State v. Etimani

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2022
12:24 PM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOHNNY ETIMANI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Johnny Etimani (Etimani) appeals
from the Judgment of Conviction and Sentence (Judgment), entered
on June 25, 2020, in the Circuit Court of the First Circuit
(Circuit Court).1/ After a jury trial, Etimani was convicted of
one count of Sexual Assault in the Second Degree, in violation of
Hawaii Revised Statutes (HRS) § 707-731(1)(a),2/ and two counts of
Sexual Assault in the Fourth Degree, in violation of HRS § 707-
733(1)(a).3/

1/
The Honorable Paul B.K. Wong presided.
2/
HRS § 707-731(1)(a) (Supp. 2016) provides:
(1) A person commits the offense of sexual assault in
the second degree if:

(a) The person knowingly subjects another person to
an act of sexual penetration by compulsion[.]
3/
HRS § 707-733(1)(a) (Supp. 2016) provides:

(1) A person commits the offense of sexual assault in
the fourth degree if:

(continued...)
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On appeal, Etimani contends that: (1) the Circuit
Court erred in allowing expert DNA testimony; (2) the Circuit
Court erred when it failed to "reinstruct" the jury as to
consent; and (3) Etimani was denied effective assistance of
counsel because (a) counsel violated Etimani's constitutional
right to testify on his own behalf; (b) counsel erred in allowing
Michelle Amorin (Amorin), a Honolulu Police Department (HPD)
criminalist, to be qualified as an expert in serology and
forensic DNA testing; and (c) counsel failed to ensure that the
jury was properly reinstructed as to consent.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Etimani's contentions as follows and affirm.
(1) Etimani contends that the Circuit Court erred in
qualifying Amorin as an expert witness in the area of serology
and forensic DNA testing, "despite the fact that defense counsel
pointed out [Amorin's] limited educational background in
scientific studies." Etimani's argument appears to be based on
Amorin's not having a masters or PhD degree in molecular biology,
population genetics, or other allegedly relevant fields.4/
Hawaii Rules of Evidence (HRE) Rule 702 (2016), which
governs the admission of expert testimony, states:

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

"Qualifying a witness as an expert requires that the
proponent lay foundation establishing that '(1) the witness is

3/
(...continued)
(a) The person knowingly subjects another person,
not married to the actor, to sexual contact by
compulsion or causes another person, not married
to the actor, to have sexual contact with the
actor by compulsion[.]
4/
Amorin testified that she had a masters degree in education.

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qualified by knowledge, skill, training, or education; (2) the
testimony has 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 meets a threshold level of reliability and
trustworthiness.'" State v. Jones, 148 Hawai#i 152, 166, 468
P.3d 166, 180 (2020) (brackets omitted) (quoting State v.
Metcalfe, 129 Hawai#i 206 227, 297 P.3d 1062, 1083 (2013)).
Here, Etimani challenges only the first prong of the applicable
three-part test, arguing that "[Amorin's] opinion was limited by
a lack of skill, experience, training, or education."
In construing HRE Rule 702, the Hawai#i Supreme Court
has recognized that "'it is not necessary that the expert witness
have the highest possible qualifications to testify about a
particular matter;' instead, 'the expert witness must have such
skill, knowledge, or experience in the field in question as to
make it appear that his opinion or inference-drawing would
probably aid the trier of fact in arriving at the truth.'" Leone
v. Cty. of Maui, 141 Hawai#i 68, 84, 404 P.3d 1257, 1273 (2017)
(brackets omitted) (quoting Klink ex rel. Klink v. State, 113
Hawai#i 332, 352, 152 P.3d 504, 524 (2007)); see State v.
Wakisaka, 102 Hawai#i 504, 518, 78 P.3d 317, 331 (2003) ("An
expert witness need not possess the highest possible
qualifications to testify about a particular matter." (citing
Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 396, 944 P.2D 1279,
1339 (1997))). Additionally, "[t]he determination of whether or
not a witness is qualified as an expert in a particular field is
largely within the discretion of the trial judge, and, as such,
will not be upset absent a clear abuse of discretion." Jones,
148 Hawai#i at 166, 468 P.3d 180 (quoting State v. Torres, 60
Haw. 271, 277, 589 P.2d 83, 87 (1978)).
At trial, Amorin testified to the following: She is a
level 2 criminalist with HPD. Her duties and responsibilities
as a criminalist "include performing serology5/ and DNA analysis
on items of evidence, interpreting the results from these tests,

5/
Amorin testified that serology "pertains to tests that can
indicate the presence of a possible biological fluid such as blood, semen, or
saliva."

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and reporting them in conclusions in a case report, and
testifying as an expert witness." (Footnote added.) Amorin
earned an undergraduate degree in biology, and received
specialized training at HPD which she described as "a one year
in-house training with the forensic biology unit that covered
serology and -- or DNA analysis. This included written, oral,
and practical exams." Amorin holds a certificate in molecular
biology from the American Board of Criminalistics and is a member
of the American Academy for Forensic Sciences. At the time of
trial, Amorin had been employed by HPD for "more than four years
. . . ." Amorin testified that she had performed DNA analysis
"hundreds of times" and had previously been qualified as an
expert "in the area of serology and forensic DNA testing" in
Hawai#i courts. Over Etimani's objection, the Circuit Court
qualified Amorin to present "opinion testimony in the area of
serology and forensic DNA testing[,]" pursuant to HRE Rule 702.
We conclude that under the parameters set by HRE Rule
702 and Hawai#i case law, Amorin's testimony regarding her
knowledge, skill, training, and education was sufficient to
qualify her as an expert witness in the identified area of
expertise. Accordingly, the Circuit Court did not abuse its
discretion in allowing Amorin to testify as an expert witness in
this area.
(2) Etimani contends that the Circuit Court clearly
erred when it failed to "reinstruct" the jury on the issue of
consent after the jury posed a question about consent.
After the presentation of evidence, the Circuit Court
instructed the jury regarding consent as follows:

In any prosecution the complaining witness's consent
to the conduct alleged or to the result thereof is a defense
if the consent negatives an element of the offense or
precludes the infliction of the harm sought to be prevented
by the law defining the offense. Consent is not a defense
if it is induced by force, duress, or deception. Consent
may be express or implied.
"Consent" means a voluntary agreement or concurrence.
The burden is upon the prosecution to prove beyond a
reasonable doubt that the complaining witness did not give
express or implied consent to the conduct alleged or the
result thereof. If the prosecution fails to meet its
burden, then you must find the defendant not guilty.

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During deliberations, the jury asked the Circuit Court:
"Given the fact that [Etimani] denies Count 1 Element 1, is the
jury allowed to consider the possibility that [the complaining
witness (CW)] implied her consent to the act?" The Circuit Court
responded: "Please rely on the instructions provided, along with
your collective reasoning and common sense." At trial, Etimani
did not object to the Circuit Court's response.
On appeal, Etimani concedes that "the [C]ircuit [C]ourt
properly instructed the jury as to the issue of consent"
following the presentation of evidence. Etimani contends,
however, that the Circuit Court plainly erred in responding to
the jury's later question during deliberations. Etimani argues
that the court should have responded "yes" to the jury's question
or, at a minimum, should have specifically referred the jury to
the instruction: "Consent may be express or implied."
When jury instructions or their omission are at issue
on appeal, "the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." Stanley
v. State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021)
(emphasis omitted) (quoting State v. Loa, 83 Hawai#i 335, 350,
926 P.2d 1258, 1273 (1996)). "Once instructional error is
demonstrated, we will vacate, without regard to whether timely
objection was made, if there is a reasonable possibility that the
error contributed to the defendant's conviction[.]" State v.
Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006).
"Because the circuit court's response to a jury communication is
the functional equivalent of an instruction, the standard of
review for jury instructions also applies to reviewing a trial
court's answers to jury communications." State v. Miyashiro, 90
Hawai#i 489, 492, 979 P.2d 85, 88 (App. 1999).
We addressed a similar issue in State v. Mark, 120
Hawai#i 499, 210 P.3d 22 (App. 2009), aff'd, 123 Hawai#i 205, 231
P.3d 478 (2010). There, the circuit court denied the defendant's
proposed response to a jury question regarding manslaughter and
instead "responded by referring the jury back to the instructions
given at trial." 120 Hawai#i at 528, 210 P.3d at 51. On appeal,

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the defendant conceded that the jury had been provided with
instructions on both reckless manslaughter and manslaughter based
on extreme mental and emotional distress, as part of the court's
original instructions at trial. Id. The defendant argued,
however, that "the jury was provided with a 'set of instructions
that was voluminous,' and the court 'should have taken the
trouble to distinguish between the two for the sake of the jury's
full understanding of the distinction between the two types of
manslaughter.'" Id. (brackets omitted). We concluded:

The circuit court did not err in refusing [the defendant's]
proposed response, and referring the jury back to the
court's original instructions. Because the instructions
given by the circuit court adequately covered the same
propositions of law included in [the defendant's] requested
response, [the defendant's] requested response was properly
refused. State v. Bush, 58 Haw. 340, 342, 569 P.2d 349, 350
(1977). Although the court's original instructions were
lengthy, they were not "prejudicially insufficient,
erroneous, inconsistent, or misleading." [State v. ]
Gonsalves, 108 Hawai#i [289, ]292, 119 P.3d [597, ]600
[(2005)] (citation omitted). Therefore, the circuit court
did not err.

Id. at 528–29, 210 P.3d at 51–52; see also State v. Rodriguez,
No. CAAP-XX-XXXXXXX, 2013 WL 3198775, at *2 (Haw. App. June 25,
2013) (SDO) ("the record does not show that the court's reference
back to the jury instructions confused or left an erroneous
impression in the minds of the jurors." (citing State v. Laurie,
56 Haw. 664, 672, 548 P.2d 271, 277 (1976))).
Here, Etimani concedes that the Circuit Court's
original jury instructions "properly instructed the jury as to
the issue of consent[.]" Because those instructions adequately
covered the issue of consent, including that consent may be
express or implied, the Circuit Court did not err in referring
the jury back to the court's original instructions. See Mark,
120 Hawai#i at 528–29, 210 P.3d at 51–52. Likewise, the Circuit
Court did not err in not referring the jury back to a specific
section of the instructions. See id. Although the instructions
may have been lengthy, Etimani has not shown that they were
"prejudicially insufficient, erroneous, inconsistent, or
misleading." Id. Accordingly, the Circuit Court did not err as
claimed.

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(3) Etimani contends that three errors by his trial
counsel constituted ineffective assistance of counsel.
"The standard for determining the adequacy of counsel's
representation is whether, when viewed as a whole, the assistance
provided is 'within the range of competence demanded of attorneys
in criminal cases.'" State v. Salavea, 147 Hawai#i 564, 576, 465
P.3d 1011, 1023 (2020) (quoting State v. Cordeiro, 99 Hawai#i
390, 405, 56 P.3d 692, 707 (2002)). The defendant has the burden
of establishing ineffective assistance of counsel and must meet
the following two-part test: "First, a defendant must show that
there were specific errors or omissions reflecting counsel's lack
of skill, judgment, or diligence." Id. (citing State v. Antone,
62 Haw. 346, 348, 615 P.2d 101, 104 (1980)). "Second, the
defendant must establish that these errors or omissions resulted
in either the withdrawal or substantial impairment of a
potentially meritorious defense." Id. (citing Antone, 62 Haw. at
348-49, 615 P.2d at 104).

The second prong of this test is satisfied if the defendant
shows a possible impairment of a potentially meritorious
defense. [State v. ]DeLeon, 131 Hawai#i [463, ]479, 319
P.3d [382, ]398 [(2014)]. The defendant does not need to
show the impairment was probable nor prove that the
defendant suffered actual prejudice. Id.; Briones v. State,
74 Haw. 442, 465, 848 P.2d 966, 977 (1993). Specific
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. Pacheco, 96 Hawai#i 83, 93, 26 P.3d 572, 582
(2001). If, however, the alleged error or omission had no
obvious basis for benefitting the case and resulted in the
withdrawal or impairment of a potentially meritorious
defense, then the assistance of defendant's counsel was
constitutionally inadequate. State v. Smith, 68 Haw. 304,
309-11, 712 P.2d 496, 500-01 (1986).

Id. (footnote omitted); see Briones, 74 Haw. at 463, 848 P.2d at
977 ("An informed, tactical decision will rarely be
second-guessed by judicial hindsight." (citing State v. McNulty,
60 Haw. 259, 270, 588 P.2d 438, 446 (1978))); Antone, 62 Haw. at
352, 615 P.2d at 106 ("Lawyers require and are permitted broad
latitude to make on-the-spot strategic choices in the course of
trying a case.").
Etimani first contends that his trial counsel "violated
Etimani's constitutional right to testify on his own behalf"
(capitalization altered), as follows: At trial, Etimani

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testified in his own defense and, on cross-examination, the
deputy prosecuting attorney (DPA) asked Etimani, "Can you explain
to the jurors how [the CW] got your semen inside her vagina?"
Etimani's counsel responded, "Objection, your Honor[,]" and the
Circuit Court sustained the objection." Etimani's counsel also
moved to strike the DPA's question, and the court responded,
"Granted. It's not evidence. The jury will disregard [the
DPA's] last question." Etimani argues that his counsel's
objection to the DPA's question prevented Etimani from answering,
and his failure to answer "prejudiced the jury against him, and
made a very big difference in the jury's final decision."
The State responds in part: "Etimani's trial counsel's
objection to the [DPA's] question appears to have been based on
the grounds that the question assumed facts not in evidence. The
DNA evidence was only that a DNA analysis of the [CW's] vaginal
swab could not exclude Etimani as the contributor of the semen."
The record appears to support the State's contention,
and objecting to cross-examination questions on this basis is
generally a strategic decision left to trial counsel. In this
regard, we note that Etimani's opening brief violates Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(a), which states, in
relevant part: "If a brief raises ineffective assistance of
counsel as a point of error, the appellant shall serve a copy of
the brief on the attorney alleged to have been ineffective." The
record contains no indication that Etimani served his ineffective
assistance of counsel claim upon counsel whom he claims was
ineffective, as required by HRAP Rule 28(a). In any event,
Etimani has not sustained his burden of showing that his trial
counsel, by objecting to the DPA's question, made a specific
error reflecting a lack of skill, judgment, or diligence.
Morever, Etimani fails to indicate what he would have testified
to if he had been allowed to answer. Cf. State v. Richie, 88
Hawai#i 19, 39, 960 P.2d 1227, 1247 (1998) ("Ineffective
assistance . . . claims based on the failure to obtain witnesses
must be supported by affidavits or sworn statements describing
the testimony of the proffered witnesses." (citing State v.
Fukusaku, 85 Hawai#i 462, 481, 946 P.2d 32, 51 (1997))). Thus,

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Etimani has not established that the alleged error resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense. However, because Etimani did not obtain new
counsel until after the deadlines for filing a post-verdict
motion for judgment of acquittal and motion for new trial had
passed, we affirm the Judgment without prejudice to a subsequent
Hawai#i Rules of Penal Procedure Rule 40 petition on this basis.
Etimani also contends that his trial counsel provided
ineffective assistance by allowing Amorin to be qualified as an
expert despite her allegedly limited relevant educational
background, and by failing to ensure that the jury was properly
reinstructed as to consent. Because we have concluded that the
Circuit Court did not abuse its discretion in allowing Amorin to
testify as an expert witness, and did not err in referring the
jury back to the court's original instructions (see supra),
Etimani has not sustained his burden of showing ineffective
assistance of counsel related to these two issues.
Accordingly, Etimani's asserted claims of ineffective
assistance of counsel are without merit.
For the reasons discussed above, the Judgment of
Conviction and Sentence, entered on June 25, 2020, in the Circuit
Court of the First Circuit, is affirmed. We affirm without
prejudice to a subsequent Rule 40 petition on the ground
specified in this Summary Disposition Order.

DATED: Honolulu, Hawai#i, January 26, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Walter J. Rodby
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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