State v. David.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-SEP-2021
07:55 AM
Dkt. 5 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

PETER DAVID,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1PC111000050)

SEPTEMBER 9, 2021

NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.;
AND RECKTENWALD, C.J., DISSENTING

OPINION OF THE COURT BY EDDINS, J.

On the night of New Year’s Day 2011, Peter David killed his

cousin Santhony Albert. The two had been drinking at family

gatherings. They fought outside a relative’s apartment. David

stabbed Albert. David said he acted in self-defense.
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A jury convicted David of assault in the first degree. The

Intermediate Court of Appeals affirmed.

David challenges the trial court’s ruling preventing him

from advancing evidence of Albert’s .252 blood alcohol

concentration (BAC) level unless he called an expert to explain

its meaning.

We hold that the trial court erred in conditioning the BAC

evidence on such expert testimony. Excluding the BAC evidence

undercut David’s constitutional right to present any and all

competent evidence to support his defense. It violated David’s

due process right to a fair trial.

We vacate David’s conviction for assault in the first

degree and remand the case to the circuit court. 1

1 In this appeal, David also argues that several remarks made during
trial by the deputy prosecuting attorney constituted prosecutorial
misconduct. Because we do not find reversible error in the ICA’s analysis of
his prosecutorial misconduct claim, see State v. David, No. CAAP-XX-XXXXXXX,
2020 WL 5821323 at *5-*9 (App. Sept. 30, 2020) (mem. op.), we decline to
address this issue. Given that the trial court’s error regarding the BAC
evidence only affected David’s conviction in Count 1, we affirm the ICA’s
Judgment on Appeal and the Circuit Court of the First Circuit’s Judgment of
Conviction and Sentence relating to Count 2. In Count 2, the jury convicted
David of assault in the third degree relating to an incident after the
stabbing. Because the jury could not unanimously answer a special
interrogatory asking whether the assault was “committed in a fight or scuffle
entered into by mutual consent,” the court convicted David of assault in the
third degree’s petty misdemeanor variant (Hawaiʻi Revised Statutes (HRS)
§ 707-712(2)(1993)).

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I. BACKGROUND

This was David’s second jury trial. 2 In his first trial,

David faced a murder in the second degree charge. 3 The jury

convicted him of manslaughter. Because the trial court had

admitted improper rebuttal testimony, this court vacated David’s

conviction. State v. David, 141 Hawaiʻi 315, 317, 409 P.3d 719,

721 (2017).

On retrial, the prosecution called several of David and

Albert’s relatives. David also testified. 4

David and Albert spent New Year’s Day socializing with

family members. Like most of the men at the family gatherings,

they drank alcohol. Late in the evening, the cousins fought in

a parking lot fronting a family member’s apartment. David

stabbed Albert. Albert died.

Before the fatal altercation, David and Albert were

drinking in the apartment. David testified he asked Albert for

a beer. Albert responded by punching him in the face. He also

struck David with a beer bottle and boasted, “you see, I can

beat you up.” Albert’s comment appeared connected to an earlier

incident at a different family member’s apartment. There, David

2 The Honorable Paul B. K. Wong presided.
3 The Honorable Randal K. O. Lee presided.
4 A Chuukese interpreter interpreted David’s testimony and interpreted
for him during the trial.

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explained, he went outside. Albert followed him and taunted:

“[W]hat [are you] looking at[?] . . .[Y]ou want me to beat you

up[?]” David said he ignored Albert. He knew Albert was

“drunk.”

David testified that not long after Albert punched him and

hit him with a beer bottle, Albert went downstairs to the

parking lot. He called David to meet him there. David did, but

only to ask Albert to return to the apartment, not to fight.

David said Albert kicked and punched him. David fell facedown;

he was pinned between two cars. Albert stood above him. Albert

continued to kick and punch him. David said he feared for his

life. He felt “very scared” and thought he was “going to die

from what [Albert was] doing.”

David told the jury he acted in self-defense. He “grabbed

something.” He swung the object behind him toward Albert. When

asked about his state of mind, David explained: “I was

protecting myself, thought that something was going to happen to

me. So that’s –– that’s why I did that, not knowing at what he

was going to –– what the assault was going to be.” David

insisted he “was just trying to protect [him]self from injury,

continuing threat . . . in a moment of rush.”

David was unsure whether he contacted Albert with the

object. But Albert stopped hitting him. Albert ran away.

David followed. Soon, he saw Albert walking to the apartment

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with help from another relative. He saw Albert fall to the

ground. David left; he later learned that Albert had died.

The next day, a forensic pathologist performed an autopsy.

Albert’s blood was drawn and tested. The toxicology report

showed that Albert’s BAC was .252.

At David’s first trial, the State presented BAC evidence

testimony from the forensic pathologist. She informed the jury:

“[Albert] did have alcohol, and the level was .25 percent.”

The second trial was different. This time, the State moved

in limine to preclude admission of the .252 BAC evidence. The

trial court ruled that the presence of alcohol in Albert’s blood

was admissible. But the court prevented any references to the

“actual number.” It reasoned:

With respect to the toxicology result performed on Santhony
Albert as part of the autopsy that was conducted by the
Honolulu Medical Examiner’s office, the Court denies
State’s motion in limine. The presence of blood alcohol
level in . . . Mr. Albert’s body is relevant and
corroborative of testimony that is going to be presented in
this case. So the fact that there is alcohol in the
decedent’s blood is admissible.

The actual number, though, the .252, the Court is going to
preclude, unless there’s linkage, unless there is going to
be some kind of testimony that will explain what the .252
means or does or how it affects the particular decedent in
this case. So that’s a very high bar, I think, because
alcohol has different effects on different people.

And how drunk the decedent might have been is available to
both parties by way of lay testimony and the percipient
witnesses that observed the decedent on the date of the
offense.

(Emphases added.)
Before the forensic pathologist testified, David moved the

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court to reconsider its ruling. The court denied the motion:

The actual [BAC] number does provide the opportunity for
the jury to speculate and perhaps even be confused because
without any expert testimony to explain the meaning of the
number, it is, in this Court’s opinion, speculative. As
indicated by [the State], alcohol affects people
differently. In addition to tolerance of individuals,
their weight and their metabolic makeup also affect the
ability to process alcohol in a person’s system and
therefore minimize or enhance the effect of any particular
blood alcohol on that person. So without any anchoring
testimony to explain the number, it is in fact speculative.

And with respect to common understanding as to the legal
limit for driving, while .08 is the legal limit established
by the legislature to delineate the line in the sand as to
whether or not a person is operating a vehicle under the
influence of an intoxicant, it really doesn’t point out to
the amount of impairment that person is actually
experiencing. At one point in time, the legal limit not
too long ago was .10, and for other states, it has been a
different number, and again, that number, without some
anchoring testimony, is speculative and does not add
anything to the jury’s consideration of the case.

So based on [Hawaiʻi Rules of Evidence (HRE)] Rule 403,
[David’s] request is respectfully denied.

(Emphasis added.) The court further ruled that defense counsel

could not ask the forensic pathologist whether there was a “high

level of alcohol” in Albert’s blood. 5

The expert then testified that Albert’s blood contained

alcohol; she did not reference his BAC or generally describe the

level of alcohol in his blood. 6

5 The court believed:

The amount of intoxication that the decedent actually
experienced is more accurately portrayed by the demeanor or
the actions as seen by percipient witnesses and the amount
of perhaps Budweiser or hard liquor drank by the decedent
by percipient witnesses rather than the number or whether
or not the blood level or blood alcohol level at the
autopsy is high or low.
6 At trial, the forensic pathologist also testified that a stab-like
wound penetrated Albert’s lung and heart, “slightly at an upward angle,”

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David’s defense centered on his account of what happened.

It also featured a Honolulu Police Department officer’s

testimony. Officer Violet Williams recounted an unconnected

incident where an intoxicated Albert acted aggressively and

irrationally toward her and other officers. Officer Williams

testified that she responded to a “fight call” in November 2008.

About twenty people were yelling at each other in a parking lot.

As she was instructing everyone to leave, Albert approached her

from behind. He pushed her left arm. He yelled, “fuck you, you

bitch.” He called her “pig” and other vulgarities. Officer

Williams described Albert’s demeanor as “extremely irate,”

“uncooperative,” and “disrespectful.” She smelled alcohol on

his breath; he “appear[ed] to be intoxicated.” When she tried

to arrest Albert, he resisted. After he was placed in a police

car, he kicked toward Officer Williams and other officers.

During closing argument, defense counsel spotlighted

Albert’s drunken, aggressive behavior to support David’s

defense:

[W]e know how [Albert] is when he’s drunk, intoxicated.
This is circumstantial evidence as to who is first
aggressor in this case.

At another time how was [Albert] acting when he was
intoxicated, even to a police officer? He’s drunk, he’s
argumentative, he’s belligerent, he’s swearing. This is a

causing severe bleeding leading to his death. She opined that the “small
irregular-shaped hole” in Albert’s upper left chest was inconsistent with a
knife wound; it was likely caused by “a narrow, pointed, elongated
object . . . at least 4 inches or more in length.”

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window, circumstantial evidence as to what Santhony Albert
was on this particular January 2nd, 2011. He was the first
aggressor, ladies and gentlemen. 7

The jury heard evidence about David and Albert’s drinking.

The witnesses generally discussed that “the men” at the family

gatherings were drinking. But no witness testified about the

quantity and frequency of Albert’s alcohol consumption. And

only one witness (aside from David) described Albert’s condition

as “drunk.” 8 Albert’s BAC - the only evidence objectively

quantifying the extent and degree of Albert’s intoxication – was

kept from the jury.

II. DISCUSSION

A. The probative value of the BAC evidence was not
substantially outweighed by the danger of confusing or
misleading the jury or unfairly prejudicing the State

Neither the trial court nor the ICA believed the BAC

7 The defense’s opening statement also focused on Albert’s intoxicated,
violent behavior:

A bruise to the forehead, a black eye to the right eye, a
severe laceration to the bridge of his nose, a laceration
to his neck, abrasions or lacerations to the right forearm,
abrasions to his knee, some bruising to his back, some
injuries to his heel and his feet.

The evidence will show these are the visible injuries that
[David] sustained from a drunken attack from his own
cousin, Santhony Albert, on New Year’s night, 2011. What
the evidence will show is that it came to a split-second
decision, a choice between getting beaten up bad and
potentially being killed or defending himself against his
own cousin.

(Emphasis added.)
8 On cross-examination, this witness conceded that in an earlier
proceeding (David’s first trial), she had testified Albert appeared drunker
than David.

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evidence was irrelevant. Rather, its preclusion was based on

the defense’s failure to hire an expert to explain its meaning.

We conclude that defense expert testimony was not necessary

to admit Albert’s .252 BAC. 9 The typical adult citizen has the

aptitude to understand, weigh, and value the reasonable

inferences drawn from a decedent’s .252 BAC in a self-defense

case. This ability comes from jurors’ common knowledge and life

experience regarding BAC and alcohol’s association with

aggression. The trial court’s concern about confusing or

misleading the jury was misplaced. The court erred in requiring

expert testimony about Albert’s BAC and its behavioral impact.

1. Albert’s .252 BAC was highly probative to David’s
defense

Protecting himself against his heavily intoxicated and

violent cousin formed the nucleus of David’s defense. David’s

self-defense claim pivoted on evidence that Albert became

aggressive after drinking a lot of alcohol. The defense

unveiled its theory during opening statement and bookended it in

closing argument.

To support his defense, David testified that shortly before

the fatal event, Albert was drinking alcohol and got violent

with him. David asked Albert for a beer. Albert did not give

9 Proper foundation must be laid to admit BAC results. State v. Villena,
140 Hawaiʻi 370, 376, 400 P.3d 571, 577 (2017).

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him a beer. Instead, Albert struck David with a beer bottle and

punched him in the face.

David described the moments preceding Albert’s death.

David told the jury that Albert started the fight. Albert

punched and kicked him. Albert continued to attack him after

David fell to the ground. David feared for his life. So he

stabbed Albert.

To further support his defense theory, David called Officer

Williams. Her testimony was relevant to Albert’s history of

exhibiting combative behavior when drunk. She described

responding to a “fight call” where an intoxicated, “extremely

irate” Albert pushed her from behind, yelled vulgarities at her,

and acted irrationally and aggressively toward police officers.

By showing Albert’s violent, drunken behavior, David

provided a sufficient basis to admit the BAC evidence. See

Swilley v. State, 295 So. 3d 362, 365-66 (Fla. Dist. Ct. App.

2020) (reasoning that the jury could hear BAC evidence where the

defendant claiming self-defense testified that the complainant

was aggressive when drinking and smelled like alcohol during the

incident).

The BAC evidence provided an objective, scientific basis

for the jury to evaluate the extent and degree of Albert’s

intoxication. The evidence certified Albert’s highly inebriated

condition. It had a tendency to prove consequential facts

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central to David’s defense: It would have (1) aided the jury’s

determination as to who was more likely the aggressor; (2)

assisted the jury in understanding David’s state of mind and his

perception of imminent harm; and (3) helped corroborate David’s

view that Albert was acting violently and erratically while

intoxicated, causing David to believe lethal force was necessary

to protect himself. See Durrett v. Commonwealth, No. 2014-SC-

000177-MR, 2015 WL 4979723 at *5 (Ky. Aug. 20, 2015) (mem. op.)

(“Anytime someone is killed and the killer claims that he did so

to protect himself, the behavior of the victim is obviously

going to be of principal importance. And evidence that the

deceased was intoxicated when he died can be relevant to

assessing who was the aggressor by allowing for a fuller

understanding of the victim’s behavior and the killer’s

perception of imminent harm.”) 10; State v. Baker, 623 N.E.2d 672,

10 In Durrett, the Kentucky Supreme Court further opined that

BAC evidence was relevant insofar as [the decedent’s]
inebriation might help explain the aggressive behavior
alleged by Durrett and thereby corroborate Durrett’s
version of events. And it could also have been further
relevant to explain why Durrett may have been acting under
an erroneous belief of the need to act in self-defense or
in the degree of force necessary as part of an imperfect
self-defense, which Durrett was entitled to have the jury
consider.

2015 WL 4979723 at *5. However, the Durrett court ultimately held that the
trial court did not abuse its discretion by excluding the deceased’s BAC
because it was “not particularly corroborative” of the defendant’s self-
defense claim. Id. at *6. Unlike the present case where David and Albert
drank together and had a physical altercation before the deadly incident,
Durrett did not interact with the deceased “except, possibly, locking eyes”
right before he shot him. Id. at *5. The alleged threat in Durrett occurred
hours before the shooting. Id. The Durrett court held that “[d]ue to the

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677 (Ohio Ct. App. 1993) (holding that the trial court erred in

excluding evidence of the decedent’s blood alcohol level because

it was “important to the issue of self-defense, relevant

specifically to the issue of who was more likely the aggressor

in the incident”).

Albert’s .252 BAC had high probative value. It far

exceeded the evidentiary value attached to witness testimony

recalling Albert’s drinking or lay opinion testimony describing

him as “drunk.”

2. HRE Rule 403 favors admission of the BAC evidence
without “anchoring” expert testimony

a. BAC levels and the association between excessive
alcohol consumption and aggression are within the
common knowledge and experience of ordinary jurors

Blood alcohol concentration evidence requires little

explanation. The national standard for driving under the

influence of alcohol is .08. See Missouri v. McNeely, 569 U.S.

141, 169-70 (2013) (Roberts, C.J., concurring in part and

dissenting in part) (“All 50 States and the District of Columbia

have laws providing that it is per se illegal to drive with a

BAC of 0.08 percent or higher.”); see also HRS § 291E-61(a)(4)

(2020) (prohibiting operation of a vehicle “[w]ith .08 or more

shooting’s temporal remoteness to the only instance of alleged aggressive
behavior by [the deceased], the probative value of the BAC evidence here was
very low.” Id. In contrast, the probative value of Albert’s BAC was high
given the testimony regarding Albert’s drinking and his aggressive behavior
toward David both shortly and immediately before the deadly fight.

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grams of alcohol per one hundred milliliters or cubic

centimeters of blood”). 11

BAC tests numerically quantify alcohol consumption. The

decimal .08 is possibly the most recognizable number in criminal

law. The mass media communications industry routinely publishes

BAC numbers. 12 Public safety and health advisements also

reference BAC levels. 13 The ordinary person may not understand

11 Hawaiʻi adopted the .08 threshold in 1995. See 1995 Sess. Laws Act 226,
§ 9 at 587 (amending former HRS § 291-4 governing “[d]riving under the
influence of intoxicating liquor” to set the BAC threshold at .08). Hawaiʻi
law recognized the dangers associated with high BAC levels by providing for
increased punishment for “highly intoxicated drivers” (defined as those with
a BAC level exceeding .15). HRS §§ 291E-1 (2007), 291E-41(b) (2007 & Supp.
2008), 291E-61(b) (2007 & Supp. 2008). In 2009, the legislature removed
these increased sanctions. 2009 Sess. Laws Act 88, §§ 5, 6 at 215, 217. And
in 2010, it repealed the definition of “highly intoxicated driver.” 2010
Sess. Laws Act 166, § 5 at 399. In July 2021, the legislature resurrected
the definition of “highly intoxicated driver” and re-imposed increased
sanctions on these drivers. Act 216 (July 6, 2021).
12 See, e.g., Richard Winton, Judge expunges Mel Gibson’s drunk-driving
conviction, L.A. TIMES (Oct. 7, 2009, 12:00 AM PT),
https://www.latimes.com/archives/la-xpm-2009-oct-07-me-gibson7-story.html
[https://perma.cc/D65K-SFB2] (discussing actor Mel Gibson’s 2006 drunk
driving conviction based on his .12 BAC and his belligerent behavior at the
time of the arrest, including “profane outbursts” and “repeated threats
against the arresting deputy”).
13 See, e.g., Planning and Implementing Screening and Brief Intervention
for Risky Alcohol Use: A Step-by-Step Guide for Primary Care Practices, CDC
4, 8, n.c. (2014) (emphasis added),
https://www.cdc.gov/ncbddd/fasd/documents/alcoholsbiimplementationguide.pdf
[https://perma.cc/73RJ-T733] (defining “binge drinking” as consuming more
than the CDC’s single day limit within a two-hour period because “drinking at
this level typically brings the average adult’s blood alcohol concentration
(BAC) above 0.08 g/dL” and reporting that “[b]inge drinking is associated
with a wide range of . . . health and social problems, including sexually
transmitted diseases, unintended pregnancy, and violent crime”); Traffic
Safety Facts: 2018 Data, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN. 1 (2019),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812864
[https://perma.cc/Z42E-PCLK](“In 2018 there were 10,511 fatalities in motor
vehicle traffic crashes in which at least one driver had a BAC of .08 g/dL or
higher.”).

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how a BAC level is calculated or what it means chemically. See

State v. Werle, 121 Hawai‘i 274, 282, 218 P.3d 762, 770 (2009)

(stating “[b]lood alcohol tests are scientific in nature”). But

adults in the United States generally share a basic

understanding that .08 is a threshold quantification of alcohol

consumption that impairs an individual’s physical and mental

faculties and ability to safely drive a car. It is also common

knowledge, and an unremarkable proposition, that the higher a

person’s BAC, the more impaired the person becomes by alcohol’s

effects. 14

“Scientists and nonscientists alike have long recognized

a[n] . . . association between alcohol consumption and violent

or aggressive behavior.” 15 A strong association between alcohol

14 See The ABCs of BAC: A Guide to Understanding Blood Alcohol
Concentration and Alcohol Impairment, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN. (2016)
(emphasis removed), https://www.nhtsa.gov/staticfiles/nti/pdf/809844-
TheABCsOfBAC.pdf [https://perma.cc/B6W2-A3PG] (explaining that “[t]he more
you drink, the higher your BAC” and “the greater the effect [of alcohol]” and
conveying that “[d]rivers with a BAC of .08 are approximately 4 times more
likely to crash than drivers with a BAC of zero” while those with a BAC of
.15 are “at least 12 times more likely to crash than drivers with a BAC of
zero”). As the Dissent points out, see dissent at 2, n.1, various sources
cited in this opinion’s footnotes, including those published by reputable
media and international organizations as well as U.S. government agencies,
were not before the trial court. This fact does not preclude us from relying
on them to show that BAC and the association between alcohol and aggression
are well-known. See State v. Won, 137 Hawaiʻi 330, 366, 372 P.3d 1065, 1101
(2015) (Nakayama, J., dissenting) (citing various publications from the
National Highway Traffic Safety Administration and California Department of
Motor Vehicles to explain the link between “extreme OVUII,” “recidivism,” and
“drunk-driving fatalities”).
15 Alcohol Alert, NAT’L INST. ON ALCOHOL ABUSE AND ALCOHOLISM (updated Oct. 2000),
https://pubs.niaaa.nih.gov/publications/aa38.htm [https://perma.cc/JE6B-
NQ2B].

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use and domestic violence and sexual violence is likewise well-

known. 16 Increased alcohol consumption may not cause violent or

aggressive behavior, but ordinary adults understand the link

between the two. 17

Courts have long recognized that alcohol’s effects such as

violence are within jurors’ common understanding. See Byrd v.

State, 123 So. 867, 869 (Miss. 1929) (acknowledging that “it is

a matter of common observation that intoxication excites or

emphasizes the ordinary characteristics of the person and makes

a quarrelsome or dangerous man more so”); see also State v.

Ferrer, 95 Hawai‘i 409, 427, n.17, 23 P.3d 744, 762, n.17 (App.

2001) (citations omitted) (recognizing that “certain reactions

to alcohol are so common that [courts] take judicial notice of

16 See Preventing violence by reducing the availability and harmful use of
alcohol, WHO 3 (2009),
https://www.who.int/violence_injury_prevention/violence/alcohol.pdf
[https://perma.cc/RJ2H-PQ7L] (“Importantly, the role of alcohol in aggression
extends across many different forms of violence, including youth violence,
sexual violence, intimate partner violence, child maltreatment and elder
abuse.”).
17 See U.S. DEP’T. OF HEALTH AND HUMAN SERVS., Tenth Special Report to the U.S.
Congress on Alcohol and Health: Highlights from Current Research 63 (2000)
[hereinafter, Special Report to the U.S. Congress] (“Studies of violent
incidents have continued to find that alcohol use often precedes violent
events and that the amount of drinking is related to the severity of the
subsequent violence.”); see also Raul Caetano, et al., Alcohol-Related
Intimate Partner Violence Among White, Black, and Hispanic Couples in the
United States, NAT’L INST. ON ALCOHOL ABUSE AND ALCOHOLISM,
https://pubs.niaaa.nih.gov/publications/arh25-1/58-65.htm
[https://perma.cc/G9H4-WEUM] (citations omitted) (“A considerable proportion
of the violence that occurs in the United States is associated with alcohol.
A review of the literature on alcohol and violent crime concluded . . .
homicide victims are more likely than their assailants to have been
intoxicated if they provoked the fight.”).

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them” and these reactions include “[d]isorderly or unusual

conduct”); State v. Randles, 334 P.3d 730, 734 (Ariz. Ct. App.

2014) (stating that it is “common knowledge that alcohol can

cause belligerence and aggressiveness”); Lyons Farms Tavern,

Inc. v. Mun. Bd. of Alcoholic Beverage Control, 261 A.2d 345,

351–52 (N.J. 1970) (noting that “[i]t is common knowledge that

the use of intoxicants frequently unduly excites the tempers,

emotions and actions of those who indulge”).

The temporal and individual variations of alcohol’s impact

are similarly within jurors’ common understanding. They

understand that alcohol affects people in different ways. See

Lynn v. Stinnette, 31 P.2d 764, 767 (Or. 1934) (“It is common

knowledge that intoxicating liquor has varying effects on

different individuals. Some it impels to boisterousness and

loud talking; others, to quarrelsomeness and sullenness.”);

State v. Noble, 250 P. 833, 834 (Or. 1926) (declaring it was a

“matter of common knowledge” that drinking alcohol “has some

effect upon the person drinking it, and that this effect

continues for a longer or shorter period, according to the

amount drunk, and the individual drinking it”).

Because BAC and the link between alcohol and aggression are

within ordinary adults’ common knowledge, David’s jury was

“fully capable of making the connections to the facts of [this]

particular case before them and drawing inferences and

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conclusions therefrom.” State v. Salavea, 147 Hawaiʻi 564, 582,

465 P.3d 1011, 1029 (2020).

b. Expert testimony about Albert’s BAC and its
effects was unnecessary

Under HRE Rule 702, 18 a person with “specialized knowledge”

may testify if the knowledge “will assist the trier of fact to

understand the evidence or to determine a fact in issue.”

Specialized knowledge testimony imparts “knowledge not possessed

by the average trier of fact who lacks the expert’s skill,

experience, training, or education.” State v. McDonnell, 141

Hawai‘i 280, 291, 409 P.3d 684, 695 (2017) (citation omitted).

When the issues in the case are within jurors’ common

knowledge, however, “expert testimony is unnecessary.” Brown v.

Clark Equip. Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980).

We conclude that alcohol and its association with violence fall

into this category. Understanding the BAC evidence and

alcohol’s impact on Albert is not beyond the firsthand personal

experiences and secondhand information accumulated by typical

jurors. The jury knows an individual’s .252 BAC means that the

18 HRE Rule 702 (1992) provides:

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

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individual is highly drunk; using the common knowledge about

intoxication and its association with aggression, the jury can

evaluate the BAC and its behavioral impact. So it was improper

for the circuit court to make the defense hire an “expert” to

explain the BAC evidence before the jury could hear that

evidence.

Courts in other jurisdictions have not required expert

testimony in similar situations. In State v. Randles, an

Arizona self-defense case, the trial court admitted a defense

expert’s testimony regarding cocaine’s effects. 334 P.3d at

733. Expert testimony on alcohol’s effects, however, was

excluded. Id. Thus, without expert testimony, the jury

considered evidence of the decedent’s .13 BAC. Id. at 734. In

upholding the ruling, the Randles court reasoned that the jury

was able “to fully evaluate [the defendant’s] self-defense

claim” based on “the common knowledge that alcohol can cause

belligerence and aggressiveness,” in combination with other

evidence presented to the jury. Id. See also Dixon v. Stewart,

658 P.2d 591, 597 (Utah 1982) (observing that “it is generally

held that expert testimony is not required in the case of

intoxication with alcohol”).

Alcohol’s behavioral effects are familiar to the average

juror. But the behavioral effects of drugs may not be.

Reflecting this difference, some courts require expert testimony

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on the effects of drugs, but not on the effects of alcohol. See

id. (observing that “some jurisdictions have specially held that

a more trained or experienced observer is necessary to testify

as to the intoxicating effects of drugs” while expert testimony

on alcohol’s impact is generally not required).

Even so, Hawaiʻi courts have allowed evidence about an

eyewitness’s drug use and addiction without expert testimony.

See State v. Sabog, 108 Hawai‘i 102, 111, 117 P.3d 834, 843 (App.

2005) (holding that expert testimony was not a precondition to

cross-examine a witness about drug use and addiction near the

time of the incident); see also State v. Calara, 132 Hawai‘i 391,

402, 322 P.3d 931, 942 (2014) (acknowledging that “a defendant

is entitled to cross-examine a witness concerning the witness’s

drug use and addiction at or near the time of the incident to

the extent that it affected the witness’s perception or

recollection of the alleged event” (cleaned up)).

On subjects that are unfamiliar to the jury, we have

acknowledged the trial court’s discretion to admit expert

testimony. See State v. Udo, 145 Hawaiʻi 519, 525-30, 454 P.3d

460, 466-71 (2019) (referencing expert testimony on cause of

death in a homicide case); State v. Yamada, 99 Hawai‘i 542, 546,

57 P.3d 467, 471 (2002) (referring to a defense expert’s

testimony that the defendant’s mental disorder substantially

impaired his “capacity to appreciate the wrongfulness of his

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conduct and to conform his actions to the requirements of the

law”).

Although alcohol’s general behavioral impact could be an

appropriate subject for expert testimony, 19 we conclude that

specialized knowledge testimony was not required to admit the

BAC evidence. The link between excessive alcohol intake and

increased aggression is not a “widely held misconception[]” or

“constrain[ed] [by] popular myths.” McDonnell, 141 Hawai‘i at

291–92, 409 P.3d at 695–96 (citation omitted).

This court has shared misgivings about an expert-centric

approach to fact-finding. With experts’ “aura of special

reliability and trustworthiness,” there is a danger that jurors

will “abdicate their role of critical assessment” or “surrender

their own common sense in weighing testimony.” State v.

Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990) (cleaned up);

see also State v. Metcalfe, 129 Hawai‘i 206, 225-26, 297 P.3d

1062, 1081-82 (2013) (mentioning that some judges prefer

eliminating the term “expert” from jury proceedings 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

19 See, e.g., Rapoza v. Parnell, 83 Hawaiʻi 78, 86-87, 924 P.2d 572, 580-81
(App. 1996) (allowing a defense expert in a negligence case to testify about
plaintiff’s BAC and alcohol’s impact to establish a possible causal
relationship between plaintiff’s intoxication and the accident).

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do not inadvertently put their stamp of authority on expert

testimony” (cleaned up)). These concerns do not undermine the

value of expert testimony in assisting the jury with

understanding evidence. But when the topic is familiar to the

typical juror, conditioning admissibility on expert testimony

devalues the collective wisdom of twelve citizens.

Jurors are expected to rely upon their general knowledge of

how humans operate in the world. See Hawai‘i Pattern Jury

Instructions – Criminal, Instr. 3.03 (“You must consider only

the evidence that has been presented to you in this case and

inferences drawn from the evidence which are justified by reason

and common sense.”). Based on a case’s evidence and their

common knowledge, jurors can form their views about whether a

person with a high BAC was, for instance, “boisterous[],” Lynn,

31 P.2d at 767, “amorous,” Pezzo v. State, 903 So. 2d 960, 961

(Fla. Dist. Ct. App. 2005), “belligeren[t],” Randles, 334 P.3d

at 734, “happy,” State v. Griffin, 529 P.2d 399, 404 (Or. Ct.

App. 1974), or “quarrelsome,” Byrd, 123 So. at 869.

Hence, expert testimony on what Albert’s .252 BAC meant was

unnecessary.

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c. The probative value of the BAC evidence was not
substantially outweighed by the risks of
confusing the jury or unfairly prejudicing the
State

We disagree with the trial court’s conclusion that HRE Rule

403 20 prevented the BAC evidence’s admission without expert

testimony to explain its behavioral impact.

The BAC evidence was highly probative. See supra section

II.A.1. One prosecution witness described Albert as drunk.

This colloquial and subjective account of Albert’s condition

crudely measured his alcohol consumption. The chemical analysis

of Albert’s blood, in contrast, revealed a reasonably accurate

measure of his intoxication.

It is difficult to see how jurors could be confused and

misled by Albert’s .252 BAC without testimony from a defense

expert. The commonly understood .08 benchmark for impaired

driving tethered the BAC evidence; it was a suitable anchor to

evaluate the extent of Albert’s intoxication. Cf. State v. Van

Dyke, 101 Hawai‘i 377, 381, n. 11, 69 P.3d 88, 92, n. 11 (2003)

(pointing out in a homicide case involving self-defense that

retrograde extrapolation evidence of the defendant’s .198 BAC

20 HRE Rule 403 (1980) provides:

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

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“amount[ed] to two-and-one-half times the legal drinking

limit”). As Van Dyke suggests, the .08 legal drinking limit is

a useful, recognized benchmark for fact finders to gauge the

degree and extent of intoxication. 21

The trial court overstated the evidence’s potential to

confuse jurors. The court admitted Albert’s .252 BAC in David’s

first trial. No expert testified about the BAC’s meaning. It

seems the jury ascribed weight and value to the evidence without

confusion. Further, this court has decided homicide cases with

self-defense claims where the jury heard BAC evidence without

expert testimony about its behavioral effects. See, e.g., State

v. Maluia, 107 Hawai‘i 20, 23, 108 P.3d 974, 977 (2005)

(describing evidence of the decedent’s .195 BAC and the

defendant’s .131 BAC).

The BAC evidence would not, as the trial court believed,

invite juror speculation. The jury heard about Albert’s

behavior on New Year’s Day. It learned of his intoxicated,

aggressive encounter with Officer Williams. All the case’s

evidence could and should be evaluated against the backdrop of

the jurors’ common knowledge about BAC and alcohol’s effects.

21 See also Special Report to the U.S. Congress at 56 (emphasis added)
(reporting that, in one study involving drinking by criminal offenders, “the
estimated average blood alcohol concentration (BAC) of offenders who had been
drinking was in the range of double or triple the thresholds of impairment of
most commonly used in State driving while intoxicated (DWI) laws,” using the
DWI laws as an anchor to compare the levels of intoxication).

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The jurors’ consideration of Albert’s BAC in these circumstances

can hardly be dismissed as “speculative.” See Newell v. State,

49 So. 3d 66, 72-73 (Miss. 2010) (rejecting the trial court’s

ruling that toxicology results invited speculation by the jury

because the decedent’s aggressive and violent behavior had been

presented before the toxicology-related testimony).

The trial court believed that an explanation about “how

[BAC] affect[ed] the particular decedent in this case” was

necessary “because alcohol has different effects on different

people.” We disagree.

First, whether expert testimony is admissible does not

depend on its ability to provide case-specific, individualized

opinions. See McDonnell, 141 Hawai‘i at 293, 409 P.3d at 697

(concluding that the trial court properly admitted expert

testimony when the expert “indicated that he was not familiar

with any of the facts of the case” and did not even mention the

child victim); see also State v. Plew, 745 P.2d 102, 107 (Ariz.

1987) (holding that “the expert may and often should properly

refrain from specifically stating that this particular person

must have acted in this precise manner at this exact point”).

Second, the absence of expert testimony about alcohol’s

“particular” effects did not stop the trial court from allowing

general evidence of Albert and David’s drinking. If the

ordinary juror lacked understanding about alcohol consumption

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and its resulting behavioral effects, the court would presumably

have foreclosed the testimony. But it did not. Further, under

the court’s rationale for excluding the BAC evidence, a routine

feature of assault trials – testimony about how much, what,

when, and where a person drank alcohol – would seemingly be

inadmissible without expert testimony to explain the evidence.

Additionally, we are not persuaded by the trial court’s

reasoning that an individual’s level of intoxication is more

accurately portrayed by testimony regarding the individual’s

demeanor. Although a witness may generally opine on another’s

sobriety, we have recognized flaws with opinion testimony based

on observation. See State v. Toyomura, 80 Hawai‘i 8, 25, 904

P.2d 893, 910 (1995) (citation omitted)(observing that field

sobriety tests “avoid the shortcomings of casual

observations”). 22

We have not expressed the same concern with reliable BAC

evidence. 23 BAC levels are a useful gauge of alcohol consumption

and its likely effects. See supra section II.A.2.a. If a lay

witness can express an opinion regarding the sobriety of

another, there is no logic to limiting the admissibility of

22 In State v. Jones, 148 Hawai‘i 152, 176, 468 P.3d 166, 190 (2020), we
held that police officers cannot give a lay or expert opinion that a driver
appeared “intoxicated” in drunk driving prosecutions.
23 At trial and on appeal, the State did not challenge the reliability of
the toxicology test performed on Albert.

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reliable, objective evidence showing a person’s intoxication

level.

In rejecting David’s evidence, the trial court and the ICA

both concluded that it was cumulative. The trial court ruled:

“how drunk the decedent might have been is available to both

parties by way of lay testimony and the percipient witnesses

that observed the decedent on the date of the offense.” The ICA

reasoned that there was “extensive evidence that Albert had been

drinking” and mentioned that there was other testimony about his

violent conduct while intoxicated.

Evidence is not cumulative unless it is “substantially the

same as other evidence that has already been received.” State

v. Pulse, 83 Hawai‘i 229, 247, 925 P.2d 797, 815 (1996). Unlike

situations where witnesses testify to the same thing or images

show the same thing, BAC evidence captures more than what

general testimony about drinking conveys. Here, it proved that

Albert was excessively intoxicated. No other evidence did. 24

Additionally, David was entitled to present his own

evidence about the extent and degree of Albert’s intoxication.

See State v. Lowther, 7 Haw. App. 20, 26, 740 P.2d 1017, 1021

(1987) (citation omitted) (acknowledging that criminal

24 The dissent points to the “ample other evidence of Albert’s
intoxication.” See dissent at 6. The evidence showed, as we acknowledge,
that Albert drank or he was drunk; yet it did not reveal how drunk he was.
One witness’s testimony on cross-examination that Albert was drunker than
David did not indicate the extent of his intoxication.

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defendants have “the right to present their own evidence”).

Much of the evidence relating to Albert’s drinking came from the

State’s witnesses – family members who were unsympathetic to

David’s plight. Their general testimony did not fully frame the

volatile situation David described finding himself in. David

wanted to present a defense in which the jury could consider

evidence that Albert’s degree of intoxication exceeded three

times the legal limit to drive – not merely that he had been

drinking an unknown amount of alcohol.

Finally, even if there was some uncertainty about what a

.252 BAC could prove, any doubt should have been resolved in

David’s favor. See State v. Kato, 147 Hawai‘i 478, 494, 465 P.3d

925, 941 (2020) (advising that “a trial court should resolve a

close question of admissibility in favor of the defendant”).

We conclude that the trial court misapplied HRE Rule 403

when it excluded the BAC evidence unless the defense hired an

expert. It did not confuse or mislead the jury; it wasn’t

prejudicial 25 or cumulative. The jury was fully capable of

25 Other than holding that the BAC evidence introduced without expert
testimony would be “speculative,” neither the trial court nor the ICA
identified any unfair prejudice to the State which would emerge from David’s
evidence. “Unfair prejudice means an undue tendency to suggest a decision on
an improper basis, commonly, though not necessarily, an emotional one.”
State v. St. Clair, 101 Hawaiʻi 280, 289, 67 P.3d 779, 788 (2003) (cleaned
up). We do not believe the jury would decide the case emotionally or on any
improper basis if it considered Albert’s .252 BAC.

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weighing and valuing the BAC evidence alongside all the case’s

evidence. 26

B. Excluding Albert’s BAC level violated David’s
constitutional right to present a complete defense

David argues that excluding Albert’s .252 BAC violated his

due process right to present a complete defense. The ICA held

that the trial court’s ruling was “not substantially

detrimental” to David’s defense. We disagree.

A defendant’s right to present a complete defense is vital

to due process. State v. Williams, 147 Hawaiʻi 606, 614, 465

P.3d 1053, 1061 (2020). An accused has the “constitutional

right to present any and all competent evidence” to support a

defense. State v. Abion, 148 Hawai‘i 445, 448, 478 P.3d 270, 273

(2020) (emphases added) (citation omitted). We have further

explained:

Where the accused asserts a defense sanctioned by law to
justify or to excuse the criminal conduct charged, and
there is some credible evidence to support it, the issue is
one of fact that must be submitted to the jury, and it is
reversible error for the court to reject evidence which, if
admitted, would present an essential factual issue for the
trier of fact.

Id. (emphases added) (cleaned up).

David said he acted in self-defense. See HRS § 703-304(2)

(1993 & Supp. 2001) (“The use of deadly force is

26 We hold that expert testimony is not a precondition to admit BAC
evidence for the purposes underlying David’s defense. We do not foreclose
expert testimony regarding BAC.

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justifiable . . . if the actor believes that deadly force is

necessary to protect [the person] against death, [or] serious

bodily injury . . . .”). David’s jury was instructed on his

defense.

Presenting a rational explanation for his conduct

underpinned David’s defense. He boosted his theory of the case

by calling Officer Williams and testifying himself about

Albert’s aggressive behavior while intoxicated. Evidence of

Albert’s .252 BAC could have affected the jury’s understanding

of Albert’s motive or intention. It could have similarly

influenced the jury’s understanding of David’s state of mind and

his belief that danger was imminent. It also corroborated his

testimony concerning Albert’s aggressive behavior. The evidence

would have helped explain David’s perception that Albert was

volatile due to being excessively intoxicated.

David’s defense hinged on his credibility – the

believability of his testimony about Albert’s violent,

irrational behavior and how it influenced David’s conduct. See

State v. Lealao, 126 Hawai‘i 460, 470, 272 P.3d 1227, 1237 (2012)

(recognizing that in a self-defense case, the defendant’s

credibility is “at the crux” of the case because the jury must

decide “whether the defendant did in fact subjectively believe

the use of force was necessary”). The BAC evidence was

instrumental to bolstering David’s credibility.

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Because David’s defense depended on his account of Albert’s

behavior before the fatal altercation and, by extension, on his

credibility, we hold that there is a reasonable possibility that

excluding the BAC evidence affected the trial’s outcome. See

State v. DeLeon, 131 Hawai‘i 463, 486, 319 P.3d 382, 405 (2014)

(holding that because the defendant’s self-defense argument

relied largely on the decedent’s behavior immediately before the

shooting, the exclusion of expert testimony that “the presence

of cocaine could [have] render[ed] [the decedent’s] level of

intoxication perhaps a stage higher” presented a reasonable

possibility that it could have affected the trial’s outcome, and

therefore it “compromised [the defendant’s] ability to present a

complete defense”) 27; see also Harris v. Cotton, 365 F.3d 552,

556-57 (7th Cir. 2004) (recognizing the state court’s finding

that “[h]ad the jurors known of [the decedent’s] blood alcohol

level and his use of cocaine, they [might] have credited [the

defendant’s] claim of [the decedent’s] hostile and erratic

behavior” and holding that there was “a reasonable probability

that the outcome of the proceedings would have been different if

the toxicology results were presented”); Cromartie v. State, 1

27 Although the trial court allowed a defense expert to testify about the
decedent’s BAC and the effects of alcohol in DeLeon, 131 Hawai‘i at 474, 319
P.3d at 393, the case addressed a different issue: the exclusion of expert
opinion regarding cocaine use. Id. at 481-86, 319 P.3d at 400-05. The issue
we resolve here - whether the defense must present expert testimony regarding
BAC evidence - was not examined.

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So. 3d 340, 341, n.2, 343 (Fla. Dist. Ct. App. 2009) (holding

that exclusion of the decedent’s .19 BAC violated the

defendant’s due process rights by preventing him from presenting

evidence which “could have been critical in bolstering his

theory of defense”). 28 Given Albert’s erratic and belligerent

conduct toward David before the fatal incident, the degree of

his intoxication mattered. Albert’s BAC was the only evidence

that provided a reliable measurement of his inebriation. It was

critical to bolstering David’s credibility.

The circuit court’s error in excluding the BAC evidence

affected David’s right to a fair trial. See Pulse, 83 Hawai‘i at

247-48, 925 P.2d at 815-16 (observing that excluding competent

evidence that violated an accused’s constitutional right was

considered presumptively prejudicial and holding that the trial

court’s error in disallowing a defense witness’s testimony at a

suppression hearing was not harmless); Arias v. State, 20 So. 3d

980, 983-84 (Fla. Dist. Ct. App. 2009) (citation omitted)

(holding that excluding the toxicology evidence showing the

decedent’s .21 BAC was reversible error because “a homicide

28 The ICA distinguished Cromartie from the present case on the basis that
in Cromartie there was no other evidence regarding the decedent’s drinking or
any testimony concerning the decedent’s violent behavior. Although the
underlying facts may differ, Cromartie supports the overarching principle
that any evidence bolstering a defendant’s self-defense theory should be
admitted unless there are valid countervailing reasons.

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defendant is afforded wide latitude in the introduction of

evidence supporting his self-defense theory”).

The right to due process entitled David to present any and

all competent evidence tending to show that he acted in self-

defense. Abion, 148 Hawai‘i at 448, 478 P.3d at 273. Because

the trial court rejected admissible evidence that was probative

to consequential factual issues connected to David’s defense, we

hold that it violated David’s right to present a complete

defense.

III. CONCLUSION

We vacate the ICA’s Judgment on Appeal and the circuit

court’s Judgment of Conviction and Sentence regarding David’s

conviction for assault in the first degree. The case is

remanded to the trial court for proceedings consistent with this

opinion.

Taryn R. Tomasa, /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Brian R. Vincent,
for respondent /s/ Michael D. Wilson

/s/ Todd W. Eddins

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