State v. Marzec ( 2010 )

LAW uss/im
NOT FOR PUBLICATION IN WES"I"S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29835
IN THE INTERMEDIATE COURT OF APPEALS w§§ §§
§“;K ms
oF THE STATE oF HAWAI‘J: _;;_, §§ §§ _§#é
s ». -
°"’ P‘
STATE oF HAWAI‘I, Plaintiff-Appellee, §
THOMAS A. MARZEC, Defendant-Appe1lant ’§? §§ §
r:>
Q.
APPEAL FROM THE DISTRICT COURT OF THE FIRST ClRCUIT
HONOLULU DlVISlON
(Case No. 1DTI-08-l26372)
SUMMARY DISPOS1TION ORDER
(By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.)
Defendant-Appe1lant Thomas A. Marzec (Marzec) appeals
the "Notice of Entry of Judgment and/or Order and Plea/Judgment"
in the District Court of the First
entered on April 16, 2009,
A judgment was
Circuit, Hono1u1u Division (district court).1
in violation of Hawaii
entered against MarZec for Speeding,
for an incident on
Revised Statutes (HRS) § 29lC-lO2(a)(1) (2007)
July 14, 2008.
On appea1, "[t]he trial court
Marzec contends that (l)
was wrong to not provide, upon motion, requested findings and
conclusions" and that "[t]he trial court was wrong and abused its
discretion in providing unclear and inadequate findings and
conclusions on the record;" (2) "[t]he State did not prove or
even address, and the trial court did not find or conclude, that
this case involving a laser gun met the requirements in State v.
ASsaye, 121 HaWaiH_204, 209-l4, 216 P.3d l227, 1232-37 (2009);"
(3) "[t]he trial court was wrong and/or abused its discretion by
allowing into evidence general testimony throughout the trial,
from the State's only witness, the police officer;" (4) "[t]he
trial court was wrong and/or abused their [sic] discretion in
denying Marzec's photo and video exhibits as evidence, ruling
them not relevant, and would not even allow the videos to be
1 The Honorable Hilary Benson Gangnes presided.
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
played while cross-examining the State's only witness;"
(5) "[t]he trial court's bias and lack of impartiality was
prejudicial to Marzec; thereby wrongly depriving Marzec of a fair
trial, to include plain error in trial court and State actions."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Marzec's points of error as follows.
(1) The district court did not abuse its discretion in
denying Marzec's motion to enter written findings of fact and
conclusions of law, where (a) no requirement exists therefor
under HRS Chapter 29lD, the HawaiH Civil Traffic Rules (HCTR)
that govern civil infraction cases in district courts (HCTR
Rule 2), or under the Hawafi Rules of Penal Procedure, Rules of
the District Court, or the Hawafi Rules of Evidence that govern
the trial proceedings pursuant to HCTR Rule l9; (b) the findings
of fact and conclusions entered orally on the record were
sufficient; and (c) Marzec fails to demonstrate any harm suffered
from the absence of written findings of fact and conclusions of
law.
(2) Marzec waived his challenge to Officer Michael
McKinney's (Officer McKinney) testimony regarding the laser gun
reading where Marzec failed to object to a lack of foundation at
trial, and no basis for plain error review exits. State v.
WallaCe, 80 Hawai‘i 382, 410, 910 P.2d 6'95, 723 (1996); State v.
Naeole, 62 Haw. 563, 570, 617 P.2d 820, 826 (1980).
(3) The district court did not err in permitting and
considering Officer McKinney's testimony of habit and routine
practice, particularly where Marzec did not object to such
testimony. State v. Okuda, 71 Haw. 434, 449-50, 795 P.2d l, 9-10
(l990); State v. Bloss, 3 Haw. App. 274, 277-79, 649 P.2d ll76,
1178-79 (1982) . v
(4) The district court did not abuse its discretion in
excluding Marzec's photographs and video, where they did not
"substantially depict the area as it existed" on the date of the
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
incident. State v. Sequin, 73 Haw. 331, 338, 832 P.2d 269, 273
(1992) .
(5) Marzec fails to demonstrate bias of the district
court. The district court is permitted wide discretion in
"determining courtroom procedure" and to "avoid needless
consumption of time."`` See State v. Christian, 88 HawaiT.407,
422, 967 P.2d 239, 254 (1998) (internal quotation marks
omitted) (recognizing the trial court's discretion in controlling
the courtroom). As such, permitting the State to call cases in
court does not reflect judicial bias. Similarly, the district
court's denial of a continuance does not amount to judicial bias,
where Marzec did not detail the reasons for the continuance,
except generally stating that "a continuance would allow Marzec
to present a meaningful case" and where the State objected,
asserting that it had issued its subpoena. As to the district
court drawing reasonable inferences from Marzec's being on his
cell phone while driving, "[t]he trier of fact may draw all
reasonable and legitimate inferences and deductions from the
evidence adduced from admitted or known facts[.]" Lono v. State,
63 Haw. 470, 473, 629 P.2d 630, 633 (198l), citing State v.
Herrera, 63 Haw. 405, 629 P.2d 626 (l98l). The district court's
solitary reference to Marzec's cell phone use being citable for
inattention to driving, even if inaccurate, does not demonstrate
judicial bias.
IT IS HEREBY ORDERED THAT the April l6, 2009 Judgment
of the District Court of the First Circuit, Honolulu Division, is
affirmed.
DATED: Honolulu, Hawafi, August 10, 20lO.
On the briefs: ga --
Thomas A. Marzec,
Defendant-Appellant, pro se.
Brian R. Vincent,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee, ‘ Associate Judge