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State v. Lavoie

Supreme Court of Hawaii

November 22, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
MARLIN L. LAVOIE, Petitioner/Defendant-Appellant.


          Matthew S. Kohm for petitioner

          Emlyn H. Higa (Renee I. Delizo with him on the briefs) for respondent



          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 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 be made by the trier of fact. Accordingly, we vacate the convictions in this case and remand for further proceedings consistent with this opinion.


         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 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]

         On May 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.

         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 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 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 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?
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?
A. Yes.
Q. And you knew that for at least the last two days prior to the shooting, [Lavoie] had been looking around for [Kahalewai]. Right?
A. Yes.
Q. Okay. But [Kahalewai] wanted to stay out that night because you guys had planned to do a girls night on the 20th. Right?
A. Yeah.
Q. Okay. And there was a bachelorette party--your bachelorette party, right, that she had been attending over those four days?
A. Yeah.
Q. And you knew that [Lavoie] was upset that [Kahalewai] had been away for those four days. Right?
A. Yeah.

         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 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 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 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 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 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 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 (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 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 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.

         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] 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 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.

         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 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 ...

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