Judge accidentally strikes the entire expert opinion in a murder trial

 State v. Sylva (HSC December 29, 2023)

Background. Kumulipo Sylva was indicted for murder in the second degree after he was arrested for killing Eduardo Cerezo in the bathroom of the Queen Kaahumanu Shopping Center. Sylva raised the insanity defense and three examiners were appointed to determine penal responsibility. All three concluded that Sylva suffered from a physical or mental disease, disorder, or defect. Two out of the three believed he lacked capacity under the insanity defense was not criminally responsible.

 

At trial, the prosecution presented evidence that Cerezo and Kyle Keoho got on the bus in Pukalani when they saw Sylva on the bus. Cerezo called Sylva a “pussy” and threatened to beat him up. When the bus got to the shopping center, the three of them got off and Sylva challenged Cerezo to a fight. Cerezo said he did not want to fight and Sylva walked away from them.

 

Cerezo and Keoho went to the bathroom together. Sylva also went into the bathroom with a cane knife and said, “you guys are like demons. I send them to the moon.” Sylva struck Cerezo’s neck killing him. Sylva said “I guess he was a demon” and told Keoho “believe it or not, he was a demon.”

 

Sylva left the shopping center and witnesses testified he tried to hide his jacket and the cane knife. The police apprehended him at a park near the shopping center. Sylva made several references to demons.

 

Evidence in support of the insanity defense. The defense called two of the three examiners. Dr. Melissa Vargo testified that Sylva suffered from schizoaffective disorder, bipolar type, which caused him to hallucinate, have delusional thoughts, mania, and depression. She testified that to a degree of psychological certainty, Sylva lacked the “capacity to appreciate the wrongfulness of his conduct or to conform his behavior to the conduct of the law” at the time of the killing. She explained the basis of her opinion and added that Sylva told her that he did not believe killing Cerezo was wrong because Cerezo was a demon and it was a service to God.

 

Dr. Martin Blinder, a forensic psychiatrist, testified for the defense. Dr. Blinder testified that Sylva was suffering from a psychotic disability profoundly affecting his ability to think clearly and his interpretation of events. He also believed that this “resulted in a lack of capacity to control conduct under the law or appreciate wrongfulness.” When Sylva’s counsel asked Dr. Blinder to explain the basis for the opinion, he provided his methodology:

 

Let me tell you how I go about making these judgments. The first thing that I look at when there’s a homicide is whether or not there’s a reasonable reason for the defendant to have done what he did. I’m not saying a good reason. There’s never a good reason to kill someone. But maybe a drug bust—a drug deal that went bad, guy is supposed to give him drugs, he pays him and doesn’t get the money, he takes his life, or he’s insulted on a racial basis or something that we wouldn’t approve of but we can understand, that there’s been a longstanding conflict between the killer and the person that he kills, and it’s unforgivable but understandable.

          I look for that. If I find that, then it’s pretty well the end of my participation. . . . As far as I’m concerned, he does not meet that standard that you just heard.

          In the case of Mr. Sylva, there is no rational reason. There’s a very superficial reason, but the basic reason is he’s got a mission, he’s got a mission to rid the world of demons, and he was just getting started. This was obviously, in his delusional mind, a dangerous demon, and for some reason, he—he’s been anointed by what he reads in the Bible to take care of this problem.

          And that’s nutty and it’s crazy, and absent for that nutty, crazy thing, he wouldn’t have hurt anybody. He’s not, you know, a bad man who goes around hurting people.

 

The prosecutor objected “to the last phrase” and moved to strike it. Counsel asked for the grounds. The circuit court—the Hon. Judge Richard T. Bissen—responded instead: “that wasn’t the question that was asked.” The parties approached for a sidebar.

 

At the bench, the circuit court told counsel that Dr. Blinder was “just editorializing, saying if it wasn’t for this, this wouldn’t happen and he’s not a bad man. If that was the question you asked, that would be okay, but that’s not the question you asked. And the State is correct, I think, in saying he’s going beyond the opinion.

 

The circuit court sustained the objection and ordered to “have it stricken.” The circuit court instructed the jury to “disregard the last response made by the witness and ordered that it be stricken.”

 

Sylva continued his direct examination of Dr. Blinder, when the circuit court interjected again:

 

Q.      Your opinion is based in par ton the fact that there is no rational explanation, correct?

A.      Yes. Based—to a reasonable degree of medical probability, there does not appear to be a rational basis for his action, and that but for his psychotic illness, he would not have taken the life of this man.

 

The prosecutor objected on the grounds that that was speculative. Sylva responded that this was part of Dr. Blinder’s explanation for his opinion. The circuit court sustained the objection:

 

I know. I heard. He’s—it’s his opinion that he suffers from a mental disease, and he’s giving a conclusion—or, excuse me, the word opinion about that. He’s adding on to that at the end of the answer. I ordered it stricken earlier. I’ll order it stricken again.

          Ladies and gentlemen, when the court orders something stricken, you’re not to consider it in your deliberations in any way.

 

When the prosecutor cross-examined Dr. Blinder, the prosecutor referred back to his methodology in determining a rational basis for killing someone. That was not stricken.

 

The prosecution called the third examiner as a rebuttal witness. Although he agreed that Sylva was suffering from a mental illness, he believed that he was not legally insane.

The order of the instructions, verdict, and appeal. The circuit court instructed the jury on the elements of murder in the second degree, the included offense of manslaughter, and the affirmative defenses of insanity and extreme mental or emotional disturbance (EMED). The circuit court instructed the jury ton consider the EMED defense “if and only if” it found Sylva guilty of either murder in the second degree or manslaughter and that Sylva was not insane at the time of the killing. The jury returned a verdict of guilty of manslaughter based on EMED. The circuit court sentenced Sylva to prison for twenty years. The ICA affirmed.

 

Although the prosecutor objected to the “last phrase,” the circuit court struck Dr. Blinder’s “last response” and erroneously instructed the jury to disregard his entire explanation. “[I]t is the duty of the trial court to properly instruct the jury. As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.” State v. Nichols, 111 Hawai'i 327, 479, 141 P.3d 974, 984 (2006)

 

The HSC held that the circuit court erred. Once Dr. Blinder testified about Sylva lacking capacity, counsel asked him to explain the basis for his opinion. Dr. Blinder provided his explanation and said that Sylva is not a “bad man who goes around hurting people.” The prosecutor objected to Dr. Blinder’s “last response.” But after the bench conference, the circuit court ordered the jury to disregard Dr. Blinder’s “last response.”

 

The HSC held that a reasonable juror could have interpreted the instruction striking Dr. Blinder’s “response” to mean the entire answer to the question. Moreover, the circuit court later sustained the prosecutor’s objection and reminded jurors that “I ordered it stricken earlier. I’ll order it stricken again.” That, according to the HSC, implied to the jury that more than “the last phrase” was stricken.

 

It was error to strike the “last response” anyways. “Evidence that the defendant was affected by a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is required to establish an element of the offense.” HRS § 704-400.

 

Examiners who determine penal responsibility “shall be permitted to make a statement as to the nature of the examiner’s examination, the examiner’s diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and the examiner’s opinion of the extent, if any to which the capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law[.]” HRS § 704-410(3).

 

At trial, examiners “shall be permitted to make any explanation reasonably serving to clarify the examiner’s diagnosis and opinion and may be cross-examined as to any matter bearing on the examiner’s competency or credibility or the validity of the examiner’s diagnosis or opinion.” HRS § 704-410(4). The HSC held that Dr. Blinder testified about his opinion on penal responsibility and his belief that “that’s nutty and it’s crazy, and absent for that nutty, crazy thing, he wouldn’t have hurt anybody” was a clarified his diagnosis and opinion.

 

This was not at the discretion of the circuit court because HRS § 704-410(4) states that the examiner “shall be permitted.” It “is a well-established tenet of our statutory interpretation that the use of the word ‘shall’ generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary.” State v. Shannon, 118 Hawai'i 15, 25, 185 P.3d 200, 210 (2008).

 

Harmless error in criminal cases must be applied narrowly. The “error must be examined in light of the entire proceedings and given the effect to which the whole record shows it is entitled. In that context, the real question becomes whether there is a reasonable possibility that the error might have contributed to the conviction.” State v. Aplaca, 96 Hawai'i 17, 25, 25 P.3d 792, 800 (2001). Harmless error arises when “there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt[.]” State v. Veikoso, 126 Hawai'i 267, 276, 270 P.3d 997, 1006 (2011).

 

The application of the harmless error doctrine must be narrow in criminal cases in order to protect “a defendant’s rights and the integrity of the trial process.” State v. Aplaca, 96 Hawai'i at 27 n. 7, 25 P.3d at 802 n. 7. The HSC emphasized that defendants have the right to present a complete defense and the prosecution’s presentation of evidence would not cure a violation of this right. See State v. Abion, 148 Hawai'i 445, 454, 478 P.3d at 270, 279 (2020). Moreover, the HSC pointed out that “because the jury was precluded from considering Dr. Blinder’s answer . . ., the jury may have placed less weight on his opinion, which was pivotal to Sylva’s insanity defense.” Even though some of the same evidence was presented by the prosecution during the cross-examination of Dr. Blinder, the circuit court’s error cannot be deemed harmless. The HSC vacated the conviction and remanded for a new trial.

The order of the jury instructions were not erroneous. The HSC rejected Sylva’s argument that the circuit court was required to instruct the jury to consider the insanity defense after finding that the killing was the result of an EMED. Jury instructions must be considered as a whole and error arises only when they are “prejudicially insufficient, inconsistent, or misleading.” State v. Uyesugi, 100 Hawai'i 442, 457, 60 P.3d 843, 858 (2002).

 

The HSC adopted Justice Acoba’s concurrence in State v. Yamada, 99 Hawai'i 542, 57 P.3d 467 (2002), and Uyesugi:

 

The jury was required to decide the insanity defense which would exclude responsibility for . . . murder, before proceeding to consider the mitigating defense of manslaughter, inasmuch as the insanity defense completely negates guilt, while the emotional disturbance defense only mitigates guilt.

 

Uyesugi, 100 Hawai'i at 473, 60 P.3d at 874 (Acoba, J. concurring).

 

The circuit court did not err in having the jury decide the insanity defense before moving on to the mitigating EMED defense. According to the HSC, “[i]f the jury had accepted the insanity defense, it would have been required to acquit Sylva, and the EMED mitigating defense would have been inapplicable.”