NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-NOV-2021
07:49 AM
Dkt. 71 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI'I, Plaintiff-Appellee,
Vv.
RICARDO STANLEY NEWCOMB, JR., Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Ricardo Stanley Newcomb, Jr.
(Newcomb) appeals from the Judgment of Conviction and Sentence
(Judgment} entered on June 26, 2020, by the Circuit Court of the
First Circuit (Cireuit Court).’ On January 30, 2020, a jury
found Newcomb guilty of Habitually Operating a Vehicle Under the
Influence of an Intoxicant (Habitual OVUII) in violation of
Hawaii Revised Statutes (HRS) §§ 291E-G6i{a) (1) (2020)% and
1 The Honorable Fa‘auuga L. To‘oto'o presided.
2 HRS § 291E-61 provides in relevant part:
§291E-61 Operating a vehicle under the influence
of an intoxicant. (a) A person commits the offense of
operating a vehicle under the influence of an
intoxicant if the person operates or assumes actual
physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualtyl[.]
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
291E-61.5(a) (2) (A) (2020).% The Circuit Court sentenced Newcomb
to a term of imprisonment of ten years for Habitual OVUII, with
credit for time served.‘
; On appeal, Newcomb raises two points of error. First,
Newcomb challenges the Circuit Court's preclusion of his proposed
expert witness, Honolulu Police Department (HPD) Officer
Kawananakoa Saul (Officer Saul), from testifying about HPD's
training on the proper procedures for OVUII investigations.
Second, Newcomb challenges the Circuit Court's exclusion of
specific conduct evidence that purportedly showed two of the HPD
officers who testified at trial, Officer Aubry Kaluhiokalani
(Officer Kaluhiokalani) and Officer Wayne Hudson (Officer
Hudson), had lied during a prior OVUII investigation.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we affirm.
(1) Newcomb asserts the Circuit Court abused its
discretion by precluding him from calling Officer Saul as an
expert witness pursuant to Hawai‘i Rules of Evidence (HRE) Rule
702 on HPD's standard training in OVUII investigations. At
trial, Newcomb sought to call Officer Saul to testify that
contrary to the testimony of Officer Hudson, HPD officers are
7 HRS § 2918-61.5 provides in relevant part:
§2918-61.5 Habitually operating a vehicle under
the influence of an intoxicant,. (a) A person commits
the offense of habitually operating a vehicle under
the influence of an intoxicant if:
{2) The person operates or assumes actual physical
control of a vehicle:
{A} While under the influence of alcohol in an
amount sufficient to impair the person's
normal mental faculties or ability to care
for the person and guard against
easualty[.]
4 Newcomb was also charged with and entered a no-contest piea for
Operating a Vehicle After License and Privilege Have Been Suspended or Revoked
for Operating a Vehicle Under the Influence of An Intoxicant, in violation of
HRS § 291E-62(a) (2) (2020}. Newcomb challenges only the Habitual OVUII
conviction on appeal.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
trained that a Preliminary Alcohol Screening (PAS) can be offered
even if an individual refuses a Standardized Field Sobriety Test
(SFST). Additionally, HPD officers are trained on optional tests
including the "Alphabet Test," "Countdown Test," "Finger Count
Test," and divided attention tests such as asking unusual
questions to detect impairment. The Circuit Court ruled that
Officer Saul could not testify as an expert witness because "any
testimony from Officer Saul is irrelevant and also excluded under
[HRE Rule] 403." On appeal, Newcomb argues that Officer Saul's
expert testimony should have been admitted because pursuant to
HRE Rule 702 (1992), Officer Saul was qualified to testify as an
expert, his testimony was relevant to the veracity of the
officers' OVUII investigation, and the Circuit Court abused its
discretion in precluding the testimony under HRE Rule 403 (1980).
HRE Rule 702 sets forth the requirements for
qualification of an expert witness:
Rule 702 Testimony by experts. 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.
In State v. Metcalfe, the Hawai‘i Supreme Court
identified three foundational requirements to qualify a witness
to testify as an expert under HRE Rule 702:
(1) the witness must be qualified by knowledge, skill,
experience, training or education; (2) the testimony
must have the capacity to assist the trier of fact to
understand the evidence or to determine a fact in
issue; and (3) the expert's analysis must meet a
threshold level of reliability and trustworthiness.
129 Hawai‘i 206, 227, 297 P.3d 1062, 1083 (2013) (citation
omitted).
On appeal, Plaintiff-Appellee State of Hawai'i (State)
dees not dispute that Officer Saul was qualified to testify as an
expert. Therefore, the only issues are whether Officer Saul's
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
testimony was relevant, and whether the Circuit Court abused its
discretion in precluding the testimony under HRE Rule 403.
"The critical inquiry with respect to expert testimony
is whether such testimony will assist the trier of fact to
understand the evidence or determine a fact in issue." State v.
Kony, 138 Hawai'i 1, 8-9, 375 P.3d 1239, 1246-47 (2916) (quoting
State v. Fukusaku, 85 Hawai'i 462, 472, 946 P.2d 32, 42 (1997)).
"One of the 'touchstones of admissibility for expert testimony
under HRE Rule 702' is relevance." Id. at 8, 375 P.3d at 1246
(quoting State v. Vliet, 95 Hawai‘i 94, 106, 19 P.3d 42, 54
(2001)); see also HRE Rule 401 (1980) ("'Relevant evidence’ means
evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence."). "The trial court's relevancy decision under HRE
[Rule] 702 is reviewed de novo[.]" State v. Keaweehu, 110
Hawai‘i 129, 137, 129 P.3d 1157, 1165 (App. 2006).
Here, Officer Saul's contradicting testimony about how
HPD officers are trained to conduct OVUII investigations has some
tendency to show that Officer Hudson, who conducted Newcomb's
OVUII investigation along with HPD Officers Kaluhiokalani and
Ryan Uno (Officer Uno), either was not properly trained on OVUIT
investigations or did not accurately remember his training. See
HRE Rule 401. Thus, the Circuit Court erred insofar as the court
determined Officer Saul's testimony was irrelevant. See id.
However, the Circuit Court also excluded Officer Saul's
testimony based on HRE Rule 403. HRE Rule 403 provides:
"Tajlthough 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." A trial court's
evidentiary decision based on HRE Rule 403 is reviewed for an
abuse of discretion. State v. Richie, 88 Hawai'i 19, 37, 960
P.2d 1227, 1245 (1998).
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
The determinative issue at trial was whether Newcomb
was driving impaired on February 4, 2019, not how HPD officers
are or should be trained to conduct OVUII investigations. While
the latter issue is not entirely irrelevant, under the
circumstances of this case, the Circuit Court did not abuse its
discretion in concluding that the tendency of Officer Saul's
testimony to confuse the issues or mislead the jury substantially
outweighed its probative value to assist the jury in determining
whether the OVUII investigation was properly conducted in this
case. See HRE Rules 403, 702.
(2) Newcomb asserts the Circuit Court abused its
discretion in precluding him from introducing specific conduct
evidence for impeachment purposes under HRE Rule 608(b) (1993).
Specifically, Newcomb sought to allegedly introduce evidence that
two of the officers involved in his OVUII arrest had previously
lied about smelling the odor of alcohol on a driver during a
prior unrelated OVUII investigation on October 12, 2019 (10/12/19
Incident).
In this case, one of the officers, Officer Hudson,
testified at trial that at the time of his arrest, Newcomb
smelled like alcohol, had red, glassy eyes, was slow to respond
to some of Officer Hudson's questions or directions, told Officer
Hudson that he had been drinking, and had some slurred speech.
On January 6, 2020, Newcomb filed a Notice of Intent, which
advised that he would be introducing evidence about the prior
10/12/19 Incident. On January 24, 2020, the State filed State's
Motion in limine (Motion in limine) seeking to preclude evidence
about the unrelated OVUII investigation. At the hearing on the
motion, the Circuit Court orally granted the State's Motion in
dimine, stating, "considering this is a totally unrelated
incident here involving a totally unrelated individual to this --
to the present facts of this case, the Court will sustain the
objection under [HRE Rule] 403."
HRE Ruie 608(b) provides, in relevant part:
{b) Specific instances of conduct. Specific instances of
the conduct of a witness, for the purpose of attacking the
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
witness’ credibility, 1L£ probative of untruthfulness, may be
inquired into on cross-examination of the witness and, in
the discretion of the court, may be proved by extrinsic evidence.
(Emphasis added).
In State v. Su, 147 Hawai'i 272, 283, 465 P.3d 719, 730
(2020), the Hawai‘i Supreme Court clarified that:
under the plain language of HRE Rule 608(b),
admissibility of evidence under HRE Rule 608 (b)
involves a two-step inquiry: (1) whether the specific
conduct evidence proffered for the purpose of
-attacking the witness's credibility is probative of
untruthfulness, and, if so, (2) whether the probative
value of the evidence of the specific conduct is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury, ox by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence
pursuant to HRE Rule 403. An appellate court reviews
the trial court's two-step admissibility determination
under the right/wrong standard as to the first step,
and under the abuse of discretion standard as to the
second step.
Thus, under the first step, a witness may generally be
cross-examined about specific instances of conduct probative
to credibility, if probative of untruthfulness. A trial
court's decision to allow or preclude cross-examination on
specific instances of conduct, based upon relevance under
HRE Rules 401 and 402, is thus reviewed under the
right/wrong standard.
(emphasis added) (footnotes omitted); see also HRE Rule 401; HRE
Rule 402 (1980) ("All relevant evidence is admissible, except as
otherwise provided[.]"}). However, "[t]he extent of the cross-—
examination, as well as the admissibility of extrinsic evidence,
if offered, is subject to an HRE Rule 403 analysis." Su, 147
Hawaii at 285, 465 P.3d at 732.
In Su, the Hawai‘i Supreme Court examined a trial court
decision precluding the cross-examination of a police officer
about his testimony in three prior, separate proceedings. Id. at
274, 465 P.3d at 721. Applying its two-step analysis, the
supreme court concluded the trial court erred in the first step,
with respect to the cross-examination of the officer concerning
two of those proceedings: (1) in one proceeding, the officer
admitted to submitting a falsely sworn statement to ADLRO, which
clearly called his credibility into question; and (2) in a second
proceeding, still photos of a video-recording showed that,
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
contrary to the officer's police report and testimony, the
defendant did not have his fists clenched and was not throwing
punches. Id. at 285, 465 P.3d at 732; see also State v. Estrada,
69 Haw. 204, 219, 738 P.2d 812, 823 (1987) (holding that an
officer's alleged falsifications on his employment application
were relevant to his credibility and should have been admitted
pursuant to HRE Rule 608(b)); State v. Salvas, No.
CAAP-XX-XXXXXXX, 2023 WL 276150, at *8 (Haw. App. Jan. 27, 2021)
(SDO) (applying Su to hold in part that evidence about
proceedings in an unrelated case, in which the trial judge found
lay witness testimony credible that directly contradicted the
officer's sworn testimony, were relevant to the officer's
credibility and thus should have been admitted pursuant to HRE
Rule 608(b)). With respect to the third proceeding, the supreme
court held the trial court's rejection of the officer's estimate
of distance and speed of defendant's vehicle, because it did not
make sense, was not relevant to the officer's credibility. Su,
147 Hawai‘i at 285, 465 P.3d at 732; see also Salvas, 2021 WL
276150, at *8-9 (applying Su to hold that two other prior
instances of conduct were not relevant to the officer's
credibility: (1) the officer's OVUII conviction; and (2) a video
purportedly showing unidentified officers falsely threatening the
defendants that they had a warrant and/or could see contraband in
plain view of the defendants' vehicle, where the video was not in
the record and defendant failed to identify which officers were
involved in the incident}.
Applying the Su two-step analysis here, we first
consider under the right/wrong standard whether the specific
conduct evidence Newcomb sought to introduce was relevant to the
officers' truthfulness. See Su, 147 Hawai'i at 283, 465 P.3d at
730. Newcomb asserts that, during the prior 10/12/19 Incident,
Officers Hudson and Kaluhiokalani pulled over a driver for a red
light violation, told the driver they smelled alcohol coming from
him and that he had red, glassy eyes, the driver participated in
a field sobriety test that Officer Hudson claimed he failed, the
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
driver blew into a PAS, but the driver "blew zeros" and was
released and not charged. The State claims the officers have no
memory of the reading and the body camera footage from the
10/12/19 Incident only demonstrates the officers let the driver
go after the test, not that the officers were lying.
As an initial matter, we agree with Newcombd's
contention that "to the extent that the [circuit] court believed
that the evidence was not relevant simply because it involved a
totally unrelated incident here involving a totally unrelated
individual[,]'" the Circuit Court erred. Su makes clear that an
unrelated incident may be relevant so long as it is probative of
untruthfulness. 147 Hawai'i at 283-85, 465 P.3d at 730-32.°
Beyond that initial matter, however, the body camera
footage from the 10/12/19 Incident is not part of the record. It
does not appear that Newcomb submitted the footage for the
Circuit Court to review. Newcomb's Notice of Intent, filed on
January 6, 2020, notified the State of his intent to introduce
evidence of the 10/12/19 Incident and indicated the State had
provided body camera footage of the incident to Newcomb.
However, the footage apparently was never offered for the Circuit
Court to review or as an exhibit. Given Newcomb apparently did
not provide any specific conduct evidence for the Circuit Court
to review, the Circuit Court could not conduct the first Su
inquiry, i.e., determine "whether the specific conduct evidence
proffered for the purpose of attacking the witness's credibility
is probative of untruthfuliness[.]" 147 Hawaii at 283, 465 P.3d
at 730 {emphasis added). Similarly, we are not able to review
the body camera footage to assess its relevance to the officers’
veracity. Given these circumstances, the Circuit Court did not
err in precluding evidence about the officers’ conduct in the
10/12/19 Incident, as Newcomb did not demonstrate that the prior
5 We note that at the time of the Circuit Court's ruling on the State's
Motion in limine on January 27, 2020, the Circuit Court did not yet have the
benefit of the Su decision, which was published on June 15, 2020.
8
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
conduct was probative of untruthfulness under HRE Rule 608({b).
Id.
Therefore, the Judgment entered on June 26, 2020, by
the Circuit Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai‘i, November 5, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alen M. Kaneshiro,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Benjamin Rose,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge