Gratuitous References to CPS in the Opening Statement Amount to Prosecutorial Misconduct
State v. Willams (HSC January 3, 2020)
Background. Patrick Williams was charged with assault in the
second degree. The complainant was Williams’s son, who had broken his leg. Williams
filed a motion in limine seeking the exclusion of any references to the investigation
and case by the Child Welfare Services and the Department of Human Services.
The family court granted the motion. At trial, the prosecutor presented an
opening statement:
[Y]ou
will find out that [the complainant, a minor] 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 [the
boy] is treated and released and how he is ultimately reunited down the road
with his mother.
Williams did not object. During
the presentation of evidence, however, Williams objected to evidence about the “transfer
of custody” to his mother. The family court sustained. The court did allow the
prosecutor to refer to witnesses working for Child Welfare Services or “CPS.”
To present evidence of the
injury, the prosecution called an emergency room doctor. The doctor testified
about different images of the boy’s fractured femur and said the x-rays were “fair
and accurate” depictions of the fracture.
The prosecution also
called the treating radiologist and handed him x-ray images marked as evidence.
He was asked if these images were “in line” with the x-rays he had reviewed in
the case involving Williams’s son. The radiologist confirmed that they “appear
to correlate.” He testified about what the images depicted before they were
admitted into evidence and agreed that it “looked like a fair and accurate”
depiction of the boy’s fracture. Williams objected to the testimony based on
the foundation. They were admitted over objection.
The jury found Williams
guilty of the included offense of assault in the third degree. Williams
appealed and the ICA affirmed. The HSC took his writ of certiorari.
Prosecutorial Misconduct
and the Opening Statement. “The term ‘prosecutorial misconduct’ is a legal term of art
that refers to any improper action committed by a prosecutor, however
harmless or unintentional.” State v. Maluia, 107 Hawai'i 20, 25, 108
P.3d 974, 979 (2005). Claims of prosecutorial misconduct hinge on three factors
(1) whether the conduct was improper; (2) if so, whether the misconduct was not
harmless beyond a reasonable doubt; and (3) if not harmless, whether “the
misconduct was so egregious as to bar reprosecution.” Id. at 26, 108
P.3d at 980.
The HSC held that the
prosecution’s references to CWS and even the evidence adduced at trial about
transferring child custody was improper. It moved on to the second factor, 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 Hawai'i 339, 365, 439 P.3d 864, 890
(2019).
This second factor is
further divided into 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). The HSC held that all three prongs point away
from harmlessness. The nature of the misconduct was “extremely prejudicial to
Williams,” there was no curative instruction, and there was evidence at trial
suggesting that the injuries were not caused by an assault thereby creating a
possibility that the error contributed to the conviction.
The HSC dispensed the
third factor quickly:
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.
The Treating Physician Couldn’t
Authenticate the X-Rays. The HSC took up the issue of establishing foundation for the
x-rays. Williams argued that the two images admitted into evidence lacked adequate
foundation. The State conceded that there was improper foundation. There was no
connection that the x-ray images were those of the boy.
In order to admit the images,
the prosecution must show they were records of a regularly conducted activity. Hawai'i
Rules of Evidence Rule 803(b)(6). Foundation for authenticity must be
established through “testimony of the custodian or other qualified witness, or
by certification that complies with rule 902(11) or a statute permitted certification.”
Id. There was no certification and the emergency doctor was not a “custodian”
of records at the hospital. The HSC examined if the doctor was an “other
qualified witness” that could lay the foundation. This issue has been examined
before:
A person can be a “qualified
witness” who can authenticate a document as a record of regularly conducted
activity . . . 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.” State v. Fitzwater, 122 Hawai'i 354, 366, 227 P.3d 520, 532
(2010). The witness, however, must have “enough familiarity with the record-keeping
system of the business in question to explain how the record came into existence
int eh ordinary course of business.” Id. Personal knowledge as to its
creation or assembly is not required.
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