emed defense in Hawaii

2025"It is insufficient for a criminal defendant merely to allege that he or she was experiencing emotional distress at the time of the charged offense. . . . [T]he mitigating EMED defense focuses on the defendant's reaction to the stress, [that is], on whether the defendant's reason was overborne." State v. Perez, 90 Hawai#i 65, 74, 976 P.2d 379, 388 (1999) (cleaned up).

2024"It is insufficient for a criminal defendant merely to allege that he or she was experiencing emotional distress at the time of the charged offense." State v. Perez, 90 Hawai#i 65, 74, 976 P.2d 379, 388 (1999). "[T]he mitigating EMED defense focuses on the defendant's reaction to the stress, i.e., on whether the defendant's reason was overborne." Id. (cleaned up).

2022See State v. Aganon, 97 Hawai#i 299, 304, 36 P.3d 1269, 1274 (2001) (holding that trial court did not plainly err in declining to give an EMED instruction where defendant only presented "generalized testimony that she sometimes loses her temper in stressful situations" and that the decedent infant "could cry a lot").

2022See State v. Aganon, 97 Hawai#i 299, 304, 36 P.3d 1269, 1274 (2001) (holding that trial court did not plainly err in declining to give an EMED instruction where defendant only presented "generalized testimony that she sometimes loses her temper in stressful situations" and that the decedent infant "could cry a lot").

2014See Melear, 63 Haw. at 497 , 630 P.2d at 626-27 (trial court’s instruction to the jury to disregard prosecutor’s improper arguments and court’s “immediate reading of the entire charge to the jury removed any harm or prejudice”); Espiritu, 117 Hawai#i at 143, 176 P.3d at 901 (“While the court here did properly instruct the jury on the elements of the EMED defense . . . , that instruction could not cure [the prosecutor’s] misstatements of the law, where no specific curative instruction relating to the misstatements were given.”).

2014See Melear, 63 Haw. at 497 , 630 P.2d at 626-27 (trial court’s instruction to the jury to disregard prosecutor’s improper arguments and court’s “immediate reading of the entire charge to the jury removed any harm or prejudice”); Espiritu, 117 Hawai#i at 143, 176 P.3d at 901 (“While the court here did properly instruct the jury on the elements of the EMED defense . . . , that instruction could not cure [the prosecutor’s] misstatements of the law, where no specific curative instruction relating to the misstatements were given.”).

2022HRS § 707-702(2); State v. Moore, 82 Hawai#i 202, 210-11, 921 P.2d 122, 130-31 (1996) (finding that the defendant's agitation and nervousness at the time of his arrest were not relevant to an EMED inquiry).

2022HRS § 707-702(2); State v. Moore, 82 Hawai#i 202, 210-11, 921 P.2d 122, 130-31 (1996) (finding that the defendant's agitation and nervousness at the time of his arrest were not relevant to an EMED inquiry).

2014App. 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 .

2014App. 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 .

2023I, § 10; Whiting v. State, 88 Hawai‘i 356, 360, 966 P.2d 1082, 1086 (1998) (holding double jeopardy principles barred reprosecution for second-degree murder because the defendant’s successful use of the EMED defense entitled him to an acquittal of the second-degree murder charge); see also HRS § 701-115(2)(b) (establishing the burden of proof for affirmative defenses, which entitle defendants to an acquittal); HRS § 707- 702(2) (laying out the affirmative defense of EMED).

2023I, § 10; Whiting v. State, 88 Hawai‘i 356, 360, 966 P.2d 1082, 1086 (1998) (holding double jeopardy principles barred reprosecution for second-degree murder because the defendant’s successful use of the EMED defense entitled him to an acquittal of the second-degree murder charge); see also HRS § 701-115(2)(b) (establishing the burden of proof for affirmative defenses, which entitle defendants to an acquittal); HRS § 707- 702(2) (laying out the affirmative defense of EMED).

2014Second, 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 . -32- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** 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 .

2014Second, 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 . -32- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** 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 .

2014Id. at *8-10. -25- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** 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)).

2014Id. at *8-10. -25- *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** 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)).

2010To illustrate, in Yama-da, a special jury instruction directed the jury to return a guilty verdict for “EMED manslaughter” (manslaughter based upon extreme mental or emotional disturbance (“EMED”)) if “one or more jurors believes or believe that the prosecution had failed to disprove the EMED defense to first degree murder.” 99 Hawai'i at 548 , 57 P.3d at 473 .

2010To illustrate, in Yama-da, a special jury instruction directed the jury to return a guilty verdict for “EMED manslaughter” (manslaughter based upon extreme mental or emotional disturbance (“EMED”)) if “one or more jurors believes or believe that the prosecution had failed to disprove the EMED defense to first degree murder.” 99 Hawai'i at 548 , 57 P.3d at 473 .

2021Unlike in Holbron and like in Loa, here, the record demonstrates the jury reached the erroneous attempted reckless manslaughter jury instruction as evidenced by its transmitted written communications to the trial court asking for 24 We note the trial court’s jury instructions concerning when the jury could consider the mitigating EMED defense were erroneous, as they “may well have had an effect of precluding consideration of possibly extenuating circumstances during deliberations on the charge of [attempted] murder in the first [and second] degree.” Pinero, 70 Haw. at 525 , 778 P.2d at 714 ; s

2021Unlike in Holbron and like in Loa, here, the record demonstrates the jury reached the erroneous attempted reckless manslaughter jury instruction as evidenced by its transmitted written communications to the trial court asking for 24 We note the trial court’s jury instructions concerning when the jury could consider the mitigating EMED defense were erroneous, as they “may well have had an effect of precluding consideration of possibly extenuating circumstances during deliberations on the charge of [attempted] murder in the first [and second] degree.” Pinero, 70 Haw. at 525 , 778 P.2d at 714 ; s

2014In State v. Haili, 103 Hawai'i 89 , 79 P.3d 1263 (2003), we again held that prior bad acts could properly be admitted into evidence to rebut an EMED defense.

2014In State v. Haili, 103 Hawai'i 89 , 79 P.3d 1263 (2003), we again held that prior bad acts could properly be admitted into evidence to rebut an EMED defense.

2014Consistent 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.

2014Consistent 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.

2025In other words, "loss of control is a significant, even determining, factor in evaluating an EMED claim." Young, 93 Hawai#i at 233, 999 P.2d at 239 (brackets omitted).

2025In other words, "loss of control is a significant, even determining, factor in evaluating an EMED claim." Young, 93 Hawai#i at 233, 999 P.2d at 239 (brackets omitted).

2025Under HRS § 707-702(2), "[t]he disturbance was meant to be understood in relative terms as referring to a loss of self-control due to intense feelings." State v. Adviento, 132 Hawai#i 123, 150, 319 P.3d 1131, 1158 (2014).

2022See State v. Reed, 77 Hawai#i 72, 84, 881 P.2d 1218, 1230 (1994) overruled on other grounds by State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000) (holding that without supporting affidavits or sworn statements, the defendant's characterization of the witnesses' potential testimony "amounts 11 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER to nothing more than speculation").

2022See State v. Reed, 77 Hawai#i 72, 84, 881 P.2d 1218, 1230 (1994) overruled on other grounds by State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000) (holding that without supporting affidavits or sworn statements, the defendant's characterization of the witnesses' potential testimony "amounts 11 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER to nothing more than speculation").

2022The Supreme Court of Hawai#i has explained that "[e]xpert testimony about defendant being under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation is allowable, since such a disturbance can reduce a murder to manslaughter." State v. Klafta, 73 Haw. 109, 117 , 831 P.2d 512, 517 (1992) (emphasis added) (citation omitted).

2022The Supreme Court of Hawai#i has explained that "[e]xpert testimony about defendant being under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation is allowable, since such a disturbance can reduce a murder to manslaughter." State v. Klafta, 73 Haw. 109, 117 , 831 P.2d 512, 517 (1992) (emphasis added) (citation omitted).

2022See State v. Reed, 77 Hawai#i 72, 84, 881 P.2d 1218, 1230 (1994) overruled on other grounds by State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000) (holding that without supporting affidavits or sworn statements, the defendant's characterization of the witnesses' potential testimony "amounts 11 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER to nothing more than speculation").

2022See State v. Reed, 77 Hawai#i 72, 84, 881 P.2d 1218, 1230 (1994) overruled on other grounds by State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000) (holding that without supporting affidavits or sworn statements, the defendant's characterization of the witnesses' potential testimony "amounts 11 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER to nothing more than speculation").

2022But where plain 4 Kalani also asserts in his opening brief, but does not cite to the record, that he "believed that [CW] was trying to leave him." The record does not support this assertion. 9 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER errors were committed and substantial rights were affected thereby, the errors may be noticed although they were not brought to the attention of the trial court." State v. Fagaragan, 115 Hawai#i 364, 367-68, 167 P.3d 739, 742-43 (App. 2007) (cleaned up).

2022But where plain 4 Kalani also asserts in his opening brief, but does not cite to the record, that he "believed that [CW] was trying to leave him." The record does not support this assertion. 9 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER errors were committed and substantial rights were affected thereby, the errors may be noticed although they were not brought to the attention of the trial court." State v. Fagaragan, 115 Hawai#i 364, 367-68, 167 P.3d 739, 742-43 (App. 2007) (cleaned up).

2021Id.

2021Unlike in Holbron and like in Loa, here, the record demonstrates the jury reached the erroneous attempted reckless manslaughter jury instruction as evidenced by its transmitted written communications to the trial court asking for 24 We note the trial court’s jury instructions concerning when the jury could consider the mitigating EMED defense were erroneous, as they “may well have had an effect of precluding consideration of possibly extenuating circumstances during deliberations on the charge of [attempted] murder in the first [and second] degree.” Pinero, 70 Haw. at 525 , 778 P.2d at 714 ; s

2019Thus, the circuit court was not required to provide the jury with Lavoie’s proposed EMED instruction. 41 The purpose of this statute is to “limit the possibility of multiple convictions and extended sentences when the defendant has basically (continued . . .) 55 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** concluded that only one crime is committed when “(1) there is but one intention, one general impulse, and one plan, (2) the two offenses are part and parcel of a continuing and uninterrupted course of conduct, and (3) the law does not provide that specific periods of

2014Cf. 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

2014Cf. 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

2014A. “[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. Locquiao, 100 Hawai'i 195, 205 , 5

2014A. “[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. -28- *** FOR PUBLICATION IN WEST’S H

2014See Melear, 63 Haw. at 497 , 630 P.2d at 626-27 (trial court’s instruction to the jury to disregard prosecutor’s improper arguments and court’s “immediate reading of the entire charge to the jury removed any harm or prejudice”); Espiritu, 117 Hawai#i at 143, 176 P.3d at 901 (“While the court here did properly instruct the jury on the elements of the EMED defense . . . , that instruction could not cure [the prosecutor’s] misstatements of the law, where no specific curative instruction relating to the misstatements were given.”).

2014See Melear, 63 Haw. at 497 , 630 P.2d at 626-27 (trial court’s instruction to the jury to disregard prosecutor’s improper arguments and court’s “immediate reading of the entire charge to the jury removed any harm or prejudice”); Espiritu, 117 Hawai#i at 143, 176 P.3d at 901 (“While the court here did properly instruct the jury on the elements of the EMED defense . . . , that instruction could not cure [the prosecutor’s] misstatements of the law, where no specific curative instruction relating to the misstatements were given.”).

2014The 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).

2014The 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).

2014A. “[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. Locquiao, 100 Hawai'i 195, 205 , 5

2014A. “[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. -28- *** FOR PUBLICATION IN WEST’S H

2014Much 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

2014Much 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