State v. Scott

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUL-2022
07:57 AM
Dkt. 51 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
ERIC SCOTT, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Plaintiff-Appellant State of Hawai#i appeals from the:
(1) "Order Excluding Evidence of Test Result at Trial Pursuant to
Hawaii Rules of Evidence (H.R.E.) Rules 104 and 702" entered by
the Circuit Court of the First Circuit on December 17, 2019
(Exclusion Order); and (2) "Order Granting Defendant's Oral
Motion to Dismiss and Dismissing this Case with Prejudice"
entered by the circuit court on December 6, 2019 (Dismissal
Order).1 For the reasons explained below, we affirm the
Exclusion Order and the Dismissal Order.
Defendant-Appellee Eric Scott was charged by felony
information with two counts of Promoting a Dangerous Drug in the
Third Degree in violation of Hawaii Revised Statutes (HRS) § 712-
1243. Count 1 alleged that Scott possessed methamphetamine;
1
The Honorable Karen T. Nakasone presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Count 2 alleged that Scott possessed heroin. Scott pleaded not
guilty. The State moved to nolle prosequi Count 1. The circuit
court granted the motion and dismissed Count 1 with prejudice.
Only Count 2 remained.
The circuit court conducted a Hawaii Rules of Evidence
(HRE) Rule 104 hearing on November 20 and 22, 2019.2 At issue
was whether a test result (allegedly showing that the substance
recovered from Scott's van was heroin) would be admissible at
trial. The circuit court orally ruled that the test result was
not admissible. Scott then orally moved to dismiss the remaining
count. The circuit court orally granted the motion and dismissed
Count 2 with prejudice. The Exclusion Order and the Dismissal
Order were subsequently entered. This appeal followed.
The State contends that the circuit court erred by:
(1) excluding the State's expert's opinion that an unknown
substance was heroin based on insufficient foundation;
(2) refusing to admit State's Exhibit 18 into evidence; and
(3) dismissing the case against Scott.
(1) "A fundamental evidentiary rule is that before the
result of a test made out of the court may be introduced into
evidence, a foundation must be laid showing that the test result
can be relied on as a substantive fact." State v. Subia, 139
Hawai#i 62, 66, 383 P.3d 1200, 1204 (2016) (cleaned up). "A
proper foundation for introducing a test result . . . include[s]
expert testimony regarding: (1) the qualifications of the expert;
(2) whether the expert employed valid techniques to obtain the
test result; and (3) whether the measuring instrument is in
proper working order." Id. (cleaned up). The determination of
whether proper foundation has been established for the admission
2
HRE Rule 104 provides, in relevant part:
(a) Questions of admissibility generally. Preliminary
questions concerning the qualification of a person to be a
witness . . . or the admissibility of evidence shall be
determined by the court[.]
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of evidence lies within the discretion of the trial court; we
review for abuse of discretion. Id.The State called Honolulu Police Department (HPD)
criminalist Dawn Nakamura as a witness for the HRE Rule 104
hearing. The circuit court qualified Nakamura as an expert in
"forensic science with subspecialty in drug analysis and
identification."
Nakamura testified that she tested a black, tar-like
substance collected as evidence in Scott's case to determine
whether it contained heroin. She performed two tests on the
evidence: a presumptive color test using a chemical, and a
confirmatory test using a gas chromatograph mass spectrometer
(GCMS). The color test indicated the evidence possibly contained
heroin.
Nakamura then ran a confirmatory test using the GCMS.
She explained that the GCMS "is a two-part instrument." The gas
chromatograph separates the components of the substance being
tested. The mass spectrometer then breaks up each component into
a unique, reproducible fragmentation pattern. A sample of a
known drug (called a "positive control") is then run through the
GCMS. The positive control "is a known drug that [HPD]
purchase[s] through a reputable company that we can then use to
review that data against the unknown." If the fragmentation
pattern of the evidence being tested matches that of the positive
control, the evidence is identified. The confirmatory test
showed that the evidence in Scott's case contained heroin.
On cross-examination, Nakamura testified:
Q. I guess what I'm talking about is the actual
reference standard that you're comparing the unknown to.
How do you know that the reference sample is actually a true
reflection of heroin and not some other contaminant that's
been introduced into the GC/MS device?
A. I see. So we purchase the -- in this case, a
heroin standard from a reputable company. It comes with a
certificate of analysis on what the item is, but we still in
the laboratory do not take for granted that that is what we
were shipped. Therefore, prior to even using it on a
casework, we will run the standard, which is supposed to be
heroin, either on a GC/MS or on another instrument, and then
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we will look at that spectrum that we receive and compare
that to a reputable published reference. And if it has --
if the spectrum is the same and we can -- it passes all of
the criteria set forth in the laboratory, we can then say
that we did, in fact, receive a heroin standard. And at
that point, it has been verified and fit for use in our
laboratory.
Q. And in this particular analysis, do you know
who prepared the working reference standard?
A. Not off of the top of my head but we do have
records in our laboratory to track who had made that
standard.
Q. And you're assuming that the standard was
tested correctly according to whatever procedures are in
place to give you a correct reading that the reference
sample is actually heroin and not some other contaminant?
A. Yes, we have all of the paperwork in our
laboratory to verify that those checks had been done.
Q. You personally haven't verified it on the
machine?
A. I may have. I -- I -- I may have been the one
that actually made the standard in this case, but I am not
sure. Again, I would have to reference back.
Q. And you can't tell me when this working
standard was created?
A. Again, that is all in our paperwork, and I
would be able to reference -- reference the paperwork and
let you know.
The State did not introduce the HPD drug analysis
laboratory records or "paperwork" establishing that the positive
control used to test the evidence in Scott's case was in fact
heroin. During closing argument the circuit court questioned
whether the positive control had been proven to be heroin:
THE COURT: The known heroin stamp, where is the
accuracy on that being a standard?
[DEPUTY PROSECUTOR]: Your Honor, it's the State's
position that that is not a foundational requirement
required by case law.
Case law requires that we show for foundation that the
instrument was in proper working order, not that the
standard used is actually heroin.
That is a determination on -- after cross-examination
in front of a jury to determine whether or not they believe
that the heroin standard is, in fact, heroin. It's a weight
issue, not an admissibility issue.
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Defense counsel argued:
Where do they get this heroin? They get it from certified
labs, and I'm pretty sure you got to go through a lot of
paperwork if you want to get -- buy heroin, you know, from a
lab.
They're going to send you a certificate -- you know, a
certificate that says, Analysis, this is heroin, and then
there would be a paper trail in terms of that going to the
lab, and the lab doing their own verification to ensure that
their method is the correct method in terms of determining
that this is heroin, yet we don't know if that was done, or
when it was done, or who did it, or if it was done
correctly.
How do we even know that the sample that they're
comparing it to is even heroin? We don't.
The circuit court asked:
THE COURT: Okay. I have one more question to you, to
either counsel.
Is there HPD SOP on the procedure, any certification
procedure regarding how they go about obtaining the known
samples?
[DEFENSE COUNSEL]: Yes, there is.
THE COURT: Did that come out in evidence?
[DEFENSE COUNSEL]: It --
THE COURT: It did not.
[DEFENSE COUNSEL]: It did not.
THE COURT: But it exists?
[DEFENSE COUNSEL]: It exists, specifically, in their
operating manual, um, and their quality manual discusses the
procedures in terms of paper trail and making sure that the
proper certificates are on file to ensure that it is.
THE COURT: Okay. If it didn't come out in evidence I
won't ask anymore about it.
[DEPUTY PROSECUTOR]: I believe that Ms. Nakamura
testified that the heroin is acquired from a reputable
company, and then tested on its own in HPD, but I believe
that's the extent of the evidence --
THE COURT: Okay.
[DEPUTY PROSECUTOR]: -- as for the heroin standard.
[DEFENSE COUNSEL]: And that's, I mean, that's kind of
one of the reasons why I didn't go into it. I didn't think
they'd established a foundation to even kind of raise the
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issue. She doesn't know where it came from or who tested
it.
THE COURT: Okay.
[DEPUTY PROSECUTOR]: May I respond to that.
THE COURT: Yeah, you can.
. . . .
[DEPUTY PROSECUTOR]: So the questions about whether or
not the known -- the heroin standard is actually heroin or
not, State submits that that is a determination for the
jury, we just need to show that the data that's printed out
from the instrument is reliable, and it is.
The Exclusion Order contained a finding of fact which
provided, in relevant part:
8. The first tier of the "positive and negative
controls" was not established, as there was no foundation
that the "known" drug sample purported to be heroin,
purchased by the Crime Lab, was, in fact, heroin.
This negative finding was supported by the lack of substantial
evidence, and was not clearly erroneous. Nakamura did not
remember whether she personally verified that the positive
control was in fact heroin, and the HPD records and paperwork to
which she would refer were never introduced into evidence.
The Exclusion Order contained the following conclusion
of law:
4. In the instant case, the unknown sample in this
case was tested against a known "heroin" drug sample, yet
there was no foundation laid that the known sample was in
fact heroin . . . . The record must contain accurate and
reliable evidence that the known sample used in this case to
test the unknown substance, was heroin.
This conclusion was not wrong. See State v. Wallace, 80 Hawai#i
382, 407, 910 P.2d 695, 720 (1996) ("The reliability of expert
testimony supplying scientific evidence depends upon the proper
application of valid techniques grounded in valid underlying
principles. It is axiomatic that such reliability is not
possible in the absence of a sound factual foundation.") (cleaned
up) (emphasis added). The circuit court did not abuse its
discretion by ruling that the State failed to lay a proper
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foundation for admission of the GCMS test result to prove that
the evidence obtained from Scott's van contained heroin.
(2) Because we conclude that the circuit court did not
err by excluding the GCMS test result, we need not decide whether
the circuit court erred by refusing to admit State's Exhibit 18
(the GCMS preventive maintenance check signed by Dorian Taylor)
into evidence.
(3) The State's only argument in support of its
contention that the circuit court erred by dismissing the case
against Scott is that the circuit court "erred when it excluded
Nakamura's expert opinion that the unknown substance was
heroin[.]" The State conceded that it could not proceed to trial
without the GCMS test result. Because we conclude that the
circuit court did not err by excluding the GCMS test result, we
also conclude that the circuit court did not err by granting
Scott's motion to dismiss.3
For the foregoing reasons, the circuit court's
December 17, 2019 Exclusion Order and December 6, 2019 Dismissal
Order are affirmed.
DATED: Honolulu, Hawai#i, July 29, 2022.
On the briefs:
/s/ Katherine G. Leonard
Chad M. Kumagai, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge
William H. Jameson, Jr., /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
State of Hawai#i,
for Defendant-Appellee.
3
The State does not argue that the dismissal should have been
without prejudice. We note that the circuit court addressed the factors
adopted in State v. Estencion, 63 Haw. 264, 269, 625 P.2d 1040, 1044 (1981),
before dismissing the case with prejudice.
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