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.

. . . but Could have. The prosecution here did not establish that the doctor was an “other qualified witness” that could have laid the foundation for the x-rays. He merely testified that he worked as a resident for four years in the 1970s at the same hospital. That is not enough to show foundation for authenticity.

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