NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 08-1-1143)
Te-Hina Ickes for Defendant-Appellant.
Stephen K. Tsushima Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee.
Fujise, Presiding Judge, Leonard and Ginoza, JJ.
Defendant-Appellant Joel C. Allen (Allen) appeals from a January 27, 2010, Circuit Court of the First Circuit (Circuit Court) Judgment of Conviction and Sentence for Murder in the Second Degree,  in violation of Hawaii Revised Statutes (HRS) § 707-701.5 (1993) .
I. RELEVANT FACTS
A. Pretrial Inquiry Into Penal Responsibility
On July 22, 2008, Plaintiff-Appellee State of Hawai'i (State) obtained an indictment against Allen for murder in the second degree. The charge arose out of an incident in which Allen caused the death of Jason Namauu (Namauu) by stabbing/slashing him twenty times using a knife with a three-and-one-half inch blade.
On March 3, 2009, the State filed a Motion for Mental Examination of Defendant to Determine Penal Responsibility and Fitness to Proceed, which was granted. During June and July of 2009, three doctors (John L. Wingert, PhD (Dr. Wingert); Dennis R. Donovan, PhD, ABPP, CSAC (Dr. Donovan); and Martin Blinder, MD (Dr. Blinder)) each submitted a letter to the court regarding Allen's penal responsibility and fitness to proceed. All three independent diagnoses concluded that Allen was fit to proceed and opined that penal responsibility should not be negated in this case. On September 1, 2009, a hearing on Allen's fitness to proceed was held, and the court ultimately found Allen fit to proceed.
On November 2, 2009, Allen filed a Motion to Strike Three Panel and Appoint Three Qualified Examiners or Dismiss (Motion to Strike Examiners), arguing that the reports denied him an affirmative insanity defense because they did not sufficiently render an opinion regarding penal responsibility because they failed to adhere to the requirements of HRS § 704. The court subsequently denied the motion, concluding that any discrepancy "goes to the weight and not the admissibility of the doctors."
B. Voir Dire
Jury selection took place from November 9-10, 2009. During jury selection, Allen's counsel was precluded from asking potential jurors certain questions regarding possible racial prejudices. The Circuit Court, after a discussion at the bench, cautioned Allen's counsel against particularized questioning regarding race, stating: "Counsel, the court's given an instruction earlier that everyone must be treated without bias, prejudice or favoritism on the grounds of race, sexual orientation, gender, religion, and you can inquire into that if you wish. But other than that, let's move on." Allen's counsel also requested additional peremptory challenges based on the Circuit Court's refusal to allow voir dire on potential racial prejudice; however, the court denied that request.
C. The Jury Trial
After the jury was empaneled, the trial began on November 13, 2009. At trial, Allen, a Caucasian male, testified that he met the decedent, Namauu, who was a trans-gender Hawaiian or Hawaiian-Filipino and known to Allen as Lynette, approximately two or three weeks prior to July 17, 2008. This testimony is in conflict with the testimony of Lambert Kaleikini (Kaleikini), also a self-identified transvestite, who claimed that he had known Allen for over five years and Namauu since 2000, had seen Allen with Namauu at clubs and bars acting "lovey-dovey" and "intimate, " and that Allen was actually in a relationship with Namauu for about two years.
Allen, on the other hand, testified that he considered Namauu an acquaintance, but he had not gone anywhere with her until July 17, 2008. On that date, Allen testified, while walking to his car in order to pick up his mail, he began talking to Namauu. He agreed to store Namauu's belongings in his car, as Namauu was homeless. Allen then let Namauu ride along with him to pick up the mail. Allen soon thereafter stopped the car at Cartwright Park to get a drink of water and use the restroom, while Namauu remained in the car. Upon returning to his car, Allen testified, he put his seatbelt on. He then allegedly saw Namauu "fidgeting with an ice pipe and a rag" and said "Is that ice? Is that drugs?" Namauu responded that "Yes, it is[, ]" which prompted Allen to ask "Are you -- have you taken this today? Have you taken drugs already?" Namauu answered "yes" and asked for $250. Allen then allegedly stated that he didn't want drugs in the car and he again refused her request for money.
Allen testified that, following the exchange, he told Namauu that he was going to take her "back, " and Namauu responded in a loud voice, saying "Your driving irritates me." Namauu then purportedly struck Allen above his left eye and continued asking for money, at one point stating, "Give me the money or I'll kill you" and "You're not going until you give me the money." Allen testified that Namauu continued her assault by "clawing" at his hands and hitting him in the face, shoulders, arms, and back. He then attempted to get out of his vehicle, but could not unhook his seatbelt. Claiming fear for his life, Allen reached for a pocket knife that he kept on the driver's side door and told Namauu to stop. However, Namauu then allegedly grabbed for the knife and continued her assault, while Allen tried to fend her off.
Meanwhile, two neighbors, Herman Henry (Henry) and Ilanlan Asher (Asher) were at Cartwright Field for their wives' Softball game when they heard loud shouting from a vehicle and saw someone in the driver's seat apparently punching or stabbing the passenger, who was on his or her back "kicking" up at the driver. Henry and Asher approached the car and saw Allen throw a knife to the car's floor and observed that the passenger was bleeding. Henry grabbed the knife and threw it out the door, while Asher tried to keep Allen in the car; however, Allen pushed the car door open and fled. Both Henry and Asher testified that Allen did not have his seat belt on at the time of the incident. Another man who was at the scene, Jonathan Bargas (Bargas) also testified that he never saw Allen wearing a seatbelt. When Bargas observed that Namauu was bleeding profusely from the chest, he immediately ran back to the softball field to call the police. Asher, meanwhile, went over to Namauu (on the passenger's side) to help him out of the vehicle and apply pressure to the stab wound in his chest. Henry ran after Allen, eventually flagging down some police officers and pointing them in Allen's direction.
Allen testified that, upon exiting his car, he was confused and did not want to be attacked again, so he began to run, eventually reaching Beretania Street. Allen explained that a police officer then told him to stop; he complied and went to the ground. Allen testified that he was not tripped by the arresting officer; however, this is in conflict with what Officer Steven Chun (Chun) described, which was that he caught up to a fleeing Allen and did a "leg sweep, " causing Allen to fall forward onto the concrete. Officer Chun then arrested Allen.
During Namauu's transport to Queen's Medical Center she was covered in blood, and at no point did Namauu recover consciousness or show any vital signs. Officers at the crime scene recovered several items, including: a handbag containing "two glass [drug] pipes and . . . various metal scrapers and straws, " two duffle bags of men's clothes and other items in the trunk of Allen's car, and a blood-soaked seven-inch pocket knife with a three-and-one-half inch blade. One of the responding officers, Officer Noel Araki (Araki), testified that the front driver's side seatbelt was fastened when he arrived on scene, and another officer, Detective Theodore Coons (Coons) testified that the driver's side seatbelt appeared "ironed . . . into the seat."
Doctor William Goodhue (Dr. Goodhue) performed the autopsy, and the Circuit Court allowed him to testify as an expert in forensic pathology, over the objections of Allen's counsel. Before expounding on the case, Dr. Goodhue testified as to his qualifications as an expert, stating, among other things, that he: (1) is the Acting Chief Medical Examiner of the City and County of Honolulu; (2) has been licenced to practice medicine in Hawai'i since 1972; (3) earned his medical degree from Cornell University; (4) did his residency in anatomic pathology at the New York Hospital Cornell Medical Center; and (5) is board-certified in anatomic pathology (of which forensic pathology is a sub-speciality) by the American Board of Pathology. Additionally, Dr. Goodhue explained that he has conducted approximately 1, 600 forensic autopsies and has previously been qualified to testify as a medical expert in forensic pathology in the Hawai'i state courts on about 80 previous occasions in the past eight and a half years.
On November 12, 2009, Allen's counsel made a motion to preclude Dr. Goodhue from testifying as to whether Namauu's injuries were consistent with "defensive wounds;" nevertheless, the Circuit Court allowed the testimony at trial. In his expert testimony at trial, Dr. Goodhue explained that the stab wound to Namauu's chest was the fatal one and that the presence of methamphetamine in Namauu's body had little, if any, contribution to Namauu's ultimate demise. Goodhue also identified a number of wounds that were consistent with "defensive" wounds, including those to Namauu's legs, arm, and hand.
D. Jury Instructions, Closing Arguments and End of Trial
Over Allen's objection, the Circuit Court gave the Hawai'i Pattern Jury Instruction (HAWJIC) self-defense instruction, which states in relevant part:
The use of deadly force upon or toward another person is justified when a person using such force reasonably believed that deadly force is immediately necessary to protect himself on the present occasion against death, serious bodily injury or kidnapping. The reasonableness of the defendant's belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant's position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be.
Allen's counsel objected to the "immediate threat" language contained in the HAWJIC instruction.
Prior to closing arguments, Allen's counsel objected to the State's PowerPoint slide, which referred to Bargas's opinion that Allen was not acting in self-defense. The slide depicted Bargas stating, "In my opinion, no, it did not appear that defendant was acting in self-defense." The Circuit Court overruled this objection on the ground that the court would allow reference to the statement as it was the witness's perception.
During the closing argument, the State made several religious references, including the recounting of the parable of the Good Samaritan. The defense objected; however, the Circuit Court overruled the objection, saying: "Aside from religious references, I will allow it as a historical example." Allen's counsel also objected to what he felt was a misstatement of law by the State,  though the court overruled this objection, stating that "[t]he jury has the law" and that the prosecutor was only trying to rebut something that the defense had previously stated. Similarly, the Circuit Court overruled a defense objection based on the State allegedly implying that Allen was lying and tailoring his testimony.
The defense moved for a mistrial (or, in the alternative, to strike the allegedly improper arguments and give different jury instructions) several times near the end of the State's closing argument. The Circuit Court denied the motions for a mistrial and declined to provide any alternative relief. The jury was then allowed to deliberate, and on November 25, 2009, they returned a unanimous verdict of guilty of the charged offense of murder in the second degree.
On January 27, 2010, the Circuit Court entered a judgment of conviction against Allen for Murder in the Second Degree in violation of HRS § 707-701.5, sentencing him to life imprisonment with the possibility of parole, pursuant to HRS § 706-656 (1993 & Supp. 2012), and ordering him to pay $3, 281.72 in restitution and a crime victim compensation fee of $305.00.
II. POINTS OF ERROR
Allen raises five points of error on appeal, contending that the Circuit Court: (1) abused its discretion in denying Defendant's Motion to Strike Examiners; (2) abused its discretion in precluding Allen's counsel from examining the venire regarding possible racial prejudice; (3) abused its discretion by allowing testimony of the medical examiner to testify as to whether some of the decedent's wounds were consistent with defensive wounds; (4) erred by failing to properly instruct the jury regarding justifiable use of ...