Expert Testimony not Required for Decedent's BAC Level to Support Self-Defense Case

 State v. David (HSC September 9, 2021)

Background. Peter David was initially charged with murder in the second degree. A jury found him guilty as charged, but the HSC vacated the conviction and remanded for new trial. Prior to trial, the prosecution moved in limine to exclude evidence from the toxicology report that the decedent’s blood alcohol content was 0.252. The circuit court, the Hon. Judge Paul Wong presiding, ruled that unless David had an expert to explain the connection between a BAC of 0.252 and intoxication, the evidence was inadmissible.

 

At trial the prosecution presented evidence that on New Year’s Day in Kalihi, David and his family were drinking heavily. David and his cousin, the decedent Santhony Albert, got into an argument. David asked for a beer and Albert punched him in the face and hit him with a beer bottle. The fight escalated to the point where they squared off in the parking lot in front of the housing. It ended when David stabbed Albert. Albert ran away and died of his injuries. The prosecution called the forensic pathologist. David moved to reconsider the circuit court’s ruling in limine. The motion was denied and this time the circuit court ruled that the defense could not ask the pathologist if there was even a high level of alcohol in Albert’s blood at the time of death. At trial, the pathologist testified that Albert’s blood contained alcohol and nothing more. There was no reference to the level or the BAC.

 

David presented evidence of self-defense. He testified about getting punched in the face and hit with the bottle. He explained that they were taunting each other and fought in the parking lot. David testified he fell face down and was pinned between two cars. Albert stood over him. David thought he was going to die. David testified he grabbed an object and stabbed Albert with it. David presented evidence that Albert was belligerent, aggressive, and really drunk. He also called a police officer who investigated an unrelated incident involving Albert. She testified that at that time, Albert was highly intoxicated, aggressive, and violent. The jury found David guilty of the included offense of assault in the first degree. He was sentenced to ten years imprisonment. He appealed. The ICA affirmed.

 

The Trial Court Erred in Precluding Evidence of Albert’s BAC. The HSC noted that this is neither an issue of relevance nor foundation. Assuming that the foundation can be established, see State v. Villena, 140 Hawai'i 370, 376, 400 P.3d 571, 577 (2017), the question before the HSC was whether the trial court erred precluding Albert’s BAC level. The HSC held that it did.

 

The HSC noted that BAC levels “require[] little explanation. The national standard for driving under the influence of alcohol is .08” and that “[t]he decimal .08 is possibly the most recognizable number in criminal law.” Relying on cases from other jurisdictions and news stories, the HSC noted that BAC numbers are in the national consciousness and associated with how much a person had to drink. And while a layperson may not understand exactly how BAC levels are calculated or what it means chemically, “adults in the United States generally share a basic understanding that .08 is a threshold quantification of alcohol consumption that impairs an individual’s physical and mental faculties and ability to safely drive a car.” The HSC also noted that alcohol’s link to violence is well within the jury’s common understanding. Byrd v. State, 123 So. 867, 869 (Miss. 1929); State v. Ferrer, 95 Hawai'i 409, 427 n. 17, 23 P.3d 744, 762 n. 17 (App. 2001). The jury, therefore, was fully capable of finding the link between a “high” BAC level and aggression.

 

No Expert Needed Here. The HSC rejected the lower court’s ruling that an expert was necessary to make that connection. A person with “specialized knowledge” may testify when that knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” HRE Rule 702. Specialized knowledge is “knowledge not possessed by the average trier of fact who lacks the expert’s skill, experience, training, or education.” State v. McDonnell, 141 Hawai'i 280, 291, 409 P.3d 684, 695 (2017). Put differently, when the issue is within the jurors’ common knowledge, “expert testimony is unnecessary.” Brown v. Clark Equip. Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980).

 

According to the HSC, evidence of one’s BAC and its impact on the person is “not beyond the firsthand personal experiences and secondhand information accumulated by typical jurors. The jury knows an individual’s .252 BAC means that the individual is highly drunk[.]” Requiring an expert to explain it was unnecessary. The link between binge drinking and aggression is not a “widely held misconception[]” or “constrain[ed by] popular myths.” McDonnell, 141 Hawai'i at 291-292, 409 P.3d at 695-696.

 

The HSC also noted that it has “misgivings about an expert-centric approach to fact-finding.” There is a danger that jurors will “abdicate their role of critical assessment” and “surrender their own common sense in weighing testimony.” State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990); State v. Metcalfe, 129 Hawai'i 206, 225-226, 297 P.3d 1062, 1081-1082 (2013). While experts do have value in helping jurors understand other evidence, conditioning admissibility on expert testimony “devalues the collective wisdom of twelve citizens.”

 

HRE Rule 403 Doesn’t Preclude the Evidence Either. The HSC then held that the trial court erred in precluding the evidence pursuant to HRE Rule 403. Relevant evidence may be precluded when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” HRE Rule 403.

 

Here, the HSC held that evidence that Albert’s BAC was 0.252 was highly probative. It supported David’s defense that he had no choice but to resort to lethal force in self-defense. The BAC level “provided an objective, scientific basis for the jury to evaluate the extent and degree of Albert’s intoxication.” The HSC disagreed with the circuit court’s ruling that the BAC would confuse the issues and invite juror speculation. The HSC noted that the jury already heard evidence about Albert’s drinking and his behavior on the day he died. The evidence of his BAC should have been evaluated against that backdrop. The HSC held that the circuit court erred in precluding the evidence.

 

The Error isn’t Harmless Because it Violated David’s Constitutional Right to Present a Complete Defense. Due Process confers the accused the right to present a complete defense. State v. Williams, 147 Hawai'i 606, 614, 465 P.3d 1053, 1061 (2020). This means the accused has the “constitutional right to present any and all competent evidence” in support of the defense. State v. Abion, 148 Hawai'i 445, 448, 478 P.3d 270, 273 (2020).

 

Where the accused asserts a defense sanctioned by law to justify or to excuse the criminal conduct charged, and there is some credible evidence to support it, the issue is one of fact that must be submitted to the jury, and it is reversible error for the court to reject evidence which, if admitted, would present an essential factual issue for the trier of fact.

 

Id.

Here, David asserted self-defense. HRS § 703-304(2). Evidence of Albert’s BAC supported this defense. It went to Albert’s motive or intention and according to the HSC “could have similarly influenced the jury’s understanding of David’s state of mind and his belief that danger was imminent. It also corroborated his testimony concerning Albert’s aggressive behavior.” The evidence also bolstered David’s credibility that he feared for his life and resorted to lethal force in self-defense. Thus, the HSC held that the circuit court’s preclusion of the evidence was not harmless beyond a reasonable doubt. See State v. DeLeon, 131 Hawai'i 463, 486, 319 P.3d 382, 405 (2014). The HSC vacated judgment and remanded it back to the circuit court.

 

Chief Justice Recktenwald’s Dissent. The Chief Justice disagreed with the narrow issue of whether the trial court erred in precluding the evidence of Albert’s specific BAC level. He also noted that the trial court’s HRE Rule 403 balancing test is reviewed on appeal for an abuse of discretion requiring a certain level of deference to the lower court. State v. Behrendt, 124 Hawai'i 90, 102, 237 .3d 1156, 1168 (2010). The Chief Justice wrote that a person’s BAC level is the result of a scientific test. State v. Werle, 121 Hawai'i 274, 282, 218 P.3d 762, 770 (2009). That routinely requires expert testimony to infer the extent of intoxication. And for that reason, the Chief Justice believed that expert testimony is required. He also noted that despite the common understanding of jurors, “the jury might be under the possibly-incorrect impression that someone with a BAC roughly three times the legal limit (like Albert) exhibits behavior three times ‘worse’ than a drunk driver.”

 

The Chief Justice also believed that precluding the evidence did not violate David’s right to present a complete defense. He noted that “the defendant’s right to present relevant evidence may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” State v. Pond, 118 Hawai'i 452, 464, 193 P.3d 368, 380 (2008). It is only those times when evidentiary rules “unfairly . . . prevent a defendant from presenting evidence that is critical to his defense,” when the rules must give way. State v. Abion, 148 Hawai'i 445, 458, 478 P.3d 270, 283 (2020). The Chief Justice would have affirmed.

Comments

Graham said…
". . . the circuit court ruled that the defense could not ask the pathologist if there was even a high level of alcohol in Albert’s blood at the time of death." I cannot understand under what rule of evidence, a defense attorney is precluded from asking an expert for the exact reading???

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