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NO. 29679
IN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘I
9*1=9 LW SZS‘~H'I{` iliilZ
STATE OF HAWAIT, Plaintiff-Appellee, v.
TYLER CONDON, also known asc ALEX, Defendant-Appellant
APPEAL FROM THE CIRCUlT COURT OF THE FlRST CIRCUlT
(CR. NO. 07-1-l275)
MEMORANDUM OPINION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Tyler Condon (Condon) appeals from
2009 judgment entered by the Circuit Court of the
in which Condon was adjudicated
the February 2,
First Circuit1 (circuit court),
guilty of Murder in the Second Degree, in violation of Hawaii
§ 707-70l.5 (l993), and sentenced to life
Revised Statutes (HRS)
imprisonment with the possibility of parole.
Condon does not dispute that he stabbed his second
cousin, Jake Hale ("Decedent"), early in the morning of July 4,
2007, and that Decedent bled to death from the stab wounds.
Rather, Condon argued that the stabbing was justified as self-
defense or was mitigated because he was under extreme mental or
emotional distress (EMED).
On appeal, Condon alleges that the circuit court erred
in instructing the jury. Condon also alleges that the deputy
prosecutor trying the case made five statements during closing
arguments that constituted misconduct.
After careful review of the issues raised, the
arguments made by the parties, the record as presented in the
circuit court, and the relevant case law, we resolve Condon's
points on appeal as follows:
1 The Honorable Karen S.S. Ahn presided.
C!L`¥"H..M
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JurV Instructions
Condon asserts, citing State v. Culkin, 97 HawaiU_206,
2l6, 35 P.3d 233, 243 (200l), that the circuit court erred by
rejecting self-defense as a third element in the Murder in the
Second Degree and Reckless Manslaughter instructions. Unlike the
instructions given in Culkin, the separate instruction on self-
defense stated that the prosecution bore the burden of proving
lack of self-defense in order to convict the defendant of murder
in the second degree and reckless manslaughter.
Condon also alleges that the court's "decision to
separately instruct the jury on self-defense . . . suggested that
it was either secondary to, or less than important than, the
establishment of the charged offense." Condon does not explain
how his suggestion interferes with the proper application of the
law of self-defense. In any event, the HawaiH.Supreme Court has
upheld instructions that were nearly identical to those given
here. State v. Van DVke, 101 HawaiT.377, 385, 69 P.3d 88, 96
(2003). Accordingly, the self-defense instruction given here was
not erroneous.
Condon also objects to exclusion of a "no verdict"
option from Court's Instruction No. 3l,2 but concedes he did not
object to the instruction. Condon fails to show how the jury
2 Instruction No. 31 reads:
You may bring in one of the following verdicts:
l. Not guilty; or
2. Guilty as charged; or
3. Guilty of Manslaughter based Upon Extreme Mental or
Emotional Disturbance; or
4. Guilty of Reckless Manslaughter.
Your verdict must be unanimous.
After a verdict has been reached and your foreperson
has signed and dated the verdict form, you will notify the
bailiff, and court will be reconvened to receive the
verdict.
(Emphasis added.)
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would have been prevented from returning no verdict, when the
jury instruction does not require the jury to bring in a verdict
at all.
Given that the instructions were not "prejudicially
insufficient, erroneous, inconsistent, or misleading[,]" we do
not need to examine whether they were harmless beyond a
reasonable doubt. State v. Nichols, 111 Hawafi 327, 334-35, 141
P.3d 974, 981-82 (2006).
Closing Argument
"If defense counsel does not object at trial to
prosecutorial misconduct . . . [w]e may recognize plain error"
' when the error committed affects substantial rights of the
defendant. State v. Wakisaka, 102 HawaFi 504, 513, 78 P.3d 317,
326 (2003) (internal quotation marks and citations omitted). In
reviewing a prosecutor's comments for misconduct, the appellate
court considers three factors: (1) the nature of the conduct, (2)
"the promptness or lack of a curative instruction," and (3) "the
strength or weakness of the evidence against defendant." ld;, at
5l5, 78 P.3d at 328 (2003) (quoting State v. Clark, 83 Hawafi
289, 304, 926 P.2d 194, 209 (1996) (internal quotation marks
omitted)). If the conduct was improper, the court then asks
whether the misconduct was harmless beyond a reasonable doubt,
and if not, whether the misconduct was "so egregious as to bar
reprosecution." State v. Maluia, 107 HawaiH.20, 26, 108 P.3d
974, 980 (2005).
As a threshold matter, this court must first determine
whether the prosecutor indeed committed misconduct. State v.
KiakOna, llO HaWaiH.450, 458, 134 P.3d 6l6, 624 (App. 2006). Of
the five statements challenged by Condon, four statements fall
within the bounds of permissible conduct, considering the wide
latitude that the prosecutor is given to discuss, comment on and
draw reasonable inferences from the evidence. State v.
Mainaaupo, 117 Hawafi 235, 253-54, 178 P.3d 1, 19-20 (2008).
Appellant claims the following is the most damaging:
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Now, during the killing, [Condon] stabs [Decedent]
multiple times causing his death. No injuries on [Condon].
No indication of extreme mental or emotional disturbance
during the killing.
When you have a case where a person is extremely
emotionally disturbed, you have what is called overkill.
They just keep stabbing and stabbing and stabbing. The
person is dead and they keep stabbing because they lost it.
They went out of control. He didn't have this in this case.
The State argues that the comment draws upon the
relevant law on EMED, which states "that the question of a
killer's self-control, or lack of it, at the time of the killing
is a significant, even determining, factor in deciding whether
the killer was under the influence of an extreme emotional
disturbance such that his conduct would fall under HRS
§ 707-7O2(2)."3 State v. Matias, 74 Haw. l97, 204, 840 P.2d 374,
378 (1992). The State contends that the prosecutor had "argued
facts illustrating that there was no evidence [Condon] evinced a
lack of self-control, either before the killing, during the
killing or after the killing." The prosecutor's closing
argument, however, gave one example of how "loss of control"
might be exhibited -- "overkill" -- and then implied because
there was no "overkill" here, the EMED defense would not apply.
Insofar as the prosecutor's argument suggests the lack of
"overkill" prohibits an EMED verdict, he misstated the law. Qf;
State v. Espiritu, 117 Hawafi 127, 142-43, 176 P.3d 885, 900-01
(2008) (holding prosecutor misstated the law when he implied
"special relationship" must exist between complainant and
defendant asserting EMED defense).
Although the nature and number of wounds inflicted
3 HRS § 707-202(2) (supp. 2009) states=
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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provides circumstantial evidence of a perpetrator's state of
mind, see, e.g., State v. Ah Choy, 70 Haw. 618, 624, 780 P.2d
1097, 1101-02 (1989), they are not conclusive as to whether the
perpetrator suffers an emotional disturbance. People v. Haskett,
801 P.2d 323, 332 n.5 (Cal. 1990) (noting that the "use of wounds
or manner of killing has limited value" when inferring a
defendant's mental state). "Overkill“ is one of a variety of
behaviors that indicates an EMED. §§§ Harold Hall et al.,
Extreme Mental or Emotional Disturbance (EMED), 23 U. Haw. L.
Rev. 431, 460-61 (2001) (describing "perseverative violence past
the point where it is functional" as one of twelve behaviors that
demonstrate diminished self-control). EMED manslaughter has been
found where the killer inflicted a single stab wound, e.g., where
there was no "overkill." See, e.g. People v. Mendez, 801 N.E.2d
382, 383-84 (N.Y. 2003). Conversely, many wounds may indicate
that a murderer was not influenced by EMED, but instead committed
a particularly brutal crime not warranting a mitigation defense.
See People v. Roche, 772 N.E.2d 1133, 1139-40 (N.Y. 2002)
(refusing EMED jury instruction to defendant who stabbed his wife
more than a dozen times).
Most problematic here is that no testimony was
presented from which the prosecutor could have premised his
statement that "where a person is extremely emotionally
disturbed, you have what is called overkill." Although the
prosecution's expert witness opined that Condon did not stab
Decedent in self-defense, the expert did not testify as to
whether the physical evidence showed that Condon exhibited a lack
of control. The medical examiner testified about the wounds on
Decedent's body -- five major wounds to his torso, two of which
would have been fatal if sustained alone, smaller scrapes and
several bruises on his head, and superficial wounds to Decedent's
left thigh. The medical examiner did not offer, nor was she
asked to give, an opinion as to whether the wounds were inflicted
by someone who lacked control. No expert testimony regarding the
nature or manifestations of EMED, including the concept of
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overkill, was presented. As the prosecutor's comment regarding
overkill cannot be reasonably inferred from testimony presented
at trial and misstates the law on EMED, it constitutes
misconduct.
Because no curative instruction was requested or given,
the question then becomes whether the prosecutor's statement was
harmless beyond a reasonable doubt. Maluia, 107 Hawafi at 26,
134 P.3d at 980. The harmless beyond a reasonable doubt standard
"requires an examination of the record and a determination of_
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction." State
v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999)
(internal quotation marks and citations omitted).
Prior to closing argument, the jury was instructed on
the applicable law in this case, including the law governing the
EMED defense. However, while the jury was told "[s]tatements or
remarks made by counsel are not evidence. You should consider
their arguments to you, but you are not bound by their
recollections or interpretations of the evidence[,]" the jury was
not told what to do if the attorneys contradicted the law as
stated by the court in the instructions.
The prosecutor misstated the law on EMED, making
overkill a requirement in stabbing cases where it is not one. As
in Espiritu, "[t]he misconstruction of the law and the lack of
curative instruction bore directly on [Condon's] EMED defense."
117 Hawai‘i at 144, 176 P.3d at 902. When an EMED defense is
before the court, "the relevant inquiry is whether defendant was
under the influence of an EMED at the time of the alleged crime
and whether there was a reasonable explanation, viewed from
defendant's standpoint, for the disturbance." State v. Aganon,
97 HawaiH.299, 304, 36 P.3d 1269, 1274 (2001) (quoting State v.
~Moore, 82 Hawafi 202, 210, 921 P.2d 122, 130 (1996)) (internal
quotation marks, emphasis, and brackets omitted). Condon's state
of mind is a fact that must be determined by the trier of fact,
based on the direct and circumstantial evidence adduced at trial.
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Van Dyke, 101 Hawai‘i at 387, 69 P.3d at 98 (quoting State v.
H@lbron, 73 Hawai‘i 422, 425, 395 P.2d 173, 176 (App. 1995)).
According to Condon, he picked Decedent up at a
woman's house at 4:30 a.m. the morning of the killing, drove
Decedent to the apartment where Decedent was staying, and
Decedent told him to go sleep in the bedroom. Condon said when
he woke up he "didn't know what was going on, there was all this
pressure, 1 was like smashed." Condon continued:
1 couldn't move or anything and 1 couldn't breathe. And 1
just heard somebody's voice right in my ear and it was
[Decedent] and he told me don't fucking move, don't' fucking
move, 1'm going to kill you if you move, don't fight.
Because 1 was trying to fight and 1 couldn't, 1 couldn't
move or anything. He told me don't fucking move, 1 said
okay, okay, what's going on. And he didn't say nothing. 1
felt this sharp blade at my side, 1 didn't know what it was.
1 just stopped moving, 1 didn't know what to do and 1 was
being smashed and 1 couldn't breathe.
1 felt this sharp thing at my side and then he started
fumbling at my boxer shorts and just pulled them off. 1 said
what the fuck is going on. And 1 couldn't move, he's too
big. And 1 felt -- 1 felt his penis against my back side
`and 1 started fighting, 1 was turning left and right and 1
was trying to get him off of me. And 1 saw this thing over
here, it was a hatchet, and 1 started swinging it back and
forth and he finally let me go.
1 was swinging wildly like left and right and up and
down, 1 was just trying to get him off of me.
Condon said when he broke free, Decedent hit him from
behind, causing him fall into the kitchen counter. Condon said
he then grabbed a knife, pointed at Decedent, and told him to
back off. When defense counsel asked Condon what he was feeling
at that moment, Condon answered, "1 was scared, 1 was in panic
mode. 1 was -- 1 didn‘t know how to feel or what to feel.l 1
don't know if 1 was feeling, 1 just reacted, that‘s -- that‘s all
1 did. 1 just wanted to get away."
Condon said Decedent grabbed him and put him a
headlock. "1 don't know exactly when or what happened," Condon
testified, "But 1 know he was squeezing my head and had me in a
hold, 1 couldn't breathe like my head was about to explode. And
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1 was just -- 1 started swinging the knife at him to get him off
me, to get him to let me go." Condon said that at the
apartment's front door, he swung the knife at Decedent again,
Decedent let him go, and Condon opened the door and ran out.
Condon said he went back into the house, dropped the knife in the
toilet, grabbed his car keys, and drove away because he was
"freaking out," "confused," "lost," and "panicking.“
Condon's testimony is the only evidence as to his state
of mind at the relevant time -- during the stabbing. There is a
reasonable possibility that jurors could have concluded that the
absence of "overkill" precluded them from returning a verdict
finding Condon guilty of EMED manslaughter. See Rogan, 91
.VHawafi at 412, 984 P.2d at 1238 (plain error found where there
is a reasonable possibility the misconduct contributed to the
conviction). Consequently, the prosecutor's erroneous statement
could have contributed to Condon's conviction, and therefore, was
not harmless beyond a reasonable doubt. Condon, however, does
not argue that a retrial is impermissible, nor do we find the
prosecutor's misconduct so egregious as to bar reprosecution.
Rogan, 91 Hawai‘i at 423, 984 P.2d at 1249.
Based on the foregoing, the February 2, 2009 judgment
of the Circuit Court of the First Circuit is vacated and remanded
for a new trial.
DATED: Honolulu, HawaFi, June 29, 2010.
On the briefs: &:éé:¢Z4/?;?
Phyllis J. Hironaka, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
James M. Anderson, Associate JudgEE;Ez7w*b
t l
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.