State v. Yip ( 2010 )

LAM!MBHARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 2996O
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
sTATE oF HAwArI, P1aintiff-Appe1lee, v.
LARRY W;K. YIP, Defendant-Appellant
63 ,9 m 92 aims am
APPEAL FR0M THE DIsTR1cT coURT oF THE FIRsT c1RcU:T
HoNoLULU D1vIsIoN
(Case No. 1DTc-08-046548)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Defendant-Appellant Larry W.K. Yi
(Yip) appeals from
the June 29,
2009 amended judgment of conviction on one count of
excessive speeding in violation of Hawaii Revised Statutes
§ 29lC-lO5(a)(l) (2007 & Supp. 2009)
Court of the First Circuit,
(HRS)
entered in the District
Honolulu Division (district court).1
On appeal, Yip argues that: (l) the district court
erred in receiving the speed check card into evidence under the
business record exception to the hearsay rule; (2) there was
insufficient foundation laid for admission of the speed check
card as a business record exception; and (3) the admission of the
speed check card violated Yip's right to confrontation.
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, we conclude that
based upon State v. Fitzwater,
122 HawaiH_354, 227 P.3d 520(2010>,
Officer Russell Maeshiro's (Officer Maeshiro) testimony
regarding the speed at which Yip was driving, which was based
upon the officer's speedometer, was inadmissible because the
State failed to establish a proper foundation to show that the
1 The Honorable Faye M. Koyanagi presided.
€.``§E”li;.%
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PAClFIC REPORTER
speedometer had been properly calibrated and was therefore
accurate.2
Yip was tried with a co-defendant (CozDefendant) for
the offense of excessive speeding on November 3, 2008.
Officer Maeshiro testified that on November 3, 2008, he
cited Co-Defendant and Yip. He observed Yip tailgating Co-
Defendant and both were traveling fast. He paced them and
determined, based on his speedometer, that they were traveling 85
miles per hour in a 45 miles per hour zone. Yip objected to the
testimony of the speed. In laying the foundation for the speed
check card, no evidence was presented as to the manufacturer's
requirements for the training of the person conducting the speed
check or the manner in which the speed check was to be performed.
The district court overruled the objection.
The Co-Defendant testified that she had asked Yip to
follow her home because it was late and she was tired. She had
checked her speedometer before she was stopped and she was
' traveling 55 miles per hour. Yip testified that he was following
Co-Defendant on his motorcycle and he was traveling at 55 miles
per hour.
A determination of the admissibility of evidence under
an exception to the hearsay rule is reviewed under the
right/wrong standard of review. Fitzwater, 122 Hawai‘i at 362,
227 P.3d at 528..
To establish a foundation for the speed check results,
Fitzwater requires the following:
Thus, in order for the results of speed checks to be
admissible, the State must establish: (l) how and when the
speed check was performed, including whether it was
performed in the manner specified by the manufacturer of the
equipment used to perform the check, and (2) the identity
' and qualifications of the person performing the check,
including whether that person had whatever training the
manufacturer recommends in order to competently perform it.
2 Based upon our decision to vacate and remand as a result of the
inadmissibility of the speed check card, we do not address Yip's other issues.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
ld;, at 376-77, 227 P.3d at 542-43. The State did not satisfy
these requirements. The State failed to adduce any evidence
relating to the manufacturer's requirements for the testing or
the training of the person performing the test and therefore the
district court erred in admitting the speed check card into
evidence over the objections of defense counsel.
However, Yip testified that he was driving at 55 miles
per hour and Officer Maeshiro testified that the area had a speed
limit of 45 miles per hour As in Fitzwater, there was sufficient
evidence to convict Yip of noncompliance with the speed limit in
violation of HRS § 29lC-lO2(a) (l) (2007) . Se;e L, at 378, 227
P.3d at'544.
'Therefore, we vacate the June 29, 2009 amended judgment
entered by the District Court of the First Circuit, Honolulu
Division and remand for entry of a judgment that Yip violated HRS
§ 29lC~102(a)(l), in accordance with the applicable statutes
governing non-criminal traffic infractions.
DATED: Honolulu, HawaFi, June 23, 2010.
On the briefs:
John N. Ikenaga, i4Z{/ jZ; 6
Deputy Public Defender '
for Defendant-Appellant. Chief Judge
’f__ 2
Brian R. Vincent, _ &;p
Deputy Prosecuting Attorney, '
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
@.,,w/Q "
Associate Judge