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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-30171
                                                               10-FEB-2014
                                                               08:27 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


          STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                     vs.

       MELCHOR B. ADVIENTO, Petitioner/Defendant-Appellant.


                                 SCWC-30171

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (ICA NO. 30171; CR. NO. 07-1-2068)

                            February 10, 2014

     McKENNA, AND POLLACK, JJ., WITH ACOBA, J., CONCURRING,
WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J. JOINS

                  OPINION OF THE COURT BY POLLACK, J.

            Petitioner/Defendant-Appellant Melchor B. Adviento

(Adviento) seeks review of the August 16, 2012 Judgment on Appeal

of the Intermediate Court of Appeals (ICA),1 filed pursuant to

its July 10, 2012 Memorandum Opinion, affirming the Judgment of

      1
            The Honorable Craig H. Nakamura, Chief Judge, the Honorable
Katherine G. Leonard, and the Honorable Lisa M. Ginoza, presiding.
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Conviction and Sentence (Judgment) entered by the Circuit Court

of the First Circuit (circuit court)2 on October 21, 2009.

            This appeal requires us to consider a trial court’s

duty to instruct the jury on the affirmative, mitigating defense

of “extreme mental or emotional disturbance” (EMED) under Hawai#i

Revised Statutes (HRS) § 707-702(2), in situations where neither

party requests the instruction.        For the reasons set forth

herein, we hold that the trial court has a duty to instruct the

jury on the EMED defense when it is raised by the evidence.                Thus

a defendant may not waive an instruction on the EMED defense.

Accordingly, we vacate the ICA’s Judgment on Appeal and the

circuit court’s Judgment, and remand the case for a new trial

consistent with this opinion.

                                     I.

            On November 6, 2007, Adviento was indicted upon a

charge of murder in the second degree in violation of HRS §§ 707-

701.53 and 706-656.4    The State alleged that on or about October


      2
            The Honorable Richard K. Perkins presiding.
      3
            HRS § 707-701.5 (1993) provides:

            Murder in the second degree. (1) Except as provided in
            section 707-701 [pertaining to murder in the first degree],
            a person commits the offense of murder in the second degree
            if the person intentionally or knowingly causes the death of
            another person.
            (2) Murder in the second degree is a felony for which the
            defendant shall be sentenced to imprisonment as provided in
            section 706-656.
      4
            HRS § 706-656 (1993 & Supp. 2007) establishes the terms of
imprisonment for first and second degree murder and attempted first and second
degree murder.

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28, 2007, Adviento intentionally or knowingly caused the death of

his wife, Erlinda Adviento (Erlinda).

                                    A.

            On June 30, 2009, the State filed a “Notice of Intent

to Use Evidence” (Notice), declaring its intent to “use as

evidence” a March 2004 incident in which Adviento hit Erlinda

with a phone, “causing physical injuries to [Erlinda]” and

resulting in the police being called.        The incident had occurred

when Erlinda and Adviento began arguing over their children’s

homework.

            The defense objected to the admissibility of the phone

incident on the basis that the evidence was more prejudicial than

probative under Hawai#i Rules of Evidence (HRE) Rule 403, and

that there was a lack of foundation for the evidence because

Adviento and Erlinda’s youngest son who had witnessed the

incident “did not really remember the incident and does not know

particular details.”     The defense also objected that Erlinda’s

“statements to the police and others during the case five years

ago following her being hit with a phone” constituted hearsay

statements, and that their admission would violate Adviento’s

constitutional right to confront witnesses.

                                    B.

            Adviento’s jury trial began on July 6, 2009 with jury

selection.


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          On July 7, 2009, after the jury had been selected, the

jury was excused and the court stated that it was ready to rule

on the admissibility of the 2004 phone incident.           As an initial

matter, the court noted, and the parties agreed, that as a result

of the incident, Adviento had been convicted of assault in the

third degree approximately three and a half years prior to

Erlinda’s death.    The court then stated that it would withhold

ruling on the admissibility of the conviction until the court

knew whether Adviento would assert an EMED defense, and the

nature of such a defense.      The court further held that if the

conviction was admitted into evidence, then it would be admitted

on rebuttal, and it would be “[j]ust the conviction” and not the

“specific facts” of the underlying act:

                THE COURT: . . . my preference would be to allow in
          the conviction; because we don’t have to fight about what
          really happened. There was a conviction. And this is why
          I’m withholding ruling on it. Because I’m not sure how
          you’re going to raise the EMED defense. I can’t, at this
          point, get it clear in my mind how it’s going to come up. I
          mean, if it depends on the relationship, then Maelega and
          cases like Hiley (phonetic) say it comes in.
                Right?
                If his defense arises from the nature of their
          relationship, it may have to come in. If it doesn’t, then
          it won’t. I think that –- I’m not convinced that –- let’s
          put it that way. I’m not convinced that it would come in
          for anything other than rebuttal of the EMED defense. We’re
          talking about that conviction, the hitting on the head with
          the phone.
                [DEFENSE COUNSEL]: I just need to be clear. . . .
                If we’re talking about that, is it just going to be
          the conviction? Or is it going to be the facts underlying
          the conviction, as well?
                THE COURT: Just the conviction.
                [DEFENSE COUNSEL]: Just the conviction. Okay.
          . . . .
                THE COURT: As far as the strength of the evidence
          goes, the conviction is the strongest evidence. And if you
          are -- if you are trying to establish in rebuttal of the


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           EMED defense that this marriage was not without its problems
           and there was some violence in the past, to me the
           conviction is your evidence, if the Defense raises that
           defense. And, so, what I’m saying is, if that comes in, it
           will come in on rebuttal, the conviction. And let’s –- let
           me rule now, that if it comes in, it will just be the
           conviction of Assault in the Third Degree, assault against
           the decedent and not the specific facts. Let’s just wait on
           that.

(Emphases added).

           The court reiterated to the prosecutor that he was

not permitted to reference the assault conviction in his

opening statement “[b]ecause, again, I’m not sure how the

EMED defense will arise.      I don’t know what he’s going to

say.”   The court continued and stated again that it would

wait to “hear exactly how EMED comes up.”

           At the next trial date on July 9, 2009, prior to

opening statements, defense counsel informed the court that

the defense would not be asserting the EMED defense because

of the court’s “pretrial rulings”:

                 [DEFENSE COUNSEL]: Judge, we wanted to put a couple
           things on the record. I think the Prosecutor wanted you to
           have an on-the-record colloquy with the defendant as to
           stipulations and things of that nature; and I want to put on
           the record yesterday I met with Mr. Adviento, we discussed
           the Court’s pretrial rulings, defenses and the type of
           evidence and things of that nature, and based on his
           decision, we are not going to be asserting the extreme
           emotional defense, extreme emotional disturbance defense,
           and this is his decision that he made yesterday, so I just
           wanted to put that on the record.

(Emphases added).

           The court responded, “Okay.”        The court then questioned

the prosecutor about an additional witness that the State had

just named.   The prosecutor explained that the witness was “the


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fingerprint examiner who examined the fingerprints from

[Adviento’s] assault conviction,” and that the State intended to

use the witness’ testimony “as an offer of proof” to rebut any

EMED defense raised during the defense’s case.          The prosecutor

explained, “I thought in light of how the Judge rules on the

motion in limine, that might be the useful or safer way, just to

be able to present the assault conviction without putting on,

say, a probation officer or arresting officer.”          The court

responded, “If EMED is not raised, it’s unlikely that the Court’s

going to allow that.”

          The prosecutor then commented that it was his

understanding that it was not up to the defendant to assert the

EMED defense if the evidence raised it.         Defense counsel

responded that it was the defendant’s choice to raise the EMED

defense or not because EMED is an affirmative defense:

                [PROSECUTOR]: Correct, and my only comment to what
          [defense counsel] just stated [regarding the defendant not
          asserting the EMED defense] is I’d like to hear that from
          the defendant’s mouth on the record, if he decides that is
          how he wants to proceed, just to avoid something down the
          road. And then I also, just as a comment, I don’t know if
          he can make that decision if the evidence comes out, however
          –- in other words, I think it’s the evidence that decides.
                THE COURT: What are you going to do –- ask for an
          EMED instruction?
                [DEFENSE COUNSEL]: No. As an affirmative defense, I
          think it is his choice, Judge. It’s not a regular defense,
          so that’s why I left it up to him.

(Emphases added).

          The court responded, “We’ll go ahead with the opening

statements and the preliminary instructions, and then I’ll voir



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dire him on all of the stipulations and the EMED thing.             We

should get started.”

                                    C.

           The following facts are taken from the evidence adduced

during the three days of testimony by the State and defense

witnesses.

                                    1.

           Adviento and Erlinda met in the Philippines and were

married for nearly twenty-four years.        They had three children

together: a twenty-six year-old son (Elder Son), an eighteen

year-old daughter (Daughter), and a thirteen year-old son (Minor

Son).5   Erlinda was forty-four years old at the time of her

death.   She worked as a nurse at a convalescent center.

           Adviento, Erlinda, Daughter and Minor Son lived in the

downstairs back unit (Adviento unit) of a two-story, three-unit

residence.   The Adviento unit had two bedrooms.         Erlinda and

Minor Son shared one bedroom, Daughter stayed in the other

bedroom, and Adviento slept in the living room.

           Erlinda’s co-worker at the convalescent center, Ricardo

Dela Merced (Merced), testified that he and Erlinda were

“spending a lot of time” together in 2007 and were “real close.”

Erlinda’s children called Merced “Uncle Ricky.”          Merced was also

married; his wife and three children lived in the Philippines.


     5
           The children’s ages are taken as of the time of trial.

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Merced testified that Erlinda told him that she loved him.             He

acknowledged telling the police that he would have been with

Erlinda if he had not been married.

          According to Merced, Erlinda would call him about seven

times a day.   Minor Son testified that he remembered Adviento

questioning Erlinda about the phone bill and Merced’s phone

number, which appeared on the phone bill “a lot.”           Minor Son also

testified that Erlinda would sometimes bring him and Daughter to

Merced’s apartment to “just talk.”         Both Merced and Minor Son

testified that Merced, Erlinda, Daughter and Minor Son stayed in

a hotel room in Waikiki “for one day and one night.”

          Adviento testified that in August and September of

2007, prior to Erlinda’s death, he took a three-week trip to the

Philippines.   Elder Son testified that when Adviento returned

from his trip, Erlinda had a meeting with Elder Son and Adviento,

and Erlinda told Adviento that she wanted a divorce.            Adviento

reacted by saying, “[I]t’s okay.”         Elder Son suggested that

Erlinda “move or go somewhere else before somebody get hurt . . .

. [b]ecause sometimes people get divorced, they end[] up

fighting. . . . And lead to something more worse[.]”            However,

Adviento and Erlinda responded that “nobody will get hurt, we’re

going to be fine.”

          During the same meeting, Erlinda and Adviento also

accused one another of infidelity.         According to Elder Son,


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Erlinda believed that Adviento was “cheating” during his trip to

the Philippines.    When Adviento accused Erlinda of also cheating,

“[Erlinda] reacted normally, like she wasn’t cheating.”

Adviento’s “reaction [was] kind of different, kind of like

getting mad[.]”    Elder Son testified that the meeting ended

without incident: “After that, like it’s okay for both of them,

like nothing happened when they said that [about divorce].             Okay.

My dad go to work.    My mom goes to work.”

           Daughter and Minor Son were also aware that Erlinda and

Adviento had discussed divorce and that Erlinda was the one who

wanted the divorce.     Daughter testified that she had seen the

divorce papers.

                                  2.

           On Sunday, October 28, 2007, Erlinda stayed home from

work.   Adviento testified that he went to work in the morning and

came home at around noon.      Daughter was at work that day during

all of the relevant times.      Minor Son got permission from Erlinda

to go to the upstairs apartment in the same building to play with

his friends.   When Minor Son left Erlinda, she was watching

movies in the room that she shared with Minor Son.

           Merced testified that he was talking to Erlinda on the

cell phone that day.     Their conversation was interrupted at some

point by “someone’s banging the door.”         Merced testified that he

heard a male voice say in Tagalog, “[Y]ou’re the one asking some


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kind of relationship in the Philippines, but you’re the one who

is –- who has a boyfriend.”      Then there was “banging,” and the

phone reception was cut off.

          On cross-examination, Merced acknowledged that during

his first interview with the police he had only stated that he

heard “banging” or “knocking” on the door and that he did not

hear a male voice.    He told police that he knew it was Adviento

at the door only because Erlinda told him that Adviento was

calling her.   Merced explained that he had not been truthful in

the first interview because he was confused and afraid that he

would be in trouble.     Merced testified that it was during his

second interview with the police that he said he heard Adviento’s

voice and that Adviento was “screaming mad” at Erlinda.

          Minor Son testified that at some point while he was in

the upstairs apartment with his friends, he heard Erlinda scream.

He testified that Erlinda “yelled call 911 and to come downstairs

and help her.”    Her screaming went on for a “few minutes” and

“shocked and scared” Minor Son.       He did not hear Adviento or

anyone other than Erlinda yell or scream.

          Myrna Villaver (Villaver) lived in the upstairs

apartment above the Adviento unit.        She testified that at the

relevant time on October 28, 2007, her children, Minor Son, and

another friend were in her apartment, playing in the bedroom.               At

around 2:30 p.m. in the afternoon she heard a female “yell, a


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scream” coming from downstairs.       Villaver described the scream as

a “long, unusual scream that that person needed help.”            She did

not hear anyone else scream.

            After Minor Son and Villaver heard the scream, they

both ran downstairs.     Villaver told her children to stay back and

asked Minor Son to go to the Adviento unit and ask Erlinda if she

was okay.    Minor Son walked on the outside of the unit to the

window of Erlinda’s room.      He noticed that the front door to the

Adviento unit was closed and locked, even though the door was

usually left open and unlocked whenever someone was home during

the day.    Minor Son could not see into Erlinda’s room through the

window.    Minor Son testified that he asked if everything was

okay, and Adviento responded, “Everything’s fine.”           However,

Minor Son testified that “at the end . . . of what he said, it

didn’t quite sound very good.”       Minor Son said that Erlinda did

not respond, and he did not hear her voice when he stood outside

the window.

            Villaver remained closer to the downstairs front unit

of the complex while Minor Son went by the window.           She testified

that Minor Son asked, “[M]om, are you okay,” then Villaver heard

“a female, I believe it was his mom, saying call 911.”            Villaver

did not hear a male voice.

            Villaver called 911.     Honolulu Police Department (HPD)

Officer Nalei Sooto (Officer Sooto) testified that on October 28,


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2007, shortly after he began his shift at 2 p.m., he received an

argument call from dispatch.        When Officer Sooto arrived at the

Adviento residence, Villaver told Officer Sooto “that there was

an argument going on for several hours” and “some screaming

earlier.”6

             After attempting to open the front door of the Adviento

unit, Officer Sooto repeatedly knocked and announced “police.”

After about three minutes, Adviento opened the door.             Adviento

“was covered in blood” and “appeared to be injured.”             Officer

Sooto asked Adviento what happened, and Adviento responded, “I

killed my wife.”

             Officer Sooto immediately handcuffed Adviento and

walked him towards the front of the house where the police car

was parked.     Officer Sooto described Adviento’s demeanor as

“[k]ind of dazed, possibly fatigued.”         There was blood on the

“front area” and “sides” of Adviento’s body, and “some splatters”

on his face.     Officer Sooto testified that “[a]s I walked him

out, he kind of stated to me that his wife was cheating, she

tried to stab him.      So he killed her, and then he tried to kill

himself after.”     Adviento took “a couple gasps of breath between

each statement he gave.”       When Officer Soto sat Adviento on the




      6
            Officer Sooto’s testimony was contradicted by Villaver, who
testified that she did not hear any arguing prior to Erlinda’s scream, and
that she did not tell the police officer that there had been an argument for a
few hours prior to the scream.

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ground against the police car, he noticed injuries to Adviento’s

collarbone area and wrists.

          After other HPD officers arrived on the scene, they

entered the Adviento home and found Erlinda on the bedroom floor

between the bed and a dresser.       She was “covered in blood,” her

“shirt was partially above her stomach,” revealing that she had

been cut, and she had no pulse.        Erlinda was pronounced deceased

at the scene by emergency medical services personnel.

          Adviento was transported from the scene in critical

condition by ambulance to the Queen’s Medical Center emergency

room.

                                  3.

          A white-handled serrated bread knife was recovered from

the bedroom floor next to Erlinda’s left arm.          A second knife

with a brown wooden handle was recovered from beside Erlinda’s

left hand.   A bent curtain rod was also found on the floor near

Erlinda’s body.    Two cell phones were found on the bed and a

cordless phone was on the floor.

          An HPD homicide detective testified that the wounds on

Erlinda’s body were consistent with a single-edged knife.             The

detective testified that it was apparent from her investigation

that a struggle occurred in the room where Erlinda was found.

          The Chief Medical Examiner for the City and County of

Honolulu conducted the postmortem examination of Erlinda and


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testified that excluding cuts on her hands, Erlinda had a total

of seventeen wounds on her body.        Sixteen of the wounds were stab

wounds,7 and one was a cut to the face.         Some stab wounds went

through the heart and lung.       Erlinda also had “defensive wounds”

on the palms and backs of her hands.

            The medical examiner testified that Erlinda’s wounds

were consistent with the two knives recovered from the scene.

She concluded that Erlinda’s wounds were not self-inflicted, and

that Erlinda “died of bleeding from the injuries to the heart and

lung as a result of the stab wounds in the chest.”

            The Queens Hospital trauma surgeon who was in charge of

Adviento’s care after he was brought into the emergency room

testified that Adviento had three open wounds to his front

abdomen, three wounds to his neck, and multiple lacerations to

his wrists.    Internally, Adviento had a collapsed right lung with

bleeding into the right chest.        During surgery the surgeon found

“six perforations of his intestines and an injury to his spleen.”

The surgeon testified that he could not determine the source of

the injuries just by looking at the wounds.           Adviento did not

have any injuries on other parts of his body, including his face

and hands.    The surgeon stated that the three stab wounds to

Adviento’s torso would have caused a great deal of pain.



      7
            The medical examiner defined a “stab wound” as a wound created
“when a knife or sharp instrument is plunged into the body, where the depth of
the wound is longer than the surface cut of the wound.”

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                                    D.

          The sole witness for the defense was Adviento.

Adviento testified that he and Erlinda had been having marital

problems for about a year prior to Erlinda’s death.           According to

Adviento, the problems were caused by incidents in which Erlinda

said she was working overtime but was not at her workplace when

Adviento checked.    Adviento acknowledged that he thought Erlinda

may have been “fooling around.”

          Adviento testified that he went to the Philippines for

three weeks because he injured his foot at work and Erlinda

suggested that he go to visit family.        Adviento stayed with

Erlinda’s family while in the Philippines.         When Adviento

returned from his trip, Erlinda told him that her sister had

called her and said that he was “having an affair and womanizing

in the Philippines.”     Erlinda had told him two or three times

prior to this occasion that she wanted a divorce.           The last time

they discussed divorce was about two to three weeks before

Erlinda’s death, during the conversation with Elder Son.

          On October 28, 2007, Adviento went to work in the

morning and returned home at around noon.         He did some chores,

cooked, and then went to sleep.       He testified that he was not

aware that Erlinda was home and did not go into or towards

Erlinda’s room.    After Adviento woke up, he went towards

Erlinda’s room in order to grab a shirt.         He was near the door to


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Erlinda’s room when he heard somebody saying, “[S]weetheart, will

it be okay if I don’t have any present to you?”          He testified

that he felt “[f]rustrated” when he heard this.          He knocked on

the door and then entered Erlinda’s room.

          When Adviento entered the room, he saw Erlinda talking

on the cell phone.    He told Erlinda, “[Y]ou told me that I was

the one making relationship in the Philippines, while the truth

is you were the one having a boyfriend over here.”           Erlinda

responded by throwing the cell phone at Adviento.           Adviento and

Erlinda then began arguing.      He did not know how long they

argued, but stated that they were “talking kind of loud.”

According to Adviento, he was “mad” and Erlinda was “very mad” as

they continued “arguing back and forth.”         Adviento told Erlinda

to go back to the Philippines and ask her family about his

alleged infidelity.     He also told Erlinda that he would call her

workplace to verify her overtime and the five nights and days

when she called in sick from work but was not at home.

          Adviento testified that he walked to the phone and he

had his back turned to Erlinda while he was dialing the phone.

Then he felt a “pain” in his stomach.        He looked down and saw

blood on his stomach.     He testified that he looked at Erlinda and

he was “surprised that she had a bow knife on her hands” and that

a second knife was close to his stomach.         He felt another

“stabbing” on his stomach.      At that point, Adviento hit Erlinda


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with the phone he was holding.       He testified that he then

struggled with Erlinda, took a knife away from her, and stabbed

her:

                A [Adviento]. Then I push her face. Then I tried to
          grab her knife on her arms. And I took it away.
                While I was struggling on the other hand, with the
          other knife, I feel another pain on my shoulder.
                Q [Prosecutor]. Okay.
                A. And after that, I manage to get the knife. I just
          –- I don’t know. I was afraid of my life. I thought I was
          going to die. I got plenty blood.
                I just stab her, I don’t know how many times. I don’t
          know where, which part of her body I stab. I just kind of
          afraid that I would die.
                I just –- why -– I went -– I fall down on the floor,
          and she was still coming with me, trying to stab me up.
                Q. Okay.
                A. I feel pain on my shoulder again. That time I have
          the chance to grab her right arm. And I never let go. And
          I just stab, and she fell down on me.
                Q. Okay. What happened next?
                A. We’re still struggling at that time.
                Then she wasn’t moving. I wasn’t moving. I don’t
          know, I just pull her away from me.
                Then I struggle to stand up, because my left foot is
          still swollen and I was favoring it from the surgery. I
          grab on the -– I don’t know which one I grab and try to
          stand up.

(Emphases added).

          Adviento testified that after he stood up, he looked at

Erlinda lying on the floor and did not know “if she’s unconscious

or if she’s dead.”    He described his feelings at that point as

“shocked.”

          He testified that he went out to the living room and

walked around, “confused,” and closed the back and front door of

the Adviento unit because he did not want his children to see

“what happened to us with my wife.”        He explained that he then

returned to Erlinda’s room and slashed his wrists:

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                 A [Adviento]. . . . . Then I went back to the room. I’m
           still staring and looking at my wife, still shocked, still
           fear for my life. My wife was stab me to death. She was
           trying to kill me.
                 Q [Prosecutor]. So what happened now?
                 A. I don’t know. I just grabbed the knife from her hand
           and cut.
                 Q. Why would you do that?
                 A. She wanted me dead.    I would rather be dead –- I
           would rather she be alive, than me. I would rather be dead
           than her. I just waited over there. I like to die also at
           that time. I just waited, and waited, and waited.

(Emphasis added).

           Adviento remembered the police arriving and questioning

him.   He testified, “I don’t know if I answered them right or

wrong, because I was kind of feeling dizzy.”          He remembered

telling the police, “My wife is cheating on me.           She stabbed me.

She tried to kill me.     I killed her.”      He reiterated that he did

not stab Erlinda first.      He stated that he realized how many

times he had been stabbed when he woke up in the hospital.

           After Adviento’s testimony, the defense rested.

                                     E.

           The jury exited the courtroom for a short recess prior

to the State’s rebuttal.      The court informed the jurors before

they left that “[t]here may be one more witness” after the

recess.

           The court then addressed the parties regarding the EMED

defense, stating that it would instruct the jury on the EMED

defense if requested.     The court then asked Adviento whether he

was giving up his right to assert the EMED defense:


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                THE COURT: Earlier in this trial, [defense counsel]
          told me that you were not going to assert the defense of
          extreme mental or emotional disturbance.
          Do you remember that?
                THE DEFENDANT: Yes, sir.
                THE COURT: Have you discussed the defense of extreme
          mental or emotional disturbance with [defense counsel]?
                THE DEFENDANT: Yes, sir.
                THE COURT: Let me just tell you that I would, if
          requested, instruct the jury on extreme mental or emotional
          disturbance in this case.
                Extreme mental or emotional disturbance is a defense,
          it’s an affirmative defense, that reduces the crime of
          murder to manslaughter. Murder carries a maximum penalty of
          life in prison with a possibility of parole. Manslaughter
          carries a maximum penalty of 20 years.
                Do you understand that?
                THE DEFENDANT: Yes, sir.
                THE COURT: So do you understand that if I don’t give
          an instruction on extreme mental or emotional disturbance,
          the jury will not be able to consider it, and you will be
          giving up the opportunity to be convicted of the lesser
          offense of manslaughter?
                THE DEFENDANT: Yes, sir.
                THE COURT: Do you have any questions at all about
          this?
                THE DEFENDANT: No.
                THE COURT: Do you give up your right to assert the
          defense of extreme mental or emotional disturbance?
                THE DEFENDANT: Yes, sir.

(Emphases added).

          Despite Adviento’s responses, the prosecutor questioned

whether Adviento needed more time to think about the matter.

When the court asked Adviento whether he needed more time to

think, he responded, “Yeah, for a while, if I can, please,” and

explained, “I wasn’t expecting this”:

                THE DEFENDANT: How much time do I have?
                THE COURT: Not much. Do you want to talk to [defense
          counsel]?
                THE DEFENDANT: Yeah, for a while, if I can, please.
                THE COURT: All right. We’ll take a recess, but this
          is something you folks should have discussed before now.
                THE DEFENDANT: Yes, sir.
                THE COURT: You have already told me this was it. But
          –-
                THE DEFENDANT: Yeah. I wasn’t expecting this.


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                 THE COURT: All right. Mr. Adviento, I don’t mean to
           force you to a decision one way or the other. You can
           change your mind if you want to. But I’m not going to give
           you too much time to do that. So we’ll take a break.

(Emphases added).

           Upon reconvening after a short break, defense counsel

informed the court that he and Adviento had discussed the matter

“quite extensively prior to” and that Adviento “just had a few

clarification questions.”      The court then addressed Adviento and

obtained a waiver of the EMED defense, and concluded that because

of the waiver, the court’s “ruling as to the other incidents”

would not be allowed:

                 THE COURT: Have you made your decision about whether
           or not to assert the defense of –-
                 THE DEFENDANT: Yes, sir, Your Honor.
                 THE COURT: -- extreme mental or emotional disturbance?
                 THE DEFENDANT: Yes, Your Honor.
                 THE COURT: And what is your decision?
           . . . .
                 THE DEFENDANT: We will go for the self-defense.
                 THE COURT: All right. But you will not raise the
           defense of extreme mental or emotional disturbance?
                 THE DEFENDANT: Yes, Your Honor.
                 THE COURT: All right. Then the Court will find that
           the Defendant have been fully informed has knowingly,
           intelligently and voluntarily waived any jury instruction on
           extreme mental or emotional disturbance.
                 So that the Court’s ruling as to the other incidents,
           violence perhaps in [the] relationship will not be allowed.

(Emphases added).

                                   F.

           Subsequently, the jury re-entered the courtroom, and

the State proceeded with its rebuttal evidence.          The State re-

called Daughter, who testified that Erlinda was “very nice, very

caring.   She never tried to do any harm.        Very peaceful.”      The


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State did not call the fingerprint examiner to testify regarding

Adviento’s prior assault conviction.

            Prior to giving the jury instructions, the court noted

to the parties that the EMED instruction would be withdrawn.                 The

jury was subsequently instructed by the court on the offense of

murder in the second degree, the included offense of reckless

manslaughter, and the defense of justifiable use of force.

            On July 17, 2009, the jury reached a unanimous verdict

finding Adviento guilty as charged of the offense of murder in

the second degree.      The court sentenced Adviento to a term of

life imprisonment with the possibility of parole, with a

mandatory minimum term of ten years.         The court filed its

Judgment on October 21, 2009.

                                     II.

                                     A.

            On appeal to the ICA, Adviento argued that the circuit

court “abused its discretion when it erroneously ruled that

evidence of Adviento’s prior assault conviction would be

admissible to rebut the defense of EMED.”8

      8
            On appeal to the ICA, Adviento also argued: 1) the circuit court
plainly erred in permitting the prosecution to engage in numerous instances of
prosecutorial misconduct during closing argument, or alternatively defense
counsel was ineffective when he failed to object to these instances of
misconduct; and 2) defense counsel was ineffective when he failed to adduce
evidence of Adviento’s injuries to substantiate the self-defense claim, and
evidence of Erlinda’s five-day absence from home and work to establish
Erlinda’s motive for being the first aggressor. The ICA rejected both claims.
State v. Adviento, No. 30171, 2012 WL 2864226, at *13-16 (Haw. App. Jul. 10,
2012) (mem.). These issues are not further addressed as they are not raised
in Adviento’s application for writ of certiorari.

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            Adviento contended that the circuit court “correctly

recognized at the conclusion of the presentation of the evidence,

that the EMED instruction was necessary” because Adviento’s

testimony established “that there was a reasonable explanation

for Adviento’s EMED” defense.        He argued that “considering the

circumstances that Adviento subjectively believed at the time –

i.e. his shock that his wife of 24 years would try to kill him

when he was confronting her about her lies and her affair,”

Adviento’s “resulting EMED, of shock, anger and dismay, was

objectively reasonable.”

            Adviento contended that the circuit court’s ruling that

his prior assault conviction would be admissible to rebut the

EMED defense was an abuse of discretion.          The conviction was not

admissible under HRE Rule 404(b) pertaining to the admissibility

of evidence of other crimes, wrongs or acts, or under HRE Rule

403 regarding the exclusion of relevant evidence if its probative

value is substantially outweighed by certain considerations.

Adviento also argued that the circuit court’s ruling was

inconsistent with the analysis set forth in State v. Pinero, 70

Haw. 509, 778 P.2d 704 (1989) for the admission of other criminal

acts of the defendant.9
      9
            In Pinero, the court held that the trial court must weigh a
variety of factors before ruling that evidence of the defendant’s other
criminal act is admissible to prove a fact in consequence. Id. at 518, 778
P.2d at 711. These factors include “the strength of the evidence as to the
commission of the other crime, the similarities between the crimes, the time
that has elapsed between them, the need for the evidence, the efficacy of
alternative proof, and the degree to which the evidence probably will rouse
                                                                (continued...)

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           Thus, Adviento contended that the assault conviction

was not admissible under the HRE or to rebut his EMED defense,

and the court’s erroneous ruling admitting the conviction caused

him to forgo the EMED defense.        The absence of the EMED

instruction was not harmless beyond a reasonable doubt and

“impinged on Adviento’s constitutional rights to present a

defense and his due process right to a fair trial.”

           Relatedly, Adviento claimed that his trial counsel was

ineffective in advising him to waive the EMED defense because the

record supported the defense and the circuit court recognized

that the EMED instruction was warranted.

           In response, the State argued that the circuit court

did not actually rule on the admissibility of the assault

conviction, but took “the matter under advisement until the

parties presented all evidence relevant to the admission of his

conviction.”    The issue of the conviction’s admissibility “became

moot when Defendant decided not to pursue ‘EMED’ as a defense,

[and] therefore, the trial court never issued a ruling that

ripened into a justiciable controversy.”

           Regarding Adviento’s ineffective assistance of counsel

claim, the State argued that the record did not establish trial

counsel’s rationale for advising Adviento to waive the EMED
      9
        (...continued)
the jury to overmastering hostility.” Id. (quotation marks and citation
omitted). Adviento argued that the circuit court did not correctly apply the
Pinero analysis before ruling that Adviento’s prior assault conviction would
be admissible to rebut the EMED defense.

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defense.   Thus, even assuming that the evidence raised an EMED

defense, Adviento failed to meet his burden of demonstrating that

the decision to forgo the EMED defense resulted in a denial of

his right to present a defense or to effective assistance of

counsel.

           Adviento responded that while the circuit court

initially deferred its ruling because it was not sure how

Adviento would raise the EMED defense, the court later ruled that

the prior conviction would be admissible to rebut an EMED

defense.   Specifically, the circuit court stated just after

taking Adviento’s waiver, “So that the Court’s ruling as to the

other incidents, violence perhaps in [the] relationship will not

be allowed.”   Adviento argued that this statement by the court

“explicitly refer[ed] to its ruling of not allowing admission of

‘other incidents’ of ‘violence’ in the relationship.”

                                    B.

           The ICA held that “Adviento is not entitled to any

relief based on the manner in which the Circuit Court handled the

issue of the admissibility of his prior assault conviction.”

State v. Adviento, No. 30171, 2012 WL 2864226, at *5 (Haw. App.

Jul. 10, 2012) (mem.).     The ICA agreed with the State that the

circuit court did not actually issue a ruling that Adviento’s

prior assault conviction would be admissible to rebut an EMED

defense, but merely decided to withhold “its ruling on the


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admissibility of the assault conviction until it understood the

nature and substance of any EMED defense that Adviento intended

to raise.”    Id. at *8.    The ICA understood the circuit court’s

statements on the prior conviction and the EMED defense to be

“definite” only in the sense that “if [the circuit court] decided

to permit evidence of the prior assault to rebut an EMED defense,

only the third-degree assault conviction, and not the specific

underlying facts, would be permitted.”          Id. at *8 n.6.

            The ICA agreed with the State that “Adviento’s

subsequent decision to waive any EMED defense made it unnecessary

for the Circuit Court to rule on the admissibility of the assault

conviction.”    Id. at *8.     The ICA thus characterized the “posture

of [Adviento’s] appeal” as one in which the defendant was

“seeking to vacate his conviction based on a trial court’s

decision to withhold ruling on the admissibility of evidence

(which was never actually admitted at trial)[.]”            Id.

            After determining that the circuit court did not rule

on the admissibility of Adviento’s prior conviction, the ICA held

that the circuit court did not err in withholding its decision

until the nature and substance of Adviento’s possible EMED

defense became clearer.10      Id. at *11.    In reaching its holding,

the ICA stated that the “Hawai#i Supreme Court has concluded that

      10
            The ICA extensively discussed the reviewability of a trial court’s
in limine rulings, but ultimately decided to assume for the purposes of the
appeal that the circuit court’s ruling deferring its decision on the
conviction’s admissibility was reviewable. Id. at *8-10.

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prior bad acts involving domestic violence committed against the

alleged victim may be admissible to rebut a defendant’s EMED

defense, where the EMED defense is based on the defendant’s

relationship with the alleged victim.”         Id. (citing State v.

Maelega, 80 Hawai#i 172, 183-84, 907 P.2d 758, 769-70 (1995)).

Thus, the ICA reasoned that the relevance of Adviento’s prior

conviction depended upon the nature and substance of Adviento’s

possible EMED defense.     Id.   According to the ICA, “Adviento did

not proffer or provide details of the possible EMED defense he

might raise.”   Id.   Under the circumstances, the circuit court

did not err in withholding its ruling “until Adviento provided

details of the nature and substance of the EMED defense he

intended to raise.”     Id.

            The ICA further noted that “Adviento’s own testimony at

trial refute[d] any substantial EMED defense arising out of

[Erlinda’s] alleged infidelity[,]” given that Adviento testified

that Erlinda’s act of stabbing him in the stomach prompted him to

stab her.   Id. at *12.    The ICA concluded that if Adviento had

sought to assert an EMED defense based on his shock over

Erlinda’s attempt to kill him, then the circuit court would have

prevented the prior conviction from being admitted into evidence,

as the court had “plainly stated it would only consider admitting

the assault conviction if Adviento asserted an EMED defense that

was based on the nature of his relationship with his wife.”             Id.

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           On the issue of whether defense counsel provided

ineffective assistance of counsel in advising Adviento to waive

the EMED defense, the ICA found that that “record reflects that

Adviento made the decision to waive reliance on an EMED defense;

it does not show what advice Adviento’s trial counsel gave

Adviento regarding this decision or whether trial counsel even

advised Adviento to forego asserting an EMED defense.”            Id. at

*13.   The ICA nevertheless determined that “[b]ased on the record

and under the circumstances of this case, we cannot say that it

would have been unreasonable for competent defense counsel to

advise Adviento to forego asserting a possible EMED defense and

instead to rely solely on a claim of self-defense.”           Id.

“Adviento’s trial counsel could have rationally concluded that a

claim of EMED would have detracted from or conflicted with a

claim of self-defense and that Adviento would be better off

relying solely on a claim of self-defense.”          Id.

           Although the ICA thus concluded that Adviento failed to

prove ineffective assistance of counsel, given that the record

did not “reflect the particular advice trial counsel gave to

Adviento or the reasons for counsel’s advice,” the court did not

“preclude Adviento from raising a claim of ineffective assistance

of counsel with respect to the advice he received on asserting an

EMED defense, in a Hawai#i Rules of Penal Procedure (HRPP) Rule

40 proceeding based on a more fully developed record.”            Id.

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          The ICA therefore affirmed Adviento’s conviction.              Id.

at *16.

                                   III.

          In his application for writ of certiorari to this

court, Adviento presented the following questions:

          I. Whether the ICA gravely erred in holding that Petitioner
          is not entitled to any relief based upon the manner in which
          the circuit court handled the issue of the admissibility of
          his prior assault conviction, which caused Petitioner to
          forego an instruction on the extreme mental or emotional
          disturbance (EMED) defense; and

          II. Whether the circuit court was obligated to instruct the
          jury on the EMED defense upon determining that there was
          sufficient evidence in the record to support the giving of
          the instruction, even where Petitioner waived the defense.

          We first address the question of the trial court’s duty

to instruct the jury on the EMED defense when the defense is

raised by the evidence.

                                    A.

          “[I]n our judicial system, the trial courts, not the

parties, have the duty and ultimate responsibility to insure that

juries are properly instructed on issues of criminal liability.”

State v. Haanio, 94 Hawai#i 405, 415, 16 P.3d 246, 256 (2001),

overruled in part on other grounds, State v. Flores, 131 Hawai#i

43, 314 P.3d 120 (2013).      “[I]t is the trial judge’s duty to

insure that the jury instructions cogently explain the law

applicable to the facts of the case and that the jury has proper

guidance in its consideration of the issues before it.”            State v.


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Locquiao, 100 Hawai#i 195, 205, 58 P.3d 1242, 1252 (2002) (citing

State v. Robinson, 82 Hawai#i 304, 311-12, 922 P.2d 358, 365-66

(1996)) (quotation marks omitted).         See State v. Hoey, 77 Hawai#i

17, 38-39, 881 P.2d 504, 525-26 (1994) (“it is the duty of the

circuit judge to see to it that the case goes to the jury in a

clear and intelligent manner, so that they may have a clear and

correct understanding of what it is they are to decide, and he or

she shall state to them fully the law applicable to the facts”)

(quotation marks, brackets and citations omitted).

            In this case, Adviento was charged with second-degree

murder, an offense carrying a penalty of life imprisonment with

the possibility of parole.       See HRS § 707-701.5; HRS § 706-

656(2).    EMED is an affirmative defense to murder or attempted

murder,11 “which reduces the offense to manslaughter or attempted

manslaughter” if “the defendant was, at the time the defendant

caused the death of the other person, under the influence of

extreme mental or emotional disturbance for which there is a

reasonable explanation.”       HRS § 707-702(2).      “The reasonableness

of the explanation shall be determined from the viewpoint of a

reasonable person in the circumstances as the defendant believed

them to be.”    Id.

      11
            HRS § 707-702(2) was amended in 2003 to provide that EMED is an
affirmative defense. 2003 Haw. Sess. Laws Act 64, § 1. “If the defense is an
affirmative defense, the defendant is entitled to an acquittal if the trier of
fact finds that the evidence, when considered in light of any contrary
prosecution evidence, proves by a preponderance of the evidence the specified
fact or facts which negative penal liability.” HRS § 701-115(2)(b) (1993).

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                As the ICA recognized in this case, EMED “is not a

complete defense” that, “if accepted by the jury, entitles a

defendant to a verdict of not guilty.”          Adviento, 2012 WL

2864226, at *13.        Rather, a successful EMED defense reduces the

offense from murder to manslaughter.         Manslaughter is a class A

felony, HRS § 707-702(3), for which the sentence is “an

indeterminate term of imprisonment of twenty years without the

possibility of suspension of sentence or probation,” HRS § 706-

659.        Thus, “[a]lthough [HRS § 707-702(2)] refers to the mental

state of a defendant as a defense, it is really a mitigating

factor.        Intentionally killing while under the influence of

extreme emotional disturbance does not present a true ‘defense,’

for the punishment is merely reduced through the mechanism of

denominating the crime as ‘manslaughter’ rather than ‘murder’.”

State v. Dumlao, 6 Haw. App. 173, 165 n.2, 715 P.2d 822, 825 n.2

(1986), overruled in part on other grounds by State v. Seguritan,

70 Haw. 173, 766 P.2d 128 (1988) (quotation marks omitted).12

                In the context of jury instructions on the EMED

defense, our courts have held that it is the trial court’s
       12
            Dumlao was overruled in part by Seguritan, to the extent that the
discussion of EMED manslaughter in Dumlao suggested that the defendant is
required to be exposed to an “extremely unusual and overwhelming stress.” See
Seguritan, 70 Haw. at 174, 766 P.2d at 128-29. The Seguritan court held that
HRS § 707-702(2) focuses “on the defendant’s reaction to the stress, and
requires only that the defendant be under the influence of extreme mental or
emotional disturbance for which there is ‘a reasonable explanation’.” 70 Haw.
at 174, 766 P.2d at 129. “The disapproved language [in Dumlao] was drawn from
People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, 717 (Sup. 1976) . . . .
The remainder of Dumlao’s analysis of EMED manslaughter remains good law.”
State v. Moore, 82 Hawai#i 202, 211 n.9, 921 P.2d 122, 131 n.9 (1996).

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obligation to provide an EMED instruction when “the record

reflects any evidence . . . that the defendant acted under a loss

of self-control resulting from [EMED].”         State v. Aganon, 97

Hawai#i 299, 304, 36 P.3d 1269, 1274 (2001).         See State v.

Sawyer, 88 Hawai#i 325, 333, 966 P.2d 637, 645 (1998); State v.

Moore, 82 Hawai#i 202, 921 P.2d 122 (1996); State v. Pinero, 70

Haw. 509, 525, 778 P.2d 704, 714-15 (1989).

          This court on review has examined whether the trial

court erred in not giving the EMED instruction notwithstanding

the fact that neither the prosecution nor the defense requested

an EMED instruction at trial.       In Sawyer, the State withdrew its

proposed instruction on EMED manslaughter without defense

objection.   88 Hawai#i at 328, 966 P.2d at 640.         On appeal, the

defendant argued “that the trial court committed plain error when

it failed, sua sponte, to instruct the jury on attempted EMED

manslaughter.”    Id.   In determining whether the trial court

committed plain error, the Sawyer court first explained that “the

ultimate responsibility properly to instruct the jury lies with

the circuit court and not with trial counsel.”          Id. at 333, 966

P.2d at 645 (quotation marks, ellipses and brackets omitted)

(emphasis added).    With respect to the “mitigating defense of

attempted EMED manslaughter,” the court noted that “[m]uch

confusion has arisen over whether the court or the jury

determines the reasonableness of the defendant’s explanation or

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excuse” for the extreme mental or emotional disturbance.             88

Hawai#i at 333, 966 P.2d at 645.

            In order to resolve such confusion, the court held

“that the trial court determines whether or not the record

reflects any evidence of a subjective nature that the defendant

acted under a loss of self-control resulting from extreme mental

or emotional disturbance.”13 Id.        “[I]f the record reflects any

evidence of a subjective nature that the defendant acted under

the influence of extreme mental or emotional disturbance, then

the issue must be submitted to the jury, and the trial court

should instruct the jury on EMED manslaughter.”           Id. (emphases

added).    In that case, the court determined that the “trial court

did not [plainly] err when it instructed the jury on self-

defense, without instructing the jury on attempted EMED

manslaughter,” because “the record was devoid of any evidence

that Defendant acted while under the influence of a reasonably

induced loss of self-control due to extreme mental or emotional

disturbance.”     Id. at 334, 966 P.2d at 646.

            Similarly in Moore, the court examined whether the

trial court plainly erred by failing to instruct the jury on the


      13
            The Sawyer court explained that “the defendant must satisfy a
subjective/objective test in proffering a reasonable explanation in accordance
with HRS § 707-702(2). First, in satisfying the subjective portion, the
record must reflect the circumstances as the defendant believed them to be.
Second, in satisfying the objective portion, the record must support a
reasonable explanation or excuse for the actor’s disturbance.” Id. at 333,
966 P.2d at 645.

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EMED defense, although the prosecution withdrew its proposed EMED

instruction without objection by the defense.          82 Hawai#i at 209-

10, 921 P.2d at 129-30.     The court held that it did not need to

decide whether the trial court’s failure to instruct the jury on

the EMED defense was plain error “because the record in this case

is entirely devoid of any evidence supporting a theory of

attempted EMED manslaughter in the first instance.”           Id. at 210,

921 P.2d at 130 (emphasis added).         In that case, there was no

testimony presented of the defendant’s state of mind at the time

he shot the complainant, as only the defendant and complainant

had such knowledge, and neither testified.         Id.

          In Aganon, the court again reviewed whether the trial

court plainly erred by not instructing the jury on the EMED

defense, although neither the prosecution nor defense objected to

the lack of instruction.      97 Hawai#i at 302, 36 P.3d at 1272.

Upon reviewing the evidence presented at trial, the court held

that the trial court did not plainly err in not giving the EMED

instruction, as the defendant presented only “generalized

testimony that she loses her temper in stressful situations” and

that the decedent, an infant, “could cry a lot.”           Id. at 304, 36

P.3d at 1274.

          Accordingly, this court’s cases on the EMED defense

demonstrate that the trial court’s obligation to instruct the

jury on the EMED defense when it is raised by the evidence does

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not depend on a request for the instruction by the defense or

prosecution.    Rather, the trial court’s obligation to sua sponte

instruct the jury on the EMED defense arises when the record

reflects “any evidence of a subjective nature that the defendant

acted under the influence of extreme mental or emotional

disturbance.”     Sawyer, 88 Hawai#i at 333, 966 P.2d at 645.

            This approach to jury instructions is also reflected in

this court’s treatment of the mitigating defense of assault in

the third degree in the course of a mutual affray.            Under HRS §

707-712(2), the offense of assault in the third degree is reduced

from a misdemeanor to a petty misdemeanor when the assault is

committed during a fight or scuffle entered into by mutual

consent.    “In other words, mutual affray is a mitigating defense

that reduces the offense of Assault in the Third Degree to a

petty misdemeanor.”14     State v. Kikuta, 125 Hawai#i 78, 96, 253

P.3d 639, 657 (2011).

            In Kikuta, this court held that the trial court must

instruct the jury on the mutual affray defense when there is “any

evidence” supporting the instruction.         Id. at 96, 80-81, 253 P.3d

at 641-42, 657.     The defendant in that case had been charged with

and convicted of assault in the third degree.           Id. at 81, 253




      14
            The Kikuta court compared the mutual affray defense to the EMED
defense under HRS § 707-702(2). 125 Hawai#i at 96, 253 P.3d at 657.

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P.3d at 642.       The defendant did not request a jury instruction on

the mutual affray defense.         See id. at 84, 253 P.3d at 645.

             On appeal, the defendant argued that the trial court

erred in failing to instruct the jurors on the mutual affray

defense.     Id.   Upon reviewing the evidence, the Kikuta court

agreed, finding that “there was some evidence adduced that the

injury to Complainant occurred during the course of a fight or

scuffle entered into by mutual consent.”            Id. at 96, 253 P.3d at

657.    The court referenced testimony by the complainant that

prior to the assault, he stood up with his crutch and “figured”

that the defendant “thought he was going to whack him with it,”

and testimony by the defendant that the complainant swung the

crutch at him.       Id. at 96-97, 253 P.3d at 657-58.         Such testimony

constituted “evidence from which it could be implied that, from

that point, Complainant had impliedly consented to a fight or

scuffle with [the defendant].”          Id. at 97, 253 P.3d at 658.        The

court noted that “[i]nasmuch as the testimony of Complainant and

[the defendant] differ, it is not for this court to determine

whether the testimony of one was more credible than the other.”

Id.    Rather, “the court must submit a mutual affray instruction

to the jury when there is any evidence in the record that the

injury was inflicted during the course of a fight or scuffle

entered into by mutual consent[.]”           Id. at 96, 253 P.3d at 657.

The court therefore vacated the defendant’s conviction based on

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the trial court’s failure to give the mutual affray instruction.

Id. at 96-97, 253 P.3d at 657-58.

            Thus, the trial court’s obligation to instruct the jury

on the EMED defense when it is raised by the evidence does not

depend on a request for the instruction by the defense or

prosecution.15

                                     B.

            Because the trial court’s duty to instruct the jury on

the relevant law is independent of the defense or prosecution’s

trial strategy, a trial court is not permitted to elicit a

defendant’s waiver of the EMED defense.16 Permitting such a

waiver would interfere with the trial court’s role in instructing

the jury on the relevant law and the jury’s role in rendering

verdicts based on the evidence presented.

            Much of the rationale for requiring the trial court to

give the EMED instruction based on the evidence rather than based

on the defendant’s trial strategy has already been enunciated by

this court in State v. Haanio, 94 Hawai#i 405, 16 P.3d 246

(2001).
      15
            This requirement is consistent with this court’s decision in State
v. Taylor, 130 Hawai#i 196, 307 P.3d 142 (2013), as discussed infra part
III(C)(2).
      16
            This was recognized initially by the prosecutor in this case, who
stated prior to the commencement of trial that it was his understanding that
the court’s instruction on the EMED defense was determined by the evidence
rather than by the defendant: “I don’t know if he [Adviento] can make that
decision [to not assert the EMED defense] if the evidence comes out . . . in
other words, I think it’s the evidence that decides.”


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           In Haanio, this court held that “trial courts shall

instruct juries as to any included offenses17 having a rational

basis in the evidence without regard to whether the prosecution

requests, or the defense objects to, such an instruction.”                Id.

at 407, 16 P.3d at 248.      In so holding, the court rejected the

idea that the defendant or prosecution should be permitted to

forgo included offense instructions for tactical or strategic

reasons.   Id. at 414, 16 P.3d at 255.

           The defendant in Haanio had argued that the trial court

erred in instructing the jury on several lesser included offenses

over his objection and in the absence of the prosecution’s

request.   Id. at 410, 16 P.3d at 251.       In particular, the

defendant argued that “a defendant should be allowed to waive

proposed lesser-included offense instructions and risk conviction

of the charged offense for the chance of obtaining an outright

acquittal.”   Id.



     17
           HRS § 701-109(4) (1993) defines an included offense as follows:

           (4) A defendant may be convicted of an offense included in
           an offense charged in the indictment or the information. An
           offense is so 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; or
           (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.

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            The court, however, recognized that the approach

advocated by the defendant is a “strategy that permits parties in

a criminal trial to forego instructions on provable lesser-

included offenses, thereby forcing the jury to choose between

conviction and acquittal on the greater charge.”            Id. (citation

omitted).    The court rejected acceding to such an “all or

nothing” approach on the basis that it would contravene the most

fundamental objectives of the judicial system, to accurately

assess criminal liability and punishment:

            The judicial objectives within the context of the criminal
            justice system are to assess criminal liability and to
            determine appropriate punishment if and when warranted.
            Acceding to an ‘all or nothing’ strategy, albeit in limited
            circumstances, forecloses the determination of criminal
            liability where it may in fact exist. Thus, elevating a
            ‘winner take all’ approach over such a determination is
            detrimental to the broader interests served by the criminal
            justice system.

Haanio, 94 Hawai#i at 414, 16 P.3d at 255 (emphases added); State

v. Flores, 131 Hawai#i 43, ___, 314 P.3d 120, 128 (2013).

            The Haanio court also noted that it “discern[ed] no

constitutional or substantial right of a defendant not to have

the jury instructed on lesser included offenses.”            Haanio, 94

Hawai#i at 414-15, 16 P.3d at 255-56.         The court explained that

it is the trial court’s duty to properly instruct the jury on

issues of criminal liability, and the jury’s correlative duty is

to “render true verdicts” based on the evidence:

            Rather, in our judicial system, the trial courts, not the
            parties, have the duty and ultimate responsibility to insure
            that juries are properly instructed on issues of criminal

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          liability. Correlatively, juries are obligated to render
          true verdicts based on the facts presented; hence, barring
          their consideration of lesser included offenses supported by
          the evidence undermines their delegated function.

Haanio, 94 Hawai#i at 415, 16 P.3d at 256 (internal citations

omitted) (emphases added); Flores, 131 Hawai#i at ___, 314 P.3d

at 133.

          Most significantly, the court concluded that “an all or

nothing approach impairs the truth seeking function of the

judicial system:

          Our courts are not gambling halls but forums for the
          discovery of truth . . . . A trial court’s failure to inform
          the jury of its option to find the defendant guilty of the
          lesser offense would impair the jury’s truth-ascertainment
          function. Consequently, neither the prosecution nor the
          defense should be allowed, based on their trial strategy, to
          preclude the jury from considering guilt of a lesser offense
          included in the crime charged. To permit this would force
          the jury to make an ‘all or nothing’ choice between
          conviction of the crime charged and complete acquittal,
          thereby denying the jury the opportunity to decide whether
          the defendant is guilty of a lesser included offense
          established by the evidence.

Haanio, 94 Hawai#i at 415, 16 P.3d at 256 (emphases added);

Flores, 131 Hawai#i at ___, 314 P.3d at 133.

          Permitting the defendant to waive an EMED defense that

is raised by the evidence promotes the same “all or nothing”

approach that the Haanio court advocated so strongly against.

The circuit court in this case took Adviento’s purported waiver

of the EMED defense even though the court recognized that the

EMED instruction was warranted (“I would, if requested, instruct

the jury on extreme mental or emotional disturbance in this



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case”).    Adviento, apparently believing that he needed to waive

the EMED defense in order to prevent the admission of the prior

conviction,18 informed the court, “We will go for the self-

defense,” and waived the EMED defense.

            Because of Adviento’s purported waiver, the jury was

not instructed on the mitigating defense of EMED.            As a

consequence, the jury was essentially presented with only two

options: convict Adviento of murder in the second degree, or

acquit him outright based on self-defense.19          By eliciting

Adviento’s waiver of the EMED instruction, Adviento was placed in

a position where he was able to gamble between conviction and

complete acquittal, despite the recognition by the circuit court

that the jury could have found that Adviento acted under the

influence of EMED.      As a consequence, the jury was precluded from

determining “criminal liability where it may in fact [have]

exist[ed].”    Haanio, 94 Hawai#i at 414, 16 P.3d at 255.

      18
            See infra note 24.
      19
            The jury was also instructed on the included offense of reckless
manslaughter. However, the jury could only consider whether Adviento was
guilty of reckless manslaughter if it first found Adviento not guilty of
murder in the second degree, or if it was unable to reach a unanimous verdict
as to that offense. In light of Adviento’s admission that he stabbed Erlinda,
and the evidence showing sixteen stab wounds with several fatal wounds to the
vital organs, it was highly unlikely that the jury would find that Adviento
did not act knowingly and intentionally.
            The EMED instruction, however, would have allowed the jury to
consider whether Adviento acted knowingly and intentionally, but under the
influence of EMED. The EMED defense “has been characterized as voluntary
manslaughter because it involves the intentional or knowing killing of another
while under the influence of a reasonably induced extreme mental or emotional
disturbance causing a temporary loss of normal self-control.” Pinero, 70 Haw.
at 524, 778 P.2d at 714 (internal quotation marks, brackets, ellipses, and
citations omitted).

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          “Juries are obligated to render true verdicts based on

the facts presented” rather than based on the strategic choices

made by the defense or prosecution.        Id. at 415, 16 P.3d at 256.

Thus, just as “barring [the jury’s] consideration of lesser

included offenses supported by the evidence undermines their

delegated function” of determining criminal liability, id.,

barring the jury’s consideration of the EMED defense when it is

supported by the evidence results in the same adverse

consequence.

          On the one hand, in an unsympathetic case, a jury that

is not instructed on the EMED defense is more likely to resolve

any doubt in favor of conviction rather than acquittal.            Cf.

Keeble v. United States, 412 U.S. 205, 212-13 (1993) (requiring

instruction on lesser-included offenses protects defendant from

the danger that “[w]here one of the elements of the offense

charged remains in doubt, but the defendant is plainly guilty of

some offense, the jury is likely to resolve its doubt in favor of

conviction”); Beck v. Alabama, 447 U.S. 625, 642 (1980) (“the

unavailability of the third option of convicting on a lesser

included offense may encourage the jury to convict for an

impermissible reason-its belief that the defendant is guilty of

some serious crime and should be punished”).          On the other hand

in a sympathetic case, the jury may resolve any doubts in favor



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of acquittal despite an insubstantial self-defense claim because

the jury does not want the defendant to be convicted of murder.

Both alternatives “impair the jury’s truth-ascertainment

function,” Haanio, 94 Hawai#i at 415, 16 P.3d at 256 (citation

omitted), by denying the jury the opportunity to accurately

determine the defendant’s criminal liability based on the

evidence that was presented to it.

           Additionally, allowing defendants to waive the EMED

defense when it is raised by the evidence would “unduly

complicate[] the trial court’s ultimate obligation to promote

justice in criminal cases.”      Id. at 414, 16 P.3d at 255 (citing

State v. Kupau, 76 Hawai#i 387, 879 P.2d 492 (1994)).           Prior to

Haanio, this court in Kupau attempted to resolve the issue of the

trial court’s duty to give included offense instructions by

balancing all of the relevant interests of the State and the

defense.   76 Hawai#i at 394-96, 879 P.2d at 499-501.

           Importantly, the Kupau court reasoned that both the

defendant and prosecution may have legitimate interests in

presenting or preventing included offense instructions for

tactical or strategic reasons.       Id. at 394-95, 879 P.2d at 499-

500.

           Thus, “in order to reconcile the competing interests of

the prosecution and defendants,” the Kupau court developed a

complex, multi-layered rule in which the trial judge was required

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to instruct the jury on lesser included offenses supported by the

evidence “unless (1) the prosecution does not request that

included instructions be given and (2) the defendant specifically

objects to the included offense instructions for tactical

reasons.”    Id. at 395-96, 879 P.2d at 500-01.        If this occurred,

then the trial judge was required to “exercise his or her

discretion as to whether the included offense instructions should

be given,” “guided by the nature of the evidence presented during

the trial, as well as the extent to which the defendant appears

to understand the risks involved.”        Id. (footnote omitted)

(emphasis added).

            Seven years later, Kupau was overruled by Haanio

because it “unduly complicated the trial court’s ultimate

obligation to promote justice in criminal cases.”           94 Hawai#i at

414, 16 P.3d at 255.     Justice Levinson, who authored the Kupau

opinion, wrote in Haanio that “[w]ith the benefit of hindsight, I

am now of the view that the roadmap drawn in Kupau . . . is at

best unhelpful, at worst confusing, and probably incompatible

with the proposition that the ultimate responsibility properly to

instruct the jury lies with the circuit court and not with trial

counsel.”    Id. at 420-21, 16 P.3d at 261-62 (Levinson, J.,

concurring).




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            Similar complications to those identified in Haanio

would result if the defense was permitted to waive an EMED

instruction for tactical reasons.

            First, a defendant would only attempt to waive an EMED

instruction when it was perceived to be in the defendant’s favor

to do so.20   Such a defendant would be gambling that the jury is

more likely to acquit him or her entirely of murder or attempted

murder if the jury is precluded from considering the third option

of convicting the defendant of EMED manslaughter.            In such a

situation, the State certainly has an interest in preventing the

waiver in order to give the jury the opportunity to convict the

defendant of manslaughter.       Additionally, the State will always

have an interest in obtaining a true verdict in order to further

justice.

            The trial court would then be required to “steer[]

through the competing interests” of the parties and determine, at

the risk of error, whether or not to give the instruction.              94

Hawai#i at 414, 16 P.3d at 255.       Unless the defendant was given

the absolute right to waive the EMED defense along with the

correlative right to override the prosecution’s “legitimate

interest” in requiring the EMED instruction to be given, a trial

      20
            In this case, the ICA speculated that “Adviento’s trial counsel
could have rationally concluded that a claim of EMED would have detracted from
or conflicted with a claim of self-defense and that Adviento would be better
off relying solely on a claim of self-defense.” 2012 WL 2864226, at *13.


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court’s exercise of discretion in permitting or denying the

waiver would likely be challenged on appeal.21

            Furthermore, if the defendant was given the unilateral

right to waive the EMED defense without regard to the

prosecution’s objections, the defense would essentially be able

to manipulate the jury by adducing evidence of mental or

emotional disturbance for the purpose of inducing doubt or

sympathy and then waiving the EMED instruction in order to put

the jury in an “all or nothing” position.          The State would also

be greatly prejudiced if the evidence of murder or attempted

murder is not as strong as anticipated, and the defense has the

unilateral ability to control whether the jury is instructed on

EMED manslaughter.      Such outcomes are entirely antithetical to

the objectives of the criminal justice system, “to assess

criminal liability and to determine appropriate punishment if and

when warranted,” Haanio, 94 Hawai#i at 414, 16 P.3d at 255.

Thus, permitting the defense to waive the EMED defenses where it

is sufficiently raised by the evidence would undoubtedly

undermine public confidence in the fairness of the judicial

system.


      21
            If the defendant decides to gamble on acquittal and the trial
court accedes to the defendant’s request to waive the EMED instruction and the
defendant is convicted of murder, then the trial court’s decision to permit
the waiver would almost certainly be challenged on appeal. Conversely, if the
trial court denies the defendant’s request to waive the EMED instruction and
the defendant is convicted of EMED manslaughter, the trial court’s decision
would also be subject to challenge.

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            Second, as the Kupau court indicated, 76 Hawai#i at

396, 879 P.2d at 501 (“trial judge’s discretion should be guided

by . . . the extent to which the defendant appears to understand

the risks involved”), the trial court’s obligation to properly

instruct the jury on the applicable law would be further

complicated by permitting the defendant to waive an EMED

instruction, as the court would be required to determine whether

the defendant’s waiver was valid.          As with any situation in which

the defendant is relinquishing a known right, the defendant’s

waiver of the EMED defense would have to be “knowing,

intelligent, and voluntary.”        State v. Friedman, 93 Hawai#i 63,

68, 996 P.2d 268, 273 (2000).        Thus, permitting the defendant’s

waiver would raise additional concerns over the trial court’s

waiver colloquy with a defendant.22

            The difficulty in determining whether a defendant’s

waiver of the EMED defense was knowing, intelligent, and

voluntary is exemplified by the record in this case, where

Adviento appeared to waive the defense based on his understanding

that he was required to do so in order to prevent his prior

      22
            For example, in this case the court did not inform Adviento that
as an affirmative defense, the defense need only prove EMED by a preponderance
of the evidence, and if the jury was not unanimous as to whether EMED was
proved or not proved, then a verdict could not be returned upon the murder
charge. See Hawai#i Standard Jury Instructions Criminal (HAWJIC) 9.08 (“If
you are unable to reach a unanimous agreement as to whether the prosecution
has proved, or failed to prove, that the defendant was not under the influence
of extreme mental or emotional disturbance, then your decision is not
unanimous and a verdict may not be returned on this offense.”).


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assault conviction from being admitted by the State on rebuttal,23

and appeared uncertain of his waiver even after the court engaged

him in a colloquy.24

            Relatedly, permitting defendants to waive the EMED

defense may also lead to ineffective assistance of counsel claims

based on defense counsel’s advice regarding the waiver.             In this

case, Adviento argued to the ICA that his trial counsel provided

ineffective assistance in advising him to waive the EMED defense.

2012 WL 2864226, at *16.       The ICA held that Adviento failed to

meet his burden of proving ineffective assistance, but did not

      23
            Following the court’s initial limine ruling to defer its decision
on the admissibility of the prior assault conviction, defense counsel informed
the court that he and Adviento had “discussed the Court’s pretrial rulings,
defense and the type of evidence and things of that nature,” and that based on
Adviento’s decision, the defense would not be asserting the EMED defense.
            After Adviento’s purported “waiver” of the EMED defense, the court
stated, “So that the Court’s ruling as to the other incidents, violence
perhaps in [the] relationship will not be allowed.”
            The dissent acknowledges that Adviento’s “waiver of the EMED
instruction may have been partially motivated by his desire to prevent his
prior conviction from coming into evidence.” Dissent at 30. However, the
dissent argues that the connection between the waiver and the admissibility of
the prior conviction has no effect on the validity of the waiver, as evidence
of the prior conviction “may have been partially admissible to rebut an EMED
defense based on the Advientos’ relationship.” Id. at 30-33. This argument
appears contrary to the dissent’s position that there was no evidence
supporting the EMED instruction. Id. at 4-8.
            If there was no evidence to support an EMED defense, then the
prior conviction should not have been admissible to rebut a non-existent
defense. If the prior conviction was admissible because there was sufficient
evidence raising the EMED defense, then the defense should not be permitted to
manipulate the process by adducing evidence of EMED in the first instance and
then waiving the EMED instruction in order to force the jury into making an
all or nothing decision.
      24
            Although the circuit court engaged Adviento in a colloquy
regarding his waiver of the EMED defense, the prosecutor questioned whether
Adviento needed more time to think about the matter. Despite Adviento’s
responses to the colloquy, in which he indicated that he understood that he
was waiving the EMED defense, when the court asked whether he needed more time
to think about the waiver, he responded affirmatively and also explained, “I
wasn’t expecting this.”

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preclude Adviento from raising the same claim in a HRPP Rule 40

proceeding because the record “[did] not reflect the particular

advice trial counsel gave to Adviento or the reasons for

counsel’s advice.”      Id.

            The complexities that arise from permitting the

defendant to waive the EMED instruction in a jury trial can be

contrasted to the parallel situation in a jury-waived trial.                 In

a jury-waived trial, the trial court would be cognizant of the

EMED defense and factor the defense into its consideration in

reaching its verdict.      If a defendant in a jury-waived trial had

the right to waive the EMED instruction, the trial judge would

effectively be compelled to not consider a defense that is

applicable based on the evidence presented.           Thus the trial judge

would be forced to reach an “untrue” verdict not based on the

facts but instead dictated by the defendant’s trial strategy.

Our courts are a forum for justice and truth-seeking; thus a

defendant should not be entitled to compel a judge to not

consider the law that is applicable to the evidence presented at

trial.25   Similarly, a defendant should not be permitted to keep
      25
            The dissent contends that the defendant’s ability to waive an EMED
defense in a bench trial does not result in untrue verdicts because judges in
bench trials “routinely receive incompetent evidence or evidence that is
admissible for only a limited purpose,” or “have knowledge of statutory
violations, other than those with which the defendant was charged,” and are
precluded from considering such evidence or facts in rendering a verdict.
Dissent at 25.
            However, the court’s consideration of an EMED defense that is
raised by the evidence is quite different from the court’s unavoidable
knowledge of facts such as inadmissible evidence or uncharged offenses. In
                                                                (continued...)

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the jury from considering the EMED defense by waiving a jury

instruction.

             A requirement that a trial court is to instruct the

jury on the EMED defense when it is raised by the evidence,

notwithstanding a defendant’s stated intention to force the jury

to make an “all or nothing” decision, eliminates unnecessary

complications and insures that trial courts fulfill their

ultimate obligation to properly instruct the jury on the

applicable law and that juries satisfy their correlative duty to

render “true verdicts” based on the evidence that is presented at

trial.     Haanio, 94 Hawai#i at 415, 16 P.3d at 256.

                                     C.

             The State’s arguments against requiring the EMED

instruction when the defense is raised by the evidence and in

favor of permitting the defendant’s waiver of the EMED defense

essentially involves two related contentions: 1) that jury

      25
       (...continued)
the latter situation, the court is barred by the law from considering such
evidence or offenses, and it is presumed that the court follows such law. In
a situation where the EMED defense is raised by the evidence, pursuant to our
case law, the court is required by the law to consider the EMED defense in
determining the defendant’s penal liability, and it is the defendant’s
attempted waiver of such consideration that is contrary to our precedent.
Thus, in a bench trial where the defendant is permitted to waive the court’s
consideration of the EMED defense that is validly raised by the evidence, the
court’s decision would result in an untrue verdict.
            Furthermore, preventing the defendant from waiving an EMED defense
that is raised by the evidence does not result in the court asserting a
defense on behalf of the defendant. Jury instructions are given based on the
facts and the applicable law. State v. Locquiao, 100 Hawai#i 195, 205, 58
P.3d 1242, 1252 (2002). Conforming to that mandate does not result in the
court asserting a defense on behalf of the defendant.


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instructions on lesser-included offenses are distinct from

instructions on the EMED defense, such that the latter type of

instructions may be waived at the option of the defendant; and 2)

that requiring jury instructions when the evidence raises the

EMED defense will confuse the jury or harm the defendant’s

ability to control his or her trial strategy.          Both contentions

are without merit.

                                    1.

           First, the State argues that the Haanio rationale for

requiring the trial court to instruct the jury on lesser-included

offenses is inapplicable to the facts of this case because

“[t]his case involves [the] distinctly different question . . .

[of] whether a trial court must include an instruction on a

defense that the defendant has personally waived and upon which

the defendant indicates he or she would not rely.”

           However, the State’s suggestion that the Haanio

rationale for requiring jury instructions should be disregarded

due to the distinction between lesser-included offenses and the

EMED defense misapprehends the distinct nature of the EMED

defense.   “[EMED] [m]anslaughter is not a true defense within the

meaning of the Hawai#i Penal Code.”       State v. Miyahira, 6 Haw.

App. 320, 322 n.1, 721 P.2d 718, 720 n.1 (1986), overruled on




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other grounds by Pinero, 70 Haw. 509, 778 P.2d 704.26 As stated,

“[EMED] is really a mitigating factor.          Intentionally killing

while under the influence of extreme emotional disturbance does

not present a true ‘defense,’ for the punishment is merely

reduced through the mechanism of denominating the crime as

‘manslaughter’ rather than ‘murder’.”         Dumlao, 6 Haw. App. at 165

n.2, 715 P.2d at 825 n.2 (emphasis added).          Cf. State v.

Faulkner, 483 A.2d 759 (Md. Ct. App. 1984) (distinguishing

between self-defense, a “complete defense to either murder or

manslaughter” that “results in the acquittal of the defendant,”

and imperfect self defense, which “is not a complete defense” and

“does not completely exonerate the defendant, but mitigates

murder to voluntary manslaughter”); People v. Anderson, 285 Cal.

Rptr. 523, 534 (Ct. App. 1991) (recognizing “critical distinction

between a factor in mitigation which negates malice, thereby

resulting in conviction of a lesser crime, and a complete defense

negating intent which would result in acquittal”).            The

mitigating EMED defense is analogous to the mitigating defense of

mutual affray addressed in Kikuta, in which the court held that a

jury instruction on the mitigating defense of mutual affray “must

be given along with an instruction on Assault in the Third Degree


      26
            The Pinero court overruled Miyahira to the extent that the case
was inconsistent with its holding that the trial court erred by combining the
jury instruction on the lesser-included offense of reckless manslaughter and
the EMED defense and “fail[ing] to fully explain the significance” of the EMED
defense. 70 Haw. at 524-25, 525 n.9, 778 P.2d at 714-15, 715 n.9.

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. . . if there is any evidence” supporting the instruction.              125

Hawai#i at 81, 253 P.3d at 642.

            Because a successful EMED defense results in conviction

for the offense of manslaughter, the outcome is similar to a

conviction for a lesser-included offense.          Additionally, this

court’s plain error review of a trial court’s failure to give the

EMED instruction indicates that the court has treated the EMED

defense similar to a lesser included offense in determining

whether there was the requisite amount of evidence to support the

instruction.    See Sawyer, 88 Hawai#i 325, 966 P.2d 637; Moore, 82

Hawai#i 202, 921 P.2d 122; Pinero, 70 Haw. 509, 778 P.2d 704;

Aganon, 97 Hawai#i 299, 36 P.3d 1269.

            The unique nature of the mitigating defense as opposed

to a “true defense” warrants the application of the Haanio

rationale for requiring jury instructions based on the evidence

rather than pursuant to the parties’ strategic decisions.27 In
      27
            The dissent argues that while “the trial court’s duty to instruct
on lesser included offenses outweighs any interest the defendant might have in
waiving such an instruction, the balancing of these interests is fundamentally
different for jury instructions regarding defenses” because trial courts are
statutorily mandated to instruct the jury on lesser included offenses but not
on defenses. Dissent at 18.
            HRS § 701-109(5) governing lesser included offenses provides that
the “court is not obligated to charge the jury with respect to an included
offense unless 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.” The statute does not mandate, or address, giving
the instruction when it is not requested by either the prosecution or defense.
In Kupau, which interpreted the same statute as Haanio, the court did not
require instructions on lesser-included offenses, but instead gave the trial
court discretion to determine whether the instruction should be given when the
prosecution did not request the instruction and the defense specifically
objected to the instruction for tactical reasons. 76 Hawai#i at 395-96, 879
                                                                (continued...)

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order to insure that the trial court fulfills its ultimate

obligation to properly instruct the jury on the law and the jury

meets its duty to “render true verdicts based on the facts

presented,” the trial court is required to instruct the jury on

the EMED defense notwithstanding a defendant’s “waiver.”             94

Hawai#i at 414, 16 P.3d at 255.
                                     2.

           Second, the State argues that requiring the trial court

to instruct the jury on the EMED defense even when it is raised

by the evidence is harmful to the defendant’s right to control

trial strategy and would additionally be confusing to the jury.

Haanio addressed and rejected the notion that the defense or

prosecution is entitled to forgo an instruction for strategic

reasons.

           Nevertheless, in support of its argument, the State

cites State v. Cabagbag, 127 Hawai#i 302, 277 P.3d 1034 (2012),

in which the court held that juries are required to be instructed

on the reliability of eye witness identifications whenever such


     27
       (...continued)
P.2d at 500-01.
            As stated, Haanio overruled Kupau and held that trial courts must
instruct juries on included offenses when there is a rational basis in the
evidence supporting the instruction, “despite any objection by the defense,
and even in the absence of a request from the prosecution.” 94 Hawai#i at
414, 16 P.3d at 255. The Haanio court did not justify its decision based on
the language of HRS § 701-109(5). Rather, the critical basis for the decision
was the recognition that “trial courts, not the parties, have the duty and
ultimate responsibility to insure that juries are properly instructed on
issues of criminal liability.” 94 Hawai#i at 415, 16 P.3d at 256.
Accordingly, the language of HRS § 701-109 as compared to HRS § 707-702(2) is
not relevant to our analysis.

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instruction was requested by the defendant.           The court declined

to require the instruction where the defendant did not request

it, reasoning that “a defendant may legitimately conclude, as a

matter of trial strategy, that the instruction is not necessary

or appropriate in a given case.”28 127 Hawai#i at 315-16, 277

P.3d at 1040-41.

            The Cabagbag court, however, expressly stated that the

jury instruction on eyewitness identification “is different from

other jury instructions that this court has held trial courts are

required to give sua sponte when there is support in the record,”

because the identification instruction “does not articulate a

type of defense.”     Id. at 315 n.23, 277 P.3d at 1040 n.23.           The

court declined to apply the Haanio principles in that case

because “the absence of an eyewitness jury instruction does not

result in an ‘all or nothing’ approach” between conviction and

acquittal.29   Id. at 315 n.24, 277 P.3d at 1040 n.24.          In this

case, on the other hand, the EMED instruction does articulate a

      28
             The dissent to Part II of Cabagbag stated that eyewitness jury
instructions should be required “whenever eyewitness identification testimony
is critical to the case,” even in the absence of a request by a defendant.
127 Hawai#i at 319, 277 P.3d at 1044 (Acoba, J., dissenting).
             The dissent stated that the cautionary instruction on eyewitness
identification “is one of those instances . . . in which the public interest
in ensuring fair outcomes outweighs the interest of any particular defendant
in obtaining a tactical advantage at trial.” Id. at 320, 277 P.3d at 1045
(Acoba, J., dissenting).
      29
            The dissent stated that the cautionary instruction on eyewitness
identification “is one of those instances . . . in which the public interest
in ensuring fair outcomes outweighs the interest of any particular defendant
in obtaining a tactical advantage at trial.” Id. at 320, 277 P.3d at 1045
(Acoba, J., dissenting).

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mitigating defense, and the absence of a jury instruction on the

EMED defense does result in an “all or nothing” approach that may

force the jury to choose between convicting the defendant for

murder or attempted murder or acquitting the defendant

altogether, despite evidence that could lead the jury to conclude

that the defendant acted under the influence of EMED.

          The State also argues that the Pinero court expressly

limited the trial court’s duty to instruct the jury on every

defense having any support in the evidence to situations where

the instruction was requested.       However, the Pinero court’s

holding was that “self-defense instructions requested by the

prosecution should be given unless the defendant objects to the

giving of the instructions on the basis that the record does not

reflect any evidence on [the] issue and the trial court agrees

with the defendant[.]”     75 Haw. at 304-05, 859 P.2d at 1380.

This is consistent with requiring the trial court to instruct the

jury on the EMED defense only when it is raised by the evidence,

as established by the court in Sawyer, Warner, and Moore.

          Additionally, the Pinero court specifically stated that

it “need not reach the issue of whether a trial court is required

to provide self-defense instructions, sua sponte, whenever

supported by the evidence.”      75 Haw. at 305 n.13, 859 P.2d at

1380 n.13.   Subsequently, in Kikuta, a case involving a

mitigating defense, this court held that the trial court must sua

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sponte instruct the jury on the mitigating defense of mutual

affray “where there is any evidence in the record” that the

defense applied.    125 Hawai#i at 96, 253 P.3d at 657.

          The State also cites this court’s decision in State v.

Taylor, 130 Hawai#i 196, 307 P.3d 142 (2013) in support of its

argument that the circuit court did not err by not instructing

the jury on the EMED defense.       However, this court’s decision in

Taylor is consistent with the requirement that the trial court

must sua sponte instruct the jury on the affirmative, mitigating

EMED defense whenever it is sufficiently raised by the evidence.

In Taylor, the court held that “in the case of an unrequested

mistake of fact jury instruction denominated as error for the

first time on appeal,” “the defendant must have come forward at

trial with credible evidence of facts constituting the defense,

unless those facts were supplied by the prosecution’s witnesses.”

Id. at 207, 307 P.3d at 1153.

          The mistake of fact defense addressed in Taylor is

defined by HRS § 702-218 as follows:

          In any prosecution for an offense, it is a defense that the
          accused engaged in the prohibited conduct under ignorance or
          mistake of fact if: (1) The ignorance or mistake negatives
          the state of mind required to establish an element of the
          offense; or (2) The law defining the offense or a law
          related thereto provides that the state of mind established
          by such ignorance or mistake constitutes a defense.

(Emphasis added).




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           The mistake of fact defense, which is a non-affirmative

defense, see HRS § 701-115(3), is based upon the defendant’s

ignorance or mistake that “is capable of negativing the state of

mind required to establish an element of the offense.”            Taylor,

130 Hawai#i at 207, 307 P.3d at 1153 (quotation marks and

brackets omitted).    However, pursuant to HRS § 704-114(1)(b), the

State is already required to prove “[t]he state of mind required

to establish each element of the offense” beyond a reasonable

doubt.

           Accordingly, to the extent that a mistake of fact

instruction may overlap with the court’s general instruction on

the State’s burden in proving the requisite state of mind of an

offense, there is certainly a concern that “weak, inconclusive,

or unsatisfactory evidence” of the mistake of fact defense would

not always be “‘apparent’ to the trial court in a bench or jury

trial” if the defendant does not request an instruction on the

defense.   See Taylor, 130 Hawai#i at 207 n.12, 307 P.3d at 1153

n.12 (“Absent such a request, due to its nature, weak,

inconclusive, or unsatisfactory evidence relevant to an unstated

defense may not necessarily take on any apparent significance

during trial.”).

           On the contrary, the EMED defense is an affirmative,

mitigating defense that is specific to prosecutions for murder or

attempted murder.    HRS § 707-702(2).      In such prosecutions, EMED

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is far from “some nebulous, barely glimpsed theory on the

margins.”    See Stenger, 122 Hawai#i at 297, 226 P.3d at 467 (Kim,

J., concurring) (the fear that requiring a mistake of fact

instruction in Stenger would thereafter burden trial courts with

responsibility “for combing through the entire body of evidence

in search of every possible defense theory,” was unwarranted, as

“the theory at issue formed the very heart of the defense case,

rather than some nebulous, barely glimpsed theory on the

margins”).    Rather, trial courts in all murder and attempted

murder prosecutions would be aware of the potential of an EMED

defense and would therefore not be burdened with remaining

constantly vigilant for an obscure or marginal theory of defense.

            Additionally, the EMED defense does not negate the

state of mind required to establish murder or attempted murder;

rather, the defense, if proven, mitigates the offense from murder

to manslaughter.    Thus, even absent a request for the EMED

instruction, there is almost no likelihood that the trial court

would overlook the EMED defense on the basis that the court’s

general instructions regarding the State’s burden of proof upon

an offense would be sufficient to address the EMED defense.

            Moreover, in a situation where the defendant is

attempting to waive the EMED defense, the trial court’s attention

would unquestionably be drawn to the applicability of the defense



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and the evidence supporting the defense.30 Thus, the Taylor

decision and the distinction made between requested and

unrequested instructions in that case is not applicable here.

                                     3.

            Finally, the State argues that “foisting an EMED

defense on [Adviento] could have prejudiced him by compromising

the credibility of his chosen defense of self-defense, inasmuch

as the defenses are not necessarily complimentary [sic].”

            However, the EMED defense is not inherently

contradictory with a theory of self-defense.           It is not difficult

to conceive of a situation in which “elements of manslaughter are

present to at least some degree in cases where self-defense is

[also] reflected in the evidence.”         State v. Warner, 58 Haw. 492,

498-99, 573 P.2d 959, 963 (1977), overruled on other grounds by

Sawyer, 88 Hawai#i 325, 966 P.2d 637.31 “Simply put, actions

taken in self-defense may indeed be committed while the defendant

is subject to a certain degree of terror, resentment, rage or
      30
            The dissent makes the following assertion: “The majority contends
that the holding in Taylor is not applicable here because Taylor concerned a
non-affirmative complete defense whereas this case concerns an affirmative
defense.” Dissent at 11. We do not make this contention, and we do not hold
that Taylor applies only to a non-affirmative complete defense. Instead,
unlike the circumstances in Taylor, the EMED instruction in this case was
brought to the attention of the court, and the judge specifically found
sufficient evidence to support the giving of the instruction to the jury.
      31
            In Warner, the court held that subject to a very limited
exception, “in all murder prosecutions . . . where the evidence necessitates
an instruction on self-defense, the trial court shall also give instructions
to the jury on the charge of manslaughter,” regardless of whether the
defendant requested such instructions. Id. at 500, 573 P.2d at 964. The
court in Sawyer overruled this blanket rule and held that “justice demands a
case-by-case analysis.” 88 Hawai#i at 333-34, 966 P.2d at 645-46.

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anger which in turn may be of sufficient magnitude to constitute

the ‘extreme mental or emotional disturbance’ which would reduce

murder to manslaughter.”       Warner, 58 Haw. at 498-99, 573 P.2d at

963 (footnote omitted).

            Moreover, this court has recognized that the

“applicable test” for giving jury instructions “is one of a

presence or an absence of evidentiary support for a defense, not

one of a consistency of defenses.”          State v. Lira, 70 Haw. 23,

29, 759 P.2d 869, 873 (1988).        See State v. Irvin, 53 Haw. 119,

120, 488 P.2d 327, 328 (1971) (trial court’s refusal to give self

defense instruction was reversible error where defendant’s

testimony “fairly raised the issue of self defense,” even though

“[d]efendant’s theory at the trial was that the killing was

accidental, not that it was done in self defense”).

            Consistent with this recognition, this court has

expressly rejected the argument that the defendant’s reliance on

a theory of self-defense constitutes a bar to the presentation of

the EMED defense to the jury.32       Warner, 58 Haw. at 498-99, 573
      32
            Our decision in State v. Metcalfe, 129 Hawai#i 206, 297 P.3d 1062
(2013) is not inconsistent with this position. In Metcalfe, the court held
that the circuit court did not plainly err in failing to sua sponte instruct
the jury on the defense of property “because there was no evidence that the
charged offense was committed to defend Metcalfe’s property.” Id. at 234, 297
P.3d 1090 (emphasis added). Because the record was devoid of any evidence
supporting the defense, “a defense of property instruction would have been
contrary to the defense’s theory of the case, i.e. that Metcalfe fired the
shotgun at [the victim] in self-defense[,]” and “inclusion of a defense of
property instruction . . . could have misled or confused the jury[.]” Id.
            Clearly, if no evidence is presented during trial supporting a
defense, then an instruction on the defense should not be presented to the
jury. The trial court is only obligated to instruct the jury on the EMED
                                                                 (continued...)

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P.2d at 963.        In Warner, the defendant was found guilty of

murder33       for an incident in which he shot the decedent at close

range with a revolver.        Id. at 493, 573 P.2d at 960.       The

defendant and the decedent had been friends at one point, but

“considerable friction” arose after they both became romantically

involved with the same woman.        Id. at 493-94, 573 P.2d at 960-61.

Although the defendant maintained that he shot the victim in

self-defense, “he also testified that he felt ‘frustrated’ and

‘was under a lot of strain and a lot of stress’ at the time of

the shooting.”        Id. at 493, 573 P.2d at 960.      He testified that

his strain “stemmed in part from his concern over finding another

place to live, as well as the manner in which he, [the decedent,

and the woman] had been quarrelling[.]”             Id. at 495, 573 P.2d at

961.        At the same time, defendant on cross-examination “denied

having been angry or upset with [the decedent] when he shot him,”

id. at 498, 573 P.2d at 963, and testified that prior to the

shooting, the decedent confronted and threatened him, then came

towards him and “started to swing” at him.            Id. at 494-95, 573

P.2d at 961.        The defendant testified that he “panicked” and shot

the decedent.        Id. at 495, 573 P.2d at 971.


      32
        (...continued)
defense if the defense is raised by the evidence.
       33
            When the Warner case was decided in 1977, there were no degrees of
murder in Hawai#i. 58 Haw. at 493 n.1, 573 P.2d at 960 n.1. The offense of
murder was defined as intentionally or knowingly causing the death of another
person. Id.

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          The court held that the defendant’s testimony raised

the issue of whether he had been under the influence of EMED at

the time he shot the decedent and that the trial court was

therefore bound to give the defendant’s requested instructions on

EMED manslaughter.    Id. at 497-99, 573 P.2d at 963.         The court

found that “while it is true that [defendant] relied mainly on a

theory of self-defense at trial, this constituted no bar to the

presentation to the jury of instructions on the theory of

manslaughter.”    Id. at 498-99, 573 P.2d at 963.        The court

continued, “So long as the testimony fairly raises the issue of

manslaughter, it is irrelevant that that issue was not explicitly

offered as a defense theory during the trial.”          Id. at 499, 573

P.2d at 963.   The court held that the trial court erred in

refusing to give the defendant’s requested instructions on EMED

and reversed and remanded for a new trial.         Id. at 493, 573 P.2d

at 960.

          Thus, the defendant’s reliance on a theory of self-

defense does not affect the trial court’s obligation to instruct

the jury on the EMED defense when it is raised by the evidence.

          Furthermore, requiring the trial court to instruct the

jury on the EMED defense when it is raised by the evidence does

not detract from the defendant’s ability to advocate a particular

theory of defense.    Defense counsel, for example, has exclusive

discretion to determine whether to argue the EMED defense during

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closing argument.     Jury instructions are issued by the court;

they are the court’s instructions on the law rather than

instructions of the State or the prosecution.34          Thus, the State’s

suggestion that an EMED instruction would prejudice the defendant

by compromising the credibility of his theory of defense is based

on a fundamentally erroneous premise that confuses trial strategy

with the court’s duty to the jury.

            Thus, the trial court has a duty to instruct the jury

on the defense of EMED if the record reflects “any evidence”

supporting the defense, notwithstanding the defendant’s trial

strategy or theory of the case.

                                    3.

            In this case, it is clear that the evidence raised the

issue of whether Adviento acted under the influence of EMED.

            As stated, EMED “reduces the offense to manslaughter or

attempted manslaughter,” if “the defendant was, at the time the

defendant caused the death of the other person, under the

influence of extreme mental or emotional disturbance for which

there is a reasonable explanation.”         HRS § 707-702(2).      The trial

court is obligated to provide an EMED instruction if the “record

reflects any evidence of a subjective nature that the defendant


      34
            See HAWJIC 1.01 (2009) (“As the judge in this case, I have three
main duties: . . .(3) I will instruct you on the law that you must apply in
this case.”); HAWJIC 3.01 (2009) (“I will now instruct you on the law that you
must follow in reaching your verdict”); HRE Rule 1102 (1980) (“The court shall
instruct the jury regarding the law applicable to the facts of the case[.]”).

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acted under a loss of self-control resulting from [EMED].”

Aganon, 97 Hawai#i at 304, 36 P.3d at 1274.         The court views “the

evidence . . . in a light most favorable to the appellant in

determining whether or not the instruction should [have been]

given.”   State v. O’Daniel, 62 Haw. 518, 528, 616 P.2d 1383,

1390-91 (1980).

           A defendant asserting the EMED defense is not required

to “show he or she has been exposed to ‘an extremely unusual and

overwhelming stress.’”     State v. Seguritan, 70 Haw. 173, 174, 766

P.2d 128, 129 (1988).     “On the contrary, the statute focuses . .

. on the defendant’s reaction to the stress, and requires only

that the defendant be under the influence of extreme mental or

emotional disturbance for which there is ‘a reasonable

explanation.’”    Id. (emphasis added).      “The disturbance was meant

to be understood in relative terms as referring to a loss of

self-control due to intense feelings.”         State v. Matias, 74 Haw.

197, 205, 840 P.2d 374, 378 (1992) (quoting Dumlao, 6 Haw. App.

at 180, 715 P.2d at 828).

           In Warner, the court applied the “any evidence”

standard and held that the trial court erred in refusing to give

the defendant’s requested EMED instruction, where there was

evidence that “considerable friction” had developed between the

defendant and the decedent after they both became romantically

involved with the same woman, and the defendant “testified that



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he felt ‘frustrated’ and ‘was under a lot of strain and a lot of

stress’ at the time of the shooting.”        58 Haw. at 493-94, 573

P.2d at 960-61.    Additionally, the defendant testified that the

three parties had several arguments on the night of the shooting,

the decedent refused to permit him to take his belongings out of

the shared apartment, and that at the moment he shot the

decedent, his “thoughts went to why, after all the financial

support” he had given the other parties, “they would do this to

me” and prevent him from taking his belongings.          Id. at 493-95,

573 P.2d at 960-61.     The Warner court considered this testimony

and found that it “depict[ed] the circumstances which may have

contributed to a disturbed state of mind on the part of [the

defendant].”   Id. at 498, 573 P.2d at 963.

          In this case, the evidence indicates that Adviento may

have been under significant strain and stress at the time he

caused Erlinda’s death, particularly due to the problems he and

Erlinda were experiencing.      The evidence showed that Erlinda had

a close relationship with her co-worker, Merced and that Erlinda

was actively seeking a divorce from Adviento.          Adviento testified

that he thought Erlinda may have been “fooling around.”            Three

weeks prior to Erlinda’s death, Erlinda accused Adviento of

“having an affair and womanizing in the Philippines.”

          On the day of Erlinda’s death, Adviento testified that

he overheard Erlinda speaking on the phone and saying,



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“[S]weetheart, will it be okay if I don’t have any present to

you?”      Adviento testified that he felt “[f]rustrated” when he

heard this.      Adviento told Erlinda, “you told me that I was the

one making relationship in the Philippines, while the truth is

you were the one having a boyfriend here.”            Adviento testified

that he and Erlinda began “arguing back and forth,” that he was

mad, and Erlinda was also “very mad.”

              Adviento’s testimony that he and Erlinda were arguing

prior to her death was corroborated by Merced and Officer Sooto.

Merced testified that he was talking to Erlinda on the phone when

they were interrupted by “someone’s banging the door.”                  He heard

Adviento accuse Erlinda of having a boyfriend.             Merced told

police that Adviento was “screaming mad.”            In addition, Officer

Sooto testified that when he responded to Villaver’s 911 call and

arrived at the Adviento residence, Villaver told him that “there

was an argument going on for several hours” prior to her call.35

              Finally, Adviento testified as to his state of mind

when he stabbed Erlinda.         He testified that he was “surprised”

after Erlinda first stabbed him in the stomach.             When he began

stabbing Erlinda, he described his mindset as, “I was afraid of

my life.      I thought I was going to die.        I got plenty blood.”        He

said that he kept stabbing her, “I don’t know how many times.                  I

don’t know where . . . . I just kind of afraid that I would die.”


      35
              Villaver denied making this statement to Officer Sooto.    See supra
note 6.

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After Erlinda stopped moving, Adviento testified that he stood up

and looked at her, not knowing “if she’s unconscious or if she’s

dead.”    He testified to feeling “shocked.”

            The medical examiner also testified that excluding the

defensive wounds Erlinda sustained on her hands, Erlinda had a

total of seventeen wounds on her body, including sixteen stab

wounds.

            Thus, similar to Warner, there was testimony of the

“circumstances which may have contributed to a disturbed state of

mind,” including a strained relationship and an argument

precipitating the incident.

            This case is distinguished from cases in which the

court has held that an EMED instruction is not warranted where

there was no evidence of the defendant’s subjective loss of self-

control during the alleged crime.         See Aganon, 97 Hawai#i at 304,

36 P.3d at 1274 (in murder prosecution, defendant provided only

“generalized testimony that she sometimes loses her temper in

stressful situations” and “did not testify that she was acting

under any mental or emotional disturbance with respect to the

offense in question”); Moore, 82 Hawai#i at 210-11, 921 P.2d at

130-31 (police officers testified that defendant was “agitated”

and “nervous” at the time of his arrest, but there was no

evidence of the defendant’s “internal situation” at the time he

shot the complainant because neither the complainant nor the



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defendant testified, and they were the “[o]nly two people [who]

had any knowledge of [the defendant’s] state of mind at the time

he fired the shots”).

          In this case, both Adviento and Merced testified to

Adviento’s “internal situation,” Moore, 82 Hawai#i at 210-11, 921

P.2d at 130-31, just prior to and during the incident.            Thus,

considered in its entirety and in a light most favorable to

Adviento, the evidence clearly satisfied the “any evidence”

standard and warranted an EMED instruction.          The circuit court

reached the same conclusion and informed Adviento that he would,

if requested, instruct the jury on the EMED defense (“Let me just

tell you that I would, if requested, instruct the jury on [EMED]

in this case”).

          “It was the jury’s province to determine the weight and

credibility” of any evidence supporting Adviento’s EMED defense.

Dumlao, 6 Haw. App. at 186, 715 P.2d at 832.          See State v.

Kinnane, 79 Hawai#i 46, 52, 54, 897 P.2d 973, 979, 981 (1995)

(jury could rationally have believed the complainant’s testimony

in its entirety or in part).      The trial court’s duty is to give

the EMED instruction if there is “any evidence” supporting the

instruction.

          Given that the evidence sufficiently raised the issue

of EMED, the circuit court was required to instruct the jury on

the defense notwithstanding that a “waiver” of the instruction



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was elicited from Adviento.36        Thus, the circuit court’s failure

to instruct the jury on the EMED defense constituted plain error.

See Sawyer, 88 Hawai#i at 333, 966 P.2d at 645; Moore, 82 Hawai#i

at 209-10, 921 P.2d at 129-30; Aganon, 97 Hawai#i at 302, 36 P.3d

at 1272.    Adviento’s conviction must be vacated inasmuch as there

is a reasonable possibility that the error contributed to his

conviction.37    See Kikuta, 125 Hawai#i at 97, 253 P.3d at 658

(“Inasmuch as it is the duty of

             the trial court to properly instruct the jury, the

judgment of conviction must be vacated . . . because there is a

reasonable possibility that the error contributed to [the]

conviction.”).




      36
            Our holding is limited in application to the EMED defense under
HRS § 707-702(2).
      37
            In light of our disposition on this issue, we need not address the
remaining question of whether the ICA gravely erred in holding that Adviento
was not entitled to any relief based on the manner in which the circuit court
handled the issue of the admissibility of his prior assault conviction.
Accordingly, we need not decide whether the circuit court actually ruled on
the admissibility of the prior conviction or caused Adviento to forgo the EMED
instruction in order to prevent the prior conviction from being admitted.
            We note however that during the in limine hearing the State
indicated that it intended to introduce evidence of the prior assault
conviction through the testimony of the fingerprint examiner. The ICA
indicated its belief that the circuit court would not have admitted the prior
conviction if Adviento sought to raise an EMED defense based on the theory
that “he was shocked by his wife’s attempt to kill him when he was confronting
her about ‘her lies and her affair.’” 2012 WL 2864226, at *12.
            In a situation where evidence of the defendant’s prior conviction
(as opposed to evidence of the underlying act) is admitted, it has been
suggested that the proper course is for the State on cross-examination to
“elicit[] the name of the crime, the date, place, and fact of the
conviction[.]” ADDISON M. BOWMAN, HAWAII RULES OF EVIDENCE MANUAL 6-46 (2012-2013
ed.). If the witness admits the conviction, then “impeachment is complete and
extrinsic evidence is redundant and unnecessary.” Id.



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                                    IV.

          Based on the foregoing, we vacate the ICA’s Judgment on

Appeal and the circuit court’s Judgment, and remand the case for

a new trial consistent with this opinion.

Summer M.M. Kupau                      /s/ Sabrina S. McKenna
for petitioner
                                       /s/ Richard W. Pollack
Donn Fudo
for respondent




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