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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30518
                                                              19-MAR-2013
                                                              09:25 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

       KEVIN C. METCALFE, Petitioner/Defendant-Appellant.


                               SCWC-30518

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 30518; CR. NO. 09-1-0215)

                             MARCH 19, 2013

         RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.;
       WITH ACOBA, J., DISSENTING SEPARATELY, WITH WHOM
  CIRCUIT JUDGE SAKAMOTO, ASSIGNED BY REASON OF VACANCY, JOINS


             OPINION OF THE COURT BY RECKTENWALD, C.J.

          On the night of May 6, 2009, the Hawai#i County Police

Department received a 911 call from Defendant Kevin C. Metcalfe.

Metcalfe stated that he had just fired a 12-gauge shotgun at a

burglar on his property:
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           I told ‘em, ‘Get down.’ Then he says, ‘Ah, [] you.’
           He said somethin’. I don’t know, and so I shot a
           round on the ground. I shot one, you know, away from
           him.
           . . . .
           He – he just kinda like came toward me so I shot
           again, and then he, I don’t know, blasted past me, and
           I [] shot again.

           When a police officer arrived at Metcalfe’s house, he

discovered the body of Larry Kuahuia on a nearby road.              There

were no visible injuries to the front of Kuahuia’s body, but

numerous pellet wounds to the back.        Metcalfe was subsequently

charged in the Circuit Court of the Third Circuit with Murder in

the Second Degree and Carrying or Use of Firearm in the

Commission of a Separate Felony.

           At trial, the State of Hawai#i introduced a transcript

of the 911 call, as well as testimony from a number of witnesses.

Those witnesses included a forensic pathologist, Dr. Anthony

Manoukian, who testified that in his opinion, Kuahuia died from a

shotgun wound to the back fired from a distance of approximately

60 feet.   They also included Detective Walter Ah Mow, a firearms

instructor who testified about the results of tests he had

conducted using Metcalfe’s shotgun to determine how widely the

pellets from the gun dispersed at various distances.            Although

Manoukian and Ah Mow testified about their training and expertise

in, respectively, forensic pathology and firearms, the circuit

court did not find on the record that they were qualified to

testify as expert witnesses.       As discussed below, it appears that

the court had adopted a procedure under which it did not make

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findings in front of the jury regarding a witness’s qualification

to provide expert opinion testimony.

           Metcalfe’s defense counsel did not object to the

testimony of the witnesses.      Instead, he cross-examined them and

elicited testimony that –- as he would later contend in his

closing argument -– suggested that Kuahuia could have been shot

at a much closer range.

           Metcalfe testified in his own defense.          He testified

that he shot at Kuahuia in self-defense after Kuahuia had first

“crab-walk[ed]” toward him, and then charged at him with an

object in his hand.     The jury was given instructions regarding,

inter alia, self-defense and the opinion testimony elicited at

trial.   In closing argument, the State asserted that Metcalfe

intentionally shot Kuahuia in the back from a distance of at

least forty feet after Kuahuia ran past him, and did not act in

self-defense.   Metcalfe’s counsel, however, argued that the

evidence demonstrated that Kuahuia was shot from a close distance

as he approached Metcalfe, and that Kuahuia was hit in the back

because he turned around at the last moment after Metcalfe fired

the first shot into the ground.

           The jury found Metcalfe guilty of Manslaughter, in

violation of Hawai#i Revised Statutes (HRS) § 707-702, and

Carrying or Use of Firearm in the Commission of a Separate

Felony, in violation of HRS § 134-21(a).         The circuit court

entered its Judgment of Conviction and Sentence on March 25,

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2010.1   On appeal, Metcalfe argued, inter alia, that the circuit

court erred in failing to properly qualify Dr. Manoukian and

Detective Ah Mow as expert witnesses.         In its March 30, 2012

memorandum opinion, the Intermediate Court of Appeals affirmed

Metcalfe’s convictions.       State v. Metcalfe, No. 30518, 2012 WL

1071503 (Haw. App. Mar. 30, 2012).

           In his June 23, 2012 application for a writ of

certiorari, Metcalfe raises the following questions:
           I.     Whether the ICA gravely erred in finding no
                  error where the trial court denied [Metcalfe’s]
                  motion to dismiss without reviewing the
                  transcripts from the grand jury hearing that
                  resulted in a “no bill” and the subsequent
                  preliminary hearing in which probable cause was
                  found;

           II.    Whether the ICA gravely erred in determining
                  that the trial court did not plainly err by (1)
                  permitting the testimonies of Dr. Manoukian and
                  Det. Ah Mow where the State failed to qualify
                  them as experts in the field of ballistics in
                  accordance with [Hawai#i Rules of Evidence
                  (HRE)] Rule 702 and (2) substituting the
                  standard expert witness instruction with an
                  “opinion testimony” instruction;

           III.   Whether the ICA gravely erred in determining
                  that the flawed instruction on self-defense was
                  not prejudicially insufficient, erroneous,
                  inconsistent, or misleading;

           IV.    Whether the ICA gravely erred in finding that
                  the trial court was not required to instruct the
                  jury on the defense of property where there was
                  substantial evidence to support the defense and
                  the failure to so instruct contributed to
                  [Metcalfe’s] conviction;

           V.     Whether the ICA gravely erred in finding no
                  plain error where the trial court failed to
                  provide a cautionary instruction regarding the
                  prejudicial emphasis on [Metcalfe’s]
                  possession/use of medical marijuana; and

           VI.    Whether the ICA gravely erred in rejecting


     1
           The Honorable Ronald Ibarra presided.

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                 [Metcalfe’s] claims of ineffective assistance of
                 counsel based upon numerous errors and omissions
                 that impaired his defense.

           As set forth below, we hold that the circuit court did

not abuse its discretion in denying Metcalfe’s motion to dismiss

the amended complaint.      We also hold that the circuit court did

not plainly err in allowing the testimony of Dr. Manoukian and

Detective Ah Mow and substituting the words “opinion testimony”

for the word “expert” in the jury instruction.           In addition, the

circuit court did not plainly err in instructing the jury on

self-defense, in failing to sua sponte instruct the jury on

defense of property, or in failing to provide a cautionary

instruction on the use of medical marijuana.           Finally, we hold

that Metcalfe failed to establish that his trial counsel was

ineffective.

           Accordingly, we affirm the ICA’s April 24, 2012

judgment on appeal.

                              I.   Background

           The following factual background is taken from the

record on appeal.

A.   Complaint

           On June 8, 2009, the State filed a complaint against

Metcalfe, charging him with Murder in the Second Degree in




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violation of HRS § 707-701.5,2 and Carrying or Use of Firearm in

the Commission of a Separate Felony, in violation of HRS § 134-

21.3       On July 9, 2009, the State filed a nearly identical amended

complaint listing the same charges.            The amended complaint was

dated June 25, 2009.

               On December 7, 2009, Metcalfe filed a motion to dismiss

the amended complaint based on double jeopardy and collateral

estoppel, arguing that the State was barred from filing an

amended complaint seeking a probable cause determination from a

judge when a grand jury returned a “no bill” on the initial

complaint.       Metcalfe did not include with his motion the

transcripts from the grand jury or preliminary hearing


       2
            HRS § 707-701.5(1) (1993) provides in relevant part, “Except as
provided in section 707-701, a person commits the offense of murder in the
second degree if the person intentionally or knowingly causes the death of
another person.” Metcalfe was ultimately convicted of Manslaughter, pursuant
to HRS § 707-702 (Supp. 2009), which provides in relevant part, “(1) A person
commits the offense of manslaughter if: (a) The person recklessly causes the
death of another person; or (b) The person intentionally causes another person
to commit suicide.”
       3
               HRS § 134-21 (Supp. 2009) 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, whether the firearm was loaded or
               not, and whether operable or not; . . .
               . . . .

               (b) A conviction and sentence under this section shall
               be in addition to and not in lieu of any conviction
               and sentence for the separate felony; provided that
               the sentence imposed under this section may run
               concurrently or consecutively with the sentence for
               the separate felony.

               (c) Any person violating this section shall be guilty
               of a class A felony.

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proceedings.   Instead, in a Declaration of Counsel attached to

Metcalfe’s motion to dismiss, defense counsel stated that they

“reviewed the case file, court records, and transcripts” and

requested that the court “take judicial notice of the said record

and transcripts[,]” which counsel believed would show:
          a)    Prosecutor Frederick Giannini asked a duly
                constituted grand jury with a proper quorum on
                June 8, 2009 to return a true bill of indictment
                against [] Metcalfe on two counts against []
                Metcalfe for the offenses of Murder in the
                Second Degree . . . as amended in count one of
                said proposed indictment, and in count two of
                said proposed indictment asked the grand jury to
                return an indictment for the Carrying or Use of
                Firearm in the Commission of a Separate
                Felony[.]
          b)    On June 8, 2009, the properly constituted grand
                jury returned no bills on both proposed counts
                failing to find probable cause and that the
                state had not offered sufficient evidence to
                lead a person of ordinary caution or prudence to
                believe and conscientiously entertain a strong
                suspicion that [Metcalfe] had committed the
                proposed charges.
          c)    On June 25, 2009, the State filed an amended
                complaint charging the same offenses for which
                the grand jury had returned a no bill and on
                June 26, 2009 after a preliminary hearing the
                [H]onorable Joseph Florendo found probable cause
                existed for the said complaint and that the
                [S]tate had presented sufficient evidence to
                convince a person of ordinary caution or
                prudence to believe and conscientiously
                entertain a strong suspicion that the defendant
                did commit the offense of Murder in the Second
                Degree in Count [1], as well as Carrying or
                Using a Firearm in the Commission of a Separate
                Felony in [] Count [2]. This decision by the
                [H]onorable Judge Florendo was made when the
                prosecutor omitted significant evidence that the
                grand jury heard, some of which was exculpatory
                from this preliminary examination, and thus he
                did not have the benefit of hearing the entire
                circumstances of the offense.
          d)    Witnesses were called by the State . . . in both
                the grand jury proceedings and in the
                preliminary examination.
          . . . .




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          In a memorandum and supplemental memorandum in

opposition to Metcalfe’s motion to dismiss, the State argued,

inter alia, that jeopardy did not attach at the grand jury phase

and thus, Metcalfe’s motion should be denied.          At a January 28,

2010 hearing on Metcalfe’s motion, the State asserted that

defense counsel’s argument that the filing of the amended

complaint violated double jeopardy and collateral estoppel was

without merit.    The State asserted that this court has not

addressed this issue, but that other jurisdictions have “usually

allowed” recharging a defendant unless specifically prohibited by

statute, which Hawaii’s statute does not proscribe.           In response,

defense counsel argued,
          . . . [HRS § 806-84] contemplates I think a situation
          where the -- the prosecution if they don’t like, you
          know, what the judge does at a preliminary
          examination, then they’re free to go back and -- and
          seek an indictment from a grand jury.
                But I don’t think the legislature ever
          contemplated a situation where a grand jury declined
          to indict somebody, and then they go back. You know
          this, [HRS § 806-8] speaks of -– of having an
          indictment . . . after, uh, a judge has had a
          preliminary examination that –- that was adverse to
          the State.
                But, you know, this case, Your Honor, there was
          considerably more evidence brought to the grand jury.
          They brought all the evidence including the 911 tape.


     4
          HRS § 806-8 (1993) provides:

          In criminal cases brought in the first instance in a
          court of record, but in which the accused may be held
          to answer without an indictment by a grand jury, the
          legal prosecutor may arraign and prosecute the accused
          upon an information, complaint, or an indictment at
          the prosecutor’s election; and in all criminal cases
          brought in the first instance in a court of record the
          prosecutor may arraign and prosecute the accused by
          information, complaint, or indictment, as the case may
          be, whether there has been a previous examination, or
          commitment for trial by a judge, or not.

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                And the grand jury, uh, apparently wanted to
          indict this defendant for manslaughter, and, uh, for
          whatever reason that did not happen, but they declined
          very vehemently to -– to indict him for –- for second
          degree murder.

          The circuit court and defense counsel had the following

discussion:
          Court:       [W]e don’t know what the State, as you
                       know . . . puts on in the grand jury,
                       whether they had everything or not, but,
                       uh, certainly, uh, I disagree with, uh,
                       your –- your argument that jeopardy
                       attached at the grand jury[.]
          [Defense]:   Oh, no. I [] agree it did not
                       attach . . . at the grand jury.
          Court:       But even expanding it further cannot the
                       State even with, uh, they refuse, uh, the
                       first time to go back to the same grand
                       jury or a different grand jury and produce
                       different evidence?
          [Defense]:   Yes, Your Honor. I believe that they
                       can . . . but I’m just . . . wondering
                       what [] is the point of a grand jury? Why
                       do we ever have a grand jury in Hawai#i if
                       the State -- if they don’t like what the
                       grand jury can do then . . . it goes to a
                       judge. It seems to me to disrespect the
                       grand jury system.
          . . . .
          Court:       [T]his is an interesting issue. You know,
                       you got three ways the prosecutor can seek
                       or even – not even three ways. And at
                       what point . . . could the prosecutor go
                       back to the grand jury, the same one or a
                       different grand jury and say[], “I’ll keep
                       trying until I get this person indicted
                       for the charge at which” --
          [Defense]:   I think so if they –- if they bring more
                       evidence, but to me, Judge, it just seems
                       like it’s a –- a slap in the face or we’re
                       thumbing our nose at our grand jurors who
                       drove all this way to, you know, decline -
                       -
          Court:       Well, I’m not going into [] what the grand
                       jury --
          [Defense]:   Right.
          Court:       –- members felt, but I’m –- I’m just
                       saying does the process allow that?
          [Defense]:   I . . . guess it does, Judge.




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              The circuit court orally denied the motion to dismiss,

stating that jeopardy did not attach at the grand jury phase.5

The circuit court issued an order, which stated, “The [c]ourt,

having reviewed the records and files in this case and having

heard the arguments of counsels, finds that there is no

constitutional or statutory impediment prohibiting the State from

proceeding by way of a preliminary hearing when a grand jury has

filed a No Bill.”

B.    Trial

      1.      State’s Case-in-Chief

              The State called Rocky Jordan, a friend of Metcalfe’s

who was present on the night of the incident in this case, to

testify.      Jordan lived in a separate dwelling on Metcalfe’s

property.      Jordan stated that he helped Metcalfe install a

surveillance system on Metcalfe’s property that included four

video cameras.      Each camera pointed at separate buildings on

Metcalfe’s property: one toward the garage, one toward the

greenhouse, one toward the chicken coop, and one toward the

inside of the greenhouse.       On three occasions prior to the

incident at issue in this case, Jordan and/or Metcalfe reported

to police that someone broke into Metcalfe’s garage, and in total

stole “several thousand dollars” worth of tools and building

supplies.


      5
            The circuit court did not file an order denying the motion until
after trial concluded.

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            Jordan testified that on May 6, 2009, he went to bed at

9:00 p.m. and received a phone call at about 10:30 p.m. from

Metcalfe informing him to “[c]all 911 and come over here” because

someone was trying to break into the greenhouse.           Jordan ran

outside and saw a man “coming at” Metcalfe, and Metcalfe yelling

at the man to get down on the ground: “Come on, man.             Get on the

fucking ground.”     Jordan thought the man would “bowl Metacalf[e]

over.”    Jordan then heard two shots.       Jordan ran toward Metcalfe,

who told him to, “Call 911.       Tell ‘em he’s running down the

driveway.”    Three to four minutes after the second shot, Jordan

heard someone say, “Help.       Somebody help me[.]”     Jordan also

testified that he, Metcalfe, and Metcalfe’s wife, Sharon Meech,

had medical marijuana permits.        He stated that although he had

smoked a “small amount” of medical marijuana on the day of the

incident, the medical marijuana did not affect his memory of the

events.

            Hawai#i County Police Department (HCPD) Dispatcher

Kevin Lee testified that he was transferred a call from a 911

emergency dispatcher on the night of May 6, 2009.           He

acknowledged that State’s Exhibit 1-A was a true and accurate

recording of the call.      Without objection, State’s Exhibit 1-A

was received into evidence and published to the jury.            In the

recording, the following conversation occurred:
            [Lee:]      Hi, this is Kevin.
            [Emergency dispatcher:] Kevin, um --
            [Lee:]      Yeah


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      [Emergency Dispatcher:] –- (Indiscernible) back. Shot
                              at a burglar. He shot at a
                              burglar --
      [Lee:]      Yeah. I got ‘em. Got ‘em. Thank you.
      [Emergency Dispatcher:] Okay.
      . . . .
      [Lee:]      Hi what’s your name?
      [Metcalfe:] Kevin Metcalfe.
      [Lee:]      Kevin Metcalfe?
      [Metcalfe:] Yes.
      [Lee:]      Okay, and do you know where the person
                  went that you shot?
      [Metcalfe:] No. He ran down the driveway.
      [Lee:]      Did you -- did you hit him, Kevin?
      [Metcalfe:] Uh, I’m sure I did. Oh.
      [Lee:]      It was a break-in?
      [Metcalfe:] It’s just – it’s just birdshot, though.
                  He should be gone – gone. But I hope so.
      . . . .
      [Lee:]      Kevin, what kind of shotgun did you use?
      [Metcalfe:] Just a 12-gauge. Oh, dear God.
      [Lee:]      Did [] you see what he looked like, what
                  he was wearing?
      [Metcalfe:] Uh, no shirt. A Hawaiian guy. Fuck. Oh,
                  man.
      . . . .
      [Lee:]      Okay. What happened?
      [Metcalfe:] I told ‘em, ‘Get down.’ Then he says,
                  ‘Ah, fuck you.’ He said somethin’. I
                  don’t know, and so I shot a round on the
                  ground. I shot one, you know, away from
                  him.
      [Lee:]      All right.
      [Metcalfe:] He -- he just kinda like came toward me so
                  I shot again, and then he, I don’t know,
                  blasted past me, and I fuckin’ shot again.
                  Now he’s probably down there fuckin’
                  gearing up to come back.
      . . . .
      [Lee:]      Okay. And where did you –- when you --
                  when you said you had him on the ground
                  where was it? Right in front of the
                  property?
      [Metcalfe:] He never went on the ground. He just, you
                  know, like I said he come out from behind
                  the chicken coop. I don’t know. Behind
                  the chicken coop, and that was, uh, went
                  past the chicken coop. Told him, you
                  know, when I come out my garage door I
                  told him, I said, ‘Get on the fucking
                  ground. I know you’re there.’ And then I
                  went out to the chicken coop. When he
                  come out from [] behind the chicken coop I
                  said, ‘Lay down right now. I’ve got a
                  gun.’ Sure he said, ‘Fuck you,’ I don’t
                  know. He said something or another, and I
                  just pulled the gun away and shot, you
                  know, away from him. Told him, ‘Get
                  down,’ and that’s when he bolted towards


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                        me, and I just kind of, I don’t know,
                        pulled the trigger. And then he kept
                        going so I pulled the trigger again.
            [Lee:]      Gotcha. So you fired two shots at ‘em?
            [Metcalfe:] Yes, sir.
            [Lee:]      Total? Well, in the -- in the vicinity?
            [Metcalfe:] Uh-huh. I don’t know.
            [Lee:]      Okay.
            [Metcalfe:] I -– sir, I don’t know.

            HCPD Officer John Smith, Jr., testified that he was

dispatched to Metcalfe’s residence at approximately 10:30 p.m.,

where he was met by Metcalfe and Jordan.         Metcalfe told Officer

Smith that he had shot a burglar: “He said, uh, he saw this, uh,

guy, a male party, trying to break into a -- a greenhouse.”

Metcalfe stated that he was in a “studio” building on the

premises trying to figure out how to work surveillance equipment

that he recently installed, when he observed a man trying to

break into the greenhouse.       Metcalfe exited the studio and saw

the silhouette of the man running behind other structures on the

property.    Metcalfe then ran to confront the man.         Metcalfe

yelled at the man to “stop and lay on the ground.”           The man did

not lie down as instructed, so Metcalfe discharged a shot on the

ground, “as a warning shot.”       The man continued to run toward

Metcalfe.    Metcalfe shot at the man, and stated that he believed

that he hit the man in the “front, uh, lower thigh area.”             The

man then ran past Metcalfe down the driveway.          Metcalfe could not

remember the exact number of times he fired the shotgun, but he

did remember shooting it twice.        Officer Smith found three




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shotgun shells at the scene.      Officer Smith recovered a 12-gauge

shotgun that Metcalfe said he used to shoot the man.

            Officer Smith then searched for the man because

Metcalfe had heard someone crying out for help prior to the

arrival of the officers.      Officer Smith walked down a road and

discovered Kuahuia on the road lying face up.          Metcalfe was

following him, and when Metcalfe saw Kuahuia, he stated, “Oh

Jesus, that’s him.”     Officer Smith stated that he checked for a

pulse and breathing, but Kuahuia’s body felt cold.           There were no

visible injuries to Kuahuia’s body as it lay face up.            When

medical personnel moved Kuahuia’s body, Officer Smith observed

“[a] buncha holes in his back.       A lotta [sic] holes in his back.”

            On cross-examination, Officer Smith stated that

Metcalfe indicated that the man may have been accompanied by

other individuals.    Metcalfe also appeared “extremely distraught”

when he saw Kuahuia’s body.      Officer Smith also testified

regarding the mechanism of a shotgun, the differences between and

function of different types of shotgun shells, and his prior

experiences hunting and shooting with a shotgun with the same

type of ammunition used in this case.        He stated that when a

shotgun is fired, the pellets in the shell stay “tight together

before they start spreading out as they go farther away from the

shotgun.”    Officer Smith stated that the spread pattern from

number 6 birdshot ammunition, which was the type of ammunition

used on the night of the incident and recovered at the scene,

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fired at 60 feet would be “more spread out than at 30 feet.”

Officer Smith stated that Kuahuia’s body was discovered

approximately four hundred yards away from the greenhouse.

            On redirect examination, Officer Smith was questioned

about Metcalfe’s “condition” on the night of the incident.

Officer Smith testified that he was a drug recognition expert,

that he could smell marijuana on the night of the incident, and

that he could not tell if the marijuana smell was coming from

Metcalfe.    Officer Smith also acknowledged that he was shot with

number 6 birdshot when he was a child.

            On recross examination, Officer Smith stated that in

the childhood shooting, he was shot in his right back shoulder

from a distance of approximately sixty feet.          Officer Smith

stated that he did not go to the hospital or to see a doctor

after he was shot, and said that none of the pellets penetrated

his skin.    Upon further examination, Officer Smith testified that

he was wearing a hunter’s vest when he got shot.

            HCPD Officer Henry Ivy was dispatched to Metcalfe’s

residence at 10:30 p.m.     On cross-examination, Officer Ivy stated

that Metcalfe appeared to be in “distress,” distraught, and “very

scared.”

            HCPD Detective Sean Smith testified that he was

assigned to investigate the incident.        Detective Smith

interviewed Jordan, who recalled that, from a distance of thirty

feet, Jordan could see a man “running towards” Metcalfe.

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          Dr. Anthony Manoukian testified that he was a

pathologist, laboratory director at Maui Memorial Medical Center,

and the coroner’s physician for Maui County, Hawai#i County, and

the County of Kauai.     Dr. Manoukian testified that he was a

licensed physician and surgeon in Hawai#i, specializing in

pathology and forensic pathology.         He stated that he was educated

at the University of Hawai#i at Manoa, is an assistant clinical

professor at the University, and is a member of the College of

American Pathologists and the American Society for Clinical

Pathology.   Dr. Manoukian is certified in anatomic, clinical, and

forensic pathology from the American Board of Pathology.            He has

performed over 3,000 autopsies, of which over 100 were performed

on bodies where the cause of death was the result of an injury

caused by a firearm.

          Dr. Manoukian stated that he received training with

regard to firearms:
                Well, there was the -- as part of the, um,
          forensic training in Baltimore with the Office of the
          Chief Medical Examiner we had autopsy experience in
          deaths due to firearms.
                In addition we, uh, attended classes at the
          Maryland State Crime Lab and also, uh, at the, uh, FBI
          Academy in Quantico, Virginia.
          . . . .
                Well, the training involved recovery of
          projectiles and, um, basically how to conduct an
          autopsy in which, uh, the death was due to firearms.
                And we had some specialized training in, uh,
          ballistics with the Maryland State Crime Lab, and we
          had the opportunity to fire different, uh, types of,
          uh, firearms on a shooting range.

          Dr. Manoukian performed an autopsy on Kuahuia and

determined “within the bounds of reasonable medical certainty”

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that Kuahuia died due to “a shotgun wound to the back.”            Dr.

Manoukian stated that the “linear grazing wounds” present on both

sides of Kuahuia’s body indicated the “trajectory of the shotgun

wound and also the range of fire of the shotgun wound.”

Specifically, the linear grazing wounds helped Dr. Manoukian

determine that the trajectory of the shotgun wound was “back to

front[,]” i.e., “it indicate[d] the position of the decedent’s

body to the barrel of the shotgun at the time the shotgun was

discharged.”

          In addition, Dr. Manoukian testified that there was “no

evidence of close-range firing” because there was no “large

central defect,” there was no gunpowder on the skin of Kuahuia’s

back, and there was no evidence of a “wad injury,” i.e., “no

imprint of the wad [of the shotgun shell] on [Kuahuia’s] skin[.]”

Dr. Manoukian stated, “in the textbooks of forensic pathology for

a shotgun using birdshot there’s a general rule of thumb that the

diameter of the pellet injury times three equals in a ballpark

figure the distance in feet between the decedent and the barrel

of the shotgun.”    Inasmuch as the “spread” on Kuahuia’s back was

21.5 inches, Dr. Manoukian estimated that the distance from the

shotgun barrel to Kuahuia’s body at the time of firing was

approximately 60 feet.     Dr. Manoukian stated that there were

approximately 150 to 200 pellets that struck Kuahuia, of which

approximately 20 to 40 entered Kuahuia’s chest and abdomen,

injuring Kuahuia’s two lungs, his two kidneys, and his spleen.

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            Dr. Manoukian testified that there were no gunshot

wounds to the front of Kuahuia’s body and that Kuahuia had “some

scraping of the skin” on the front of his body, which he

attributed to Kuahuia collapsing to the ground after being shot.

Dr. Manoukian further stated that this was a “distant[] shotgun

wound” because there was “an absence of a central large defect

where pellets have entered.”        Defense counsel did not object at

any time during Dr. Manoukian’s testimony.

            Herbert Hamersma, an HCPD evidence custodian, testified

that he received, stored, and tracked various physical items that

were recovered from the scene from different detectives,

including Kuahuia’s clothes, a shotgun, three used shotgun

shells, and a hacksaw.6

            HCPD Evidence Specialist Lauren Wong testified that she

photographed Kuahuia’s body at the scene.          Specialist Wong stated

that she also created a diagram of the scene using a “Total

Station” device to measure the distances between “relevant

objects” at the scene.      She stated, “The Total Station sends out

a signal, and it is reflected off of the target . . . and the

information is recorded in terms of angle and distance. . . .

The Total Station is connected to a wireless, uh, hand-held



      6
            A hacksaw was recovered at the scene of the incident. Metcalfe
testified that he was “scared to death” because Kuahuia charged at him while
holding “the same thing that he was trying to cut through the greenhouse with
or a weapon of some sort” in his right hand. During closing arguments,
defense counsel argued that Kuahuia was holding State’s Exhibit 17, which is
the hacksaw recovered at the scene, when he charged at Metcalfe.

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computer which records the electronic data for us that may not be

altered once it’s put in there.”       Specialist Wong testified that,

using the Total Station, she measured the distance between a

hacksaw and the closest shell casing as being approximately 47.8

feet.   The next closest shell casing was 51.1 feet from the

hacksaw.   The furthest casing was 66.3 feet from the hacksaw.

           On cross-examination, Specialist Wong stated that she

did not know if the Total Station device was calibrated.            On re-

direct, Specialist Wong testified that the device “appear[ed] to

be working as it should” and there was no indication that the

data she received was wrong.      On re-cross, Specialist Wong

acknowledged that she never took measurements through any other

means to verify the Total Station device’s accuracy.

           HCPD Detective Myra Iwamoto testified that she followed

Kuahuia’s body to the morgue and recovered the clothing from the

body.   On cross-examination, defense counsel asked Detective

Iwamoto whether she knew if Dr. Manoukian performed a gunshot

residue test on Kuahuia’s body.       Detective Iwamoto stated that

she was not sure if Dr. Manoukian conducted a gunshot residue

test.   Detective Iwamoto acknowledged that as far as she knew,

someone could have gunshot residue on their person if they are in

close proximity to a gun that is being discharged.

           HCPD Detective Walter Ah Mow testified that he was

certified as the firearms instructor for the HCPD.           Detective Ah

Mow was trained by the FBI in 2001 and 2004, and certified by the

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National Rifle Association in 2005.        He received FBI training on

“handl[ing],” “basic field stripping,” and “maintain[ing] and

clean[ing]” shotguns.     On May 6, 2009, Detective Ah Mow was

initially assigned to “be in charge” at the scene.           Detective Ah

Mow stated that a Browning semi-automatic 12-gauge shotgun was

recovered during the investigation.        On May 11, 2009, Detective

Ah Mow test fired the recovered shotgun to conduct pattern

testing, specifically, “to determine the distance of, uh, the

shotgun as the pellets go through the barrel and make a spread

pattern onto a target.”     The pattern testing involved firing the

shotgun from various distances from a target to ascertain the

“spread” of pellets on the target.        Detective Ah Mow purchased

and fired ammunition identical to that recovered from Metcalfe’s

residence.   He stated that each shell, a “number 6” birdshot, was

designed to kill birds and contained approximately “[t]wo hundred

BB’s.”

           Detective Ah Mow fired the shotgun from set distances

of 10 feet, 20 feet, 30 feet, 40 feet, 50 feet, and 55 feet.               At

a distance of 10 feet, the spread pattern was approximately 3.75

inches.   At 20 feet, the spread pattern was approximately 7.5

inches.   At 30 feet, the spread pattern was approximately 12.5

inches.   At 40 feet, the spread pattern was approximately 16.75

inches.   At 50 feet, the spread pattern was approximately 25.5

inches.   At 55 feet, the spread pattern was approximately 25.5

inches.   Detective Ah Mow also fired the shotgun from specified

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distances of 47 feet, 8 inches, and 51 feet, 1 inch, which

correlated with distances measured on the Total Station Device.

At a distance of 47 feet, 8 inches, the spread pattern was

approximately 23.5 inches.      At a distance of 51 feet, 1 inch, the

spread pattern was approximately 27.5 inches.          Detective Ah Mow

was asked what the spread pattern indicated, and he stated, “Just

to make it simple, the spread pattern[] measures the distance

between the muzzle to target.”       Detective Ah Mow also testified

that Metcalfe’s shotgun did not have a “choke,” which would have

affected the spread of the pellets as “every spread pattern would

be different” “depending on what kind of choke” was on the

shotgun.   Defense counsel did not object to Detective Ah Mow’s

testimony.

           On cross-examination, Detective Ah Mow acknowledged

that because the recovered shotgun was semi-automatic it was

conceivable that, if multiple shots were fired rapidly at a

target, it would be hard to distinguish the spread pattern of one

round with the spread pattern of the other.          Detective Ah Mow

also acknowledged that he performed these tests in an “ideal

laboratory condition” where the weather was constant, and neither

the target nor the shooter was moving.         He also recognized that

movement of the target or muzzle of the shotgun could

substantially distort the spread pattern.         Detective Ah Mow also

acknowledged that a substantial number of pellets did not

penetrate the cardboard target at the closer distances of 10 and

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20 feet.    On redirect-examination, Detective Ah Mow stated that

although some pellets did not go through the cardboard target, a

majority of the pellets did go through.

            The State rested7 and Metcalfe moved for a judgment of

acquittal on the murder charge, arguing that the State adduced no

evidence of an intentional killing.         The circuit court denied the

motion on the ground that the evidence, when viewed in the light

most favorable to the State, was sufficient for a reasonable jury

to conclude that Metcalfe’s actions were intentional or knowing

when he fired the shotgun at Kuahuia.

      2.    Defense Case

            Metcalfe testified in his own defense.          On May 6, 2009,

at approximately 10:25 p.m., Metcalfe was figuring out how to

work his surveillance security system when his motion detector

alarm came on.     When he looked at his security system’s monitor,

Metcalfe noticed what, at first, appeared to be a garbage bag

blowing in the wind.      Metcalfe then saw a man standing upright

with “something in his hand.”        Metcalfe saw the individual try to

cut through a shade cloth that was draped over the greenhouse.


      7
            Additional witnesses testified for the State. Elizabeth Taetuna,
Kuahuia’s mother, identified her son in a photograph. HCPD Detective
Charlotte Bird testified that she was assigned to collect evidence. Through
the testimony of Detective Bird, the State admitted, without objection,
Exhibit 76, which was a picture of the inside of Metcalfe’s greenhouse,
containing what appeared to be marijuana plants. Detective Bird stated that
the photograph “accurately depicted the scene that [she] saw at the time th[e]
photograph was taken[.]” HCPD Officer Shawn Ibarra testified that he stood
watch so that no one would enter the scene. HCPD Officer Clayton Tayamen
testified that he arrested Metcalfe. HCPD Detective Charles Adams
photographed the scene and obtained a search warrant for Kuahuia’s vehicle.

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He called Jordan to tell him that someone was in the yard and

that Jordan should call 911.

             Metcalfe went outside without an intention to hurt the

person that was on his property.          He took his recently purchased

12-gauge shotgun and loaded it with number 6 birdshot ammunition.

He decided not to use his buckshot ammunition because a buckshot

“would really hurt somebody.”

             Metcalfe exited the studio with his shotgun and a

flashlight.      Metcalfe saw a man crouched down on the ground.              He

stated to the man, “Look, come outta there.             I got a gun.     Come

out.    Put your hands up.       Get on the ground.”      After Metcalfe

shined a flashlight on the man, who was eight to ten feet away

from him, the man “crab walked” toward Metcalfe.              Metcalfe then

told the man, “Please, just get on the f’in’ ground.”               Metcalfe

stated that “all at once” the man, who had “something” in his

right hand, jumped towards him.          Metcalfe stated that the man

probably had “the same thing that he was trying to cut through

the greenhouse with or a weapon of some sort” in his right hand.

The man came to within “three feet” and “hollered, ‘F you,’

really loud” at Metcalfe.         Metcalfe then fired a “warning shot,”

as he stepped backward, because he wanted the man to know that he

was serious and because he was “scared to death.”              Metcalfe

stated that he was scared for himself and denied firing the shots

to protect his property.



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           After firing the first shot, Metcalfe stated that all

he could see was “spots.”        Metcalfe stated that from the flash he

could still see that the man was “propelling himself forward”

toward Metcalfe.      Metcalfe stated that he fired another shot

because he felt he had no other alternative.            Metcalfe stepped

backwards, but the man did not stop.          The man ran away and

Metcalfe called 911, and subsequently heard someone “holler

‘help[,]’” but the dispatcher told Metcalfe to stay where he was.

About fifteen or twenty minutes after the police arrived, he and

an officer discovered Kuahuia’s body.          Metcalfe stated, “I was

beside myself.    I just couldn’t even fathom anything.               I was just

lost.   I was just in shock and pure fear for him.”

           On cross-examination, the State questioned Metcalfe

about his medical marijuana permit.          Metcalfe stated that he had

a medical marijuana permit for the ten plants that were in the

greenhouse on his property.        He acknowledged that he used the

marijuana for his irritable bowel syndrome.            Metcalfe stated that

on the evening of the incident he smoked “maybe a gram” of his

medical marijuana.       The following exchange occurred:
           [State]:      On May 6, 2009, would you, uh, 2009, would
                         you deem yourself addicted to marijuana?
           [Metcalfe]:   No.
           [State]:      Because you don’t believe marijuana is
                         addicting. Is that right?
           [Metcalfe]:   Um, anything you smoke --
           [Metcalfe’s   counsel]:   I’m gonna object to the
                                     relevance of this line of
                                     questioning.
           [Court]:      Overruled.
           [Metcalfe]:   Um, I don’t know. I don’t –- I don’t.
                         It’s nothing like cigarettes. You can put
                         -– for me. I don’t know about the rest of


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                        the world, but sometimes I do things and I
                        don’t like marijuana in my system I may
                        not use it for days.
            [State]:    Okay, but you had marijuana in your system
                        on May the 6, 2009. Is that right?
            [Metcalfe]: Oh, yes, sir. It stays in your system for
                        30 days.

            When asked whether Metcalfe set up the surveillance

system to protect the marijuana plants in his greenhouse,

Metcalfe responded, “I had a lotta [sic] tools in the greenhouse.

I don’t know if anybody’s told you that, but in –- I’m sure

they’ve looked at it, took pictures of it.          You should know that.

It wasn’t just marijuana plants, sir.”

            Metcalfe also stated that he fired the shotgun three

times and that the man “blew past” him.          Metcalfe stated that he

did not know if he shot the man but that, because the man was so

close, he wanted a “wall of safety” between himself and the man.

Metcalfe stated that the first two shots “went off so fast it was

basically just like a double flashbulb.”          Metcalfe acknowledged

that his property had been burglarized five times prior to the

incident.

            Sharon Meech, Metcalfe’s wife, testified that their

property had been burglarized five to seven times.            She also

testified that a burglary occurred in October 2008 that scared

her and led her to leave Hawai#i for Oregon.

            The defense rested and Metcalfe renewed his motion for

judgment of acquittal, which the circuit court denied.




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     3.   Jury Instructions, Closing Arguments and Verdict

          Prior to closing arguments, the circuit court and the

parties settled the jury instructions.         Relevant to the issues

raised on appeal, the parties agreed to the State’s proposed

instructions on self-defense, with modifications, and also agreed

to the State’s instruction regarding opinion testimony.            In

regard to the modifications of the State’s proposed instructions

on self-defense (State’s Instructions 11, 12, and 13), the

parties agreed that the instruction should be modified to include

the definition of “bodily injury” and “serious bodily injury.”

The parties also agreed to modify the language in State’s

Instruction 11, which stated, “If the prosecution does not meet

this burden then you may not find the Defendant guilty of Murder

in the Second Degree or Manslaughter” to “If the prosecution

[does] not meet this burden then you must find the [D]efendant

not guilty of Murder in the Second Degree or Manslaughter.”

(Emphasis added).

          The State acknowledged that its proposed Instruction

15, regarding opinion testimony, modified the language of the

standard jury instruction 4.05 because it “eliminate[d] use of

[the] word ‘expert[.]’”

          The jury was subsequently given various instructions,

including the following instructions regarding self-defense:
                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


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      on the present occasion against the use of unlawful
      force by the other person.
            “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.
            The use of deadly force upon or toward another
      person is justified when a person using such force
      reasonably believes that the deadly force is
      immediately necessary to protect himself on the
      present occasion against death or serious bodily
      injury.
            “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
      harm. Intentionally firing a firearm in the direction
      of another person or in the direction which another
      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 the actor 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 a serious permanent disfigurement, or
      protracted loss or impairment of the function of any
      bodily member or organ.
            Except as provided below, a person employing
      protective force may estimate the necessity thereof
      under the circumstances as he reasonably 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. 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 the actor is not
                  obliged to retreat from his dwelling or
                  place of work, unless he was the initial
                  aggressor.
      The reasonableness of the Defendant’s belief that the
      use of such protective force or deadly force was
      immediately necessary shall be determined from the
      viewpoint of a reasonable person in the Defendant’s


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          position under the circumstance of which the Defendant
          was aware or as the Defendant reasonably believed them
          to be.
                 Justifiable use of force, commonly known as self
          defense is a defense to the charge of Murder in the
          Second Degree and Manslaughter. Once there is any
          evidence of justification, 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 this burden then you
          must find the Defendant Not Guilty of Murder in the
          Second Degree and Manslaughter.
                 In evaluating a claim of self defense, you
          should proceed as follows:
                 First you should determine if the Defendant had
          the belief that the force or deadly force was
          immediately necessary to protect himself on the
          present occasion against the use of unlawful force by
          the other person, (and in the case of deadly force,
          against death or serious bodily injury).
                 For this part of the test, you should place
          yourself in the shoes of the defendant. If you find
          that Defendant did not have the subjective belief that
          the force he used was immediately necessary to protect
          himself on the present occasion against the use of
          unlawful force by the other person, as set forth
          above, then the State has disproven the defense of
          self defense. If the State has not disproven
          Defendant’s subjective belief, then you should go on
          the second part of the test [sic].
                 Secondly, you should determine whether a
          reasonably prudent person in the same situation as the
          Defendant would have believed that the force used was
          necessary against the use of unlawful force. If the
          State has shown that a reasonably prudent person in
          the same situation as the defendant would not have
          believed that the force was so necessary, then you
          must reject the defense of self defense.

          The circuit court gave State’s Instruction 15,

concerning opinion testimony, by agreement:
                During the trial you heard the testimony of one
          or more witnesses who were allowed to give opinion
          testimony.
                Training and experience may make a person
          qualified to give opinion testimony in a particular
          field. The law allows that person to state an opinion
          about matters in that field. Merely because such a
          witness has expressed an opinion does not mean,
          however, that you must accept this opinion. It is up
          to you to decide whether to accept this testimony and
          how much weight to give it. You must also decide
          whether the witness’s opinions were based on sound
          reasons, judgment, and information.

          The jury was not instructed on defense of property.

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          In its closing argument, the State asserted that

Metcalfe intentionally shot Kuahuia in the back from a distance

of at least forty feet after Kuahuia ran past him.           In his

closing argument, defense counsel argued that Metcalfe acted in

self-defense when Kuahuia charged at him with “something that

could have slit [Metcalfe’s] throat.”        Defense counsel also

asserted that the evidence indicated that Kuahuia was shot from a

close distance.    Defense counsel explained that Kuahuia was shot

in the back because Kuahuia was initially in a “crab-walk

position” when Metcalfe fired the first shot and subsequently

turned when Metcalfe fired the second shot.          Defense counsel then

argued that Dr. Manoukian’s testimony that Kuahuia was shot from

a distance of sixty feet was “physically impossible” in light of

the evidence that showed the downward slope of the driveway that

Kuahuia ran down.    Defense counsel further contended that Kuahuia

could not have been shot from a distance of sixty feet given that

none of the pellets penetrated Officer Smith’s skin when he was

shot with number 6 birdshot from a distance of sixty feet, or

given that not all of the pellets penetrated through the

cardboard silhouettes that Detective Ah Mow fired upon from a

distance of sixty feet.     Defense counsel thus asserted that the

only reasonable inference from this evidence was that Kuahuia was

shot from a distance of eight to ten feet.         In addition, defense

counsel noted that there was no evidence that the Total Station

Device was calibrated, but that “[t]he only thing we do know is

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that [Kuahuia] made it 47 feet with [the hacksaw] from the

greenhouse, and that’s why we know that it was in his hand[.]”

           The jury found Metcalfe guilty of the included offense

of Manslaughter and the offense of Use of a Firearm in the

Commission of a Felony.      On March 25, 2010, the circuit court

entered its Judgment of Conviction and Sentence, convicting

Metcalfe of Manslaughter and Use of Firearm in the Commission of

a Separate Felony and sentencing Metcalfe to an indeterminate

term of imprisonment of twenty years on each count, to run

concurrently.     Metcalfe filed a timely notice of appeal.

C.   ICA Appeal

           On appeal to the ICA, Metcalfe raised several

arguments, including, that the circuit court erred in denying his

motion to dismiss the complaint after the grand jury returned a

no bill, that the circuit court plainly erred in allowing the

testimony of Dr. Manoukian and Detective Ah Mow without properly

qualifying them, that the circuit court plainly erred in

instructing the jury on opinion testimony and self-defense, that

the circuit court plainly erred in failing to instruct the jury

on defense of property and provide a cautionary instruction on

medical marijuana, that there was insufficient evidence that the

shotgun fired by Metcalfe was a “firearm,” and that Metcalfe’s

trial counsel was ineffective.

           In its March 30, 2012 Memorandum Opinion, the ICA

rejected all of Metcalfe’s claims and determined: (1) the circuit

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court did not err in denying Metcalfe’s motion to dismiss; (2)

the circuit court did not plainly err in allowing the opinion

testimony of Dr. Manoukian and Detective Ah Mow, because their

testimony established their qualifications as experts under HRE

Rule 702; (3) the circuit court did not plainly err in providing

the jury with an instruction regarding opinion testimony, which

was modified from the standard expert witness instruction,

because the instruction accurately stated the law; (4) the

circuit court did not plainly err in instructing the jury on

self-defense; (5) a jury instruction regarding defense of

property was not required; (6) a cautionary jury instruction

regarding medical marijuana was not required; and (7) there was

sufficient evidence that the shotgun fired by Metcalfe was a

“firearm.”8    Metcalfe, 2012 WL 1071503, at **4-17.          Finally, the

ICA determined that Metcalfe’s trial counsel was not ineffective

because Metcalfe failed to show that his trial counsel made

errors that resulted in the withdrawal or substantial impairment

of a potentially meritorious defense.         Id. at *17-20 (citing

State v. Wakisaka, 102 Hawai#i 504, 514, 78 P.3d 317, 327

(2003)).

            Accordingly, the ICA affirmed the circuit court’s

March 25, 2010 judgment.       Id. at *10.    The ICA filed its judgment

      8
            This issue is not raised in Metcalfe’s application and as such is
not discussed further herein. See HRAP Rule 40.1(d)(1) (“The
application . . . shall contain . . . [a] short and concise statement of the
questions presented for decision[.] . . . Questions not presented according
to this paragraph will be disregarded.”).

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on appeal on April 24, 2012.

                          II.   Standards of Review

A.     Motion to Dismiss an Indictment

             “A [trial] court’s ruling on a motion to dismiss an

indictment is reviewed for an abuse of discretion.”              State v.

Akau, 118 Hawai#i 44, 51, 185 P.3d 229, 236 (2008) (citation

omitted).      In addition, “[t]he trial court abuses its discretion

when it clearly exceeds the bounds of reason or disregards rules

or principles of law or practice to the substantial detriment of

a party litigant.       The burden of establishing abuse of discretion

is on appellant, and a strong showing is required to establish

it.”    State v. Wong, 97 Hawai#i 512, 517, 40 P.3d 914, 919 (2002)

(citation omitted).

B.     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


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

denial of fundamental rights.”        State v. Nichols, 111 Hawai#i

327, 334, 141 P.3d 974, 981 (2006) (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)).

C.   Admission of Expert Testimony

            “Generally, the decision whether to admit expert

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).

D.   Jury Instructions

                  When jury instructions or the omission thereof
            are at issue on appeal, the standard of review is
            whether, when read and considered as a whole, the
            instructions given are prejudicially insufficient,
            erroneous, inconsistent, or misleading.
                  Erroneous 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.



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State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)

(internal quotation marks, brackets, and citations omitted); see

also Nichols, 111 Hawai#i at 337, 141 P.3d at 984 (“[O]nce

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.”).

E.   Ineffective Assistance of Trial Counsel

           This court has determined,
           When reviewing a claim of ineffective assistance of
           counsel, [the appellate 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.

Wakisaka, 102 Hawai#i at 513-14, 78 P.3d at 326-27 (internal

quotation marks, citations, and footnote omitted).

                             III.   Discussion

A.   The circuit court did not abuse its discretion in denying
     Metcalfe’s motion to dismiss the amended complaint

           Metcalfe argues that the circuit court “abused its

discretion when it denied [his] [m]otion to [d]ismiss without

reviewing the grand jury and preliminary hearing transcripts.”


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As discussed below, Metcalfe’s contention is without merit

because Metcalfe did not provide the circuit court with the grand

jury or preliminary hearing transcripts.

           Metcalfe filed a motion to dismiss the amended

complaint on grounds that it violated double jeopardy and

collateral estoppel.     Attached to his motion to dismiss was a

Declaration of Counsel, which stated that the State improperly

filed the amended complaint after the grand jury returned a “no

bill.”   Defense counsel implied that, at the subsequent

preliminary hearing, Judge Florendo found probable cause only

because “the prosecutor omitted significant evidence that the

grand jury heard, some of which was exculpatory from this

preliminary examination, and thus [the court] did not have the

benefit of hearing the entire circumstances of the offense.”               In

relation to his motion to dismiss, Metcalfe asked the court to

take judicial notice of the record and transcripts of the grand

jury and preliminary hearings, but did not provide the circuit

court with these transcripts.       After hearing arguments from both

parties regarding the applicability of double jeopardy, the

circuit court orally denied the motion to dismiss on the narrow

ground that double jeopardy did not attach at the grand jury

phase of the proceeding, and as a result, the State was not

precluded from filing an amended complaint and seeking probable

cause via a preliminary hearing.

           Metcalfe’s argument that the circuit court abused its

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discretion in denying the motion to dismiss without reviewing the

grand jury and preliminary hearing transcripts is without merit.

Metcalfe did not include the relevant portions of the transcripts

with his motion to dismiss, nor did he attempt to enter the

transcripts into evidence during the hearing on the motion.

Cf. State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000)

(holding that it is the “appellant’s burden of demonstrating

error in the record” and noting that this court has previously

held that where the record was insufficient to show that the

alleged improper testimony influenced the grand jury, it will be

presumed that the indictment was found as the law directs)

(citing State v. Apao, 59 Haw. 625, 638, 586 P.2d 250, 259 (1978)

superceded by statute on other grounds as stated in Briones v.

State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 973 n.7 (1993)).

Thus, the transcripts were not before the court.           Metcalfe also

contends that the circuit court abused its discretion in denying

the motion because it stated in its written order that it

“reviewed the records and files in this case[,]” but did not

review the grand jury and preliminary hearing transcripts.

However, there is nothing to indicate that the circuit court’s

statement is erroneous, or that the circuit court did not review

the records that were before it, which, as stated, did not

include the grand jury or preliminary hearing transcripts.

          Similarly, Metcalfe’s apparent assertion that the

circuit court should have taken judicial notice of the

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transcripts lacks merit.      HRE Rule 201 allows a court to take

judicial notice of adjudicative facts that are “capable of

accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned[,]” which includes some

court records.    HRE Rule 201(b); see also Ditto v. McCurdy, 98

Hawai#i 123, 130, 44 P.3d 274, 281 (2002).         However, a court is

not required to sua sponte order transcripts when asked to take

judicial notice of prior proceedings.        Rather, a court must take

judicial notice of adjudicative facts only if “requested by a

party and supplied with the necessary information.”           HRE Rule

201(d) (emphasis added).      Here, the circuit court was not

“supplied with the necessary information” to take judicial notice

of the content of the grand jury and preliminary hearing

transcripts, because Metcalfe did not include those transcripts

in the record.

          Finally, although Metcalfe does not challenge the

substantive basis for the circuit court’s ruling in his

application, the circuit court did not abuse its discretion in

denying the motion based on the record before the court, i.e.,

the motion to dismiss and the attached declaration, Metcalfe’s

memorandum in support of his motion, the State’s memorandum and

supplemental memorandum in response to the motion to dismiss, and

the arguments of the parties during the hearing on the motion.

The circuit court denied the motion on the ground that double

jeopardy does not bar the prosecution from filing an amended

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complaint after the grand jury returned a “no bill.”             Jeopardy

does not attach at the grand jury stage, but instead “in a jury

trial[,] jeopardy attaches once the jury is empaneled and

sworn[.]”    State v. Moriwake, 65 Haw. 47, 51, 647 P.2d 705, 709

(1982).   Additionally, Metcalfe’s counsel conceded in the circuit

court that double jeopardy did not apply.          Therefore, the circuit

court did not abuse its discretion in denying Metcalfe’s motion

to dismiss on this basis.

            Accordingly, the ICA did not gravely err in rejecting

Metcalfe’s arguments on this point.         The question of whether

defense counsel was ineffective in failing to provide the grand

jury and preliminary hearing transcripts to the circuit court for

its consideration in deciding the motion is discussed infra.

B.   The circuit court did not plainly err in allowing the
     testimony of Dr. Manoukian and Detective Ah Mow

            Metcalfe argues that the ICA gravely erred in affirming

the circuit court’s decision to allow the testimony of Dr.

Manoukian and Detective Ah Mow without formally qualifying them

as expert witnesses under HRE Rule 702.          Specifically, Metcalfe

argues that the circuit court’s failure to formally qualify Dr.

Manoukian and Detective Ah Mow as experts in the field of

ballistics constituted plain error because, while the record may

establish that Dr. Manoukian was an expert in forensic pathology

and that Detective Ah Mow was an expert in the use or

identification of firearms, neither was an expert in ballistics.


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Since the State’s case relied heavily on these witnesses’

testimony regarding ballistic evidence, Metcalfe contends that

the ICA erred in concluding that any error in admission of the

testimony was harmless.

          In response to Metcalfe’s application, the State

asserts that there is a “trend” around the country and in the

Third Circuit to avoid using the term expert during a jury trial.

However, Metcalfe argues that this trend to not qualify

individuals as experts in a particular field is improper because,

as shown in this particular case, the jury was “misled into

believing that the entire content of [Dr. Manoukian’s] testimony,

including the erroneous opinion on distance, was based upon

expert qualifications.”

          Metcalfe did not object to the testimony of Dr.

Manoukian or Detective Ah Mow during trial, and accordingly, this

issue may be deemed waived.      State v. Moses, 102 Hawai#i 449,

456, 77 P.3d 940, 947 (2003) (“As a general rule, if a party does

not raise an argument at trial, that argument will be deemed to

have been waived on appeal; this rule applies in both criminal

and civil cases.”); Addison M. Bowman, Hawai#i Rules of Evidence

Manual § 103-2[1] (2010-11 ed.) (“An opponent who fails to object

is held to have waived the appellate point.”); see HRE Rule

103(a)(1) (requiring a “timely objection or motion to strike”);

State v. Crisostomo, 94 Hawai#i 282, 290, 12 P.3d 873, 881 (2000)

(“A hearsay objection not raised or properly preserved in the

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trial court will not be considered on appeal.           This is true even

where the testimony is objected to on other grounds.”) (citation

omitted); State v. Sua, 92 Hawai#i 61, 76, 987 P.2d 959, 974

(1999) (holding that the defendant waived the issue of whether

certain prior inconsistent statements were properly recorded

pursuant to HRE Rule 802.1(1)(C) because the defendant failed to

object at trial on that ground, thereby rendering those

statements admissible); State v. Samuel, 74 Haw. 141, 147, 838

P.2d 1374, 1378 (1992) (“Appellant’s attorney failed to preserve

this alleged ‘error’ by not objecting to it at trial.             The

general rule is that evidence to which no objection has been made

may properly be considered by the trier of fact and its admission

will not constitute grounds for reversal.”).

            Nevertheless, HRPP Rule 52(b) provides that “[p]lain

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.”

However, objections to the admission of incompetent evidence,

which a party failed to raise at trial, are generally not subject

to plain error review.9      State v. Wallace, 80 Hawai#i 382, 410,


      9
            The dissent argues that in State v. Schnabel, 127 Hawai#i 432, 279
P.3d 1237 (2012), this court determined that we may notice errors affecting a
defendant’s substantial rights regardless of whether an objection was raised
at trial. Dissent at 31. However, the evidentiary errors at issue in
Schnabel implicated the defendant’s right to testify. 127 Hawai#i at 461-63,
279 P.3d at 1266-68. Here, Metcalfe’s right to testify was not implicated.
Thus, plain error review is not appropriate in the circumstances of this case.
Indeed, this court has repeatedly stated that our “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
                                                                (continued...)

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910 P.2d 695, 723 (1996) (“It is the general rule that evidence

to which no objection has been made may properly be considered by

the trier of fact and its admission will not constitute ground

for reversal.     It is equally established that an issue raised for

the first time on appeal will not be considered by the reviewing

court.   Only where the ends of justice require it, and

fundamental rights would otherwise be denied, will there be a

departure from these principles.”) (citation omitted); State v.

Uyesugi, 100 Hawai#i     442, 464, 60 P.3d 843, 865 (2002) (“In the

absence of an objection and/or proper record, the admission of

the testimony and picture does not amount to plain error.”).

            Moreover, even assuming that plain error review is

available, the circuit court’s failure to formally qualify Dr.

Manoukian and Detective Ah Mow as experts in the field of

ballistics did not affect Metcalfe’s substantial rights and did

not preclude the admission of the testimony of Dr. Manoukian and

Detective Ah Mow into evidence under HRE Rule 702.

            First, the plain language of HRE Rule 702 does not

require the circuit court to formally qualify a witness as an

expert before receiving the witness’s testimony into evidence.



      9
        (...continued)
the cost of counsel’s mistakes.” State v. Fields, 115 Hawai#i 503, 529, 168
P.3d 955, 981 (2007) (citation omitted).
             Moreover, Schnabel is distinguishable from the instant case
because there, a majority of this court relied upon judicial notice in making
its determination to vacate the conviction and remand the case for a new
trial. 127 Hawai#i at 446-47, 279 P.3d at 1251-52. The majority referenced
plain error only as an alternative argument. Id.

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HRE Rule 702 states:
            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.

Id.

            The plain language of HRE Rule 702 suggests that, to

testify as an expert witness, one need only possess the requisite

“knowledge, skill, experience, training or education” to offer an

opinion on a subject requiring “scientific, technical, or other

specialized knowledge[.]”        It does not indicate that the trial

court must formally qualify a witness as an expert in front of

the jury before the witness’s testimony can properly be

admitted.10

            Indeed, there are judges that have advocated for the

elimination of the use of the term “expert” from jury proceedings


      10
            Contrary to the dissent’s assertion, the commentary to HRE Rule
702 does not require the court to state in front of the jury that an
individual is an expert in a particular field. See Dissent at 18-19. The
commentary to HRE Rule 702 provides in relevant part:

            Determination by the court that a witness qualifies as
            an expert is binding upon the trier of fact only as
            this relates to admissibility of the expert’s
            testimony. The trier of fact may nonetheless consider
            the qualifications of the witness in determining the
            weight to be given to his testimony.

            This commentary merely provides that the court’s determination
regarding admissibility is binding on the trier of fact. It does not require
that the jury be advised of the court’s determination regarding a witness’s
expertise. Thus, the dissent’s reliance on the commentary to HRE Rule 702 is
not persuasive.

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to “ensure that juries are not overwhelmed by the so-called

‘experts,’ so as to deprive them of their right to determine the

facts of a case based upon all of the evidence” and to “ensure[]

that trial courts do not inadvertently put their stamp of

authority on ‘expert’ testimony.”          See Honorable Charles R.

Richey, Proposals to Eliminate the Prejudicial Effect of the Use

of the Word “Expert” under the Federal Rules of Evidence in Civil

and Criminal Jury Trials, 154 F.R.D. 537, 558-59 (1994);11 see

also 1 McCormick on Evidence, § 13, at 69 n.14 (Kenneth S.

Bround, et al. eds., 6th ed. 2006) (noting that some courts

recognize that a finding by the court that an individual is an

expert “might influence the jury in its evaluation of the expert




      11
            The dissenting opinion implies that Judge Richey’s procedure
requires the court to make a finding in front of the jury that an individual
was qualified to render an opinion in a particular field. Dissent at 23-26.
However, as the dissent further notes, see dissent at 24, Judge Richey
proposes judicial supervision through mechanisms such as pre-trial hearings,
which occur outside of the presence of the jury. Richey, 154 F.R.D. at 542
(“As a result of barring the use of the word ‘expert’ in my courtroom, I
ensure that no untoward affiliations unfold between opinion witnesses and the
jury.”). Furthermore, Judge Richey stated, “No one seriously questions the
proposition that so-called ‘expert witnesses’ can add an aura of authority to
any asserted opinion. But it does not follow that courts and judges should
give ‘expert’ witnesses their imprimatur[.]” Id. at 545. In addition, Judge
Richey stated that under his proposal, the court would be under an obligation
to provide the jury only with a limiting or cautionary instruction concerning
the opinion testimony. Id. at 551. Thus, Judge Richey’s proposal does not
require the court making a finding in front of the jury, but only requires the
jury be given an instruction regarding the opinion testimony. See also People
v. Lamont, 21 A.D.3d 1129, 1132 (N.Y. App. Div. 2005) (“The court is not
required to explicitly declare a witness an expert before permitting such
testimony[.]”).
            In the instant case, and contrary to the dissent’s contention that
the jury was not given guidance to evaluate the testimony of Dr. Manoukian and
Detective Ah Mow, see dissent at 26, the jury was given an instruction on the
opinion testimony.

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and the better procedure is to avoid an acknowledgment of the

witness’s expertise by the court”) (citation omitted).             In Barbee

v. Queen’s Medical Center, 119 Hawai#i 136, 155, 194 P.3d 1098,

1117 (App. 2008), the ICA also recognized that some trial courts

do not make any findings before the jury regarding the

qualifications of an expert witness, and determined that this

practice did not constitute an abuse of discretion.12            See also

HRE Rule 1102 (“The court shall instruct the jury regarding the

law applicable to the facts of the case, but shall not comment

upon the evidence.”).

            Although the State suggests in its response that the

failure to qualify Dr. Manoukian and Detective Ah Mow may have

been purposeful in this case, the record does not expressly

reflect a reason for the court’s approach.13          In any event,

nothing in the HRE would preclude the trial court from declining

to qualify a witness as an expert in front of the jury, so long

as the requisite foundation for the witness’s testimony is




      12
            However, the ICA also noted that the concerns raised by Judge
Richey could be addressed by other means, such as “giving cautionary
instructions to the jury regarding the weight to be given to testimony by
expert witnesses.” Id. at 155, 194 P.3d at 1117.
      13
            The fact that the court gave the State’s requested instruction,
which was “modified to eliminate use of [the] word ‘expert[,]’” lends some
support to the State’s assertion. See infra part III(C) of this opinion.
However, in the future, trial courts adopting this approach should ensure that
such a decision is reflected on the record to facilitate appellate review.

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established.14    See HRE Rule 702.      Such foundation would also

assist the jury in determining the weight to be given to the

witness’s testimony.      See Commentary to HRE Rule 702 (“The trier

of fact may nonetheless consider the qualifications of the

witness in determining the weight to be given to his

testimony.”).

            Here, Dr. Manoukian’s and Detective Ah Mow’s testimony

satisfied the foundational requirements for expert testimony set

forth in HRE Rule 702.      In order to provide expert testimony

under HRE Rule 702: (1) the witness must be qualified by

knowledge, skill, experience, training or education; (2) the

testimony must have the capacity to assist the trier of fact to

understand the evidence or to determine a fact in issue; and (3)

the expert’s analysis must meet a threshold level of reliability

and trustworthiness.      See State v. Torres (Torres I), 122 Hawai#i

2, 31, 222 P.3d 409, 438 (App. 2009) (citations omitted),

affirmed and corrected on other grounds by, State v. Torres


      14
             In addition, federal courts have held that a court’s failure to
formally qualify a witness as an expert is harmless error if the record
establishes that the witness would have been qualified as an expert under the
Federal Rules of Evidence (FRE) Rule 702. See, e.g., United States v.
Mendoza, 244 F.3d 1037, 1046-47 (9th Cir. 2001) (assuming arguendo that the
district court erred in admitting testimony as the opinion of a percipient
witness when it was expert opinion, such error was harmless because the record
showed that the witness could have been qualified as an expert under FRE Rule
702); United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997);
United States v. Ramsey, 165 F.3d 980, 984 (D.C. Cir. 1999) (concluding that
there was no plain error, where, “[a]lthough the trial judge never formally
qualified [the witness] as an expert witness, his testimony functionally
satisfied the requirements for expert testimony set forth in [FRE] 702”).
Because the Hawai#i rules are patterned after the federal rules, see State v.
Ito, 90 Hawai#i 225, 236, 978 P.2d 191, 202 (App. 1999), federal cases are
instructive.

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(Torres II), 125 Hawai#i 382, 262 P.3d 1006 (2011).            This court

has noted:
            The reliability requirement refers to evidentiary
            reliability—that is trustworthiness. Under this
            prong, 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. In this context, the trial court
            is assigned the task of ensuring that an expert’s
            testimony both rests on a reliable foundation and is
            relevant to the task at hand.

Torres I, 122 Hawai#i at 31, 222 P.3d at 438 (citation omitted)

(emphasis in original).

            In this case, both Dr. Manoukian and Detective Ah Mow

were qualified by “knowledge, skill, experience, training, or

education” to provide the testimony that Metcalfe now challenges,

and their testimony had “a reliable basis in the knowledge and

experience” of their respective disciplines.15          See id.

      1.    Dr. Manoukian

            Dr. Manoukian testified inter alia that: he is employed

as a pathologist and serves as the laboratory director at Maui

Memorial Medical Center; he is the coroner’s physician for the

County of Maui, Hawai#i County and the County of Kaua#i; he is a

physician and surgeon licensed in the State of Hawai#i; he is

certified by the American Board of Pathology in anatomic and

clinical pathology and forensic pathology; he has performed over



      15
            Although not disputed, we note that the testimony of Dr. Manoukian
and Detective Ah Mow also had the capacity to “assist the trier of fact to
understand the evidence or to determine a fact in issue” because the testimony
was relevant to rebut Metcalfe’s theory of self-defense and his claim that he
shot at Kuahuia as Kuahuia charged toward him.

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3,000 autopsies; he has observed in excess of a hundred cases in

which the cause of death was injury caused by a firearm; he has

received ballistics training with the Maryland State Crime Lab;

and he has had autopsy training with respect to death due to

firearms.    Accordingly, Dr. Manoukian was qualified by

“knowledge, skill, experience, training, or education,” to

testify that Kuahuia’s death was caused by a shotgun injury to

the back at a distance of approximately 60 feet.

            Nevertheless, Metcalfe, citing Torres I, specifically

challenges Dr. Manoukian’s qualifications, on the ground that Dr.

Manoukian acknowledged “I’m not a firearms or a ballistic

expert.”    In Torres I, the ICA vacated Torres’s murder conviction

on the ground that the circuit court erred in admitting opinion

testimony that the defendant’s gun had been fired within a

specific time frame.16     122 Hawai#i at 6, 222 P.3d at 413.         The

ICA noted that the opinion testimony was “particularly

significant” because, “[i]f the gun had been fired outside this

time frame, it could not have been used to murder [the

decedent].”    Id. at 26, 222 P.3d at 433.

            The opinion witness, Agent Robbins, inspected the gun

that had been seized from the defendant.          Id. at 27, 222 P.3d at



      16
            In Torres II, this court did not revisit the ICA’s analysis of the
evidentiary issue, but instead addressed a separate issue as to whether both
federal law and the Hawai#i Constitution should have been considered in ruling
on the defendant’s motion to dismiss. Torres II, 125 Hawai#i at 400, 262 P.3d
at 1024. This court affirmed the ICA’s judgment, as corrected by the ruling
in Torres II.

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434.    Agent Robbins testified over objection that he believed the

gun had been recently fired, based on his examination of the gun.

Id.    Specifically, Agent Robbins testified that powder residue

characteristic of a fired revolver was present in the barrel and

appeared to be moist.        Id.   Agent Robbins’ “experience

indicate[d] that powder residue tends to dry out after a period

of time.”      Id.   Agent Robbins also testified that powder residue

changes color with age, and will change to a “rust color.”                Id.

However, the powder residue in the gun Agent Robbins examined was

“fresh and black gray.”        Id.   Upon further questioning, Agent

Robbins opined that gun had been fired “within the same day,

probably about eight hours or so[,]” based on “the moistness of

the powder residue and the fact that the weapon had no indication

of rust.”      Id. (brackets omitted).

             Agent Robbins had “significant experience in the use

and maintenance of firearms.”          Id. at 26, 222 P.3d at 433.

However, on cross-examination, he acknowledged that his opinion

was based on his “personal experience handling firearms” and not

on any scientific or comparison studies.            Id. at 27, 222 P.3d at

434.    He further acknowledged, “I’m not an expert – I have no

knowledge of a scientific test that would determine that.”                Id.

at 28, 222 P.3d at 435.

             The ICA concluded that Agent Robbins’ testimony did not

constitute lay opinion testimony because the State did not

establish that his opinions as to the time frame were “rationally

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based on his perception or his personal knowledge.”           Id. at 29,

222 P.3d at 436.    Specifically, the State did not establish that

“Agent Robbins had personal knowledge of the moisture content or

appearance of gunpowder residue in a revolver at various times

after the gun had been fired.”       Id.

          Additionally, the ICA concluded that the State failed

to “satisfy the threshold foundational requirement of showing

that Agent Robbins was qualified as an expert[.]”           Id. at 31, 222

P.3d at 438.   The ICA concluded:
          The State failed to satisfy the threshold foundational
          requirement of showing that Agent Robbins qualified as
          an expert by knowledge, skill, experience, training,
          or education with respect to the time-frame testimony.
          Indeed, Agent Robbins readily acknowledged that he was
          not an expert in the field of firearms analysis or in
          how to determine the time frame in which a gun had
          been fired. He admitted that he had not performed
          laboratory work or received special schooling in the
          analysis of firearms discharges and that he had never
          before testified as a firearms expert or rendered an
          opinion on whether a firearm had been recently fired.

          In addition, the State failed to adduce evidence
          demonstrating that Agent Robbins’s time-frame
          testimony had a reliable basis in the knowledge and
          experience of his or her discipline and rests on a
          reliable foundation. Agent Robbins stated that he was
          not aware of any test that could determine the time
          frame in which a gun had been fired and did not know
          how to determine the age of gunpowder residue, even
          though his time-frame testimony was principally based
          on the moistness of the power residue. Agent Robbins
          further acknowledged that his time-frame testimony was
          not based on any scientific studies. We have not been
          cited any authority verifying that the observations
          made by Agent Robbins would provide a reliable basis
          for determining the time frame in which a gun had
          previously been fired.

Id. (internal quotation marks and citations omitted).

          The ICA further concluded that the erroneous admission

of Agent Robbins’ testimony was not harmless beyond a reasonable


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doubt.   Id.   Accordingly, the ICA vacated the defendant’s

conviction.    Id. at 34, 222 P.3d at 441.

           The instant case is distinguishable from Torres I.

Here, the record establishes that Dr. Manoukian was capable of

concluding that Kuahuia’s cause of death was a shotgun injury to

the back at a distance of approximately 60 feet, and that this

conclusion had “a reliable basis in the knowledge and experience

of [Dr. Manoukian’s] discipline and rests on a reliable

foundation.”    See id. at 31, 222 P.3d at 438.        Dr. Manoukian, a

trained, licensed, and certified forensic pathologist, stated

that the formula he used to determine the distance from the

shotgun to the decedent was taken from “textbooks of forensic

pathology” whereby the “diameter of the pellet injury times three

equals . . . the [approximate] distance in feet between the

decedent and the shotgun.”      Metcalfe never objected to Dr.

Manoukian’s distance formula at trial.         Dr. Manoukian has

observed in excess of a hundred cases in which the cause of death

was injury caused by a firearm, of the over 3,000 autopsies that

he performed as coroner’s physician for the Counties of Maui,

Hawai#i, and Kaua#i.    He has also received ballistic and firearm

related autopsy training.      These facts establish that Dr.

Manoukian has sufficient “knowledge, skill, experience, training

or education[,]” see Neilsen v. American Honda Motor Co., Inc.,

92 Hawai#i 180, 188, 989 P.2d 264, 272 (App. 1999), to determine

Kuahuia’s cause of death and the approximate distance of Kuahuia

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from the shotgun at the time it was fired.         Thus, his testimony

meets the foundational requirements of HRE Rule 702 and was

properly allowed by the circuit court.

          Moreover, Agent Robbins’ admission in Torres I that he

was not an expert was not the sole factor the ICA relied on in

concluding that his opinion testimony was inadmissible.            Rather,

as noted supra, the ICA focused extensively on Agent Robbins’

lack of training or experience in determining when a firearm had

been fired.   Id. at 31, 222 P.3d at 438.        In contrast, here, the

record establishes that Dr. Manoukian was qualified to conclude

that Kuahuia’s cause of death was a shotgun injury to the back at

a distance of approximately 60 feet.        Thus, Metcalfe’s argument

that Dr. Manoukian’s testimony was inadmissible under Torres I,

because he acknowledged “I’m not a firearms or a ballistic

expert” is without merit.

     2. Detective Ah Mow

          Similarly, the State established Detective Ah Mow’s

qualifications to testify regarding the pattern tests performed

with the shotgun recovered during the investigation.            Detective

Ah Mow testified that he is a certified firearms instructor for

the HCPD; he has been an instructor with the Special Response

Team (SRT); he is certified regarding firearms by the FBI and the

National Rifle Association; and he has received shotgun training

by the FBI.   This testimony established that he had the requisite

“skill, knowledge, experience, training or education” with the

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use, identification, and operation of shotguns to testify

regarding the pattern tests.      Detective Ah Mow also provided

additional testimony regarding his knowledge of firearms.             For

example, he testified that a “choke” may be located at the end of

the barrel of a shotgun and measures the “rate of the spread

pattern that goes out of the shotgun as it reaches its target.”

He testified that the shotgun recovered in this case did not have

a choke, but noted that a choke “definitely would . . . affect

the spread pattern.”

           Detective Ah Mow’s knowledge of firearms was also

sufficient to establish that his testimony regarding the tests he

conducted had “a reliable basis in the knowledge and experience

of [his] discipline and rest[] on a reliable foundation.”             See

Torres I at 31, 222 P.3d at 438.       The pattern tests he performed

involved firing the shotgun recovered during the investigation

and ammunition identical to that recovered from Metcalfe’s home

at eight standard police silhouette targets, which were placed at

various distances.    Detective Ah Mow testified as to what he

observed on each of the silhouettes after they were fired upon.

Thus, Detective Ah Mow’s testimony was limited to establishing

the effect of firing distance on the spread pattern of shotgun

pellets.   His expertise in the use and operation of firearms was

sufficient, in this instance, to meet the foundational

requirements of HRE Rule 702.

           Thus, Detective Ah Mow’s testimony is also

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distinguishable from that presented in Torres I.            There, Agent

Robbins “had not performed laboratory work or received special

schooling” in the analysis of residue found in a firearm.              Torres

I, 122 Hawai#i at 31, 222 P.3d at 438.         In addition, he was not

aware of any test that would confirm his opinion as to when the

gun had been fired.      Id.   In contrast, here, the test that

Detective Ah Mow performed did not involve specialized technical

expertise beyond the scope of his knowledge concerning the

operation of shotguns.17

            Accordingly, the testimony of Dr. Manoukian and

Detective Ah Mow was properly received as expert testimony under

HRE Rule 702 because: (1) their testimony evidenced that they

were qualified by skill, knowledge, experience, training or

education; (2) their testimony had the capacity to assist the

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


      17
            Contrary to the dissent’s assertion, there is nothing that
requires an expert to use a “scientific test.” Dissent at 13-16. HRE Rule
702 merely requires the court to consider the “trustworthiness and validity of
the scientific technique or mode of analysis employed by the proffered
expert.” Additionally, in Torres I, the only mention of “scientific test” was
from Agent Robbins’ testimony that he had “no knowledge of a scientific test
that would determine” when a gun was fired. 122 Hawai#i at 27-28, 222 P.3d at
434-35. Torres I does not, contrary to the dissent’s implication, set forth a
requirement that an expert use a “scientific test.” See Dissent at 14 n.9.
            Furthermore, in contrast to the dissent’s conclusion that “only a
ballistics expert could establish whether or not results from the test
retained external validity when transferred to the crime scene[,]” dissent at
14, Detective Ah Mow did not testify to the ultimate issue in this case, i.e.,
he did not conclude at what distance Metcalfe shot Kuahuia. Detective Ah Mow
testified only that he conducted a test, which involved firing a shotgun under
“ideal laboratory condition[s]” at eight targets placed at various distances.
Although the prosecutor could draw reasonable inferences from the evidence
during closing argument, see State v. Clark, 83 Hawai#i 289, 304, 926 P.2d
194, 209 (1996), the record is clear that Detective Ah Mow did not testify as
to what he believed was the distance between Metcalfe and Kuahuia when the
latter was shot in the back.

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in issue; and (3) their analysis met a threshold level of

reliability and trustworthiness.18         See Torres I, 122 Hawai#i at

31, 222 P.3d at 438.      Finally, we note that it is unclear what

effect these witnesses’ testimony with regard to distance may

have had, given that the appearance of gunshot wounds only on

Kuahuia’s back substantially undermined Metcalfe’s theory of

self-defense.

C.    The circuit court’s substitution of the words “opinion
      testimony” for the word “expert” in its jury instructions
      did not constitute plain error because the given
      instructions as a whole accurately stated the law

            Although Metcalfe did not object to the “opinion

testimony” instruction at trial, he argues on appeal that the

standard jury instruction on expert testimony was erroneously

modified by the circuit court’s substitution of the words

“opinion testimony” for the word “expert,” and that the

instruction improperly blended HRE Rules 701 and 702.             This

argument is without merit because the “opinion testimony”

instruction accurately stated the law.

            “When jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading.”             Nichols,



      18
            Given our conclusion, we need not address, as the dissent does,
the State’s argument that it was a “legitimate trial tactic” for Metcalfe not
to object to the qualifications of Dr. Manoukian and Detective Ah Mow.
See Dissent at 26-28.

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111 Hawai#i at 334, 141 P.3d at 981.        The failure to strictly

conform to a Hawai#i Standard Jury Instruction Criminal (HAWJIC)

standard jury instruction “does not automatically result in an

incomplete and confusing jury instruction.”          State v. Sawyer, 88

Hawai#i 325, 335, 966 P.2d 637, 647 (1998).         Furthermore, “[t]he

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.”       Id. at 330, 966 P.2d at 642.

          The circuit court gave the following instructions on

opinion testimony:
                During the trial you heard testimony of one or
          more witnesses who were allowed to give opinion
          testimony.
                Training and experience may make a person
          qualified to give opinion testimony in a particular
          field. The law allows that person to state an opinion
          about matters in the field. Merely because such a
          witness has expressed an opinion does not mean,
          however, that you must accept this opinion. It is up
          to you to decide whether to accept this testimony and
          how much weight to give it. You must also decide
          whether the witness’s opinions were based on sound
          reason, judgment and information.

(Emphasis added).

          HAWJIC 4.05 (Dec. 1991), concerning expert witnesses,

states:
                During the trial you heard the testimony of one
          or more witnesses who were described as experts.
                Training and experience may make a person an
          expert in a particular field. The law allows that
          person to state an opinion about matters in that
          field. Merely because such a witness has expressed an
          opinion does not mean, however, that you must accept
          this opinion. It is up to you to decide whether to
          accept this testimony and how much weight to give it.
          You must also decide whether the witness’s opinions
          were based on sound reasons, judgment and information.


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(Emphasis added).

          The only difference between the instructions given and

HAWJIC 4.05 is that the circuit court used the phrase “allowed to

give opinion testimony” instead of the phrase “described as

experts” in the first paragraph and used the phrase “qualified to

give opinion testimony” instead of the phrase “an expert” in the

second paragraph.    The substituted phrases did not materially

alter the instruction, inasmuch as the jury was still informed

that it needed to decide whether to accept the testimony of these

individuals and to determine how much weight to give to this

testimony.

          The instructions were not erroneous because they

provided the jurors with understandable guidelines to assist them

in evaluating expert testimony admitted pursuant to HRE Rule 702

in the circumstances of this case.        As previously discussed, the

testimony of Dr. Manoukian and Detective Ah Mow was proper expert

testimony under HRE Rule 702.       The jury was informed that it

needed to determine whether it would accept the testimony, the

weight to give the testimony, and “whether the witnesses’s

opinions were based on sound reasons, judgment, and information.”

Because the trial court is not required to strictly conform to a

standard jury instruction and because the instructions, as a

whole, accurately stated factors for the jury to consider in

evaluating expert testimony admitted under HRE Rule 702, the


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circuit court did not plainly err in giving the instructions.

D.    The circuit court did not plainly err in instructing the
      jury on self-defense

            Although Metcalfe did not object to the self-defense

instruction given at trial, he asserts on appeal that the self-

defense instruction was “incomplete, misleading, and contributed

to [his] conviction.”      Specifically, Metcalfe argues that: (1)

this court’s decision in State v. Van Dyke, 101 Hawai#i 377, 379-

88, 69 P.3d 88, 90-99 (2003), was applicable to this case; (2)

the omission of the definition of “confinement” constituted

error; (3) the self-defense instruction along with the ICA’s

decision in State v. Lubong, 77 Hawai#i 429, 886 P.2d 766 (App.

1994), erroneously uses the phrase “reasonably prudent person” as

opposed to “reasonable person”; (4) further clarification of the

subjective test was necessary; and (5) the Lubong portion of the

instructions did not specify that the State had a duty to

disprove self-defense beyond a reasonable doubt.            As discussed

below, Metcalfe’s contentions are without merit.

            First, Metcalfe asserts that, under Van Dyke, the self-

defense instruction should have “first require[d] the jury to

determine the degree of force, i.e. ‘force’ or ‘deadly

force[.]’”19   However, Van Dyke does not stand for this

      19
            In footnote 5 of his application, Metcalfe points out that this
court has “since repealed the standard self-defense instruction in effect at
the time of [Metcalfe’s] trial” and that the instruction now requires the jury
to first determine whether “force” or “deadly force” was used. However, the
amendment does not appear to reflect a change in the substantive law regarding
                                                                (continued...)

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proposition.     There, the defendant, Montez, was charged with the

murder of Henry Paoa after an incident wherein the two men

engaged in a physical altercation.          Van Dyke, 101 Hawai#i at 379-

81, 69 P.3d at 90-92.       During the altercation, Montez subdued

Paoa by “thrust[ing]” his head into the ground.            Id. at 380, 69

P.3d at 91.     At trial, Montez asserted self-defense.           Id. at 384,

69 P.3d at 95.      The jury was instructed on the justifiable use of

“deadly force,” but was not instructed on the justifiable use of

“force,” even though the defendant expressly disputed whether his

use of force constituted “deadly force.”           Id. at 387, 69 P.3d at

98.   The defendant was subsequently found guilty.            Id.   On

appeal, this court determined that the circuit court erred in

failing to instruct the jury on the use of “force,” in addition

to the use of “deadly force.”         Id. at 387-88, 69 P.3d at 98-99.

In contrast, here, the jury was instructed on both “force” and

“deadly force.”      Van Dyke did not hold that the jury must first

determine which kind of force was used, and Metcalfe’s reliance

on Van Dyke is therefore misplaced.

            Second, Metcalfe appears to argue that the circuit

court should have instructed the jury regarding the relationship



      19
        (...continued)
self-defense, but instead appears to provide the jury with more specific
instructions, depending on whether “force” or “deadly force” is at issue. In
any event, the HAWJIC are not law, and a court is not bound by the standard
jury instruction. See HAWJIC introduction (noting that “the Hawai#i Supreme
Court has not approved the substance of any of the pattern instructions”);
State v. Toro, 77 Hawai#i 340, 348, 884 P.2d 403, 411 (App. 1994) (noting that
circuit courts are not required to give standard jury instructions).

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between “confinement” and self-defense pursuant to HRS § 703-

304(6).   HRS § 703-304(6) provides, “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.”   Metcalfe appears to argue that he used protective force

in confining Kuahuia by telling him to get on the ground and, the

“jury could have prematurely concluded that self-defense did not

apply” because there was no instruction on confinement.

However, the use of confinement as protective force is not

applicable in this case.      Metcalfe was not charged with assault

for confining Kuahuia to the ground, for which an instruction

regarding confinement may be warranted, but rather was charged

with murder in the second degree for firing a shotgun at Kuahuia

resulting in Kuahuia’s death.       The State did not rely at trial on

a theory that Metcalfe unlawfully confined Kuahuia, and thus, it

was not plain error to fail to sua sponte instruct the jury on

confinement.

           Metcalfe then challenges the portion of the self-

defense instruction given to the jury that was based on Lubong.

In Lubong, the ICA articulated a two-prong framework for

assessing a defendant’s claim of self-defense:
           The first prong is subjective; it requires a
           determination of whether the defendant had the
           requisite belief that deadly force was necessary to


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          avert death, serious bodily injury, kidnapping, rape,
          or forcible sodomy.
          . . . .
          If the State does not prove beyond a reasonable doubt
          that the defendant did not have the requisite belief
          that deadly force was necessary, the factfinder must
          then proceed to the second prong of the test. This
          prong is objective; it requires a determination of
          whether a reasonably prudent person in the same
          situation as the defendant would have believed that
          deadly force was necessary for self-protection.

77 Hawai#i at 433, 886 P.2d at 770 (citation omitted).

          Thus, Lubong requires that the factfinder consider

whether the use of force was both subjectively necessary and

objectively reasonable to determine if self-defense is

applicable.   This court expressly approved of the language used

in Lubong in State v. Culkin, 97 Hawai#i 206, 215, 35 P.3d 233,

242 (2001).

          Metcalfe argues that the omission of language to

explain the subjective portion of self-defense made the

instruction in this case incomplete and misleading.           In regard to

the subjective prong of self-defense, the jury was instructed:
          For this part of the test, you should place yourself
          in the shoes of the defendant. If you find that
          Defendant did not have the subjective belief that the
          force he used was immediately necessary to protect
          himself on the present occasion against the use of
          unlawful force by the other person, as set forth
          above, then the State has disproven the defense of
          self defense. If the State has not disproven
          Defendant’s subjective belief, then you should go on
          the second part of the test [sic].

          Metcalfe asserts that the court should have explained

that the jury must “determine the point of view which the

defendant had at the time of the incident, and view the conduct

of the [decedent] with all its pertinent sidelights as the


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defendant was warranted in viewing it.”         (Quoting Lubong, 77

Hawai#i at 433, 866 P.3d at 770).       Metcalfe’s argument is without

merit.   Here, the jury was instructed that, with regard to the

subjective part of the self-defense test,
           you should place yourself in the shoes of the
           defendant. If you find that Defendant did not have
           the subjective belief that the force he used was
           immediately necessary to protect himself on the
           present occasion against the use of unlawful force by
           the other person, as set forth above, then the State
           has disproven the defense of self defense. If the
           State has not disproven Defendant’s subjective belief,
           then you should go on the second part of the test
           [sic].

(Emphasis added).

           Lubong requires the jury to “determine the point of

view which the defendant had at the time of the incident”;

similarly, in the present case, the jury was instructed to “place

yourself in the shoes of the defendant.”         Lubong also provides

that the jury view the conduct of the decedent with “all its

pertinent sidelights as the defendant was warranted in viewing

it”; here, the jury was told to assess Metcalfe’s “subjective

belief.”   “Subjective” is commonly understood as “[b]ased on an

individual’s perceptions, feelings, or intentions, as opposed to

externally verifiable phenomena[.]”        Black’s Law Dictionary 1561

(9th ed. 2009).    Accordingly, reading the instructions as a

whole, the omission of the specific language of Lubong was not

necessary to further explain the subjective test.

           Metcalfe also asserts that the objective portion of the

self-defense instruction was erroneous and misleading.              The jury


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was instructed:
          Secondly, you should determine whether a reasonably
          prudent person in the same situation as the Defendant
          would have believed that the force used was necessary
          against the use of unlawful force. If the State has
          shown that a reasonably prudent person in the same
          situation as the defendant would not have believed
          that the force was so necessary, then you must reject
          the defense of self defense.

(Emphasis added).

          Metcalfe asserts that the circuit court’s substitution

of “reasonably prudent person” for “reasonable person” “created a

higher standard than what was actually required under that

statute[.]”    In Lubong, the ICA held that the defense of self-

defense requires an objective determination as to whether a

“reasonably prudent person in the same situation as the defendant

would have believed that deadly force was necessary for self-

protection.”   77 Hawai#i at 433, 886 P.2d at 770.         Metcalfe

attempts to distinguish “reasonable person” as provided in HRS

§ 703-304 and “reasonably prudent person” by citing to the

definition of “prudent” as “[h]andling practical matters

judiciously[,]” “[m]anaging carefully[,]” and “[b]ehaving

circumspectly[.]”    His attempt to distinguish “reasonable person”

from “reasonably prudent person” is without merit because the

terms are interchangeable and a reasonable juror would not

believe there was a difference between the two terms.             See

Black’s Law Dictionary 1380-81 (9th ed. 2009) (noting that

“reasonable person” is “[a]lso termed . . . reasonably prudent

person[.]”).   Moreover, Metcalfe presents no further argument in

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support of overturning Culkin or Lubong.         Accordingly,

instructing the jury that it should assess Metcalfe’s claim of

self-defense from the standpoint of a “reasonably prudent person”

was not plainly erroneous.

          Finally, Metcalfe asserts that the Lubong portion of

the instruction failed to provide that the State must disprove

self-defense “beyond a reasonable doubt,” even though he

acknowledges that, when viewed as a whole, other portions of the

self-defense instruction contained the correct standard.

Metcalfe’s argument is unpersuasive.        As Metcalfe acknowledges,

immediately preceding the Lubong portion of the self-defense

instruction, the jury received an instruction as to the burden of

the State:
                Justifiable use of force, commonly known as self
          defense is a defense to the charge of Murder in the
          Second Degree and Manslaughter. Once there is any
          evidence of justification, 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 this burden then you
          must find the Defendant Not Guilty of Murder in the
          Second Degree and Manslaughter.

(Emphasis added).

          Thus, the circuit court was not required to again

instruct the jury of this burden in the Lubong portion of the

instruction.

          Accordingly, the given instructions on self-defense,

when considered as a whole, were not “prejudicially insufficient,

erroneous, inconsistent, or misleading[.]”         Nichols, 111 Hawai#i


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at 334, 141 P.3d at 981.

E.   The circuit court did not plainly err in failing to sua
     sponte instruct the jury on defense of property

            Metcalfe contends that he was “entitled” to a defense

of property instruction, pursuant to State v. Stenger, 122

Hawai#i 271, 281, 226 P.3d 441, 451 (2010), because there was

“evidence, no matter how weak” that supported the jury’s

consideration of the defense of property.          Metcalfe’s argument

lacks merit because there was no evidence that the charged

offense was committed to defend Metcalfe’s property.

            Metcalfe argues that he was defending his property up

until the time that Kuahuia began approaching him, and

accordingly, the jury should have been instructed on defense of

property.    However, Metcalfe was not charged with an offense for

the events leading up to Kuahuia approaching Metcalfe.             Here,

Metcalfe was charged with Murder in the Second Degree for

allegedly shooting Kuahuia after Kuahuia approached him, and his

sole defense against the charge was self-defense.

            Moreover, there is nothing in the record to indicate

that Metcalfe fired the shotgun to protect his property.             To the

contrary, Metcalfe expressly denied firing the shotgun to protect

his property and instead testified that, as Kuahuia attacked him,

he fired three shots because he was “scared to death” and was

“thinking about [him]self.”       In addition, during closing

arguments, defense counsel argued “make no mistake[,] [t]his case


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is not about defense of property” and “[Metcalfe] shot [Kuahuia]

because he charged him.      He charged him with something that could

have slit his throat.      That’s –- that’s what this case is really

all about.    This case is about self-defense.”         Thus, a defense of

property instruction would have been contrary to the defense’s

theory of the case, i.e., that Metcalfe fired the shotgun at

Kuahuia in self-defense.       Furthermore, inclusion of a defense of

property instruction may actually have prejudiced Metcalfe

inasmuch as it could have misled or confused the jury into

thinking that Metcalfe fired the shots at Kuahuia only to defend

his property, which would undermine Metcalfe’s theory of self-

defense.    Accordingly, the circuit court did not plainly err for

failing to sua sponte instruct the jury regarding defense of

property.

F.   The circuit court did not plainly err in failing to provide
     a cautionary instruction on the use of “medical marijuana”

            Metcalfe argues that the circuit court erred in failing

to sua sponte give a cautionary instruction regarding references

during testimony and closing arguments to “medical marijuana”

because “there is a reasonable probability that the repetitive

and sustained emphasis on the medical marijuana . . . contributed

to [Metcalfe’s] conviction[.]”        However, Metcalfe does not

provide any authority that requires the circuit court to sua

sponte provide the jury with a cautionary instruction on the use

of medical marijuana.


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            Moreover, Metcalfe’s argument is without merit because

the testimony adduced at trial did not prejudice Metcalfe.

Jordan testified that he, Metcalfe, and Meech, had medical

marijuana permits, and that on May 6, 2009, he had smoked a

“small amount” that did not affect his memory of the events of

that day.    Officer Smith testified that he could smell marijuana,

but could not tell if it was coming from Metcalfe.            Metcalfe

acknowledged that he had a medical marijuana permit and that on

the day of the incident he smoked “maybe a gram” of marijuana for

his irritable bowel syndrome.        The evidence introduced regarding

medical marijuana indicated that Metcalfe had a permit to legally

possess and use the medical marijuana, and that he used marijuana

for medicinal purposes.      Therefore, the absence of a cautionary

instruction was not prejudicial.        Accordingly, the circuit court

did not plainly err in not sua sponte providing a cautionary

instruction on the use of medical marijuana.

G.   Metcalfe failed to establish that his trial counsel was
     ineffective

            Metcalfe contends that his trial counsel was

ineffective for the following reasons: (1) failing to “adequately

frame the legal challenge to the State’s re-filing of the charge

by way of preliminary hearing after the grand jury returned a ‘no

bill’” and failing to introduce the grand jury and preliminary

hearing transcripts; (2) failing to object to the testimony of

Dr. Manoukian and Detective Ah Mow, and to the modified expert


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opinion instruction; (3) disavowing the defense of property in

closing argument and not requesting a defense of property

instruction; (4) failing to object to testimony or request a

cautionary instruction regarding the medical marijuana; (5)

failing to object to the admission of numerous physical items;

(6) eliciting expert ballistics testimony from a lay police

officer witness on cross-examination, in violation of HRE Rules

701 and 702, that was harmful to Metcalfe because it “resulted in

the ‘firearm’ element possibly being proved”; (7) failing to

object to the measurements from the “Total Station Device,” which

was allegedly not properly calibrated or in proper working order;

and (8) failing to develop Dr. Manoukian’s testimony on the

potential gunshot residue.      As discussed below, Metcalfe’s claims

are without merit.

          To succeed on his claim of ineffective assistance of

counsel, Metcalfe 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

327 (citation omitted).

          First, Metcalfe argues that his trial counsel was

ineffective in arguing in his motion to dismiss that the State’s

re-filing of the complaint was barred by double jeopardy and

collateral estoppel.     Metcalfe asserts that the issue instead

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should have been framed as “prosecutorial misconduct,

impropriety, and bad faith” because the prosecutor failed to

provide exculpatory evidence at the preliminary hearing.

However, the record is insufficient to establish that Metcalfe’s

trial counsel was ineffective in this respect, because there is

nothing in the record to indicate that the State failed to

present exculpatory evidence at the preliminary hearing.

           In State v. Hall, this court determined that the State

must present the grand jury with evidence that is “clearly

exculpatory.”   66 Haw. 300, 302, 660 P.2d 33, 34 (1983).           It

appears that this court has not yet considered whether to extend

this requirement to preliminary hearings.         However, assuming that

the “clearly exculpatory” requirement applies, the record is

insufficient to determine whether the State failed to present

“clearly exculpatory” evidence at the preliminary hearing,

because the grand jury and preliminary hearing transcripts are

not contained in the record on appeal.         Moreover, Metcalfe does

not present any argument as to the nature of the exculpatory

evidence that the State allegedly failed to present.

           Metcalfe also argues that his trial counsel was

ineffective in failing to present the grand jury and preliminary

hearing transcripts to the circuit court with his motion to

dismiss.   Again, however, there is nothing in the record to

establish that the failure to admit the transcripts “resulted in

either the withdrawal of substantial impairment of a potentially

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

at 327 (citation omitted).      Without the transcripts in the

record, it is not clear that the transcripts would have supported

Metcalfe’s assertion that the State failed to present exculpatory

evidence at the preliminary hearing.        It therefore would appear

that Metcalfe’s arguments could properly be raised in a Hawai#i

Rules of Penal Procedure (HRPP) Rule 40 Petition, which would

allow Metcalfe to bring the transcripts of the grand jury and

preliminary hearings, as well as trial counsel’s reasons for

failing to include those transcripts in the record, before the

trial court to support his claim of ineffective assistance of

counsel.   See Fields, 115 Hawai#i at 529 n.17, 168 P.3d at 981

n.17 (“[W]e believe that deciding the issue at the present time,

without affording the parties the benefit of argument and the

opportunity to present a complete record, is inappropriate.”)

(emphasis added).

           Second, Metcalfe asserts that his trial counsel was

ineffective for failing to object to the testimony of Dr.

Manoukian and Detective Ah Mow, and for failing to object to the

modified “expert” opinion instruction.         As discussed supra,

however, both Dr. Manoukian and Detective Ah Mow had the

requisite “knowledge, skill, experience, training or education”

to offer an opinion on “scientific, technical, or other

specialized knowledge[,]” as required in HRE Rule 702.            Moreover,

Metcalfe used the testimony of Dr. Manoukian and Detective Ah Mow

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to establish his theory of the case, i.e., that Kuahuia was shot

from a close distance.        In addition, the given jury instruction

regarding the opinion testimony was not erroneous because it

provided the jurors with understandable guidelines to assist them

in evaluating the testimony of Dr. Manoukian and Detective Ah

Mow.    Because the testimony and instruction were proper, trial

counsel’s failure to object did not result in the “withdrawal or

substantial impairment of a potentially meritorious defense.”

See Wakisaka, 102 Hawai#i at 514, 78 P.3d at 327.             Accordingly,

trial counsel was not ineffective for failing to object to the

testimony of Dr. Manoukian and Detective Ah Mow or for failing to

object to the instruction on the opinion testimony.

             Third, Metcalfe asserts that his trial counsel was

ineffective for disavowing the defense of property and not

requesting a defense of property instruction.             As discussed

supra, a defense of property instruction was not warranted and

could have undermined Metcalfe’s theory of the case, i.e., that

he fired the shotgun in self-defense.           Thus, it was not

ineffective for Metcalfe’s trial counsel to disavow defense of

property and to not request a defense of property instruction.

See Briones, 74 Haw. at 462-63, 848 P.2d at 976 (“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.”).

             Fourth, Metcalfe’s arguments that his trial counsel was

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ineffective for failing to: (1) object to the questioning of

witnesses, including Metcalfe, about medical marijuana; (2)

object to the testimony of Officer Smith about being a drug

recognition expert and his opinion as to whether Metcalfe was

under the influence of marijuana; (3) object to the State’s

Exhibit 76, which was a photograph of the inside of Metcalfe’s

greenhouse containing Metcalfe’s medical marijuana plants; and

(4) request a cautionary instruction on the admission of the

medical marijuana evidence.

          With regard to the questioning of witnesses and

Metcalfe about the medical marijuana, Metcalfe argues that the

testimony was irrelevant and more prejudicial than probative.

However, as discussed supra, the testimony elicited regarding

medical marijuana usage was not prejudicial.          In addition,

questioning about the medical marijuana was relevant to

determining Jordan’s and Metcalfe’s perception of the events and

their ability to remember what occurred.

          With regard to Officer Smith’s testimony, Metcalfe does

not state the objection that should have been raised.            Thus, this

argument may be deemed waived.       HRAP Rule 40.1(d)(4) (“The

application . . . shall contain . . . [a] brief argument with

supporting authorities.”) (emphasis added).          In addition, Officer

Smith’s testimony was relevant and probative of Metcalfe’s

perception and ability to recall the incident.

          In regard to the photograph of Metcalfe’s medical

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marijuana plants, Detective Bird stated that the photograph

accurately depicted the scene at the time the photograph was

taken and that the plants in the photograph looked like marijuana

plants, but she “didn’t test ‘em[.]”        Any error in admission of

the photograph was harmless because Metcalfe testified that he

had a permit for ten medical marijuana plants that were in his

greenhouse, and thus, evidence regarding the marijuana plants was

not unduly prejudicial.

          With regard to the failure to request a cautionary

instruction on medical marijuana, as discussed supra part III(E)

of this opinion, a cautionary instruction was not necessary, and

thus, there was no withdrawal or substantial impairment of a

meritorious defense in failing to request such an instruction.

Accordingly, Metcalfe’s trial counsel was not ineffective for

failing to object to the medical marijuana testimony and

photograph.

          Fifth, Metcalfe asserts that his trial counsel was

ineffective for failing to object to numerous physical items “for

which no authentication or relevance was established[.]”

Specifically, Metcalfe cross-references his opening brief and

challenges the admission of a blue tank top, blue pants, light

blue shorts, a firearm, 22 unspent Winchester 12-gauge shotgun

shells, a hacksaw, a rubber slipper, three spent shotgun shells,

and pellets recovered from different organs in Kuahuia’s body.

This argument may be disregarded because Metcalfe does not

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present any argument as to how trial counsel’s failure to

challenge the admission of the physical evidence detrimentally

affected his defense.     HRAP Rule 40.1(d)(4) (“The application

. . . shall contain . . . [a] brief argument with supporting

authorities.”) (emphasis added).       Moreover, it appears that

Metcalfe relied on some of the physical evidence to support his

defense.   For example, during closing argument, Metcalfe argued

that he “subjectively believed that his life was in danger”

because Kuahuia was holding the hacksaw recovered at the scene,

which was entered into evidence by the State without objection by

defense counsel.    Accordingly, trial counsel’s decision to not

object to the admission of these items had an “obvious tactical

basis” that benefitted Metcalfe’s case.         Briones, 74 Haw. at 462-

63, 848 P.2d at 976 (“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.”).

Accordingly, trial counsel’s decision to not object to the

admission of the physical evidence “will not be subject to

further scrutiny.”    Briones, 74 Haw. at 462-63, 848 P.2d at 976.

           Sixth, Metcalfe asserts that trial counsel’s cross-

examination of Officer Smith regarding the shotgun “resulted in

the withdrawal of the potentially meritorious defense of

insufficient evidence of the ‘firearm’ element.”           Officer Smith

testified on cross-examination about the mechanism of a shotgun,

the differences between varying shotgun shells, and his prior

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experience hunting and shooting with a number 6 birdshot

ammunition.   Metcalfe’s argument lacks merit because there was

sufficient evidence of the firearm element without the testimony

of Officer Smith, specifically through the testimony of Dr.

Manoukian, who stated that Kuahuia died due to “a shotgun wound

to the back[,]” and Detective Ah Mow, who stated that a “Browning

. . . semi-automatic 12-gauge shotgun” was recovered during the

investigation.    HRS § 134-1 (1993) defines “firearm” as “any

weapon, for which the operating force is an explosive, including

but not limited to pistols, revolvers, rifles, shotguns,

automatic firearms . . . .”      (Emphasis added).      In addition,

Metcalfe himself testified that there was a bright flash of light

when he pulled the trigger and that he fired a “shotgun.”

Accordingly, Metcalfe was not denied a potentially meritorious

defense.

            Seventh, Metcalfe’s argument that his trial counsel was

ineffective for failing to object to the measurements from the

Total Station device is also without merit.          Metcalfe asserts

that the failure to object to the admission of the measurements

resulted in “the substantial impairment of [Metcalfe’s] self-

defense.”   Specialist Wong testified that she was asked to take

measurements of the scene, and she used a Total Station device to

measure the distance between objects recovered from the scene,

which “appear[ed] to be working as it should” and gave no

indication that data recovered was wrong.         On cross-examination,

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Specialist Wong testified that she did not know if the Total

Station device used to measure the distance between multiple

objects recovered from the scene had been calibrated.            It appears

that trial counsel made a strategic decision to not object to the

admission, but instead impeached the witness on cross-

examination.   See Briones, 74 Haw. at 462-63, 848 P.2d at 976

(“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.”).          In addition, it

appears that Metcalfe relied upon one of the Total Station

device’s measurements to support his theory of the case.

Specialist Wong testified that, using the Total Station, she

measured the distance between a hacksaw and the closest shell

casing as being approximately 47.8 feet.         In closing arguments,

Metcalfe, appearing to rely on the measurement between the shell

casing and the hacksaw, argued that Kuahuia ran “47 feet” with

the hacksaw before he dropped it.         In sum, Metcalfe contended

that Kuahuia had the hacksaw as he tried to break into Metcalfe’s

greenhouse, charged Metcalfe while holding the hacksaw, and

subsequently dropped the hacksaw 47 feet away from the

greenhouse.    Accordingly, trial counsel made a strategic decision

to rely on one of the measurements obtained from the Total

Station device to support his theory of the case.           See id.

          Assuming arguendo that the admission of the

measurements was error, such error was harmless.           In the instant

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case, there was other evidence concerning the distance between

the casings and the hacksaw at the time of the shooting.

Numerous photographs were entered into evidence by the State,

without objection by the defendant at trial or on appeal, that

accurately depicted the scene of the incident and generally

depicted the distance between the hacksaw and the used shotgun

shells.    For example, State’s Exhibit 86 depicts a view “from the

top of [Metcalfe’s] driveway looking down” towards the direction

that Kuahuia’s body was found, and shows two of the used shotgun

shells and the small hacksaw at a further distance.           Thus,

assuming arguendo that the admission of the data from the Total

Station device was error, it was harmless.         Accordingly, Metcalfe

does not show that the error resulted in the withdrawal or

substantial impairment of a potentially meritorious defense.

            Eighth, Metcalfe’s assertion that his trial counsel was

ineffective for failing to develop Dr. Manoukian’s testimony as

to whether there was gunshot residue on Kuahuia’s hand lacks

merit.    On cross-examination, Detective Iwamoto stated that she

could not recall if Dr. Manoukian performed a gunshot residue

test, which involves performing a swab of the decedent’s hand, to

determine if Kuahuia had gunshot residue on his hand.            Metcalfe

uses trial counsel’s questioning of Detective Iwamoto about

whether gunshot residue was present on Kuahuia’s hand as an

opportunity to support his argument that Dr. Manoukian should

have been similarly questioned about the presence of gunshot

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residue because “[t]he presence of gunshot residue on [Kuahuia’s]

hands would contradict the prosecution’s theory that the shotgun

was fired from a 60-foot distance[.]”        There was no evidence

adduced, however, that suggested that gunshot residue was indeed

on Kuahuia’s hand, and any cross-examination of Dr. Manoukian on

this point would have been of limited value.          Thus, Metcalfe

fails to show that trial counsel’s failure to question Dr.

Manoukian about the gunshot residue impaired a potentially

meritorious defense.

          Accordingly, Metcalfe failed to establish that his

trial counsel was ineffective.

                            IV.   Conclusion

          For the reasons set forth in this opinion, we affirm

the ICA’s judgment on appeal, which affirmed the circuit court’s

March 25, 2010 judgment of conviction and sentence.

Summer M.M. Kupau for             /s/ Mark E. Recktenwald
petitioner
                                  /s/ Paula A. Nakayama
Ricky R. Damerville for
respondent                        /s/ Sabrina S. McKenna




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