State v. Martin. ICA s.d.o., filed 03/29/2019.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-APR-2020
10:39 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
KEAKA MARTIN, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 3PC131000062)
APRIL 22, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises out of the shooting of two Hawaiʻi Police
Department (“HPD”) officers on the evening of January 2, 2013.
Keaka Martin (“Martin”) was convicted after a jury trial in the
Circuit Court of the Third Circuit (“circuit court”) of various
counts, including attempted murder of one of the officers. On
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August 5, 2014, the circuit court1 entered its judgment of
conviction and sentence, sentencing Martin to life imprisonment
without the possibility of parole plus ten years.
Martin appealed the judgment of conviction and sentence to
the Intermediate Court of Appeals (“ICA”). The ICA affirmed.
Martin’s application for writ of certiorari to this court
(“Application”) raises five questions:
1. Did the ICA commit grave errors of law and fact when
it held that the trial court did not engage in a
deficient Tachibana colloquy?
2. Did the ICA commit grave errors of law and fact when
it held that the trial court properly admitted
evidence of defendant’s suicide attempt?
3. Did the ICA commit grave errors of law and fact when
it held that the trial court properly admitted
evidence of defendant’s statement that he shot
himself?
4. Did the ICA commit grave errors of law and fact by
holding that the trial court did not err in admitting
prior bad acts of defendant?
5. Did the ICA commit grave errors of law and fact by
holding that defendant’s convictions for attempted
murder and assault in the first degree should [not]
be vacated because the trial court failed to properly
instruct the jury on lesser-included offenses?
For the reasons explained below, the issues Martin raises
on certiorari lack merit. We do, however, address Martin’s
second question on certiorari regarding his suicide attempt the
day after the shooting. The circuit court properly ruled the
evidence admissible as probative of Martin’s identity as the
person who had committed the offenses. The circuit court,
1 The Honorable Greg K. Nakamura presided.
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however, also sua sponte applied the majority rule across the
country to rule that the evidence of Martin’s suicide attempt
was also admissible as relevant to his “consciousness of guilt.”
We hold that evidence of a suicide or attempted suicide is
not automatically admissible as relevant to a defendant’s
consciousness of guilt. As recognized by the Vermont Supreme
Court, “[t]he underlying reasons motivating an attempt to take
one’s life can be both numerous and highly complex . . . .”
State v. Onorato, 762 A.2d 858, 859-60 (Vt. 2000). The New
Jersey Supreme Court has also appropriately noted that, aside
from guilt, other factors such as “a defendant’s psychological,
social or financial situation may underlie a suicide attempt.”
State v. Mann, 625 A.2d 1102, 1108 (N.J. 1993). Pursuant to HRS
§ 602-4 (2016),2 we therefore provide guidance to the trial
courts for any future cases in which evidence of a suicide or
suicide attempt is proffered as evidence of consciousness of
guilt. But because the circuit court correctly ruled the
evidence admissible as probative of Martin’s identity as the
person who had committed the offenses charged, there was no
error in the circuit court’s admission into evidence of the
suicide attempt.
2 HRS § 602-4 provides, “The supreme court shall have the general
superintendence of all courts of inferior jurisdiction to prevent and correct
errors and abuses therein where no other remedy is expressly provided by
law.”
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Although the issues raised by Martin on certiorari lack
merit, we notice plain error affecting Martin’s substantial
rights with respect to the lack of a merger instruction on
Martin’s firearms convictions on Counts 7, 8, and 9. We
therefore vacate the ICA’s July 9, 2019 judgment on appeal
affirming the circuit court’s August 5, 2014 judgment of
conviction and sentence as to Counts 7, 8, and 9, and remand
these counts to the circuit court for further proceedings
consistent with this opinion.3 We otherwise affirm the ICA’s
July 9, 2019 judgment on appeal affirming the circuit court’s
August 5, 2014 judgment of conviction and sentence.
II. Background
A. Factual summary
On January 2, 2013 at around 8:00 p.m., HPD officers Joshua
Gouveia (“Officer Gouveia”) and Garrett Hatada (“Officer
Hatada”) were assigned to a report of multiple gunshots fired in
the Wailoa State Park area. During their investigation, the
officers received information about a man hiding beneath a
vehicle at Pono Place. Officers Gouveia and Hatada arrived at
Pono Place and shined their flashlights under the vehicles in
3 As discussed in note 36, infra, because the circuit court sentenced
Martin to five years on Count 7, ten years on Count 8, and ten years on Count
9, with the sentences for Counts 7, 8, and 9 to be served concurrently, the
lack of a merger instruction does not affect the maximum sentence for
Martin’s convictions on these three charges.
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the parking lot. Officer Gouveia saw a man lying on his back
beneath a black truck. After calling for backup, Officer
Gouveia approached the truck from the passenger’s side while
Officer Hatada approached from the driver’s side. When Officer
Gouveia crouched down, he saw the man under the truck reach into
his waistband and remove a black and silver gun. Officers
Gouveia and Hatada were both then shot in their legs.
That night, after the shooting, Kawika Paulino (“Paulino”)
gave a statement to the police regarding an encounter with
Martin at the Pono Place parking lot earlier that evening.
Paulino told the police that Martin had shown him a gun, had
said he had been firing the gun “in the middle of Wailoa,” and
had also said that he would not go to jail without a fight.
Darrel Constantino (“Constantino”) also told the police that
Martin had had a weapon with him at Pono Place.
The next day, an HPD special response team was assigned to
make contact with Martin at an East Palai Street residence.
After arriving at the residence and announcing themselves as
police, a single shot was heard from inside the house. The
response team deployed a remote control surveillance robot
equipped with a live feed video camera into the house. Through
the live feed, the team observed a man lying on his back with a
pistol on the ground near his hand.
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Officers entered the house and ordered the man not to move
and to show his hands. The man was bleeding from the abdominal
area. The man raised his hands slightly and said, “I shot
myself.” Officers told the man to turn over and put his hands
behind his back, and the man again said, “I shot myself.” The
man was later identified as Martin. The gun found near Martin
matched bullet casings recovered from the Pono Place parking
lot.
B. Circuit court proceedings
1. Pretrial motions
On February 28, 2013, Martin was charged via an indictment
with attempted murder in the first degree as to Officer Hatada
in violation of HRS §§ 705-500(1)(b) (1985) and 707-701 (Supp.
2011) (Count 1), assault in the first degree as to Officer
Hatada in violation of HRS § 707-710 (Supp. 1986) (Count 2),
carrying or use of a firearm in the commission of a separate
felony in violation of HRS § 134-21(a) (Supp. 2006) (Count 3),
attempted murder in the first degree as to Officer Gouveia in
violation of HRS § 705-500(1)(b) and HRS § 707-710 (Count 4),
assault in the first degree as to Officer Gouveia in violation
of HRS § 707-710 (Count 5), carrying or use of a firearm in the
commission of a separate felony in violation of HRS § 134-21(a)
(Count 6), ownership or possession prohibited of any firearm or
ammunition by a person charged with or convicted of certain
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crimes in violation of HRS § 134-7(b) and (h) (Supp. 2006)
(Count 7), carrying or possessing a loaded firearm on a public
highway in violation of HRS § 134-26(a) (Supp. 2006) (Count 8),
place to keep pistol or revolver in violation of HRS § 134-25(a)
(Supp. 2006) (Count 9), alteration of identification marks
prohibited in violation of HRS §§ 134-10 (Supp. 1988) and 134-17
(Supp. 1994) (Count 10), and reckless endangering in the second
degree in violation of HRS § 707-714(a) (Supp. 2006) (Count 11).
On December 27, 2013, seeking to introduce into evidence
Martin’s “I shot myself” statements to the police, the State
filed a motion for a determination that these statements had
been voluntarily made.4 The State asserted that it did not have
the burden of establishing that Miranda warnings were given
unless the totality of the circumstances reflected that the
statement was a result of custodial interrogation. The State
also contended that these unsolicited, spontaneous statements
made by a defendant before any police questioning and in the
absence of any coercion were admissible, citing State v. Amorin,
61 Haw. 356, 360, 604 P.2d 45, 48 (1979). At the voluntariness
hearing, Martin testified that he did not recall making any
4 HRS § 621-26 (1993) provides:
No confession shall be received in evidence unless it is
first made to appear to the judge before whom the case is
being tried that the confession was in fact voluntarily
made.
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statements after he shot himself, that any statement he made was
the product of a custodial interrogation, and that his physical
condition impaired his ability to make a voluntary statement.
The circuit court granted the State’s motion.
Also on December 27, 2013, Martin filed his motion in
limine #2 to preclude evidence of his self-inflicted gunshot
wound. Martin argued that the evidence of his self-inflicted
gunshot wound was a specific instance of conduct inadmissible
under Hawaiʻi Rules of Evidence (“HRE”) Rule 404(b) (1994) and
that the evidence would result in excessive prejudice against
him. In its memorandum in opposition, the State argued that
evidence of Martin’s self-inflicted gunshot wound was admissible
under HRE Rule 404(b) as relevant and probative of identity,
opportunity, intent, knowledge, and absence of mistake or
accident.
At the hearing on the motion in limine #2, the circuit
court sua sponte proposed that the evidence of Martin’s suicide
attempt was relevant to Martin’s consciousness of guilt, citing
an American Law Reports (“ALR”) annotation.5 In its written
order denying Martin’s motion, the circuit court concluded that
evidence of Martin’s suicide attempt was relevant and probative
5 Dale Joseph Gilsinger, Annotation, Admissibility of Evidence Relating
to Accused’s Attempt to Commit Suicide, 73 A.L.R. 5th 615 (1999).
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of Martin’s consciousness of guilt, and that Martin’s self-
inflicted gunshot wound was also relevant to identity.
Martin’s jury trial commenced on February 27, 2014.
2. Witness Testimony
a. HPD Officer Joshua Gouveia
State witness HPD Officer Gouveia testified as follows.
On January 2, 2013, at about 7:50 or 8:00 p.m., Officer
Gouveia was assigned to multiple calls of possible gunshots
fired in the Wailoa State Park area. Officer Gouveia, Officer
Keith Nacis (“Officer Nacis”), Officer Hatada, and other
officers checked the Wailoa State Park area, Pono Place, and
Maile Apartments. During their searches, Officers Gouveia and
Hatada received information about a man under a vehicle at Pono
Place. Officer Gouveia arrived at the Pono Place parking lot at
approximately 8:30 p.m., and Officer Hatada arrived separately.
There was little to no lighting in the parking lot. A blue SUV,
a black pickup truck, and a white vehicle were parked next to
each other.
Officer Gouveia walked to the front of the blue SUV, shined
his flashlight under the vehicles, and saw a man lying on his
back beneath the black pickup truck. He discussed the situation
with Officer Hatada and called for an additional unit. Officer
Nacis arrived within a minute or two. Officer Gouveia
approached the black pickup truck along the passenger’s side,
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Officer Nacis approached from the back, and Officer Hatada
approached the driver’s side.
When Officer Gouveia reached the front passenger door, he
announced himself as a police officer and instructed the man to
come out from under the truck. Receiving no response, he
repeated his instruction, crouched, and shined his flashlight
under the vehicle. Officer Gouveia saw the man reach into his
waistband and remove a black and silver handgun. Upon seeing
the gun, Officer Gouveia said, loudly enough for everyone in the
area to hear, “Let me see your hands. Let me see your hands.
Don’t do it. Gun.”
The man pointed the pistol toward Officer Gouveia from
approximately one foot away. Officer Gouveia saw a bright flash
and felt a “hard pressure” in his left upper thigh area.
Realizing he had been shot, Officer Gouveia crawled away and
heard approximately two to three more shots. Officer Gouveia
did not fire any shots. He was later unable to identify a
suspect from a photographic lineup.
b. Kawika Paulino
State witness Paulino testified as follows. Paulino
arrived at Pono Place to fish on January 2, 2013 at around 3:30
p.m. with his wife Hotina Paulino, Maria Sabater-Hart, Darrel
Constantino, and his son. Paulino parked his blue SUV next to a
black vehicle in the Pono Place parking lot. That evening,
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Paulino called 911 to report hearing over twenty gunshots from
the Wailoa area. The police arrived, and Paulino told them he
had heard gunshots. After the police left, Martin and David
Carroll (“Carroll”) approached Paulino at his car. Paulino had
known Martin for about three years, but he had only met Carroll
a few times. Martin had a fanny pack that contained bullets and
a silver and black gun, and Martin took out the gun and tried to
hand it to Paulino. Martin told Paulino that “they were in the
middle of Wailoa shooting the gun.” Martin told Paulino that he
had an outstanding warrant, was facing some jail time, and that
he would not go to jail without a fight. After Martin told
Paulino about the warrant, the “police approached a second time
and [Martin] just ran.” When the officers returned, they
approached the black truck. Paulino was sitting in the driver’s
seat of his car when he heard multiple gunshots that he believed
came from below the black truck. Paulino saw two officers “go
down.” The passenger door to his car had been left open, and
Martin jumped into the back of his car and told Paulino to
drive. Paulino drove to Hilo Lagoon, where he stopped because
his wife was “freaking out” and because his son was in the back
of the car. Paulino asked Martin to leave and “not do this to
me and my family,” after which Martin left. Paulino then called
911 and met with an officer near the scene to tell him what
happened.
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c. Doctor Dale Wren
State’s witness Doctor Dale Wren (“Doctor Wren”) testified
as follows. On January 2, 2013 at about 9:31 p.m., Doctor Wren
treated Officer Gouveia at the Hilo Medical Center. Officer
Gouveia had suffered a gunshot wound to his left thigh hip area,
but Doctor Wren did not observe an exit wound. Using an X-ray
scan taken of Officer Gouveia’s pelvis on January 2, 2013,
Doctor Wren identified the bullet fragments to the jury. Doctor
Wren explained that, while it was possible to perform surgery to
remove the bullet fragments, such procedures frequently caused
more damage than just leaving the fragments in.
On cross-examination, Doctor Wren testified that, to his
knowledge, Officer Gouveia did not require any surgeries at the
hospital.
d. Darrel Constantino
Defense witness Constantino testified as follows. On
January 2, 2013, Constatino was fishing with Paulino and his
family. Constantino was interviewed by the police after the
Pono Place incident and was granted immunity in this case.
Before his police interview, Constatino, Paulino, Hotina
Paulino, and Maria Hart had discussed how they would present
their statements to the police because they were afraid the
police would think they were accomplices.
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Constantino had told the police he had spoken to Martin at
Pono Place and that Martin had a gun. He had also told the
police that Martin told him that if the police came, he would
duck under one of the cars and shoot at their legs. Constantino
could not, however, remember Martin’s or his own exact words.
Constantino did not know who Martin was when he spoke to Martin,
but Paulino had verbally identified Martin to Constantino after
their conversation. After speaking with Martin, Constantino
heard gunfire at Pono Place while he was standing in front of
Paulino’s car, and he jumped onto the car and left with
Paulino’s family. Constantino did not tell the police that a
man had jumped into Paulino’s car as they were leaving Pono
Place.
On cross-examination, Constantino testified that Martin had
told him that if the police came, “he’d be, like, ‘fuck the
cops,’ and he’d disappear.” When Paulino stopped the car,
Martin jumped out of the back passenger seat.
e. HPD Officer Garrett Hatada
State witness HPD Officer Hatada testified as follows. On
January 2, 2013 at around 7:44 p.m., Officer Hatada was assigned
to reports of gunshots fired in the Wailoa State Park area.
Officer Hatada and Officer Gouveia went to Pono Place, where
several people who were fishing told him they had heard gunshots
forty minutes earlier from the Maile Street area. After
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investigating Maile Street, Officer Hatada learned from dispatch
that someone had reported a man hiding under a vehicle at Pono
Place. Officer Hatada and Officer Gouveia returned to Pono
Place, and Officer Gouveia indicated that he saw someone hiding
beneath one of the vehicles. They called for an additional
unit, and Officer Nacis arrived. Officer Hatada approached the
driver’s side of the dark-colored vehicle while Officer Gouveia
approached from the passenger’s side. Officer Hatada knelt down
behind the vehicle’s front tire and shined his flashlight on the
person beneath the vehicle. Officer Hatada saw that the person
had “short black hair” and tattoos on his arm. Officer Hatada
then heard Officer Gouveia shout, “Don’t do it, don’t do it,” as
he saw the man fumbling with his waistband. Officer Hatada then
stood up, drew his weapon, heard three gunshots, and felt pain
in his leg. Officer Hatada fired two rounds toward the area he
had seen the shooter. Officer Hatada then took cover under a
banyan tree.
f. Jair Trail
State witness Jair Trail (“Trail”) testified as follows.
Trail was staying at his Aunt Maile Labrador’s house on Palai
Street between December 2012 and January 2013, and Martin,
Trail’s uncle, would sometimes come over. On the night of
January 2, 2013, Labrador told Trail that Martin could not come
into the house. Later that night, Martin knocked on the door,
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but Trail did not let him in. Trail awoke at around 4:00 a.m.
and heard Martin say, “But why? It wasn’t me. I didn’t do it.”
The next morning, Trail saw Martin sleeping on the couch.
Martin spent the day reading the Bible and said “some crazy
stuff” about living forever. Martin also told Trail that he was
not going back to jail. At some point, Martin crawled out of
his room and said that the police were there. Trail saw S.W.A.T
trucks outside and heard the police identify themselves. He
then saw Martin pull out a black and silver gun, put the gun
against his chest, and pull the trigger. Trail then exited the
house and identified himself to the police. On cross-
examination, Trail testified that he heard Martin say, “I would
rather die than go back to jail.” Trail did not know if Martin
had any outstanding warrants or had actually served jail time
before.
g. HPD Sergeant Aaron Carvalho
State witness Sergeant Aaron Carvalho (“Sergeant Carvalho”)
testified as follows. On January 3, 2013, Sergeant Carvalho’s
special response team was assigned to make contact with a
suspect in an attempted murder investigation on East Palai
Street. Sergeant Carvalho arrived at the residence in an
armored vehicle at approximately 3:17 p.m. Sergeant Kahalewai
identified the group as police and gave verbal instructions over
the PA system. They then received a radio transmission that a
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single shot was heard from inside the house. A man, who later
identified himself as Trail, came out of the house. Trail told
Sergeant Carvalho that Martin was in the house and that he had
seen Martin shoot himself in the stomach. Sergeant Carvalho
then deployed a remote control surveillance robot with a live
feed video camera into the house. Through the live feed, he saw
a man lying on his back with a pistol on the ground next to his
left hand. Sergeant Carvalho entered the house and saw the same
man and pistol that he had seen through the live feed. Sergeant
Carvalho told the man not to move and to show his hands. The
man raised his hands slightly and said, “I shot myself.”
Sergeant Carvalho told the man to turn over and put his hands
behind his back, and the man again said, “I shot myself.” The
man appeared to be bleeding from the abdomen area, but he seemed
to understand Sergeant Carvalho’s commands. In the courtroom,
Sergeant Carvalho identified Martin as the man he had seen on
the floor.
h. HPD Detective Grant Todd
State witness HPD Detective Grant Todd (“Detective Todd”)
testified as follows. At 8:55 p.m. on January 2, 2013,
Detective Todd learned that two officers had been shot at Pono
Place. Detective Todd arrived at Pono Place at around 9:00 p.m.
Detective Todd saw two ambulances taking Officers Gouveia and
Hatada away. After learning what had happened from another
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officer at the scene, Detective Todd began to secure the scene
to preserve evidence. Detective Todd observed three bullet
casings underneath a black van and two casings at the front of
the van. Detective Todd noticed a hole in the door of the white
truck consistent with “a projectile from a gun.” Detective Todd
later received information that Martin was at a residence on
East Palai Street on January 3, 2013. As part of the
investigation, Detective Todd sent to the HPD crime lab Officer
Hatada’s firearm, the firearm recovered from the East Palai
Street house, the projectile located in the white truck, eight
bullet casings recovered from a field at the end of Maile
Street, the projectile found at the East Palai Street residence,
the three casings located underneath the black van, and the two
casings located at the front of the black van.
i. Cindee Lorenzo
State witness Cindee Lorenzo (“Lorenzo”) testified as
follows. Lorenzo was a criminalist at the Honolulu Police
Department Scientific Investigation Section (“SIS”) assigned to
the Firearm and Tool Mark Unit. The State and defense
stipulated to the chain of custody of items sent to SIS by
Detective Todd. Lorenzo determined that the eight casings
recovered from Maile Street and the three casings found beneath
the black vehicle matched the firearm recovered from the East
Palai Street house. Lorenzo also determined that the casing
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recovered from the East Palai Street residence matched the
firearm from the East Palai Street house.
j. Sonya Chong
State witness Sonya Chong (“Chong”) testified as follows.
Chong had been Martin’s girlfriend from December 2011 to June
2012 and she and Martin had lived together at the beginning of
2012. Chong had seen Martin with a silver and gray hand-held
firearm toward the end of their relationship. Martin would
practice aiming the firearm and say, “[F]uck the cops.” On
cross-examination, Chong testified that Martin did not indicate
to her that he was fearful of others, but that Martin slept with
his gun under his pillow. Chong also acknowledged that
testifying against Martin was “an opportunity for [her] to get
back at [him].”
k. David Carroll
Defense witness David Carroll (“Carroll”) testified as
follows. On January 2, 2013, Carroll was beaten and arrested by
police for disorderly conduct. On that day, the police told
Carroll they were “looking for a murderer,” and identified
Martin by name. Carroll spent three days in jail and the police
tried “to get [him] to state that [he had] personally seen
[Martin] shoot the officers.” Carroll had not, however, seen
Martin shoot officers. On cross-examination, Carroll testified
that Martin was “like a brother” to him, and that on January 2,
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2013, he had been distraught because he thought the police had
shot Martin. He had left Martin at Pono Place on January 2,
2013, and he knew Martin had a gun. Carroll also later
testified as a witness called by the State as follows.
On January 2, 2013, Carroll had been living at the Maile
Apartments. At around 7:00 p.m. on that day, Carroll had left
home with Martin to buy milk for Carroll’s son. Carroll and
Martin stopped in front of the apartments and Martin asked
Carroll if it was “okay to pop off some rounds.” Martin showed
Carroll a black gun, said “Fuck the police,” and raised his gun
and started shooting it into the air. After Martin fired the
gun, Carroll saw police lights, and he and Martin “started
crawling like military soldiers” to avoid being seen for
approximately half an hour. Carroll and Martin then went to
Pono Place, where Martin started a conversation with people
fishing. Carroll left Martin at Pono Place and bought milk at a
gas station. Carroll then returned to the Maile Apartments. At
the Maile Apartments, Carroll ran into Misty Quiocho
(“Quiocho”), who asked him where Martin was. Carroll told
Quiocho that he was going to check on Martin at Pono Place.
Carroll then heard a series of gunshots that “weren’t all from
the same weapon,” and he “ran hysterically toward that
direction” thinking Martin had been shot. While he was crossing
a bridge, a police officer approached him from Pono Place and
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yelled at him to “get back.” Carroll walked back toward Maile
Street to talk with his neighbors, but was then “ordered to
approach the police officers,” who wanted to question him about
“why [he] came towards them in that way.” Carroll testified the
police slammed him into the ground and beat him up. He was then
taken to the police station, where he stayed for three days.
l. Misty Quiocho
Defense witness Quiocho testified as follows. Quiocho had
previously been convicted of crimes of dishonesty.6 Martin had
been Quiocho’s boyfriend off and on for four years. During
Quiocho’s relationship with Martin, he had been afraid to sleep
and would barricade the door “so nobody could come in to hurt us
or him or his family.” Quiocho had never seen Martin with a gun
and had not heard him make threats against the police. Martin
was fearful of and tried to avoid the police. Also, Martin had
attempted suicide eight months to a year before January 2013.
On cross-examination, Quiocho testified that she still loved
Martin and that Martin had been avoiding the police because the
police had a warrant for him.
6 Quiocho testified that she had been convicted for forgery in the second
degree, theft in the second degree, theft in the fourth degree, and
unauthorized entry into a motor vehicle. The admission of Quiocho’s previous
convictions are not raised as an issue on appeal.
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3. Tachibana colloquy
On April 14, 2014, prior to the close of Martin’s case, the
circuit court conducted a Tachibana colloquy, which is quoted in
Section IV.A below.
4. Martin’s closing argument
In closing argument, Martin repeatedly argued identity as a
defense. His arguments included assertions of reasonable doubt
as to whether he was the person hiding under the black vehicle
on January 2, 2013 who had shot the officers, that Officer
Hatada had identified the suspect as having a full-sleeved
tattoo, and that although he had a tattoo running down a portion
of his left arm, it was not a full-sleeved tattoo, that Officer
Gouveia had not been able to identify him as the suspect, and
that the witnesses that had identified him as the suspect had
credibility issues.
5. Verdict and sentencing
On April 10, 2014, the court dismissed Counts 2 and 5 (the
lesser-included assault in the first degree charges) without
prejudice. On April 24, 2014, the jury returned verdicts
finding Martin guilty of the included offense of assault in the
first degree against Officer Hatada (Count 1), two counts of use
of a firearm in the commission of a separate felony (Counts 3
and 6), attempted murder in the first degree as to Officer
Gouveia (Count 4), ownership or possession prohibited of any
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firearm or ammunition by a person charged with or convicted of
certain crimes (Count 7), carrying or possessing a loaded
firearm on a public highway (Count 8), place to keep pistol or
revolver (Count 9), and reckless endangering in the second
degree (Count 11). The jury found Martin not guilty of
alteration of identification marks prohibited (Count 10).
The sentencing hearing occurred on July 25, 2014. The
State argued that consecutive sentencing was appropriate under
the facts of the case. The circuit court stated that “the
shooting of Officer Hatada involved serious criminal offenses
which deserve separate punishment and there is a need for [a
consecutive sentence] to . . . . stop[] others from committing
similar crimes.” The circuit court therefore sentenced Martin
to ten years imprisonment on Count 1, twenty years on Count 3,
life imprisonment without the possibility of parole on Count 4,
twenty years on Count 6, five years on Count 7, ten years on
Count 8, ten years on Count 9, and one year on Count 11. The
court ordered that the sentences for Counts 3, 4, 6, 7, 8, 9,
and 11 be served concurrently, but consecutively to the sentence
in Count 1.
On August 5, 2014, the court entered its judgment of
conviction and sentence, which Martin timely appealed to the
ICA.
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C. ICA proceedings
On appeal, Martin raised the following points of error
relevant to the issues on certiorari:7
1. The trial court erred when it gave improper warnings
in violation of State v. Tachibana, 79 Hawaiʻi 226, 900 P.2d
1293 (1995).
2. The trial court erred by (i) admitting that Defendant
attempted suicide on the date after the officers were shot,
(ii) by determining the Defendant’s statement “I shot
myself” was voluntary, and (iii) allowing the introduction
of such evidence without a limiting instruction.
3. The trial court erred in allowing in evidence of
other prior “bad acts” and in not providing a limiting
instruction concerning these “bad acts.”
4. Defendant’s convictions for attempted murder and for
assault in the first degree should be vacated because the
trial court failed to properly instruct the jury on lesser-
included offenses.
The ICA rejected all of Martin’s points of error on appeal
in its March 29, 2019 summary disposition order. State v.
Martin, No. CAAP-XX-XXXXXXX, at 1, 3 (App. Mar. 29, 2019) (SDO).
D. Application for Writ of Certiorari
Martin’s Application raises presents five questions:
1. Did the ICA commit grave errors of law and fact
when it held that the trial court did not engage in a
deficient Tachibana colloquy?
2. Did the ICA commit grave errors of law and fact
when it held that the trial court properly admitted
evidence of defendant’s suicide attempt?
3. Did the ICA commit grave errors of law and fact
when it held that the trial court properly admitted
7 Martin also raised the following issues to the ICA, which he does not
raise on certiorari: (1) The circuit court judge erred by failing to
disqualify/recuse himself for donating money to the wife of one of the
victims in this case; (2) Because the jury rendered an impermissibly
inconsistent verdict when it found Martin guilty of assault in the first
degree for the shooting of one officer and attempted murder for the shooting
of the second officer, the circuit court wrongfully denied Martin’s motion
for new trial; (3) There was insufficient evidence to support the jury’s
conviction for attempted murder in Count 4; (4) The trial court erred in
imposing consecutive sentences; and (9) Ineffective assistance of counsel.
As there is no plain error in the ICA’s decisions on these points of error,
we do not further discuss any of these issues raised to the ICA.
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evidence of defendant’s statement that he shot
himself?
4. Did the ICA commit grave errors of law and fact
by holding that the trial court did not err in
admitting prior bad acts of defendant?
5. Did the ICA commit grave errors of law and fact
by holding that defendant’s convictions for attempted
murder and assault in the first degree should [not]
be vacated because the trial court failed to properly
instruct the jury on lesser-included offenses?
III. Standards of review
A. Validity of waiver of the right to testify
The validity of a defendant’s waiver of constitutional
rights in a criminal case is a question of law under the state
and federal constitutions, which we review under the right/wrong
standard. State v. Torres, 144 Hawaiʻi 282, 288, 439 P.3d 234,
240 (2019) (citations omitted).
B. Admissibility of evidence
Different standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard is applied in the case of those rules of evidence
that require a “judgment call” on the part of the trial
court.
State v. Williams, 146 Hawaiʻi 62, 72, 456 P.3d 135, 145 (2020)
(brackets and citations omitted).
C. Jury instructions on lesser-included offenses
When jury instructions or the omission thereof are at issue
on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial.
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State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)
(internal brackets and citations omitted).
D. Plain error
“We may recognize plain error when the error committed
affects substantial rights of the defendant.” State v. Hauge,
103 Hawaiʻi 38, 48, 79 P.3d 131, 141 (2003) (internal citations
and quotation marks omitted); see also Hawaiʻi Rules of Penal
Procedure (HRPP) Rule 52(b) (1993) (“Plain error or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court.”).
IV. Discussion
A. Martin’s right to testify was not violated based on the
Tachibana colloquy
In his first issue on certiorari, Martin argues that the
circuit court’s colloquy regarding his waiver of his right to
testify was deficient as a matter of law.
Our law protects both the right to testify and the right
not to testify. State v. Celestine, 142 Hawaiʻi 165, 169, 415
P.3d 907, 911 (2018). Tachibana v. State, 79 Hawaiʻi 226, 900
P.2d 1293 (1995), established the requirement that when a
defendant in a criminal case indicates an intention not to
testify, the trial court must advise the defendant of the right
to testify and must obtain an on-the-record waiver of the
right. 79 Hawaiʻi at 236, 900 P.2d at 1303. We stated that this
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advisement should consist of informing the defendant (1) that
they8 have a right to testify, (2) that if they want to testify,
no one can prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to cross-examine them.
79 Hawaiʻi at 236 n.7, 900 P.2d at 1303 n.7. We also stated that
in connection with the privilege against self-incrimination, the
defendant should also be advised (4) that they have a right not
to testify and (5) that if they do not testify, then the jury
can be instructed about that right. Id. (citations omitted).
In a bench trial, defendants must be advised that if they
exercise their right not to testify, no inference of guilt may
be drawn for exercising this right, i.e., that a decision not to
testify cannot be used against a defendant by the judge in
deciding the case. State v. Monteil, 134 Hawaiʻi 361, 371-72,
341 P.3d 567, 577-78 (2014).
After Tachibana, we also held that a second component of
the Tachibana colloquy involves the court engaging in a true
“colloquy” with the defendant. Celestine, 142 Hawaiʻi at 170,
415 P.3d at 912, citing State v. Han, 130 Hawaiʻi 83, 90-91, 306
P.3d 128, 135-36 (2013). This requires “a verbal exchange
between the judge and the defendant ‘in which the judge
8 “They, them, and their” are used as singular pronouns when the gender
identity of the person referred to is unknown or immaterial.
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ascertains the defendant’s understanding of the proceedings and
of the defendant’s rights.’” Celestine, 142 Hawai‘i at 170, 415
P.3d at 912 (citing Han, 130 Hawaiʻi at 90, 306 P.3d at 135
(emphasis omitted)).
To accomplish the purposes of a true colloquy, we suggested
that the trial court engage in a verbal exchange with the
defendant at least twice during the colloquy in order to
ascertain the defendant’s “understanding of significant
propositions in the advisement.” Han, 130 Hawaiʻi at 90, 306
P.3d at 135. We suggested the first verbal exchange occur after
the court informs the defendant of the right to testify and of
the right not to testify and the protections associated with
these rights, to obtain an affirmative or negative response as
to the defendant’s understanding of these principles. 130
Hawaiʻi at 90-91, 306 P.3d at 135-36. We also suggested a second
verbal exchange after a defendant informs the court that the
defendant does not intend to testify. 130 Hawaiʻi at 91, 306
P.3d at 136. We stated that as part of this inquiry, the trial
court should elicit responses as to whether the defendant
intends to not testify, whether anyone is forcing the defendant
not to testify, and whether the decision to not testify is the
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defendant’s. Celestine, 142 Hawaiʻi at 170-71, 415 P.3d at 912-
13.9
A defendant’s right to testify is violated when the
colloquy does not establish “an objective basis for finding that
[the defendant] knowingly, intelligently, and voluntarily gave
up” their right to testify. Han, 130 Hawaiʻi at 91, 306 P.3d at
136. Courts look to the totality of the facts and circumstances
to determine whether a waiver of the right to testify was
voluntarily and intelligently made. 130 Hawaiʻi at 89, 306 P.3d
at 134.
Applying these principles to this case, prior to the close
of Martin’s case, the following colloquy took place:
THE COURT: Okay. So you are Keaka Martin?
THE DEFENDANT: Yes.
THE COURT: Okay. Are you thinking clearly?
THE DEFENDANT: Yes.
THE COURT: Are you presently sick?
THE DEFENDANT: No.
THE COURT: Within the past 48 hours have you taken any
pills, drugs, medication, or drank any alcohol?
THE DEFENDANT: Um, ibuprofens.
THE COURT: Okay. You’re suffering from pain?
THE DEFENDANT: Yes.
THE COURT: Okay. Despite your pain and the medication, are
you able to think clearly now?
THE DEFENDANT: Yes.
THE COURT: Okay. As I discussed with you before the start
of the trial, or at the start of the trial, you have the
constitutional right to testify in your own defense.
Although you should consult with your lawyer regarding the
decision to testify, it is your decision and no one can
prevent you from testifying should you choose to do so. If
9 In State v. Torres, 144 Hawaiʻi 282, 439 P.3d 234 (2019), decided after
the Tachibana colloquy at issue here, we further “h[e]ld that trial courts
are required to engage in an on-the-record colloquy with a defendant when the
defendant chooses to testify to ensure that a waiver of the right not to
testify is knowing, intelligent, and voluntary.” 144 Hawaiʻi at 294-95, 439
P.3d at 246-47.
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you decide to testify, the prosecution will be allowed to
cross-examine you. You also have a constitutional right
not to testify and to remain silent. If you choose not to
testify, the jury will be instructed that it cannot hold
your silence against you in deciding your case. Did you
understand what I had to say?
THE DEFENDANT: Yes.
THE COURT: I have been advised by your lawyer that you do
not intend to testify in regard to this case; is this true?
THE DEFENDANT: Yes.
THE COURT: And is it your decision not to testify?
THE DEFENDANT: Yes, it is.
THE COURT: Mr. Strauss, you’re -- are you going to suggest
any more questions of Keaka?
MR. STRAUSS: No, Your Honor.
THE COURT: In this area? No? Okay. How about the State?
MS. NAGATA: No, Your Honor.
Martin argues that this was not a “true colloquy” because
the court recited a “litany of rights” without obtaining a
response as to Martin’s understanding of the fundamental
principles pertaining to his rights, and because evidence of
Martin’s mental illness was a salient fact in this case. Martin
compares the colloquy in his case to the colloquy we held
deficient in State v. Pomroy, 132 Hawaiʻi 85, 319 P.3d 1093
(2014).
In Pomroy, we held that the trial court’s failure to engage
in a true colloquy to “ascertain the defendant’s understanding
of the individual rights comprising the Tachibana colloquy
results in the failure to ‘ensure that [the defendant]
understood his rights [and] amounts to a failure to obtain the
on-the-record waiver required by Tachibana.’” Pomroy, 132
Hawaiʻi at 93, 319 P.3d at 1101 (quoting Han, 103 Hawaiʻi at 91,
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306 P.3d at 136). In Pomroy, the court provided the following
Tachibana colloquy:
THE COURT: Alright. Mr. Pomroy, before your attorney
[rests the defense’s case], let me advise you. You have
the right to testify on your own behalf. That decision is
yours and yours alone. If you choose to testify you will
be subject to cross-examination by the state. If you
choose not to testify, I cannot hold that against you. But
the only evidence I will have is what the State has
presented, unless you have other witnesses; you understand
that?
THE DEFENDANT: Yes, ma’am.
132 Hawaiʻi at 92, 319 P.3d at 1100 (alterations in original).
In Pomroy, we held that, in addition to failing to advise
the defendant that he had the right not to testify and that no
one could prevent him from testifying, the court did not engage
in a true colloquy, but recited a “litany of rights.” Id. We
noted that, after reciting this litany of rights, the court only
asked Pomroy if he “understood that,” and it was unclear which
right “that” referenced. Id.
As compared to Pomroy, in this case, the circuit court also
advised Martin that he had the right not to testify and that no
one could prevent him from testifying. In addition, the circuit
court engaged in a verbal exchange with Martin at least twice
during the colloquy in order to ascertain his “understanding of
significant propositions in the advisement[,]” as suggested by
Han, 130 Hawaiʻi at 90, 306 P.3d at 135 (citation omitted). The
circuit court engaged in a verbal exchange with Martin after
informing him of the right to testify and the right not to
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testify and of the protections associated with these
rights. The circuit court also engaged in a second verbal
exchange after it indicated to Martin its understanding that he
did not intend to testify. Although the circuit court did not
ask Martin whether anyone was forcing him not to testify, it
engaged in a third exchange with Martin, asking him if it was
his decision not to testify. Thus, although the circuit court
did not the use precise terminology, “Is anyone forcing you not
to testify?” the circuit court’s questioning was tantamount to
eliciting that information.10
We do express concern regarding part of the ICA’s analysis
of the adequacy of Martin’s Tachibana colloquy. In Han, we held
that “‘[s]alient facts,’ such as mental illness or language
barriers, require that a court effectively engage the defendant
in a dialogue that will effectuate the rationale behind the
colloquy and the on-the-record waiver requirements as set forth
in Tachibana.” 130 Hawaiʻi at 92, 306 P.3d at 137 (citation
omitted). The ICA determined that Martin’s “impaired mental
faculties” did not require the court to make “additional efforts
to ensure that [Martin] understood his Tachibana rights” in part
because Martin was deemed competent and fit to proceed to trial.
Martin, SDO at 12.
10 Trial judges should, however, include this specific question in their
colloquies.
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Although the fact that a person is “competent and fit to
proceed” does not necessarily mean that the person’s waiver is
“voluntary and intelligent,” under the totality of circumstances
in this case, we hold the circuit court’s Tachibana colloquy
provides “an objective basis for finding that [Martin]
knowingly, intelligently, and voluntarily gave up” his right to
testify. Han, 130 Hawaiʻi at 91, 306 P.3d at 136. In addition
to following the requirements of Tachibana, Han, and Celestine,
the circuit court asked various questions with regard to the
clarity of Martin’s state of mind at the time of the colloquy.
Thus, under the totality of circumstances, the ICA did not err
in holding that the circuit court did not violate Martin’s
constitutional right to testify by failing to conduct a proper
Tachibana colloquy.
B. Evidence of Martin’s suicide attempt was properly admitted
as relevant to his identify as the perpetrator of the
crimes charged
1. Background
In his second question on certiorari, Martin contends the
ICA erred in holding that evidence of Martin’s suicide attempt
was admissible. In his motion in limine #2 before the circuit
court, Martin argued that the evidence of his self-inflicted
gunshot wound was a specific instance of conduct inadmissible
under HRE Rule 404(b) and that the evidence would result in
excessive prejudice against him pursuant to HRE Rule 403 (1980).
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The State argued in opposition that evidence of Martin’s self-
inflicted gunshot wound was admissible under HRE Rule 404(b) as
relevant and probative of identity, opportunity, intent,
knowledge, and absence of mistake or accident. On appeal, the
State also argued that the evidence that Martin shot himself was
necessary to “give context to the manner in which the gun was
recovered.”
At the hearing on the motion in limine #2, the circuit
court sua sponte proposed that the evidence of Martin’s suicide
attempt was also relevant to Martin’s consciousness of guilt,
citing an ALR article.11 In its written order denying Martin’s
motion, the circuit court concluded that evidence of Martin’s
suicide attempt was relevant and probative of Martin’s
consciousness of guilt and also that Martin’s self-inflicted
gunshot wound was relevant as to identity.
HRE Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible
where such evidence is probative of another fact that is of
consequence to the determination of the action, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, modus operandi, or absence of mistake
or accident. In criminal cases, the proponent of evidence
to be offered under this subsection shall provide
reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such evidence
it intends to introduce at trial.
11 See Gilsinger, supra note 5.
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According to the commentary for HRE Rule 404(b), “[w]hen offered
for the specified purposes other than mere character and
propensity . . . ‘other crimes, wrongs, or acts’ evidence may be
admissible provided the Rule 403 test is met.” HRE Rule 404
cmt.
2. Relevance of suicides and attempted suicides as
evidence of consciousness of guilt
Although the State never argued on appeal that Martin’s
suicide attempt was relevant as consciousness of guilt,
expressing agreement with the circuit court, the ICA held that
the evidence of Martin’s suicide attempt was also relevant as
evidence of consciousness of guilt. Martin, SDO at 9-10. We
therefore preliminarily address the issue of whether evidence of
a suicide or a suicide attempt is relevant as evidence of
consciousness of guilt.
A court’s determination that evidence is “relevant” within
the meaning of HRE Rule 401 is reviewed under the right/wrong
standard of review. State v. Lavoie, 145 Hawaiʻi 409, 422, 453
P.3d 229, 242 (2019) (citation omitted). In determining that
the evidence of Martin’s suicide attempt was relevant as
consciousness of guilt, the circuit court compared the probative
value of a suicide attempt to the probative value of evidence of
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flight.12 However, there are many reasons why someone might
attempt suicide. Mental disorders, alcohol and other substance
use disorders, and previous suicide attempts are recognized risk
factors indicating that a person is more likely to attempt
suicide.13
The history of suicide evidence as relevant of
consciousness of guilt in American law has actually been traced
to an argument made by Daniel Webster. Arguing for the
prosecution in the trial of Commonwealth v. Knapp, 26 Mass. 496
(1830), Webster asserted that suicide was the equivalent of a
confession, stating:
Meantime the guilty soul cannot keep its secret . . . . It
betrays his discretion, it breaks down his courage, it
conquers his prudence. When suspicions from without begin
to embarrass him, and the net of circumstances to entangle
him, the fatal secret struggles with still greater violence
to burst forth. It must be confessed! It WILL be
confessed! There is no refuge from confession, but
suicide,—and suicide is confession.
Mann, 625 A.2d at 1107 (quoting Commonwealth v. Knapp, 7
American State Trials 395 (1830)) (ellipsis and emphasis in
original). Apparently following Webster’s logic, a majority of
U.S. courts have since then held that evidence of suicide and
12 Although many years ago, this court suggested that flight evidence
could be an indicator of consciousness of guilt. See Territory v. Corum, 34
Haw. 167, 189 (Haw. Terr. 1937) (Peters, J., dissenting). More recently, we
have questioned the relevance of flight evidence as an indicator of guilt.
See State v. Heapy, 113 Hawaiʻi 283, 294, 151 P.3d 764, 775 (2007).
13 We Can All Prevent Suicide, Suicide Prevention Lifeline,
https://perma.cc/9QUE-6PB7.
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attempted suicide is admissible as relevant to a defendant’s
consciousness of guilt, often analogizing suicide evidence to
flight evidence.14 Scholarship from as early as the 1950s,
however, called into question the relevance of a suicide attempt
as consciousness of guilt.15 A 1964 Note observed that
“[p]sychologists rarely find that an attempted suicide was
motivated by a sense of conscious guilt in connection with a
crime,” and that studies had failed to find a connection between
an attempted suicide and a criminal act.16 In addition, more
recently, state courts of last resort have questioned the
probative value of suicide evidence as to consciousness of
guilt. In State v. Mann, the New Jersey Supreme Court
recognized that, aside from guilt, other factors such as “a
defendant’s psychological, social or financial situation may
underlie a suicide attempt.” 625 A.2d at 1108. The New Jersey
Supreme Court held that trial courts should hold hearings to
“determine whether evidence of a defendant’s suicide attempt is
sufficient to support a reasonable inference that the suicide
14 See Gilsinger, supra note 5.
15 See The Judicial Interpretation of Suicide, 105 U. PA. L. REV. 391
(1957); Note, Attempted Suicide as Evidence of Guilt in Criminal Cases: The
Legal and Psychological Views, 1964 WASH. U. L. Q. 2014.
16 Attempted Suicide as Evidence of Guilt in Criminal Cases, supra note
15, at 207.
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attempt was . . . evidence of consciousness of guilt.” Id.17
Similarly, the Vermont Supreme Court has cautioned that “[t]he
underlying reasons motivating an attempt to take one’s life can
be both numerous and highly complex . . . .” Onorato, 762 A.2d
at 859-60.
We reject the majority rule that evidence of suicides and
attempted suicides are automatically admissible as relevant to a
defendant’s consciousness of guilt. We agree with the Vermont
Supreme Court that “[t]he underlying reasons motivating an
attempt to take one’s life can be both numerous and highly
complex . . . .” Onorato, 762 A.2d at 859-60. We also agree
with the New Jersey Supreme Court that, aside from guilt, other
factors such as “a defendant’s psychological, social or
financial situation may underlie a suicide attempt.” Mann, 625
A.2d at 1108.
Therefore, we hold that when evidence of a suicide or
suicide attempt is proffered as evidence of consciousness of
guilt, the proponent must establish a foundation for the
evidence’s admission for this purpose pursuant to HRE Rule 104
(1984).18 In a criminal case, if such evidence is being offered
17 But see text accompanying note 19, infra. We require an evidentiary
foundation that a suicide or suicide attempt constitutes “consciousness of
guilt,” which requires that foundation be established by a “preponderance of
evidence,” not by a “reasonable inference.”
18 HRE Rule 104 reads in relevant part:
(continued. . .)
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against the defendant, “[t]he trial court also should ensure
that a defendant has been given adequate notice of the State’s
intention to offer proof of the attempted suicide.” Mann, 625
A.2d at 1108.
In addition, in determining whether a sufficient foundation
exists for admission of a suicide or suicide attempt as relevant
of consciousness of guilt, as explained in Addison M. Bowman,
Hawaii Rules of Evidence Manual 1-15 (2018-19 ed.) (“Bowman”),
in State v. McGriff, 76 Hawaiʻi 148, 871 P.2d 782 (1994), this
court “adopted the preponderance of the evidence standard for
foundation factfinding in [HRE R]ule 104(a) admissibility
hearings, citing Bourjaily v. United States, 483 U.S. 171, 175
(a) Questions of admissibility generally. Preliminary
questions concerning . . . the admissibility of evidence
shall be determined by the court, subject to the provisions
of subsection (b). In making its determination the court
is not bound by the rules of evidence except those with
respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of
the fulfillment of the condition.
(c) Hearing of jury. Hearings on the admissibility of
confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary matters
shall be so conducted when the interests of justice require
or, when an accused is a witness, if the accused so
requests.
(d) Testimony by accused. The accused does not, by
testifying upon a preliminary matter, subject oneself to
cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does not limit the
right of a party to introduce before the jury evidence
relevant to weight or credibility.
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(1987).”19 Thus, to establish the requisite foundation for
relevance under HRE Rule 104(a), a trial court must determine
that, by a preponderance of the evidence, the suicide or suicide
attempt constitutes evidence of a consciousness of guilt, while
also “consider[ing any] alternative explanations of the suicide
attempt offered by a defendant.” Mann, 625 A.2d at 1108.
Further, assuming relevance is found to exist under HRE Rule
104(a), but the relevance is conditioned upon the existence of
another fact, such as the existence of an alleged suicide note,
then HRE Rule 104(b) also applies.
Even if the trial court determines that the requisite
foundation for admissibility exists, the trial court must still
conduct an HRE Rule 403 balancing analysis. See Section IV.B.4,
infra; see also, Mann, 625 A.2d at 1108 (“The court should
consider . . . the possible prejudice to a defendant from the
introduction of the attempted suicide evidence or from a
defendant's effort to offer a different explanation of that
evidence.”).
19 As further stated by Professor Bowman:
This standard of proof for evidence foundations applies in
civil and criminal proceedings. The burden of proof of
preliminary facts is placed on the proponent of the
evidence except when privilege is the issue, in which event
the party asserting the privilege bears the burden of proof
of the privilege foundation.
Bowman, at 1-15.
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3. Martin’s suicide attempt was admissible as relevant to
identity
Although the circuit court and ICA erred in determining
that evidence of Martin’s self-inflicted gunshot wound was
admissible as showing his consciousness of guilt, the circuit
court also ruled that, as argued by the State, Martin’s self-
inflicted gunshot wound was relevant as to his identity as the
perpetrator of the offenses charged. The State argued that the
evidence that Martin shot himself was necessary to “give context
to the manner in which the gun was recovered.” On certiorari,
Martin argues that his history of mental illness, prior suicide
attempts, fear of the police, and abnormal paranoid behavior
renders the probative value of his suicide attempt to show
consciousness of guilt “minimal at best.” Under the
circumstances of this case, however, we hold that, as
alternatively concluded by the circuit court, evidence of
Martin’s suicide attempt was relevant to his identity as the
possessor of the firearm that discharged the eight casings
recovered from Maile Street and the three casings found beneath
the black vehicle at Pono Place. During closing argument,
Martin strongly contested that he was the person that had
committed the offenses charged. Therefore, the evidence that
Martin shot himself with the firearm used in the offenses the
next day and that the police through remote control saw Martin
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lying on his back with the firearm next to him was relevant to
identifying Martin as the person who had possessed and
discharged the same firearm the day before.
4. HRE Rule 403 analysis
Even if evidence of a suicide or attempted suicide is
determined to be relevant, a trial court must also engage in an
HRE Rule 403 balancing analysis. Under Rule 403, relevant
evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” The balance between the
evidence’s probative value and prejudicial effect is “predicated
upon an assessment of ‘the need for the evidence, the efficacy
of alternative proof, and the degree to which the evidence will
probably rouse the jury to overmastering hostility.’” State v.
Uyesugi, 100 Hawaiʻi 442, 463, 60 P.3d 843, 864 (2002).
Martin argues that the trial judge did not properly
consider the highly prejudicial nature of the attempted suicide
evidence, and that the evidence of the gun and casings found
near him could have been elicited without discussion of his
suicide attempt. We agree that the evidence of Martin’s suicide
attempt was prejudicial; like the circuit court, it is possible
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that jurors may have assumed that the suicide evidence indicated
consciousness of guilt.20
The record does not show that the court meaningfully
considered the prejudicial effect of Martin’s suicide attempt.
Although the circuit court did not appear to have conducted an
HRE Rule 403 analysis, under the circumstances, the probative
value of Martin’s suicide attempt as to his identity as the
perpetrator of the offenses was not substantially outweighed by
its prejudicial effect, especially because Martin strongly
argued mistaken identity.
5. Limiting instruction
Martin alternatively argues that, if the evidence of his
suicide attempt was properly admitted, the circuit court should
have at least sua sponte provided the jury with a cautionary
instruction about the limited admissibility of Martin’s suicide
attempt. Specifically, Martin argues that the circuit court
20 In addition, suicide was a felony at common law and was sometimes
considered “self-murder.” See Washington v. Glucksberg, 521 U.S. 702, 710-17
(1997) (summarizing the Anglo-American common law tradition of criminalizing
suicide). As an editorial published by the Centre for Suicide Prevention
points out, contemporary language used to discuss suicide still reflects
suicide’s historic criminality, as the phrase to “commit” suicide “equates
the act with homicide or fratricide, and suggests that it is akin to ‘self-
murder.’” Robert Olson, Suicide and Stigma, Centre for Suicide Prevention,
https://perma.cc/B4LZ-WZL3. Suicide has also been mistakenly associated with
cowardice. See Glucksberg, 521 U.S. at 712 (quoting Blackstone’s
Commentaries as referring to suicide as “the pretend heroism, but real
cowardice, of the Stoic philosophers, who destroyed themselves to avoid those
ills which they had not the fortitude to endure”).
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should have given Hawaiʻi Jury Instructions—Criminal (“HAWJIC”)
2.03 concerning “Other Crimes, Wrongs or Acts.”21
Under HRE Rule 105 (1980), “[w]hen evidence which is
admissible as to one party or for one purpose but not admissible
as to another party or for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.” Martin did not
request a cautionary instruction at trial. Under the
circumstances of this case, as the failure to give a cautionary
instruction did not amount to plain error affecting substantial
rights, there was no error based on the circuit court not sua
21 HAWJIC 2.03 reads:
You [are about to hear] [have heard] evidence that the
Defendant at another time, may have [engaged in]
[committed] other [crimes] [wrongs] [acts]. This evidence,
if believed by you, may be considered only on the issue of
Defendant's [motive to commit the offense charged]
[opportunity to commit the offense charged] [intent to
commit the offense charged] [preparation to commit the
offense charged] [plan to commit the offense charged]
[knowledge (specify knowledge required to commit the
offense charged] [identity as the person who committed the
offense charged] [modus operandi] [alleged conduct having
resulted from a mistake or accident]. Do not consider this
evidence for any other purpose. You must not use this
evidence to conclude that because the Defendant at another
time may have [engaged in] [committed] other [crimes]
[wrongs] [acts] that [they are] a person of bad character
and therefore must have committed the offense[s] charged in
this case.
In considering the evidence for the limited purpose for
which it has been received, you must weigh it in the same
manner as you would all other evidence in this case, and
consider it along with all other evidence in this case.
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sponte providing the jury with HAWJIC 2.03, “Other Crimes,
Wrongs or Acts.”
Martin argues that we should adopt a rule similar to that
in Mann requiring courts to provide a cautionary instruction “in
all cases where evidence of [a] Defendant’s attempt at suicide
is elicited.”22 Given what appear to be common misconceptions
regarding suicide or attempted suicides as consciousness of
guilt and the potential prejudicial nature of suicide evidence,
trial courts should provide a limiting instruction as
appropriate under the facts of a case when evidence of an
attempted suicide is admitted.23 Again, under the circumstances
of this case, as the failure to give a cautionary instruction
did not amount to plain error affecting substantial rights,
there was no error requiring vacatur of Martin’s convictions.
22 In Mann, the New Jersey Supreme Court held that if evidence of a
defendant’s suicide attempt is admitted, the trial court should instruct the
jury that “it first must find that an actual suicide attempt had occurred.”
625 A.2d at 1108. Second, the jury “should then consider whether that
attempt was made to avoid the burdens of prosecution and punishment.” 625
A.2d at 1108-09. Third, the jury “should also determine whether [the]
defendant’s attempted suicide demonstrated consciousness of guilt. The trial
court should instruct the jury that if it credits any alternative explanation
offered by the defendant, it may not infer consciousness of guilt from the
evidence of a suicide attempt.” 625 A.2d at 1109.
23 We do not hold that all cases with suicide or attempted suicide
evidence require a limiting instruction if not requested, but we encourage
trial judges to exercise their discretion to fashion limiting instructions as
appropriate in the contexts of the cases in which suicide evidence might be
admitted. We also do not adopt the Mann standards for limiting instructions.
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C. Martin’s statement that he shot himself was properly
admitted as voluntarily made
In his third question on certiorari, Martin argues that the
ICA gravely erred by not reversing the circuit court’s
determination that his “I shot myself” statement was made
voluntarily. Specifically, Martin argues that his deteriorated
physical condition due to his gunshot wound rendered his
statement involuntary.
“Under the fifth amendment to the United States
Constitution and article 1, section 10 of the Hawaii
Constitution, ‘[n]o person shall . . . be compelled in any
criminal case to be a witness against [themself].” State v.
Kelekolio, 74 Haw. 479, 501, 849 P.2d 58, 69 (1993) (quoting
State v. Pauʻu, 72 Haw. 505, 509, 824 P.2d 833, 835 (1992)).
“Any waiver of one’s constitutional rights must be voluntarily
and intelligently undertaken[.]” Pauʻu, 72 Haw. at 509, 824 P.2d
at 835. HRS § 621-26 also provides that “[n]o confession shall
be received in evidence unless it is first made to appear to the
judge before whom the case is being tried that the confession
was in fact voluntarily made.”
The voluntariness of a defendant’s statement is determined
by a totality of the circumstances. Kelekolio, 74 Haw. at 502,
849 P.2d at 69. “A defendant’s mental and physical condition
can be part of the ‘totality of circumstances’ relevant to the
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issue of the voluntariness of [their] custodial statements.” 74
Haw. at 503, 849 P.2d at 69. A confession may be rendered
involuntary by “impermissible police conduct.” 74 Haw. at 503,
849 P.2d at 70. The burden is on the prosecution to show that a
defendant’s statement was voluntarily made and not the product
of coercion. 74 Haw. at 502, 849 P.2d at 69.
In this case, Martin said, “I shot myself” to the police
after suffering a self-inflicted gunshot wound to the abdomen.
Although Martin testified that he did not recall making the
statement, the hearing indicated the statement was spontaneous
and not a product of custodial interrogation or police coercion.
Although a defendant’s mental and physical condition can be part
of the “totality of circumstances” relevant to the issue of the
voluntariness of custodial statements, and Martin testified that
he did not recall making the statement after he shot himself,
under the circumstances of this case, the State met its burden
of establishing that Martin’s “I shot myself” statement was
voluntary under the totality of the circumstances. In any
event, even if the statement was improperly admitted as an
involuntary statement, any error based on its admission would be
harmless beyond a reasonable doubt as there is no reasonable
possibility that admission of this statement contributed to
Martin’s convictions based on the overwhelming additional
evidence that Martin had in fact shot himself.
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D. Evidence of Martin’s prior bad acts was properly admitted
1. Background
In his fourth question on certiorari, Martin argues that
the ICA erred by holding the circuit court did not err by
admitting testimony of Martin’s prior bad acts. Martin argues
that statements made by five witnesses—Sonya Chong, Kawika
Paulino, David Carroll, Misty Quiocho, and Darrel Constantino—
were improperly admitted under HRE Rule 404(b).
As noted earlier, under HRE Rule 404(b), “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith.” However, evidence may be admissible under HRE
Rule 404(b) if it is probative of “motive, opportunity, intent,
preparation, plan, knowledge, identity, modus operandi, or
absence of mistake or accident.” If evidence of prior bad acts
is “offered for substantive reasons rather than propensity, a
trial court must additionally weigh the potential prejudicial
effects of the evidence against its probative value under HRE
Rule 403.” State v. Behrendt, 124 Hawaiʻi 90, 103, 237 P.3d
1156, 1169 (2010). A trial court’s balancing “of such evidence
under HRE Rule 403 . . . is reviewed for abuse of discretion.”
124 Hawaiʻi at 115, 237 P.3d at 1181 (quotations omitted).
Although Martin objected to Paulino’s testimony as leading
and hearsay, to Quiocho’s testimony based on exceeding the scope
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of his direct examination, and to Constantino’s testimony on the
basis of improper refreshment, Martin did not object to the
challenged testimonies of these five witnesses based on HRE
Rule 404(b). Martin also did not challenge any of the testimony
based on HRE Rule 403 grounds. Therefore, as did the ICA, we
review the challenged testimonies of the five witnesses to
determine whether there was plain error affecting Martin’s
substantial rights.
2. Sonya Chong
Martin challenges Chong’s testimony that, approximately six
months prior to the shooting, Martin possessed a silver and gray
hand-held firearm. Chong testified that Martin would practice
aiming the firearm while saying “Fuck the cops” and he had said
that he would shoot cops with the firearm. Chong’s testimony
was not offered for the purpose of showing that Martin acted in
conformity with his prior acts. Chong’s testimony that Martin
practiced aiming the firearm while saying “Fuck the cops,” and
that Martin indicated that he would shoot cops with the firearm
was probative of his intent and absence of mistake or accident.
In addition, the probative value of Chong’s testimony outweighed
the danger of unfair prejudicial effect.
Thus, the ICA did not err in concluding there was no plain
error affecting Martin’s substantial rights as to Chong’s
testimony.
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3. Kawika Paulino
Martin challenges Paulino’s testimony that earlier in the
day on which the officers were shot, Martin told him that he had
outstanding warrants, was facing jail time, and would not go to
jail without a fight. Paulino’s statements regarding Martin’s
awareness of his warrants and potential jail time were probative
of Martin’s motive, intent, and state of mind. The probative
value of the evidence was not outweighed by its prejudicial
effect. Thus, the ICA did not err in concluding there was no
plain error affecting Martin’s substantial rights as to
Paulino’s testimony.
4. David Carroll
Martin challenges Carroll’s testimony that, after about
7:00 p.m. on January 2, 2013, about an hour before the officers
were shot, Martin asked him if he could “pop off some rounds,”
shot rounds into the air, and said, “Fuck the police.” The
challenged evidence was probative of Martin’s state of mind and
also suggests that Martin did not shoot Officers Gouveia and
Hatada by mistake or accident. The probative value of the
evidence was not outweighed by its prejudicial effect. Thus,
the ICA did not err in concluding there was no plain error
affecting Martin’s substantial rights as to Paulino’s testimony.
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5. Misty Quiocho
Martin challenges Quiocho’s cross-examination testimony
elicited by the State that Martin was avoiding the police
because he had a warrant. Martin objected to this testimony on
the grounds that it exceeded the scope of direct examination,
but the State elicited this testimony in response to Quiocho’s
direct testimony that Martin was fearful of and tried to avoid
the police. Quiocho was Martin’s girlfriend for several years
up to the date of the offenses, and her testimony about Martin
avoiding the police was probative of Martin’s state of mind.
Also, its probative value was not substantially outweighed by
its prejudicial effect. Even if Martin had objected to this
testimony on HRE Rule 403 grounds based on it being cumulative,
which it may have been, reviewing the admission of this
testimony under the plain error standard, Martin’s substantial
rights were not violated. Therefore, the ICA did not err in
concluding there was no plain error affecting Martin’s
substantial rights as to Quiocho’s testimony.
6. Darrel Constantino
Martin challenges Constantino’s testimony that, on the
evening of January 2, 2013, prior to the shooting, Martin said,
“Fuck the cops.” Constantino’s testimony was probative of
Martin’s intent and state of mind, and his testimony also
suggests that Martin did not shoot Officers Gouveia and Hatada
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by mistake or accident. Its probative value was not
substantially outweighed by its prejudicial effect. Martin
objected to this testimony on the basis of improper refreshment.
Even if Martin had objected on HRE Rule 403 grounds based on it
being cumulative of Carroll’s testimony, which it may have been,
reviewing the admission of this testimony under the plain error
standard, Martin’s substantial rights were not violated.
Therefore, the ICA did not err in concluding there was no plain
error affecting Martin’s substantial rights as to Constantino’s
testimony.
E. The circuit court did not err with respect to lesser-
included offense instructions
1. Background
In his last question on certiorari, Martin argues that the
jury should have been instructed on various lesser-included
offenses for both Count 1 regarding Officer Hatada and Count 4
regarding Officer Gouveia.
“[J]ury instructions on lesser-included offenses must be
given when there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense.” State v.
Flores, 131 Hawaiʻi 43, 51, 314 P.3d 120, 128 (2013). An offense
is included when:
(a) It is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged;
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(b) It consists of an attempt to commit the offense charged
or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same
person, property, or public interest or a different state
of mind indicating lesser degree of culpability suffices to
establish its commission.
HRS § 701-109 (Supp. 1984).
In Count 1, Martin was charged with attempted murder in the
first degree of Officer Hatada. The jury was instructed on the
lesser-included offenses of attempted murder in the second
degree, assault in the first degree, assault in the second
degree, assault against a law enforcement officer in the first
degree, assault against a law enforcement officer in the second
degree, and reckless endangering in the first degree. Martin
was convicted in Count 1 of the lesser-included offense of
assault in the first degree. Martin argues that the circuit
court should have also instructed the jury on attempted assault
in the first degree,24 attempted assault against a law
enforcement officer in the first degree,25 attempted assault in
24 A person commits assault in the first degree “if the person
intentionally or knowingly causes serious bodily injury to another person.”
HRS § 707-710 (Supp. 1986).
25 A person commits assault against a law enforcement officer in the first
degree if the person “[i]ntentionally or knowingly causes bodily injury to a
law enforcement officer who is engaged in the performance of duty; or . . .
[r]ecklessly or negligently causes, with a dangerous instrument, bodily
injury to a law enforcement officer who is engaged in the performance of
duty.” HRS § 707-712.5 (Supp. 2003).
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the second degree,26 assault in the third degree,27 and reckless
endangering in the second degree.28
In Count 4, Martin was charged with and convicted of
attempted murder in the first degree as to Officer Gouveia. The
jury was also instructed on attempted murder in the second
degree, assault in the first degree, attempted assault in the
first degree, assault in the second degree, assault against a
26 HRS § 707-711 (Supp. 2011), “Assault in the second degree,” provides in
relevant part,
A person commits the offense of assault in the second
degree if:
(a) The person intentionally or knowingly causes
substantial bodily injury to another; [or]
(b) The person recklessly causes serious or
substantial bodily injury to another.”
. . . .
27 HRS § 707-712 (Supp. 1984), “Assault in the third degree,” provides in
relevant part:
(1) A person commits the offense of assault in the third
degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
28 HRS § 707-714, “Reckless endangering in the second degree,” provides in
relevant part:
(1) A person commits the offense of reckless endangering
in the second degree if the person:
(a) Engages in conduct that recklessly places
another person in danger of death or serious bodily
injury; or
(b) Intentionally discharges a firearm in a
populated area, in a residential area, or within the
boundaries or in the direction of any road, street,
or highway; provided that the provisions of this
paragraph shall not apply to any person who
discharges a firearm upon a target range for the
purpose of the target shooting done in compliance
with all laws and regulations applicable thereto.
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law enforcement officer in the first degree, assault against a
law enforcement officer in the second degree, attempted assault
against a law enforcement officer in the first degree, and
reckless endangering in the first degree. Martin argues,
however, that the court should have also instructed the jury on
attempted assault in the second degree, assault in the third
degree, and reckless endangering in the second degree.
Martin’s assertions are without merit because there was no
rational basis in the evidence to acquit Martin of the charges
for which he was convicted in Counts 1 and 4 and to instead
convict him of these lesser-included offenses. Also, with
respect to Count 1, the only evidence of shots fired in Officer
Hatada’s direction was the shot that struck Officer Hatada in
the leg. In addition, there was no evidence to suggest that
both officers were not law enforcement officers engaged in the
performance of duty when they were shot.
Therefore, the circuit court did not err in failing to give
required lesser-included instructions.
F. The circuit court should have given a merger instruction
Finally, although not raised as an issue on appeal, we note
that in addition to his convictions in Counts 3 (Officer Hatada)
and 6 (Officer Gouveia) for carrying or use of a firearm in the
commission of a separate felony in violation of HRS
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§ 134-21(a),29 Martin was also convicted of ownership or
possession prohibited of any firearm or ammunition by a person
charged with or convicted of certain crimes in violation of HRS
§ 134-7(b)30 in Count 7, carrying or possessing a loaded firearm
on a public highway in violation of HRS § 134-26(a)31 in Count 8,
and place to keep pistol or revolver in violation of HRS
§ 134-25(a)32 in Count 9. Counts 7, 8, and 9 were all charged as
having occurred on January 2, 2013. Plain error or defects
29 HRS § 134-21 provides in relevant part as follows:
(a) It shall be unlawful for a person to knowingly carry
on the person or have within the person’s immediate control
or intentionally use or threaten to use a firearm while
engaged in the commission of a separate felony, whether the
firearm was loaded or not, and whether operable or not;
. . . .
(b) A conviction and sentence under this section shall be
in addition to and not in lieu of any conviction and
sentence for the separate felony; provided that the
sentence imposed under this section may run concurrently or
consecutively with the sentence for the separate felony.
30 HRS § 134-7(b) provides in relevant part:
No person who is under indictment for, or has waived
indictment for, or has been bound over to the circuit court
for, or has been convicted in this State or elsewhere of
having committed a felony, or any crime of violence, or an
illegal sale of any drug shall own, possess, or control any
firearm or ammunition therefor.
31 HRS § 134-26(a) provides in relevant part:
It shall be unlawful for any person on any public highway
to carry on the person, or to have in the person's
possession, or to carry in a vehicle any firearm loaded
with ammunition; . . . .
32 HRS § 134-25(a) provides:
(a) Except as provided in sections 134-5 and 134-9, all
firearms shall be confined to the possessor's place of
business, residence, or sojourn; provided that it shall be
(continued. . .)
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affecting substantial rights may be noticed although they were
not brought to the attention of the court.
In Lavoie, 145 Hawaiʻi 409, 453 P.3d 229, consistent with
our prior holding in State v. Matias, 102 Hawaiʻi 300, 75 P.3d
1191 (2003), we stated:
Generally, when the same conduct of a defendant may
establish an element of more than one offense, the
defendant may be prosecuted for each offense of which such
conduct is an element. HRS § 701-109(1) (1993). A
defendant may not, however, be convicted of more than one
offense if the offense is defined as a continuing course of
conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses. HRS
§ 701-109(1)(e). Thus, this court has concluded that only
one crime is committed when (1) there is but one intention,
one general impulse, and one plan, (2) the two offenses are
part and parcel of a continuing and uninterrupted course of
conduct, and (3) the law does not provide that specific
periods of conduct constitute separate offenses.
. . . .
The test for whether a crime can be charged as a continuous
offense is whether the statute precludes charging an
offense as a continuous offense, and whether the element(s)
of the offense may constitute a continuous, unlawful act or
series of acts, however long a time the act or acts may
occur.
lawful to carry unloaded firearms in an enclosed container
from the place of purchase to the purchaser’s place of
business, residence, or sojourn, or between these places
upon change of place of business, residence, or sojourn, or
between these places and the following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer's place of business;
(4) An organized, scheduled firearms show or exhibit;
(5) A place of formal hunter or firearm use training
or instruction; or
(6) A police station.
“Enclosed container” means a rigidly constructed
receptacle, or a commercially manufactured gun case, or the
equivalent thereof that completely encloses the firearm.
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If the statute provides that distinct acts constitute
separate offenses, then conduct may not be charged as a
continuous offense . . . .
In State v. Matias, the defendant was convicted of felon in
possession and place to keep. We vacated the defendant’s
convictions because the circuit court failed to provide a
merger instruction to the jury. As we would later explain,
both offenses arose out of the same elemental conduct,
i.e., what the defendant did with the object, namely,
possessed it.
Accordingly, in vacating the felon in possession and place
to keep convictions and remanding for a new trial for
failure to instruct the jury on merger, the Matias court
concluded that these statutes did not preclude the charging
of these offenses as continuous offenses. Implicit in the
court’s holding was the conclusion that the statutes are
comprised of elements--namely, the element of possession--
that may extend beyond isolated moments.
. . . .
Here, Lavoie was also convicted for violating the felon in
possession (HRS § 134-7(b)) and place to keep (HRS
§ 134-23(2)) statutes, neither of which excludes charging
the offense as continuous . . . .
Thus, the offenses of felon in possession and place to keep
may be charged as continuous offenses, and the jury was
required to determine whether there was one intention, one
general impulse, and one plan, and whether the two offenses
merged.
. . . .
Here, both the felon in possession and place to keep
offenses were charged as having occurred on the same date,
and the court’s instructions on the elements of these
offenses specified that date. Whether Lavoie’s conduct
constituted “separate and distinct culpable acts or an
uninterrupted continuous course of conduct” was a question
of fact that was required to be determined by the
jury. And, the jury should also have been required to
determine whether Lavoie had one intention, one general
impulse, and one plan to commit both offenses. The circuit
court’s failure to instruct the jury to make these
determinations was prejudicial and plainly erroneous.
Lavoie, 145 Hawaiʻi at 251-53, 453 P.3d at 431-33 (citations,
parentheticals, brackets, quotation marks, emphases, and
footnotes omitted.).
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Thus, consistent with Matias, Lavoie held that although a
defendant can be charged with both ownership or possession
prohibited of any firearm or ammunition by a person charged with
or convicted of certain crimes in violation of HRS § 134-7(b) as
well as place to keep pistol or revolver in violation of HRS
§ 134-25(a), as these offenses can be charged as continuous
offenses, a jury must determine whether “there was one
intention, one general impulse, and one plan, and whether the
two offenses merged[;]” if so, a defendant could only be
convicted of one of the two charged offenses pursuant to HRS
§ 701-109(1)(e) (Supp. 1984), which provides:
(1) When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if: . . .
(e) The offense is defined as a continuing course of
conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses.
In other words, HRS § 701–109(1)(e) interposes a constraint on
multiple convictions arising from the same criminal conduct.
Matias, 102 Hawaiʻi at 305, 75 P.3d at 1196. The statute
“reflects a policy to limit the possibility of multiple
convictions and extended sentences when the defendant has
basically engaged in only one course of criminal conduct
directed at one criminal goal[.]” See HRS § 701–109 cmt.; State
v. Deguair, 139 Hawaiʻi 117, 128, 384 P.3d 893, 904 (2016).
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In Martin’s case, the State argued slightly different time
periods of possession on January 2, 2013 for Counts 7 and 9.33
Based on Matias, however, which preceded Martin’s trial, as
Count 7, ownership or possession prohibited of any firearm or
ammunition by a person charged with or convicted of certain
crimes in violation of HRS § 134-7(b), and Count 9, place to
keep pistol or revolver in violation of HRS § 134-25(a), could
be charged as continuing offenses, and “both offenses arose out
of the same elemental conduct, i.e., what the defendant did with
the object, namely, possessed [the firearm,]” Martin was
clearly entitled to a merger instruction. Lavoie, 145 Hawaiʻi at
252, 453 P.3d at 432 (internal quotation marks omitted).
Pursuant to Matias, it was for the jury to determine whether
there was one intention, one general impulse, and one plan, and
whether the offenses merged.
In addition, in this case, Martin was also charged and
convicted in Count 8 of carrying or possessing a loaded firearm
on a public highway in violation of HRS § 134-26(a). Martin’s
conviction on this offense while also being convicted of Counts
33 In closing argument, the State argued that Count 7, ownership or
possession prohibited of any firearm or ammunition by a person charged or
convicted of certain crimes in violation of HRS § 134-7(b), was based on
Martin’s possession and shooting of the firearm on Maile Street. The State
argued that Count 9, place to keep pistol or revolver in violation of HRS
§ 134-25(a), was based on Martin carrying the firearm at Pono Place as well
as additional areas.
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7 and 9 also implicates HRS § 701-109(1)(e) because, likewise,
this “offense is defined as a continuing course of conduct” and
does not “provide[] that specific periods of conduct constitute
separate offenses.”34 Thus, in this case, for Counts 7, 8, and
9, Martin was entitled to a merger instruction, and it was for
the jury to determine whether there was one intention, one
general impulse, and one plan, and whether the offenses merged.35
Although there was no merger instruction, a new trial on
Counts 7, 8, and 9 is not required. Pursuant to State v.
Padilla, 114 Hawaiʻi 507, 164 P.3d 765 (App. 2007), the State has
the option of dismissing two of the three charges and
maintaining the judgment of conviction and sentence on one
charge.36 Padilla, 114 Hawaiʻi at 517, 164 P.3d at 775.
V. Conclusion
Based on the reasoning above, we vacate the ICA’s July 9,
2019 judgment on appeal affirming the circuit court’s August 5,
2014 judgment of conviction and sentence as to Counts 7, 8, and
34 With respect to Count 8, carrying or possessing a loaded firearm on a
public highway in violation of HRS § 134-26(a), the State argued that the
charge was based on Martin walking on Kilauea Avenue from the field to Pono
Place after shooting the firearm and reloading it with another magazine.
35 The record does not reflect a request for or discussion of a merger
instruction.
36 As noted earlier, the circuit court sentenced Martin to five years on
Count 7, ten years on Count 8, and ten years on Count 9, with the sentences
for Counts 7, 8, and 9 to be served concurrently. Thus, the lack of a merger
instruction does not affect the maximum sentence for Martin’s conviction on
these three charges.
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9 only, and remand Counts 7, 8, and 9 to the circuit court for
further proceedings consistent with this opinion. We otherwise
affirm the ICA’s July 9, 2019 judgment on appeal affirming the
circuit court’s August 5, 2014 judgment of conviction and
sentence.
Lars Robert Isaacson /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Ricky R. Damerville
for Respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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