State v. Metcalfe.Â

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-30518
19-MAR-2013
09:25 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KEVIN C. METCALFE, Petitioner/Defendant-Appellant.
SCWC-30518
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30518; CR. NO. 09-1-0215)
MARCH 19, 2013
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.;
WITH ACOBA, J., DISSENTING SEPARATELY, WITH WHOM
CIRCUIT JUDGE SAKAMOTO, ASSIGNED BY REASON OF VACANCY, JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
On the night of May 6, 2009, the Hawai#i County Police
Department received a 911 call from Defendant Kevin C. Metcalfe.
Metcalfe stated that he had just fired a 12-gauge shotgun at a
burglar on his property:
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
I told ‘em, ‘Get down.’ Then he says, ‘Ah, [] you.’
He said somethin’. I don’t know, and so I shot a
round on the ground. I shot one, you know, away from
him.
. . . .
He – he just kinda like came toward me so I shot
again, and then he, I don’t know, blasted past me, and
I [] shot again.
When a police officer arrived at Metcalfe’s house, he
discovered the body of Larry Kuahuia on a nearby road. There
were no visible injuries to the front of Kuahuia’s body, but
numerous pellet wounds to the back. Metcalfe was subsequently
charged in the Circuit Court of the Third Circuit with Murder in
the Second Degree and Carrying or Use of Firearm in the
Commission of a Separate Felony.
At trial, the State of Hawai#i introduced a transcript
of the 911 call, as well as testimony from a number of witnesses.
Those witnesses included a forensic pathologist, Dr. Anthony
Manoukian, who testified that in his opinion, Kuahuia died from a
shotgun wound to the back fired from a distance of approximately
60 feet. They also included Detective Walter Ah Mow, a firearms
instructor who testified about the results of tests he had
conducted using Metcalfe’s shotgun to determine how widely the
pellets from the gun dispersed at various distances. Although
Manoukian and Ah Mow testified about their training and expertise
in, respectively, forensic pathology and firearms, the circuit
court did not find on the record that they were qualified to
testify as expert witnesses. As discussed below, it appears that
the court had adopted a procedure under which it did not make
-2-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
findings in front of the jury regarding a witness’s qualification
to provide expert opinion testimony.
Metcalfe’s defense counsel did not object to the
testimony of the witnesses. Instead, he cross-examined them and
elicited testimony that –- as he would later contend in his
closing argument -– suggested that Kuahuia could have been shot
at a much closer range.
Metcalfe testified in his own defense. He testified
that he shot at Kuahuia in self-defense after Kuahuia had first
“crab-walk[ed]” toward him, and then charged at him with an
object in his hand. The jury was given instructions regarding,
inter alia, self-defense and the opinion testimony elicited at
trial. In closing argument, the State asserted that Metcalfe
intentionally shot Kuahuia in the back from a distance of at
least forty feet after Kuahuia ran past him, and did not act in
self-defense. Metcalfe’s counsel, however, argued that the
evidence demonstrated that Kuahuia was shot from a close distance
as he approached Metcalfe, and that Kuahuia was hit in the back
because he turned around at the last moment after Metcalfe fired
the first shot into the ground.
The jury found Metcalfe guilty of Manslaughter, in
violation of Hawai#i Revised Statutes (HRS) § 707-702, and
Carrying or Use of Firearm in the Commission of a Separate
Felony, in violation of HRS § 134-21(a). The circuit court
entered its Judgment of Conviction and Sentence on March 25,
-3-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
2010.1 On appeal, Metcalfe argued, inter alia, that the circuit
court erred in failing to properly qualify Dr. Manoukian and
Detective Ah Mow as expert witnesses. In its March 30, 2012
memorandum opinion, the Intermediate Court of Appeals affirmed
Metcalfe’s convictions. State v. Metcalfe, No. 30518, 2012 WL
1071503 (Haw. App. Mar. 30, 2012).
In his June 23, 2012 application for a writ of
certiorari, Metcalfe raises the following questions:
I. Whether the ICA gravely erred in finding no
error where the trial court denied [Metcalfe’s]
motion to dismiss without reviewing the
transcripts from the grand jury hearing that
resulted in a “no bill” and the subsequent
preliminary hearing in which probable cause was
found;
II. Whether the ICA gravely erred in determining
that the trial court did not plainly err by (1)
permitting the testimonies of Dr. Manoukian and
Det. Ah Mow where the State failed to qualify
them as experts in the field of ballistics in
accordance with [Hawai#i Rules of Evidence
(HRE)] Rule 702 and (2) substituting the
standard expert witness instruction with an
“opinion testimony” instruction;
III. Whether the ICA gravely erred in determining
that the flawed instruction on self-defense was
not prejudicially insufficient, erroneous,
inconsistent, or misleading;
IV. Whether the ICA gravely erred in finding that
the trial court was not required to instruct the
jury on the defense of property where there was
substantial evidence to support the defense and
the failure to so instruct contributed to
[Metcalfe’s] conviction;
V. Whether the ICA gravely erred in finding no
plain error where the trial court failed to
provide a cautionary instruction regarding the
prejudicial emphasis on [Metcalfe’s]
possession/use of medical marijuana; and
VI. Whether the ICA gravely erred in rejecting
1
The Honorable Ronald Ibarra presided.
-4-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
[Metcalfe’s] claims of ineffective assistance of
counsel based upon numerous errors and omissions
that impaired his defense.
As set forth below, we hold that the circuit court did
not abuse its discretion in denying Metcalfe’s motion to dismiss
the amended complaint. We also hold that the circuit court did
not plainly err in allowing the testimony of Dr. Manoukian and
Detective Ah Mow and substituting the words “opinion testimony”
for the word “expert” in the jury instruction. In addition, the
circuit court did not plainly err in instructing the jury on
self-defense, in failing to sua sponte instruct the jury on
defense of property, or in failing to provide a cautionary
instruction on the use of medical marijuana. Finally, we hold
that Metcalfe failed to establish that his trial counsel was
ineffective.
Accordingly, we affirm the ICA’s April 24, 2012
judgment on appeal.
I. Background
The following factual background is taken from the
record on appeal.
A. Complaint
On June 8, 2009, the State filed a complaint against
Metcalfe, charging him with Murder in the Second Degree in
-5-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
violation of HRS § 707-701.5,2 and Carrying or Use of Firearm in
the Commission of a Separate Felony, in violation of HRS § 134-
21.3 On July 9, 2009, the State filed a nearly identical amended
complaint listing the same charges. The amended complaint was
dated June 25, 2009.
On December 7, 2009, Metcalfe filed a motion to dismiss
the amended complaint based on double jeopardy and collateral
estoppel, arguing that the State was barred from filing an
amended complaint seeking a probable cause determination from a
judge when a grand jury returned a “no bill” on the initial
complaint. Metcalfe did not include with his motion the
transcripts from the grand jury or preliminary hearing
2
HRS § 707-701.5(1) (1993) provides in relevant part, “Except as
provided in section 707-701, a person commits the offense of murder in the
second degree if the person intentionally or knowingly causes the death of
another person.” Metcalfe was ultimately convicted of Manslaughter, pursuant
to HRS § 707-702 (Supp. 2009), which provides in relevant part, “(1) A person
commits the offense of manslaughter if: (a) The person recklessly causes the
death of another person; or (b) The person intentionally causes another person
to commit suicide.”
3
HRS § 134-21 (Supp. 2009) 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, whether the firearm was loaded or
not, and whether operable or not; . . .
. . . .
(b) A conviction and sentence under this section shall
be in addition to and not in lieu of any conviction
and sentence for the separate felony; provided that
the sentence imposed under this section may run
concurrently or consecutively with the sentence for
the separate felony.
(c) Any person violating this section shall be guilty
of a class A felony.
-6-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
proceedings. Instead, in a Declaration of Counsel attached to
Metcalfe’s motion to dismiss, defense counsel stated that they
“reviewed the case file, court records, and transcripts” and
requested that the court “take judicial notice of the said record
and transcripts[,]” which counsel believed would show:
a) Prosecutor Frederick Giannini asked a duly
constituted grand jury with a proper quorum on
June 8, 2009 to return a true bill of indictment
against [] Metcalfe on two counts against []
Metcalfe for the offenses of Murder in the
Second Degree . . . as amended in count one of
said proposed indictment, and in count two of
said proposed indictment asked the grand jury to
return an indictment for the Carrying or Use of
Firearm in the Commission of a Separate
Felony[.]
b) On June 8, 2009, the properly constituted grand
jury returned no bills on both proposed counts
failing to find probable cause and that the
state had not offered sufficient evidence to
lead a person of ordinary caution or prudence to
believe and conscientiously entertain a strong
suspicion that [Metcalfe] had committed the
proposed charges.
c) On June 25, 2009, the State filed an amended
complaint charging the same offenses for which
the grand jury had returned a no bill and on
June 26, 2009 after a preliminary hearing the
[H]onorable Joseph Florendo found probable cause
existed for the said complaint and that the
[S]tate had presented sufficient evidence to
convince a person of ordinary caution or
prudence to believe and conscientiously
entertain a strong suspicion that the defendant
did commit the offense of Murder in the Second
Degree in Count [1], as well as Carrying or
Using a Firearm in the Commission of a Separate
Felony in [] Count [2]. This decision by the
[H]onorable Judge Florendo was made when the
prosecutor omitted significant evidence that the
grand jury heard, some of which was exculpatory
from this preliminary examination, and thus he
did not have the benefit of hearing the entire
circumstances of the offense.
d) Witnesses were called by the State . . . in both
the grand jury proceedings and in the
preliminary examination.
. . . .
-7-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
In a memorandum and supplemental memorandum in
opposition to Metcalfe’s motion to dismiss, the State argued,
inter alia, that jeopardy did not attach at the grand jury phase
and thus, Metcalfe’s motion should be denied. At a January 28,
2010 hearing on Metcalfe’s motion, the State asserted that
defense counsel’s argument that the filing of the amended
complaint violated double jeopardy and collateral estoppel was
without merit. The State asserted that this court has not
addressed this issue, but that other jurisdictions have “usually
allowed” recharging a defendant unless specifically prohibited by
statute, which Hawaii’s statute does not proscribe. In response,
defense counsel argued,
. . . [HRS § 806-84] contemplates I think a situation
where the -- the prosecution if they don’t like, you
know, what the judge does at a preliminary
examination, then they’re free to go back and -- and
seek an indictment from a grand jury.
But I don’t think the legislature ever
contemplated a situation where a grand jury declined
to indict somebody, and then they go back. You know
this, [HRS § 806-8] speaks of -– of having an
indictment . . . after, uh, a judge has had a
preliminary examination that –- that was adverse to
the State.
But, you know, this case, Your Honor, there was
considerably more evidence brought to the grand jury.
They brought all the evidence including the 911 tape.
4
HRS § 806-8 (1993) provides:
In criminal cases brought in the first instance in a
court of record, but in which the accused may be held
to answer without an indictment by a grand jury, the
legal prosecutor may arraign and prosecute the accused
upon an information, complaint, or an indictment at
the prosecutor’s election; and in all criminal cases
brought in the first instance in a court of record the
prosecutor may arraign and prosecute the accused by
information, complaint, or indictment, as the case may
be, whether there has been a previous examination, or
commitment for trial by a judge, or not.
-8-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
And the grand jury, uh, apparently wanted to
indict this defendant for manslaughter, and, uh, for
whatever reason that did not happen, but they declined
very vehemently to -– to indict him for –- for second
degree murder.
The circuit court and defense counsel had the following
discussion:
Court: [W]e don’t know what the State, as you
know . . . puts on in the grand jury,
whether they had everything or not, but,
uh, certainly, uh, I disagree with, uh,
your –- your argument that jeopardy
attached at the grand jury[.]
[Defense]: Oh, no. I [] agree it did not
attach . . . at the grand jury.
Court: But even expanding it further cannot the
State even with, uh, they refuse, uh, the
first time to go back to the same grand
jury or a different grand jury and produce
different evidence?
[Defense]: Yes, Your Honor. I believe that they
can . . . but I’m just . . . wondering
what [] is the point of a grand jury? Why
do we ever have a grand jury in Hawai#i if
the State -- if they don’t like what the
grand jury can do then . . . it goes to a
judge. It seems to me to disrespect the
grand jury system.
. . . .
Court: [T]his is an interesting issue. You know,
you got three ways the prosecutor can seek
or even – not even three ways. And at
what point . . . could the prosecutor go
back to the grand jury, the same one or a
different grand jury and say[], “I’ll keep
trying until I get this person indicted
for the charge at which” --
[Defense]: I think so if they –- if they bring more
evidence, but to me, Judge, it just seems
like it’s a –- a slap in the face or we’re
thumbing our nose at our grand jurors who
drove all this way to, you know, decline -
-
Court: Well, I’m not going into [] what the grand
jury --
[Defense]: Right.
Court: –- members felt, but I’m –- I’m just
saying does the process allow that?
[Defense]: I . . . guess it does, Judge.
-9-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The circuit court orally denied the motion to dismiss,
stating that jeopardy did not attach at the grand jury phase.5
The circuit court issued an order, which stated, “The [c]ourt,
having reviewed the records and files in this case and having
heard the arguments of counsels, finds that there is no
constitutional or statutory impediment prohibiting the State from
proceeding by way of a preliminary hearing when a grand jury has
filed a No Bill.”
B. Trial
1. State’s Case-in-Chief
The State called Rocky Jordan, a friend of Metcalfe’s
who was present on the night of the incident in this case, to
testify. Jordan lived in a separate dwelling on Metcalfe’s
property. Jordan stated that he helped Metcalfe install a
surveillance system on Metcalfe’s property that included four
video cameras. Each camera pointed at separate buildings on
Metcalfe’s property: one toward the garage, one toward the
greenhouse, one toward the chicken coop, and one toward the
inside of the greenhouse. On three occasions prior to the
incident at issue in this case, Jordan and/or Metcalfe reported
to police that someone broke into Metcalfe’s garage, and in total
stole “several thousand dollars” worth of tools and building
supplies.
5
The circuit court did not file an order denying the motion until
after trial concluded.
-10-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Jordan testified that on May 6, 2009, he went to bed at
9:00 p.m. and received a phone call at about 10:30 p.m. from
Metcalfe informing him to “[c]all 911 and come over here” because
someone was trying to break into the greenhouse. Jordan ran
outside and saw a man “coming at” Metcalfe, and Metcalfe yelling
at the man to get down on the ground: “Come on, man. Get on the
fucking ground.” Jordan thought the man would “bowl Metacalf[e]
over.” Jordan then heard two shots. Jordan ran toward Metcalfe,
who told him to, “Call 911. Tell ‘em he’s running down the
driveway.” Three to four minutes after the second shot, Jordan
heard someone say, “Help. Somebody help me[.]” Jordan also
testified that he, Metcalfe, and Metcalfe’s wife, Sharon Meech,
had medical marijuana permits. He stated that although he had
smoked a “small amount” of medical marijuana on the day of the
incident, the medical marijuana did not affect his memory of the
events.
Hawai#i County Police Department (HCPD) Dispatcher
Kevin Lee testified that he was transferred a call from a 911
emergency dispatcher on the night of May 6, 2009. He
acknowledged that State’s Exhibit 1-A was a true and accurate
recording of the call. Without objection, State’s Exhibit 1-A
was received into evidence and published to the jury. In the
recording, the following conversation occurred:
[Lee:] Hi, this is Kevin.
[Emergency dispatcher:] Kevin, um --
[Lee:] Yeah
-11-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
[Emergency Dispatcher:] –- (Indiscernible) back. Shot
at a burglar. He shot at a
burglar --
[Lee:] Yeah. I got ‘em. Got ‘em. Thank you.
[Emergency Dispatcher:] Okay.
. . . .
[Lee:] Hi what’s your name?
[Metcalfe:] Kevin Metcalfe.
[Lee:] Kevin Metcalfe?
[Metcalfe:] Yes.
[Lee:] Okay, and do you know where the person
went that you shot?
[Metcalfe:] No. He ran down the driveway.
[Lee:] Did you -- did you hit him, Kevin?
[Metcalfe:] Uh, I’m sure I did. Oh.
[Lee:] It was a break-in?
[Metcalfe:] It’s just – it’s just birdshot, though.
He should be gone – gone. But I hope so.
. . . .
[Lee:] Kevin, what kind of shotgun did you use?
[Metcalfe:] Just a 12-gauge. Oh, dear God.
[Lee:] Did [] you see what he looked like, what
he was wearing?
[Metcalfe:] Uh, no shirt. A Hawaiian guy. Fuck. Oh,
man.
. . . .
[Lee:] Okay. What happened?
[Metcalfe:] I told ‘em, ‘Get down.’ Then he says,
‘Ah, fuck you.’ He said somethin’. I
don’t know, and so I shot a round on the
ground. I shot one, you know, away from
him.
[Lee:] All right.
[Metcalfe:] He -- he just kinda like came toward me so
I shot again, and then he, I don’t know,
blasted past me, and I fuckin’ shot again.
Now he’s probably down there fuckin’
gearing up to come back.
. . . .
[Lee:] Okay. And where did you –- when you --
when you said you had him on the ground
where was it? Right in front of the
property?
[Metcalfe:] He never went on the ground. He just, you
know, like I said he come out from behind
the chicken coop. I don’t know. Behind
the chicken coop, and that was, uh, went
past the chicken coop. Told him, you
know, when I come out my garage door I
told him, I said, ‘Get on the fucking
ground. I know you’re there.’ And then I
went out to the chicken coop. When he
come out from [] behind the chicken coop I
said, ‘Lay down right now. I’ve got a
gun.’ Sure he said, ‘Fuck you,’ I don’t
know. He said something or another, and I
just pulled the gun away and shot, you
know, away from him. Told him, ‘Get
down,’ and that’s when he bolted towards
-12-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
me, and I just kind of, I don’t know,
pulled the trigger. And then he kept
going so I pulled the trigger again.
[Lee:] Gotcha. So you fired two shots at ‘em?
[Metcalfe:] Yes, sir.
[Lee:] Total? Well, in the -- in the vicinity?
[Metcalfe:] Uh-huh. I don’t know.
[Lee:] Okay.
[Metcalfe:] I -– sir, I don’t know.
HCPD Officer John Smith, Jr., testified that he was
dispatched to Metcalfe’s residence at approximately 10:30 p.m.,
where he was met by Metcalfe and Jordan. Metcalfe told Officer
Smith that he had shot a burglar: “He said, uh, he saw this, uh,
guy, a male party, trying to break into a -- a greenhouse.”
Metcalfe stated that he was in a “studio” building on the
premises trying to figure out how to work surveillance equipment
that he recently installed, when he observed a man trying to
break into the greenhouse. Metcalfe exited the studio and saw
the silhouette of the man running behind other structures on the
property. Metcalfe then ran to confront the man. Metcalfe
yelled at the man to “stop and lay on the ground.” The man did
not lie down as instructed, so Metcalfe discharged a shot on the
ground, “as a warning shot.” The man continued to run toward
Metcalfe. Metcalfe shot at the man, and stated that he believed
that he hit the man in the “front, uh, lower thigh area.” The
man then ran past Metcalfe down the driveway. Metcalfe could not
remember the exact number of times he fired the shotgun, but he
did remember shooting it twice. Officer Smith found three
-13-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
shotgun shells at the scene. Officer Smith recovered a 12-gauge
shotgun that Metcalfe said he used to shoot the man.
Officer Smith then searched for the man because
Metcalfe had heard someone crying out for help prior to the
arrival of the officers. Officer Smith walked down a road and
discovered Kuahuia on the road lying face up. Metcalfe was
following him, and when Metcalfe saw Kuahuia, he stated, “Oh
Jesus, that’s him.” Officer Smith stated that he checked for a
pulse and breathing, but Kuahuia’s body felt cold. There were no
visible injuries to Kuahuia’s body as it lay face up. When
medical personnel moved Kuahuia’s body, Officer Smith observed
“[a] buncha holes in his back. A lotta [sic] holes in his back.”
On cross-examination, Officer Smith stated that
Metcalfe indicated that the man may have been accompanied by
other individuals. Metcalfe also appeared “extremely distraught”
when he saw Kuahuia’s body. Officer Smith also testified
regarding the mechanism of a shotgun, the differences between and
function of different types of shotgun shells, and his prior
experiences hunting and shooting with a shotgun with the same
type of ammunition used in this case. He stated that when a
shotgun is fired, the pellets in the shell stay “tight together
before they start spreading out as they go farther away from the
shotgun.” Officer Smith stated that the spread pattern from
number 6 birdshot ammunition, which was the type of ammunition
used on the night of the incident and recovered at the scene,
-14-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
fired at 60 feet would be “more spread out than at 30 feet.”
Officer Smith stated that Kuahuia’s body was discovered
approximately four hundred yards away from the greenhouse.
On redirect examination, Officer Smith was questioned
about Metcalfe’s “condition” on the night of the incident.
Officer Smith testified that he was a drug recognition expert,
that he could smell marijuana on the night of the incident, and
that he could not tell if the marijuana smell was coming from
Metcalfe. Officer Smith also acknowledged that he was shot with
number 6 birdshot when he was a child.
On recross examination, Officer Smith stated that in
the childhood shooting, he was shot in his right back shoulder
from a distance of approximately sixty feet. Officer Smith
stated that he did not go to the hospital or to see a doctor
after he was shot, and said that none of the pellets penetrated
his skin. Upon further examination, Officer Smith testified that
he was wearing a hunter’s vest when he got shot.
HCPD Officer Henry Ivy was dispatched to Metcalfe’s
residence at 10:30 p.m. On cross-examination, Officer Ivy stated
that Metcalfe appeared to be in “distress,” distraught, and “very
scared.”
HCPD Detective Sean Smith testified that he was
assigned to investigate the incident. Detective Smith
interviewed Jordan, who recalled that, from a distance of thirty
feet, Jordan could see a man “running towards” Metcalfe.
-15-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Dr. Anthony Manoukian testified that he was a
pathologist, laboratory director at Maui Memorial Medical Center,
and the coroner’s physician for Maui County, Hawai#i County, and
the County of Kauai. Dr. Manoukian testified that he was a
licensed physician and surgeon in Hawai#i, specializing in
pathology and forensic pathology. He stated that he was educated
at the University of Hawai#i at Manoa, is an assistant clinical
professor at the University, and is a member of the College of
American Pathologists and the American Society for Clinical
Pathology. Dr. Manoukian is certified in anatomic, clinical, and
forensic pathology from the American Board of Pathology. He has
performed over 3,000 autopsies, of which over 100 were performed
on bodies where the cause of death was the result of an injury
caused by a firearm.
Dr. Manoukian stated that he received training with
regard to firearms:
Well, there was the -- as part of the, um,
forensic training in Baltimore with the Office of the
Chief Medical Examiner we had autopsy experience in
deaths due to firearms.
In addition we, uh, attended classes at the
Maryland State Crime Lab and also, uh, at the, uh, FBI
Academy in Quantico, Virginia.
. . . .
Well, the training involved recovery of
projectiles and, um, basically how to conduct an
autopsy in which, uh, the death was due to firearms.
And we had some specialized training in, uh,
ballistics with the Maryland State Crime Lab, and we
had the opportunity to fire different, uh, types of,
uh, firearms on a shooting range.
Dr. Manoukian performed an autopsy on Kuahuia and
determined “within the bounds of reasonable medical certainty”
-16-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that Kuahuia died due to “a shotgun wound to the back.” Dr.
Manoukian stated that the “linear grazing wounds” present on both
sides of Kuahuia’s body indicated the “trajectory of the shotgun
wound and also the range of fire of the shotgun wound.”
Specifically, the linear grazing wounds helped Dr. Manoukian
determine that the trajectory of the shotgun wound was “back to
front[,]” i.e., “it indicate[d] the position of the decedent’s
body to the barrel of the shotgun at the time the shotgun was
discharged.”
In addition, Dr. Manoukian testified that there was “no
evidence of close-range firing” because there was no “large
central defect,” there was no gunpowder on the skin of Kuahuia’s
back, and there was no evidence of a “wad injury,” i.e., “no
imprint of the wad [of the shotgun shell] on [Kuahuia’s] skin[.]”
Dr. Manoukian stated, “in the textbooks of forensic pathology for
a shotgun using birdshot there’s a general rule of thumb that the
diameter of the pellet injury times three equals in a ballpark
figure the distance in feet between the decedent and the barrel
of the shotgun.” Inasmuch as the “spread” on Kuahuia’s back was
21.5 inches, Dr. Manoukian estimated that the distance from the
shotgun barrel to Kuahuia’s body at the time of firing was
approximately 60 feet. Dr. Manoukian stated that there were
approximately 150 to 200 pellets that struck Kuahuia, of which
approximately 20 to 40 entered Kuahuia’s chest and abdomen,
injuring Kuahuia’s two lungs, his two kidneys, and his spleen.
-17-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Dr. Manoukian testified that there were no gunshot
wounds to the front of Kuahuia’s body and that Kuahuia had “some
scraping of the skin” on the front of his body, which he
attributed to Kuahuia collapsing to the ground after being shot.
Dr. Manoukian further stated that this was a “distant[] shotgun
wound” because there was “an absence of a central large defect
where pellets have entered.” Defense counsel did not object at
any time during Dr. Manoukian’s testimony.
Herbert Hamersma, an HCPD evidence custodian, testified
that he received, stored, and tracked various physical items that
were recovered from the scene from different detectives,
including Kuahuia’s clothes, a shotgun, three used shotgun
shells, and a hacksaw.6
HCPD Evidence Specialist Lauren Wong testified that she
photographed Kuahuia’s body at the scene. Specialist Wong stated
that she also created a diagram of the scene using a “Total
Station” device to measure the distances between “relevant
objects” at the scene. She stated, “The Total Station sends out
a signal, and it is reflected off of the target . . . and the
information is recorded in terms of angle and distance. . . .
The Total Station is connected to a wireless, uh, hand-held
6
A hacksaw was recovered at the scene of the incident. Metcalfe
testified that he was “scared to death” because Kuahuia charged at him while
holding “the same thing that he was trying to cut through the greenhouse with
or a weapon of some sort” in his right hand. During closing arguments,
defense counsel argued that Kuahuia was holding State’s Exhibit 17, which is
the hacksaw recovered at the scene, when he charged at Metcalfe.
-18-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
computer which records the electronic data for us that may not be
altered once it’s put in there.” Specialist Wong testified that,
using the Total Station, she measured the distance between a
hacksaw and the closest shell casing as being approximately 47.8
feet. The next closest shell casing was 51.1 feet from the
hacksaw. The furthest casing was 66.3 feet from the hacksaw.
On cross-examination, Specialist Wong stated that she
did not know if the Total Station device was calibrated. On re-
direct, Specialist Wong testified that the device “appear[ed] to
be working as it should” and there was no indication that the
data she received was wrong. On re-cross, Specialist Wong
acknowledged that she never took measurements through any other
means to verify the Total Station device’s accuracy.
HCPD Detective Myra Iwamoto testified that she followed
Kuahuia’s body to the morgue and recovered the clothing from the
body. On cross-examination, defense counsel asked Detective
Iwamoto whether she knew if Dr. Manoukian performed a gunshot
residue test on Kuahuia’s body. Detective Iwamoto stated that
she was not sure if Dr. Manoukian conducted a gunshot residue
test. Detective Iwamoto acknowledged that as far as she knew,
someone could have gunshot residue on their person if they are in
close proximity to a gun that is being discharged.
HCPD Detective Walter Ah Mow testified that he was
certified as the firearms instructor for the HCPD. Detective Ah
Mow was trained by the FBI in 2001 and 2004, and certified by the
-19-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
National Rifle Association in 2005. He received FBI training on
“handl[ing],” “basic field stripping,” and “maintain[ing] and
clean[ing]” shotguns. On May 6, 2009, Detective Ah Mow was
initially assigned to “be in charge” at the scene. Detective Ah
Mow stated that a Browning semi-automatic 12-gauge shotgun was
recovered during the investigation. On May 11, 2009, Detective
Ah Mow test fired the recovered shotgun to conduct pattern
testing, specifically, “to determine the distance of, uh, the
shotgun as the pellets go through the barrel and make a spread
pattern onto a target.” The pattern testing involved firing the
shotgun from various distances from a target to ascertain the
“spread” of pellets on the target. Detective Ah Mow purchased
and fired ammunition identical to that recovered from Metcalfe’s
residence. He stated that each shell, a “number 6” birdshot, was
designed to kill birds and contained approximately “[t]wo hundred
BB’s.”
Detective Ah Mow fired the shotgun from set distances
of 10 feet, 20 feet, 30 feet, 40 feet, 50 feet, and 55 feet. At
a distance of 10 feet, the spread pattern was approximately 3.75
inches. At 20 feet, the spread pattern was approximately 7.5
inches. At 30 feet, the spread pattern was approximately 12.5
inches. At 40 feet, the spread pattern was approximately 16.75
inches. At 50 feet, the spread pattern was approximately 25.5
inches. At 55 feet, the spread pattern was approximately 25.5
inches. Detective Ah Mow also fired the shotgun from specified
-20-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
distances of 47 feet, 8 inches, and 51 feet, 1 inch, which
correlated with distances measured on the Total Station Device.
At a distance of 47 feet, 8 inches, the spread pattern was
approximately 23.5 inches. At a distance of 51 feet, 1 inch, the
spread pattern was approximately 27.5 inches. Detective Ah Mow
was asked what the spread pattern indicated, and he stated, “Just
to make it simple, the spread pattern[] measures the distance
between the muzzle to target.” Detective Ah Mow also testified
that Metcalfe’s shotgun did not have a “choke,” which would have
affected the spread of the pellets as “every spread pattern would
be different” “depending on what kind of choke” was on the
shotgun. Defense counsel did not object to Detective Ah Mow’s
testimony.
On cross-examination, Detective Ah Mow acknowledged
that because the recovered shotgun was semi-automatic it was
conceivable that, if multiple shots were fired rapidly at a
target, it would be hard to distinguish the spread pattern of one
round with the spread pattern of the other. Detective Ah Mow
also acknowledged that he performed these tests in an “ideal
laboratory condition” where the weather was constant, and neither
the target nor the shooter was moving. He also recognized that
movement of the target or muzzle of the shotgun could
substantially distort the spread pattern. Detective Ah Mow also
acknowledged that a substantial number of pellets did not
penetrate the cardboard target at the closer distances of 10 and
-21-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
20 feet. On redirect-examination, Detective Ah Mow stated that
although some pellets did not go through the cardboard target, a
majority of the pellets did go through.
The State rested7 and Metcalfe moved for a judgment of
acquittal on the murder charge, arguing that the State adduced no
evidence of an intentional killing. The circuit court denied the
motion on the ground that the evidence, when viewed in the light
most favorable to the State, was sufficient for a reasonable jury
to conclude that Metcalfe’s actions were intentional or knowing
when he fired the shotgun at Kuahuia.
2. Defense Case
Metcalfe testified in his own defense. On May 6, 2009,
at approximately 10:25 p.m., Metcalfe was figuring out how to
work his surveillance security system when his motion detector
alarm came on. When he looked at his security system’s monitor,
Metcalfe noticed what, at first, appeared to be a garbage bag
blowing in the wind. Metcalfe then saw a man standing upright
with “something in his hand.” Metcalfe saw the individual try to
cut through a shade cloth that was draped over the greenhouse.
7
Additional witnesses testified for the State. Elizabeth Taetuna,
Kuahuia’s mother, identified her son in a photograph. HCPD Detective
Charlotte Bird testified that she was assigned to collect evidence. Through
the testimony of Detective Bird, the State admitted, without objection,
Exhibit 76, which was a picture of the inside of Metcalfe’s greenhouse,
containing what appeared to be marijuana plants. Detective Bird stated that
the photograph “accurately depicted the scene that [she] saw at the time th[e]
photograph was taken[.]” HCPD Officer Shawn Ibarra testified that he stood
watch so that no one would enter the scene. HCPD Officer Clayton Tayamen
testified that he arrested Metcalfe. HCPD Detective Charles Adams
photographed the scene and obtained a search warrant for Kuahuia’s vehicle.
-22-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
He called Jordan to tell him that someone was in the yard and
that Jordan should call 911.
Metcalfe went outside without an intention to hurt the
person that was on his property. He took his recently purchased
12-gauge shotgun and loaded it with number 6 birdshot ammunition.
He decided not to use his buckshot ammunition because a buckshot
“would really hurt somebody.”
Metcalfe exited the studio with his shotgun and a
flashlight. Metcalfe saw a man crouched down on the ground. He
stated to the man, “Look, come outta there. I got a gun. Come
out. Put your hands up. Get on the ground.” After Metcalfe
shined a flashlight on the man, who was eight to ten feet away
from him, the man “crab walked” toward Metcalfe. Metcalfe then
told the man, “Please, just get on the f’in’ ground.” Metcalfe
stated that “all at once” the man, who had “something” in his
right hand, jumped towards him. Metcalfe stated that the man
probably had “the same thing that he was trying to cut through
the greenhouse with or a weapon of some sort” in his right hand.
The man came to within “three feet” and “hollered, ‘F you,’
really loud” at Metcalfe. Metcalfe then fired a “warning shot,”
as he stepped backward, because he wanted the man to know that he
was serious and because he was “scared to death.” Metcalfe
stated that he was scared for himself and denied firing the shots
to protect his property.
-23-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
After firing the first shot, Metcalfe stated that all
he could see was “spots.” Metcalfe stated that from the flash he
could still see that the man was “propelling himself forward”
toward Metcalfe. Metcalfe stated that he fired another shot
because he felt he had no other alternative. Metcalfe stepped
backwards, but the man did not stop. The man ran away and
Metcalfe called 911, and subsequently heard someone “holler
‘help[,]’” but the dispatcher told Metcalfe to stay where he was.
About fifteen or twenty minutes after the police arrived, he and
an officer discovered Kuahuia’s body. Metcalfe stated, “I was
beside myself. I just couldn’t even fathom anything. I was just
lost. I was just in shock and pure fear for him.”
On cross-examination, the State questioned Metcalfe
about his medical marijuana permit. Metcalfe stated that he had
a medical marijuana permit for the ten plants that were in the
greenhouse on his property. He acknowledged that he used the
marijuana for his irritable bowel syndrome. Metcalfe stated that
on the evening of the incident he smoked “maybe a gram” of his
medical marijuana. The following exchange occurred:
[State]: On May 6, 2009, would you, uh, 2009, would
you deem yourself addicted to marijuana?
[Metcalfe]: No.
[State]: Because you don’t believe marijuana is
addicting. Is that right?
[Metcalfe]: Um, anything you smoke --
[Metcalfe’s counsel]: I’m gonna object to the
relevance of this line of
questioning.
[Court]: Overruled.
[Metcalfe]: Um, I don’t know. I don’t –- I don’t.
It’s nothing like cigarettes. You can put
-– for me. I don’t know about the rest of
-24-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the world, but sometimes I do things and I
don’t like marijuana in my system I may
not use it for days.
[State]: Okay, but you had marijuana in your system
on May the 6, 2009. Is that right?
[Metcalfe]: Oh, yes, sir. It stays in your system for
30 days.
When asked whether Metcalfe set up the surveillance
system to protect the marijuana plants in his greenhouse,
Metcalfe responded, “I had a lotta [sic] tools in the greenhouse.
I don’t know if anybody’s told you that, but in –- I’m sure
they’ve looked at it, took pictures of it. You should know that.
It wasn’t just marijuana plants, sir.”
Metcalfe also stated that he fired the shotgun three
times and that the man “blew past” him. Metcalfe stated that he
did not know if he shot the man but that, because the man was so
close, he wanted a “wall of safety” between himself and the man.
Metcalfe stated that the first two shots “went off so fast it was
basically just like a double flashbulb.” Metcalfe acknowledged
that his property had been burglarized five times prior to the
incident.
Sharon Meech, Metcalfe’s wife, testified that their
property had been burglarized five to seven times. She also
testified that a burglary occurred in October 2008 that scared
her and led her to leave Hawai#i for Oregon.
The defense rested and Metcalfe renewed his motion for
judgment of acquittal, which the circuit court denied.
-25-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
3. Jury Instructions, Closing Arguments and Verdict
Prior to closing arguments, the circuit court and the
parties settled the jury instructions. Relevant to the issues
raised on appeal, the parties agreed to the State’s proposed
instructions on self-defense, with modifications, and also agreed
to the State’s instruction regarding opinion testimony. In
regard to the modifications of the State’s proposed instructions
on self-defense (State’s Instructions 11, 12, and 13), the
parties agreed that the instruction should be modified to include
the definition of “bodily injury” and “serious bodily injury.”
The parties also agreed to modify the language in State’s
Instruction 11, which stated, “If the prosecution does not meet
this burden then you may not find the Defendant guilty of Murder
in the Second Degree or Manslaughter” to “If the prosecution
[does] not meet this burden then you must find the [D]efendant
not guilty of Murder in the Second Degree or Manslaughter.”
(Emphasis added).
The State acknowledged that its proposed Instruction
15, regarding opinion testimony, modified the language of the
standard jury instruction 4.05 because it “eliminate[d] use of
[the] word ‘expert[.]’”
The jury was subsequently given various instructions,
including the following instructions regarding self-defense:
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
-26-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
on the present occasion against the use of unlawful
force by the other person.
“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.
The use of deadly force upon or toward another
person is justified when a person using such force
reasonably believes that the deadly force is
immediately necessary to protect himself on the
present occasion against death or serious bodily
injury.
“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
harm. Intentionally firing a firearm in the direction
of another person or in the direction which another
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 the actor 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 a serious permanent disfigurement, or
protracted loss or impairment of the function of any
bodily member or organ.
Except as provided below, a person employing
protective force may estimate the necessity thereof
under the circumstances as he reasonably 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. 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 the actor is not
obliged to retreat from his dwelling or
place of work, unless he was the initial
aggressor.
The reasonableness of the Defendant’s belief that the
use of such protective force or deadly force was
immediately necessary shall be determined from the
viewpoint of a reasonable person in the Defendant’s
-27-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
position under the circumstance of which the Defendant
was aware or as the Defendant reasonably believed them
to be.
Justifiable use of force, commonly known as self
defense is a defense to the charge of Murder in the
Second Degree and Manslaughter. Once there is any
evidence of justification, 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 this burden then you
must find the Defendant Not Guilty of Murder in the
Second Degree and Manslaughter.
In evaluating a claim of self defense, you
should proceed as follows:
First you should determine if the Defendant had
the belief that the force or deadly force was
immediately necessary to protect himself on the
present occasion against the use of unlawful force by
the other person, (and in the case of deadly force,
against death or serious bodily injury).
For this part of the test, you should place
yourself in the shoes of the defendant. If you find
that Defendant did not have the subjective belief that
the force he used was immediately necessary to protect
himself on the present occasion against the use of
unlawful force by the other person, as set forth
above, then the State has disproven the defense of
self defense. If the State has not disproven
Defendant’s subjective belief, then you should go on
the second part of the test [sic].
Secondly, you should determine whether a
reasonably prudent person in the same situation as the
Defendant would have believed that the force used was
necessary against the use of unlawful force. If the
State has shown that a reasonably prudent person in
the same situation as the defendant would not have
believed that the force was so necessary, then you
must reject the defense of self defense.
The circuit court gave State’s Instruction 15,
concerning opinion testimony, by agreement:
During the trial you heard the testimony of one
or more witnesses who were allowed to give opinion
testimony.
Training and experience may make a person
qualified to give opinion testimony in a particular
field. The law allows that person to state an opinion
about matters in that field. Merely because such a
witness has expressed an opinion does not mean,
however, that you must accept this opinion. It is up
to you to decide whether to accept this testimony and
how much weight to give it. You must also decide
whether the witness’s opinions were based on sound
reasons, judgment, and information.
The jury was not instructed on defense of property.
-28-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
In its closing argument, the State asserted that
Metcalfe intentionally shot Kuahuia in the back from a distance
of at least forty feet after Kuahuia ran past him. In his
closing argument, defense counsel argued that Metcalfe acted in
self-defense when Kuahuia charged at him with “something that
could have slit [Metcalfe’s] throat.” Defense counsel also
asserted that the evidence indicated that Kuahuia was shot from a
close distance. Defense counsel explained that Kuahuia was shot
in the back because Kuahuia was initially in a “crab-walk
position” when Metcalfe fired the first shot and subsequently
turned when Metcalfe fired the second shot. Defense counsel then
argued that Dr. Manoukian’s testimony that Kuahuia was shot from
a distance of sixty feet was “physically impossible” in light of
the evidence that showed the downward slope of the driveway that
Kuahuia ran down. Defense counsel further contended that Kuahuia
could not have been shot from a distance of sixty feet given that
none of the pellets penetrated Officer Smith’s skin when he was
shot with number 6 birdshot from a distance of sixty feet, or
given that not all of the pellets penetrated through the
cardboard silhouettes that Detective Ah Mow fired upon from a
distance of sixty feet. Defense counsel thus asserted that the
only reasonable inference from this evidence was that Kuahuia was
shot from a distance of eight to ten feet. In addition, defense
counsel noted that there was no evidence that the Total Station
Device was calibrated, but that “[t]he only thing we do know is
-29-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that [Kuahuia] made it 47 feet with [the hacksaw] from the
greenhouse, and that’s why we know that it was in his hand[.]”
The jury found Metcalfe guilty of the included offense
of Manslaughter and the offense of Use of a Firearm in the
Commission of a Felony. On March 25, 2010, the circuit court
entered its Judgment of Conviction and Sentence, convicting
Metcalfe of Manslaughter and Use of Firearm in the Commission of
a Separate Felony and sentencing Metcalfe to an indeterminate
term of imprisonment of twenty years on each count, to run
concurrently. Metcalfe filed a timely notice of appeal.
C. ICA Appeal
On appeal to the ICA, Metcalfe raised several
arguments, including, that the circuit court erred in denying his
motion to dismiss the complaint after the grand jury returned a
no bill, that the circuit court plainly erred in allowing the
testimony of Dr. Manoukian and Detective Ah Mow without properly
qualifying them, that the circuit court plainly erred in
instructing the jury on opinion testimony and self-defense, that
the circuit court plainly erred in failing to instruct the jury
on defense of property and provide a cautionary instruction on
medical marijuana, that there was insufficient evidence that the
shotgun fired by Metcalfe was a “firearm,” and that Metcalfe’s
trial counsel was ineffective.
In its March 30, 2012 Memorandum Opinion, the ICA
rejected all of Metcalfe’s claims and determined: (1) the circuit
-30-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
court did not err in denying Metcalfe’s motion to dismiss; (2)
the circuit court did not plainly err in allowing the opinion
testimony of Dr. Manoukian and Detective Ah Mow, because their
testimony established their qualifications as experts under HRE
Rule 702; (3) the circuit court did not plainly err in providing
the jury with an instruction regarding opinion testimony, which
was modified from the standard expert witness instruction,
because the instruction accurately stated the law; (4) the
circuit court did not plainly err in instructing the jury on
self-defense; (5) a jury instruction regarding defense of
property was not required; (6) a cautionary jury instruction
regarding medical marijuana was not required; and (7) there was
sufficient evidence that the shotgun fired by Metcalfe was a
“firearm.”8 Metcalfe, 2012 WL 1071503, at **4-17. Finally, the
ICA determined that Metcalfe’s trial counsel was not ineffective
because Metcalfe failed to show that his trial counsel made
errors that resulted in the withdrawal or substantial impairment
of a potentially meritorious defense. Id. at *17-20 (citing
State v. Wakisaka, 102 Hawai#i 504, 514, 78 P.3d 317, 327
(2003)).
Accordingly, the ICA affirmed the circuit court’s
March 25, 2010 judgment. Id. at *10. The ICA filed its judgment
8
This issue is not raised in Metcalfe’s application and as such is
not discussed further herein. See HRAP Rule 40.1(d)(1) (“The
application . . . shall contain . . . [a] short and concise statement of the
questions presented for decision[.] . . . Questions not presented according
to this paragraph will be disregarded.”).
-31-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
on appeal on April 24, 2012.
II. Standards of Review
A. Motion to Dismiss an Indictment
“A [trial] court’s ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion.” State v.
Akau, 118 Hawai#i 44, 51, 185 P.3d 229, 236 (2008) (citation
omitted). In addition, “[t]he trial court abuses its discretion
when it clearly exceeds the bounds of reason or disregards rules
or principles of law or practice to the substantial detriment of
a party litigant. The burden of establishing abuse of discretion
is on appellant, and a strong showing is required to establish
it.” State v. Wong, 97 Hawai#i 512, 517, 40 P.3d 914, 919 (2002)
(citation omitted).
B. 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
-32-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights.” State v. Nichols, 111 Hawai#i
327, 334, 141 P.3d 974, 981 (2006) (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)).
C. Admission of Expert Testimony
“Generally, the decision whether to admit expert
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).
D. Jury Instructions
When jury instructions or the omission thereof
are at issue on appeal, the standard of review is
whether, when read and considered as a whole, the
instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.
Erroneous 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.
-33-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)
(internal quotation marks, brackets, and citations omitted); see
also Nichols, 111 Hawai#i at 337, 141 P.3d at 984 (“[O]nce
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.”).
E. Ineffective Assistance of Trial Counsel
This court has determined,
When reviewing a claim of ineffective assistance of
counsel, [the appellate 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.
Wakisaka, 102 Hawai#i at 513-14, 78 P.3d at 326-27 (internal
quotation marks, citations, and footnote omitted).
III. Discussion
A. The circuit court did not abuse its discretion in denying
Metcalfe’s motion to dismiss the amended complaint
Metcalfe argues that the circuit court “abused its
discretion when it denied [his] [m]otion to [d]ismiss without
reviewing the grand jury and preliminary hearing transcripts.”
-34-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
As discussed below, Metcalfe’s contention is without merit
because Metcalfe did not provide the circuit court with the grand
jury or preliminary hearing transcripts.
Metcalfe filed a motion to dismiss the amended
complaint on grounds that it violated double jeopardy and
collateral estoppel. Attached to his motion to dismiss was a
Declaration of Counsel, which stated that the State improperly
filed the amended complaint after the grand jury returned a “no
bill.” Defense counsel implied that, at the subsequent
preliminary hearing, Judge Florendo found probable cause only
because “the prosecutor omitted significant evidence that the
grand jury heard, some of which was exculpatory from this
preliminary examination, and thus [the court] did not have the
benefit of hearing the entire circumstances of the offense.” In
relation to his motion to dismiss, Metcalfe asked the court to
take judicial notice of the record and transcripts of the grand
jury and preliminary hearings, but did not provide the circuit
court with these transcripts. After hearing arguments from both
parties regarding the applicability of double jeopardy, the
circuit court orally denied the motion to dismiss on the narrow
ground that double jeopardy did not attach at the grand jury
phase of the proceeding, and as a result, the State was not
precluded from filing an amended complaint and seeking probable
cause via a preliminary hearing.
Metcalfe’s argument that the circuit court abused its
-35-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
discretion in denying the motion to dismiss without reviewing the
grand jury and preliminary hearing transcripts is without merit.
Metcalfe did not include the relevant portions of the transcripts
with his motion to dismiss, nor did he attempt to enter the
transcripts into evidence during the hearing on the motion.
Cf. State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000)
(holding that it is the “appellant’s burden of demonstrating
error in the record” and noting that this court has previously
held that where the record was insufficient to show that the
alleged improper testimony influenced the grand jury, it will be
presumed that the indictment was found as the law directs)
(citing State v. Apao, 59 Haw. 625, 638, 586 P.2d 250, 259 (1978)
superceded by statute on other grounds as stated in Briones v.
State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 973 n.7 (1993)).
Thus, the transcripts were not before the court. Metcalfe also
contends that the circuit court abused its discretion in denying
the motion because it stated in its written order that it
“reviewed the records and files in this case[,]” but did not
review the grand jury and preliminary hearing transcripts.
However, there is nothing to indicate that the circuit court’s
statement is erroneous, or that the circuit court did not review
the records that were before it, which, as stated, did not
include the grand jury or preliminary hearing transcripts.
Similarly, Metcalfe’s apparent assertion that the
circuit court should have taken judicial notice of the
-36-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
transcripts lacks merit. HRE Rule 201 allows a court to take
judicial notice of adjudicative facts that are “capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned[,]” which includes some
court records. HRE Rule 201(b); see also Ditto v. McCurdy, 98
Hawai#i 123, 130, 44 P.3d 274, 281 (2002). However, a court is
not required to sua sponte order transcripts when asked to take
judicial notice of prior proceedings. Rather, a court must take
judicial notice of adjudicative facts only if “requested by a
party and supplied with the necessary information.” HRE Rule
201(d) (emphasis added). Here, the circuit court was not
“supplied with the necessary information” to take judicial notice
of the content of the grand jury and preliminary hearing
transcripts, because Metcalfe did not include those transcripts
in the record.
Finally, although Metcalfe does not challenge the
substantive basis for the circuit court’s ruling in his
application, the circuit court did not abuse its discretion in
denying the motion based on the record before the court, i.e.,
the motion to dismiss and the attached declaration, Metcalfe’s
memorandum in support of his motion, the State’s memorandum and
supplemental memorandum in response to the motion to dismiss, and
the arguments of the parties during the hearing on the motion.
The circuit court denied the motion on the ground that double
jeopardy does not bar the prosecution from filing an amended
-37-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
complaint after the grand jury returned a “no bill.” Jeopardy
does not attach at the grand jury stage, but instead “in a jury
trial[,] jeopardy attaches once the jury is empaneled and
sworn[.]” State v. Moriwake, 65 Haw. 47, 51, 647 P.2d 705, 709
(1982). Additionally, Metcalfe’s counsel conceded in the circuit
court that double jeopardy did not apply. Therefore, the circuit
court did not abuse its discretion in denying Metcalfe’s motion
to dismiss on this basis.
Accordingly, the ICA did not gravely err in rejecting
Metcalfe’s arguments on this point. The question of whether
defense counsel was ineffective in failing to provide the grand
jury and preliminary hearing transcripts to the circuit court for
its consideration in deciding the motion is discussed infra.
B. The circuit court did not plainly err in allowing the
testimony of Dr. Manoukian and Detective Ah Mow
Metcalfe argues that the ICA gravely erred in affirming
the circuit court’s decision to allow the testimony of Dr.
Manoukian and Detective Ah Mow without formally qualifying them
as expert witnesses under HRE Rule 702. Specifically, Metcalfe
argues that the circuit court’s failure to formally qualify Dr.
Manoukian and Detective Ah Mow as experts in the field of
ballistics constituted plain error because, while the record may
establish that Dr. Manoukian was an expert in forensic pathology
and that Detective Ah Mow was an expert in the use or
identification of firearms, neither was an expert in ballistics.
-38-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Since the State’s case relied heavily on these witnesses’
testimony regarding ballistic evidence, Metcalfe contends that
the ICA erred in concluding that any error in admission of the
testimony was harmless.
In response to Metcalfe’s application, the State
asserts that there is a “trend” around the country and in the
Third Circuit to avoid using the term expert during a jury trial.
However, Metcalfe argues that this trend to not qualify
individuals as experts in a particular field is improper because,
as shown in this particular case, the jury was “misled into
believing that the entire content of [Dr. Manoukian’s] testimony,
including the erroneous opinion on distance, was based upon
expert qualifications.”
Metcalfe did not object to the testimony of Dr.
Manoukian or Detective Ah Mow during trial, and accordingly, this
issue may be deemed waived. State v. Moses, 102 Hawai#i 449,
456, 77 P.3d 940, 947 (2003) (“As a general rule, if a party does
not raise an argument at trial, that argument will be deemed to
have been waived on appeal; this rule applies in both criminal
and civil cases.”); Addison M. Bowman, Hawai#i Rules of Evidence
Manual § 103-2[1] (2010-11 ed.) (“An opponent who fails to object
is held to have waived the appellate point.”); see HRE Rule
103(a)(1) (requiring a “timely objection or motion to strike”);
State v. Crisostomo, 94 Hawai#i 282, 290, 12 P.3d 873, 881 (2000)
(“A hearsay objection not raised or properly preserved in the
-39-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
trial court will not be considered on appeal. This is true even
where the testimony is objected to on other grounds.”) (citation
omitted); State v. Sua, 92 Hawai#i 61, 76, 987 P.2d 959, 974
(1999) (holding that the defendant waived the issue of whether
certain prior inconsistent statements were properly recorded
pursuant to HRE Rule 802.1(1)(C) because the defendant failed to
object at trial on that ground, thereby rendering those
statements admissible); State v. Samuel, 74 Haw. 141, 147, 838
P.2d 1374, 1378 (1992) (“Appellant’s attorney failed to preserve
this alleged ‘error’ by not objecting to it at trial. The
general rule is that evidence to which no objection has been made
may properly be considered by the trier of fact and its admission
will not constitute grounds for reversal.”).
Nevertheless, HRPP Rule 52(b) provides that “[p]lain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.”
However, objections to the admission of incompetent evidence,
which a party failed to raise at trial, are generally not subject
to plain error review.9 State v. Wallace, 80 Hawai#i 382, 410,
9
The dissent argues that in State v. Schnabel, 127 Hawai#i 432, 279
P.3d 1237 (2012), this court determined that we may notice errors affecting a
defendant’s substantial rights regardless of whether an objection was raised
at trial. Dissent at 31. However, the evidentiary errors at issue in
Schnabel implicated the defendant’s right to testify. 127 Hawai#i at 461-63,
279 P.3d at 1266-68. Here, Metcalfe’s right to testify was not implicated.
Thus, plain error review is not appropriate in the circumstances of this case.
Indeed, this court has repeatedly stated that our “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
(continued...)
-40-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
910 P.2d 695, 723 (1996) (“It is the general rule that evidence
to which no objection has been made may properly be considered by
the trier of fact and its admission will not constitute ground
for reversal. It is equally established that an issue raised for
the first time on appeal will not be considered by the reviewing
court. Only where the ends of justice require it, and
fundamental rights would otherwise be denied, will there be a
departure from these principles.”) (citation omitted); State v.
Uyesugi, 100 Hawai#i 442, 464, 60 P.3d 843, 865 (2002) (“In the
absence of an objection and/or proper record, the admission of
the testimony and picture does not amount to plain error.”).
Moreover, even assuming that plain error review is
available, the circuit court’s failure to formally qualify Dr.
Manoukian and Detective Ah Mow as experts in the field of
ballistics did not affect Metcalfe’s substantial rights and did
not preclude the admission of the testimony of Dr. Manoukian and
Detective Ah Mow into evidence under HRE Rule 702.
First, the plain language of HRE Rule 702 does not
require the circuit court to formally qualify a witness as an
expert before receiving the witness’s testimony into evidence.
9
(...continued)
the cost of counsel’s mistakes.” State v. Fields, 115 Hawai#i 503, 529, 168
P.3d 955, 981 (2007) (citation omitted).
Moreover, Schnabel is distinguishable from the instant case
because there, a majority of this court relied upon judicial notice in making
its determination to vacate the conviction and remand the case for a new
trial. 127 Hawai#i at 446-47, 279 P.3d at 1251-52. The majority referenced
plain error only as an alternative argument. Id.
-41-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
HRE Rule 702 states:
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.
Id.
The plain language of HRE Rule 702 suggests that, to
testify as an expert witness, one need only possess the requisite
“knowledge, skill, experience, training or education” to offer an
opinion on a subject requiring “scientific, technical, or other
specialized knowledge[.]” It does not indicate that the trial
court must formally qualify a witness as an expert in front of
the jury before the witness’s testimony can properly be
admitted.10
Indeed, there are judges that have advocated for the
elimination of the use of the term “expert” from jury proceedings
10
Contrary to the dissent’s assertion, the commentary to HRE Rule
702 does not require the court to state in front of the jury that an
individual is an expert in a particular field. See Dissent at 18-19. The
commentary to HRE Rule 702 provides in relevant part:
Determination by the court that a witness qualifies as
an expert is binding upon the trier of fact only as
this relates to admissibility of the expert’s
testimony. The trier of fact may nonetheless consider
the qualifications of the witness in determining the
weight to be given to his testimony.
This commentary merely provides that the court’s determination
regarding admissibility is binding on the trier of fact. It does not require
that the jury be advised of the court’s determination regarding a witness’s
expertise. Thus, the dissent’s reliance on the commentary to HRE Rule 702 is
not persuasive.
-42-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
to “ensure that juries are not overwhelmed by the so-called
‘experts,’ so as to deprive them of their right to determine the
facts of a case based upon all of the evidence” and to “ensure[]
that trial courts do not inadvertently put their stamp of
authority on ‘expert’ testimony.” See Honorable Charles R.
Richey, Proposals to Eliminate the Prejudicial Effect of the Use
of the Word “Expert” under the Federal Rules of Evidence in Civil
and Criminal Jury Trials, 154 F.R.D. 537, 558-59 (1994);11 see
also 1 McCormick on Evidence, § 13, at 69 n.14 (Kenneth S.
Bround, et al. eds., 6th ed. 2006) (noting that some courts
recognize that a finding by the court that an individual is an
expert “might influence the jury in its evaluation of the expert
11
The dissenting opinion implies that Judge Richey’s procedure
requires the court to make a finding in front of the jury that an individual
was qualified to render an opinion in a particular field. Dissent at 23-26.
However, as the dissent further notes, see dissent at 24, Judge Richey
proposes judicial supervision through mechanisms such as pre-trial hearings,
which occur outside of the presence of the jury. Richey, 154 F.R.D. at 542
(“As a result of barring the use of the word ‘expert’ in my courtroom, I
ensure that no untoward affiliations unfold between opinion witnesses and the
jury.”). Furthermore, Judge Richey stated, “No one seriously questions the
proposition that so-called ‘expert witnesses’ can add an aura of authority to
any asserted opinion. But it does not follow that courts and judges should
give ‘expert’ witnesses their imprimatur[.]” Id. at 545. In addition, Judge
Richey stated that under his proposal, the court would be under an obligation
to provide the jury only with a limiting or cautionary instruction concerning
the opinion testimony. Id. at 551. Thus, Judge Richey’s proposal does not
require the court making a finding in front of the jury, but only requires the
jury be given an instruction regarding the opinion testimony. See also People
v. Lamont, 21 A.D.3d 1129, 1132 (N.Y. App. Div. 2005) (“The court is not
required to explicitly declare a witness an expert before permitting such
testimony[.]”).
In the instant case, and contrary to the dissent’s contention that
the jury was not given guidance to evaluate the testimony of Dr. Manoukian and
Detective Ah Mow, see dissent at 26, the jury was given an instruction on the
opinion testimony.
-43-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
and the better procedure is to avoid an acknowledgment of the
witness’s expertise by the court”) (citation omitted). In Barbee
v. Queen’s Medical Center, 119 Hawai#i 136, 155, 194 P.3d 1098,
1117 (App. 2008), the ICA also recognized that some trial courts
do not make any findings before the jury regarding the
qualifications of an expert witness, and determined that this
practice did not constitute an abuse of discretion.12 See also
HRE Rule 1102 (“The court shall instruct the jury regarding the
law applicable to the facts of the case, but shall not comment
upon the evidence.”).
Although the State suggests in its response that the
failure to qualify Dr. Manoukian and Detective Ah Mow may have
been purposeful in this case, the record does not expressly
reflect a reason for the court’s approach.13 In any event,
nothing in the HRE would preclude the trial court from declining
to qualify a witness as an expert in front of the jury, so long
as the requisite foundation for the witness’s testimony is
12
However, the ICA also noted that the concerns raised by Judge
Richey could be addressed by other means, such as “giving cautionary
instructions to the jury regarding the weight to be given to testimony by
expert witnesses.” Id. at 155, 194 P.3d at 1117.
13
The fact that the court gave the State’s requested instruction,
which was “modified to eliminate use of [the] word ‘expert[,]’” lends some
support to the State’s assertion. See infra part III(C) of this opinion.
However, in the future, trial courts adopting this approach should ensure that
such a decision is reflected on the record to facilitate appellate review.
-44-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
established.14 See HRE Rule 702. Such foundation would also
assist the jury in determining the weight to be given to the
witness’s testimony. See Commentary to HRE Rule 702 (“The trier
of fact may nonetheless consider the qualifications of the
witness in determining the weight to be given to his
testimony.”).
Here, Dr. Manoukian’s and Detective Ah Mow’s testimony
satisfied the foundational requirements for expert testimony set
forth in HRE Rule 702. In order to provide expert testimony
under HRE Rule 702: (1) the witness must be qualified by
knowledge, skill, experience, training or education; (2) the
testimony must have the capacity to assist the trier of fact to
understand the evidence or to determine a fact in issue; and (3)
the expert’s analysis must meet a threshold level of reliability
and trustworthiness. See State v. Torres (Torres I), 122 Hawai#i
2, 31, 222 P.3d 409, 438 (App. 2009) (citations omitted),
affirmed and corrected on other grounds by, State v. Torres
14
In addition, federal courts have held that a court’s failure to
formally qualify a witness as an expert is harmless error if the record
establishes that the witness would have been qualified as an expert under the
Federal Rules of Evidence (FRE) Rule 702. See, e.g., United States v.
Mendoza, 244 F.3d 1037, 1046-47 (9th Cir. 2001) (assuming arguendo that the
district court erred in admitting testimony as the opinion of a percipient
witness when it was expert opinion, such error was harmless because the record
showed that the witness could have been qualified as an expert under FRE Rule
702); United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997);
United States v. Ramsey, 165 F.3d 980, 984 (D.C. Cir. 1999) (concluding that
there was no plain error, where, “[a]lthough the trial judge never formally
qualified [the witness] as an expert witness, his testimony functionally
satisfied the requirements for expert testimony set forth in [FRE] 702”).
Because the Hawai#i rules are patterned after the federal rules, see State v.
Ito, 90 Hawai#i 225, 236, 978 P.2d 191, 202 (App. 1999), federal cases are
instructive.
-45-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
(Torres II), 125 Hawai#i 382, 262 P.3d 1006 (2011). This court
has noted:
The reliability requirement refers to evidentiary
reliability—that is trustworthiness. Under this
prong, 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. In this context, the trial court
is assigned the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is
relevant to the task at hand.
Torres I, 122 Hawai#i at 31, 222 P.3d at 438 (citation omitted)
(emphasis in original).
In this case, both Dr. Manoukian and Detective Ah Mow
were qualified by “knowledge, skill, experience, training, or
education” to provide the testimony that Metcalfe now challenges,
and their testimony had “a reliable basis in the knowledge and
experience” of their respective disciplines.15 See id.
1. Dr. Manoukian
Dr. Manoukian testified inter alia that: he is employed
as a pathologist and serves as the laboratory director at Maui
Memorial Medical Center; he is the coroner’s physician for the
County of Maui, Hawai#i County and the County of Kaua#i; he is a
physician and surgeon licensed in the State of Hawai#i; he is
certified by the American Board of Pathology in anatomic and
clinical pathology and forensic pathology; he has performed over
15
Although not disputed, we note that the testimony of Dr. Manoukian
and Detective Ah Mow also had the capacity to “assist the trier of fact to
understand the evidence or to determine a fact in issue” because the testimony
was relevant to rebut Metcalfe’s theory of self-defense and his claim that he
shot at Kuahuia as Kuahuia charged toward him.
-46-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
3,000 autopsies; he has observed in excess of a hundred cases in
which the cause of death was injury caused by a firearm; he has
received ballistics training with the Maryland State Crime Lab;
and he has had autopsy training with respect to death due to
firearms. Accordingly, Dr. Manoukian was qualified by
“knowledge, skill, experience, training, or education,” to
testify that Kuahuia’s death was caused by a shotgun injury to
the back at a distance of approximately 60 feet.
Nevertheless, Metcalfe, citing Torres I, specifically
challenges Dr. Manoukian’s qualifications, on the ground that Dr.
Manoukian acknowledged “I’m not a firearms or a ballistic
expert.” In Torres I, the ICA vacated Torres’s murder conviction
on the ground that the circuit court erred in admitting opinion
testimony that the defendant’s gun had been fired within a
specific time frame.16 122 Hawai#i at 6, 222 P.3d at 413. The
ICA noted that the opinion testimony was “particularly
significant” because, “[i]f the gun had been fired outside this
time frame, it could not have been used to murder [the
decedent].” Id. at 26, 222 P.3d at 433.
The opinion witness, Agent Robbins, inspected the gun
that had been seized from the defendant. Id. at 27, 222 P.3d at
16
In Torres II, this court did not revisit the ICA’s analysis of the
evidentiary issue, but instead addressed a separate issue as to whether both
federal law and the Hawai#i Constitution should have been considered in ruling
on the defendant’s motion to dismiss. Torres II, 125 Hawai#i at 400, 262 P.3d
at 1024. This court affirmed the ICA’s judgment, as corrected by the ruling
in Torres II.
-47-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
434. Agent Robbins testified over objection that he believed the
gun had been recently fired, based on his examination of the gun.
Id. Specifically, Agent Robbins testified that powder residue
characteristic of a fired revolver was present in the barrel and
appeared to be moist. Id. Agent Robbins’ “experience
indicate[d] that powder residue tends to dry out after a period
of time.” Id. Agent Robbins also testified that powder residue
changes color with age, and will change to a “rust color.” Id.However, the powder residue in the gun Agent Robbins examined was
“fresh and black gray.” Id. Upon further questioning, Agent
Robbins opined that gun had been fired “within the same day,
probably about eight hours or so[,]” based on “the moistness of
the powder residue and the fact that the weapon had no indication
of rust.” Id. (brackets omitted).
Agent Robbins had “significant experience in the use
and maintenance of firearms.” Id. at 26, 222 P.3d at 433.
However, on cross-examination, he acknowledged that his opinion
was based on his “personal experience handling firearms” and not
on any scientific or comparison studies. Id. at 27, 222 P.3d at
434. He further acknowledged, “I’m not an expert – I have no
knowledge of a scientific test that would determine that.” Id.
at 28, 222 P.3d at 435.
The ICA concluded that Agent Robbins’ testimony did not
constitute lay opinion testimony because the State did not
establish that his opinions as to the time frame were “rationally
-48-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
based on his perception or his personal knowledge.” Id. at 29,
222 P.3d at 436. Specifically, the State did not establish that
“Agent Robbins had personal knowledge of the moisture content or
appearance of gunpowder residue in a revolver at various times
after the gun had been fired.” Id.
Additionally, the ICA concluded that the State failed
to “satisfy the threshold foundational requirement of showing
that Agent Robbins was qualified as an expert[.]” Id. at 31, 222
P.3d at 438. The ICA concluded:
The State failed to satisfy the threshold foundational
requirement of showing that Agent Robbins qualified as
an expert by knowledge, skill, experience, training,
or education with respect to the time-frame testimony.
Indeed, Agent Robbins readily acknowledged that he was
not an expert in the field of firearms analysis or in
how to determine the time frame in which a gun had
been fired. He admitted that he had not performed
laboratory work or received special schooling in the
analysis of firearms discharges and that he had never
before testified as a firearms expert or rendered an
opinion on whether a firearm had been recently fired.
In addition, the State failed to adduce evidence
demonstrating that Agent Robbins’s time-frame
testimony had a reliable basis in the knowledge and
experience of his or her discipline and rests on a
reliable foundation. Agent Robbins stated that he was
not aware of any test that could determine the time
frame in which a gun had been fired and did not know
how to determine the age of gunpowder residue, even
though his time-frame testimony was principally based
on the moistness of the power residue. Agent Robbins
further acknowledged that his time-frame testimony was
not based on any scientific studies. We have not been
cited any authority verifying that the observations
made by Agent Robbins would provide a reliable basis
for determining the time frame in which a gun had
previously been fired.
Id. (internal quotation marks and citations omitted).
The ICA further concluded that the erroneous admission
of Agent Robbins’ testimony was not harmless beyond a reasonable
-49-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
doubt. Id. Accordingly, the ICA vacated the defendant’s
conviction. Id. at 34, 222 P.3d at 441.
The instant case is distinguishable from Torres I.
Here, the record establishes that Dr. Manoukian was capable of
concluding that Kuahuia’s cause of death was a shotgun injury to
the back at a distance of approximately 60 feet, and that this
conclusion had “a reliable basis in the knowledge and experience
of [Dr. Manoukian’s] discipline and rests on a reliable
foundation.” See id. at 31, 222 P.3d at 438. Dr. Manoukian, a
trained, licensed, and certified forensic pathologist, stated
that the formula he used to determine the distance from the
shotgun to the decedent was taken from “textbooks of forensic
pathology” whereby the “diameter of the pellet injury times three
equals . . . the [approximate] distance in feet between the
decedent and the shotgun.” Metcalfe never objected to Dr.
Manoukian’s distance formula at trial. Dr. Manoukian has
observed in excess of a hundred cases in which the cause of death
was injury caused by a firearm, of the over 3,000 autopsies that
he performed as coroner’s physician for the Counties of Maui,
Hawai#i, and Kaua#i. He has also received ballistic and firearm
related autopsy training. These facts establish that Dr.
Manoukian has sufficient “knowledge, skill, experience, training
or education[,]” see Neilsen v. American Honda Motor Co., Inc.,
92 Hawai#i 180, 188, 989 P.2d 264, 272 (App. 1999), to determine
Kuahuia’s cause of death and the approximate distance of Kuahuia
-50-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
from the shotgun at the time it was fired. Thus, his testimony
meets the foundational requirements of HRE Rule 702 and was
properly allowed by the circuit court.
Moreover, Agent Robbins’ admission in Torres I that he
was not an expert was not the sole factor the ICA relied on in
concluding that his opinion testimony was inadmissible. Rather,
as noted supra, the ICA focused extensively on Agent Robbins’
lack of training or experience in determining when a firearm had
been fired. Id. at 31, 222 P.3d at 438. In contrast, here, the
record establishes that Dr. Manoukian was qualified to conclude
that Kuahuia’s cause of death was a shotgun injury to the back at
a distance of approximately 60 feet. Thus, Metcalfe’s argument
that Dr. Manoukian’s testimony was inadmissible under Torres I,
because he acknowledged “I’m not a firearms or a ballistic
expert” is without merit.
2. Detective Ah Mow
Similarly, the State established Detective Ah Mow’s
qualifications to testify regarding the pattern tests performed
with the shotgun recovered during the investigation. Detective
Ah Mow testified that he is a certified firearms instructor for
the HCPD; he has been an instructor with the Special Response
Team (SRT); he is certified regarding firearms by the FBI and the
National Rifle Association; and he has received shotgun training
by the FBI. This testimony established that he had the requisite
“skill, knowledge, experience, training or education” with the
-51-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
use, identification, and operation of shotguns to testify
regarding the pattern tests. Detective Ah Mow also provided
additional testimony regarding his knowledge of firearms. For
example, he testified that a “choke” may be located at the end of
the barrel of a shotgun and measures the “rate of the spread
pattern that goes out of the shotgun as it reaches its target.”
He testified that the shotgun recovered in this case did not have
a choke, but noted that a choke “definitely would . . . affect
the spread pattern.”
Detective Ah Mow’s knowledge of firearms was also
sufficient to establish that his testimony regarding the tests he
conducted had “a reliable basis in the knowledge and experience
of [his] discipline and rest[] on a reliable foundation.” See
Torres I at 31, 222 P.3d at 438. The pattern tests he performed
involved firing the shotgun recovered during the investigation
and ammunition identical to that recovered from Metcalfe’s home
at eight standard police silhouette targets, which were placed at
various distances. Detective Ah Mow testified as to what he
observed on each of the silhouettes after they were fired upon.
Thus, Detective Ah Mow’s testimony was limited to establishing
the effect of firing distance on the spread pattern of shotgun
pellets. His expertise in the use and operation of firearms was
sufficient, in this instance, to meet the foundational
requirements of HRE Rule 702.
Thus, Detective Ah Mow’s testimony is also
-52-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
distinguishable from that presented in Torres I. There, Agent
Robbins “had not performed laboratory work or received special
schooling” in the analysis of residue found in a firearm. Torres
I, 122 Hawai#i at 31, 222 P.3d at 438. In addition, he was not
aware of any test that would confirm his opinion as to when the
gun had been fired. Id. In contrast, here, the test that
Detective Ah Mow performed did not involve specialized technical
expertise beyond the scope of his knowledge concerning the
operation of shotguns.17
Accordingly, the testimony of Dr. Manoukian and
Detective Ah Mow was properly received as expert testimony under
HRE Rule 702 because: (1) their testimony evidenced that they
were qualified by skill, knowledge, experience, training or
education; (2) their testimony had the capacity to assist the
trier of fact to understand the evidence or to determine a fact
17
Contrary to the dissent’s assertion, there is nothing that
requires an expert to use a “scientific test.” Dissent at 13-16. HRE Rule
702 merely requires the court to consider the “trustworthiness and validity of
the scientific technique or mode of analysis employed by the proffered
expert.” Additionally, in Torres I, the only mention of “scientific test” was
from Agent Robbins’ testimony that he had “no knowledge of a scientific test
that would determine” when a gun was fired. 122 Hawai#i at 27-28, 222 P.3d at
434-35. Torres I does not, contrary to the dissent’s implication, set forth a
requirement that an expert use a “scientific test.” See Dissent at 14 n.9.
Furthermore, in contrast to the dissent’s conclusion that “only a
ballistics expert could establish whether or not results from the test
retained external validity when transferred to the crime scene[,]” dissent at
14, Detective Ah Mow did not testify to the ultimate issue in this case, i.e.,
he did not conclude at what distance Metcalfe shot Kuahuia. Detective Ah Mow
testified only that he conducted a test, which involved firing a shotgun under
“ideal laboratory condition[s]” at eight targets placed at various distances.
Although the prosecutor could draw reasonable inferences from the evidence
during closing argument, see State v. Clark, 83 Hawai#i 289, 304, 926 P.2d
194, 209 (1996), the record is clear that Detective Ah Mow did not testify as
to what he believed was the distance between Metcalfe and Kuahuia when the
latter was shot in the back.
-53-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
in issue; and (3) their analysis met a threshold level of
reliability and trustworthiness.18 See Torres I, 122 Hawai#i at
31, 222 P.3d at 438. Finally, we note that it is unclear what
effect these witnesses’ testimony with regard to distance may
have had, given that the appearance of gunshot wounds only on
Kuahuia’s back substantially undermined Metcalfe’s theory of
self-defense.
C. The circuit court’s substitution of the words “opinion
testimony” for the word “expert” in its jury instructions
did not constitute plain error because the given
instructions as a whole accurately stated the law
Although Metcalfe did not object to the “opinion
testimony” instruction at trial, he argues on appeal that the
standard jury instruction on expert testimony was erroneously
modified by the circuit court’s substitution of the words
“opinion testimony” for the word “expert,” and that the
instruction improperly blended HRE Rules 701 and 702. This
argument is without merit because the “opinion testimony”
instruction accurately stated the law.
“When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading.” Nichols,
18
Given our conclusion, we need not address, as the dissent does,
the State’s argument that it was a “legitimate trial tactic” for Metcalfe not
to object to the qualifications of Dr. Manoukian and Detective Ah Mow.
See Dissent at 26-28.
-54-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
111 Hawai#i at 334, 141 P.3d at 981. The failure to strictly
conform to a Hawai#i Standard Jury Instruction Criminal (HAWJIC)
standard jury instruction “does not automatically result in an
incomplete and confusing jury instruction.” State v. Sawyer, 88
Hawai#i 325, 335, 966 P.2d 637, 647 (1998). Furthermore, “[t]he
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.” Id. at 330, 966 P.2d at 642.
The circuit court gave the following instructions on
opinion testimony:
During the trial you heard testimony of one or
more witnesses who were allowed to give opinion
testimony.
Training and experience may make a person
qualified to give opinion testimony in a particular
field. The law allows that person to state an opinion
about matters in the field. Merely because such a
witness has expressed an opinion does not mean,
however, that you must accept this opinion. It is up
to you to decide whether to accept this testimony and
how much weight to give it. You must also decide
whether the witness’s opinions were based on sound
reason, judgment and information.
(Emphasis added).
HAWJIC 4.05 (Dec. 1991), concerning expert witnesses,
states:
During the trial you heard the testimony of one
or more witnesses who were described as experts.
Training and experience may make a person an
expert in a particular field. The law allows that
person to state an opinion about matters in that
field. Merely because such a witness has expressed an
opinion does not mean, however, that you must accept
this opinion. It is up to you to decide whether to
accept this testimony and how much weight to give it.
You must also decide whether the witness’s opinions
were based on sound reasons, judgment and information.
-55-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
(Emphasis added).
The only difference between the instructions given and
HAWJIC 4.05 is that the circuit court used the phrase “allowed to
give opinion testimony” instead of the phrase “described as
experts” in the first paragraph and used the phrase “qualified to
give opinion testimony” instead of the phrase “an expert” in the
second paragraph. The substituted phrases did not materially
alter the instruction, inasmuch as the jury was still informed
that it needed to decide whether to accept the testimony of these
individuals and to determine how much weight to give to this
testimony.
The instructions were not erroneous because they
provided the jurors with understandable guidelines to assist them
in evaluating expert testimony admitted pursuant to HRE Rule 702
in the circumstances of this case. As previously discussed, the
testimony of Dr. Manoukian and Detective Ah Mow was proper expert
testimony under HRE Rule 702. The jury was informed that it
needed to determine whether it would accept the testimony, the
weight to give the testimony, and “whether the witnesses’s
opinions were based on sound reasons, judgment, and information.”
Because the trial court is not required to strictly conform to a
standard jury instruction and because the instructions, as a
whole, accurately stated factors for the jury to consider in
evaluating expert testimony admitted under HRE Rule 702, the
-56-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
circuit court did not plainly err in giving the instructions.
D. The circuit court did not plainly err in instructing the
jury on self-defense
Although Metcalfe did not object to the self-defense
instruction given at trial, he asserts on appeal that the self-
defense instruction was “incomplete, misleading, and contributed
to [his] conviction.” Specifically, Metcalfe argues that: (1)
this court’s decision in State v. Van Dyke, 101 Hawai#i 377, 379-
88, 69 P.3d 88, 90-99 (2003), was applicable to this case; (2)
the omission of the definition of “confinement” constituted
error; (3) the self-defense instruction along with the ICA’s
decision in State v. Lubong, 77 Hawai#i 429, 886 P.2d 766 (App.
1994), erroneously uses the phrase “reasonably prudent person” as
opposed to “reasonable person”; (4) further clarification of the
subjective test was necessary; and (5) the Lubong portion of the
instructions did not specify that the State had a duty to
disprove self-defense beyond a reasonable doubt. As discussed
below, Metcalfe’s contentions are without merit.
First, Metcalfe asserts that, under Van Dyke, the self-
defense instruction should have “first require[d] the jury to
determine the degree of force, i.e. ‘force’ or ‘deadly
force[.]’”19 However, Van Dyke does not stand for this
19
In footnote 5 of his application, Metcalfe points out that this
court has “since repealed the standard self-defense instruction in effect at
the time of [Metcalfe’s] trial” and that the instruction now requires the jury
to first determine whether “force” or “deadly force” was used. However, the
amendment does not appear to reflect a change in the substantive law regarding
(continued...)
-57-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
proposition. There, the defendant, Montez, was charged with the
murder of Henry Paoa after an incident wherein the two men
engaged in a physical altercation. Van Dyke, 101 Hawai#i at 379-
81, 69 P.3d at 90-92. During the altercation, Montez subdued
Paoa by “thrust[ing]” his head into the ground. Id. at 380, 69
P.3d at 91. At trial, Montez asserted self-defense. Id. at 384,
69 P.3d at 95. The jury was instructed on the justifiable use of
“deadly force,” but was not instructed on the justifiable use of
“force,” even though the defendant expressly disputed whether his
use of force constituted “deadly force.” Id. at 387, 69 P.3d at
98. The defendant was subsequently found guilty. Id. On
appeal, this court determined that the circuit court erred in
failing to instruct the jury on the use of “force,” in addition
to the use of “deadly force.” Id. at 387-88, 69 P.3d at 98-99.
In contrast, here, the jury was instructed on both “force” and
“deadly force.” Van Dyke did not hold that the jury must first
determine which kind of force was used, and Metcalfe’s reliance
on Van Dyke is therefore misplaced.
Second, Metcalfe appears to argue that the circuit
court should have instructed the jury regarding the relationship
19
(...continued)
self-defense, but instead appears to provide the jury with more specific
instructions, depending on whether “force” or “deadly force” is at issue. In
any event, the HAWJIC are not law, and a court is not bound by the standard
jury instruction. See HAWJIC introduction (noting that “the Hawai#i Supreme
Court has not approved the substance of any of the pattern instructions”);
State v. Toro, 77 Hawai#i 340, 348, 884 P.2d 403, 411 (App. 1994) (noting that
circuit courts are not required to give standard jury instructions).
-58-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
between “confinement” and self-defense pursuant to HRS § 703-
304(6). HRS § 703-304(6) provides, “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.” Metcalfe appears to argue that he used protective force
in confining Kuahuia by telling him to get on the ground and, the
“jury could have prematurely concluded that self-defense did not
apply” because there was no instruction on confinement.
However, the use of confinement as protective force is not
applicable in this case. Metcalfe was not charged with assault
for confining Kuahuia to the ground, for which an instruction
regarding confinement may be warranted, but rather was charged
with murder in the second degree for firing a shotgun at Kuahuia
resulting in Kuahuia’s death. The State did not rely at trial on
a theory that Metcalfe unlawfully confined Kuahuia, and thus, it
was not plain error to fail to sua sponte instruct the jury on
confinement.
Metcalfe then challenges the portion of the self-
defense instruction given to the jury that was based on Lubong.
In Lubong, the ICA articulated a two-prong framework for
assessing a defendant’s claim of self-defense:
The first prong is subjective; it requires a
determination of whether the defendant had the
requisite belief that deadly force was necessary to
-59-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
avert death, serious bodily injury, kidnapping, rape,
or forcible sodomy.
. . . .
If the State does not prove beyond a reasonable doubt
that the defendant did not have the requisite belief
that deadly force was necessary, the factfinder must
then proceed to the second prong of the test. This
prong is objective; it requires a determination of
whether a reasonably prudent person in the same
situation as the defendant would have believed that
deadly force was necessary for self-protection.
77 Hawai#i at 433, 886 P.2d at 770 (citation omitted).
Thus, Lubong requires that the factfinder consider
whether the use of force was both subjectively necessary and
objectively reasonable to determine if self-defense is
applicable. This court expressly approved of the language used
in Lubong in State v. Culkin, 97 Hawai#i 206, 215, 35 P.3d 233,
242 (2001).
Metcalfe argues that the omission of language to
explain the subjective portion of self-defense made the
instruction in this case incomplete and misleading. In regard to
the subjective prong of self-defense, the jury was instructed:
For this part of the test, you should place yourself
in the shoes of the defendant. If you find that
Defendant did not have the subjective belief that the
force he used was immediately necessary to protect
himself on the present occasion against the use of
unlawful force by the other person, as set forth
above, then the State has disproven the defense of
self defense. If the State has not disproven
Defendant’s subjective belief, then you should go on
the second part of the test [sic].
Metcalfe asserts that the court should have explained
that the jury must “determine the point of view which the
defendant had at the time of the incident, and view the conduct
of the [decedent] with all its pertinent sidelights as the
-60-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
defendant was warranted in viewing it.” (Quoting Lubong, 77
Hawai#i at 433, 866 P.3d at 770). Metcalfe’s argument is without
merit. Here, the jury was instructed that, with regard to the
subjective part of the self-defense test,
you should place yourself in the shoes of the
defendant. If you find that Defendant did not have
the subjective belief that the force he used was
immediately necessary to protect himself on the
present occasion against the use of unlawful force by
the other person, as set forth above, then the State
has disproven the defense of self defense. If the
State has not disproven Defendant’s subjective belief,
then you should go on the second part of the test
[sic].
(Emphasis added).
Lubong requires the jury to “determine the point of
view which the defendant had at the time of the incident”;
similarly, in the present case, the jury was instructed to “place
yourself in the shoes of the defendant.” Lubong also provides
that the jury view the conduct of the decedent with “all its
pertinent sidelights as the defendant was warranted in viewing
it”; here, the jury was told to assess Metcalfe’s “subjective
belief.” “Subjective” is commonly understood as “[b]ased on an
individual’s perceptions, feelings, or intentions, as opposed to
externally verifiable phenomena[.]” Black’s Law Dictionary 1561
(9th ed. 2009). Accordingly, reading the instructions as a
whole, the omission of the specific language of Lubong was not
necessary to further explain the subjective test.
Metcalfe also asserts that the objective portion of the
self-defense instruction was erroneous and misleading. The jury
-61-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
was instructed:
Secondly, you should determine whether a reasonably
prudent person in the same situation as the Defendant
would have believed that the force used was necessary
against the use of unlawful force. If the State has
shown that a reasonably prudent person in the same
situation as the defendant would not have believed
that the force was so necessary, then you must reject
the defense of self defense.
(Emphasis added).
Metcalfe asserts that the circuit court’s substitution
of “reasonably prudent person” for “reasonable person” “created a
higher standard than what was actually required under that
statute[.]” In Lubong, the ICA held that the defense of self-
defense requires an objective determination as to whether a
“reasonably prudent person in the same situation as the defendant
would have believed that deadly force was necessary for self-
protection.” 77 Hawai#i at 433, 886 P.2d at 770. Metcalfe
attempts to distinguish “reasonable person” as provided in HRS
§ 703-304 and “reasonably prudent person” by citing to the
definition of “prudent” as “[h]andling practical matters
judiciously[,]” “[m]anaging carefully[,]” and “[b]ehaving
circumspectly[.]” His attempt to distinguish “reasonable person”
from “reasonably prudent person” is without merit because the
terms are interchangeable and a reasonable juror would not
believe there was a difference between the two terms. See
Black’s Law Dictionary 1380-81 (9th ed. 2009) (noting that
“reasonable person” is “[a]lso termed . . . reasonably prudent
person[.]”). Moreover, Metcalfe presents no further argument in
-62-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
support of overturning Culkin or Lubong. Accordingly,
instructing the jury that it should assess Metcalfe’s claim of
self-defense from the standpoint of a “reasonably prudent person”
was not plainly erroneous.
Finally, Metcalfe asserts that the Lubong portion of
the instruction failed to provide that the State must disprove
self-defense “beyond a reasonable doubt,” even though he
acknowledges that, when viewed as a whole, other portions of the
self-defense instruction contained the correct standard.
Metcalfe’s argument is unpersuasive. As Metcalfe acknowledges,
immediately preceding the Lubong portion of the self-defense
instruction, the jury received an instruction as to the burden of
the State:
Justifiable use of force, commonly known as self
defense is a defense to the charge of Murder in the
Second Degree and Manslaughter. Once there is any
evidence of justification, 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 this burden then you
must find the Defendant Not Guilty of Murder in the
Second Degree and Manslaughter.
(Emphasis added).
Thus, the circuit court was not required to again
instruct the jury of this burden in the Lubong portion of the
instruction.
Accordingly, the given instructions on self-defense,
when considered as a whole, were not “prejudicially insufficient,
erroneous, inconsistent, or misleading[.]” Nichols, 111 Hawai#i
-63-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
at 334, 141 P.3d at 981.
E. The circuit court did not plainly err in failing to sua
sponte instruct the jury on defense of property
Metcalfe contends that he was “entitled” to a defense
of property instruction, pursuant to State v. Stenger, 122
Hawai#i 271, 281, 226 P.3d 441, 451 (2010), because there was
“evidence, no matter how weak” that supported the jury’s
consideration of the defense of property. Metcalfe’s argument
lacks merit because there was no evidence that the charged
offense was committed to defend Metcalfe’s property.
Metcalfe argues that he was defending his property up
until the time that Kuahuia began approaching him, and
accordingly, the jury should have been instructed on defense of
property. However, Metcalfe was not charged with an offense for
the events leading up to Kuahuia approaching Metcalfe. Here,
Metcalfe was charged with Murder in the Second Degree for
allegedly shooting Kuahuia after Kuahuia approached him, and his
sole defense against the charge was self-defense.
Moreover, there is nothing in the record to indicate
that Metcalfe fired the shotgun to protect his property. To the
contrary, Metcalfe expressly denied firing the shotgun to protect
his property and instead testified that, as Kuahuia attacked him,
he fired three shots because he was “scared to death” and was
“thinking about [him]self.” In addition, during closing
arguments, defense counsel argued “make no mistake[,] [t]his case
-64-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
is not about defense of property” and “[Metcalfe] shot [Kuahuia]
because he charged him. He charged him with something that could
have slit his throat. That’s –- that’s what this case is really
all about. This case is about self-defense.” Thus, a defense of
property instruction would have been contrary to the defense’s
theory of the case, i.e., that Metcalfe fired the shotgun at
Kuahuia in self-defense. Furthermore, inclusion of a defense of
property instruction may actually have prejudiced Metcalfe
inasmuch as it could have misled or confused the jury into
thinking that Metcalfe fired the shots at Kuahuia only to defend
his property, which would undermine Metcalfe’s theory of self-
defense. Accordingly, the circuit court did not plainly err for
failing to sua sponte instruct the jury regarding defense of
property.
F. The circuit court did not plainly err in failing to provide
a cautionary instruction on the use of “medical marijuana”
Metcalfe argues that the circuit court erred in failing
to sua sponte give a cautionary instruction regarding references
during testimony and closing arguments to “medical marijuana”
because “there is a reasonable probability that the repetitive
and sustained emphasis on the medical marijuana . . . contributed
to [Metcalfe’s] conviction[.]” However, Metcalfe does not
provide any authority that requires the circuit court to sua
sponte provide the jury with a cautionary instruction on the use
of medical marijuana.
-65-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Moreover, Metcalfe’s argument is without merit because
the testimony adduced at trial did not prejudice Metcalfe.
Jordan testified that he, Metcalfe, and Meech, had medical
marijuana permits, and that on May 6, 2009, he had smoked a
“small amount” that did not affect his memory of the events of
that day. Officer Smith testified that he could smell marijuana,
but could not tell if it was coming from Metcalfe. Metcalfe
acknowledged that he had a medical marijuana permit and that on
the day of the incident he smoked “maybe a gram” of marijuana for
his irritable bowel syndrome. The evidence introduced regarding
medical marijuana indicated that Metcalfe had a permit to legally
possess and use the medical marijuana, and that he used marijuana
for medicinal purposes. Therefore, the absence of a cautionary
instruction was not prejudicial. Accordingly, the circuit court
did not plainly err in not sua sponte providing a cautionary
instruction on the use of medical marijuana.
G. Metcalfe failed to establish that his trial counsel was
ineffective
Metcalfe contends that his trial counsel was
ineffective for the following reasons: (1) failing to “adequately
frame the legal challenge to the State’s re-filing of the charge
by way of preliminary hearing after the grand jury returned a ‘no
bill’” and failing to introduce the grand jury and preliminary
hearing transcripts; (2) failing to object to the testimony of
Dr. Manoukian and Detective Ah Mow, and to the modified expert
-66-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
opinion instruction; (3) disavowing the defense of property in
closing argument and not requesting a defense of property
instruction; (4) failing to object to testimony or request a
cautionary instruction regarding the medical marijuana; (5)
failing to object to the admission of numerous physical items;
(6) eliciting expert ballistics testimony from a lay police
officer witness on cross-examination, in violation of HRE Rules
701 and 702, that was harmful to Metcalfe because it “resulted in
the ‘firearm’ element possibly being proved”; (7) failing to
object to the measurements from the “Total Station Device,” which
was allegedly not properly calibrated or in proper working order;
and (8) failing to develop Dr. Manoukian’s testimony on the
potential gunshot residue. As discussed below, Metcalfe’s claims
are without merit.
To succeed on his claim of ineffective assistance of
counsel, Metcalfe 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
327 (citation omitted).
First, Metcalfe argues that his trial counsel was
ineffective in arguing in his motion to dismiss that the State’s
re-filing of the complaint was barred by double jeopardy and
collateral estoppel. Metcalfe asserts that the issue instead
-67-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
should have been framed as “prosecutorial misconduct,
impropriety, and bad faith” because the prosecutor failed to
provide exculpatory evidence at the preliminary hearing.
However, the record is insufficient to establish that Metcalfe’s
trial counsel was ineffective in this respect, because there is
nothing in the record to indicate that the State failed to
present exculpatory evidence at the preliminary hearing.
In State v. Hall, this court determined that the State
must present the grand jury with evidence that is “clearly
exculpatory.” 66 Haw. 300, 302, 660 P.2d 33, 34 (1983). It
appears that this court has not yet considered whether to extend
this requirement to preliminary hearings. However, assuming that
the “clearly exculpatory” requirement applies, the record is
insufficient to determine whether the State failed to present
“clearly exculpatory” evidence at the preliminary hearing,
because the grand jury and preliminary hearing transcripts are
not contained in the record on appeal. Moreover, Metcalfe does
not present any argument as to the nature of the exculpatory
evidence that the State allegedly failed to present.
Metcalfe also argues that his trial counsel was
ineffective in failing to present the grand jury and preliminary
hearing transcripts to the circuit court with his motion to
dismiss. Again, however, there is nothing in the record to
establish that the failure to admit the transcripts “resulted in
either the withdrawal of substantial impairment of a potentially
-68-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
meritorious defense.” See Wakisaka, 102 Hawai#i at 514, 78 P.3d
at 327 (citation omitted). Without the transcripts in the
record, it is not clear that the transcripts would have supported
Metcalfe’s assertion that the State failed to present exculpatory
evidence at the preliminary hearing. It therefore would appear
that Metcalfe’s arguments could properly be raised in a Hawai#i
Rules of Penal Procedure (HRPP) Rule 40 Petition, which would
allow Metcalfe to bring the transcripts of the grand jury and
preliminary hearings, as well as trial counsel’s reasons for
failing to include those transcripts in the record, before the
trial court to support his claim of ineffective assistance of
counsel. See Fields, 115 Hawai#i at 529 n.17, 168 P.3d at 981
n.17 (“[W]e believe that deciding the issue at the present time,
without affording the parties the benefit of argument and the
opportunity to present a complete record, is inappropriate.”)
(emphasis added).
Second, Metcalfe asserts that his trial counsel was
ineffective for failing to object to the testimony of Dr.
Manoukian and Detective Ah Mow, and for failing to object to the
modified “expert” opinion instruction. As discussed supra,
however, both Dr. Manoukian and Detective Ah Mow had the
requisite “knowledge, skill, experience, training or education”
to offer an opinion on “scientific, technical, or other
specialized knowledge[,]” as required in HRE Rule 702. Moreover,
Metcalfe used the testimony of Dr. Manoukian and Detective Ah Mow
-69-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
to establish his theory of the case, i.e., that Kuahuia was shot
from a close distance. In addition, the given jury instruction
regarding the opinion testimony was not erroneous because it
provided the jurors with understandable guidelines to assist them
in evaluating the testimony of Dr. Manoukian and Detective Ah
Mow. Because the testimony and instruction were proper, trial
counsel’s failure to object did not result in the “withdrawal or
substantial impairment of a potentially meritorious defense.”
See Wakisaka, 102 Hawai#i at 514, 78 P.3d at 327. Accordingly,
trial counsel was not ineffective for failing to object to the
testimony of Dr. Manoukian and Detective Ah Mow or for failing to
object to the instruction on the opinion testimony.
Third, Metcalfe asserts that his trial counsel was
ineffective for disavowing the defense of property and not
requesting a defense of property instruction. As discussed
supra, a defense of property instruction was not warranted and
could have undermined Metcalfe’s theory of the case, i.e., that
he fired the shotgun in self-defense. Thus, it was not
ineffective for Metcalfe’s trial counsel to disavow defense of
property and to not request a defense of property instruction.
See Briones, 74 Haw. at 462-63, 848 P.2d at 976 (“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.”).
Fourth, Metcalfe’s arguments that his trial counsel was
-70-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
ineffective for failing to: (1) object to the questioning of
witnesses, including Metcalfe, about medical marijuana; (2)
object to the testimony of Officer Smith about being a drug
recognition expert and his opinion as to whether Metcalfe was
under the influence of marijuana; (3) object to the State’s
Exhibit 76, which was a photograph of the inside of Metcalfe’s
greenhouse containing Metcalfe’s medical marijuana plants; and
(4) request a cautionary instruction on the admission of the
medical marijuana evidence.
With regard to the questioning of witnesses and
Metcalfe about the medical marijuana, Metcalfe argues that the
testimony was irrelevant and more prejudicial than probative.
However, as discussed supra, the testimony elicited regarding
medical marijuana usage was not prejudicial. In addition,
questioning about the medical marijuana was relevant to
determining Jordan’s and Metcalfe’s perception of the events and
their ability to remember what occurred.
With regard to Officer Smith’s testimony, Metcalfe does
not state the objection that should have been raised. Thus, this
argument may be deemed waived. HRAP Rule 40.1(d)(4) (“The
application . . . shall contain . . . [a] brief argument with
supporting authorities.”) (emphasis added). In addition, Officer
Smith’s testimony was relevant and probative of Metcalfe’s
perception and ability to recall the incident.
In regard to the photograph of Metcalfe’s medical
-71-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
marijuana plants, Detective Bird stated that the photograph
accurately depicted the scene at the time the photograph was
taken and that the plants in the photograph looked like marijuana
plants, but she “didn’t test ‘em[.]” Any error in admission of
the photograph was harmless because Metcalfe testified that he
had a permit for ten medical marijuana plants that were in his
greenhouse, and thus, evidence regarding the marijuana plants was
not unduly prejudicial.
With regard to the failure to request a cautionary
instruction on medical marijuana, as discussed supra part III(E)
of this opinion, a cautionary instruction was not necessary, and
thus, there was no withdrawal or substantial impairment of a
meritorious defense in failing to request such an instruction.
Accordingly, Metcalfe’s trial counsel was not ineffective for
failing to object to the medical marijuana testimony and
photograph.
Fifth, Metcalfe asserts that his trial counsel was
ineffective for failing to object to numerous physical items “for
which no authentication or relevance was established[.]”
Specifically, Metcalfe cross-references his opening brief and
challenges the admission of a blue tank top, blue pants, light
blue shorts, a firearm, 22 unspent Winchester 12-gauge shotgun
shells, a hacksaw, a rubber slipper, three spent shotgun shells,
and pellets recovered from different organs in Kuahuia’s body.
This argument may be disregarded because Metcalfe does not
-72-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
present any argument as to how trial counsel’s failure to
challenge the admission of the physical evidence detrimentally
affected his defense. HRAP Rule 40.1(d)(4) (“The application
. . . shall contain . . . [a] brief argument with supporting
authorities.”) (emphasis added). Moreover, it appears that
Metcalfe relied on some of the physical evidence to support his
defense. For example, during closing argument, Metcalfe argued
that he “subjectively believed that his life was in danger”
because Kuahuia was holding the hacksaw recovered at the scene,
which was entered into evidence by the State without objection by
defense counsel. Accordingly, trial counsel’s decision to not
object to the admission of these items had an “obvious tactical
basis” that benefitted Metcalfe’s case. Briones, 74 Haw. at 462-
63, 848 P.2d at 976 (“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.”).
Accordingly, trial counsel’s decision to not object to the
admission of the physical evidence “will not be subject to
further scrutiny.” Briones, 74 Haw. at 462-63, 848 P.2d at 976.
Sixth, Metcalfe asserts that trial counsel’s cross-
examination of Officer Smith regarding the shotgun “resulted in
the withdrawal of the potentially meritorious defense of
insufficient evidence of the ‘firearm’ element.” Officer Smith
testified on cross-examination about the mechanism of a shotgun,
the differences between varying shotgun shells, and his prior
-73-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
experience hunting and shooting with a number 6 birdshot
ammunition. Metcalfe’s argument lacks merit because there was
sufficient evidence of the firearm element without the testimony
of Officer Smith, specifically through the testimony of Dr.
Manoukian, who stated that Kuahuia died due to “a shotgun wound
to the back[,]” and Detective Ah Mow, who stated that a “Browning
. . . semi-automatic 12-gauge shotgun” was recovered during the
investigation. HRS § 134-1 (1993) defines “firearm” as “any
weapon, for which the operating force is an explosive, including
but not limited to pistols, revolvers, rifles, shotguns,
automatic firearms . . . .” (Emphasis added). In addition,
Metcalfe himself testified that there was a bright flash of light
when he pulled the trigger and that he fired a “shotgun.”
Accordingly, Metcalfe was not denied a potentially meritorious
defense.
Seventh, Metcalfe’s argument that his trial counsel was
ineffective for failing to object to the measurements from the
Total Station device is also without merit. Metcalfe asserts
that the failure to object to the admission of the measurements
resulted in “the substantial impairment of [Metcalfe’s] self-
defense.” Specialist Wong testified that she was asked to take
measurements of the scene, and she used a Total Station device to
measure the distance between objects recovered from the scene,
which “appear[ed] to be working as it should” and gave no
indication that data recovered was wrong. On cross-examination,
-74-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Specialist Wong testified that she did not know if the Total
Station device used to measure the distance between multiple
objects recovered from the scene had been calibrated. It appears
that trial counsel made a strategic decision to not object to the
admission, but instead impeached the witness on cross-
examination. See Briones, 74 Haw. at 462-63, 848 P.2d at 976(“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.”). In addition, it
appears that Metcalfe relied upon one of the Total Station
device’s measurements to support his theory of the case.
Specialist Wong testified that, using the Total Station, she
measured the distance between a hacksaw and the closest shell
casing as being approximately 47.8 feet. In closing arguments,
Metcalfe, appearing to rely on the measurement between the shell
casing and the hacksaw, argued that Kuahuia ran “47 feet” with
the hacksaw before he dropped it. In sum, Metcalfe contended
that Kuahuia had the hacksaw as he tried to break into Metcalfe’s
greenhouse, charged Metcalfe while holding the hacksaw, and
subsequently dropped the hacksaw 47 feet away from the
greenhouse. Accordingly, trial counsel made a strategic decision
to rely on one of the measurements obtained from the Total
Station device to support his theory of the case. See id.Assuming arguendo that the admission of the
measurements was error, such error was harmless. In the instant
-75-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
case, there was other evidence concerning the distance between
the casings and the hacksaw at the time of the shooting.
Numerous photographs were entered into evidence by the State,
without objection by the defendant at trial or on appeal, that
accurately depicted the scene of the incident and generally
depicted the distance between the hacksaw and the used shotgun
shells. For example, State’s Exhibit 86 depicts a view “from the
top of [Metcalfe’s] driveway looking down” towards the direction
that Kuahuia’s body was found, and shows two of the used shotgun
shells and the small hacksaw at a further distance. Thus,
assuming arguendo that the admission of the data from the Total
Station device was error, it was harmless. Accordingly, Metcalfe
does not show that the error resulted in the withdrawal or
substantial impairment of a potentially meritorious defense.
Eighth, Metcalfe’s assertion that his trial counsel was
ineffective for failing to develop Dr. Manoukian’s testimony as
to whether there was gunshot residue on Kuahuia’s hand lacks
merit. On cross-examination, Detective Iwamoto stated that she
could not recall if Dr. Manoukian performed a gunshot residue
test, which involves performing a swab of the decedent’s hand, to
determine if Kuahuia had gunshot residue on his hand. Metcalfe
uses trial counsel’s questioning of Detective Iwamoto about
whether gunshot residue was present on Kuahuia’s hand as an
opportunity to support his argument that Dr. Manoukian should
have been similarly questioned about the presence of gunshot
-76-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
residue because “[t]he presence of gunshot residue on [Kuahuia’s]
hands would contradict the prosecution’s theory that the shotgun
was fired from a 60-foot distance[.]” There was no evidence
adduced, however, that suggested that gunshot residue was indeed
on Kuahuia’s hand, and any cross-examination of Dr. Manoukian on
this point would have been of limited value. Thus, Metcalfe
fails to show that trial counsel’s failure to question Dr.
Manoukian about the gunshot residue impaired a potentially
meritorious defense.
Accordingly, Metcalfe failed to establish that his
trial counsel was ineffective.
IV. Conclusion
For the reasons set forth in this opinion, we affirm
the ICA’s judgment on appeal, which affirmed the circuit court’s
March 25, 2010 judgment of conviction and sentence.
Summer M.M. Kupau for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Ricky R. Damerville for
respondent /s/ Sabrina S. McKenna
-77-