Scientific Certainty is not Required Before Admitting Expert Opinion in Murder Trial

State v. DeLeon (HSC January 15, 2014)

Background. Phillip DeLeon was indicted with inter alia the murder of Shawn Powell and the attempted murder of Powell’s friend, Justin Gamboa after a fight in a nightclub. Before trial, the prosecution filed a motion in limine seeking to exclude evidence that Powell had cocaine in his system at the time of the shooting. DeLeon opposed the motion on the grounds that it was relevant and went to the heart of his self-defense claim. DeLeon also noted that he had retained Dr. Clifford G. Wong a toxicologist at Clinical Laboratories of Hawaii. DeLeon proffered that Dr. Wong would testify about whether Powell was under the influence of the cocaine and needed evidence of its existence in his system introduced at trial. The trial court deferred the matter and would wait for an HRE Rule 104 hearing at trial. The trial court noted that it was concerned about “[q]uestionable relevancy and materiality will just create undue confusion.”

Right before opening statements, the trial court permitted DeLeon to tell the jury that Powell might have been “high on something without making any specifications.” The substance and its amount would be determined after the 104 hearing. Prosecution witnesses testified that Gamboa and Powell went to Bar Seven—a nightclub next to Ala Moana Center—during the wee hours of the morning in June in their Lincoln Navigator. Powell was drinking, but not drunk. He started talking to DeLeon. The two got into a fight. When Powell’s friends intervened, DeLeon started yelling. Someone slapped his head and DeLeon walked away.

Then Powell and his friends went to Seoul Karaoke at around 3:45 a.m. They were told that they were closing so they walked back to the Navigator and someone started to yell at them. It was DeLeon. Friends testified that Powell was calm and DeLeon was calm too. Powell was about an arm’s length away when DeLeon grabbed his gun and started shooting. He shot into the ground three times and then into Powell’s chest. He started shooting at Powell’s friends and toward the Navigator. Gamboa was also shot, and he survived.

One of the workers at the karaoke bar, Daekum Kim, testified that near closing a group of drunk men came in and they left after they were told that the bar was closing up. Kim heard folks yelling outside and bad words then he heard a single shot and a few seconds later he heard more shots. Kim called the police and did not go outside.

Liana Cuarisma testified that she was DeLeon’s girlfriend. She testified that at around 3:50 a.m., she received a call from DeLeon saying that he “just got fucking mobbed” at Bar Seven. He sounded upset and was breathing heavily. The next day, DeLeon told her that he had to go to Washington to see his mother. That night he dropped him off at the airport.

A medical examiner testified that Powell’s wounds were consistent with a gun shot fired away from his body. In other words, the barrel was not placed against his body, but no one could conclude how far away the gun was when it was fired. The State rested after that.

The 104 Hearing and the Defense. The prosecution again moved to exclude Dr. Wong’s testimony about cocaine in Powell’s system. Specifically, it objected to a letter in which Dr. Wong wrote that the cocaine in Powell showed that he was under the influence of “two drugs at the time of the shooting, and accordingly, made a fatal misjudgment in his attempt to accost the defendant, [] Deleon, even after warning shots were fired.” Dr. Wong testified at the hearing and explained his findings—particularly the effects of cocaine, the amount found in Powell’s system, and retrograde extrapolation for alcohol and coke. In the end, he concluded that the ingestion of cocaine “had an impact on Powell’s behavior.” The trial court permitted Dr. Wong to testify about the effects of alcohol, but not cocaine.

One of DeLeon’s friends, Chang, saw DeLeon was drinking alone at Bar Seven and ended up talking with Powell. They looked like they were friendly to each other. Chang testified that one of Powell’s friends say that he wanted to “crack” DeLeon. Chang said he wasn’t doing anything wrong and that he should leave him alone. He turned away and heard a slap. DeLeon started yelling and Chang intervened. DeLeon then left the nightclub. About half an hour later, Chang went to the same karaoke bar and saw Powell and his crew, but he left before the shooting.

Then Dr. Wong testified as an expert witness. He testified that Powell had a blood alcohol level of 0.171, which he opined is a “high degree of alcohol intoxication.”

The jury was instructed about self-defense with the standard jury instructions. There was no objection. DeLeon was convicted of murder in the second degree and using a firearm while committing a felony and sentenced to twenty years prison. He appealed to the ICA, which vacated on grounds not raised before the HSC. The murder conviction was affirmed. DeLeon petitioned to the HSC.

The Circuit Court Cannot Exclude Expert Testimony for Failing to be Within a Degree of Scientific “Certainty.” The HSC rejected DeLeon’s claim that his lawyer was ineffective in failing to present to the jury testimony that Powell was under the influence of cocaine. Instead, it held that the circuit court plainly erred in excluding the testimony.

“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 . . . may testify thereto in the form of an opinion or otherwise.” HRE Rule 702. “[T]he touchstones of admissibility for expert testimony under HRE Rule 702 are relevance and reliability.” State v. Vliet, 95 Hawaii 94, 106, 19 P.3d 42, 54 (2001).

The HSC noted that in civil cases, medical opinions must be based on a reasonable degree of scientific or medical probability—not certainty. Miyamoto v. Lum, 104 Hawai'I 1, 15-16, 84 P.3d 509, 523-24 (2004); Craft v. Peebles, 78 Hawaii 287, 305, 893 P.3d 138, 156 (1995). The court also noted that federal courts interpreting the identical FRE Rule 702 have rejected the need for scientific certainty before admitting expert opinion. United States v. Mornan, 413 F.3d 372, 376, 381 (3d. Cir. 2005); United States v. Cyphers, 535 F.2d 1064, 1071-73 (7th Cir. 1977). Other jurisdictions concur. State v. Gardner, 616 A.2d 1124, 1129 (R.I. 1992); Robinson v. United States, 50 A.3d 508, 514 (D.C. 2012).

Given this consensus, the HSC held that “trial courts should not require a reasonable degree of scientific certainty before admitting expert opinions but may exclude testimony based on speculation or possibility.” The HSC further held that this was plain error. The trial court’s preclusion deprived DeLeon from presenting a complete defense. The self-defense claim relied on Powell’s aggression just before the shooting.

Standard Self-Defense Instruction is A-O.K. Self-defense is based in part on the defendant’s perception for the need to employ the protective force. “[A] person employing protective force may estimate the necessity thereof under the circumstances as he 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[.]” HRS § 703-304(3).

DeLeon argues that the standard jury instruction on self-defense failed to include this language. The HSC noted that while it does not track the statute verbatim, it does properly instruct the jury. The jury instruction stated that “[t]he reasonableness of the defendant’s belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be.” This was sufficient for the HSC in State v. Augustin, 101 Hawaii 127, 127 63 P.3d 1097, 1097 (2002) and it was fine here. After all, the 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 the law to the facts of the case.” State v. Metcalfe, 129 Hawaii 206, 230, 297 P.3d 1062, 1086 (2013). Basically, the HSC upheld the standard jury instructions.

Justice Acoba’s Concurrence and Dissent. Justice Acoba concurred because he believed a new trial was necessary. He wrote separately because he felt that the self-defense jury instruction should be modified so that the jury will be instructed that DeLeon was permitted to estimate the necessity of using deadly force if he could not retreat safely. He also wrote that the jury must be instructed about the viewing the circumstances surrounding DeLeon’s use of deadly force. Justice Acoba dissented in Augustin and he dissented here. Justice Pollak joined.