453 P.3d 229 (Hawai‘i 2019), SCWC-15-0000643, State v. Lavoie

• Docket Nº: SCWC-15-0000643
• Citation: 453 P.3d 229, 145 Hawai‘i 409
• Opinion Judge: POLLACK, J.
• Party Name: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Marlin L. LAVOIE, Petitioner/Defendant-Appellant.
• Attorney: Matthew S. Kohm, Wailuku, for petitioner Emlyn H. Higa (Renee I. Delizo with him on the briefs) for respondent
• Judge Panel: RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
• Case Date: November 22, 2019
• Court: Supreme Court of Hawai'i

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453 P.3d 229 (Hawai‘i 2019)

145 Hawai‘i 409

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.

Marlin L. LAVOIE, Petitioner/Defendant-Appellant.

No. SCWC-15-0000643

Supreme Court of Hawai‘i

November 22, 2019

AS CORRECTED DECEMBER 2, 2019

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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000643; CR. NO. 13-1-0236(3))

Matthew S. Kohm, Wailuku, for petitioner

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

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

OPINION

POLLACK, J.

[145 Hawai‘i 412] 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 disturbance. 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 disturbance. 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.

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

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[145 Hawai‘i 413] 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 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 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

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[145 Hawai‘i 414] "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?

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[145 Hawai‘i 415] A. Yeah.

Q. Okay. And there was a bachelorette party--your...