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CAAP-11-0001075
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellee,
v.
SHANNON MANO, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR NO. 10-1-1356)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., and Leonard and Ginoza, JJ.)
Defendant-Appellant Shannon Mano (Mano) was charged
with first-degree terroristic threatening for committing
terroristic threatening with the use of a dangerous weapon, in
violation of Hawaii Revised Statutes (HRS) § 707-716(1)(e) (Supp.
2010).1 A jury found Mano guilty as charged. The Circuit Court
1
At the time relevant to this case, HRS § 707-716 provided:
(1) A person commits the offense of terroristic threatening
in the first degree if the person commits terroristic threatening:
. . .
(e) With the use of a dangerous instrument[.]
In addition, at the time relevant to this case, HRS § 707-715 (1993) defined
the offense of terroristic threatening, in pertinent part, as follows:
A person commits the offense of terroristic threatening if
the person threatens, by word or conduct, to cause bodily injury
to another person or serious damage to property of another or to
commit a felony:
(1) With the intent to terrorize, or in reckless disregard
(continued...)
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of the First Circuit (Circuit Court)2
sentenced Mano to probation
for five years, subject to the condition that she serve 43 days
in jail, with credit for time already served.
I.
Mano and the complaining witness (CW) had been in a
romantic relationship and had been living together in an
apartment along with two other roommates. On August 11, 2010,
Mano and the CW had mutually agreed to end their relationship.
The CW planned to stay at the apartment for another week before
he returned to the mainland. However, in the early morning on
August 12, 2010, Mano and the CW got into an argument, with Mano
demanding that the CW leave the apartment and the CW refusing to
do so.
According to the CW, Mano was drunk, and she grabbed a
"big butcher knife," pointed the knife at the CW, and threatened
to stab the CW if he did not leave. Mano made a downward jab
with the knife at the CW and kept moving toward him. The CW
grabbed Mano's hand, wrestled the knife from her, and threw the
knife in the bathroom.
A roommate (Roommate) who shared the apartment with
Mano and the CW called the police. Roommate testified that she
heard Mano say, "I'm going to stab you, get the fuck out of the
house." Roommate initially stayed in her room because she was
afraid. When Roommate came out of her room, she observed that
Mano appeared to be intoxicated. Roommate testified that the CW
was generally very passive and not easy to anger, whereas Mano
seemed nice some of the time but became violent when she had been
drinking.
II.
Mano appeals from the Judgment entered by the Circuit
Court on November 21, 2011. On appeal, Mano argues that: (1)
1
(...continued)
of the risk of terrorizing, another person[.]
2
The Honorable Edward H. Kubo, Jr., presided.
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the Circuit Court erred in permitting Mano to only introduce
evidence of four incidents of the CW's alleged prior acts of
violence in support of her claim of self-defense, and precluding
Mano from introducing evidence of other alleged incidents; (2)
the Circuit Court committed plain error in instructing the jury
on the law of self-defense; (3) the prosecutor's remarks in
closing argument constituted prosecutorial misconduct; and (4)
her trial counsel failed to provide effective assistance of
counsel. As explained below, we affirm the Circuit Court's
Judgment.
III.
We resolve Mano's arguments on appeal as follows:
A.
1.
We conclude that the Circuit Court did not abuse its
discretion in limiting Mano to introducing four incidents of the
CW's alleged prior acts of violence in support of Mano's claim of
self-defense. Prior to trial, Mano filed a motion in limine
seeking a pre-trial determination by the Circuit Court regarding
the admissibility of (1) seven prior acts of violence allegedly
committed by the CW against Mano; and (2) Mano's understanding of
the CW's criminal history for felony assault in the State of
Washington. The Circuit Court ruled that the seven proffered
prior acts of violence were admissible on the issues of first-
aggressor and self-defense, but that the introduction of all
seven incidents would be cumulative. The Circuit Court therefore
ruled that Mano would be permitted to introduce four of the seven
alleged incidents, with Mano determining which four she wanted to
introduce.
With respect to Mano's understanding of the CW's
criminal history for felony assault, Mano conceded that she did
not have personal knowledge of the CW's alleged criminal history.
Instead, Mano informed the Circuit Court that her understanding
of the CW's criminal history was based on "things that she
learned later on." The Circuit Court ruled that based on its
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permitting Mano to introduce evidence of four incidents of
violence committed by the CW against Mano, it viewed the evidence
of the CW's alleged criminal history as inadmissible hearsay.
The Circuit Court therefore denied Mano's request to introduce
the criminal history evidence. The Circuit Court made clear that
its in limine rulings were without prejudice to the parties
moving for reconsideration during trial "[i]n the event that
[they] have information during trial that opens the door to the
proper introduction of such evidence[.]"
2.
Evidence of the CW's prior acts of violence were
relevant for two purposes: (1) to show the reasonableness of
Mano's apprehension of immediate danger and thereby support her
use of force in self-defense; and (2) to show that the CW was the
first aggressor. See Hawaii Rules of Evidence (HRE) Rule 404
(Supp. 2013); State v. Lui, 61 Hawai'i 328, 329-30, 603 P.2d 151,
154 (1979); State v. Basque, 66 Haw. 510, 513-15, 666 P.2d 599,
602-03 (1983); State v. Adam, 97 Hawai'i 413, 418-19, 38 P.3d
581, 586-87 (App. 2001). Mano's argument on appeal is limited to
the first purpose. Mano contends that the evidence excluded by
the Circuit Court was relevant to showing her state of mind
regarding fear of imminent harm and therefore was critical to her
claim of self-defense. Mano argues that because evidence of her
state of mind was critical to her claim of self-defense, the
Circuit Court erred by only permitting her to introduce evidence
of four of the CW's prior acts of violence and not allowing her
to introduce all the evidence on this issue that she sought to
introduce. We disagree.
The Circuit Court excluded evidence of three (of seven)
prior incidents of violence and Mano's understanding of the CW's
criminal history for felony assault. While the excluded evidence
was relevant to Mano's state of mind, we conclude that the
Circuit Court did not abuse its discretion in ruling that such
evidence could not be introduced. HRE Rule 403 (1993) provides
that "[a]lthough relevant, evidence may be excluded if its
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probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." (Emphasis added.)
The Circuit Court ruled that evidence beyond four of the prior
incidents of alleged violence by the CW against Mano would be
cumulative, and it limited Mano to introducing four prior
incidents of her choice.
None of the seven prior incidents of alleged violence
by the CW against Mano apparently resulted in arrests or
convictions, and the circumstances surrounding these incidents
were subject to dispute. At trial, the CW disputed Mano's
version of the four incidents Mano chose to introduce, with the
CW denying Mano's claims that he had engaged in violent acts or
asserting that certain of his acts were necessary to defend
himself against violence perpetrated by Mano. The four incidents
Mano introduced therefore resulted in mini-trials, with the CW
and Mano providing conflicting testimony about what had
transpired and who was to blame. The Circuit Court allowed Mano
to select the four incidents most favorable to her case, and
there is no basis for believing that the nature of the three
excluded incidents was much different.
With respect to evidence of Mano's understanding of the
CW's criminal history for felony assault, Mano acknowledged that
she did not have personal knowledge of the CW's alleged criminal
history and that her understanding was based on "things that she
learned later on." Mano did not proffer any details of what her
understanding of the CW's criminal history for felony assault
was, how she acquired this understanding, or what her proposed
testimony would have been. This hampers our ability on appeal to
evaluate her claim of error regarding the exclusion of her
understanding of the CW's criminal history. In any event, it
would appear that evidence of specific acts of violence committed
by the CW directly against Mano would be more probative of Mano's
state of mind in apprehending the immediate danger posed by the
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CW than her understanding of a criminal history of felony
assault.3
Under these circumstances, we cannot say that the
Circuit Court abused its discretion in limiting Mano to
introducing four incidents of the CW's alleged prior acts of
violence in support of her claim of self-defense.
B.
Mano did not object at trial to the Circuit Court's
instruction on self-defense. However, on appeal, she argues that
the Circuit Court committed plain error because its instructions
on self-defense were prejudicially confusing and misleading. We
disagree.
The Circuit Court gave two instructions on self-
defense. The first instruction was directed at self-defense when
deadly force is used (Deadly Force Instruction) and the second
was directed at self-defense when deadly force is not used (Non-
Deadly Force Instruction). Mano contends that the self-defense
instructions were prejudicially confusing and misleading because:
(1) the Deadly Force Instruction did not instruct the jury to
apply the Non-Deadly Force Instruction if the jury found that
Mano had not used deadly force; (2) it was not clear from the
instructions when the jury should apply the Deadly Force
Instruction versus the Non-Deadly Force Instruction; and (3) the
Circuit Court used Hawai'i Pattern Jury Instruction Criminal
(HAWJIC) 7.01 on self-defense, which was repealed and replaced by
HAWJIC 7.01A and 7.01B on April 4, 2011, instead of the more
current HAWJIC 7.01A on the use of deadly force in self-defense.
Mano's arguments are without merit. Reading the
instructions as a whole, it is clear that the Deadly Force
3
Mano does not challenge the Circuit Court's exclusion of the criminal
history evidence on the theory that the evidence was necessary to show that
the CW was the first aggressor. We note that Mano acknowledged that she
lacked personal knowledge of the CW's alleged criminal history for felony
assault. It is therefore unclear how she could introduce substantive evidence
to establish the CW's criminal history for the purpose of showing that he was
the first aggressor.
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Instruction only applied if the jury found that Mano had engaged
in the use of deadly force and that the Non-Deadly Force
Instruction applied if the jury found that Mano had not engaged
in the use of deadly force. The self-defense instructions given
by the Circuit Court were based on HAWJIC 7.01, which was
repealed in 2011. The Hawai'i Supreme Court has held that the
repealed HAWJIC 7.01 is "fully consonant with the controlling
statutory and case law of this state." State v. DeLeon, 131
Hawai'i 463, 487, 319 P.3d 382, 406 (quoting State v. Augustin,
101 Hawai'i 127, 127, 63 P.3d 1097, 1097 (2002)).4 We conclude
that Mano failed to rebut the "presumption that unobjected-to
jury instructions are correct" or to show that the self-defense
instructions were "prejudicially insufficient, erroneous,
inconsistent, or misleading." State v. Nichols, 111 Hawai'i 327,
334, 337 n.6, 141 P.3d 974, 981, 984 n.6 (2006).
C.
Mano argues that the prosecutor's remarks in closing
argument constituted prosecutorial misconduct. Specifically,
Mano argues that on three occasions, the prosecutor asked the
jurors either to put themselves in the shoes of the CW or Mano,
in making arguments to the jurors concerning the effect and
reasonableness of the actions of the CW and Mano.
Because Mano did not object to the prosecutor's remarks
at trial, "we must, as a threshold matter, determine whether the
alleged misconduct constituted plain error that affected [Mano's]
substantial rights." State v. Iuli, 101 Hawai'i 196, 208, 65
P.3d 143, 155 (2003). Although inartfully phrased, we conclude
that the prosecutor's remarks in closing argument did not affect
Mano's substantial rights. The prosecutor's remarks were made in
4
Mano argues that the Deadly Force Instruction was erroneous because it
failed to include the language from HRS § 703-304(3) (1993) that "a person
employing protective force may estimate the necessity thereof under the
circumstances as [he/she] believes them to be[.]" However, the supreme court
in DeLeon concluded that a deadly force instruction similar to that used in
this case, which also excluded the quoted language from HRS § 703-304(3), was
not erroneous. DeLeon, 131 Hawai'i at 475-76, 486-87, 319 P.3d at 394-95,
405-06.
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the context of arguing to the jury that the evidence presented at
trial showed that Mano's act of brandishing the knife was
objectively capable of causing fear; that the CW's reaction to
Mano's brandishing the knife was reasonable; and that Mano did
not reasonably believe that the use of force was immediately
necessary. Given the context of the prosecutor's remarks, they
"did not appeal improperly to the jurors' emotions or exhort them
to decide the case on anything other than the evidence presented
to them." State v. Bell, 931 A.2d 198, 215 (2007). In addition,
the Circuit Court instructed the jury that statements or remarks
by counsel are not evidence and that the jury should not be
influenced by pity for, or passion or prejudice against, the
defendant in deciding the case. The failure of Mano's counsel to
object to the prosecutor's remarks also indicates that trial
counsel did not view the prosecutor's remarks as improper. Under
these circumstances, we conclude that the prosecutor's remarks
did not affect Mano's substantial rights.
D.
Mano contends that her trial counsel provided
ineffective assistance by failing to: (1) seek to introduce
evidence of the CW's violent character that was listed in Mano's
notice of intent to use HRE Rule 404 evidence (Notice of Intent),
but not in her motion in limine; (2) object to the Circuit
Court's in limine ruling, which excluded evidence of three of the
seven prior incidents of alleged violent acts by the CW against
Mano and Mano's understanding of the CW's criminal history of
felony assault; (3) object to the self-defense instructions; and
(4) object to the prosecutor's remarks in closing argument.
With respect to Mano's claims (2) through (4), our
previous analysis shows that they are without merit. For the
reasons previously stated, the asserted failures to object by
trial counsel did not result in the withdrawal or substantial
impairment of a potentially meritorious defense and therefore
cannot support a claim of ineffective assistance of counsel. See
State v. Richie, 88 Hawai'i 19, 39, 960 P.2d 1227, 1247 (1998).
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The background with respect to Mano's first claim is
that prior to filing her motion in limine, Mano filed a Notice of
Intent. In her motion in limine, Mano addressed much of the same
evidence identified in the Notice of Intent. The motion in
limine, however, did not include the following evidence listed in
Mano's Notice of Intent: evidence of Mano's knowledge of (1)
"[the CW's] character for violence, including witnessing multiple
bar fights involving [the CW]"; and (2) "[the CW's] possessing
and brandishing weapons, including a compact straight razor."
After ruling on Mano's motion in limine, the Circuit Court stated
its belief that Mano's motion in limine covered the same matters
as the Notice of Intent, but offered to address anything specific
Mano wished to go over concerning the Notice of Intent. In
response, Mano's counsel agreed with the Circuit Court that it
had addressed everything.
On appeal, Mano contends that her trial counsel was
ineffective for failing to seek the admission of the two items of
evidence listed in her Notice of Intent, but not her motion in
limine. The existing record, however, does not contain a proffer
that provides relevant details concerning these two items of
evidence or the means by which Mano would be able to introduce
them. The record also does not contain any statement by Mano's
trial counsel concerning the reason why he did not pursue
admission of this evidence, including whether his actions were
based on strategic considerations. We therefore conclude that
based on the existing record, Mano has failed to meet her burden
of establishing that her trial counsel provided ineffective
assistance in failing to seek admission of these two items of
evidence. See Richie, 88 Hawai'i at 39, 960 P.2d at 1247. Our
decision is without prejudice to Mano asserting this claim on a
more fully developed record. See State v. Silva, 75 Haw. 419,
439, 864 P.2d 583, 592-93 (1993).
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IV.
We affirm the Circuit Court's Judgment.
DATED: Honolulu, Hawai'i, June 30, 2014.
On the briefs:
Phyllis J. Hironaka
Deputy Public Defender Chief Judge
for Defendant-Appellant
Brian R. Vincent
Deputy Prosecuting Attorney Associate Judge
City and County of Honolulu
for Plaintiff-Appellee
Associate Judge
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