No. SCWC-15-0000643, Tuesday, December 18, 2018, 8:45 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. MARLIN L. LAVOIE, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Matthew S. Kohm

Attorney for Respondent:

Renee Ishikawa Delizo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 09/26/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

On March 22, 2013, Marlin Lavoie was charged with the offenses of murder in the second degree, carrying or use of a firearm in the commission of a separate felony, ownership or possession prohibited of any firearm (felon in possession), and place to keep loaded firearms other than pistols and revolvers (place to keep). Prior to trial, the Circuit Court of the Second Circuit (circuit court) granted the defense’s motion in limine precluding the use of prior crimes, wrongs, or other acts of Lavoie at trial.

At trial, the State elicited testimony about six prior incidents involving alleged abuse of the decedent by Lavoie. The court ruled, over objection, that the defense had opened the door to testimony about these incidents because the defense counsel asked a State witness about prior arguments between Lavoie and decedent and their resulting separation.

At the conclusion of the trial, the court instructed the jury that the prior instances of abuse may be considered on the issue of Lavoie’s intent to commit the charged offenses. The court also instructed the jury that Lavoie’s self-control, or lack thereof, was a significant factor in determining whether he was under the influence of extreme mental or emotional disturbance at the time of the shooting. Lavoie was found guilty as charged on all offenses.

After the verdict, the circuit court denied Lavoie’s motion to compel the State to dismiss either the felon in possession or place to keep conviction due to merger. The court ruled that there was no merger of the offenses because the felon in possession offense was committed at a different time and in a different location than the place to keep offense.

On appeal, the Intermediate Court of Appeals (ICA) affirmed Lavoie’s conviction. The ICA held that the circuit court did not err in admitting testimony about the prior incidents of abuse because the defense opened the door to allow the testimony. The ICA also held that the circuit court did not err in its submitted jury instructions, and it held that the circuit court did not err in omitting a merger instruction.

In his application for a writ of certiorari, Lavoie argues that the ICA erred by affirming the circuit court’s (1) admission of testimony about the prior incidents of abuse; (2) jury instruction that the prior incidents of abuse could be considered to determine Lavoie’s intent; (3) jury instruction that did not include a definition of extreme mental or emotional disturbance; and (4) omission of a merger instruction.