The Plain Error Problem Persists . . .

State v. Metcalfe (HSC March 19, 2013)
Pretrial Background. Kevin Metcalfe was charged by way of complaint of one count of murder in the second degree (HRS § 707-701.5) and carrying or using a firearm while in the commission of a felony (HRS § 134-21). About a month later, the prosecution filed an amended complaint with nearly the same charges, but the complaint was dated June 25, 2009. Metcalfe moved to dismiss the amended complaint based on Double Jeopardy and collateral estoppel. Metcalfe argued that the prosecution could not charge him for this case once the grand jury returned a “no bill” on the initial complaint. Metcalfe did not include a transcript of the grand jury proceedings or the preliminary hearing, but attached a lengthy declaration of counsel detailing what happened. The circuit court denied the motion on the grounds that Double Jeopardy did not attach at the grand jury phase and found 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.”

The Trial. At trial, Rocky Jordan testified that he lived on Metcalfe’s property. According to Jordan, Metcalfe installed surveillance cameras on the property after someone had stolen tools and building supplies. Jordan testified that on May 6, 2009, he was awaken by a phone call at around 10:30 p.m. from Metcalfe urging him to call 911 and come over to his house. Jordan ran outside and saw a man--later identified as Larry Kuahuia--running toward Metcalfe with such force that he thought the man was going to bowl down Metcalfe. Metcalfe kept telling the man to get on the ground. Jordan then heard two shots and a few minutes later heard somebody crying for help. Jordan testified that he, Metcalfe, and Metcalfe's wife, Sharon Meech, had medical marijuana permits.

At trial, the recording of Metcalfe's 911 call was played for the jury. In the call, the caller identified himself as Metcalfe and told the dispatcher that he had shot a man who came onto his property. Later, an officer testified that when he got to the property, Metcalfe told him he had shot a burglar who was trying to break into the greenhouse. He told the officer that he saw the man, confronted him with his rifle and ordered him to get down on the ground. Apparently, the man did not comply and started to run down the driveway. Metcalfe shot him. The officer found the body on the property and saw a "buncha holes in his back." Metcalfe told the police that he was using birdshot no. 6.

Dr. Manoukian Testifies at Trial. The prosecution called (the late) Dr.Anthony Manoukian. Dr. Manoukian testified he was a licensed physician and surgeon in Hawai'i specializing in pathology and forensic pathology. He went to the University of Hawai'i at Manoa and is an assistant clinical professor for the university. He's also a member of the College of American Pathologists and the American Society for Clinical Pathology and is certified in anatomic, clinical, and forensic pathology from the American Board of Pathology. He testified that at the time of the trial, he had performed over 3,000 autopsies--100 of which were on people who died of firearm injuries. Dr. Manoukian also testified that he had some training in "autopsy experience in deaths due to firearms[,]""classes at the Maryland State Crime Lab and . . . [the] FBI Academy in Quantico, Virginia[,]" and in classes on extracting bullets and ballistics.

Dr. Manoukian testified that he performed the autopsy on Kuahuia and concluded with reasonable medical certainty that he died due to a "shotgun wound to the back." The linear graze wounds on the body convinced Dr. Manoukian that the trajectory of the bullets went from back to front. In other words, it showed that "the position of the decedent's body [was] to the barrel of the shotgun at the time the shotgun was discharged." Dr. Manoukian further concluded that this was not a short-range shot because of an absence of gunpowder on the skin or the imprint of the wad of the shotgun shell on the decedent's skin. Finally, Dr. Manoukian concluded that Kuahuia was around 60 feet away from the barrel of the gun based on the absence of pellet wounds. Metcalfe's counsel did not object.

Detective Ah Mow Testifies at Trial. Detective Walter Ah Mow testified that he is a certified arms instructor for the Hawai'i County Police Department. He also received training from the FBI and was certified by the National Rifle Association. Det. Ah Mow testified that they took from Metcalfe's property at Browning semi-automatic 12-guage shotgun. A few days after the incident, Det. Ah Mow tested the gun to determine the distance of the pellets and the spread of the pattern. Det. Ah Mow purchased number 6 birdshot. Det. Ah Mow shot the gun at various distances and checked the spread of the pellets on a target. Based on this experiment, the spread that corresponded was made at a distance of around 50 feet. Metcalfe's counsel did not object during the direct examination.

Defense's Case. Metcalfe testified. He testified that on that night he was installing the surveillance cameras when the motion detector came on. He looked to the monitor and saw a man on his property with something in his hand. The man was trying to break into the greenhouse. He called Jordan to call the police. He testified that he went outside with no intention of hurting anyone, but he took his shotgun. He brought the birdshot and not the buck shot. He went out to the greenhouse and saw a man crouching down. When Metcalfe shined the flashlight on him, the man started approaching him and jumped toward him. Metcalfe testified that he still had something in his hand. Metcalfe said he intended to fire a warning shot to get him back; he denied firing shots to protect his property. After the first shot, Metcalfe had a hard time seeing and saw what he believed to be the man falling toward him. He testified that he fired another shot because he believed he had no alternative. The man ran away, Metcalfe called 911, and he heard someone yell for help, but the dispatcher told him to stay where he was.

On cross, the prosecution questioned Metcalfe about his medical marijuana permit. Metcalfe testified that his permit allowed him to have ten plants that he kept in the greenhouse on the property. He admitted to having marijuana in his system that night because it stays in his system for at least 30 days.

The Jury Instructions, Verdict, Sentence, and Appeal. The parties agreed to the prosecution's proposed instructions on self-defense with modifications and the instruction on opinion testimony, which did not use the word "expert." There was no instruction for defense of property. The jury returned a verdict of manslaughter and use of a firearm, the corut sentenced Metcalfe to 20 years prison on each count running concurrently. Metcalfe appealed and the ICA affirmed.

No Error in Denying Motion to Dismiss for Lack of Transcripts (and the Merits). The HSC rejected Metcalfe's argument that the circuit court erred in denying the motion to dismiss without adequately reviewing the transcripts from the grand jury and the preliminary hearing. The HSC pointed out that Metcalfe failed to attach the transcripts in his motion and failed to make it part of the record. So even though the circuit court took judicial notice of the entire record, which would presumably include the transcripts, it is the "appellant's burden of demonstrating error in the record." State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000). Moreover, even though the court may take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned[,]" HRE Rule 201(b); Ditto v. McCurdy, 98 Hawai'i 123, 130, 44 P.3d 274, 281 (2002), those facts can only be judicially noticed if "requested by a party and supplied with the necessary information." HRE Rule 201(d). Here, the circuit court did not have the necessary information to take judicial notice of what was said on the record at the grand jury or preliminary hearing because the transcripts were not included.

Dr. Manoukian and Det. Ah Mow are “Experts”? Metcalfe argued that the trial court’s failure to qualify Dr. Manoukian and Det. Ah Mow as experts in ballistics arose to plain error. Metcalfe pointed out that the prosecution relied heavily on their testimony in ballistics and even though the witnesses may be experts in some fields, there was no indication that they had any expertise in ballistics.

The Plain Error not Available when Party Fails to Object to Admission of Evidence. The HSC started its analysis by stating that because Metcalfe did not object to the testimony at trial, it may be waived on appeal. State v. Moses, 102 Hawaii 499, 456, 77 P.3d 940, 947 (2003). Still yet, the HSC has the power to recognize plain error when the error infringes upon “substantial rights.” HRPP Rule 52(b). According to the HSC, when it comes to the failure to object to “the admission of incompetent evidence,” the error is “generally” not subject to plain error review. See State v. Wallace, 80 Hawaii 382, 410, 910 P.2d 695, 723 (1996); State v. Uyesugi, 100 Hawaii 442, 464, 60 P.3d 843, 865 (2002). And on top of all of that, even if the plain error analysis was used, the trial court’s failure to formally qualify the witnesses in ballistics did not—according to the HSC—affect Metcalfe’s substantial rights.

Failure to Qualify Witness as Expert Before Expounding Expert Testimony not Error . . . “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.” HRE Rule 702.

The HSC held that the plain language of the rule does not require the trial court to first formally qualify a witness as an expert in front of the jury before the opinion testimony can be admitted. Moreover, the HSC observed that certain judges disfavor qualifying experts in front of the jury because it is like commenting on the evidence that is about to come in. See Hon. 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). The HSC also looked to the ICA’s observation that some trial judges don’t make any findings of expertise and that the failure or refusal to make these findings is not an abuse of discretion. Barbee v. Queen’s Medical Center, 119 Hawaii 136, 155, 194 P.3d 1098, 1117 (App. 2008). In the end, the HSC held that because nothing in the HRE requires the trial court from finding the witness is an expert in a particular field or has knowledge under Rule 702, it is not error for the trial court to decline such a finding “so long as the requisite foundation for the witness’s testimony is established.”

. . . if Foundation for the Testimony Itself is Laid. Expert testimony under HRE Rule 702 requires (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. State v. Torres, 122 Hawaii 2, 31, 222 P.3d 409, 438 (App. 2009). The key prong is the third one. The trial court must “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 31, 222 P.3d at 438. Here, the HSC held that both the prosecution laid ample foundation for the expert testimony in ballistics.

Using the Word “Opinion Testimony” in Jury Instructions is not Erroneous. The HSC rejected Metcalfe’s argument that using the words “opinion testimony” instead of the word “expert” did not arise to any kind of error. The trial court instructed the jury that it “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 particular field.” The standard jury instructions, however, use the word “expert” instead. The HSC, without citing any cases or authority, simply held that this substitution of the words did not render the instruction defective. The language of the instruction was understandable and, most importantly, “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 this testimony.”

The Other Issues. The HSC rejected the rest of Metcalfe’s arguments. Specifically, it upheld the standard self-defense instruction and held that there was no need for the defense-of-property instruction. The HSC also held that it was not error for the trial court to issue a sua sponte cautionary instruction on the fact that the marijuana on the property was medical marijuana. Finally, the HSC held that Metcalfe’s counsel was not constitutionally ineffective.

Justice Acoba’s Dissent. Justice Acoba dissented on the evidentiary grounds. Justice Acoba wrote that the trial court should have formally qualified Dr. Manoukian and Det. Ah Mow and should have established for the jury their fields of expertise. These failings made it difficult or even impossible for the jury to evaluate their opinion testimony. And because it directly contradicted testimony of eyewitnesses, the errors substantially affected Metcalfe’s right to a fair trial and was thus plain error. Specifically, Justice Acoba rejected the “blanket suggestion that plain error does not apply to evidentiary questions.” According to the dissenters, “[n]one of our cases propose a bar to noticing plain error because the error is an evidentiary one.” Justice Acoba would have vacated the judgment and remanded for new trial. Judge Sakamoto, who sat on the court due to Justice Duffy’s vacancy, joined.

The New Plain Error Standard? The discussions among the justices about plain error is a perennial problem. Now it seems that the majority of justices uphold the “general” principle that errors involving the admission of evidence cannot be considered plain error. Justice Acoba disagrees completely. The “general” rule does seem a bit odd. If the standard is simply an error that “substantially affects” the defendant’s rights, then why must it exclude evidentiary errors? For Justice Acoba the right affected was the right to a fair trial. It would then seem that just about any erroneous admission of evidence would infringe upon that particular right. Then again, it depends on how crucial the evidence is. On the other hand, the majority does give itself some wiggle room. In a footnote, the HSC pointed out that in State v. Schnabel, 127 Hawaii 432,279 P.3d 1237 (2012), it recognized plain error even though they were evidentiary issues because the right affected was the right to testify at trial. It’s unclear if that’s a concession that the “general” rule isn’t a rule at all.


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