NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-DEC-2022
07:50 AM
Dkt. 112 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KUMULIPO IWA COYOTE SYLVA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CRIMINAL NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
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.
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.
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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 State's objections and
instructing the jury to disregard testimony from Sylva's 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 court's 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).
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 person's conduct or to
conform the person's 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[.]
2
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(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 victim's 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. That's 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 there's a
homicide is whether or not there's a reasonable reason for
the defendant to have done what he did. I'm not saying a
good reason. There's never a good reason to kill someone.
But maybe a drug bust -- a drug deal that went bad, guy is
supposed to give him drugs, he pays him and doesn't get the
money, he takes his life, or he's insulted on a racial basis
or something that we wouldn't approve of but we can
understand, that there's been a longstanding conflict
between the killer and the person that he kills, and it's
unforgivable but understandable.
I look for that. If I find that, then it's
pretty well the end of my participation. So even if he's
got a mental illness, I don't care. We've got a rational
reason for doing it. A doubt -- being paranoid is not
therapeutic, but that's irrelevant. I'm done. As far as
I'm concerned, he does not meet that standard that you just
heard.
In the case of Mr. Sylva, there is no rational
reason. There's a very superficial reason, but the basic
reason is he's got a mission, he's got a mission to rid the
world of demons, and he was just getting started. This was
obviously, in his delusional mind, a dangerous demon, and
for some reason, he -- he's been anointed by what he reads
in the Bible to take care of this problem.
And that's nutty and it's crazy, and absent for
that nutty, crazy thing, he wouldn't have hurt anybody.
He's not, you know, a bad man who goes around hurting
people. But when he --
[DEPUTY PROSECUTING ATTORNEY]: Your Honor, I'm sorry,
I'm 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.
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THE COURT: Well, that's not -- that wasn't 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 he's not a bad man, that's not the issue.
So I'll sustain the objection[.]" (Emphasis added.) The circuit
court was not wrong to sustain the objection to Dr. Blinder's
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, I'll 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. Blinder's 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 Sylva's 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 jury's
presence): "I'm 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. Blinder's entire explanation for his opinion.
5
The State argues that Sylva waived this issue on appeal by failing
to object to the circuit court's post-sidebar instruction to the jury. In
light of our resolution of the issue we need not address the State's waiver
argument.
4
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(b) Immediately thereafter, the following exchange
took place during Dr. Blinder's 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, I'm going
to object, move to strike that. It's speculative.
[DEFENSE COUNSEL]: Your Honor, it is his opinion and
he's explaining why.
THE COURT: It's his opinion that he suffers from --
[DEFENSE COUNSEL]:[6] It's the second part.
THE COURT: I know. I heard. He's -- it's his opinion
that he suffers from a mental disease, and he's giving a
conclusion -- or, excuse me, the word opinion about that.
He's adding on to that at the end of the answer. I ordered
it stricken earlier. I'll order it stricken again.
Ladies and gentlemen, when the Court orders
something stricken, you're not to consider it in your
deliberations in any way. I'll give you an instruction on
that later.
(Emphasis added.)
Sylva argues that the circuit court struck
Dr. Blinder's entire answer: there did not appear to be a
rational basis for Sylva's actions, and but for Sylva's psychotic
illness he would not have taken the victim's 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 court's ruling to have
been, because any error was harmless. The jury heard, and was
allowed to consider, Dr. Blinder's opinion that criminal
responsibility was "utterly lacking in Mr. Sylva's case at the
time of the homicide." The jury heard, and was allowed to
consider, Dr. Blinder's explanation for his opinion that Sylva
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.
5
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was psychotic, and why Sylva's 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. Blinder's 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 court's 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
6
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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
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.").
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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.
DATED: Honolulu, Hawai#i, December 1, 2022.
On the briefs:
/s/ Katherine G. Leonard
William H. Jameson, Jr., Presiding Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Richard B. Rost, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
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).
8
