TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000794; CR.
William Jameson, Jr., for petitioner
Brandon Ito, for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Zaldy Subia (Subia) was convicted of methamphetamine
trafficking in the second degree, in violation of Hawai'i
Revised Statutes (HRS) § 712-1240.8.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. 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.
Background A. Circuit Court Proceedings
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 commenced on June 13, 2012.
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."
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
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,
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.
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 ...