456 P.3d 135 (Hawai‘i 2020), SCWC-17-0000226, State v. Williams

• Citation: 456 P.3d 135, 146 Hawai‘i 62
• Opinion Judge: McKENNA, J.
• Party Name: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Patrick WILLIAMS, Petitioner/Defendant-Appellant.
• Attorney: Lesley N. Maloian (Taryn R. Tomasa with her on the briefs), for petitioner Stephen K. Tsushima, Honolulu, for respondent
• Judge Panel: RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
• Case Date: January 03, 2020
• Court: Hawaii Supreme Court

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456 P.3d 135 (Hawai‘i 2020)

146 Hawai‘i 62

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.

Patrick WILLIAMS, Petitioner/Defendant-Appellant.

No. SCWC-17-0000226

Supreme Court of Hawai‘i

January 3, 2020

Page 136

[Copyrighted Material Omitted]

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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-17-0000226; 1FC151000047)

Lesley N. Maloian (Taryn R. Tomasa with her on the briefs), for petitioner

Stephen K. Tsushima, Honolulu, for respondent

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

OPINION

McKENNA, J.

[146 Hawai‘i 64] I. Introduction

Patrick Williams ("Williams") was charged with assault in the second degree¹ against his two-year-old son ("minor son") in violation of Hawai‘i Revised Statutes ("HRS") § 707-711(1)(a) and/or § 707-711(1)(b),² via an

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[146 Hawai‘i 65] 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.

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 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- 17-0000226, at 4-6, 2018 WL 2999686 (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 prosecuting attorney’s

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[146 Hawai‘i 66] 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 Hawai‘i 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[‘]i and any legal issues stemming from 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 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:)

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[146 Hawai‘i 67] 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 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 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:...