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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 03-JAN-2020 08:19 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo--- ________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
PATRICK WILLIAMS, Petitioner/Defendant-Appellant. ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; 1FC151000047)
JANUARY 3, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Patrick Williams (“Williams”) was charged with assault in
the second degree1 against his two-year-old son (“minor son”) in
violation of Hawaiʻi Revised Statutes (“HRS”) § 707-711(1)(a)
1 HRS § 707-711 (2014) states: “Assault in the second degree. (1) A person commits the offense of assault in the second degree if: (a) The person intentionally or knowingly causes substantial bodily injury to another; (b) The person recklessly causes serious or substantial bodily injury to another . . . .” *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
and/or § 707-711(1)(b),2 via an August 11, 2015 indictment in the
Family Court of the First Circuit (“family court”).3 On January
12, 2017, a jury found Williams guilty of the lesser included
offense of assault in the third degree, in violation of HRS §
707-712.4 On March 28, 2017, the family court5 entered its final
judgment, sentencing Williams to one year of probation.
2 The indictment read:
On or about September 21, 2014 to and including September 22, 2014, in the City and County of Honolulu, State of Hawaiʻi, PATRICK WILLIAMS, being the parent or guardian or any other person having legal or physical custody of [minor son], did intentionally or knowingly cause substantial bodily injury to [minor child], and/or did recklessly cause substantial bodily injury to [minor son], a person less than eighteen years of age, thereby committing the offense of Assault in the Second Degree, in violation of Section 707-711(1)(a) and/or Section 707-711(1)(b) of the Hawaiʻi Revised Statutes. 3 The parties and the Intermediate Court of Appeals (“ICA”) refer to the trial court as the “circuit court,” but the indictment and proceedings were in the family court. At all times pertinent to this case (as well as now), the family court had exclusive original jurisdiction “[t]o try any offense committed against a child by the child’s parent or guardian or by any other person having the child’s legal or physical custody” pursuant to HRS § 571-14(a)(1) (2018). 4 HRS § 707-712 (2014) states:
Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Negligently causes bodily injury to another person with a dangerous instrument. (2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
The jury instruction for the lesser included offense of Assault in the Third Degree, the charge on which Williams was found guilty, read as follows:
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Williams appealed the family court’s final judgment to the
Intermediate Court of Appeals (“ICA”), arguing the family court
plainly erred by failing to strike certain improper opening
statements made by the deputy prosecuting attorney and by
admitting certain x-rays into evidence without the necessary
(. . .continued)
If and only if you find the defendant not guilty of the offense of Assault in the Second Degree, or you are unable to reach a unanimous verdict as to this offense, then you must consider whether the defendant is guilty or not guilty of the included offense of Assault in the Third Degree.
A person commits the offense of Assault in the Third Degree if he intentionally, knowingly, or recklessly causes bodily injury to another person.
There are four material elements of the offense of Assault in the Third Degree, each of which the prosecution must prove beyond a reasonable doubt.
These four elements are:
1. That, on or about September 21, 2014, to and including September 22, 2014, in the City and County of Honolulu, the defendant, Patrick Williams, was the parent, or guardian, or any other person having legal or physical custody of [minor son]; and
2. That the defendant, Patrick Williams, knew or reasonably should have known that [minor son] was less than eighteen years of age; and
3. That, on or about September 21, 2014, to and including September 22, 2014, the defendant, Patrick Williams, caused bodily injury to [minor son]; and
4. That the defendant, Patrick Williams, did so intentionally, knowingly or recklessly. 5 The Honorable Rom A. Trader presided.
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foundation. Williams also argued there was insufficient
evidence to sustain his conviction.
In its summary disposition order (“SDO”), the ICA concluded
the points of error alleged by Williams lacked merit. The ICA
ruled: (1) although the deputy prosecuting attorney’s comments
in his opening statement were improper, the family court had
instructed the jury to refrain from considering the comments as
evidence so, therefore, the error was harmless; (2) there was no
reasonable possibility that any error in admitting the contested
x-rays into evidence contributed to Williams’s conviction; and
(3) viewing the evidence in the light most favorable to the
State, there was sufficient evidence that Williams at least
recklessly caused minor son to suffer bodily injury. See State
v. Williams, No. CAAP-XX-XXXXXXX, at 4–6 (App. June 15, 2018)
(SDO). The ICA then entered its judgment on appeal affirming
the family court’s final judgment.
Williams’s certiorari application asks that this court
address the three issues he had presented to the ICA:
Whether the ICA gravely erred in holding that: (1) the prosecutor’s improper comments constituted harmless error; (2) the [family] court did not err in admitting the x-rays into evidence without the improper [sic] foundation; and (3) there was sufficient evidence to sustain Williams’s conviction.
We hold that Williams’s conviction on the charge of assault
in the third degree must be vacated because the deputy
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prosecuting attorney’s elicitation of evidence regarding Child
Welfare Services involvement in violation of a defense motion in
limine was improper and not harmless beyond a reasonable doubt.
As we set aside the conviction, we also address the
evidentiary foundation issue regarding the x-rays not addressed
by the ICA, and hold there was insufficient foundation for
admission of the contested x-rays into evidence because the
physician through whom the x-rays were introduced was not a
custodian or “other qualified witness” able to lay a foundation
pursuant to Hawaiʻi Rules of Evidence (“HRE”) Rule 803(b)(6)
(2002). We also hold, however, that Williams’s conviction on
the charge of assault in the third degree was supported by
substantial evidence.
Accordingly, we vacate the family court’s March 28, 2017
final judgment as well as the ICA’s September 25, 2018 judgment
on appeal and remand this case to the family court for further
proceedings consistent with this opinion.
II. Background
A. Child Welfare Services Issue
In his January 3, 2017 motion in limine, Williams included
a request to exclude “[a]ny reference to an investigation and
case by the Child Welfare Services, Department of Human
Services, State of Hawai[ʻ]i and any legal issues stemming from
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said investigation and case” as item 2.c. At the January 9,
2017 hearing on Williams’s motions in limine, the family court
granted this request.
Williams’s jury trial took place on January 9, 11, and 12,
2017. Before the parties’ opening statements, the family court
explained, “Please remember that what the attorneys say is not
evidence. What actually counts is the sworn testimony of the
witnesses and the exhibits or other things that are received as
evidence.”
During opening statements on January 9, the deputy
prosecuting attorney stated:
[Y]ou will find out that [minor son] is subsequently transferred to another family and reunited with his mother.
You’ll meet Detective Melvin Raquedan, who assists with the transfer of custody. You’ll also meet social worker Robert Asato, who aids in the transfer from Tripler Army Medical Center after [minor son] is treated and released and how he is ultimately reunited down the road with his mother.
Williams did not raise a specific objection to these statements.
On January 11, Wiliams’s deputy public defender requested
an offer of proof regarding what testimony the deputy
prosecuting attorney expected to elicit from witnesses Melvin
Raquedan of the Honolulu Police Department (“Detective
Raquedan”) and social worker Robert Asato. The deputy
prosecuting attorney indicated that both witnesses were being
called to establish “a material element” of “custody of the
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child, who was formerly or solely in the defendant’s care, and
the transfer out of that care.” After the deputy public
defender objected to any evidence regarding “care out of Mr.
Williams’ hands,” the deputy prosecuting attorney stated that he
would not “get into what happened to the child. It’s
essentially to establish the parent, guardianship care and
custody.”
The next day, the State called Detective Raquedan as a
witness. During his direct examination, the following exchanged
occurred:
[DEPUTY PROSECUTING ATTORNEY]: And in order to explain the next steps you took, what did dispatch request your assistance with?
[WITNESS]: Assist in taking police custody of a minor.
[DEPUTY PUBLIC DEFENDER]: Objection, Your Honor. Violates the motion.[6]
THE COURT: No speaking objections. At the bench please. (The following proceedings had at the bench:)
THE COURT: All right. So the objection is violates the motions in limine?
[DEPUTY PUBLIC DEFENDER]: Yes, Your Honor. The concern raised yesterday on record.
THE COURT: All right. At the end of the day in terms of what was discussed at court, I believe I only permitted testimony with respect to what the status of the child and relative to the defendant having care and custody of the
6 This was presumably the granted motion in limine prohibiting “[a]ny reference to an investigation and case by the Child Welfare Services, Department of Human Services, State of Hawai[ʻ]i and any legal issues stemming from said investigation and case,” as well as the discussions that had taken place the day before regarding the nature of the evidence to be elicited.
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child versus transfer of custody. I believe that was precluded. So where do you intend to go with this?
[DEPUTY PROSECUTING ATTORNEY]: Yes. The prosecution intends to show that in order to have the transfer of custody from the father’s care to the State, there needs to be a two- party assistance, and he responded to that in order to work with Mr. Asato. That is what he was given via dispatch and that’s all he’s going to testify to with respect to assisting in the transfer of the custody.
THE COURT: Okay.
[DEPUTY PROSECUTING ATTORNEY]: But that’s what it is. And the State does not intend to get into the details anywhere. But he was the responding officer.
THE COURT: All right. [DEPUTY PUBLIC DEFENDER].
[DEPUTY PUBLIC DEFENDER]: Your Honor, I think that’s highly prejudicial -- the fact that two witnesses are needed to establish one of the elements. I think the route that the State is taking is unnecessary and it sheds Mr. Williams in a different light than it would otherwise need to do to establish that same element. I think they can do it in a multiple number of other ways, and I think it still does violate. I don’t think –-
THE COURT: All right.
[DEPUTY PROSECUTING ATTORNEY]: With respect to the establishment, Detective Raquedan is expected to testify that he actually completed and filled out the protective custody form. On that form [minor son] is known by another name. So he is a necessary material witness to establish that this child was present. And he as well as Robert Asato signed the protective custody –-
. . . .
THE COURT: So why is it that you can’t simply ask the witness that as part of his duties, did he come into contact with these individuals -- the complainant, and during the course of his investigation or what he did, he ascertained defendant as the parent?
[DEPUTY PROSECUTING ATTORNEY]: Okay. And the State will just proceed that way.
THE COURT: That would essentially permit you to have him testimony [sic] to things that are within his knowledge but without necessarily going beyond what’s necessary to establish the elements of the offense. Because what happened with the child happened, which really has no
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relevance. And while the defense is claiming that it is highly prejudicial, I’m not so sure that’s the case.
[DEPUTY PROSECUTING ATTORNEY]: I’ll proceed. I’ll move on.
THE COURT: The objection’s sustained. And you may proceed as I’ve indicated.[7]
[DEPUTY PROSECUTING ATTORNEY]: Understood. Thanks.
[DEPUTY PUBLIC DEFENDER]: Thank you, Your Honor.
[DEPUTY PROSECUTING ATTORNEY]: And did you ultimately work in tandem with Mr. Asato on behalf of the Department of Human Services?
[WITNESS]: Yes.
[DEPUTY PUBLIC DEFENDER]: Objection, Your Honor.
THE COURT: Sustained. Court will strike that last response. You will not consider it for any purpose whatsoever, ladies and gentlemen.
Although the family court sustained the deputy public
defender’s objection and struck Detective Raquedan’s reference
to the “Department of Human Services,” of which Child Welfare
Services is a part, the State later called social worker Robert
Asato to testify, and elicited the following evidence:
[DEPUTY PROSECUTING ATTORNEY]: Good morning, sir. Can you please tell us your name and occupation for the record.
[WITNESS]: Robert Jason Asato. I’m an investigative social worker, Child Welfare Services.
THE COURT: Overruled.
7 Although the family court sustained the objection, it did not strike the response that prompted the objection, that Detective Raquedan had been requested by dispatch to “[a]ssist in taking police custody of a minor.”
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[DEPUTY PROSECUTING ATTORNEY]: You can respond. I’m sorry. Tell us your name and occupation again.
[WITNESS]: Robert Jason Asato. Investigative social worker, Child Welfare Services.
[DEPUTY PROSECUTING ATTORNEY]: Thank you. And Mr. Asato, I just have several questions for you. On September 24th, 2014, were you involved or did you come across [minor son]?
[DEPUTY PROSECUTING ATTORNEY]: And with respect to [minor son], were you able -- during the course of your investigation, able to determine who was the sole caretaker of [minor son] on that date?
[DEPUTY PROSECUTING ATTORNEY]: And the sole caretaker according to your investigation -- would it be fair to say was his father, Patrick Williams?
[DEPUTY PROSECUTING ATTORNEY]: And just to clarify, September 24th 2014, was that the first day that you were assigned and came across [minor son]?
In addition, during the testimony of Dr. Jennifer Doerrige
(“Dr. Doerrige”), whose testimony is further discussed in the
next section, the deputy prosecuting attorney asked, “[D]id you
alert authorities after treating [minor son],” to which Dr.
Doerrige responded, “Yes. CPS was contacted. That’s Child
Protective Services.”8
8 Although the official term is “Child Welfare Services,” it appears “Child Protective Services” or “CPS” is still often used in common parlance.
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B. Other Trial Evidence Relevant to Issues on Certiorari
The trial also included the following evidence relevant to
the issues on certiorari.
1. Testimony of Nurse Santana
Around 9:30 a.m. on September 22, 2014, Williams brought
minor son to Wahiawa General Hospital. That day happened to be
minor son’s second birthday.
Nurse Santana, who triaged minor son upon his arrival at
the hospital, testified she saw an “obvious deformity” in minor
son’s left femur and that minor son appeared distressed.
Williams told her he saw minor son jump off the bed the night
before around 10:30 p.m. and that minor son’s leg looked more
swollen that morning. At around 10:03 a.m., Nurse Santana
administered fentanyl, a drug which can cause sleepiness and a
dulling of the senses, to minor son.
2. Testimony of Nurse Blakey
Nurse Blakey then assessed minor son at 10:30 a.m. and
noted that he was alert and comfortable lying in bed, with
Williams at his bedside, and exhibited “no apparent distress”
after Nurse Santana had administered fentanyl. Because minor
son’s condition had stabilized, at around noon, Nurse Blakey
assisted in discharging him. Minor son then went to Tripler
Army Medical Center (“Tripler”) for further treatment.
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3. Testimony of Dr. Doerrige
Dr. Doerrige was the emergency room physician who treated
minor son at Wahiawa General Hospital on September 22, 2014.
She conducted a basic physical examination of minor son, and
noticed a deformity in his left leg with soft tissue swelling.
After discovering an “obvious” left femur fracture, she ordered
x-rays and a whole body x-ray called a babygram. Dr. Doerrige
diagnosed minor son with a left transverse slightly angulated
significantly displaced fracture of the left femur as well as
some soft tissue swelling at the site of the fracture.
Dr. Doerrige also opined that, had minor son not been
treated, the fracture could have caused serious permanent
disfigurement or protracted loss or impairment of the function
of his left leg, and that one leg would have been significantly
shorter than the other, which would have prevented minor son
from running, jumping, hopping, and skipping. Dr. Doerrige
further opined that minor son’s injury was not consistent with
jumping and falling off of a bed onto a carpeted floor. She
testified that the femur is a very strong bone that is difficult
to break. She testified:
The story wasn’t very consistent because, one, most kids . . . learn to jump between ages of 24 months and 36 months. So the jumping aspect was a little suspect. He might be advanced for his age. And then the fact that it probably would be greater force than that. Not like a two- story bed, but a two-story building that would have that kind of force to generate that kind of fracture.
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Dr. Doerrige also testified that femur fractures are notoriously
painful and that most children would be crying; in a great deal
of distress; and unable to walk, stand, or sleep through the
night.
Dr. Doerrige also related that while she treated minor son
for his injury, Williams was apathetic, “[v]ery aloof and was
off to the side. Was texting on his cell phone.” She also
observed Williams giving minor son fist bumps when minor son was
crying after coming back from being x-rayed.
Dr. Doerrige then testified State’s Exhibits 10, 11, and 12
showed differing views of a femur fracture, the femur fracture
in those exhibits was consistent with her diagnosis and
examination of minor son, and the x-rays were a “fair and
accurate depiction[] . . . of the left femur fracture sustained
by [minor son].” Dr. Doerrige testified the upper left corner
of the x-rays noted minor son’s name. When the State attempted
to move these exhibits into evidence, however, the family court
sustained the defense’s objection based on lack of foundation,
and these x-rays were never received in evidence.
Although Dr. Doerrige had testified she contacted “Child
Protective Services” as noted earlier, during cross-examination
by the deputy public defender, she also testified she could not
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4. Testimony of Dr. Polk
Dr. Norman Polk (“Dr. Polk”) served as minor son’s
diagnostic radiologist at Wahiawa General Hospital. Dr. Polk
had begun practicing medicine in Hawaiʻi during his residency at
Tripler in 1975, where he worked for about four years.
Dr. Polk was on duty as a radiologist at Wahiawa General
Hospital on September 22, 2014. His involvement in minor son’s
care consisted of viewing radiographs taken of minor son and
speaking with Dr. Doerrige regarding his findings. He opined
that minor son had a left femur mid-shaft fracture that was
slightly angulated anteriorly. Dr. Polk also testified there
was soft tissue swelling, but the babygram did not reveal any
prior fractures.
After being stabilized at Wahiawa General Hospital, minor
son had been taken to Tripler for treatment. The deputy
prosecuting attorney then began asking Dr. Polk whether he
previously had the opportunity to view several x-ray images
apparently taken at Tripler before coming to court that day.
Dr. Polk responded that he had seen “the post-treated injury
when [minor son] was at Tripler.” The deputy prosecuting
attorney then asked Dr. Polk whether in his past experience, he
had viewed x-ray images from Tripler. Dr. Polk then responded
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in the affirmative to this question as well as another question
regarding whether he relied on images from other hospitals.
The deputy prosecuting attorney then handed State’s Exhibit
3 for identification to Dr. Polk and asked him to verify that
the name, date of birth, and date of the image was “in line”
with the x-rays he had previously reviewed regarding minor son.
Dr. Polk agreed that “[t]hey appear[ed] to correlate.”
Dr. Polk then began testifying as to what State’s Exhibit 3
for identification showed even before it was received in
evidence. In summary, he described State’s Exhibit 3 as showing
a left femur after it had been realigned. Although Dr. Polk did
not testify that the image was of minor son’s left femur, he
stated it “look[ed] [like a] fair and accurate” depiction of
minor son’s fracture.
The deputy prosecuting attorney then began asking about
another Tripler x-ray, a lateral view x-ray of a left femur that
had been realigned, marked as State’s Exhibit 4. The deputy
public defender then objected that Dr. Polk had been testifying
regarding exhibits yet to be received in evidence, and also
asserted that no proper foundation had been laid for the
admission of the x-rays. The family court disagreed and
admitted State’s Exhibit 3 into evidence. The deputy public
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defender raised a running objection to the State’s other
exhibits.
Dr. Polk then further explained what was depicted in
State’s Exhibit 3:
For the sake of discussion, this is the femur, or thigh bone is what people know it as. And this is the fracture here, the mid-portion. And these two pieces of bone have been separated. And if there’s no fracture the white line would be contiguous all the way through. The knee doesn’t have any obvious fracture. The tibia and fibula, which are the lower leg bones, don’t show any obvious fracture. This is the hip. There’s no displacement or fracture up here. Basically the fracture involves the midshaft. And now it looks like it’s well aligned for orthopedic purposes on this film.
The white lines out here are the plaster cast. And the swelling is -- it’s basically adjacent to the area of the fractures. You don’t see the same sort of swelling down below.
After foundational questions were asked similar to those
asked of State’s Exhibit 3, State’s Exhibit 4 was also admitted
into evidence.
Dr. Polk then also opined that minor son’s injury would be
consistent with jumping and falling off of a bed only “[i]f the
bed was on a second story of a building.” He explained as
follows:
Children’s bones are unlike old people[’s bones] . . . . Children[’s] . . . bones tend to bend. . . . So it takes a lot of force to take a young kid’s leg -- and the femur is . . . one of the largest and strongest bones in the body -- to take it and actually break it in two pieces, snap it in two and to displace it, . . . that’s a lot of force.
He also testified that a broken femur in a two-year-old is a
“really unusual” injury, and is often related to non-accidental
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trauma, such as an automobile accident, falling down the stairs,
or blunt force trauma.
5. Testimony of Dr. Happy
Christopher Happy, M.D. (“Dr. Happy”), the chief medical
examiner for the City and County of Honolulu, testified for the
defense. Dr. Happy testified he had “review[ed] . . . various
X-ray images in [minor son’s] case,” and opined that a toddler
could sustain a femur fracture from jumping and falling off of a
bed, even if jumping onto a carpeted surface. He stated the
vast majority of femur fractures are accidental.
C. Appeal to the ICA and Application for Writ of Certiorari
On appeal to the ICA, Williams presented three points of
error:
A. The [family] court plainly erred in failing to strike improper statements made by the prosecutor in opening statement.
B. The [family] court erred in admitting the X-rays[9] into evidence without the necessary foundation.
C. There was insufficient evidence to sustain Williams’s conviction of Assault in the Third Degree.
The ICA rejected the challenges. As to the first issue,
the ICA applied a plain error analysis on the grounds that
9 In his opening brief, Williams took issue with the admission of State’s Exhibits 3, 4, 10, 11, and 12. However, the family court did not admit State’s Exhibits 10, 11, and 12.
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Williams had not objected to this portion of the State’s opening
statements at trial. See Williams, SDO at 2 (citing Hawaiʻi
Rules of Penal Procedure (“HRPP”) Rule 52(b); State v. Sanchez,
82 Hawaiʻi 517, 528, 923 P.2d 934, 945 (App. 1996)).10 The ICA
stated “the burden [is] on the defendant to show bad faith on
the part of the prosecutor, unless the fundamental rights of the
defendant were substantially prejudiced.” Williams, SDO at 3
(quoting State v. Moore, 82 Hawaiʻi 202, 213, 921 P.2d 122, 133
(1996)) (alteration in original). The ICA also cited to State
v. Valdivia, 95 Hawaiʻi 465, 479, 24 P.3d 661, 675 (2001),
stating that this court concluded that even if a prosecutor’s
comments were improper and made in bad faith, such misconduct
was “harmless beyond a reasonable doubt because the circuit
court instructed the jury no fewer than three times that
counsels’ statements and arguments were not evidence and not to
be considered during deliberations; there was no evidence that
the jury failed to adhere to those instructions.” Williams, SDO
at 3–4. Similarly, although the ICA agreed the State’s comments
were improper because the fact that minor son was taken out of
Williams’s custody is unrelated to any of the elements of the
offense, as the family court had instructed the jury both before
10 As discussed infra, an objection was not required due to the in limine ruling precluding such references.
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opening statements and when issuing general jury instructions
that the attorneys’ comments were not evidence, and as the
record did not demonstrate the jury failed to adhere to these
instructions, it concluded the prosecutor’s improper comments
were harmless beyond a reasonable doubt. See Williams, SDO at
4.
As to the second issue, the ICA did not address whether a
proper foundation had been laid for the admission of State’s
Exhibits 3 and 4. Instead, the ICA ruled that even if the
family court had erred in admitting the x-rays of minor son’s
femur bone into evidence, such error was harmless beyond a
reasonable doubt. See Williams, SDO at 4. The ICA referred to
the testimony by Dr. Doerrige, Dr. Polk, and the two nurses
regarding the extent of minor son’s injuries and the type of
distress minor son had been in upon arriving at the hospital.
See Williams, SDO at 4–5. The ICA also stated, “X-ray results
are the type of data that doctors reasonably rely on in
rendering a diagnosis and both doctors testified as to their
observations that [minor son] suffered a fractured femur.” Id.
As to the third issue, Williams had argued no evidence had
been presented that he had caused bodily injury to minor son.
The ICA noted, however, that Dr. Doerrige had testified that a
broken femur is “notoriously painful” and “would cause most
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children to cry, and would prevent a child from sleeping through
the night, standing, or walking,” yet Williams, minor son’s sole
caretaker, had not brought him to the hospital until
approximately ten hours later. Williams, SDO at 5. The ICA
also referred to the evidence that Williams had appeared aloof
at the hospital despite minor son’s severe distress and pain.
Id. Furthermore, the ICA pointed out that both Dr. Doerrige and
Dr. Polk testified that minor son’s injuries were inconsistent
with Williams’s explanation of jumping or falling off a bed.
Williams, SDO at 5-6. The ICA also noted Dr. Doerrige’s
testimony that children do not typically learn how to jump until
over twenty-four months old, and minor son had just turned
twenty-four months old. See Williams, SDO at 6. Viewing such
evidence in the light most favorable to the State, the ICA
concluded that “there is sufficient evidence that Williams at
least recklessly caused [minor son] to suffer bodily injury.”
Id.
In his certiorari application, Williams essentially
reasserts the same points of error:
Whether the ICA gravely erred in holding that: (1) the prosecutor’s improper comments constituted harmless error; (2) the [family] court did not err in admitting the x-rays into evidence without the improper [sic] foundation; and (3) there was sufficient evidence to sustain Williams’s conviction.
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III. Standards of Review
A. Prosecutorial misconduct
Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction. Factors considered are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.
State v. Maluia, 107 Hawaiʻi 20, 24, 108 P.3d 974, 978 (2005)
(citation omitted).
B. Admissibility of x-rays
[D]ifferent standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard is applied in the case of those rules of evidence that require a “judgment call” on the part of the trial court.
Kealoha v. Cty. of Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670,
676 (1993). In general, “[w]hether or not an x-ray photograph
has been sufficiently verified so as to warrant its admission in
evidence is a matter within the sound discretion of the trial
judge and will be reviewed for an abuse of discretion.” State
v. Torres, 60 Haw. 271, 276, 589 P.2d 83, 86 (1978).
C. Plain error
“[T]his court will apply the plain error standard of review
to correct errors which seriously affect the fairness,
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integrity, or public reputation of judicial proceedings, to
serve the ends of justice, and to prevent the denial of
fundamental rights.” State v. Henley, 136 Hawaiʻi 471, 478, 363
P.3d 319, 326 (2015) (citations omitted).
IV. Discussion
A. The deputy prosecuting attorney’s elicitation of evidence regarding Child Welfare Services violated Williams’s right to a fair trial.
Williams argues on certiorari that the deputy prosecuting
attorney’s comments in his opening statement that minor son was
“transferred to another family and reunited with his mother” and
that the jury would meet “Detective Melvin Raquedan, who assists
with the transfer of custody,” as well as “social worker Robert
Asato, who aids in the transfer from Tripler [] after [minor
son] is treated and released and how he is ultimately reunited
down the road with his mother” was prosecutorial misconduct,
requiring this court’s further review.
“The term ‘prosecutorial misconduct’ is a legal term of art
that refers to any improper action committed by a prosecutor,
however harmless or unintentional.” Maluia, 107 Hawaiʻi at 25,
108 P.3d at 979.11 Williams asserts the ICA erred in ruling
11 We further stated in Maluia:
[T]here are varying degrees of prosecutorial misconduct. . . . [M]ost cases . . . do not involve (continued. . .) 22 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
that, even if the deputy prosecuting attorney’s comments were
improper and made in bad faith, the misconduct was harmless
beyond a reasonable doubt because the family court had
repeatedly instructed the jury that the attorneys’ statements
and arguments were not evidence and not to be considered during
prosecutors who intend to eviscerate the defendant’s constitutional and statutory rights[.]
Nevertheless, we decline to create a separate category of prosecutorial “mistake” or “error.” There are three reasons why we believe that our current method of analysis -- in which all improper conduct is labeled “prosecutorial misconduct” -- is more appropriate.
First, there is no need to create separate categories because this court already distinguishes innocuous prosecutorial misconduct from more serious deceitful behavior[.] . . . In sum, whenever a defendant alleges prosecutorial misconduct, this court must decide: (1) whether the conduct was improper; (2) if the conduct was improper, whether the misconduct was harmless beyond a reasonable doubt; and (3) if the misconduct was not harmless, whether the misconduct was so egregious as to bar reprosecution. In the course of making these three determinations, the seriousness of the misconduct becomes evident, and we need not attach a separate label for our disposition to be clear. Consequently, a separate label for “misconduct” cases and “error” cases is unnecessary.
Second, a finding of “prosecutorial misconduct” is not equivalent to a finding of “professional misconduct” pursuant to the Hawaiʻi Rules of Professional Conduct (HRPC), and a prosecutor need not face disciplinary sanctions merely because we have used the term “prosecutorial misconduct.” . . .
Third, we believe that separate nomenclature for different types of prosecutorial misconduct would lead to protracted litigation over semantics; this would place an additional burden on our courts with no corresponding benefit.
107 Hawaiʻi at 25-26, 108 P.3d at 979-80.
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deliberations, and that there was no evidence that the jury
failed to adhere to those instructions. We agree with Williams
that the ICA erred.
Whenever a defendant alleges prosecutorial misconduct, this
court must consider three factors: “(1) whether the conduct was
improper; (2) if the conduct was improper, whether the
misconduct was harmless beyond a reasonable doubt; and (3) if
the misconduct was not harmless, whether the misconduct was so
egregious as to bar reprosecution.” Maluia, 107 Hawaiʻi at 26,
108 P.3d at 980. Williams argues the deputy prosecuting
attorney’s opening statement comments were improper. He
specifically only raises the issue of improper reference to
Child Welfare Services in the context of the opening statement.
The deputy prosecuting attorney’s opening statement
comments were clearly improper, but we need not address whether
the ICA erred in ruling them harmless based on the family
court’s instruction to not consider them as evidence. This is
because the deputy prosecuting attorney improperly elicited
evidence of the involvement of Child Welfare or Protective
Services in minor son’s case during the testimonies of Detective
Raquedan, social worker Robert Asato, and Dr. Doerrige,
notwithstanding the family court’s order granting a defense
motion in limine excluding any reference to an investigation and
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case by Child Welfare Services and any legal issues stemming
from that investigation and case. On appeal and certiorari,
Williams did not raise this elicitation of evidence as
additional bases of misconduct. When a defendant has not raised
misconduct on appeal, we must determine whether the misconduct
constituted plain error affecting the defendant’s substantial
rights.12
Granted, the State was required to prove Williams was the
“parent or guardian or any other person having legal or physical
custody” of [minor son] to establish the family court’s
jurisdiction over the case.13 It is unclear why the extensive
testimony that Williams identified himself as minor son’s father
to the medical witnesses was insufficient to establish this
requirement and if not, why additional evidence could not have
been elicited from one or more of the medical witnesses.14
Especially when it chose to call Detective Raquedan and social
worker Robert Asato, the State should have been careful not to
12 HRPP Rule 52(b) provides that “[p]lain errors or defects affecting substantial rights may be noticed even if they were not brought to the attention of the court.” 13 See supra notes 2 and 3. See also HRS § 701-114(1)(c) (2014) (requiring proof beyond a reasonable doubt of facts establishing jurisdiction for a person to be convicted of an offense). 14 For example, nurses Santana and Blakey and Dr. Doerrige testified extensively regarding minor son and his father, Williams.
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elicit evidence regarding the involvement of Child Welfare
Services, which violated the motion in limine. In addition, it
should not have asked Dr. Doerrige whether she had alerted
authorities to elicit her response that “Child Protective
Services” had been contacted.
Thus, because the elicited evidentiary references to the
involvement of Child Welfare Services were improper under the
first factor of the prosecutorial misconduct analysis, we next
address whether the misconduct was harmless beyond a reasonable
doubt under the second factor.
“Allegations of prosecutorial misconduct are [then]
reviewed under the harmless beyond a reasonable doubt standard,
which requires an examination of the record and a determination
of whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.” State
v. Pasene, 144 Hawaiʻi 339, 365, 439 P.3d 864, 890 (2019)
(citations omitted). To address whether misconduct was harmless
beyond a reasonable doubt, we consider three prongs: “the nature
of the alleged misconduct, the promptness or lack of a curative
instruction, and the strength or weakness of the evidence
against the defendant.” State v. Iuli, 101 Hawai‘i 196, 208, 65
P.3d 143, 155 (2003) (citations omitted).
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Addressing the first prong, the nature of the alleged
misconduct, the evidence improperly adduced by the State that
Dr. Doerrige called “Child Protective Services” and that Child
Welfare Services had become involved in the case, which, at
minimum, implied that Dr. Doerrige, a medical expert, suspected
or found abuse, which was directly related to the central
question of whether Williams had intentionally, knowingly, or
recklessly caused minor son’s injury, and was therefore
extremely prejudicial to Williams. As to the second prong, the
promptness or lack of a curative instruction, there was no
curative instruction. With respect to the third prong, the
strength or weakness of the evidence against Williams, we note
the medical witnesses differed on the cause of minor son’s
injury and Dr. Happy testified on behalf of Williams that minor
son’s injuries were consistent with jumping and falling off of a
bed. Therefore, the evidence against Williams was not so
overwhelmingly strong that there was not “a reasonable
possibility that the error complained of might have contributed
to” the conviction. State v. Underwood, 142 Hawai‘i 317, 328,
418 P.3d 658, 669 (2018) (citation omitted). Thus, the
prosecutor’s improper elicitation of evidence affected
Williams’s substantial rights and was not harmless beyond a
reasonable doubt.
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Turning to the third factor of the prosecutorial misconduct
analysis, however, we do not find the misconduct so egregious as
to bar reprosecution. We therefore vacate the conviction, but
remand the case to the family court for further proceedings
consistent with this opinion.
B. There was insufficient foundation for the admission of State’s Exhibits 3 and 4.
On certiorari, without identifying the x-rays he objects to
by exhibit number, Williams argues that certain x-rays should
not have been admitted in evidence due to a lack of foundation.
In his opening brief, Williams took issue with the admission of
State’s Exhibits 3, 4, 10, 11, and 12. The family court did
not, however, actually admit State’s Exhibits 10, 11, and 12, x-
ray images of minor son’s left leg taken at Wahiawa General
Hospital, into evidence. Dr. Doerrige testified, without
defense objection, that these were x-rays of minor son’s left
femur fracture taken at Wahiawa General Hospital and what they
depicted was consistent with her diagnosis and examination of
minor son. When they were offered into evidence, however, the
family court sustained the defense’s objection based on lack of
foundation. The State then indicated it would offer them later
subject to linkage, but they were never proffered again. Thus,
we only address the admission of State’s Exhibits 3 and 4.
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On certiorari, Williams asserts the State failed to
authenticate the x-rays as those of minor son. Williams asserts
the family court’s error in admitting the x-rays cannot be
considered harmless error because the admission of the x-rays
depicting a broken and realigned femur substantially prejudiced
him. He also asserts the visual evidence of a broken bone was
graphic and pulled at the emotions of the triers of fact and
prejudiced his right to a fair and impartial jury under article
I, section 14 of the Hawaiʻi Constitution and the Sixth Amendment
to the United States Constitution.
The State appears to concede a lack of foundation, as it
does not argue a proper foundation had been laid for the
admission of State’s Exhibits 3 and 4; it only argued that their
admission was harmless beyond a reasonable doubt, as later
concluded by the ICA, but we proceed to address whether there
was sufficient foundation for the admission of State’s Exhibits
3 and 4.
State’s Exhibits 3 and 4 would have been admissible as a
“record of regularly conducted activity” pursuant to HRE Rule
803(b)(6) if sufficient foundation was laid as to their
authenticity by “the testimony of the custodian or other
qualified witness, or by certification that complies with rule
902(11) or a statute permitted certification[.]” There was no
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certification, and Dr. Polk was not a “custodian” of records of
Tripler. The issue therefore is whether Dr. Polk could be
deemed an “other qualified witness” for purposes of laying a
foundation for admission of the x-rays from Tripler.
In State v. Fitzwater, 122 Hawaiʻi 354, 227 P.3d 520 (2010),
this court stated:
A person can be a “qualified witness” who can authenticate a document as a record of regularly conducted activity under HRE Rule 803(b)(6) or its federal counterpart even if he or she is not an employee of the business that created the document, or has no direct, personal knowledge of how the document was created. As one leading commentator has noted:
... The phrase “other qualified witness” is given a very broad interpretation. The witness need only have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business. The witness need not have personal knowledge of the actual creation of the documents or have personally assembled the records. In fact, the witness need not even be an employee of the record-keeping entity as long as the witness understands the entity’s record-keeping system.
There is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity’s business.
The sufficiency of the foundation evidence depends in part on the nature of the documents at issue. Documents that are “standard records of the type regularly maintained by firms in a particular industry may require less by way of foundation testimony than less conventional documents proffered for admission as business records.”
5 Joseph McLaughlin, Weinstein’s Federal Evidence § 803.08[8][a] (2d ed. 2009) (footnotes omitted).
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122 Hawaiʻi at 366, 227 P.3d at 532 (footnote omitted) (ellipsis
in original).
Dr. Polk had apparently worked for Tripler as a resident
for four years in the late 1970s, but there was no foundation
laid sufficient to render him an “other qualified witness” as to
Tripler’s x-rays. In addition, the ICA’s statement that “[x]-
ray results are the type of data that doctors reasonably rely on
in rendering a diagnosis and both doctors testified as to their
observations that [minor son] suffered a fractured femur” as a
basis for its conclusion that the admission of the x-rays was
harmless does not go to the issue of whether sufficient
foundation had been laid for their admission, but only as to a
basis for expert testimony pursuant to HRE Rule 703 (1984).15
Thus, insufficient foundation was laid for the admission of
State’s Exhibits 3 and 4. Because we vacate the conviction on
other grounds, we need not address whether the admission of
these x-rays was harmless.
15 HRE Rule 703 provides in relevant part:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
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C. Williams’s conviction was supported by substantial evidence.
Because the defense raised the issue of sufficiency and we
have decided the prosecutorial misconduct was not of the nature
that precludes reprosecution, we must address the third issue on
certiorari. Namely, we address whether there was sufficient
evidence despite trial error to support the conviction on the
charge of assault in the third degree. See State v. Davis, 133
Hawaiʻi 102, 120, 324 P.3d 912, 930 (2014) (“[A] reviewing court
is required under article I, section 10 of the Hawaiʻi
Constitution to address a defendant’s express claim of
insufficiency of the evidence prior to remanding for a new trial
. . . .”).
An appellate court reviews the sufficiency of evidence on
appeal as follows:
[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)
(alteration in original) (citation omitted). “‘Substantial
evidence’ as to every material element of the offense charged is
credible evidence which is of sufficient quality and probative
value to enable a person of reasonable caution to support a 32 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conclusion.” Id. (internal quotation marks and citation
omitted).
For the reasons explained by the ICA in Section II.C above,
the conviction of assault in the third degree was supported by
substantial evidence. Therefore, the third issue on certiorari
lacks merit.
V. Conclusion
For the reasons explained above, we vacate the family
court’s March 28, 2017 final judgment, as well as the ICA’s
September 25, 2018 judgment on appeal, and remand this case to
the family court for further proceedings consistent with this
opinion.
Lesley N. Maloian, /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Stephen K. Tsushima, for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson