State v. Adviento.

Dissenting Opinion by

NAKAYAMA, J.

with whom RECKTENWALD, C.J., Joins.

I respectfully dissent from the majority’s holding that the trial court plainly erred in failing to instruct the jury on the extreme mental and emotional disturbance (EMED) defense because there is no evidence to support the EMED instruction and, regardless, Mr. Adviento waived this instruction.

I. EMED is an affirmative mitigating defense

EMED is a mitigating defense which can reduce a charge of murder in the first or second degree to a charge of manslaughter. Hawai'i Revised Statutes (HRS) § 707-702(2) (Supp.2008).…