HSC Clarifies when Counsel Opens the Door and Re-emphasizes the Need for Merger Instructions
State v. Lavoie (HSC November 22, 2019)
Background. Marlin Lavoie was charged with murder in the second degree, carrying or using a firearm in the commission of a separate felony, being a felon in possession of a firearm or ammunition, and place to keep loaded firearms. The charges stem from the killing of Lavoie’s girlfriend and the mother of his four children, Malia Kahalewai on Molokai. Lavoie moved prior to trial to preclude prior bad acts in which Lavoie injured or threatened to hurt Kahalewai. Judge Joseph E. Cardoza of the circuit court granted the motion; the prosecutor noted that “should the door be opened” it would ask to revisit the pretrial ruling.
The Trial. Nicole Aea, a friend of Kahalewai testified that Kahalewai was living with Lavoie and their children in the remote Honouliwai Valley. She had been staying with her and her other friends for a few days. On the night of the shooting, Aea was with Kahelwai and her friends when Lavoie came over to the apartment. Lavoie repeatedly asked Kahalewai to come out so he could talk to her. He said that the children missed her. Kahalewai told him no and asked him to go away. Lavoie started to cry.
The group moved to a porch and were joined by two other women. Lavoie remained at the bottom of the porch teary eyed and asking Kahalewai to come home. Kahalewai began telling Lavoie things like “I no love. I no like be with you.” “Go be with a guy.” “F—k you, f----t, f—k, I no love you f----t, you ugly.” Lavoie pleaded with her to come home. The conversation ended with Kahalewai told Lavoie, “you should find a guy because this b---h not going to take care of you anymore.” Lavoie would later tell a detective that after that he just snapped.
Lavoie went to his vehicle and retrieved a rifle. He shot Kahalewai in the chest at close range. She was transported to the Molokai General Hospital and died soon after that. Lavoie later explained to the police that he “freaked out,” ran away, and hid in the bushes. He later turned himself into the police. He said that he had no plans to kill Kahalewai he “just lost his mind” and “darkness took over[.]”
Trial Court Concludes Lavoie Opens the Door to Prior Acts of Abuse. During Aea’s cross-examination, Lavoie’s counsel elicited testimony that there were arguments between Lavoie and Kahalewai “over the course of their relationship.” When that would happen, Kahalewai would leave Lavoie’s house for a couple days and stay with friends. Sometimes she would stay away for a week and a half to two weeks. Sometimes she would go to Oahu. After that the prosecutor announced that Lavoie had opened the door to prior bad acts. The prosecutor stated that “at least some of the arguments involved a prior abuse” and that Kahalewai was leaving to get away from Lavoie. Over objection, the circuit court permitted the prosecutor to question Aea about arguments between Lavoie and Kahalewai. Aea testified that they were “normal fights, there was no shock they were grumbling; they’d fight, she dig out, she’d come back.” The arguments, according to Aea, were mostly about Kahalewai wanting more space to hang with friends.
The prosecutor questioned Aea about an incident six years before the shooting in which Lavoie argued with Kahalewai, picked up a gardening pick, and said “nobody going to find you, you guys.” The prosecution then called another witness to present evidence of prior abuse: a time when Lavoie was seen choking Kahalewai more than a year before the shooting occurred. The prosecution called another witness to testify about domestic violence between the couple.
The Defense Witnesses. Lavoie called expert witnesses in the field of forensic psychiatry, psychology, and neurology. They were of the opinion that at the time of the killing, Lavoie was in an acute psychotic state. The defense explained that Lavoie had suffered from brain injury, sexual abuse as a child, and a long history of psychiatric treatment. He had been diagnosed with bipolar disorder and was unaware of what was happening at the time of the killing. There was also opinion evidence that Lavoie had been under the influence of an extreme mental or emotional disturbance.
The Rebuttal. The prosecution called one of Kahalewai’s friends as a rebuttal witness. She testified about two incidents of domestic violence between the couple in order to, according to the prosecution, rebut the defense theory that the shooting was the result of a psychiatric disorder.
Instructions, Verdict, Sentence, and Appeal. The circuit court instructed the jury about the offenses and the defenses of extreme mental or emotional disturbance (EMED), and the mental defense. The jury found Lavoie guilty as charged. He was sentenced to life in prison, twenty years for count 2, and ten years for 3 and 4. The court ran the murder and count 2 concurrently to each other but consecutively with counts 3 and 4. Lavoie appealed. The ICA affirmed.
What Exactly Does it mean to “Open the Door”? “The ‘opening the door’ doctrine is essentially a rule of expanded relevancy.” State v. James, 6677 A.2d 734, 742 (N.J. 1996). “[W]hen one party introduces inadmissible evidence, the opposing party may respond by introducing  inadmissible evidence on the same issue.” State v. Fukusaku, 85 Hawaii 462, 497, 946 P.2d 32, 67 (1997). That said, the HSC made it clear that “[a]dmissible evidence therefore does not ‘open the door’ to otherwise inadmissible evidence.” Citing State v. Middleton, 998 S.W.2d 520, 528 (Mo. 1999).
In this case, Lavoie questioned Aea if she was aware that Kahalewai would leave Lavoie and the family to stay with friends after arguments. She said she was aware. On redirect Aea clarified that the arguments stemmed from Kahalewai’s desire to socialize with friends, which is typically impossible to do from the Honouliwai Valley. The HSC held that this was admissible evidence that was properly elicited from Aea. Because that was admissible evidence the question for the HSC was whether the prior bad acts were admissible.
The Prior Bad Acts were Inadmissible. The HSC rejected the notion that the prior acts of abuse were admissible to rebut Lavoie’s EMED and mental defenses. Prior acts of abuse are generally inadmissible to show conformity of conduct. HRE Rule 404(b). They can be admissible to show some other purposes like modus operandi, intent, plan, preparation, or intent. Id. The HSC held that prior bad acts have little probative value into his state of mind at the time of the shooting. Moreover, evidence like this is far more prejudicial than probative. HRE Rule 403. It was inadmissible. And so because the evidence was not admissible on its own merit, it should not have come in. The door should have been closed.
The Problem was Compounded with an Erroneous Instruction. Not only was the door supposed to stay closed, but the HSC held that the circuit court erred in instructing the jury about the prior bad acts. Here is what the circuit court told the jury:
During this trial, you have heard evidence that the defendant at other times may have engaged in or committed crimes, wrongs or acts. This evidence, fi believed by you, may be considered only on the issue of defendant’s intent to commit the offenses charged in this case. Do not consider this evidence for any other purpose. You must not use this evidence to conclude that because the defendant, at other times, may have engaged in or committed other crimes, wrongs or acts, that he is a person of bad character and, therefore, must have committed the offenses charged in this case.
According to the HSC, this instruction was an incorrect statement. The prior bad acts were used to rebut EMED and the mental defenses—two affirmative defenses. An instruction directing the jury to consider the prior bad acts to determine Lavoie’s intent is incorrect. The jury does not consider EMED or the mental defense unless and until it has found the defendant guilty, which includes the requisite intent. See Hawaii Standard Jury Instruction Criminal Number 7.07 and 9.08. This instruction incorrectly meshes Lavoie’s mental disorder with “intent.”
The Other Variant of the Open-Door Doctrine. This case was clear to the HSC: admissible evidence does not open the door to inadmissible evidence. However, the HSC noted that the “doctrine has also been applied to authorize the introduction of evidence that would otherwise have been irrelevant in order to respond to admissible evidence that generates an issue.” Because this was not the case here—the prior bad acts were inadmissible—the HSC did not explore this variant of the doctrine. This is a curious footnote. Irrelevant evidence is inadmissible. HRE Rule 402. How do we make the distinction between inadmissible evidence that was at issue here and evidence that would otherwise have been irrelevant? We will have to wait and see.
The Merger Problem. The HSC held that the circuit court erred in failing to instruct the jury about the merger of the felon-in-possession and the place-to-keep offenses. “When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element.” HRS § 701-109(1). The defendant may not, however “be convicted of more than one offense if . . . [t]he offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of conduct constitute separate offenses.” HRS § 701-109(1)(e). In other words when “(1) there is but one intention, one general impulse, and one plan, (2) the two offenses are part and parcel of a continuing and uninterrupted course of conduct, and (3) the law does not provide that specific periods of conduct constitute separate offenses” they merge. State v. Hoey, 77 Hawaii 17, 38, 881 P.2d 504, 525 (1994).
When a crime may be charged a continuous offense hinges on whether the statute precludes a continuous offense and whether the elements of the offense constitute a continuous, unlawful act or series of acts, however long a time the act or acts may occur. State v. DeCoite, 132 Hawaii 436, 438, 323 P.3d 80, 82 (2014). Put differently, the HSC held that this test involves two prongs: first, whether the statutory language prohibits charging the offense as a continuing offense, and second, whether an element of the offense can extend beyond isolated moments.
Here, the HSC held that both the felon in possession and place to keep offenses were continuous offenses. See State v. Matias, 102 Hawaii 300, 306, 76 P.3d 1191, 1197 (2003). Both offenses arose out the same elemental conduct—“what the defendant did with the object, namely, possess[ed] it.” State v. Frisbee, 114 Hawaii 76, 83, 156 P.3d 1182, 1189 (2007).
Merger Instructions are Required. And so because the offenses can be charged as continuous offenses, the jury was required to determine if it was “one intention, one general impulse, and one plan.” State v. Matias, 102 Hawaii at 305, 75 P.3d at 1196; State v. Hoey, 77 Hawaii at 38, 881 P.2d at 525.
The HSC disagreed with the ICA’s analysis that the two offenses arose from separate and distinct factual circumstances. According to the ICA, the felon-in-possession offense was completed before Lavoie left his home on the day of the shooting. The place-to-keep offense occurred separately when he left the rifle in his car. The HSC held that it was incorrect two reasons. Contrary to its own unpublished opinion in State v. Stangel, these offenses can be charged as continuous offenses. Secondly, it was not up to the ICA or the circuit court to determine when the offense is completed:
In this case, the jury was responsible for determining whether the place to keep and felon in possession offenses were factually separate and distinct and whether there was but one intention, one general impulse, and one plan, not the court. Trial courts are not tasked with making factual findings regarding when each offense occurred or whether the defendant’s conduct constitutes “an uninterrupted continuous course of conduct”; the jury must make such determination.
Therefore, on remand the circuit court must include a merger instruction and special interrogatory.