***NOT FOR PUBLICATION***

NO. 26943

vs.

I.

A.

Genesis and Gaylon continued to keep in contact by telephone and through letters. According to Genesis, during the period between May 2000 and October 2001, Genesis made over 1200 phone calls to Gaylon while he was on Johnston Island and they continued to refer to each other as husband and wife. Between June 1, 2001 and September 15, 2001, Gaylon transferred money amounting to $16,100 from his Hawai`i Federal and State Employees Credit Union (HFSECU) account to Genesis' account. The record also indicates that Gaylon assisted Genesis in repaying her $9000 truck loan. From March 2001 to October 18, 2001, Gaylon had $150 of his paycheck, which was deposited directly to his credit union account, transferred to pay for Genesis' truck, amounting to $2400.

The HFSECU records also revealed that from January 2001 to October 18, 2001, a total of $26,715.94 was deposited into Genesis' account. During the same period, Genesis' monthly expenses totaled $28,375.91. Genesis was also a named beneficiary on Gaylon's HFSECU account, as well as his account with Onomea Federal Credit Union. According to Genesis, she only found out that she was a beneficiary of these credit union accounts after Gaylon's death.

When Gaylon made visits to Hilo in April, June, and November 2000, he stayed with Genesis. Sometime in March 2001, Gaylon and his then-girlfriend, Jennifer Sheldon (Sheldon), who worked with Gaylon on Johnston Island, took a trip to Honolulu, apparently without the knowledge of Genesis. On the second day after checking into the Hobron Hotel, Sheldon answered a telephone call from a woman asking for Gaylon. According to Sheldon, Gaylon appeared upset and asked the woman, "How did you get this number?" After their conversation, Gaylon allegedly stated that he would call Genesis "when I get back on the island." After their conversation ended, Gaylon and Sheldon checked out of the Hobron Hotel and transferred to the Pagoda Hotel. Despite this, Genesis called the Hobron Hotel three more times the next day.

B.

On October 18, 2001, at approximately 5:12 a.m., the first call to 9-1-1 regarding the incident was made by Genesis. Officers John Stewart (Stewart) and James Correa (Correa) responded to reports of a domestic incident with possible gunshots, and shortly thereafter, arrived at the residence of Elizabeth Lee (Lee), Genesis' neighbor. Stewart found Gaylon lying naked on the porch of Lee's residence with a towel draped over him. Stewart pulled back the towel and saw a gunshot wound and bloodstains on the towel. Stewart then asked Gaylon what had happened, and Gaylon responded that Genesis had shot him. Stewart inquired of Gaylon about the whereabouts of the gun, and Gaylon responded by pointing his feet towards a nearby bush. The police subsequently recovered a semi-automatic handgun in the bush, two feet away from Gaylon.

Stewart then asked Genesis, "Are you okay? Are you hurt? Is there anybody in the house?" Genesis informed Stewart that she was not hurt and that no one was in her residence. Genesis then asked how Gaylon was and stated that she was going to take him to the hospital and that Gaylon was her ex-husband. Stewart then told Genesis that Gaylon was being taken to the hospital. Stewart informed Genesis that Gaylon stated that she shot him, to which Genesis responded, "Yeah, I shot him. Grabbed the gun. The gun went off." Stewart then instructed Genesis not to tell him anything more.

After being placed under arrest, Genesis complained that the back of her neck was swollen. Although Stewart did not notice any swelling, he noticed that Genesis had two reddish marks or lines on the back of her neck. Genesis told Stewart that Gaylon bashed her twice and that she may have blacked out. When Correa left Genesis' residence to retrieve paper bags, in order to cover Genesis' hands for possible evidence of gunpowder residue, he observed an L-shaped stick on the porch. When he stopped to examine the stick, Genesis stated, "I used that to hit him and push him out."

After Genesis was placed in custody, a search of Genesis' residence and truck revealed that there was blood in the hallway fronting the entry to the bathroom and on the bathroom floor. An examination of the shower curtain revealed that there was a hole in the curtain about one-and-one-half to two inches in diameter and gray colored residue around the hole. According to measurements made by the police, the distance between the left edge of the hole and the floor was forty-seven inches. When the police opened the curtain, they found a small piece of the curtain and blood on the shower stall floor. They also observed a small piece of the curtain on the shower stall floor and coagulated blood in the corner of the stall. They discovered a bullet hole and a small piece of flesh on the rear shower stall wall.

C.

On October 18, 2001, at approximately 8:40 a.m., following the incident at issue, Genesis was read her rights under Miranda v. Arizona, 384 U.S. 436 (1966), ⁽⁵⁾ and interviewed by Detective Greg Esteban (Esteban). Genesis gave the following rendition of the facts in that interview, which was recorded on videotape.

At approximately 3:00 a.m., she and Gaylon woke up so that Gaylon could be at the airport by 5:15 a.m. After they engaged in sexual intercourse, they took a shower together at about 4:00 a.m. Both exited the shower. Gaylon left the bathroom and returned with a gun. Genesis initially stated that she grabbed the gun and shot him or that he may have shot himself. However, Genesis later stated that when she saw the gun in Gaylon's hand, she ducked into Gaylon, and he went on top of her. When the gun had fallen to the ground following the struggle, Genesis grabbed the gun and shot Gaylon. Genesis dropped the gun, and Gaylon picked it up and pointed it at her.

According to Genesis, she did not have an argument with Gaylon the night before the shooting. The last argument they had was three days prior, allegedly because Gaylon was unhappy that Genesis had been living "a life of leisure" because the money he deposited into Genesis' account was spent on new furniture, a computer, and on repairs of her residence.

II.

On November 5, 2003, after hearing arguments on Genesis' and the prosecution's motions, the court concluded, inter alia, that (1) Genesis's statement, "Yeah, I shot him. He was going to shoot me. Grab gun, went off[,]" (2) Genesis' response to Esteban on October 18, 2001 at 7:00 p.m., "Gaylon died?" and (3) Genesis' responses to Esteban on October 19, 2001 at 8:55 p.m., "I no like live, braddah. Uh, give me the lethal injection" and "I'm a murderer," were not the product of police interrogation and were voluntarily made.

According to the court, despite the fact that Genesis was a suspect, she was not yet arrested and the officers "were merely making sure that the area was safe." The court noted, however, that Stewart conceded it was possible that, in response to his statement about Gaylon's allegations, Genesis could have made an incriminating statement. Nevertheless, the court concluded that Stewart's statement "was proffered in such a way that he did not know nor should he reasonably have known that it was probable that [Genesis] would respond with an incriminating response" and that Stewart's statement "did not constitute sustained questioning and [was] not designed to overcome the will of [Genesis]." The court also noted that, "[i]n fact, [Stewart] attempted to protect [Genesis'] interests by advising her not to make any further statements."

As to statements made to Esteban during the videotaped interview, the court ruled that the statements in that interview were made voluntarily. The court also concluded that Genesis' statements to Esteban while she was in her cellblock "were not the result of police interrogation and were voluntarily made."

III.

A.

During trial, Genesis elected to take the witness stand. Genesis testified that she and Gaylon were in the shower and that Gaylon left the shower first. According to Genesis, Gaylon returned to the bathroom with a gun in his right hand and with an "evil look" on his face. Genesis then "rushed out of the shower and went straight for his legs." Genesis maintained that a struggle ensued and that "the next thing [she knew], Gaylon went into the shower stall . . . [with his] left shoulder." Genesis then related that, as Gaylon was in the shower, she "saw the gun on the floor, . . . picked it up, . . . and shot." Genesis admitted that she stood outside the shower, pointed a gun in Gaylon's direction, and pulled the trigger. Her purpose in shooting Gaylon, Genesis asserted, was to "stop him from getting the gun and shooting [her]." Genesis recounted that after the shooting, she went back into her residence to get the keys of her truck so that she could take Gaylon to the hospital, but that she "blacked out."

Genesis acknowledged Gaylon's injuries but denied knowing how Gaylon received them. According to Genesis, she did not hit Gaylon with a stick. Gaylon also denied making the statement, "No help that fuckah," to her neighbors, denied that she tried to clean up the "scene," and denied that she tried to shoot Gaylon a second time but failed because the handgun jammed. Gaylon related that she never saw the gun prior to the incident and that she did not know from where the gun had come.

The prosecution called Jeffrey Wheeler (Wheeler), a forensic biomechanic who recreated a scale model of Genesis' shower, and used the model to conduct a trajectory analysis. Wheeler's opinion was consistent with Genesis' admission at trial that she shot Gaylon while he was in the shower. According to Wheeler, the only way the shooting occurred would be with Gaylon standing in the shower upright. Wheeler further opined that a shooter with the height consistent with that of Genesis approached the shower holding a gun out in front of her approximately forty-three-and-one-half inches above the floor, stood close to the shower curtain, pointed the gun toward Gaylon, and shot him while he stood upright inside the shower with his back to the faucet. Wheeler also testified that, based on the measurements he made of the width of the shower stall, which was thirty-five inches, Gaylon would "basically fill this space."

The prosecution called Raphael Kaupu, a neighbor of Genesis, who heard pounding on Lee's front door and Gaylon yelling for help. He testified that he also heard Genesis from her house saying, "Mrs. Lee, no help that fuckah."

B.

On July 21, 2004, at the close of trial, the court ruled, over defense counsel's objection, that it would be instructing the jury on the lesser included offense of reckless manslaughter. ⁽⁶⁾ Genesis' counsel argued that if the court gave the reckless manslaughter instruction,  
⁽⁷⁾ the defense was also entitled to an extreme mental and emotional disturbance (EMED) instruction as well. ⁽⁸⁾

    The court denied defense counsel's request for an EMED instruction. ⁽⁹⁾ After about a day-and-a-half of jury deliberations, the jury returned a verdict of guilty as charged.

IV.

In its answering brief, the prosecution maintains that (1) the statements to Stewart and Esteban were not in violation of Genesis' Fifth Amendment right against self-incrimination inasmuch as (a) Genesis' statements to Stewart were spontaneously made and Genesis was not subjected to custodial interrogation, (b) Genesis' statements to Esteban were unsolicited and not the result of custodial interrogation; (2) even if Genesis' statements to Stewart and Correa should have been suppressed, this court should rule that the admission was "harmless beyond a reasonable doubt"; and (3) Genesis did not satisfy the subjective/objective test by proferring a "reasonable explanation" for the EMED instruction.

In her reply brief Genesis contends as to (3) of the prosecution's argument that "because the record reflected the circumstances as [she] believed them to be [which] supported a reasonable explanation or excuse for her disturbance, [she] satisfied the 'subjective/objective' test." Genesis did not respond to items (1) and (2) of the prosecution's argument on the grounds they were "fully addressed by the opening brief."

V.

With respect to jury instructions, it has been said that "[w]hen jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Hatori, 92 Hawai`i 217, 221, 990 P.2d 115, 119 (App. 1999) (quoting State v. Kinnane, 79 Hawai`i 46, 49, 897 P.2d 973, 976 (1995)). Erroneous jury instructions are "'presumptively harmful and are a ground for reversal unless it appears from the record as a whole that the error was not prejudicial.'" State v. Jones, 97 Hawai`i 23, 30, 32 P.3d 1097, 1104 (App. 1998) (quoting State v. Pinero, 70 Haw. 509, 527, 778 P.2d 704, 715 (1989)). Moreover, with respect to erroneous jury instructions, this court has stated as follows:

Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction.

VI.

It should be noted "that the protections enumerated in [Miranda]" are also "independently grounded in the privilege against self-incrimination contained in the Hawai`i Constitution." State v. Joseph, 109 Hawai`i 482, 493, 128 P.3d 795, 806 (2006) (quoting State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971)). This court has held that a criminal defendant's rights under Miranda is triggered by two criteria: "(1) the defendant must be under interrogation; and (2) the defendant must be in custody." State v. Ah Loo, 94 Hawai`i 207, 210, 10 P.3d 728, 731 (2000) (quoting Kauhi, 86 Hawai`i at 204, 948 P.2d at 1045). Interrogation has been construed by this court as "express questioning or its functional equivalent." State v. Melemai, 64 Haw. 479, 481 n.3 643 P.2d 541, 544 n.3 (1982) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). The Supreme Court in Innis also explained that interrogation "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301. According to the Innis court, "[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Id.

The Supreme Court said in Miranda that custodial interrogation concerns "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." 384 U.S. at 444. In order to determine whether "interrogation" is "custodial" in nature, this court has said "the totality of circumstances at the time of questioning" must be examined. State v. Sugimoto, 62 Haw. 259, 265, 614 P.2d 386, 391 (1980) (quoting State v. Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755 (1978)). In examining the totality of the circumstances, the relevant factors include "time, place and length of the interrogation, the nature of the questions asked, the conduct of the police at the time of interrogation, and any other pertinent factors." Kauhi, 86 Hawaii at 204, 948 P.2d at 1045 (quoting State v. Blanding, 69 Haw. 583, 586, 752 P.2d 99, 100 (1988)).

Among the factors to be considered in deciding whether custodial interrogation took place are whether or not an investigation's "focus" had fixed on a defendant, and when, where, and in what surroundings the making of the statement took place. Patterson, 59 Haw. at 359-61, 581 P.2d at 754-55. While focus of the investigation is not a determinative factor, "it nevertheless continues to be an important factor in the determination of whether the defendant was subjected to custodial interrogation." Id. at 361, 581 P.2d at 755. In State v. Ketchum, 97 Hawai`i 107, 126, 34 P.3d 1006, 1025 (2001), the following test to determine custody was adopted:

Where statements made by a defendant are not the product of custodial interrogation, it need not be shown that a defendant was advised of his or her rights in order for the statements to be admitted. State v. Pahio, 58 Haw. 323, 327, 568 P.2d 1200, 1204 (1977). It has also been held that "unsolicited, spontaneous, and voluntary" statements are admissible. State v. Medeiros, 4 Haw. App. 248, 253, 665 P.2d 181, 185 (1983) (citing State v. Lincoln, 3 Haw. App. 107, 116, 643 P.2d 807, 814-15 (1982), superseded in part by statute as stated in Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 974 n.7 (1993).

With respect to temporary investigative detentions, this court in Ah Loo stated that a person "is not subjected to custodial interrogation when the officer poses noncoercive questions to the detained person that are designed to confirm or dispel the officer's reasonable suspicion." 94 Hawai`i at 211, 10 P.3d at 732 (internal quotation marks omitted). The Supreme Court has also stated that in an investigatory stop, "[an] officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions," Berkemer v. McCarty, 468 U.S. 420, 439 (1984), "that a particular person has committed, is committing, or is about to commit a crime," id.

VII.

With respect to Genesis' contention 1(a) concerning her statement to Stewart, Genesis challenges the court's finding of fact (FOF) no. 20, in denying Genesis' motion to suppress and granting the prosecution's motion to determine voluntariness of Genesis' statements, that stated as follows:

According to [Stewart], after entering the residence and determining that it was safe, he asked [Genesis] if she was okay. She said, "Yes." He then asked [Genesis] if there was anyone else in the house. She said, "No." [Genesis] then asked, "How is he?" and stated that she was going to take him to the hospital. Officer Stewart said that the paramedics were taking care of him and were going to take him to the hospital. Further, in the next breath, [Stewart] told [Genesis] that "[Gaylon] stated that you had shot him." The purpose for making the statement was to advise her of the allegations and statements that were made by [Gaylon]. [Genesis] stated, "Yeah, I shot him. He was gonna shoot me. Grabbed the gun, went off."

Based upon the totality of the circumstances, [Genesis'] statements set forth in FOF 20, were not the product of police interrogation. This is based upon the following circumstances: At the time the statements were made, [Genesis] was a suspect. However, [Genesis] was not yet arrested. The police officers were merely making sure that the area was safe. The specific question asked by [Stewart] of [Genesis] was designed to make sure that she was not hurt and was safe. [Stewart's] statement advising [Genesis] that [Gaylon] stated that [Genesis] shot him was not a question. The purpose of the statement was to advise her of the allegation made by [Gaylon]. However [Stewart] concedes that it was possible that, in response to his statement, [Genesis] could make an incriminating response. Nevertheless, [Stewart's] statement was proffered in such a way that he did not know nor should he reasonable have known that it was probable that [Genesis] would respond with an incriminating response. In any case, [Stewart's] question and statement did not constitute sustained questioning and were not designed to overcome the will of [Genesis]. In fact, [Stewart] attempted to protect [Genesis'] interest by advising her not to make any further statements. The statements were also voluntarily made.

The circumstances lead to the conclusion that the first of the Ah Loo factors, namely that "the defendant must be under interrogation," 94 Hawai`i at 210, 10 P.3d at 731, is met. Stewart's remark constitutes "express questioning or its functional equivalent," Melemai, 64 Haw. at 481 n.3, 643 P.2d at 544 n.3, which "was . . . reasonably likely to evoke an incriminating response," State v. Roman, 70 Haw. 351, 357, 772 P.2d 113, 116 (1989), from Genesis. However, it cannot be said that such interrogation was made while Genesis was in custody.

Genesis contends that she "was clearly in custody as the point of arrest ha[d] arrived," inasmuch as Stewart had probable cause to arrest her. Genesis argues that "[t]he police had already observed that Gaylon had been shot, and Gaylon had told them that [Genesis] had shot him." However, a determination of whether Genesis was in custody at the time of Stewart's remark requires more than assertions that there was a reasonable suspicion of criminal activity on the part of law enforcement officers.

A review of the circumstances surrounding the making of Stewart's remark and Genesis' response to that remark reveals that after Gaylon told Stewart that Genesis shot him, Stewart and Correa proceeded to Genesis' residence and noticed that the door was open. The court found credible Correa's recollection that after Stewart called out Genesis' name, she replied, "Yes. It's okay, come inside." Genesis appeared calm to Stewart and Correa. When asked by Stewart if she was hurt and if anyone else was in her residence, Genesis informed him that she was not, and that no one else was in the residence. Genesis asked how Gaylon was, and stated that she was going to take him to the hospital and that Gaylon was her ex-husband. Stewart told Genesis that Gaylon was being taken to the hospital. Stewart informed Genesis that Gaylon stated that she shot him, to which Genesis responded, "Yeah, I shot him. Grabbed the gun. The gun went off." Genesis was then instructed by Stewart not to say anything further.

Under Miranda, it cannot be said that Genesis was "deprived of freedom of action in a significant way." 384 U.S. at 444. As the prosecution maintains, there is no indication in the record that Stewart and Correa informed Genesis or impressed upon her that she was not free to go. The record is also devoid of any suggestion that Genesis was subjected to sustained questioning. Accordingly, inasmuch as the court's finding with regard to Genesis' statement to Stewart was supported by "substantial evidence," Edwards, 96 Hawai`i at 231, 30 P.3d at 245, and it cannot be said that this court is "left with a definite and firm conviction that a mistake has been made," no error arises from FOF no. 20 with regard to Genesis' statement.

As to the court's conclusion in COL no. 13, it appears that the court placed undue emphasis on Stewart's purpose and intent in informing Genesis of what Gaylon had told him. See Innis, 446 U.S. at 301 (stating that custodial interrogation "focuses primarily upon the perceptions of the suspect, rather than the intent of the police"). However, the court's decision that Genesis' statement "was not a product of police interrogation" was ultimately right but on the ground, as earlier stated, that Genesis was not in custody at the time of her statement. ⁽¹⁴⁾

VIII.

As to Genesis' contentions (1)(b) and (c), her statements to Esteban, namely, (1) "Gaylon died?", made on October 18, 2001 after Esteban informed her that Gaylon had died and that Genesis was now being investigated for murder, (2) "I don't wanna live, bruddah . . . . You can give me the lethal injection[,]" made on October 19, 2001, and (3) "I'm a murderer, Bruh," made on October 19, 2001, should have been suppressed. Genesis challenges COL No. 16, which concluded that these statements "were not the result of police interrogation and were voluntarily made."

Contrary to the court's conclusion, assuming that the three statements to Esteban were either inculpatory or exculpatory, the challenged statements constituted custodial interrogation. There is no dispute that Genesis was in custody. Esteban was the detective who had conducted the initial interrogation of Genesis. In this context Esteban "should have known that his . . . words or conduct [in his subsequent contacts] were reasonably likely to evoke an incriminating response." Roman, 70 Haw. at 357, 772 P.2d at 116.

As Genesis argues in her opening brief, Esteban knew that when he approached Genesis in her cellblock, Genesis had previously asserted her Miranda rights through her initial counsel, Wilson. This terminated the earlier interview on videotape. Further, Genesis' second counsel, Parker, advised the police that they were not to interview or interrogate Genesis in the future. The record does not indicate that Genesis initiated a conversation with Esteban. Despite this, Esteban proceeded to reinitiate contact with Genesis on two separate occasions.

Speaking to Genesis on these occasions amounted to the "functional equivalent," Melemai, 64 Haw. at 481 n.3, 643 P.2d at 544 n.3, of express questioning by the police and violated Genesis' privilege against self-incrimination and her rights under Mailo. Accordingly, it was error for the court to rule in its COL no. 16 that Genesis' statements to Esteban were voluntary and not a product of custodial interrogation.

IX.

X.

With respect to Genesis' challenge (2) to the court's failure to instruct the jury on EMED manslaughter, the court did not err. As described in HRS § 707-702(2) (Supp. 2005), in a prosecution for murder or attempted murder, "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."

A.

On the other hand, the prosecution maintains that the refusal by the court to give an EMED instruction was proper because Genesis was "unable to provide evidence that supports a defense of EMED" and that, therefore, Genesis was not entitled to an EMED instruction.

B.

First, in the subjective portion, the record must reflect the circumstances as [the defendant] believed them to be. Second, in satisfying the objective portion, the record must support "a reasonable explanation or excuse for the actor's disturbance."

Much confusion has arisen over whether the court or the jury determines the reasonableness of the defendant's explanation or excuse. We hold that the trial court determines whether or not the record reflects any evidence of a subjective nature that the defendant acted under a loss of self-control resulting from extreme mental or emotional disturbance. If the record does not reflect any such evidence, then the trial court shall properly refuse to instruct the jury on EMED manslaughter. However, if the record reflects any evidence of a subjective nature that the defendant acted under the influence of extreme mental or emotional disturbance, then the issue must be submitted to the jury, and the trial court should instruct the jury on EMED manslaughter. The jury then decides whether or not the prosecution has disproved the mitigating EMED manslaughter defense beyond a reasonable doubt.

Genesis argues in her opening and reply briefs that there was evidence in the record to support the subjective portion of the "subjective/objective" test under Sawyer. She contends this evidence was (1) that she was aware that Gaylon was having an affair with another woman because (a) a woman answered the telephone when she called the Hobron Hotel sometime in March 2001 and (b) the quartz heart medallion was found in Gaylon's attache case on the morning of October 18, 2001; (2) that her conduct at the time of the offense "was indicative of someone who was acting under the influence of EMED" for a witness, Sandra Cox, testified that "she heard muffled voices, which sounded as someone fighting, coming from Genesis' house"; (3) that she had tried to fire more than one shot but the handgun jammed; (4) that after shooting Gaylon, she continued to attack him with a stick; and (5) that when Gaylon went across the street to seek help, Genesis told her neighbors not to help Gaylon, who she referred to at that time as "that fuckah."

However, with respect to the subjective prong, the following is pointed out in the prosecution's answering brief. Genesis repeatedly testified that she did not know Gaylon had a girlfriend until the time Gaylon's sister-in-law, Baldado, informed her about Sheldon on the night of Gaylon's wake. Genesis stated that she did not even consider the possibility that Gaylon may have had a girlfriend. Also, Genesis related that her call to the Hobron Hotel in March 2001 did not raise a question in her mind that Gaylon was possibly having an affair and that she believed that the female who answered the phone was the wife of Gaylon's friend. According to Baldado, Genesis appeared to be in shock when she informed Genesis about Gaylon's relationship with Sheldon. Genesis indicated that she did not know that the quartz heart medallion was in Gaylon's attache case. Moreover, Genesis denied that she was financially dependent on Gaylon and that even if he had not deposited money into her account, she would not have any problem financially without his assistance.

XI.

Accordingly, the court's September 16, 2004 judgment is affirmed.

DATED: Honolulu, Hawai`i, May 31, 2006.

1.   The Honorable Greg K. Nakamura presided over this matter.

2.    Hawai`i Revised Statutes (HRS) § 707-701.5(1) (1993), entitled "Murder in the second degree," provides that "[e]xcept as provided in [HRS §] 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person." (Emphasis added.) HRS § 707-701(1) (Supp. 2005) pertains to murder in the first degree and penalizes a person who "intentionally or knowingly causes the death" of the following:

(b)     A law enforcement officer, judge, or prosecutor arising out of the performance of official duties;

(c)     A person known by the defendant to be a witness in a criminal prosecution;

(d)     A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be
          punished under this section; or

3.    HRS § 134-6(a) (Supp. 2005), entitled "Carrying or use of firearm in the commission of a separate felony; place to keep firearms; penalty," states, in pertinent part, as follows:

(1)     A felony offense otherwise defined by this chapter;

(2)     The felony offense of reckless endangering in the first degree under section 707-713;

(3)    The felony offense of terroristic threatening in the first degree under section [707-716(1)(a)], [707-716(1)(b)], and
         [707-716(1)(d)]; or

4.    Johnston Island is located southwest of Honolulu.

(Emphasis added.)

6.    HRS § 707-702(1) (1993), entitled "Manslaughter," provides in pertinent part that "[a] person commits the offense of manslaughter if . . . [h]e recklessly causes the death of another person."

(Some brackets in original and some added.)

9.     In rejecting defense counsel's request for an instruction on EMED manslaughter, the court stated as follows:

She did not testify as to the existence of any other event which resulted in extremely unusual or overwhelming stress, which as a result self control and reasonable was [sic] overborne by intensity such as passion, anger, distress, grief, excessive agitation or other similar emotion.

In other words, there's no evidence supporting the subjective prong of the objective test, and therefore the [c]ourt is not going to give the EMED instruction.

(Emphasis added.)

10.     Genesis does not raise any arguments regarding the defense of self defense although an instruction as to that was apparently given.

11.    The Fifth Amendment to the United States Constitution provides:

(Emphasis added.)

12.   Section 1 of the Fourteenth Amendment to the United States Constitution states:

(Emphasis added.)

13.    Article I, section 10 of the Hawai`i Constitution states as follows:

(Emphasis added.)

14.      We express no opinion as to the court's other reasons in concluding that the statements made by Genesis to Stewart were not a product of police interrogation.

15.     Also, contrary to the EMED arguments in her briefs enumerated supra, in her testimony Genesis denied that she tried to shoot Gaylon a second time, that she attacked him with a stick, and that she referred to Gaylon as "that fuckah."