(Amended)

No. SCWC-12-0000794, Thursday, March 17, 2016, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. ZALDY SUBIA, Petitioner/Defendant-Appellant.
 
The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

    William H. Jameson, Jr., Deputy Public Defender

Attorney for Respondent:

    Brandon H. Ito, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 01/05/16.
NOTE: Order granting motion to continue date of oral argument from 02/18/16 to 03/17/16 at 10:00 a.m., filed 02/17/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

Zaldy Subia (Subia) filed an application for writ of certiorari to review the September 23, 2015 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its August 17, 2015 memorandum opinion affirming the Circuit Court of the First Circuit’s (circuit court) August 22, 2012 judgment.

Subia was arrested after engaging in a conversation with an undercover police officer who sought to purchase methamphetamine, and then providing a white crystalline-like substance, allegedly methamphetamine, to the officer.  At trial, a criminalist with the Honolulu Police Department conducted tests of the substance to determine its identity.  Of the tests conducted, at issue is the Fourier Transform Infrared Spectrometer (FTIR) test, which identifies a particular substance, such as methamphetamine, to the exclusion of all others within a reasonable degree of scientific certainty.  To introduce the results of the FTIR test, a foundation must be laid to show that the testing instrument was in proper working order.  The circuit court permitted the criminalist to testify as to her conclusion that the FTIR test results demonstrated that the substance contained methamphetamine.  The jury convicted Subia of Methamphetamine Trafficking in the Second Degree.

The ICA’s judgment affirmed the circuit court’s judgment, and held that a sufficient foundation was laid to admit the FTIR test results based on State v. Manewa, 115 Hawai`i 343, 167 P.3d 336 (2007).  

In his application, Subia raises two questions:
 
        1.    Whether the ICA gravely erred in failing to find that the circuit court abused its discretion in permitting the criminalist to testify that the results of the FTIR test conclusively established that the substances the police recovered from Subia contained methamphetamine.

        2.    Whether the ICA gravely erred in failing to vacate the circuit court’s judgment convicting Subia of Methamphetamine Trafficking in the Second Degree based on insufficient evidence that the substances recovered from Subia by the police contained methamphetamine.