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.”
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