*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***




                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         22-APR-2020
                                                         10:39 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                           ---oOo---
________________________________________________________________

        STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                 vs.

         KEAKA MARTIN, Petitioner/Defendant-Appellant.
________________________________________________________________

                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-XX-XXXXXXX; 3PC131000062)

                           APRIL 22, 2020

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

               OPINION OF THE COURT BY McKENNA, J.

                         I.    Introduction

    This appeal arises out of the shooting of two Hawaiʻi Police

Department (“HPD”) officers on the evening of January 2, 2013.

Keaka Martin (“Martin”) was convicted after a jury trial in the

Circuit Court of the Third Circuit (“circuit court”) of various

counts, including attempted murder of one of the officers.        On
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


August 5, 2014, the circuit court1 entered its judgment of

conviction and sentence, sentencing Martin to life imprisonment

without the possibility of parole plus ten years.

        Martin appealed the judgment of conviction and sentence to

the Intermediate Court of Appeals (“ICA”).             The ICA affirmed.

Martin’s application for writ of certiorari to this court

(“Application”) raises five questions:

              1.   Did the ICA commit grave errors of law and fact when
                   it held that the trial court did not engage in a
                   deficient Tachibana colloquy?

              2.   Did the ICA commit grave errors of law and fact when
                   it held that the trial court properly admitted
                   evidence of defendant’s suicide attempt?

              3.   Did the ICA commit grave errors of law and fact when
                   it held that the trial court properly admitted
                   evidence of defendant’s statement that he shot
                   himself?

              4.   Did the ICA commit grave errors of law and fact by
                   holding that the trial court did not err in admitting
                   prior bad acts of defendant?

              5.   Did the ICA commit grave errors of law and fact by
                   holding that defendant’s convictions for attempted
                   murder and assault in the first degree should [not]
                   be vacated because the trial court failed to properly
                   instruct the jury on lesser-included offenses?

        For the reasons explained below, the issues Martin raises

on certiorari lack merit.         We do, however, address Martin’s

second question on certiorari regarding his suicide attempt the

day after the shooting.        The circuit court properly ruled the

evidence admissible as probative of Martin’s identity as the

person who had committed the offenses.             The circuit court,


1       The Honorable Greg K. Nakamura presided.

                                        2
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


however, also sua sponte applied the majority rule across the

country to rule that the evidence of Martin’s suicide attempt

was also admissible as relevant to his “consciousness of guilt.”

        We hold that evidence of a suicide or attempted suicide is

not automatically admissible as relevant to a defendant’s

consciousness of guilt.       As recognized by the Vermont Supreme

Court, “[t]he underlying reasons motivating an attempt to take

one’s life can be both numerous and highly complex . . . .”

State v. Onorato, 762 A.2d 858, 859-60 (Vt. 2000).            The New

Jersey Supreme Court has also appropriately noted that, aside

from guilt, other factors such as “a defendant’s psychological,

social or financial situation may underlie a suicide attempt.”

State v. Mann, 625 A.2d 1102, 1108 (N.J. 1993).           Pursuant to HRS

§ 602-4 (2016),2 we therefore provide guidance to the trial

courts for any future cases in which evidence of a suicide or

suicide attempt is proffered as evidence of consciousness of

guilt.      But because the circuit court correctly ruled the

evidence admissible as probative of Martin’s identity as the

person who had committed the offenses charged, there was no

error in the circuit court’s admission into evidence of the

suicide attempt.



2     HRS § 602-4 provides, “The supreme court shall have the general
superintendence of all courts of inferior jurisdiction to prevent and correct
errors and abuses therein where no other remedy is expressly provided by
law.”

                                      3
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


        Although the issues raised by Martin on certiorari lack

merit, we notice plain error affecting Martin’s substantial

rights with respect to the lack of a merger instruction on

Martin’s firearms convictions on Counts 7, 8, and 9.            We

therefore vacate the ICA’s July 9, 2019 judgment on appeal

affirming the circuit court’s August 5, 2014 judgment of

conviction and sentence as to Counts 7, 8, and 9, and remand

these counts to the circuit court for further proceedings

consistent with this opinion.3        We otherwise affirm the ICA’s

July 9, 2019 judgment on appeal affirming the circuit court’s

August 5, 2014 judgment of conviction and sentence.

                              II.   Background

A. Factual summary

        On January 2, 2013 at around 8:00 p.m., HPD officers Joshua

Gouveia (“Officer Gouveia”) and Garrett Hatada (“Officer

Hatada”) were assigned to a report of multiple gunshots fired in

the Wailoa State Park area.         During their investigation, the

officers received information about a man hiding beneath a

vehicle at Pono Place.       Officers Gouveia and Hatada arrived at

Pono Place and shined their flashlights under the vehicles in



3     As discussed in note 36, infra, because the circuit court sentenced
Martin to five years on Count 7, ten years on Count 8, and ten years on Count
9, with the sentences for Counts 7, 8, and 9 to be served concurrently, the
lack of a merger instruction does not affect the maximum sentence for
Martin’s convictions on these three charges.


                                      4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


the parking lot.   Officer Gouveia saw a man lying on his back

beneath a black truck.   After calling for backup, Officer

Gouveia approached the truck from the passenger’s side while

Officer Hatada approached from the driver’s side.      When Officer

Gouveia crouched down, he saw the man under the truck reach into

his waistband and remove a black and silver gun.      Officers

Gouveia and Hatada were both then shot in their legs.

    That night, after the shooting, Kawika Paulino (“Paulino”)

gave a statement to the police regarding an encounter with

Martin at the Pono Place parking lot earlier that evening.

Paulino told the police that Martin had shown him a gun, had

said he had been firing the gun “in the middle of Wailoa,” and

had also said that he would not go to jail without a fight.

Darrel Constantino (“Constantino”) also told the police that

Martin had had a weapon with him at Pono Place.

    The next day, an HPD special response team was assigned to

make contact with Martin at an East Palai Street residence.

After arriving at the residence and announcing themselves as

police, a single shot was heard from inside the house.      The

response team deployed a remote control surveillance robot

equipped with a live feed video camera into the house.      Through

the live feed, the team observed a man lying on his back with a

pistol on the ground near his hand.



                                  5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


       Officers entered the house and ordered the man not to move

and to show his hands.       The man was bleeding from the abdominal

area.    The man raised his hands slightly and said, “I shot

myself.”    Officers told the man to turn over and put his hands

behind his back, and the man again said, “I shot myself.”       The

man was later identified as Martin.      The gun found near Martin

matched bullet casings recovered from the Pono Place parking

lot.

B. Circuit court proceedings
       1. Pretrial motions

       On February 28, 2013, Martin was charged via an indictment

with attempted murder in the first degree as to Officer Hatada

in violation of HRS §§ 705-500(1)(b) (1985) and 707-701 (Supp.

2011) (Count 1), assault in the first degree as to Officer

Hatada in violation of HRS § 707-710 (Supp. 1986) (Count 2),

carrying or use of a firearm in the commission of a separate

felony in violation of HRS § 134-21(a) (Supp. 2006) (Count 3),

attempted murder in the first degree as to Officer Gouveia in

violation of HRS § 705-500(1)(b) and HRS § 707-710 (Count 4),

assault in the first degree as to Officer Gouveia in violation

of HRS § 707-710 (Count 5), carrying or use of a firearm in the

commission of a separate felony in violation of HRS § 134-21(a)

(Count 6), ownership or possession prohibited of any firearm or

ammunition by a person charged with or convicted of certain

                                    6
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


crimes in violation of HRS § 134-7(b) and (h) (Supp. 2006)

(Count 7), carrying or possessing a loaded firearm on a public

highway in violation of HRS § 134-26(a) (Supp. 2006) (Count 8),

place to keep pistol or revolver in violation of HRS § 134-25(a)

(Supp. 2006) (Count 9), alteration of identification marks

prohibited in violation of HRS §§ 134-10 (Supp. 1988) and 134-17

(Supp. 1994) (Count 10), and reckless endangering in the second

degree in violation of HRS § 707-714(a) (Supp. 2006) (Count 11).

        On December 27, 2013, seeking to introduce into evidence

Martin’s “I shot myself” statements to the police, the State

filed a motion for a determination that these statements had

been voluntarily made.4        The State asserted that it did not have

the burden of establishing that Miranda warnings were given

unless the totality of the circumstances reflected that the

statement was a result of custodial interrogation.              The State

also contended that these unsolicited, spontaneous statements

made by a defendant before any police questioning and in the

absence of any coercion were admissible, citing State v. Amorin,

61 Haw. 356, 360, 604 P.2d 45, 48 (1979).            At the voluntariness

hearing, Martin testified that he did not recall making any



4       HRS § 621-26 (1993) provides:

              No confession shall be received in evidence unless it is
              first made to appear to the judge before whom the case is
              being tried that the confession was in fact voluntarily
              made.

                                        7
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


statements after he shot himself, that any statement he made was

the product of a custodial interrogation, and that his physical

condition impaired his ability to make a voluntary statement.

The circuit court granted the State’s motion.

        Also on December 27, 2013, Martin filed his motion in

limine #2 to preclude evidence of his self-inflicted gunshot

wound.      Martin argued that the evidence of his self-inflicted

gunshot wound was a specific instance of conduct inadmissible

under Hawaiʻi Rules of Evidence (“HRE”) Rule 404(b) (1994) and

that the evidence would result in excessive prejudice against

him.     In its memorandum in opposition, the State argued that

evidence of Martin’s self-inflicted gunshot wound was admissible

under HRE Rule 404(b) as relevant and probative of identity,

opportunity, intent, knowledge, and absence of mistake or

accident.

        At the hearing on the motion in limine #2, the circuit

court sua sponte proposed that the evidence of Martin’s suicide

attempt was relevant to Martin’s consciousness of guilt, citing

an American Law Reports (“ALR”) annotation.5          In its written

order denying Martin’s motion, the circuit court concluded that

evidence of Martin’s suicide attempt was relevant and probative




5     Dale Joseph Gilsinger, Annotation, Admissibility of Evidence Relating
to Accused’s Attempt to Commit Suicide, 73 A.L.R. 5th 615 (1999).


                                      8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


of Martin’s consciousness of guilt, and that Martin’s self-

inflicted gunshot wound was also relevant to identity.

    Martin’s jury trial commenced on February 27, 2014.

    2.    Witness Testimony
          a.   HPD Officer Joshua Gouveia

    State witness HPD Officer Gouveia testified as follows.

    On January 2, 2013, at about 7:50 or 8:00 p.m., Officer

Gouveia was assigned to multiple calls of possible gunshots

fired in the Wailoa State Park area.     Officer Gouveia, Officer

Keith Nacis (“Officer Nacis”), Officer Hatada, and other

officers checked the Wailoa State Park area, Pono Place, and

Maile Apartments.   During their searches, Officers Gouveia and

Hatada received information about a man under a vehicle at Pono

Place.   Officer Gouveia arrived at the Pono Place parking lot at

approximately 8:30 p.m., and Officer Hatada arrived separately.

There was little to no lighting in the parking lot.      A blue SUV,

a black pickup truck, and a white vehicle were parked next to

each other.

    Officer Gouveia walked to the front of the blue SUV, shined

his flashlight under the vehicles, and saw a man lying on his

back beneath the black pickup truck.     He discussed the situation

with Officer Hatada and called for an additional unit.      Officer

Nacis arrived within a minute or two.     Officer Gouveia

approached the black pickup truck along the passenger’s side,

                                  9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


Officer Nacis approached from the back, and Officer Hatada

approached the driver’s side.

    When Officer Gouveia reached the front passenger door, he

announced himself as a police officer and instructed the man to

come out from under the truck.     Receiving no response, he

repeated his instruction, crouched, and shined his flashlight

under the vehicle.     Officer Gouveia saw the man reach into his

waistband and remove a black and silver handgun.      Upon seeing

the gun, Officer Gouveia said, loudly enough for everyone in the

area to hear, “Let me see your hands.     Let me see your hands.

Don’t do it.   Gun.”

    The man pointed the pistol toward Officer Gouveia from

approximately one foot away.     Officer Gouveia saw a bright flash

and felt a “hard pressure” in his left upper thigh area.

Realizing he had been shot, Officer Gouveia crawled away and

heard approximately two to three more shots.     Officer Gouveia

did not fire any shots.     He was later unable to identify a

suspect from a photographic lineup.

          b.   Kawika Paulino

    State witness Paulino testified as follows.       Paulino

arrived at Pono Place to fish on January 2, 2013 at around 3:30

p.m. with his wife Hotina Paulino, Maria Sabater-Hart, Darrel

Constantino, and his son.     Paulino parked his blue SUV next to a

black vehicle in the Pono Place parking lot.     That evening,

                                  10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


Paulino called 911 to report hearing over twenty gunshots from

the Wailoa area.   The police arrived, and Paulino told them he

had heard gunshots.    After the police left, Martin and David

Carroll (“Carroll”) approached Paulino at his car.      Paulino had

known Martin for about three years, but he had only met Carroll

a few times.    Martin had a fanny pack that contained bullets and

a silver and black gun, and Martin took out the gun and tried to

hand it to Paulino.   Martin told Paulino that “they were in the

middle of Wailoa shooting the gun.”      Martin told Paulino that he

had an outstanding warrant, was facing some jail time, and that

he would not go to jail without a fight.      After Martin told

Paulino about the warrant, the “police approached a second time

and [Martin] just ran.”   When the officers returned, they

approached the black truck.    Paulino was sitting in the driver’s

seat of his car when he heard multiple gunshots that he believed

came from below the black truck.      Paulino saw two officers “go

down.”   The passenger door to his car had been left open, and

Martin jumped into the back of his car and told Paulino to

drive.   Paulino drove to Hilo Lagoon, where he stopped because

his wife was “freaking out” and because his son was in the back

of the car.    Paulino asked Martin to leave and “not do this to

me and my family,” after which Martin left.      Paulino then called

911 and met with an officer near the scene to tell him what

happened.

                                 11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


            c.    Doctor Dale Wren

    State’s witness Doctor Dale Wren (“Doctor Wren”) testified

as follows.      On January 2, 2013 at about 9:31 p.m., Doctor Wren

treated Officer Gouveia at the Hilo Medical Center.      Officer

Gouveia had suffered a gunshot wound to his left thigh hip area,

but Doctor Wren did not observe an exit wound.      Using an X-ray

scan taken of Officer Gouveia’s pelvis on January 2, 2013,

Doctor Wren identified the bullet fragments to the jury.         Doctor

Wren explained that, while it was possible to perform surgery to

remove the bullet fragments, such procedures frequently caused

more damage than just leaving the fragments in.

    On cross-examination, Doctor Wren testified that, to his

knowledge, Officer Gouveia did not require any surgeries at the

hospital.

            d.    Darrel Constantino

    Defense witness Constantino testified as follows.       On

January 2, 2013, Constatino was fishing with Paulino and his

family.     Constantino was interviewed by the police after the

Pono Place incident and was granted immunity in this case.

Before his police interview, Constatino, Paulino, Hotina

Paulino, and Maria Hart had discussed how they would present

their statements to the police because they were afraid the

police would think they were accomplices.



                                     12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


    Constantino had told the police he had spoken to Martin at

Pono Place and that Martin had a gun.     He had also told the

police that Martin told him that if the police came, he would

duck under one of the cars and shoot at their legs.      Constantino

could not, however, remember Martin’s or his own exact words.

Constantino did not know who Martin was when he spoke to Martin,

but Paulino had verbally identified Martin to Constantino after

their conversation.    After speaking with Martin, Constantino

heard gunfire at Pono Place while he was standing in front of

Paulino’s car, and he jumped onto the car and left with

Paulino’s family.     Constantino did not tell the police that a

man had jumped into Paulino’s car as they were leaving Pono

Place.

    On cross-examination, Constantino testified that Martin had

told him that if the police came, “he’d be, like, ‘fuck the

cops,’ and he’d disappear.”    When Paulino stopped the car,

Martin jumped out of the back passenger seat.

          e.   HPD Officer Garrett Hatada

    State witness HPD Officer Hatada testified as follows.        On

January 2, 2013 at around 7:44 p.m., Officer Hatada was assigned

to reports of gunshots fired in the Wailoa State Park area.

Officer Hatada and Officer Gouveia went to Pono Place, where

several people who were fishing told him they had heard gunshots

forty minutes earlier from the Maile Street area.      After

                                  13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


investigating Maile Street, Officer Hatada learned from dispatch

that someone had reported a man hiding under a vehicle at Pono

Place.   Officer Hatada and Officer Gouveia returned to Pono

Place, and Officer Gouveia indicated that he saw someone hiding

beneath one of the vehicles.    They called for an additional

unit, and Officer Nacis arrived.      Officer Hatada approached the

driver’s side of the dark-colored vehicle while Officer Gouveia

approached from the passenger’s side.      Officer Hatada knelt down

behind the vehicle’s front tire and shined his flashlight on the

person beneath the vehicle.    Officer Hatada saw that the person

had “short black hair” and tattoos on his arm.      Officer Hatada

then heard Officer Gouveia shout, “Don’t do it, don’t do it,” as

he saw the man fumbling with his waistband.      Officer Hatada then

stood up, drew his weapon, heard three gunshots, and felt pain

in his leg.    Officer Hatada fired two rounds toward the area he

had seen the shooter.    Officer Hatada then took cover under a

banyan tree.

          f.    Jair Trail

    State witness Jair Trail (“Trail”) testified as follows.

Trail was staying at his Aunt Maile Labrador’s house on Palai

Street between December 2012 and January 2013, and Martin,

Trail’s uncle, would sometimes come over.     On the night of

January 2, 2013, Labrador told Trail that Martin could not come

into the house.   Later that night, Martin knocked on the door,

                                 14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


but Trail did not let him in.     Trail awoke at around 4:00 a.m.

and heard Martin say, “But why?     It wasn’t me.    I didn’t do it.”

The next morning, Trail saw Martin sleeping on the couch.

Martin spent the day reading the Bible and said “some crazy

stuff” about living forever.    Martin also told Trail that he was

not going back to jail.    At some point, Martin crawled out of

his room and said that the police were there.       Trail saw S.W.A.T

trucks outside and heard the police identify themselves.       He

then saw Martin pull out a black and silver gun, put the gun

against his chest, and pull the trigger.       Trail then exited the

house and identified himself to the police.       On cross-

examination, Trail testified that he heard Martin say, “I would

rather die than go back to jail.”      Trail did not know if Martin

had any outstanding warrants or had actually served jail time

before.

          g.     HPD Sergeant Aaron Carvalho

    State witness Sergeant Aaron Carvalho (“Sergeant Carvalho”)

testified as follows.     On January 3, 2013, Sergeant Carvalho’s

special response team was assigned to make contact with a

suspect in an attempted murder investigation on East Palai

Street.   Sergeant Carvalho arrived at the residence in an

armored vehicle at approximately 3:17 p.m.       Sergeant Kahalewai

identified the group as police and gave verbal instructions over

the PA system.    They then received a radio transmission that a

                                  15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


single shot was heard from inside the house.      A man, who later

identified himself as Trail, came out of the house.      Trail told

Sergeant Carvalho that Martin was in the house and that he had

seen Martin shoot himself in the stomach.      Sergeant Carvalho

then deployed a remote control surveillance robot with a live

feed video camera into the house.      Through the live feed, he saw

a man lying on his back with a pistol on the ground next to his

left hand.     Sergeant Carvalho entered the house and saw the same

man and pistol that he had seen through the live feed.       Sergeant

Carvalho told the man not to move and to show his hands.       The

man raised his hands slightly and said, “I shot myself.”

Sergeant Carvalho told the man to turn over and put his hands

behind his back, and the man again said, “I shot myself.”       The

man appeared to be bleeding from the abdomen area, but he seemed

to understand Sergeant Carvalho’s commands.      In the courtroom,

Sergeant Carvalho identified Martin as the man he had seen on

the floor.

          h.     HPD Detective Grant Todd

    State witness HPD Detective Grant Todd (“Detective Todd”)

testified as follows.     At 8:55 p.m. on January 2, 2013,

Detective Todd learned that two officers had been shot at Pono

Place.   Detective Todd arrived at Pono Place at around 9:00 p.m.

Detective Todd saw two ambulances taking Officers Gouveia and

Hatada away.    After learning what had happened from another

                                  16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


officer at the scene, Detective Todd began to secure the scene

to preserve evidence.     Detective Todd observed three bullet

casings underneath a black van and two casings at the front of

the van.   Detective Todd noticed a hole in the door of the white

truck consistent with “a projectile from a gun.”      Detective Todd

later received information that Martin was at a residence on

East Palai Street on January 3, 2013.     As part of the

investigation, Detective Todd sent to the HPD crime lab Officer

Hatada’s firearm, the firearm recovered from the East Palai

Street house, the projectile located in the white truck, eight

bullet casings recovered from a field at the end of Maile

Street, the projectile found at the East Palai Street residence,

the three casings located underneath the black van, and the two

casings located at the front of the black van.

           i.   Cindee Lorenzo

    State witness Cindee Lorenzo (“Lorenzo”) testified as

follows.   Lorenzo was a criminalist at the Honolulu Police

Department Scientific Investigation Section (“SIS”) assigned to

the Firearm and Tool Mark Unit.     The State and defense

stipulated to the chain of custody of items sent to SIS by

Detective Todd.   Lorenzo determined that the eight casings

recovered from Maile Street and the three casings found beneath

the black vehicle matched the firearm recovered from the East

Palai Street house.     Lorenzo also determined that the casing

                                  17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


recovered from the East Palai Street residence matched the

firearm from the East Palai Street house.

           j.   Sonya Chong

    State witness Sonya Chong (“Chong”) testified as follows.

Chong had been Martin’s girlfriend from December 2011 to June

2012 and she and Martin had lived together at the beginning of

2012.   Chong had seen Martin with a silver and gray hand-held

firearm toward the end of their relationship.     Martin would

practice aiming the firearm and say, “[F]uck the cops.”      On

cross-examination, Chong testified that Martin did not indicate

to her that he was fearful of others, but that Martin slept with

his gun under his pillow.     Chong also acknowledged that

testifying against Martin was “an opportunity for [her] to get

back at [him].”

           k.   David Carroll

    Defense witness David Carroll (“Carroll”) testified as

follows.   On January 2, 2013, Carroll was beaten and arrested by

police for disorderly conduct.    On that day, the police told

Carroll they were “looking for a murderer,” and identified

Martin by name.   Carroll spent three days in jail and the police

tried “to get [him] to state that [he had] personally seen

[Martin] shoot the officers.”     Carroll had not, however, seen

Martin shoot officers.   On cross-examination, Carroll testified

that Martin was “like a brother” to him, and that on January 2,

                                  18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


2013, he had been distraught because he thought the police had

shot Martin.    He had left Martin at Pono Place on January 2,

2013, and he knew Martin had a gun.     Carroll also later

testified as a witness called by the State as follows.

    On January 2, 2013, Carroll had been living at the Maile

Apartments.    At around 7:00 p.m. on that day, Carroll had left

home with Martin to buy milk for Carroll’s son.      Carroll and

Martin stopped in front of the apartments and Martin asked

Carroll if it was “okay to pop off some rounds.”      Martin showed

Carroll a black gun, said “Fuck the police,” and raised his gun

and started shooting it into the air.     After Martin fired the

gun, Carroll saw police lights, and he and Martin “started

crawling like military soldiers” to avoid being seen for

approximately half an hour.    Carroll and Martin then went to

Pono Place, where Martin started a conversation with people

fishing.   Carroll left Martin at Pono Place and bought milk at a

gas station.    Carroll then returned to the Maile Apartments.     At

the Maile Apartments, Carroll ran into Misty Quiocho

(“Quiocho”), who asked him where Martin was.     Carroll told

Quiocho that he was going to check on Martin at Pono Place.

Carroll then heard a series of gunshots that “weren’t all from

the same weapon,” and he “ran hysterically toward that

direction” thinking Martin had been shot.     While he was crossing

a bridge, a police officer approached him from Pono Place and

                                 19
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


yelled at him to “get back.”        Carroll walked back toward Maile

Street to talk with his neighbors, but was then “ordered to

approach the police officers,” who wanted to question him about

“why [he] came towards them in that way.”            Carroll testified the

police slammed him into the ground and beat him up.              He was then

taken to the police station, where he stayed for three days.

              l.   Misty Quiocho

        Defense witness Quiocho testified as follows.           Quiocho had

previously been convicted of crimes of dishonesty.6              Martin had

been Quiocho’s boyfriend off and on for four years.              During

Quiocho’s relationship with Martin, he had been afraid to sleep

and would barricade the door “so nobody could come in to hurt us

or him or his family.”       Quiocho had never seen Martin with a gun

and had not heard him make threats against the police.               Martin

was fearful of and tried to avoid the police.             Also, Martin had

attempted suicide eight months to a year before January 2013.

On cross-examination, Quiocho testified that she still loved

Martin and that Martin had been avoiding the police because the

police had a warrant for him.




6     Quiocho testified that she had been   convicted for forgery in the second
degree, theft in the second degree, theft   in the fourth degree, and
unauthorized entry into a motor vehicle.    The admission of Quiocho’s previous
convictions are not raised as an issue on   appeal.

                                     20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


    3.     Tachibana colloquy

    On April 14, 2014, prior to the close of Martin’s case, the

circuit court conducted a Tachibana colloquy, which is quoted in

Section IV.A below.

    4.     Martin’s closing argument

    In closing argument, Martin repeatedly argued identity as a

defense.     His arguments included assertions of reasonable doubt

as to whether he was the person hiding under the black vehicle

on January 2, 2013 who had shot the officers, that Officer

Hatada had identified the suspect as having a full-sleeved

tattoo, and that although he had a tattoo running down a portion

of his left arm, it was not a full-sleeved tattoo, that Officer

Gouveia had not been able to identify him as the suspect, and

that the witnesses that had identified him as the suspect had

credibility issues.

    5.     Verdict and sentencing

    On April 10, 2014, the court dismissed Counts 2 and 5 (the

lesser-included assault in the first degree charges) without

prejudice.     On April 24, 2014, the jury returned verdicts

finding Martin guilty of the included offense of assault in the

first degree against Officer Hatada (Count 1), two counts of use

of a firearm in the commission of a separate felony (Counts 3

and 6), attempted murder in the first degree as to Officer

Gouveia (Count 4), ownership or possession prohibited of any

                                  21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


firearm or ammunition by a person charged with or convicted of

certain crimes (Count 7), carrying or possessing a loaded

firearm on a public highway (Count 8), place to keep pistol or

revolver (Count 9), and reckless endangering in the second

degree (Count 11).     The jury found Martin not guilty of

alteration of identification marks prohibited (Count 10).

       The sentencing hearing occurred on July 25, 2014.     The

State argued that consecutive sentencing was appropriate under

the facts of the case.     The circuit court stated that “the

shooting of Officer Hatada involved serious criminal offenses

which deserve separate punishment and there is a need for [a

consecutive sentence] to . . . . stop[] others from committing

similar crimes.”     The circuit court therefore sentenced Martin

to ten years imprisonment on Count 1, twenty years on Count 3,

life imprisonment without the possibility of parole on Count 4,

twenty years on Count 6, five years on Count 7, ten years on

Count 8, ten years on Count 9, and one year on Count 11.        The

court ordered that the sentences for Counts 3, 4, 6, 7, 8, 9,

and 11 be served concurrently, but consecutively to the sentence

in Count 1.

       On August 5, 2014, the court entered its judgment of

conviction and sentence, which Martin timely appealed to the

ICA.



                                  22
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


C.      ICA proceedings

        On appeal, Martin raised the following points of error

relevant to the issues on certiorari:7

              1.    The trial court erred when it gave improper warnings
              in violation of State v. Tachibana, 79 Hawaiʻi 226, 900 P.2d
              1293 (1995).
              2.    The trial court erred by (i) admitting that Defendant
              attempted suicide on the date after the officers were shot,
              (ii) by determining the Defendant’s statement “I shot
              myself” was voluntary, and (iii) allowing the introduction
              of such evidence without a limiting instruction.
              3.    The trial court erred in allowing in evidence of
              other prior “bad acts” and in not providing a limiting
              instruction concerning these “bad acts.”
              4.    Defendant’s convictions for attempted murder and for
              assault in the first degree should be vacated because the
              trial court failed to properly instruct the jury on lesser-
              included offenses.

        The ICA rejected all of Martin’s points of error on appeal

in its March 29, 2019 summary disposition order.              State v.

Martin, No. CAAP-XX-XXXXXXX, at 1, 3 (App. Mar. 29, 2019) (SDO).

D.      Application for Writ of Certiorari

        Martin’s Application raises presents five questions:

                    1.    Did the ICA commit grave errors of law and fact
                    when it held that the trial court did not engage in a
                    deficient Tachibana colloquy?
                    2.    Did the ICA commit grave errors of law and fact
                    when it held that the trial court properly admitted
                    evidence of defendant’s suicide attempt?
                    3.    Did the ICA commit grave errors of law and fact
                    when it held that the trial court properly admitted

7     Martin also raised the following issues to the ICA, which he does not
raise on certiorari: (1) The circuit court judge erred by failing to
disqualify/recuse himself for donating money to the wife of one of the
victims in this case; (2) Because the jury rendered an impermissibly
inconsistent verdict when it found Martin guilty of assault in the first
degree for the shooting of one officer and attempted murder for the shooting
of the second officer, the circuit court wrongfully denied Martin’s motion
for new trial; (3) There was insufficient evidence to support the jury’s
conviction for attempted murder in Count 4; (4) The trial court erred in
imposing consecutive sentences; and (9) Ineffective assistance of counsel.
As there is no plain error in the ICA’s decisions on these points of error,
we do not further discuss any of these issues raised to the ICA.

                                       23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


                 evidence of defendant’s statement that he shot
                 himself?
                 4.    Did the ICA commit grave errors of law and fact
                 by holding that the trial court did not err in
                 admitting prior bad acts of defendant?
                 5.    Did the ICA commit grave errors of law and fact
                 by holding that defendant’s convictions for attempted
                 murder and assault in the first degree should [not]
                 be vacated because the trial court failed to properly
                 instruct the jury on lesser-included offenses?

                       III.    Standards of review

A.   Validity of waiver of the right to testify

     The validity of a defendant’s waiver of constitutional

rights in a criminal case is a question of law under the state

and federal constitutions, which we review under the right/wrong

standard.    State v. Torres, 144 Hawaiʻi 282, 288, 439 P.3d 234,

240 (2019) (citations omitted).

B.   Admissibility of evidence
            Different standards of review must be applied to trial
            court decisions regarding the admissibility of evidence,
            depending on the requirements of the particular rule of
            evidence at issue. When application of a particular
            evidentiary rule can yield only one correct result, the
            proper standard for appellate review is the right/wrong
            standard. However, the traditional abuse of discretion
            standard is applied in the case of those rules of evidence
            that require a “judgment call” on the part of the trial
            court.

State v. Williams, 146 Hawaiʻi 62, 72, 456 P.3d 135, 145 (2020)

(brackets and citations omitted).

C.   Jury instructions on lesser-included offenses

            When jury instructions or the omission thereof are at issue
            on appeal, the standard of review is whether, when read and
            considered as a whole, the instructions given are
            prejudicially insufficient, erroneous, inconsistent, or
            misleading. Erroneous instructions are presumptively
            harmful and are a ground for reversal unless it
            affirmatively appears from the record as a whole that the
            error was not prejudicial.

                                     24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***



State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)

(internal brackets and citations omitted).

D.   Plain error

     “We may recognize plain error when the error committed

affects substantial rights of the defendant.”     State v. Hauge,

103 Hawaiʻi 38, 48, 79 P.3d 131, 141 (2003) (internal citations

and quotation marks omitted); see also Hawaiʻi Rules of Penal

Procedure (HRPP) Rule 52(b) (1993) (“Plain error or defects

affecting substantial rights may be noticed although they were

not brought to the attention of the court.”).

                           IV.   Discussion

A.   Martin’s right to testify was not violated based on the
     Tachibana colloquy

     In his first issue on certiorari, Martin argues that the

circuit court’s colloquy regarding his waiver of his right to

testify was deficient as a matter of law.

     Our law protects both the right to testify and the right

not to testify.    State v. Celestine, 142 Hawaiʻi 165, 169, 415

P.3d 907, 911 (2018).    Tachibana v. State, 79 Hawaiʻi 226, 900

P.2d 1293 (1995), established the requirement that when a

defendant in a criminal case indicates an intention not to

testify, the trial court must advise the defendant of the right

to testify and must obtain an on-the-record waiver of the

right.   79 Hawaiʻi at 236, 900 P.2d at 1303.    We stated that this
                                  25
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


advisement should consist of informing the defendant (1) that

they8 have a right to testify, (2) that if they want to testify,

no one can prevent them from doing so, and (3) that if they

testify, the prosecution will be allowed to cross-examine them.

79 Hawaiʻi at 236 n.7, 900 P.2d at 1303 n.7.          We also stated that

in connection with the privilege against self-incrimination, the

defendant should also be advised (4) that they have a right not

to testify and (5) that if they do not testify, then the jury

can be instructed about that right.         Id. (citations omitted).

In a bench trial, defendants must be advised that if they

exercise their right not to testify, no inference of guilt may

be drawn for exercising this right, i.e., that a decision not to

testify cannot be used against a defendant by the judge in

deciding the case.       State v. Monteil, 134 Hawaiʻi 361, 371-72,

341 P.3d 567, 577-78 (2014).

        After Tachibana, we also held that a second component of

the Tachibana colloquy involves the court engaging in a true

“colloquy” with the defendant.        Celestine, 142 Hawaiʻi at 170,

415 P.3d at 912, citing State v. Han, 130 Hawaiʻi 83, 90-91, 306

P.3d 128, 135-36 (2013).       This requires “a verbal exchange

between the judge and the defendant ‘in which the judge



8     “They, them, and their” are used as singular pronouns when the gender
identity of the person referred to is unknown or immaterial.


                                     26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


ascertains the defendant’s understanding of the proceedings and

of the defendant’s rights.’”    Celestine, 142 Hawai‘i at 170, 415

P.3d at 912 (citing Han, 130 Hawaiʻi at 90, 306 P.3d at 135

(emphasis omitted)).

     To accomplish the purposes of a true colloquy, we suggested

that the trial court engage in a verbal exchange with the

defendant at least twice during the colloquy in order to

ascertain the defendant’s “understanding of significant

propositions in the advisement.”      Han, 130 Hawaiʻi at 90, 306

P.3d at 135.   We suggested the first verbal exchange occur after

the court informs the defendant of the right to testify and of

the right not to testify and the protections associated with

these rights, to obtain an affirmative or negative response as

to the defendant’s understanding of these principles.      130

Hawaiʻi at 90-91, 306 P.3d at 135-36.     We also suggested a second

verbal exchange after a defendant informs the court that the

defendant does not intend to testify.      130 Hawaiʻi at 91, 306

P.3d at 136.   We stated that as part of this inquiry, the trial

court should elicit responses as to whether the defendant

intends to not testify, whether anyone is forcing the defendant

not to testify, and whether the decision to not testify is the




                                 27
    *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


defendant’s.      Celestine, 142 Hawaiʻi at 170-71, 415 P.3d at 912-

13.9

        A defendant’s right to testify is violated when the

colloquy does not establish “an objective basis for finding that

[the defendant] knowingly, intelligently, and voluntarily gave

up” their right to testify.         Han, 130 Hawaiʻi at 91, 306 P.3d at

136.     Courts look to the totality of the facts and circumstances

to determine whether a waiver of the right to testify was

voluntarily and intelligently made.          130 Hawaiʻi at 89, 306 P.3d

at 134.

        Applying these principles to this case, prior to the close

of Martin’s case, the following colloquy took place:

              THE COURT: Okay. So you are Keaka Martin?
              THE DEFENDANT: Yes.
              THE COURT: Okay. Are you thinking clearly?
              THE DEFENDANT: Yes.
              THE COURT: Are you presently sick?
              THE DEFENDANT: No.
              THE COURT: Within the past 48 hours have you taken any
              pills, drugs, medication, or drank any alcohol?
              THE DEFENDANT: Um, ibuprofens.
              THE COURT: Okay. You’re suffering from pain?
              THE DEFENDANT: Yes.
              THE COURT: Okay. Despite your pain and the medication, are
              you able to think clearly now?
              THE DEFENDANT: Yes.
              THE COURT: Okay. As I discussed with you before the start
              of the trial, or at the start of the trial, you have the
              constitutional right to testify in your own defense.
              Although you should consult with your lawyer regarding the
              decision to testify, it is your decision and no one can
              prevent you from testifying should you choose to do so. If

9     In State v. Torres, 144 Hawaiʻi 282, 439 P.3d 234 (2019), decided after
the Tachibana colloquy at issue here, we further “h[e]ld that trial courts
are required to engage in an on-the-record colloquy with a defendant when the
defendant chooses to testify to ensure that a waiver of the right not to
testify is knowing, intelligent, and voluntary.” 144 Hawaiʻi at 294-95, 439
P.3d at 246-47.

                                       28
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


          you decide to testify, the prosecution will be allowed to
          cross-examine you. You also have a constitutional right
          not to testify and to remain silent. If you choose not to
          testify, the jury will be instructed that it cannot hold
          your silence against you in deciding your case. Did you
          understand what I had to say?
          THE DEFENDANT: Yes.
          THE COURT: I have been advised by your lawyer that you do
          not intend to testify in regard to this case; is this true?
          THE DEFENDANT: Yes.
          THE COURT: And is it your decision not to testify?
          THE DEFENDANT: Yes, it is.
          THE COURT: Mr. Strauss, you’re -- are you going to suggest
          any more questions of Keaka?
          MR. STRAUSS: No, Your Honor.
          THE COURT: In this area? No? Okay. How about the State?
          MS. NAGATA: No, Your Honor.

     Martin argues that this was not a “true colloquy” because

the court recited a “litany of rights” without obtaining a

response as to Martin’s understanding of the fundamental

principles pertaining to his rights, and because evidence of

Martin’s mental illness was a salient fact in this case.            Martin

compares the colloquy in his case to the colloquy we held

deficient in State v. Pomroy, 132 Hawaiʻi 85, 319 P.3d 1093

(2014).

     In Pomroy, we held that the trial court’s failure to engage

in a true colloquy to “ascertain the defendant’s understanding

of the individual rights comprising the Tachibana colloquy

results in the failure to ‘ensure that [the defendant]

understood his rights [and] amounts to a failure to obtain the

on-the-record waiver required by Tachibana.’”         Pomroy, 132

Hawaiʻi at 93, 319 P.3d at 1101 (quoting Han, 103 Hawaiʻi at 91,




                                   29
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


306 P.3d at 136).     In Pomroy, the court provided the following

Tachibana colloquy:

          THE COURT: Alright. Mr. Pomroy, before your attorney
          [rests the defense’s case], let me advise you. You have
          the right to testify on your own behalf. That decision is
          yours and yours alone. If you choose to testify you will
          be subject to cross-examination by the state. If you
          choose not to testify, I cannot hold that against you. But
          the only evidence I will have is what the State has
          presented, unless you have other witnesses; you understand
          that?
          THE DEFENDANT: Yes, ma’am.

132 Hawaiʻi at 92, 319 P.3d at 1100 (alterations in original).

     In Pomroy, we held that, in addition to failing to advise

the defendant that he had the right not to testify and that no

one could prevent him from testifying, the court did not engage

in a true colloquy, but recited a “litany of rights.”          Id.     We

noted that, after reciting this litany of rights, the court only

asked Pomroy if he “understood that,” and it was unclear which

right “that” referenced.    Id.

     As compared to Pomroy, in this case, the circuit court also

advised Martin that he had the right not to testify and that no

one could prevent him from testifying.       In addition, the circuit

court engaged in a verbal exchange with Martin at least twice

during the colloquy in order to ascertain his “understanding of

significant propositions in the advisement[,]” as suggested by

Han, 130 Hawaiʻi at 90, 306 P.3d at 135 (citation omitted).            The

circuit court engaged in a verbal exchange with Martin after

informing him of the right to testify and the right not to


                                   30
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


testify and of the protections associated with these

rights.     The circuit court also engaged in a second verbal

exchange after it indicated to Martin its understanding that he

did not intend to testify.       Although the circuit court did not

ask Martin whether anyone was forcing him not to testify, it

engaged in a third exchange with Martin, asking him if it was

his decision not to testify.       Thus, although the circuit court

did not the use precise terminology, “Is anyone forcing you not

to testify?” the circuit court’s questioning was tantamount to

eliciting that information.10

     We do express concern regarding part of the ICA’s analysis

of the adequacy of Martin’s Tachibana colloquy.           In Han, we held

that “‘[s]alient facts,’ such as mental illness or language

barriers, require that a court effectively engage the defendant

in a dialogue that will effectuate the rationale behind the

colloquy and the on-the-record waiver requirements as set forth

in Tachibana.”     130 Hawaiʻi at 92, 306 P.3d at 137 (citation

omitted).     The ICA determined that Martin’s “impaired mental

faculties” did not require the court to make “additional efforts

to ensure that [Martin] understood his Tachibana rights” in part

because Martin was deemed competent and fit to proceed to trial.

Martin, SDO at 12.



10    Trial judges should, however, include this specific question in their
colloquies.

                                     31
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


     Although the fact that a person is “competent and fit to

proceed” does not necessarily mean that the person’s waiver is

“voluntary and intelligent,” under the totality of circumstances

in this case, we hold the circuit court’s Tachibana colloquy

provides “an objective basis for finding that [Martin]

knowingly, intelligently, and voluntarily gave up” his right to

testify.   Han, 130 Hawaiʻi at 91, 306 P.3d at 136.    In addition

to following the requirements of Tachibana, Han, and Celestine,

the circuit court asked various questions with regard to the

clarity of Martin’s state of mind at the time of the colloquy.

Thus, under the totality of circumstances, the ICA did not err

in holding that the circuit court did not violate Martin’s

constitutional right to testify by failing to conduct a proper

Tachibana colloquy.

B.   Evidence of Martin’s suicide attempt was properly admitted
     as relevant to his identify as the perpetrator of the
     crimes charged

     1.    Background

     In his second question on certiorari, Martin contends the

ICA erred in holding that evidence of Martin’s suicide attempt

was admissible.   In his motion in limine #2 before the circuit

court, Martin argued that the evidence of his self-inflicted

gunshot wound was a specific instance of conduct inadmissible

under HRE Rule 404(b) and that the evidence would result in

excessive prejudice against him pursuant to HRE Rule 403 (1980).

                                 32
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


The State argued in opposition that evidence of Martin’s self-

inflicted gunshot wound was admissible under HRE Rule 404(b) as

relevant and probative of identity, opportunity, intent,

knowledge, and absence of mistake or accident.          On appeal, the

State also argued that the evidence that Martin shot himself was

necessary to “give context to the manner in which the gun was

recovered.”

     At the hearing on the motion in limine #2, the circuit

court sua sponte proposed that the evidence of Martin’s suicide

attempt was also relevant to Martin’s consciousness of guilt,

citing an ALR article.11     In its written order denying Martin’s

motion, the circuit court concluded that evidence of Martin’s

suicide attempt was relevant and probative of Martin’s

consciousness of guilt and also that Martin’s self-inflicted

gunshot wound was relevant as to identity.

     HRE Rule 404(b) provides:

           Evidence of other crimes, wrongs, or acts is not admissible
           to prove the character of a person in order to show action
           in conformity therewith. It may, however, be admissible
           where such evidence is probative of another fact that is of
           consequence to the determination of the action, such as
           proof of motive, opportunity, intent, preparation, plan,
           knowledge, identity, modus operandi, or absence of mistake
           or accident. In criminal cases, the proponent of evidence
           to be offered under this subsection shall provide
           reasonable notice in advance of trial, or during trial if
           the court excuses pretrial notice on good cause shown, of
           the date, location, and general nature of any such evidence
           it intends to introduce at trial.




11   See Gilsinger, supra note 5.


                                    33
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


According to the commentary for HRE Rule 404(b), “[w]hen offered

for the specified purposes other than mere character and

propensity . . . ‘other crimes, wrongs, or acts’ evidence may be

admissible provided the Rule 403 test is met.”      HRE Rule 404

cmt.

       2.   Relevance of suicides and attempted suicides as
            evidence of consciousness of guilt

       Although the State never argued on appeal that Martin’s

suicide attempt was relevant as consciousness of guilt,

expressing agreement with the circuit court, the ICA held that

the evidence of Martin’s suicide attempt was also relevant as

evidence of consciousness of guilt.    Martin, SDO at 9-10.     We

therefore preliminarily address the issue of whether evidence of

a suicide or a suicide attempt is relevant as evidence of

consciousness of guilt.

       A court’s determination that evidence is “relevant” within

the meaning of HRE Rule 401 is reviewed under the right/wrong

standard of review.    State v. Lavoie, 145 Hawaiʻi 409, 422, 453

P.3d 229, 242 (2019) (citation omitted).     In determining that

the evidence of Martin’s suicide attempt was relevant as

consciousness of guilt, the circuit court compared the probative

value of a suicide attempt to the probative value of evidence of




                                 34
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


flight.12    However, there are many reasons why someone might

attempt suicide.      Mental disorders, alcohol and other substance

use disorders, and previous suicide attempts are recognized risk

factors indicating that a person is more likely to attempt

suicide.13

     The history of suicide evidence as relevant of

consciousness of guilt in American law has actually been traced

to an argument made by Daniel Webster.          Arguing for the

prosecution in the trial of Commonwealth v. Knapp, 26 Mass. 496

(1830), Webster asserted that suicide was the equivalent of a

confession, stating:

             Meantime the guilty soul cannot keep its secret . . . . It
             betrays his discretion, it breaks down his courage, it
             conquers his prudence. When suspicions from without begin
             to embarrass him, and the net of circumstances to entangle
             him, the fatal secret struggles with still greater violence
             to burst forth. It must be confessed! It WILL be
             confessed! There is no refuge from confession, but
             suicide,—and suicide is confession.

Mann, 625 A.2d at 1107 (quoting Commonwealth v. Knapp, 7

American State Trials 395 (1830)) (ellipsis and emphasis in

original).     Apparently following Webster’s logic, a majority of

U.S. courts have since then held that evidence of suicide and



12    Although many years ago, this court suggested that flight evidence
could be an indicator of consciousness of guilt. See Territory v. Corum, 34
Haw. 167, 189 (Haw. Terr. 1937) (Peters, J., dissenting). More recently, we
have questioned the relevance of flight evidence as an indicator of guilt.
See State v. Heapy, 113 Hawaiʻi 283, 294, 151 P.3d 764, 775 (2007).

13    We Can All Prevent Suicide, Suicide Prevention Lifeline,
https://perma.cc/9QUE-6PB7.


                                      35
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


attempted suicide is admissible as relevant to a defendant’s

consciousness of guilt, often analogizing suicide evidence to

flight evidence.14     Scholarship from as early as the 1950s,

however, called into question the relevance of a suicide attempt

as consciousness of guilt.15        A 1964 Note observed that

“[p]sychologists rarely find that an attempted suicide was

motivated by a sense of conscious guilt in connection with a

crime,” and that studies had failed to find a connection between

an attempted suicide and a criminal act.16         In addition, more

recently, state courts of last resort have questioned the

probative value of suicide evidence as to consciousness of

guilt.   In State v. Mann, the New Jersey Supreme Court

recognized that, aside from guilt, other factors such as “a

defendant’s psychological, social or financial situation may

underlie a suicide attempt.”        625 A.2d at 1108.     The New Jersey

Supreme Court held that trial courts should hold hearings to

“determine whether evidence of a defendant’s suicide attempt is

sufficient to support a reasonable inference that the suicide




14   See Gilsinger, supra note 5.
15    See The Judicial Interpretation of Suicide, 105 U. PA. L. REV. 391
(1957); Note, Attempted Suicide as Evidence of Guilt in Criminal Cases: The
Legal and Psychological Views, 1964 WASH. U. L. Q. 2014.
16    Attempted Suicide as Evidence of Guilt in Criminal Cases, supra note
15, at 207.


                                      36
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


attempt was . . . evidence of consciousness of guilt.”             Id.17

Similarly, the Vermont Supreme Court has cautioned that “[t]he

underlying reasons motivating an attempt to take one’s life can

be both numerous and highly complex . . . .”           Onorato, 762 A.2d

at 859-60.

     We reject the majority rule that evidence of suicides and

attempted suicides are automatically admissible as relevant to a

defendant’s consciousness of guilt.         We agree with the Vermont

Supreme Court that “[t]he underlying reasons motivating an

attempt to take one’s life can be both numerous and highly

complex . . . .”     Onorato, 762 A.2d at 859-60.        We also agree

with the New Jersey Supreme Court that, aside from guilt, other

factors such as “a defendant’s psychological, social or

financial situation may underlie a suicide attempt.”            Mann, 625

A.2d at 1108.

     Therefore, we hold that when evidence of a suicide or

suicide attempt is proffered as evidence of consciousness of

guilt, the proponent must establish a foundation for the

evidence’s admission for this purpose pursuant to HRE Rule 104

(1984).18    In a criminal case, if such evidence is being offered

17    But see text accompanying note 19, infra. We require an evidentiary
foundation that a suicide or suicide attempt constitutes “consciousness of
guilt,” which requires that foundation be established by a “preponderance of
evidence,” not by a “reasonable inference.”
18   HRE Rule 104 reads in relevant part:

                                                             (continued. . .)

                                     37
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


against the defendant, “[t]he trial court also should ensure

that a defendant has been given adequate notice of the State’s

intention to offer proof of the attempted suicide.”          Mann, 625

A.2d at 1108.

     In addition, in determining whether a sufficient foundation

exists for admission of a suicide or suicide attempt as relevant

of consciousness of guilt, as explained in Addison M. Bowman,

Hawaii Rules of Evidence Manual 1-15 (2018-19 ed.) (“Bowman”),

in State v. McGriff, 76 Hawaiʻi 148, 871 P.2d 782 (1994), this

court “adopted the preponderance of the evidence standard for

foundation factfinding in [HRE R]ule 104(a) admissibility

hearings, citing Bourjaily v. United States, 483 U.S. 171, 175




          (a) Questions of admissibility generally. Preliminary
          questions concerning . . . the admissibility of evidence
          shall be determined by the court, subject to the provisions
          of subsection (b). In making its determination the court
          is not bound by the rules of evidence except those with
          respect to privileges.
          (b) Relevancy conditioned on fact. When the relevancy of
          evidence depends upon the fulfillment of a condition of
          fact, the court shall admit it upon, or subject to, the
          introduction of evidence sufficient to support a finding of
          the fulfillment of the condition.
          (c) Hearing of jury. Hearings on the admissibility of
          confessions shall in all cases be conducted out of the
          hearing of the jury. Hearings on other preliminary matters
          shall be so conducted when the interests of justice require
          or, when an accused is a witness, if the accused so
          requests.
          (d) Testimony by accused. The accused does not, by
          testifying upon a preliminary matter, subject oneself to
          cross-examination as to other issues in the case.
          (e) Weight and credibility. This rule does not limit the
          right of a party to introduce before the jury evidence
          relevant to weight or credibility.


                                   38
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


(1987).”19    Thus, to establish the requisite foundation for

relevance under HRE Rule 104(a), a trial court must determine

that, by a preponderance of the evidence, the suicide or suicide

attempt constitutes evidence of a consciousness of guilt, while

also “consider[ing any] alternative explanations of the suicide

attempt offered by a defendant.”           Mann, 625 A.2d at 1108.

Further, assuming relevance is found to exist under HRE Rule

104(a), but the relevance is conditioned upon the existence of

another fact, such as the existence of an alleged suicide note,

then HRE Rule 104(b) also applies.

     Even if the trial court determines that the requisite

foundation for admissibility exists, the trial court must still

conduct an HRE Rule 403 balancing analysis.           See Section IV.B.4,

infra; see also, Mann, 625 A.2d at 1108 (“The court should

consider . . . the possible prejudice to a defendant from the

introduction of the attempted suicide evidence or from a

defendant's effort to offer a different explanation of that

evidence.”).




19   As further stated by Professor Bowman:

             This standard of proof for evidence foundations applies in
             civil and criminal proceedings. The burden of proof of
             preliminary facts is placed on the proponent of the
             evidence except when privilege is the issue, in which event
             the party asserting the privilege bears the burden of proof
             of the privilege foundation.

Bowman, at 1-15.

                                      39
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


    3.    Martin’s suicide attempt was admissible as relevant to
          identity

    Although the circuit court and ICA erred in determining

that evidence of Martin’s self-inflicted gunshot wound was

admissible as showing his consciousness of guilt, the circuit

court also ruled that, as argued by the State, Martin’s self-

inflicted gunshot wound was relevant as to his identity as the

perpetrator of the offenses charged.       The State argued that the

evidence that Martin shot himself was necessary to “give context

to the manner in which the gun was recovered.”       On certiorari,

Martin argues that his history of mental illness, prior suicide

attempts, fear of the police, and abnormal paranoid behavior

renders the probative value of his suicide attempt to show

consciousness of guilt “minimal at best.”       Under the

circumstances of this case, however, we hold that, as

alternatively concluded by the circuit court, evidence of

Martin’s suicide attempt was relevant to his identity as the

possessor of the firearm that discharged the eight casings

recovered from Maile Street and the three casings found beneath

the black vehicle at Pono Place.       During closing argument,

Martin strongly contested that he was the person that had

committed the offenses charged.    Therefore, the evidence that

Martin shot himself with the firearm used in the offenses the

next day and that the police through remote control saw Martin


                                  40
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


lying on his back with the firearm next to him was relevant to

identifying Martin as the person who had possessed and

discharged the same firearm the day before.

     4.   HRE Rule 403 analysis

     Even if evidence of a suicide or attempted suicide is

determined to be relevant, a trial court must also engage in an

HRE Rule 403 balancing analysis.       Under Rule 403, relevant

evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”       The balance between the

evidence’s probative value and prejudicial effect is “predicated

upon an assessment of ‘the need for the evidence, the efficacy

of alternative proof, and the degree to which the evidence will

probably rouse the jury to overmastering hostility.’”      State v.

Uyesugi, 100 Hawaiʻi 442, 463, 60 P.3d 843, 864 (2002).

     Martin argues that the trial judge did not properly

consider the highly prejudicial nature of the attempted suicide

evidence, and that the evidence of the gun and casings found

near him could have been elicited without discussion of his

suicide attempt.   We agree that the evidence of Martin’s suicide

attempt was prejudicial; like the circuit court, it is possible



                                  41
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


that jurors may have assumed that the suicide evidence indicated

consciousness of guilt.20

     The record does not show that the court meaningfully

considered the prejudicial effect of Martin’s suicide attempt.

Although the circuit court did not appear to have conducted an

HRE Rule 403 analysis, under the circumstances, the probative

value of Martin’s suicide attempt as to his identity as the

perpetrator of the offenses was not substantially outweighed by

its prejudicial effect, especially because Martin strongly

argued mistaken identity.

     5.    Limiting instruction

     Martin alternatively argues that, if the evidence of his

suicide attempt was properly admitted, the circuit court should

have at least sua sponte provided the jury with a cautionary

instruction about the limited admissibility of Martin’s suicide

attempt.   Specifically, Martin argues that the circuit court




20    In addition, suicide was a felony at common law and was sometimes
considered “self-murder.” See Washington v. Glucksberg, 521 U.S. 702, 710-17
(1997) (summarizing the Anglo-American common law tradition of criminalizing
suicide). As an editorial published by the Centre for Suicide Prevention
points out, contemporary language used to discuss suicide still reflects
suicide’s historic criminality, as the phrase to “commit” suicide “equates
the act with homicide or fratricide, and suggests that it is akin to ‘self-
murder.’” Robert Olson, Suicide and Stigma, Centre for Suicide Prevention,
https://perma.cc/B4LZ-WZL3. Suicide has also been mistakenly associated with
cowardice. See Glucksberg, 521 U.S. at 712 (quoting Blackstone’s
Commentaries as referring to suicide as “the pretend heroism, but real
cowardice, of the Stoic philosophers, who destroyed themselves to avoid those
ills which they had not the fortitude to endure”).


                                     42
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


should have given Hawaiʻi Jury Instructions—Criminal (“HAWJIC”)

2.03 concerning “Other Crimes, Wrongs or Acts.”21

     Under HRE Rule 105 (1980), “[w]hen evidence which is

admissible as to one party or for one purpose but not admissible

as to another party or for another purpose is admitted, the

court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly.”         Martin did not

request a cautionary instruction at trial.         Under the

circumstances of this case, as the failure to give a cautionary

instruction did not amount to plain error affecting substantial

rights, there was no error based on the circuit court not sua




21   HAWJIC 2.03 reads:

           You [are about to hear] [have heard] evidence that the
           Defendant at another time, may have [engaged in]
           [committed] other [crimes] [wrongs] [acts]. This evidence,
           if believed by you, may be considered only on the issue of
           Defendant's [motive to commit the offense charged]
           [opportunity to commit the offense charged] [intent to
           commit the offense charged] [preparation to commit the
           offense charged] [plan to commit the offense charged]
           [knowledge (specify knowledge required to commit the
           offense charged] [identity as the person who committed the
           offense charged] [modus operandi] [alleged conduct having
           resulted from a mistake or accident]. Do not consider this
           evidence for any other purpose. You must not use this
           evidence to conclude that because the Defendant at another
           time may have [engaged in] [committed] other [crimes]
           [wrongs] [acts] that [they are] a person of bad character
           and therefore must have committed the offense[s] charged in
           this case.

           In considering the evidence for the limited purpose for
           which it has been received, you must weigh it in the same
           manner as you would all other evidence in this case, and
           consider it along with all other evidence in this case.


                                    43
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


sponte providing the jury with HAWJIC 2.03, “Other Crimes,

Wrongs or Acts.”

     Martin argues that we should adopt a rule similar to that

in Mann requiring courts to provide a cautionary instruction “in

all cases where evidence of [a] Defendant’s attempt at suicide

is elicited.”22    Given what appear to be common misconceptions

regarding suicide or attempted suicides as consciousness of

guilt and the potential prejudicial nature of suicide evidence,

trial courts should provide a limiting instruction as

appropriate under the facts of a case when evidence of an

attempted suicide is admitted.23       Again, under the circumstances

of this case, as the failure to give a cautionary instruction

did not amount to plain error affecting substantial rights,

there was no error requiring vacatur of Martin’s convictions.




22    In Mann, the New Jersey Supreme Court held that if evidence of a
defendant’s suicide attempt is admitted, the trial court should instruct the
jury that “it first must find that an actual suicide attempt had occurred.”
625 A.2d at 1108. Second, the jury “should then consider whether that
attempt was made to avoid the burdens of prosecution and punishment.” 625
A.2d at 1108-09. Third, the jury “should also determine whether [the]
defendant’s attempted suicide demonstrated consciousness of guilt. The trial
court should instruct the jury that if it credits any alternative explanation
offered by the defendant, it may not infer consciousness of guilt from the
evidence of a suicide attempt.” 625 A.2d at 1109.
23    We do not hold that all cases with suicide or attempted suicide
evidence require a limiting instruction if not requested, but we encourage
trial judges to exercise their discretion to fashion limiting instructions as
appropriate in the contexts of the cases in which suicide evidence might be
admitted. We also do not adopt the Mann standards for limiting instructions.

                                     44
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


C.   Martin’s statement that he shot himself was properly
     admitted as voluntarily made

     In his third question on certiorari, Martin argues that the

ICA gravely erred by not reversing the circuit court’s

determination that his “I shot myself” statement was made

voluntarily.   Specifically, Martin argues that his deteriorated

physical condition due to his gunshot wound rendered his

statement involuntary.

     “Under the fifth amendment to the United States

Constitution and article 1, section 10 of the Hawaii

Constitution, ‘[n]o person shall . . . be compelled in any

criminal case to be a witness against [themself].”      State v.

Kelekolio, 74 Haw. 479, 501, 849 P.2d 58, 69 (1993) (quoting

State v. Pauʻu, 72 Haw. 505, 509, 824 P.2d 833, 835 (1992)).

“Any waiver of one’s constitutional rights must be voluntarily

and intelligently undertaken[.]”      Pauʻu, 72 Haw. at 509, 824 P.2d

at 835.   HRS § 621-26 also provides that “[n]o confession shall

be received in evidence unless it is first made to appear to the

judge before whom the case is being tried that the confession

was in fact voluntarily made.”

     The voluntariness of a defendant’s statement is determined

by a totality of the circumstances.      Kelekolio, 74 Haw. at 502,

849 P.2d at 69.   “A defendant’s mental and physical condition

can be part of the ‘totality of circumstances’ relevant to the


                                 45
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


issue of the voluntariness of [their] custodial statements.”       74

Haw. at 503, 849 P.2d at 69.    A confession may be rendered

involuntary by “impermissible police conduct.”      74 Haw. at 503,

849 P.2d at 70.   The burden is on the prosecution to show that a

defendant’s statement was voluntarily made and not the product

of coercion.   74 Haw. at 502, 849 P.2d at 69.

    In this case, Martin said, “I shot myself” to the police

after suffering a self-inflicted gunshot wound to the abdomen.

Although Martin testified that he did not recall making the

statement, the hearing indicated the statement was spontaneous

and not a product of custodial interrogation or police coercion.

Although a defendant’s mental and physical condition can be part

of the “totality of circumstances” relevant to the issue of the

voluntariness of custodial statements, and Martin testified that

he did not recall making the statement after he shot himself,

under the circumstances of this case, the State met its burden

of establishing that Martin’s “I shot myself” statement was

voluntary under the totality of the circumstances.      In any

event, even if the statement was improperly admitted as an

involuntary statement, any error based on its admission would be

harmless beyond a reasonable doubt as there is no reasonable

possibility that admission of this statement contributed to

Martin’s convictions based on the overwhelming additional

evidence that Martin had in fact shot himself.

                                 46
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


D.   Evidence of Martin’s prior bad acts was properly admitted

     1.   Background

     In his fourth question on certiorari, Martin argues that

the ICA erred by holding the circuit court did not err by

admitting testimony of Martin’s prior bad acts.       Martin argues

that statements made by five witnesses—Sonya Chong, Kawika

Paulino, David Carroll, Misty Quiocho, and Darrel Constantino—

were improperly admitted under HRE Rule 404(b).

     As noted earlier, under HRE Rule 404(b), “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity

therewith.”    However, evidence may be admissible under HRE

Rule 404(b) if it is probative of “motive, opportunity, intent,

preparation, plan, knowledge, identity, modus operandi, or

absence of mistake or accident.”       If evidence of prior bad acts

is “offered for substantive reasons rather than propensity, a

trial court must additionally weigh the potential prejudicial

effects of the evidence against its probative value under HRE

Rule 403.”    State v. Behrendt, 124 Hawaiʻi 90, 103, 237 P.3d

1156, 1169 (2010).     A trial court’s balancing “of such evidence

under HRE Rule 403 . . . is reviewed for abuse of discretion.”

124 Hawaiʻi at 115, 237 P.3d at 1181 (quotations omitted).

     Although Martin objected to Paulino’s testimony as leading

and hearsay, to Quiocho’s testimony based on exceeding the scope

                                  47
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


of his direct examination, and to Constantino’s testimony on the

basis of improper refreshment, Martin did not object to the

challenged testimonies of these five witnesses based on HRE

Rule 404(b).   Martin also did not challenge any of the testimony

based on HRE Rule 403 grounds.    Therefore, as did the ICA, we

review the challenged testimonies of the five witnesses to

determine whether there was plain error affecting Martin’s

substantial rights.

    2.    Sonya Chong

    Martin challenges Chong’s testimony that, approximately six

months prior to the shooting, Martin possessed a silver and gray

hand-held firearm.    Chong testified that Martin would practice

aiming the firearm while saying “Fuck the cops” and he had said

that he would shoot cops with the firearm.     Chong’s testimony

was not offered for the purpose of showing that Martin acted in

conformity with his prior acts.    Chong’s testimony that Martin

practiced aiming the firearm while saying “Fuck the cops,” and

that Martin indicated that he would shoot cops with the firearm

was probative of his intent and absence of mistake or accident.

In addition, the probative value of Chong’s testimony outweighed

the danger of unfair prejudicial effect.

    Thus, the ICA did not err in concluding there was no plain

error affecting Martin’s substantial rights as to Chong’s

testimony.

                                  48
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


    3.    Kawika Paulino

    Martin challenges Paulino’s testimony that earlier in the

day on which the officers were shot, Martin told him that he had

outstanding warrants, was facing jail time, and would not go to

jail without a fight.     Paulino’s statements regarding Martin’s

awareness of his warrants and potential jail time were probative

of Martin’s motive, intent, and state of mind.      The probative

value of the evidence was not outweighed by its prejudicial

effect.   Thus, the ICA did not err in concluding there was no

plain error affecting Martin’s substantial rights as to

Paulino’s testimony.

    4.    David Carroll

    Martin challenges Carroll’s testimony that, after about

7:00 p.m. on January 2, 2013, about an hour before the officers

were shot, Martin asked him if he could “pop off some rounds,”

shot rounds into the air, and said, “Fuck the police.”      The

challenged evidence was probative of Martin’s state of mind and

also suggests that Martin did not shoot Officers Gouveia and

Hatada by mistake or accident.     The probative value of the

evidence was not outweighed by its prejudicial effect.      Thus,

the ICA did not err in concluding there was no plain error

affecting Martin’s substantial rights as to Paulino’s testimony.




                                  49
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


    5.    Misty Quiocho

    Martin challenges Quiocho’s cross-examination testimony

elicited by the State that Martin was avoiding the police

because he had a warrant.     Martin objected to this testimony on

the grounds that it exceeded the scope of direct examination,

but the State elicited this testimony in response to Quiocho’s

direct testimony that Martin was fearful of and tried to avoid

the police.   Quiocho was Martin’s girlfriend for several years

up to the date of the offenses, and her testimony about Martin

avoiding the police was probative of Martin’s state of mind.

Also, its probative value was not substantially outweighed by

its prejudicial effect.     Even if Martin had objected to this

testimony on HRE Rule 403 grounds based on it being cumulative,

which it may have been, reviewing the admission of this

testimony under the plain error standard, Martin’s substantial

rights were not violated.     Therefore, the ICA did not err in

concluding there was no plain error affecting Martin’s

substantial rights as to Quiocho’s testimony.

    6.    Darrel Constantino

    Martin challenges Constantino’s testimony that, on the

evening of January 2, 2013, prior to the shooting, Martin said,

“Fuck the cops.”   Constantino’s testimony was probative of

Martin’s intent and state of mind, and his testimony also

suggests that Martin did not shoot Officers Gouveia and Hatada

                                  50
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


by mistake or accident.     Its probative value was not

substantially outweighed by its prejudicial effect.          Martin

objected to this testimony on the basis of improper refreshment.

Even if Martin had objected on HRE Rule 403 grounds based on it

being cumulative of Carroll’s testimony, which it may have been,

reviewing the admission of this testimony under the plain error

standard, Martin’s substantial rights were not violated.

Therefore, the ICA did not err in concluding there was no plain

error affecting Martin’s substantial rights as to Constantino’s

testimony.

E.   The circuit court did not err with respect to lesser-
     included offense instructions

     1.   Background

     In his last question on certiorari, Martin argues that the

jury should have been instructed on various lesser-included

offenses for both Count 1 regarding Officer Hatada and Count 4

regarding Officer Gouveia.

     “[J]ury instructions on lesser-included offenses must be

given when there is a rational basis in the evidence for a

verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense.”          State v.

Flores, 131 Hawaiʻi 43, 51, 314 P.3d 120, 128 (2013).          An offense

is included when:

          (a) It is established by proof of the same or less than all
          the facts required to establish the commission of the
          offense charged;

                                   51
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


           (b) It consists of an attempt to commit the offense charged
           or to commit an offense otherwise included therein; or
           (c) It differs from the offense charged only in the respect
           that a less serious injury or risk of injury to the same
           person, property, or public interest or a different state
           of mind indicating lesser degree of culpability suffices to
           establish its commission.

HRS § 701-109 (Supp. 1984).

     In Count 1, Martin was charged with attempted murder in the

first degree of Officer Hatada.        The jury was instructed on the

lesser-included offenses of attempted murder in the second

degree, assault in the first degree, assault in the second

degree, assault against a law enforcement officer in the first

degree, assault against a law enforcement officer in the second

degree, and reckless endangering in the first degree.            Martin

was convicted in Count 1 of the lesser-included offense of

assault in the first degree.       Martin argues that the circuit

court should have also instructed the jury on attempted assault

in the first degree,24 attempted assault against a law

enforcement officer in the first degree,25 attempted assault in




24    A person commits assault in the first degree “if the person
intentionally or knowingly causes serious bodily injury to another person.”
HRS § 707-710 (Supp. 1986).
25    A person commits assault against a law enforcement officer in the first
degree if the person “[i]ntentionally or knowingly causes bodily injury to a
law enforcement officer who is engaged in the performance of duty; or . . .
[r]ecklessly or negligently causes, with a dangerous instrument, bodily
injury to a law enforcement officer who is engaged in the performance of
duty.” HRS § 707-712.5 (Supp. 2003).


                                     52
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


the second degree,26 assault in the third degree,27 and reckless

endangering in the second degree.28

     In Count 4, Martin was charged with and convicted of

attempted murder in the first degree as to Officer Gouveia.              The

jury was also instructed on attempted murder in the second

degree, assault in the first degree, attempted assault in the

first degree, assault in the second degree, assault against a




26    HRS § 707-711 (Supp. 2011), “Assault in the second degree,” provides in
relevant part,
            A person commits the offense of assault in the second
            degree if:
                  (a) The person intentionally or knowingly causes
                  substantial bodily injury to another; [or]
                  (b) The person recklessly causes serious or
                  substantial bodily injury to another.”
                  . . . .
27    HRS § 707-712 (Supp. 1984), “Assault in the third degree,” provides in
relevant part:

           (1) A person commits the offense of assault in the third
           degree if the person:
                 (a)   Intentionally, knowingly, or recklessly causes
                       bodily injury to another person; or
                 (b)   Negligently causes bodily injury to another
                       person with a dangerous instrument.
28    HRS § 707-714, “Reckless endangering in the second degree,” provides in
relevant part:

           (1) A person commits the offense of reckless endangering
           in the second degree if the person:
                 (a) Engages in conduct that recklessly places
                 another person in danger of death or serious bodily
                 injury; or
                 (b) Intentionally discharges a firearm in a
                 populated area, in a residential area, or within the
                 boundaries or in the direction of any road, street,
                 or highway; provided that the provisions of this
                 paragraph shall not apply to any person who
                 discharges a firearm upon a target range for the
                 purpose of the target shooting done in compliance
                 with all laws and regulations applicable thereto.


                                     53
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


law enforcement officer in the first degree, assault against a

law enforcement officer in the second degree, attempted assault

against a law enforcement officer in the first degree, and

reckless endangering in the first degree.     Martin argues,

however, that the court should have also instructed the jury on

attempted assault in the second degree, assault in the third

degree, and reckless endangering in the second degree.

     Martin’s assertions are without merit because there was no

rational basis in the evidence to acquit Martin of the charges

for which he was convicted in Counts 1 and 4 and to instead

convict him of these lesser-included offenses.      Also, with

respect to Count 1, the only evidence of shots fired in Officer

Hatada’s direction was the shot that struck Officer Hatada in

the leg.   In addition, there was no evidence to suggest that

both officers were not law enforcement officers engaged in the

performance of duty when they were shot.

     Therefore, the circuit court did not err in failing to give

required lesser-included instructions.

F.   The circuit court should have given a merger instruction

     Finally, although not raised as an issue on appeal, we note

that in addition to his convictions in Counts 3 (Officer Hatada)

and 6 (Officer Gouveia) for carrying or use of a firearm in the

commission of a separate felony in violation of HRS



                                 54
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


§ 134-21(a),29 Martin was also convicted of ownership or

possession prohibited of any firearm or ammunition by a person

charged with or convicted of certain crimes in violation of HRS

§ 134-7(b)30 in Count 7, carrying or possessing a loaded firearm

on a public highway in violation of HRS § 134-26(a)31 in Count 8,

and place to keep pistol or revolver in violation of HRS

§ 134-25(a)32 in Count 9.        Counts 7, 8, and 9 were all charged as

having occurred on January 2, 2013.        Plain error or defects


29   HRS § 134-21 provides in relevant part as follows:

           (a) It shall be unlawful for a person to knowingly carry
           on the person or have within the person’s immediate control
           or intentionally use or threaten to use a firearm while
           engaged in the commission of a separate felony, whether the
           firearm was loaded or not, and whether operable or not;
           . . . .
           (b) A conviction and sentence under this section shall be
           in addition to and not in lieu of any conviction and
           sentence for the separate felony; provided that the
           sentence imposed under this section may run concurrently or
           consecutively with the sentence for the separate felony.
30   HRS § 134-7(b) provides in relevant part:

           No person who is under indictment for, or has waived
           indictment for, or has been bound over to the circuit court
           for, or has been convicted in this State or elsewhere of
           having committed a felony, or any crime of violence, or an
           illegal sale of any drug shall own, possess, or control any
           firearm or ammunition therefor.
31   HRS § 134-26(a) provides in relevant part:

           It shall be unlawful for any person on any public highway
           to carry on the person, or to have in the person's
           possession, or to carry in a vehicle any firearm loaded
           with ammunition; . . . .
32   HRS § 134-25(a) provides:

           (a) Except as provided in sections 134-5 and 134-9, all
           firearms shall be confined to the possessor's place of
           business, residence, or sojourn; provided that it shall be
                                                             (continued. . .)

                                      55
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


affecting substantial rights may be noticed although they were

not brought to the attention of the court.

     In Lavoie, 145 Hawaiʻi 409, 453 P.3d 229, consistent with

our prior holding in State v. Matias, 102 Hawaiʻi 300, 75 P.3d

1191 (2003), we stated:

          Generally, when the same conduct of a defendant may
          establish an element of more than one offense, the
          defendant may be prosecuted for each offense of which such
          conduct is an element. HRS § 701-109(1) (1993). A
          defendant may not, however, be convicted of more than one
          offense if the offense is defined as a continuing course of
          conduct and the defendant’s course of conduct was
          uninterrupted, unless the law provides that specific
          periods of conduct constitute separate offenses. HRS
          § 701-109(1)(e). Thus, this court has concluded that only
          one crime is committed when (1) there is but one intention,
          one general impulse, and one plan, (2) the two offenses are
          part and parcel of a continuing and uninterrupted course of
          conduct, and (3) the law does not provide that specific
          periods of conduct constitute separate offenses.

          . . . .

          The test for whether a crime can be charged as a continuous
          offense is whether the statute precludes charging an
          offense as a continuous offense, and whether the element(s)
          of the offense may constitute a continuous, unlawful act or
          series of acts, however long a time the act or acts may
          occur.




          lawful to carry unloaded firearms in an enclosed container
          from the place of purchase to the purchaser’s place of
          business, residence, or sojourn, or between these places
          upon change of place of business, residence, or sojourn, or
          between these places and the following:
               (1) A place of repair;
               (2) A target range;
               (3) A licensed dealer's place of business;
               (4) An organized, scheduled firearms show or exhibit;
               (5) A place of formal hunter or firearm use training
          or instruction; or
               (6) A police station.
               “Enclosed container” means a rigidly constructed
          receptacle, or a commercially manufactured gun case, or the
          equivalent thereof that completely encloses the firearm.


                                   56
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


          If the statute provides that distinct acts constitute
          separate offenses, then conduct may not be charged as a
          continuous offense . . . .

          In State v. Matias, the defendant was convicted of felon in
          possession and place to keep. We vacated the defendant’s
          convictions because the circuit court failed to provide a
          merger instruction to the jury. As we would later explain,
          both offenses arose out of the same elemental conduct,
          i.e., what the defendant did with the object, namely,
          possessed it.

          Accordingly, in vacating the felon in possession and place
          to keep convictions and remanding for a new trial for
          failure to instruct the jury on merger, the Matias court
          concluded that these statutes did not preclude the charging
          of these offenses as continuous offenses. Implicit in the
          court’s holding was the conclusion that the statutes are
          comprised of elements--namely, the element of possession--
          that may extend beyond isolated moments.

          . . . .

          Here, Lavoie was also convicted for violating the felon in
          possession (HRS § 134-7(b)) and place to keep (HRS
          § 134-23(2)) statutes, neither of which excludes charging
          the offense as continuous . . . .

          Thus, the offenses of felon in possession and place to keep
          may be charged as continuous offenses, and the jury was
          required to determine whether there was one intention, one
          general impulse, and one plan, and whether the two offenses
          merged.

          . . . .

          Here, both the felon in possession and place to keep
          offenses were charged as having occurred on the same date,
          and the court’s instructions on the elements of these
          offenses specified that date. Whether Lavoie’s conduct
          constituted “separate and distinct culpable acts or an
          uninterrupted continuous course of conduct” was a question
          of fact that was required to be determined by the
          jury. And, the jury should also have been required to
          determine whether Lavoie had one intention, one general
          impulse, and one plan to commit both offenses. The circuit
          court’s failure to instruct the jury to make these
          determinations was prejudicial and plainly erroneous.

Lavoie, 145 Hawaiʻi at 251-53, 453 P.3d at 431-33 (citations,

parentheticals, brackets, quotation marks, emphases, and

footnotes omitted.).


                                   57
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


     Thus, consistent with Matias, Lavoie held that although a

defendant can be charged with both ownership or possession

prohibited of any firearm or ammunition by a person charged with

or convicted of certain crimes in violation of HRS § 134-7(b) as

well as place to keep pistol or revolver in violation of HRS

§ 134-25(a), as these offenses can be charged as continuous

offenses, a jury must determine whether “there was one

intention, one general impulse, and one plan, and whether the

two offenses merged[;]” if so, a defendant could only be

convicted of one of the two charged offenses pursuant to HRS

§ 701-109(1)(e) (Supp. 1984), which provides:

          (1) When the same conduct of a defendant may establish an
          element of more than one offense, the defendant may be
          prosecuted for each offense of which such conduct is an
          element. The defendant may not, however, be convicted of
          more than one offense if: . . .
          (e) The offense is defined as a continuing course of
          conduct and the defendant’s course of conduct was
          uninterrupted, unless the law provides that specific
          periods of conduct constitute separate offenses.

In other words, HRS § 701–109(1)(e) interposes a constraint on

multiple convictions arising from the same criminal conduct.

Matias, 102 Hawaiʻi at 305, 75 P.3d at 1196.        The statute

“reflects a policy to limit the possibility of multiple

convictions and extended sentences when the defendant has

basically engaged in only one course of criminal conduct

directed at one criminal goal[.]”       See HRS § 701–109 cmt.; State

v. Deguair, 139 Hawaiʻi 117, 128, 384 P.3d 893, 904 (2016).



                                   58
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


     In Martin’s case, the State argued slightly different time

periods of possession on January 2, 2013 for Counts 7 and 9.33

Based on Matias, however, which preceded Martin’s trial, as

Count 7, ownership or possession prohibited of any firearm or

ammunition by a person charged with or convicted of certain

crimes in violation of HRS § 134-7(b), and Count 9, place to

keep pistol or revolver in violation of HRS § 134-25(a), could

be charged as continuing offenses, and “both offenses arose out

of the same elemental conduct, i.e., what the defendant did with

the object, namely, possessed [the firearm,]”           Martin was

clearly entitled to a merger instruction.          Lavoie, 145 Hawaiʻi at

252, 453 P.3d at 432 (internal quotation marks omitted).

Pursuant to Matias, it was for the jury to determine whether

there was one intention, one general impulse, and one plan, and

whether the offenses merged.

     In addition, in this case, Martin was also charged and

convicted in Count 8 of carrying or possessing a loaded firearm

on a public highway in violation of HRS § 134-26(a).            Martin’s

conviction on this offense while also being convicted of Counts




33    In closing argument, the State argued that Count 7, ownership or
possession prohibited of any firearm or ammunition by a person charged or
convicted of certain crimes in violation of HRS § 134-7(b), was based on
Martin’s possession and shooting of the firearm on Maile Street. The State
argued that Count 9, place to keep pistol or revolver in violation of HRS
§ 134-25(a), was based on Martin carrying the firearm at Pono Place as well
as additional areas.


                                     59
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


7 and 9 also implicates HRS § 701-109(1)(e) because, likewise,

this “offense is defined as a continuing course of conduct” and

does not “provide[] that specific periods of conduct constitute

separate offenses.”34     Thus, in this case, for Counts 7, 8, and

9, Martin was entitled to a merger instruction, and it was for

the jury to determine whether there was one intention, one

general impulse, and one plan, and whether the offenses merged.35

     Although there was no merger instruction, a new trial on

Counts 7, 8, and 9 is not required.         Pursuant to State v.

Padilla, 114 Hawaiʻi 507, 164 P.3d 765 (App. 2007), the State has

the option of dismissing two of the three charges and

maintaining the judgment of conviction and sentence on one

charge.36   Padilla, 114 Hawaiʻi at 517, 164 P.3d at 775.

                             V.   Conclusion

     Based on the reasoning above, we vacate the ICA’s July 9,

2019 judgment on appeal affirming the circuit court’s August 5,

2014 judgment of conviction and sentence as to Counts 7, 8, and



34    With respect to Count 8, carrying or possessing a loaded firearm on a
public highway in violation of HRS § 134-26(a), the State argued that the
charge was based on Martin walking on Kilauea Avenue from the field to Pono
Place after shooting the firearm and reloading it with another magazine.
35    The record does not reflect a request for or discussion of a merger
instruction.

36    As noted earlier, the circuit court sentenced Martin to five years on
Count 7, ten years on Count 8, and ten years on Count 9, with the sentences
for Counts 7, 8, and 9 to be served concurrently. Thus, the lack of a merger
instruction does not affect the maximum sentence for Martin’s conviction on
these three charges.

                                     60
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***


9 only, and remand Counts 7, 8, and 9 to the circuit court for

further proceedings consistent with this opinion.       We otherwise

affirm the ICA’s July 9, 2019 judgment on appeal affirming the

circuit court’s August 5, 2014 judgment of conviction and

sentence.

Lars Robert Isaacson            /s/ Mark E. Recktenwald
for Petitioner
                                /s/ Paula A. Nakayama
Ricky R. Damerville
for Respondent                  /s/ Sabrina S. McKenna

                                /s/ Richard W. Pollack

                                /s/ Michael D. Wilson




                                 61
