State v. Apollonio. ( 2013 )

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Electronically Filed
Supreme Court
SCWC-11-0000695
10-OCT-2013
09:03 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o—
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
RICARDO APOLLONIO, Petitioner/Defendant-Appellant.
SCWC-11-0000695
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000695; CASE NO. 1DTC-10-010161)
October 10, 2013
ACOBA, MCKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold that because the charge of Excessive Speeding,
Hawai#i Revised Statutes (HRS) § 291C-105(a)(1) (Supp. 2010),
against Petitioner/Defendant-Appellant Ricardo Apollonio
(Petitioner) did not allege that Petitioner acted intentionally,
knowingly, or recklessly it failed to allege the requisite state
of mind. State v. Nesmith, 127 Hawai#i 48, 56, 276 P.3d 617, 625
(2012). Therefore, for the reasons stated herein, we vacate the
August 22, 2012 judgment of the ICA, which affirmed the August
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23, 2011 Notice of Entry of Judgment and/or Order and
Plea/Judgment of the district court of the first circuit1 (the
court) and the court’s aforesaid judgment, and remand the case to
the court for dismissal without prejudice. Because of the
likelihood of retrial, we also conclude that
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent)
failed to lay an adequate foundation to admit the laser
instrument (laser gun or laser) reading of Petitioner’s vehicle’s
speed into evidence.
I.
A.
On August 23, 2011, Petitioner was orally arraigned and
charged in the court with excessive speeding, as aforesaid. The
charge alleged as follows:
On or about July 1st, 2010, in the City and County of
Honolulu, State of Hawai#i, you did drive a motor vehicle at
a speed exceeding the applicable state or county speed limit
by 30 miles per hour or more by driving 76 miles per hour in
a 35-mile-per-hour zone, thereby violating Section 291C-105,
subsection (a)(1)(C)([2]) of the [HRS], as you have had one
prior conviction within a five-year period.
Petitioner did not object to the oral charge.2
1
The Honorable Lono Lee presided.
2
Prior to trial, Petitioner filed a Motion to Compel Discovery,
asking Respondent to disclose, inter alia, “[t]he Operator’s Manual for the
specific laser gun used in this case,” and “[t]he [Honolulu Police Department
(HPD)] training manual for speeding citations.” [(Petitioner’s) Motion to
Compel (Traffic Court docket number 23) at 3] In response, Respondent
pointed out that the HPD had “loaned to the Department of the Prosecuting
Attorney one copy each of: 1) the operator manual for the Marksman; 2) the HPD
training manual, and 3) the operator manual for the [Laser Technologies, Inc.
(LTI)] 20/20 UltraLyte, all provided by [LTI].” Further, “[o]n October 28,
2009, the DPA made those three manuals available for review by defense
counsel.” Respondent contended that Petitioner could not make copies of the
manuals due to copyright laws. However, the court issued a protective order
allowing Petitioner to review and make one copy of each manual that Petitioner
2
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The HPD officer involved (the officer) testified that
on July 1, 2010, he cited Petitioner for excessive speeding. On
that date, a LTI 20-20 laser gun was used to measure the speed of
Petitioner’s vehicle.
The officer was trained in October 2006 by Sergeant
Ryan Nishibun. His training consisted of “class work, going over
the operator’s manual, and hands-on time with the laser itself.”
He maintained that the operator’s manual was “provided by [LTI].”
Defense counsel objected to this testimony due to “lack of
personal knowledge and hearsay.” The court overruled the
objection, stating that “those issues have been resolved in some
other case.”3
According to the officer, the manual stated that four
tests4 were necessary to establish that the laser gun was working
properly. All four tests were performed on the date in question
and indicated the laser was working properly. The officer
stationed himself on the shoulder of Kamehameha Highway south of
Punalau Place. The speed limit in the area was thirty-five miles
per hour (mph). His laser gun indicated that Petitioner’s
vehicle was traveling at a speed of 76 mph. Based on the speed
reading, Petitioner’s vehicle was stopped and Petitioner cited.
requested Respondent to disclose. The manuals are not a part of the record.
3
The court did not specify what case it relied upon.
4
The four tests are the self-test, the display test, the scope
alignment test, and the delta distance test.
3
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On cross-examination, the officer explained that the
people who trained him were “all HPD officers,” and that “there
was nobody from LTI present.” He related that the front cover of
the manual “may have” had the HPD emblem stamped on it. The
manual was provided by an HPD officer. He “[did not] know the
person who wrote the manual,” and “[did not] know” if the manual
was “written or compiled by the [HPD].”
Based on this testimony, Petitioner renewed his motion
to strike the speed reading based on a lack of foundation.
Petitioner argued that the officer “[did] not recall what the
manual looks like,” “[did] not know who prepared the manual,” and
was “not able to say where or what the manual was prepared in
accordance with.” The court rejected the motion, stating that
“[t]he court has also heard that that was [sic] the manuals
provided by HPD in conjunction with LTI as part of [the
officer’s] training at the [police] academy. So the court will
give it its due weight.”
Petitioner continued cross-examination “with a few
questions based on the court’s ruling.” The officer indicated he
“assume[d] that somebody [from LTI] had to have provided [the
manual],” but that he “[did not] know personally whether anybody
from LTU provided these manuals to [HPD].” (Emphases added).
Further, “[w]hen [he] testified on direct examination [that he
was] . . . trained in accordance with the manual that LTI
provided, that was just based on [his] assumption that somebody
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from LTI must have provided [the manual].” (Emphasis added.)
Petitioner then asked the witness about the maintenance of the
laser gun. The officer testified that he had “no idea” if there
were “any software upgrades that would have been provided” for
the laser gun.
On redirect examination, the officer testified that he
“pass[ed] the [training] course” provided by HPD, and was
“qualified to use the [laser gun].” Defense counsel objected
that the officer did not have personal knowledge regarding
whether or not he was qualified. The court overruled the
objection. Petitioner conducted recross-examination and then
renewed his motion to strike, arguing that the officer “has no
personal knowledge [of] who provided the manual.” The court
again denied the motion.
B.
Petitioner testified that on July 1, 2010, he was
traveling northbound on Kamehameha Highway. He explained that
before being pulled over he was “looking at his [speedometer] the
whole time” and that he was never traveling faster than 60 mph.
He also recounted that he was speeding because “he had to [use]
the bathroom really bad.” On cross-examination, Petitioner
admitted that he did not know whether his speedometer was working
properly.
C.
In closing argument, Petitioner stated “that [the
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officer] testified on direct that he was trained in accordance
with the manufacturer’s specification[s],” but that on cross-
examination, [the officer] admitted that “he had no personal
knowledge as to whether or not he actually was.” Petitioner also
contended that the excessive speeding statute required Respondent
to demonstrate that Petitioner recklessly traveled 30 mph faster
than the speed limit, and because Petitioner testified that his
speedometer indicated he was traveling at 60 mph, Respondent had
not established that Petitioner was reckless as the statute
required.
D.
The court found Petitioner guilty as charged, holding
that it “heard credible testimony from [the officer] regarding
his training and qualifications,” and that the officer “followed
the manufacturer’s instructions” to ensure that the laser gun was
working properly. Addressing mens rea, the court found that the
relevant state of mind was “intentional, knowing, or reckless,”
and that “the court can infer from the circumstances that
traveling at that speed, at the minimum, is reckless.”
II.
A.
Petitioner appealed to the ICA. According to
Petitioner, the only evidence introduced regarding the
manufacturer’s recommendations for testing the laser gun or
training officers was provided by the manual, and the officer did
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not have personal knowledge that the manual was provided by LTI.
On this basis, Petitioner argued that Respondent failed to lay an
adequate foundation for introducing the speed reading from the
laser gun.
Petitioner also maintained that an adequate foundation
was not laid because State v. Manewa, 115 Hawai#i 343, 167 P.3d
336 (2007), required Respondent to introduce evidence that “the
instrument has been inspected and serviced as required by the
manufacturer.” (Citing State v. Assaye, 121 Hawai#i 204, 217,
216 P.3d 1227, 1240 (2009) (Acoba, J. concurring).)
B.
The ICA held that adequate foundation had been
established to admit the speed reading. The ICA noted that the
officer received eight hours of training from the HPD, “confirmed
that during training he was provided with a training manual,
which he acknowledged was provided by [LTI]” and testified that
during training he was “taught [four] tests recommended by the
manufacturer to determine whether the laser was working
properly.” State v. Apollonio, No. CAAP-11-0000695, 2012 WL
2894715, at *2 (App. July 16, 2012). According to the ICA,
“[e]vidence from [the officer’s] testimony” “confirmed that he
performed these four tests on the laser gun on July 1, 2010, and
that the results of the tests indicated that the laser was
operating correctly.” Id.7
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Further, the officer explained that the manual he
received as a part of his training “‘said Operator's Manual, LTI
20–20 Operator’s Manual,’” although “[the officer] later agreed
that the manual cover may also have stated ‘Honolulu Police
Department’ [or contained an HPD logo].” Id. He “could not
definitely say that the manual was not written or compiled by
HPD.” Id. The ICA concluded that, “[i]n light of the foregoing,
the officer’s testimony was sufficient to establish that ‘the
nature and extent of [his] training . . . meets the requirements
indicated by the manufacturer.’” Id. (Quoting Assaye, 121
Hawai#i at 215, 216 P.3d at 1238.)
Addressing Manewa, the ICA held that once the laser is
tested in accordance with procedures recommended by the
manufacturer, “the Assaye majority did not require any further
showing of inspection and service as required by the
manufacturer.” Id. Therefore, the ICA rejected Petitioner’s
argument that Respondent was required to demonstrate that the
manufacturer had properly serviced the laser gun. Id.III.
Petitioner presents the following questions in his
Application:
1. Whether the ICA’s order affirming [Petitioner’s]
conviction constitutes an obvious inconsistency with
[this court’s] April 12, 2012 decision in [Nesmith,
127 Hawai#i 48, 276 P.3d 617].
2. Whether the ICA gravely erred in holding that
[Respondent] laid sufficient foundation for the
admission of the laser gun reading.
On November 7, 2012, Respondent filed a Response to Petitioner’s
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Application (Response). On November 13, 2012, Petitioner filed a
Reply.
IV.
A.
In connection with his first question, Petitioner
argues that “[t]he oral charge [] failed to allege the
intentional, knowing, and reckless states of mind required to
alert the defendant[] of precisely what [he] needs to defend
against to avoid a conviction.”5 (Citing Nesmith, 127 Hawai#i at
56, 276 P.3d at 625.) Additionally, Petitioner argues that “the
oral charge was fatally defective under Hawai#i Rules of Penal
Procedure (HRPP) Rule 7(d),”6 because “state of mind was an
‘essential fact,’ which was required to be alleged.” Finally,
according to Petitioner, due to the lack of mens rea in the
charge, “the [] court lacked jurisdiction over the case.” (Citing
State v. Cummings, 101 Hawai#i 139, 142, 63 P.3d 1109, 1112
(2003).)
B.
In its Response, Respondent argues that “[t]he Nesmith
majority’s holding that mens rea must be alleged in a charge was
5
The concurring and dissenting opinion (dissenting opinion)
contends that “[i]t was not until the case reached this court that, for the
first time, [Petitioner] contended that the charge was inadequate.”
Dissenting opinion at 2. Nesmith was filed on April 12, 2012, well after
February 24, 2012, the date Petitioner declined to file a Reply Brief before
the ICA. Thus, Petitioner could not have raised the Nesmith argument before
the ICA.
6
HRPP Rule 7(d) states in relevant part that “[t]he charge shall be
a plain, concise and definite statement of the essential facts constituting
the offense charged.”
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based on its reasoning that ‘a charge omitting the mens rea
requirements would not alert a defendant that negligently
operating a vehicle under the influence of an intoxicant . . .
for instance is not an offense recognized [by statute].’”
(Quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at 625.) “In other
words,” Respondent contends, Nesmith held that the “state of mind
must be included in the charge to ‘alert the defendants [] [of]
precisely what they needed to defend against to avoid a
conviction.’” (Quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at
625.)
Respondent observes that Petitioner’s “defense was that
he was never aware that he was driving his vehicle more than
sixty [mph].” According to Respondent, Petitioner’s counsel
stated the correct state of mind requirements during closing
argument and noted that “this is not a negligence case.”
Respondent argues that, therefore, Petitioner “was clearly aware
of precisely what he needed to defend against [to avoid] a
conviction.” Thus “his constitutional rights were not adversely
affected.”7
7
Further, Respondent contended for the first time that HRS §
291C-105(a) involves an absolute liability offense, and hence the State was
not required to allege a state of mind in the charge. Respondent’s argument
that HRS § 291C-105(a) is an absolute liability offense was not raised before
the court, and is therefore waived. See State v. Kikuta, 125 Hawai#i 78, 89,
253 P.3d 639, 650 (2011) (“[T]he failure to properly raise an issue at the
trial level precludes a party from raising that issue on appeal.”). In any
event, Respondent’s arguments are virtually identical to those raised by the
State in State v. Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012). In
Gonzalez, the argument that excessive speeding is a strict liability crime was
rejected. Id. at 324, 288 P.3d at 798. Accordingly, we do not discuss this
contention further.
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C.
In Nesmith, this court cited with approval Elliot, in
which the petitioner had challenged the sufficiency of the oral
charge for the first time on appeal, arguing that the oral charge
did not include a mens rea element. Nesmith, 127 Hawai#i at 56,
276 P.3d at 625 (“[Elliot] provides an illustration of how
omission of facts in a charge can render a charge deficient.”)
Nesmith stated that, as a result, Elliot “liberally reviewed the
oral charge in favor of its validity.” Id. However, “[e]ven
under a liberal review, [this court] held [in Elliot] that the
charge could not be reasonably construed to state the offense of
resisting arrest,” because “the requisite state of mind was
omitted.” Id.In this case, as in Elliot, Petitioner challenged the
sufficiency of the oral charge for the first time on appeal, and
therefore the charge must be construed liberally in favor of its
validity. Id. As in Elliot, the instant charge omitted the
requisite state of mind. Analogous to Elliot, then, the
excessive speeding charge cannot be “reasonably construed to
state an offense.” Id. Nesmith therefore mandates dismissal
without prejudice. Id.Respondent argues that Nesmith supports a contrary
result, because Nesmith holds that a charge is only deficient if
defendants lack the notice necessary to avoid a conviction. In
Elliot, however, this court noted that the defendant “has not
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indicated how she was surprised or prejudiced by the omissions,
and the record does not show that she was hampered in her
defense.” 77 Hawai#i at 311, 884 P.2d at 374 (brackets omitted).
Nevertheless, Elliot held that “with respect to the resisting
arrest count, the requisite state of mind was omitted from the
charge,” and therefore “the oral charge at issue [was] fatally
defective.” Id. at 313, 884 P.2d at 376. Similarly, in this
case, the charge omitted the requisite state of mind, and
therefore it cannot be “reasonably construed to state [an]
offense.” Id.
Less than ten months ago this court, in a unanimous
opinion,8 held that the failure to allege a requisite state of
mind results in dismissal without prejudice:
In Nesmith, this court reasoned that ‘state of mind requirements,
though not an element of an offense’ were required to be included
in the charges against the defendants in order ‘to alert the
defendants of precisely what they needed to defend against to
avoid a conviction.’ 127 Hawai#i at 56, 276 P.3d at 625 (internal
quotation marks and citations omitted). Nesmith held that [if a]
state of mind [is not] included in a charge[] the case [is]
dismissed without prejudice. Id. at 54, 276 P.3d at 623. Because
the charge here did not contain the requisite state of mind, as
the State concedes, Nesmith mandates dismissal without prejudice.
Gonzalez, 128 Hawai#i at 324, 288 P.3d at 798.9 Accordingly, we
8
Respectfully, in light of this court’s recent unanimous adherence
to this proposition, the dissenting justices’ position with respect to plain
error need not be discussed.
9
The dissent contends that Gonzalez is distinguishable because in
Gonzalez, the defendant objected to the oral charge before trial commenced.
Dissenting opinion at 2-3 n.2. However, based on Nesmith, Gonzalez stands for
the principle that a charge that fails to include the requisite state of mind
would be dismissed without prejudice, Gonzalez, 128 Hawai#i at 324, 228 P.3d
at 798 (“Nesmith held that [if] state of mind [is not] included in a charge []
the case [is] dismissed without prejudice.”), even if an objection is not
raised at trial and the defendant was not prejudiced by the omission of state
of mind. Elliot, 77 Hawai#i at 313, 884 P.2d at 376; cf. Nesmith, 127 Hawai#i
at 55; 276 P.3d at 624 (“Like Elliott, in this case, the . . . state of mind
requirements . . . needed to be charged[.]”).
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adhere to this core principle: A charge that fails to charge a
requisite state of mind cannot be construed reasonably to state
an offense and thus the charge is dismissed without prejudice
because it violates due process.10 Elliot, 77 Hawai#i at 313, 884
P.2d at 376; see also Nesmith, 127 Hawai#i at 56; 276 P.3d at 625(“In Elliott, the petitioner challenged the sufficiency of this
oral charge for the first time on appeal . . . . Even under a
liberal review, we held that the charge could not be reasonably
construed to state the offense of resisting arrest.”).
V.
Due to the likelihood of retrial, Petitioner’s argument
that Respondent failed to lay an adequate foundation for the
introduction of the speed reading from the laser gun may be
addressed in part to prevent future error. In order to lay an
adequate foundation for the speed reading from a laser gun, the
State must demonstrate (1) that the accuracy of the laser gun was
tested according to procedures recommended by the manufacturer,
Assaye, 121 Hawai#i at 213, 216 P.3d at 1236, and (2) that “the
nature and extent of an officer’s training in the operation of a
10
The dissent contends that dismissing the charge has the effect of
“treating timely and untimely objections to a charge the same.” Dissenting
opinion at 14 n.6. However, that a charge that does not include the requisite
state of mind is dismissed without prejudice based on due process is now
firmly established. See Nesmith, 127 Hawai#i at 56; 276 P.3d at 625; see also
Gonzalez, 128 Hawai#i at 324, 288 P.3d at 798; State v. Bortel, No. SCAP-12-
0000392, 2013 WL 691794, at *3 (Haw. Feb. 25, 2013) (mem.) (“According to
Gonzalez, Nesmith held that the state of mind must be included in a charge or
the case [is] dismissed without prejudice.”) (internal quotation marks
omitted); State v. Castro, No. SCWC-30703, 2012 WL 3089722, at *1 (July 30,
2012) (SDO). As this court concluded in Nesmith, “mens rea must be alleged in
a[ ] charge.” 127 Hawai#i at 56; 276 P.3d at 625.
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laser gun [met] the requirements indicated by the manufacturer.”
Id. at 215, 216 P.3d at 1238. Petitioner argues that neither
requirement was satisfied here. He also asserts that Respondent
failed to introduce evidence that the laser gun was “inspect[ed]”
or service[d] by the manufacturer,” as required by Manewa, 115
Hawai#i at 354, 157 P.3d at 347.
A.
Petitioner advances three arguments suggesting that,
under the first prong of the Assaye test, Respondent did not
establish that the laser gun was tested in accordance with the
manufacturer’s recommendations. First, Petitioner argues that
the officer’s knowledge of the four tests was based upon “reading
the manual that was never offered or admitted into evidence.”
Thus, according to Petitioner, “his testimony was based upon
hearsay[11] –- the contents that he obtained from the manual were
statements, other than statements made by him while testifying,
offered to prove the truth of the matter asserted – that the
manufacturer, LTI, recommended these four tests to ensure that
the device was in proper working order.”
Second, Petitioner argues that “[the officer] assumed
the manual was published by LTI,” but he was “trained by an HPD
officer, he received the manual from the training officer, and
11
Hawai#i Rules of Evidence (HRE) Rule 802 provides, in relevant
part:
Rule 802. Hearsay
Hearsay is not admissible except as provided by these
rules, or by other rules prescribed by the Hawai#i supreme
court, or by statute.
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the manual’s cover was imprinted only with the words ‘Operator’s
Manual’ and possibly an HPD logo.” Additionally, “[the officer]
admitted that he did not know who provided the manual to HPD,
whether the manual was written or compiled by HPD, and that he
never met anyone from LTI.” Petitioner declares that thus, “[the
officer’s] testimony that the tests were recommended by the
manufacturer should not have been admissible for lack of personal
knowledge.”
Third, Petitioner contends that the best evidence rule
required Respondent to introduce the manual itself into evidence.
According to Petitioner, HRE Rule 100212 states that “‘to prove
the content of a writing . . . the original writing . . . is
required’” and here “the content of the manual was the very
evidence the State relied upon to establish that LTI had
recommended the four tests.”
Regarding training under the second prong of the Assaye
test, Petitioner argues that Respondent “failed to adduce any
evidence as to whether the [officer’s] training . . . met the
requirements indicated by the manufacturer. In fact,
[Respondent] did not present any evidence as to what LTI even
12
HRE Rule 1002 provides as follows:
Rule 1002. Requirements of Original
To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph
is required, except as otherwise provided in these rules or
by statute.
(Emphasis added.)
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requires in the training in the operation [sic] of the laser
gun.” (Emphasis in original.)
Finally, with respect to Manewa, Petitioner asserts
that this court held that an inadequate foundation was laid when
a chemist “lacked the personal knowledge that an [analytical
balance] had been properly calibrated,” and “merely assumed that
the manufacturer’s service representative had done so.”
Petitioner then cites the concurring opinion in Assaye as holding
that “Manewa ‘requires not only that the State show that there is
an accepted manufacturer’s procedure . . . but also to show that
the instrument has been inspected and serviced as required by the
manufacturer.’” (Quoting Assaye, 121 Hawai#i at 217, 216 P.3d at
1240 (Acoba, J., concurring).)
B.
In its Response, Respondent argues that all of
Petitioner’s evidentiary arguments other than its personal
knowledge objection are waived, because they were not raised
before the ICA. As to personal knowledge, Respondent relies on
the arguments made before the ICA, where it maintained that the
officer’s testimony that the manual was provided by LTI was a
“reasonable inference,” and that other evidence linked LTI to the
manual, such as the fact that the laser gun was manufactured by
LTI and the title of the manual was the “LTI 20-20 Operator’s
Manual.”
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Further, Respondent contends that “[Petitioner’s] exact
argument [regarding the best evidence rule] was recently rejected
in another case.” (Citing State v. Jervis, No. 30463, 2011 WL
1713501 (App. May 5, 2011) (SDO).) In Jervis, the ICA reasoned
that the best evidence rule did not apply because “[the
officer’s] testimony about the manual was not adduced to prove
the contents of the manual, but rather to establish foundation
for his testimony.” Jervis, 2011 WL 1713501 at *1 (citing
Fireman’s Fund Ins. Co. v. Stites, 258 F.3d 1016, 1023 (9th Cir.
2001); Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1486 (10th
Cir. 1987); United States v. Carlock, 806 F.2d 535, 551 (5th Cir.
1986); Lang v. Cullen, 725 F. Supp. 2d 925, 953–54 (C.D.Cal.
2010)).
With respect to Manewa, Respondent argued that there,
this court held that the State had established that a “[Gas
chromatograph mass spectrometer]” was working properly because an
expert “testified that he personally conducted a ‘routine check’
‘each and every morning’ ‘to ensure that all the parameters are
within the manufacturer’s specifications.’” (Quoting Manewa, 115
Hawai#i at 354, 167 P.3d at 347.) Respondent contended that,
therefore, establishing that a “routine check” was performed is
enough to establish that a device is working. Lastly, Respondent
maintained that in the instant case “it was never established at
trial whether there was in fact a manufacturer’s service
representative who periodically calibrated the laser gun,” and in
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the absence of such evidence “the State is not required to show
that the laser gun ‘had been properly calibrated by the
manufacturer’s servicing representative.’” (Quoting Manewa, 115
Hawai#i at 354, 167 P.3d at 347.)
VI.
A.
Petitioner argues that “[a]bsent [the officer’s]
assumption that LTI might have provided the manual . . . there is
nothing in evidence to support that [the tests used to verify the
gun’s accuracy] were recommended by LTI.” We conclude that in
this respect, admission of the officer’s testimony as evidence
was wrong. See Kealoha v. County of Hawai#i, 74 Haw. 308, 319-
20, 844 P.2d 670, 676 (1993) (“When application of a particular
evidentiary rule can yield only one correct result, the proper
standard for appellate review is the right/wrong standard.”).13
13
This court has not addressed whether the court’s finding that a
witness has personal knowledge pursuant to HRE Rule 602 is reviewed under the
right/wrong standard or the abuse of discretion standard. The right/wrong
standard applies to questions where “there could only be one correct answer”
such as “whether the evidence had simply failed to fulfill the applicable
requirements for admission.” Kealoha, 74 Haw. at 319, 844 P.2d at 676; see
also State v. Moore 82 Hawai#i 202, 217, 921 P.2d 122, 137 (1996) (holding
that, regarding hearsay exceptions, “the appropriate standard for appellate
review is the right/wrong standard,” because “with respect to the exceptions,
the only question for the trial court is whether the specific requirements of
the rule were met”). However, the abuse of discretion standard applies to
questions that require the court to make a “judgment call” such as those that
require balancing on the part of the trial court. Kealoha, 74 Haw. at 315,
844 P.2d at 674 (holding that HRE Rule 403 questions are subject to the abuse
of discretion standard because they require a “delicate balance between
probative value and prejudicial effect”).
As with the hearsay exceptions, the only question for the court
under Rule 602 is whether or not a witness has personal knowledge of the
matter he or she testifies to, i.e., “whether or not the specific requirements
of the rule were met.” Moore, 82 Hawai#i at 217, 921 P.2d at 137. Hence,
where the court’s ruling regarding the witness’ personal knowledge is
concerned, “the appropriate standard for appellate review is the right/wrong
standard.” Id.18
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HRE Rule 602 provides that “[a] witness may not testify
to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.”
The Commentary to HRE Rule 602 explains that, “‘Personal
knowledge,’ for purposes of this rule, means that the witness
perceived the event about which he testifies.” In other words,
witnesses may not testify based on “guesswork” or “speculation,”
such as when the witness concludes that a fact “must have” been
true. See Addison M. Bowman, Hawai#i Rules of Evidence Manual §
602-1[5] (2012) (hereinafter Bowman, HRE Manual).
Here, the officer’s testimony that the manual was
provided by LTI was based on “guesswork” and “speculation.” As
he acknowledged, the officer did not “know personally whether
anybody from LTI provided [the] manual[],” but “assumed that
somebody from LTI must have provided it.” The only individuals
present during the officer’s training were HPD officers. The
manual was provided by “the traffic division instructors that
were training [the officer].” Thus, “nobody from LTI gave [him]
the manual.” The officer recounted that he had “[n]ever met a
representative from [LTI].” Finally, the officer confirmed that
he “[didn’t] know personally whether anybody from LTI provided
these manuals to [HPD].” In other words, the officer had no
personal knowledge that the manual was provided by LTI, or was an
LTI manual.
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Additionally, the officer’s testimony regarding the
manual’s appearance did not connect the manual to LTI. “[T]he
only thing that [he could] recall about the manual” was that it
said “Operator’s Manual” on its cover and that it “may have a[n]
HPD logo.” Although the officer did state that the manual’s
cover read “LTI 20-20 Operator’s Manual,” this indicated only
that the manual concerned the laser gun designated “LTI 20-20,”
and not that LTI produced the manual. In sum, the officer
provided no testimony as to the manual itself that would suggest
that it was from LTI.
Finally, the officer conceded that he did not have
personal knowledge regarding who wrote or compiled the manual.
The officer did not know “if the manual . . . that may or may not
be stamped with the [HPD] logo was [sic] written or compiled by
the [HPD].” He did not “know the person who wrote the manual.”
The officer had no verifiable basis for concluding that the
manual was provided by LTI.14
Thus, nothing in evidence was “sufficient to support a
finding” that the officer had personal knowledge of the fact as
testified to on direct, see HRE Rule 602, that the manual was
“provided by [LTI], the manufacturer of [the] LTI 20-20.”
Respondent itself noted that the officer’s statement on direct
examination was based on the inference that the manual “must
14
As noted before, none of the manuals produced in discovery were
admitted into evidence or linked to the officer’s testimony. Although
Respondent allowed Petitioner to review three separate manuals in discovery,
as noted, the record is silent as to the contents of the manuals.
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have” been provided by LTI. Rule 602 prohibits precisely such an
inference. That inference, without any basis in fact, must be
categorized as guesswork. See Bowman, HRE Manual at § 602-1[5]
(noting that the personal knowledge rule is violated when a
witness concludes that a fact “musta,” i.e, “must have,” been
true). Because the officer lacked personal knowledge that the
manual was “provided by” LTI, there was no evidence establishing
that the four tests performed by the officer were recommended by
the manufacturer. Therefore, the court erred in concluding that
the four tests were recommended by the manufacturer.
B.
Respondent apparently maintains that even without the
officer’s testimony, the evidence supported the conclusion that
the manual was provided by LTI, essentially because the laser gun
was manufactured by LTI and the cover of the manual read “LTI 20-
20 Operator’s Manual.” Contrary to the court’s finding, there
was no evidence connecting LTI to the manual itself. As
discussed supra, the fact that “LTI” was in the manual’s title
indicated only that the manual concerned the laser designated
“LTI 20-20,” and not that LTI produced the manual. Evidence
regarding the manual -– the officer’s testimony that the HPD logo
was on the cover and that the manual was provided to him by an
HPD officer –- implied that the manual was compiled, not by LTI,
but by the HPD. Hence, the court erred by concluding that the
manual was provided by LTI.
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C.
Respondent’s failure to link the manual to the laser
gun’s manufacturer resolves Petitioner’s contention that
Respondent failed to satisfy the first prong of Assaye.
Petitioner’s arguments regarding the hearsay rule and best
evidence rule were not raised in Petitioner’s Opening Brief
before the ICA, and are therefore waived. Hawai#i Rules of
Appellate Procedure Rule 28(b)(7) (“Points not argued may be
deemed waived.”).
VII.
A.
Petitioner also asserts that Respondent failed to
satisfy the second prong of Assaye, which requires the State to
prove that an officer’s training in the operation of a laser
conformed to the manufacturer’s requirements. 121 Hawai#i at
215, 216 P.3d at 1238. To recount, Respondent argues as it did
before the ICA that Assaye does not require the State to set
forth the manufacturer’s requirements for officer training, but
instead “implicitly teaches that it is difficult to discern how
anyone can use the laser gun properly without any training or
instruction.” (Emphasis in original.) The officer’s testimony
that he received eight hours of training, according to
Respondent, met that requirement. To the contrary, Assaye held
that the State must establish that an officer’s training
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satisfied the laser manufacturer’s requirements. 121 Hawai#i at
215, 216 P.3d at 1238.
Logically, this requires a showing as to both (1) the
training requirements set forth by the manufacturer, and (2) the
training actually received by the operator of the laser gun. We
have said before that this showing cannot be met simply by
describing the officer’s training. See id. at 215-16, 216 P.3d
at 1238-39 (holding that although an officer testified that he
was “certified” after taking a “four hour class,” the State
“ha[d] not shown whether the training that [the officer] received
[met] the requirements of the manufacturer of the laser gun”)
(internal quotations omitted). Consequently, Respondent could
not demonstrate that the officer’s training met the
manufacturer’s requirements because the only evidence of those
requirements was the manual, and there was no evidence linking
the manual to LTI.
B.
Respondent also asserts that because in closing
argument Petitioner “conceded that [the officer] testified on
direct [examination] that he was trained in accordance with the
manufacturer’s specification,” and that “the specification was
derived from the manual itself,” Petitioner cannot now argue that
[the officer’s] training was insufficient.15 But read in its
15
In closing argument, Petitioner argued that
[d]efense will concede that the officer testified on direct
that he was trained in accordance with the manufacturer’s
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entirety, Petitioner’s closing argument demonstrates that
Respondent’s contention is incorrect. Petitioner argued that on
cross-examination, the officer admitted that although he
“testified on direct examination that he was trained in
accordance with the manual that LTI provided,” that “was just
based on [his] assumption that somebody from LTI must have
provided it.” Thus, Petitioner’s “concession” did not preclude
the argument that the officer had only speculated as to who
provided the manual upon which his training was based.16
VIII.
According to Petitioner, the concurring opinion in
Assaye correctly interprets Manewa, and under the concurrence,
specification. Defense did ask to voir dire at that point,
however, also acknowledge[d] that it could be done on cross-
examination subject to re-objection. And I believe on
cross-examination, defense was able to successfully elicit
that while the officer stated the words he was trained on
the manufacturer’s specification in accordance [sic], he had
no personal knowledge as to whether or not he actually was.
(Emphases added.)
16
The record here does not reveal any prosecution in which the State
has established that the four tests referred to and the training requirements
are set forth in a manual that has been verified by the manufacturer and
provided to the State by the manufacturer. See, e.g., State v. Eid, 126
Hawai#i 430, 444-45, 227 P.3d 1197, 1211-12 (2012) (noting that in a “test
case” there was “extensive evidence, including lengthy testimony from master
certified automobile technicians . . . that the procedures and equipment used
to conduct the [speed checks]” gave “adequate assurances that the . . . speed
checks were reliable”); see also Assaye, 121 Hawai#i at 213-15, 216 P.3d at
1236-38 (requiring that accuracy of a laser gun must be “adduced through
evidence that the procedures are recommended by the manufacturer,” that “an
officer’s training in the operation of a laser gun meets the requirements
indicated by the manufacturer.”); In re Admissibility of Motor Vehicle Speed
Readings Produced by the LTI Marksman 20-20 Laser Speed Detection Sys., 314
N.J. Super. 233, 714 A.2d 381, 391-92 (1998)) (“the admissibility of speed
readings produced by the LTI Marksman 20-20 Laser Speed Detection System shall
be subject to certain rules, which includes the requirement that pre-
operational checking procedures recommended by the manufacturer of the laser
speed detector shall be shown to have been made in each case”) (brackets and
internal quotation marks omitted)).
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Respondent must also demonstrate that the laser gun was serviced
by a representative of the manufacturer to lay an adequate
foundation for the speed reading taken from the laser gun. In
this case, there is no clear evidence in the record with respect
to the periodic servicing of the laser guns. Petitioner asked
the officer whether the laser gun was under warranty and required
periodic software updates, but he replied that he was “unaware”
of any such requirement. Thus, Petitioner’s question regarding
Manewa need not be resolved here.
IX.
Based on the foregoing, the August 22, 2012 judgment of
the ICA, which affirmed the court’s August 23, 2011 Notice of
Entry of Judgment and/or Order and Plea/Judgment and the court’s
aforesaid judgment are vacated and the case remanded to the court
with instructions to dismiss the case without prejudice.
Craig W. Jerome, /s/ Simeon R. Acoba, Jr.
(James A. Tabe on
the application), /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brandon H. Ito,
for respondent
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