State v. Marroquin. Dissenting Opinion by Wilson, J.

482 P.3d 1097, 149 Haw. 136

• Court: Hawaii Supreme Court
• Decided: March 17, 2021
• Docket: SCWC-18-0000505
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 17-MAR-2021 08:53 AM Dkt. 16 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs

BENITO MARROQUIN, III aka BENNY MARROQUIN, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 3PC16100117K

MARCH 17, 2021

RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., AND WILSON J., DISSENTING1

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioner/Defendant-Appellant Benito Marroquin III

(Marroquin) appeals the judgment of the Intermediate Court of

1 Associate Justice Richard W. Pollack, who was a member of the court when the oral argument was held, retired from the bench on June 30, 2020. *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Appeals (ICA) affirming the Circuit Court of the Third Circuit’s2

(circuit court) denial of two of Marroquin’s motions in limine

to offer hearsay evidence. On certiorari, Marroquin raises a

single point of error and argues that the ICA erred by

concluding that the circuit court may deny a motion in limine

without providing findings of fact on the record, contrary to

Hawaiʻi Rules of Penal Procedure (HRPP) Rule 12(e). In

particular, Marroquin challenges the ICA’s conclusion that trial

judges “should,” but need not, make findings of fact on the

record when resolving motions in limine.

Contrary to Marroquin’s argument, HRPP Rule 12(e) does

not govern motions in limine. Rather, Hawaiʻi Rules of Evidence

(HRE) Rule 103(b) is the specific standard governing the

admissibility of evidence and the motions in limine. HRE Rule

103(b) explicitly provides discretion to trial courts resolving

evidentiary issues regarding whether to make findings of fact.

Therefore, we agree with the ICA’s ultimate conclusion that the

circuit court did not err in denying Marroquin’s motions in

limine without entering findings of fact on the record. We

consequently affirm the ICA’s August 9, 2019 Judgment on Appeal

on different grounds.

2 The Honorable Ronald Ibarra presided.

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I. BACKGROUND

A. Factual Background

On January 13, 2016, Marroquin was involved in an

altercation with the complaining witness (the CW) at a

construction site. During the altercation, Marroquin punched

the CW in the face at least three to five times. Marroquin’s

punches rendered the CW unconscious, “caved in” the CW’s right

cheek, caused brain injury, and required facial reconstruction

surgery to install four plates and twenty screws. Marroquin

claimed that he punched the CW in self-defense because the CW

grabbed Marroquin by the neck during the altercation.

B. Pre-Trial Proceedings

Marroquin filed two motions in limine relevant to

certiorari.

Marroquin’s Third Motion in Limine (Third MIL)

requested permission to offer a hearsay statement from an

eyewitness through the testimony of Officer Scott Aloy (Officer

Aloy).3 In particular, Marroquin sought to offer testimony

reflecting Officer Aloy’s notes that the eyewitness

saw two guys arguing at which point he stated that he saw the guy dressed in the tank top4 swing at the other guy. He stated that the haole guy put his hands around the neck of

3 Officer Aloy responded to a call regarding the altercation.

4 Marroquin testified that he wore a tank top on the day of the altercation.

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the guy with the tank top and at that time, he stated that he just saw the guy in the tank top keep punching the other guy in the face. He then stated that the haole guy was then stuck in the corner and the guy in the tank top kept punching him while he was on the ground at which point I asked him which party swung first. He stated that the guy in the tank top swung first and that he seemed to be the aggressor in this situation.

Marroquin asserted that the eyewitness’s statement was relevant

to his self-defense claim and admissible under HRE Rule

804(b)(8).

Marroquin’s Amended Fourth Motion in Limine (Fourth

MIL) requested permission to offer hearsay-within-hearsay

statements made by the CW to a co-worker through the testimony

of Investigator Daniel Pang (Investigator Pang).5 Specifically,

Marroquin sought to offer testimony reflecting (1) Investigator

Pang’s notes that the CW told the co-worker that the CW “wasn’t

going to take that from a punk like [Marroquin] and that [the

CW] was going to call [Marroquin] out on it[;]” and (2) a

follow-up email from the co-worker to Investigator Pang stating:

On January 13th of this year I showed up for work at the . . . residence. I was talking with [Marroquin] around 8

5 Investigator Pang conducted follow-up investigations regarding the altercation.

Marroquin’s Fourth MIL also indicated that he intended to introduce the CW’s statements to the co-worker through another witness’s testimony. However, Marroquin’s motion focused solely on why he should be allowed to introduce the CW’s statements to the co-worker through Investigator Pang’s testimony. This court “need not consider a point that was not presented in the trial court in an appropriate manner.” Hawaiʻi Revised Statutes (HRS) § 641-2(b) (2004). Inasmuch as Marroquin now argues that the ICA erred in affirming the circuit court’s decision to not admit the CW’s statements to the co-worker through another witness’s testimony, this court will disregard such a claim. See id.

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am and [the CW] came over to ask a question. [Marroquin] gave him a sarcastic answer and [the CW] walked away angry. I went over to check and see if [the CW] needed anything 10 minutes later and [the CW] was still upset and said he wasn’t going to take that from a punk like [Marroquin]. [The CW] said he was going to call [Marroquin] out on it. I walked away and started working on what I was supposed to be doing that day and didn’t think much of it until 20 minutes later when [Marroquin] came over to where [I] was working and said [the CW] grabbed [Marroquin] by the throat so [Marroquin] hit [the CW]. I didn’t see the altercation.

Marroquin asserted that the CW’s statement to the co-worker was

relevant to his self-defense claim as it showed the CW’s state

of mind, and admissible under HRE Rule 804(b)(8).

The circuit court denied Marroquin’s Third and Fourth

MILs. In the circuit court’s written orders, the circuit court

stated:

The Court having considered the Motion; the State’s Opposition to Defendant’s Motion; the oral arguments of counsel; and the record and case-file herein shall DENY the Motion.

C. Trial Proceedings

During the trial, the CW testified that prior to the

altercation, Marroquin responded to a question with an

“aggressive” tone. The CW explained that after this incident,

“I was mad, you know, that I just got chewed out for nothing.”

The CW added that “I vent[ed] to get it off my chest and move[d]

on.” About thirty or forty minutes later, the CW encountered

Marroquin while looking for a drill. The CW testified that

Marroquin said “that he ought to just slap me” in an “elevated

and . . . very aggressive tone.” According to the CW, Marroquin

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struck him in the face and punched him multiple times, causing

him to lose consciousness shortly after making the statement.

The CW also stated that the CW “had a thought that if I could

just grab him and hold onto him in a bear hug I could stop the

madness. But I never accomplished that. Next thing I remember,

I was on the ground.”

On cross-examination, defense counsel asked the CW

about the prior incident. The CW reinforced that Marroquin’s

tone was “[a]ggressive and demeaning.” The CW also stated that

“[w]ithin 30 seconds” of the interaction, “I stated my

frustrations and I moved on.” When asked why he was upset by

the interaction, the CW responded “[t]he level and the -- the

inflection. It was aggressive, it was demeaning. It’s like he

was talking down to me.” Turning to the altercation itself,

defense counsel asked the CW if “[a]t any point did you grab

[Marroquin] by the neck?” The CW replied “No.” When asked if

the CW tried to grab Marroquin during the altercation, the CW

explained “I remember a thought of trying to grab him. I

remember trying to keep my balance and flailing my arms, and the

next thing I remember I was on the ground.”

On re-direct, the CW added that “I have no memory of

laying my hands on [Marroquin] at all.”

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After the prosecution rested, defense counsel renewed

its Third MIL to introduce the eyewitness’s statement without

providing any new evidence or arguments. The circuit court

denied the renewed motion, explaining “there’s still nothing new

that -- for the Court to consider.”

During the defense’s case-in-chief, Marroquin also

testified about the altercation. Marroquin stated that the CW

initiated the altercation by telling him “You shouldn’t be effin

moving the drill. I should slap you.” Marroquin explained that

the CW then “goes to make a motion. I go to put up my hands. I

trip off the back of the lanai and he has me up against the wall

by my neck.” Marroquin emphasized that the CW “had me up

against the wall by my neck and choking me out.” Marroquin then

testified that “I hit him. He went down. I got him off me. I

was like feared [sic] for my life. He -- like had me, you know.

He had me up by my throat on the wall and I couldn’t move.”

Marroquin explained that after he managed to break free, “I made

sure that he was down and didn’t get back up to attack me.”

A jury subsequently found Marroquin guilty of Assault

in the Second Degree6 on September 27, 2016. The circuit court

6 The jury convicted Marroquin of violating HRS § 707-711(1) (2016), which provided in relevant part:

Assault in the second degree. (1) A person commits the offense of assault in the second degree if: (continued . . . ) 7 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

entered its Judgment of Conviction and Sentence on April 24,

2018.

D. The ICA’s Summary Disposition Order

Marroquin appealed the circuit court’s Judgment of

Conviction and Sentence to the ICA, which affirmed the circuit

court. The ICA concluded in a summary disposition order that a

trial court “should,” but need not, provide factual findings in

determining the admissibility of evidence.

II. STANDARD OF REVIEW

A. Motions in Limine

“The granting or denying of a motion in limine is

reviewed for abuse of discretion.” Kobashigawa v. Silva, 129

Hawaiʻi 313, 320, 300 P.3d 579, 586 (2013). “An abuse of

discretion occurs ‘where the trial court has clearly exceeded

the bounds of reason or disregarded rules or principles of law

or practice to the substantial detriment of a party litigant.’”

Carr v. Strode, 79 Hawaiʻi 475, 488, 904 P.2d 489, 503 (1995)

(continued . . .)

(a) The person intentionally, knowingly, or recklessly causes substantial bodily injury to another;

(b) The person recklessly causes serious bodily injury to another[.]

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(quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw.

85, 114, 839 P.2d 10, 26 (1992)).

III. DISCUSSION

A. HRPP Rule 12(e) does not govern the motions in limine at issue.

Marroquin contends that HRPP Rule 12(e)7 governs the

motions in limine here because he filed the motions before trial

and the trial court’s determination on admissibility of hearsay

evidence necessarily involved factual issues.

This court disagrees. HRE Rule 103(b), the specific

rule governing admission of evidence, conflicts with HRPP Rule

12(e), a general rule governing pretrial motions, and therefore

precludes its application to motions in limine.

The HRE govern the resolution of these motions in

limine. This court has approvingly quoted the ICA’s explanation

that a motion in limine “serves the useful purpose of raising

and pointing out before trial certain evidentiary rulings the

court may be called upon to make during the course of the

7 HRPP Rule 12(e) (2007) provides:

(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue or until after verdict; provided that a motion to suppress made before trial shall be determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

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trial.” Kobashigawa, 129 Hawaiʻi at 321, 300 P.3d at 587

(quoting Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 393,

667 P.2d 804, 826 (1983)). Given that motions in limine involve

evidentiary issues, resolution of a motion in limine necessarily

calls upon the trial court to apply the HRE.

HRE Rule 103(b) (1980) authorizes trial courts to

resolve motions in limine without providing factual findings.

“[W]here the statutory language is plain and unambiguous, our

sole duty is to give effect to its plain and obvious meaning.”

Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114

Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (internal citation

omitted). HRE Rule 103(b) provides in relevant part: “[t]he

[trial] court may add any other or further statement which shows

the character of . . . the ruling thereon.” (Emphasis added.)

The commentary to HRE Rule 103(b) adds that “[t]he intent [of

HRE Rule 103(b)] is to provide the appellate court with a record

adequate for final disposition of an evidentiary point. The

provision is discretionary rather than mandatory, leaving

determination of adequacy of record to the judgment of the trial

court.” The plain text of HRE Rule 103(b) consequently

establishes that a trial court may provide findings of fact when

resolving a motion in limine.

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HRPP Rule 12(e)’s factual finding requirement

conflicts with HRE Rule 103(b)’s grant of discretionary

authority. The text of HRPP Rule 12(e) unambiguously requires

that “[w]here factual issues are involved in determining a

motion, the [trial] court shall state its essential findings on

the record.” (Emphasis added.) However, HRE Rule 103(b) does

not impose a strict mandate requiring trial courts to provide

findings of fact to resolve a motion in limine. Application of

HRPP Rule 12(e) to motions in limine would consequently deprive

trial courts of the discretion granted by HRE Rule 103(b), and

is therefore inconsistent with HRE Rule 103(b).

HRE Rule 103(b) governs these motions in limine. The

Legislature enacted the HRE in 1980, HRS § 626-1 (1980), and

concurrently enacted HRS § 626-3 (1980), which provides that

“[i]f any other provision of law, including any rule promulgated

by the supreme court, is inconsistent with [the HRE], [the HRE]

shall govern unless [the HRE] or such inconsistent provision of

law specifically provides otherwise.”

Neither the HRE nor the HRPP provides that the HRPP

governs instead of the HRE. HRE Rule 1101 (1980) governs the

applicability of the HRE. HRE Rule 1101(b) explicitly provides

that the HRE “apply generally to civil and criminal

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proceedings.” HRE Rule 1101(d) adds in relevant part that the

HRE do not apply to:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.

(2) Grand jury. Proceedings before grand juries.

(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary hearings in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

(4) Small claims. Proceedings before the small claims division of the district courts.

Meanwhile, the HRPP is silent at best on the issue of

whether the HRPP or the HRE governs in case of a conflict. HRPP

Rule 1(b) (2012) governs the “Interpretation and Enforcement of

[the HRPP].” The rule provides that

[t]hese rules shall be read and construed with reference to each other, the Hawaiʻi Electronic Filing and Service Rules, and the Hawaiʻi Court Records Rules. In any conflict amongst the Hawaiʻi Rules of Penal Procedure, the Hawaiʻi Court Records Rules, and the Hawaiʻi Electronic Filing and Service Rules, the Hawaiʻi Electronic Filing and Service Rules shall prevail.

HRPP Rule 1(b).

This court therefore holds that HRE Rule 103(b), and

not HRPP Rule 12(e), governs these motions in limine. See HRS

§ 626-3. HRPP Rule 12(e)’s factual finding requirements

therefore do not apply to the resolution of motions in limine.

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IV. CONCLUSION

For the foregoing reasons, we affirm the ICA’s

August 9, 2019 Judgment on Appeal affirming the circuit court’s

Judgment of Conviction and Sentence.

Victor M. Cox /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Charles E. Murray, III, Deputy Prosecuting Attorney, /s/ Sabrina S. McKenna for respondent