State v. Newcomb, Jr. ( 2021 )


Menu:
  • NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    05-NOV-2021
    07:49 AM
    Dkt. 71 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI‘I
    STATE OF HAWAI'I, Plaintiff-Appellee,
    Vv.
    RICARDO STANLEY NEWCOMB, JR., Defendant-Appellant
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (CR. NO. 1CPC-XX-XXXXXXX)
    SUMMARY DISPOSITION ORDER
    (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
    Defendant-Appellant Ricardo Stanley Newcomb, Jr.
    (Newcomb) appeals from the Judgment of Conviction and Sentence
    (Judgment} entered on June 26, 2020, by the Circuit Court of the
    First Circuit (Cireuit Court).’ On January 30, 2020, a jury
    found Newcomb guilty of Habitually Operating a Vehicle Under the
    Influence of an Intoxicant (Habitual OVUII) in violation of
    Hawaii Revised Statutes (HRS) §§ 291E-G6i{a) (1) (2020)% and
    1 The Honorable Fa‘auuga L. To‘oto'o presided.
    2 HRS § 291E-61 provides in relevant part:
    §291E-61 Operating a vehicle under the influence
    of an intoxicant. (a) A person commits the offense of
    operating a vehicle under the influence of an
    intoxicant if the person operates or assumes actual
    physical control of a vehicle:
    (1) While under the influence of alcohol in an
    amount sufficient to impair the person's normal
    mental faculties or ability to care for the
    person and guard against casualtyl[.]
    NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
    291E-61.5(a) (2) (A) (2020).% The Circuit Court sentenced Newcomb
    to a term of imprisonment of ten years for Habitual OVUII, with
    credit for time served.‘
    ; On appeal, Newcomb raises two points of error. First,
    Newcomb challenges the Circuit Court's preclusion of his proposed
    expert witness, Honolulu Police Department (HPD) Officer
    Kawananakoa Saul (Officer Saul), from testifying about HPD's
    training on the proper procedures for OVUII investigations.
    Second, Newcomb challenges the Circuit Court's exclusion of
    specific conduct evidence that purportedly showed two of the HPD
    officers who testified at trial, Officer Aubry Kaluhiokalani
    (Officer Kaluhiokalani) and Officer Wayne Hudson (Officer
    Hudson), had lied during a prior OVUII investigation.
    Upon careful review of the record and the briefs
    submitted by the parties and having given due consideration to
    the arguments advanced and the issues raised by the parties, as
    well as the relevant statutory and case law, we affirm.
    (1) Newcomb asserts the Circuit Court abused its
    discretion by precluding him from calling Officer Saul as an
    expert witness pursuant to Hawai‘i Rules of Evidence (HRE) Rule
    702 on HPD's standard training in OVUII investigations. At
    trial, Newcomb sought to call Officer Saul to testify that
    contrary to the testimony of Officer Hudson, HPD officers are
    7 HRS § 2918-61.5 provides in relevant part:
    §2918-61.5 Habitually operating a vehicle under
    the influence of an intoxicant,. (a) A person commits
    the offense of habitually operating a vehicle under
    the influence of an intoxicant if:
    {2) The person operates or assumes actual physical
    control of a vehicle:
    {A} While under the influence of alcohol in an
    amount sufficient to impair the person's
    normal mental faculties or ability to care
    for the person and guard against
    easualty[.]
    4 Newcomb was also charged with and entered a no-contest piea for
    Operating a Vehicle After License and Privilege Have Been Suspended or Revoked
    for Operating a Vehicle Under the Influence of An Intoxicant, in violation of
    HRS § 291E-62(a) (2) (2020}. Newcomb challenges only the Habitual OVUII
    conviction on appeal.
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    trained that a Preliminary Alcohol Screening (PAS) can be offered
    even if an individual refuses a Standardized Field Sobriety Test
    (SFST). Additionally, HPD officers are trained on optional tests
    including the "Alphabet Test," "Countdown Test," "Finger Count
    Test," and divided attention tests such as asking unusual
    questions to detect impairment. The Circuit Court ruled that
    Officer Saul could not testify as an expert witness because "any
    testimony from Officer Saul is irrelevant and also excluded under
    [HRE Rule] 403." On appeal, Newcomb argues that Officer Saul's
    expert testimony should have been admitted because pursuant to
    HRE Rule 702 (1992), Officer Saul was qualified to testify as an
    expert, his testimony was relevant to the veracity of the
    officers' OVUII investigation, and the Circuit Court abused its
    discretion in precluding the testimony under HRE Rule 403 (1980).
    HRE Rule 702 sets forth the requirements for
    qualification of an expert witness:
    Rule 702 Testimony by experts. If scientific,
    technical, or other specialized knowledge will assist
    the trier of fact to understand the evidence or to
    determine a fact in issue, a witness qualified as an
    expert by knowledge, skill, experience, training, or
    education may testify thereto in the form of an
    opinion or otherwise. In determining the issue of
    assistance to the trier of fact, the court may
    consider the trustworthiness and validity of the
    scientific technique or mode of analysis employed by
    the proffered expert.
    In State v. Metcalfe, the Hawai‘i Supreme Court
    identified three foundational requirements to qualify a witness
    to testify as an expert under HRE Rule 702:
    (1) the witness must be qualified by knowledge, skill,
    experience, training or education; (2) the testimony
    must have the capacity to assist the trier of fact to
    understand the evidence or to determine a fact in
    issue; and (3) the expert's analysis must meet a
    threshold level of reliability and trustworthiness.
    129 Hawai‘i 206, 227, 
    297 P.3d 1062
    , 1083 (2013) (citation
    omitted).
    On appeal, Plaintiff-Appellee State of Hawai'i (State)
    dees not dispute that Officer Saul was qualified to testify as an
    expert. Therefore, the only issues are whether Officer Saul's
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    testimony was relevant, and whether the Circuit Court abused its
    discretion in precluding the testimony under HRE Rule 403.
    "The critical inquiry with respect to expert testimony
    is whether such testimony will assist the trier of fact to
    understand the evidence or determine a fact in issue." State v.
    Kony, 
    138 Hawai'i 1
    , 8-9, 
    375 P.3d 1239
    , 1246-47 (2916) (quoting
    State v. Fukusaku, 
    85 Hawai'i 462
    , 472, 
    946 P.2d 32
    , 42 (1997)).
    "One of the 'touchstones of admissibility for expert testimony
    under HRE Rule 702' is relevance." 
    Id. at 8,
     375 P.3d at 1246
    (quoting State v. Vliet, 95 Hawai‘i 94, 106, 
    19 P.3d 42
    , 54
    (2001)); see also HRE Rule 401 (1980) ("'Relevant evidence’ means
    evidence having any tendency to make the existence of any fact
    that is of consequence to the determination of the action more
    probable or less probable than it would be without the
    evidence."). "The trial court's relevancy decision under HRE
    [Rule] 702 is reviewed de novo[.]" State v. Keaweehu, 110
    Hawai‘i 129, 137, 
    129 P.3d 1157
    , 1165 (App. 2006).
    Here, Officer Saul's contradicting testimony about how
    HPD officers are trained to conduct OVUII investigations has some
    tendency to show that Officer Hudson, who conducted Newcomb's
    OVUII investigation along with HPD Officers Kaluhiokalani and
    Ryan Uno (Officer Uno), either was not properly trained on OVUIT
    investigations or did not accurately remember his training. See
    HRE Rule 401. Thus, the Circuit Court erred insofar as the court
    determined Officer Saul's testimony was irrelevant. See 
    id.
    However, the Circuit Court also excluded Officer Saul's
    testimony based on HRE Rule 403. HRE Rule 403 provides:
    "Tajlthough relevant, evidence may be excluded if its 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." A trial court's
    evidentiary decision based on HRE Rule 403 is reviewed for an
    abuse of discretion. State v. Richie, 
    88 Hawai'i 19
    , 37, 
    960 P.2d 1227
    , 1245 (1998).
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    The determinative issue at trial was whether Newcomb
    was driving impaired on February 4, 2019, not how HPD officers
    are or should be trained to conduct OVUII investigations. While
    the latter issue is not entirely irrelevant, under the
    circumstances of this case, the Circuit Court did not abuse its
    discretion in concluding that the tendency of Officer Saul's
    testimony to confuse the issues or mislead the jury substantially
    outweighed its probative value to assist the jury in determining
    whether the OVUII investigation was properly conducted in this
    case. See HRE Rules 403, 702.
    (2) Newcomb asserts the Circuit Court abused its
    discretion in precluding him from introducing specific conduct
    evidence for impeachment purposes under HRE Rule 608(b) (1993).
    Specifically, Newcomb sought to allegedly introduce evidence that
    two of the officers involved in his OVUII arrest had previously
    lied about smelling the odor of alcohol on a driver during a
    prior unrelated OVUII investigation on October 12, 2019 (10/12/19
    Incident).
    In this case, one of the officers, Officer Hudson,
    testified at trial that at the time of his arrest, Newcomb
    smelled like alcohol, had red, glassy eyes, was slow to respond
    to some of Officer Hudson's questions or directions, told Officer
    Hudson that he had been drinking, and had some slurred speech.
    On January 6, 2020, Newcomb filed a Notice of Intent, which
    advised that he would be introducing evidence about the prior
    10/12/19 Incident. On January 24, 2020, the State filed State's
    Motion in limine (Motion in limine) seeking to preclude evidence
    about the unrelated OVUII investigation. At the hearing on the
    motion, the Circuit Court orally granted the State's Motion in
    dimine, stating, "considering this is a totally unrelated
    incident here involving a totally unrelated individual to this --
    to the present facts of this case, the Court will sustain the
    objection under [HRE Rule] 403."
    HRE Ruie 608(b) provides, in relevant part:
    {b) Specific instances of conduct. Specific instances of
    the conduct of a witness, for the purpose of attacking the
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    witness’ credibility, 1L£ probative of untruthfulness, may be
    inquired into on cross-examination of the witness and, in
    the discretion of the court, may be proved by extrinsic evidence.
    (Emphasis added).
    In State v. Su, 
    147 Hawai'i 272
    , 283, 
    465 P.3d 719
    , 730
    (2020), the Hawai‘i Supreme Court clarified that:
    under the plain language of HRE Rule 608(b),
    admissibility of evidence under HRE Rule 608 (b)
    involves a two-step inquiry: (1) whether the specific
    conduct evidence proffered for the purpose of
    -attacking the witness's credibility is probative of
    untruthfulness, and, if so, (2) whether the probative
    value of the evidence of the specific conduct is
    substantially outweighed by the danger of unfair
    prejudice, confusion of the issues, or misleading the
    jury, ox by considerations of undue delay, waste of
    time, or needless presentation of cumulative evidence
    pursuant to HRE Rule 403. An appellate court reviews
    the trial court's two-step admissibility determination
    under the right/wrong standard as to the first step,
    and under the abuse of discretion standard as to the
    second step.
    Thus, under the first step, a witness may generally be
    cross-examined about specific instances of conduct probative
    to credibility, if probative of untruthfulness. A trial
    court's decision to allow or preclude cross-examination on
    specific instances of conduct, based upon relevance under
    HRE Rules 401 and 402, is thus reviewed under the
    right/wrong standard.
    (emphasis added) (footnotes omitted); see also HRE Rule 401; HRE
    Rule 402 (1980) ("All relevant evidence is admissible, except as
    otherwise provided[.]"}). However, "[t]he extent of the cross-—
    examination, as well as the admissibility of extrinsic evidence,
    if offered, is subject to an HRE Rule 403 analysis." Su, 147
    Hawaii at 285, 465 P.3d at 732.
    In Su, the Hawai‘i Supreme Court examined a trial court
    decision precluding the cross-examination of a police officer
    about his testimony in three prior, separate proceedings. Id. at
    274, 465 P.3d at 721. Applying its two-step analysis, the
    supreme court concluded the trial court erred in the first step,
    with respect to the cross-examination of the officer concerning
    two of those proceedings: (1) in one proceeding, the officer
    admitted to submitting a falsely sworn statement to ADLRO, which
    clearly called his credibility into question; and (2) in a second
    proceeding, still photos of a video-recording showed that,
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    contrary to the officer's police report and testimony, the
    defendant did not have his fists clenched and was not throwing
    punches. Id. at 285, 465 P.3d at 732; see also State v. Estrada,
    
    69 Haw. 204
    , 219, 
    738 P.2d 812
    , 823 (1987) (holding that an
    officer's alleged falsifications on his employment application
    were relevant to his credibility and should have been admitted
    pursuant to HRE Rule 608(b)); State v. Salvas, No.
    CAAP-XX-XXXXXXX, 
    2023 WL 276150
    , at *8 (Haw. App. Jan. 27, 2021)
    (SDO) (applying Su to hold in part that evidence about
    proceedings in an unrelated case, in which the trial judge found
    lay witness testimony credible that directly contradicted the
    officer's sworn testimony, were relevant to the officer's
    credibility and thus should have been admitted pursuant to HRE
    Rule 608(b)). With respect to the third proceeding, the supreme
    court held the trial court's rejection of the officer's estimate
    of distance and speed of defendant's vehicle, because it did not
    make sense, was not relevant to the officer's credibility. Su,
    147 Hawai‘i at 285, 465 P.3d at 732; see also Salvas, 
    2021 WL 276150
    , at *8-9 (applying Su to hold that two other prior
    instances of conduct were not relevant to the officer's
    credibility: (1) the officer's OVUII conviction; and (2) a video
    purportedly showing unidentified officers falsely threatening the
    defendants that they had a warrant and/or could see contraband in
    plain view of the defendants' vehicle, where the video was not in
    the record and defendant failed to identify which officers were
    involved in the incident}.
    Applying the Su two-step analysis here, we first
    consider under the right/wrong standard whether the specific
    conduct evidence Newcomb sought to introduce was relevant to the
    officers' truthfulness. See Su, 147 Hawai'i at 283, 465 P.3d at
    730. Newcomb asserts that, during the prior 10/12/19 Incident,
    Officers Hudson and Kaluhiokalani pulled over a driver for a red
    light violation, told the driver they smelled alcohol coming from
    him and that he had red, glassy eyes, the driver participated in
    a field sobriety test that Officer Hudson claimed he failed, the
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    driver blew into a PAS, but the driver "blew zeros" and was
    released and not charged. The State claims the officers have no
    memory of the reading and the body camera footage from the
    10/12/19 Incident only demonstrates the officers let the driver
    go after the test, not that the officers were lying.
    As an initial matter, we agree with Newcombd's
    contention that "to the extent that the [circuit] court believed
    that the evidence was not relevant simply because it involved a
    totally unrelated incident here involving a totally unrelated
    individual[,]'" the Circuit Court erred. Su makes clear that an
    unrelated incident may be relevant so long as it is probative of
    untruthfulness. 147 Hawai'i at 283-85, 465 P.3d at 730-32.°
    Beyond that initial matter, however, the body camera
    footage from the 10/12/19 Incident is not part of the record. It
    does not appear that Newcomb submitted the footage for the
    Circuit Court to review. Newcomb's Notice of Intent, filed on
    January 6, 2020, notified the State of his intent to introduce
    evidence of the 10/12/19 Incident and indicated the State had
    provided body camera footage of the incident to Newcomb.
    However, the footage apparently was never offered for the Circuit
    Court to review or as an exhibit. Given Newcomb apparently did
    not provide any specific conduct evidence for the Circuit Court
    to review, the Circuit Court could not conduct the first Su
    inquiry, i.e., determine "whether the specific conduct evidence
    proffered for the purpose of attacking the witness's credibility
    is probative of untruthfuliness[.]" 147 Hawaii at 283, 465 P.3d
    at 730 {emphasis added). Similarly, we are not able to review
    the body camera footage to assess its relevance to the officers’
    veracity. Given these circumstances, the Circuit Court did not
    err in precluding evidence about the officers’ conduct in the
    10/12/19 Incident, as Newcomb did not demonstrate that the prior
    5 We note that at the time of the Circuit Court's ruling on the State's
    Motion in limine on January 27, 2020, the Circuit Court did not yet have the
    benefit of the Su decision, which was published on June 15, 2020.
    8
    NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
    conduct was probative of untruthfulness under HRE Rule 608({b).
    Id.
    Therefore, the Judgment entered on June 26, 2020, by
    the Circuit Court of the First Circuit, is affirmed.
    DATED: Honolulu, Hawai‘i, November 5, 2021.
    On the briefs: /s/ Lisa M. Ginoza
    Chief Judge
    Alen M. Kaneshiro,
    for Defendant-Appellant. /s/ Katherine G. Leonard
    Associate Judge
    Benjamin Rose,
    Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
    for Plaintiff-Appellee. Associate Judge
    

Document Info

Docket Number: CAAP-20-0000446

Filed Date: 11/5/2021

Precedential Status: Precedential

Modified Date: 11/5/2021