Opinion
SCWC-18-0000505
03-17-2021
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Benito MARROQUIN, III aka Benny Marroquin, Petitioner/Defendant-Appellant.
Victor M. Cox, Keauhou, for petitioner Charles E. Murray, III, Deputy Prosecuting Attorney, for respondent
Victor M. Cox, Keauhou, for petitioner
Charles E. Murray, III, Deputy Prosecuting Attorney, for respondent
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., AND WILSON J., DISSENTING
Associate Justice Richard W. Pollack, who was a member of the court when the oral argument was held, retired from the bench on June 30, 2020.
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellant Benito Marroquin III (Marroquin) appeals the judgment of the Intermediate Court of Appeals (ICA) affirming the Circuit Court of the Third Circuit's (circuit court) denial of two of Marroquin's motions in limine to offer hearsay evidence. On certiorari, Marroquin raises a single point of error and argues that the ICA erred by concluding that the circuit court may deny a motion in limine without providing findings of fact on the record, contrary to Hawai‘i Rules of Penal Procedure (HRPP) Rule 12(e). In particular, Marroquin challenges the ICA's conclusion that trial judges "should," but need not, make findings of fact on the record when resolving motions in limine.
The Honorable Ronald Ibarra presided.
Contrary to Marroquin's argument, HRPP Rule 12(e) does not govern motions in limine. Rather, Hawai‘i Rules of Evidence (HRE) Rule 103(b) is the specific standard governing the admissibility of evidence and the motions in limine. HRE Rule 103(b) explicitly provides discretion to trial courts resolving evidentiary issues regarding whether to make findings of fact. Therefore, we agree with the ICA's ultimate conclusion that the circuit court did not err in denying Marroquin's motions in limine without entering findings of fact on the record. We consequently affirm the ICA's August 9, 2019 Judgment on Appeal on different grounds.
I. BACKGROUND
A. Factual Background
On January 13, 2016, Marroquin was involved in an altercation with the complaining witness (the CW) at a construction site. During the altercation, Marroquin punched the CW in the face at least three to five times. Marroquin's punches rendered the CW unconscious, "caved in" the CW's right cheek, caused brain injury, and required facial reconstruction surgery to install four plates and twenty screws. Marroquin claimed that he punched the CW in self-defense because the CW grabbed Marroquin by the neck during the altercation.
B. Pre-Trial Proceedings
Marroquin filed two motions in limine relevant to certiorari.
Marroquin's Third Motion in Limine (Third MIL) requested permission to offer a hearsay statement from an eyewitness through the testimony of Officer Scott Aloy (Officer Aloy). In particular, Marroquin sought to offer testimony reflecting Officer Aloy's notes that the eyewitness
Officer Aloy responded to a call regarding the altercation.
saw two guys arguing at which point he stated that he saw the guy dressed in the tank top swing at the other guy. He stated that the haole guy put his hands around the neck of the guy with the tank top and at that time, he stated that he just saw the guy in the tank top keep punching the other guy in the face. He then stated that the haole guy was then stuck in the corner and the guy in the tank top kept punching him while he was on the ground at which point I asked him which party swung first. He stated that the guy in the tank top swung first and that he seemed to be the aggressor in this situation.
Marroquin testified that he wore a tank top on the day of the altercation.
Marroquin asserted that the eyewitness's statement was relevant to his self-defense claim and admissible under HRE Rule 804(b)(8).
Marroquin's Amended Fourth Motion in Limine (Fourth MIL) requested permission to offer hearsay-within-hearsay statements made by the CW to a co-worker through the testimony of Investigator Daniel Pang (Investigator Pang). Specifically, Marroquin sought to offer testimony reflecting (1) Investigator Pang's notes that the CW told the co-worker that the CW "wasn't going to take that from a punk like [Marroquin] and that [the CW] was going to call [Marroquin] out on it[;]" and (2) a follow-up email from the co-worker to Investigator Pang stating:
Investigator Pang conducted follow-up investigations regarding the altercation.
Marroquin's Fourth MIL also indicated that he intended to introduce the CW's statements to the co-worker through another witness's testimony. However, Marroquin's motion focused solely on why he should be allowed to introduce the CW's statements to the co-worker through Investigator Pang's testimony. This court "need not consider a point that was not presented in the trial court in an appropriate manner." Hawai‘i Revised Statutes (HRS) § 641-2(b) (2004). Inasmuch as Marroquin now argues that the ICA erred in affirming the circuit court's decision to not admit the CW's statements to the co-worker through another witness's testimony, this court will disregard such a claim. See id.
On January 13th of this year I showed up for work at the ... residence. I was talking with [Marroquin] around 8 am and [the CW] came over to ask a question. [Marroquin] gave him a sarcastic answer and [the
CW] walked away angry. I went over to check and see if [the CW] needed anything 10 minutes later and [the CW] was still upset and said he wasn't going to take that from a punk like [Marroquin]. [The CW] said he was going to call [Marroquin] out on it. I walked away and started working on what I was supposed to be doing that day and didn't think much of it until 20 minutes later when [Marroquin] came over to where [I] was working and said [the CW] grabbed [Marroquin] by the throat so [Marroquin] hit [the CW]. I didn't see the altercation.
Marroquin asserted that the CW's statement to the co-worker was relevant to his self-defense claim as it showed the CW's state of mind, and admissible under HRE Rule 804(b)(8).
The circuit court denied Marroquin's Third and Fourth MILs. In the circuit court's written orders, the circuit court stated:
The Court having considered the Motion; the State's Opposition to Defendant's Motion; the oral arguments of counsel; and the record and case-file herein shall DENY the Motion.
C. Trial Proceedings
During the trial, the CW testified that prior to the altercation, Marroquin responded to a question with an "aggressive" tone. The CW explained that after this incident, "I was mad, you know, that I just got chewed out for nothing." The CW added that "I vent[ed] to get it off my chest and move[d] on." About thirty or forty minutes later, the CW encountered Marroquin while looking for a drill. The CW testified that Marroquin said "that he ought to just slap me" in an "elevated and ... very aggressive tone." According to the CW, Marroquin struck him in the face and punched him multiple times, causing him to lose consciousness shortly after making the statement. The CW also stated that the CW "had a thought that if I could just grab him and hold onto him in a bear hug I could stop the madness. But I never accomplished that. Next thing I remember, I was on the ground."
On cross-examination, defense counsel asked the CW about the prior incident. The CW reinforced that Marroquin's tone was "[a]ggressive and demeaning." The CW also stated that "[w]ithin 30 seconds" of the interaction, "I stated my frustrations and I moved on." When asked why he was upset by the interaction, the CW responded "[t]he level and the -- the inflection. It was aggressive, it was demeaning. It's like he was talking down to me." Turning to the altercation itself, defense counsel asked the CW if "[a]t any point did you grab [Marroquin] by the neck?" The CW replied "No." When asked if the CW tried to grab Marroquin during the altercation, the CW explained "I remember a thought of trying to grab him. I remember trying to keep my balance and flailing my arms, and the next thing I remember I was on the ground."
On re-direct, the CW added that "I have no memory of laying my hands on [Marroquin] at all."
After the prosecution rested, defense counsel renewed its Third MIL to introduce the eyewitness's statement without providing any new evidence or arguments. The circuit court denied the renewed motion, explaining "there's still nothing new that -- for the Court to consider."
During the defense's case-in-chief, Marroquin also testified about the altercation. Marroquin stated that the CW initiated the altercation by telling him "You shouldn't be effin moving the drill. I should slap you." Marroquin explained that the CW then "goes to make a motion. I go to put up my hands. I trip off the back of the lanai and he has me up against the wall by my neck." Marroquin emphasized that the CW "had me up against the wall by my neck and choking me out." Marroquin then testified that "I hit him. He went down. I got him off me. I was like feared [sic] for my life. He -- like had me, you know. He had me up by my throat on the wall and I couldn't move." Marroquin explained that after he managed to break free, "I made sure that he was down and didn't get back up to attack me."
A jury subsequently found Marroquin guilty of Assault in the Second Degree on September 27, 2016. The circuit court entered its Judgment of Conviction and Sentence on April 24, 2018.
The jury convicted Marroquin of violating HRS § 707-711(1) (2016), which provided in relevant part:
Assault in the second degree. (1) A person commits the offense of assault in the second degree if:
(a) The person intentionally, knowingly, or recklessly causes substantial bodily injury to another;
(b) The person recklessly causes serious bodily injury to another[.]
D. The ICA's Summary Disposition Order
Marroquin appealed the circuit court's Judgment of Conviction and Sentence to the ICA, which affirmed the circuit court. The ICA concluded in a summary disposition order that a trial court "should," but need not, provide factual findings in determining the admissibility of evidence.
II. STANDARD OF REVIEW
A. Motions in Limine
"The granting or denying of a motion in limine is reviewed for abuse of discretion." Kobashigawa v. Silva, 129 Hawai‘i 313, 320, 300 P.3d 579, 586 (2013). "An abuse of discretion occurs ‘where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.’ " Carr v. Strode, 79 Hawai‘i 475, 488, 904 P.2d 489, 503 (1995) (quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992) ).
III. DISCUSSION
A. HRPP Rule 12(e) does not govern the motions in limine at issue.
Marroquin contends that HRPP Rule 12(e) governs the motions in limine here because he filed the motions before trial and the trial court's determination on admissibility of hearsay evidence necessarily involved factual issues.
HRPP Rule 12(e) (2007) provides:
(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue or until after verdict; provided that a motion to suppress made before trial shall be determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
This court disagrees. HRE Rule 103(b), the specific rule governing admission of evidence, conflicts with HRPP Rule 12(e), a general rule governing pretrial motions, and therefore precludes its application to motions in limine.
The HRE govern the resolution of these motions in limine. This court has approvingly quoted the ICA's explanation that a motion in limine "serves the useful purpose of raising and pointing out before trial certain evidentiary rulings the court may be called upon to make during the course of the trial." Kobashigawa, 129 Hawai‘i at 321, 300 P.3d at 587 (quoting Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 393, 667 P.2d 804, 826 (1983) ). Given that motions in limine involve evidentiary issues, resolution of a motion in limine necessarily calls upon the trial court to apply the HRE.
HRE Rule 103(b) (1980) authorizes trial courts to resolve motions in limine without providing factual findings. "[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007) (internal citation omitted). HRE Rule 103(b) provides in relevant part: "[t]he [trial] court may add any other or further statement which shows the character of ... the ruling thereon." (Emphasis added.) The commentary to HRE Rule 103(b) adds that "[t]he intent [of HRE Rule 103(b) ] is to provide the appellate court with a record adequate for final disposition of an evidentiary point. The provision is discretionary rather than mandatory, leaving determination of adequacy of record to the judgment of the trial court." The plain text of HRE Rule 103(b) consequently establishes that a trial court may provide findings of fact when resolving a motion in limine. HRPP Rule 12(e) ’s factual finding requirement conflicts with HRE Rule 103(b) ’s grant of discretionary authority. The text of HRPP Rule 12(e) unambiguously requires that "[w]here factual issues are involved in determining a motion, the [trial] court shall state its essential findings on the record." (Emphasis added.) However, HRE Rule 103(b) does not impose a strict mandate requiring trial courts to provide findings of fact to resolve a motion in limine. Application of HRPP Rule 12(e) to motions in limine would consequently deprive trial courts of the discretion granted by HRE Rule 103(b), and is therefore inconsistent with HRE Rule 103(b).
HRE Rule 103(b) governs these motions in limine. The Legislature enacted the HRE in 1980, HRS § 626-1 (1980), and concurrently enacted HRS § 626-3 (1980), which provides that "[i]f any other provision of law, including any rule promulgated by the supreme court, is inconsistent with [the HRE], [the HRE] shall govern unless [the HRE] or such inconsistent provision of law specifically provides otherwise."
Neither the HRE nor the HRPP provides that the HRPP governs instead of the HRE. HRE Rule 1101 (1980) governs the applicability of the HRE. HRE Rule 1101(b) explicitly provides that the HRE "apply generally to civil and criminal proceedings." HRE Rule 1101(d) adds in relevant part that the HRE do not apply to:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.
(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary hearings in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
(4) Small claims. Proceedings before the small claims division of the district courts.
Meanwhile, the HRPP is silent at best on the issue of whether the HRPP or the HRE governs in case of a conflict. HRPP Rule 1(b) (2012) governs the "Interpretation and Enforcement of [the HRPP]." The rule provides that
[t]hese rules shall be read and construed with reference to each other, the Hawai‘i Electronic Filing and Service Rules, and the Hawai‘i Court Records Rules. In any conflict amongst the Hawai‘i Rules of Penal Procedure, the Hawai‘i Court Records Rules, and the Hawai‘i Electronic Filing and Service Rules, the Hawai‘i Electronic Filing and Service Rules shall prevail.
This court therefore holds that HRE Rule 103(b), and not HRPP Rule 12(e), governs these motions in limine. See HRS § 626-3. HRPP Rule 12(e) ’s factual finding requirements therefore do not apply to the resolution of motions in limine.
IV. CONCLUSION
For the foregoing reasons, we affirm the ICA's August 9, 2019 Judgment on Appeal affirming the circuit court's Judgment of Conviction and Sentence.
DISSENTING OPINION BY WILSON J.
I. The trial court failed to determine whether the eyewitness’ out of court statement was a statement of recent perception admissible as a hearsay exception pursuant to Rule 804(b)(5) of the Hawai‘i Rules of Evidence.
In his third motion in limine ("MIL") Marroquin noticed his intent to introduce the hearsay statement of an eyewitness. This eyewitness watched the altercation between Marroquin and the complaining witness ("the CW"), which corroborated Marroquin's defense that the CW choked him before he struck the CW. Specifically, Marroquin noticed his intent to introduce the eyewitness’ statement through the testimony of Officer Aloy as a statement of recent perception under Hawai‘i Rules of Evidence ("HRE") Rule 804(b)(5),1 Rule 804(b)(8), and Rule 803(b)(24). Thus, the trial court was required to: (1) determine whether the facts surrounding the eyewitness’ description of the incident qualified it as a statement of recent perception admissible pursuant to HRE Rule 804(b)(5) ; (2) determine whether the facts pertaining to the statement bespoke "circumstantial guarantees of trustworthiness" requiring admission pursuant to HRE Rule 804(b)(8) and Rule 803(b)(24) ; and, finally, (3) apply HRE Rule 403 to determine if the probative value of the statement "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." See HRE Rule 403.
HRE Rule 804(b)(8) and HRE Rule 803(b)(24) both provide:
Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
The trial court failed to apply the above analysis that Marroquin's motion in limine required. Instead, it mistakenly considered whether the public records hearsay exception of HRE Rule 803(b)(8) applied to the eyewitness’ statement. The trial court denied Marroquin's third MIL on the sole basis that the eyewitness’ statement to Officer Aloy was "akin to State v. Jhun" where this court found the HRE Rule 803(b)(8) public record hearsay exception did not apply to statements recorded by police.
In State v. Jhun, this court held:
Although the police officer's testimony about the absent witness's statements constituted hearsay, the ICA held that it was presumptively admissible pursuant to Hawai‘i Rules of Evidence (HRE) Rule 803(b)(8)(C) (1993), the public records and reports exception to the hearsay rule. In response to the State of Hawai‘i's (the prosecution) petition, we granted certiorari to review the ICA's holding, and, for the reasons set forth below, we hold that the trial court did not err in concluding that the police officer's testimony about the absent witness's statements constituted inadmissible hearsay.
83 Hawai‘i 472, 473, 927 P.2d 1355, 1356 (1996).
Notwithstanding the court's in limine ruling, defense counsel attempted to elicit the eyewitness’ statement at trial during cross examination when he asked Officer Aloy, "did [the eyewitness] inform you that he saw [the CW] put his hand around Benny's neck?" The trial court sustained the State's hearsay objection, stating that there was "nothing new" for the court to consider. Thus, the court relied on the same rationale— HRE Rule 803(b)(8) and Jhun—that it previously used to deny the pretrial motion in limine. The only finding on which the court appears to have based its ruling on the hearsay objection and denial of Marroquin's third MIL was: "[t]his is a statement given to a police officer - - well, not even a verbatim statement taken by the police officer. Like, uh, this scenario's more akin to State v. Jhun. So the motion is denied." II. The exclusion of the eyewitness’ statement was not harmless beyond a reasonable doubt.
During trial the judge also incorrectly recalled that he made a previous finding that the eyewitness’ statement was unreliable and untrustworthy: "the Court already determined those, uh, statements made by [the eyewitness] was not reliable[.]" However, in reviewing the record, it is apparent that the court never made a finding that the eyewitness’ statement was unreliable. Although the State raised questions about the "trustworthiness and reliability ... [of the eyewitness’] statement[,]" the court did not make any finding or rule definitively on that basis.
In support of his claim of self-defense, Marroquin offered the eyewitness’ statement for two purposes: (1) to impeach the CW's testimony and (2) to establish that the CW grabbed Marroquin by the throat prior to Marroquin punching him.
A defendant in a criminal trial has a constitutional right to impeach a witness. "A trial court's denial of a defendant's constitutional right to impeach a witness ... is subject to the harmless beyond a reasonable doubt standard." State v. Brown, 145 Hawai‘i 56, 62, 446 P.3d 973, 979 (2019). "This standard is applied by ‘examin[ing] the record and determin[ing] whether there is a reasonable possibility that the error complained of might have contributed to the conviction.’ " Id. "If there is such a reasonable possibility ... then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside." State v. Gano, 92 Hawai‘i 161, 176, 988 P.2d 1153, 1168 (1999).
In determining "whether a violation of the constitutional right to impeach might have contributed to the conviction[,]" it is important to consider "the importance of the witness’ testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Brown, 145 Hawai‘i at 62, 446 P.3d at 979 (quoting State v. Balisbisana, 83 Hawai‘i 109, 117, 924 P.2d 1215, 1223 (1996) ).
It is undisputed that Marroquin hit the CW three or four times, causing the CW serious injury. The main question of fact that is in dispute is whether the CW choked Marroquin before Marroquin hit him. In that regard, Marroquin's and the CW's recollections of those moments differ greatly, with each blaming the other for starting the incident. According to the CW, Marroquin slapped him, punched him multiple times, kicked him in the face, and did not stop until Marroquin knocked him out and broke his cheek-bone. The CW claimed he never touched Marroquin but conceded on cross-examination that he did not really remember everything and admitted that he "had a slight quick thought that [he] should just grab [Marroquin] and end this madness." On the other hand, according to Marroquin, the CW got in his face and then grabbed him by the neck and pressed him up against the wall, choking him. Marroquin claims to have escaped the choke-hold by throwing his right arm over the CW's hands (that were around his neck), then punching the CW in self-defense.
The only person who saw the start of the altercation was the eyewitness. The eyewitness said he saw Marroquin take a swing at the CW and miss before the CW put his hands around Marroquin's neck, and then Marroquin started hitting the CW in the face. Although the eyewitness also told Officer Aloy that Marroquin swung first and seemed to be the aggressor in the situation, the eyewitness’ statement is the only evidence corroborating Marroquin's claim that the CW choked him. It also directly impeaches the CW's version of events.
As the only independent evidence corroborating Marroquin's claim that the CW grabbed him by the neck and impeaching the CW's claim that he never touched Marroquin, the improper exclusion of the eyewitness’ statement cannot be considered harmless. See Brown, 145 Hawai‘i at 63, 446 P.3d at 980 (holding that the improper exclusion of a statement that impeached the testimony of the complaining witness was not harmless beyond a reasonable doubt because the "[i]mpeachment of such an important witness might have affected the jury's decision as to whether to credit Brown's assertion of self-defense."). There is a "reasonable possibility" that the trial court's denial of Marroquin's multiple attempts to introduce the eyewitness’ statement contributed to his conviction. Therefore, it cannot be concluded beyond a reasonable doubt that the exclusion of the eyewitness’ statement did not affect the jury verdict.
III. Conclusion
The failure of the trial court to address Marroquin's request to admit the eyewitness’ hearsay statement pursuant to HRE Rule 804(b)(5), Rule 803(b)(8), and Rule 803(b)(24) deprived Marroquin of his right to a fair trial. Accordingly, his request for a retrial should be granted.