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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-FEB-2024
07:57 AM
Dkt. 101 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MARQUIS GREEN, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
A jury found Marquis Green guilty of Sexual Assault in
the First Degree, two counts of Promoting Prostitution in the
First Degree, and one count of Assault in the Third Degree.
Green appeals from the Judgment of Conviction and Sentence
entered by the Circuit Court of the First Circuit on July 20,
2022.1 We affirm.
(1) Green's motion to dismiss for violation of Hawaii
Revised Statutes (HRS) § 805-1 was denied. The statute in effect
when Green was arrested required that criminal complaints seeking
a penal summons or arrest warrant be subscribed by a complainant
under oath. State v. Thompson, 150 Hawai#i 262, 267, 500 P.3d
447, 452 (2021). Green was arrested on three warrants, each
based on a complaint subscribed by a Honolulu Police Department
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The Honorable Rowena A. Somerville presided.
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(HPD) officer under oath. Those complaints complied with HRS §
805-1.
Green was arraigned in district court. Probable cause
was found. Green was committed to circuit court. The complaint
filed in circuit court the next day informed Green of the charges
against him. HRS § 805-1 didn't apply to that complaint, or to
the first or second amended complaints, none of which sought a
penal summons or arrest warrant. State v. Mortensen-Young, 152
Hawai#i 385, 399, 526 P.3d 362, 376 (2023). The circuit court
did not err by denying Green's motion to dismiss based on HRS §
805-1.
(2) Green's motion to dismiss because of police
misconduct was also denied. The State alleged that Green
sexually penetrated L.M., who was less than 16 years old;
advanced or profited from the prostitution of L.M.; advanced or
profited from the prostitution of T.S., who was less than
18 years old; and assaulted L.M. Green contended that HPD
interrogated L.M. and T.S. without a parent or attorney present
and without giving them Miranda warnings, and threatened them
with prosecution. He argued that HPD's conduct violated
fundamental fairness, shocked the conscience, and was illegal.
The circuit court concluded that "Green does not have standing to
assert the Fifth or Sixth Amendment rights of T.S. or L.M., as
those rights are personal to them."
The circuit court was not wrong. See State v. Araki,
82 Hawai#i 474, 484, 923 P.2d 891, 901 (1996) (noting that
"suppression of the product of a Fourth Amendment violation can
be successfully urged only by those whose rights were violated by
the search itself, not by those who are aggrieved solely by the
introduction of damaging evidence" (quoting Alderman v. United
States, 394 U.S. 165, 171–72 (1969))); State v. Narvaez, 68 Haw.
569, 573, 722 P.2d 1036, 1039 (1986) (noting that constitutional
privilege against self-incrimination protects the individual who
is being forced to testify against themself, not a third party
implicated by the testimony).
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(3) Green contends that the circuit court erred by
denying his motions in limine. Denial of a motion in limine is
not reversible error; any harm occurs when the evidence is
improperly admitted. State v. Eid, 126 Hawai#i 430, 440, 272
P.3d 1197, 1207 (2012).
Green sought to prevent the State from calling Maurice
Washington as an expert witness on pimping. The State called
Washington as its first witness. Washington testified about his
background. The circuit court qualified him as an expert "in the
fields of commercial sexual exploitation of children and the
dynamic between a pimp and a prostituted person." We review for
abuse of discretion. State v. Engelby, 147 Hawai#i 222, 231, 465
P.3d 669, 678 (2020).
"Expert testimony assists the trier of fact by
providing a resource for ascertaining truth in relevant areas
outside the ken of ordinary laity." State v. Clark, 83 Hawai#i
289, 298, 926 P.2d 194, 203 (1996) (citation omitted). The
commercial sexual exploitation of children and the dynamic
between a pimp and a prostituted person are areas beyond the
knowledge or understanding of ordinary people. Based on
Washington's testimony about his knowledge, skill, experience,
training, and education, and his work in the Seattle Police
Department Human Trafficking Unit and the FBI Child Exploitation
and Human Trafficking Task Force, the circuit court did not abuse
its discretion by qualifying him as an expert in those areas
under Rule 702 of the Hawaii Rules of Evidence (HRE).
Green also sought to prevent the State from referring
to him as a "pimp," and from introducing as evidence books on
pimping found in his apartment and advertisements from the
website backpage.com. Green's opening brief does not cite to the
trial record and presents no argument on those points, which are
waived. Hawai#i Rules of Appellate Procedure Rule 28(b)(4)(A)
and (b)(7); Weinberg v. Mauch, 78 Hawai#i 40, 49, 890 P.2d 277,
286 (1995).
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(4) Green's attorney's motion to withdraw, made on the
eve of trial, was denied. We review for abuse of discretion.
State v. Plichta, 116 Hawai#i 200, 214, 172 P.3d 512, 526 (2007).
Green made a formal written complaint about counsel to the Office
of Disciplinary Counsel. But "the filing . . . [of] a
disciplinary complaint does not create a per se conflict of
interest to establish good cause to substitute counsel" in a
criminal case. State v. Harter, 134 Hawai#i 308, 327 n.22, 340
P.3d 440, 459 n.22 (2014) (cleaned up). The circuit court
conducted a hearing on February 17, 2022, as required by Harter.
Id. Green refused to engage with the court. Under these
circumstances, and for the reasons explained in the court's order
denying the motion, we hold that the circuit court did not abuse
its discretion by denying the motion to withdraw.
(5) Green's motion to recuse the trial judge — filed
10 days before trial — was denied. Green argues that the court
erred because he filed a complaint against her with the
Commission on Judicial Conduct (which the Commission dismissed
for lack of evidence). We review for abuse of discretion.
Arquette v. State, 128 Hawai#i 423, 447, 290 P.3d 493, 517
(2012). Green's only citation to authority is Doe VI v. Roe VI,
6 Haw. App. 629, 636 n.7, 736 P.2d 448, 453 n.7 (1987). That
footnote stated that a judge recused himself after reading the
parties' diaries in camera to resolve discovery disputes over
them. No party challenged the recusal, and we did not decide
whether recusal was warranted. Doe VI provides no precedent for
this case. Arquette does. The record contains no affidavit
sufficient to show bias under HRS § 601–7(b) (2016). Id., 128
Hawai#i at 447-48, 290 P.3d at 517-18. Nor does the record
contain evidence of circumstances fairly giving rise to an
appearance of impropriety or reasonably casting suspicion on the
judge's impartiality. Id. at 448, 290 P.3d at 518. The circuit
court did not abuse its discretion by denying Green's motion to
recuse.
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(6) Green contends the circuit court erred by
admitting his Criminal Justice Information Services Full Rap
Sheet into evidence because his date of birth on the document was
inadmissible hearsay. We review under the right/wrong standard.
State v. Machado, 109 Hawai#i 445, 450, 127 P.3d 941, 946 (2006).
The date of birth on Green's Rap Sheet falls under the HRE
Rule 803(b)(6) and (8) exceptions to the hearsay rule. The
circuit court was not wrong to admit the Rap Sheet as evidence of
Green's date of birth.
(7) The circuit court sentenced Green to consecutive
terms of imprisonment. We review for abuse of discretion. State
v. Bautista, 153 Hawai#i 284, 290, 535 P.3d 1029, 1035 (2023).
Green's sentences for the counts involving L.M. were imposed
concurrently, and consecutive to the sentence for the count
involving T.S. The circuit court explained its analysis of the
HRS § 706-606 factors during the sentencing hearing. The court
explained it was imposing the sentence for the count involving
T.S. consecutively to those for the counts involving L.M. because
of Green's "horrific conduct towards the victim L.M." and Green's
"equally egregious conduct towards the victim T.S." The court
did not abuse its discretion by imposing consecutive sentences
for multiple victims. Id. at 291, 535 P.3d at 1036.
(8) Green contends he was denied the right to
effective counsel because his attorney "failed to effectively
utilize the complaining witnesses' 2013 statements to police
for impeachment purposes." Those statements are not in the
record on appeal. We cannot evaluate the merits of Green's
argument. Green may be able to raise the issue in a petition
under Hawai#i Rules of Penal Procedure (HRPP) Rule 40.
For these reasons, the "Judgment of Conviction and
Sentence" entered on July 20, 2022, is affirmed, without
prejudice to Green filing an HRPP Rule 40 petition to develop a
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factual record for his contention that his trial counsel was
ineffective.
DATED: Honolulu, Hawai#i, February 6, 2024.
On the briefs:
/s/ Katherine G. Leonard
Kai Lawrence, Acting Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge
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