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Kevin Metcalfe!

Hawaii Legal News: March 2013 - The Plain Error Problem Persists . . | State v. Metcalfe (HSC March 19, 2013) Pretrial Background. Kevin Metcalfe was charged by way of complaint of one count of murder in the second degree (HRS § 707-701.5) and carrying or using a firearm while in the commission of a felony (HRS § 134-21). About a month later, the prosecution filed an amended complaint with nearly the same charges, but the complaint was dated June 25, 2009. Metcalfe moved to dismiss the amended complaint based on Double Jeopardy and collateral estoppel. Metcalfe argued that the prosecution could not charge him for this case once the grand jury returned a “no bill” on the initial complaint. Metcalfe did not include a transcript of the grand jury proceedings or the preliminary hearing, but attached a lengthy declaration of counsel detailing what happened. The circuit court denied the motion on the grounds that Double Jeopardy did not attach at the grand jury phase and found that there was “no constitutional or statutory impediment prohibiting the State from proceeding by way of a preliminary hearing when a grand jury has filed a No Bill.”

The Trial. At trial, Rocky Jordan testified that he lived on Metcalfe’s property. According to Jordan, Metcalfe installed surveillance cameras on the property after someone had stolen tools and building supplies. Jordan testified that on May 6, 2009, he was awaken by a phone call at around 10:30 p.m. from Metcalfe urging him to call 911 and come over to his house. Jordan ran outside and saw a man--later identified as Larry Kuahuia--running toward Metcalfe with such force that he thought the man was going to bowl down Metcalfe. Metcalfe kept telling the man to get on the ground. Jordan then heard two shots and a few minutes later heard somebody crying for help. Jordan testified that he, Metcalfe, and Metcalfe's wife, Sharon Meech, had medical marijuana permits. At trial, the recording of Metcalfe's 911 call was played for the jury. In the call, the caller identified himself as Metcalfe and told the dispatcher that he had shot a man who came onto his property. Later, an officer testified that when he got to the property, Metcalfe told him he had shot a burglar who was trying to break into the greenhouse. He told the officer that he saw the man, confronted him with his rifle and ordered him to get down on the ground. Apparently, the man did not comply and started to run down the driveway. Metcalfe shot him. The officer found the body on the property and saw a "buncha holes in his back." Metcalfe told the police that he was using birdshot no. 6.

No Error in Denying Motion to Dismiss for Lack of Transcripts (and the Merits). The HSC rejected Metcalfe's argument that the circuit court erred in denying the motion to dismiss without adequately reviewing the transcripts from the grand jury and the preliminary hearing. The HSC pointed out that Metcalfe failed to attach the transcripts in his motion and failed to make it part of the record. So even though the circuit court took judicial notice of the entire record, which would presumably include the transcripts, it is the "appellant's burden of demonstrating error in the record." Dr. Manoukian and Det. Ah Mow are “Experts”? Metcalfe argued that the trial court’s failure to qualify Dr. Manoukian and Det. Ah Mow as experts in ballistics arose to plain error. Metcalfe pointed out that the prosecution relied heavily on their testimony in ballistics and even though the witnesses may be experts in some fields, there was no indication that they had any expertise in ballistics.

The Plain Error not Available when Party Fails to Object to Admission of Evidence. The HSC started its analysis by stating that because Metcalfe did not object to the testimony at trial, it may be waived on appeal. State v. Moses, 102 Hawaii 499, 456, 77 P.3d 940, 947 (2003). Still yet, the HSC has the power to recognize plain error when the error infringes upon “substantial rights.” HRPP Rule 52(b). According to the HSC, when it comes to the failure to object to “the admission of incompetent evidence,” the error is “generally” not subject to plain error review. See State v. Wallace, 80 Hawaii 382, 410, 910 P.2d 695, 723 (1996); State v. Uyesugi, 100 Hawaii 442, 464, 60 P.3d 843, 865 (2002). And on top of all of that, even if the plain error analysis was used, the trial court’s failure to formally qualify the witnesses in ballistics did not—according to the HSC—affect Metcalfe’s substantial rights.

Justice Acoba’s Dissent. Justice Acoba dissented on the evidentiary grounds. Justice Acoba wrote that the trial court should have formally qualified Dr. Manoukian and Det. Ah Mow and should have established for the jury their fields of expertise. These failings made it difficult or even impossible for the jury to evaluate their opinion testimony. And because it directly contradicted testimony of eyewitnesses, the errors substantially affected Metcalfe’s right to a fair trial and was thus plain error. Specifically, Justice Acoba rejected the “blanket suggestion that plain error does not apply to evidentiary questions.” According to the dissenters, “[n]one of our cases propose a bar to noticing plain error because the error is an evidentiary one.” Justice Acoba would have vacated the judgment and remanded for new trial. Judge Sakamoto, who sat on the court due to Justice Duffy’s vacancy, joined. >> Read >> more.

Big Island of Hawaii News, 02 April 2012 through 03 April | Here are some of the top local stories being covered by “Big Island of Hawaii News” through 03 April 2012: Conviction in manslaughter case upheld; traffic changes on Kalanikoa Stree; and police look for missing woman. Sources cited in this summary include the Associated Press, the “Hawaii Tribune-Herald”, Stephens Media, and “Hawaii 24/7 News”. >> CONVICTION UPHELD | (Hawaii Tribune-Herald). An appeals court has upheld the manslaughter conviction of an Ocean View man who was sentenced to 20 years for the shotgun shooting of a Milolii man. During the trial, Kevin C. Metcalfe admitted to shooting Larry Kuahuia with a 12-gauge semi-automatic shotgun on 06 May 2009, but that Metcalf only shot Kuahuia in self-defense.

Metcalf testified that on the night of the shooting, he confronted Kuahuia afte an alarm indicated that someone was on Metcalfe’s property and that Metcalfe say on his surveillance monitor that someone was outside his greenhouse, trying to cut through a shade cloth. Metcalfe said he shot Kuahuia after the victim allegedly “jumped” toward him with a cutting instrument. At the trial, Metcalfe’s version of events was challenged successfully by police detective Walter Ah Mow and Maui pathologist Anthony Manoukia. Their testimony indicated that Kuahuia was shot in the back from a distance of 60 feet. The court ruled that “Metcalfe’s argument is without merit.” >> Read >> more.

STATE v. METCALFE | Leagle.com > STATE v. METCALFENo. 30518. > STATE OF HAWAI'I, Plaintiff-Appellee, v. KEVIN C. METCALFE, Defendant-Appellant. > Intermediate Court of Appeals of Hawaii. > March 30, 2012. >> On the briefs: Karen T. Nakasone, Deputy Public Defender, for Defendant-Appellant. Ricky R. Damerville, Deputy Prosecuting Attorney, County of Hawaii for Plaintiff-Appellee. By: Nakamura, C.J., Foley and Ginoza, JJ. >> Defendant-Appellant Kevin C. Metcalfe (Metcalfe) appeals from the March 25, 2010 judgment entered by the Circuit Court for the Third Circuit (circuit court)1 Plaintiff-Appellee State of Hawai'i (State) charged Metcalfe by amended complaint with one count of Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS) §§ 707-701.5 (1)2 (1993 Repl.) and 706-660.1(1)3 (1993 Repl.) (Count I) and one count of Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21(a)4 (Supp. 2006) (Count II). After a jury trial, Metcalfe was found guilty of manslaughter in Count I and guilty as charged in Count II. The circuit court sentenced Metcalfe to an indeterminate term of twenty years incarceration in both counts, to run concurrently with each other.

On appeal, Metcalfe asserts the following points of error: (1) the circuit court erred in denying his motion to dismiss; (2) the circuit court plainly erred in allowing improper lay opinion testimony of Dr. Anthony Manoukian (Dr. Manoukian) and Detective Walter Ah Mow (Det. Ah Mow), where the prosecution failed to qualify them as experts under Hawaii Rules of Evidence (HRE) 702; (3) the circuit court plainly erred in giving a wrong jury instruction regarding opinion testimony, which was modified from a standard expert witness instruction, because there was no expert witness testimony; (4) the circuit court plainly erred in giving an erroneous self-defense instruction; (5) the circuit court plainly erred in failing to give an instruction on defense of property; (6) the circuit court plainly erred in failing to give a cautionary jury instruction regarding medical marijuana; (7) there was insufficient evidence that the shotgun fired by Metcalfe was a "firearm;" and (8) trial counsel rendered ineffective assistance of counsel. >> Read >> more.

Home » Deadly Force: Where does Hawaii draw the line between homicide and self-defense? By Jacob Shafer | Kill or be killed. In the jungle it’s ironclad law; in human society it’s anything but. Yes, we condone killing in certain extreme cases—during war, as punishment for the most heinous crimes and, sometimes, in self defense. Even then, however, it comes wrapped in layers of practical and moral ambiguity. It’s no surprise, then, that the Trayvon Martin case continues to make headlines. As you’re surely aware, Martin, an unarmed black teenager, was shot to death earlier this year in a Florida gated community by George Zimmerman, a neighborhood watch volunteer. Zimmerman claims Martin was acting suspiciously and attacked him when confronted. Martin’s family insists Trayvon did nothing wrong. ...

Hawaii’s self-defense law, outlined in HRS 703-304, allows for the use of deadly force, “if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.” Hawaii’s law does not compel a person to retreat from “his dwelling or place of work” when threatened. ...

The law, however, has limits. In April, a judge upheld the 20-year sentence given to Kevin Metcalfe, a Hawaii Island man convicted of shooting another man, Larry Kuahuia, with a 12-gauge shotgun in 2009. Metcalfe claimed he caught Kuahuia trying to break into his greenhouse, which was filled with marijuana plants, and that Kuahuia charged at him. But evidence contradicted Metcalfe’s account. During the trial Maui pathologist Anthony Manoukian testified that Kuahuia was shot in the back, according to the Hawaii Tribune-Herald. In 2009—the same year Kevin Metcalfe killed Larry Kuahuia—the Hawaii legislature considered a bill that would have amended HRS 703-304, lowering the threshold of threat from “serious bodily injury, kidnapping, rape, or forcible sodomy” to mere physical attack and expanding the “stand your ground” provision to include any public place.

“In light of the increasing presence of violence in our society and the availability firearms and other deadly weapons, [this bill] would allow the public to become more secure in their homes, places of employment and other areas where they should be able to enjoy life free from dangers caused by the criminal element,” wrote the state Public Defender’s office in testimony submitted to the House Judiciary Committee. >> Read >> more.

STATE v. METCALFE STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Kevin C. METCALFE, Petitioner/Defendant–Appellant. No. SCWC–30518. | -- March 19, 2013 > RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ.; with ACOBA, J., Dissenting Separately, with whom Circuit Judge SAKAMOTO, Assigned by Reason of Vacancy, Joins. Summer M.M. Kupau, for petitioner.Ricky R. Damerville, for respondent. On the night of May 6, 2009, the Hawai‘i County Police Department received a 911 call from Defendant Kevin C. Metcalfe. Metcalfe stated that he had just fired a 12–gauge shotgun at a burglar on his property: I told ‘em, ‘Get down.’ Then he says, ‘Ah, [ ] you.’ He said somethin'. I don't know, and so I shot a round on the ground. I shot one, you know, away from him.

He—he just kinda like came toward me so I shot again, and then he, I don't know, blasted past me, and I[ ] shot again. When a police officer arrived at Metcalfe's house, he discovered the body of Larry Kuahuia on a nearby road. There were no visible injuries to the front of Kuahuia's body, but numerous pellet wounds to the back. Metcalfe was subsequently charged in the Circuit Court of the Third Circuit with Murder in the Second Degree and Carrying or Use of Firearm in the Commission of a Separate Felony. At trial, the State of Hawai‘i introduced a transcript of the 911 call, as well as testimony from a number of witnesses. Those witnesses included a forensic pathologist, Dr. Anthony Manoukian, who testified that in his opinion, Kuahuia died from a shotgun wound to the back fired from a distance of approximately 60 feet. They also included Detective Walter Ah Mow, a firearms instructor who testified about the results of tests he had conducted using Metcalfe's shotgun to determine how widely the pellets from the gun dispersed at various distances.

Although Manoukian and Ah Mow testified about their training and expertise in, respectively, forensic pathology and firearms, the circuit court did not find on the record that they were qualified to testify as expert witnesses. As discussed below, it appears that the court had adopted a procedure under which it did not make findings in front of the jury regarding a witness's qualification to provide expert opinion testimony. >> Read >> more.

Oral Arguments Recordings Archive - Hawaii State Judiciary | Oral Arguments are provided in MP3 digital audio format. Browsers that are capable of playing these files include: Microsoft Internet Explorer (version 6 or higher), Mozilla Firefox (version 2 or higher) and Netscape Browser (version 8 or higher). In accordance with the Americans with Disabilities Act, and other applicable State and Federal laws, if you require an accomodation for your disability to access these audio files, please contact the Chief Clerk's Office at 539-4919. ... No. SCWC-30518, Thursday, October 4, 2012, 11 a.m. STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. KEVIN C. METCALFE, Petitioner/Defendant-Appellant. ... filed in the Circuit and Family courts and certain civil cases of the District Courts . ... KEVIN C. METCALFE, Petitioner/Defendant-Appellant. No. ... ADMINISTRATIVE DIRECTOR OF THE ... Read >> more.

NO. 30518 IN THE INTERMEDIATE COURT OF APPEALS | Mar 30, 2012 ... STATE OF HAWAI'I, Plaintiff-Appellee, v. KEVIN C. METCALFE, Defendant- Appellant. APPEAL FROM THE CIRCUIT COURT OF THE THIRD ... NO. 30518 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Plaintiff-Appellee,v. KEVIN C. METCALFE, Defendant-Appellant. APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 09-1-215K) ... On appeal, Metcalfe asserts the following points of error: (1) the circuit court erred in denying his motion to dismiss; (2) the circuit court plainly erred in allowing improper lay opinion testimony of Dr. Anthony Manoukian (Dr. Manoukian) and Detective Walter Ah Mow (Det. Ah Mow), where the prosecution failed to qualify them as experts under Hawaii Rules of Evidence (HRE) 702; (3) the circuit court plainly erred in giving a wrong jury instruction regarding opinion testimony, which was modified from a standard expert witness instruction, because there was no expert witness testimony; (4) the circuit court plainly erred in giving an erroneous self-defense instruction; (5) the circuit court plainly erred in failing to give an instruction on defense of property; (6) the circuit court plainly erred in failing to give a cautionary jury instruction regarding medical marijuana; (7) there was insufficient evidence that the shotgun fired by Metcalfe was a "firearm;" and (8) trial counsel rendered ineffective assistance of counsel. ... Read >> more.

Oral Arguments Before the Hawaii Supreme Court | Oct 4, 2012 ... KEVIN C. METCALFE, Petitioner/Defendant-Appellant. ... NOTE: Order assigning Circuit Court Judge Karl K. Sakamoto due to a vacancy, filed 07/12/12. ... 2012 Judgment on… No. SCWC-30518, Thursday, October 4, 2012, 11 a.m. STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. KEVIN C. METCALFE, Petitioner/Defendant-Appellant. (Manslaughter) Attorneys for Petitioner/Defendant-Appellant: John M. Tonaki, Public Defender, and Summer M.M. Kupau, Deputy Public Defender. Attorneys for Respondent/Plaintiff-Appellee: Charlene Y. Iboshi, Prosecuting Attorney, and Ricky R. Damerville, Deputy Prosecuting Attorney. The above-captioned case has been set for argument on the merits at: Supreme Court Courtroom Ali`iolani Hale 417 South King Street Honolulu, HI 96813 NOTE: Order assigning Circuit Court Judge Karl K. Sakamoto due to a vacancy, filed 07/12/12. NOTE: Order accepting Application for Writ of Certiorari, filed 08/08/12. COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Karl K. Sakamoto due to a vacancy. Brief Description: Petitioner/defendant-appellant Kevin C. Metcalfe filed an application for a writ of certiorari to review the April 24, 2012 Judgment on Appeal of the Intermediate Court of Appeals (ICA), issued pursuant to its March 30, 2012 Memorandum Opinion. The ICA’s judgment affirmed the Circuit Court of the Third Circuit’s (circuit court) March 25, 2010 Judgment of Conviction and Sentence, which convicted Metcalfe of Manslaughter, in violation of Hawai?i Revised Statutes (HRS) § 707-702, and Carrying or Use of Firearm in the Commission of a Separate Felony, in violation of HRS § 134-21(a). This case arises from an incident in which Metcalfe fired a shotgun at Larry Kuahuia, resulting in Kuahuia’s death. Metcalfe asserts that he fired the shots at Kuahuia in self-defense because Kuahuia charged at Metcalfe when Metcalfe confronted Kuahuia, who was allegedly stealing Metcalfe’s property. [ Listen to the entire audio recording in mp3 format ] Read >> more.

STATE v. METCALFE - March 30, 2012. - Leagle Home | Defendant-Appellant Kevin C. Metcalfe (Metcalfe) appeals from the March 25, 2010 judgment entered by the Circuit Court ... DIRECTOR, Intermediate Court of Appeals of Hawaii | STATE v. METCALFE > STATE OF HAWAI'I, Plaintiff-Appellee, v. KEVIN C. METCALFE, Defendant-Appellant. No. 30518. Intermediate Court of Appeals of Hawaii. March 30, 2012. On the briefs: Karen T. Nakasone, Deputy Public Defender, for Defendant-Appellant. Ricky R. Damerville, Deputy Prosecuting Attorney, County of Hawaii for Plaintiff-Appellee. By: Nakamura, C.J., Foley and Ginoza, JJ. On appeal, Metcalfe asserts the following points of error: (1) the circuit court erred in denying his motion to dismiss; (2) the circuit court plainly erred in allowing improper lay opinion testimony of Dr. Anthony Manoukian (Dr. Manoukian) and Detective Walter Ah Mow (Det. Ah Mow), where the prosecution failed to qualify them as experts under Hawaii Rules of Evidence (HRE) 702; (3) the circuit court plainly erred in giving a wrong jury instruction regarding opinion testimony, which was modified from a standard expert witness instruction, because there was no expert witness testimony; (4) the circuit court plainly erred in giving an erroneous self-defense instruction; (5) the circuit court plainly erred in failing to give an instruction on defense of property; (6) the circuit court plainly erred in failing to give a cautionary jury instruction regarding medical marijuana; (7) there was insufficient evidence that the shotgun fired by Metcalfe was a "firearm;" and (8) trial counsel rendered ineffective assistance of counsel. Read >> more.

Electronically Filed Supreme Court SCWC-30518 08-AUG-2012 02 ... Aug 8, 2012 | IN THE SUPREME COURT OF THE STATE OF HAWAI'I. STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, vs. KEVIN C. METCALFE ... NO. SCWC-30518 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, vs. KEVIN C. METCALFE, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30518; CR. NO. 09-1-0215) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.,and Circuit Judge Sakamoto, assigned by reason of vacancy) Petitioner/Defendant-Appellant Kevin C. Metcalfe’s application for writ of certiorari filed on June 23, 2012, is hereby accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, August 8, 2012. Summer M.M. Kupau forpetitioner Ricky R. Damervillefor respondent /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Simeon R. Acoba, Jr. /s/ Sabrina S. McKenna /s/ ... Read >> more.

Metcalfe to appeal conviction - By WHT - Friday, May 28, 2010 | An Ocean View man convicted in March of manslaughter in the May 2009 shooting death of a Milolii man is seeking an appeal of his conviction. A notice of appeal was filed late last week on Kevin C. Metcalfe's behalf by James Tabe, supervisor of the state Office of the Public Defender Appeals Section.

Tabe was in training seminars all week and unavailable for comment Thursday. The appeal first must be accepted by the state Intermediate Court of Appeals before a senior public defender can be assigned by Tabe to Metcalfe's case, said state Office of the Public Defender secretary Ravern Kaluhiokalani.

A Hilo Circuit Court jury March 12 found Metcalfe guilty of manslaughter and use of a firearm in the commission of a separate felony stemming from the May 6, 2009, shooting death of Larry Kuahuia. Metcalfe was sentenced to two concurrent 20-year terms. Metcalfe was initially charged with second-degree murder, however, the jury returned a manslaughter verdict, as they believed Metcalfe had acted recklessly, not intentionally, when he shot and killed Kuahuia, who police said was attempting to steal (medical!) marijuana from Metcalfe's yard (again!).

There are 2 comment(s) to this story.

taynugz wrote on Jun 15, 2010 12:40 PM:
" Kevin is my hero, race and injustice aside, you did the right thing.

We're all pulling for you here. "

Visit - http://www.westhawaiitoday.com/articles/2010/05/28/local/local06.txt - for full text, comments and to leave yours.

Metcalfe seeks public funding for appeal - by Chelsea Jensen West Hawaii Today | Wednesday, April 21, 2010 -- Ocean View man recently convicted of manslaughter in the May 2009 shooting death of another Ocean View man is seeking publicly funded representation to appeal his conviction. Kevin C. Metcalfe's private attorneys, William Reece Jr. and Vaughan Winborne Jr., filed a motion on Metcalfe's behalf April 12 requesting they be removed from the case. The motion also asked that Metcalfe be appointed a public defender for a possible appeal.

Deputy Prosecuting Attorney Rick Damerville said the state filed a motion requesting the 3rd Circuit Court and the Office of the Public Defender conduct an on-the-record inquiry into Metcalfe's eligibility to receive Public Defender services. Chief Judge Ronald Ibarra ordered Tuesday that both motions be taken "under advisement" by the Public Defenders Office when determining Metcalfe's eligibility for a public defender. The office will then report its findings to the court, said Damerville.

Damerville cited numerous reasons the office conducts an investigation, including Metcalfe's travel between Hawaii and the mainland, his posting of a $100,000 bail bond, a website created to solicit donations for his legal fees, four parcels of land owned by Metcalfe and other "undisclosed assets." Further, Metcalfe hired two private lawyers after he "became dissatisfied" with the pace of Public Defender Peter Bresciani, according to the state's motion.

There are 1 comment(s) to this story.

Dougmo2003 wrote on Apr 21, 2010 10:04 PM:
" Can't we just let him off now and avoid all the cost? "

Visit - http://www.westhawaiitoday.com/articles/2010/04/21/local/local04.txt - for full text, comments and to leave yours.

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