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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-DEC-2023
08:12 AM
Dkt. 45 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
KUMULIPO IWA COYOTE SYLVA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)
DECEMBER 29, 2023
RECKTENWALD, C.J., McKENNA AND EDDINS, JJ.,
CIRCUIT JUDGE KAWASHIMA IN PLACE OF NAKAYAMA, J., RECUSED,
AND CIRCUIT JUDGE NAKAMOTO IN PLACE OF WILSON, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Defendant Kumulipo Iwa Coyote Sylva (“Sylva”) was charged
by indictment with second-degree murder for killing Eduardo
Alejandro Cerezo (“Cerezo”). Sylva admitted to killing Cerezo
but asserted the affirmative defense of a physical or mental
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disease, disorder, or defect excluding penal responsibility
(“insanity”).
Sylva’s jury trial turned largely on the testimony of three
medical examiners appointed by the Circuit Court of the Second
Circuit (“circuit court”). The examiners testified concerning
Sylva’s mental state pursuant to Hawai‘i Revised Statutes (“HRS”)
§ 704-410 (2014). All three examiners agreed Sylva was affected
by a mental disease, disorder, or defect at the time of the
conduct. Two of the examiners further opined that, as a result,
Sylva lacked capacity under the legal standard for insanity,
thus excluding criminal responsibility. One examiner disagreed.
The circuit court struck parts of the testimony of one of
the examiners who had opined that Sylva lacked capacity,
psychiatrist Martin Blinder, M.D. (“Dr. Blinder”). Defense
counsel had asked Dr. Blinder to explain the basis for his
opinion. The prosecutor objected to the “last phrase” of Dr.
Blinder’s answer, in which Dr. Blinder stated Sylva was not a
“bad man who goes around hurting people.” (Emphasis added.)
But after a sidebar, the circuit court instructed the jury to
disregard Dr. Blinder’s “last response.” (Emphasis added.) The
circuit court also sustained the prosecutor’s objection to Dr.
Blinder’s later testimony that to a reasonable degree of medical
probability, but for Sylva’s mental illness, he would not have
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killed Cerezo. The circuit court stated before the jury, “I
ordered it stricken earlier. I’ll order it stricken again.”
Sylva was convicted of manslaughter based on extreme mental
or emotional disturbance (“EMED”).
We hold the circuit court erroneously struck parts of Dr.
Blinder’s testimony because (a) a reasonable juror could have
believed the circuit court instructed them to disregard Dr.
Blinder’s entire answer explaining his opinion that Sylva lacked
capacity; (b) HRS § 704-410(4) provides that medical examiners
appointed pursuant to that chapter “shall be permitted to make
any explanation reasonably serving to clarify” their opinion;
and (c) the circuit court’s error was not harmless beyond a
reasonable doubt because Sylva’s insanity defense turned largely
on the medical examiners’ testimonies.
We also hold the circuit court properly instructed the jury
on the application of the insanity defense to manslaughter based
on EMED.
We therefore vacate the circuit court’s January 24, 2020
judgment, conviction, and sentence; as well as the Intermediate
Court of Appeal’s (“ICA”) January 3, 2023 judgment on appeal.
We remand to the circuit court for further proceedings
consistent with this opinion.
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II. Background
A. Factual background
On March 18, 2018, Sylva was arrested for killing Cerezo
with a cane knife.1
According to eyewitness Kyle Keoho (“Keoho”), earlier that
afternoon, Keoho and Cerezo had boarded a bus in Pukalani, Maui.
While on the bus, they noticed another passenger, Sylva,
“looking at [Cerezo] mean.” Cerezo called Sylva a “pussy” and
threatened to beat him up. When the bus arrived at the Queen
Kaʻahumanu Center in Kahului, Sylva, Keoho, and Cerezo got off
the bus. Sylva challenged Cerezo to a fight. Cerezo said he
did not want to fight. Sylva stormed off.
Shortly after, Cerezo and Keoho made a purchase and entered
a mall restroom. Sylva entered the restroom with a cane knife.
Sylva said, “you guys are like demons. I send them to the
moon.” Sylva struck Cerezo’s neck with the cane knife, killing
him. Sylva stated, “Oh, I guess he was a demon,” and told
Keoho, “Believe it or not, he was a demon.”
Witnesses at trial testified that Sylva then fled the
scene, stopping to hide his jacket and the cane knife. Sylva
was apprehended by police at Kahului Community Center Park.
1 The parties and witnesses at times refer to the weapon as a machete.
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Sylva made various other references to demons before and
after his arrest.
B. Circuit court proceedings2
Sylva was charged by indictment3 with the offense of murder
in the second degree in violation of HRS § 707-701.5 (2014).
Sylva did not deny that he caused Cerezo’s death but asserted
the affirmative defense of insanity.
1. Medical examination
Sylva filed a motion for examination to determine fitness
to proceed and/or penal responsibility.4 Pursuant to HRS § 704-
400 (2014), a person is not criminally responsible under the
Hawai‘i Penal Code 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.” The circuit court appointed three
individuals to examine Sylva’s penal responsibility pursuant to
2 The Honorable Richard T. Bissen, Jr. presided over Sylva’s trial.
3 The State of Hawai‘i (“the State”) first filed a complaint in the
District Court of the Second Circuit (“district court”) charging Sylva with
second-degree murder. After Sylva was indicted in the circuit court, the
district court case was dismissed without prejudice.
4 The circuit court twice suspended the proceedings to examine Sylva’s
fitness to proceed, but the parties ultimately stipulated Sylva was fit to
proceed based on the uncontested findings of medical examiners appointed
pursuant to HRS § 704-404 (Supp. 2016).
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HRS § 704-407.5 (Supp. 2016): (1) Melissa Vargo, Psy.D. (“Dr.
Vargo”), (2) Dr. Blinder, and (3) George C. Choi, Psy.D. (“Dr.
Choi”).5 The examiners submitted reports opining on Sylva’s
mental state at the time of the conduct.
2. Medical examiners’ trial testimonies
At trial, amongst various other witnesses, Sylva called Dr.
Vargo and Dr. Blinder to testify, and the State called Dr. Choi.
All three examiners opined Sylva was affected by a mental
disease, disorder, or defect at the time of the conduct. Only
Dr. Choi opined that mental state did not substantially impair
Sylva’s capacity so as to exclude penal responsibility.
a. Dr. Vargo
First, Dr. Vargo, a clinical psychologist, opined that at
the time of the conduct, Sylva suffered from schizoaffective
disorder, bipolar type, causing Sylva to experience
hallucinations and delusions as well as mania and depression.
Dr. Vargo further opined that to a degree of psychological
certainty, Sylva lacked the “capacity to appreciate the
wrongfulness of his conduct or to conform his behavior to the
conduct of the law” at that time. Dr. Vargo explained the basis
5 Dr. Vargo and Dr. Blinder were originally appointed by the district
court in the related district court proceedings. See supra note 3. The
parties stipulated to incorporate the earlier examinations of Dr. Vargo and
Dr. Blinder in the circuit court.
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for her opinion, including that Sylva had told her he did not
believe killing Cerezo was wrong because Cerezo was a demon; it
was a service to God.
b. Dr. Blinder
Next, Dr. Blinder, a forensic psychiatrist, opined that
Sylva suffered from a psychotic disability profoundly affecting
his ability to think clearly and his interpretation of what he
sees. Dr. Blinder also opined Sylva’s criminal responsibility
was “utterly lacking” at the time he killed Cerezo, and that
Sylva’s disorder “resulted in a lack of capacity to control
conduct under the law or appreciate wrongfulness.”
Defense counsel asked Dr. Blinder to explain the basis for
his opinion: “And could you help us explain why that is your
opinion.” Dr. Blinder responded:
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
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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 –
(Emphasis added.)
The prosecutor then objected, “Your honor, I’m sorry, I’m
going to object to the last phrase and ask that it be stricken.”
(Emphasis added.) Defense counsel asked on what grounds, and
the circuit court stated, “that wasn’t the question that was
asked.” The parties then approached the bench for a sidebar.
The following discussion was held outside the hearing of the
jury:
THE COURT: Sorry. So here’s what he said in the
answer: “If it wasn’t for this nutty thing, he wouldn’t
have hurt anybody. He’s not a bad man.”
What part of that was the opinion that went to the
question you asked?
[DEFENSE COUNSEL]: I think he was explaining why he
arrived to that opinion.
THE COURT: No, no. I get that part, and that part
he can answer.
[DEFENSE COUNSEL]: Okay.
THE COURT: But he says – he’s just editorializing,
saying if it wasn’t for this, this wouldn’t happen and he’s
not a bad man. If that was the question you asked, that
would be okay, but that’s not the question you asked. And
the State is correct, I think, in saying he’s going beyond
the opinion.
. . . .
THE COURT: I mean, saying that he’s not a bad man,
that’s not the issue. So I’ll sustain the objection – . .
. . and have it stricken.
When they returned, the circuit court stated to the jury,
“Ladies and gentlemen, I’ll ask you to disregard the last
response made by the witness and order that it be stricken.”
(Emphasis added.)
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Defense counsel then continued direct examination of Dr.
Blinder, and the circuit court again struck a portion of Dr.
Blinder’s testimony explaining the basis for his opinion:
BY [DEFENSE COUNSEL]:
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.
[PROSECUTOR]: 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 COUNSEL6]: 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.
(Emphases added.)
On cross-examination, the prosecutor also questioned Dr.
Blinder concerning the basis for his opinion:
Q. So, Doctor, you – something you said earlier was
that the first thing you look to is for a reasonable reason
for committing a crime, correct?
A. Yes.
Q. And even though it might not be reasonable, let’s
say, to us – you gave the example, I think, of a drug –
drug deal gone bad was one of the reasons, right?
A. Yes, sir.
Q. Okay. So what you’re saying is, of course, the
normal person who is not involved in drug deals wouldn’t
kill over those types of things, right? But as a forensic
psychologist looking for a reasonable or rational basis for
6 The transcript states defense counsel made this statement, but as the
ICA noted, the context indicates it may have actually been made by the
prosecutor. See State v. Sylva, No. CAAP-XX-XXXXXXX, 2022 WL 17350568, at *3
n.6 (Haw. App. Dec. 1, 2022) (SDO).
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a killing, that is an example of something that you would
find reasonable or rational, correct?
A. Yeah. Specifically I’m looking for a non-mental
illness reason.
Q. . . . .
Another thing you said was something like a –
someone receives a racial insult, right?
A. Yes.
Q. Okay. So, for example, . . . Cerezo and . . .
Keoho got on the bus in this case and there’s a verbal
altercation between those two and [Sylva], . . . they taunt
him. Would that be one of the things that you might be
looking for?
A. That’s a hypothetical that I certainly would
consider, yes.
Q. Certainly if it – let’s say those taunts or – or
name calling got to the point where the defendant felt that
he was ready to fight them on the bus or right after they
got off. I mean, that’s additional information in a
hypothetical setting that might be helpful to you, correct?
A. Yes.
Q. And specifically in looking for that rational or
reasonable – reasonable basis for the crime, for the
killing, right?
A. Yes.
Q. Okay. And those are the types of things that
would weigh in favor or at least make you think twice about
whether or not there was some sort of rational or
reasonable basis for a killing, correct?
A. Right. We have two possibilities: One, as I
say, but for a psychosis, they would not have killed; the
other is, did this altercation or hypothetical provocation
from the decedent reach that requisite reasonable response
that a nonpsychotic person would act in the way that Mr.
Sylva did? And that’s the very first thing I look at in a
case like this.
That testimony was not stricken.
c. Dr. Choi
The State called the third examiner, Dr. Choi, a clinical
psychologist. Dr. Choi opined Sylva was suffering from
schizoaffective disorder. However, unlike the other two
examiners, Dr. Choi also opined that although Sylva was
suffering from mental illness, “his capacity, cognitive and
volitional capacity, did not reach a threshold of substantial
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impairment” at the time of the conduct. Dr. Choi testified his
opinion was based on various factors including that (1) Sylva
used marijuana either on the day of or the day before the
killing; (2) Sylva did not have a history of violent behavior
towards “demons” or anyone else, indicating an ability to
differentiate between right and wrong; (3) Sylva utilized
emergency rooms to get medications, indicating Sylva was aware
of his condition and knew how to get help; (4) Sylva attempted
to hide his jacket and cane knife after killing Cerezo,
indicating he knew he did something wrong; and (5) it appeared
Cerezo provoked Sylva on the bus and that Sylva wanted to teach
Cerezo a lesson, indicating goal-oriented behavior.
3. Jury instructions
After closing arguments, the circuit court instructed the
jury on the insanity and EMED affirmative defenses as follows:
Instruction No. 25
The defendant has raised the affirmative defense of
physical or mental disease, disorder or defect excluding
criminal responsibility. Before you may consider this
affirmative 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 affirmative 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 affirmative defense.
. . . .
If you unanimously find that the defendant has proven
both elements of the affirmative defense by a preponderance
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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 physical or mental
disease, disorder or defect excluding criminal
responsibility. If you unanimously find that the defendant
has not proven both elements of the affirmative defense by
a preponderance of the evidence, then you must consider the
affirmative defense of Extreme Mental or Emotional
Disturbance. (See instruction No. 26)
. . . .
Instruction No. 26
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.
. . . .
(Emphases added.) Sylva did not object.
4. Jury verdict, conviction, and sentencing
The jury returned a verdict of guilty of manslaughter based
on EMED. Accordingly, on January 24, 2020, the circuit court
entered its judgment, conviction, and sentence; in which it
found Sylva guilty of manslaughter based on EMED and sentenced
him to twenty years of incarceration.
C. ICA proceedings
Sylva appealed. Sylva asserted the circuit court (1)
erroneously instructed the jury to disregard parts of Dr.
Blinder’s testimony, and (2) failed to instruct the jury that if
it found Sylva guilty of manslaughter based on EMED, it must
consider the affirmative defense of insanity.
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Pursuant to its summary disposition order filed December 1,
2022, the ICA affirmed Sylva’s conviction. Sylva, 2022 WL
17350568, at *5.
First, the ICA determined “no reasonable juror could have
understood the circuit court to have instructed them to
disregard Dr. Blinder’s entire explanation for his opinion.”
Sylva, 2022 WL 17350568, at *2. Citing Wakabayashi v. Hertz
Corp.,
66 Haw. 265, 272,
660 P.2d 1309, 1314 (1983), the ICA
also concluded that even if the circuit court did erroneously
strike Dr. Blinder’s entire later statement that “[b]ased – 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,”7 the error was harmless because the testimony was
cumulative. Sylva,
2022 WL 17350568, at *3.
7 It appears the ICA conflated Sylva’s arguments concerning the two
disputed portions of Dr. Blinder’s testimony. Concerning the second portion
of stricken testimony, the ICA stated,
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 [Cerezo’s] life. The State
contends that only the second part of the answer was
stricken.
Sylva, 2022 WL 17350568, at *3. But Sylva had made only the following
argument concerning the admissibility of the second portion of stricken
testimony: “The trial court compounded its error when it also instructed the
jury that it also could not consider Dr. Blinder’s opinion that ‘to a
reasonable degree of medical probability,’ but for Sylva’s psychotic illness,
he would not have killed Cerezo.”
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In concluding any error was harmless, the ICA cited the
following testimony by Dr. Blinder, which the jury was allowed
to consider: (1) Dr. Blinder’s opinion that criminal
responsibility was “utterly lacking” in Sylva’s case; (2) Dr.
Blinder’s explanation for his opinion that Sylva 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;8 and (3) Dr. Blinder’s defense of his
opinion on cross-examination. Id.
Second, the ICA framed Sylva’s jury instruction argument as
concerning “the order in which the jury was instructed to decide
the issues.” Sylva, 2022 WL 17350568, at *4. The ICA concluded
it made sense for the jury to consider the affirmative defense
of insanity before the mitigating defense of EMED, rather than
the other way around, because if the jury accepted Sylva’s
insanity defense, there would be no need to consider whether he
was under the influence of EMED. Sylva,
2022 WL 17350568, at
*5. Hence, the ICA also rejected Sylva’s jury instruction
argument.
Id.
D. Certiorari proceedings
On certiorari, Sylva contends that the ICA gravely erred in
concluding the circuit court did not (1) erroneously strike
8 As explained infra, we do not agree that a reasonable juror would have
believed they were allowed to consider this explanation.
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parts of Dr. Blinder’s testimony explaining the basis for his
opinion that Sylva lacked capacity; or (2) commit instructional
error regarding the application of the insanity defense to
manslaughter based on EMED.
III. Standards of Review
A. Statutory interpretation
The interpretation of a statute is a question of law
that this court reviews de novo. When construing a
statute, our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is to be
obtained primarily from the language contained in the
statute itself. And we must read statutory language in the
context of the entire statute and construe it in a manner
consistent with its purpose.
State v. Abion, 148 Hawai‘i 445, 454, 478 P.3d 270, 279 (2020)
(cleaned up).
B. Jury instructions
“The standard of review for jury instructions that
were not objected to at trial was clarified in State v.
Nichols, 111 Hawai‘i 327, 141 P.3d 974 (2006)[.]” State v.
DeLeon, 131 Hawaiʻi 463, 479,
319 P.3d 382, 398 (2014). In
Nichols, we held that
although as a general matter forfeited assignments of error
are to be reviewed under [Hawai‘i Rules of Penal Procedure
(“HRPP”)] Rule 52(b) [(1977)] plain error standard of
review, in the case of erroneous jury instructions, that
standard of review is effectively merged with the HRPP Rule
52(a) harmless error standard of review because it is the
duty of the trial court to properly instruct the jury. As
a result, once instructional error is demonstrated, we will
vacate, without regard to whether timely objection was
made, if there is a reasonable possibility that the error
contributed to the defendant’s conviction, i.e., that the
erroneous jury instruction was not harmless beyond a
reasonable doubt.
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111 Hawai‘i at 337, 141 P.3d at 984 (footnote omitted).
Thus, the appellant must first demonstrate
instructional error by rebutting the presumption that
unobjected-to jury instructions are correct. If the
appellant is able to rebut this presumption, the burden
shifts to the State to prove that the error was harmless
beyond a reasonable doubt because [e]rroneous 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. However, error is not
to be viewed in isolation and considered purely in the
abstract. It must be examined in the light of the entire
proceedings and given the effect which the whole record
shows it to be entitled.
If the State cannot demonstrate that the error was
harmless beyond a reasonable doubt, the conviction must be
vacated.
DeLeon, 131 Hawaiʻi at 479, 319 P.3d at 398 (cleaned up).
IV. Discussion
A. The circuit court erroneously instructed the jury to
disregard parts of Dr. Blinder’s testimony that should have
been admitted under HRS § 704-410(4)
Sylva first asserts the ICA gravely erred in concluding (a)
the circuit court did not erroneously strike parts of Dr.
Blinder’s testimony explaining the basis for his opinion that
Sylva lacked capacity under the legal standard for insanity, and
(b) that any such error was harmless. We agree.
1. A reasonable juror could have believed the circuit
court instructed them to disregard Dr. Blinder’s
entire answer explaining his opinion
The ICA erroneously concluded that “no reasonable juror
could have understood the circuit court to have instructed them
to disregard Dr. Blinder’s entire explanation for his opinion.”
Sylva, 2022 WL 17350568, at *2.
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After Dr. Blinder opined Sylva lacked capacity at the time
of the conduct, defense counsel asked him to explain the basis
for his opinion. The prosecutor objected to the “last phrase”
of Dr. Blinder’s answer, in which he stated Sylva is not a “bad
man who goes around hurting people.” (Emphasis added.)
However, after a sidebar, the circuit court instructed the jury
to disregard Dr. Blinder’s “last response.” (Emphasis added.)
A reasonable juror could have interpreted the term “response” to
refer to Dr. Blinder’s entire answer to defense counsel’s
question based on its common meaning. See Response, Cambridge
Advanced Learner’s Dictionary (4th ed. 2013) (defining
“response” as “an answer or reaction” (emphasis added)).
The State points to the sidebar discussion to argue the
circuit court only struck the “last phrase” of Dr. Blinder’s
answer. But although the jurors heard the State object to the
“last phrase,” they were not privy to the sidebar discussion
concerning which part(s) of Dr. Blinder’s testimony were
objectionable and why. The jurors only heard the circuit court
instruct them to disregard Dr. Blinder’s “last response.” The
sidebar discussion is not part of the circuit court’s actual
instruction to the jury. The jurors may well have surmised that
although the objection was to the “last phrase,” based on the
sidebar, the circuit court decided to strike the entire “last
response.”
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Whether or not a reasonable juror could have interpreted
the circuit court’s instruction to disregard Dr. Blinder’s “last
response” as striking Dr. Blinder’s entire answer, a later
comment by the circuit court would have led them to that
conclusion.
Later during direct examination, Dr. Blinder testified,
“Based – to a reasonable degree of medical probability, there
does not appear to be a rational basis for [Sylva’s] action, and
that but for his psychotic illness, he would not have taken the
life of this man.” The circuit court again sustained the
prosecutor’s objection and stated in front of the jury: “it’s
his opinion that he suffers from a mental disease, and he’s
giving a[n] . . . 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.” (Emphasis added.)
Those statements implied to the jury that the circuit court
had struck more than just the “last phrase” of Dr. Blinder’s
earlier answer because Dr. Blinder’s statement that Sylva would
not have killed Cerezo absent his mental disorder was not the
“last phrase” of Dr. Blinder’s earlier response. It was the
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second to last sentence.9 And the circuit court said it had
“ordered it stricken earlier.”10
We therefore conclude a reasonable juror could have
believed the circuit court instructed them to disregard Dr.
Blinder’s entire answer explaining the basis for his opinion
that Sylva lacked capacity at the time of the conduct.
2. HRS § 704-410(4) provides that medical examiners
“shall be permitted to make any explanation reasonably
serving to clarify” their opinion
Dr. Blinder’s stricken answer to defense counsel’s question
about the basis for his opinion was admissible to clarify his
opinion under HRS § 704-410(4). Indeed, HRS § 704-410(4)
mandates its admission as a significant part of an insanity
defense “reasonably serving to clarify the examiner’s diagnosis
and opinion.”
HRS chapter 704 governs the determination of a defendant’s
penal responsibility based on the insanity defense. HRS § 704-
401 (2014) provides, “Evidence that the defendant was affected
by a physical or mental disease, disorder, or defect is
admissible whenever it is relevant to prove that the defendant
9 The end of Dr. Blinder’s response reads, “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 –”
10 The State argues a reasonable juror would have interpreted the circuit
court’s comment to refer solely to Dr. Blinder twice “adding on” to the end
of his answer. We do not find this argument persuasive; at best, a
reasonable juror could have been confused as to which parts of Dr. Blinder’s
testimony they were allowed to consider.
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did or did not have a state of mind that is required to
establish an element of the offense.”
Where a defendant’s capacity is at issue, section 704-407.5
provides for the appointment of three qualified examiners to
report upon the defendant’s “physical or mental disease,
disorder, or defect” “at the time of the conduct” for which the
defendant is prosecuted. See HRS § 704-407.5(1)-(2).11 Section
704-410, in turn, governs testimony by the appointed examiners.12
See id. § 704-410. Subsection (3) of section 704-410 provides
that
[w]hen an examiner testifies on the issue of the
defendant’s responsibility for conduct alleged or the issue
of the defendant’s capacity to have a particular state of
mind which is necessary to establish an element of the
offense charged, the examiner shall be permitted to make a
statement as to the nature of the examiner’s examination,
the examiner’s diagnosis of the physical or mental
condition of the defendant at the time of the conduct
11 In 2020, HRS § 704-407.5 was amended in part to “authorize the courts
to enter into agreements to divert into residential, rehabilitative, and
other treatment those defendants whose physical or mental disease, disorder,
or defect is believed to have become or will become an issue in a judicial
case.” HRS § 704-407.5 cmt. (Supp. 2020) (citing 2020 Haw. Sess. Laws Act
26, § 7 at 298-99). That process was not available at the time of the
circuit court proceedings in this case.
12 Hawai‘i Rules of Evidence (“HRE”) Rule 702 (2016) generally governs the
admissibility of expert testimony. It provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.
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alleged, and the examiner’s opinion of the extent, if any,
to which the capacity of the defendant to appreciate the
wrongfulness of the defendant’s conduct or to conform the
defendant’s conduct to the requirements of law or to have a
particular state of mind which is necessary to establish an
element of the offense charged was impaired as a result of
physical or mental disease, disorder, or defect at that
time.
Id. § 704-410(3). Subsection (4) further provides, “When an
examiner testifies, the examiner shall be permitted to make
any explanation reasonably serving to clarify the
examiner’s diagnosis and opinion and may be cross-examined
as to any matter bearing on the examiner’s competency or
credibility or the validity of the examiner’s diagnosis or
opinion.” Id. § 704-410(4) (emphases added). In using the
language “shall be permitted,” HRS § 704-410(4) mandates
that a trial court admit “any explanation” of an examiner
“reasonably serving to clarify the examiner’s” opinion.
See State v. Shannon, 118 Hawaiʻi 15, 25, 185 P.3d 200, 210
(2008) (“[I]t is a well-established tenet of our
statutory interpretation that the use of the word ‘shall’
generally indicates the legislature’s intention to make a
provision mandatory, as opposed to discretionary.”
(citations omitted)).
In addition, the commentary to HRS § 704-410 explains that
[s]ubsections . . . (3) and (4) assure that an expert who
has examined the defendant will have an adequate
opportunity to state and explain the expert’s diagnosis of
the defendant’s relevant physical or mental condition and
to state and explain the expert’s opinion as to the
impairment of the defendant’s relevant capacities without
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being restricted to examination by means of the
hypothetical question.
HRS § 704-410 cmt.
Here, Dr. Blinder was appointed to report on Sylva’s
criminal responsibility pursuant to HRS chapter 704. At trial,
Dr. Blinder testified in response to defense counsel’s question
concerning why it was his opinion that Sylva’s psychotic
disability resulted in a lack of capacity at the time of the
conduct. Dr. Blinder’s answer to that question was admissible
under HRS § 704-410(4) because it reasonably served to clarify
Dr. Blinder’s opinion. It is undisputed that at minimum, the
following part of Dr. Blinder’s answer was admissible:
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.
But Dr. Blinder’s next sentence, “And that’s nutty and it’s
crazy, and absent for that nutty, crazy thing, he wouldn’t have
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hurt anybody,” was also admissible under HRS § 704-410(4)
because it reasonably served to clarify Dr. Blinder’s opinion as
to “the impairment of the defendant’s relevant capacities.” See
HRS § 704-410 cmt. Thus, it was error for the circuit court to
instruct the jury to disregard Dr. Blinder’s entire answer.13
It was also error for the circuit court to strike Dr.
Blinder’s later testimony that to a reasonable degree of medical
probability, “but for [Sylva’s] psychotic illness, he would not
have taken the life of this man.” The State argues the circuit
court properly struck that portion of Dr. Blinder’s testimony as
speculative. However, that testimony, too, falls under the
purview of HRS § 704-410(4) because it similarly reasonably
served to clarify Dr. Blinder’s opinion that Sylva lacked
capacity.
3. The erroneous striking of parts of Dr. Blinder’s
testimony explaining his opinion was not harmless
beyond a reasonable doubt
We have said:
[E]rror is not to be viewed in isolation [or] considered
purely in the abstract. Recognizing as much, this court
applies the harmless error doctrine to errors that occur in
the trial process . . . . Consistent with the harmless
error doctrine, we have frequently stated that error must
be examined in light of the entire proceedings and given
the effect to which the whole record shows it is entitled.
In that context, the real question becomes whether there is
13 Because we hold that a reasonable juror could have interpreted the
circuit court to instruct them to disregard Dr. Blinder’s entire answer,
including the above paragraphs, we need not decide whether the “last phrase”
of Dr. Blinder’s answer, that Sylva is not a “bad man who goes around hurting
people,” was properly excluded.
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a reasonable possibility that the error might have
contributed to conviction.
State v. Aplaca, 96 Hawaiʻi 17, 25, 25 P.3d 792, 800 (2001)
(emphasis added) (cleaned up). “[W]here there is a wealth of
overwhelming and compelling evidence tending to show the
defendant guilty beyond a reasonable doubt, errors in the
admission or exclusion of evidence are deemed harmless.” State
v. Veikoso, 126 Hawai‘i 267, 276,
270 P.3d 997, 1006 (2011)
(quoting State v. Toyomura, 80 Hawai‘i 8, 27,
904 P.2d 893, 912
(1995)). “[A] narrow or strict application of the harmless
error rule appropriately protects a defendant’s rights and the
integrity of the trial process.” Aplaca, 96 Hawaiʻi at 27 n.7,
25 P.3d at 802 n.7.
Citing a civil case, Wakabayashi, 66 Haw. at 272,
660 P.2d
at 1314, the ICA concluded that even if the circuit court
erroneously struck Dr. Blinder’s statement that “[b]ased – to a
reasonable degree of medical probability, there does not appear
to be a rational basis for his action, and that but for his
psychotic illness, he would not have taken the life of this
man,” the error was harmless because the testimony was
cumulative. Sylva,
2022 WL 17350568, at *3.
However, our holding in civil cases that “where essentially
the same evidence is given by . . . other means, the trial
court’s exclusion of relevant evidence constitutes harmless
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error” does not apply to the criminal context. See Wakabayashi,
66 Haw. at 272,
660 P.2d at 1314 (citing Kekua v. Kaiser Found.
Hosp.,
61 Haw. 208, 219,
601 P.2d 364, 371 (1979)). The ICA
erred when it applied that holding to Sylva’s case. Our
application of the harmless error rule in criminal cases is
narrower, and the ultimate standard must always be “whether
there is a reasonable possibility that the error might have
contributed to conviction.” See Aplaca, 96 Hawaiʻi at 25, 27
n.7,
25 P.3d at 800, 802 n.7 (quoting State v. Gano, 92 Hawaiʻi
161, 176,
988 P.2d 1153, 1168 (1999)).
Parts of Dr. Blinder’s erroneously stricken explanation for
his opinion may have been cumulative. On cross-examination by
the State, the jury heard Dr. Blinder again explain his process
for determining whether a defendant is criminally responsible;
that testimony was not struck.14 But Dr. Blinder did not again
14 Sylva does not raise his constitutional right to present a complete
defense, but we emphasize that such right is held by the defendant and is not
satisfied solely by evidence elicited by the State. See U.S. Const. amend.
XIV; Haw. Const. art. I, § 5; Abion, 148 Hawai‘i at 454, 478 P.3d at 279
(“Central to the protections of due process is the right to be accorded a
meaningful opportunity to present a complete defense. Thus, a defendant has
the constitutional right to present any and all competent evidence in their
defense.” (emphasis added) (cleaned up)).
Further, we have maintained that
[l]ack of penal responsibility is not merely a statutory
affirmative defense; it reflects a precept that is
fundamental to due process under the Hawai‘i Constitution:
“A defendant who, due to mental illness, lacks sufficient
mental capacity to be held morally responsible for his
actions cannot be found guilty of a crime.”
(continued. . .)
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expressly testify that he determined in Sylva’s case, there was
merely a “very superficial” reason for the killing – that
the basic reason is he’s got a mission . . . to rid the
world of demons . . . . This was obviously, in his
delusional mind, a dangerous demon, and for some reason, .
. . he’s been anointed by what he reads in the Bible to
take care of this problem.
More importantly, because the jury was precluded from
considering Dr. Blinder’s answer explaining the basis for his
opinion, the jury may have placed less weight on his opinion,
which was pivotal to Sylva’s insanity defense. Additionally, in
contrast to Dr. Blinder, Dr. Choi testified his opinion was
partly based on the verbal dispute between Cerezo and Sylva on
the bus; Dr. Choi testified that Sylva engaged in intentional
and goal-oriented behavior, indicating no substantial
impairment, because Sylva wanted to teach Cerezo a lesson after
Cerezo provoked Sylva on the bus. There is a reasonable
possibility that the circuit court’s erroneous instruction to
disregard Dr. Blinder’s contrary testimony that there was only a
“very superficial” reason for Sylva to kill Cerezo apart from
his mental disorder might have contributed to Sylva’s
conviction. See Aplaca, 96 Hawaiʻi at 25, 25 P.3d at 800.
(. . . continued)
Abion, 148 Hawai‘i at 458,
478 P.3d at 283 (quoting State v. Glenn, 148
Hawai‘i 112, 116,
468 P.3d 126, 130 (2020)) (holding the circuit court’s
wholesale preclusion of a medical examiner from testifying at trial violated
the defendant’s constitutional right to present a complete defense).
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This is not a case where there was a “wealth of
overwhelming and compelling evidence tending to show” Sylva was
guilty beyond a reasonable doubt, for there was substantial
evidence to support Sylva’s insanity defense. See Veikoso, 126
Hawai‘i at 276, 270 P.3d at 1006. The record shows voluminous
evidence supporting Sylva’s mental disorder, including
references to demons and aliens, as well as evidence that Sylva
believed Cerezo was a demon. All three examiners agreed that
Sylva suffered from a mental disease, disorder, or defect at the
time of the conduct, and two of the three opined that as a
result, Sylva lacked capacity at the time of the conduct.
Because the insanity defense in this case turned largely on
the three medical examiners’ testimonies, the striking of parts
of Dr. Blinder’s explanation for his opinion was not harmless
beyond a reasonable doubt. See, e.g., DeLeon, 131 Hawaiʻi at
486, 319 P.3d at 405 (holding that because the defendant’s
“defense depended heavily on” the decedent’s “behavior
immediately before [the defendant] shot him, there [was] a
reasonable possibility that the exclusion of” the expert’s
testimony about the influence of substances on the decedent’s
behavior “affected the outcome of the trial”); Gano, 92 Hawaiʻi
at 176-77,
988 P.2d at 1168-69 (holding there was “more than a
reasonable possibility” that the erroneous admission of evidence
that contributed to the complainant’s credibility and weighed
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against the defendant’s credibility contributed to the
defendant’s conviction).
The State contends that even if the circuit court erred,
Sylva waived this argument. The State alleges Sylva waived any
argument based on the circuit court’s striking of Dr. Blinder’s
testimony because Sylva did not then raise an objection to the
circuit court’s directive to the jury to disregard Dr. Blinder’s
“last response.” The State is simply wrong. Sylva had no duty
to “object” to the court’s sustaining of an objection.15
15 HRE Rule 103 (2016) provides in relevant part:
Rule 103. Rulings on evidence. (a) Effect of erroneous
ruling. Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of
the party is affected, and:
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike
appears of record, stating the specific ground of
objection, if the specific ground was not apparent
from the context; or
(2) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the court by offer or was apparent from
the context within which questions were asked.
Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
This was not a ruling admitting evidence under HRE Rule 103(a)(1). It was a
ruling excluding evidence under HRE Rule 103(a)(2), which would have required
an offer of proof if “the substance of the evidence” was unknown. Here, the
evidence stricken was clearly known. And pursuant to the rule, once the
circuit court made its definitive ruling striking the evidence, Sylva was not
required to renew an objection or present an offer of proof to preserve the
issue for appeal. See generally Kobashigawa v. Silva, 129 Hawaiʻi 313, 300
P.3d 579 (2013).
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Sylva has demonstrated error and the State has not
demonstrated the error was harmless beyond a reasonable doubt.
See Aplaca, 96 Hawaiʻi at 25, 25 P.3d at 800. We therefore
vacate Sylva’s conviction on these grounds.
B. The circuit court properly instructed the jury on the
application of the insanity defense to manslaughter based
on EMED
Sylva also contends the ICA gravely erred in concluding the
circuit court did not erroneously fail to instruct the jury that
if it found Sylva guilty of manslaughter based on EMED, it must
then consider the insanity defense. We hold the circuit court
properly instructed the jury on the application of the insanity
defense to manslaughter based on EMED.
HRS § 707-702(2) (2014)16 provides for the affirmative
defense of EMED. EMED is referred to as a “mitigating” defense
because where a defendant establishes the elements of EMED by a
preponderance of the evidence, first- and second-degree murder
or attempted murder offenses are reduced to manslaughter or
16 HRS § 707-702(2) provided:
In a prosecution for murder or attempted murder in the
first and second degrees it is an affirmative defense,
which reduces the offense to manslaughter or attempted
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.
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attempted manslaughter. See HRS §§ 707-702(2), 701-115 (2014)
(defining affirmative defenses and the requisite burden of
proof); State v. Aganon, 97 Hawaiʻi 299, 302, 36 P.3d 1269,
1272 (2001) (referring to EMED as a “mitigating defense”).
HRS § 704-400 lays out the insanity defense. It provides
in relevant part that
[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.
HRS § 704-400(1). If a defendant proves insanity by a
preponderance of the evidence, they are entitled to acquittal.
See id. §§ 701-115, 704-400(1), 704-402(1) (2014) (providing
that insanity is an affirmative defense).
Sylva does not contend the jury instructions on the
insanity defense contained incorrect statements of law. Rather,
Sylva’s challenge relates to the order in which the circuit
court instructed the jury to consider the affirmative defenses
of insanity and EMED.
We have recognized that “a correct statement of the law
does not always reflect an appropriate jury instruction in every
case.” State v. Uyesugi, 100 Hawaiʻi 442, 457, 60 P.3d 843, 858
(2002) (citation omitted). The question still remains whether,
“when considered as a whole, the instructions given are
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prejudicially insufficient, inconsistent, or misleading.” Id.
(citing Aganon, 97 Hawaiʻi at 302,
36 P.3d at 1272).
We have not previously decided the order in which a jury
should be instructed to consider the insanity and EMED
defenses.17
In concurrences in Yamada, 99 Hawaiʻi 542, 57 P.3d 467, and
Uyesugi, 100 Hawaiʻi 442,
60 P.3d 843, Justice Acoba opined as to
his belief regarding the proper order of the insanity and EMED
jury instructions: “‘[T]he jury was required to decide the
insanity defense which would exclude responsibility for first
degree murder, before proceeding to consider the mitigating
defense of manslaughter,’ inasmuch as the insanity defense
completely negates guilt, while the emotional disturbance
defense only mitigates guilt.” Uyesugi, 100 Hawaiʻi at 473,
60
P.3d at 874 (Acoba, J., concurring) (quoting Yamada, 99 Hawaiʻi
at 561,
57 P.3d at 486 (Acoba, J., concurring)).
17 In State v. Miyashiro, 90 Hawaiʻi 489,
979 P.2d 85 (App. 1999), the ICA
held a trial court must instruct the jury that it is required to “unanimously
agree that all elements of the charged offenses ha[ve] been established
beyond a reasonable doubt before considering” an affirmative defense. 90
Hawaiʻi at 500,
979 P.2d at 96; see also Uyesugi, 100 Hawaiʻi at 459,
60 P.3d
at 860 (“The Miyashiro analysis is correct.”). Miyashiro did not involve a
mitigating defense. See 90 Hawaiʻi at 500,
979 P.2d at 96. But
“Miyashiro indicated that the instructions should be given in a sequence
consistent with the logical progression of determining acquittal or guilt.”
State v. Yamada, 99 Hawaiʻi 542, 558,
57 P.3d 467, 483 (2002) (Acoba, J.,
concurring).
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Justice Acoba’s concurrence in Yamada relied in part on a
New York case, People v. Johns, 122 A.D.2d 74 (N.Y. App. Div.
1986). See Yamada, 99 Hawaiʻi at 561,
57 P.3d at 486 (citing
Johns,
122 A.D.2d 74). In Johns, the New York Supreme Court,
Appellate Division, reversed the trial court’s judgment
convicting the defendant of manslaughter based on extreme
emotional disturbance.
122 A.D.2d at 76. The defendant had
raised the defenses of insanity and extreme emotional
disturbance under applicable state law.
122 A.D.2d at 75. In
that case, the trial court charged the jury as follows:
[I]f the People had proven intentional murder beyond a
reasonable doubt, the jury was then to consider the
affirmative defense of extreme emotional disturbance. The
court further instructed the jury that if it found that the
defendant suffered from an extreme emotional disturbance,
it should report its verdict of guilty of manslaughter in
the first degree by reason of extreme emotional
disturbance. If the jury found the defendant guilty of
intentional murder, not mitigated by extreme emotional
disturbance, it was to consider the defense of mental
disease or defect, known as the insanity defense.
122 A.D.2d at 75-76.
On review, the appellate court concluded the trial court’s
jury instructions, though not objected to, improperly “created
the misleading impression that the insanity defense did not
apply if the jury found that the defendant satisfied his burden
of proving that he was acting while under the influence of an
extreme emotional disturbance.” 122 A.D.2d at 76 (citation
omitted). The appellate court noted the extreme emotional
disturbance instruction “made no reference to the insanity
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defense” and determined the trial court thus “impermissibly
curtailed the jury’s consideration of the insanity defense.”
Id.
In contrast, here, the circuit court instructed the jury to
consider the insanity defense if the State established all the
elements of the offense, and to only consider EMED if it
unanimously found the insanity defense did not apply. In other
words, the circuit court expressly instructed the jury to
consider the insanity defense before EMED; the jury was to
consider insanity regardless of whether EMED applied.
Unlike in Johns, the EMED instruction here expressly
referenced the insanity defense. The beginning of the EMED
instruction, instruction no. 26, stated,
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.
(Emphases added.) Because the circuit court expressly
instructed the jury to consider insanity before EMED, it is
unlikely that the instructions misled the jurors into
believing they were not to consider the insanity defense
for manslaughter based on EMED.
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We agree with Justice Acoba’s concurrences in Yamada and
Uyesugi regarding the proper order of the jury instructions on
the insanity and EMED affirmative defenses. See Yamada, 99
Hawaiʻi at 561, 57 P.3d at 486; Uyesugi, 100 Hawaiʻi at 473,
60
P.3d at 874. If the jury had accepted the insanity defense, it
would have been required to acquit Sylva, and the EMED
mitigating defense would have been inapplicable. Hence, the
circuit court properly instructed the jury to consider the
insanity defense before EMED.
There is nothing in the record on appeal indicating those
jury instructions were prejudicially insufficient, inconsistent,
or misleading. See Uyesugi, 100 Hawaiʻi at 457, 60 P.3d at 858.
Sylva did not meet his initial burden to prove error on this
issue. See id.; DeLeon, 131 Hawaiʻi at 479,
319 P.3d at 398.
Therefore, the ICA did not gravely err in affirming the circuit
court as to those jury instructions.
V. Conclusion
Based on the circuit court’s erroneous striking of parts of
Dr. Blinder’s testimony, we vacate the circuit court’s January
24, 2020 judgment, conviction, and sentence; as well as the
ICA’s January 3, 2023 judgment on appeal, and we remand to the
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circuit court for further proceedings consistent with this
opinion.18
William H. Jameson, Jr. /s/ Mark E. Recktenwald
for petitioner
/s/ Sabrina S. McKenna
Richard B. Rost
for respondent /s/ Todd W. Eddins
/s/ James S. Kawashima
/s/ Henry T. Nakamoto
18 We note that double jeopardy principles preclude Sylva from being
retried for second-degree murder because Sylva’s successful use of the EMED
defense entitled him to an acquittal of the murder charge. See U.S. Const.
amend. V; Haw. Const. art. I, § 10; Whiting v. State, 88 Hawai‘i 356, 360, 966
P.2d 1082, 1086 (1998) (holding double jeopardy principles barred
reprosecution for second-degree murder because the defendant’s successful use
of the EMED defense entitled him to an acquittal of the second-degree murder
charge); see also HRS § 701-115(2)(b) (establishing the burden of proof for
affirmative defenses, which entitle defendants to an acquittal); HRS § 707-
702(2) (laying out the affirmative defense of EMED). The State may, however,
retry Sylva for manslaughter. See Whiting, 88 Hawai‘i at 360-62,
966 P.2d at
1086-88 (noting that reprosecution for the offense of reckless manslaughter
is the functional equivalent of a retrial for manslaughter based on EMED).
35
