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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000064
                                                              15-JAN-2014
                                                              09:43 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

         PHILLIP DELEON, Petitioner/Defendant-Appellant.


                             SCWC-11-0000064

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000064; CR. NO. 09-1-1237)

                            JANUARY 15, 2014

          RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
             WITH ACOBA, J., CONCURRING AND DISSENTING
              SEPARATELY, WITH WHOM POLLACK, J. JOINS

             OPINION OF THE COURT BY RECKTENWALD, C.J.

           Phillip DeLeon was convicted of Murder in the Second

Degree, two counts of Carrying or Use of a Firearm in the
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Commission of a Separate Felony, and several other charges,1 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’s2          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

      1
            As explained infra, DeLeon was also convicted of two counts of
Reckless Endangering in the First Degree, and Ownership or Possession
Prohibited of Any Firearm or Ammunition by a Person Indicted for Certain
Crimes.
      2
            The Honorable Virginia L. Crandall presided.

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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.

                             I.   Background

            The following factual background is taken from the


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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)3; 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


      3
            HRS § 707-701.5 (1993) provides in relevant part, “a person
commits the offense of murder in the second degree if the person intentionally
or knowingly causes the death of another person.” HRS § 706-656(2) (Supp.
2010) provides in relevant part: “[P]ersons convicted of second degree
murder . . . shall be sentenced to life imprisonment with possibility of
parole.”

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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)4 and/or irrelevant and unfairly

prejudicial under HRE Rule 403.5

           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



     4
           HRE Rule 404(b) (Supp. 2010) provides:

           Other crimes, wrongs, or acts. Evidence of other
           crimes, wrongs, or acts is not admissible to prove the
           character of a person in order to show action in
           conformity therewith. It may, however, be admissible
           where such evidence is probative of another fact that
           is of consequence to the determination of the action,
           such as proof of motive, opportunity, intent,
           preparation, plan, knowledge, identity, modus
           operandi, or absence of mistake or accident. In
           criminal cases, the proponent of evidence to be
           offered under this subsection shall provide reasonable
           notice in advance of trial, or during trial if the
           court excuses pretrial notice on good cause shown, of
           the date, location, and general nature of any such
           evidence it intends to introduce at trial.
     5
           HRE Rule 403 (1993) provides:

           Although relevant, evidence may be excluded if its
           probative value is substantially outweighed by the
           danger of unfair prejudice, confusion of the issues,
           or misleading the jury, or by considerations of undue
           delay, waste of time, or needless presentation of
           cumulative evidence.

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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.

(Emphasis added).

           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

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            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[6] 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:


      6
            HRE Rule 104 governs preliminary questions regarding the
admissibility of evidence.

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                  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 Seven7 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

      7
            Other witnesses, as well as defense counsel and the DPA, referred
to this establishment as either Club 7 or Bar Seven. For purposes of
consistency, this opinion will use the name “Bar Seven.”

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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 7[,]” 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


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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


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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.


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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


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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”8 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



      8
            Cuarisma initially testified that DeLeon told her that he had just
gotten “mugged.”

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return to Washington, where he was from, to see his mother in the

hospital.9    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.10    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.11

             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



      9
            Cuarisma, whom the State treated as a hostile witness, later
acknowledged on direct examination that it was possible, although she did not
remember, that between 4:08 a.m. and 9:30 p.m. on July 31, 2009 she talked to
DeLeon at least 40 times.
      10
             It appears that the anonymous call occurred on July 31, 2009.
      11
            Additional witnesses testified about DeLeon’s check-in and arrest
at the airport on the evening of July 31, 2009.

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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,12 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-


      12
            Additional witnesses testified for the State; however, their
testimony is not relevant to the issues before this court.

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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 letter13 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 702,14 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

      13
             Dr. Wong’s September 7, 2010 letter is not included in the record
on appeal.
      14
             HRE Rule 702 (1993) provides:

             If scientific, technical, or other specialized
             knowledge will assist the trier of fact to understand
             the evidence or to determine a fact in issue, a
             witness qualified as an expert by knowledge, skill,
             experience, training, or education may testify thereto
             in the form of an opinion or otherwise. In
             determining the issue of assistance to the trier of
             fact, the court may consider the trustworthiness and
             validity of the scientific technique or mode of
             analysis employed by the proffered expert.

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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


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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 cocaethylene, 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.”


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            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 0.18.15

            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



      15
            Although Dr. Wong did not state at the hearing the concentration
of cocaine in Powell’s blood at the time of the shooting, Dr. Wong’s August 9,
2010 letter that defense counsel submitted to the circuit court on September
3, 2010 indicated that Powell’s blood cocaine concentration at the time of the
shooting was in a “probable range of 0.06 to 0.08 mg/L.”

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           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?

                 A.   Yes.

(Emphases added).

           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?

                 A.   Yes.

                 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

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        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?

              A.   No.

              Q. And the reason why you can’t is because you
        don’t know the background of [] Powell?

              A.   Yes.

        . . . .

              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?

              A.   Yes.


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                 Q. Now, you need to know how the cocaine was
           ingested, was it smoked, was it snorted, was it
           intravenous?

                 A. No, that aspect was not important.
           Primarily the important factors were did the
           individual show signs of intoxication, and we have no
           evidence other than any anecdotal evidence from the
           other witnesses. The camera was too far away to
           really determine any behaviors of tremors or antsyness
           of the individual.   Of course, you cannot determine
           the pupil dilation, so I can’t use any other evidence
           to determine whether or not he was definitely under
           the influence of cocaine.

(Emphases added).

           Dr. Wong acknowledged that in his September 7, 2010

letter, he cited to two references, including a “McCance-Katz”

article – which studied the effects of cocaine and alcohol – but

did not read that article.      Dr. Wong stated that he relied

primarily on an article by Dr. Eisenschmidt, and that he cited

the McCance-Katz study because it was noted in the Dr.

Eisenschmidt article.

           Dr. Wong acknowledged that between his August 9, 2010

letter and his September 7, 2010 letter, he never received

information regarding the total amount of cocaine Powell ingested

and when it was ingested, which would be required to determine

more accurately whether Powell was under the influence of cocaine

at the time of the shooting.       Dr. Wong also stated that he would

need to know Powell’s tolerance.          When asked whether he received

the information he requested, Dr. Wong responded:           “Not all the

information, no, that I needed.       And I did say I could not make

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that statement that with reasonable -- with medical certainty.              I

said I could not make that determination that he was under the

influence of cocaine.”

           The circuit court also examined Dr. Wong:
                 Q. Dr. Wong, this last paragraph that [defense
           counsel] was just asking you about [in Dr. Wong’s
           supplemental report dated September 7, 2010], the
           highly intoxicated by alcohol and cocaine, does the
           highly intoxicated modify both? I mean, was he highly
           intoxicated by cocaine at the time?

                 A.   The highly intoxication would refer to the
           alcohol.

                 Q. Okay. And as the Court understands your
           first letter, you were not able to determine whether
           he was under the influence of the cocaine at the --

                 A. Well, I mention it was hard to make a
           definitive judgment on his impairment or the influence
           by cocaine unless there is more information given.

                 Q. And the additional information between
           August and September was your viewing of the video?

                 A.   Yes, and the finding about the cocaethylene
           as well.

                 Q. And the effect of that was just to indicate
           that the cocaine and alcohol had been taken at the
           same time?

                 A.   Yes.

                 Q. But did not give any additional information
           about amount, time of ingestion?

                 A. That, yes, we don’t know but the fact that
           they were both then coincident in the blood would give
           a very high probable of circumstance of intoxication
           by both, okay? [sic] I don’t have any behavioral clues
           other than perhaps what may be seen in the film of the
           man approaching the suspect with the -- the defendant
           with the -- I guess in their confrontation. It’s
           difficult to see at what point the gun is brandished.
           You can’t really pick that out in the film. So my
           point is that if a person points a gun at you it
           normally would give the person pause. I would not run
           up to him face-to-face if I see a gun in his hand.


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                  Q. The chart that was attached to your August
            letter with regard to the level of alcohol
            intoxication and the behavior, is there a similar
            chart for cocaine?

                  A. No, for any of the drugs. That’s the reason
            why the DRE program[16] was established because there
            is no definitive way you can give a level of drug with
            a level of impairment. Some drugs exert effects even
            as the levels are dropping, so they don’t always
            correlate increase level increase intoxication either
            drugs as it does in alcohol. [Sic]

            Following the questioning of Dr. Wong, defense counsel

argued that Dr. Wong should be allowed to testify about the

behavioral effects of cocaine:
            . . . I think really it’s a weight issue, if anything,
            based on whether [the jury] believe[s] that was a
            factor. It’s . . . impossible for any expert to be
            present unless it’s a controlled test to watch
            somebody ingest any drug, cocaine included, and that’s
            why we have toxicology reports and that’s why we have
            experts, forensic toxicologists, who testify regarding
            the accepted effects, behavioral effects, based on
            studies that are done. And when [the DPA] asked [Dr.
            Wong] whether or not there’s anything in his
            references or CV, it is there. He has testified
            before and been admitted as an expert for the effects.
            It’s the combined effects. And I think he certainly
            shouldn’t be precluded and the jury should not be
            misled as to the condition of [] Powell. I think his
            testimony is an aid to the trier of fact. I think
            there’s a sufficient basis based on his credentials,
            based on the toxicology report, based on his
            extrapolation, and if it does enhance the effects of
            alcohol they should know that. And I think it would
            be properly admitted. I think it would be error to
            exclude it. . . .

(Emphasis added).



            The circuit court allowed Dr. Wong’s testimony as to



      16
            Dr. Wong described the DRE program as a certification program that
trains officers to recognize impairment due to drugs rather than alcohol.

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the effects of alcohol, but excluded his testimony regarding

cocaine:
                 Viewing the evidence that has been presented
           with respect to this issue, the Court affirms its
           prior ruling on the motion in limine, is going to
           preclude the evidence and testimony with respect to
           the presence of cocaine.[17]
                 The Court, in reviewing Dr. Wong’s initial
           letter, the subsequent September letter, as well as
           the testimony presented today, the Court thinks that
           it does not have sufficient reliability to present the
           issue before the jury and is going to cause confusion.
           The Court does note that in the [August] letter he
           indicated that he was not able to render an opinion
           with respect to whether [] Powell was under the
           influence of cocaine at the time of the shooting
           without additional information. He received some
           additional information between August and September,
           not the specific information that he indicated that he
           would need to do that, and he further indicated today
           that he could not make the -- render an opinion to a
           reasonable degree of scientific certainty that []
           Powell was under the influence of cocaine at the time
           of his -- at the time of the shooting and therefore to
           allow him to opine about influence of both substances
           and the effect on the behavior of the deceased would
           be speculative. So Court precludes that use.
           . . . .
                 [Dr. Wong] could not give an opinion in August
           and then he did render that opinion in the September
           7th letter, but the Court is not allowing that opinion
           based on the testimony presented this morning. And he
           did indicate this morning that he cannot render that
           opinion to a reasonable degree of scientific
           certainty.
                 But just to clarify . . . , he will be able to
           testify as to the blood alcohol level at the time of
           the shooting and what that level blood alcohol may
           indicate in terms of an individual’s behavior. The
           Court does find he’s qualified in that area.

(Emphases added).

     4.    Defense’s Case-in-Chief

      17
            It is unclear from the record whether the circuit court actually
made a prior ruling on this issue. A transcript of the September 3, 2010
hearing indicates that the circuit court’s prior ruling was that an HRE Rule
104 hearing would be held prior to any admission of the cocaine evidence.
Minutes of the September 3, 2010 hearing state: “State and Deft’s motions in
limine: granted in part, reserved in part, and Rule 104 hearings to be held.”

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           Chang testified that he met DeLeon through a mutual

friend and saw DeLeon about four or five times at various bars

before the night of the incident.          DeLeon appeared to be at Bar

Seven alone and was drinking.       At some point, DeLeon wound up

talking with Powell.     Chang, who considered Powell a friend,

testified that Powell had his arm around DeLeon “like how you

would hold like a pal or a buddy[,]” but Chang could not hear

what Powell was saying to DeLeon.         Beaudoin then told Chang he

wanted to “false crack the Mexican guy[,]” and Chang told

Beaudoin, “The guy is not doing anything wrong.           Leave him alone.

They’re all right.”      Chang turned to talk to someone else, and

then heard a slap.     DeLeon started yelling at Beaudoin, “[W]hat

the hell are you doing?”      Chang “stopped the confrontation[,]”

picked up DeLeon’s glasses from the floor, returned them, and

told DeLeon, “You need to get the hell out of here before

something worse happens to you[,]” because “they have all their

friends[.]”   DeLeon then left the club.        About half an hour

later, Chang left the club and went to Seoul Karaoke, where he

saw Powell and Powell’s group.       Chang left Seoul Karaoke before

Powell was shot.

           Dr. Wong was qualified as an expert witness in the

field of forensic toxicology, and testified that he reviewed the

Sorabol security video, Powell’s autopsy report, and a toxicology


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report of Powell’s blood alcohol content.          Dr. Wong stated that

Powell was found to have a blood alcohol level of 0.171, which

indicates “a high degree of alcohol intoxication.”            Dr. Wong

further stated that he calculated by retrograde extrapolation

that Powell’s blood alcohol level was .181 at the time of the

shooting.    Dr. Wong then consulted the “Dubowski table”18 in

which ranges of blood alcohol concentrations are assigned various

stages of alcoholic influence and clinical signs and symptoms.

According to the Dubowski table, Powell’s blood alcohol level

bordered between the alcoholic influence categories of confusion

and excitement.     Dr. Wong also testified that the category of

euphoria, which included symptoms of being “supremely

overconfident[,]” was also applicable.          Dr. Wong explained that

the category of “excitement” includes symptoms of emotional

instability and impairment of the perception of distance,

objects, and danger.      Dr. Wong explained the category of

confusion as
            not being situationally aware of where you are in a
            given time. . . . [I]f you have mental confusions you
            may not be aware of these different options . . . that
            were available to you and you may take other options
            that are perhaps more dangerous. It also is a means
            of interpretation of what the situation is. If a
            person is in conversation or in actions that may be
            misinterpreted as something else.
            . . . .
            [I]f a person is angry at an individual, alcohol will


      18
            Dr. Wong testified that the table was constructed by Dr. Kurt
Dubowski, a “world expert on alcohol.”

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           supplement and will fuel that anger to a higher level,
           in some cases rage, uncontrollable rage.

           After the defense rested,19 DeLeon moved for judgment

of acquittal, which the circuit court denied.

     5.    Jury instruction on self-defense

           The circuit court provided the jury an instruction

modeled after HAWJIC 7.01 with regard to self-defense.              The

instruction provided the following:
                 Justifiable use of force, commonly known as
           self-defense, is a defense to the charge of Attempted
           Murder in the First Degree in Count I and Murder in
           the Second Degree in Count II and the included offense
           in Count II of Manslaughter. The burden is on the
           Prosecution to prove beyond a reasonable doubt that
           the force used by the defendant was not justifiable.
           If the Prosecution does not meet its burden, then you
           must find the defendant not guilty.
                 The use of force upon or toward another person
           is justified when a person reasonably believes that
           such force is immediately necessary to protect himself
           on the present occasion against the use of unlawful
           force by the other person. 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.
                 The use of deadly force upon or toward another
           person is justified when a person using such force
           reasonably believes that deadly force is immediately
           necessary to protect himself on the present occasion
           against death or serious bodily injury. 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


      19
            DeLeon chose not to testify. Additional witnesses testified for
the defense; however, their testimony is not relevant to the issues before
this court.



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           the defendant reasonably believed them to be.
                 The use of deadly force is not justifiable if
           the defendant, with the intent of causing death or
           serious bodily injury, provoked the use of force
           against himself in the same encounter or if the
           defendant knows that he can avoid the necessity of
           using such force with complete safety by retreating.
                 “Force” means any bodily impact, restraint, or
           confinement or the threat thereof.
                 “Unlawful force” means force which is used
           without the consent of the person against whom it is
           directed and the use of which would constitute an
           unjustifiable use of force or deadly force.
                 “Deadly force” means force which the actor uses
           with the intent of causing, or which he knows to
           create a substantial risk of causing, death or serious
           bodily injury.
                 Intentionally firing a firearm in the direction
           of another person or in the direction which the person
           is believed to be constitutes deadly force.
                 A threat to cause death or serious bodily injury
           by the production of a weapon or otherwise, so long as
           the actor’s intent is limited to creating an
           apprehension that he will use deadly force if
           necessary, does not constitute deadly force.
                 “Bodily injury” means physical pain, illness, or
           any impairment of physical condition.
                 “Serious bodily injury” means bodily injury
           which creates a substantial risk of death or which
           causes serious permanent disfigurement, or protracted
           loss or impairment of the function of any bodily
           member or organ.
                 If and only if you find that the defendant was
           reckless in having a belief that he was justified in
           using self-protective force against another person, or
           that the defendant was reckless in acquiring or
           failing to acquire any knowledge or belief which was
           material to the justifiability of his use of force
           against the other person, then the use of such
           self-protective force is unavailable as a defense to
           the offense of Manslaughter.

           The defense did not object to the court’s self-defense

instruction.

     6.    Closing arguments

           In its closing argument, the State described DeLeon as

a person with various VIP cards to bars and nightclubs and “who

thinks he’s somebody, he’s a baller, he’s a VIP.”           The DPA stated

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that that image was “crushed” on the night of the incident at Bar

Seven, when Beaudoin slapped him, and DeLeon was told to “get the

hell out of here[,]” leaving DeLeon to “do the walk of shame in

front of all these guys[.]”       The DPA stated that DeLeon,

humiliated, “waited to see which car they got into, he waited to

see where they would go, and he waited for his opportunity.”

           The DPA stated that DeLeon arrived at Seoul Karaoke two

minutes after Powell’s group walked into Seoul Karaoke – “one

hour, seven minutes, and 55 seconds after the slap.”            The DPA

stated that DeLeon waited “in the dark, and watch[ed] as [Powell]

and his friends walk from Seoul directly to the Navigator[.]”

DeLeon then “shout[ed] out to them, You wanna mess with me?             You

wanna hit me?    What’s up now?     He’s trying to, and he does, get

the attention of [Powell] and his friends.”          The DPA described

what occurred next as follows:
           So at 04:09:07 A.M. you see [Powell] turn and walk
           towards that shouting. They walk towards him, . . .
           listening to this shouting and screaming, wondering
           what’s going on, when they finally realize, when they
           get closer, Oh, it’s the guy from [Bar Seven]. So
           [Beaudoin] tells him, Nah, let’s just go. But
           [Powell] tells him, No, brah, everything’s cool. He
           has his hands up. Everything’s cool. It doesn’t stop
           the defendant. First three shots. . . .
                 Meanwhile, [Powell] is still there, hands up, I
           surrender; It’s okay; Everything’s cool. He doesn’t
           kick him; he doesn’t punch him; he doesn’t slap him;
           he doesn’t choke him; he doesn’t lunge at him; he
           doesn’t threaten him. But it doesn’t matter. Shot
           four, less than three feet away, Defendant points,
           aims, and shoots. [Powell] crumbles. And at this
           point, he doesn’t lower the gun to shoot to his leg;
           he doesn’t raise the gun to shoot to his shoulder or
           his foot. Straight to the heart.


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           The DPA also argued that self-defense did not apply to

DeLeon:
           You cannot create your own thing, walk up to it, and
           then claim self-defense. He calls them over. He
           says, Come over here; Look what I gotta show you.
           Shawn walks up with his hands. When he realizes who
           it is, Everything’s cool, brah. You know, nothing.
           I’m in surrender, palms face up. He doesn’t hit him;
           he doesn’t punch him; he doesn’t kick him; he doesn’t
           threaten him.

           In his closing argument, defense counsel stated that

DeLeon did not want to shoot anyone but ended up shooting Powell

in self-defense.    Defense counsel questioned the State’s theory

that DeLeon was seeking revenge, noting that DeLeon did not shoot

Beaudoin, who slapped him at Bar Seven, but shot Powell, “the guy

that was on him, that walked across and ignored the warning

shots, ignored his friend who tried to grab him, and he was on

him.”
           [T]here’s a gun at [DeLeon’s] side, and they start
           coming. They’re screaming and yelling. And then
           there’s finally, when he’s five feet away, a gunshot
           in the air. [Powell’s] friends are trying to pull him
           off. He’s less than a foot away. His hands, I
           suggest, are out and he shot once. Was there a
           reasonable belief that he was going to sustain serious
           bodily injury? Is there anyone that can possibly
           imagine some crazy guy, drunk, coming at you and you
           firing a warning shot? If he wants to shoot somebody,
           what's he firing warning shots about? Why does he
           then shoot in the ground to keep the other guys back?
           He wants to kill somebody? He thought about it? How
           could anyone right-thinking not believe that he has a
           reasonable belief he’s going to suffer serious bodily
           injury when the guy is now on him after he’s fired a
           warning shot? And you’ll see [DeLeon] steps out of
           the screen. He steps back. But [Powell is] on him.
           And he doesn’t listen to Beaudoin, who’s grabbing his
           shoulder.

           Defense counsel described Powell as “one mean guy when

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he got drunk,” and called Powell’s group a “mob looking for

trouble, going after a guy with a gun, who’s firing a warning

shot.”    Defense counsel stated that on the night of the shooting,

Powell and his friends were “drunk out of their minds” after

engaging in “eight hours of drinking alcohol.”             Defense counsel

noted that Powell’s extrapolated blood alcohol level was 0.181

and that “Dr. Wong said the presumption of intoxication is 0.82,

[sic] which is twice the amount, which fits into every category

almost of the Dubowski table.”         Defense counsel further discussed

Dr. Wong’s testimony regarding the effects of alcohol on Powell:
                   [W]e have increased self-confidence, decreased
             inhibitions, diminished judgment and control,
             emotional instability, critical judgment, Superman.
             Bullets don’t hurt you. Critical judgment, impairment
             of perception. . . . This guy . . . has lost his
             critical judgment and it increases his rage. To
             suggest to you folks he just walked across the parking
             lot -- and you’ll see it -- just to say, Braddah,
             everything is cool, my hands are up, you see, I
             surrender -- who are the other two people that were
             screaming and swearing in that parking lot? Braddah,
             it’s so cool. How come Beaudoin had to try to grab
             him by the shoulder and couldn’t do it?

G.     Verdict, Judgment, and Sentence

             On October 1, 2010, the jury found DeLeon guilty of

Murder in the Second Degree as to Powell (Count II), Carrying or

Use of a Firearm While Engaged in the Commission of a Separate

Felony (Counts IV and V), Place to Keep a Pistol or Revolver

(Count VI), Reckless Endangering in the First Degree (Count VII),

and Ownership or Possession Prohibited of Any Firearm or


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Ammunition by a Person Convicted of Specified Crimes (Count

VIII).    The jury found DeLeon not guilty of Attempted Murder in

the Second Degree as to Gamboa (Count III), but found him guilty

of the included offense of Reckless Endangering in the First

Degree.    The jury acquitted DeLeon of Attempted Murder in the

First Degree regarding Powell and Gamboa (Count I).

             At sentencing, the circuit court granted the State’s

oral motion to dismiss without prejudice Count VI, which merged

with Count VIII.      DeLeon was sentenced to concurrent prison terms

of life with the possibility of parole (Count II), five years

(Count III), twenty years (Count IV), twenty years (Count V),

five years (Count VII), and ten years (Count VIII).              DeLeon was

also sentenced to mandatory minimum terms of twenty years for

Count II and five years for Count III, and was ordered to pay

$4,000 in restitution to the Crime Victim Compensation

Commission.     DeLeon timely filed a notice of appeal.

B.     ICA Appeal

             In his opening brief, DeLeon raised four points of

error.    Specifically, DeLeon asserted that (1) defense counsel

provided ineffective assistance of counsel by failing to

establish Powell’s recent cocaine ingestion before the incident,

(2) the circuit court’s self-defense instruction failed to

properly instruct the jury on the law of self-defense, (3) the


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circuit court erroneously refused to instruct the jury on extreme

mental or emotional disturbance (EMED) manslaughter, and (4) the

circuit court wrongly convicted and sentenced him as to Count V

(Carrying or Use of Firearm in the Commission of a Separate

Felony) because the jury convicted him in Count III of reckless

endangerment, an excluded offense.20

            In its January 18, 2013 Summary Disposition Order, the

ICA agreed that DeLeon’s conviction as to Count V was improper

because his reckless endangerment conviction did not constitute a

“separate felony,” and accordingly reversed the Count V

conviction.    The ICA affirmed the circuit court’s judgment in all

other respects.     Relevant to the issues before this court, the

ICA rejected DeLeon’s ineffective assistance of counsel argument,

and concluded that the circuit court properly instructed the jury

on self-defense.     The ICA filed its judgment on appeal on

February 14, 2013.



      20
            HRS § 134-21 (Supp. 2009), which governs the offense of Carrying
or Use of a Firearm in the Commission of a Separate Felony, provides, in
relevant part:

            (a) It shall be unlawful for a person to knowingly
            carry on the person or have within the person’s
            immediate control or intentionally use or threaten to
            use a firearm while engaged in the commission of a
            separate felony, . . . provided that a person shall
            not be prosecuted under this subsection when the
            separate felony is:
            . . . .
            (2) The felony offense of reckless endangering in the
            first degree under [HRS §] 707-713[.]

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             DeLeon timely filed his application for a writ of

certiorari, in which he raises the following questions:
             1.    Whether the ICA gravely erred in rejecting
                   DeLeon’s claim that counsel was ineffective for
                   failing to establish [decedent Shawn] Powell’s
                   cocaine ingestion (in addition to his alcohol
                   intoxication) which substantially impaired
                   DeLeon’s defense of self-defense.

             2.    Whether the ICA gravely erred in rejecting
                   DeLeon’s claim that the self-defense instruction
                   based on HAWJIC 7.01, which omitted the language
                   of HRS § 703-304(3), failed to completely and
                   properly instruct the jury on the law of self-
                   defense.

             The State filed a response on April 22, 2013.21

                         III.   Standards of Review

A.     Ineffective Assistance of Counsel

                   When reviewing a claim of ineffective assistance of
             counsel, this court looks at whether defense counsel’s
             assistance was within the range of competence demanded of
             attorneys in criminal cases. The defendant has the burden
             of establishing ineffective assistance of counsel and must
             meet the following two-part test: 1) that there were
             specific errors or omissions reflecting counsel’s lack of
             skill, judgment, or diligence; and 2) that such errors or
             omissions resulted in either the withdrawal or substantial
             impairment of a potentially meritorious defense. To satisfy
             this second prong, the defendant needs to show a possible
             impairment, rather than a probable impairment, of a
             potentially meritorious defense. A defendant need not prove
             actual prejudice.

State v. Wakisaka, 102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27

(2003) (internal quotation marks, citations, and footnote

omitted).



      21
            On May 22, 2013, this court accepted DeLeon’s application and
ordered supplemental briefing regarding the degree of certainty required for
admission of scientific expert testimony in criminal cases. The parties filed
supplemental briefs on this issue on June 25, 2013.

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             The proper standard for claims of ineffective

assistance of counsel on appeal is whether, “viewed as a whole,

the assistance provided was within the range of competence

demanded of attorneys in criminal cases.”           Dan v. State, 76

Hawai#i 423, 427, 879 P.2d 528, 532 (1994) (internal quotation

marks, citation, and brackets omitted).
             General claims of ineffectiveness are insufficient and every
             action or omission is not subject to inquiry. Specific
             actions or omissions alleged to be error but which had an
             obvious tactical basis for benefitting the defendant’s case
             will not be subject to further scrutiny. If, however, the
             action or omission had no obvious basis for benefitting the
             defendant’s case and it “resulted in the withdrawal or
             substantial impairment of a potentially meritorious
             defense,” then it will be evaluated as information that an
             ordinarily competent criminal attorney should have had.

Id. (ellipses and brackets omitted) (emphasis in original)

(quoting Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976

(1993)).     “[M]atters presumably within the judgment of counsel,

like trial strategy, will rarely be second-guessed by judicial

hindsight.”     State v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d

1227, 1247-48 (1998) (internal quotation marks and citation

omitted) (emphasis in original).

B.     Jury instructions

             The standard of review for jury instructions that were

not objected to at trial was clarified in State v. Nichols, 111

Hawai#i 327, 141 P.3d 974 (2006), where the Hawai#i Supreme Court

held that



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           although as a general matter forfeited assignments of error
           are to be reviewed under [Hawai#i Rules of Penal Procedure
           (HRPP)] Rule 52(b) plain error standard of review, in the
           case of erroneous jury instructions, that standard of review
           is effectively merged with the HRPP Rule 52(a) harmless
           error standard of review because it is the duty of the trial
           court to properly instruct the jury. As a result, once
           instructional error is demonstrated, we will vacate, without
           regard to whether timely objection was made, if there is a
           reasonable possibility that the error contributed to the
           defendant’s conviction, i.e., that the erroneous jury
           instruction was not harmless beyond a reasonable doubt.

Id. at 337, 141 P.3d at 984 (footnote omitted).

           Thus, the appellant must first demonstrate

instructional error by rebutting the “presumption that

unobjected-to jury instructions are correct.”          Id. at 337 n.6,

141 P.3d at 984 n.6; accord State v. Eberly, 107 Hawai#i 239,

250, 112 P.3d 725, 736 (2005).       If the appellant is able to rebut

this presumption, the burden shifts to the State to prove that

the error was harmless beyond a reasonable doubt because
           [e]rroneous instructions are presumptively harmful and are a
           ground for reversal unless it affirmatively appears from the
           record as a whole that the error was not prejudicial.
           However, error is not to be viewed in isolation and
           considered purely in the abstract. It must be examined in
           the light of the entire proceedings and given the effect
           which the whole record shows it to be entitled.

Nichols, 111 Hawai#i at 334, 141 P.3d at 981 (brackets in

original omitted) (quoting State v. Gonsalves, 108 Hawai#i 289,

293, 119 P.3d 597, 601 (2005)).       If the State cannot demonstrate

that the error was harmless beyond a reasonable doubt, the

conviction must be vacated.       Nichols, 111 Hawai#i at 337, 141

P.3d at 984.


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C.     Plain Error

             Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b)

states that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the

attention of the court.”        Therefore, an appellate court “may

recognize plain error when the error committed affects

substantial rights of the defendant.”           State v. Staley, 91

Hawai#i 275, 282, 982 P.2d 904, 911 (1999) (citation omitted).

             The appellate court “will apply the plain error

standard of review to correct errors which seriously affect the

fairness, integrity, or public reputation of judicial

proceedings, to serve the ends of justice, and to prevent the

denial of fundamental rights.”         Nichols, 111 Hawai#i at 334, 141

P.3d at 981 (quoting State v. Sawyer, 88 Hawai#i 325, 330, 966

P.2d 637, 642 (1998)).        An appellate court’s “power to deal with

plain error is one to be exercised sparingly and with caution

because the plain error rule represents a departure from a

presupposition of the adversary system—that a party must look to

his or her counsel for protection and bear the cost of counsel's

mistakes.”     Nichols, 111 Hawai#i at 335, 141 P.3d at 982 (quoting

State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74–75 (1993)).

D.     Admission of Expert Testimony

             “Generally, the decision whether to admit expert

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testimony rests in the discretion of the trial court.              To the

extent that the trial court’s decision is dependant upon

interpretation of court rules, such interpretation is a question

of law, which [the appellate] court reviews de novo.”              Barcai v.

Betwee, 98 Hawai#i 470, 479, 50 P.3d 946, 955 (2002) (citations

omitted).

                               IV.   Discussion

A.     The circuit court’s ruling to exclude Dr. Wong’s testimony
       regarding cocaine use by Powell

             DeLeon argues on appeal that trial counsel provided

ineffective assistance of counsel by committing errors that

resulted in the circuit court’s exclusion of testimony regarding

Powell’s cocaine level at the time of the shooting.              As set forth

below, DeLeon has failed to establish that his trial counsel was

ineffective with regard to this issue.           However, upon examination

of the merits of the circuit court’s ruling, we find that the

circuit court plainly erred in excluding such testimony.               As

stated supra, Dr. Wong 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 excluded the testimony because Dr. Wong could not

testify to a “reasonable degree of scientific certainty.”

(Emphasis added).


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           Although trial courts may exclude expert testimony that

is speculative in nature, expert opinions need not be based on a

“reasonable degree of scientific certainty” in order to be

admissible.     Accordingly, we hold that the circuit court plainly

erred in excluding the expert testimony at issue.

           1.     DeLeon’s ineffective assistance of counsel claim
                  fails

           DeLeon argues that the ICA erred in rejecting his claim

that his trial counsel was ineffective for “failing to establish

Powell’s cocaine ingestion[.]”       Specifically, DeLeon argues that

his trial counsel was ineffective by committing two specific

errors: (1) failing to move the court to rule on the admission of

the cocaine evidence at least in advance of Dr. Goodhue’s

testimony, and (2) failing to, during the HRE Rule 104 hearing,

direct Dr. Wong to present his retrograde cocaine extrapolations

and explain his opinion that Powell was affected by the cocaine.

As set forth below, DeLeon’s claim lacks merit.

           To succeed on his claim of ineffective assistance of

counsel, DeLeon must show that “there were specific errors or

omissions reflecting counsel’s lack of skill, judgment, or

diligence” and that “such errors or omissions resulted in either

the withdrawal or substantial impairment of a potentially

meritorious defense.”     Wakisaka, 102 Hawai#i at 514, 78 P.3d at



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327.   With respect to his first contention, DeLeon has not

demonstrated that trial counsel’s failure to seek a ruling on the

admission of the cocaine evidence prior to Dr. Goodhue’s

testimony constitutes ineffective assistance.          DeLeon’s argument

appears to depend on the assumption that holding an HRE Rule 104

hearing in advance of Dr. Goodhue’s testimony would have resulted

in the admission of the cocaine evidence.         However, DeLeon does

not point to any part of the record that supports such a result.

As stated above, the circuit court ruled before trial that it

would not allow any evidence about Powell’s cocaine level until

an HRE Rule 104 hearing, noting its concern that Dr. Wong stated

he did not have enough information to opine that Powell was under

the influence at the time of the shooting.          After the HRE Rule

104 hearing, the circuit court excluded the cocaine evidence,

stating that Dr. Wong could not state with a reasonable degree of

scientific certainty that Powell was under the influence of

cocaine.   Dr. Wong stated at the hearing that to make such a

determination, he needed more information, such as Powell’s

tolerance level, the amount of cocaine Powell ingested, and when

he ingested it.    DeLeon has not alleged that Dr. Goodhue could

have provided such additional information.          Cf. Richie, 88

Hawai#i at 39, 960 P.2d at 1247 (“Ineffective assistance of

counsel claims based on the failure to obtain witnesses must be


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supported by affidavits or sworn statements describing the

testimony of the proffered witnesses.”).          Indeed, DeLeon has

neither offered any clear reasons nor pointed to any parts of the

record that indicate that the timing of the HRE Rule 104 hearing

was at all consequential.       For these same reasons, to the extent

that DeLeon argues that holding the HRE Rule 104 hearing after

Dr. Goodhue testified prevented Dr. Goodhue from being cross-

examined about the cocaine findings in his autopsy report, this

argument fails.22

            DeLeon’s argument regarding trial counsel’s “failure

. . . to direct Dr. Wong to present his retrograde cocaine

extrapolations and explain his opinion that Powell was impacted”

by cocaine during the HRE Rule 104 hearing also lacks merit.                The

record shows that defense counsel brought Dr. Wong’s retrograde

cocaine extrapolations to the attention of the circuit court.

Defense counsel had presented Dr. Wong’s cocaine extrapolations

to the circuit court on September 3, 2010 through Dr. Wong’s

August 7, 2010 letter.      Defense counsel also referenced the

extrapolation in his arguments during the September 22, 2010 HRE

Rule 104 hearing; indeed, defense counsel argued, inter alia,

      22
            Moreover, Dr. Goodhue was included in DeLeon’s witness list, and
if the circuit court had ruled that the cocaine evidence was admissible
following the September 22, 2010 HRE Rule 104 hearing, DeLeon arguably could
have called Dr. Goodhue to testify about any cocaine findings. In other
words, the timing of the HRE Rule 104 hearing alone did not preclude the
defense from questioning Dr. Goodhue about any cocaine evidence.

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that “there’s a sufficient basis based on [Dr. Wong’s]

credentials, based on the toxicology report, based on his

extrapolation[.]”    Finally, in explaining its ruling, the circuit

court noted that it reviewed, inter alia, Dr. Wong’s “initial

letter[.]”   The initial letter included Dr. Wong’s retrograde

extrapolation figures.

           Accordingly, the ICA did not err in rejecting DeLeon’s

ineffective assistance of counsel claim.

           2.    The circuit court plainly erred in excluding Dr.
                 Wong’s testimony regarding Powell’s cocaine use

           HRE Rule 702, which governs the admissibility of expert

testimony, provides:
           If scientific, technical, or other specialized
           knowledge will assist the trier of fact to understand
           the evidence or to determine a fact in issue, a
           witness qualified as an expert by knowledge, skill,
           experience, training, or education may testify thereto
           in the form of an opinion or otherwise. In
           determining the issue of assistance to the trier of
           fact, the court may consider the trustworthiness and
           validity of the scientific technique or mode of
           analysis employed by the proffered expert.

           HRE Rule 702 does not require a specific degree of

certainty for the admission of scientific or other expert

testimony.   This court has stated that “the touchstones of

admissibility for expert testimony under HRE Rule 702 are

relevance and reliability.”       State v. Vliet, 95 Hawai#i 94, 106,

19 P.3d 42, 54 (2001).      The relevance prong “primarily stems from

the precondition . . . that the evidence or testimony assist the


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trier of fact to understand the evidence or to determine a fact

in issue.”   Id. (citation and quotation marks omitted).           The

reliability prong “refers to evidentiary reliability-that is

trustworthiness.”    Id. (citation and quotation marks omitted).

Under the reliability factor, admission of expert evidence “is

premised on an assumption that the expert’s opinion will have a

reliable basis in the knowledge and experience of his [or her]

discipline.”   Id. (citation omitted) (brackets in original).

“Generally, the decision whether to admit expert testimony rests

in the discretion of the trial court.”         State v. Metcalfe, 129

Hawai#i 206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).

“An abuse of discretion occurs when the decisionmaker ‘exceeds

the bounds of reason or disregards rules or principles of law or

practice to the substantial detriment of a party.’”            Vliet, 95

Hawai#i at 108, 19 P.3d at 56 (quoting In re Water Use Permit

Applications, 94 Hawai#i 97, 183, 9 P.3d 409, 495 (2000)).

           This court has stated, in civil cases, that medical

opinions must be based on reasonable medical probability.             In

Miyamoto v. Lum, 104 Hawai#i 1, 15-16, 84 P.3d 509, 523-24

(2004), which involved, inter alia, a negligence action against a

chiropractor, this court stated that a “plaintiff may solicit

opinions from medical experts, but such medical opinions ‘must be

grounded upon reasonable medical probability as opposed to a mere


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possibility because possibilities are endless in the field of

medicine.’”   The Miyamoto court further stated that
           [T]he plaintiff’s medical expert may be cross-examined
           as to “(1) the witness’ qualifications, (2) the
           subject to which the witness’ expert testimony
           relates, and (3) the matter upon which the witness’
           opinion is based and the reasons for the witness’
           opinion,” as well as “the underlying facts or data [of
           the medical opinion].” After all, “[e]xpert testimony
           is not conclusive and like any testimony, the jury may
           accept or reject it.”

Id. at 16, 84 P.3d at 524 (internal citations omitted); see also

Craft v. Peebles, 78 Hawai#i 287, 305, 893 P.2d 138, 156 (1995)

(holding, in a negligence case, that it was proper to instruct

the jury to disregard any medical opinion “that was not based

upon reasonable medical probabilities” (emphasis added)).

           Because the HRE are patterned on the Federal Rules of

Evidence, this court has looked to federal cases for guidance.

Vliet, 95 Hawai#i at 105, 105 n.20, 19 P.3d at 53, 53 n.20

(stating that “because the HRE are patterned on the [FRE],

construction of the federal counterparts of the HRE by the

federal courts is instructive” and that “federal case law on FRE

Rule 702 may be instructive regarding our construction of HRE

Rule 702”).   At least some federal courts have expressly rejected

the proposition that a “reasonable degree of scientific

certainty” is required for the admission of expert testimony.

           In United States v. Mornan, 413 F.3d 372, 376, 381 (3d

Cir. 2005), the Third Circuit Court of Appeals considered the

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defendant’s challenge to the admissibility of a handwriting

expert’s testimony where, when asked whether her opinions were

rendered to a “reasonable degree of scientific certainty,” the

expert answered, “I think they are.”        The Third Circuit noted

that the expert had “explained her qualifications, her

methodology, the bases for her conclusions, and the degrees of

certainty with which she was able to reach her conclusions,” and

that
           there is nothing magical about the phrase, “to a
           reasonable degree of scientific certainty.” It is not
           derived from the language of Rule 702 itself, and this
           Court has been unable to find any authority to support
           the position that questions regarding the expert’s
           “degree of scientific certainty” categorically renders
           expert testimony inadmissible.

Id. at 381 (internal citation omitted).

           The court noted that “[h]andwriting experts often given

their opinions in terms of probabilities rather than

certainties.”    Id.   The court therefore found that the trial

court did not err in allowing the expert’s testimony and “to

allow the jury to determine what weight to give her ‘less-than-

certain’ conclusions.”      Id.

           Similarly, the Seventh Circuit Court of Appeals

rejected the argument that the trial court erroneously admitted

expert testimony that hair recovered from items used in a robbery

were “microscopically like” hair samples taken from the

defendants, which meant that the hairs found from the robbery

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“could have come” from the defendants.          United States v. Cyphers,

553 F.2d 1064, 1071-73 (7th Cir. 1977).          The defendants argued

that such testimony was inadmissible because, inter alia, it was

not based on a reasonable scientific certainty.           Id. at 1072-73.

The Seventh Circuit rejected the defendants’ argument, stating

that “[t]here is no such requirement” that an expert’s opinion

testimony be expressed in terms of reasonable scientific

certainty in order to be admissible, and that “[w]e adhere to the

rule that an expert’s lack of absolute certainty goes to the

weight of his testimony, not to its admissibility.”            Id.

            At least some state courts appear to use the terms

“certainty” and “probability” interchangeably23 and favor

admissibility of expert testimony under either standard while

      23
            See, e.g., State v. Benner, 533 N.E.2d 701, 714 (Ohio 1988) (“In
this jurisdiction, an expert opinion is competent only if it is held to a
reasonable degree of scientific certainty. In this context, ‘reasonable
certainty’ means ‘probability.’” (citation omitted)); State v. Vernes, 130
P.3d 169, 173 (Mont. 2006) (“Expert testimony of the type proposed here may
not be admitted . . . unless it satisfies the ‘reasonable medical certainty’
test. This Court has defined the reasonable medical certainty test in terms
of probabilities as ‘more likely than not.’”); State v. Shepherd, 41 P.3d
1235, 1238 (Wash. App. 2002) (“Expert testimony should express ‘a reasonable
probability rather than mere conjecture or speculation.’ . . . [I]n the
criminal case, expert testimony on a person’s mental status is not admissible
unless the expert’s opinion is based on reasonable medical certainty, which is
the equivalent of more likely than not.” (citations and some internal
quotation marks omitted)).
            Using “certainty” and “probability” interchangeably appears
consistent with Black’s Dictionary, which defines “reasonable medical
probability” as follows: “In proving the cause of an injury, a standard
requiring a showing that the injury was more likely than not caused by a
particular stimulus, based on the general consensus of recognized medical
thought. -– Also termed reasonable medical certainty.” Black’s Law
Dictionary 1380 (9th ed. 2009) (emphasis added). However, in the instant
case, it is clear that the circuit court did not use the terms “probability”
and “certainty” interchangeably.

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disfavoring the admission of evidence based on speculation or

possibility.    See State v. Freeman, 538 A.2d 371, 384 (N.J.

Super. Ct. App. Div. 1988) (“Medical expert testimony must be

couched in terms of reasonable medical certainty or probability;

opinions as to possibility are inadmissible.” (citation and

quotation marks omitted)); Floray v. State, 720 A.2d 1132, 1136

(Del. 1998) (“Generally when an expert offers a medical opinion

it should be stated in terms of ‘a reasonable medical

probability’ or ‘a reasonable medical certainty.’”).

           At least some other states have expressly rejected the

notion that expert testimony must be grounded in reasonable

scientific certainty to be admitted.        For example, the Supreme

Court of Rhode Island has held that “scientific certainty” is not

required to admit expert testimony.        State v. Gardner, 616 A.2d

1124, 1129 (R.I. 1992).      In Gardner, the trial court precluded an

expert from testifying whether the defendant suffered from a

mental defect at the time of the offenses, expressing “concern

over the difficulty and potential unreliability of a retroactive

diagnosis.”    616 A.2d at 1126, 1129.      The Supreme Court of Rhode

Island held that the trial court erred, stating that although

such a retroactive diagnosis “is an elusive undertaking” and that

“[i]n a meta-physical sense it may be impossible to know the

mental state of the defendant at the time of the criminal


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conduct[,] [a]bsolute scientific certainty . . . is not the

standard for the admissibility of expert testimony.”            Id. at

1129.   The court stated that the trial court should have

addressed such concerns by allowing the prosecutor to question

this testimony on cross-examination.        Id.; see also State v.

Bertram, 591 A.2d 14, 24-25 (R.I. 1991) (holding that the trial

court did not err in admitting a document examiner’s testimony

about a signature when the examiner was not able to identify the

signature to a reasonable degree of scientific certainty, stating

that defense counsel had “ample opportunity” to cross-examine the

witness “on his conclusions and emphasize any infirmities

pertaining to his analysis” and that “[t]he jury could then

decide what weight, if any, should be accorded to the

testimony”).

           In Robinson v. United States, 50 A.3d 508, 514 (D.C.

2012), the criminal defendants contended that they were

prejudiced by the trial court’s exclusion of expert testimony

regarding the effects that the complaining witness’s

phencyclidine (PCP) use may have had on the accuracy of her

perceptions.   The trial court excluded expert testimony on

untimeliness grounds and because the expert was not able to “give

an opinion within a reasonable degree of scientific certainty

that 15 to 20 hours [after using PCP, the complaining witness’s]


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ability to see, perceive, recall, understand were significantly

affected by her use of PCP[.]”       Id. at 518 (emphasis added) (some

brackets in original).

           On appeal, the Court of Appeals stated that “[a] trial

court may exclude outright speculation, but short of speculation,

a particular expert witness’s degree of certainty in proffering

an opinion goes to the weight of the testimony, not its

admissibility, and ‘the weight to be given an expert opinion is

for the jury to decide.’”      Id. at 523 (citation omitted).         The

Court of Appeals viewed the trial court’s ruling as a “question

of the basic relevance of the proffered testimony and whether it

would assist the jury in understanding the facts in issue.”             Id.

at 524.   The Court of Appeals stated that the proffered expert

testimony “could have lent credence to [the defendants’]

contention that PCP could substantially hinder a witness’s

ability to perceive and remember events many hours later.”             Id.

at 527.   The Court of Appeals held, therefore, that excluding the

testimony because the expert could not specifically say how PCP

affected the complaining witness “misapprehended the purpose for

which the evidence was offered and ran afoul of our case law

indicating that expert testimony ‘should generally be admitted if




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it will assist the jury to understand the facts in issue.’”24

Id. at 527-28.

            In light of the foregoing authorities, we conclude that

trial courts should not require a “reasonable degree of

scientific certainty” before admitting expert opinions but may

exclude expert testimony based on speculation or possibility.

Cf. Miyamoto, 104 Hawai#i at 15-16, 84 P.3d at 523-24.

            The State appears to concede that a reasonable degree

of scientific certainty is not required for the admission of

scientific expert testimony.        However, the State argues that the

circuit court did not plainly err in excluding Dr. Wong’s cocaine

testimony because the circuit court had sufficient basis for

finding that his testimony “lack[ed] sufficient reliability and

was going to cause confusion without considering Dr. Wong’s

ability to testify to a reasonable degree of scientific

certainty[.]”     In other words, the State argues that although the

circuit court “commented that Dr. Wong could not opine that

Powell was under the influence of cocaine to a reasonable degree

of scientific certainty, that finding was superfluous to its

primary findings of lacking sufficient reliability and will cause



      24
            The Court of Appeals, however, held that the error in excluding
expert testimony was harmless because given the evidence in the case, the
exclusion of the expert testimony did not substantially influence the outcome
of the trial. Id. at 528.

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confusion.”

           The State points to the following to support the

circuit court’s conclusion that Dr. Wong’s opinion about the

influence of both alcohol and cocaine would be speculative.

First, the circuit court stated that Dr. Wong’s initial letter

stated that he was not able to opine whether Powell was under the

influence of cocaine without additional information, and that

although he had since received some additional information, he

did not receive the specific information that he would need to

make that determination.      Second, Dr. Wong noted that he viewed

the video of the shooting and stated, “I would not run up to him

face-to-face if I see a gun in his hand.”         The State argued that

“[w]hat Dr. Wong would do personally in that situation was not

specialized knowledge requiring the testimony of an expert.”

Third, the State argues that Dr. Wong relied on a “McCance-Katz”

article in opining in his September 7, 2010 letter that Powell

was under the influence of cocaine, but admitted that he did not

read this article.     Finally, the State notes that Dr. Wong

testified that there was no chart “correlating the range of

cocaine with behavior[,]” and that “[w]ithout such a correlation,

there was no foundation establishing a valid scientific technique

by which Dr. Wong arrived at his conclusion” that Powell was

under the influence of cocaine.


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           The State’s argument lacks merit.         First, the circuit

court’s ruling appears to rest largely on Dr. Wong being unable

to opine whether Powell was under the influence of cocaine to a

reasonable degree of scientific certainty.          As stated above, the

circuit court stated the following in ruling on the admissibility

of Dr. Wong’s cocaine testimony:
                 The Court, in reviewing Dr. Wong’s initial
           letter, the subsequent September letter, as well as
           the testimony presented today, the Court thinks that
           it does not have sufficient reliability to present the
           issue before the jury and is going to cause confusion.
           The Court does note that in the [August] letter he
           indicated that he was not able to render an opinion
           with respect to whether [] Powell was under the
           influence of cocaine at the time of the shooting
           without additional information. He received some
           additional information between August and September,
           not the specific information that he indicated that he
           would need to do that, and he further indicated today
           that he could not make the -- render an opinion to a
           reasonable degree of scientific certainty that []
           Powell was under the influence of cocaine at the time
           of his -- at the time of the shooting and therefore to
           allow him to opine about influence of both substances
           and the effect on the behavior of the deceased would
           be speculative. So Court precludes that use.
           . . . .
                 [Dr. Wong] could not give an opinion in August
           and then he did render that opinion in the September
           7th letter, but the Court is not allowing that opinion
           based on the testimony presented this morning. And he
           did indicate this morning that he cannot render that
           opinion to a reasonable degree of scientific
           certainty.

(Emphases added).

           Second, the deficiencies argued by the State would not

preclude the admission of Dr. Wong’s testimony.           At the HRE Rule

104 hearing, Dr. Wong stated to a “reasonable medical scientific

probability” that the ingestion of cocaine in the proximity to


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Powell’s death had an impact on his behavior.           While Dr. Wong did

not receive certain information such as the amount of cocaine

ingested and the time of ingestion, such information was only

required to render a more definitive opinion, i.e., to a

reasonable degree of medical certainty.          For example, Dr. Wong

acknowledged that he never received information regarding the

amount of cocaine ingested and the time of ingestion, which would

be required to determine “more accurately” whether Powell was

under the influence of cocaine.        Dr. Wong also stated that he

would need to know Powell’s tolerance and time of ingestion “[t]o

render with absolute certainty, medical certainty” whether he was

under the influence of both alcohol and cocaine.            With regard to

the McCance-Katz article, it appears that although Dr. Wong cited

to that article in the September 7, 2010 letter, he also cited

and relied “primarily” on an “Eisenschmidt article,” which quoted

the McCance-Katz article.

            In sum, the circuit court erred in precluding Dr.

Wong’s cocaine testimony.       Although DeLeon did not argue on

appeal that the circuit court erred in excluding Dr. Wong’s

cocaine testimony,25 this court “may notice a plain error not

presented.”    See Hawai#i Rules of Appellate Procedure (HRAP) Rule


      25
            As discussed supra, DeLeon vigorously sought to admit Dr. Wong’s
cocaine testimony at trial, and argued before the circuit court that there was
a sufficient basis for the admission of this evidence.

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28(b)(4)(D).    Specifically, “an appellate court ‘may recognize

plain error when the error committed affects substantial rights

of the defendant.’”     Metcalfe, 129 Hawai#i at 222, 297 P.3d at

1078 (quoting Staley, 91 Hawai#i at 282, 982 P.2d at 911).              The

appellate court “will apply the plain error standard of review to

correct errors which seriously affect the fairness, integrity, or

public reputation of judicial proceedings, to serve the ends of

justice, and to prevent the denial of fundamental rights.”

Nichols, 111 Hawai#i at 334, 141 P.3d at 981 (quoting Sawyer, 88

Hawai#i at 330, 966 P.2d at 642).

            This court has stated that “[t]he due process guarantee

of the . . . Hawaii constitution [ ] serves to protect the right

of an accused in a criminal case to a fundamentally fair trial.”

State v. Kaulia, 128 Hawai#i 479, 487, 291 P.3d 377, 385 (2013)

(quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672

(1990)).    “Central to the protections of due process is the right

to be accorded a meaningful opportunity to present a complete

defense.”    Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at

672).

            To the extent that DeLeon was precluded from

introducing Dr. Wong’s testimony with regard to the probable

effects of cocaine on Powell at the time of the shooting, DeLeon

was not able to present a complete defense.          DeLeon’s self-


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defense argument relied largely on Powell’s actions immediately

before the shooting.     Although Dr. Wong was able to present

testimony at trial as to Powell’s “high degree of alcohol

intoxication,” the jury was precluded from receiving information

regarding Powell’s cocaine use and the combined effects of

cocaine and alcohol.     Indeed, during the HRE Rule 104 hearing,

Dr. Wong testified that the combined effects of cocaine and

alcohol “generally are additive, especially in the effects of

[sic] judgment.”    Dr. Wong also stated during the Rule 104

hearing that “the amount of cocaine or the presence of cocaine

could render that level of intoxication perhaps a stage higher.”

The jury was precluded from hearing and considering such

evidence.    Because DeLeon’s defense depended heavily on Powell’s

behavior immediately before DeLeon shot him, there is a

reasonable possibility that the exclusion of this testimony

affected the outcome of the trial.        In sum, the exclusion of Dr.

Wong’s cocaine testimony compromised DeLeon’s ability to present

a complete defense.

            Accordingly, the circuit court plainly erred in

precluding Dr. Wong’s cocaine testimony.         Therefore, 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).


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B.     The jury instruction on self-defense was not erroneous

             DeLeon argues that the ICA gravely erred in concluding

that the circuit court’s self-defense instruction was not

prejudicially insufficient, erroneous, inconsistent, or

misleading.     Specifically, DeLeon argues that the instruction was

erroneous because it did not include the language of HRS § 703-

304(3)26 advising that “a person


       26
             HRS § 703-304 (1993 & Supp. 2009) provides, in relevant part:

             (1) Subject to the provisions of this section and of
             section 703-308, the use of force upon or toward
             another person is justifiable when the actor believes
             that such force is immediately necessary for the
             purpose of protecting himself against the use of
             unlawful force by the other person on the present
             occasion.

             (2) The use of deadly force is justifiable under this
             section if the actor believes that deadly force is
             necessary to protect himself against death, serious
             bodily injury, kidnapping, rape, or forcible sodomy.

             (3) Except as otherwise provided in subsections (4)
             and (5) of this section, a person employing
             protective force may estimate the necessity thereof
             under the circumstances as he believes them to be
             when the force is used without retreating,
             surrendering possession, doing any other act which he
             has no legal duty to do, or abstaining from any
             lawful action.

             (4) The use of force is not justifiable under this
             section:

             (a) To resist an arrest which the actor knows is
             being made by a law enforcement officer, although the
             arrest is unlawful; or

             (b) To resist force used by the occupier or possessor
             of property or by another person on his behalf, where
             the actor knows that the person using the force is
             doing so under a claim of right to protect the
             property . . .
                                                                 (continued...)

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employing protective force may estimate the necessity thereof

under the circumstances as he believes them to be when the force

is used without retreating, surrendering possession, doing any

other act which he has no legal duty to do, or abstaining from

any lawful action[.]”      Because DeLeon did not object to the jury



      26
       (...continued)
            . . . .

            (5) The use of deadly force is not justifiable under
            this section if:

            (a) The actor, with the intent of causing death or
            serious bodily injury, provoked the use of force
            against himself in the same encounter; or

            (b) The actor knows that he can avoid the necessity
            of using such force with complete safety by
            retreating or by surrendering possession of a thing
            to a person asserting a claim of right thereto or by
            complying with a demand that he abstain from any
            action which he has no duty to take, except that:

            (i) The actor is not obliged to retreat from his
            dwelling or place of work, unless he was the initial
            aggressor or is assailed in his place of work by
            another person whose place of work the actor knows it
            to be; and

            (ii) A public officer justified in using force in the
            performance of his duties, or a person justified in
            using force in his assistance or a person justified
            in using force in making an arrest or preventing an
            escape, is not obliged to desist from efforts to
            perform his duty, effect the arrest, or prevent the
            escape because of resistance or threatened resistance
            by or on behalf of the person against whom the action
            is directed.

            (6) The justification afforded by this section
            extends to the use of confinement as protective force
            only if the actor takes all reasonable measures to
            terminate the confinement as soon as he knows that he
            safely can, unless the person confined has been
            arrested on a charge of crime.

(Emphases added).

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instruction at trial, he must first demonstrate instructional

error by rebutting the “presumption that unobjected-to jury

instructions are correct.”      Nichols, 111 Hawai#i at 337 n.6, 141

P.3d at 984 n.6.    As set forth below, DeLeon fails to do so.

           DeLeon’s claim lacks merit because the circuit court’s

jury instruction on self-defense was not erroneous.            First, the

jury instruction that the circuit court provided was based on

then-current HAWJIC 7.01,27 which this court has upheld as “fully

consonant with the controlling statutory and case law of this

state.”   State v. Augustin, 101 Hawai#i 127, 127, 63 P.3d 1097,

1097 (2002).

           Moreover, the Augustin court noted that the relevant

jury instruction language in that case – which is virtually

identical to the instant case – incorporated a key portion of HRS

§ 703-304(3).    Id. at 127-28, 63 P.3d at 1097-98.           Specifically,

the Augustin court noted that the jury instruction stated in part

as follows:
           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.

Id. at 128, 63 P.3d at 1098 (emphasis in original).

           The Augustin court stated that the foregoing language


     27
           This court amended HAWJIC 7.01 on April 4, 2011.

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derived from the statutory defenses of, inter alia, “use of force

in self-protection,” as codified in HRS § 703-304, including the

language in subsection (3):       “[A] person employing protective

force may estimate the necessity thereof under the circumstances

as he believes them to be[.]”        Id. at 128, 63 P.3d at 1098

(emphasis omitted).      Put another way, the instruction conveys the

legal basis for using protective force, despite not referencing

HRS § 703-304(3) verbatim.28       See Metcalfe, 129 Hawai#i at 230,

297 P.3d at 1086 (“The trial court is not required to instruct

the jury in the exact words of the applicable statute but to

present the jury with an understandable instruction that aids the

jury in applying that law to the facts of the case.”) (citing

Sawyer, 88 Hawai#i at 330, 966 P.2d at 642).          Accordingly, to the

extent that DeLeon argues that the self-defense instruction was

incomplete because it omitted the language in HRS § 703-304(3)

that “a person employing protective force may estimate the

necessity thereof under the circumstances as he believes them to

be[,]” DeLeon’s contention lacks merit.

            Second, insofar as DeLeon argues that the self-defense

instruction should have included the remaining language in HRS

      28
            In the ICA, the State argued that HRS § 703-304(3) is inapplicable
in cases involving deadly force because it refers to “protective force” and
imposes no duty to retreat. However, HRS § 703-304(5) states that the use of
deadly force is not justifiable if “[t]he actor knows that he can avoid the
necessity of using such force with complete safety by retreating.” Where such
retreat is not possible, HRS § 703-304(3) applies.

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§ 703-304(3) regarding retreating and other acts, his argument

also fails.    According to the commentary on subsection (3) and

the explanatory note on the Model Penal Code provision upon which

HRS § 703-304(3) is based, the subsection states the rule that an

actor need not retreat or take other evasive action before

estimating the necessity for the self-protective force.            See

Model Penal Code § 3.04 cmt. (2001); HRS § 703-304 cmt. (1993).

Here, the given instruction guided the jury in determining

whether the use of protective force was immediately necessary.

After all, it would be apparent to the jury that an actor who may

be justified in using immediate self-protective force would also

be justified in not retreating, surrendering possession, or doing

any other act which the actor has no legal duty to do.            Moreover,

the given instruction informed the jury that deadly force is not

justifiable if the defendant “provoked the use of force against

himself in the same encounter” or “knows that he can avoid the

necessity of using such force with complete safety by

retreating.”   Based on this instruction, it would be apparent to

the jury that a defendant does not have to retreat if he or she

knows that retreat cannot be done with complete safety.

Accordingly, the instruction is sufficient given that it

communicates these points despite not including the exact

language of subsection (3).


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            Third, to the extent that DeLeon relies on this court’s

April 4, 2011 amendments to HAWJIC 7.01, such reliance is

misplaced.    In his application, DeLeon argues that “the self-

defense instructions given were NOT correct for the very reason

that they were amended:       to apprise the jury that a defendant was

permitted to estimate the necessity for the use of force

. . . under the circumstances as he reasonably believed them to

be without retreating or doing any act which he has no legal duty

to do.”    Insofar as DeLeon is arguing that the court’s jury

instructions are erroneous because they were revised,29 this


      29
            The amended HAWJIC 7.01A instruction with regard to “‘Deadly
Force’ Used” provides, in relevant part:

                  The use of deadly force upon or toward another
            person is justified if the defendant reasonably
            believes that deadly force is immediately necessary to
            protect himself/herself on the present occasion
            against [death] [serious bodily injury] . . . . The
            reasonableness of the defendant’s belief that the use
            of protective deadly 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 when the
            deadly force was used.
                  [The use of deadly force is not justifiable if
            the defendant, with the intent of causing death or
            serious bodily injury, provoked the use of force
            against himself/herself in the same encounter].
                  [The use of deadly force is not justifiable if
            the defendant knows that he/she can avoid the
            necessity of using such force with complete safety by
            retreating, but the defendant is not required to
            retreat from his/her own dwelling unless he/she was
            the initial aggressor. . . .]

            The “‘Deadly Force’ Not Used” section of the amended
HAWJIC 7.01 provides, in relevant part:

                                                                   (continued...)

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argument lacks merit given that the language of the jury

instruction has been upheld as “fully consonant with the

controlling statutory and case law of this state.”30           Augustin,

101 Hawai#i at 127, 63 P.3d at 1097.        In any event, as stated,

the given jury instructions sufficiently communicated the

applicable law.


      29
       (...continued)
                  The use of force upon or toward another person
            is justified if the defendant reasonably believes that
            force is immediately necessary to protect
            himself/herself on the present occasion against the
            use of unlawful force by the other person. The
            reasonableness of the defendant’s belief that the use
            of 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. The defendant may
            estimate the necessity for the use of force under the
            circumstances as he/she reasonably believes them to be
            when the force is used, without [retreating]
            [surrendering possession] [doing any other act that
            he/she has no legal duty to do] [abstaining from any
            lawful action].

(Emphasis added).
       30
            While DeLeon has argued that “[p]romulgation of the newly-drafted
HAWJIC self-defense instructions, together with the repeal of HAWJIC 7.01,
support [his] position” that the circuit court’s instructions were erroneous,
DeLeon also asserted that the amended deadly force HAWJIC instruction is
erroneous because it still omits the HRS § 703-304(3) language. However, the
amendment does not appear to reflect a change in the substantive law regarding
self-defense, but instead appears to provide the jury with more specific
instructions, depending on whether “force” or “deadly force” is at issue.
Metcalfe, 129 Hawai#i at 231 n.19, 297 P.3d at 1087 n.19. In any event, for
the reasons stated above, neither the previous nor current HAWJIC language
regarding self-defense when deadly force is used is erroneous. Nevertheless,
we agree with the dissent that, on remand, the circuit court may include in
its self-defense instruction the language of HAWJIC 7.01B stating that a
defendant may estimate the necessity of using force. See dissenting opinion
at 13-14. Moreover, for the purposes of clarity and completeness, we suggest
that the Standing Committee on Pattern Criminal Jury Instructions consider
whether it would be appropriate to include the language in both 7.01A and
7.01B.

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           In sum, the self-defense jury instruction given in the

instant case was not erroneous.

                             IV.   Conclusion

           For the reasons set forth in this opinion, 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 the case to the circuit court for further

proceedings consistent with this opinion.

Phyllis J. Hironaka                   /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                        /s/ Sabrina S. McKenna




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