concurring and dissenting.
I concur in the majority opinion except as to part III.A. Because I believe that the trial court did not improperly instruct the jury, I dissent from part III.A and, therefore, would affirm the conviction of defendant-appellant Muao Maelega (Maelega).
Because our case law entitles a defendant to a jury instruction based “on every defense or theory of defense having any support in the evidence,” State v. Pinero, 75 Haw. 282, 304, 859 P.2d 1369, 1379 (1993) (cited in Majority at 178-79, 763-64 of 907 P.2d), I agree with the majority’s holding that it was not inappropriate for the circuit court to issue to the jury an extreme mental or emotional disturbance (EMED) instruction.
However, I disagree with the majority’s holding that the EMED instruction given by the trial court was prejudicially erroneous and misleading. Majority at 179, 764 of 907 P.2d. Throughout its instructions to the jury, the trial court repeatedly admonished the jury that the prosecution had the burden of proving every material element of the offense charged against the defendant beyond a reasonable doubt. The trial court also directed the jury that it must presume that the defendant is innocent of the charge against him, and that the presumption remains throughout the trial, unless and until the prosecution proves the defendant guilty beyond a reasonable doubt.
Although not quoted in the majority opinion, just prior to the instruction that the majority scrutinized, the trial court instructed the jury that:
If and only if you find beyond a reasonable doubt that the defendant intentionally or knowingly caused the death of [his *185wife], you must then determine whether at that time the defendant was 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 person in the defendant’s situation under the circumstances of which the defendant was aware or as the defendant believed them to be.
The prosecution must prove beyond a reasonable doubt that the defendant was not at the time he caused the death of [his wife] under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. If the prosecution has done so, then you must return a verdict of guilty of murder in the second degree. If the prosecution has not done so, then you must return a verdict of guilty of manslaughter based on extreme mental or emotional disturbance.
(Emphasis added.) See Hawai'i Revised Statutes (HRS) § 707-702(2) (1993).1 Thus, the jury was properly instructed that, if it found that Maelega intentionally caused the death of his wife, the jury should then consider whether Maelega did so under the influence of an extreme mental or emotional disturbance for which there is a reasonable explanation. The prosecution had the burden of proving beyond a reasonable doubt that Maelega was not under the influence of an extreme mental or emotional disturbance.
In determining whether there was a reasonable explanation from the evidence to find that Maelega was under the influence of an extreme mental or emotional disturbance, the jury would weigh the credibility of the evidence. If the jury found that the evidence showing that Maelega manifested an extreme mental or emotional disturbance was not credible, then, obviously, there could not have been a reasonable explanation that Ma-elega was under the influence of an extreme mental or emotional disturbance and the prosecution would have impliedly carried its burden of disproving that Maelega acted under the influence of an extreme mental and emotional disturbance. Therefore, because common sense tells us that evidence of EMED must be credible in order to sustain a conviction, as the scrutinized instruction so indicates, I would hold that the instruction was correct.
If an EMED instruction is given by the circuit court, the jury is not to presume that the defendant is guilty of manslaughter as a result of an extreme mental or emotional disturbance. The majority opines that, “[b]y giving the EMED instruction to the jury, the circuit court implicitly acknowledged that a reasonable juror could rely on the record evidence to determine that Maelega acted while under an extreme [mental or] emotional disturbance when he killed Eyvette” Majority at 177, 762 of 907 P.2d. I agree that the jury could rely on the record evidence to determine whether Maelega acted while under the influence of an extreme mental or emotional disturbance; however, in making this determination, the jury must weigh the evidence to determine whether there is a reasonable explanation to support the EMED defense. It only follows that a “reasonable explanation” comes from credible evidence.
The circuit court determines the appropriateness of an EMED instruction based on whether there is any evidence in the record to support this contention. Pinero, 75 Haw. at 304, 859 P.2d at 1379. If there is any evidence, then the circuit court should instruct the jury as to an EMED defense. By giving this instruction, however, the circuit court is not determining whether the evidence was credible. Rather, weighing the credibility of evidence is left to the fact-finder, in this case the jury, not the bench. Therefore, in determining whether there was a reasonable explanation to support an EMED defense, the jury, not the trial judge, would make this determination based on *186credible evidence. Thus, the mere giving of an EMED instruction does not have any implicit bearing on the credibility of the evidence.
The majority is stretching the possible interpretations of the scrutinized instruction by guessing at what the jury could have implied from what is clearly not an incorrect statement of the law. It is insulting to the members of the jury on this case to, in effect, tell them that they received an instruction that was not technically incorrect, but there is a possibility that they weren’t intelligent enough to understand what it really meant.
The majority makes the all too common mistake of underestimating the intelligence of the jury. The jury who sat on this case listened to all of the evidence, listened to the instructions, and the closing arguments where both the prosecution and the defense repeatedly admonished the jury that the prosecution has the burden of proving beyond a reasonable doubt that Maelega was not under the influence of an extreme mental or emotional disturbance, and apparently came to the conclusion that it is not reasonable for a man to kill his wife because he suspects infidelity. In this case, where the old way of thinking of women as chattel met head-on with the present day acknowledgment of women as having the right to personal autonomy, there was no error committed by the trial judge and the conviction should stand. Accordingly, I dissent from the majority opinion and would affirm Maele-ga’s conviction.
. HRS § 707-702(2) (1993) provides:
In a prosecution for murder in the first and second degrees it is a defense, which reduces the offense to manslaughter, that the defendant was, at the time he [or she] 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 person in the defendant's situation under the circumstances as he [or she] believed them to be.
(Emphasis added.)