State v. Deleon.Â

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Electronically Filed
Supreme Court
SCWC-11-0000064
15-JAN-2014
09:43 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
PHILLIP DELEON, Petitioner/Defendant-Appellant.
SCWC-11-0000064
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000064; CR. NO. 09-1-1237)
JANUARY 15, 2014
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
WITH ACOBA, J., CONCURRING AND DISSENTING
SEPARATELY, WITH WHOM POLLACK, J. JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Phillip DeLeon was convicted of Murder in the Second
Degree, two counts of Carrying or Use of a Firearm in the
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Commission of a Separate Felony, and several other charges,1 in
relation to the July 31, 2009 fatal shooting of Shawn Powell.
The State alleged, inter alia, that DeLeon shot Powell and shot
at Powell’s friend, Justin Gamboa, following an altercation at a
nightclub. On appeal, the Intermediate Court of Appeals reversed
the Circuit Court of the First Circuit’s2 judgment as to
DeLeon’s conviction for one count of Carrying or Use of a Firearm
in the Commission of a Felony, but affirmed DeLeon’s remaining
convictions.
DeLeon raises two issues in his application for writ of
certiorari. First, DeLeon argues that his trial attorney
provided ineffective assistance of counsel by committing errors
that resulted in the circuit court precluding expert testimony
regarding the presence of cocaine in Powell’s blood at the time
of the shooting. Second, DeLeon argues that the circuit court’s
jury instruction, modeled after the then-current Hawai#i Pattern
Jury Instructions - Criminal (HAWJIC) 7.01 with regard to self-
defense “failed to completely and properly instruct the jury on
the law of self-defense.”
We conclude that DeLeon has failed to establish that
1
As explained infra, DeLeon was also convicted of two counts of
Reckless Endangering in the First Degree, and Ownership or Possession
Prohibited of Any Firearm or Ammunition by a Person Indicted for Certain
Crimes.
2
The Honorable Virginia L. Crandall presided.
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his trial counsel was ineffective with regard to the
admissibility of expert testimony on cocaine use. However, we
further conclude that the circuit court plainly erred in
excluding such testimony. The defense expert was prepared to
testify that, to a reasonable degree of scientific probability,
Powell was under the influence of cocaine at the time of the
shooting. However, the circuit court erroneously required that
the testimony be offered to a reasonable degree of scientific
certainty, and accordingly excluded the testimony. This error
was not harmless beyond a reasonable doubt, and thus we vacate
DeLeon’s convictions for second-degree murder (Count II) and
Carrying or Use of a Firearm While Engaged in the Commission of a
Separate Felony (Count IV), and remand for a new trial.
With regard to the jury instruction on self-defense, we
conclude that the circuit court’s instruction accurately stated
the law and thus was not erroneous.
Accordingly, we vacate in part and affirm in part the
ICA’s judgment, and vacate the circuit court’s judgment of
conviction and sentence on Counts II and IV, and remand to the
circuit court for further proceedings consistent with this
opinion.
I. Background
The following factual background is taken from the
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record on appeal.
A. Circuit Court proceedings
On August 5, 2009, DeLeon was indicted for: Attempted
Murder in the First Degree as to Powell and Gamboa (Count I);
Murder in the Second Degree as to Powell, in violation of HRS
§§ 707-701.5 and 706-656 (Count II)3; Attempted Murder in the
Second Degree as to Gamboa, in violation of HRS §§ 705-500, 707-
701.5, and 706-656 (Count III); Carrying or Use of Firearm in the
Commission of a Separate Felony in violation of HRS § 134-21 as
to Count II (Count IV); Carrying or Use of Firearm in the
Commission of a Separate Felony in violation of HRS § 134-21 as
to Count III (Count V); Place to Keep Pistol or Revolver in
violation of HRS § 134-25 (Count VI); Reckless Endangering in the
First Degree in violation of HRS § 707-713 (Count VII); and
Ownership or Possession Prohibited of Any Firearm or Ammunition
by a Person Convicted of Certain Crimes in violation of HRS
§§ 134-7(b) and (h) (Count VIII).
1. State’s first motion in limine to exclude cocaine
evidence
Prior to trial, on August 24, 2010, the State filed a
3
HRS § 707-701.5 (1993) provides in relevant part, “a person
commits the offense of murder in the second degree if the person intentionally
or knowingly causes the death of another person.” HRS § 706-656(2) (Supp.
2010) provides in relevant part: “[P]ersons convicted of second degree
murder . . . shall be sentenced to life imprisonment with possibility of
parole.”
4
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motion in limine, seeking, inter alia, to exclude any evidence
that Powell’s blood tested positive for .05 mg/L of cocaine on
grounds that such evidence is inadmissible under Hawai#i Rules of
Evidence (HRE) Rule 404(b)4 and/or irrelevant and unfairly
prejudicial under HRE Rule 403.5
DeLeon opposed the State’s motion, arguing, inter alia,
that evidence that Powell’s blood tested positive for .05 mg/L of
cocaine was “essential and probative to [DeLeon’s] self-defense
assertion, and its exclusion would be extremely prejudicial to
his claims[.]” Among the exhibits attached to DeLeon’s
opposition was a letter from Dr. Clifford G. Wong, the Toxicology
4
HRE Rule 404(b) (Supp. 2010) provides:
Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible
where such evidence is probative of another fact that
is of consequence to the determination of the action,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, modus
operandi, or absence of mistake or accident. In
criminal cases, the proponent of evidence to be
offered under this subsection shall provide reasonable
notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such
evidence it intends to introduce at trial.
5
HRE Rule 403 (1993) provides:
Although 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.
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Laboratory Director for Clinical Laboratories of Hawaii. The
letter indicated that DeLeon’s defense counsel retained Dr. Wong
as an expert in “DUI toxicology” and largely discussed Powell’s
blood alcohol concentration. With regard to Powell’s cocaine
concentration at the time of the shooting, Dr. Wong stated, in
relevant part:
The retrograde extrapolation of [] Powell’s
blood cocaine concentration to the time of the
shooting was performed to yield a probable range of
0.06 to 0.08 mg/L. The time of cocaine ingestion is
unknown, so the actual cocaine dosage cannot be
determined. Information regarding total amount
ingested and the time of ingestion would be required
to determine more accurately whether [] Powell has
[sic] under the influence of cocaine at the time of
the shooting.
(Emphasis added).
At a hearing on the motion, the circuit court noted
that “[t]he issue right away that the Court [saw]” was Dr. Wong’s
statement that he would need more information. Defense counsel
responded:
I have since spoken to Dr. Wong. This is what I
expect the proof to be: First, respectfully, if you
would, keeping in mind we have a video of Powell going
towards the defendant after at least three warning
shots were fired and saying some things that will come
out that my client heard. There’s loud screaming. We
have a witness from the manager of the Seoul Karaoke
that heard two men screaming and then a shot or shots.
This is what Dr. Wong says -- and we’ve
subpoenaed [medical examiner Dr. William] Goodhue, who
was -- who did the toxicology and autopsy. He says
that the cocaine was of recent use, and all that means
is -- I mean, what does “recent” mean? But with the
doctors and . . . Dr. Wong, “recent use” means
probably within 24 hours because the cocaine was still
in the blood, it had not been completely absorbed.
Dr. Wong says when . . . there’s a use of cocaine
. . . it gives -- and he will testify, if he’s allowed
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to -- someone a sense of euphoria, and he defines
euphoria as invincibility, like you think you’re
Superman, which is consistent with why anyone would be
going after someone who’s firing three shots in the
air. My client will testify that when he was grabbed
-- and he has seen people, and he will testify, on the
west side and when he was in California that he
thought were high on something. And when he was
grabbed in the bar by the victim, his testimony will
be . . . this guy was drunk but there was something
wrong with this guy, he looked like he was high on
something[.]
And then we have the cocaine, the invincibility,
the Superman, and then there’s an explanation as to
why this guy is doing this. Their witnesses say they
thought Powell was crazy that he would be going after
someone that just fired a gun in the air and just went
right after him.
So I don’t mind a [HRE Rule] 104 hearing[6] as
well, but it’s the euphoria that the cocaine gives.
We have the toxicology report that says recent use.
We have the testimony from the defendant who says this
guy looked like he was on something. Now, if he says
that, then I think he has the right to say that. If
it’s not buttressed or corroborated by the medical
testimony and the expert testimony, it may look like
it’s simply a self-serving statement he wants to make
with no basis in fact.
The DPA then argued for an HRE Rule 104 hearing:
[I]t’s the state’s understanding that cocaine does not
have a consistent effect on people like alcohol does.
I think that this euphoric state can also be a
dysphoric state and I think that the witness would
testify to that, that he cannot describe the states
that people go through on a consistent basis,
. . . even knowing or being able to retro-extrapolate
the amount of cocaine that was in the blood at the
time of the specific incident.
The circuit court ruled that it would conduct an HRE
Rule 104 hearing before allowing any testimony regarding Powell’s
cocaine level. The circuit court also informed defense counsel
of its concerns:
6
HRE Rule 104 governs preliminary questions regarding the
admissibility of evidence.
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THE COURT: . . . And just so, you know, counsel,
you’re very clear, it’s the Court’s concern that Dr.
Wong is not able to render an opinion that the victim
was under the influence at the time of the shooting,
and . . . doesn’t have enough information and that’s
what’s stated on the bottom of page 5 of his opinion,
and if that remains his opinion, then it’s not
admissible.
[DEFENSE COUNSEL]: I’m clear with that. Thank
you, Your Honor. I’m clear as to the ruling.
THE COURT: Questionable relevancy and
materiality will just create undue confusion.
Shortly before opening statements, the circuit court
ruled, over the State’s objection, that defense counsel could
mention in his opening statement DeLeon’s perception that Powell
may have been “high on something without making any
specifications.” The circuit court stated that the substance or
the amount could not be mentioned “until we have had subsequent
[HRE] Rule 104 hearings.”
2. State’s Case-in-Chief
At trial, Jermaine Beaudoin testified that on the night
of July 30, 2009, he, along with Gamboa, and Powell went in
Gamboa’s Lincoln Navigator to Bar Seven7 next to Ala Moana Center
at about 2:15 to 2:30 a.m. Beaudoin estimated that at this point
in the evening, he had consumed between nine to eleven alcoholic
drinks, and that Powell had also been drinking but was not drunk.
At some point, Beaudoin saw Powell talking to DeLeon, whom
7
Other witnesses, as well as defense counsel and the DPA, referred
to this establishment as either Club 7 or Bar Seven. For purposes of
consistency, this opinion will use the name “Bar Seven.”
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Beaudoin did not know at the time. Powell and DeLeon “got into a
little tussle.” Beaudoin intervened and DeLeon began yelling at
him. In response, Beaudoin slapped DeLeon’s head with his open
hand, knocking off DeLeon’s dark glasses. Beaudoin testified
that he believed that DeLeon then left Bar Seven.
Beaudoin, Powell, and Gamboa then went in Gamboa’s
Navigator to Seoul Karaoke at about 3:45 a.m. Powell, Beaudoin,
Gamboa and another acquaintance, Lane Akiona, walked in to Seoul
Karaoke. The group was in Seoul Karaoke for about two to three
minutes, was told that it was closing, and walked out to the car.
According to Beaudoin, as the group walked to the car, someone
yelled at them. Beaudoin stated that he “couldn’t make out what
he was yelling at us, but he was yelling something at us. So we
turned around and walked towards the defendant.” When Beaudoin
came within about five to ten feet of DeLeon, Beaudoin “noticed
that it was the same guy from Bar 7.” At that point, Powell was
closest to DeLeon, and Beaudoin told Powell “that’s the guy from
Bar 7[,]” and said “we go.” According to Beaudoin, when Powell
reached DeLeon, Powell said, “Everything is cool, everything --
no more problem.” Beaudoin described Powell’s body language as
“[r]egular, hands down. Everything is cool, misunderstanding or
whatevers.” Beaudoin stated that Powell did not look mad and
that Powell was trying to calm the situation. Powell was about
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an “[a]rm’s length[]” from DeLeon when DeLeon then “[g]rab[bed]
his gun and started shooting.” DeLeon first shot into the ground
two or three times, then shot Powell in the chest. At that
point, Beaudoin was “turning around, trying to get away[,]” and
then DeLeon shot “towards [Beaudoin] in the ground and [shot] at
the vehicle.” Beaudoin stated that as DeLeon shot the gun,
Beaudoin was on the ground and “felt the pebbles off the ground
hitting [his] face.” Beaudoin testified that the shots were
“[c]ontinuous[].”
On cross-examination, Beaudoin acknowledged that his
July 31, 2009 written statement describing the incident reflected
that DeLeon’s first shots were in the air and that his written
statement and his August 5, 2009 grand jury testimony did not
mention that his group approached DeLeon because DeLeon yelled at
them. Beaudoin stated that he tried to stop Powell by grabbing
his shoulder and that he was able to stop him from walking.
Beaudoin acknowledged that when asked before the grand jury how
many feet away DeLeon was from Powell when DeLeon shot Powell in
the chest, Beaudoin answered, “[n]ot feet” and “[n]ot even feet.”
Gamboa testified that at Bar Seven, he noticed Powell
talking to a Mexican man in dark glasses and that the
conversation between them appeared friendly. At some point there
was a commotion in the group, and Gamboa saw another
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acquaintance, Joe Chang, “trying to break it up [and p]ulled kind
of [Powell] to the side.” Gamboa did not see anyone being hit
but saw “this Mexican guy stumbling.” Gamboa saw the Mexican man
walk towards the entrance of the club and did not see him in the
club after that.
Later, the group left Bar Seven, and Gamboa drove
Beaudoin, Powell, and two other men whom Gamboa did not know to
Seoul Karaoke. No one talked about the incident from Bar Seven,
and Powell “seemed normal[]” and “[n]othing bothered him.”
Gamboa further testified that he, Powell, Beaudoin,
Lane, and two other men went to Seoul Karaoke but were told it
was closed and left. Gamboa walked into the parking lot to his
car, with the other men “kind of trailing behind” him. Gamboa
opened his car door, and then heard someone yelling aggressively,
“You want to mess with me? You want to hit me?” Gamboa then
heard someone say, “What, the guy from Sevens.” Gamboa turned
around to see who was yelling and walked in the direction of the
yelling. Gamboa saw “him coming towards us. Then he shot three
rounds into the ground. . . . [T]hen I seen him shoot [Powell].”
Gamboa estimated that one to two seconds passed between when he
heard the man yelling and when he fired the first three shots
into the ground, and stated that it was another one to two
seconds between the first three shots and the shot to Powell.
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Gamboa stated that Powell and the man had been “kind of talking
towards each other,” but that Gamboa could not hear what they
were saying. Gamboa stated that he saw the man point the gun
towards Powell’s chest and that Powell was raising his hands with
his palms facing forward when the man shot Powell. About one to
two seconds after shooting Powell, the man shot toward Gamboa.
Gamboa heard his car windshield “blowing up[,]” and ran to the
building next door. Gamboa stated that Powell was about one to
two feet away from the shooter when he was shot. Gamboa
identified the shooter in court as DeLeon.
On cross-examination, Gamboa acknowledged that he told
police that DeLeon’s car pulled up as the group left Seoul
Karaoke, and Powell “veered off.” Gamboa stated that he did not
drink the night of the incident.
Lane Akiona testified that as he was leaving Seoul
Karaoke with Powell, Beaudoin and Gamboa, a male Lane did not
know approached them. Lane did not know about the incident with
DeLeon at Bar Seven. According to Lane, the male said, “What’s
up?” When asked how the male was acting, Lane answered: “Like
what’s up now, like, then [Powell] raised his hands approaching
him and the guy reached behind his back and he just -- it
happened so fast. He just started firing shots and I ducked out
of the way and tried to get out of the line of fire.” Lane
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estimated it was about 15 to 20 seconds between when the male
said, “what’s up” to when he started shooting. Lane stated that
before Powell was shot, Powell was “[j]ust standing there[.]”
Lane stated that he saw the shooter point directly to Powell’s
chest when the shooter was about three feet from Powell. Lane
identified the shooter in court as DeLeon.
Daekum Kim, who worked at Seoul Karaoke at the time of
the incident, stated that at about 4:00 a.m. on July 31, 2009, he
told a group of about four to five drunk men who entered that
Seoul Karaoke would be closing. The men left, and Kim heard
“someone fight” outside. Kim could not see who was outside, but
“[t]heir voice was loud and the yelling and they say bad words.”
Kim then heard a single gun shot, then “after two, three seconds,
two, three times more.” Kim called the police and did not go
outside until after the police arrived.
Liana Cuarisma, DeLeon’s girlfriend at the time of the
incident, testified that on July 31, 2009, at about 3:50 a.m.,
DeLeon called her and said, “I just got fucking mobbed”8 at Bar
Seven. Cuarisma stated that DeLeon sounded upset and was
“[h]uffing and puffing” over the phone. Later that day, during
lunchtime, DeLeon told Cuarisma over the phone that he had to
8
Cuarisma initially testified that DeLeon told her that he had just
gotten “mugged.”
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return to Washington, where he was from, to see his mother in the
hospital.9 Later that evening, Cuarisma dropped DeLeon off at
the airport.
Taro Nakamura, a Honolulu Police Department (HPD)
homicide detective, testified that at some point he received an
anonymous phone call from a male who said that Powell had gotten
into an argument with someone at Bar Seven, and described the
person as a tall Mexican male with the name of Jose Lion or
Deleon.10 Nakamura ran background checks for “combinations of
Jose, Jesus, Lion, Deleon,” found an entry and photograph for
DeLeon, and assembled a photographic lineup. Beaudoin and Gamboa
picked out DeLeon from the photographic lineup, but Lane was not
able to identify a suspect. Nakamura learned that DeLeon had
purchased an airplane ticket, and sent officers to the airport.11
HPD criminalist Kaleo Kaluhiokalani testified as an
expert in the field of gunshot residue analysis and stated that
gunshot residue kit samples taken from Powell’s hands showed
particles “highly specific to gunshot residue.” Kaluhiokalani
9
Cuarisma, whom the State treated as a hostile witness, later
acknowledged on direct examination that it was possible, although she did not
remember, that between 4:08 a.m. and 9:30 p.m. on July 31, 2009 she talked to
DeLeon at least 40 times.
10
It appears that the anonymous call occurred on July 31, 2009.
11
Additional witnesses testified about DeLeon’s check-in and arrest
at the airport on the evening of July 31, 2009.
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stated that this finding could indicate that Powell discharged a
gun, handled the gun or another object contaminated with gunshot
residue, or was near a firearm when it was discharged, and that
if a person is shot in the chest and touches the wound, gunshot
residue can be transferred to the person’s hands.
Acting chief medical examiner Dr. William Goodhue,
testifying as an expert in the field of forensic pathology,
stated that he performed an autopsy on Powell on July 31, 2009
and concluded that Powell’s cause of death was “massive blood
loss due to injury to his heart as a result of a gunshot wound to
the chest.” On cross-examination, Dr. Goodhue stated that the
gunshot to Powell was not a contact wound in which the barrel of
the gun was placed against the body. Dr. Goodhue stated that he
could not conclude how far away the gun was from Powell at the
time it was fired because he did not receive Powell’s shirt to
examine.
After the State rested,12 DeLeon moved for judgment of
acquittal as to all charges. The circuit court denied the
motion.
3. HRE Rule 104 hearing regarding cocaine evidence and
circuit court ruling
On September 22, 2010, the day after resting its case-
12
Additional witnesses testified for the State; however, their
testimony is not relevant to the issues before this court.
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in-chief, the State filed Motion in Limine No. 2, seeking to
exclude from trial (1) any evidence of any opinion by Dr. Wong
regarding the behavioral effects of cocaine and/or alcohol
combination, (2) any testimony about how Powell might have
reacted to the cocaine and/or alcohol in his system, and (3) Dr.
Wong’s opinion in his September 7, 2010 letter13 that:
Given[] the co-presence of significant levels of
cocaine and alcohol in the decedent, my opinion is
that [] Powell was under the influence of those two
drugs at the time of the shooting, and accordingly,
made a fatal misjudgment in his attempt to accost the
defendant, [] Deleon, even after warning shots were
fired.
The State argued that allowing such evidence would
violate HRE Rule 702,14 stating: “Dr. [] Wong cannot testify to
[] Powell’s state of mind because he does not have enough
information. Additionally, it is an issue of fact for the jury
to decide whether there was an ‘attempt to accost the defendant.’
Lastly, the opinion is outside Dr. Wong’s expertise.” The State
also argued that Dr. Wong’s “opinion is outweighed by the danger
13
Dr. Wong’s September 7, 2010 letter is not included in the record
on appeal.
14
HRE Rule 702 (1993) provides:
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.
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of unfair prejudice, confusion of the issues, and misleading the
jury,” warranting its exclusion pursuant to HRE Rule 403.
The circuit court held an HRE Rule 104 hearing the same
day. At the hearing, Dr. Wong testified that he is a forensic
toxicologist and the toxicology lab director at Clinical
Laboratories of Hawaii’s toxicology department. Dr. Wong
explained that cocaine is a “central nervous system stimulant
. . . [that] mimics the activity of adrenaline.” Its effect
increases the heart rate and dilates blood vessels, “engorg[ing]
the muscles of the body to fight or flight[]” – that is, “when a
person is confronted with danger or something that is opposing
them, they would develop the ability to fight off that threat or
to run away.” Dr. Wong agreed that he could say “to a reasonable
scientific probability that based on [his] training and
experience, . . . the ingestion of cocaine can affect someone’s
behavior[.]”
With respect to the instant case, Dr. Wong testified
that he reviewed some parts of the police report, the testimony
of the witnesses before the grand jury, witness statements to the
police officers “investigating right after” the shooting, the
medical examiner’s report, and a security camera video recording
of the shooting. Dr. Wong noted that Dr. Goodhue’s autopsy
report indicated the finding of cocaine and benzoylecgonine, a
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metabolite of cocaine, in Powell’s blood. According to the
medical examiner’s laboratory report on Powell, “the alcohol was
extremely high.” A toxicology report indicated the presence of
.05 milligrams per liter of cocaine and .39 milligrams per liter
of benzoylecgonine. Dr. Wong stated that the proportion of
benzoylecgonine to cocaine “generally means that the cocaine
. . . was perhaps consumed at a . . . much earlier time frame,
say beyond four or five hours.” Dr. Wong noted that Dr.
Goodhue’s autopsy report stated that the cocaine was taken “in
close proximity to the death”; Dr. Wong stated that given the
level of cocaine detected, it was taken within the previous 24
hours. Dr. Wong also testified that he called the laboratory
that performed the toxicology analysis on Powell’s blood, and
learned that the laboratory also found cocaethylene, which
“indicates a usage of cocaine while there was still alcohol
present in the body.”
Defense counsel asked Dr. Wong if he could say to a
“reasonable scientific probability” that if cocaine is in the
blood, it would have an effect on the user’s behavior, to which
Dr. Wong responded: “I would say not knowing his medical
history, his experience with cocaine, I would say just if I would
assume an average user or a naive user, yes, we would normally
see the effects of cocaine.”
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Dr. Wong also performed a retrograde extrapolation for
alcohol and cocaine, in which he calculated the concentrations of
alcohol and cocaine in Powell’s body at the time of the shooting.
Dr. Wong stated that Powell’s blood alcohol at the time of the
shooting was 0.18.15
Dr. Wong stated that the combined effects of cocaine
and alcohol “generally are additive, especially in the effects of
judgment.” The following exchange occurred between defense
counsel and Dr. Wong:
Q. Does it help you at all in the video in
assessing as you may look at a police report a field
sobriety test, does this video help you at all in
being able to give an opinion based on a reasonable
scientific probability as to what the effects first of
all with the alcohol and then -- strike the alcohol,
the effects of the cocaine?
A. Just that everyone else there at that party
had drinks as well as he. When they saw or appeared
to have seen a gun, they all pretty much stayed away
from the defendant, whereas the victim did not. Now,
what is the commonality of all of them? They had
alcohol. What was the -- at least all we know at this
time the only difference between [] Powell and the
others in his party was that we found cocaine in him,
and so by inference perhaps it was that cocaine that
gave him that extra shove to confront the individual.
Q. Can you say to a reasonable scientific
probability the fact that there was cocaine found in
his bloodstream, the proximity of the cocaine, that it
affected his judgment and his critical judgment or his
behavior, just the cocaine alone?
A. Well, again, just based on cocaine
15
Although Dr. Wong did not state at the hearing the concentration
of cocaine in Powell’s blood at the time of the shooting, Dr. Wong’s August 9,
2010 letter that defense counsel submitted to the circuit court on September
3, 2010 indicated that Powell’s blood cocaine concentration at the time of the
shooting was in a “probable range of 0.06 to 0.08 mg/L.”
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concentrations that is something I can’t give you a
definite answer but if this individual was approaching
staring down the barrel of a gun, where most normal
people would shy away or perhaps remove themselves
from, I would say that perhaps cocaine, yes, by a
probability would have been a factor in having him
confront this individual even with a gun being
presented towards him.
. . . .
Q. . . . Are you satisfied that the ingestion
of cocaine in the proximity to the death had an impact
on Powell’s behavior?
A. With reasonable probability I would say yes.
Q. To a reasonable medical scientific
probability?
A. Yes.
(Emphases added).
On cross-examination, the State questioned Dr. Wong
about what he could testify to regarding the effect of cocaine on
Powell:
Q. You know, you just used words like perhaps
the cocaine could or would have been a factor in []
Powell’s judgment; right?
A. Yes.
Q. And you cannot testify today in court under
oath that to a reasonable degree of medical certainty
[] Powell was under the influence of cocaine at the
time of the shooting?
[DEFENSE COUNSEL]: Excuse me, I don’t
mean to interrupt you, . . . I’m not so sure the
standard is medical certainty, I think it’s
probability but either way.
THE WITNESS: Yes.
BY [THE STATE]:
Q. Dr. Wong, you’re uncomfortable with saying
that; isn’t that true?
A. Well, normally in court in a criminal case I
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usually would make an opinion based on beyond a
reasonable doubt, okay? In this case it’s clearly
it’s not beyond a reasonable doubt whether or not he
was or not or was not under the influence of cocaine.
I can only say with reasonable probability because of
the concentration that was found, extrapolated
concentration that was found in the blood, as well as
his behavior, his apparent behavior in the camera of
moving towards the defendant –
. . . .
Q. Can you testify to a reasonable medical
degree of certainty that [] Powell was under the
influence of cocaine at the time of the shooting?
A. I can only say by probability.
Q. Yes or no, Doctor.
A. High probability, that’s all I can say.
Q. High probability, not to a reasonable degree
of medical certainty?
A. Not beyond a reasonable --
THE COURT: Scientific certainty.
BY [THE STATE]:
Q. Scientific certainty. To a reasonable
degree of scientific certainty, can you testify that
[] Powell was under the influence of cocaine at the
time of the shooting?
A. No.
Q. And the reason why you can’t is because you
don’t know the background of [] Powell?
A. Yes.
. . . .
Q. . . . [Y]ou cannot testify to a reasonable
degree of scientific study [sic] because you state you
need more information?
A. Yes, that’s correct.
Q. From your August 9 letter to your September
7 letter you say you need more information; correct?
A. Yes.
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Q. Now, you need to know how the cocaine was
ingested, was it smoked, was it snorted, was it
intravenous?
A. No, that aspect was not important.
Primarily the important factors were did the
individual show signs of intoxication, and we have no
evidence other than any anecdotal evidence from the
other witnesses. The camera was too far away to
really determine any behaviors of tremors or antsyness
of the individual. Of course, you cannot determine
the pupil dilation, so I can’t use any other evidence
to determine whether or not he was definitely under
the influence of cocaine.
(Emphases added).
Dr. Wong acknowledged that in his September 7, 2010
letter, he cited to two references, including a “McCance-Katz”
article – which studied the effects of cocaine and alcohol – but
did not read that article. Dr. Wong stated that he relied
primarily on an article by Dr. Eisenschmidt, and that he cited
the McCance-Katz study because it was noted in the Dr.
Eisenschmidt article.
Dr. Wong acknowledged that between his August 9, 2010
letter and his September 7, 2010 letter, he never received
information regarding the total amount of cocaine Powell ingested
and when it was ingested, which would be required to determine
more accurately whether Powell was under the influence of cocaine
at the time of the shooting. Dr. Wong also stated that he would
need to know Powell’s tolerance. When asked whether he received
the information he requested, Dr. Wong responded: “Not all the
information, no, that I needed. And I did say I could not make
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that statement that with reasonable -- with medical certainty. I
said I could not make that determination that he was under the
influence of cocaine.”
The circuit court also examined Dr. Wong:
Q. Dr. Wong, this last paragraph that [defense
counsel] was just asking you about [in Dr. Wong’s
supplemental report dated September 7, 2010], the
highly intoxicated by alcohol and cocaine, does the
highly intoxicated modify both? I mean, was he highly
intoxicated by cocaine at the time?
A. The highly intoxication would refer to the
alcohol.
Q. Okay. And as the Court understands your
first letter, you were not able to determine whether
he was under the influence of the cocaine at the --
A. Well, I mention it was hard to make a
definitive judgment on his impairment or the influence
by cocaine unless there is more information given.
Q. And the additional information between
August and September was your viewing of the video?
A. Yes, and the finding about the cocaethylene
as well.
Q. And the effect of that was just to indicate
that the cocaine and alcohol had been taken at the
same time?
A. Yes.
Q. But did not give any additional information
about amount, time of ingestion?
A. That, yes, we don’t know but the fact that
they were both then coincident in the blood would give
a very high probable of circumstance of intoxication
by both, okay? [sic] I don’t have any behavioral clues
other than perhaps what may be seen in the film of the
man approaching the suspect with the -- the defendant
with the -- I guess in their confrontation. It’s
difficult to see at what point the gun is brandished.
You can’t really pick that out in the film. So my
point is that if a person points a gun at you it
normally would give the person pause. I would not run
up to him face-to-face if I see a gun in his hand.
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Q. The chart that was attached to your August
letter with regard to the level of alcohol
intoxication and the behavior, is there a similar
chart for cocaine?
A. No, for any of the drugs. That’s the reason
why the DRE program[16] was established because there
is no definitive way you can give a level of drug with
a level of impairment. Some drugs exert effects even
as the levels are dropping, so they don’t always
correlate increase level increase intoxication either
drugs as it does in alcohol. [Sic]
Following the questioning of Dr. Wong, defense counsel
argued that Dr. Wong should be allowed to testify about the
behavioral effects of cocaine:
. . . I think really it’s a weight issue, if anything,
based on whether [the jury] believe[s] that was a
factor. It’s . . . impossible for any expert to be
present unless it’s a controlled test to watch
somebody ingest any drug, cocaine included, and that’s
why we have toxicology reports and that’s why we have
experts, forensic toxicologists, who testify regarding
the accepted effects, behavioral effects, based on
studies that are done. And when [the DPA] asked [Dr.
Wong] whether or not there’s anything in his
references or CV, it is there. He has testified
before and been admitted as an expert for the effects.
It’s the combined effects. And I think he certainly
shouldn’t be precluded and the jury should not be
misled as to the condition of [] Powell. I think his
testimony is an aid to the trier of fact. I think
there’s a sufficient basis based on his credentials,
based on the toxicology report, based on his
extrapolation, and if it does enhance the effects of
alcohol they should know that. And I think it would
be properly admitted. I think it would be error to
exclude it. . . .
(Emphasis added).
The circuit court allowed Dr. Wong’s testimony as to
16
Dr. Wong described the DRE program as a certification program that
trains officers to recognize impairment due to drugs rather than alcohol.
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the effects of alcohol, but excluded his testimony regarding
cocaine:
Viewing the evidence that has been presented
with respect to this issue, the Court affirms its
prior ruling on the motion in limine, is going to
preclude the evidence and testimony with respect to
the presence of cocaine.[17]
The Court, in reviewing Dr. Wong’s initial
letter, the subsequent September letter, as well as
the testimony presented today, the Court thinks that
it does not have sufficient reliability to present the
issue before the jury and is going to cause confusion.
The Court does note that in the [August] letter he
indicated that he was not able to render an opinion
with respect to whether [] Powell was under the
influence of cocaine at the time of the shooting
without additional information. He received some
additional information between August and September,
not the specific information that he indicated that he
would need to do that, and he further indicated today
that he could not make the -- render an opinion to a
reasonable degree of scientific certainty that []
Powell was under the influence of cocaine at the time
of his -- at the time of the shooting and therefore to
allow him to opine about influence of both substances
and the effect on the behavior of the deceased would
be speculative. So Court precludes that use.
. . . .
[Dr. Wong] could not give an opinion in August
and then he did render that opinion in the September
7th letter, but the Court is not allowing that opinion
based on the testimony presented this morning. And he
did indicate this morning that he cannot render that
opinion to a reasonable degree of scientific
certainty.
But just to clarify . . . , he will be able to
testify as to the blood alcohol level at the time of
the shooting and what that level blood alcohol may
indicate in terms of an individual’s behavior. The
Court does find he’s qualified in that area.
(Emphases added).
4. Defense’s Case-in-Chief
17
It is unclear from the record whether the circuit court actually
made a prior ruling on this issue. A transcript of the September 3, 2010
hearing indicates that the circuit court’s prior ruling was that an HRE Rule
104 hearing would be held prior to any admission of the cocaine evidence.
Minutes of the September 3, 2010 hearing state: “State and Deft’s motions in
limine: granted in part, reserved in part, and Rule 104 hearings to be held.”
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Chang testified that he met DeLeon through a mutual
friend and saw DeLeon about four or five times at various bars
before the night of the incident. DeLeon appeared to be at Bar
Seven alone and was drinking. At some point, DeLeon wound up
talking with Powell. Chang, who considered Powell a friend,
testified that Powell had his arm around DeLeon “like how you
would hold like a pal or a buddy[,]” but Chang could not hear
what Powell was saying to DeLeon. Beaudoin then told Chang he
wanted to “false crack the Mexican guy[,]” and Chang told
Beaudoin, “The guy is not doing anything wrong. Leave him alone.
They’re all right.” Chang turned to talk to someone else, and
then heard a slap. DeLeon started yelling at Beaudoin, “[W]hat
the hell are you doing?” Chang “stopped the confrontation[,]”
picked up DeLeon’s glasses from the floor, returned them, and
told DeLeon, “You need to get the hell out of here before
something worse happens to you[,]” because “they have all their
friends[.]” DeLeon then left the club. About half an hour
later, Chang left the club and went to Seoul Karaoke, where he
saw Powell and Powell’s group. Chang left Seoul Karaoke before
Powell was shot.
Dr. Wong was qualified as an expert witness in the
field of forensic toxicology, and testified that he reviewed the
Sorabol security video, Powell’s autopsy report, and a toxicology
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report of Powell’s blood alcohol content. Dr. Wong stated that
Powell was found to have a blood alcohol level of 0.171, which
indicates “a high degree of alcohol intoxication.” Dr. Wong
further stated that he calculated by retrograde extrapolation
that Powell’s blood alcohol level was .181 at the time of the
shooting. Dr. Wong then consulted the “Dubowski table”18 in
which ranges of blood alcohol concentrations are assigned various
stages of alcoholic influence and clinical signs and symptoms.
According to the Dubowski table, Powell’s blood alcohol level
bordered between the alcoholic influence categories of confusion
and excitement. Dr. Wong also testified that the category of
euphoria, which included symptoms of being “supremely
overconfident[,]” was also applicable. Dr. Wong explained that
the category of “excitement” includes symptoms of emotional
instability and impairment of the perception of distance,
objects, and danger. Dr. Wong explained the category of
confusion as
not being situationally aware of where you are in a
given time. . . . [I]f you have mental confusions you
may not be aware of these different options . . . that
were available to you and you may take other options
that are perhaps more dangerous. It also is a means
of interpretation of what the situation is. If a
person is in conversation or in actions that may be
misinterpreted as something else.
. . . .
[I]f a person is angry at an individual, alcohol will
18
Dr. Wong testified that the table was constructed by Dr. Kurt
Dubowski, a “world expert on alcohol.”
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supplement and will fuel that anger to a higher level,
in some cases rage, uncontrollable rage.
After the defense rested,19 DeLeon moved for judgment
of acquittal, which the circuit court denied.
5. Jury instruction on self-defense
The circuit court provided the jury an instruction
modeled after HAWJIC 7.01 with regard to self-defense. The
instruction provided the following:
Justifiable use of force, commonly known as
self-defense, is a defense to the charge of Attempted
Murder in the First Degree in Count I and Murder in
the Second Degree in Count II and the included offense
in Count II of Manslaughter. The burden is on the
Prosecution to prove beyond a reasonable doubt that
the force used by the defendant was not justifiable.
If the Prosecution does not meet its burden, then you
must find the defendant not guilty.
The use of force upon or toward another person
is justified when a person reasonably believes that
such force is immediately necessary to protect himself
on the present occasion against the use of unlawful
force by the other person. The reasonableness of the
defendant’s belief that the use of such protective
force was immediately necessary shall be determined
from the viewpoint of a reasonable person in the
defendant’s position under the circumstances of which
the defendant was aware or as the defendant reasonably
believed them to be.
The use of deadly force upon or toward another
person is justified when a person using such force
reasonably believes that deadly force is immediately
necessary to protect himself on the present occasion
against death or serious bodily injury. The
reasonableness of the defendant’s belief that the use
of such protective force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the defendant’s position under the
circumstances of which the defendant was aware or as
19
DeLeon chose not to testify. Additional witnesses testified for
the defense; however, their testimony is not relevant to the issues before
this court.
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the defendant reasonably believed them to be.
The use of deadly force is not justifiable if
the defendant, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter or if the
defendant knows that he can avoid the necessity of
using such force with complete safety by retreating.
“Force” means any bodily impact, restraint, or
confinement or the threat thereof.
“Unlawful force” means force which is used
without the consent of the person against whom it is
directed and the use of which would constitute an
unjustifiable use of force or deadly force.
“Deadly force” means force which the actor uses
with the intent of causing, or which he knows to
create a substantial risk of causing, death or serious
bodily injury.
Intentionally firing a firearm in the direction
of another person or in the direction which the person
is believed to be constitutes deadly force.
A threat to cause death or serious bodily injury
by the production of a weapon or otherwise, so long as
the actor’s intent is limited to creating an
apprehension that he will use deadly force if
necessary, does not constitute deadly force.
“Bodily injury” means physical pain, illness, or
any impairment of physical condition.
“Serious bodily injury” means bodily injury
which creates a substantial risk of death or which
causes serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily
member or organ.
If and only if you find that the defendant was
reckless in having a belief that he was justified in
using self-protective force against another person, or
that the defendant was reckless in acquiring or
failing to acquire any knowledge or belief which was
material to the justifiability of his use of force
against the other person, then the use of such
self-protective force is unavailable as a defense to
the offense of Manslaughter.
The defense did not object to the court’s self-defense
instruction.
6. Closing arguments
In its closing argument, the State described DeLeon as
a person with various VIP cards to bars and nightclubs and “who
thinks he’s somebody, he’s a baller, he’s a VIP.” The DPA stated
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that that image was “crushed” on the night of the incident at Bar
Seven, when Beaudoin slapped him, and DeLeon was told to “get the
hell out of here[,]” leaving DeLeon to “do the walk of shame in
front of all these guys[.]” The DPA stated that DeLeon,
humiliated, “waited to see which car they got into, he waited to
see where they would go, and he waited for his opportunity.”
The DPA stated that DeLeon arrived at Seoul Karaoke two
minutes after Powell’s group walked into Seoul Karaoke – “one
hour, seven minutes, and 55 seconds after the slap.” The DPA
stated that DeLeon waited “in the dark, and watch[ed] as [Powell]
and his friends walk from Seoul directly to the Navigator[.]”
DeLeon then “shout[ed] out to them, You wanna mess with me? You
wanna hit me? What’s up now? He’s trying to, and he does, get
the attention of [Powell] and his friends.” The DPA described
what occurred next as follows:
So at 04:09:07 A.M. you see [Powell] turn and walk
towards that shouting. They walk towards him, . . .
listening to this shouting and screaming, wondering
what’s going on, when they finally realize, when they
get closer, Oh, it’s the guy from [Bar Seven]. So
[Beaudoin] tells him, Nah, let’s just go. But
[Powell] tells him, No, brah, everything’s cool. He
has his hands up. Everything’s cool. It doesn’t stop
the defendant. First three shots. . . .
Meanwhile, [Powell] is still there, hands up, I
surrender; It’s okay; Everything’s cool. He doesn’t
kick him; he doesn’t punch him; he doesn’t slap him;
he doesn’t choke him; he doesn’t lunge at him; he
doesn’t threaten him. But it doesn’t matter. Shot
four, less than three feet away, Defendant points,
aims, and shoots. [Powell] crumbles. And at this
point, he doesn’t lower the gun to shoot to his leg;
he doesn’t raise the gun to shoot to his shoulder or
his foot. Straight to the heart.
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The DPA also argued that self-defense did not apply to
DeLeon:
You cannot create your own thing, walk up to it, and
then claim self-defense. He calls them over. He
says, Come over here; Look what I gotta show you.
Shawn walks up with his hands. When he realizes who
it is, Everything’s cool, brah. You know, nothing.
I’m in surrender, palms face up. He doesn’t hit him;
he doesn’t punch him; he doesn’t kick him; he doesn’t
threaten him.
In his closing argument, defense counsel stated that
DeLeon did not want to shoot anyone but ended up shooting Powell
in self-defense. Defense counsel questioned the State’s theory
that DeLeon was seeking revenge, noting that DeLeon did not shoot
Beaudoin, who slapped him at Bar Seven, but shot Powell, “the guy
that was on him, that walked across and ignored the warning
shots, ignored his friend who tried to grab him, and he was on
him.”
[T]here’s a gun at [DeLeon’s] side, and they start
coming. They’re screaming and yelling. And then
there’s finally, when he’s five feet away, a gunshot
in the air. [Powell’s] friends are trying to pull him
off. He’s less than a foot away. His hands, I
suggest, are out and he shot once. Was there a
reasonable belief that he was going to sustain serious
bodily injury? Is there anyone that can possibly
imagine some crazy guy, drunk, coming at you and you
firing a warning shot? If he wants to shoot somebody,
what's he firing warning shots about? Why does he
then shoot in the ground to keep the other guys back?
He wants to kill somebody? He thought about it? How
could anyone right-thinking not believe that he has a
reasonable belief he’s going to suffer serious bodily
injury when the guy is now on him after he’s fired a
warning shot? And you’ll see [DeLeon] steps out of
the screen. He steps back. But [Powell is] on him.
And he doesn’t listen to Beaudoin, who’s grabbing his
shoulder.
Defense counsel described Powell as “one mean guy when
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he got drunk,” and called Powell’s group a “mob looking for
trouble, going after a guy with a gun, who’s firing a warning
shot.” Defense counsel stated that on the night of the shooting,
Powell and his friends were “drunk out of their minds” after
engaging in “eight hours of drinking alcohol.” Defense counsel
noted that Powell’s extrapolated blood alcohol level was 0.181
and that “Dr. Wong said the presumption of intoxication is 0.82,
[sic] which is twice the amount, which fits into every category
almost of the Dubowski table.” Defense counsel further discussed
Dr. Wong’s testimony regarding the effects of alcohol on Powell:
[W]e have increased self-confidence, decreased
inhibitions, diminished judgment and control,
emotional instability, critical judgment, Superman.
Bullets don’t hurt you. Critical judgment, impairment
of perception. . . . This guy . . . has lost his
critical judgment and it increases his rage. To
suggest to you folks he just walked across the parking
lot -- and you’ll see it -- just to say, Braddah,
everything is cool, my hands are up, you see, I
surrender -- who are the other two people that were
screaming and swearing in that parking lot? Braddah,
it’s so cool. How come Beaudoin had to try to grab
him by the shoulder and couldn’t do it?
G. Verdict, Judgment, and Sentence
On October 1, 2010, the jury found DeLeon guilty of
Murder in the Second Degree as to Powell (Count II), Carrying or
Use of a Firearm While Engaged in the Commission of a Separate
Felony (Counts IV and V), Place to Keep a Pistol or Revolver
(Count VI), Reckless Endangering in the First Degree (Count VII),
and Ownership or Possession Prohibited of Any Firearm or
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Ammunition by a Person Convicted of Specified Crimes (Count
VIII). The jury found DeLeon not guilty of Attempted Murder in
the Second Degree as to Gamboa (Count III), but found him guilty
of the included offense of Reckless Endangering in the First
Degree. The jury acquitted DeLeon of Attempted Murder in the
First Degree regarding Powell and Gamboa (Count I).
At sentencing, the circuit court granted the State’s
oral motion to dismiss without prejudice Count VI, which merged
with Count VIII. DeLeon was sentenced to concurrent prison terms
of life with the possibility of parole (Count II), five years
(Count III), twenty years (Count IV), twenty years (Count V),
five years (Count VII), and ten years (Count VIII). DeLeon was
also sentenced to mandatory minimum terms of twenty years for
Count II and five years for Count III, and was ordered to pay
$4,000 in restitution to the Crime Victim Compensation
Commission. DeLeon timely filed a notice of appeal.
B. ICA Appeal
In his opening brief, DeLeon raised four points of
error. Specifically, DeLeon asserted that (1) defense counsel
provided ineffective assistance of counsel by failing to
establish Powell’s recent cocaine ingestion before the incident,
(2) the circuit court’s self-defense instruction failed to
properly instruct the jury on the law of self-defense, (3) the
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circuit court erroneously refused to instruct the jury on extreme
mental or emotional disturbance (EMED) manslaughter, and (4) the
circuit court wrongly convicted and sentenced him as to Count V
(Carrying or Use of Firearm in the Commission of a Separate
Felony) because the jury convicted him in Count III of reckless
endangerment, an excluded offense.20
In its January 18, 2013 Summary Disposition Order, the
ICA agreed that DeLeon’s conviction as to Count V was improper
because his reckless endangerment conviction did not constitute a
“separate felony,” and accordingly reversed the Count V
conviction. The ICA affirmed the circuit court’s judgment in all
other respects. Relevant to the issues before this court, the
ICA rejected DeLeon’s ineffective assistance of counsel argument,
and concluded that the circuit court properly instructed the jury
on self-defense. The ICA filed its judgment on appeal on
February 14, 2013.
20
HRS § 134-21 (Supp. 2009), which governs the offense of Carrying
or Use of a Firearm in the Commission of a Separate Felony, provides, in
relevant part:
(a) It shall be unlawful for a person to knowingly
carry on the person or have within the person’s
immediate control or intentionally use or threaten to
use a firearm while engaged in the commission of a
separate felony, . . . provided that a person shall
not be prosecuted under this subsection when the
separate felony is:
. . . .
(2) The felony offense of reckless endangering in the
first degree under [HRS §] 707-713[.]
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DeLeon timely filed his application for a writ of
certiorari, in which he raises the following questions:
1. Whether the ICA gravely erred in rejecting
DeLeon’s claim that counsel was ineffective for
failing to establish [decedent Shawn] Powell’s
cocaine ingestion (in addition to his alcohol
intoxication) which substantially impaired
DeLeon’s defense of self-defense.
2. Whether the ICA gravely erred in rejecting
DeLeon’s claim that the self-defense instruction
based on HAWJIC 7.01, which omitted the language
of HRS § 703-304(3), failed to completely and
properly instruct the jury on the law of self-
defense.
The State filed a response on April 22, 2013.21
III. Standards of Review
A. Ineffective Assistance of Counsel
When reviewing a claim of ineffective assistance of
counsel, this court looks at whether defense counsel’s
assistance was within the range of competence demanded of
attorneys in criminal cases. The defendant has the burden
of establishing ineffective assistance of counsel and must
meet the following two-part test: 1) that there were
specific errors or omissions reflecting counsel’s lack of
skill, judgment, or diligence; and 2) that such errors or
omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. To satisfy
this second prong, the defendant needs to show a possible
impairment, rather than a probable impairment, of a
potentially meritorious defense. A defendant need not prove
actual prejudice.
State v. Wakisaka, 102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27
(2003) (internal quotation marks, citations, and footnote
omitted).
21
On May 22, 2013, this court accepted DeLeon’s application and
ordered supplemental briefing regarding the degree of certainty required for
admission of scientific expert testimony in criminal cases. The parties filed
supplemental briefs on this issue on June 25, 2013.
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The proper standard for claims of ineffective
assistance of counsel on appeal is whether, “viewed as a whole,
the assistance provided was within the range of competence
demanded of attorneys in criminal cases.” Dan v. State, 76
Hawai#i 423, 427, 879 P.2d 528, 532 (1994) (internal quotation
marks, citation, and brackets omitted).
General claims of ineffectiveness are insufficient and every
action or omission is not subject to inquiry. Specific
actions or omissions alleged to be error but which had an
obvious tactical basis for benefitting the defendant’s case
will not be subject to further scrutiny. If, however, the
action or omission had no obvious basis for benefitting the
defendant’s case and it “resulted in the withdrawal or
substantial impairment of a potentially meritorious
defense,” then it will be evaluated as information that an
ordinarily competent criminal attorney should have had.
Id. (ellipses and brackets omitted) (emphasis in original)
(quoting Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976
(1993)). “[M]atters presumably within the judgment of counsel,
like trial strategy, will rarely be second-guessed by judicial
hindsight.” State v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d
1227, 1247-48 (1998) (internal quotation marks and citation
omitted) (emphasis in original).
B. Jury instructions
The standard of review for jury instructions that were
not objected to at trial was clarified in State v. Nichols, 111
Hawai#i 327, 141 P.3d 974 (2006), where the Hawai#i Supreme Court
held that
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although as a general matter forfeited assignments of error
are to be reviewed under [Hawai#i Rules of Penal Procedure
(HRPP)] Rule 52(b) plain error standard of review, in the
case of erroneous jury instructions, that standard of review
is effectively merged with the HRPP Rule 52(a) harmless
error standard of review because it is the duty of the trial
court to properly instruct the jury. As a result, once
instructional error is demonstrated, we will vacate, without
regard to whether timely objection was made, if there is a
reasonable possibility that the error contributed to the
defendant’s conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt.
Id. at 337, 141 P.3d at 984 (footnote omitted).
Thus, the appellant must first demonstrate
instructional error by rebutting the “presumption that
unobjected-to jury instructions are correct.” Id. at 337 n.6,
141 P.3d at 984 n.6; accord State v. Eberly, 107 Hawai#i 239,
250, 112 P.3d 725, 736 (2005). If the appellant is able to rebut
this presumption, the burden shifts to the State to prove that
the error was harmless beyond a reasonable doubt because
[e]rroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.
However, 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.
Nichols, 111 Hawai#i at 334, 141 P.3d at 981 (brackets in
original omitted) (quoting State v. Gonsalves, 108 Hawai#i 289,
293, 119 P.3d 597, 601 (2005)). If the State cannot demonstrate
that the error was harmless beyond a reasonable doubt, the
conviction must be vacated. Nichols, 111 Hawai#i at 337, 141
P.3d at 984.
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C. Plain Error
Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b)
states that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.” Therefore, an appellate court “may
recognize plain error when the error committed affects
substantial rights of the defendant.” State v. Staley, 91
Hawai#i 275, 282, 982 P.2d 904, 911 (1999) (citation omitted).
The appellate court “will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights.” Nichols, 111 Hawai#i at 334, 141
P.3d at 981 (quoting State v. Sawyer, 88 Hawai#i 325, 330, 966
P.2d 637, 642 (1998)). An appellate court’s “power to deal with
plain error is one to be exercised sparingly and with caution
because the plain error rule represents a departure from a
presupposition of the adversary system—that a party must look to
his or her counsel for protection and bear the cost of counsel's
mistakes.” Nichols, 111 Hawai#i at 335, 141 P.3d at 982 (quoting
State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74–75 (1993)).
D. Admission of Expert Testimony
“Generally, the decision whether to admit expert
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testimony rests in the discretion of the trial court. To the
extent that the trial court’s decision is dependant upon
interpretation of court rules, such interpretation is a question
of law, which [the appellate] court reviews de novo.” Barcai v.
Betwee, 98 Hawai#i 470, 479, 50 P.3d 946, 955 (2002) (citations
omitted).
IV. Discussion
A. The circuit court’s ruling to exclude Dr. Wong’s testimony
regarding cocaine use by Powell
DeLeon argues on appeal that trial counsel provided
ineffective assistance of counsel by committing errors that
resulted in the circuit court’s exclusion of testimony regarding
Powell’s cocaine level at the time of the shooting. As set forth
below, DeLeon has failed to establish that his trial counsel was
ineffective with regard to this issue. However, upon examination
of the merits of the circuit court’s ruling, we find that the
circuit court plainly erred in excluding such testimony. As
stated supra, Dr. Wong was prepared to testify that, to a
reasonable degree of scientific probability, Powell was under the
influence of cocaine at the time of the shooting. However, the
circuit court excluded the testimony because Dr. Wong could not
testify to a “reasonable degree of scientific certainty.”
(Emphasis added).
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Although trial courts may exclude expert testimony that
is speculative in nature, expert opinions need not be based on a
“reasonable degree of scientific certainty” in order to be
admissible. Accordingly, we hold that the circuit court plainly
erred in excluding the expert testimony at issue.
1. DeLeon’s ineffective assistance of counsel claim
fails
DeLeon argues that the ICA erred in rejecting his claim
that his trial counsel was ineffective for “failing to establish
Powell’s cocaine ingestion[.]” Specifically, DeLeon argues that
his trial counsel was ineffective by committing two specific
errors: (1) failing to move the court to rule on the admission of
the cocaine evidence at least in advance of Dr. Goodhue’s
testimony, and (2) failing to, during the HRE Rule 104 hearing,
direct Dr. Wong to present his retrograde cocaine extrapolations
and explain his opinion that Powell was affected by the cocaine.
As set forth below, DeLeon’s claim lacks merit.
To succeed on his claim of ineffective assistance of
counsel, DeLeon must show that “there were specific errors or
omissions reflecting counsel’s lack of skill, judgment, or
diligence” and that “such errors or omissions resulted in either
the withdrawal or substantial impairment of a potentially
meritorious defense.” Wakisaka, 102 Hawai#i at 514, 78 P.3d at
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327. With respect to his first contention, DeLeon has not
demonstrated that trial counsel’s failure to seek a ruling on the
admission of the cocaine evidence prior to Dr. Goodhue’s
testimony constitutes ineffective assistance. DeLeon’s argument
appears to depend on the assumption that holding an HRE Rule 104
hearing in advance of Dr. Goodhue’s testimony would have resulted
in the admission of the cocaine evidence. However, DeLeon does
not point to any part of the record that supports such a result.
As stated above, the circuit court ruled before trial that it
would not allow any evidence about Powell’s cocaine level until
an HRE Rule 104 hearing, noting its concern that Dr. Wong stated
he did not have enough information to opine that Powell was under
the influence at the time of the shooting. After the HRE Rule
104 hearing, the circuit court excluded the cocaine evidence,
stating that Dr. Wong could not state with a reasonable degree of
scientific certainty that Powell was under the influence of
cocaine. Dr. Wong stated at the hearing that to make such a
determination, he needed more information, such as Powell’s
tolerance level, the amount of cocaine Powell ingested, and when
he ingested it. DeLeon has not alleged that Dr. Goodhue could
have provided such additional information. Cf. Richie, 88
Hawai#i at 39, 960 P.2d at 1247 (“Ineffective assistance of
counsel claims based on the failure to obtain witnesses must be
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supported by affidavits or sworn statements describing the
testimony of the proffered witnesses.”). Indeed, DeLeon has
neither offered any clear reasons nor pointed to any parts of the
record that indicate that the timing of the HRE Rule 104 hearing
was at all consequential. For these same reasons, to the extent
that DeLeon argues that holding the HRE Rule 104 hearing after
Dr. Goodhue testified prevented Dr. Goodhue from being cross-
examined about the cocaine findings in his autopsy report, this
argument fails.22
DeLeon’s argument regarding trial counsel’s “failure
. . . to direct Dr. Wong to present his retrograde cocaine
extrapolations and explain his opinion that Powell was impacted”
by cocaine during the HRE Rule 104 hearing also lacks merit. The
record shows that defense counsel brought Dr. Wong’s retrograde
cocaine extrapolations to the attention of the circuit court.
Defense counsel had presented Dr. Wong’s cocaine extrapolations
to the circuit court on September 3, 2010 through Dr. Wong’s
August 7, 2010 letter. Defense counsel also referenced the
extrapolation in his arguments during the September 22, 2010 HRE
Rule 104 hearing; indeed, defense counsel argued, inter alia,
22
Moreover, Dr. Goodhue was included in DeLeon’s witness list, and
if the circuit court had ruled that the cocaine evidence was admissible
following the September 22, 2010 HRE Rule 104 hearing, DeLeon arguably could
have called Dr. Goodhue to testify about any cocaine findings. In other
words, the timing of the HRE Rule 104 hearing alone did not preclude the
defense from questioning Dr. Goodhue about any cocaine evidence.
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that “there’s a sufficient basis based on [Dr. Wong’s]
credentials, based on the toxicology report, based on his
extrapolation[.]” Finally, in explaining its ruling, the circuit
court noted that it reviewed, inter alia, Dr. Wong’s “initial
letter[.]” The initial letter included Dr. Wong’s retrograde
extrapolation figures.
Accordingly, the ICA did not err in rejecting DeLeon’s
ineffective assistance of counsel claim.
2. The circuit court plainly erred in excluding Dr.
Wong’s testimony regarding Powell’s cocaine use
HRE Rule 702, which governs the admissibility of expert
testimony, provides:
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.
HRE Rule 702 does not require a specific degree of
certainty for the admission of scientific or other expert
testimony. This court has stated that “the touchstones of
admissibility for expert testimony under HRE Rule 702 are
relevance and reliability.” State v. Vliet, 95 Hawai#i 94, 106,
19 P.3d 42, 54 (2001). The relevance prong “primarily stems from
the precondition . . . that the evidence or testimony assist the
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trier of fact to understand the evidence or to determine a fact
in issue.” Id. (citation and quotation marks omitted). The
reliability prong “refers to evidentiary reliability-that is
trustworthiness.” Id. (citation and quotation marks omitted).
Under the reliability factor, admission of expert evidence “is
premised on an assumption that the expert’s opinion will have a
reliable basis in the knowledge and experience of his [or her]
discipline.” Id. (citation omitted) (brackets in original).
“Generally, the decision whether to admit expert testimony rests
in the discretion of the trial court.” State v. Metcalfe, 129
Hawai#i 206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).
“An abuse of discretion occurs when the decisionmaker ‘exceeds
the bounds of reason or disregards rules or principles of law or
practice to the substantial detriment of a party.’” Vliet, 95
Hawai#i at 108, 19 P.3d at 56 (quoting In re Water Use Permit
Applications, 94 Hawai#i 97, 183, 9 P.3d 409, 495 (2000)).
This court has stated, in civil cases, that medical
opinions must be based on reasonable medical probability. In
Miyamoto v. Lum, 104 Hawai#i 1, 15-16, 84 P.3d 509, 523-24
(2004), which involved, inter alia, a negligence action against a
chiropractor, this court stated that a “plaintiff may solicit
opinions from medical experts, but such medical opinions ‘must be
grounded upon reasonable medical probability as opposed to a mere
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possibility because possibilities are endless in the field of
medicine.’” The Miyamoto court further stated that
[T]he plaintiff’s medical expert may be cross-examined
as to “(1) the witness’ qualifications, (2) the
subject to which the witness’ expert testimony
relates, and (3) the matter upon which the witness’
opinion is based and the reasons for the witness’
opinion,” as well as “the underlying facts or data [of
the medical opinion].” After all, “[e]xpert testimony
is not conclusive and like any testimony, the jury may
accept or reject it.”
Id. at 16, 84 P.3d at 524 (internal citations omitted); see also
Craft v. Peebles, 78 Hawai#i 287, 305, 893 P.2d 138, 156 (1995)
(holding, in a negligence case, that it was proper to instruct
the jury to disregard any medical opinion “that was not based
upon reasonable medical probabilities” (emphasis added)).
Because the HRE are patterned on the Federal Rules of
Evidence, this court has looked to federal cases for guidance.
Vliet, 95 Hawai#i at 105, 105 n.20, 19 P.3d at 53, 53 n.20
(stating that “because the HRE are patterned on the [FRE],
construction of the federal counterparts of the HRE by the
federal courts is instructive” and that “federal case law on FRE
Rule 702 may be instructive regarding our construction of HRE
Rule 702”). At least some federal courts have expressly rejected
the proposition that a “reasonable degree of scientific
certainty” is required for the admission of expert testimony.
In United States v. Mornan, 413 F.3d 372, 376, 381 (3d
Cir. 2005), the Third Circuit Court of Appeals considered the
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defendant’s challenge to the admissibility of a handwriting
expert’s testimony where, when asked whether her opinions were
rendered to a “reasonable degree of scientific certainty,” the
expert answered, “I think they are.” The Third Circuit noted
that the expert had “explained her qualifications, her
methodology, the bases for her conclusions, and the degrees of
certainty with which she was able to reach her conclusions,” and
that
there is nothing magical about the phrase, “to a
reasonable degree of scientific certainty.” It is not
derived from the language of Rule 702 itself, and this
Court has been unable to find any authority to support
the position that questions regarding the expert’s
“degree of scientific certainty” categorically renders
expert testimony inadmissible.
Id. at 381 (internal citation omitted).
The court noted that “[h]andwriting experts often given
their opinions in terms of probabilities rather than
certainties.” Id. The court therefore found that the trial
court did not err in allowing the expert’s testimony and “to
allow the jury to determine what weight to give her ‘less-than-
certain’ conclusions.” Id.
Similarly, the Seventh Circuit Court of Appeals
rejected the argument that the trial court erroneously admitted
expert testimony that hair recovered from items used in a robbery
were “microscopically like” hair samples taken from the
defendants, which meant that the hairs found from the robbery
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“could have come” from the defendants. United States v. Cyphers,
553 F.2d 1064, 1071-73 (7th Cir. 1977). The defendants argued
that such testimony was inadmissible because, inter alia, it was
not based on a reasonable scientific certainty. Id. at 1072-73.
The Seventh Circuit rejected the defendants’ argument, stating
that “[t]here is no such requirement” that an expert’s opinion
testimony be expressed in terms of reasonable scientific
certainty in order to be admissible, and that “[w]e adhere to the
rule that an expert’s lack of absolute certainty goes to the
weight of his testimony, not to its admissibility.” Id.
At least some state courts appear to use the terms
“certainty” and “probability” interchangeably23 and favor
admissibility of expert testimony under either standard while
23
See, e.g., State v. Benner, 533 N.E.2d 701, 714 (Ohio 1988) (“In
this jurisdiction, an expert opinion is competent only if it is held to a
reasonable degree of scientific certainty. In this context, ‘reasonable
certainty’ means ‘probability.’” (citation omitted)); State v. Vernes, 130
P.3d 169, 173 (Mont. 2006) (“Expert testimony of the type proposed here may
not be admitted . . . unless it satisfies the ‘reasonable medical certainty’
test. This Court has defined the reasonable medical certainty test in terms
of probabilities as ‘more likely than not.’”); State v. Shepherd, 41 P.3d
1235, 1238 (Wash. App. 2002) (“Expert testimony should express ‘a reasonable
probability rather than mere conjecture or speculation.’ . . . [I]n the
criminal case, expert testimony on a person’s mental status is not admissible
unless the expert’s opinion is based on reasonable medical certainty, which is
the equivalent of more likely than not.” (citations and some internal
quotation marks omitted)).
Using “certainty” and “probability” interchangeably appears
consistent with Black’s Dictionary, which defines “reasonable medical
probability” as follows: “In proving the cause of an injury, a standard
requiring a showing that the injury was more likely than not caused by a
particular stimulus, based on the general consensus of recognized medical
thought. -– Also termed reasonable medical certainty.” Black’s Law
Dictionary 1380 (9th ed. 2009) (emphasis added). However, in the instant
case, it is clear that the circuit court did not use the terms “probability”
and “certainty” interchangeably.
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disfavoring the admission of evidence based on speculation or
possibility. See State v. Freeman, 538 A.2d 371, 384 (N.J.
Super. Ct. App. Div. 1988) (“Medical expert testimony must be
couched in terms of reasonable medical certainty or probability;
opinions as to possibility are inadmissible.” (citation and
quotation marks omitted)); Floray v. State, 720 A.2d 1132, 1136
(Del. 1998) (“Generally when an expert offers a medical opinion
it should be stated in terms of ‘a reasonable medical
probability’ or ‘a reasonable medical certainty.’”).
At least some other states have expressly rejected the
notion that expert testimony must be grounded in reasonable
scientific certainty to be admitted. For example, the Supreme
Court of Rhode Island has held that “scientific certainty” is not
required to admit expert testimony. State v. Gardner, 616 A.2d
1124, 1129 (R.I. 1992). In Gardner, the trial court precluded an
expert from testifying whether the defendant suffered from a
mental defect at the time of the offenses, expressing “concern
over the difficulty and potential unreliability of a retroactive
diagnosis.” 616 A.2d at 1126, 1129. The Supreme Court of Rhode
Island held that the trial court erred, stating that although
such a retroactive diagnosis “is an elusive undertaking” and that
“[i]n a meta-physical sense it may be impossible to know the
mental state of the defendant at the time of the criminal
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conduct[,] [a]bsolute scientific certainty . . . is not the
standard for the admissibility of expert testimony.” Id. at
1129. The court stated that the trial court should have
addressed such concerns by allowing the prosecutor to question
this testimony on cross-examination. Id.; see also State v.
Bertram, 591 A.2d 14, 24-25 (R.I. 1991) (holding that the trial
court did not err in admitting a document examiner’s testimony
about a signature when the examiner was not able to identify the
signature to a reasonable degree of scientific certainty, stating
that defense counsel had “ample opportunity” to cross-examine the
witness “on his conclusions and emphasize any infirmities
pertaining to his analysis” and that “[t]he jury could then
decide what weight, if any, should be accorded to the
testimony”).
In Robinson v. United States, 50 A.3d 508, 514 (D.C.
2012), the criminal defendants contended that they were
prejudiced by the trial court’s exclusion of expert testimony
regarding the effects that the complaining witness’s
phencyclidine (PCP) use may have had on the accuracy of her
perceptions. The trial court excluded expert testimony on
untimeliness grounds and because the expert was not able to “give
an opinion within a reasonable degree of scientific certainty
that 15 to 20 hours [after using PCP, the complaining witness’s]
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ability to see, perceive, recall, understand were significantly
affected by her use of PCP[.]” Id. at 518 (emphasis added) (some
brackets in original).
On appeal, the Court of Appeals stated that “[a] trial
court may exclude outright speculation, but short of speculation,
a particular expert witness’s degree of certainty in proffering
an opinion goes to the weight of the testimony, not its
admissibility, and ‘the weight to be given an expert opinion is
for the jury to decide.’” Id. at 523 (citation omitted). The
Court of Appeals viewed the trial court’s ruling as a “question
of the basic relevance of the proffered testimony and whether it
would assist the jury in understanding the facts in issue.” Id.
at 524. The Court of Appeals stated that the proffered expert
testimony “could have lent credence to [the defendants’]
contention that PCP could substantially hinder a witness’s
ability to perceive and remember events many hours later.” Id.
at 527. The Court of Appeals held, therefore, that excluding the
testimony because the expert could not specifically say how PCP
affected the complaining witness “misapprehended the purpose for
which the evidence was offered and ran afoul of our case law
indicating that expert testimony ‘should generally be admitted if
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it will assist the jury to understand the facts in issue.’”24
Id. at 527-28.
In light of the foregoing authorities, we conclude that
trial courts should not require a “reasonable degree of
scientific certainty” before admitting expert opinions but may
exclude expert testimony based on speculation or possibility.
Cf. Miyamoto, 104 Hawai#i at 15-16, 84 P.3d at 523-24.
The State appears to concede that a reasonable degree
of scientific certainty is not required for the admission of
scientific expert testimony. However, the State argues that the
circuit court did not plainly err in excluding Dr. Wong’s cocaine
testimony because the circuit court had sufficient basis for
finding that his testimony “lack[ed] sufficient reliability and
was going to cause confusion without considering Dr. Wong’s
ability to testify to a reasonable degree of scientific
certainty[.]” In other words, the State argues that although the
circuit court “commented that Dr. Wong could not opine that
Powell was under the influence of cocaine to a reasonable degree
of scientific certainty, that finding was superfluous to its
primary findings of lacking sufficient reliability and will cause
24
The Court of Appeals, however, held that the error in excluding
expert testimony was harmless because given the evidence in the case, the
exclusion of the expert testimony did not substantially influence the outcome
of the trial. Id. at 528.
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confusion.”
The State points to the following to support the
circuit court’s conclusion that Dr. Wong’s opinion about the
influence of both alcohol and cocaine would be speculative.
First, the circuit court stated that Dr. Wong’s initial letter
stated that he was not able to opine whether Powell was under the
influence of cocaine without additional information, and that
although he had since received some additional information, he
did not receive the specific information that he would need to
make that determination. Second, Dr. Wong noted that he viewed
the video of the shooting and stated, “I would not run up to him
face-to-face if I see a gun in his hand.” The State argued that
“[w]hat Dr. Wong would do personally in that situation was not
specialized knowledge requiring the testimony of an expert.”
Third, the State argues that Dr. Wong relied on a “McCance-Katz”
article in opining in his September 7, 2010 letter that Powell
was under the influence of cocaine, but admitted that he did not
read this article. Finally, the State notes that Dr. Wong
testified that there was no chart “correlating the range of
cocaine with behavior[,]” and that “[w]ithout such a correlation,
there was no foundation establishing a valid scientific technique
by which Dr. Wong arrived at his conclusion” that Powell was
under the influence of cocaine.
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The State’s argument lacks merit. First, the circuit
court’s ruling appears to rest largely on Dr. Wong being unable
to opine whether Powell was under the influence of cocaine to a
reasonable degree of scientific certainty. As stated above, the
circuit court stated the following in ruling on the admissibility
of Dr. Wong’s cocaine testimony:
The Court, in reviewing Dr. Wong’s initial
letter, the subsequent September letter, as well as
the testimony presented today, the Court thinks that
it does not have sufficient reliability to present the
issue before the jury and is going to cause confusion.
The Court does note that in the [August] letter he
indicated that he was not able to render an opinion
with respect to whether [] Powell was under the
influence of cocaine at the time of the shooting
without additional information. He received some
additional information between August and September,
not the specific information that he indicated that he
would need to do that, and he further indicated today
that he could not make the -- render an opinion to a
reasonable degree of scientific certainty that []
Powell was under the influence of cocaine at the time
of his -- at the time of the shooting and therefore to
allow him to opine about influence of both substances
and the effect on the behavior of the deceased would
be speculative. So Court precludes that use.
. . . .
[Dr. Wong] could not give an opinion in August
and then he did render that opinion in the September
7th letter, but the Court is not allowing that opinion
based on the testimony presented this morning. And he
did indicate this morning that he cannot render that
opinion to a reasonable degree of scientific
certainty.
(Emphases added).
Second, the deficiencies argued by the State would not
preclude the admission of Dr. Wong’s testimony. At the HRE Rule
104 hearing, Dr. Wong stated to a “reasonable medical scientific
probability” that the ingestion of cocaine in the proximity to
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Powell’s death had an impact on his behavior. While Dr. Wong did
not receive certain information such as the amount of cocaine
ingested and the time of ingestion, such information was only
required to render a more definitive opinion, i.e., to a
reasonable degree of medical certainty. For example, Dr. Wong
acknowledged that he never received information regarding the
amount of cocaine ingested and the time of ingestion, which would
be required to determine “more accurately” whether Powell was
under the influence of cocaine. Dr. Wong also stated that he
would need to know Powell’s tolerance and time of ingestion “[t]o
render with absolute certainty, medical certainty” whether he was
under the influence of both alcohol and cocaine. With regard to
the McCance-Katz article, it appears that although Dr. Wong cited
to that article in the September 7, 2010 letter, he also cited
and relied “primarily” on an “Eisenschmidt article,” which quoted
the McCance-Katz article.
In sum, the circuit court erred in precluding Dr.
Wong’s cocaine testimony. Although DeLeon did not argue on
appeal that the circuit court erred in excluding Dr. Wong’s
cocaine testimony,25 this court “may notice a plain error not
presented.” See Hawai#i Rules of Appellate Procedure (HRAP) Rule
25
As discussed supra, DeLeon vigorously sought to admit Dr. Wong’s
cocaine testimony at trial, and argued before the circuit court that there was
a sufficient basis for the admission of this evidence.
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28(b)(4)(D). Specifically, “an appellate court ‘may recognize
plain error when the error committed affects substantial rights
of the defendant.’” Metcalfe, 129 Hawai#i at 222, 297 P.3d at
1078 (quoting Staley, 91 Hawai#i at 282, 982 P.2d at 911). The
appellate court “will apply the plain error standard of review to
correct errors which seriously affect the fairness, integrity, or
public reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights.”
Nichols, 111 Hawai#i at 334, 141 P.3d at 981 (quoting Sawyer, 88
Hawai#i at 330, 966 P.2d at 642).
This court has stated that “[t]he due process guarantee
of the . . . Hawaii constitution [ ] serves to protect the right
of an accused in a criminal case to a fundamentally fair trial.”
State v. Kaulia, 128 Hawai#i 479, 487, 291 P.3d 377, 385 (2013)
(quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672
(1990)). “Central to the protections of due process is the right
to be accorded a meaningful opportunity to present a complete
defense.” Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at
672).
To the extent that DeLeon was precluded from
introducing Dr. Wong’s testimony with regard to the probable
effects of cocaine on Powell at the time of the shooting, DeLeon
was not able to present a complete defense. DeLeon’s self-
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defense argument relied largely on Powell’s actions immediately
before the shooting. Although Dr. Wong was able to present
testimony at trial as to Powell’s “high degree of alcohol
intoxication,” the jury was precluded from receiving information
regarding Powell’s cocaine use and the combined effects of
cocaine and alcohol. Indeed, during the HRE Rule 104 hearing,
Dr. Wong testified that the combined effects of cocaine and
alcohol “generally are additive, especially in the effects of
[sic] judgment.” Dr. Wong also stated during the Rule 104
hearing that “the amount of cocaine or the presence of cocaine
could render that level of intoxication perhaps a stage higher.”
The jury was precluded from hearing and considering such
evidence. Because DeLeon’s defense depended heavily on Powell’s
behavior immediately before DeLeon shot him, there is a
reasonable possibility that the exclusion of this testimony
affected the outcome of the trial. In sum, the exclusion of Dr.
Wong’s cocaine testimony compromised DeLeon’s ability to present
a complete defense.
Accordingly, the circuit court plainly erred in
precluding Dr. Wong’s cocaine testimony. Therefore, we vacate
DeLeon’s convictions for second-degree murder (Count II) and
Carrying or Use of a Firearm While Engaged in the Commission of a
Separate Felony (Count IV).
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B. The jury instruction on self-defense was not erroneous
DeLeon argues that the ICA gravely erred in concluding
that the circuit court’s self-defense instruction was not
prejudicially insufficient, erroneous, inconsistent, or
misleading. Specifically, DeLeon argues that the instruction was
erroneous because it did not include the language of HRS § 703-
304(3)26 advising that “a person
26
HRS § 703-304 (1993 & Supp. 2009) provides, in relevant part:
(1) Subject to the provisions of this section and of
section 703-308, the use of force upon or toward
another person is justifiable when the actor believes
that such force is immediately necessary for the
purpose of protecting himself against the use of
unlawful force by the other person on the present
occasion.
(2) The use of deadly force is justifiable under this
section if the actor believes that deadly force is
necessary to protect himself against death, serious
bodily injury, kidnapping, rape, or forcible sodomy.
(3) Except as otherwise provided in subsections (4)
and (5) of this section, a person employing
protective force may estimate the necessity thereof
under the circumstances as he believes them to be
when the force is used without retreating,
surrendering possession, doing any other act which he
has no legal duty to do, or abstaining from any
lawful action.
(4) The use of force is not justifiable under this
section:
(a) To resist an arrest which the actor knows is
being made by a law enforcement officer, although the
arrest is unlawful; or
(b) To resist force used by the occupier or possessor
of property or by another person on his behalf, where
the actor knows that the person using the force is
doing so under a claim of right to protect the
property . . .
(continued...)
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employing protective force may estimate the necessity thereof
under the circumstances as he believes them to be when the force
is used without retreating, surrendering possession, doing any
other act which he has no legal duty to do, or abstaining from
any lawful action[.]” Because DeLeon did not object to the jury
26
(...continued)
. . . .
(5) The use of deadly force is not justifiable under
this section if:
(a) The actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity
of using such force with complete safety by
retreating or by surrendering possession of a thing
to a person asserting a claim of right thereto or by
complying with a demand that he abstain from any
action which he has no duty to take, except that:
(i) The actor is not obliged to retreat from his
dwelling or place of work, unless he was the initial
aggressor or is assailed in his place of work by
another person whose place of work the actor knows it
to be; and
(ii) A public officer justified in using force in the
performance of his duties, or a person justified in
using force in his assistance or a person justified
in using force in making an arrest or preventing an
escape, is not obliged to desist from efforts to
perform his duty, effect the arrest, or prevent the
escape because of resistance or threatened resistance
by or on behalf of the person against whom the action
is directed.
(6) The justification afforded by this section
extends to the use of confinement as protective force
only if the actor takes all reasonable measures to
terminate the confinement as soon as he knows that he
safely can, unless the person confined has been
arrested on a charge of crime.
(Emphases added).
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instruction at trial, he must first demonstrate instructional
error by rebutting the “presumption that unobjected-to jury
instructions are correct.” Nichols, 111 Hawai#i at 337 n.6, 141
P.3d at 984 n.6. As set forth below, DeLeon fails to do so.
DeLeon’s claim lacks merit because the circuit court’s
jury instruction on self-defense was not erroneous. First, the
jury instruction that the circuit court provided was based on
then-current HAWJIC 7.01,27 which this court has upheld as “fully
consonant with the controlling statutory and case law of this
state.” State v. Augustin, 101 Hawai#i 127, 127, 63 P.3d 1097,
1097 (2002).
Moreover, the Augustin court noted that the relevant
jury instruction language in that case – which is virtually
identical to the instant case – incorporated a key portion of HRS
§ 703-304(3). Id. at 127-28, 63 P.3d at 1097-98. Specifically,
the Augustin court noted that the jury instruction stated in part
as follows:
The reasonableness of the defendant’s belief that the
use of such protective force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the defendant’s position under the
circumstances of which the defendant was aware or as
the defendant reasonably believed them to be.
Id. at 128, 63 P.3d at 1098 (emphasis in original).
The Augustin court stated that the foregoing language
27
This court amended HAWJIC 7.01 on April 4, 2011.
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derived from the statutory defenses of, inter alia, “use of force
in self-protection,” as codified in HRS § 703-304, including the
language in subsection (3): “[A] person employing protective
force may estimate the necessity thereof under the circumstances
as he believes them to be[.]” Id. at 128, 63 P.3d at 1098
(emphasis omitted). Put another way, the instruction conveys the
legal basis for using protective force, despite not referencing
HRS § 703-304(3) verbatim.28 See Metcalfe, 129 Hawai#i at 230,
297 P.3d at 1086 (“The trial court is not required to instruct
the jury in the exact words of the applicable statute but to
present the jury with an understandable instruction that aids the
jury in applying that law to the facts of the case.”) (citing
Sawyer, 88 Hawai#i at 330, 966 P.2d at 642). Accordingly, to the
extent that DeLeon argues that the self-defense instruction was
incomplete because it omitted the language in HRS § 703-304(3)
that “a person employing protective force may estimate the
necessity thereof under the circumstances as he believes them to
be[,]” DeLeon’s contention lacks merit.
Second, insofar as DeLeon argues that the self-defense
instruction should have included the remaining language in HRS
28
In the ICA, the State argued that HRS § 703-304(3) is inapplicable
in cases involving deadly force because it refers to “protective force” and
imposes no duty to retreat. However, HRS § 703-304(5) states that the use of
deadly force is not justifiable if “[t]he actor knows that he can avoid the
necessity of using such force with complete safety by retreating.” Where such
retreat is not possible, HRS § 703-304(3) applies.
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§ 703-304(3) regarding retreating and other acts, his argument
also fails. According to the commentary on subsection (3) and
the explanatory note on the Model Penal Code provision upon which
HRS § 703-304(3) is based, the subsection states the rule that an
actor need not retreat or take other evasive action before
estimating the necessity for the self-protective force. See
Model Penal Code § 3.04 cmt. (2001); HRS § 703-304 cmt. (1993).
Here, the given instruction guided the jury in determining
whether the use of protective force was immediately necessary.
After all, it would be apparent to the jury that an actor who may
be justified in using immediate self-protective force would also
be justified in not retreating, surrendering possession, or doing
any other act which the actor has no legal duty to do. Moreover,
the given instruction informed the jury that deadly force is not
justifiable if the defendant “provoked the use of force against
himself in the same encounter” or “knows that he can avoid the
necessity of using such force with complete safety by
retreating.” Based on this instruction, it would be apparent to
the jury that a defendant does not have to retreat if he or she
knows that retreat cannot be done with complete safety.
Accordingly, the instruction is sufficient given that it
communicates these points despite not including the exact
language of subsection (3).
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Third, to the extent that DeLeon relies on this court’s
April 4, 2011 amendments to HAWJIC 7.01, such reliance is
misplaced. In his application, DeLeon argues that “the self-
defense instructions given were NOT correct for the very reason
that they were amended: to apprise the jury that a defendant was
permitted to estimate the necessity for the use of force
. . . under the circumstances as he reasonably believed them to
be without retreating or doing any act which he has no legal duty
to do.” Insofar as DeLeon is arguing that the court’s jury
instructions are erroneous because they were revised,29 this
29
The amended HAWJIC 7.01A instruction with regard to “‘Deadly
Force’ Used” provides, in relevant part:
The use of deadly force upon or toward another
person is justified if the defendant reasonably
believes that deadly force is immediately necessary to
protect himself/herself on the present occasion
against [death] [serious bodily injury] . . . . The
reasonableness of the defendant’s belief that the use
of protective deadly force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the defendant's position under the
circumstances of which the defendant was aware or as
the defendant reasonably believed them to be when the
deadly force was used.
[The use of deadly force is not justifiable if
the defendant, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself/herself in the same encounter].
[The use of deadly force is not justifiable if
the defendant knows that he/she can avoid the
necessity of using such force with complete safety by
retreating, but the defendant is not required to
retreat from his/her own dwelling unless he/she was
the initial aggressor. . . .]
The “‘Deadly Force’ Not Used” section of the amended
HAWJIC 7.01 provides, in relevant part:
(continued...)
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argument lacks merit given that the language of the jury
instruction has been upheld as “fully consonant with the
controlling statutory and case law of this state.”30 Augustin,
101 Hawai#i at 127, 63 P.3d at 1097. In any event, as stated,
the given jury instructions sufficiently communicated the
applicable law.
29
(...continued)
The use of force upon or toward another person
is justified if the defendant reasonably believes that
force is immediately necessary to protect
himself/herself on the present occasion against the
use of unlawful force by the other person. The
reasonableness of the defendant’s belief that the use
of protective force was immediately necessary shall be
determined from the viewpoint of a reasonable person
in the defendant’s position under the circumstances of
which the defendant was aware or as the defendant
reasonably believed them to be. The defendant may
estimate the necessity for the use of force under the
circumstances as he/she reasonably believes them to be
when the force is used, without [retreating]
[surrendering possession] [doing any other act that
he/she has no legal duty to do] [abstaining from any
lawful action].
(Emphasis added).
30
While DeLeon has argued that “[p]romulgation of the newly-drafted
HAWJIC self-defense instructions, together with the repeal of HAWJIC 7.01,
support [his] position” that the circuit court’s instructions were erroneous,
DeLeon also asserted that the amended deadly force HAWJIC instruction is
erroneous because it still omits the HRS § 703-304(3) language. However, the
amendment does not appear to reflect a change in the substantive law regarding
self-defense, but instead appears to provide the jury with more specific
instructions, depending on whether “force” or “deadly force” is at issue.
Metcalfe, 129 Hawai#i at 231 n.19, 297 P.3d at 1087 n.19. In any event, for
the reasons stated above, neither the previous nor current HAWJIC language
regarding self-defense when deadly force is used is erroneous. Nevertheless,
we agree with the dissent that, on remand, the circuit court may include in
its self-defense instruction the language of HAWJIC 7.01B stating that a
defendant may estimate the necessity of using force. See dissenting opinion
at 13-14. Moreover, for the purposes of clarity and completeness, we suggest
that the Standing Committee on Pattern Criminal Jury Instructions consider
whether it would be appropriate to include the language in both 7.01A and
7.01B.
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In sum, the self-defense jury instruction given in the
instant case was not erroneous.
IV. Conclusion
For the reasons set forth in this opinion, we vacate in
part and affirm in part the ICA’s judgment, and vacate the
circuit court’s judgment of conviction and sentence on Counts II
and IV, and remand the case to the circuit court for further
proceedings consistent with this opinion.
Phyllis J. Hironaka /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
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