IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
March 19, 2013
STATE OF HAWAII,
MARWAN TIMOTHY SAAD JACKSON,
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 06-1-0045)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Reifurth and Ginoza, JJ.)
Defendant-Appellant Marwan Timothy Saad Jackson (Jackson) appeals from the August 16, 2011 judgment of the Circuit Court of the Third Circuit *fn1 (circuit court), convicting Jackson of the lesser included offense of manslaughter in violation of Hawaii Revised Statutes (HRS) § 707-702 (Count I) and of violating an order of protection in violation of HRS § 586-11 (Count IV).
On appeal, Jackson contends that he had ineffective assistance of counsel. Jackson claims his trial counsel rendered ineffective assistance by failing to properly counter the State's expert medical witness when counsel: (1) failed to hire a defense medical expert, (2) failed to consult with a medical expert prior to cross-examining the State's expert witness, (3) failed to ask the State's medical expert about alternative explanations for the decedent's injuries, and (4) misstated in closing arguments that the medical examiner concluded that the decedent could not have died from a fall.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised therein, we resolve Jackson's appeal as follows:
To demonstrate ineffective assistance of counsel, a defendant is required to prove not only that there were "specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence[,]" but also that "such errors or omissions resulted in either the withdrawal or substantial impairment of a potential meritorious defense." State v. Wakisaka, 102 Hawaii 504, 516, 78 P.3d 317, 329 (2003) (citation omitted). Jackson has not met this burden of proof.
To the extent that Jackson argues defense counsel provided ineffective assistance by failing to obtain a medical expert, the claim fails because Jackson has not provided any information as to the testimony such a medical expert would have provided. It is well-established that "[i]neffective assistance of counsel claims based on the failure to obtain witnesses must be supported by affidavits or sworn statements describing the testimony of the proffered witnesses." State v. Richie, 88 Hawaii 19, 39, 960 P.2d 1227, 1247 (1998) (emphasis added). See also State v. Fukusaku, 85 Hawaii 462, 481, 946 P.2d 32, 51 (1997); State v. Reed, 77 Hawaii 72, 84, 881 P.2d 1218, 1230 (1994) (overruled on other grounds by State v. Balanza, 93 Hawaii 279, 1 P.3d 281 (2000)); State v. Aplaca, 74 Hawaii 54, 68-69, 837 P.2d 1298, 1306 (1992). In his Opening Brief, Jackson relies merely on his own speculation as to what favorable testimony a medical expert could have provided. Hawaii precedent is clear that this is insufficient support for an ineffective assistance of counsel claim based on failure to obtain a witness.
To the extent Jackson argues that an expert should have been consulted, Jackson also fails to produce any evidence supporting this argument. Although Jackson provides speculative arguments about how consultation with a medical expert would have been beneficial, there is no actual evidence or information as to what a consultant would have done, given the circumstances of the case. Cf. Reed, 77 Hawaii at 84, 881 P.2d at 1230; State v. Montalbo, 73 Haw. 130, 146, 838 P.2d 1274, 1283 (1992). To the extent that Jackson argues that defense counsel's assistance was ineffective due to counsel's failure to question the State's expert witness, Kanthi De Alwis, M.D. (Dr. De Alwis), in regards to whether injuries to the decedent's head could have been caused by falling, Jackson fails to demonstrate that counsel lacked skill, judgment, or diligence or that such questions would have bolstered a meritorious defense. Indeed, given the direct testimony by Dr. De Alwis, that the decedent died from injuries to her head and brain and that certain significant injuries could not have been caused by a fall, further questions on cross-examination as Jackson now asserts could have further underlined for the jury that Jackson's defense theory was unmeritorious. Cf. State v. Silva, 75 Hawaii 419, 440-41, 864 P.2d 583, 593 (1993).
To the extent that Jackson alleges that defense counsel's characterization of Dr. De Alwis's testimony during closing arguments substantially impaired his defense, Jackson fails to demonstrate that counsel's characterization constitutes ineffective assistance of counsel. Given the overall testimony by Dr. De Alwis, defense counsel's characterization of her testimony was not unfounded. Further, Jackson fails to demonstrate that counsel's statement was the result of something other than tactical decision-making. It is well established in Hawaii that "'defense counsel's tactical decisions at trial generally will not be questioned by a reviewing court.'" Silva, 75 Hawaii at 441, 864 P.2d at 593 (brackets omitted) (quoting State v. Antone, 62 Hawaii 346, 352, 615 P.2d 101, 106 (1980)). It is also understood that, "[l]awyers require and are permitted broad latitude to make on-the-spot strategic choices in the course of trying a case." Silva, 75 Hawaii at 441, 864 P.2d at 593.
Given that defense counsel did not merely concede that a fall could not have caused the decedent's injuries, but rather went on to argue that multiple falls could explain the injuries, the statement can reasonably be viewed as a tactical decision to address Dr. De Alwis's testimony. Therefore, it does not amount to ineffective assistance of counsel.
IT IS HEREBY ORDERED that the August 16, 2011 judgment of the Circuit Court of the Third Circuit is affirmed.