State v. Metcalfe

• Decision Date: 19 March 2013
• Docket Number: No. SCWC–30518.,SCWC–30518.
• Citation: 297 P.3d 1062,129 Hawai'i 206
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Kevin C. METCALFE, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

129 Hawai'i 206

297 P.3d 1062

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

v.Kevin C. METCALFE, Petitioner/Defendant–Appellant.

No. SCWC–30518.

Supreme Court of Hawai‘i.

March 19, 2013.

Summer M.M. Kupau, for petitioner.

Ricky R. Damerville, Hilo, for respondent.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ.; with ACOBA, J., Dissenting

Separately, with whom Circuit Judge SAKAMOTO, Assigned by Reason of Vacancy, joins.

Opinion of the Court by RECKTENWALD, C.J.

On the night of May 6, 2009, the Hawai‘i County Police Department received a 911 call from Defendant Kevin C. Metcalfe. Metcalfe stated that he had just fired a 12–gauge shotgun at a burglar on his property:

I told ‘em, ‘Get down.’ Then he says, ‘Ah, [ ] you.’ He said somethin'. I don't know, and so I shot a round on the ground. I shot one, you know, away from him.

....

He—he just kinda like came toward me so I shot again, and then he, I don't know, blasted past me, and I[ ] shot again.

When a police officer arrived at Metcalfe's house, he discovered the body of Larry Kuahuia on a nearby road. There were no visible injuries to the front of Kuahuia's body, but numerous pellet wounds to the back. Metcalfe was subsequently charged in the Circuit Court of the Third Circuit with Murder in the Second Degree and Carrying or Use of Firearm in the Commission of a Separate Felony.

At trial, the State of Hawai‘i introduced a transcript of the 911 call, as well as testimony from a number of witnesses. Those witnesses included a forensic pathologist, Dr. Anthony Manoukian, who testified that in his opinion, Kuahuia died from a shotgun wound to the back fired from a distance of approximately 60 feet. They also included Detective Walter Ah Mow, a firearms instructor who testified about the results of tests he had conducted using Metcalfe's shotgun to determine how widely the pellets from the gun dispersed at various distances. Although Manoukian and Ah Mow testified about their training and expertise in, respectively, forensic pathology and firearms, the circuit court did not find on the record that they were qualified to testify as expert witnesses. As discussed below, it appears that the court had adopted a procedure under which it did not make findings in front of the jury regarding a witness's qualification to provide expert opinion testimony.

Metcalfe's defense counsel did not object to the testimony of the witnesses. Instead, he cross-examined them and elicited testimony that—as he would later contend in his closing argument—suggested that Kuahuia could have been shot at a much closer range.

Metcalfe testified in his own defense. He testified that he shot at Kuahuia in self-defense after Kuahuia had first "crab-walk[ed]" toward him, and then charged at him with an object in his hand. The jury was given instructions regarding, inter alia, self-defense and the opinion testimony elicited at trial. In closing argument, the State asserted that Metcalfe intentionally shot Kuahuia in the back from a distance of at least forty feet after Kuahuia ran past him, and did not act in self-defense. Metcalfe's counsel, however, argued that the evidence demonstrated that Kuahuia was shot from a close distance as he approached Metcalfe, and that Kuahuia was hit in the back because he turned around at the last moment after Metcalfe fired the first shot into the ground.

The jury found Metcalfe guilty of Manslaughter, in violation of Hawai‘i Revised Statutes (HRS) § 707–702, and Carrying or Use of Firearm in the Commission of a Separate Felony, in violation of HRS § 134–21(a). The circuit court entered its Judgment of Conviction and Sentence on March 25, 2010.¹ On appeal, Metcalfe argued, inter alia, that the circuit court erred in failing to properly qualify Dr. Manoukian and Detective Ah Mow as expert witnesses. In its March 30, 2012 memorandum opinion, the Intermediate Court of Appeals affirmed Metcalfe's convictions. State v. Metcalfe, No. 30518, –––Hawai‘i ––––, 2012 WL 1071503 (Haw.App. Mar. 30, 2012).

In his June 23, 2012 application for a writ of certiorari, Metcalfe raises the following questions:

I. Whether the ICA gravely erred in finding no error where the trial court denied [Metcalfe's] motion to dismiss without reviewing the transcripts from the grand jury hearing that resulted in a "no bill" and the subsequent preliminary hearing in which probable cause was found;

II. Whether the ICA gravely erred in determining that the trial court did not plainly err by (1) permitting the testimonies of Dr. Manoukian and Det. Ah Mow where the State failed to qualify them as experts in the field of ballistics in accordance with [Hawai‘i Rules of Evidence (HRE) ] Rule 702 and (2) substituting the standard expert witness instruction with an "opinion testimony" instruction;

III. Whether the ICA gravely erred in determining that the flawed instruction on self-defense was not prejudicially insufficient, erroneous, inconsistent, or misleading;

IV. Whether the ICA gravely erred in finding that the trial court was not required to instruct the jury on the defense of property where there was substantial evidence to support the defense and the failure to so instruct contributed to [Metcalfe's] conviction;

V. Whether the ICA gravely erred in finding no plain error where the trial court failed to provide a cautionary instruction regarding the prejudicial emphasis on [Metcalfe's] possession/use of medical marijuana; and

VI. Whether the ICA gravely erred in rejecting [Metcalfe's] claims of ineffective assistance of counsel based upon numerous errors and omissions that impaired his defense.

As set forth below, we hold that the circuit court did not abuse its discretion in denying Metcalfe's motion to dismiss the amended complaint. We also hold that the circuit court did not plainly err in allowing the testimony of Dr. Manoukian and Detective Ah Mow and substituting the words "opinion testimony" for the word "expert" in the jury instruction. In addition, the circuit court did not plainly err in instructing the jury on self-defense, in failing to sua sponte instruct the jury on defense of property, or in failing to provide a cautionary instruction on the use of medical marijuana. Finally, we hold that Metcalfe failed to establish that his trial counsel was ineffective.

Accordingly, we affirm the ICA's April 24, 2012 judgment on appeal.

I. Background

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

A. Complaint

On June 8, 2009, the State filed a complaint against Metcalfe, charging him with Murder in the Second Degree in violation of HRS § 707–701.5,² and Carrying or Use of Firearm in the Commission of a Separate Felony, in violation of HRS § 134–21.³ On July 9, 2009, the State filed a nearly identical amended complaint listing the same charges. The amended complaint was dated June 25, 2009.

On December 7, 2009, Metcalfe filed a motion to dismiss the amended complaint based on double jeopardy and collateral estoppel, arguing that the State was barred from filing an amended complaint seeking a probable cause determination from a judge when a grand jury returned a "no bill" on the initial complaint. Metcalfe did not include with his motion the transcripts from the grand jury or preliminary hearing proceedings. Instead, in a Declaration of Counsel attached to Metcalfe's motion to dismiss, defense counsel stated that they "reviewed the case file, court records, and transcripts" and requested that the court "take judicial notice of the said record and transcripts[,]" which counsel believed would show:

a) Prosecutor Frederick Giannini asked a duly constituted grand jury with a proper quorum on June 8, 2009 to return a true bill of indictment against [ ] Metcalfe on two counts against [ ] Metcalfe for the offenses of Murder in the Second Degree ... as amended in count one of said proposed indictment, and in count two of said proposed indictment asked the grand jury to return an indictment for the Carrying or Use of Firearm in the Commission of a Separate Felony[.]

b) On June 8, 2009, the properly constituted grand jury returned no bills on both proposed counts failing to find probable cause and that the state had not offered sufficient evidence to lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that [Metcalfe] had committed the proposed charges.

c) On June 25, 2009, the State filed an amended complaint charging the same offenses for which the grand jury had returned a no bill and on June 26, 2009 after a preliminary hearing the [H]onorable Joseph Florendo found probable cause existed for the said complaint and that the [S]tate had presented sufficient evidence to convince a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that the defendant did commit the offense of Murder in the Second Degree in Count [1], as well as Carrying or Using a Firearm in the Commission of a Separate Felony in [ ] Count [2]. This decision by the [H]onorable Judge Florendo was made when the prosecutor omitted significant evidence that the grand jury heard, some of which was exculpatory from this preliminary examination, and thus he did not have the benefit of hearing the entire circumstances of the offense.

d) Witnesses were called by the State ... in both the grand jury proceedings and in the preliminary examination.

....

In a memorandum and supplemental memorandum in opposition to Metcalfe's motion to dismiss, the State argued, inter alia, that jeopardy did not attach at the grand jury phase and thus, Metcalfe's motion should be denied. At a January 28, 2010 hearing on Metcalfe's motion, the State asserted that defense counsel's argument that the filing of the amended complaint violated double jeopardy and collateral estoppel was without merit. The State asserted that this court has not addressed this issue, but that other jurisdictions have "usually allowed" recharging a defendant unless specifically prohibited by statute, which...