State v. Villena.

Electronically Filed
Supreme Court
SCWC-13-0000030
15-AUG-2017
08:09 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
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________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
ANTHONY R. VILLENA,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0000030
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000030; CASE NO. 1DTA-12-01321)
AUGUST 15, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
This case arises from Petitioner/Defendant-Appellant
Anthony R. Villena’s (Villena) conviction for the offense of
operating a vehicle under the influence of an intoxicant
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(OVUII). On appeal, Villena asserts the Intermediate Court of
Appeals (ICA) erred in holding that the State laid a sufficient
foundation to introduce the results of Villena’s blood alcohol
test results. Specifically, Villena raises four grounds for the
State’s failure to lay a sufficient foundation for introduction
into evidence of the blood test results:
1. Whether the ICA gravely erred in affirming the trial
court's admission of Villena's blood alcohol test result
without first requiring the State to (1) introduce its
scientific evidence via a duly qualified expert; (2) prove
satisfaction of the three Montalbo factors in arriving at
the test result; and (3) demonstrate compliance with the
Souza requirements for test results produced by an
instrument;
2. Whether the ICA gravely erred in affirming the trial
court's admission of Villena's blood alcohol test result
without first requiring the State to demonstrate strict
compliance with HAR §11-114-23(b) and (a)(3) requirements
which have a direct bearing on the accuracy of the alcohol
test result;
3. Whether the ICA gravely erred in affirming the trial
court's admission of State's Exhibit#1 (the Letter License)
as hearsay, inadmissible under either HRE 803(b)(6) or (8),
and in violation of Villena's Confrontation rights; and
4. Whether the ICA gravely erred in ruling that the trial
court's erroneous admission of State's Exhibit#2 (MT
Perry's Sworn Statements) was mere harmless error.
We affirm the ICA’s judgment and hold that the State laid a
proper foundation to introduce the results of Villena’s blood
test because the State’s licensing letter was admissible as
nonhearsay.
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I. Background
A. District Court Proceedings
On March 6, 2012, Villena was charged by complaint
with OVUII, in violation of Hawaiʻi Revised Statutes (HRS) §
291E-61(a)(4) (2011).1 Villena pled not guilty to the charge.
The bench trial commenced on October 18, 2012, continued on
December 6, 2012, and ended on December 19, 2012.2
1. Testimony of Officer Wade Ikehara
The State presented testimony from Honolulu Police
Department (HPD) Officer Wade Ikehara that on February 22, 2012,
he observed Villena driving at 75 miles per hour, 25 miles per
hour over the speed limit of 50 miles per hour. Officer Ikehara
next noticed that Villena’s vehicle crossed over the dashed
lines separating two of the lanes. Although Officer Ikehara
activated his lights, Villena’s vehicle did not stop until he
reached a DUI roadblock. At the DUI roadblock, Officer Ikehara
approached Villena’s vehicle and noted that Villena’s eyes were
“red, bloodshot, and glassy,” his appearance was disheveled, and
1
HRS § 291E-61(a)(4) (2011) provides:
(a) A person commits the offense of operating a vehicle under the
influence of an intoxicant if the person operates or assumes actual
physical control of a vehicle:
. . .
(4) With .08 or more grams of alcohol per one hundred milliliters
or cubic centimeters of blood.
2
The Honorable Clarence A. Pacarro presided.
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he detected “a strong odor of an alcoholic type beverage on his
breath.” Defense counsel stipulated that Villena performed the
field sobriety test and Officer Ikehara subsequently made the
arrest. Villena was then transported to the Kalihi Police
Station.
At the police station, Officer Ikehara read Villena an
implied consent form and Villena elected to take a blood test.
Because Villena selected that option, Officer Ikehara
transported Villena to the Alapai Police Station to have his
blood drawn. Officer Ikehara waited with Villena for 20-30
minutes until the arrival of medical technologist Karla Perry
(Perry). Upon her arrival, Officer Ikehara listened to her
explain the procedures and observed her withdraw blood from
Villena.
2. Testimony of Medical Technologist Karla Perry
The State presented testimony from Perry. This
testimony was presented out of order, prior to the completion of
Officer Ikehara’s testimony, due to Perry’s scheduling
conflicts.
Perry testified as to her qualifications as a medical
technologist. She stated she was employed as a medical
technologist with the City and County of Honolulu since 2004.
She graduated from the University of Hawaiʻi at Mānoa with a
bachelor of science in medical technology, was board certified
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by the American Society of Clinical Pathologists, and was state
certified by the state Department of Health (DOH).
Perry asserted that she was qualified under Hawaiʻi
Administrative Rules (HAR) Title 11, chapter 114, which
regulates blood alcohol testing, to draw blood and perform
alcohol analysis. Over defense counsel’s objection for lack of
foundation, the court allowed the State to lay additional
foundation to support Perry’s testimony.
The State sought to lay a foundation for Perry’s
qualification as a medical technologist under HAR Title 11,
chapter 114. Perry explained that Title 11 requires an alcohol
analyst or supervisor to be a medical technologist licensed by
the state. With her bachelor of science degree and as a state-
licensed medical technologist, Perry asserted that she fulfilled
the requirement to be an alcohol analyst under HAR Title 11,
chapter 114. Perry also explained that she qualified as an
alcohol testing supervisor because she fulfilled the sole
requirement that she have four years of experience as an alcohol
analyst.3
3
Perry’s assertion that four years of experience is sufficient to
be an alcohol testing supervisor was incorrect. The minimum number of years
of experience is five years. HAR § 11-114-19(b)(3) (1993). Nonetheless
Perry was qualified to be a supervisor as she had eight years of experience
at the time she tested Villena’s blood sample.
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To gain admission of the results of the blood alcohol
test results, the State then attempted to introduce evidence to
establish that the City and County of Honolulu Health Services
Division Laboratory (Laboratory) where Perry worked was a
licensed laboratory under Title 11.4 Defense counsel objected
for lack of foundation. Perry testified that she had personal
knowledge that the Laboratory was licensed as of November 2011.
As the laboratory supervisor, Perry received a licensing letter
from DUI coordinator Dr. Tam Nguyen stating that the Laboratory
was licensed under HAR Title 11, chapter 114. Perry testified
that the letter was kept in the regular course of the
4
Under HAR Title 11, chapter 114, laboratories conducting alcohol
tests are required to be licensed by the director of health. A license is
granted if the laboratory meets the following requirements:
(1) Is physically located in this State;
(2) Is licensed by the department as a clinical laboratory;
(3) Has adequate facilities, personnel, equipment, and
instrumentation;
(4) Includes in its staff an alcohol testing supervisor who
is qualified under section 11-114-19;
(5) Uses alcohol testing procedures approved in writing by
the DUI coordinator or previously approved by the director
of health as required by section 11-114-22 and demonstrates
proficiency in those procedures;
(6) Has a quality assurance program approved in writing by
the DUI coordinator which includes a chain of custody
procedure; and
(7) Participates in and meets the requirements of a
performance evaluation program for alcohol testing approved
in writing by the DUI coordinator as required by section
11-114-21 at no cost to the department.
HAR § 11-114-18(b).
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Laboratory’s business. The State moved to enter the DUI
coordinator’s licensing letter, marked as State’s Exhibit 1,
into evidence in order to establish the reliability of the
laboratory, methods, and instrument used to measure Villena’s
blood alcohol content. Defense counsel objected on the basis of
authentication, lack of foundation, hearsay, and violation of
Villena’s rights under the Confrontation Clause. The court took
the letter’s admission into evidence under advisement.
Perry next testified regarding the enzymatic method
used to analyze blood samples. She testified that this method
was approved by Dr. Tam Nguyen, the statewide DUI coordinator,
in September 2009. Over objections from defense counsel for
lack of foundation, Perry stated that the enzymatic method is
accepted in the scientific community as being accurate and
reliable.
Perry identified the instrument used to test the blood
samples as the “Ace Alera.” Again, over defense counsel’s
objection for lack of foundation, Perry stated that the Ace
Alera was approved by the DUI coordinator. Perry testified she
was trained to calibrate and operate the Ace Alera by her then-
supervisor in September 2009. As part of her training, Perry
reviewed the manufacturer’s manual, which explained how to
calibrate and operate the Ace Alera. She testified that
calibration is conducted by placing the reagents and the
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appropriate samples on the instrument; once the instrument runs
it informs the technician “whether it passed or failed.” Perry
testified that she calibrated the Ace Alera prior to testing the
samples and the instrument passed.
Following Perry’s testimony regarding the Ace Alera
instrument’s calibration, the State sought to prove Villena’s
blood alcohol content by introducing the blood test result
measured by the Ace Alera. Perry testified that Villena’s blood
alcohol content was “0.16 grams of alcohol per 100 cubic
centimeters of whole blood.” Defense counsel objected to
Perry’s testimony on the basis that the State laid an
insufficient foundation to introduce Villena’s blood test
result. Defense counsel also asserted that the State failed to
demonstrate that the testing of Villena’s blood was conducted in
accordance with the requirements of HAR Title 11, chapter 114.
The district court clarified that because Perry was testifying
out of order, Perry was allowed to testify but the testimony and
exhibits would not be admitted until the State established
proper foundation through Perry and its other witnesses.
The State then sought to move into evidence the blood
alcohol testing statement—marked as State’s Exhibit 2—which
contained Villena’s blood alcohol content results of 0.16. The
court took admission of the exhibit under advisement.
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3. Admission of the DUI Coordinator’s Licensing Letter
Following the testimonies of Officer Ikehara and
Perry, the court heard argument as to the admission of the DUI
coordinator’s licensing letter and the blood alcohol testing
statement.
As noted previously, the DUI coordinator’s licensing
letter is a letter to Perry, dated November 5, 2011, from the
DUI coordinator. The letter states that it “constitutes a
license for the City and County of Honolulu Health Services
Division Laboratory to conduct blood alcohol testing in
accordance with Hawaii Administrative Rules, Title 11, Chapter
114 (HAR-11-114).” The letter explains that the licensure of
the Laboratory was based on the Laboratory “having fulfilled
requirements of HAR-11-114-18(b).” In addition, the letter
confirms that the Ace Alera instrument was approved “to be used
for the determination of blood alcohol concentration.”
Specifically, the letter states that “[t]he addition of the ACE-
ALERA Clinical Chemistry analyzer . . . to the ‘Quantitative
Enzymatic Determination of Alcohol’ procedure[] has been
evaluated” as meeting the requirements of HAR § 11-114-22. The
letter bears the seal of the State of Hawaiʻi, states that it “is
a true and correct copy of a public document on file in the
Department of Health,” and is signed by the DUI coordinator, who
is also designated as the custodian of records.
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The State argued that the DUI coordinator’s licensing
letter was admissible because it fell within two hearsay
exceptions: HRE Rule 803(b)(6), as a record of a regularly
conducted activity, and HRE Rule 803(b)(8), as a public record
with a self-authenticating seal.5 Over defense counsel’s
arguments that neither of the hearsay exceptions applied and
that admission of the letter would violate Villena’s
confrontation rights, the court admitted the DUI coordinator’s
5
HRE Rule 803 (2012) provides in relevant part:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
. . .
(b) Other exceptions.
. . .
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made in the course of a regularly conducted activity, at or
near the time of the acts, events, conditions, opinions, or
diagnoses, as shown by the testimony of the custodian or
other qualified witness, or by certification that complies
with rule 902(11) or a statute permitting certification,
unless the sources of information or other circumstances
indicate lack of trustworthiness.
. . .
(8) Public records and reports. Records, reports,
statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of
the office or agency, or (B) matters observed pursuant to
duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement
personnel, or (C) in civil proceedings and against the
government in criminal cases, factual findings resulting
from an investigation made pursuant to authority granted by
law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
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licensing letter into evidence. The State also sought to admit
a blood alcohol testing statement containing a sworn statement
from Perry that she followed applicable procedures in testing
Villena’s blood (the State’s “Exhibit 2”). Over defense
counsel’s objections based on hearsay and lack of foundation,
the court admitted the blood alcohol testing statement into
evidence based on Perry’s testimony.
4. Closing Arguments
In closing argument, the State argued it laid a
sufficient foundation to admit the blood test result. The State
pointed to Perry’s testimony, which demonstrated that the
enzymatic method is an approved method and that Perry was
trained in accordance with state regulations. The State also
referenced the DUI coordinator’s licensing letter, which
licensed Perry’s Laboratory and confirmed the DUI coordinator’s
approval of the procedure and equipment used to test Villena’s
blood. The State argued that Perry’s testimony and the
licensing letter were sufficient to lay an adequate foundation
to introduce the blood test result.
Defense counsel argued that the State did not lay a
sufficient foundation to introduce scientific evidence because
Perry was not qualified as an expert as required by HRE Rule
702. Thus, defense counsel argued that Perry’s testimony did not
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constitute sufficient foundation to prove that the enzymatic
method is a sound scientific procedure.
5. Motion for Judgment of Acquittal
Following closing arguments, Defense counsel made a
motion for judgment of acquittal again asserting that the State
did not lay an adequate foundation to admit evidence of the
blood test results. The district court denied defense counsel’s
motion for judgment of acquittal.
The district court found Villena guilty and sentenced
Villena to a $400 fine plus court costs, and other mandatory
conditions.
B. ICA Proceedings
The ICA, in its May 19, 2015 Summary Disposition
Order, affirmed the Judgment of the district court. The ICA
concluded: 1) evidence of Villena’s blood test result was
properly admitted because the record shows that the DUI
coordinator approved the testing procedure and the instrument;
2) the DUI coordinator licensing letter was properly admitted as
a self-authenticated public record; and 3) the blood alcohol
testing statement was improperly admitted into evidence but that
error was harmless in light of Exhibit 1 and Perry’s testimony.
The ICA also determined that Villena waived the argument that
the State failed to strictly comply with HAR § 11-114-23(a)(3)
and (b) because Villena did not timely object. As to Villena’s
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confrontation rights, the ICA held that the DUI coordinator’s
licensing letter was a nontestimonial record and therefore not
subject to the Confrontation Clause.
II. Standards of Review
A. Admissibility of Hearsay
“[W]here the admissibility of evidence is determined
by application of the hearsay rule, there can be only one
correct result, and the appropriate standard for appellate
review is the right/wrong standard.” State v. Moore, 82 Hawaiʻi
202, 217, 921 P.2d 122, 137 (1996) (internal quotation marks and
citation omitted).
B. Evidentiary Foundation
Before a test result may be introduced into evidence,
“a foundation must be laid showing that the test result can be
relied on as a substantive fact.” State v. Werle, 121 Hawaiʻi
274, 280, 218 P.3d 762, 768. “When a question arises regarding
the necessary foundation for the introduction of evidence, the
determination of whether proper foundation has been established
lies within the discretion of the trial court, and its
determination will not be overturned absent a showing of clear
abuse.” State v. Eid, 126 Hawaii 430, 440, 272 P.3d 1197, 1207
(2012) (quoting State v. Assaye, 121 Hawaii 204, 210, 216 P.3d
1227, 1233 (2009)).
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III. Discussion
A. The Trial Court Did Not Err in Admitting Villena’s Blood
Test Results
To introduce blood test results proving intoxication,
the State must lay a proper foundation. Werle, 121 Hawaiʻi at
282, 218 P.3d at 770. “As part of the foundation, the
prosecution must establish the reliability of the test results
which establish intoxication.” Id.; see also State v. Wallace,
80 Hawaiʻi 382, 407, 910 P.2d 695, 720 (1996) (explaining “[a]
fundamental evidentiary rule is that before the result of a test
made out of court may be introduced into evidence, a foundation
must be laid showing that the test result can be relied on as a
substantive fact” (citation omitted)).
To determine the reliability of the enzymatic blood
testing method used here, the State must show compliance with
the factors we laid out in State v. Montalbo. 73 Haw. 130, 828
P.2d 1274 (1992). Under Montalbo, whether a scientific
procedure—such as the enzymatic method, which Perry used to test
Villena’s blood—is reliable depends on three factors: (1) the
validity of the underlying principle, (2) the validity of the
testing method applying the principle, and (3) the proper
application of the testing method. Id. at 136, 828 P.2d at
1279. To demonstrate the validity of the scientific evidence,
expert testimony is needed. Werle, 121 Hawaii at 282, 218 P.3d
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at 770. Montalbo requires that the expert’s opinion “have a
reliable basis in the knowledge and experience of his or her
discipline.” Werle, 121 Hawaiʻi at 283, 218 P.3d at 771.
However, we have recognized a “shortcut” to
establishing Montalbo reliability for blood testing procedures
when the State proves “that the DUI coordinator gave written
approval of the procedure and instrument used to test
[defendant’s] blood.” Werle, 121 Hawaii at 284, 218 P.3d at
772. Such written approval by the DUI coordinator “relieves the
prosecution of the burden of presenting expert testimony to
establish the reliability” of the instrument and procedure used.
Id. at 285, 218 P.3d at 773. In other words, written approval
from the DUI coordinator is a shortcut for the first two factors
of Montalbo—which require the State to demonstrate the validity
of the underlying principle and the validity of the testing
method applying the principle. Accordingly, to lay a foundation
to admit Villena’s blood test results under the shortcut method,
the State needed to show 1) that the DUI coordinator gave
written approval of the enzymatic method and the blood testing
instrument (the Werle shortcut), and 2) that Perry properly
conducted the enzymatic method on Villena’s blood (the third
Montalbo factor).
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1. The DUI Coordinator’s Licensing Letter Was Admissible
Nonhearsay as a Document of Independent Legal
Significance and Satisfied the Werle Shortcut
In order to satisfy the Werle shortcut, the State must
establish that the DUI coordinator gave “written approval” of
the procedure and instrument used. Werle, 121 Hawaiʻi at 283-4,
218 P.3d at 771-2. This is in accord with the statutory
requirement for blood alcohol testing procedures to “have been
approved in writing by the DUI coordinator.” HAR § 11-114-
22(a). Here, the written approval of the procedure and
instrument is a letter to Perry, dated November 5, 2011, from
the DUI coordinator. The letter states that it “constitutes a
license for the City and County of Honolulu Health Services
Division Laboratory to conduct blood alcohol testing in
accordance with Hawaii Administrative Rules, Title 11, Chapter
114 (HAR-11-114).” The letter explains that the licensure of
the Laboratory was based on the Laboratory “having fulfilled
requirements of HAR-11-114-18(b).” In addition, the letter
confirms that the Ace Alera instrument was approved “to be used
for the determination of blood alcohol concentration.”
Specifically, the letter states that “[t]he addition of the ACE-
ALERA Clinical Chemistry analyzer . . . to the ‘Quantitative
Enzymatic Determination of Alcohol’ procedure[] has been
evaluated” as meeting the requirements of HAR § 11-114-22. This
letter is precisely the type of evidence the Werle shortcut
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requires. Unlike the licensing letter at issue in Werle which
we found deficient for failing to mention the precise testing
method and instrument used, the licensing letter here
specifically approves the instrument and method used to test
Villena’s blood. See Werle, 121 Hawaiʻi at 284, 218 P.3d at 772.
Accordingly, the licensing letter satisfies the Werle shortcut
to show that the DUI coordinator gave written approval of the
method and instrument used to test the defendant’s blood.
However, Villena asserts the court erred in admitting
the letter because it was inadmissible hearsay. Hearsay is a
“statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” HRE Rule 801 (2012). This
definition is identical to that contained in the Federal Rules
of Evidence (FRE) Rule 801(c). Hearsay “is not admissible
except as provided by these rules[.]” HRE Rule 802 (2012). It
is well-settled that statements of independent legal
significance are not hearsay. See FRE Rule 802(c) cmt. (“If the
significance of an offered statement lies solely in the fact
that it was made, no issue is raised as to the truth of anything
asserted, and the statement is not hearsay.”); see also A.
Bowman, Hawaiʻi Rules of Evidence Manual 8-7 (2016)
(characterizing as nonhearsay statements with “independent legal
significance” which “are not offered to prove the truth of the
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matter asserted”). This type of evidence is considered
nonhearsay because the statements are not “offered to prove the
truth of the matter stated” but instead are “offered simply to
show that the statement was made.” West Coast Truck Lines, Inc.
v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1246
n.5 (9th Cir. 1988); see also Gonzales v. City of San Jose, 2015
WL 2398407, *6 (N.D. Cal. 2015) (noting that admission of a copy
of a driver’s license into evidence was “hearsay to the extent
offered to establish Plaintiff's height, weight, and appearance
on February 13, 2012, as asserted in the license, but not
hearsay to the extent offered to show the identifying
information in the Department of Motor Vehicle's records and
available to Defendants on that day”). This doctrine is often
applied to evidence of contractual agreements. See Island
Directory Co. Inc. v. Iva’s Kinimaka Enterprises, Inc., 10 Haw.
App. 15, 21-22, 859 P.2d 935, 939 (1993). In Island Directory,
two parties disputed the existence of a valid contract. Id. at
20, 859 P.2d at 939. One party sought to introduce a written
document which the other party admitted signing. Id. The ICA
held that the document was nonhearsay because it “was not
offered into evidence to prove the truth of its contents, but to
prove that it was made, signed by Iva, and expressed the legal
relationship of the parties.” Id. at 22, 859 P.2d at 939-40.
The existence of the document was “highly relevant because its
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legal effect [was] at issue in the case.” Id. Similarly,
Professor Bowman uses as an illustration of a nonhearsay
statement of independent legal significance a declaration by an
insured that “I hereby cancel my insurance policy.” A. Bowman,
Hawaiʻi Rules of Evidence Manual 8-7 (2016). Because these words
effect a cancellation, they are “not only evidence, but
accomplish the legal event. The words effect the cancellation
as surely as words of slander produce a tort.” Id.
Likewise here, the licensing letter was not being
introduced to prove the truth of its contents, but rather
because its legal effect (that the lab had received written
approval from the DUI coordinator licensing its instruments and
methods) was at issue in the case.6 To satisfy the Werle
shortcut for laying a proper foundation to introduce blood test
results, the State must show “that the DUI coordinator gave
written approval of the procedure and instrument used to test
[the defendant’s] blood.” Werle, 121 Hawaiʻi at 284, 218 P.3d at
772. The State introduced the licensing letter to show that the
DUI coordinator had given written approval of the enzymatic
method and the blood testing instrument used to test Villena’s
blood.
6
In seeking to admit the letter into evidence, the State described
it as “a letter, um, which from them [the State] went to Ms. Karla Perry
which purports to establish – uh, constitute a license that the City and
County of Honolulu is licensed to conduct the blood alcohol testing.”
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Accordingly, we hold that the licensing letter was
admissible as nonhearsay and conclude that the trial court did
not err in admitting the letter.7 Because we find the letter
admissible, we also conclude that the State met its burden under
the Werle shortcut to demonstrate that the State gave written
approval of the enzymatic method and Ace Alera instrument.
2. Perry’s Testimony Satisfied the Third Montalbo Factor and
Therefore the State Laid a Proper Foundation to Admit the
Results of Villena’s Blood Test Results
Having found that the State met its burden under the
Werle shortcut to satisfy the first two Montalblo factors, we
next look to the final Montalbo factor, which requires the State
to demonstrate “the proper application of the technique on the
particular occasion.” Montalbo, 73 Haw. at 136, 828 P.2d at
1279. Perry testified that she was employed as a medical
technologist with the City and County of Honolulu and was
qualified under HAR Title 11, chapter 114, which regulates blood
alcohol testing, to draw blood and perform alcohol analysis.
She testified that she was licensed by the State as both an
alcohol analyst and an alcohol testing supervisor. Perry
testified that she used the “Ace Alera” instrument manufactured
by Alpha Wasserman to conduct blood tests based on the
7
Because we conclude that the licensing letter is not hearsay, we
do not reach Villena’s asserted error that admission of the letter violated
his right to confrontation. However, this does not connote our agreement
with the ICA conclusion that, as nontestimonial hearsay, the licensing letter
was “not subject to the Confrontation Clause.”
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“enzymatic method,” the instrument and method approved by the
DUI coordinator in the licensing letter. Perry’s testimony that
she was licensed by the State and tested Villena’s blood using
the approved instrument and method satisfies the third Montalbo
requirement to demonstrate “the proper application of the
technique on the particular occasion.”
Accordingly, we conclude that the State met the burden
laid out in Werle and Montalbo to establish a foundation to
introduce Villena’s blood test results.8
IV. Conclusion
For the foregoing reasons, we affirm the ICA’s June
16, 2015 Judgment on Appeal but for the reasoning set forth
herein.
Phyllis J. Hironaka for /s/ Mark E. Recktenwald
Petitioner/Defendant-
Appellant /s/ Paula A. Nakayama
Brian R. Vincent for /s/ Sabrina S. McKenna
Respondent/Plaintiff-
Appellee /s/ Richard W. Pollack
/s/ Michael D. Wilson
8
Villena raises two additional issues in his application for
certiorari, both of which are without merit. We affirm the ICA in concluding
that Villena waived any objection regarding strict compliance with HAR § 11-
114-23(b) and (a)(3) by failing to timely object at trial.
We also affirm the ICA in concluding that the erroneous admission
of the State’s Exhibit 2 (a sworn statement by Perry providing additional
detail regarding the procedures used to test Villena’s blood) was harmless
error. Perry’s oral testimony and the licensing letter provided sufficient
foundation for the State to admit the results from Villena’s blood test.
Accordingly, any error in admitting Exhibit 2 was harmless.
21