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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...)NOT FOR PUBLICATION IN WEST'S HAWAI ' I REPORTS AND PACIFIC REPORTER

2 of the First Circuit (Circuit Court) 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 firstaggressor 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 selfdefense. 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 (NonDeadly 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 for Defendant-Appellant Chief Judge

Brian R. Vincent Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee Associate Judge

Associate Judge

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