No. SCWC-30171, Thursday, January 17, 2013, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. MELCHOR B. ADVIENTO, Petitioner/Defendant-Appellant.

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

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner/Defendant-Apellant:

Summer M.M. Kupau, Deputy Public Defender

Attorney for Respondent/Plaintiff-Appellee:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 11/27/12.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

Petitioner Melchor B. Adviento (Adviento) filed an application for writ of certiorari seeking review of the August 16, 2012 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its July 10, 2012 Memorandum Opinion. The ICA affirmed the Circuit Court of the First Circuit’s (circuit court) October 21, 2009 Judgment of Conviction and Sentence, convicting Adviento of the offense of murder in the second degree in violation of Hawai`i Revised Statutes (HRS) § 707-701.5.

In his application, Adviento argues that the ICA gravely erred in holding that he was not entitled to any relief based on the manner in which the circuit court handled the admissibility of his prior conviction, where the circuit court’s handling of the issue caused him to waive a jury instruction on the defense of extreme mental or emotional disturbance (EMED) under HRS § 707-702(2). Adviento also argues that despite his waiver of the EMED defense, the circuit court plainly erred in failing to instruct the jury on the EMED defense where there was sufficient evidence to support the giving of the instruction. The State responds first that the circuit court withheld ruling on the admissibility of the prior conviction and did not cause Adviento to forgo the EMED defense. On the second issue, the State responds that there was a lack of evidentiary support for an EMED instruction in this case, and that in any event, trial courts are not required to instruct the jury on the EMED defense where the defendant has waived the instruction.