No. 27987 (September 16, 2008)
Opinion [pdf]
OPINION OF THE COURT BY NAKAMURA, J.
Dr. Edward Bird (Dr. Bird) was murdered in his apartment. He was repeatedly hit on the face and head with a blunt object and manually strangled to death. At the time of his death, Dr. Bird was approximately eighty-two years old and largely confined to a wheelchair.
Defendant-Appellant Michael Arlo Pavich (Pavich) and his co-defendant Lisa Ann Healani Avilla (Avilla) were charged with the murder of Dr. Bird and related offenses. They were jointly charged in an indictment with first-degree burglary of Dr. Bird's residence (Count 1); kidnapping Dr. Bird (Count 2); first-degree robbery of Dr. Bird (Count 3); and second-degree murder of Dr. Bird (Count 4). Pavich was separately charged in the indictment with possession of methamphetamine (Count 7) and possession with intent to use drug paraphernalia (Count 8), and Avilla was also separately charged with these two offenses (Counts 5 and 6).
Avilla entered into a plea agreement with Plaintiff-Appellee State of Hawai'i (the State) and testified against Pavich. She testified to witnessing Pavich murder Dr. Bird and commit the related burglary, kidnapping, and robbery offenses. Avilla was the only eyewitness to Pavich's alleged commission of these offenses.
. . . .
On appeal, Pavich argues that: 1) his rights to a fair trial and to present a defense were violated by a) the circuit court's mishandling of his request for peer review of Genetic Technologies' supplemental report and b) the State's failure to disclose certain representations it made to Avilla; 2) the circuit court erred by denying his motion to sever the drug paraphernalia count from the remaining counts; and 3) the circuit court erred by refusing to give the jury an instruction on the defense of extreme mental or emotional disturbance (EMED).
We hold that, under the unique circumstances of this case, the circuit court erred in refusing to grant Pavich's posttrial motion for approval of litigation costs to hire a DNA expert to conduct a peer review of Genetic Technologies' supplemental report. We remand the case with directions that the circuit court: 1) authorize reasonable litigation costs to permit Pavich to hire a DNA expert to conduct the requested peer review, and 2) allow Pavich to refile a motion for a new trial based on the results of the peer review. We conclude that the other arguments raised by Pavich on appeal are without merit. [footnotes omitted]
