State v. Subia. , 139 Haw. 62 ( 2016 )

____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
Electronically Filed
Supreme Court
SCWC-12-0000794
24-OCT-2016
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs.
ZALDY SUBIA,
Petitioner/Defendant-Appellee.
________________________________________________________________
SCWC-12-0000794
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000794; CR. NO. 11-1-1405)
OCTOBER 24, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
Petitioner/Defendant-Appellant Zaldy Subia (Subia) was
convicted of methamphetamine trafficking in the second degree,
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
in violation of Hawaii Revised Statutes (HRS) § 712-1240.8.1
The Intermediate Court of Appeals’ (ICA) September 23, 2015
Judgment on Appeal, entered pursuant to its August 17, 2015
Memorandum Opinion, affirmed Subia’s conviction. On appeal,
Subia argues the ICA erred in holding 1) the Circuit Court of
the First Circuit (circuit court) did not abuse its discretion
by permitting Jeanette Ardiente (Ardiente), a criminalist with
the Honolulu Police Department (HPD), to testify that the
results of the Fourier Transform Infrared Spectrometer (FTIR)
conclusively established that the substances the police
recovered from Subia contained methamphetamine; and 2) Subia’s
conviction was based on sufficient evidence.2 We conclude a
proper foundation was not laid to introduce the FTIR test
results and therefore, Ardiente should not have been permitted
to testify regarding the FTIR test results. Further, there is a
reasonable possibility that the admission of the test results
contributed to Subia’s conviction. Because the circuit court’s
error was not harmless beyond a reasonable doubt, we vacate the
Judgment on Appeal of the ICA and the judgment of conviction of the
1
HRS § 712-1240.8 (2014) provides in part, as it did at the time
relevant here:
(1) A person commits the offense of methamphetamine trafficking
in the second degree if the person knowingly distributes
methamphetamine in any amount.
2
In arguing this first point, Subia also asserts Ardiente’s
testimony was inadmissible because her testimony violated the best evidence
rule. (Citing Hawaiʻi Rules of Evidence (HRE) Rule 1002). In light of our
disposition, we do not address this argument.
2
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
circuit court, and remand to the circuit court for a new trial.
I. Background
A. Circuit Court Proceedings
On October 5, 2011, Subia was charged with committing
methamphetamine trafficking in the second degree. The “Felony
Information” filed by the State charged Subia with violating HRS
§ 712-1240.8:
On or about the 4th day of October, 2011, in the City and
County of Honolulu, State of Hawaii, ZALDY SUBIA did
knowingly distribute the dangerous drug methamphetamine in
any amount, thereby committing the offense of
Methamphetamine Trafficking in the Second Degree in
violation of Section 712-1240.8 of the Hawaii Revised
Statutes.
A jury trial3 commenced on June 13, 2012.
At trial, the State presented testimony from HPD
Officer Brett Doronila, who testified that on October 4, 2011,
as part of an undercover operation, he approached Subia and
sought to purchase methamphetamine. Officer Doronila described
his interaction with Subia as follows:
Well, I approached him. I asked him if “You get,” which
is, through my training and appearance [sic], is street
vernacular to see if you have any illegal drugs to sell.
He said, “What you looking for?” I said “Clear.” Which is
street vernacular for crystal methamphetamine. He said,
“How much you looking for?” I said “Forty.” Forty
dollars. He said, “Okay, wait here.”
After this conversation, Subia left to collect the alleged
drugs. Subia returned with two clear Ziploc bags, which he
handed to Officer Doronila, who then paid Subia. Officer
3
The Honorable Colette Y. Garibaldi presided.
3
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
Doronila testified that each of the bags contained “a white
crystalline-like substance” that he asserted resembled
methamphetamine.
Subia’s description of his encounter with Officer
Doronila substantially corresponds with Officer Doronila’s
testimony. Subia explained that Officer Doronila asked Subia if
he had drugs, and Subia replied, “no, but I could get [] some
drugs that somebody get[.]” On cross examination, Subia agreed
that he sold Officer Doronila drugs, and that he knew “clear
means crystal meth.” Subia also agreed that he “went to get the
meth,” spoke with the drug dealer and told him “[s]omebody want
to buy forty, forty dollar worth” of “[c]rystal meth.” In
response, the drug dealer “gave [Subia] the drugs,” Subia
returned to Officer Doronila and “holding the meth, [] put it in
[Officer Doronila’s] hands.” To the State’s question asking
whether Subia had “[done] this before,” Subia replied, “Yeah,
some.”
Ardiente, a criminalist with HPD who conducted tests
to identify the substances at issue, was presented by the State
as an expert in the field of drug analysis and identification.
She testified that she is trained in the “use” of the FTIR.
Defense counsel did not object to Ardiente as an expert and the
court determined Ardiente was an expert in the field of drug
analysis and identification.
4
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
Ardiente testified that she analyzed the substances to
determine if the bags contained controlled substances. To
perform her analysis, Ardiente conducted a color test, a crystal
test, and the FTIR test. The color and crystal tests are
presumptive tests, meaning the tests indicate, but do not
confirm, the presence of methamphetamine. Ardiente testified
that the color and crystal tests indicated methamphetamine was
present in both bags.
The FTIR test is a confirmatory test, meaning it
identifies a particular substance, to the exclusion of all
others, within a reasonable degree of scientific certainty.
Ardiente explained that the substances are placed on the FTIR,
which shines a beam of infrared light on the substance. The
light causes the molecules of the substance to vibrate. The
FTIR reads the vibrations and creates a graph. Ardiente ran the
test and compared the graphs created by the substances with a
known graph of methamphetamine run on the same instrument.
Ardiente testified the graphs of the substances matched the
known graph of methamphetamine, indicating both substances
tested positive for methamphetamine.
To lay a foundation to introduce the FTIR test
results, Ardiente testified how the FTIR is checked to ensure it
is in proper working order. Ardiente explained the FTIR has an
“inbuilt validation program” provided by the manufacturer. She
5
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
stated that to do a performance check, you “run” the validation
program and “it will print out a piece of paper saying whether
or not the performance check passed.” The performance check is
run daily before the first use of an instrument that day.
Ardiente explained that HPD’s procedure is to keep the printout
of the performance check and require criminalists to examine and
initial the printout for each instrument. This establishes that
the criminalist “did check it and ensure that [the FTIR] was in
proper working condition.”
Ardiente testified that a performance check was
conducted on the FTIR prior to her testing of the substances on
October 4, 2011. She was not the first criminalist to use the
instrument and therefore did not run the performance check.
Defense counsel objected to Ardiente’s testimony on the basis of
hearsay, and the court initially sustained the objection. After
the State reframed its question, defense counsel again objected
based on hearsay. The State explained the line of questioning
was foundational. The court overruled the objection and
permitted Ardiente to explain how she knew a check was performed
on the instrument used. Ardiente testified she reviewed the
printout of the performance check results for that instrument.
Based on the October 4, 2011 printout, Ardiente asserted the
FTIR was operating in accordance with the manufacturer’s
specifications. She also testified she would not have used the
6
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
FTIR if it were not in proper working condition.
Defense counsel asked to voir dire the witness after
the State asked Ardiente, “based on all three of the tests that
you had run on the evidence that was submitted, what were the
results of all the tests?” On voir dire, defense counsel
inquired whether the FTIR “should be checked and calibrated each
time it is used.” Ardiente responded that the FTIR “does have
performance checks” but did not state whether the FTIR is
calibrated.
After conducting voir dire of Ardiente, defense
counsel objected to admission of her testimony regarding the
test results based on hearsay, lack of foundation, and the
Confrontation Clause. Defense counsel explained that because
she did not conduct the performance check, her testimony was
hearsay. Defense counsel argued that to lay a proper foundation
to introduce the FTIR test results, the State was required to
demonstrate the FTIR was accurate through the testimony of the
analyst who conducted the test or by introducing the printouts
of the performance check. The court overruled defense counsel’s
objections because Ardiente testified she was trained by the
FTIR manufacturer in quality control and followed the
manufacturer’s procedure of reviewing the results of the
performance check prior to using the machine. In addition, the
court based its ruling on Ardiente’s testimony that she found
7
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
the FTIR to be in proper working condition even though she did
not conduct the performance check. Thereafter, Ardiente
testified, “[b]ased on the results of all the tests, I concluded
that the substance[s] contained methamphetamine . . . .” She
also said she had no reason to believe the FTIR was not working
accurately.
Subia raised the defense that he acted as a procuring
agent for the buyer of methamphetamine, Officer Doronila. The
jury was instructed that “[a] person who is the procuring agent
for the buyer cannot be found guilty of distributing the
unlawful drug because the act of buying falls outside the
definition of to distribute.” Subia argued in closing that the
evidence demonstrated that he acted on behalf of the buyer
because he did not seek out a buyer and did not receive any
compensation for assisting the transaction. According to the
State, the evidence demonstrated that Subia acted on behalf of
the seller. The State based its argument on the following
evidence: 1) it would be unusual for a person not acting on
behalf of a seller to “help” a stranger find drugs; 2) Subia
“went straight to” the seller after Officer Doronila asked Subia
if he had drugs; and 3) the seller trusted Subia.
The circuit court instructed the jury that Subia was
charged with the offense of methamphetamine trafficking in the
second degree. The court stated that “[a] person commits the
8
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
offense of methamphetamine trafficking in the second degree if
he knowingly distributes methamphetamine in any amount.” The
court explained there are “two material elements” of the
offense: “1, that on or about October 4th, 2011, in the City and
County of Honolulu, State of Hawaiʻi, the defendant, Zaldy Subia,
distributed methamphetamine in any amount. And 2, that the
defendant Zaldy Subia, did so knowingly.” The court defined
distribution to the jury as follows: “[t]o distribute” means to
“sell, transfer, prescribe, give, or deliver to another, or to
lead, barter or exchange with another, or to offer or agree to
do the same.”
The jury convicted Subia of methamphetamine
trafficking in the second degree. Subia was sentenced on August
22, 2012 to ten years in prison with a mandatory minimum of one
year, and he was ordered to pay monetary assessments and fines.
B. ICA Appeal
In a memorandum opinion, the ICA affirmed the circuit
court’s judgment convicting Subia. State v. Subia, No. CAAP-12-
0000794, at 18 (Haw. Aug. 17, 2015) (mem.). The ICA concluded
Ardiente’s testimony was sufficient to lay a proper foundation
to admit the results of the color, crystal, and FTIR tests. Id.
at 12-13. The ICA emphasized that in State v. Manewa, 115
Hawaii 343, 167 P.3d 336 (2007), this court did not cite to any
testimony that the expert himself performed the daily check of
9
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
the instrument, “rather it was [the expert’s] knowledge that the
laboratory followed a routine procedure to ensure that the
[instrument] was in proper working order that was important.”
Id. at 11. According to the ICA, Manewa established “testimony
showing compliance with established procedures that provide
assurance that the instrument is in proper working order is
sufficient to lay the foundation for admission of the results of
the instrument’s use.” Id. at 11. Ardiente testified the
laboratory had a policy of conducting a performance check in
accordance with the manufacturer’s recommended procedure, and
required criminalists to check the printout of the performance
test results to ensure the instrument was in good working order.
Id. at 9, 11. The ICA interpreted Manewa to conclude that a
proper foundation was laid to admit the test results and
Ardiente’s testimony. Id. at 11-12.
II. Standards of Review
A. Evidentiary Foundation
When a question arises regarding the necessary foundation
for the introduction of evidence, the determination of
whether proper foundation has been established lies within
the discretion of the trial court, and its determination
will not be overturned absent a showing of clear abuse.
State v. Eid, 126 Hawaii 430, 440, 272 P.3d 1197, 1207 (2012)
(quoting State v. Assaye, 121 Hawaii 204, 210, 216 P.3d 1227,
1233 (2009)).
B. Evidence Admissibility
10
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
[D]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard should be applied in the case of those rules of
evidence that require a “judgment call” on the part of the
trial court.
State v. Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350
(2008) (citation omitted).
III. Discussion
Subia asserts the State did not lay a sufficient
factual foundation to admit the results of the FTIR test. “[A]
fundamental evidentiary rule is that before the result of a test
made out of the court may be introduced into evidence, a
foundation must be laid showing that the test result can be
relied on as a substantive fact.” State v. Wallace, 80 Hawaii
382, 407, 910 P.2d 695, 720 (1996) (citation omitted). A proper
foundation for introducing a test result “would necessarily
include expert testimony regarding: (1) the qualifications of
the expert; (2) whether the expert employed ‘valid techniques’
to obtain the test result; and (3) whether ‘the measuring
instrument is in proper working order.’” State v. Long, 98
Hawaii 348, 355, 48 P.3d 595, 602 (2002). It is undisputed that
Ardiente was a qualified expert and used valid techniques in
conducting her test of the substances. As a result, the crux of
Subia’s foundational issue is whether the FTIR was in proper
11
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
working order.
Ardiente testified that the FTIR was working properly
based upon the performance check that was conducted by another
criminalist. She explained that every day an “inbuilt
validation program” is used to check whether the FTIR is
operating in accordance with manufacturer specifications. She
stated that after you run the program, “it will print out a
piece of paper saying whether or not the performance check
passed.” Because the printout stated the FTIR passed the
performance check, Ardiente concluded the FTIR was in proper
working condition. The State did not introduce the printout
into evidence. Thus, as Subia notes, “the only evidence that
the FTIR was in proper working order was Ardiente’s testimony
regarding the contents of the performance based printout.”
This case is factually similar to Manewa, 115 Hawaiʻi
343, 167 P.3d 336. In analyzing the admission of the test
results of a gas chromatograph mass spectrometer (GCMS) in
Manewa, we focused on the expert’s testimony that the laboratory
applied an accepted manufacturer’s procedure to verify the
instrument was in proper working order. The expert in Manewa
testified, “‘a routine check’ was done of the [instrument] ‘each
and every morning’ ‘to ensure that all the parameters are within
manufacturer specifications.’” Id. at 354, 167 P.3d at 347.
The expert explained that “if any parameter is out of spec,” the
12
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
instrument is not used. Id. We determined that the expert’s
testimony that he would not have used the instrument if it had
not been in proper working order indicated he had personal
knowledge that the instrument was in proper working condition.
Id. at 354, 167 P.3d at 347.
Likewise, in this case, Ardiente explained a daily
check is conducted using a program provided by the manufacturer
to determine whether the FTIR is in proper working order.
Ardiente testified she would not have used the FTIR if it had
not been working properly. The ICA therefore determined that
Ardiente’s testimony laid a sufficient foundation to introduce
the FTIR test results. Subia, mem. op. at 11. The ICA
explained that in Manewa “it was [the expert’s] knowledge that
the laboratory followed a routine procedure to ensure that the
[the instrument] was in proper working order that was
important.” Id. Because Ardiente testified a performance check
was routinely conducted and she had knowledge that the
performance check was conducted, the ICA concluded that it was
irrelevant that Ardiente did not personally perform the
performance check.4 Id.
However, the distinction that the ICA did not consider
is that Ardiente lacks personal knowledge that the performance
4
The ICA did not consider whether the printout of the performance
check could have been introduced into evidence.
13
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
check was accurate. Although Manewa does not clearly state the
expert ran the routine check, this court explicitly explained in
Wallace that personal knowledge is an essential factor in laying
a sound factual foundation. In Wallace, the expert could not
testify that the calibration was accurate if the expert lacked
personal knowledge that the instrument “had been correctly
calibrated and merely assumed that the manufacturer’s service
representative had done so.”5 Wallace, 80 Hawaiʻi at 412, 910
P.2d at 725 (emphases added). In Wallace, the service
representative did not testify at trial and no business record
was introduced indicating the instrument was correctly
calibrated. Id. We explained that “testimony based on
information supplied by another person that is not in evidence
is inadmissible. The rationale is that the witness’ knowledge
is based on hearsay evidence and the trier of fact is unable to
test the source’s trustworthiness.” Id. at 411, 910 P.2d at 724
(citing State v. Bannister, 60 Haw. 658, 659-60, 594 P.2d 133,
134 (1979)). We therefore concluded the expert’s testimony as
to the accuracy of the balance was based on inadmissible
hearsay. Id. Thus, we held the prosecution failed to lay an
adequate factual foundation that the results of an electronic
5
We came to this conclusion even though the person conducting the
check was the manufacturer’s service representative, who presumably would be
the person most likely to properly follow the manufacturer’s procedure.
Wallace, 80 Hawaii at 412, 910 P.2d at 725.
14
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
balance used to weigh cocaine were accurate. Id. at 412, 910
P.2d at 725.
Similarly, in Manewa, we also considered that the
expert knew the electronic balance was calibrated semi-annually,
but had no personal knowledge that the balance was “correctly
calibrated.” 115 Hawaiʻi at 355, 167 P.3d at 348 (emphasis
added). The individual calibrating the balance “fill[ed] out a
form and indicate[d] that it was in proper working condition.”
Id. The forms were not admitted into evidence. Id. We found
an “inadequate foundation was laid to show that the weight
measured by the balance could ‘be relied on as a substantive
fact[.]’” Id. at 356, 167 P.3d at 349 (citing Wallace, 80
Hawaiʻi at 412, 910 P.2d at 725). Therefore, we concluded the
expert’s “assumption that the balance was accurate was based on
inadmissible hearsay.” Id.
Likewise, as Subia argues, Ardiente’s testimony that
the FTIR was in proper working condition is based on
inadmissible hearsay. Ardiente had knowledge of the procedures
used to test the FTIR, but her testimony that the FTIR was in
proper working order was not based on her personal knowledge
because she did not conduct the performance check. Because the
printout was not admitted into evidence and the criminalist who
conducted the performance check did not testify at trial, it is
unknown whether the performance check was conducted as required
15
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
by the manufacturer. To assert the FTIR was in proper working
condition, Ardiente had to assume the other criminalist
correctly conducted the performance check. As Subia notes, the
printout may have been admissible as a regularly conducted
activity pursuant to HRE Rule 803(b)(6). However, because the
State did not introduce the printout or the testimony of the
criminalist who conducted the performance check, the State
failed to establish the performance check had been conducted
correctly. Because there is no reliable evidence demonstrating
the FTIR was in proper working order, the State failed to lay a
factual foundation that the FTIR was in proper working
condition.
Subia also argued there is no evidence that the FTIR
was calibrated. We recognize “Manewa imposes the additional
requirement that [the State] show ‘that the [instrument] had
been properly calibrated by the manufacturer’s service
representatives[.]’” Assaye, 121 Hawaiʻi at 217, 216 P.3d at
1240 (Acoba, J., concurring) (citing Manewa, 115 Hawaiʻi at 354,
167 P.3d at 347). In Manewa, we determined the evidence failed
to establish reliability of the analytic balance where the
record lacked evidence of the expert’s training in calibrating
the balance and the prosecution failed to demonstrate “the
balance had been properly calibrate[d].” Manewa, 115 Hawaiʻi at
354, 167 P.3d at 347.
16
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
A sufficient foundation is not laid when the only
evidence of the working status of an instrument is that the
instrument was “checked.” State v. Long, 98 Hawaiʻi 348, 355, 48
P.3d 595, 602 (2002). In Long, the prosecution asked its expert
about the calibration of the machine. Id. In response, the
expert failed to answer in the affirmative as to the
calibration, and stated only that “all instruments are checked.”
Id. We therefore concluded the prosecution did not lay a
foundation “confirming that ‘the test result [could] be relied
on as a substantive fact.’” Id. (citing Wallace, 80 Hawaiʻi at
407, 910 P.2d at 720).
Here, the record is inconclusive as to whether
calibration was conducted. On voir dire, defense counsel asked
Ardiente whether the FTIR “should be checked and calibrated each
time it is used, right?” In response, Ardiente did not
explicitly state whether the FTIR was calibrated. She stated
only that “[i]t does have performance checks, yes.” This
response is ambiguous as to whether the performance check
constituted a calibration of the FTIR. Ardiente did not explain
on direct examination or on voir dire how a performance check is
conducted. Ardiente stated only that the FTIR has “an inbuilt
validation program” that is “run” and that will “print out a
piece of paper saying whether or not the performance check
passed.” Based on the record, it is unclear whether the daily
17
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
performance check constituted calibration of the FTIR or whether
it constituted a verification of the accuracy of the machine
that would render calibration of the FTIR superfluous. Assuming
the FTIR requires calibration, the fact that the instrument’s
performance was, as a matter of routine, checked prior to use is
insufficient when there is no evidence that the instrument was
ever calibrated. Simply stating that a daily performance check
was conducted does not necessarily mean the checks involved a
calibration of the FTIR. Without evidence that the FTIR
received periodic calibration or that such calibration was
unnecessary, it is unknown whether the instrument or the
performance check program was working properly. Accordingly, we
hold the circuit court abused its discretion in admitting
Ardiente’s testimony regarding the test results.
Under the harmless error standard, the appellate court
“must ‘determine whether there is a reasonable possibility that
the error complained of might have contributed to the
conviction.’” State v. Pauline, 100 Hawaii 356, 378, 60 P.3d
306, 328 (2002) (citation omitted). “If there is such a
reasonable possibility in a criminal case, then the error is not
harmless beyond a reasonable doubt, and the judgment of
conviction on which it may have been based must be set aside.”
State v. Gano, 92 Hawaii 161, 176, 988 P.2d 1153, 1168 (1999)
(citation omitted).
18
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
Ardiente’s testimony regarding the FTIR test results
was central to the State’s argument that Subia was guilty of
distributing methamphetamine and had sold methamphetamine on
behalf of the seller. As noted, Subia’s defense theory was
posited on the argument that he was the procuring agent for the
buyer. The strength of the State’s case would have been
significantly lessened had the test results demonstrating that
the substances were methamphetamine, to the exclusion of all
other substances, not been admitted. Without the test results
proving that the substances were methamphetamine, the State had
limited evidence to support its theory that Subia was an agent
for the seller: Subia received no monetary payment or payment-
in-kind in return for his alleged service to the seller; further
Subia did not approach the buyer, rather, the buyer approached
Subia. Without the test results, the State’s ability to counter
Subia’s procuring agent defense would have been substantially
reduced and Subia may have been able to raise a reasonable doubt
in the minds of the jury. Accordingly, there is a reasonable
possibility that admission of the test results contributed to
the jury’s conclusion that Subia intended to distribute
methamphetamine in collaboration with the seller. In other
words, the fact that the jury received evidence that the
substance given to Officer Doronila was methamphetamine may have
persuaded the jurors that Subia acted on behalf of the seller
19
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____
and was not the procuring agent for Officer Doronila. Thus,
admission of the FTIR test results was not harmless beyond a
reasonable doubt.
IV. Conclusion
Based on the foregoing, we vacate the judgment of the
Intermediate Court of Appeals and the judgment of conviction of
the circuit court and remand the case to the circuit court for a
new trial.
William Jameson, Jr., /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brandon Ito,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
20