State v. Adviento

• Decision Date: 10 February 2014
• Docket Number: No. SCWC–30171.,SCWC–30171.
• Citation: 132 Hawai'i 123,319 P.3d 1131
• Court: Hawaii Supreme Court
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Melchor B. ADVIENTO, Petitioner/Defendant–Appellant.

132 Hawai'i 123

319 P.3d 1131

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

v.Melchor B. ADVIENTO, Petitioner/Defendant–Appellant.

No. SCWC–30171.

Supreme Court of Hawai‘i.

Feb. 10, 2014.

Summer M.M. Kupau, for petitioner.

Donn Fudo, Honolulu, for respondent.

McKENNA, and POLLACK, JJ., with ACOBA, J., Concurring, with NAKAYAMA, J., Dissenting, with whom RECKTENWALD, C.J. Joins.

Opinion of the Court by POLLACK, 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),¹ 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)² 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.

I.

On November 6, 2007, Adviento was indicted upon a charge of murder in the second degree in violation of HRS §§ 707–701.5³ and 706–656.⁴ The State alleged that on or about October 28, 2007, Adviento intentionally or knowingly caused the death of his wife, Erlinda Adviento (Erlinda).

A.

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.

B.

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 Maelega and cases like Hiley (phonetic) say it comes in.

Right?

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.

(Emphases added).

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.

(Emphases added).

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.

(Emphases added).

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."

C.

The following facts are taken from the evidence adduced during the three days of testimony by the State and defense witnesses.

1.

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).⁵ 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...