CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30171; CR. NO. 07-1-2068)
Summer M.M. Kupau for petitioner
Donn Fudo for respondent
McKENNA, AND POLLACK, JJ., WITH ACOBA, J.,
Petitioner/Defendant-Appellant Melchor B. Adviento (Adviento) seeks review of the August 16, 2012 Judgment on Appeal of the Intermediate Court of Appeals (ICA),  filed pursuant to its July 10, 2012 Memorandum Opinion, affirming the Judgment of Conviction and Sentence (Judgment) entered by the Circuit Court of the First Circuit (circuit court) on October 21, 2009.
This appeal requires us to consider a trial court's duty to instruct the jury on the affirmative, mitigating defense of "extreme mental or emotional disturbance" (EMED) under Hawai'i Revised Statutes (HRS) § 707-702(2), in situations where neither party requests the instruction. For the reasons set forth herein, we hold that the trial court has a duty to instruct the jury on the EMED defense when it is raised by the evidence. Thus a defendant may not waive an instruction on the EMED defense. Accordingly, we vacate the ICA's Judgment on Appeal and the circuit court's Judgment, and remand the case for a new trial consistent with this opinion.
On November 6, 2007, Adviento was indicted upon a charge of murder in the second degree in violation of HRS §§ 707-701.5 and 706-656. The State alleged that on or about October 28, 2007, Adviento intentionally or knowingly caused the death of his wife, Erlinda Adviento (Erlinda).
On June 30, 2009, the State filed a "Notice of Intent to Use Evidence" (Notice), declaring its intent to "use as evidence" a March 2004 incident in which Adviento hit Erlinda with a phone, "causing physical injuries to [Erlinda]" and resulting in the police being called. The incident had occurred when Erlinda and Adviento began arguing over their children's homework.
The defense objected to the admissibility of the phone incident on the basis that the evidence was more prejudicial than probative under Hawai'i Rules of Evidence (HRE) Rule 403, and that there was a lack of foundation for the evidence because Adviento and Erlinda's youngest son who had witnessed the incident "did not really remember the incident and does not know particular details." The defense also objected that Erlinda's "statements to the police and others during the case five years ago following her being hit with a phone" constituted hearsay statements, and that their admission would violate Adviento's constitutional right to confront witnesses.
Adviento's jury trial began on July 6, 2009 with jury selection.
On July 7, 2009, after the jury had been selected, the jury was excused and the court stated that it was ready to rule on the admissibility of the 2004 phone incident. As an initial matter, the court noted, and the parties agreed, that as a result of the incident, Adviento had been convicted of assault in the third degree approximately three and a half years prior to Erlinda's death. The court then stated that it would withhold ruling on the admissibility of the conviction until the court knew whether Adviento would assert an EMED defense, and the nature of such a defense. The court further held that if the conviction was admitted into evidence, then it would be admitted on rebuttal, and it would be "[j]ust the conviction" and not the "specific facts" of the underlying act:
THE COURT: . . . my preference would be to allow in the conviction; because we don't have to fight about what really happened. There was a conviction. And this is why I'm withholding ruling on it. Because I'm not sure how you're going to raise the EMED defense. I can't, at this point, get it clear in my mind how it's going to come up. I mean, if it depends on the relationship, then Maeleqa and cases like Hiley (phonetic) say it comes in.
If his defense arises from the nature of their relationship, it may have to come in. If it doesn't, then it won't. I think that -- I'm not convinced that -- let's put it that way. I'm not convinced that it would come in for anything other than rebuttal of the EMED defense. We're talking about that conviction, the hitting on the head with the phone.
[DEFENSE COUNSEL]: I just need to be clear. . . .If we're talking about that, is it just going to be the conviction? Or is it going to be the facts underlying the conviction, as well?
THE COURT: Just the conviction.
[DEFENSE COUNSEL]: Just the conviction. Okay.
THE COURT: As far as the strength of the evidence goes, the conviction is the strongest evidence. And if you are -- if you are trying to establish in rebuttal of the EMED defense that this marriage was not without its problems and there was some violence in the past, to me the conviction is your evidence, if the Defense raises that defense. And, so, what I'm saying is, if that comes in, it will come in on rebuttal, the conviction. And let's -- let me rule now, that if it comes in, it will just be the conviction of Assault in the Third Degree, assault against the decedent and not the specific facts. Let's just wait on that.
The court reiterated to the prosecutor that he was not permitted to reference the assault conviction in his opening statement "[b]ecause, again, I'm not sure how the EMED defense will arise. I don't know what he's going to say." The court continued and stated again that it would wait to "hear exactly how EMED comes up."
At the next trial date on July 9, 2009, prior to opening statements, defense counsel informed the court that the defense would not be asserting the EMED defense because of the court's "pretrial rulings":
[DEFENSE COUNSEL]: Judge, we wanted to put a couple things on the record. I think the Prosecutor wanted you to have an on-the-record colloquy with the defendant as to stipulations and things of that nature; and I want to put on the record yesterday I met with Mr. Adviento, we discussed the Court's pretrial rulings, defenses and the type of evidence and things of that nature, and based on his decision, we are not going to be asserting the extreme emotional defense, extreme emotional disturbance defense, and this is his decision that he made yesterday, so I just wanted to put that on the record.
The court responded, "Okay." The court then questioned the prosecutor about an additional witness that the State had just named. The prosecutor explained that the witness was "the fingerprint examiner who examined the fingerprints from [Adviento's] assault conviction, " and that the State intended to use the witness' testimony "as an offer of proof" to rebut any EMED defense raised during the defense's case. The prosecutor explained, "I thought in light of how the Judge rules on the motion in limine, that might be the useful or safer way, just to be able to present the assault conviction without putting on, say, a probation officer or arresting officer." The court responded, "If EMED is not raised, it's unlikely that the Court's going to allow that."
The prosecutor then commented that it was his understanding that it was not up to the defendant to assert the EMED defense if the evidence raised it. Defense counsel responded that it was the defendant's choice to raise the EMED defense or not because EMED is an affirmative defense:
[PROSECUTOR]: Correct, and my only comment to what [defense counsel] just stated [regarding the defendant not asserting the EMED defense] is I'd like to hear that from the defendant's mouth on the record, if he decides that is how he wants to proceed, just to avoid something down the road. And then I also, just as a comment, I don't know if he can make that decision if the evidence comes out, however -- in other words, I think it's the evidence that decides.
THE COURT: What are you going to do -- ask for an EMED instruction?
[DEFENSE COUNSEL]: No. As an affirmative defense, I think it is his choice, Judge. It's not a regular defense, so that's why I left it up to him.
The court responded, "We'll go ahead with the opening statements and the preliminary instructions, and then I'll voir dire him on all of the stipulations and the EMED thing. We should get started."
The following facts are taken from the evidence adduced during the three days of testimony by the State and defense witnesses.
Adviento and Erlinda met in the Philippines and were married for nearly twenty-four years. They had three children together: a twenty-six year-old son (Elder Son), an eighteen year-old daughter (Daughter), and a thirteen year-old son (Minor Son). Erlinda was forty-four years old at the time of her death. She worked as a nurse at a convalescent center.
Adviento, Erlinda, Daughter and Minor Son lived in the downstairs back unit (Adviento unit) of a two-story, three-unit residence. The Adviento unit had two bedrooms. Erlinda and Minor Son shared one bedroom, Daughter stayed in the other bedroom, and Adviento slept in the living room.
Erlinda's co-worker at the convalescent center, Ricardo Dela Merced (Merced), testified that he and Erlinda were "spending a lot of time" together in 2007 and were "real close." Erlinda's children called Merced "Uncle Ricky." Merced was also married; his wife and three children lived in the Philippines. Merced testified that Erlinda told him that she loved him. He acknowledged telling the police that he would have been with Erlinda if he had not been married.
According to Merced, Erlinda would call him about seven times a day. Minor Son testified that he remembered Adviento questioning Erlinda about the phone bill and Merced's phone number, which appeared on the phone bill "a lot." Minor Son also testified that Erlinda would sometimes bring him and Daughter to Merced's apartment to "just talk." Both Merced and Minor Son testified that Merced, Erlinda, Daughter and Minor Son stayed in a hotel room in Waikiki "for one day and one night."
Adviento testified that in August and September of 2007, prior to Erlinda's death, he took a three-week trip to the Philippines. Elder Son testified that when Adviento returned from his trip, Erlinda had a meeting with Elder Son and Adviento, and Erlinda told Adviento that she wanted a divorce. Adviento reacted by saying, "[I]t's okay." Elder Son suggested that Erlinda "move or go somewhere else before somebody get hurt . . . . [b]ecause sometimes people get divorced, they end up fighting. . . . And lead to something more worse[.]" However, Adviento and Erlinda responded that "nobody will get hurt, we're going to be fine."
During the same meeting, Erlinda and Adviento also accused one another of infidelity. According to Elder Son, Erlinda believed that Adviento was "cheating" during his trip to the Philippines. When Adviento accused Erlinda of also cheating, "[Erlinda] reacted normally, like she wasn't cheating." Adviento's "reaction [was] kind of different, kind of like getting mad[.]" Elder Son testified that the meeting ended without incident: "After that, like it's okay for both of them, like nothing happened when they said that [about divorce]. Okay. My dad go to work. My mom goes to work."
Daughter and Minor Son were also aware that Erlinda and Adviento had discussed divorce and that Erlinda was the one who wanted the divorce. Daughter testified that she had seen the divorce papers.
On Sunday, October 28, 2007, Erlinda stayed home from work. Adviento testified that he went to work in the morning and came home at around noon. Daughter was at work that day during all of the relevant times. Minor Son got permission from Erlinda to go to the upstairs apartment in the same building to play with his friends. When Minor Son left Erlinda, she was watching movies in the room that she shared with Minor Son.
Merced testified that he was talking to Erlinda on the cell phone that day. Their conversation was interrupted at some point by "someone's banging the door." Merced testified that he heard a male voice say in Tagalog, "[Y]ou're the one asking some kind of relationship in the Philippines, but you're the one who is -- who has a boyfriend." Then there was "banging, " and the phone reception was cut off.
On cross-examination, Merced acknowledged that during his first interview with the police he had only stated that he heard "banging" or "knocking" on the door and that he did not hear a male voice. He told police that he knew it was Adviento at the door only because Erlinda told him that Adviento was calling her. Merced explained that he had not been truthful in the first interview because he was confused and afraid that he would be in trouble. Merced testified that it was during his second interview with the police that he said he heard Adviento's voice and that Adviento was "screaming mad" at Erlinda.
Minor Son testified that at some point while he was in the upstairs apartment with his friends, he heard Erlinda scream. He testified that Erlinda "yelled call 911 and to come downstairs and help her." Her screaming went on for a "few minutes" and "shocked and scared" Minor Son. He did not hear Adviento or anyone other than Erlinda yell or scream.
Myrna Villaver (Villaver) lived in the upstairs apartment above the Adviento unit. She testified that at the relevant time on October 28, 2007, her children, Minor Son, and another friend were in her apartment, playing in the bedroom. At around 2:30 p.m. in the afternoon she heard a female "yell, a scream" coming from downstairs. Villaver described the scream as a "long, unusual scream that that person needed help." She did not hear anyone else scream.
After Minor Son and Villaver heard the scream, they both ran downstairs. Villaver told her children to stay back and asked Minor Son to go to the Adviento unit and ask Erlinda if she was okay. Minor Son walked on the outside of the unit to the window of Erlinda's room. He noticed that the front door to the Adviento unit was closed and locked, even though the door was usually left open and unlocked whenever someone was home during the day. Minor Son could not see into Erlinda's room through the window. Minor Son testified that he asked if everything was okay, and Adviento responded, "Everything's fine." However, Minor Son testified that "at the end ... of what he said, it didn't quite sound very good." Minor Son said that Erlinda did not respond, and he did not hear her voice when he stood outside the window.
Villaver remained closer to the downstairs front unit of the complex while Minor Son went by the window. She testified that Minor Son asked, "[M]om, are you okay, " then Villaver heard "a female, I believe it was his mom, saying call 911." Villaver did not hear a male voice.
Villaver called 911. Honolulu Police Department (HPD) Officer Nalei Sooto (Officer Sooto) testified that on October 28, 2007, shortly after he began his shift at 2 p.m., he received an argument call from dispatch. When Officer Sooto arrived at the Adviento residence, Villaver told Officer Sooto "that there was an argument going on for several hours" and "some screaming earlier. "
After attempting to open the front door of the Adviento unit, Officer Sooto repeatedly knocked and announced "police." After about three minutes, Adviento opened the door. Adviento "was covered in blood" and "appeared to be injured." Officer Sooto asked Adviento what happened, and Adviento responded, "I killed my wife."
Officer Sooto immediately handcuffed Adviento and walked him towards the front of the house where the police car was parked. Officer Sooto described Adviento's demeanor as "[k]ind of dazed, possibly fatigued." There was blood on the "front area" and "sides" of Adviento's body, and "some splatters" on his face. Officer Sooto testified that "[a]s I walked him out, he kind of stated to me that his wife was cheating, she tried to stab him. So he killed her, and then he tried to kill himself after." Adviento took "a couple gasps of breath between each statement he gave." When Officer Soto sat Adviento on the ground against the police car, he noticed injuries to Adviento's collarbone area and wrists.
After other HPD officers arrived on the scene, they entered the Adviento home and found Erlinda on the bedroom floor between the bed and a dresser. She was "covered in blood, " her "shirt was partially above her stomach, " revealing that she had been cut, and she had no pulse. Erlinda was pronounced deceased at the scene by emergency medical services personnel.
Adviento was transported from the scene in critical condition by ambulance to the Queen's Medical Center emergency room.
A white-handled serrated bread knife was recovered from the bedroom floor next to Erlinda's left arm. A second knife with a brown wooden handle was recovered from beside Erlinda' s left hand. A bent curtain rod was also found on the floor near Erlinda's body. Two cell phones were found on the bed and a cordless phone was on the floor.
An HPD homicide detective testified that the wounds on Erlinda's body were consistent with a single-edged knife. The detective testified that it was apparent from her investigation that a struggle occurred in the room where Erlinda was found.
The Chief Medical Examiner for the City and County of Honolulu conducted the postmortem examination of Erlinda and testified that excluding cuts on her hands, Erlinda had a total of seventeen wounds on her body. Sixteen of the wounds were stab wounds,  and one was a cut to the face. Some stab wounds went through the heart and lung. Erlinda also had "defensive wounds" on the palms and backs of her hands.
The medical examiner testified that Erlinda's wounds were consistent with the two knives recovered from the scene. She concluded that Erlinda' s wounds were not self-inflicted, and that Erlinda "died of bleeding from the injuries to the heart and lung as a result of the stab wounds in the chest."
The Queens Hospital trauma surgeon who was in charge of Adviento's care after he was brought into the emergency room testified that Adviento had three open wounds to his front abdomen, three wounds to his neck, and multiple lacerations to his wrists. Internally, Adviento had a collapsed right lung with bleeding into the right chest. During surgery the surgeon found "six perforations of his intestines and an injury to his spleen." The surgeon testified that he could not determine the source of the injuries just by looking at the wounds. Adviento did not have any injuries on other parts of his body, including his face and hands. The surgeon stated that the three stab wounds to Adviento's torso would have caused a great deal of pain.
The sole witness for the defense was Adviento. Adviento testified that he and Erlinda had been having marital problems for about a year prior to Erlinda's death. According to Adviento, the problems were caused by incidents in which Erlinda said she was working overtime but was not at her workplace when Adviento checked. Adviento acknowledged that he thought Erlinda may have been "fooling around."
Adviento testified that he went to the Philippines for three weeks because he injured his foot at work and Erlinda suggested that he go to visit family. Adviento stayed with Erlinda's family while in the Philippines. When Adviento returned from his trip, Erlinda told him that her sister had called her and said that he was "having an affair and womanizing in the Philippines." Erlinda had told him two or three times prior to this occasion that she wanted a divorce. The last time they discussed divorce was about two to three weeks before Erlinda's death, during the conversation with Elder Son.
On October 28, 2007, Adviento went to work in the morning and returned home at around noon. He did some chores, cooked, and then went to sleep. He testified that he was not aware that Erlinda was home and did not go into or towards Erlinda's room. After Adviento woke up, he went towards Erlinda's room in order to grab a shirt. He was near the door to Erlinda's room when he heard somebody saying, "[S]weetheart, will it be okay if I don't have any present to you?" He testified that he felt "[f]rustrated" when he heard this. He knocked on the door and then entered Erlinda's room.
When Adviento entered the room, he saw Erlinda talking on the cell phone. He told Erlinda, "[Y]ou told me that I was the one making relationship in the Philippines, while the truth is you were the one having a boyfriend over here." Erlinda responded by throwing the cell phone at Adviento. Adviento and Erlinda then began arguing. He did not know how long they argued, but stated that they were "talking kind of loud." According to Adviento, he was "mad" and Erlinda was "very mad" as they continued "arguing back and forth." Adviento told Erlinda to go back to the Philippines and ask her family about his alleged infidelity. He also told Erlinda that he would call her workplace to verify her overtime and the five nights and days when she called in sick from work but was not at home.
Adviento testified that he walked to the phone and he had his back turned to Erlinda while he was dialing the phone. Then he felt a "pain" in his stomach. He looked down and saw blood on his stomach. He testified that he looked at Erlinda and he was "surprised that she had a bow knife on her hands" and that a second knife was close to his stomach. He felt another "stabbing" on his stomach. At that point, Adviento hit Erlinda with the phone he was holding. He testified that he then struggled with Erlinda, took a knife away from her, and stabbed her:
A [Adviento]. Then I push her face. Then I tried to grab her knife on her arms. And I took it away.
While I was struggling on the other hand, with the other knife, I feel another pain on my shoulder.
Q [Prosecutor]. Okay.
A. And after that, I manage to get the knife. I just -- I don't know. I was afraid of my life. I thought I was going to die. I got plenty blood.
I just stab her, I don't know how many times. I don't know where, which part of her body I stab. I just kind of afraid that I would die.
I just -- why -- I went -- I fall down on the floor, and she was still coming with me, trying to stab me up.
A. I feel pain on my shoulder again. That time I have the chance to grab her right arm. And I never let go. And I just stab, and she fell down on me.
Q. Okay. What happened next?
A. We're still struggling at that time.
Then she wasn't moving. I wasn't moving. I don't know, I just pull her away from me.
Then I struggle to stand up, because my left foot is still swollen and I was favoring it from the surgery. I grab on the -- I don't know which one I grab and try to stand up.
Adviento testified that after he stood up, he looked at Erlinda lying on the floor and did not know "if she's unconscious or if she's dead." He described his feelings at that point as "shocked."
He testified that he went out to the living room and walked around, "confused, " and closed the back and front door of the Adviento unit because he did not want his children to see "what happened to us with my wife." He explained that he then returned to Erlinda's room and slashed his wrists:
A [Adviento].....Then I went back to the room. I' m still staring and looking at my wife, still shocked, still fear for my life. My wife was stab me to death. She was trying to kill me.
Q [Prosecutor] . So what happened now?
A. I don't know. I just grabbed the knife from her hand and cut.
Q. Why would you do that?
A. She wanted me dead. I would rather be dead — I would rather she be alive, than me. I would rather be dead than her. I just waited over there. I like to die also at that time. I just waited, and waited, and waited.
Adviento remembered the police arriving and questioning him. He testified, "I don't know if I answered them right or wrong, because I was kind of feeling dizzy." He remembered telling the police, "My wife is cheating on me. She stabbed me. She tried to kill me. I killed her." He reiterated that he did not stab Erlinda first. He stated that he realized how many times he had been stabbed when he woke up in the hospital.
After Adviento's testimony, the defense rested.
The jury exited the courtroom for a short recess prior to the State's rebuttal. The court informed the jurors before they left that "[t]here may be one more witness" after the recess.
The court then addressed the parties regarding the EMED defense, stating that it would instruct the jury on the EMED defense if requested. The court then asked Adviento whether he was giving up his right to assert the EMED defense:
THE COURT: Earlier in this trial, [defense counsel] told me that you were not going to assert the defense of extreme mental or emotional disturbance. Do you remember that?
THE DEFENDANT: Yes, sir.
THE COURT: Have you discussed the defense of extreme mental or emotional disturbance ...