CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000643; CR. NO. 13-1-0236(3))
Matthew S. Kohm for petitioner
H. Higa (Renee I. Delizo with him on the briefs) for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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 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.
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.
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 be made by the trier of fact. Accordingly, we vacate the
convictions in this case and remand for further proceedings
consistent with this opinion.
BACKGROUND AND CIRCUIT COURT PROCEEDINGS
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.
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; carrying or use of a firearm in the
commission of a separate felony in violation of HRS §
134-21(a); ownership or possession prohibited of any
firearm in violation of HRS § 134-7(b); and place to keep
loaded firearms other than pistols and revolvers in violation
of HRS § 134-23 (a) . An amended complaint was subsequently
filed in the Circuit Court of the Second Circuit (circuit
Motion to Determine Fitness to Proceed and Penal
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
15, 2015, a hearing was held on motions in 1imine, 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.
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 into the room by pushing the
door open while one of her friends was still holding on to
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.
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 you anymore."
Lavoie told Det. Mahoney that this made him "freak
out" and "[he] just snapped."
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
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
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
Haliniak's house to kill her, but "[d]arkness took
over [him]" and he "just lost [his]
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
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?
Q. And she stayed away for like maybe a week and a half, two
weeks with your friend [Jamie Maikui]?
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
Q. Okay. But [Kahalewai] wanted to stay out that night
because you guys had planned to do a girls night on the 20th.
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?
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 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.
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.
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 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.
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."
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 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.
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.
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 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.
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.
State also called as a witness Victoria Toledo.Toledo
testified that, on the day of the shooting, Lavoie came 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
Kohn, a neurologist, psychiatrist, and psychotherapist was
called to testify by the defense. 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 was unmanageable for him, he could not think
clearly." 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. 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
Dr. Kohn opined that Lavoie was under the influence of an
extreme mental or emotional disturbance (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.
defense then called Dr. Marvin Acklin, who was qualified as
an expert in forensic psychology. 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 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.
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
Acklin also concluded that at the time of the shooting,
Lavoie was under the influence of EMED as he was in a 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.
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." Dr. Acklin stated that the threat did
not influence his ultimate opinion in the case.
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." 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.
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] 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.
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.
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 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.
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.
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.
was no testimony that Kahalewai had separated from Lavoie
after any of the incidents about which Haliniak or Maikui
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. 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
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 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