STATE v. METCALFENo. 30518.
STATE OF HAWAI'I, Plaintiff-Appellee,
KEVIN C. METCALFE, Defendant-Appellant.
KEVIN C. METCALFE, Defendant-Appellant.
Intermediate Court of Appeals of Hawaii.
March 30, 2012.
On the briefs: Karen T. Nakasone, Deputy Public Defender, for Defendant-Appellant. Ricky R. Damerville, Deputy Prosecuting Attorney, County of Hawaii for Plaintiff-Appellee.
By: Nakamura, C.J., Foley and Ginoza, JJ.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Defendant-Appellant Kevin C. Metcalfe (Metcalfe) appeals from the March 25, 2010 judgment entered by the Circuit Court for the Third Circuit (circuit court)
On appeal, Metcalfe asserts the following points of error: (1) the circuit court erred in denying his motion to dismiss; (2) the circuit court plainly erred in allowing improper lay opinion testimony of Dr. Anthony Manoukian (Dr. Manoukian) and Detective Walter Ah Mow (Det. Ah Mow), where the prosecution failed to qualify them as experts under Hawaii Rules of Evidence (HRE) 702; (3) the circuit court plainly erred in giving a wrong jury instruction regarding opinion testimony, which was modified from a standard expert witness instruction, because there was no expert witness testimony; (4) the circuit court plainly erred in giving an erroneous self-defense instruction; (5) the circuit court plainly erred in failing to give an instruction on defense of property; (6) the circuit court plainly erred in failing to give a cautionary jury instruction regarding medical marijuana; (7) there was insufficient evidence that the shotgun fired by Metcalfe was a "firearm;" and (8) trial counsel rendered ineffective assistance of counsel.
For the reasons discussed below, we affirm.
This case arises from an incident on May 6, 2009, wherein Metcalfe fired a shotgun and Larry Kuahuia (Kuahuia) was killed. Metcalfe was charged with one count of Murder in the Second Degree and one count of Carrying or Use of Firearm in the Commission of a Separate Felony.
On December 7, 2009, Metcalfe filed a motion to dismiss the amended complaint on double jeopardy and collateral estoppel grounds. After a hearing on January 28, 2010, the circuit court issued an order denying the motion to dismiss. The circuit court held that there was "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."
A jury trial was held on February 2, 3, 4, 9, 10, and 11, 2010. The prosecution presented evidence seeking to show, among other things, that decedent Kuahuia was shot in the back and from a distance.
Metcalfe testified in his defense that, at approximately 10:30 p.m., he confronted Kuahuia after an alarm indicated someone was on Metcalfe's property and Metcalfe saw via a surveillance monitor that someone was outside his greenhouse and trying to cut through a shade cloth. The greenhouse contained Metcalfe's tools and medical marijuana plants. After approaching the area with his shotgun, Metcalfe claims that he saw Kuahuia crouched on the ground. Metcalfe claims that he told Kuahuia, among other things, that he had a gun and to get on the ground, but Kuahuia came towards and then jumped toward Metcalfe holding something Metcalfe thought was a cutting instrument. Metcalfe claimed that he pulled the trigger on his shotgun in self-defense.
A. No Error In Denying Metcalfe's Motion to Dismiss
To the extent it can be understood, Metcalfe appears to argue on appeal that, because his trial counsel failed to provide the circuit court with evidence regarding the grand jury and preliminary hearing proceedings, the trial court somehow erred in denying Metcalfe's motion to dismiss without any records or files in evidence. Metcalfe's motion to dismiss had asserted that because probable cause for the charges was found at the preliminary hearing, after a grand jury had previously issued a "no bill," the State was precluded by collateral estoppel and double jeopardy from re-litigating the issue of probable cause. The declaration of Metcalfe's trial counsel, attached to the motion to dismiss, had also claimed that the finding of probable cause in the preliminary hearing was made "when the prosecutor omitted significant evidence that the grand jury heard, some of which was exculpatory from this preliminary examination, and thus [the judge] did not have the benefit of hearing the entire circumstances of the offense."
Metcalfe's opening brief makes the seemingly conflicting argument that a party alleging error has the duty of demonstrating error by bringing the appropriate record before the court, that in this case his trial counsel failed to provide the circuit court with the transcripts from the grand jury and preliminary hearing proceedings, and that the circuit court then abused its discretion by denying the motion to dismiss "without reviewing the evidence." Even if we presume Metcalfe has not waived this point of error for failure to present a discernible argument,
To the extent Metcalfe's point of error challenges the circuit court's decision on double jeopardy grounds, double jeopardy only applies after "jeopardy" has attached, which in the case of a jury trial occurs when a jury is empaneled and sworn.
We conclude there is no merit regarding this point of error.
B. No Plain Error In Allowing the Testimony of Dr. Manoukian and Pet. Ah Mow
Metcalfe argues on appeal that the trial court plainly erred in permitting the testimony of Dr. Manoukian and Det. Ah Mow because they were both proffered as lay opinion witnesses, although their respective testimony demonstrated expert knowledge. The State never proffered Dr. Manoukian or Det. Ah Mow as "experts," and the circuit court never expressly qualified them as such. Because Metcalfe did not object to Dr. Manoukian or Det. Ah Mow's testimony, we review Metcalfe's point of error under the plain error standard of review.
The testimony by Dr. Manoukian and Det. Ah Mow constituted "expert testimony" governed by HRE Rule 702, because their testimony involved "scientific, technical, or other specialized knowledge[.]" The State does not contest that these witnesses gave expert testimony. Dr. Manoukian testified, among other things: that he performed an autopsy on defendant Larry Kuahuia, and that in his opinion, "within the bounds of reasonable medical certainty," Kuahuia died due to a shotgun wound to the back; that pictures taken during the autopsy showed "parallel grazing wounds" on each side of Kuahuia's torso, which indicated the trajectory of the shotgun wound was back to front; and that the approximate range of firing could be estimated by multiplying the diameter of the pellet injury times three and converting it to feet, which was approximately 60 feet in this case.
Det. Ah Mow tested the shotgun that was recovered at the scene, using the same type of ammunition recovered at the scene, to conduct a shotgun pattern test to "determine the distance of... the shotgun as the pellets go through the barrel and make a spread pattern onto a target." Det. Ah Mow fired a silhouette target from eight different distances, which demonstrated generally that the spread pattern increased as the distance increased. Det. Ah Mow also testified as to the distances that the shotgun shells were ejected.
We conclude that allowing Dr. Manoukian and Det. Ah Mow to testify without the circuit court designating them as expert witnesses was not plain error. Where a defendant argues for the first time on appeal that failure to formally qualify a witness as an expert is error, but does not argue that the witness is not qualified, or that his or her testimony or methods are inadequate, any such error by the trial court is harmless.
Additionally, the testimony by Dr. Manoukian and Det. Ah Mow demonstrates that they qualify as experts under HRE 702, and thus any error in allowing their testimony did not affect the fairness, integrity, or public reputation of the judicial proceedings.
HRE Rule 702 establishes three conditions for the receipt of expert testimony: (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 determine a fact in issue [;]" and (3) the expert's analysis must meet a threshold level of reliability and trustworthiness.
In this case, both Dr. Manoukian and Det. Ah Mow are qualified by knowledge, skill, experience, training, or education, as evidenced by their testimony on direct examination.
Similarly, it is clear that the disputed testimony was relevant given Metcalfe's theory of self-defense and his claim that he shot at Kuahuia as Kuahuia charged toward him.
The testimony by Dr. Manoukian and Det. Ah Mow was also reliable. Dr. Manoukian described in detail the basis for his opinion that decedent was shot in the back at an approximate distance of 60 feet, including: parallel sets of grazing wounds on each side of decedent's torso showing a back to front trajectory of the bullets; the spread of numerous entry wounds on the back; the lack of any "large central defect" that would indicate a close-range firing; a general rule of thumb used in pathology whereby the diameter of the pellet injury times three equals a ballpark figure of the distance in feet between the decedent and the barrel of the shotgun; the fact that the only injuries he observed to the front of Kuahuia's body were abrasions or scraping; and there was nothing to indicate Kuahuia was shot in the front of his body. Dr. Manoukian has qualified as an expert in other cases in this state, including in the area of forensic pathology.
Det. Ah Mow testified that the semi-automatic shotgun he used during his test firing was the same shotgun recovered from the crime scene. He explained that the purpose of the test fire was to determine the distance of the shotgun as the pellets go through the barrel and make a spread pattern onto a target. He shot eight standard police silhouette targets, at distances of 10, 20, 30, 40, 50, 55, 47 feet 8 inches,
Metcalfe argues, pursuant to
The circuit court did not plainly err in allowing the testimony of Dr. Manoukian and Det. Ah Mow.
C. No Plain Error in the Jury Instruction on Opinion Testimony
Metcalfe argues that the standard jury instruction on expert witness testimony was erroneously modified by the trial court's substitution of the words "opinion testimony" for the word "expert," that the instruction improperly blended HRE Rules 701 and 702, tracked the language of neither rule, and thus ran afoul of both rules. We review the circuit court's jury instructions under the harmless beyond a reasonable doubt standard.
The circuit court gave the following instructions:
Hawai'i Standard Jury Instruction Criminal(HAWJIC) 4.05 (Dec. 1991), related to expert witnesses, states:
The only difference between the instructions given and standard jury instruction 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. Because the given instructions as a whole accurately state the law, the instructions are not in error.
D. No Error in the Jury Instruction on Self-Defense
Metcalfe argues that the self-defense instruction was erroneous in that: (1) it lacked a two-part inquiry as required by
As to Metcalfe's first contention, the circuit court did not run afoul of
Metcalfe's second argument is that the self-defense instruction was erroneous in that it did not contain the definition of "confinement" under HRS § 703-304(6), which he contends was applicable to this case. The circuit court did not err in omitting the definition of "confinement" because it was not warranted or applicable. There was no evidence that Kuahuia was confined. Moreover, Metcalfe fails to argue how justifiable confinement would be relevant to the charges brought against him of: Murder in the Second Degree; and Carrying or Use of Firearm in the Commission of a Separate Felony (Murder in the Second Degree).
Metcalfe's third argument is that the
Metcalfe next contends that the self-defense instruction was erroneous because it "omitted the
Finally, Metcalfe argues that the
In sum, the circuit court did not err in its instructions on self-defense. The instructions, when considered as a whole, are not prejudicially insufficient, erroneous, inconsistent, or misleading.
E. Jury Instruction on Defense of Property Was Not Required
Metcalfe argues that the circuit court erred in failing to instruct the jury on the defense of property, asserting that a trial court has the duty to sua sponte instruct the jury on a particular defense if: (1) it appears that the defendant is relying on such a defense; or (2) if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.
Metcalfe fails to demonstrate that he relied on the justification of defense of property. Rather, he argues that the circuit court should have instructed on the defense of property because he "did not specifically disavow the defense.". However, Metcalfe's having not disavowed the defense is not equivalent to having relied on the defense.
Additionally, there was not substantial evidence to support a justification based on defense of property. Metcalfe argues that his initial conduct in arming himself, confronting Kuahuia, and his actions up until the point that he discharged the shotgun, supported a defense of property. Metcalfe is not charged, however, with the actions prior to discharge of the shotgun. Rather, the charge of Murder in the Second Degree asserted that he intentionally or knowingly caused the death of Kuahuia, and the charge of Carrying or Use of Firearm in the Commission of a Separate Felony asserted, inter alia, that he intentionally used a firearm while engaged in the commission of a separate felony. Murder in the Second Degree. Metcalfe did not contend at trial that he shot at Kuahuia in order to protect his property. Rather, Metcalfe testified that, as Kuahuia was approaching him, he initially fired a warning shot because he was "scared to death," Kuahuia was attacking him, and when asked "were you thinking about your property, or were you thinking about something else," Metcalfe responded "I was thinking about myself.". Metcalfe testified that from the flash of the warning shot, he could see Kuahuia and it appeared Kuahuia was still coming towards him. Metcalfe testified that he subsequently fired the gun again.
The circuit court was not required in this case to give an instruction on defense of property.
F. Cautionary Jury Instruction on Medical Marijuana Not Required
Metcalfe argues, for the first time on appeal, that the circuit court erred in failing to issue a cautionary instruction to the jury in order to "clarify, and clearly impress upon the jury, that there was nothing criminal or wrong, with the possession and use of medical marijuana by Metcalfe, Rocky, and Meech, who all had medical marijuana permits." Metcalfe fails to present any authority that would require the circuit court to give such a "cautionary instruction." Moreover, there was testimony to the effect that permits were issued in Hawai'i allowing medical marijuana use, including to Metcalfe. We conclude there was no plain error by the circuit court in not providing a cautionary instruction as asserted by Metcalfe.
G. Sufficient Evidence Regarding a Firearm
Metcalfe argues that there was insufficient evidence that the shotgun was a "firearm" as defined in HRS § 134-1 (1993 Repl.) because " [n]o witness testified that the shotgun was a `firearm ... for which the operative force is an explosive[.]'" Metcalfe's argument is without merit. HRS § 134-1 defines "firearm" as "any weapon, for which the operating force is an explosive,
H. Ineffective Assistance of Counsel Not Established
Metcalfe argues that he had ineffective assistance of trial counsel. To prevail on this point, Metcalfe must show both "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."
First, Metcalfe argues that trial counsel failed to properly argue and preserve the issue of prosecutorial misconduct "regarding Metcalfe's pre-trial challenge to the re-filing of charges after the grand jury initially returned a `no bill.'" Metcalfe's argument fails because he does not demonstrate how the prosecutor's re-filing of charges after the grand jury initially returned a "no bill" would constitute prosecutorial misconduct. Metcalfe fails to show error by his trial counsel or that an error resulted in the withdrawal or substantial impairment of a potentially meritorious defense.
Second, Metcalfe argues that his trial counsel failed to object to the admission of numerous physical items of evidence, for which no authentication or relevance was established. Metcalfe fails to identify the items of evidence for which admission should have been challenged, or how failure of his trial counsel to challenge admission detrimentally affected his defense.
Third, Metcalfe argues that his trial counsel failed to object to the testimony of Dr. Manoukian and Det. Ah Mow as improper HRE Rule 701 lay opinion, because they were never qualified as "experts" under HRE Rule 702. The underlying basis for this argument has been addressed above. Given our reasoning and holding that the testimony by Dr. Manoukian and Det. Ah Mow was properly admitted, Metcalfe fails to show there was error by his trial counsel or a withdrawal or substantial impairment of a potentially meritorious defense.
Fourth, Metcalfe argues that his trial counsel were ineffective in that they elicited expert ballistics testimony from a lay police officer witness on cross-examination, and violated HRE Rules 701 and 702. Metcalfe fails to articulate or specify the portions of Officer Smith's testimony that was allegedly detrimental to his defense. He also fails to demonstrate that the testimony elicited from officer Smith was "expert" testimony. Although Metcalfe suggests that Officer Smith's testimony resulted in the "`firearm' element possibly being proved through cross-examination," as discussed above, the definition of "firearm" includes a shotgun, and moreover, Metcalfe's testimony provided sufficient evidence that he used a firearm.
Fifth, Metcalfe argues that his trial counsel were ineffective in that they failed to object to the measurements from the Total Station device, which they challenged as unreliable. Again, Metcalfe fails to explain how his trial counsels' alleged failure to object to the measurements resulted in the substantial impairment of his defense.
Sixth, Metcalfe argues that trial counsel were ineffective in failing to question Dr. Manoukian regarding whether a gunshot residue test was performed on decedent Kuahuia, because "[t]he presence of gunshot residue on Decedent's hands would contradict the prosecution's theory that the shotgun was fired from a 60-foot distance[.]" Even if we were to assume that a gunshot residue test was in fact performed on the decedent, Metcalfe's implicit assumption that gunshot residue was on the decedent's hands is highly speculative and not supported by evidence in the record. Metcalfe has not demonstrated that the failure to question Dr. Manoukian regarding gunshot residue on the decedent impaired a meritorious defense.
Seventh, Metcalfe argues that trial counsel were ineffective in failing to object to, or exclude in limine before trial, the prosecution's photograph and questioning about medical marijuana. Alternatively, Metcalfe asserts his trial counsel should have requested a cautionary instruction about medical marijuana. Metcalfe's arguments lack merit. Metcalfe's marijuana usage at the time of the incident was relevant to his conduct, perception of events, and his ability to remember events. Metcalfe also fails to explain how the photograph or questioning about marijuana substantially impaired a meritorious defense. Further, as discussed above, there is no legal authority supporting the cautionary instruction Metcalfe asserts should have been given regarding medical marijuana.
Eighth, Metcalfe argues that his trial counsel were ineffective because they failed to request a defense of property instruction. As discussed above, a defense of property instruction was not warranted in this case. Failure to request the instruction did not constitute ineffective assistance of trial counsel.
Based on the foregoing, we affirm the judgment entered by the circuit court on March 25, 2010.
Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.
- No Cases Found