State v. Silva, III

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-JAN-2022

07:57 AM

Dkt. 113 MO

NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
Vv.
FRED SILVA, III, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC151000197)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge and Wadsworth, J., with
Hiraoka, J., concurring in part and dissenting in part)

Defendant-Appellant Fred Silva III (Silva) appeals from
the Judgment of Conviction and Sentence entered on May 3, 2018,
by the Circuit Court of the First Circuit (Cireuit Court).
Silva was convicted of Murder in the Second Degree for the
stabbing death of a woman with whom he had a relationship.

On appeal, Silva contends the Circuit Court erred by:
not investigating an issue raised by a juror; determining
evidence of Silva's prior bad acts was admissible; ruling
rebuttal testimony from a forensic~pathology expert was
admissible and within the scope of the expert's expertise; and
not sua sponte striking or giving a limiting instruction
regarding testimony elicited by defense counsel and objected to

by the State, where the court sustained the State's objection.

1 fhe Honorable Karen T. Nakasone presided.
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Silva further contends on appeal that his trial counsel was
ineffective for eliciting testimony from Silva that he smoked
methamphetamine and is a hypocrite.

We reject Silva's asserted points of error and we
affirm his conviction. ,

I. Background

The State of Hawai‘i (State) contends in this case
that, on the morning of February 4, 2015, at an encampment at the.
Tracks Beach Park (Tracks campsite), Silva intentionally stabbed
Calvine "Lei" Nakatani (Nakatani) in the back, causing her to
bleed to death. The State presented the testimony of the
following: Karyn Hoshino (Hoshino), who says she witnessed Silva
stab Nakatani; two emergency medical technicians (EMTs) who both
responded to the scene and who testified that Nakatani told them
Silva stabbed her, with one of the EMTs testifying Nakatani told
her Silva would not let Nakatani call for help; and Dr.
Christopher Happy (Dx. Happy), the Chief Medical Examiner for the
City and County of Honolulu, who opined Nakatani died from a stab
wound. The State contends Silva intended to stab Nakatani in the
back because he was upset she had not returned to his tent after
staying out all night.

| Silva, testifying in his own defense, testified he was

in a relationship with Nakatani, admitted that it was a "rocky"
relationship, but denied intentionally stabbing her. Instead,
Silva contends that, as he held a knife against Nakatani's back,
she stood up and then fell back into a chair unconscious. Silva
contends he failed to realize the knife had penetrated Nakatani
because he believed Nakatani had fallen unconscious due to her
poor health conditions and possibly being scared by the knife at
her back.

Following a five-day trial, a jury convicted Silva of

Murder in the Second Degree.
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II. Standard of Review
A. Plain Error
Under Hawai‘i Rules of Penal Procedure (HRPP) Rule
52{b), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of

the court." Where substantial rights are not affected, however,
"Ta]Jny error, defect, irregularity or variance . .. shall be
disregarded [as harmless]." HRPP Rule 52(a).

B. Admissibility Of Evidence Generally

"The admissibility of evidence requires different
standards of review depending on the particular rule of evidence
at issue." State v. Cordeiro, 99 Hawai‘i 390, 403-04, 56 P.3d
692, 705-06 (2002) (citation omitted).

When application of a particular evidentiary rule can yield
only one correct result, the proper standard for appellate
review is the right/wrong standard. However, the traditional
abuse of discretion standard should be applied in the case
of those rules of evidence that require a "judgment call" on
the part of the trial court.

Id. at 404, 56 P.3d at 706 (quoting State v. Pulse, 83 Hawai‘i
229, 246-47, 925 P.2d 797, 814-15, as amended on reconsideration
in part, 83 Hawai‘i 545, 928 P.2d 39 (1996)).

Cc, Prior Bad Acts

"TA] trial court's balancing of the probative value of

prior bad act evidence against the prejudicial effect of such
evidence under HRE Rule 403 [] is reviewed for abuse of
discretion." State v. Gallagher, 146 Hawai‘i 462, 470, 463 P.3d
1119, 1327 (2020} (first alteration in original) (quoting
Cordeiro, 99 Hawai'i at 404, 56 P.3d at 706.

D. Expert Testimony

"(T]he general rule is that admissibility of expert
testimony is a matter within the broad discretion of the trial
judge, [whose] decision will not be overturned on appeal uniess
manifestly erroneous or clearly an abuse of discretion." State
v. Matias, 74 Haw. 197, 203, 840 P.2d 374, 377 (1992) (first
alteration in original) (quoting State v. Murphy, 59 Haw. 1, 14,
575 P.2d 448, 457 (1978)).
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E. Rebuttal Testimony

"(The Hawai'i Supreme Court] has declared that '[t]he
introduction cf evidence in rebuttal and in surrebuttal is a
matter within the discretion of the trial court and appellate
courts will not interfere absent abuse thereof.'" State v.
Duncan, 101 Hawai‘i 269, 274, 67 P.3d 768, 773 (2003) (quoting
Takayama v. Kaiser Foundation Hosp., 82 Hawai‘i 486, 495, 923 P.2d
903, 912 (1996)) (second alteration in original).

F, Infective Assistance of Counsel

When the denial of the right to effective assistance of
counsel is raised, the question is: "When viewed as a whole,
[was] the assistance provided [to the defendant] ‘within the
range of competence demanded of attorneys in criminal
cases[?]'" State v, Smith, 68 Haw. 304, 309, 712 P.2d 496,
500 (1986) (citations omitted). 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
skili, judament, or diligence; and 2) that such errors or
omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense.

State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992)
(emphasis added).
III. Discussion

A. The Circuit Court Did Not Commit Plain Error Regarding
An Unspecified Jury Issue To Which The Defense Did Not
Object

Silva argues for the first time on appeal that the
Circuit Court should have sua sponte inguired into the possible
prejudicial nature of unspecified papers a juror or jurors
apparently sought to present to the court in the beginning stages
of the trial. After the jury was empaneled but before opening

statements were presented, the Circuit Court addressed the jury:

And I wanted to say another thing. We went through two and
a half days of jury selection to get to the process where we
have our jury and three alternates. So all of you were not
excused, all of you were not deferred, and I believe
someone, at least one of you have papers to present to me.
I'm not going to look at it because it is too late to give
Me any papers to try to get excused from the jury. We went
through two and a half days of jury selection with over a
hundred jurors to get to this point so we need to get the
trial started and underway.
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(emphasis added). Silva did not object to the Circuit Court's
refusal to review the papers. The record does not indicate which
juror or jurors attempted to present papers to the court, nor
does it contain a copy of the papers the juror or jurors
attempted to raise with the court.

While the right to a "fair trial by an impartial jury
is guaranteed" by the federal and state constitutions, State v.
Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991) (juror
misconduct not harmless where defendant requested and was denied
further investigation into dictionary found in jury room after
judge had previously denied request for dictionary to look up
terms in jury instructions), "[t]he defendant bears the initial
burden of making a prima facie showing of a deprivation that
‘could substantially prejudice [his or her] right to a fair
trial' by an impartial jury." State v. Furutani, 76 Hawai'i 172,
181, 873 P.2d 51, 60 (1994) (second alteration in original)
(first citation omitted) (citing Lopez v. State, 527 N.E.2d 1119,

1130 (Ind. 1988) ("A defendant seeking a hearing on juror
misconduct must first present some specific, substantial evidence
showing a juror was possibly biased.")}).

Although the right to an impartial jury is fundamental
to the judicial system, Silva failed to raise any objection in
the Circuit Court and did not advance a prima facie case that his
right to an impartial jury would be violated by outside
influences if the unspecified papers were not reviewed. Id. He
made no attempt at trial to establish any grounds for possible
prejudice if the court did not, at minimum, investigate the
papers. Moreover, "[o]ne important mechanism for ensuring
impartiality is voir dire, which enables the parties to probe
potential jurors for prejudice." United States v. Kechedzian,
902 F.3d 1023, 1027 (9th Cir. 2018) (citation omitted). Here,
the trial court noted there had been "two and a half days of jury
selection with over a hundred jurors[.]" The defense thus had

ample opportunity to address and raise any juror prejudice.
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Given this record, we conclude there was no plain error
by the Circuit Court.

B. The Circuit Court Did Not Err by Admitting Evidence of
Silva's Prior Bad Acts

1. Relevance of Prior Bad Acts

Silva contends the Circuit Court should not have
admitted evidence about his prior bad acts toward Nakatani
because they only serve to demonstrate his propensity to stab
her. The subject evidence consists of testimony from Nakatani's
friend of 10 years, Hoshino, that approximately three months
before Silva stabbed Nakatani, he told Hoshino "I can kill her.
If I can't have her, no one can." Hoshino testified that
Nakatani and Silva's relationship was "rocky," Silva was very
possessive of Nakatani, and the last few months of their
relationship was "off and on" and Nakatani was “trying to make it
off.” .

Hoshino also testified to seeing Nakatani with a black
eye approximately three months before Nakatani's death and that
Nakatani told her the injury was from Silva. Additionally,
Nakatani's son, Davin Kaipo Nakatani (Kaipo), testified that a
few months before she passed away he saw Nakatani with a black
eye and that both Nakatani and Silva told Kaipo it was from
Silva.

Although Silva denied threatening to kill Nakatani or
saying "if I can't have you, no one can[,]" he testified he was
"Ta] little" possessive of Nakatani, and that he gave Nakatani a
black eye in the past because she would periodically disappear,
which "broke [his] heart" and upset him. Silva described his
relationship with Nakatani on the day of the incident as "[a]
little rocky" because of his concern for Nakatani's health. In
particular, Silva testified that he believed Lesions Nakatani had
started developing on her body were related to her
methamphetamine use and that her using the drug was not good for

her high blood pressure.
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He also testified that the night before the incident,
he and Nakatani had smoked "ice" at a neighboring tent, he
expected her to come back to his tent site to help clean up
because they talked about it, and he left the neighboring tent
because he did not like Nakatani smoking "ice." On the morning
of the incident, Silva testified he was "depressed" that Nakatani
had not come back to their tent, and he was irritated from the
effects of using ice the night before.

Silva testified he went back to the neighboring tent
that morning, drew his knife from its sheath as he entered the
tent because people were there that he did not know and he was
afraid the tent's owner might hit him with a hammer, and he found
Nakatani seated on a chair in the neighbor's tent. Silva told
Nakatani, "Come on, let's go," to which she did not respond. As
Nakatani remained seated with her back towards Silva, he
testified that he pressed the flat part of the double-edged knife
against her back, by her left shoulder, for "dramatic" effect
because he was afraid of the people that were around, and again
said, "Come on, let's go" to get her to come back to his campsite
and to prod her to get up. Nakatani then stood up and Silva
followed her with the knife still on her body to "prod her" or
"gode her" to get up. Silva testified that, after Nakatani stood
up: "then everything happened so fast I never know what was wrong
until she flop back in the chair unconscious. I thought I scared
her into a heart attack or a stroke." Silva testified he did not
know the knife had penetrated Nakatani's skin. Silva testified
that after Nakatani flopped back down on the chair she was
unconscious, he could not lift her so he overturned the chair and
she rolled out of the chair to the ground, and he started CPR.
Silva testified that while Nakatani was on the ground he noticed
a wound on her back but thought it was from shells. He further
testified that, after giving Nakatani CPR, she regained
consciousness and he was trying to sit her up when police arrived
and he was told to leave the tent. Silva last saw Nakatani as

she was brought out of the tent on a gurney and she was alive.

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He later learned at the police cellblock that she had passed
away.

During cross-examination, Silva testified that on the
morning of the incident, Nakatani was wearing a tank top with a
lot of her skin exposed and he could tell that when he pressed
the metal knife to her back she could feel it on her. He also
testified that he was upset and mad at Nakatani that morning
because she had not come back to his tent, she was "hanging out"
at the neighbor's tent, she was using meth, and she would not
come home. When asked if he had beat Nakatani in the past, he
testified that he’ would not call it a beating but she ended up
with a black eye that he had given her, but that he had.cuts,
bruises and was hit too. Silva further acknowledged that he
would get mad at Nakatani because she would disappear on him, but
he was used to it already, and that on the day of the incident he
was "really frustrated" because she had not come back to his tent
to help clean up, as he expected and wanted her to do.

The State contends the prior incident of Silva giving
Nakatani a black eye was properly admitted as probative of
Silva's motive, intent, or absence of mistake or accident in
stabbing Nakatani when he once again discovered and became upset
that she was missing on the morning of the incident. The State
does not address Hoshino's testimony about Silva's threat to kill
Nakatani, but we note Silva did not raise this evidence in his
points of error, only briefly in his argument section.
Nonetheless, we will address both the evidence of prior abuse and
the evidence of the threat.

The challenged evidence is admissible under Hawai‘i
Rules of Evidence (HRE) Rule 404(b)? if offered for "substantive

2 HRE Rule 404(b) states, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, modus
(continued...}
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reasons rather than propensity[.]" State v. Behrendt, 124
Hawai'i 90, 103, 237 P.3d 1156, 1169 (2010) (citation omitted).
Here, we conclude that given the record in this case, the
evidence that Silva threatened to kill Nakatani and said "If I
can't have her, no one can,” and that he previously gave Nakatani
a black eye while upset that she had disappeared, are relevant to
Silva's intent, motive, or absence of mistake or accident in
regard to the current subject incident. Based on the testimony
of the State's witnesses, the State contends that Silva
intentionally stabbed Nakatani. Silva, on the other hand, claims
Nakatani fell back after she stood up and he did not know the
knife had penetrated her skin. Given the full record, including
Hoshino's testimony that Nakatani had been trying to make her
relationship with Silva "off," the uncontested evidence that
Nakatani did not return to Silva's tent the night before the
incident, Silva's testimony that he previously got upset at
Nakatani for disappearing and had given her a biack eye; and his
testimony that he was depressed and "really frustrated" the
morning of the stabbing incident because Nakatani had not
returned to their tent, the challenged evidence is relevant to
Silva's intent, motive, or absence of mistake or accident in
regard to the stabbing incident.

2. Balancing the Probative Value of Prior Bad Acts

Silva further contends evidence of the prior bad acts
is weak and unrelated to the incident at issue, and thus unfairly
prejudicial. Even if relevant, “evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." HRE Rule 403

(emphasis added). Under this test, the following factors are

balanced: .
2(,..,continued)

operandi, or absence of mistake or accident.

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{1) the strength of the evidence as to the commission of the
other crime, (2) the similarities between the crimes, (3)
the interval of time that has elapsed between the crimes,

(4) the need for the evidence, (5) the efficacy of
alternative preof, and (6) the degree to which the evidence
probably will rouse the jury to overmastering hostility.

State v. Feliciano, 149 Hawai'i 365, 376-77, 489 P.3d 1277, 1288-
89 (2021) (brackets omitted) {quoting Gallagher, 146 Hawai‘i at
470, 463 P.3d at 1127) (holding that evidence of bad act —
defendant pushing wife out of chair — was improperly admitted,
where such evidence was not probative of any pertinent issue
regarding the subject incident of punching wife's face, and
because even if there was any probative value it was
substantially outweighed by its potential for unfair prejudice).
Courts must give due consideration to all these factors,
especially in light of the "justifiable stigma attached to
domestic abusers in the eyes of the public[.]" Feliciano, 149
Hawai'i at 377, 489 P.3d at 1289 (quoting State v. Lavoie, 145
Hawai'i 409, 414-416, 418-19, 426, 453 P.3d 229, 234-236, 238-39,
246 (2019), as corrected (Dec. 2, 2019) (prior bad acts held not
admissible where defendant shot and killed girlfriend following
separation because prior abuse deemed to have little probative
value as to the shooting, the prior incidents occurred between
eight or ten months to six years before the shooting, and even if
there was slight relevance to extreme mental or emotional
distress defense it was substantially outweighed by the danger of
unfair prejudice); see also State v. Maelega, 80 Hawai'i 172,
183-84, 907 P.2d 758, 769-70 (1995) (prior spousal abuse
admissible where evidence was strong (admitted by defendant or
witnessed by unbiased third-parties), little time had elapsed
between prior acts and incident (most acts within one-month span
of victim's death), spouse died and could not rebut claims by
defendant regarding relationship).

Here, the probative value of Silva's prior bad acts is
not outweighed by any prejudicial effect. First, Hoshino
testified about Silva's threat to kill Nakatani, although Silva
denied making the statement. Though this evidence is disputed,

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Hoshino testified to being a close friend of Nakatani and knew
her well, and her testimony was fairiy strong. With regard to
the prior abuse, Hoshino and Kaipo testified that Nakatani told
them about getting a black eye from Silva, and moreover Silva
himself admitted to giving Nakatani a black eye, which weighs
against exclusion. See Gallagher, 146 Hawai‘i at 470, 463 P.3d
at 1127 ("Because [defendant] does not deny that the prior
incidents occurred and submitted no contrary evidence, the first
factor does not weigh against admittance.").

Further, the stabbing incident was substantially
Similar to the prior incidents in that the prior incidents
involved Silva being possessive over Nakatani and making a threat
or acting out related to his possessiveness, and for the stabbing
incident Silva testified to being upset that Nakatani had not
returned to their campsite when he woke up. Hoshino testified
that Silva was very possessive of Nakatani, that Nakatani was
trying to "off" her relationship with Silva, and that he had made
the threat against Nakatani and said “If I can't have her no one
can." Further, Siiva testified to giving Nakatani a black eye
previously because she would periodically disappear, which upset
him. The prior bad act evidence in this case differs from the
inadmissible evidence in Feliciano and Lavoie, where the supreme
court. indicated the prior acts and incidents at issue were not
sufficiently similar merely because both were acts of domestic
abuse directed toward the victims. See Feliciano, 149 Hawai‘i at
377, 489 P.3d at 1289 ("Here, the alleged 'volitionai activity'
was the alleged punch. The ICA majority did not specify how the
chair incident led to Feliciano's motivation for the alleged
volitional activity.").

Regarding the interval between incidents, Silva made
the threat against Nakatani, and gave Nakatani a black eye,
approximately three months prior to the stabbing, which is closer
in time to the acts held admissible in Maelaga than the
inadmissible acts in Lavoie (eight to ten months before incident)

and Feliciano (eleven months prior to incident).

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To avoid a prohibited inference that a short interval

between incidents may “increase the likelihood that a jury will

conclude that the defendant has a propensity for committing
such acts," the evidence must be "offered for a purpose for which
similarity in time and nature is probative" to weigh in favor of
admissibility. Gallagher, 146 Hawai‘i at 472, 463 P.3d at 1129.
In this case, the prior bad act evidence was probative of Silva's
intent to injure Nakatani out of anger over her disappearing.
Moreover, there were limited and unrelated "surrounding details
of the [prior] incidents" that would outweigh the probative value
of prior acts. See id. (testimony of prior bad acts excluded for
"extensive surrounding details of the incidents” that were
"highly prejudicial" and "had no bearing on [] issue").

The evidence is relevant to Silva's intent, motive, or
absence of mistake or accident to hurt Nakatani, instead of his
contention of placing the knife at her back purely for "dramatic"
effect. See Maelega, 80 Hawai'i at 184, 907 P.2d at 770. Here,
the prior abuse would rebut Silva's claims that he was a iittie
possessive and his relationship with Nakatani was "[a] little
rocky" only because of his concern over the effects of
methamphetamine on her health. This is especially critical
considering, unlike in Feliciano, the victim is no longer alive
to rebut any testimony by the accused about the nature of the
relationship. Moreover, the prior act evidence is needed because
of the limited alternative evidence that Silva had the motive or
intent to hurt Nakatani.

As to the last factor, Silva argues that because a
black eye is primarily intended to inflict fear and pain, while
killing, although "callous and terrible," does not serve the same
primary goal, a black eye is far more "incendiary" and the risk
of prejudice outweighs the probative value of admitting the prior
act. However, considering Silva stated the purpose for putting
the knife on Nakatani's back was "[flor her to get up and leave
with [him,]" implying that he intended to engender fear and
discomfort with the threat of pain for not complying, which is a

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similar reaction Silva argues a black eye intends to elicit,
admitting the prior act as evidence would not likely rouse the
jury to a high degree of overmastering hostility towards Silva.
Balancing ali these factors, the probative value of the evidence
outweighs any prejudicial effect and the Circuit Court did not
abuse its discretion by admitting the prior acts. See Maeiega,
80 Hawai*i at 184, 907 P.2d at 770.

c. Dr. Happy's Rebuttal Testimony Was Properly Admitted

L. Dr. Happy's Rebuttal Testimony Was Not Cumulative

On appeal, Silva argues the Circuit Court abused its
discretion by allowing Dr. Happy to provide cumulative testimony
on rebuttal. On direct-examination Dr. Happy testified, inter
alia, to the path and pressure of the knife that lead to
Nakatani's stab wound. Dr. Happy explained that while it is not
possible to discern the pressure required to cause a particular
stab wound, "the hardest part is to get through the skin and the
underlying soft tissue, the underlying connective tissue of an
individual. That's the portion that's most dense." He then
opined that the cause of Nakatani's death was the stab wound of
the torso that perforated her heart, and her medical conditions
were not a cause of her death.

On cross-examination, Dr. Happy testified about the
easiest path to stab one in the heart, and later regarding
hypothetical reactions to a knife at one's back. Dr. Happy
explained that because the knife used to stab Nakatani appeared
to be "blunted" and not "very sharp," while it would be possible
for someone to "still go into the knife” if felt against the skin
and held "steady," the natural reaction would be to "go away from
the pain.”

Silva testified on direct-examination he did not know
the knife had penetrated Nakatani at any point, believing instead
he had scared her into having a heart attack or stroke due to her
high biood pressure, which caused her to fall back unconscious.

On cross-examination, Silva stated he did not feel the knife

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pierce Nakatani's skin because he was "following her with the
knife" as she stood up.

Upon an offer of proof, the Circuit Court allowed the
State to bring Dr. Happy back as a witness to rebut Silva's
version of the incident. Dr. Happy then testified that the
"natural reflection to the stimulus of pain is to pull away” as
is the case of a knife causing pain at one's back. The State
then described a scenario based on Silva's direct-examination, in
which Silva is "standing to [Nakatani's] right and with his right
hand is holding the flat part of this type of -- of this knife to
her back" and asked, "[w]lould you expect the knife to penetrate
her 11 inches, severing her heart under that scenario?” Dr.
Happy explained that because the knife used to stad Nakatani was
"not a heavy knife [] the person holding the knife would have to
hold [it] steady and not move [it] back." He also added:

There are several things you could do if somebody was moving

relative to your knife and you wanted to not stab them. One

is you could drop the knife. Two is you could move the

knife back . . . . But if you held the knife in place and

you kept it there and didn't move it, the person could

theoretically impale themselves on the knife.

As noted above, evidence may be excluded as cumulative
under HRE Rule 403. "In order for: evidence to be considered
‘cumulative’ for HRE 403 purposes, it must be substantially the
same as other evidence that has already been received." Pulse,
83 Hawaii at 247, 925 P.2d at 815 (citations omitted); see also,
Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 394, 944 P.2qd 1279,
1337 (1997). In other words, unless the testimony is
"unnecessarily duplicative or prejudicial” it can be admitted.
Tabieros, 85 Hawai‘i at 394, 944 P.2d at 1337. Here, Dr. Happy's
testimony during rebuttal differed from his testimony in the
State's case-in-chief in that it further detailed a hypothetical
concerning the factors required to stab someone in the left back
with a weapon, such as Silva's knife, being held in an accused's
right hand as well as steps an accused could have taken to avoid
a stabbing. The Circuit Court did not abuse its discretion in

allowing Dr. Happy's rebuttal testimony.

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2. Dr. Happy's Testimony Was Not Beyond the Scope of
His Expertise

Silva further claims the Circuit Court violated HRE
Rule 702° because Dr. Happy was not qualified to testify on
rebuttal regarding one's reflexes in response to pain and the
amount of pressure to be applied to a knife that would cause an
injury comparable to Nakatani'’s. In State v. Metcalfe, 129
Hawai'i 206, 297 P.3d 1062 (2013), the Hawai‘i Supreme Court held
testimony from a forensic pathologist, that a victim's cause of
death was "a shotgun injury to the back at a distance of
approximately 60 feet[,]" was admissible where the expert was "a
trained, licensed, and certified forensic pathologist," trained
in bailistic and firearm related autopsy, and explained the
formula used to calculate his opinion, Id. at 227-29, 297 P.3d
at 1083-85.* Similarly, in State vy. Allen, No. 30332, 2013 WL.
5926964, at *10 (Haw. App. Oct. 31, 2013) (mem.), this court
rejected the defendant's argument that an expert witness was not
qualified to testify regarding the victim's “wounds being
consistent with 'defensive wounds'"” because the witness, although

highly qualified, was not certified in forensic pathology.°®

3 HRE Rule 702 provides, in relevant part:

If scientific, technical, or other specialized knowledge
WLLl 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.
(emphasis added}.

4 In that case the expert witness was "the coroner's physician for the
County of Maui, Hawai‘i County and the County of Kaua'i; [] a physician and
surgeon licensed in the State of Hawai‘i; [] certified by the American Board
of Pathology in anatomic and clinical pathology and forensic pathology; []
performed over 3,000 autopsies; [] observed in excess of a hundred cases in

which the cause of death was injury caused by a firearm; [] received
ballistics training with the Maryland State Crime Lab; and [] had autopsy
training with respect to death due to firearms." Metcalfe, 129 Hawai'i at

227, 297 P.3d at 1083.

®* There, the witness was the Acting Chief Medical Examiner of the City
and County of Honolulu, licensed te practice medicine in Hawai'i for over
(continued...)

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In his testimony, Dr. Happy explained that an autopsy
consists of "an external and internal examination of a body after
death to determine [] the cause of the death [] and [the] manner
of the death [] for death certificate purposes" followed by a
report compiling the examiners findings. Dr. Happy further
explained that forensic pathologists review "both the medical
record for the injury or illness leading up to death and also
older ones" associated with the victim as'well as police reports,
when appropriate. He also noted that he looks at reports
generated by "medical-legal investigators [from his department]
who go out to scenes of death and document what they see and
collect information about the circumstances surrounding the
death" before conducting the autopsy.

Here, Dr. Happy has extensive experience to testify
about natural human reflexes and the pressure needed to cause
Nakatani's injury with Silva's knife. Besides being the Chief
Medical Examiner for the City and County of Honolulu, Dr. Happy
is licensed to practice medicine in Hawai'i, certified in
anatomic and forensic pathology by the American Board of
Pathology, does yearly medical education courses to maintain his
license, has conducted about 3,000 autopsies, and has testified
as an expert witness in forensic and anatomic pathology in
multiple states, including Hawai'i.

Silva argues Dr. Happy has no expertise in crime-scene
forensics, pain responses, or death investigations, which are
"different crime-scene investigatory roles" than that of a
forensic and anatomical pathologist "who is [typically a medical

examiner! responsible solely for the autopsy portion of the

5(...continued})
forty years, completed a residency in anatomic pathology, and was "board
certified in anatomic pathology (of which forensic pathology is a
sub-speciality) by the American Board of Pathology." Allen, 2013 WL 59260964,
at *10 (mem. op.). Additionally, the expert witness Cestified that "he had
conducted approximately 1,600 forensic autopsies and had previously been
qualified to testify as a medical expert in forensic pathology in the Hawai'i
state courts on about 80 previous occasions over the past eight and a half
years." Id.

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investigation[.]" Quoting Joseph Prahlow, Forensic Pathology for
Police, Death Investigators, Attorneys, and Forensic Scientists,
2010, at 17, 52-53. This argument, however, ignores the main
purposes of an autopsy: to determine the manner of death, which
may entail considering internal and external observations of the
body to reasonably infer situational factors that explain the
cause of injury or death.

Although Silva points to the specific role of a medical
examiner according to relevant Literature, he fails to provide
any sources stating medical examiners cannot make reasonable
inferences regarding the circumstances surrounding death to
determine its cause. Nor does he acknowledge Hawai‘l case law

allowing experts "to testify as to specific matters falling under

the scope of their expertise.” See Allen, 2013 WL 5926964, at
*il (mem.) (citing Larsen v. State Sav. & Loan Ass'n, 64 Haw.
302, 305, 640 P.2d 286, 289 (1982)). As a medical doctor,

understanding natural human reactions as well as injury causes is
within the scope of Dr. Happy's expertise. Moreover, because
determining whether Silva intentionally stabbed Nakatani or
Nakatani unconsciously impaled herself into the knife pertains to
her manner of death, it is within the realm of forensic
pathology, and therefore falls within the scope of Dr. Happy's
expertise. Id. -Accordingly, Dr. Happy was qualified to testify
about natural human reactions to pain and the factors to consider
in Nakatani's injury.
D. The Circuit Court Did Not Err by Failing to Strike or
Limit Testimony in Response to a Sustained Objection
Next, Siiva contends it was plain error for the Circuit
Court not to sua sponte strike his own testimony from the record
or to issue a curative instruction to the jury because the
testimony "negatively affected [Silva's] credibility." On direct

examination, Silva testified as follows:

(DEFENSE COUNSEL]: Okay. Now, you didn't want Lei to be
smoking ice but she smoked ice with you that night?
[SILVA]: Yeah, think so.

Q: Okay. How did you feel about that?

A: I couldn’t do nothing, She going do what she like to do.
QO: And you made it clear to her how you felt?

A: Yeah,

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Q: And -- and you could see how it's kind of hypocritical of
you saying that, right, because you smcking it?
A: Yeah.

QO: Object. Leading, your honor.
The Court: Sustained. Rephrase.

Although the State made an objection to defense counsel's
question that was sustained, defense counsel failed to make a
motion to strike the question and answer from the record. Cf.
State v. Hashimoto, 46 Haw. 183, 195, 377 P.2d 728, 736 (1962)
("When an unresponsive or improper answer is given. . . the
remedy is a motion to strike. Absent such motion, the answer will
generally not be considered when urged on appeal as
prejudicial.") (citation omitted). Thus, Silva waived any
argument that his subject testimony should have been stricken.
Moreover, the State's objection pertained to the leading nature
of defense counsel's question, not substantively to the content
of the testimony as prejudicial. Therefore, all other grounds
for objection besides leading were waived. See State v. Aiston,
No. 28410, 2009 WL 868034, at *16 n.13 (Haw. App. Mar. 31, 2009)
{mem.) ("As a general rule, objecting on a specific ground waives
all other grounds for objection.") (citing State v. Vliet, 91
Hawai'i 288, 299, 983 P.2d 189, 200 (1999)).

BE. Silva's Trial Counsel Was Not Ineffective

Lastly, Silva claims ineffective assistance of counsel
because defense counsel “elicited damaging testimony" and
"severely hurt [Silva]'s credibility before the jury" by getting
Silva to admit he smoked methamphetamine and is a hypocrite.
Importantly, "[s]pecific actions or omissions that are alleged to
be erroneous but that had an obvious tactical basis for
benefitting the defendant's case will not be subject to further
scrutiny." State v. Salavea, 147 Hawai‘i 564, 576, 465 P.3d
1011, 1023 (2020) (citing omitted).

In review of the whole record, we reject Silva's
assertion of ineffective assistance of counsel. First, Silva's
testimony that he used methamphetamine had a tactical advantage
of casting him in a sympathetic light for the jury by
demonstrating he cared about Nakatani's health conditions perhaps

more than his own. Further, it arguably was a way to establish

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Silva's credibility because he tacitly admitted to using
methamphetamine when justifying the reason he took his knife to

the tent to retrieve Nakatani:

Q. Did you think you needed protection?

A, Yeah. ‘

Q. From whom?

A. From everybody.

Q. Why?

A. Because the homeless is -- it can be dangerous and I was --
I was scared. Paranoid already.

Q. [D]id it also apply to the homeless people in that specific
campsite that you were living in?

A. Yeah, 'cause they -- all kind different people come and go.
Q. And were some of the people in the homeless community on
meth?

A. Yeah, everyone.

Based on the tactical basis for raising Silva's methamphetamine
use, Gefense counsel's competence should not be further
scrutinized on the issue. Salavea, 147 Hawai‘i at 576, 465 P.3d
at 1023.

Similarly, defense counsel's question to Silva that it
was hypocritical to get angry at Nakatani for using
methamphetamine while he did the same, was again a tactical
effort to show he cared about Nakatani'’s health, regardless of
his own drug use. Given Silva's testimony in this case, this was
an understandable effort to portray Silva's position in a
realistic light, and we conclude defense counsel was not
ineffective.

IV. Conciusion

Based on the foregoing, the "Judgment of Conviction and
Sentence" entered on May 3, 2018, by the Circuit Court of the
First Circuit, is affirmed.

DATED: Honolulu, Hawai‘i, January 18, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge

Kai Lawrence,

for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge

Brian R. Vincent,

Deputy Prosecuting Attorney,

for Plaintiff-Appellee

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. OPINION BY HIRAOKA, J.
CONCURRING IN PART AND DISSENTING IN PART

I respectfully dissent. Trial by an impartial jury is
a fundamental right under both the United States Constitution and
the Hawai'i Constitution. State v. Williamson, 72 Haw. 97, 102,
807 P.2d 593, 596 (1991). The trial judge is the guardian of
that right. "(T]he judge is the only person in a courtroom whose
primary duty is to ensure the selection of a fair and impartial
jury." State v. Carroll, 146 Hawai‘i 138, 152, 456 P.3d 502, 516
(2020} (cleaned up).

After Silva's jury was empaneled but before opening
statements were given, the trial court addressed the jury:

And I wanted to say another thing. We went through

two and a half days of jury selection to get to the process

where we have our jury and three alternates. So all of you

were not excused, all of you were not deferred, and I

believe someone, at least one of you have papers to present

to me. I'm not going to look at it because it is too late

to give me any papers to try to get excused from the jury.

We went through two and a half days of jury selection with

over a hundred jurors to get to this point so we need to get
the trial started and underway.

(Emphasis added.)*® Silva contends (for the first time on appeal)
that the trial court should have sua sponte conducted an
investigation into potential juror bias. Rule 52(6) of the
Hawai'i Rules of Penal Procedure (HRPP) states that "[p]lain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court."

An appellate court "will apply the plain error standard of review
to .. . prevent the denial of fundamental rights." State v.
Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006)

(citations omitted}.

8 It was not "too late" for the trial court to investigate potential
jurer bias. A juror may become, or be found to be, disqualified to perform
their duties at any time "prior to the time the jury retires to consider its.
verdict[.]" Rule 24{c) of the Hawai‘i Rules of Penal Procedure (HRPP).
"TAjlternate jurors who have already been passed for cause and survived
peremptory challenges and thus have been ultimately chosen as alternate jurors
for the case may be used to replace ‘regular' jurors during triai when regular
jurors, for some reason or another, become disqualified." State v. Ho, 127
Hawai‘i 415, 424-25, 279 P.3d 683, 692-93 (2912) {citing HRPP Rule 24(¢c)).
There were three alternate jurors on Silva's jury.
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In State v. Keliiholokai, 58 Haw. 356, 569 P.2d 891
(1977), a newspaper reported about the defendant's prior
convictions during the trial. The defense asked the trial court
to determine whether any of the jurors had read the news article
and, if so, whether the article impaired their ability to sit as
fair and impartial jurors. The trial court denied the request.
The jury found the defendant guilty of murder. On direct appeal
the supreme court held:

Where . . . the probabilities of prejudice are not

clearly evident and it is not known whether the jurors have

been exposed to the prejudicial newspaper accounts during

trial, the rule is that once the existence of such news

accounts has been brought to the attention of the trial

court, the court must ascertain the extent and effect of the

infection, and thereafter, in its sound discretion, take
appropriate measures to assure a fair trial.

Our duty, then, on review of the actions taken by the
trial court on this issue, giving due deference to the trial
court's discretion, is to make an independent examination of
the totality of the circumstances to determine if there are
any indications that the defendant's trial was not
fundamentally fair.

id. at 358-60, 569 P.2d at 894-95 (cleaned up). The supreme
court reversed the conviction and remanded for a new trial.

In Williamson, 72 Haw. 97, 807 P.2d 593, during ©
deliberations the jury requested a dictionary to look up the
words "preponderance" and "entrapment." The trial court denied
the request and referred the jury to the specific instructions
that defined each word. After the jury ended deliberations but
before the verdict was returned, the bailiff discovered a
dictionary in the jury room. The defendant moved for a mistrial.
The trial court interrogated the foreperson, who denied that the
dictionary was actually consulted. It was apparent from context
that the foreperson was not the one who brought the dictionary
into the jury room, but the trial court did not ask which juror
brought the dictionary. The trial court instead asked the
foreperson whether the juror who brought the dictionary read the

definitions and then participated in deliberations. The

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foreperson responded, "it was not used." Id. at 101, 807 P.2d at
595-96. The trial court denied the motion for mistrial. The
jury returned a verdict of guilty as charged.

The defendant appealed. The supreme court held:

Once there is a claim that an accused is being denied
[their] right to a fair trial because of outside influences
infecting a jury, the initial step for the trial court to
take is to determine whether the nature of the outside
influence rises to the level of being substantially
prejudicial. If it does not rise to such a level, the trial
court is under no duty to interrogate the jury. And whether
it does rise to the level of substantial prejudice is
ordinarily a question committed to the trial court's
discretion. Where the trial court does determine that such
influence is of a nature which could substantially prejudice
the defendant's right to a fair trial, a rebuttable
presumption of prejudice is raised. The trial judge is then
duty bound to further investigate the totality of
circumstances surrounding the outside influence to determine
its impact on jury impartiality. The standard te be applied
in overcoming such a presumption is that the outside
influence on the jury must be proven harmiess beyond a
reasonable doubt. The trial court, in its investigation of
the totality of circumstances, should include individual
examination of potentially tainted jurors, outside the
presence of the other jurors, to determine the influence, if
any, of the extraneous matters.

Id. at 102, 807 P.2d at 596 (cleaned up) (emphasis added). The
supreme court reversed the conviction and remanded for a new
trial.

I acknowledge, as the majority points out, that "[t]he
defendant bears the initial burden of making a prima facie
showing of a deprivation that could substantially prejudice

ftheir] right to a fair trial by an impartial jury." State v.
Furutani, 76 Hawai'i 172, 181, 873 P.2d 51, 60 (1994) (cleaned
up). But that assumes the defendant knows the nature of the

potential deprivation. In this case, the trial court did not
make a record of what “papers" the juror (or jurors) wished to
"present"; nor did defense counsel ask to review the "papers" to
determine whether the investigation described in Williamson, 72
Haw. at 102, 807 P.2d at 596, was warranted. Because such an
investigation was not conducted, I cannot conclude that Silva's

fundamental right to a fair trial by an impartial jury was not

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compromised. See State v. Chin, 135 Hawai‘i 437, 449, 353 P.3d
979, 991 (2015). Under the circumstances, it is possible that
Silva was deprived of a fair trial by an impartial tury.

Silva did not raise the issue of double jeopardy, and
in fact requested a new trial. I concur with the majority that
there was no evidentiary trial error. I also concur with the
majority that Silva's trial counsel was not ineffective during
the presentation of evidence; there were strategic reasons for
Silva to admit smoking methamphetamine and being hypocritical
about Nakatani's own use of methamphetamine. In my view, the
evidence presented to the jury was sufficient to sustain the
conviction.

For the foregoing reasons, I would vacate the Judgment
of Conviction and Sentence entered on May 3, 2018, and remand

this case to the circuit court for a new trial.

/s/ Keith K. Hiraoka
Associate Judge