Qualifying drug experts a weighty issue.

State v. Manewa (HSC Sept. 12, 2007).

Background. Manewa was arrested after handing to an undercover officer two packets of a crystalline substance in exchange for $600. After his arrest, police searched a fanny pack that belonged to him and found "paraphernalia" and more bags of a crystalline substance. Manewa was charged with violating both HRS § 712-1241 and HRS § 712-1242. The State at trial offered police criminalist, Hassan Mohammed, as an expert in drug analysis and identification. His testimony helped establish that the substance taken from the fanny pack was crystal methamphetamines weighing at least more than one-eighth of an ounce. Manewa was convicted of the drug offenses. On appeal, Manewa argued that Mohammed's testimony was inadmissible because Mohammed was not qualified as an expert to testify on the identity and weight of the substances.

Schofill distinguished. On appeal, the HSC rejected the State's contention that State v. Schofill controls. In that case, the HSC held that in a grand jury proceeding, an expert witness was qualified to testify about a substance at an unconsummated drug deal that appeared to be cocaine based on training from "[s]everal college courses [dealing] with drugs and cocaine." The qualification in Schofill, according to the HSC, was based on the fact that it was a grand jury proceeding with a lower standard of proof where the officer's expertise in drug identification "need not be as detailed as at trial." In Manewa's case, however, Mohammed's testimony was used at trial, where the standard of proof is significantly higher thereby requiring the State's witness to be "qualified as an expert in the identification and weighing of [drugs].

Qualified for drug identification. The HSC first held that Mohammed was qualified as an expert in drug analysis and identification. Mohammed testified that he subjected the materials to the Gas Chromatograph Mass Spectrometer (GCMS) "to confirm the definitive presence of crystal methamphetamine[.]" Mohammed also testified that the GCMS is checked routinely each and every morning to ensure that its "parameters are within manufacturer specifications."

The HSC found that because there was (1) an established manufacturer's procedure that could be conducted by the user to ensure the machine was in working order according to the manufacturer's specs, and (2) there was evidence that the GCMS was operating within the specs at the time the substance was tested, Mohammed had the "personal knowledge" necessary to establish that the GCMS was in proper working condition and there was no abuse of discretion in allowing him to testify about the identity of the substances.

Not qualified to the weight. Mohammed also testified that after using an electronic balance, he concluded that the drugs were of the weight necessary to convict Manewa. The HSC, however, held that Mohammed was not qualified as an expert to testify on the weight of the substance because the evidence failed to show: (1) that the witness had the training and expertise needed to calibrate the electronic balance; (2) that the balance was properly calibrated by the manufacturer's service representatives; (3) the existence of a procedure for "verifying and validating" that the balance was properly working and, if there was one, that the witness followed it; and (4) that the balance was in proper working order at the time the evidence was weighed.

First, even though Mohammed used the balance routinely, he was ignorant of how the balance functioned or how to service it; personal knowledge that the balance is calibrated semi-annually was insufficient because this was not the same as personal knowledge that the balance had been correctly calibrated. Second, the State never called the manufacturer's service representative to testify to the calibration of the balance nor did the State offer any business records of the manufacturer showing a correct calibration. Finally, Mohammed's assertion that he verifies and validates the balance with his own personal balance on a monthly basis still does not show that the electronic balance was in proper working order. Even the "routine check" done every morning was insufficient. The HSC found this inadequate because "although the record indicate[d] that Mohammed was trained to follow a certain procedure to ensure that the GCMSs were in working order, it fail[ed] to show that there was a manufacturer's accepted procedure for the user of the balance to implement ensure the balance was in working order."

In finding insufficient foundation, Mohammed's testimony was inadmissible hearsay. Without Mohammed's testimony, the State failed to establish the requisite weight to convict Manewa for the drug offenses.

Concurrence and dissent. Justice Levinson agreed with the majority in all respects except for its rationale underlying its distinction of Schofill. Chief Justice Moon joined him. Justice Levinson opined that Schofill was distinguishable not because it was a grand jury proceeding, but because the drug deal in that case was not consummated. Justice Levinson would limit Schofill to those cases where the defendant is charged with "promoting" a controlled substance by way of "distribution" and the facts show that the sale had been "cut short[]" thereby limiting the State's proof to the defendant's officer to sell. That is why Justice Levinson believes Manewa's case does not implicate Schofill--Manewa's sale was consummated.

Summary. It appears that in order to qualify an expert as to the weight of a substance with an electronic balance at trial or at a hearing with a standard of proof higher than probable cause, the proponent of the evidence must lay foundation showing (1) an established manufacturer's procedure that could be conducted by the user to ensure the machine was in working order according to the manufacturer's specs, and (2) there was evidence that the GCMS was operating within the specs at the time the substance was tested, Mohammed had the "personal knowledge" necessary to establish that the GCMS was in proper working condition and there was no abuse of discretion in allowing him to testify about the identity of the substances.

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