State v. DeLeon, SCWC–11–0000064.

• Decision Date: 15 January 2014
• Docket Number: No. SCWC–11–0000064.,SCWC–11–0000064.
• Citation: 319 P.3d 382,131 Hawai'i 463
• Court: Hawaii Supreme Court
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Phillip DeLEON, Petitioner/Defendant–Appellant.

131 Hawai'i 463

319 P.3d 382

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Phillip DeLEON, Petitioner/Defendant–Appellant.

No. SCWC–11–0000064.

Supreme Court of Hawai‘i.

Jan. 15, 2014.

Phyllis J. Hironaka for petitioner.

Sonja P. McCullen, for respondent.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., with ACOBA, J., concurring and dissenting separately, with whom POLLACK, J. joins.

Opinion of the Court by RECKTENWALD, C.J.

Phillip DeLeon was convicted of Murder in the Second Degree, two counts of Carrying or Use of a Firearm in the Commission of a Separate Felony, and several other charges,¹ in relation to the July 31, 2009 fatal shooting of Shawn Powell. The State alleged, inter alia, that DeLeon shot Powell and shot at Powell's friend, Justin Gamboa, following an altercation at a nightclub. On appeal, the Intermediate Court of Appeals reversed the Circuit Court of the First Circuit's² judgment as to DeLeon's conviction for one count of Carrying or Use of a Firearm in the Commission of a Felony, but affirmed DeLeon's remaining convictions.

DeLeon raises two issues in his application for writ of certiorari. First, DeLeon argues that his trial attorney provided ineffective assistance of counsel by committing errors that resulted in the circuit court precluding expert testimony regarding the presence of cocaine in Powell's blood at the time of the shooting. Second, DeLeon argues that the circuit court's jury instruction, modeled after the then-current Hawai‘i Pattern Jury Instructions–Criminal (HAWJIC) 7.01 with regard to self-defense "failed to completely and properly instruct the jury on the law of self-defense."

We conclude that DeLeon has failed to establish that his trial counsel was ineffective with regard to the admissibility of expert testimony on cocaine use. However, we further conclude that the circuit court plainly erred in excluding such testimony. The defense expert was prepared to testify that, to a reasonable degree of scientific probability, Powell was under the influence of cocaine at the time of the shooting. However, the circuit court erroneously required that the testimony be offered to a reasonable degree of scientific certainty, and accordingly excluded the testimony. This error was not harmless beyond a reasonable doubt, and thus we vacate DeLeon's convictions for second-degree murder (Count II) and Carrying or Use of a Firearm While Engaged in the Commission of a Separate Felony (Count IV), and remand for a new trial.

With regard to the jury instruction on self-defense, we conclude that the circuit court's instruction accurately stated the law and thus was not erroneous.

Accordingly, we vacate in part and affirm in part the ICA's judgment, and vacate the circuit court's judgment of conviction and sentence on Counts II and IV, and remand to the circuit court for further proceedings consistent with this opinion.

I. Background

The following factual background is taken from the record on appeal.

A. Circuit Court proceedings

On August 5, 2009, DeLeon was indicted for: Attempted Murder in the First Degree as to Powell and Gamboa (Count I); Murder in the Second Degree as to Powell, in violation of HRS §§ 707–701.5 and 706–656 (Count II)³ ; Attempted Murder in the Second Degree as to Gamboa, in violation of HRS §§ 705–500, 707–701.5, and 706–656 (Count III); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134–21 as to Count II (Count IV); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134–21 as to Count III (Count V); Place to Keep Pistol or Revolver in violation of HRS § 134–25 (Count VI); Reckless Endangering in the First Degree in violation of HRS § 707–713 (Count VII); and Ownership or Possession Prohibited of Any Firearm or Ammunition by a Person Convicted of Certain Crimes in violation of HRS §§ 134–7(b) and (h) (Count VIII).

1. State's first motion in limine to exclude cocaine evidence

Prior to trial, on August 24, 2010, the State filed a motion in limine, seeking, inter alia, to exclude any evidence that Powell's blood tested positive for .05 mg/L of cocaine on grounds that such evidence is inadmissible under Hawai‘i Rules of Evidence (HRE) Rule 404(b)⁴ and/or irrelevant and unfairly prejudicial under HRE Rule 403.⁵

DeLeon opposed the State's motion, arguing, inter alia, that evidence that Powell's blood tested positive for .05 mg/L of cocaine was "essential and probative to [DeLeon's] self-defense assertion, and its exclusion would be extremely prejudicial to his claims[.]" Among the exhibits attached to DeLeon's opposition was a letter from Dr. Clifford G. Wong, the Toxicology Laboratory Director for Clinical Laboratories of Hawaii. The letter indicated that DeLeon's defense counsel retained Dr. Wong as an expert in "DUI toxicology" and largely discussed Powell's blood alcohol concentration. With regard to Powell's cocaine concentration at the time of the shooting, Dr. Wong stated, in relevant part:

The retrograde extrapolation of [ ] Powell's blood cocaine concentration to the time of the shooting was performed to yield a probable range of 0.06 to 0.08 mg/L. The time of cocaine ingestion is unknown, so the actual cocaine dosage cannot be determined. Information regarding total amount ingested and the time of ingestion would be required to determine more accurately whether [ ] Powell has [sic] under the influence of cocaine at the time of the shooting.

(Emphasis added).

At a hearing on the motion, the circuit court noted that "[t]he issue right away that the Court [saw]" was Dr. Wong's statement that he would need more information. Defense counsel responded:

I have since spoken to Dr. Wong. This is what I expect the proof to be: First, respectfully, if you would, keeping in mind we have a video of Powell going towards the defendant after at least three warning shots were fired and saying some things that will come out that my client heard. There's loud screaming. We have a witness from the manager of the Seoul Karaoke that heard two men screaming and then a shot or shots.

This is what Dr. Wong says—and we've subpoenaed [medical examiner Dr. William] Goodhue, who was—who did the toxicology and autopsy. He says that the cocaine was of recent use, and all that means is—I mean, what does "recent" mean? But with the doctors and ... Dr. Wong, "recent use" means probably within 24 hours because the cocaine was still in the blood, it had not been completely absorbed. Dr. Wong says when ... there's a use of cocaine ... it gives—and he will testify, if he's allowed to—someone a sense of euphoria, and he defines euphoria as invincibility, like you think you're Superman, which is consistent with why anyone would be going after someone who's firing three shots in the air. My client will testify that when he was grabbed—and he has seen people, and he will testify, on the west side and when he was in California that he thought were high on something. And when he was grabbed in the bar by the victim, his testimony will be ... this guy was drunk but there was something wrong with this guy, he looked like he was high on something[.]

And then we have the cocaine, the invincibility, the Superman, and then there's an explanation as to why this guy is doing this. Their witnesses say they thought Powell was crazy that he would be going after someone that just fired a gun in the air and just went right after him.

So I don't mind a [ HRE Rule] 104 hearing^[6] as well, but it's the euphoria that the cocaine gives. We have the toxicology report that says recent use. We have the testimony from the defendant who says this guy looked like he was on something. Now, if he says that, then I think he has the right to say that. If it's not buttressed or corroborated by the medical testimony and the expert testimony, it may look like it's simply a self-serving statement he wants to make with no basis in fact.

The DPA then argued for an HRE Rule 104 hearing:

[I]t's the state's understanding that cocaine does not have a consistent effect on people like alcohol does. I think that this euphoric state can also be a dysphoric state and I think that the witness would testify to that, that he cannot describe the states that people go through on a consistent basis, ... even knowing or being able to retro-extrapolate the amount of cocaine that was in the blood at the time of the specific incident.

The circuit court ruled that it would conduct an HRE Rule 104 hearing before allowing any testimony regarding Powell's cocaine level. The circuit court also informed defense counsel of its concerns:

THE COURT: ... And just so, you know, counsel, you're very clear, it's the Court's concern that Dr. Wong is not able to render an opinion that the victim was under the influence at the time of the shooting, and ... doesn't have enough information and that's what's stated on the bottom of page 5 of his opinion, and if that remains his opinion, then it's not admissible.

[DEFENSE COUNSEL]: I'm clear with that. Thank you, Your Honor. I'm clear as to the ruling.

THE COURT: Questionable relevancy and materiality will just create undue confusion.

Shortly before opening statements, the circuit court ruled, over the State's objection, that defense counsel could mention in his opening statement DeLeon's perception that Powell may have been "high on something without making any specifications." The circuit court stated that the substance or the amount could not be mentioned "until we have had subsequent [HRE] Rule 104 hearings."

2. State's Case–in–Chief

At trial, Jermaine Beaudoin testified that on the night of July 30, 2009, he, along with Gamboa, and Powell went in Gamboa's Lincoln Navigator to Bar Seven⁷ next to Ala Moana Center at about 2:15 to 2:30 a.m. Beaudoin estimated that at this point in the evening, he had consumed between nine to eleven alcoholic drinks, and that Powell had also been drinking but was not drunk. At some point, Beaudoin saw Powell talking to DeLeon, whom Beaudoin...