testimony of Lavoie’s prior bad acts. The ICA stated

that the defense’s cross-examination questions about arguments

24 The ICA quoted an unpublished ICA memorandum opinion stating that

[Place to keep] is not defined as a continuing course of conduct; it is a prohibition against transporting firearms. Once the person takes the firearm out of a place of business, residence, or sojourn--but for certain exceptions--the offense is complete. The fact that the offense may continue beyond this point does not change the character of the offense.

See State v. Lavoie, NO. CAAP-XX-XXXXXXX, 2018 WL 4613329 (Haw. App. Apr. 23 2018) (quoting State v. Stangel, No. CAAP-XX-XXXXXXX, 2015 WL 836928 (Haw. App. Feb. 26, 2015)).

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between Lavoie and Kahalewai during the course of their

relationship opened the door because the questions were relevant

to Lavoie’s EMED defense. The ICA concluded that the circuit

court did not err in ruling that the defense’s line of

questioning suggested that the separation between Lavoie and

Kahalewai caused Lavoie to lose self-control, and that the jury

would have to determine whether it was reasonable for Lavoie to

lose self-control if his abuse led to the separation.

The ICA accordingly affirmed the judgment of the

circuit court.25 Lavoie timely filed an application for writ of

certiorari, which this court accepted.

III. STANDARDS OF REVIEW

A. Conclusions of Law

Conclusions of law are reviewed de novo under the

right/wrong standard of review. Maria v. Freitas, 73 Haw. 266,

270, 832 P.2d 259, 262 (1992).

B. Jury Instructions

The propriety of jury instructions is a question of

law reviewed de novo using the following standard: whether,

“when read and considered as a whole, the instructions given are

prejudicially insufficient, erroneous, inconsistent, or

25 Lavoie also raised other issues on appeal that were rejected by the ICA but not raised on certiorari review; these issues are not discussed.

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misleading.” State v. Bovee, 139 Hawaii 530, 537, 394 P.3d 760,

767 (2017) (quoting State v. Frisbee, 114 Hawaii 76, 79, 156

P.3d 1182, 1185 (2007)).

C. Prior Bad Acts

The admissibility of evidence requires different

standards of review depending on the particular rule of evidence

at issue. State v. Fetelee, 117 Hawaii 53, 62, 175 P.3d 709,

718 (2008); State v. Pulse, 83 Hawaii 229, 246, 925 P.2d 797,

814 (1996).

“Prior bad act” evidence under [HRE] Rule 404(b) . . . is admissible when it is 1) relevant and 2) more probative than prejudicial. A trial court’s determination that evidence is “relevant” within the meaning of HRE Rule 401 . . . is reviewed under the right/wrong standard of review. However, a trial court’s balancing of the probative value of prior bad act evidence against the prejudicial effect of such evidence under HRE Rule 403 . . . is reviewed for abuse of discretion. An abuse of discretion occurs when the court clearly exceeds the bounds of reason or disregards rules or principles of law to the substantial detriment of a party litigant.

State v. Behrendt, 124 Hawaii 90, 102, 237 P.3d 1156, 1168

(2010) (alterations in original).

IV. DISCUSSION

Lavoie first argues that the evidence of prior bad

acts was inadmissible because it did not rebut an EMED defense

or a defense of lack of penal responsibility. Because such

evidence is inadmissible, Lavoie contends, he could not have

opened the door to admission of the prior bad acts.

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A defendant can be relieved of penal responsibility if

the defendant proves that “at the time of the conduct as a

result of physical or mental disease, disorder, or defect the

person lacks substantial capacity either to appreciate the

wrongfulness of the person’s conduct or to conform the person’s

conduct to the requirements of the law.” HRS § 704-400(1)

(1993).26

Additionally, HRS § 707-702(2) provides that EMED is a

mitigating affirmative defense in a prosecution for murder that

applies when the defendant was, at the time the defendant caused

the death of another person, under the influence of extreme

mental or emotional disturbance for which there is a reasonable

explanation. The reasonableness of the explanation shall be

determined from the viewpoint of a reasonable person in the

circumstances as the defendant believed them to be. If this

defense is proved, it reduces the offense of murder to

manslaughter. Id.

26 HRS § 704-400(1) provides as follows:

(1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conform the person’s conduct to the requirements of law.

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A. Lavoie’s Prior Bad Acts

1. Lavoie Did Not “Open the Door” to Prior Instances of Abuse

Lavoie argues that the circuit court improperly ruled

that he opened the door to prior acts by cross-examining Aea

about prior instances in which Lavoie and Kahalewai separated.

“The ‘opening the door’ doctrine is essentially a rule

of expanded relevancy . . . .” State v. James, 677 A.2d 734,

742 (N.J. 1996). “Under this doctrine, when one party

introduces inadmissible evidence, the opposing party may respond

by introducing [] inadmissible evidence on the same issue.”

State v. Fukusaku, 85 Hawaii 462, 497, 946 P.2d 32, 67 (1997)27;

see also State v. Dvorak, 295 S.W.3d 493, 502 (Mo. Ct. App. E.D.

2009) (the doctrine applies after one party introduces

inadmissible evidence). Admissible evidence therefore does not

‘open the door’ to otherwise inadmissible evidence. State v.

Middleton, 998 S.W.2d 520, 528 (Mo. 1999) (“A party may not,

however, introduce inadmissible evidence to rebut inferences 27 The “opening the door doctrine” is also sometimes referred to as the doctrine of “curative admissibility.” In Fukusaku, we stated that

[a]lthough the Prosecution cites no authority, its argument appears to be based on the doctrine of “curative admissibility,” also known as “opening the door” or “fighting fire with fire.” Under this doctrine, when one party introduces inadmissible evidence, the opposing party may respond by introducing his own inadmissible evidence on the same issue.

85 Hawaii at 496, 946 P.2d at 67 (1997). The Fukusaku court referred to the doctrines of “opening the door” and “curative admissibility” interchangeably. We will also do so in this opinion, although it is noted that not all jurisdictions treat the doctrines with a singular meaning.

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raised by the introduction of admissible evidence during cross-

examination.”).

Here, during cross-examination, Aea was asked whether

she was “aware that [Kahalewai] would leave [Lavoie], leave the

family, and go stay at friends’ houses” after arguments between

Kahalewai and Lavoie. Aea responded that she was aware of the

past arguments and separations. On redirect, Aea clarified that

the arguments leading to the separations generally involved

Kahalewai’s desire to socialize with her friends, which was

typically not possible because there was neither internet nor

phone service at the home that she shared with Lavoie in

Honouliwai Valley.

Based on defense counsel’s questioning, the circuit

court admitted into evidence six prior incidents of abuse that

it had previously ruled inadmissible, reasoning that the door

had been opened by Aea’s testimony. First, Aea testified that

six years prior to the shooting, she witnessed Lavoie threaten

Kahalewai with a gardening pick. There was no testimony,

however, that this incident resulted in Kahalewai leaving Lavoie

for any period of time. Second, Alexis testified that she saw

Lavoie choke Kahalewai roughly eight to ten months before the

shooting. Again, there was no testimony that Kahalewai left

Lavoie as a result of this incident. Testimony regarding two

more incidents of abuse that occurred in the year prior to the

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shooting was elicited from Haliniak, including a time when

Lavoie punched a beam and yelled at Kahalewai while trying to

grab her arm and an instance in which Lavoie head-butted

Kahalewai. There was no testimony that either of these

incidents resulted in Kahalewai leaving Lavoie. And Maikui

testified during the State’s rebuttal that six years before the

shooting, she saw Lavoie punch Kahalewai in the arm. Once

again, the witness did not testify that this incident resulted

in Kahalewai leaving Lavoie.

Each of these instances garnered objections from

defense counsel, who argued that, because there was no clear

connection between the instances of abuse and the arguments

between Lavoie and Kahalewai that led to the previous

separations, the testimony was irrelevant and unfairly

prejudicial. Only the March 16, 2013 incident that led to the

separation between Lavoie and Kahalewai immediately preceding

the shooting was not objected to. Because this incident did

result in a separation, defense counsel appears to have

implicitly conceded that it was relevant to the reasonableness

of Lavoie’s EMED resulting from the separation.

As stated, the opening the door doctrine generally

does not allow a party to admit evidence that is otherwise

inadmissible to rebut an opponent’s relevant and admissible

evidence. Clark v. State, 629 A.2d 1239, 1244 (Md. 1993). This

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court previously addressed a similar issue in State v. Fukusaku,

85 Hawaii 462, 496, 946 P.2d 32, 66 (1997). In Fukusaku, the

trial court ruled that expert testimony about positive luminol

and phenolphthalein test results indicating the presence of

blood in some areas of a defendant’s apartment was inadmissible

because, in the absence of secondary confirmation tests, the

luminol and phenolphthalein tests were not relevant.28 Id. On

cross-examination, defense counsel elicited testimony from the

expert about the absence of blood on any of the cushions in the

defendant’s apartment. Id. The State argued that the defense

had opened the door to the previously inadmissible positive test

results by questioning the expert about blood samples. Id. The

circuit court ruled that the defense had not opened the door.

Id.

This court, in affirming the circuit court, concluded

that general testimony about the nonpresence of blood samples--

which was admissible on its own--did not open the door to

testimony about the inadmissible positive test results. Id. at

497, 946 P.2d at 67. This court construed the State’s argument

as an appeal to the doctrine of “curative admissibility,” under

28 The tests at issue could generate false positive reactions, could not distinguish between animal blood and human blood, and could not determine how long the blood had been at the scene. Fukusaku, 85 Hawaii at 496, 946 P.2d at 66. No evidence was offered that the tests were likely to render false negatives. Id. at 497, 946 P.2d at 67.

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which “when one party introduces inadmissible evidence, the

opposing party may respond by introducing his own inadmissible

evidence on the same issue.” Id. We noted that this doctrine,

often referred to as “fighting fire with fire,” is subject to

abuse and “most jurisdictions have limited its use to situations

in which the originally submitted evidence creates significant

prejudice.” Id. (citing 1 Wigmore on Evidence § 15, at 741-42 &

n.6 (1983)). This court then ruled that, because the testimony

elicited by defense counsel regarded negative test results,

which had not been shown to be unreliable and which the trial

court expressly ruled were not covered by its exclusion order,

the testimony was admissible. Id. We therefore concluded that

“even if we were to adopt the doctrine of curative

admissibility, it would not be applicable to the present case.”

Parallels may be drawn between Fukusaku and the case

at hand. Here, the circuit court’s ruling on Lavoie’s motion in

limine specifically excluded evidence involving allegations of

prior violence in much the same manner as the trial court’s

order in Fukusaku excluded evidence of positive test results.

And, like the negative test results in Fukusaku, evidence of

previous arguments between Lavoie and Kahalewai that led to

separations and did not involve violent acts by Lavoie were not

within the ambit of the court’s order. Thus, as in Fukusaku,

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Lavoie “introduced admissible evidence, not inadmissible

evidence,” and the doctrine of curative admissibility is simply

inapplicable to the present case.29 Id.

The State cites authority from other jurisdictions for

the proposition that the door may also be opened to inadmissible

evidence when a party offers admissible evidence that is false

or misleading if considered in isolation.30

As an initial matter, this court may have implicitly

rejected the rule the State argues for in Fukusaku, in which the

State appeared to contend that the defendant had presented

incomplete and misleading testimony by focusing on the lack of

blood on the cushions in his apartment while not acknowledging

that the luminol and phenolphthalein tests had indicated that

29 Our discussion of the “opening the door” doctrine addresses the situation in which inadmissible evidence is offered in response to the introduction of admissible evidence. The doctrine has also been applied to authorize the introduction of evidence that would otherwise have been irrelevant in order to respond to admissible evidence that generates an issue. See, e.g., Clark, 629 A.2d at 1242–43. Because we conclude in this case that the testimony about prior incidents of abuse is inadmissible, see infra Part IV.A.2 and Part IV.A.3, it is not necessary to consider adoption of this variant of the curative admissibility doctrine or of the doctrine itself because even if we were to do so, “it would not be applicable to the present case.” See Fukusaku, 85 Hawaii at 497, 946 P.2d at 67. 30 See, e.g., Valadez v. Watkins Motor Lines, Inc., 758 F.3d 975, 981 (8th Cir. 2014) (holding that a party may open the door to inadmissible evidence to the extent that the inadmissible evidence “clear[s] up [a] false impression” or “clarify[ies] or complete[s] an issue opened up by [opposing] counsel”) (last alteration in original); United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009) (same); United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990) (same); State v. Carlson, 146 N.H. 52, 56 (2001) (same). The ICA, in an unpublished memorandum opinion, has adopted such a rule. See State v. Awana, No. 27145, 2007 WL 1139407 at *14 (Haw. App. Apr. 13, 2007) (“As an evidentiary principle, the ‘opening the door’ doctrine allows the admission of otherwise inadmissible evidence, including hearsay, to qualify, explain, or limit testimony or evidence previously elicited.”).

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blood may have been present elsewhere in the apartment.

85 Hawai‘i at 496, 946 P.2d at 66. Additionally, such a rule

would not apply here even if this court were to adopt it because

no aspect of Aea’s testimony was shown to be false or

misleading. Aea testified generally on cross-examination about

Lavoie and Kahalewai’s prior arguments that led to periods of

separation, which generally involved Kahalewai’s desire to

socialize with her friends. None of the incidents of abuse

elicited over defense objection contradicted or clarified Aea’s

testimony because it was never shown that the incidents had any

relation to the separation-causing arguments about which Aea had

testified. Thus, because there is no indication that Aea’s

testimony was likely to convey a false impression, it is

unnecessary for this court to consider a situation in which

admissible evidence is so misleading that it would justify the

admission of otherwise inadmissible evidence to correct it.31

We have held that admissible evidence--here, Aea’s

testimony about Lavoie and Kahalewai’s previous arguments that

led to periods of separation and did not clearly involve

incidents of abuse--generally does not open the door to

inadmissible evidence, see 85 Hawai‘i at 496, 946 P.2d at 66, and

31 Because the opening the door doctrine does not apply here, we decline to address Lavoie’s contention that the door may only be opened during the defendant’s case-in-chief.

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no possible exception to this rule applies. Thus, the

admissibility of the testimony regarding Lavoie’s prior bad acts

must be evaluated on its own merit, and not in relation to Aea’s

testimony.

2. The Prior Bad Acts Were Inadmissible to Rebut Lavoie’s EMED Defense

The circuit court ruled that evidence of Lavoie’s

prior bad acts was admissible to rebut Lavoie’s EMED defense.

The circuit court reasoned that a central issue in the case was

whether Lavoie was experiencing EMED when the shooting occurred,

and, if so, whether the EMED Lavoie experienced was a reasonable

response to, inter alia, Kahalewai having left him. The court

stated that “[c]ausing the loss of a partner by acts of physical

abuse, and then saying you’re overwhelmed by that . . . may not

be viewed as reasonable.” Thus, the court ruled that the prior

incidents “carrie[d] significant probative value concerning the

reasonableness of the explanation.”

This court’s decision in State v. Castro is highly

informative in deciding the present issue. In Castro, the

defendant was convicted of attempted murder and assault in the

second degree after he tried to kill his estranged girlfriend.

69 Haw. 633, 639-42, 756 P.2d 1033, 1039-40 (1988). At trial,

the defendant asserted that he was under the influence of EMED

and that there was a reasonable explanation for his EMED at the

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time the offense was committed. Id. at 641, 756 P.2d at 1040.

The trial court admitted testimony about several prior incidents

when the defendant committed acts of violence against the victim

to demonstrate the defendant’s “intent, preparation, plan,

knowledge, and modus operandi” regarding the attempted murder.

Id. at 644, 756 P.2d at 1042.

On review, this court vacated the conviction, holding

that, when the identity of the perpetrator is not in doubt,

there is very little justification for admitting evidence of a

defendant’s prior bad acts under HRE Rule 404(b) to demonstrate

the defendants plan, preparation, knowledge, or modus operandi.

Id. at 645, 756 P.2d at 1042. We held that, even if the prior

acts had some “incremental probative value” with regard to the

defendant’s state of mind when the offense was committed, they

were nonetheless inadmissible under HRE Rule 403 because their

relevancy was far outweighed by their potential for unfair

prejudice. Id. at 645, 756 P.2d at 1042. This court explained

that the prior bad acts were not needed to prove intent because

“there was much more from which an inference of intentional

conduct could be drawn in the evidence of the offense for which

the defendant was being tried.” Id. at 644, 756 P.2d at 1042.

Instead of following this court’s precedent in Castro,

the ICA relied on State v. Maelega in affirming the circuit

court. In Maelega, this court held that the circuit court did

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not abuse its discretion in admitting evidence of a defendant’s

past abuse of his wife. 80 Hawaii 172, 184, 907 P.2d 758, 770

(1995). The State introduced instances of abuse to show that

the defendant was trying to control or discipline his wife at

the time of the offense and that he had not lost self-control

under EMED. Id. at 175 n.3, 907 P.2d at 761 n.3.

The circuit court concluded, and we agreed, that the

prior bad acts were probative to rebut both prongs of EMED; the

acts “tend[ed] to show that [Maelega] acted with self-control at

the time that he allegedly killed his wife” and that “even if

[Maelega] did not act with self-control, then there was no

‘reasonable explanation’ for his extreme mental or emotional

disturbance.” Id. at 184, 907 P.2d at 770. This court relied

on the trial court’s findings of fact that (1) “very little time

[] elapsed between the prior act evidence and the [] charged

offense,” (2) there was a “great need” for the evidence to

scrutinize the relationship between the defendant and the

victim, and (3) the prior acts were not “of the nature which

will rouse the jury to overmastering hostility.” Id. at 183-84,

907 P.2d at 769-70 (emphases omitted).

Here, as in Castro, the evidence of Lavoie’s prior

abuse had little, if any, probative value as to his state of

mind at the time of the shooting or to its reasonableness.

Lavoie’s EMED defense stemmed from the stress that he felt after

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Kahalewai said she would leave him, coupled with Kahalewai’s

insults and references to his childhood sexual trauma

immediately prior to the shooting. The evidence of his prior

abuse of Kahalewai was not probative of the presence or

reasonableness of Lavoie’s EMED because the witnesses testifying

to the incidents did not link the abuse to Kahalewai leaving

Lavoie. Absent such a link, Lavoie’s prior bad acts were not

relevant to the reasonableness of Lavoie’s EMED at the time of

the shooting.

Unlike in Maelega, the State did not establish a

direct link between Lavoie’s prior bad acts and the killing

because the State did not provide any direct testimony

indicating that the incidents of abuse were evidence that was

incompatible with EMED in this case. Id. at 175 n.3, 907 P.2d

at 761 n.3. Further, the court in Maelega relied in part on the

fact that “very little time” had elapsed between the prior bad

acts evidence and the charged offense; in fact, all of the

instances of abuse occurred within four months of the incident.

Id. at 174, 183, 907 P.2d at 760, 769. The instances of

Lavoie’s abuse, by contrast, date as far back as six years

before the offense.

Out of the six prior instances of abuse that the State

elicited, only one--the March 16 incident that led to the

separation that immediately preceded the shooting--was linked to

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a separation between Lavoie and Kahalewai. In the absence of

evidence that the other instances of abuse were a motivating

factor in Kahalewai’s leaving, the incidents had no bearing on

whether Lavoie was extremely emotionally disturbed as a result

of the separation and, if so, whether that disturbance was a

reasonable reaction. Thus, these prior acts were not relevant

to rebut an EMED defense.

Even if this court were to hold that these instances

of abuse had some slight relevancy to Lavoie’s EMED defense and

were thus admissible under HRE Rule 404(b), they should

nonetheless have been excluded under HRE Rule 403. When prior

bad acts are relevant to prove a fact of consequence, “the trial

court is still obliged to exclude the evidence ‘if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.’”

Castro, 69 Haw. at 643, 756 P.2d at 1041 (quoting HRE Rule 403).

Thus, were we to conclude that the incidents of abuse were a

motivating factor that led Kahalewai to separate from Lavoie--a

fact for which there is no clear evidence in the record--the

incidents would still be of only marginal probative value

because they represent only one reason out of many for

Kahalewai’s dissatisfaction. Indeed, Aea testified that the

separations were primarily caused by other factors, including

Kahalewai’s desire for “space,” to “hang out with friends,” and

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to “do her own thing,” which was made particularly difficult

given the remote location and lack of phone and internet service

in the home she shared with Lavoie.

On the other hand, evidence of the prior abuse had a

great potential for unfair prejudice to Lavoie because there is

a danger that a jury would consider the instances of abuse as

propensity evidence, inferring that because Lavoie had committed

abuse in the past, he was acting in the same manner when he shot

Kahalewai. Such an inference is expressly prohibited under HRE

Rule 404(b). Further, given the justifiable stigma attached to

domestic abusers in the eyes of the public, evidence that Lavoie

had committed domestic abuse was highly likely to “rouse the

jury to overmastering hostility” towards him. State v. Renon,

73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992). As we held in

Castro, the testimony should have been excluded even if it bore

some slight relevance as to the presence or reasonableness of

Lavoie’s EMED because it was far more prejudicial than it was

probative.

3. The Prior Bad Acts Were Inadmissible to Rebut Lavoie’s Lack of Penal Responsibility Defense

At several points during the trial in this case, the

circuit court suggested that Lavoie’s prior bad acts were

potentially relevant to rebut his lack of penal responsibility

defense. This court has not foreclosed the use of prior bad

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acts evidence to rebut a lack of penal responsibility defense.

See State v. Morishige, 65 Haw. 354, 365, 652 P.2d 1119, 1127-28

(1982) (affirming the admission of expert testimony of the

defendant’s criminal history to show that the defendant had an

“anti-social personality” rather than a mental disorder).

Here, however, the prior bad acts had no probative

value to rebut Lavoie’s lack of penal responsibility defense

because, unlike in Morishige, the incidents were not introduced

through expert testimony to refute a diagnosis of a mental

disorder or lack of capacity, and there was accordingly no

showing that the abuse was inconsistent with any aspect of

Lavoie’s lack of penal responsibility defense. We expressly

noted in Morishige that the testimony was not offered to show

propensity, but rather was “elicited to rebut a clinical

psychologist called by the defense who testified the defendant

was suffering from an acute mental disorder that ‘prevented him

from knowing right from wrong’ and ‘from conforming his behavior

to the requirements of the law.’” Id. at 364-65, 652 P.2d at

1127. In this case, testimony regarding Lavoie’s prior bad acts

may have been admissible had the State first elicited it from

the defense’s expert witnesses on cross-examination for the

purpose of demonstrating that the underlying bases of the

experts’ diagnoses of Lavoie were incomplete or did not support

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their conclusions.32 See HRE Rule 704. In fact, the State did

so during its cross-examination of Dr. Acklin, questioning

whether he was aware of the specific instance of abuse that

precipitated the separation immediately prior to the shooting.

Alternatively, the instances may have been referenced through

the testimony of the State’s own experts as a basis for their

contrary diagnoses.33

The acts of abuse did not serve to rebut Lavoie’s

experts’ diagnoses, however. Several of the instances of abuse

were introduced during the State’s case-in-chief, before

Lavoie’s experts testified. Moreover, there was never any

showing that the instances of abuse were inconsistent with the

defense’s or the State’s experts’ diagnoses. Indeed, Dr. Acklin

testified that the instance of abuse that caused the separation

immediately preceding the shooting and the other prior instances

of abuse of which he was aware were wholly consistent with his

32 The State itself acknowledged the distinction between offering prior misconduct to challenge the underlying bases of the expert opinions and its use for other purposes when the State distinguished between its initial proffer of the note during the cross-examination of Dr. Acklin and its subsequent proffer to admit the note incident for substantive purposes during the testimony of Tempo on rebuttal. 33 In either case, the evidence would have been subject to HRE Rule 403 balancing, and, if admitted, a limiting instruction restricting its use to the evaluation of the reliability of the expert witnesses’ testimony. When the note was introduced on cross-examination of Dr. Acklin, the court informed the jury that it was being offered “in connection with the expert’s opinion,” but nevertheless instructed the jury that it was to consider the evidence on the substantive issue of “the defendant’s intent” rather than the reliability of Dr. Acklin’s testimony.

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diagnosis. And the State’s own expert witnesses gave no

indication that the past instances of abuse figured into their

conclusion that Lavoie did not suffer from a mental disorder or

lack substantial capacity. Without such a link, the past

incidents of abuse had no probative value to rebut Lavoie’s lack

of penal responsibility defense.34 Instead, they served only as

an argument that Lavoie was “by propensity a probable

perpetrator”--a use this court expressly condemned in Morishige.

65 Haw. at 364, 652 P.2d at 1127 (citation omitted).

The admission of the prior instances of abuse on the

issue of Lavoie’s lack of penal responsibility defense had a

great potential to confuse or unfairly prejudice the jury

against Lavoie. For example, the jury may have considered

whether Lavoie had a mental disorder or had substantial capacity

during the prior incidents and assumed that Lavoie was in the

same condition on the night of the shooting. Such an inference

would lack an evidentiary basis, and it would likely be an

inference of propensity prohibited under HRE Rule 404(b). And,

as stated, the justifiable stigma attached to domestic abusers

in the eyes of the general public had the potential to engender

34 Were we to conclude that the instances of abuse in this case were relevant to rebut Lavoie’s lack of penal responsibility defense, the same reasoning would allow the introduction of all of a defendant’s prior bad acts through lay witnesses any time a lack of penal responsibility defense is raised. Such a rule would be contrary to the plain text of HRE Rule 404(b) and the circuit court’s own initial ruling on Lavoie’s motion in limine.

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anger against Lavoie, leading the jury to decide the case on the

basis of his character rather than the applicable factual and

legal issues. Renon, 73 Haw. at 38, 828 P.2d at 1273. Thus,

even assuming arguendo that the prior instances of abuse were

admissible under HRE Rule 404(b) to rebut Lavoie’s lack of penal

responsibility defense, they should have been excluded under HRE

Rule 403 because their marginal probative value was

substantially outweighed by the danger that the jury would

improperly misuse the prior acts. Accordingly, the circuit

court erred in admitting the prior incidents of misconduct, and

the ICA erred in affirming these rulings of the circuit court.

4. Admission of the Prior Bad Acts Was Not Harmless Beyond a Reasonable Doubt

In considering whether the erroneous admission of

evidence of a defendant’s prior bad acts warrants setting aside

a defendant’s conviction, this court considers whether the error

was harmless beyond a reasonable doubt. State v. Kazanas, 138

Hawai‘i 23, 43, 375 P.3d 1261, 1281 (2016). An error is not

harmless beyond a reasonable doubt if, upon review of the record

as a whole, there is a reasonable possibility that the error

might have contributed to the defendant’s conviction. State v.

Souza, 142 Hawaii 390, 402, 420 P.3d 321, 333 (2018); State v.

Wilson, 144 Hawaii 454, 465, 445 P.3d 35, 46 (2019); State v.

Torres, 144 Hawaii 282, 291, 439 P.3d 234, 243 (2019).

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This is not a case “[w]here there is a wealth of

overwhelming and compelling evidence tending to” disprove the

defendant’s EMED and lack of penal responsibility affirmative

defenses. Cf. State v. Toyomura, 80 Hawai‘i 8, 27, 904 P.2d 893,

912 (1995) (quoting State v. Nakamura, 65 Haw. 74, 80, 648 P.2d

183, 187 (1982)). Lavoie presented three highly qualified

expert witnesses that testified that, in their professional

opinion, Lavoie met the requirements for the lack of penal

responsibility defense. Two of the expert witnesses also

concluded that he was experiencing EMED at the time of the

shooting.35

Further, there was significant reason for the jury to

potentially doubt the State’s own experts who presented contrary

testimony. Dr. Choi acknowledged that Lavoie suffered from a

mental disorder and that his ability to control himself and to

know right from wrong on the night of the shooting was

“moderately” impaired. Dr. Choi simply disputed that the

impairment was sufficiently severe to qualify as “substantial.”

And Dr. Cunningham stated that he did not include in his report

a range of factors that the other experts found highly relevant

to their diagnoses, including Lavoie’s family mental illness

history, Lavoie’s abuse by his father, Lavoie’s history of being

35 Indeed, even the State in its closing argument described Dr. Acklin as the most experienced and the most prepared of the expert witnesses.

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sexually abused, and that Lavoie was placed on suicide watch

following the shooting.

On this evidentiary record, there is a clear

possibility that any impermissible inferences that the jury made

from the wrongfully admitted prior instances of abuse colored

their evaluation of Lavoie’s defenses of lack of penal

responsibility and EMED. Additionally, the jury’s verdict may

have been influenced by resentment engendered by the wrongfully

admitted prior instances of domestic abuse. In either

circumstance, there is a “reasonable possibility” that the

circuit court’s error in admitting the incidents of prior abuse

may have contributed to Lavoie’s conviction. Souza, 142 Hawaii

at 402, 420 P.3d at 333. The error was accordingly not harmless

beyond a reasonable doubt.

5. The Circuit Court Improperly Instructed the Jury on the Use of the Prior Bad Acts

Lavoie also argues that the limiting instruction that

the circuit court gave regarding the use of the prior acts

improperly allowed the jury to consider the prior misconduct on

issues for which it was not relevant.36 As stated, the court’s

instruction provided as follows:

36 While it is unnecessary in light of our disposition to resolve whether the limiting instructions were plainly erroneous, we address their propriety to provide guidance to the trial court on remand.

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During this trial, you have heard evidence that the defendant at other times may have engaged in or committed crimes, wrongs or acts. This evidence, if believed by you, may be considered only on the issue of defendant’s intent to commit the offenses charged in this case. Do not consider this evidence for any other purpose. You must not use this evidence to conclude that because the defendant, at other times, may have engaged in or committed other crimes, wrongs or acts, that he is a person of bad character and, therefore, must have committed the offenses charged in this case.

The court gave some variation of this instruction four

times throughout the trial: when the State rested its case-in-

chief, during the cross-examination of Dr. Acklin,37 during the

direct-examination on rebuttal of Rochelle Tempo, and

immediately prior to the State’s closing argument.

The instruction was an incorrect statement of the

matters on which the circuit court had ruled the prior bad acts

were relevant. The court ruled that the prior acts of abuse

were admissible to rebut Lavoie’s EMED and lack of penal

responsibility affirmative defenses. A defendant’s intent,

however--as distinguished from other aspects of the defendant’s

state of mind--is not a relevant consideration with respect to

either defense. This is because a jury does not consider an

EMED or lack of penal responsibility defense unless and until it

has first determined that the State has proven all the elements

of the charged offense beyond a reasonable doubt, including that

37 Although the circuit court’s language varied somewhat in the limiting instruction that it gave during Dr. Acklin’s testimony, the instruction still informed the jury that it was permitted to use the acts to determine the defendant’s intent. See supra note 33.

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the defendant acted with the requisite intent. See Hawai‘i

Standard Jury Instruction Criminal (HAWJIC) 7.07 (“Before you

may consider this affirmative defense, you must first determine

whether the prosecution has proven all elements of [the charged

offense] beyond a reasonable doubt.”); HAWJIC 9.08 (“If and only

if you unanimously find that all the elements of [the murder

charge] have been proven by the prosecution beyond a reasonable

doubt . . . then you must consider whether, at the time

defendant caused the death, he/she was under the influence of

[EMED] for which there is a reasonable explanation.”). In other

words, by the time the jury considers whether the elements of an

EMED or lack of penal responsibility defense are met in a murder

trial, it has already determined that the defendant acted

intentionally or knowingly in causing the death of another

person. See HRS § 707-701.5.

The circuit court appears to have merged Lavoie’s

“intent” with his mental condition generally, aspects of which

were relevant to his EMED and lack of penal responsibility

defenses. As discussed, whether Lavoie was under the influence

of EMED or a mental disorder that resulted in a lack of

substantial capacity were elements of the respective affirmative

defenses. However, neither of these considerations fall within

the plain meaning of the term “intent”. See Black’s Legal

Dictionary 964 (11th ed. 2019) (“[T]he mental resolution or

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determination to do [an act].”).38 Further, the court ruled with

respect to the EMED defense that the bad acts were probative not

only of whether Lavoie was under the influence of EMED but also

the separate issue of whether EMED was a reasonable reaction

given the circumstances. Even were we to construe intent to

refer to Lavoie’s general mental condition, the reasonableness

of the explanation for the EMED was an objective inquiry under

the circumstances as Lavoie believed them to be--separate from

Lavoie’s subjective mental state at the time of the offense.

Accordingly, the court’s instruction informing the jury that it

could consider the prior bad acts to show Lavoie’s intent was

problematic in multiple respects.39

38 HRS § 702-206 (1993) provides as follows:

Definitions of states of mind. (1) “Intentionally.” (a) A person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct. (b) A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist. (c) A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. 39 The circuit court may have derived the language of its instruction from HRE Rule 404(b), which permits the use of evidence of other crimes, wrongs, or acts to prove a “fact that is of consequence to the determination of the action, such as . . . intent.” The enumerated examples of facts of consequence included in HRE Rule 404(b) are not exhaustive, however, and the limiting instruction should have been tailored to the specific determination to which the court deemed the prior bad acts were relevant.

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B. The Circuit Court Was Not Required to Give a Jury Instruction Defining EMED

Lavoie argues that the EMED instructions given to the

jury did not properly define EMED and unnecessarily highlighted

and isolated self-control so as to effectively create an

additional element to prove the defense. The circuit court

provided the jury with the following instruction:

Extreme mental or emotional disturbance has two elements. These elements are: One, that the defendant was, at the time he caused the death of the other person, under the influence of extreme mental or emotional disturbance. And two, there was a reasonable explanation for the extreme mental or emotional disturbance.

In addition, the court instructed the jury that, “The

question of the defendant’s self control or the lack of it at

the time of the offense is a significant factor in deciding

whether he was under the influence of extreme mental or

emotional disturbance” (self-control instruction).

In State v. Haili, the defendant similarly argued that

circuit courts must provide the jury with a definition of EMED.

103 Hawaii 89, 107, 79 P.3d 1263, 1281 (2003). We rejected the

defendant’s argument and observed that the Hawaii Legislature

has not defined EMED, and accordingly “the circuit courts need

not define the term when instructing the jury; instead, the jury

is to give the phrase its plain meaning.” Id. at 108, 79 P.3d

at 1282; see also Roxas v. Marcos, 89 Hawaii 91, 148, 969 P.2d

1209, 1266 (1998) (noting that the jury instructions given did

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not include the legal definitions of “defraud” or “deceit,” and

presuming that the jury accordingly applied the commonly

understood meaning of those terms). We thus concluded that the

circuit court correctly refused to define EMED. Haili, 103

Hawaii at 109, 79 P.3d at 1283.

Additionally, the circuit court provided the jury with

a self-control instruction in Haili that was identical to the

one given in this case. See id. at 107, 79 P.3d at 1281. We

held that the circuit court did not err in providing the jury

with a self-control instruction because self-control is a

“significant, even determining, factor in deciding whether the

[defendant] was under the influence of an extreme emotional

disturbance such that [the defendant’s] conduct would fall under

HRS § 707–702(2).” Id. at 108, 79 P.3d at 1282 (quoting State v.

Matias, 74 Haw. 197, 204, 840 P.2d 374, 378); see also State v.

Perez, 90 Hawai‘i 65, 74, 976 P.2d 379, 388 (1999).

We thus conclude that the circuit court’s EMED

instructions in this case were not prejudicially insufficient.40

See Haili, 103 Hawaii at 108, 79 P.3d at 1282.

40 Lavoie contends that the following instruction should also have been submitted to the jury:

An extreme mental or emotional disturbance is the emotional state of an individual, who has an extreme emotional reaction to an unusual and overwhelming stress as a result of which there is a loss of self-control and reason is (continued . . .)

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C. The Circuit Court Should Have Given a Merger Instruction

Lavoie contends that the circuit court plainly erred

in not providing the jury with a merger instruction because the

same factual incident comprised both the felon in possession and

place to keep offenses, the acts occurred at the same time, and

they were committed with the same intent.

Generally, “[w]hen the same conduct of a defendant may

establish an element of more than one offense, the defendant may

be prosecuted for each offense of which such conduct is an

element.” HRS § 701-109(1) (1993). A “defendant may not,

however, be convicted of more than one offense if . . . [t]he

offense is defined as a continuing course of conduct and the

defendant’s course of conduct was uninterrupted, unless the law

provides that specific periods of conduct constitute separate

offenses.”41 HRS § 701-109(1)(e). Thus, this court has

overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or similar emotions.

(Emphasis added.) Lavoie’s proposed instruction incorrectly indicated requirements for an EMED defense that are not included in HRS § 707-702(2). Specifically, Lavoie’s proposed instruction requires a showing that the defendant had been exposed to “an extremely unusual and overwhelming stress.” As we stated in State v. Seguritan, “No such provision appears in the statute.” 70 Haw. 173, 174, 766 P.2d 128, 129 (1988). Additionally, the proposed instruction denotes an emotional state that “as a result of which there is a loss of self-control and reason is overborne,” which is also not a statutory requirement. Thus, the circuit court was not required to provide the jury with Lavoie’s proposed EMED instruction. 41 The purpose of this statute is to “limit the possibility of multiple convictions and extended sentences when the defendant has basically (continued . . .)

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concluded that only one crime is committed when “(1) there is

but one intention, one general impulse, and one plan, (2) the

two offenses are part and parcel of a continuing and

uninterrupted course of conduct, and (3) the law does not

provide that specific periods of conduct constitute separate

offenses.” State v. Hoey, 77 Hawaii 17, 38, 881 P.2d 504, 525

(1994).

Whether a particular criminal offense can be charged

as a continuous offense is a question of law. State v. Decoite,

132 Hawaii 436, 442, 323 P.3d 80, 86 (2014) (Pollack, J.,

dissenting); see also Hoey, 77 Hawaii at 38, 881 P.2d at 525

(“It is possible for kidnapping and robbery charges against a

defendant to merge, pursuant to HRS § 701-109(e)[.]”).

Accordingly, “[a]n offense that may be charged as a continuing

offense permits culpable acts to be charged as separate offenses

or as a continuing offense.” Decoite, 132 Hawaii at 442, 323

P.3d at 86 (Pollack, J., dissenting) (emphasis omitted).

The test for whether a crime can be charged as a

continuous offense is whether the statute precludes charging an

offense as a continuous offense, and whether the element(s) of

engaged in only one course of criminal conduct directed at one criminal goal.” HRS § 701-109 cmt.

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the offense may constitute a continuous, unlawful act or series

of acts, however long a time the act or acts may occur. See id.

at 438, 323 P.3d at 82 (majority opinion) (citing State v.

Arceo, 84 Hawaii 1, 18-19, 928 P.2d 843, 860-61 (1996)); State

v. Apao, 95 Hawaii 440, 447, 24 P.3d 32, 39 (2001) (holding that

a crime may be charged as a continuing offense if, inter alia,

“the offense is not defined in such a manner as to preclude it

from being proved as a continuous offense”); State v. Temple, 65

Haw. 261, 267 n.6, 650 P.2d 1358, 1362 n.6 (1982) (“A continuing

offense is a continuous, unlawful act or series of acts set on

foot by a single impulse and operated by an unintermittent

force, however long a time it may occupy . . . .” (emphasis

omitted)); State v. Martin, 62 Haw. 364, 371-72, 616 P.2d 193,

198 (1980) (holding that theft was a continuous offense because

the language of the theft statute reflected a legislative intent

to prohibit continuing conduct “since two elements of the

pertinent crime . . . involve conduct that can extend beyond

isolated moments”).42

42 Our case law has recognized several offenses that could be charged as continuous offenses. See, e.g., State v. Yokota, 143 Hawaii 200, 207, 426 P.3d 424, 431 (2018) (holding that forgery could be charged as a continuous offense); State v. Stenger, 122 Hawaii 271, 289, 226 P.3d 441, 459 (2010) (holding that theft by deception is a continuous offense); State v. Rapoza, 95 Hawaii 321, 329, 22 P.3d 968, 976 (2001) (holding that attempted murder in the second degree could be charged as a continuous offense); Hoey, 77 Hawaii at 38, 881 P.2d at 525 (holding that robbery is a continuous offense); Martin, 62 Haw. at 369, 616 P.2d at 197 (holding that theft is a continuous offense).

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If the statute provides that distinct acts constitute

separate offenses, then conduct may not be charged as a

continuous offense. For example, in the context of sexual

assault, the legislature has prescribed that “each act of sexual

penetration shall constitute a separate offense.” HRS § 707-700

(2014 & Supp. 2016); see also Arceo, 84 Hawaii at 16, 928 P.2d

at 858 (“Multiple sex acts do not merge into a single continuing

offense because the defendant can be convicted and punished for

each separate act.” (emphasis omitted)). Thus, this test

involves two prongs: first, whether the statutory language

prohibits charging the offense as a continuous offense, and

second, whether an element of the offense can “extend beyond

isolated moments.” Martin, 62 Haw. at 371-72, 616 P.2d at 198.

In State v. Matias, the defendant was convicted of

felon in possession and place to keep. 102 Hawaii 300, 75 P.3d

1191 (2003). We vacated the defendant’s convictions because the

circuit court failed to provide a merger instruction to the

jury. Id. at 306, 75 P.3d at 1197. As we would later explain,

both offenses arose out of the same elemental conduct, “i.e.,

what the defendant did with the object, namely, ‘possess[ed]

it.’” State v. Frisbee, 114 Hawaii 76, 83, 156 P.3d 1182, 1189

(2007) (alteration in original) (quoting Matias, 102 Hawaii at

303, 306, 75 P.3d at 1194, 1197).

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Accordingly, in vacating the felon in possession and

place to keep convictions and remanding for a new trial for

failure to instruct the jury on merger, the Matias court

concluded that these statutes did not preclude the charging of

these offenses as continuous offenses. Implicit in the court’s

holding was the conclusion that the statutes are comprised of

elements--namely, the element of possession--that may extend

beyond isolated moments.

The ICA subsequently followed our holding in Matias in

State v. Padilla. As in Matias, the defendant in Padilla was

convicted of felon in possession and place to keep, and the

convictions were vacated because the circuit court failed to

provide a merger instruction to the jury. Padilla, 114 Hawaii

507, 508, 518, 164 P.3d 765, 766, 776 (App. 2007).

Here, Lavoie was also convicted for violating the

felon in possession (HRS § 134-7(b)) and place to keep (HRS

§ 134-23(2)) statutes, neither of which excludes charging the

offense as continuous. HRS § 134-7(b) prohibits a person

convicted of a felony from “own[ing], possess[ing], or

control[ling] any firearm.” HRS § 134-23(a) provides that “all

firearms shall be confined to the possessor’s place of business,

residence, or sojourn.” Unlike the statute at issue in Arceo,

the Hawaii legislature has not set forth language in either

statute that defines specific periods of conduct as separate

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offenses. Additionally, the elements of each offense involve

possession, which can continue longer than a single point in

time. Martin, 62 Haw. at 371, 616 P.2d at 198 (“[E]xercise of

control over [] property . . . involve[s] conduct that can

extend beyond isolated moments.”).

Thus, the offenses of felon in possession and place to

keep may be charged as continuous offenses, and the jury was

required to determine whether there was “one intention, one

general impulse, and one plan,” and whether the two offenses

merged. Matias, 102 Hawaii at 305, 75 P.3d at 1196; Hoey, 77

Hawaii at 38, 881 P.2d at 525.

We have previously recognized that the jury is tasked

with making the factual determination of whether two offenses

merged. In Matias, the defendant was arrested after a police

officer found Matias in his friend’s car with a loaded handgun

under his seat. 102 Hawaii at 303, 75 P.3d at 1194. We held

that the defendant was entitled to a merger instruction because

it was clear that the basis for the jury’s guilty verdicts on

both counts “arose out of the same factual circumstances.” Id.

at 306, 75 P.3d at 1197. We stated that

it is common-sensical that a defendant charged in connection with the same incident with the offenses of place to keep . . . and [felon in possession] . . . would, in virtually every instance, be entitled to a merger instruction, pursuant to HRS [§] 701-109(1)(e), because both offenses would intrinsically arise out of the same conduct and attendant circumstances.

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Matias, 102 Hawaii at 306 n.10, 75 P.3d at 1197 n.10.

Similarly, in Padilla, the defendant was arrested for

firing a gun from his car and a subsequent search of his truck

revealed a loaded pistol in the truck bed. 114 Hawaii at 511,

164 P.3d at 769. Relying on Matias, the ICA found that the

circuit court committed plain error in failing to give a merger

instruction because “[a]ll factual issues involved in []

determin[ing] [whether there was one intention, one general

impulse, and one plan] must be decided by the trier of fact.”

Id. at 517, 164 P.3d at 775 (emphasis omitted) (citing Matias,

102 Hawaii at 305, 75 P.3d at 1196).

Here, both the felon in possession and place to keep

offenses were charged as having occurred on the same date, and

the court’s instructions on the elements of these offenses

specified that date. Whether Lavoie’s conduct constituted

“separate and distinct culpable acts or an uninterrupted

continuous course of conduct” was a question of fact that was

required to be determined by the jury. Matias, 102 Hawaii at

306, 75 P.3d at 1197 (internal citations omitted). And, the

jury should also have been required to determine whether Lavoie

had one intention, one general impulse, and one plan to commit

both offenses. The circuit court’s failure to instruct the jury

to make these determinations was prejudicial and plainly

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erroneous. See Matias, 102 Hawaii at 306, 75 P.3d at 1197;

Padilla, 114 Hawaii at 517, 164 P.3d at 775.

The ICA, in affirming the circuit court, determined

that the two offenses arose from separate and distinct factual

circumstances: it found that the felon in possession offense was

completed before Lavoie left his home on the day of the

shooting, while the place to keep offense was separately

committed when Lavoie placed the firearm in his car. Thus, the

ICA held that no merger instruction was required. This holding

is incorrect for two reasons. First, the ICA, in reaffirming

its own unpublished decision in State v. Stangel, held that a

place to keep offense cannot be a continuous offense because it

“is not defined by statute as a continuing course of conduct.”

(Citing No. CAAP-XX-XXXXXXX, 2015 WL 836928, at *9 (Haw. App.

Feb. 26, 2015).) As discussed, this analysis is incorrect under

our law and also contrary to Matias and Padilla, which

determined that these crimes may be punished as continuing

offenses.43

Second, the ICA erred in affirming the circuit court’s

improper fact finding. In this case, the jury was responsible

for determining whether the place to keep and felon in

possession offenses were factually separate and distinct and

43 To the extent that Stangel holds that a place to keep offense cannot be a continuous offense, it is overruled.

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whether “there [was] but one intention, one general impulse, and

one plan,” not the court. The circuit court found that the

felon in possession offense “had been committed before the

defendant had ever left his home” while the place to keep

offense “occur[red] with the firearm being loaded and then

transporting it in a place other than his place of business,

residence, or sojourn.” Trial courts are not tasked with making

factual findings regarding when each offense occurred or whether

the defendant’s conduct constitutes “an uninterrupted continuous

course of conduct”; the jury must make such determinations.

Matias, 102 Hawaii at 306, 75 P.3d at 1197.

The circuit court has the duty and ultimate

responsibility to instruct the jury on the proper and relevant

law. State v. Adviento, 132 Hawaii 123, 137, 319 P.3d 1131,

1145 (2014). The circuit court failed to do so in this case by

omitting a merger instruction. Failure by the circuit court to

submit a merger instruction constituted plain error and was not

harmless beyond a reasonable doubt.44 Frisbee, 114 Hawaii at 84,

156 P.3d at 1190; Matias, 102 Hawaii at 306, 75 P.3d at 1197.

44 Additionally, as discussed supra note 10, Lavoie requested that the State be precluded from calling Victoria Toledo as a witness because the prosecutor had disclosed that Toledo had previously told him (the prosecutor) that an alleged encounter she had with Lavoie occurred several days prior to the shooting and not on the day of the shooting as she testified. Instead, the prosecutor was permitted as “as an officer of the court” to make the following unsworn statement to the jury: “[O]n July 18, 2014, in a telephone conversation with [] Victoria Toledo, I recall her saying that Marlin Lavoie (continued . . .)

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V. CONCLUSION

Accordingly, the ICA’s June 6, 2018 Judgment on Appeal

and the circuit court’s August 13, 2015 Judgment, Conviction and

Sentence are vacated, and this case is remanded to the circuit

court for further proceedings consistent with this opinion.

Matthew S. Kohm /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama

Emlyn H. Higa /s/ Sabrina S. McKenna (Renee I. Delizo with him on the briefs) /s/ Richard W. Pollack for respondent /s/ Michael D. Wilson

told her, ‘If I can’t have Malia, nobody else will,’ and that the conversation took place a few days before the shooting.” However, the prosecutor proceeded to rely on Toledo’s testimony-- including her statement that the encounter occurred the same day as the shooting--during the trial. On redirect examination of Dr. Cunningham, for example, the prosecutor asked what his opinion would be “if the defendant . . . had previously told someone at about noon that same day that if I can’t have her, nobody will.” We note that the manner in which the prosecutor corrected the record in this case--an unsworn statement made to the jury in open court--is problematic. For instance, the jury in a criminal trial is specifically instructed that statements and remarks by counsel are not evidence. See State v. Valdivia, 95 Hawai‘i 465, 480, 24 P.3d 661, 676 (2001). Lavoie has not raised the flawed nature of this procedure on appeal, and it is not necessary for this court to resolve whether it warrants plain error review in light of our disposition of this case. Nevertheless, this matter is brought to the attention of the court and counsel so that the procedure used at the trial is not repeated.