State v. Manewa
| Decision Date | 12 September 2007 |
| Docket Number | No. 27554.,27554. |
| Citation | 167 P.3d 336 |
| Parties | STATE of Hawai`i, Respondent/Plaintiff-Appellee v. Isaac K. MANEWA, Jr., Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Glenn D. Choy, for petitioner/defendant-appellant, on the application.
Petitioner/Defendant-Appellant Isaac K. Manewa, Jr. (Petitioner) filed an application for writ of certiorari1 (application) on March 19, 2007, requesting that this court review the judgment of the Intermediate Court of Appeals (the ICA)2 filed on January 22, 2007, affirming the September 28, 2005 judgment of the first circuit court3 (the court). Petitioner was charged in Count 8 of a February 19, 2004 indictment with Promoting a Dangerous Drug in the First Degree, HRS § 712-1241(1)(b)(ii)(A) (Supp.2003)4; in Count 9 with Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242(1)(b)(i) (1993 & Supp.2003)5; and in Count 10 with Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a) (1993). He was convicted under Counts 8 and 9 and was sentenced to a term of imprisonment of twenty (20) years with a mandatory minimum of one (1) year for Count 8; and a term of imprisonment for ten (10) years with a mandatory minimum six months for Count 9.
We hold that the evidence was insufficient to establish the weight of the dangerous drugs required to be proved beyond a reasonable doubt under the charges. Accordingly, the January 22, 2007 ICA judgment is reversed, the court's September 28, 2005 judgment is vacated, and the case is remanded for disposition in accordance with this opinion.
A.
The facts following were taken from the application and the briefs.
On January 26, 29, [and] February 11, 2004, police officer Ray Gabur, working under cover, bought methamphetamine . . . from a female, and arranged with her for another buy on February 13, 2004. On February 13, 2004, [Petitioner], acting in the female's [place], handed Gabur two packets containing a crystalline substance, in exchange for $600. [Petitioner] was subsequently taken into custody[.] [Following a search, Petitioner was found to have] $790 in currency, a scale, lighter, and a cellular phone, [which were] seized from his person.
On February 15, 2004, pursuant to warrant, police searched a black fanny pack that [Petitioner] had been seen wearing which was found in the bed of a pick up truck [that was located at the scene of the alleged incident]. [The fanny pack was found to] contain[] paraphernalia and three ziplock bags containing a crystalline substance[.]
[Honolulu Police Department criminalist,] Hassan Mohammed [(Mohammed)], examined, analyzed, and reported on the [aforementioned] drug evidence. [Mohammed] was "attached to the drug analysis unit at the Honolulu Police Department" for over ten years. As a criminalist with the Honolulu Police Department, [Mohammed's] duties consisted of the analysis and identification of controlled substances. [At trial, Respondent offered Mohammed] as an expert in the field of drug analysis and identification. . . . [While under direct examination,] Mohammed maintained that he "routinely weigh[s] every piece of evidence that comes in" as part of his responsibility in analyzing and identifying illegal drugs.
(Emphases added.)
During direct examination Mohammed testified to the procedure for weighing of the crystalline substances recovered.
Q. [PROSECUTOR] Okay. Do you use any particular instrument during the regular course of business to determine the weight of these substances?
A. [MOHAMMED] Yes, sir, we use an analytical balance.
Q. Are you familiar with the analytical balance?
A. Yes.
Q. How long have you been using this balance?
A. Twenty-five to [thirty] years.
Q. Are you familiar with its operation?
A. Yes.
Q. Do you know how it functions?
A. Precisely its mechanisms I wouldn't know, but I know I've been trained on how to use it and to operate it.
Q. Is it fair to say then that this balance is a piece of equipment that's used during the regular course of business in your field of expertise?
A. That's correct.
Q. Are you familiar, if you know, whether or not any procedures or there's any protocol to determine whether or not your balance is operating properly?
A. Yes, sir.
Q. Will you please briefly explain to the jurors what this process is.
A. We have a manufacturer representative who checks out and services the balance two times a year, and I have my own personal balance which I verify and validate once a month and we so record it.
Q. So the balance . . . so that we are clear, you check your balance once a month?
A. That's correct.
Q. Do you ever check the balance before each . . . individual test that you perform during the normal course of business?
A. No, sir.
Q. Is there anything based on your experience with this balance, 30 years of experience, that could indicate to you whether or not the balance is not working properly?
A. No, I have not come across that even once.
. . . .
Q. Now, on this day did you use that analytical balance that you described earlier?
A. Yes, I did.
Q. To your knowledge was the balance working properly?
A. Yes, sir.
Q. And what was the net weight of the substance that was extracted from that glass pipe you described?
[DEFENSE COUNSEL]: Objection, Judge. There's a lack of foundation for the scientific evidence.
[PROSECUTOR] 703
[THE COURT] Overruled
. . . .
Q. What was the result of the confirmation test?
. . . .
Q. What was the net weight of State's Exhibit No. 2?
(Emphases added.)
During direct examination Mohammed also testified to the procedure for identifying the crystalline substances seized.
Q. [PROSECUTOR] Okay. Now as a criminalist whose duties are dedicated to drug analysis and identification, do you have any experience testing substances for the presence of methamphetamine?
A. [MOHAMMED] Yes, I have.
Q. As a criminalist, are there any particular tests that you routinely perform to make this determination for the presence of methamphetamine?
A. Yes, sir.
Q. What test or tests do you routinely perform?
A. We have a couple of routine presumptive tests and then there's a couple of confirmation tests that we routinely perform.
Q. If you could name — let's go through the test —
A. Yes.
Q. — name those and summarize briefly what this test involves.
A. Specifically for methamphetamine?
Q. For methamphetamine.
A. One would be a color test. . . .
. . . .
Q. Okay, go ahead.
A. That's one presumptive test. Another presumptive test that we can use for methamphetamine is a microcrystalline test where we subject a small portion of the evidence to another reagent, chloride phosphoric acid, and observe the development of microcrystalline under the microscope and characteristically if methamphetamine is present I would get a clothespin-shaped crystal structure which did indicate or confirm the presence of methamphetamine. Those are two presumptive tests.
Q. Presumptive tests, okay. Is there any other tests, a confirmatory test?
A. Yes. Once the presumptive test gives an indication of what the drug would be, then I proceed to confirm it with one of two confirmation tests. I use an infrared instrument called the Fourier Transform Infrared Spectrometer, in short FTIR, or I use the gas chromatograph mass spectrometer [(GCMS)] to confirm the definitive identified presence of methamphetamine — presence or absence of methamphetamine.
Q. As to the presumptive test, is the color reagent test a test that you commonly use during your normal course of duties as a criminalist?
A. Yes, sir.
Q. And is this a test based on your at least ten years of experience at HPD that you rely on?
A. Yes, sir.
Q. Now, the other presumptive test was another reagent test; is that correct?
A. Microcrystalline test.
Q. I'm sorry, microcrystalline test. Is this test recognized in your field of expertise as — I'm sorry, recognized to determine the presumptive presence of methamphetamine?
A. Yes, sir.
Q. And is this a test that you regularly perform during the normal course of your duties?
A. Yes, I do.
Q. Do you rely on this test?
A. Yes.
Q. Same questions as to the confirmatory test. As to the FTIR — we will use that acronym because I couldn't possibly remember the Fourier Transform, et cetera.
Is the FTIR test a test that's recognized in your field of expertise as a test that's commonly used to confirm the presence of methamphetamine?
A. Yes, it is.
Q. Is this a test that you commonly rely upon?
A. Yes, I do.
Q. And as to [GCMS], is that similarly a test that's recognized in your field of expertise as acknowledged to confirm the presence of methamphetamine?
A. Yes, it is.
Q. And do you rely on the results of this test during the normal course of business?
A. Yes, I do.
Q. And so that we are absolutely clear, have you been trained and do you have professional experience in the administration of each of these four tests?
A. Yes, I have.
(Emphasis added.)
The following was adduced during defense counsel's cross-examination with respect to the machines:
Q. [DEFENSE COUNSEL] Mr. Mohammed, the analytic balance you mentioned, is that an electronic instrument?
A. [MOHAMMED] Yes, it is.
Q. Also, the FTIR, that's electronic also; right?
A. Yes.
Q. And also the GCMS?
A. Yes, sir.
Q. In other words, you've got to take an electric plug and plug it...
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