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State v. Subia

Supreme Court of Hawaii

October 24, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellant,
v.
ZALDY SUBIA, Petitioner/Defendant-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000794; CR. NO. 11-1-1405)

          William Jameson, Jr., for petitioner

          Brandon Ito, for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          WILSON, J.

         Petitioner/Defendant-Appellant Zaldy Subia (Subia) was convicted of methamphetamine trafficking in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1240.8.[1]The Intermediate Court of Appeals' (ICA) September 23, 2015 Judgment on Appeal, entered pursuant to its August 17, 2015 Memorandum Opinion, affirmed Subia's conviction. On appeal, Subia argues the ICA erred in holding 1) the Circuit Court of the First Circuit (circuit court) did not abuse its discretion by permitting Jeanette Ardiente (Ardiente), a criminalist with the Honolulu Police Department (HPD), to testify that the results of the Fourier Transform Infrared Spectrometer (FTIR) conclusively established that the substances the police recovered from Subia contained methamphetamine; and 2) Subia's conviction was based on sufficient evidence.[2] We conclude a proper foundation was not laid to introduce the FTIR test results and therefore, Ardiente should not have been permitted to testify regarding the FTIR test results. Further, there is a reasonable possibility that the admission of the test results contributed to Subia's conviction. Because the circuit court's error was not harmless beyond a reasonable doubt, we vacate the Judgment on Appeal of the ICA and the judgment of conviction of the circuit court, and remand to the circuit court for a new trial.

         I. Background A. Circuit Court Proceedings

         On October 5, 2011, Subia was charged with committing methamphetamine trafficking in the second degree. The "Felony Information" filed by the State charged Subia with violating HRS § 712-1240.8:

On or about the 4th day of October, 2011, in the City and County of Honolulu, State of Hawaii, ZALDY SUBIA did knowingly distribute the dangerous drug methamphetamine in any amount, thereby committing the offense of Methamphetamine Trafficking in the Second Degree in violation of Section 712-1240.8 of the Hawaii Revised Statutes.

A jury trial[3] commenced on June 13, 2012.

         At trial, the State presented testimony from HPD Officer Brett Doronila, who testified that on October 4, 2011, as part of an undercover operation, he approached Subia and sought to purchase methamphetamine. Officer Doronila described his interaction with Subia as follows:

Well, I approached him. I asked him if "You get, " which is, through my training and appearance [sic], is street vernacular to see if you have any illegal drugs to sell. He said, "What you looking for?" I said "Clear." Which is street vernacular for crystal methamphetamine. He said, "How much you looking for?" I said "Forty." Forty dollars. He said, "Okay, wait here."

         After this conversation, Subia left to collect the alleged drugs. Subia returned with two clear Ziploc bags, which he handed to Officer Doronila, who then paid Subia. Officer Doronila testified that each of the bags contained "a white crystalline-like substance" that he asserted resembled methamphetamine.

         Subia's description of his encounter with Officer Doronila substantially corresponds with Officer Doronila's testimony. Subia explained that Officer Doronila asked Subia if he had drugs, and Subia replied, "no, but I could get [] some drugs that somebody get[.]" On cross examination, Subia agreed that he sold Officer Doronila drugs, and that he knew "clear means crystal meth." Subia also agreed that he "went to get the meth, " spoke with the drug dealer and told him "[s]omebody want to buy forty, forty dollar worth" of "[c]rystal meth." In response, the drug dealer "gave [Subia] the drugs, " Subia returned to Officer Doronila and "holding the meth, [] put it in [Officer Doronila's] hands." To the State's question asking whether Subia had "[done] this before, " Subia replied, "Yeah, some."

         Ardiente, a criminalist with HPD who conducted tests to identify the substances at issue, was presented by the State as an expert in the field of drug analysis and identification. She testified that she is trained in the "use" of the FTIR. Defense counsel did not object to Ardiente as an expert and the court determined Ardiente was an expert in the field of drug analysis and identification.

         Ardiente testified that she analyzed the substances to determine if the bags contained controlled substances. To perform her analysis, Ardiente conducted a color test, a crystal test, and the FTIR test. The color and crystal tests are presumptive tests, meaning the tests indicate, but do not confirm, the presence of methamphetamine. Ardiente ...


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