SUMMARY DISPOSITION ORDER
Defendant-Appellant Kumulipo Iwa Coyote Sylva appeals from the “Judgment; Conviction and Sentence” entered by the Circuit Court of the Second Circuit on January 24, 2020.
1
For the reasons explained below, we affirm.
On March 18, 2018, Sylva caused the death of another person. Sylva was indicted for Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707-701.5.
2
He did not deny that he intentionally caused the death of the victim. He asserted the insanity defense to criminal responsibility,
3
and the mitigating defense of extreme mental or emotional disturbance (EMED).
4
A jury found Sylva guilty of manslaughter based upon EMED.
In this direct appeal, Sylva contends that the circuit court erred by: (1) sustaining the States objections and instructing the jury to disregard testimony from Sylvas expert witness; and (2) failing to instruct the jury that if it found Sylva guilty of manslaughter based upon EMED, it must then consider the insanity defense.
(1) “Generally, the decision whether to admit expert testimony rests in the discretion of the trial court. To the extent that the trial courts decision is dependant upon interpretation of court rules, such interpretation is a question of law, which this court reviews de novo.” Barcai v. Betwee, 98 Hawai‘i 470, 479, 50 P.3d 946, 955 (2002) (cleaned up).
(a) At trial, Sylva called psychiatrist Martin Blinder to support his insanity defense. Dr. Blinder opined that Sylva was suffering from a mental disorder — “[h]e was psychotic” — when he caused the victims death. This exchange then took place:
Q. Is it your opinion that the disorder resulted in a lack of capacity to control conduct under the law or appreciate wrongfulness?
A. Thats my opinion.
Q. And could you help us explain why that is your opinion.
A. Let me tell you how I go about making these judgments. The first thing that I look at when theres a homicide is whether or not theres a reasonable reason for the defendant to have done what he did. Im not saying a good reason. Theres never a good reason to kill someone. But maybe a drug bust -- a drug deal that went bad, guy is supposed to give him drugs, he pays him and doesnt get the money, he takes his life, or hes insulted on a racial basis or something that we wouldnt approve of but we can understand, that theres been a longstanding conflict between the killer and the person that he kills, and its unforgivable but understandable.
I look for that. If I find that, then its pretty well the end of my participation. So even if hes got a mental illness, I dont care. Weve got a rational reason for doing it. A doubt -- being paranoid is not therapeutic, but thats irrelevant. Im done. As far as Im concerned, he does not meet that standard that you just heard.
In the case of Mr. Sylva, there is no rational reason. Theres a very superficial reason, but the basic reason is hes got a mission, hes got a mission to rid the world of demons, and he was just getting started. This was obviously, in his delusional mind, a dangerous demon, and for some reason, he -- hes been anointed by what he reads in the Bible to take care of this problem.
And thats nutty and its crazy, and absent for that nutty, crazy thing, he wouldnt have hurt anybody. Hes not, you know, a bad man who goes around hurting people. But when he --
[DEPUTY PROSECUTING ATTORNEY]: Your Honor, Im sorry, Im going to object to the last phrase and ask that it be stricken.
THE COURT: Any objection?
[DEFENSE COUNSEL]: What are the grounds? This is his opinion.
THE COURT: Well, thats not -- that wasnt the question that was asked.
[DEFENSE COUNSEL]: The question was why he formed that opinion. I think he was providing --
THE COURT: Approach the bench, then.
(Emphasis added.)
After hearing counsels arguments at sidebar, the court ruled: “I mean, saying hes not a bad man, thats not the issue. So Ill sustain the objection[.]” (Emphasis added.) The circuit court was not wrong to sustain the objection to Dr. Blinders testimony that Sylva was “not, you know, a bad man who goes around hurting people.” See Hawaii Rules of Evidence Rule 404 (“Character evidence not admissible to prove conduct”).
The circuit court then instructed the jury:
THE COURT: Ladies and gentlemen, Ill ask you to disregard the last response made by the witness and order that it be stricken.
(Emphasis added.) Sylva argues that the circuit court instructed the jury to disregard Dr. Blinders entire answer to the question: “And could you help us explain why that is your opinion[?]” The argument is without merit. The State did not object to Sylvas question. The State objected only after Dr. Blinder stated — after answering the question at length — that Sylva was “not, you know, a bad man who goes around hurting people.” The deputy prosecuting attorney stated (in the jurys presence): “Im going to object to the last phrase and ask that it be stricken.” (Emphasis added.) The circuit court instructed the jury to disregard “the last response made by the witness[.]”
5
Under these circumstances, no reasonable juror could have understood the circuit court to have instructed them to disregard Dr. Blinders entire explanation for his opinion.
(b) Immediately thereafter, the following exchange took place during Dr. Blinders direct examination:
Q. Your opinion is based in part on the fact that there is no rational explanation, correct?
A. Yes. Based -- to a reasonable degree of medical probability, there does not appear to be a rational basis for his action, and that but for his psychotic illness, he would not have taken the life of this man.
[DEPUTY PROSECUTING ATTORNEY]: Your Honor, Im going to object, move to strike that. Its speculative.
[DEFENSE COUNSEL]: Your Honor, it is his opinion and hes explaining why.
THE COURT: Its his opinion that he suffers from --
[DEFENSE COUNSEL]:[6] Its the second part.
THE COURT: I know. I heard. Hes -- its his opinion that he suffers from a mental disease, and hes giving a conclusion -- or, excuse me, the word opinion about that. Hes adding on to that at the end of the answer. I ordered it stricken earlier. Ill order it stricken again.
Ladies and gentlemen, when the Court orders something stricken, youre not to consider it in your deliberations in any way. Ill give you an instruction on that later.
(Emphasis added.)
Sylva argues that the circuit court struck Dr. Blinders entire answer: there did not appear to be a rational basis for Sylvas actions, and but for Sylvas psychotic illness he would not have taken the victims life. The State contends that only the second part of the answer was stricken. We need not decide which side is correct, or what a reasonable juror could have understood the circuit courts ruling to have been, because any error was harmless. The jury heard, and was allowed to consider, Dr. Blinders opinion that criminal responsibility was “utterly lacking in Mr. Sylvas case at the time of the homicide.” The jury heard, and was allowed to consider, Dr. Blinders explanation for his opinion that Sylva was psychotic, and why Sylvas running away from the scene and hiding the weapon and his jacket were not inconsistent with a lack of criminal responsibility due to psychosis. The jury heard, and was allowed to consider, Dr. Blinders defense of his opinion during vigorous cross-examination by the State. The one sentence of testimony at issue was cumulative, and striking it — even if erroneous — was harmless. See Wakabayashi v. Hertz Corp., 66 Haw. 265, 272, 660 P.2d 1309, 1314 (1983) (noting that “where essentially the same evidence is given by other witnesses or other means, the trial courts exclusion of relevant evidence constitutes harmless error”) (citation omitted).
(2) Sylva claims instructional error. He argues:
In the instant case, the trial court failed to instruct the jury that if they found Sylva guilty of manslaughter based on EMED, they must consider the affirmative defense of physical or mental disease, disorder or defect excluding criminal responsibility.
Sylva concedes that he did not request such a jury instruction, nor did he object to the instructions actually given to the jury. There is “a presumption that unobjected-to jury instructions are correct[.]” State v. Nichols, 111 Hawai‘i 327, 337 n.6, 141 P.3d 974, 984 n.6 (2006); accord State v. Eberly, 107 Hawai‘i 239, 250, 112 P.3d 725, 736 (2005).
Sylva does not contend that any of the instructions actually given to the jury incorrectly stated the law; rather, Sylva takes issue with the order in which the jury was instructed to decide the issues. Instruction no. 19 contained the elements of Murder in the Second Degree. Instruction no. 22 contained the elements of the included offense of Manslaughter. Instruction no. 25 described the insanity defense; it stated, in relevant part:
Before you may consider [the insanity] defense, you must first determine whether the prosecution has proven all of the elements of Murder in the Second Degree or the included offense of Manslaughter beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of Murder in the Second Degree or the included offense of Manslaughter beyond a reasonable doubt, then you must find the defendant not guilty of that offense without considering the [insanity] defense. If you unanimously find that the prosecution has proven all of the elements of Murder in the Second Degree or the included offense of Manslaughter beyond a reasonable doubt, then you must consider the [insanity] defense.
․
If you unanimously find that the defendant has proven both elements of the [insanity] defense by a preponderance of the evidence, then you must find the defendant not guilty of Murder in the Second Degree or the included offense of Manslaughter by reason of [insanity]. If you unanimously find that the defendant has not proven both elements of the [insanity] defense by a preponderance of the evidence, then you must then consider the affirmative defense of Extreme Mental or Emotional Disturbance. (See instruction No. 26)
(Emphasis added.)
Instruction no. 26 stated, in relevant part:
If and only if you unanimously find that all of the material elements of Murder in the Second Degree have been proven by the prosecution beyond a reasonable doubt, or you unanimously find that all of the material elements of the included offense of Manslaughter have been proven by the prosecution beyond a reasonable doubt, and you unanimously find that the defendant has not proven the elements of the affirmative defense of physical or mental disease, disorder or defect excluding criminal responsibility by a preponderance of the evidence, then you must consider the affirmative defense of Extreme Mental or Emotional Disturbance.
In other words, the jury was instructed to decide whether the State proved, beyond a reasonable doubt, that Sylva intentionally or knowingly caused the death of another person (murder), or recklessly caused the death of another person (manslaughter). If the jury found the State did not sustain its burden, it was instructed to find Sylva not guilty; if the State sustained its burden, the jury was instructed to consider whether Sylva proved, by a preponderance of the evidence, the affirmative defense of insanity.
7
If so, the jury was instructed to acquit Sylva; if not, the jury was instructed to consider the mitigating defense of manslaughter based upon EMED.
8
It made sense for the jury to consider the affirmative defense (insanity) before the mitigating defense (EMED); if the jury found Sylva insane, there would be no need to consider whether he was also under the influence of extreme mental or emotional disturbance. See State v. Miyashiro, 90 Hawai‘i 489, 499, 500 n.13, 979 P.2d 85, 95, 96 n.13 (App. 1999) (discussing fundamental principles to be followed in instructing the jury in a criminal case); Adviento, 132 Hawai‘i at 137-38, 319 P.3d at 1145-46. We conclude there was no instructional error as argued by Sylva.
For the foregoing reasons, the “Judgment; Conviction and Sentence” entered on January 24, 2020, is affirmed.
Katherine G. Leonard Presiding Judge
Keith K. Hiraoka Associate Judge
Clyde J. Wadsworth Associate Judge
FOOTNOTES
1
. The Honorable Richard T. Bissen, Jr. presided.
2
. When Sylva was indicted, HRS § 707-701.5 (2014) provided, in relevant part:(1) Except as provided in section 707-701 [(“Murder in the first degree”)], a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.
3
. HRS § 704-400 (2014) provides:Physical or mental disease, disorder, or defect excluding penal responsibility. (1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the persons conduct or to conform the persons conduct to the requirements of law.(2) As used in this chapter, the terms “physical or mental disease, disorder, or defect” do not include an abnormality manifested only by repeated penal or otherwise anti-social conduct.This defense is sometimes referred to as the “insanity defense.” State v. Uyesugi, 100 Hawai‘i 442, 465 n.1, 60 P.3d 843, 866 n.1 (2002) (Acoba, J., concurring).
4
. HRS § 707-702 (2014) provides, in relevant part:(2) In a prosecution for murder ․ in the ․ second degree[ ] it is an affirmative defense, which reduces the offense to ․ manslaughter, that the defendant was, at the time the defendant caused the death of the other person, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a reasonable person in the circumstances as the defendant believed them to be[.]
5
. The State argues that Sylva waived this issue on appeal by failing to object to the circuit courts post-sidebar instruction to the jury. In light of our resolution of the issue we need not address the States waiver argument.
6
. The transcript indicates this statement was made by defense counsel, but it appears that it may actually have been the deputy prosecuting attorney explaining the objection.
7
. See HRS § 701-115(2)(b) (2014) (“If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds ․ by a preponderance of the evidence the specified fact or facts which negative penal liability.”).
8
. See HRS § 707-702(2), supra note 4; State v. Adviento, 132 Hawai‘i 123, 137-38, 319 P.3d 1131, 1145-46 (2014) (“[A]lthough HRS § 707–702(2) refers to the mental state of a defendant as a defense, it is really a mitigating factor. Intentionally killing while under the influence of extreme emotional disturbance does not present a true defense, for the punishment is merely reduced through the mechanism of denominating the crime as manslaughter rather than murder[.]”) (citation omitted).