State v. Byung Soo Choi

• Decision Date: 27 January 2020
• Docket Number: NO. CAAP-16-0000765,CAAP-16-0000765
• Citation: 456 P.3d 190 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. BYUNG SOO CHOI, Defendant-Appellant
• Court: Hawaii Court of Appeals

456 P.3d 190 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.BYUNG SOO CHOI, Defendant-Appellant

NO. CAAP-16-0000765

Intermediate Court of Appeals of Hawai‘i.

January 27, 2020.

On the briefs:

John Knoebber, for Defendant-Appellant.

David Blancett-Maddock, Deputy Prosecuting Attorney, County of Hawai‘i, for Plaintiff-Appellee.

(By: Fujise, Presiding Judge, Leonard and Chan, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Byung Soo Choi (Choi) appeals from the Judgment of Conviction and Probation Sentence entered October 3, 2016.¹ Following a jury trial, Choi was found guilty of Commercial Promotion of Marijuana in the Second Degree in violation of Hawai‘i Revised Statutes (HRS) § 712-1249.5 (1) (a) (2014),² and Prohibited Acts Related to Drug Paraphernalia in violation of HRS § 329-43.5 (2010).^{3 ,4} Choi was sentenced to concurrent four-year terms of probation with special conditions including imprisonment for 18 months for the promotion charge and 12 months for the paraphernalia charge.

On appeal, Choi contends the Circuit Court violated his constitutional right to confrontation when it admitted certificates attesting to the accuracy of the drug lab's testing equipment, erred in admitting expert testimony on the weight and identification of plant material seized from Choi's home, and erred in entering judgment where there was insufficient evidence to support a conviction.⁵

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Choi's points on appeal as follows and affirm.

1. Admission of the balance certificates did not implicate the confrontation clause and fell within the business record exception to the hearsay rule. While the confrontation clause in art. 1, sect. 14 ⁶ of Hawaii Constitution "affords the accused both the opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses[,]’ " State v. Fields, 115 Hawai‘i 503, 512, 168 P.3d 955, 964 (2007) (citation and internal quotation marks omitted), under Davis v. Washington, 547 U.S. 813, 814 (2006), "the federal confrontation clause applies only to testimonial hearsay[,]" and the nearly-identical confrontation clause in the Hawai‘i constitution also applies only to testimonial hearsay. Fields, 115 Hawai‘i at 514, 168 P.3d at 966. Documents for which a foundation as business records have been properly laid, are "not created for use in a particular dispute" and "more akin to documents that reflect the results of regularly conducted tests," State v. Fitzwater, 122 Hawai‘i 354, 364, 227 P.3d 520, 530 (2010), do not offend the confrontation clause as they are not testimonial. See State v. West, 135 Hawai‘i 406, 353 P.3d 409, CAAP-12-0000717, 2015 WL 3422156 at *4 (App. May 27, 2015) (SDO) ("Documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.") (citation, internal quotation marks, and brackets omitted); State v. Cruz, 135 Hawai‘i 294, 298, 349 P.3d 401, 405 (App. 2015), cert. dismissed as improvidently granted, No. SCWC-12-0000477, 2018 WL 1611669 (Apr. 3, 2018) (cell phone providers' call logs for a defendant's telephone number deemed nontestimonial).

In this case, the reports certifying that the balances were correctly calibrated were not particular to Choi. The certificates were not designed primarily to establish or prove some past fact that could then be used to support a conviction of accused, but were a "record of routine, nonadversarial matters made in a nonadversarial setting." State v. Marshall, 114 Hawai‘i 396, 401, 163 P.3d 199, 204 (App. 2007) (citation and internal quotation marks omitted). Because the balance certificates were not testimonial, their admission does not implicate the confrontation clause under the Hawai‘i or federal constitutions. See Fields, 115 Hawai‘i at 514, 168 P.3d at 966 ; Fitzwater, 122 Hawai‘i at 358, 371, 227 P.3d at 534, 537.

Choi, citing Fields, also urges this court to apply the test found in Ohio v. Roberts, 448 U.S. 56 (1980) abrogated by Crawford v. Washington, 541 U.S. 36 (2004), which "requir[es] a showing that (1) the declarant is ‘unavailable,’ and (2) the statement bears some indicia of reliability[.]" Fields expressly found "the ‘unavailability’ paradigm is retained in both testimonial and nontestimonial situations[.]" 115 Hawai‘i at 528, 168 P.3d at 980. However, this court noted that "Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and that hearsay that qualifies for a "firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." State v. Ofa, 9 Haw. App. 130, 138, 828 P.2d 813, 818 (1992) (quoting White v. Illinois, 502 U.S. 346 (1992) (emphasis added)). The documents at issue here, made as a part of the routine workings of the Honolulu Police Department (HPD) laboratory, were not made "in the course of a prior judicial proceeding" and are therefore not subject to an "unavailability" analysis under Roberts. Moreover, as business records qualify under a "firmly rooted" exception to the hearsay rule, reliability can be inferred. Roberts, 448 U.S. at 66.

Finally, Choi's objections during trial (i.e., "hearsay, confrontation under Fields") did not specify that Choi opposed the balance checks' admissibility on the grounds that HRE Rule 803(b)(6) was not satisfied. To the extent that Choi's first point on appeal is based on a claim that the balance certificates did not fall under the HRE 803(b)(6) hearsay exception,⁷ it is waived as unpreserved at trial. See State v. Wallace, 80 Hawai‘i 382, 410, 910 P.2d 695, 723 (1996) ("an issue raised for the first time on appeal will not be considered by the reviewing court"); HRE Rule 103(a)(1) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n the case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]")

2. Choi challenges the testimony of Edward Oshiro (Oshiro), the criminalist who testified to the weight and identification of the marijuana, on two grounds: (a) that he was not qualified to render an opinion regarding the identity of the drug, and (b) there was no showing that his training to use the electronic balances met the requirements of the manufacturers of those balances.

(a) Choi asserts, ipse dixit , that "[t]here was insufficient testimony that Oshiro was qualified to render an opinion regarding whether the evidence collected belonged to what family of plant" because there was no testimony that he had training "identifying the physical characteristics of organic controlled substances such as mushrooms or marijuana plants" and he was a chemist and not a botanist, and "therefore unqualified to render an opinion regarding whether the evidence collected belonged to what family of plant." Choi's argument is without merit. Choi testified that, in addition to his specialized training in the identification of drugs and degree in chemistry, he had twenty-nine years' experience in forensics and drug analysis, and worked thousands of cases analyzing substances believed to be marijuana and had been qualified as an expert approximately 700 times. Thus, he appears to have had "such skill, knowledge, or experience in the field in question as to make it appear that his opinion or inference-drawing would probably aid the trier of fact in arriving at the truth[.]" State v. Fukagawa, 100 Hawai‘i 498, 504, 60 P.3d 899, 905 (2002) (citation omitted). The Circuit Court did not abuse its discretion in certifying Oshiro as an expert.

(b) Choi argues that "[t]here was no showing that the nature and extent of Oshiro's training to use the electronic balances met the requirements of the manufacturers of those balances." (Formatting and capitalization altered). At trial, Choi objected to Oshiro's testimony regarding the weight on the basis "foundation, Manewa."⁸ No further argument was made. Choi's argument on appeal appears to contest Oshiro's testimony as to the results of tests he performed, i.e ., the weight of the marijuana seized.

Choi offers no reason why a manufacturer's requirements are more instructive in how to use a balance than generally accepted scientific principles. In State v. Eid, 126 Hawai‘i 430, 272 P.3d 1197 (2012), the Hawai‘i Supreme Court concluded that the silence in the record regarding the identity of the manufacturer of parts of the speedometer dynometer (the machine used to calibrate the speedometer of a police car) and therefore what that manufacturer's training requirements were, was "not material, since their operation was straightforward and within the expertise of ... licensed mechanics." 126 Hawai‘i at 445, 272 P.3d at 1212. State v. Amiral — a case relied upon by Choi — suggests that, following Eid, "in the absence of manufacturer's recommendations as to training, the State can utilize other means to establish that the operator had the necessary training and expertise." 132 Hawai‘i 170, 181, 319 P.3d 1178, 1189 (2014).

If Oshiro was properly qualified to testify under HRE Rule 703, he is a qualified to testify to a scientific opinion under HRE Rule 702. Rule 702 states that "the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert." Oshiro, a college-educated chemist with almost 30 years experience in a lab, testified that he checked the balance according to generally accepted principles and that uncertainties or margin of error in the balances was less than one percent.⁹ See also ...