State v. Portillo ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-APR-2020
09:15 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DEVIN PORTILLO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DTC-18-001754)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)
Defendant-Appellant Devin Portillo (Portillo) appeals from the
Judgment and Notice of Entry of Judgment entered September 13,
2018, by the District Court of the Fifth Circuit,1 convicting him
on one count of Excessive Speeding in violation of Hawai#i
Revised Statutes (HRS) § 291C-105(a)(1)(2007 & Supp. 2019).2
Portillo's conviction was predicated on evidence of a reading
from a radar device that showed him driving at 72 miles an hour
in a 40 mph zone.
Portillo argues the District Court erred by
(1) admitting the citing officer's testimony about the
manufacturer's recommendations for training users of the device,
1
The Honorable Joseph N. Kobayashi presided.
2
HRS § 291C-105(a)(1) provides: "No person shall drive a motor
vehicle at a speed exceeding . . . [t]he applicable state or county speed
limit by thirty miles per hour or more[.]"
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and his own qualifications and training; and (2) admitting the
speed reading where there was insufficient foundation that the
radar was tested according to manufacturer's recommendations and
that the radar was inspected, serviced or calibrated by the
manufacturer.
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, as
well as the relevant legal authorities, we affirm the judgment.
First, we note that Portillo did not timely file his
notice of appeal, which is usually grounds for dismissal. See
Hawai#i Rules of Appellate Procedure Rule 4(b), see, e.g.,
Grattafiori v. State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995)
(noting that appellate court lacks jurisdiction to hear an appeal
where the appellant has not filed a timely notice of appeal).
However, we may disregard the late filing in cases such as this
where it appears that "defense counsel has inexcusably or
ineffectively failed to pursue a defendant's appeal from a
criminal conviction in the first instance[.]" State v. Irvine,
88 Hawai#i 404, 407, 967 P.2d 236, 239 (1998). We decline to
dismiss the appeal.
To admit the speed reading, the State must show
(1) "that the [radar or] laser gun's accuracy was tested
according to manufacturer recommended procedures and determined
to be operating properly prior to use, and (2) that the nature
and extent of the officer's training in the operation of laser
guns [or radar] meets the requirements indicated by the
manufacturer." State v. Gonzalez, 128 Hawai#i 314, 325, 288 P.3d
788, 799 (2012).
Here, unlike the testimony in Gonzalez, the State
established the nature and extent of the officer's training in
the use of the radar device. See State v. Rezentes, 139 Hawai#i
263, 388 P.3d 51, No. CAAP–15–0000294, 2016 WL 6330390 at *1
(App. Oct. 28, 2016) (SDO). Officer Shawn Hanna testified to
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taking two training courses, one led by a fellow Kaua#i Police
Department officer and one led by a representative of the
manufacturer. The classes included classroom instruction, hands-
on training with the device, and written tests. The classes
covered how to test the radar for accuracy. Officer Hanna
explained how to perform each of these tests. He passed the
written tests and was certified by the manufacturer, as a user
and instructor. Officer Hanna's testimony was sufficient to
establish his training "was consistent with the manufacturer's
requirements." See State v. Amiral, 132 Hawai#i 170, 179, 319 P.3d
1178, 1187 (2014); accord State v. Gleed, 140 Hawai#i 25, 397 P.3d
1131, No. CAAP-XX-XXXXXXX, 2017 WL 2839547, at *2 n.1 (App.
Jun. 30, 2017) (SDO) (Nakamura, J. concurring) ("Just as
compliance with training requirements indicated by the
manufacturer would demonstrate that a person is qualified to
operate the device, so would the successful completion of
training provided or conducted by a representative of the
manufacturer.").
Portillo argues the rule against hearsay, Hawaii Rules
of Evidence (HRE) Rule 801, prohibits Officer Hanna from
testifying about the manufacturer's recommendations and about his
instructor's connection to the manufacturer. The Hawai#i Rules
of Evidence do not apply to these preliminary questions relating
to admissibility of the speed reading evidence. See HRE Rule
104(a) ("[p]reliminary questions concerning . . . the
admissibility of evidence shall be determined by the court," and
"[i]n making its determination the court is not bound by the
rules of evidence except those with respect to privileges"). See
also HRE Rule 1101(d)(1); State v. Noga, 142 Hawai#i 465, 420
P.3d 995, NO. CAAP-XX-XXXXXXX, 2018 WL 3135902, at *2-3 (App.
Jun. 27, 2018) (SDO); Rezentes, 2016 WL 6330390, at *2 (officer
could testify that the course instructor was a manufacturer
representative and the course complied with the manufacturer's
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training requirements, regardless of hearsay and best evidence
rules); State v. Jervis, 125 Hawai#i 30, 251 P.3d 47, No. 30463,
2011 WL 1713501, at *1 (App. May 5, 2011) (SDO). Moreover,
Officer Hanna could testify as to his own qualifications based on
personal knowledge. HRE Rule 602.
This case is distinguishable from the cases which
Portillo cites in support of his argument. In contrast to
Gonzalez, 128 Hawai#i at 327, 288 P.3d at 801, the record here
contained the manufacturer's requirements for training in the
operation of the device. Furthermore, in contrast to State v.
Gardner, 137 Hawai#i 248, 369 P.3d 298, No. SCWC–13–0002852, 2016 WL
1065400, at *5 (Mar. 15, 2016) (SDO), Officer Hanna testified
that his training covered how to test the radar for accuracy, and
that he performed these tests as instructed.
Portillo objected to the admission of the card showing
the officer’s certification, but the record indicates this card
was not admitted into evidence. His argument regarding the
service and calibration of the radar is waived because he did not
raise that issue at trial. State v. Moses, 102 Hawai#i 449, 456,
77 P.3d 940, 947 (2003) ("As a general rule, if a party does not
raise an argument at trial, that argument will be deemed to have
been waived on appeal; this rule applies in both criminal and
civil cases.").
Officer Hanna testified that the radar in this case was
tested according to the manufacturer's procedures as specified in
his training and found to be working properly on the date in
question.
The District Court did not err in allowing Officer
Hanna's testimony regarding the manufacturer's recommended
procedures for testing the radar, nor did it abuse its discretion
in finding this testimony was sufficient to establish the
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foundation for admission of the speed reading. Gonzalez, 128
Hawai#i at 326, 288 P.3d at 800.
Therefore, the Judgment and Notice of Entry of Judgment
entered on September 13, 2018, by the District Court of the Fifth
Circuit is affirmed.
DATED: Honolulu, Hawai#i, April 15, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Teal Takayama,
Deputy Public Defender, /s/ Alexa D.M. Fujise
for Defendant-Appellant. Associate Judge
Tracy Murakami, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
County of Kauai,
for Plaintiff-Appellee.
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