*1 process ipation the review benefits society parties all involved and as a whole. added). (emphasis
Id. purpose
Contrary expressly to the stated HEPA, prevent- public intent participating
ed from in an environmental Superferry project by process for the
review grant exemption require-
DOT’s of an chapter exemption 343. The
ments of HRS erroneously granted DOT considered
only physical improvements to Kahului and did not consider the
harbor isolation
secondary impacts on the environment Super-
may result from the use of the Hawaii
ferry conjunction improve- the harbor society parties “All as a
ments. involved public had the
whole” would have benefitted participate in the
been allowed to review
process Superferry project, as legislature
envisioned when it enacted Policy Act.
the Hawaii Environmental foregoing, vacate the
Based on the we July judgment.
circuit court’s 2005 final order, August
As indicated in our we instructed the circuit court to enter
summary judgment Appellants on in favor of request for an environ-
their claim as to the remanded the case
mental assessment and disposition
for such other and further
remaining may appropriate. be claims as
STATE
Appellee
v. MANEWA, Jr.,
Isaac K.
Petitioner/Defendant-
Appellant.
No. 27554.
Supreme Court Hawai'i. 12, 2007.
Sept.
345 *2 imprisonment to a term
sentenced (20) years mandatory mini- twenty with a 8; year for a term mum of one Count imprisonment years for ten Choy, petitioner/defendant- D. Glenn *3 mandatory minimum six for Count 9. months application. appellant, on the hold that the evidence was insufficient We weight dangerous to establish the NAKAYAMA, ACOBA, DUFFY, JJ.; required proved beyond to be a rea- drugs LEVINSON, J., Concurring Separately, with charges. doubt under Accord- sonable MOON, C.J., joins. and with whom 22, January ingly, judgment is 2007 ICA by ACOBA, Opinion of the Court J. reversed, 28, 2005 September the court’s vacated, judgment is remand- and the case K. Petitioner/Defendant-Appellant Isaac disposition for in with this ed accordance (Petitioner) Manewa, application Jr. filed an opinion. (application) on March for writ of certiorari1 19, 2007, requesting that court review I. judgment of the Intermediate Court (the ICA)2 22, January Appeals filed on 28, 2007, affirming September judg- following The facts were taken from (the court). ment of the first circuit court3 application and the briefs. charged a Petitioner was in Count 8 of Feb- 11, 26, 29, ruary Promoting January February a 2004 indictment with On [and] Gabur, working Dangei'ous Drug Degree, police Ray HRS officer' First 712-1241(l)(b)(ii)(A) cover, bought § in (Supp.2003)4; methamphetamine under female, Promoting Dangerous Drug her for arranged Count 9 a from a with with buy Degree, February § in HRS 712- 2004. On the Second another (1993 1242(l)(b)(i) 13, 2004, [Petitioner], February acting & in Supp.2003)5; and in Drug [place], tivo Count 10 Unlawful Use of Para- handed Gabur with female’s substance, 329-43.5(a) (1993). phernalia, containing crystalline § He a packets HRS exchange was convicted under Counts 8 and 9 was in $600. [Petitioner] (HRS) dangerous drug degree promoting 1. the first Pursuant to Hawaii Revised Statutes a (Supp.2006), may appeal person knowingly: party § a if the 602-59 (the appellate court decision of the intermediate ICA) (b) only by application a to this court for Distributes: 9(a). § In writ of certiorari. See HRS 602-5 ap- (ii) determining accept reject preparations, whether to or One or more com- certiorari, mixtures, plication aggre- writ of reviews pounds, this court or substances of an weight gate the ICA decision for: of: more, (A) One-eighth contain- ounce or fact; (1) of law or Grave errors or of heroin, morphine, ing methamphetamine, or (2) decision of Obvious inconsistencies salts, any respective iso- cocaine or their court, supreme [ICA] mers, and salts of isomers[.] decisions, decision, federal its own added.) (Emphasis magnitude of such errors or inconsis- and the dictating appeal. tencies need for further provides pertinent part: § 5.HRS 712-1242 602-59(b). grant § a or denial of HRS discretionary petition with this for certiorari Promoting dangerous drug in the second 602-59(a). §HRS court. See person A offense of commits the degree. dangerous drug promoting a in the second Judge James The SDO was issued then-Chief 2. person knowingly: degree if the Judges Wa- Associate Corinne K.A. S. Burns and Foley. R. and Daniel tanabe (b) preparations, Possesses one or more mixtures, compounds, anof or substances presided. 3. Richard The Honorable K. Perkins aggregate of: more, (i) containing One-eighth ounce оr stated, (Supp.2003) in rele- HRS 712-1241 § heroin, methamphetamine, morphine, co- part, vant as follows: salts, respective iso- caine or of their mers, Promoting dangerous drug isomers[.] and salts or in the first person (Emphasis A commits the offense of degree. subsequently into custody[.] taken Precisely [Fol- its mechanisms search, lowing know, Petitioner found wouldn’t but I Pve know been currency, scale, lighter, have] operate $790 trained on how to use it and it. phone, a cellular seized from [which were] say Is it fair then that this bal- person. piece ance is a of equipment that’s used February 15, pursuant On to war- regular course of business in rant, police fanny pack searched black your expertise? field of wearing [Petitioner] had seen A. That’s correct. up which was found in the bed pick of a familiar, you know, Are truck was located [that scene any procedures whether or not or there’s alleged fanny pack incident]. [The *4 any protocol to determine whether paraphernalia to] containf] and found your operating properly balance is ? ziplock bags containing crystalline three substancei] Yes, A. sir. Department [Honolulu Police criminal- Q. you please briefly explain Will (Mohammed) ist,] ], Hassan Mohammed [ jurors process this what is. examined, analyzed, reported and on the A. We represen- have manufacturer drug [aforementioned] [Mo- evidence. who tative checks out services and analy- was “attached to hammed] year, I my balance two times have Depart- sis unit at the Honolulu Police verify own balance which years. ment” for over ten As a criminalist validate once month and we so record it. Department,
with the Honolulu Police [Mo- Q. analysis duties consisted of So the balance ... hammed’s] so we are clear, you your and identification of controlled check balance once a substances. trial, Respondent [At month? Mohammed] offered drug analysis as an the field of A. That’s correct. di- [While under identification. Q. you Do ever check balance be- examination,] rect Mohammed maintained you per- each ... individual test fore “routinely weigh[s] every piece during the normal course busi- form part evidence that comes in” as ness? responsibility analyzing identify- No, A. sir. illegal drugs. ing (Emphases Q. anything your Is there based experience balаnce, years this direct During examination Mohammed tes- experience, you that could indicate procedure tified for weighing not working whether balance is crystalline substances recovered. properly? Q. Okay. you Do [PROSECUTOR] any particular No, use instrument A. I have not come across that regular course of business to determine once. even weight of these substances? Yes, sir, A. we use an [MOHAMMED] Now, Q. day you this use that analytical balance. analytical you described ear- Q. you analytical Are familiar with the lier? balance? Yes, I did. A. Yes. Q. your knowledge To Q. you long using How working properly? balance? Twenty-five [thirty] years. Yes, sir. Q. you Are operation? familiar with its Q. weight And what was the net A.- Yes. substance that extracted from you Q. pipe Do how it glass you know functions? described? through go Objection, If could name—let’s COUNSEL]: [DEFENSE Judge. There’s a lack test— for of foundation evidence. A. Yes. scientific
[PROSECUTOR] briefly Q.—name those and summarize this test involves. Overruled what COURT] [THE methamphetamine? Specifically methamphetamine. Q. For of the confir- What was result mation test? be A. One would a color test.... Again, COUNSEL]:
[DEFENSE objection. Judge, Lack of foundation Q. Okay, go ahead. scientific evidenсe. presumptive test. An- A. That’s one COURT]: Overruled. [THE can use for presumptive other test that we microcrystalline
methamphetamine subject portion of we a small test where net of State’s What reagent, chloride the evidence another 2? Exhibit No. acid, develop- phosphoric and observe Objection, COUNSEL]: [DEFENSE microcrystalline micro- under the ment of *5 Judge. Lack of foundation for scientific characteristically scope if metham- evidence. present get a phetamine is I would Counsel], are COURT]: [Defense [THE clothespin-shaped crystal structure which you objection on going to make the same presence of did indicate or confirm the opinions weight and as to all of the as to pre- are two methamphetamine. Those the nature of the substance? sumptive tests. Yes, Judge. [DEFENSE COUNSEL]: tests, Q. Presumptive okay. Is there you give I will COURT]: Then [THE tests, confirmatory a test? other objection opinions. to all an those of presumptive test A. Yes. Once the So a run- [DEFENSE COUNSEL]: drug would gives an indication of what objection? ning be, it with one proceed then I to confirm Yes. COURT]: [THE an I use two tests. infra- of confirmation (Emphases Trans- the Fourier red instrument called Spectrometer, in short also Infrared During form direct examination FTIR, chromatograph gas I use the identifying the procedure testified to (GCMS) spectrometer ]to [ mass confirm crystalline seized. substances meth- presence of definitive identified Q. Okay. Now as [PROSECUTOR] or absence amphetamine—presence whose duties are dedicated criminalist methamphetamine. identification, you analysis and do test, is the Q. presumptive As any experience testing substances have you reagent test a common- color test presence methamphetamine? your ly normal course duties use Yes, I have. A. [MOHAMMED] as a criminalist? criminalist, any par- Q. there As a are Yes, A. sir. you routinely perform to ticular tests your Q. And is this test based presence for the make this determination at HPD that years experience least ten methamphetamine? rely you on? Yes, A. sir. Yes, A. sir. routinely Q. you do What test tests Now, test Q. presumptive the other perform? test; reagent that correct? another pre- a couple A. of routine We Microcrystalline test. A. couple of and then sumptive tests there’s sorry, microcrystalline test. routinely per- Q. I’m Is tests that we confirmation your exper- recognized in field of this test form. sorry, recognized Yes, tise as—I’m deter- A. sir. presumptive presence mine the of metham- Q. words, you’ve got In other to take
phetamine? plug electric plug into the AC in Yes, A. sir. the wall?
Q. you And this a regularly test permanently A. plugged. It’s perform during your the normal course of Q. Into electronic source? duties? A. Electrical source. Yes, A. I do. Q. machines, analytic So all these bal- Q. you rely Do test? this ance, GCMS, they the FTIR and the are A. Yes. mechanical; opposed electronic as cor- questions Same rect? the confirma- tory test. As the FTIR—we will use may compo- There be mechanical acronym possibly I couldn’t because analytical nents within the but Transform, et remember the Fourier cet- FTIR, essentially electronic balances. era. GCMS, said, electronic, you are recognized
Is the FTIR test a also electronic. test that’s your expertise field of as a test that’s testified, you your And as all train- commonly presence to confirm the used basically chemist; ing is as a correct? methamphetamine? Yes, my all have been chemist Yes, it is. Working life. life. commonly Is test Q. Okay. you’ve And nevеr worked at rely upon? calibrating these instruments? Yes, I do. A. No. *6 Q. [GCMS], similarly to And as is that Q. basically you operate So can these your recognized a test that’s field of machines, correct, you but cannot main- expertise to acknowledged confirm the it; tain correct? presence methamphetamine? A. I wouldn’t be able service them Yes, A. it is. but I do—I have trained to ensure Q. you rely And on the do results working and FTIR GCMS are during this test the normal course of busi- condition. ness? Q. you you So that can ensure Yes, A. I do. them; can use correct? Q. clear, absolutely And so we are proper working A. That it’s in condi- you you do have been trained and have purpose. my tion for experience professional in the administra- Q. condition, you Proper working can tion each of these four tests? it; up, start it take readouts from correct? Yes, A. I have. procedure A. We Yes. have a routine added.) (Emphasis GCMS, may explain. I Each if following and every morning adduced defense chemist before GCMSs, respect with counsel’s cross-examination uses one several we do a rou- the machines: tine check on them ensure that all the parameters аre within Q. Mr. Mo- manufacturer [DEFENSE COUNSEL] specification. hammed, analytic you men- balance tioned, is that an electronic instrument? Q. Okay. Yes, it
A. is. [MOHAMMED] A. And we record those such if not, it is don’t we use it. Q. Also, FTIR, that’s electronic also; right? Q. sor)% not? I’m it is if
A. Yes. not, any parameter A. it is is out If Q. spec, And also GCMS? we do not use it until it’s rectified. But, see, Q. you A. let me That’s correct. representatives
the manufacturer sends know, Q. you Okay. far as So as calibration; do the actual correct? done, servicing calibration cor- servicing A. The actual the calibra- rect? year, yes,
tion two sir. times Yes, A. sir. Q. analytic Okay. Now Q. yourself, you But don’t you, you mentioned— personal knowledge the calibration A. Yes. servicing; and the correct? Q.—was particular it the same calibrating A. finished it Once he is you analyze used to State’s Exhib- then he a form and fills out indicates analytic 2 through its same balance? prior proper working it was in condition Yes, my A. sir. I have individual ana- testing working and found it after the lytic balance. servicing, thing first he too. The does is to Q. exhibits, working on all of these And make sure that was condition GCMS; through you used when arrives.
correct? three, Q. all And he out a form for fills may my A. notes? If I refer to balance, GCMS, аnalytical FTIR?
Q. Certainly.
correct,
A.
all the instruments at
That’s
one,
I
I used the FTIR on
laboratory.
believe
sir.
I
on each
used the GCMS
one
themof
you
But
have the
don’t
forms
except
the pipe,
the residue
from
now;
you
right?
FTIR
which
I
use the
on that one.
case did
it,
brought
I
but it’s
haven’t
avail-
GCMS,
I used
that will be correct.
able.
Now,
it the same—let’s talk about
them now?
But
don’t have
the GCMS.
No,
required
bring
I was not
Is it
machine that
the same GCMS
them.
you’ve
talked
used
all items
about?
(Emphases
my
May
notes?
reference
Q. Sure.
B.
*7
I used two GCMSs.
case,
Following
Petitioner
the end
FTIR;
Q.
just
And
one
correct?
acquittal.”
judgment
Peti-
“move[d]
A. That’s correct.
testimony
that
from
“[t]he
tioner asserted
Now,
Q. Okay.
that
mentioned
chemist, Mohammed,
incompetent
manufacturers,
they
reps
send
two
[,
the ease State v. Wallace 80
evidence under
or
all—
year
times a
to service
calibrate
(1996)].”
382,
P.2d 695
The
Hawai'i
910
balance, yes.
analytic
theOn
responded that “the motion’s denied.”
court
about the GCMS?
How
tunee,
they
come in
believe
not
II.
year.
at least
once
poses
In
Petitioner
four
application,
his
Q. Again,
that’s to service and cali-
(1)
abused its
[c]ourt
issues:
“whether
brate?
allowing [Respondent’s]
in
chemist
discretion
A. That’s correct.
identity
opine
FTIR,
about the
often do
How
how
(2)
evidence”;
State’s
“whether the
reps?
the manufacturers send
failing
in
to ex-
abused its discretion
[c]ourt
twice,
year.
once
If not
at least
[Respondent’s]
testimony
clude
chemist’s
that’s,
again,
pursuant
Rules of Evidence
Okay.
Hawai'i
And
service
(3)
702”6;
[(HRE)],
calibrate;
“whether
correct?
Rule
(1993)
experts,”
"Testimony
follows:
6. HRE
entitled
states as
Rule 702
relying
abused its
in
argues
[Respon-
[c]ourt
disci'etion
[Petitioner]
ness....
703[7]
satisfy
Rule
in admitting [Respon
prong
[HRE]
failed to
the second
dent]
(4)
testimony”;
Long
chemist’s
under
because
dent’s]
Mohammed did not
“wheth
presumptive
reagent
aver that
color
failing
er
abused its discretion in
[e]ourt
recognized
test was
field. [Petition-
his
[Respondent’s]
exclude
chemist’s testimo
er], however,
por-
directs this court to no
ny pursuant
effect,
Rulé 403.”8 In
[HRE]
objected
tion of the record where he
to this
an affirmative
answer
first issue sub
failure,
alleged
point
and thus the
remaining
sumes the
three issues.
HRE
deemed waived.
Rule 103.
ground,
[As to
second
Petition-
III.
argues
per-
er]
Mohammed had no
September
The ICA affirmed the
knowledge
sonal
he
the instruments
issue,
judgment. As to the first
the ICA
properly
used were
calibrated
sеr-
and/or
pertinent part:
contended in
[Petitioner]
viced.
contends that Mo-
prerequisite
A “foundational
for the relia
hammed admitted the instruments were
bility
showing
test
of a
result is a
that the
electronic and
had never
cali-
himself
measuring
proper working
instrument is in
upon
brated them and instead relied
[Wallace,
order.”
80 Hawai'i at
performed by
semi-annual
calibrations
(internal quotation
at 720]
marks and
representative.
[Peti-
manufacturer’s
omitted).
“Therefore,
citation
tioner] asserts
Mohammed
foundation
the introduction of
scienti
supply
logs completed by
the manufac-
necessarily
fic test result would
include
representative
turer’s
and thus his testi-
(1)
testimony
expert
regarding:
quali
mony
equipment
was calibrated
expert;
fications of the
whether the
properly amounts to
hear-
inadmissible
expert employed
techniques
valid
to obtain
However,
say.
testified
result;
the test
whether the meas
personal knowledge
he had
bal-
uring
proper working
instrument
is in
or
semi-annually.
was serviced
In
ance
348, 355,
Long,
der.” State v.
98 Hawai'i
testifying expert
per-
lacked
(2002) (internal
quotation
48 P.3d
knowledge
sonal
scale
had
omitted).
marks and citation
calibrаted, merely
properly
relied on
parties
agree
assumption
repre-
here
that Mohammed
that the manufacturer’s
so,
properly qualified
expert
supply
as an
had
wit-
sentative
done
and failed to
scientific, technical,
specialized
may,
If
be
or other
admissible
evidence. The court
however,
knowledge
will
trier
assist the
of fact to under-
disallow
the form of an
opinion
underlying
stand the evidence or to determine a fact in
or inference if the
facts
issue,
qualified
expert by
a witness
indicate lack of
as an
data
trustworthiness.
skill,
training,
knowledge,
experience,
regarding
that "Rule
edu-
Petitioner maintains
may testify
opinion testimony by
expert
cation
form
the
ness,
wit-
of an
basis
thereto
opinion
determining
only applies
prop-
In
once
or otherwise.
the is-
has been
*8
fact,
erly
testify
expert.
qualified
sue
trier
the
of assistance to the
of
court
to
as an
Mohammed
may
qualified
testify
validity
expert
the
and
to
an
consider
trustworthiness
was not
maintenance,
as
to the
technique
analysis
servicing
of the scientific
or mode of
calibration of the
and/or
employed by
proffered expert.
the
instrumеnts he used."
"Mohammed,
Petitioner maintains that
a chemist
8. HRE Rule 403
states as follows:
qualified
expert
analysis
an
in the
and
identifi-
substances,
by
grounds
not
own
Exclusion
relevant
of
cation of
was
his
admis-
of
evidence
calibrate,
confusion,
prejudice,
to
or
Al-
sion trained
maintain
or waste of time.
[service]
FTIR, GCMS,
relevant,
though
may
the
and
scale.”
be
excluded
outweighed
probative
substantially
its
value is
(1993) regarding
HRE
"[b]ases
Rule 703
of
by
danger
prejudice,
the
unfair
of
confusion of
opinion testimony by experts,”
that:
states
issues, misleading
jury,
by
the
or
the
or
consid-
time,
delay,
particular
upon
The facts
data in
case
erations of undue
waste of
expert
presentation
opinion
an
which an
bases
or inference
needless
of cumulative evidence.
may
perceived by
be those
or made known to
Petitioner maintains that
qualified
was not
Mohammed
hearing.
proper
to
or before
If of a
as to the
calibration of
thus,
instruments,
type reasonably
upon by experts
ICA
relied
the court and the
particular
forming
"failing
opinions
field in
or infer-
erred
exclude Mohammed's testi-
upon
subject,
mony
ences
data
as irrelevant.”
facts or
neеd
failure,
servicing
the machines
records;
the semi-annual
in that
the service
of
Four,
competently.
Mohammed
error. Wal-
was done
Supreme Court found
Hawai'i
him,
lace,
explicitly specify who trained
crystalline substances.
VIII. IX. qualified Mohammed was as an ex pert analysis However, reliability in analyt and identification.10 as to the of the balance, According application distinguishes to ic Petitioner’s for cer- the ICA Wallace tiorari, gi'ound expert Mohammed used the to that GCMS identi in case “relied fy crystalline assumption rep that substances the manufacturer’s recovered as methamphetamine. properly resentative” “had ... calibrated” Mohammed testified scale, that “a routine check” was done of the GCMS his whereas “Mohammed ... testified every morning” personally “each and ... he “to ensure that all verified and validated parameters monthly,” are “satisfying]” within manufacturer balance that “the specifications.” “if any working properly.” Mohammed related balance was at 7 SDO Wallace, parameter spec, (citing is out do not use it Hawаi'i 910 P.2d we 725). Thus, However, until it the evidence to rectified.” the record indi failed (1) any cates that establish there was established manufac Mohammed had train (2) procedure by ing expertise calibrating balance, turer’s in could be conducted properly the user to ensure the GCMSs were in had been calibrated working according representa order to service the manufactur manufacturer’s specifications. tives, accepted er’s that there anwas manu procedure facturer’s established for “veri Because the evidence indicated the GCMSs fying] validating]” that the balance was operating were “within the manufacturer proper working in and that if order such specification(s),” procedure under this Mo existed, procedure that Mohammed followed testimony supported hammed’s own the con it, proper his balance was in clusion proper the GCMSs were worldng order at the time evidence was working order at time the weighed. Accordingly, balance and tested. Hawai'i at weighing methamphet the related Therefore, at 720. Mohammed’s assertion on amine, it appears gravely the ICA erred. cross-еxamination that “I do have I knowledge because would not have used X. any they the instruments were proper working particular condition A. days,” “personal is consistent with the [sic] necessary knowledge” qualified establish proper working expert analytical GCMSs condition. in the were calibration foregoing analysis, Based on the balance. Mohammed used identity crystalline although weigh foundation for the the evidence he did not know Consequently, laid. substances was its mechanism functioned.11 The how bal- trial, Yes, sir, following transpired: analytical 10. At A. we use au balance. you analytical Are familiar with this bal- [PROSECUTOR]: At this time State of- Mr. fers Mohammed as an ance? field of identification, drug analysis subject Yes. voir dire examination. long you using How this bal- counsel], [Defense THE COURT: ance? objection, [DEFENSE COUNSEL]: No years. Twenty-five [thirty] Judge. you operation? Q. Are familiar with its may testify. THE He COURT: Yes. (Emphasis you Q. Do know how it functions? know, Precisely its mechanism wouldn't 11. Mohammed testified as follows on direct ex- Ibut know I’ve been trained how to use it and amination: operate it. Okay. any particular use Do instru- regular ment course of business determine the of these substances? *12 Q. you But don’t you, yourself, anee is instrumеnt.12 Mo- have an electronic personal knowledge hammed did not know to cali- the calibration himself how the ... servicing: to correct? brate the balance or how service it. He indicated that he had never calibrated the calibrating A. Once he is finished it that he would not to be able he indicates then out a form and fills machines, although, as service the noted be- prior in proper working it was condition to fore, he trained to that the had been ensure testing working it after the and found GCMS FTIR instruments were in work- servicing, thing he does too. The first ing order. working make sure it condition that was when he arrives.
Q Okay. COUNSEL]. [DEFENSE you’ve calibrating And worked at never
these instruments? three, Q. all And out a fills form GCMS, balance, analytic FTIR? A. No. A. .... That’s correct Q. basically you operate can So these Q. you But don’t have the correct, machines, you but cannot maintain forms now; you right? [sic]; correct? it, brought A. I but it’s avail- haven’t A. I be able to them wouldn’t service able. but ... I have been trained ensure that Q. you But them now? don’t have working are in GCMS and FTIR condi- tion. No, required bring I not them. added.) Further, (Emphases exam- cross Q. as So whatever ination, Mohammed, counsel asked defense information сalibration, proper proper servicing or testify servicing cannot “[Y]ou forms; that’s contained on these correct? you, your- of all because three instruments self, personally servicing; didn’t do the cor- A. That’s correct. answered,
rect?” Mohammed “That would now; Q. right you Which don’t testify be correct. be able wouldn’t correct? servicing of the instruments.” correct. That’s added.) (Emphases on these Based state-
B.
Mohammed,
person-
ments
he “lacked
knowledge
balance had been cor-
al
1.
merely
rectly
assumed that
calibrated and
Wallace,
Like
chemist Chinn in
forensic
representative
the manufacturer’s
service
personal knowledge
“had
Wallace,
at
so.”
80 Hawai'i
had done
electronic
balance was
calibrated
P.2d at
725.
[semi-]annually.”
80 Hawai'i
Wallace,
However,
725.
there was
no
that Mohammed
had
Again,
Respondent
did
knowledge that the balance had
correct-
representa-
call the manufacturer’s service
ly
counsel
calibrated. Defense
addressed
tive to
to calibration of
balance.
cross examination:
issue
Wallace, Respondent
Moreover,
Id.
Okay.
[DEFENSE COUNSEL]:
recоrds of the
offer
business
know,
you
So as far as
the calibration and
indicating
manufacturer
a correct calibration
done,
servicing
correct?
noted,
in Wallace
of the balance. This court
Yes,
brief
sir
that “Wallace concedes in his
that ‘[a]
[MOHAMMED]:
Mohammed,
convenience,
analytic
(Emphasis
parts
Mr.
For
mentioned,
transcript previously quoted
you
are reiterated in the
an electronic
is that
instru-
discussion
ment?
infra.
Yes,
it is.
following
12. The
was adduced on cross-examina-
tion:
provided by
document
the calibrating agency
personally
testified that he
verified and vali-
showing
person
calibrating
name of the
monthly.”
dated the balance
7-8.
SDO at
[balance],
qualified,
that he was
[and]
familiar,
Are
[PROSECUTOR]
[the
balance] was calibrated on a certain
you know,
any proce-
whether or not
may
hearsay
date
well have fallen under the
*13
any protocol
dures or there’s
to determine
exception^
records,
relating
business
but
to]
your
operating
whether or not
balance is
”
this was not [offered into
evidence.]’
Id.
properly?
28,
(some
n.
412
910
n.
P.2d at 725
28
brack-
Yes,
added).
A.
sir.
original
ets
and some
Although
Mohammed,
per
testimony
available
Q.
you please briefly
Will
explain to
Respondent did not
such
offer
records into
jurors
process
what
is.
Accordingly,
evidence.
Re-
A. We have a
represen
spondent
“through
failed to offer
a
manufacturer
custodian
tative who
out
checks
and service the bal
records,
...
business record of the
year,
ance two
my
times
and I
own
reflecting proper calibration
manufacturer
13]
personal
verify
balance1 which I
the balance.” Id. at
XI.
(stating
prong
P.3d at 602
that the third
“whether
the instrument
is in
work
Respondent
aрparently rely
and the ICA
order”).
ing
Similarly, in
answering
its
brief
on Mohammed’s
assertion
have a
“[w]e
Respondent maintained
representative
that Mohammed
manufacturer
who checks out
necessary steps
“took the
...
year,
and services the balance two
to insure
times
his ...
in ...
my
working
and have
balance
oum
balance which I
order.”
above,
emphasized
verify
Respondent
As
al
validate once month and
also
we so
it[,]”
added),
(emphasis
distinguish-
record
ludes to the
fact
Mohammed was
ing
this case from
placed'
opinion
Wallace. The ICA
and his
had been
“based
emphasis on the fact that
expertise,”
“Mohammed
his field of
he had worked on the
"personal
reference to
Mohammed’s
bal-
No.
added)
(emphasis
ance”
creates confusion as to
weighing Respondent’s
its involvement in the
But,
see, you
let me
did
through
particular
Exhibits
and whether that
representatives
sends
to do the
manufacturer
working properly.
balance was
Defense counsel
calibration;
actual
correct?
engaged
following
Mohammed in
series of
servicing
A. The
actual
the calibration
questions, which indicates that the balance used
year.
two times a
weigh Respondent's
through
Exhibits
7 was
Q. Okay.
analytical
Now
balance
government
owned
serviced
instrument
you mentioned—
manufacturer:
A. Yes
[DEFENSE COUNSEL:] Mr. Mo-
Q.—was
particular
it the same
balance
hammed,
analytical
you
balance
mentioned
analyze
used to
the Slate's Exhibits
is that an electronic instrument?
through
analytical
same
balance?
Yes,
[MOHAMMED:]
is.
n
Yes,
sir. ..
(Emphases
you’ve
calibrating
And
worked
never
these instruments?
case,
years,
leaving
for over 25-30
the balance was
insufficient
reliability
regular
of the balance.
used in the
course of business.14
establish
contrast,
before,
By
as mentioned
Mo
Thus,
procedure
protocol
as to
“a routine check” was done
hammed testified
working
detei’mine whether the balance was
every morning” “to
of the GCMS “each and
first
that a
properly, Mohammed
asserted
parameters
that all
are within
ensure
representative checked
service
specifications.” Respondent
manufacturer
However,
before,
year.
twice a
as mentioned
procedure
no
a similar
submitted
evidence of
how calibrate or
not know
operating
to confirm
the balance was
balanсe,
representative
service
no service
parameters
of the manufacturer’s
within
testified as
his or her calibration
weighi
specifications
the time of the
before
balance, and
intro-
no business record was
*14
Thus,
ng.15
although the record indicates
testimony.
duced into evidence in lieu of such
to
that Mohammed
trained
follow cer
was
to
assertion
the bal-
As Mohammed’s
that
procedure to
that
the GCMSs
tain
ensure
order,”
worldng
in “proper
ance was
because
order,
working
in
it fails to show that
were
month,”
he “verified and
once a
it]
validated
accepted proce
there was manufacturer’s
any
Respondent
produce
failed to
evidence of
implement
balance
dure for the user of the
procedure for
manufacturer’s
established
working
in
order.
to ensure the balance was
verification or of what
such validation and
Therefore,
Mohammed’s assertion
procedure
involved. Mohammed’s
such
“I do have
cross-examination that
experience”
that
“in his
had
he
statement
knowledge
I
not have used
because would
anything “that
indi-
“not come across”
could
they
if
not in
any of the instruments
werе
or not the balance is not work-
cate whether
working
particular
in that
proper
condition
years
ambiguous.
It
ing properly” in 30
“personal
days,”
with the
[sic]
inconsistent
nothing
that
suggests
either there
which
necessary to
the
knowledge”
establish
the
indicate whether
balance
would
proper worldng
in
condition.
balance was
not,
were
worldng properly or
or that there
analysis
foregoing
on the
Based
Mohammed to deter-
indicia
would allow
of
metham-
for the
the
foundation
operating
mine whether
the balance was
phetamine was not established.
testimony
begs
ques-
thus
the
properly.
whether
was a manufacturer’s
tion of
there
XII.
procedure
verifying
established
erroneously admit
Disregarding the
and,
so, that
working properly
if
balance was
methamphetamine,
the
weight of
ted
particular proce-
Mohammed followed
Pe
support
not legally
record is
sufficient
or,
in
procedure
if
such
dure
there was no
charges.
As re
convictions for
titioner’s
designated by the balance’s manu-
place Wallace,
counted
facturer,
accepted
that the balance could be
(b) (1993)
701-114(l)(a)
§
and
re-
simply on
HRS
as reliable based
the semi-annual
inspections.
quires proof beyond a reasonable doubt of
There
manufacturer
service
offense, well
each element of the
as
was no evidence to establish either was
working improperly.
Respondent’s
on Mo-
to him that
14.
contentions bear
analyze
qualifications
identify
testimony:
hammed’s
To reiterate
drugs
opine
their
and the
nature
experi-
anything
your
Is there
based on
used,
procedure
es-
and instruments
but do not
balance,
years
experience,
with this
of
ence
accuracy
respect to the
of the
tablish facts with
not the
that could indicate to
whether or
electronic balance itself.
working
is not
properly?
No,
Respondent
that Mo-
itself elicited
come
that even
have not
across
determine
hammed
not test the balance to
once.
working
weigh-
properly at the time of the
it was
ing.
(Emphasis
In the absence of
other
Mohammed,
prosecutor
When the
asked
accepted
proce-
of an
manufacturer's
you ever
each
"Do
check the balance
before
dure,
inquiry
appropriate
would be whether
you perform
test
the nor-
individual
mal course of
accuracy
had been checked
of the balance
"No,
responded,
he
business?”
evidence,
weighing
Respon-
before
implicitly
indicated he did not
sir.”
anticipated.
dent
nothing
thirty years
indicate”
because
"could
(1)
required
of mind
state
establish each
pos
reasonable doubt
that Petitioner
Moreover,
element of the offense.
HRS
containing
sessed one or more substances
(1993)
§
provides
(i.e.,
702-204
part
relevant
methamphetamine
prohibited
con
person
that “a
guilty
duct);
is not
of an offense
aggre
were
substances
of an
person
(i.
intentionally,
unless
e.,
acted
gate weight
one-eighth
ounce or more
knowingly, recklessly,
negligently,
requisite quan
the attendant circumstance of
specifies
respect
tity);
(i.e.,
law
with
to each ele-
knowingly
he acted
§
ment of
requisite
the offense.” ... HRS 702-207
respect
state mind
to both
(1993) provides
elements).
“[when] the definition
foregoing
See
specifies
offense
the state
mind
Hawai'i
P.2d at 726.
sufficient for the commission of that of-
degree charge,
As to the first
the evidence
fense,
distinguishing among
without
established that Petitioner distributed one or
thereof,
spеcified
elements
state of
containing methamphet-
more substances
apply
mind shall
all elements
amine, and that he
knowingly
acted
dis-
offense,
contrary purpose plainly
unless
tributing such
As
substances.
to the second
appears.”
addition, pursuant
In
to HRS degree charge, the evidence
established
(1993),
requisite
§ 702-205
state
possessed
Petitioner
one or more substances
conduct,
applies
mind
to such
attendant
containing methamphetamine,
*15
circumstances, and
of
results
conduct as
knowingly possessed such substances. How-
specified by
are
the definition of the of-
ever, disregarding
Mohammed’s
fense.
substances,
weight
of the
the record is
412,
(citations
at
A
commits the
element of the
See
offense of Promot
offenses
id.
ing Dangerous Drug
material
Degree
a
in the First
in Because those
elements of
of-
(1)(b)(ii)(A),
supported by
§
of HRS
fenses are not
substantial and
violation
712—1241
in
alia,
evidence,
person knowingly
Respondent
if
admissible
failed to ad-
ter
distributes
every
preparations,
prove
or
compounds,
more
duce sufficient evidence to
ele-
“[o]ne
mixtures,
beyond
aggregate
or substances of an
ment
the offenses
a reasonable
Therefore,
more,
eighth
of ...
doubt. See id.
Petitioner’s con-
ounce or
[o]ne
Thus,
containing methamphetamine[.]”
victions must be vacated. See id.
offense,
prosecution
required
prove beyond a reasonable doubt that Peti
XIII.
(1)
or
tioner
distributed one more substances
Having vacated Petitioner’s convic
{i.e.,
containing methamphetamine
pro
tions,
evidentiary insufficiency,
“for
conduct); (2)
hibited
the substances were of
jeopardy
double
clause of
fifth amend
aggregate weight
one-eighth
or
ounce
ment
the United States Constitution bars
(i.e.,
req
more
the attendant circumstance of
414,
a retrial of that
Id.
offense.”
at
910
(3)
quantity); and
uisite
the he acted know
(citation omitted).
“However,
at
P.2d
727
(i.e.,
ingly
requisite
state of mind with
remanding
retrial
the case for
on lesser in
elements).
respect
foregoing
to both of the
cluded
offends neither
the fifth
offenses
412,
See
359
701-109(4)(a)
§§
required
in HRS
of the
scribed
and 701-
to establish
commission
109(4)(c).”
415,
701-109(4)(a),
§
at
charged[,]”
Id. at
910 P.2d
728. Fur-
offense
HRS
thermore,
great
“if
appellate
impossible
court deems the
because “it is
commit the
committing
insufficient as a matter of
er without also
the lesser.” Kin
evidence
law
nane,
jury’s
greater
a
support
guilty
a
Promoting Dangerous Drug in the
First
As
knowingly possessed
tablishes
Petitioner
712-1241(l)(b)(ii)(A),
§
Degree, HRS
inas
methamphetamine.
person
“A
commits
by proof
“[i]t
much as
established
dangerous
promoting
offense of
required
or less than
facts
same
all the
degree
person
third
knowingly possess
if the
establish
commission
offense
any dangerous drug
es
amount.”
701-109(4)(a),
eharged[,]”
§
HRS
and be
712-1243(1). Thus,
§
HRS
on remand of
impossible
greater
cause “it is
to commit
judgment con
Count
the court shall enter
committing
also
the lesser.” State v.
without
victing
Promoting Dangerous
Petitioner
Kinnane,
46, 51,
79 Hawai'i
Degree,
§
Drug in
Third
HRS
712-
(1995) (citations omitted).
The second de
*16
1243(1). Accordingly, the case is remanded
gree
being
felony, it
offense
a class B
is “of a
resentencing
may,
for
in its
court
grade
greater
than the
class and
lower
discretion,
appropriate.
determine
offense,” Wallace,
[charged]
instructions
convicting
ground,
to enter
inter
that it
unsupport-
was
promot
Manewa of
included
by competent
78, 80,
offenses of
ed
Id. at
evidence.
ing dangerous drug
and third
second
P.2d at
368.
degrees,
respectively,
sentencing
him
appeal,
On
this court reversed the circuit
358-59,
pursuant
Majority opinion
thereto.
court’s order dismissing the indictment and
P.3d at 351-52.
trial,
remanded the
for
upon
matter
based
majority,
Like the
I believe that State v.
following reasoning,
which bears close
Schofill,
(1980),
63 Haw.
gree, § question grand violation HRS The essential before the respects jury [Tiny] identical in all material the cur- was whether intended to sell proscribed rent Id. at at 366. drug po incarnation. 621 P.2d to the undercover Tiny Considering history officer. moved to dismiss indictment. lice officer, only prosecution’s negotiations [Tiny] undercover between the officer and motion, hearing Tiny’s intermediary, representation witness at the tes- or his that, having tified run track around the the narcotic offered be sold was duties, cocaine, performance time familiarity in the of his two the officer’s surely substance, powder appear the white to him to we find there was am ple presented be cocaine. at A grand jury Id. at 367-68. skeptical jury circuit court wondered how from which a trial could have found [Tiny] prosecution going prove guilty offering world the to sell narcotics doubt[1] beyond trial that the stuff was in fact cocaine The chal white reasonable (as opposed, say, sugar lenged testimony incompetent confectioner’s was neither dandruff) prejudicial, and dismissed the indictment on nor trial ought and the court that, foregoing problematically, tinguishable attempted pro- note from the offense reasoning moting promoting dangerous drug. § a dan- renders form of See HRS 705-500 (1993). gerous virtually indis- at issue Schofill gov- and “the the indictment on sale has been consummated” not to have dismissed ground. particular beyond must establish a reasonable ernment is that doubt the substance involved 80-81, 83-84, Id. at 621 P.2d (some specified in Id. at (citations omitted) the indictment.” emphasis added and It is that reason that Scho- original). P.2d at 368. some inapposite distinguishable to and from is ongoing vitality to I would limit fill Schofill’s the matter at hand. “promoting” instances of a controlled sub- “distribution,” by way under cir- stance a sale has been cut
cumstances which
short, prosecution’s proof such “offering to
limited to a defendant’s sell” substance, course, accompanied, of
controlled requisite By state of mind. its own instances,
analysis, inapplicable Schofill us, in “the such as the matter before which