State v. Fitzwater.Â

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IN THE SUPREME COURT OF THE STATE OF HAWAIT
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STATE OF HAWAfl,
Respondent/Plaintiff-Appellee,
VS.
€33`?;%§
ZACHARlAH I. FITZWATER,
Petitioner/Defendant-Appellant.
NO. 28584
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. lDTC-07-O20562)
MARCH 3, 2010
MOON, C.J., NAKAYAMA, DUFFY, AND RECKTENWALD, JJ.;
WITH ACOBA, J. CONCURRING SEPARATELY AND DISSENTING
OPINION OF THE COURT BY RECKTENWALD, J.
Petitioner/defendant-appellant Zachariah I. Fitzwater
was convicted of excessive speeding in violation of HawaFi
Revised Statutes (HRS) § 29lC-105(a)(l) (2007).l At Fitzwater’s
trial in the District Court of the First Circuit (district
court),2 a Honolulu police officer testified that he followed
Fitzwater’s motorcycle after he observed Fitzwater traveling at
1 HRS § 29lC-105 states in relevant part:
Excessive speeding. (a) No person shall drive a
motor vehicle at a speed exceeding:
(l) The applicable state or county speed limit
by thirty miles per hour or more[.]
2 The Honorable T. David Woo, Jr. presided.
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what appeared to be a high rate of speed. According to the
officer, the speedometer in his police vehicle indicated that
Fitzwater was traveling 70 miles per hour in an area where the
speed limit was 35 miles per hour. The officer further testified
that a “speed check” had been conducted to determine the accuracy
of the police vehicle's speedometer about five months before the
incident involving Fitzwater. Over the objection of Fitzwater's
counsel, a card purporting to document the results of that speed
check was admitted into evidence, and the officer was allowed to
testify that the results of the speed check showed that the
speedometer was accurate.
The Intermediate Court of Appeals (ICA), in a Summary
Disposition Order (SDO), concluded that the district court did
not err in admitting the speed check evidence. State v.
Fitzwater, NO. 28584, 2009 WL 1ll2602, at *l-2 (App. Apr. 27,
2009). Fitzwater then timely sought review in this courtE
This appeal requires us to resolve several issues
relating to the admission of the speed check evidence. We hold
that although the speed check was conducted with the
understanding that its results would likely be used in the
prosecution of speeding cases, the card could nevertheless
qualify as a record of regularly conducted activity (“business
record”) under Hawafi Rules of Evidence (HRE) Rule 803(b)(6),
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quoted infra. However, there was insufficient foundation to
admit the card as a business record under that rule, and there
was additionally insufficient foundation regarding the
reliability of the speed check. Finally, we reject Fitzwater’s
argument that the admission of the speed check evidence violated
his right to confrontation under the Sixth Auendment of the
United States Constitution.
Absent the speed check evidence, there was insufficient
evidence to establish the accuracy of the speedometer in the
officer's vehicle, and to support Fitzwater's conviction for
excessive speeding in violation of HRS § 29lC-105(a)(l).
Accordingly, we vacate the judgments of the ICA and the district
court. However, because there was sufficient evidence to
establish that Fitzwater was speeding in violation of HRS § 29lC-
lO2(a)(l),3 a lesser included non-criminal traffic infraction, we
remand for entry of a judgment that Fitzwater violated that
section.
I. BACKGROUND
A. Proceedings in the District Court
3 HRS § 291C~102 (2007) states in relevant part:
Noncompliance with speed limit prohibited. (a) A
person violates this section if the person drives:
(l) A motor vehicle at a speed greater than the
maximum speed limit other than provided in
section 29lC-lO5[.]
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On May 9, 2007, the State of HawaFi orally charged
Fitzwater with “driving a motor vehicle at a speed exceeding the
(indiscernible) speed or (indiscernible) speed limit [by] 30
miles per hour or more in violation of Hawaii Revised Statutes
29lC-l05(A)(l), driving 70 in a 35 mile-per-hour~zone.”
Fitzwater pleaded not guilty.
Officer Neal Ah Yat testified that around ll:20 p.m. on
the evening of January 24, 2007, he was patrolling Kamehameha
Highway near Waipio Uka Boulevard in his blue and white police
vehicle. He was parked in_a driveway “shooting laser” when four
motorcycles passed him “at an extremely high rate of speed.” He
was not able to get a laser reading on the motorcycles because
they were too small, and because there were trees in the way. Ah
Yat then attempted to catch up to the motorcycles “to pace
[them].” Three of the motorcycles sped up and took off, and Ah
Yat testified that it was too dangerous for him to attempt to
follow them. He followed the fourth motorcycle, which was being
driven by Fitzwater, maintaining a distance of approximately six
car lengths directly behind him at a speed of 70 miles per hour
for approximately two-tenths of a mile. He checked his
speedometer at least three times to confirm that he was traveling
at 70 miles per hour. As he was pacing Fitzwater, they passed a
30-mile-per-hour sign and a 35-mile~per-hour sign. Ah Yat
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stopped Fitzwater and cited him “for excessive speeding, 70 in a
35, as well as no insurance and no license.”4 When Ah Yat
informed Fitzwater why he had stopped him, Fitzwater stated that
he was “just trying to keep up” with the other motorcycles.5
Ah Yat testified a speed check was conducted on his
police vehicle by “Jack’s Speedo” in August of 2006, although he
wasn’t sure of the exact day it was done. He testified that a
speed check “calibrate[s] the actual speed of the car with the
speedometer.” He stated that the speed is calibrated so that “we
know that our speedometers are accurate, and when we pace
tvehicles at a certain speed, we know for sure that the vehicle is
going that speed.” He said speed checks are “taken care of by
the vehicle maintenance section [(VMS),]” which “take[s] the
vehicle to the shop[.]” The Deputy Prosecuting Attorney (DPA)
asked him if “the speed check [is] conducted in the regular
4course of maintaining HPD vehicles[,]” to which he responded
“[y]es." Ah Yat did not testify about how the checks are done.
He testified that they are conducted once a year, and are good
for one year. The result of a speed check is recorded “[o]n a
4 The district court granted the State's motion to dismiss the no
insurance charge, and to nolle prosequi the charge for driving without a
license. a
5 The district court denied defense counsel's request for a
voluntariness hearing on Fitzwater's statement to Ah Yat.
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card that is given and assigned to each vehicle that shows that
at whichever speed it’s tested, the vehicle is actually going
what the speedometer says it is.”
When the DPA asked Ah Yat what the result of the speed
check on his vehicle was, defense counsel objected on the ground
that the information on the speed check card was inadmissible
hearsay. The court overruled the objection based on State v.
lng, 53 Haw. 466, 497 P.2d 575 (l972). Defense counsel then
argued that Ing:
has been qualified substantially by Crawford v.
washingcon, {541 U.s. 36 (2004)], as well [as by] the
Hawaii companion case, State v. Grace, [lO7 HawaiH
l33, 111 P.3d 28 (App. 2005)], that new foundation
requirements imposed by [Crawford] and [Grace] are not
based upon any court rules and/or the Hawaii Rules of
Evidence, but are constitutional.
we argue that the (indiscernible) now requires
exclusion of any testimony or statement made by a
declarant who is not here to testify (indiscernible)
another witness, that absent (indiscernible) statement
cannot be elicited from the witness (indiscernible)
consequence unless the prosecution shows that first,
declarant is quote, unquote unavailable, and there's
no (indiscernible) cross-examine.
Although Crawford does not (indiscernible),
[Grace] adopted the test proposing Crawford by the
National Association of Defense Lawyers
(indiscernible) as testimonial (indiscernible)
pertinent question is whether an objective observer
would reasonably expect the statement to be available
for use in prosecution.
1 believe Officer Ah Yat has testified that his
speed check, they're made to pace cars so they can be
used to prosecute speeding cases and lng was decided
(indiscernible) requirements and that's our objection.
The court overruled the objection, stating that it was
“not gonna make any groundbreaking rules on that point until the
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supreme court rules on it[.]”
When the DPA again asked Ah Yat what the result of the
speed check was, defense counsel objected, arguing that the State
“did not lay appropriate foundation” for the evidence to be
admissible as a business record under HRE Rule 803(b)(6).
Defense counsel argued that because Ah Yat testified that
“Jack['s] Speedo Shop did the speed check and that somebody in
the HPD took it to [the shop] and had it checked[,]” Ah Yat was
not a qualified witness or custodian pursuant to HRE Rule
803(b)(6). The court overruled the objection.
Ah Yat then testified that “[t]he highest speed tested
[was] at 75 miles per hour [and it] show[ed] that the vehicle was
indeed going 75 miles per hour.” Ah Yat testified that this
meant that if he were pacing a vehicle and his speedometer showed
that he was traveling at 70 miles per hour, the other vehicle was
in fact traveling at 70 miles per hour.
A copy of the speed check card was admitted into
evidence over the objection of defense counsel. Ah Yat
identified the card as belonging to his vehicle because it bore
his HPD vehicle number. Ah Yat testified that it was a true and
accurate copy of the speed check that was on file with the HPD.
0n cross-examination, Ah Yat acknowledged that he had
not personally taken the vehicle to Jack's Speedo Shop in August
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2006 to have the speed check performed, but rather that a member
of the HPD’s VMS (Ah Yat did not know who) had taken it in. Ah
Yat did not talk to anyone at Jack’s Speedo about how the test
was conducted. He did not recall when he received the speed
check card, but added that “it stays with the vehicle.” Defense
counsel then asked Ah Yat about the purpose of the speed card:
[defense counsel]: . . . [Y]ou testified today that
you did these speed checks, so you know that this
speedometer in your HPD vehicle (indiscernible),
correct?
[Ah Yat]: Yes.
[defense counse1]: And also because when the
situation calls for it, you have to pace vehicles to
judge their speed, correct?
[Ah Yat]: Yes, sir.
[defense counsel]: And then when you come to court to
show, in fact, that your - - you use these speed
checks to show in court that the vehicle was acting, I
mean was calibrated correctly as far as speed?
[Ah Yat]: Yes, sir.
[defense counsel]: So, it's reasonable to state that
these speed checks are done and made available for use
in prosecuting speeding cases?
[Ah Yat]: I'm sorry, what are you asking, sir?
[defense counse1]: Sir, is it fair to say that these
speed checks for HPD vehicles, specifically [for his
assigned vehicle], . . . are done and are made so that
officers such as yourself can use them in prosecuting
speeding cases, or you use them in court?
[Ah Yat]: Oh, yes, sir, yes, sir.
In response to questions from the court, Ah Yat
testified that he had been driving his HPD vehicle “[a]lmost
every night” for approximately a year, that the speedometer
appeared to have been operating normally during that year, and
that he had never observed anything unusual about the way the
speedometer operated. After a brief re~cross-examination of Ah
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Yat, the State rested.
Defense counsel moved for judgment of acquittal,
arguing again that Crawford and grape precluded the admission of
the speed check, and that the State did not lay the proper
foundation for it to be admitted as a business record under HRE
Rule 803(b)(6). The court denied the motion, finding that “it is
a requirement, a rule of [HPD] that these automobiles get speed
checked once a year and that this is done by the maintenance
section and that its records are kept in the regular course of
business by the maintenance section, and therefore, it does
qualify as a business record.”
Fitzwater testified that the motorcycle belonged to a
friend of his. On the evening in question, the owner of the
motorcycle was intoxicated, and wanted to ride his motorcycle
home. Fitzwater stopped him from doing so, and decided to take
his friend's bike home for him. Two friends joined him on the
ride on their motorcycles. Fitzwater testified that he rode in
front of his friends for safety reasons, because he did not have
a helmet with him and they would be able to help him if he fell.
while they were riding, an unidentified driver on a sports bike
similar to the one Fitzwater was riding “flew by [them] going
about a hundred miles an hour[.]” After that driver “buzzed
[them],” a police officer pulled out and traveled behind them.
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Fitzwater testified that he didn’t “look at the speedometer
really often[,]” but estimated that he was traveling at about 50
miles per hour in a zone that changed from a 45- to a 35-mile~
per-hour speed limit. The officer then passed Fitzwater and his
two friends on the left, cut in front of them, and pulled
Fitzwater over. Fitzwater speculated that he was pulled over
because the officer confused him with the fourth motorcyclist.
He did not recall telling Officer Ah Yat that he was trying to
keep up with the other motorcyclists.
The defense again moved for a judgment of acquittal on,
the same grounds, and the court ruled in relevant part as
follows:
[T]he defense may have some argument about the
Crawford, about whether or not Crawford makes inroads
into State vs. lng and also some arguments about the
foundation. I don't really think that that case
impacts lng as much as defense counsel thinks
because[] [t]he (indiscernible) of-lng was that
devices such as speedometers are generally accurate
and they can be relied upon by the courts to indicate
speeds.
In fact, if you read carefully as the court
seems to indicate, the speed check is merely the
frosting on the cake[,] that it goes to the weight of
the evidence as to beyond a reasonable doubt and it’s
actually the officer's observation of the speedometer
that is the important event, important fact, operative
fact in the case.
The Court finds that this officer operated his
patrol car for well over a year, almost daily. He
observed the operation of the speedometer, found that
it seemed to be operating normally at all times, and
on this particular day, the Court finds that when you
take that into account that he paced the defendant at
70 miles an hour, that is a reasonably accurate
clocking and irrespective of what Jack’s Speedo Shop
may say.
Court also finds that there is this speed check
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and that the speed was, the speed of that officer's
vehicle was calibrated at both 65 miles an hour and at
75 miles an hour, both speeds found to be accurate.
The Court finds that the defendant's speed was 70
miles an hour beyond a reasonable doubt.
It appears that there are certain things the
defendant did that night that would indicate a
reckless state of mind, driving without a helmet,
driving without closed~toed shoes.
And the Court finds that that high rate of speed
of 70 in a 35 is evidence of a reckless state of mind,
which satisfies the requirement of intent in this
case. I therefore[] find that the State has proven
its case beyond a reasonable doubt. 1 find the
defendant guilty as charged.
The court entered judgment on May 9, 2007, sentencing
Fitzwater to pay a $500 fine, a $75 driver education assessment,
a $25 neurotrauma fee, and a $30 criminal injuries fund fee. The
court also ordered Fitzwater to complete a driver’s education
improvement course and to perform 36 hours of community service.
The court also suspended Fitzwater’s license for 30 days, but
permitted Fitzwater to drive to and from work and the driver’s
educational requirements imposed by the court during the second
half of the suspension. Fitzwater timely filed a notice of
appeal on June 5, 2007.
B. Proceedings in the Intermediate Court of Appeals
Fitzwater raised four issues on appeal to the ICA.
First, Fitzwater contended that the district court erred in
qualifying the speed check card as a business record, since the
card was prepared with the expectation that it would be used in
litigation. Thus, according to Fitzwater, the card fell within
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the scope of the principle recognized by the Supreme Court in
Palmer v. Hoffman, 318 U.S. 109 (1943), which held that an
accident report prepared by a railroad employee was not a
business record because it was not made in the regular course of
business. Fitzwater also argued that the district court erred in
relying on lng, since that decision was based on a statute that
had since been repealed and replaced by HRE Rule 803(b)(6).
The State responded that “nothing about the language of
H.R.E. Rule 803(b)(6) . . . makes the holding in State v. lng
inapplicable to the instant issue,” and that lng stands for the
proposition that “records of the routine and regular testing of
the speedometers on police vehicles [are] admissible not only to
prove that such tests ha[ve] been made but also as evidence of
the accuracy of the speedometers ”
Second, Fitzwater argued that even if the speed check
card was a record of a regularly conducted activity within the
meaning of HRE Rule 803(b)(6), there was insufficient foundation
for its admission. The State responded that a sufficient
foundation had been established by Ah Yat's testimony pursuant to
lng and HRE Rule 803(b)(6), since Ah Yat “explain[ed] that the
speed check card was kept in the ordinary course of HPD's
business and made at or near the time of the speeding incident
ll
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Third, Fitzwater argued that the admission of the card
violated his right to confrontation under the Sixth Amendment of
the United States Constitution and article I, section 14 of the
Hawafi Constitution. He argued that although lng had found that
admission of information contained on a speed check card did not
violate the defendant's right to confrontation, Crawford v.
Washington had effectively overruled lng and required testimony
from the person who conducted the speed check and created the
card.
In response, the State argued that unlike the
statements in State v. Grace, 107 HawaiI 133, 111 P.3d 28(2005), in which the ICA held that the statements of two
witnesses to a police officer that they saw the defendant hitting
his wife were testimonial in nature under Crawford, the
“information contained within the speed check card was specific
to the vehicle operated by Officer Ah Yat and not to any
particular individual . . . and a record of the results fof the
speed check was not] made in specific anticipation of
[Fitzwater's] trial ”
Finally, Fitzwater argued that the district court erred
in permitting improper testimony by Officer Ah Yat. Fitzwater
contended that Ah Yat gave what amounted to expert testimony
about the speed check, but was not qualified to do so, Fitzwater
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also argued that the State failed to establish sufficient
foundation to show that the speedometer had been properly
calibrated, citing State v. Wallace, 80 Hawafi 382, 910 P.2d 695(1996) and State v. Manewa, 115 HawaiH.343, 167 P.3d 336 (2007).
The State responded that the speed check evidence was admissible
pursuant to lng, and that in any event Ah Yat's testimony that he
had been driving his vehicle almost every night for a year and
that the speedometer had always appeared to be operating normally
was itself sufficient to support the conviction.
The ICA resolved those four issues as follows in its
SDO:
(1) The district court did not err by admitting the
speed check card as a business record under HRE Rule
BO3(b)(6). (2) The district court did not err in
overruling Fitzwater's objection to the foundation for
the speed check card as a business record. (3)
Admission of the speed check card was not a violation
of Fitzwater's right of confrontation. [and] (4)
we decline to consider Fitzwater's final point as he
failed to object to the testimony of Officer Ah Yat on
the ground that it was improper expert testimony. `
NO. 28584, at *l~2.
State v. Fitzwater, 2009 WL 1112602,
On May 12, 2009, the ICA entered its judgment affirming
the district court's judgment.
C. Application for writ of Certiorari
2009 application for writ of
In his August 3,
certiorari (Application), Fitzwater raised the following
questions:
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l. whether the ICA gravely erred in holding that
the speed check card qualified as a business
record.
2. whether the ICA gravely erred in holding that
the State adduced sufficient foundation to admit
the speed check card as a business record.
3. whether the ICA gravely erred in holding that
admission of the speed check card was not a
violation of Fitzwater's right of confrontation
under either the Hawaii Constitution or the
United States Constitution.
4. whether the ICA gravely erred in failing [to]
address, as a matter of plain error, that
Officer Ah Yat's testimony constituted improper
expert testimony.
The State did not file a response.
II. STANDARDS OF REVIEW
A. Application for a Writ of Certiorari
The acceptance or rejection of an application for a
writ of certiorari is discretionary. HRS § 602-59(a) (Supp.
2009). In deciding whether to accept an application, this court
reviews the decisions of the ICA for (1) grave errors of law or
of fact or (2) obvious inconsistencies in the decision of the ICA
with that of the supreme court, federal decisions, or its own
decisions and whether the magnitude of such errors or
inconsistencies dictate the need for further appeal. HRS § 602-
59(b).
B. Admissibility of Hearsay
“where admissibility of evidence is determined by
application of the hearsay rule, there can only be one correct
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result, and the appropriate standard for appellate review is the
right/wrong standard.” State v. Machado, 109 Hawafi 445, 450,
127 P.3d 941, 946 (2006) (citation omitted); State v. Jhun, 83
Hawai‘i 472, 477 & 1'1.4, 927 P.2d 1355, 1360 & 11.4 (1996)
(applying de novo review to admissibility of evidence under HRE
Rule 803(b)(8), but noting that the question of whether there was
evidence of a “lack of trustworthiness” under the rule would be
reviewed for abuse of discretion).
C. Right of Confrontation
“we answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case. Thus, we review questions of constitutional law under the
‘right/wrong’ standard.” State v. Fields, 115 HawaFi 503, 511,
168 P.3d 955, 963 (2007) (citation and ellipsis omitted).
“Violation of the constitutional right to confront
adverse witnesses is subject to the harmless beyond a reasonable
doubt standard.” State v. Balisbisana, 83 Hawafi l09, 113-14,
924 P.2d l215, 1219-20 (1996). when the court applies this
standard, “the court is required to examine the record and
determine whether there is a reasonable possibility that the
error complained of might have contributed to the conviction.”
ldg at 114, 924 P.2d at 1220 (internal quotation marks and
citation omitted).
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III. DISCUSSION
A. The circumstances of the creation of the speed check card
did not preclude its admission as a business record under
HRE Ru1e 803(b)(6)
In his Application, Fitzwater first argues that the
speed check card was inadmissible as a business record under HRE
Rule 803(b)(6) because it was created for the purposes of
litigation, citing Palmer v. Hoffman, 318 U.S. 109 (1943), and
Melendez-Diaz v. Massachusetts, __ U.S. _*, 129 S. Ct. 2527(2009). For the reasons set forth below, we reject this
argument.
HRE Rule 803(b)(6) (1993 & Supp. 2002) states in
relevant part:
Hearsay exceptions; availability of declarant
immaterial. The following are not excluded by the
hearsay rule, even though the declarant is available
as a witness:
(b). 0ther 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.
Thus, a record that is otherwise admissible under HRE
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Rule 803(b)(6) may nevertheless be inadmissible if “the sources
of information or other circumstances indicate [a] lack of
trustworthiness.” See Addison M. Bowman, Hawaii Rules of
Evidence Manual § 803-3[5][D] (2008-2009 ed.) (“internal reports
concerning events likely to generate litigation, offered by the
organization that produces them, should be subject to routine
scrutiny under rule 803(b)(6)'s untrustworthiness qualification”)
(hereinafter HRE Manual); see also 2 Kenneth S. Broun et al.,
McCormick on Evidence § 288 at 312 (6th ed. 2006) (“when records
are prepared in anticipation of litigation, they will often, but
not always, demonstrate that lack of trustworthiness.”)
(hereinafter McCormick on Evidence).
we review the district court's determination of
untrustworthiness for abuse of discretion. §§§ HRE Rule 803 cmt.
(the “preliminary determination of the trustworthiness of such
records is discretionary with the court”); McCormick on Evidence
§ 288 at 311 (trial courts have a “discretionary power” to
exclude evidence that meets the letter of the business records
exception to the hearsay rule, but “which under the circumstances
appear[] to lack the reliability that business records ordinarily
have”); gfg Qhgn, 83 Hawafi at 478 & n.4, 927 P.2d at 1361 & n.4
(noting that the question of whether there was evidence of a
“lack of trustworthiness” under HRE Rule 803(b)(8) would be
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reviewed for abuse of discretion).
The United States Supreme Court considered what
constitutes a statement made “in the regular course” of business
in Palmer. 318 U.S. at l11. The plaintiff, in his individual
capacity and as the administrator of his wife's estate, brought
several causes of action against a railroad company after he and
his wife were involved in a railroad accident. 318 U.S. at 110.
Palmer, who had been an engineer of the train involved in the
accident, died prior to trial, and the Supreme Court considered
whether his signed statement to a representative of the railroad
and state public utility commission subsequent to the accident
was admissible as a “writing or record . . . made in . . . the
regular course of such business[.]” ldg at 111 n.1. The Supreme
Court, interpreting a federal statute that allowed the admission
of business records, held that the report was not made “in the
regular course” of business and was inadmissible hearsay, stating
tl’lat:
[The report] is not a record made for the systematic
conduct of the business as a business. An accident
report may affect that business in the sense that it
affords information on which the management may act.
It is not, however, typical of entries made
systematically or as a matter of routine to record
events or occurrences, to reflect transactions with
others, or to provide internal controls.
In short, it is manifest that in this case those
reports are not for the systematic conduct of the
enterprise as a railroad business. Unlike payrolls,
accounts receivable, accounts payable, bills of lading
and the like[,] these reports are calculated for use
_19_
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essentially in the court, not in the business. Their
primary utility is in litigating, not in railroading.
lQg at ll3-l4.
Fitzwater argues that Ah Yat's agreement that “it’s
reasonable to state that these speed checks are done and made
available for use in prosecuting speeding cases” means that the
speed check card was prepared in anticipation of litigation like
the report in Palmer, and thus it should not be admissible under
HRE Rule 803(b)(6). However, the circumstances of the creation
of the speed check card here are quite different from those in
Palmer and other cases in which documents have been held
inadmissible as business records. Such documents were found to
be inadmissible because they were created in response to a
historical occurrence, and in anticipation of litigation on that
specific incident. Since they were created with the motivation
of prevailing against a particular party, their trustworthiness
was inherently questionable. _§§ Certain Underwriters at
Lloyd's, London v. Sinkovich, 232 F.3d 200, 204-05 & n.2 (4th
Cir. 2000) (accident report was not admissible as a business
record even if prepared by an outside investigator because the
primary motive for creating the report was to prepare for
litigation of this particular case, and documents prepared for
use in specific litigation are “dripping with motivations to
misrepresent”) (citation omitted); Timberlake Const. Co. v. U.S.
_2O_
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FidelitV & Guar. Co., 71 F.3d 335, 336, 342 (l0th Cir. l995)
(trial court erred in admitting letters that were sent by a party
in an insurance coverage dispute that arose after a fire at a
wal-Mart store; appeals court observes that the letters “have all
the earmarks of being motivated and generated to further [the
party’s] interest, with litigation actually not far around the
corner”); Echo Acceptance Corp. v. Household Retail Services,
lggg, 267 F.3d 1068, 1090-91 (10th Cir. 2001) (upholding the
trial court's refusal to admit business correspondence which
constituted legal “posturing” drafted by lawyers in anticipation
of litigation); Hardy v. State, 71 S.w.3d 535, 537 (Tex. App.
2002) (in a case involving theft of hydraulic pumps, the court
held that a letter from the pump manufacturer to a local district
attorney issued on request from police officers confirming that
the manufacturer had sold the pumps was not a business record
because “the document was created solely for the purpose of
prosecuting criminal charges against appellant”).
Thus, the speed check card at issue here is
distinguishable from the accident report in Palmer and the
documents discussed in the foregoing cases. while those
documents were created solely for the purposes of litigation in a
particular case, the speed check card here was not created for
use in a particular dispute. Rather, the speed check card is
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more akin to documents that reflect the results of regularly
conducted tests, which have been held to be admissible as
business or government records even if they are frequently used
in litigation. §§§ State v. Ofa, 9 Haw. App. 130, 135~36, 828
P.2d 813, 816-17 (1992) (evidence of intoxilyzer log which
reflected “testing of the Intoxilyzer for accuracy on the
specified dates constituted a record of routine, nonadversarial
matters made in a nonadversarial setting” and was therefore
admissible as a government record under HRE Rule 803(b)(8));
State v. Ali, 679 N.w.2d 359, 367 (Minn. Ct. App. 2004) (in a
speeding case, the court held that records certifying the
accuracy of the officer's laser gun qualified as business records
even though the officer testified that the certificates were
issued to police officers to use in later court proceedings
because the officer also testified “that the certification
document was created in the regular course of the department's
business to ensure that the laser is accurately measuring
speeding and meeting the manufacturer’s specifications . . . .”)
(internal quotations omitted); Bohsancurt v. Eisenberg, 129 P.3d
471, 476 (Ariz. Ct. App. 2006) (calibration and maintenance
records of breath-testing machine fell within the business
records exception “because [they] contain factual
memorializations generated by a scientific machine, and the
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records are prepared by technicians who are not proxies of police
investigators and have no demonstrable interest in whether the
certifications produce evidence that is favorable or adverse to a
particular defendant . . . .”) (internal quotations and citations
omitted).
Although Ah Yat testified that speed check cards were
created with the understanding that they would be used in
prosecuting speeding cases, the card at issue here was created in
a non-adversarial setting about five months prior to the alleged
speeding incident, and was not created for the specific purpose
of prosecuting Fitzwater. Thus, the circumstances of its-
creation did not preclude its admission as a business record
under HRE Rule 803(b)(6).
Melendez-Diaz is consistent with this analysis.
Melendez-Diaz involved a narcotics prosecution, in which the
state introduced sworn statements from laboratory analysts which
stated the weight of the substances recovered during the
investigation of the defendant and confirmed that they contained
cocaine. 129 S.Ct. at 2530-31. Citing Palmer, the Court noted
that “[d]ocuments kept in the regular course of business may
ordinarily be admitted at trial despite their hearsay status
[b]ut that is not the case if the regularly conducted
business activity is the production of evidence for use at
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trial.” ;dg at 2538. The court observed that the affidavits
would not qualify as traditional “official or business records,”
ig;, noting that the analysts had “create[d] a record for the
sole purpose of providing evidence against a defendant” and that
the records had been “prepared specifically for use at
petitioner's trial[ ]” ldg at 2539-40.
Thus, the circumstances in Melendez-Diaz were different
from those here, where the document was not created specifically
for the prosecution of Fitzwater. we therefore conclude that a
speed check card can be properly admitted into evidence as a
business record if the proper foundation is laid.
B. The State did not establish a sufficient foundation to admit
the speed check card as a business record under HRE Ru1e
803(b)(6)
At trial, Fitzwater objected to the admission of Ah
Yat’s testimony about the results of the speed check, and to the
admission of the speed check card itself. Fitzwater argued that
this evidence was hearsay, and that there was insufficient
foundation for its admission since Ah Yat was not a “qualified
witness” who could properly authenticate the card as a business
record under HRE Rule 803(b)(6). The district court admitted the
testimony and the card over Fitzwater’s objection.
In his application to this court, Fitzwater notes,
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inter alia, that Ah Yat did not take the vehicle to the shop, was
not present when the card was created, and had no personal
knowledge about the calibration testing.
In order for a record to be admissible under HRE Rule
803(b)(6), the proponent must establish a sufficient foundation.
Specifically,
[t]he proponent must establish (1) that the record
evidences “acts, events, conditions, opinions, or
diagnoses”; (2) that the record was made in the course
of a regularly conducted activity; and (3) that the
record was made “at or near the time” of the acts or
events that are recorded.
HRE Manual § 803-3[5][B]; §§§ HRE Rule.803(b)(6),
Furthermore, “[t]he record must also survive the
discretionary untrustworthiness exclusion of the rule.” §B§
Manual § 803-3[5][B].
The necessary foundation can be established “by the
testimony of the custodian or other qualified witness, or by
certification that complies with rule 902(11)[6] or a statute
6 HRE Ru1e 902(11) (i993 & supp. 200s) provides thac;
The original or a duplicate of a domestic or foreign
record of regularly conducted activity that would be
admissible under rule 803(b)(6), if accompanied by a
written declaration of its custodian or other
qualified person, certifying that the record was:
(A) Made at or near the time of the occurrence
of the matters set forth by, or from information
transmitted by, a person with knowledge of those
matters;
(B) Kept in the course of the regularly
conducted activity; and
(C) Made by the regularly conducted activity as
a regular practice.
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permitting certification . . . .” HRE Rule 803(b)(6).
Therefore, a speed check card such as the one here can be
authenticated by: (1) the testimony of the custodian of the card,
(2) testimony from a qualified witness, or (3) a certification
that complies with HRE Rule 902(11) or other statute permitting
certification. The record here does not include such a
certification, nor does the record reflect that Ah Yat was
testifying as a custodian of the speed check card. Rather, it
appears that Ah Yat's testimony was offered as the testimony of a
qualified witness in order to authenticate the speed check card.
A person can be a “qualified witness” who can
authenticate a document as a record of regularly conducted
activity under HRE Rule 803(b)(6) or its federal counterpart even
if he or she is not an employee of the business that created the
document, or has no direct, personal knowledge of how the
document was created.7 As one leading commentator has noted:
The declaration shall be signed in a matter
that, if falsely made, would subject the maker to a
criminal penalty under the laws of the state or
country where the declaration is signed.
7 Federal Rules of Evidence (FRE) Rule 803(6) provides that the
following is not excluded by the hearsay rule:
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted
business activity, and if it was the regular practice
of that business activity to make the memorandum,
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The phrase “other qualified witness” is
given a very broad interpretation. The witness need
only have enough familiarity with the record-keeping
system of the business in question to explain how the
record came into existence in the ordinary course of
business. The witness need not have personal
knowledge of the actual creation of the documents or
have personally assembled the records. In fact, the
witness need not even be an employee of the record-
keeping entity as long as the witness understands the
entity's record-keeping system.
There is no requirement that the records have
been prepared by the entity that has custody of them,
as long as they were created in the regular course of
some entity’s business.
The sufficiency of the foundation evidence
depends in part on the nature of the documents at
issue. Documents that are “standard records of the
type of regularly maintained by firms in a particular
industry may require less by way of foundation
testimony than less conventional documents proffered
for admission as business records.”
5 Joseph Mchaughlin, weinstein's Federal Evidence § 803.08[8][a]
(2d ed. 2009) (footnotes omitted).
Thus, an employee of a business that receives records
report, record or data compilation, all as shown by
the testimony of the custodian or other qualified
witness, or by certification that complies with Rule
902(11), Rule 902(l2), or a statute permitting
certification, unless the source of information or the
method or circumstances of preparation indicate lack
of trustworthiness. The term “business” as used in
this paragraph includes business, institution,
association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
There are several differences between HRE Rule 803(b)(6) and FRE
Rule 803(6). For example, the federal rule explicitly requires that the
record be created by a person with knowledge or from information transmitted
by a person with knowledge, whereas HRE Rule 803(b)(6) does not explicitly
include that requirement. Additionally, the federal rule requires that the
record be both (1) kept in the course of regularly conducted activity and (2)
made as part of the regular practice of the business activity, whereas HRE
Rule 803(b)(6) has a single requirement that the record be made in the course
of a regularly conducted activity.
Although cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules of
Evidence. Jhun, 82 Hawafi at 478, 927 P.2d at 1361.
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from another business can be a qualified witness who can
establish a sufficient foundation for their admission as records
of the receiving business under HRE Rule 803(b)(6). Courts and
commentators have articulated the necessary showing in such
circumstances in different ways. For example, another leading
commentator notes that “reliance by the organization on records
created by others, although an important part of establishing
trustworthiness, without more is not sufficient.” McCormick on
Evidence § 292 at 318. This commentator goes to add that “when
the business offering the records of another has made an
independent check of the records, has integrated them into their
own business operation in a way that establishes trustworthiness
or contains other assurances of trustworthiness, or can establish
accuracy by other means, the necessary foundation may be
established.” ;dg at 318-19.
x In Air Land Forwarders, Inc. v. United States, 172 F.3d
1338 (Fed. Cir. 1999), the United States Court of Appeals for the
Federal Circuit considered whether a document created by one
business and incorporated into the records of another can be
admitted as a business record of the incorporating business. The
documents in question were repair estimates that had been
prepared by third parties and submitted to the military by
service members whose household goods had been damaged by movers,
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and who had filed claims with the military seeking compensation
for the damage. ;gg at 1340. The trial court admitted the
repair estimates as business records of the military under FRE
Rule 803(6) . §§ at 1340-41.
On appeal, the Federal Circuit surveyed cases from
other circuits, and concluded that when an organization
incorporates records of another entity into its own records,
those records are admissible when the incorporating entity
“relied upon those records in its day-to-day operations, and
where there are other strong indicia of reliability.” lgg at
1344; see People v. Markowitz, 721 N.Y.S.2d 758, 761-62 & 762 n.2
(N.Y. Sup. Ct. 2001) (Air Land requires “that the incorporating
business rely upon the accuracy of the document incorporated, and
there are other circumstances indicating the
trustworthiness of the document”; court notes that Air Land
follows previous rulings in the First, Second, Third, Fifth,
Ninth and Eleventh Circuits). The court held that the test was
satisfied since the military incorporated the repair estimates
into its own records, relied on them in paying claims, and there
were other indicia of reliability, including the fact that
service members were subject to criminal penalties for submitting
false claims. Air Land, 172 P.3d at 1343-44.
The court in Air Land did not specifically indicate
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whether the existence of reliance by the incorporating entity and
the presence of other indicia of reliability was sufficient to
qualify an incorporated record for admission as a business record
under FRE Rule 803(6), or whether the other foundational
requirements outlined by the rule must also be satisfied.
However, other courts addressing the admissibility of records
under these circumstances have indicated that the requirements of
Rule 803(6) must still be met. See, e.g., United States v.
Childs, 5 F.3d 1328, 1333 (9th Cir. 1993) (noting that “several
circuits have held that exhibits can be admitted as business
records of an entity, even when that entity was not the maker of
those records, so long as the other requirements of Rule 803(6)
are met and the circumstances indicate the records are
trustworthy”); Bell v. State, 176 S.w.3d 90, 92-93 (Tex. App.
2004) (articulating a test similar to that in Air Land, whereby a
document prepared by one business and incorporated by another may
be admissible as a business record of the incorporating business
if: “(1) it is incorporated and kept in the course of the
testifying witnesses' business; (2) that business typically
relies upon the accuracy of the contents of the document; and (3)
the circumstances otherwise indicate the trustworthiness of the
document”; the court held that records of the incorporating
entity were admissible as business records because this test was
_3@_
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satisfied and because the witness from the incorporating business
testified that the records were “kept in the regular course of
its business, and that [they] were created at or near the time”
of the events described in them) (citing Harris v. State, 846
S.w.2d 960, 963-64 (Tex. App. 1993)); Columbia First Bank v.
United States, 58 Fed. Cl. 333, 339 (Fed. Cl. 2003) (holding that
“when a document produced by a third party is incorporated into
the business records of another entity this circuit applies [the
Air Land test] of reliability in order to admit a record that has
an otherwise appropriate foundation[,]” since the business
records “exception may be applied to documents incorporated in
the records of the parties, if the Air Land Forwarders test and
the regularity criteria [of FRE Rule 803(6)] have been
satisfied.”).
These cases represent a reasonable approach to
authenticating documents in this situation. Thus, we hold that
when an entity incorporates records prepared by another entity
into its own records, they are admissible as business records of
the incorporating entity provided that it relies on the records,
there are other indicia of reliability, and the requirements of
HRE Rule 803(b)(6) are otherwise satisfied. The requirements of
(1) reliance, and (2) indicia of reliability do not supplant the
provisions of the rule; rather, we view them as necessary in
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these circumstances to satisfy the rule's requirement that the
records were “made in the course of a regularly conducted
activity” of the incorporating entity, HRE Rule 803(b)(6); eee
HRE Manual § 803-3[5][B].
In the instant case, the record does not clearly
establish how the speed check card was produced. lt appears,
from Officer Ah Yat’s testimony, that it is HPD's practice to
have speed checks conducted on its vehicles on an annual basis.
According to Ah Yat, those checks are “taken care of” by HPD's
VMS during the regular course of maintaining HPD's vehicles., He
testified that the VMS takes these vehicles “to the shop” to
calibrate the speedometer, and “someone takes accurate records”
of the test, which are recorded on a card that is placed in the
vehicle. Ah Yat did not know how the checks are done, and did
not testify about who actually performed the test at issue other
than it “was done by Jack's Speedo.”
Ah Yat testified that State’s Exhibit 1 was an accurate
copy of the card that was in the vehicle he was driving on the
night that he cited Fitzwater. Exhibit 1 is entitled “Jack's
Speedo Shop[.]” The next line contains the notation “Honolulu,
Hawaii,” and a blank which was filled in with the handwritten
notation “8-9-06," beneath which appears the handwritten notation
“Exp 8-9-07". The card contains the printed statement “To whom
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lt May Concern: THIS IS TO CERTIFY THAT THE Speedometer of
No. was tested and found to be registering ____ Miles []
at ____ M.P.H.[,]” with spaces for a number of readings. The
card was filled in with handwritten notations identifying the
vehicle as Ford No. HPD 1040, and with varying speedometer
readings. There is a line at the bottom which appears to contain
a handwritten signature.
As the ICA noted in its SDO, Ah Yat's testimony was not
a “model of clarity.” State v. Fitzwater, No. 28584, 2009 wL
1112602, at *1. The most plausible interpretation of his
testimony is that someone at Jack's Speedo, which is apparently a
private shop, performed a test, created the card to document the
results of that test, and then gave that record to someone from
HPD’s VMS. we will assume for purposes of argument that such was
the case,B and analyze the evidence accordingly.
Ah Yat's testimony was sufficient to satisfy several of
the requirements of HRE Rule 803(b)(6) in order to admit the card
as a business record of HPD. First, the speed check card is a
“record” documenting the “act[]” or “event[]” of calibrating Ah
3 we note, however, that Ah Yat’s testimony leaves open the
possibility that someone from HPD's VMS actually performed the test using
equipment located at Jack's Speedo, and/or documented the results of the test
using Exhibit l. To the extent that such uncertainty exists in the record, it
indicates that “the sources of information or other circumstances indicate
lack of trustworthiness” concerning the authenticity of the document. HRE
Rule 803(b)(6).
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Yat’s vehicle's speedometer. HRE Rule 803(b)(6). Second, there
is sufficient evidence that the card was created “at or near the
time” of the speed check. lee Ah Yat testified that the check
was “good” for a year, and that it was performed in August 2006.
The card itself contains the handwritten notation “8-9-06,”
beneath which was written “Exp. 8-9-07”. The notations on the
card, together with Ah Yat's testimony that the check was “good”
for a year, support the inference that the speed check was
performed on or about August 9, 2006, and that the card was
created on or about that date. See River Dock & Pile, Inc. v.
O&G Indus., 595 A.2d 839, 845 (Conn. 1991) (relying on notations
on document to establish that it was created at or near the time
of the act described); white Industries v. Cessna Aircraft Co.,
611 F. Supp. 1049, 1060 (w.D. Mo. 1985) (foundation for
admissibility of document under FRE Rule 803(6) must come “from
some appropriate source-from the document itself, or from
external evidence (either direct or circumstantial or both), or
from some combination of these things”).
Finally, in order to determine whether Ah Yat's
testimony was sufficient to establish that the card was “made in
the course of a regularly conducted activity[,]” HRE Rule
803(b)(6); eee HRE Manual § 803-3[5][B], we consider whether the
State established that HPD incorporated the speed check card into
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its records and relied on it, and whether there were additional
indicia of reliability. Ah Yat's testimony was sufficient to
establish that the card was incorporated into the records of HPD.
Ah Yat was familiar with HPD’s procedures for handling speed
check cards, i.e., that the original of the card is kept in the
vehicle to which it relates. Even though Ah Yat was not the
person who actually put the card into the car, his familiarity
with the procedure is sufficient. His testimony also established
that HPD relies upon speed check cards such as the one at issue
here in its day-to-day operations in order to ensure that the
speedometers in HPD vehicles are accurate.
However, Ah Yat’s testimony did not adequately
establish that there were other indicia of reliability. Ah Yat’s
testimony did not sufficiently establish that anyone at Jack's
was under a business duty to accurately calibrate the vehicle's
speedometer and to record the results, or that there are other
reasons to conclude that the card was reliable. _fg HRE Rule
803(b)(6) cmt. (recognizing that the “hallmark of reliability” is
the “regularity and continuity which produce habits of precision,
[the] actual experience of business in relying upon [the
records], [and the] duty to make an accurate record as part of a
continuing job or occupation.”) (quoting FRE 803(6), Advisory
Committee's Note) (brackets in original).
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In determining whether records that were created by one
entity and incorporated into the records of another entity
exhibit indicia of trustworthiness and are admissible, some
courts have found it significant that the entity that created the
documents did so in connection with a contractual obligation owed
to the second entity. For example, in white Industries v. Cessna
Aircraft Co., 611 F. Supp. 1049, 1060 (w.D. Mo. 1985), the court
held that it would admit forms that had been created by retail
aircraft dealers and submitted to the defendant aircraft
manufacturer as part of their ongoing contractual relationship.
The court noted that FRE Rule 803(6) required that each party who
is involved in the creation of a business record be under a
business duty to report the information reflected on the
document, and that such a duty could be imposed on the creating
entity as part of a contractual relationship with the receiving
entity. leg at 1061 (noting that “a business entity's interest
in receiving information can be quite as easily found in a
continuing contractual requirement for the same as in a directive
to employees, as least when the receiving entity customarily uses
and relies on that information”); §§§ Markowitz, 721 N.Y.S.2d at
761 (noting, in a theft case involving the admissibility of
records of an employer which incorporated records of a bank with
whom the employer had a contractual relationship, that “a
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receiving entity”s employee may provide sufficient foundation
testimony for a record from a second entity, even though the
employee cannot relate the other entity's specific record making
practices, if the employee is well familiar with the
circumstances under which the record is prepared, if the record
is prepared on behalf of the receiving entity and in accordance
with its requirements, and if the receiver routinely relies on
such records”); Donald I.J. Kelso, C.R.E. 803(6): ADDlVinQ the
Business Records Exception to Third-Party Information, 29 Colo.
_Law. 55 (May 2000) (“[w]hen third-party information or records
have been provided as part of a business relationship between a
business and the third party, the third party’s information has
been considered admissible as a business record of the
recipient.”).
Therefore, in the instant case, the existence of a
contractual relationship between HPD and Jack's for the
performance and documentation of the tests would be a significant
factor in establishing the necessary indicia of trustworthiness.
white, 611 F. Supp. at 1060; Markowitz, 721 N.Y.S.2d at 761.
However, Ah Yat's testimony was too vague to suffice, where Ah
Yat testified that HPD vehicles are taken “to the shop” once a
year, but did not indicate that there was any contractual
relationship that would require the shop to accurately conduct
_3’7._
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and record the speed check. Thus, the State failed to establish
a sufficient foundation for the admission of the speed check card
under HRE Rule 803(b)(6), and the district court erred in
admitting the card.
The State suggested in its lCA brief that State v. lng
supports the admission of the speed check card. The defendant
there was convicted of speeding, based on a police officer's
testimony that he had paced the defendant’s vehicle using his
police car, and found it to be exceeding the speed limit by at
least 25 miles per hour. lgg, 53 Haw. at 466-67, 497 P.2d at
576. The officer testified that “the vehicle he used on that
occasion had a speedometer check for accuracy and that the
vehicle is maintained by the City and County”; and that the check
card indicated that the speedometer read about three miles per
hour fast at 55 miles per hour. ld. at 467, 497 P.2d at 576.
The card was not admitted into evidence. On appeal, the
defendant argued that the officer's testimony concerning the
results of the speed check was hearsay, and that its admission
violated his right to confrontation. lee at 467, 497 P.2d at
576-77.
with regard to the admission of the card, this court
cited to HRS § 622-5 and concluded that “[w]here regular tests
are made and the records of the tests are kept by the City and
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County or the police department the card can be introduced as an
ordinary business entry of evidence of such record indicating the
routine testing of speedometers.”9 lee at 468, 497 P.2d at 577.
we observed that the “testimony relative to the speed test bore
indicia of reliability” and that the defendant “failed to adduce
evidence bringing to issue the accuracy of the speedometer[.}”
lee we also held that the admission of the card did not violate
the defendant’s rights under the confrontation clause. lee
leg does not specifically address many of the
foundational requirements required for admission of a document
under HRE Rule 803(b)(6). lndeed, it is not clear from the
opinion whether the speed check was conducted at HPD or at a
private shop, who created the record, and whether it was created
at or about the time of the test. Thus lng has limited
9 HRS § 622-5 (1976), which was repealed in 1980, provided:
A record of an act, condition, or event, shall,
insofar as relevant, be competent evidence if the
custodian or other qualified witness testifies to its
identity and the mode of its preparation, and if it
was made in the regular course of business, at or near
the time of the act, condition, or event, and if, in
the opinion of the court or person having authority to
hear, receive and examine evidence, the sources of
information, method, and time of preparation were such
as to justify its admission.
The term “business” includes every kind of business,
profession, occupation, calling, or operation of
institutions, whether carried on for profit or not.
The commentary to HRE Rule 803 notes that section (b)(6) was based
upon HRS § 622-5 and FRE Rule 803(b) (6). HRE Rule 803 Cmt.
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precedential value in this context, and to the extent it
conflicts with the analysis set forth here, it is overruled.
Accordingly, the district court erred in concluding
that there was sufficient foundation for the admission of the
speed check card under HRE Rule 803(b)(6).
C. The admission of the card did not violate Fitzwater’s right
of confrontation under the U.S. Constitution
Fitzwater argues that even if the speed check card is
admissible as a business record under HRE Rule 803(b)(6), the
State’s failure to call the declarant whose statements are
reflected on the card to testify at trial violated his right to
confrontation under the Sixth Amendment of the United States
Constitution.” Specifically, he argues that the holding in
Melendez-Diaz compels the conclusion that the speed check card
was testimonial hearsay that was subject to the right of
confrontation. ln light of our holding that the State failed to
establish a sufficient foundation to admit the speed check card
as a business record under HRE 803(b)(6), we need not address
this argument for the purposes of this appeal. However, we
recognize the need to provide guidance on this issue in order to
m Although Fitzwater's Application and Opening Brief suggest that
the admission of the card also violated his rights under the Hawafi
Constitution, he did not provide any argument on that point and accordingly we
do not address it here. HawaFi Rules of Appellate Procedure (HRAP) Rule
28(b)(7) (“Points not argued may be deemed waived.”).
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prevent “serious judicial mistakes” in the future, Kapuwai v.
City and Countv of Honolulu, 121 HawaiH.33, 42, 211 P.3d 750,
759 (2009) (citing State v. Fields, 67 Haw. 268, 276, 686 P.2d
1379, 1386 (1984)), especially since the issue is likely to
reoccur, see State v. Mahoe, 89 Hawafi 284, 285, 972 P.2d 287,
288 (1998) (addressing an issue not necessary for the disposition
of the case “because it raises a novel issue that has the
potential to recur in future cases”); State v. Bumanglag, 63 Haw.
596, 615-16, 634 P.2d 80, 93 (1981). Accordingly, we conclude
that the admission of a speed check card for which a proper;
foundation has been established does not violate a defendant’s
Sixth Amendment rights.
The confrontation clause provides in pertinent part
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him[,]”
U.S. Const. amend. Vl, and this guarantee applies to both federal
and state prosecutions, Crawford, 541 U.S. at 42, ln Crawford,
the United States Supreme Court held that the confrontation
clause bars “admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-examination.”
lee at 53-54. Although the Court in Crawford left open the
possibility that the confrontation clause would apply to
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nontestimonial hearsay,“ the Court in Davis v. Washinqton, 547
U.S. 813, 821 (2006), subsequently held that “[i]t is the
testimonial character of the statement that separates it from
other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.”
lee at 821. Therefore, in order to determine whether the author
of a speed check card is subject to confrontation under the Sixth
Amendment, we must determine whether the card is “testimonial.””
There has been no definitive statement by the Supreme
Court regarding what is “testimonial” in nature. ln Crawford,
the defendant was charged with assault and attempted murder after
stabbing a man who had allegedly attempted to rape his wife. 541
U.S. at 38-40. The wife invoked the state marital privilege and
refused to testify, and the trial court admitted her tape-
recorded statements to the police as evidence that the stabbing
was not in self-defense, offering several reasons why the
n ln Crawford, the Court noted that it had rejected the proposition
that “we apply the Confrontation Clause only to testimonial statements,
leaving the remainder to regulation by hearsay law" in white v. lllinois, 502
U.S. 346, 352-53 (1992). 541 U.S. at 61. The Court noted that “fa]lthough
our analysis in this case casts doubt on that holding, we need not
definitively resolve whether it survives our decision today, because [the
statement at issue] is testimonial under any definition.” lee
“ Although leg holds that the admission of testimony based upon a
speed check card did not violate the confrontation clause, 53 Haw. at 468, 497
P.2d at 577, it was decided in 1972 and thus predated the restructuring of
confrontation clause jurisprudence initiated by the Supreme Court in Crawford.
Thus, it has limited if any precedential value, and to the extent it conflicts
with the analysis here, it is overruled.
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statement was trustworthy. lee at 40. The Court held that the
Confrontation Clause “applies to ‘witnesses' against the accused-
in other words, those who ‘bear testimony.’” lee at 51 (citation
omitted). “‘Testimony,' in turn, is typically ‘a solemn
declaration or affirmation made for the purpose of establishing
or proving some fact.'” lee (citation and internal brackets
omitted). The Court further held that
various formulations of this core class of
“testimonial” statements exist: “ex parte in-court
testimony or its functional equivalent-that is,
material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially,” Brief for Petitioner 23;
“extrajudicial statements . . ., contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions,” white
v. IllinOiS, 502 U.S. 346, 365, 112 S. Ct. 736, 116
L.Ed 2d 848 (1992) (Thomas, J., joined by Scalia, J.,
concurring in part and concurring in judgment);
“statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a
later trial,” Brief for National Association of
Criminal Defense Lawyers et al. as Amici Curiae 3.
These formulations all share a common nucleus and then
define the Clause’s coverage at various levels of
abstraction around it. Regardless of the precise
articulation, some statements qualify under any
definition-for example, ex parte testimony at a
preliminary hearing.
lee at 51-52.
The Court held that the wife's statements were
“testimonial under any definition,” lee at 61, but “le[ft] for
another day any effort to spell out a comprehensive definition of
‘testimonial[,]'” id. at 68.
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ln Davis, the Court examined whether statements made to
police in two separate cases were testimonial and therefore
subject to confrontation under Crawford. ln the first case, the
trial court admitted a recording of a 911 call by a woman
reporting an incident of domestic abuse as it was happening, and
her responses to the operator's questions about the circumstances
of the incident. 547 U.S. at 817-19. ln the second case, the
trial court admitted a “battery affidavit” signed by a woman in
the presence of police subsequent to an incident of alleged
domestic abuse. lee at 820. The Court found that both
statements were made in response to police interrogation. lee at
823. The Court compared the interrogation in the first case to
that in Crawford, and found that “[t]he difference . . . [between
the two] is apparent on the face of things. ln [the first case],
[the woman making the 911 call] was speaking about things ee_§hey
were actually happening, rather than describing past events,” lee
at 827 (emphasis in original; citation and internal quotations
and brackets omitted). The caller “simply was not acting as a
witness; she was not testifying. what she said was not ‘a weaker
substitute for live testimony’ at trial[.]” lee at 828 (emphasis
in original; citation omitted). ln contrast, the circumstances
of the second interrogation constituted “an investigation into
possibly criminal past conduct[,]” where the police officer was
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“not seeking to determine (as in [the first case]) ‘what is
happening,' but rather ‘what happened.'” ld. at 829-30. The
Court again declined to define precisely what is “testimonial” in
nature, holding as follows:
without attempting to produce an exhaustive
classification of all conceivable statements-or even
all conceivable statements in response to police
interrogation-as either testimonial or nontestimonial,
it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in
the course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past
events potentially relevant to later criminal
prosecution.
ld. at 822.H
The Court recently revisited the issue of what
constitutes a “testimonial” statement in Melendez-Diaz. There,
Massachusetts police received a tip that a K-mart employee was
” ln State v. Grace, 107 HawaFi l33, 111 P.3d 28 (App. 2005), the
lCA considered what kinds of statements are “testimonial” in nature under the
Sixth Amendment. ln Grace, two girls witnessed an alleged incident of
domestic violence and were interviewed by police at the scene. lee at 136,
111 P.3d at 31. The lCA adopted the test promulgated by the National
Association for Criminal Defense Lawyers (NACDL), identified by Crawford as
one of "[v]arious formulations of this core class of ‘testimonial'
statements[,]" eee 541 U.S. at 51-52, and held that the girls' statements were
testimonial because they were “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial,” 107 Hawafi at 143, 111 P.3d at 38 (citation
omitted).
ln light of our holding below that the speed check card is not
testimonial because it was prepared in the course of regular equipment
maintenance, we do not need to decide whether the lCA was correct in adopting
the broader NACDL test in Grace.
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engaging in suspicious activity. 129 S.Ct. at 2530. The
officers set up surveillance in the K-mart parking 1ot, and
observed the defendant repeatedly received calls at work, after
which he would be picked up at the front of the store in a blue
sedan and return a short time later. lee The officers detained
and searched the employee, finding four clear white plastic bags
containing a substance resembling cocaine. lee The officers
then arrested the two men in the sedan, one of whom was Melendez-
Diaz. lee The officers then placed all three men in a police
cruiser. lee After noticing the three men fidgeting and making
furtive gestures en route to the station, the police searched the
cruiser and found a plastic bag containing 19 smaller bags hidden
in the vehicle. lee
Melendez-Diaz was charged with distributing and
trafficking cocaine. lee At trial, the prosecution introduced
into evidence all of the bags seized, as well as three
“certificates of analysis” showing the results of the tests
performed on the seized substances by a state laboratory. lee at
2531. The certificates were sworn to before a notary public by
analysts at the laboratory, and stated the weight of the seized
substance and that it contained cocaine. lee Melendez-Diaz
objected to the admission of the certificates on the grounds that
Crawford required that the analysts testify in person. ld. The
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objection was overruled, and Melendez-Diaz was found guilty. ld.
The Appeals Court of Massachusetts rejected his appeal, holding
that pursuant to state law, the authors of certificates of
forensic analysis were not subject to confrontation under the
Sixth Amendment. lee
The Supreme Court reversed, holding that the
certificates fell within the “core class of testimonial
statements” described in Crawford. lee at 2532, 2542. The Court
found that the certificates were “quite plainly affidavits[,]”
and that the description in Crawford of “core” testimonial
statements “mentions affidavits twice.” ld. at 2532 (citing
white v. lllinois, 502 U.S. 346, 365 (1992)) (Thomas, J.,
concurring in part and concurring in judgment) (“[T]he
Confrontation Clause is implicated by extrajudicial statements
only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions.”). The Court stated that “[t]he ‘certificates' are
functionally identical to live, in-court testimony, doing
‘precisely what a witness does on direct examination.'” lee
(citing Davis, 547 U.S. at 830) (emphasis omitted). Furthermore,
“not only were the affidavits ‘made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial,' Crawford,
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[541 U.S] at 52, [], but under Massachusetts law the sole purpose
of the affidavits was to provide ‘prima facie evidence of the
composition, quality, and the net weight’ of the analyzed
substance,” lee at 2532 (citing Mass Gen. Laws, ch. 111, § 13;
emphasis in original). The court rejected the argument that the
analysts were not subject to confrontation because they were not
“accusatory” witnesses, holding that “they certainly provided
testimony against petitioner, proving one fact necessary for his
conviction-that the substance he possessed was cocaine.” ld. at
2533 (emphasis in original).
ln response to concerns expressed by dissenting
justices, the Court noted:
Contrary to the dissent's suggestion, we do not ho1d,
and it is not the case, that anyone whose testimony
may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing
device, must appear in person as part of the
prosecution's case. while the dissent is correct that
‘[i]t is the obligation of the prosecution to
establish the chain of custody,' this does not mean
that everyone who laid hands on the evidence must be
called. . . . Additionally, documents prepared in the
regular course of eguipment maintenance may well
gualify as nontestimonial records.
ld. at 2532 n. 1 (internal citations omitted) (emphasis added).“
Justice Thomas concurred in the judgment, and wrote
“ The Court also noted elsewhere in the opinion that "[b]usiness and
public records are generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because--having been
created for the administration of an entity's affairs and not for the purpose
of establishing or proving some fact at trial--they are not testimonial."
Melendez-Diaz, 129 S.Ct. at 2539-40.
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separately. He reiterated the majority's citation to his
concurrence in white, noting that “l continue to adhere to my
position that ‘the Confrontation Clause is implicated by
extrajudicial statements only insofar as they are contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.'” ld. at 2543
(citing white, 502 U.S. at 365) (Thomas, J. concurring in part
and concurring in judgment). Thomas stated that he “join[ed] the
Court's opinion in this case because the documents at issue in
this case ‘are quite plainly affidavits,' ee;e, at 2532. As
such, they ‘fall within the core class of testimonial statements'
governed by the Confrontation Clause[.]” lee
As noted above, the Court in Melendez-Diaz observed
that “documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records.” 129
S.Ct. at 2532 n.1. The speed check card at issue here was
created in a non-adversarial setting in the regular course of
maintaining Ah Yat's police vehicle, five months prior to the
alleged speeding incident. Accordingly, it is nontestimonial in
nature. See U.S. v. Forstell, 656 F. Supp. 2d 578, 579-82 (E.D.
Va. 2009) (where the defendant was charged with speeding, driving
under the influence, and driving while intoxicated, the court
concluded that certificates that a speed radar device, tuning
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fork, and lntoxilyzer were tested for accuracy and functioning
properly were nontestimonial and not subject to the Confrontation
Clause under Melendez-Diaz); U.S. v. Gitarts, 341 Fed. Appx. 935,
940 n.2 (4th Cir. 2009) (unpublished disposition, citable
pursuant to Federal Rules of Appellate Procedure Rule 32.1)
(concluding that “Melendez-Diaz explicitly reaffirms Crawford's
holding that traditional business records are not testimonial
evidence”).
Accordingly, Fitzwater’s right to confrontation under
the Sixth Amendment was not violated by the admission of the
speed check evidence.
D. The State failed to establish sufficient foundation for the
reliability of the speed check
ln his opening brief at the lCA, Fitzwater argued,
inter alia, that Ah Yat provided expert testimony despite not
being qualified to do so, and that the State failed to establish
a sufficient foundation to show that the speedometer had been
properly calibrated under the principles set forth in State v.
wallace and State v. Manewa. The State responded in its
answering brief that State v. lng supported the admission of Ah
Yat's testimony about the contents of the speed check card, and
that in any event, there was sufficient evidence to support
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Fitzwater's conviction independent of the speed check evidence.”
ln its SDO, the lCA sua sponte found that Fitzwater had
failed to adequately preserve these arguments, and accordingly
declined to address them. State v. Fitzwater, No. 28584, 2009 wL
1112602, at *2. However, we conclude that the lCA erred in
declining to address Fitzwater's arguments. Fitzwater objected
in the district court that Ah Yat’s testimony was based on
inadmissible hearsay and that there was insufficient foundation
for the admission of the speed check card. viewed in context,
these objections were sufficient to preserve the issue of whether
the speed check card satisfied the foundational requirements
described in wallace and Manewa. _ee HRE Rule 103(a)(1) (when a
party disputes the admissibility of evidence, the party must
timely object “stating the specific ground of objection, if the
specific ground was not apparent from the context[.]”). lt was
apparent that Fitzwater was objecting to a lack of foundation to
show that the speedometer had been properly calibrated and was
therefore accurate. His objections were made in response to the
State asking Ah Yat to describe the results of the speed check,
essentially asking Ah Yat to testify that the results showed that
the speedometer was accurate at various speeds. See, e.g. State
15 we address the latter argument in section lll-E below,
._51_
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v. LOng, 98 HaWafi 348, 353-355, 48 P.3d 595, 600-602 (2002)
(defense counsel objected that there was “insufficient
foundation” for an HPD criminalist's testimony that the substance
which the defendant was charged with possessing was cocaine based
upon her testing of the substance using the appropriate device;
objection was sufficient to preserve the issue of whether or not
the State established a sufficient foundation as to the accuracy
of the device because “the basis for [the defendant’s]
foundational objection should have been obvious to the court”);
Wallace, 80 HawaFi at 408, 411 n.26, 910 P.2d at 721, 724 n.26
(defendant objected to forensic chemist's testimony regarding the
net weight of the cocaine as indicated by the analytic scale,
arguing “it’s hearsay as to the fact that he’s using a scale. we
don't know if the scale is accurate . . . .”; this court
recognized that although defendant’s objection was made on
“hearsay” grounds, given the context of his explanation for the
objection, “it was ‘apparent’ to the circuit court that the
objection was really one of lack of proper foundation”).
Moreover, the district court appeared to understand the nature of
Fitzwater's objections when it responded by citing to leg, in
which this court indicated that the officer's “testimony relative
to the speed check bore indicia of reliability.” 53 Haw. at 468,
497 P.2d at 577, Therefore, Fitzwater sufficiently gave the
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“trial court . . . an opportunity to fully understand the
objection and, thus, to appropriately rule on it.” Long, 98
HawaFi at 352, 48 P.3d at 599 (citations omitted).
Thus, we will address the merits of Fitzwater’s
arguments. we conclude that the district court erred in
admitting the speed check card without the necessary foundational
evidence regarding the reliability of the calibration testing as
required by wallace and Manewa.
The record does not indicate exactly what kind of test
was performed at Jack's Speedo Shop, although it is fair to infer
that the test required some specialized training and/or expertise
to perform. Officer Ah Yat did not indicate that he had any such
training or expertise; instead, his testimony was quite clearly
based solely on the contents of the speed check card.
ln wallace, we considered the admissibility of test
results relating to the weight of narcotics. The State offered
testimony from a Naval lnvestigative Service chemist concerning
the results he obtained using an electronic balance to weigh
cocaine. The chemist testified that the balance was calibrated
annually by the manufacturer’s service representative, and he
“assume[d] [the representative was] qualified to service and
calibrate the balance.” 80 HawaFi at 408, 910 P.2d at 721.
However, we held that:
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[The chemist] lacked personal knowledge that the
balance had been correctly calibrated and merely
assumed that the manufacturer’s service representative
had done so. The service representative did not
testify at trial regarding his calibration of the
balance, nor did the prosecution, through a custodian
of records, offer any business record of the
manufacturer reflecting proper calibration of the
balance. There being no reliable evidence showing
that the balance was “in proper working order,” the
prosecution failed to lay “a sound factual foundation”
that the net weight of the cocaine measured by the
balance was accurate. Therefore, because inadequate
foundation was laid to show that the weight measured
by the balance could “be relied on as a substantive
fact,” [the chemist’s] assumption that the balance was
accurate was based on inadmissible hearsay.
Accordingly, we hold that the circuit court clearly
abused its discretion in admitting [the chemist's]
testimony regarding the net weight of the cocaine.
lee at 412, P.2d at 725 (citations omitted).“
ln Manewa, the State offered testimony from an HPD:
criminalist concerning the results he obtained using an
analytical balance to weigh methamphetamine. 115 Hawafi at 345-
46, 167 P.3d at 338-39. The criminalist testified that he did
not know how to calibrate or service the balance himself,
although a manufacturer representative “checks out and services
the balance two times a year” and fills out a form indicating
w we noted in a footnote that:
wallace concedes in his brief that “[a] document
provided by the calibrating agency showing the name of
the person calibrating the [balance], that he was
qualified, [and] that {the balance] was calibrated on
a certain date may well have fallen under the hearsay
exception[s] [relating to] business records, but this
was not [offered into evidence]. §ee [HRE] 803(b)(6)
or 803(b)(8).”
ld. at 412 n.28, 910 P.2d at 725 n-28 (citation omitted; brackets in
original).
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that the balance is in proper working condition. lee at 346,
355, 167 P.3d at 339, 348. The manufacturer’s representative was
not called as a witness by the State, and “[m]oreover, as in
wallace, [the State] did not offer any business records of the
manufacturer indicating a correct calibration of the balance ”
Id. at 355, 167 P.3d at 348.
The criminalist also testified that “l have my own
personal balance which l verify and validate once a month and we
so record it.” lee at 346, 167 P.3d at 339, However, this court
noted that there was “confusion” in the record regarding whether
that balance was involved in weighing the samples, and further
concluded that the chemist's testimony did not establish that he
had followed the “manufacturer's established procedure” for
calibrating the balance. lee at 356-57 & n. 13, 167 P.3d at 349-
50 & n.13.
Accordingly, we held that the testimony of the
criminalist regarding the weight of the substance was not
properly admitted.“
“ This court recently applied the reasoning of wallace and Manewa in
State v. Assaye, 121 HawaFi 204, 216 P.3d 1227 (2009), in which the defendant
was charged with excessive speeding in violation of HRS § 291C-105(a) after
being pulled over by an HPD officer who used a laser gun to measure the
defendant’s speed. lee at 205, 216 P.3d at 1228. At trial, the officer
testified that he was certified to use the laser gun and had also been
instructed how to test and operate it. lee at 205-06, 216 P.3d at 1228-29.
when asked about the results of the tests he had conducted on the laser gun
prior to his shift, defense counsel objected as to lack of foundation. lee at
206, 216 P.3d at 1229. The trial court overruled the objection and admitted
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wallace and Manewa thus described the foundational
requirements that must be met before results of the calibration
of scales used to weigh narcotics can “be relied on as a
substantive fact.” wallace, 80 HawaFi at 412, 910 P.2d at 725
(citations and internal quotation marks omitted). ln State v.
Assave, 121 Hawafi 204, 216 P.3d 1227 (2009), we recognized that
similar requirements applied in the context of admitting evidence
about the calibration of laser guns used to measure speed. lee
at 212, 216 P.3d at 1235 (characterizing the admission of
evidence relating to testing of a laser gun which omitted any
reference to whether the tests “were procedures recommended by
the officer's testimony. lee at 207, 216 P.3d at 1230.
This court held that the officer's testimony did not provide a
sufficient foundation for the laser gun's speed reading to be admitted as a
“substantive fact.” lee at 212-14, 216 P.3d at 1235-37. Specifically, this
court held that the prosecution did not meet its burden of “prov[ing] that the
laser gun's accuracy was tested according to procedures recommended by the
manufacturer,” lee at 215, 216 P.3d at 1238, because
[a]lthough [the officer] testified that he was
“certified” to use the laser gun . . . and he was
“instructed in the testing and operating of the
device,” the prosecution does not point to anywhere in
the record to indicate that the four tests that [the
officer] testified to conducting were recommended
procedures by the manufacturer for the purpose of
showing that the laser gun was in fact operating
properly on [the day the defendant was cited].
lee at 213, 216 P.3d at l236.
Furthermore, this court held that “the same burden of proof is
applied to the issue of whether the officer is qualified by training and
experience to operate the particular laser gun; namely, whether the nature and
extent of an officer's training in the operation of a laser gun meets the
requirements indicated by the manufacturer ” lee at 215, 216 P.3d at 1238.
The prosecution failed to satisfy this burden because it failed to show
whether the training the officer received met the requirements of the
manufacturer of the laser gun. lee at 216, 216 P.3d at 1239.
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the manufacturer” as “obviously inconsistent with this court's
decision in Manewa”). Based on the record before us, we see no
reason to apply different foundational requirements in the
context of speed checks, since the underlying concerns about the
reliability of the testing appear to be similar. To the extent
that leg suggests that the results of speed checks are admissible
because they inherently “bore indicia of reliability” without any
mention of these foundational requirements being satisfied, 53
Haw. at 468, 497 P.2d at 577, it is overruled.
Thus, in order for the results of speed checks to be
admissible, the State must establish: (1) 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. §ee Assaye, 121 HawaFi at 212-14, 216
P.3d at 1235-37; wallace, 80 Hawaid at 412 n.28, 910 P.2d at 725
n.28; Manewa, 115 Hawafi at 355-57, 167 P.3d at 348-50. The
State may provide this information through in-court testimony or
through a properly authenticated business record pursuant to HRE
Rule 803(b)(6). §ee wallace, 80 Hawafi at 412 n.28, 910 P.2d at
725 n.28 (recognizing that the required foundation could be
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established by “[a] document provided by the calibrating
agenCY”); Manewa, 115 Hawaii at 355, 167 P.3d at 348
(“[m]oreover, as in wallace, [the State] did not offer any
business records of the manufacturer indicating a correct
calibration of the balance”). As noted in section lll-B above,
HRE Rule 803(b)(6) provides that a business record may be
authenticated by the testimony of either the custodian of the
record or a qualified witness, or by certification in accordance
with HRE Rule 902(11) or a statute permitting certification.
The required information was missing from the record
here. lt was not established by Ah Yat in his testimony. Nor
was it established by the speed check card. As discussed in
section lll-B, the speed check card was not authenticated and
was, therefore, inadmissible as a business record pursuant to HRE
Rule 803(b)(6). As a result, “inadequate foundation was laid to
show” that the speed check “could ‘be relied on as a substantive
fact[,]'” wallace, 80 HawaFi at 412, 910 P.2d at 725 (citations
omitted), and the district court erred in admitting the speed
check evidence.”
m At oral argument, the State suggested that if this court concludes
that there was insufficient foundation to admit the speed check evidence, this
court should apply any new requirements set forth in this opinion
prospectively pursuant to State v. lkezawa, 75 Haw. 2l0, 857 P.2d 593 (1993).
MP3: Oral Argument, Hawafi Supreme Court, at O1:08 (Nov. 5, 2009), available
ee http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc28584.html.
we need not address this argument because it was not previously raised by the
State in these proceedings, but was instead raised for the first time on
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E. Absent the speed check evidence, there was insufficient
evidence to support the district court's judgment
As noted above, the district court relied on alternate
grounds in finding that Fitzwater's “speed was 70 miles an hour
beyond a reasonable doubt.” ln addition to the speed check
evidence, which we have concluded was improperly admitted, the
district court held that Ah Yat’s testimony that he had been
operating his vehicle almost daily for over a year and observed
that his speedometer seemed to be operating normally at all times
provided an independent basis for concluding that Fitzwater had
exceeded the speed limit by 35 miles per hour. Similarly, in its
_Answering Brief to the lCA, the State argued that this testimony
by Ah Yat was sufficient “to establish that the speedometer of
the police vehicle was accurately operational on the date of the
offense . . . .”
“HRS § 701-114(1)(a) and (b) (1993) requires proof
beyond a reasonable doubt of each element of the offense . . . .”
Assaye, 121 HawaiH at 216, 216 P.3d at 1239 (quoting Manewa, 115
Hawafi at 357-58, 167 P.3d at 350-51). To prove that Fitzwater
appeal at oral argument. Zane v. Libertv Mut. Fire lns. Co., 115 HawaFi 60,
76 n 16, 165 P.3d 961, 977 n.16 (2007); Hana Ranch, lnc. v. Kaholo, 2 Haw.
App. 329, 332, 632 P.2d 293, 295 (1981). ln any event, “the question of
prospective application [only] arises when this court announces a new rule.”
State v. Jess, 117 Hawai‘i 381, 400, 184 P.3d 133, 152 (2008),' ee_e_ lkezawa, 75
Haw. at 220, 857 P.2d at 597 (“judicial decisions are assumed to apply
retroactively”). we are not announcing a new rule in this case, but are
instead applying the established precedent of Manewa and wallace¢
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was speeding excessively in violation of HRS § 291C-105, the
State must prove beyond a reasonable doubt that Fitzwater was
driving at a speed exceeding the speed limit by 30 miles per hour
or more. lee Ah Yat testified that Fitzwater was traveling 70
miles per hour in a 35 mile per hour zone, which was 5 miles per
hour greater than the threshold established by HRS § 291C-105.
Other than Ah Yat's testimony that his speedometer appeared to
have been operating normally throughout the previous year, there
was no other admissible evidence to establish that Ah Yat's
speedometer was accurate and in proper working order. Thus, we
must decide whether Ah Yat's testimony alone was sufficient to
establish beyond a reasonable doubt that the speedometer on his
police vehicle was accurate to within 5 miles per hour on the
night of the offense. we conclude that it was not, given the
relatively small margin of error of 5 miles per hour.”
Accordingly, there was insufficient evidence in the
record to sustain Fitzwater’s conviction under HRS § 291C-105,
and the conviction must be vacated. f. Assaye, 121 HawaFi at
” At oral argument, the State represented that speed checks have
shown that speedometers are typically accurate to within “a couple miles per
hour.” §ee MP3: Oral Argument, Hawafi Supreme Court, at O1:O2 to 01:03
(Nov, 5, 2009), available at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc28584.html.
However, defense counsel represented that there have been cases in which
speedometers were shown to be inaccurate by as much as 8 miles per hour. §ee
lee at 01:1O to 01:11. These representations are not part of the record, and
the record itself is silent with regard to the general accuracy of
,speedometers in police vehicles.
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216, 216 P.3d at 1239. However, there was sufficient evidence to
establish that Fitzwater was driving his vehicle “at a speed
greater than the maximum speed limit” in violation of HRS § 291C-
102(a)(1), based on Fitzwater’s admission during his testimony
that he was driving in excess of the speed limit, as well as Ah
Yat's testimony. See State v. Simpson, 64 Haw. 363, 370, 641
P.2d 320, 325 (1982) (“Under the ‘waiver doctrine' appellate
courts will review the sufficiency of the evidence in light of
all the evidence presented in the record.”); State v. Pudiquet,
82 HaWai‘i 4l9, 423-425, 922 P.2d 1032, 1036-1038 (App. l996)
(considering the entire record, including the defendant’s
testimony, in assessing the sufficiency of the evidence); §tete
V. GOmeS, 117 Hawafi 218, 224, 177 P.3d 928, 934 (2008)
(concluding that because the defendant “put on evidence after
moving for a judgment of acquittal at the end of [the State's]
case, he waived any error in the denial” of this motion).
Accordingly, we remand for entry of a judgment that Fitzwater
violated HRS § 291C-102(a)(1), in accordance with the applicable
statutes governing non-criminal traffic infractions. gee §tete
v. Line, 121 HawaFi 74, 90, 214 P.3d 613, 629 (2009) (“lt is
established that ‘if an appellate court determines that the
evidence presented at trial was insufficient to support a
conviction of a greater offense but sufficient to support a
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conviction of a lesser included offense, the court may remand for
entry of judgment of conviction on the lesser included
offense[.]'”) (citation omitted).
IV. CONCLUSION
Accordingly, we conclude that the speed check evidence
should not have been admitted under HRE Rule 803(b)(6), and that,
absent that evidence, there was insufficient evidence to support
Fitzwater’s conviction for excessive speeding. we therefore
vacate the May 12, 2009 judgment of the lntermediate Court of
Appeals, and the May 9, 2007 judgment of the District Court of
the First Circuit, and remand for further proceedings consistent
Ronette Kawakami and
Summer Kupau, Deputy fdhn4n Ll“T¥hMDuZaJre~
Public Defenders
(John M. Tonaki, Public
Defender, and Taryn R. Q锓-€‘£h&&‘%"
Tomasa, Deputy Public
with this opinion.
Defender, with them on /€Wj&¢P{; é;l /2§¢{§¢f§;;____§_//
the briefs) for petitioner/
defendant-appellant
Stephen K. Tsushima and
and Brian Vincent, Deputy
Prosecuting Attorneys
(Peter B. Carlisle,
Prosecuting Attorney,
with them on the brief)
for respondent/
plaintiff-appellee
_62_