State v. Etimani
| Decision Date | 26 January 2022 |
| Docket Number | CAAP-20-0000473 |
| Citation | 502 P.3d 1024 (Table) |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Johnny ETIMANI, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Walter J. Rodby, for Defendant-Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.
(
Defendant-Appellant Johnny Etimani (Etimani ) appeals from the Judgment of Conviction and Sentence (Judgment ), entered on June 25, 2020, in the Circuit Court of the First Circuit (Circuit Court ).1 After a jury trial, Etimani was convicted of one count of Sexual Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS ) § 707-731(1)(a),2 and two counts of Sexual Assault in the Fourth Degree, in violation of HRS § 707-733(1)(a).3
On appeal, Etimani contends that: (1) the Circuit Court erred in allowing expert DNA testimony; (2) the Circuit Court erred when it failed to "reinstruct" the jury as to consent; and (3) Etimani was denied effective assistance of counsel because (a) counsel violated Etimani's constitutional right to testify on his own behalf; (b) counsel erred in allowing Michelle Amorin (Amorin ), a Honolulu Police Department (HPD ) criminalist, to be qualified as an expert in serology and forensic DNA testing; and (c) counsel failed to ensure that the jury was properly reinstructed as to consent.
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 Etimani's contentions as follows and affirm.
(1) Etimani contends that the Circuit Court erred in qualifying Amorin as an expert witness in the area of serology and forensic DNA testing, "despite the fact that defense counsel pointed out [Amorin's] limited educational background in scientific studies." Etimani's argument appears to be based on Amorin's not having a masters or PhD degree in molecular biology, population genetics, or other allegedly relevant fields.4
Hawaii Rules of Evidence (HRE ) Rule 702 (2016), which governs the admission of expert testimony, states:
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 by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
"Qualifying a witness as an expert requires that the proponent lay foundation establishing that ‘(1) the witness is qualified by knowledge, skill, training, or education; (2) the testimony has the capacity to assist the trier of fact to understand the evidence or to determine a fact in issue; and (3) the expert's analysis meets a threshold level of reliability and trustworthiness.’ " State v. Jones, 148 Hawai‘i 152, 166, 468 P.3d 166, 180 (2020) (brackets omitted) (quoting State v. Metcalfe, 129 Hawai‘i 206 227, 297 P.3d 1062, 1083 (2013) ). Here, Etimani challenges only the first prong of the applicable three-part test, arguing that "[Amorin's] opinion was limited by a lack of skill, experience, training, or education."
In construing HRE Rule 702, the Hawai‘i Supreme Court has recognized that " ‘it is not necessary that the expert witness have the highest possible qualifications to testify about a particular matter;’ instead, ‘the expert witness must have 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.’ " Leone v. Cty. of Maui, 141 Hawai‘i 68, 84, 404 P.3d 1257, 1273 (2017) (brackets omitted) (quoting Klink ex rel. Klink v. State, 113 Hawai‘i 332, 352, 152 P.3d 504, 524 (2007) ); see State v. Wakisaka, 102 Hawai‘i 504, 518, 78 P.3d 317, 331 (2003) . Additionally, "[t]he determination of whether or not a witness is qualified as an expert in a particular field is largely within the discretion of the trial judge, and, as such, will not be upset absent a clear abuse of discretion." Jones, 148 Hawai‘i at 166, 468 P.3d 180 (quoting State v. Torres, 60 Haw. 271, 277, 589 P.2d 83, 87 (1978) ).
At trial, Amorin testified to the following: She is a level 2 criminalist with HPD. Her duties and responsibilities as a criminalist "include performing serology5 and DNA analysis on items of evidence, interpreting the results from these tests, and reporting them in conclusions in a case report, and testifying as an expert witness." (Footnote added.) Amorin earned an undergraduate degree in biology, and received specialized training at HPD which she described as Amorin holds a certificate in molecular biology from the American Board of Criminalistics and is a member of the American Academy for Forensic Sciences. At the time of trial, Amorin had been employed by HPD for "more than four years ...." Amorin testified that she had performed DNA analysis "hundreds of times" and had previously been qualified as an expert "in the area of serology and forensic DNA testing" in Hawai‘i courts. Over Etimani's objection, the Circuit Court qualified Amorin to present "opinion testimony in the area of serology and forensic DNA testing[,]" pursuant to HRE Rule 702.
We conclude that under the parameters set by HRE Rule 702 and Hawai‘i case law, Amorin's testimony regarding her knowledge, skill, training, and education was sufficient to qualify her as an expert witness in the identified area of expertise. Accordingly, the Circuit Court did not abuse its discretion in allowing Amorin to testify as an expert witness in this area.
(2) Etimani contends that the Circuit Court clearly erred when it failed to "reinstruct" the jury on the issue of consent after the jury posed a question about consent.
After the presentation of evidence, the Circuit Court instructed the jury regarding consent as follows:
During deliberations, the jury asked the Circuit Court: "Given the fact that [Etimani] denies Count 1 Element 1, is the jury allowed to consider the possibility that [the complaining witness (CW )] implied her consent to the act?" The Circuit Court responded: "Please rely on the instructions provided, along with your collective reasoning and common sense." At trial, Etimani did not object to the Circuit Court's response.
On appeal, Etimani concedes that "the [C]ircuit [C]ourt properly instructed the jury as to the issue of consent" following the presentation of evidence. Etimani contends, however, that the Circuit Court plainly erred in responding to the jury's later question during deliberations. Etimani argues that the court should have responded "yes" to the jury's question or, at a minimum, should have specifically referred the jury to the instruction: "Consent may be express or implied."
When jury instructions or their omission are at issue on appeal, "the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." Stanley v. State, 148 Hawai‘i 489, 500, 479 P.3d 107, 118 (2021) (emphasis omitted) (quoting State v. Loa, 83 Hawai‘i 335, 350, 926 P.2d 1258, 1273 (1996) ). "Once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction[.]" State v. Nichols, 111 Hawai‘i 327, 337, 141 P.3d 974, 984 (2006). "Because the circuit court's response to a jury communication is the functional equivalent of an instruction, the standard of review for jury instructions also applies to reviewing a trial court's answers to jury communications." State v. Miyashiro, 90 Hawai‘i 489, 492, 979 P.2d 85, 88 (App. 1999).
We addressed a similar issue in State v. Mark, 120 Hawai‘i 499, 210 P.3d 22 (App. 2009), aff'd, 123 Hawai‘i 205, 231 P.3d 478 (2010). There, the circuit court denied the defendant's proposed response to a jury question regarding manslaughter and instead "responded by referring the jury back to the instructions given at trial." 120 Hawai‘i at 528, 210 P.3d at 51. On appeal, the defendant conceded that the jury had been provided with instructions on both reckless manslaughter and manslaughter based on extreme mental and emotional distress, as part of the court's original instructions at trial. Id. The defendant argued, however, that "the jury was provided with a ‘set of instructions that was voluminous,’ and the court ‘should have taken the trouble to distinguish between the two for the sake of the jury's full understanding of the distinction between the two types of manslaughter.’ " Id. (brackets omitted). We conclu...
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