CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
N. Maloian, for petitioner.
Stephen K. Tsushima, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Williams ("Williams") was charged with assault in
the second degree 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),  via an August 11, 2015 indictment in the
Family Court of the First Circuit ("family
court"). 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. On March 28,
2017, the family court entered its final judgment, sentencing
Williams to one year of probation.
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.
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 (App.
June 15, 2018) (SDO). The ICA then entered its judgment on
appeal affirming the family court's final judgment.
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
that Williams's conviction on the charge of assault in
the third degree must be vacated because the deputy
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
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
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.
Child Welfare Services Issue
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.
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."
opening statements on January 9, the deputy prosecuting
[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.
did not raise a specific objection to these statements.
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
next day, the State called Detective Raquedan as a witness.
During his direct examination, the following exchanged
[DEPUTY PROSECUTING ATTORNEY]: And in order to explain the
next steps you took, what did dispatch request your
[WITNESS]: Assist in taking police custody of a minor.
[DEPUTY PUBLIC DEFENDER]: Objection, Your Honor. Violates the
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 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
THE COURT: The objection's sustained. And you may proceed
as I've indicated.
[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
[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
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
[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.
[DEPUTY PUBLIC DEFENDER]: Objection, Your Honor.
THE COURT: Overruled.
[DEPUTY PROSECUTING ATTORNEY]: You can respond. I'm
sorry. Tell us your name ...