CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000064; CR. NO. 09-1-1237)
Phyllis J. Hironaka for petitioner
Sonja P. McCullen for respondent
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ., WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY, WITH WHOM POLLACK, J. JOINS
Phillip DeLeon was convicted of Murder in the Second Degree, two counts of Carrying or Use of a Firearm in the Commission of a Separate Felony, and several other charges,  in relation to the July 31, 2009 fatal shooting of Shawn Powell. The State alleged, inter alia, that DeLeon shot Powell and shot at Powell's friend, Justin Gamboa, following an altercation at a nightclub. On appeal, the Intermediate Court of Appeals reversed the Circuit Court of the First Circuit's judgment as to DeLeon's conviction for one count of Carrying or Use of a Firearm in the Commission of a Felony, but affirmed DeLeon's remaining convictions.
DeLeon raises two issues in his application for writ of certiorari. First, DeLeon argues that his trial attorney provided ineffective assistance of counsel by committing errors that resulted in the circuit court precluding expert testimony regarding the presence of cocaine in Powell's blood at the time of the shooting. Second, DeLeon argues that the circuit court's jury instruction, modeled after the then-current Hawai'i Pattern Jury Instructions - Criminal (HAWJIC) 7.01 with regard to self-defense "failed to completely and properly instruct the jury on the law of self-defense."
We conclude that DeLeon has failed to establish that his trial counsel was ineffective with regard to the admissibility of expert testimony on cocaine use. However, we further conclude that the circuit court plainly erred in excluding such testimony. The defense expert was prepared to testify that, to a reasonable degree of scientific probability, Powell was under the influence of cocaine at the time of the shooting. However, the circuit court erroneously required that the testimony be offered to a reasonable degree of scientific certainty, and accordingly excluded the testimony. This error was not harmless beyond a reasonable doubt, and thus we vacate DeLeon's convictions for second-degree murder (Count II) and Carrying or Use of a Firearm While Engaged in the Commission of a Separate Felony (Count IV), and remand for a new trial.
With regard to the jury instruction on self-defense, we conclude that the circuit court's instruction accurately stated the law and thus was not erroneous.
Accordingly, we vacate in part and affirm in part the ICA's judgment, and vacate the circuit court's judgment of conviction and sentence on Counts II and IV, and remand to the circuit court for further proceedings consistent with this opinion.
The following factual background is taken from the record on appeal.
A. Circuit Court proceedings
On August 5, 2009, DeLeon was indicted for: Attempted Murder in the First Degree as to Powell and Gamboa (Count I); Murder in the Second Degree as to Powell, in violation of HRS §§ 707-701.5 and 706-656 (Count II); Attempted Murder in the Second Degree as to Gamboa, in violation of HRS §§ 705-500, 707- 701.5, and 706-656 (Count III); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 as to Count II (Count IV); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 as to Count III (Count V); Place to Keep Pistol or Revolver in violation of HRS § 134-25 (Count VI); Reckless Endangering in the First Degree in violation of HRS § 707-713 (Count VII); and Ownership or Possession Prohibited of Any Firearm or Ammunition by a Person Convicted of Certain Crimes in violation of HRS §§ 134-7 (b) and (h) (Count VIII).
1. State's first motion in limine to exclude cocaine evidence
Prior to trial, on August 24, 2010, the State filed a motion in limine, seeking, inter alia, to exclude any evidence that Powell's blood tested positive for .05 mg/L of cocaine on grounds that such evidence is inadmissible under Hawai'i Rules of Evidence (HRE) Rule 404(b) and/or irrelevant and unfairly prejudicial under HRE Rule 403.
DeLeon opposed the State's motion, arguing, inter alia, that evidence that Powell's blood tested positive for .05 mg/L of cocaine was "essential and probative to [DeLeon's] self-defense assertion, and its exclusion would be extremely prejudicial to his claims[.]" Among the exhibits attached to DeLeon's opposition was a letter from Dr. Clifford G. Wong, the Toxicology Laboratory Director for Clinical Laboratories of Hawaii. The letter indicated that DeLeon's defense counsel retained Dr. Wong as an expert in "DUI toxicology" and largely discussed Powell's blood alcohol concentration. With regard to Powell's cocaine concentration at the time of the shooting, Dr. Wong stated, in relevant part:
The retrograde extrapolation of  Powell's blood cocaine concentration to the time of the shooting was performed to yield a probable range of 0.06 to 0.08 mg/L. The time of cocaine ingestion is unknown, so the actual cocaine dosage cannot be determined. Information regarding total amount ingested and the time of ingestion would be required to determine more accurately whether  Powell has [sic] under the influence of cocaine at the time of the shooting.
At a hearing on the motion, the circuit court noted that "[t]he issue right away that the Court [saw]" was Dr. Wong's statement that he would need more information. Defense counsel responded:
I have since spoken to Dr. Wong. This is what I expect the proof to be: First, respectfully, if you would, keeping in mind we have a video of Powell going towards the defendant after at least three warning shots were fired and saying some things that will come out that my client heard. There's loud screaming. We have a witness from the manager of the Seoul Karaoke that heard two men screaming and then a shot or shots.
This is what Dr. Wong says -- and we've subpoenaed [medical examiner Dr. William] Goodhue, who was -- who did the toxicology and autopsy. He says that the cocaine was of recent use, and all that means is -- I mean, what does "recent" mean? But with the doctors and . . .Dr. Wong, "recent use" means probably within 24 hours because the cocaine was still in the blood, it had not been completely absorbed. Dr. Wong says when . . . there's a use of cocaine . . . it gives -- and he will testify, if he's allowed to -- someone a sense of euphoria, and he defines euphoria as invincibility, like you think you're Superman, which is consistent with why anyone would be going after someone who's firing three shots in the air. My client will testify that when he was grabbed -- and he has seen people, and he will testify, on the west side and when he was in California that he thought were high on something. And when he was grabbed in the bar by the victim, his testimony will be . . . this guy was drunk but there was something wrong with this guy, he looked like he was high on something[.]
And then we have the cocaine, the invincibility, the Superman, and then there's an explanation as to why this guy is doing this. Their witnesses say they thought Powell was crazy that he would be going after someone that just fired a gun in the air and just went right after him.
So I don't mind a [HRE Rule] 104 hearing as well, but it's the euphoria that the cocaine gives. We have the toxicology report that says recent use. We have the testimony from the defendant who says this guy looked like he was on something. Now, if he says that, then I think he has the right to say that. If it's not buttressed or corroborated by the medical testimony and the expert testimony, it may look like it's simply a self-serving statement he wants to make with no basis in fact.
The DPA then argued for an HRE Rule 104 hearing:
[I]t's the state's understanding that cocaine does not have a consistent effect on people like alcohol does. I think that this euphoric state can also be a dysphoric state and I think that the witness would testify to that, that he cannot describe the states that people go through on a consistent basis, . . . even knowing or being able to retro-extrapolate the amount of cocaine that was in the blood at the time of the specific incident.
The circuit court ruled that it would conduct an HRE Rule 104 hearing before allowing any testimony regarding Powell's cocaine level. The circuit court also informed defense counsel of its concerns:
THE COURT: . . . And just so, you know, counsel, you're very clear, it's the Court's concern that Dr. Wong is not able to render an opinion that the victim was under the influence at the time of the shooting, and . . . doesn't have enough information and that's what's stated on the bottom of page 5 of his opinion, and if that remains his opinion, then it's not admissible.
[DEFENSE COUNSEL]: I'm clear with that. Thank you, Your Honor. I'm clear as to the ruling.
THE COURT: Questionable relevancy and materiality will just create undue confusion.
Shortly before opening statements, the circuit court ruled, over the State's objection, that defense counsel could mention in his opening statement DeLeon's perception that Powell may have been "high on something without making any specifications." The circuit court stated that the substance or the amount could not be mentioned "until we have had subsequent [HRE] Rule 104 hearings."
2. State's Case-in-Chief
At trial, Jermaine Beaudoin testified that on the night of July 30, 2009, he, along with Gamboa, and Powell went in Gamboa's Lincoln Navigator to Bar Seven next to Ala Moana Center at about 2:15 to 2:30 a.m. Beaudoin estimated that at this point in the evening, he had consumed between nine to eleven alcoholic drinks, and that Powell had also been drinking but was not drunk. At some point, Beaudoin saw Powell talking to DeLeon, whom Beaudoin did not know at the time. Powell and DeLeon "got into a little tussle." Beaudoin intervened and DeLeon began yelling at him. In response, Beaudoin slapped DeLeon's head with his open hand, knocking off DeLeon's dark glasses. Beaudoin testified that he believed that DeLeon then left Bar Seven.
Beaudoin, Powell, and Gamboa then went in Gamboa's Navigator to Seoul Karaoke at about 3:45 a.m. Powell, Beaudoin, Gamboa and another acquaintance, Lane Akiona, walked in to Seoul Karaoke. The group was in Seoul Karaoke for about two to three minutes, was told that it was closing, and walked out to the car. According to Beaudoin, as the group walked to the car, someone yelled at them. Beaudoin stated that he "couldn't make out what he was yelling at us, but he was yelling something at us. So we turned around and walked towards the defendant." When Beaudoin came within about five to ten feet of DeLeon, Beaudoin "noticed that it was the same guy from Bar 7." At that point, Powell was closest to DeLeon, and Beaudoin told Powell "that's the guy from Bar ![, ]" and said "we go." According to Beaudoin, when Powell reached DeLeon, Powell said, "Everything is cool, everything --no more problem." Beaudoin described Powell's body language as "[r]egular, hands down. Everything is cool, misunderstanding or whatevers." Beaudoin stated that Powell did not look mad and that Powell was trying to calm the situation. Powell was about an "[a]rm's length" from DeLeon when DeLeon then "[g]rab[bed] his gun and started shooting." DeLeon first shot into the ground two or three times, then shot Powell in the chest. At that point, Beaudoin was "turning around, trying to get away[, ]" and then DeLeon shot "towards [Beaudoin] in the ground and [shot] at the vehicle." Beaudoin stated that as DeLeon shot the gun, Beaudoin was on the ground and "felt the pebbles off the ground hitting [his] face." Beaudoin testified that the shots were "[c]ontinuous."
On cross-examination, Beaudoin acknowledged that his July 31, 2009 written statement describing the incident reflected that DeLeon's first shots were in the air and that his written statement and his August 5, 2009 grand jury testimony did not mention that his group approached DeLeon because DeLeon yelled at them. Beaudoin stated that he tried to stop Powell by grabbing his shoulder and that he was able to stop him from walking. Beaudoin acknowledged that when asked before the grand jury how many feet away DeLeon was from Powell when DeLeon shot Powell in the chest, Beaudoin answered, "[n]ot feet" and "[n]ot even feet."
Gamboa testified that at Bar Seven, he noticed Powell talking to a Mexican man in dark glasses and that the conversation between them appeared friendly. At some point there was a commotion in the group, and Gamboa saw another acquaintance, Joe Chang, "trying to break it up [and p]ulled kind of [Powell] to the side." Gamboa did not see anyone being hit but saw "this Mexican guy stumbling." Gamboa saw the Mexican man walk towards the entrance of the club and did not see him in the club after that.
Later, the group left Bar Seven, and Gamboa drove Beaudoin, Powell, and two other men whom Gamboa did not know to Seoul Karaoke. No one talked about the incident from Bar Seven, and Powell "seemed normal" and "[n]othing bothered him."
Gamboa further testified that he, Powell, Beaudoin, Lane, and two other men went to Seoul Karaoke but were told it was closed and left. Gamboa walked into the parking lot to his car, with the other men "kind of trailing behind" him. Gamboa opened his car door, and then heard someone yelling aggressively, "You want to mess with me? You want to hit me?" Gamboa then heard someone say, "What, the guy from Sevens." Gamboa turned around to see who was yelling and walked in the direction of the yelling. Gamboa saw "him coming towards us. Then he shot three rounds into the ground. . . . [T]hen I seen him shoot [Powell]." Gamboa estimated that one to two seconds passed between when he heard the man yelling and when he fired the first three shots into the ground, and stated that it was another one to two seconds between the first three shots and the shot to Powell. Gamboa stated that Powell and the man had been "kind of talking towards each other, " but that Gamboa could not hear what they were saying. Gamboa stated that he saw the man point the gun towards Powell's chest and that Powell was raising his hands with his palms facing forward when the man shot Powell. About one to two seconds after shooting Powell, the man shot toward Gamboa. Gamboa heard his car windshield "blowing up[, ]" and ran to the building next door. Gamboa stated that Powell was about one to two feet away from the shooter when he was shot. Gamboa identified the shooter in court as DeLeon.
On cross-examination, Gamboa acknowledged that he told police that DeLeon's car pulled up as the group left Seoul Karaoke, and Powell "veered off." Gamboa stated that he did not drink the night of the incident.
Lane Akiona testified that as he was leaving Seoul Karaoke with Powell, Beaudoin and Gamboa, a male Lane did not know approached them. Lane did not know about the incident with DeLeon at Bar Seven. According to Lane, the male said, "What's up?" When asked how the male was acting, Lane answered: "Like what's up now, like, then [Powell] raised his hands approaching him and the guy reached behind his back and he just -- it happened so fast. He just started firing shots and I ducked out of the way and tried to get out of the line of fire." Lane estimated it was about 15 to 20 seconds between when the male said, "what's up" to when he started shooting. Lane stated that before Powell was shot, Powell was "[j]ust standing there[.]" Lane stated that he saw the shooter point directly to Powell's chest when the shooter was about three feet from Powell. Lane identified the shooter in court as DeLeon.
Daekum Kim, who worked at Seoul Karaoke at the time of the incident, stated that at about 4:00 a.m. on July 31, 2009, he told a group of about four to five drunk men who entered that Seoul Karaoke would be closing. The men left, and Kim heard "someone fight" outside. Kim could not see who was outside, but "[t]heir voice was loud and the yelling and they say bad words." Kim then heard a single gun shot, then "after two, three seconds, two, three times more." Kim called the police and did not go outside until after the police arrived.
Liana Cuarisma, DeLeon's girlfriend at the time of the incident, testified that on July 31, 2009, at about 3:50 a.m., DeLeon called her and said, "I just got fucking mobbed" at Bar Seven. Cuarisma stated that DeLeon sounded upset and was "[h]uffing and puffing" over the phone. Later that day, during lunchtime, DeLeon told Cuarisma over the phone that he had to return to Washington, where he was from, to see his mother in the hospital. Later that evening, Cuarisma dropped DeLeon off at the airport.
Taro Nakamura, a Honolulu Police Department (HPD) homicide detective, testified that at some point he received an anonymous phone call from a male who said that Powell had gotten into an argument with someone at Bar Seven, and described the person as a tall Mexican male with the name of Jose Lion or Deleon. Nakamura ran background checks for "combinations of Jose, Jesus, Lion, Deleon, " found an entry and photograph for DeLeon, and assembled a photographic lineup. Beaudoin and Gamboa picked out DeLeon from the photographic lineup, but Lane was not able to identify a suspect. Nakamura learned that DeLeon had purchased an airplane ticket, and sent officers to the airport.
HPD criminalist Kaleo Kaluhiokalani testified as an expert in the field of gunshot residue analysis and stated that gunshot residue kit samples taken from Powell's hands showed particles "highly specific to gunshot residue." Kaluhiokalani stated that this finding could indicate that Powell discharged a gun, handled the gun or another object contaminated with gunshot residue, or was near a firearm when it was discharged, and that if a person is shot in the chest and touches the wound, gunshot residue can be transferred to the person's hands.
Acting chief medical examiner Dr. William Goodhue, testifying as an expert in the field of forensic pathology, stated that he performed an autopsy on Powell on July 31, 2009 and concluded that Powell's cause of death was "massive blood loss due to injury to his heart as a result of a gunshot wound to the chest." On cross-examination, Dr. Goodhue stated that the gunshot to Powell was not a contact wound in which the barrel of the gun was placed against the body. Dr. Goodhue stated that he could not conclude how far away the gun was from Powell at the time it was fired because he did not receive Powell's shirt to examine.
After the State rested,  DeLeon moved for judgment of acquittal as to all charges. The circuit court denied the motion.
3. HRE Rule 104 hearing regarding cocaine evidence and circuit court ruling
On September 22, 2010, the day after resting its case- in-chief, the State filed Motion in Limine No. 2, seeking to exclude from trial (1) any evidence of any opinion by Dr. Wong regarding the behavioral effects of cocaine and/or alcohol combination, (2) any testimony about how Powell might have reacted to the cocaine and/or alcohol in his system, and (3) Dr. Wong's opinion in his September 7, 2010 letter that:
Given the co-presence of significant levels of cocaine and alcohol in the decedent, my opinion is that  Powell was under the influence of those two drugs at the time of the shooting, and accordingly, made a fatal misjudgment in his attempt to accost the defendant,  Deleon, even after warning shots were fired.
The State argued that allowing such evidence would violate HRE Rule 702,  stating: "Dr.  Wong cannot testify to  Powell's state of mind because he does not have enough information. Additionally, it is an issue of fact for the jury to decide whether there was an 'attempt to accost the defendant.' Lastly, the opinion is outside Dr. Wong's expertise." The State also argued that Dr. Wong's "opinion is outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury, " warranting its exclusion pursuant to HRE Rule 403.
The circuit court held an HRE Rule 104 hearing the same day. At the hearing, Dr. Wong testified that he is a forensic toxicologist and the toxicology lab director at Clinical Laboratories of Hawaii's toxicology department. Dr. Wong explained that cocaine is a "central nervous system stimulant . . . [that] mimics the activity of adrenaline." Its effect increases the heart rate and dilates blood vessels, "engorg[ing] the muscles of the body to fight or flight" - that is, "when a person is confronted with danger or something that is opposing them, they would develop the ability to fight off that threat or to run away." Dr. Wong agreed that he could say "to a reasonable scientific probability that based on [his] training and experience, . . . the ingestion of cocaine can affect someone's behavior[.]"
With respect to the instant case, Dr. Wong testified that he reviewed some parts of the police report, the testimony of the witnesses before the grand jury, witness statements to the police officers "investigating right after" the shooting, the medical examiner's report, and a security camera video recording of the shooting. Dr. Wong noted that Dr. Goodhue's autopsy report indicated the finding of cocaine and benzoylecgonine, a metabolite of cocaine, in Powell's blood. According to the medical examiner's laboratory report on Powell, "the alcohol was extremely high." A toxicology report indicated the presence of .05 milligrams per liter of cocaine and .39 milligrams per liter of benzoylecgonine. Dr. Wong stated that the proportion of benzoylecgonine to cocaine "generally means that the cocaine . . . was perhaps consumed at a . . . much earlier time frame, say beyond four or five hours." Dr. Wong noted that Dr. Goodhue's autopsy report stated that the cocaine was taken "in close proximity to the death"; Dr. Wong stated that given the level of cocaine detected, it was taken within the previous 24 hours. Dr. Wong also testified that he called the laboratory that performed the toxicology analysis on Powell's blood, and learned that the laboratory also found coca ethylene, which "indicates a usage of cocaine while there was still alcohol present in the body."
Defense counsel asked Dr. Wong if he could say to a "reasonable scientific probability" that if cocaine is in the blood, it would have an effect on the user's behavior, to which Dr. Wong responded: "I would say not knowing his medical history, his experience with cocaine, I would say just if I would assume an average user or a naive user, yes, we would normally see the effects of cocaine."
Dr. Wong also performed a retrograde extrapolation for alcohol and cocaine, in which he calculated the concentrations of alcohol and cocaine in Powell's body at the time of the shooting. Dr. Wong stated that Powell's blood alcohol at the time of the shooting was 0.18.
Dr. Wong stated that the combined effects of cocaine and alcohol "generally are additive, especially in the effects of judgment." The following exchange occurred between defense counsel and Dr. Wong:
Q. Does it help you at all in the video in assessing as you may look at a police report a field sobriety test, does this video help you at all in being able to give an opinion based on a reasonable scientific probability as to what the effects first of all with the alcohol and then -- strike the alcohol, the effects of the cocaine?
A. Just that everyone else there at that party had drinks as well as he. When they saw or appeared to have seen a gun, they all pretty much stayed away from the defendant, whereas the victim did not. Now, what is the commonality of all of them? They had alcohol. What was the -- at least all we know at this time the only difference between  Powell and the others in his party was that we found cocaine in him, and so by inference perhaps it was that cocaine that gave him that extra shove to confront the individual.
Q. Can you say to a reasonable scientific probability the fact that there was cocaine found in his bloodstream, the proximity of the cocaine, that it affected his judgment and his critical judgment or his behavior, just the cocaine alone?
A. Well, again, just based on cocaine concentrations that is something I can't give you a definite answer but if this individual was approaching staring down the barrel of a gun, where most normal people would shy away or perhaps remove themselves from, I would say that perhaps cocaine, yes, by a probability would have been a factor in having him confront this individual even with a gun being presented towards him.
Q. ... Are you satisfied that the ingestion of cocaine in the proximity to the death had an impact on Powell's behavior?
A. With reasonable probability I would say yes.
Q. To a reasonable medical scientific probability?
On cross-examination, the State questioned Dr. Wong about what he could testify to regarding the effect of cocaine on Powell:
Q. You know, you just used words like perhaps the cocaine could or would have been a factor in  Powell's judgment; right?
Q. And you cannot testify today in court under oath that to a reasonable degree of medical certainty  Powell was under the influence of cocaine at the time of the shooting?
[DEFENSE COUNSEL]: Excuse me, I don't mean to interrupt you, . . . I'm not so sure the standard is medical certainty, I think it's probability but either way.
THE WITNESS: Yes.
BY [THE STATE]:
Q. Dr. Wong, you're uncomfortable with saying that; isn't that true?
A. Well, normally in court in a criminal case I usually would make an opinion based on beyond a reasonable doubt, okay? In this case it's clearly it's not beyond a reasonable doubt whether or not he was or not or was not under the influence of cocaine. I can only say with reasonable probability because of the concentration that was found, extrapolated concentration that was found in the blood, as well as his behavior, his apparent behavior in the camera of moving towards the defendant -
Q. Can you testify to a reasonable medical degree of certainty that  Powell was under the influence of cocaine at the time of the shooting?
A. I can only say by probability.
Q. Yes or no, Doctor.
A. High probability, that's all I can say.
Q. High probability, not to a reasonable degree of medical certainty?
A. Not beyond a reasonable --
THE COURT: Scientific certainty.
BY [THE STATE]:
Q. Scientific certainty. To a reasonable degree of scientific certainty, can you testify that  Powell was under the influence of cocaine at the time of the shooting?
Q. And the reason why you can't is because you don't know the background of  Powell?
Q. ... [Y]ou cannot testify to a reasonable degree of scientific study [sic] because you state you need more information?
A. Yes, that's correct.
Q. From your August 9 letter to your September 7 letter you say you need more information; correct?