State v. Abrigo.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-JUN-2019
11:06 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
NINO ABRIGO,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-01924)
JUNE 28, 2019
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
An exception to the evidentiary rule against hearsay
typically allows public records to be admitted into evidence to
prove the truth of their contents, as such documents are
generally presumed to be accurate and reliable. The rule
contains two exclusions, however, that collectively prohibit
using the public record exception to admit observational and
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investigative police reports against defendants in criminal
cases. These exclusions ensure that law enforcement personnel
testify in person when the contents of their police reports are
sought to be admitted as evidence in a trial, thereby allowing
the defendant an opportunity to confront and cross-examine
police officers regarding statements in their reports.
However, another hearsay exception in our evidentiary
rules permits the previously recorded recollections of a witness
to be read into evidence when the witness is unable to
sufficiently recall the subject matter of the statements to
testify fully and accurately at trial. Applied literally, this
second exception would appear to provide a path to circumvent
the prohibition on the use of observational and investigative
police reports against defendants in criminal cases. This path
of circumvention oddly would only occur when the law enforcement
official who prepared or signed-off on the report testifies to
insufficient recollection of the events underlying the report to
be subject to meaningful cross-examination. Such a situation
occurred in this case, resulting in the defendant being
convicted on the sole basis of a police report authored by a law
enforcement officer who testified at trial that he could no
longer remember the material facts underlying the defendant’s
arrest.
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We now hold that records excluded by the public
records exception cannot be read into evidence based on an
alternative evidentiary ground. This is to say that litigants
may not utilize another hearsay exception as a back door to
bypass the restrictions contained in the public records hearsay
exception. Accordingly, we vacate the defendant’s conviction
and remand the case for further proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
A. Trial
On May 26, 2016, the State filed a criminal complaint
against Nino Abrigo in the Hawai‘i District Court of the First
Circuit (district court), charging him with operating a vehicle
under the influence of an intoxicant (OVUII) in violation of
Hawaii Revised Statutes (HRS) § 291E-61(a)(1).1 Abrigo pleaded
not guilty, and a bench trial commenced on August 1, 2016.2
The only witness called by the State was Officer Aaron
Ostachuk of the Honolulu Police Department. Due to a series of
1
HRS § 291E-61(a)(1) (2007) provides as follows:
A person commits the offense of operating a vehicle under
the influence of an intoxicant if the person operates or
assumes actual physical control of a vehicle: (1) While
under the influence of alcohol in an amount sufficient to
impair the person’s normal mental faculties or ability to
care for the person and guard against casualty[.]
2
The Honorable James H. Ashford presided.
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continuances, Officer Ostachuk’s testimony was delivered on
three separate days over the course of five months.
1. August 1, 2016
On the first day that he testified, Officer Ostachuk
related that he first encountered Abrigo at approximately 3:00
a.m. on May 15, 2016, while on traffic patrol in the Dillingham-
Kalihi area of the island of Oahu. The officer stated that he
saw the vehicle driven by Abrigo commit two traffic violations;
first, the vehicle drifted across the broken white lines that
separated its lane from other lanes going the same direction,
then the vehicle swerved back to straddle the solid yellow lines
separating the lane from oncoming traffic. Officer Ostachuk
testified that he initiated a traffic stop of the vehicle based
on these infractions.
When he approached the driver-side window, Officer
Ostachuk stated, he noticed that Abrigo’s eyes were “red,
watery, and glassy” and the smell of alcohol was emanating from
inside the vehicle. Abrigo complied with his request to exit
the vehicle, the officer explained, and agreed to take the
standard field sobriety test (SFST).3
3
The parties stipulated that
Officer Ostachuk was trained and qualified pursuant to the
standards of National Highway Traffic Safety
Administration, also known as NHTSA, as well as Honolulu
Police Department, also known as HPD, to administer and
(continued . . .)
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Officer Ostachuk testified that Abrigo followed his
instructions during the first part of the SFST, the horizontal
gaze nystagmus test (HGN). Officer Ostachuk explained that
after he administered the HGN, he placed Abrigo in the starting
position for the “walk-and-turn” test--the second part of the
SFST--and explained the instructions, telling Abrigo not to
start walking until he was told to begin.4 While the officer was
relating the instructions, he testified, Abrigo began to sway
from side to side. Abrigo also started to walk before being
told to do so, the officer stated. Although Abrigo complied
when he was told to begin walking, the officer said, he
exhibited several clues of intoxication: he stopped three times,
he missed seven heel-to-toe steps, he raised his arms four
times, and he did not take the correct number of steps.
Additionally, Officer Ostachuk stated that Abrigo stepped to the
side seven times, then clarified that because “there [was] no
(. . . continued)
evaluate the standardized field sobriety test, which is
comprised of three different exercises, being the
horizontal gaze nystagmus, also called HGN, the walk-and-
turn, and the one-leg stand, but that the officer would not
testify as to whether any nystagmus was observed when the
HGN test was administered, and that the officer would not
give an expert opinion as to whether the defendant passed
or failed any portion or the entirety of the standardized
field sobriety test.
4
Officer Ostachuk testified that he instructed Abrigo to walk nine
“heel to toe” steps in a straight line with his arms at his side, then turn
around and walk nine steps back--all without stopping.
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straight line . . . long enough to use” at the location where he
administered the SFST, he based this assessment on Abrigo’s
failure to “step[] one foot in front of another in a straight
line.”
When Abrigo reached the “turn” part of the test, he
was able to execute it, Officer Ostachuk testified. But when
asked to describe Abrigo’s turn, the officer said, “I do not
recall. It was[] nothing out of the ordinary or I would note it
down.” Shortly thereafter, the trial was continued because it
was late in the day. Although the transcript indicates trial
was initially scheduled to continue on October 19, 2016,
proceedings did not recommence until December 15, 2016, for
reasons undisclosed in the record.
2. December 15, 2016
When the State resumed its direct examination of
Officer Ostachuk on December 15, 2016, the officer stated that
Abrigo was off-balance when completing the turn portion of the
walk-and-turn test because “[h]e had his knees slightly bent.”
He explained that he interprets a person bending their knees as
indicating “that they can’t keep themselves upright in an up--in
the standing position, and they use that bending in order to
regain themselves.” Officer Ostachuk then testified that he
explained the instructions for the “one-legged stand” test, the
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third part of the SFST, and administered it.5 He described
several clues of intoxication that he said Abrigo exhibited
during this test, including swaying, raising his arms, hopping
after losing his balance, and putting his foot down.
On cross-examination, defense counsel questioned
Officer Ostachuk about his memory of Abrigo’s traffic
violations, and the officer testified that he could not remember
the specific details. Specifically, he stated that he could not
remember how far or for how long Abrigo crossed over the broken
white line or straddled the solid yellow line. Officer Ostachuk
also testified that he could not remember his exact reason for
pulling Abrigo over without looking at the report that he
created that documented his interaction with Abrigo.6
When asked whether he “independently remember[ed]
giving [Abrigo] the instructions” to the SFST, Officer Ostachuk
answered, “[I]t’s not something off the top of my head I
remember specifically, . . . I just remember these--this is what
I instruct people to do.” The defense then asked Officer
Ostachuk if he remembered “why [he] checked off the box
5
Officer Ostachuk testified that he instructed Abrigo to keep his
arms at his side, keep his feet together, raise one leg six inches above the
ground, and count to thirty.
6
The record does not contain the document referenced in Officer
Ostachuk’s testimony. Defense counsel referred to the document as a
“report,” while the prosecutor referred to it as an “SFST form.” For the
sake of clarity, this opinion uses the more general “report” term.
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‘starting too soon’” in his report, and he responded that he
could not remember.
Nor could Officer Ostachuk independently recall why he
marked the box in his report indicating that Abrigo could not
keep his balance during the walk-and-turn test. When asked
directly if he could remember his reasoning, the officer
responded, “No. It’s just something that I observed at the
time, and I checked off the box.” When asked whether his
testimony was “just based on that box being checked off” on his
report, he answered, “That’s correct.”
Defense counsel then asked, “Do you actually remember
[that] h[e] stop[ped] walking? Or was that testimony based on
what is contained in the report?” The court, sua sponte, did
not allow the witness to answer because it said that the
question was misleading. Outside of Officer Ostachuk’s
presence, the court clarified that it viewed the question as
“blur[ing the] distinctions” between Officer Ostachuk’s “memory
four months ago when he testified and today.” The “crux of the
case,” the court stated, was “not what he remembers today,” but
rather whether Officer Ostachuk was “testifying based on a
present memory” or “just parroting what was in a report” on
August 1 when he testified on direct examination.
After Officer Ostachuk reentered the courtroom,
defense counsel inquired at length as to whether his testimony
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on August 1 regarding the SFST had been based on his memory at
the time or simply reviewing his report. Officer Ostachuk
repeatedly replied that he did not recall what had been asked
and what he had testified to during the August 1 examination,
nor what he had remembered at that time. When defense counsel
inquired into his present recollection, Officer Ostachuk stated
that he did not have independent memory regarding any aspect of
the SFST and could testify only based on what was written in his
report. The trial was then continued again for reasons that are
not reflected in the record.
3. December 30, 2016
On December 30, 2016, the defense resumed its cross-
examination of Officer Ostachuk. The officer once more
testified that he could not independently recall any details
about Abrigo’s performance on the SFST. He acknowledged that
his testimony was solely based on looking at his report and the
annotations it contained.7 As to Abrigo’s performance during the
one-legged stand test, Officer Ostachuk again said that he did
not recall whether he had had an independent recollection of
Abrigo’s performance when he had testified on August 1.
7
Officer Ostachuk stated, “I don’t remember exactly the things I
annotated in my report him doing. I just remember giving the SFST and then
annotating the stuff in my report that he did.”
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Defense counsel moved to strike Officer Ostachuk’s
testimony about the SFST, arguing that the officer lacked
independent recollection about the tests and therefore could not
be effectively cross-examined. The court denied the motion and
said that it would “not put on the record now, in the officer’s
presence, the reasons for that because he would still be
testifying.”
During re-direct examination, the State asked Officer
Ostachuk whether “the clues that [he] marked off on the SFST
sheet reflect what [he] observed at the time that [he] actually
administered the SFST,” but the court sustained an objection by
the defense. The State then elicited testimony indicating that
Officer Ostachuk had a recollection of “other things that
happened that day” that were not in his report. Specifically,
Officer Ostachuk recalled having a conversation with Abrigo,
that Abrigo was cordial and cooperative, and the type of car
that Abrigo was driving. After Officer Ostachuk’s testimony
concluded, the State rested. The defense did not present any
evidence.
The court proceeded to find Abrigo guilty as charged.
Although the court found that the officer had “very limited
recollection” when he testified on December 15, 2016, and
“almost no recollection” when he testified on December 30, 2016,
it concluded that his testimony on August 1, 2016, “was a
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product of then-present recollection.” The court also concluded
that the defense had had an opportunity to effectively cross-
examine the officer. Abrigo was sentenced to 72 hours of
community service and was required to complete a substance abuse
assessment class and pay court fees. Abrigo filed a timely
appeal.
B. ICA Proceedings
On appeal, Abrigo argued that the court had erred in
denying his motion to strike Officer Ostachuk’s testimony, which
was inadmissible because the officer did not have a present
recollection throughout the trial regarding the events to which
he testified. Abrigo contended that even assuming Officer
Ostachuk had present recollection of administering the SFST when
he testified on August 1, 2016, he indisputably lacked such
recollection when he was cross-examined at the continued trial.
This did not afford him a meaningful opportunity to cross-
examine Officer Ostachuk regarding his testimony, Abrigo argued,
and it thus violated his rights to confrontation and cross-
examination under the Hawaii Constitution. Without this
erroneously admitted testimony, Abrigo concluded, there was no
evidence to support his conviction of OVUII.
In response, the State argued that even if Officer
Ostachuk lacked the present recollection required to testify
regarding the SFST, the officer’s statements in his report were
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themselves admissible under Hawaii Rules of Evidence (HRE) Rule
802.1(4), the past recollection recorded exception to hearsay.
Abrigo countered in reply that Officer Ostachuk’s testimony was
inadmissible under the past recollection hearsay exception
because (1) the State did not establish an adequate foundation
to satisfy this exception, (2) admitting contents of a police
report would contradict and nullify the public records and
business records exceptions to hearsay, (3) the contents of
Officer Ostachuk’s report did not have adequate indicia of
reliability, and (4) Officer Ostachuk’s testimony violated
Abrigo’s rights to confrontation and cross-examination under the
state and federal constitutions.
The Intermediate Court of Appeals (ICA) held that it
was clear that Officer Ostachuk’s testimony regarding Abrigo’s
performance on the SFST was not from his present recollection.
However, the ICA concluded that Officer Ostachuk’s testimony was
nonetheless admissible under the past recollection recorded
exception. Relying on State v. Bloss, 3 Haw. App. 274, 649 P.2d
1176 (1982), the ICA determined that Officer Ostachuk’s report
satisfied the past recollection recorded exception because it
was “a record concerning Abrigo’s OVUII charge of which Officer
Ostachuk once had personal knowledge but at trial had
insufficient recollection to enable him to testify fully and
accurately.” And the SFST form accurately reflected Officer
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Ostachuk’s knowledge of the tests, the ICA held, because the
officer testified that he filled out the form at the same time
that he administered the tests and regularly made accurate
records of the same kind.
The ICA also held that Officer Ostachuk’s testimony
did not violate Abrigo’s right to confrontation or cross-
examination because “a witness who appears at trial and
testifies satisfies the confrontation clause, even though the
witness claims a lack of memory that precludes them from
testifying about the subject matter of their out-of-court
statement.” (Quoting State v. Delos Santos, 124 Hawaii 130,
145, 238 P.3d 162, 177 (2010).) Thus, the ICA affirmed the
judgment of conviction. Abrigo filed a timely application for a
writ of certiorari, which we granted.
II. STANDARD OF REVIEW
The admissibility of evidence requires different
standards of review depending on the particular rule of evidence
at issue. State v. Cordeiro, 99 Hawaii 390, 403-04, 56 P.3d
692, 705-06 (2002); State v. Pulse, 83 Hawaii 229, 246, 925 P.2d
797, 814 (1996). “[W]here the admissibility of evidence is
determined by application of the hearsay rule, there can be only
one correct result, and ‘the appropriate standard for appellate
review is the right/wrong standard.’” State v. Moore, 82 Hawai‘i
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202, 217, 921 P.2d 122, 137 (1996) (quoting Kealoha v. Cty. of
Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 675 (1993)).
III. DISCUSSION
Abrigo argues that the ICA erred in holding that
Officer Ostachuk’s testimony regarding the contents of his
report was admissible under the HRE Rule 802.1(4) past
recollection recorded hearsay exception.8 He contends that the
past recollection recorded hearsay exception must be interpreted
to exclude statements contained in police reports to avoid
effectively nullifying the law enforcement records exclusion in
the separate HRE Rule 803(b)(8) public records hearsay
exception.9
A. The Public Records and Past Recollection Recorded Hearsay
Exceptions
The HRE Rule 803(b)(8) public records hearsay
exception allows for the admission of certain “[r]ecords,
reports, statements, or data compilations, in any form, of
8
Although the district court did not admit Officer Ostachuk’s
testimony under the past recollection recorded exception, the ICA did not err
in considering the State’s alternate grounds for admissibility. Our caselaw
states that “where the decision below is correct it must be affirmed by the
appellate court even though the lower tribunal gave the wrong reason for its
action.” State v. Pacquing, 139 Hawaii 302, 313 n.19, 389 P.3d 897, 908 n.19
(2016) (quoting State v. Taniguchi, 72 Haw. 235, 239, 815 P.2d 24, 26
(1991)). Accordingly, we review the district court’s admission of the
officer’s testimony under the past recollection recorded exception.
9
Given our disposition of this issue, we need not reach Abrigo’s
alternative contention that the foundational requirements for the admission
of Officer Ostachuk’s report under the HRE Rule 802.1(4) past recollection
recorded hearsay exception were not met in this case.
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public offices or agencies.”10 The provision has three distinct
subsections, the latter two of which are relevant in this case.
The second subsection, HRE Rule 803(b)(8)(B), permits the
admission of public records setting forth “matters observed
pursuant to duty imposed by law as to which matters there was a
duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement
personnel.” The third, HRE Rule 803(b)(8)(C), allows for the
admission of public records containing “factual findings
resulting from an investigation made pursuant to authority
granted by law,” but only “in civil proceedings and against the
government in criminal cases.”
10
HRE Rule 803(b)(8) provides as follows:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
. . . .
(b) Other exceptions.
. . . .
(8) Public records and reports. Records,
reports, statements, or data compilations, in
any form, of public offices or agencies,
setting forth (A) the activities of the office
or agency, or (B) matters observed pursuant to
duty imposed by law as to which matters there
was a duty to report, excluding, however, in
criminal cases matters observed by police
officers and other law enforcement personnel,
or (C) in civil proceedings and against the
government in criminal cases, factual findings
resulting from an investigation made pursuant
to authority granted by law, unless the sources
of information or other circumstances indicate
lack of trustworthiness.
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This court outlined the contours of these two
subsections in State v. Davis, a criminal case in which we
considered the admissibility of a technician’s sworn statements
indicating that, based on the technician’s expert interpretation
of data produced by an accuracy test, an Intoxilyzer was working
properly when it measured a defendant’s breath sample. 140
Hawai‘i 252, 254, 400 P.3d 453, 455 (2017). In analyzing whether
the out-of-court statements should have been admitted pursuant
to HRE Rule 803(b)(8)(B), we noted that the phrase “matters
observed” could be interpreted as “encompassing all ‘records
describing an almost endless variety of acts, events, and
conditions in the world observed and depicted by public
officials.’” Id. at 257-58, 400 P.3d at 458-59 (quoting
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.50,
at 910 (5th ed. 2012)). This court determined, however, that
the phrase was intended to have a “narrower meaning” than its
literal application: it was meant to apply only to “information
that is concrete and simple in nature” such as “routine
recordations not resulting from analysis or judgment.” Id. at
258, 400 P.3d at 459 (quoting Addison M. Bowman, Hawaii Rules of
Evidence Manual § 803-3[8][D], at 8-44 (2016-2017 ed.)). Thus,
under Davis, HRE Rule 803(b)(8)(B) allows the admission of
public records containing simple, non-evaluative information
about matters observed by public officials. However, the
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provision expressly excludes from its reach any such data
contained in a law enforcement report when it is offered in a
criminal case.
By contrast, this court stated that public records
containing “conclusions or opinions that flow from a factual
investigation” are properly evaluated under HRE Rule 803(b)(8)’s
third subsection, which governs public records setting forth
“factual findings resulting from an investigation made pursuant
to authority granted by law.” Id. (quoting Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 164 (1988)). Under this separate
provision, such records are admissible in a criminal case only
when offered against the government--and not against the
defendant. Id. at 260 n.18, 400 P.3d at 461 n.18. This is true
irrespective of whether the document is authored by law
enforcement. See id. Because the statement in Davis that the
Intoxilyzer was correctly calibrated was an “interpretive
conclusion” based on the technician’s evaluation of data
collected through the accuracy test, this court held that it was
not a “matter observed” governed by HRE Rule 803(b)(8)(B), but
rather a “factual finding” that was inadmissible against the
defendant under HRE Rule 803(b)(8)(C).11 Id. at 260, 400 P.3d at
461.
11
Because Davis held that the statements were not “matters
observed,” we did not address whether the technician qualified as a “police
(continued . . .)
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In sum, HRE Rule 803(b)(8)(B) excludes observations by
law enforcement personnel in public record reports when offered
in a criminal case. And HRE Rule 803(b)(8)(C) excludes
evaluative public record reports regardless of the author when
offered against the defendant in a criminal case. The two
provisions operate together to prohibit the use of the public
records exception to admit law enforcement reports against the
defendant in a criminal case, be they purely observational,
evaluative, or some combination of the two.12 Yet the HRE Rule
802.1(4) past recollection recorded hearsay exception would on
its face offer a loophole capable of circumventing this
exclusion in certain circumstances.
HRE Rule 802.1(4) makes admissible a statement
“previously made by [a testifying] witness[]” in a “memorandum
or record” if the evidence demonstrates that the witness (1)
once had knowledge of the events underlying the record, (2) has
insufficient recollection of the events at trial, (3) made the
(. . . continued)
officer [or] other law enforcement personnel” for purposes of the exception.
Davis, 140 Hawai‘i at 257 n.13, 400 P.3d at 458 n.13.
12
Officer Ostachuk’s report is a “report made by a law enforcement
official in an on-the-scene investigation”--the precise type of document that
is covered by the law enforcement exclusion within the HRE Rule 803(b)(8)
public records hearsay exception. United States v. Hernandez-Rojas, 617 F.2d
533, 535 (9th Cir. 1980). We thus need not classify the individual
statements it contains as observational or evaluative, as they are
inadmissible against Abrigo under the public records hearsay exception in any
event.
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record when the event was fresh in the witness’s mind, and (4)
accurately recorded the events in the memorandum or record.13
Addison M. Bowman, Hawaii Rules of Evidence Manual § 802.1-5[2],
at 8-18 (2018-2019 ed.). The text of the past recollection
recorded exception would therefore appear to allow the use of
law enforcement reports against the defendant in a criminal
case--which is specifically prohibited under the public records
exception--but only when the official who prepared or signed the
document testifies to a lack of sufficient memory to be fully
and accurately cross-examined on the matters in the report.
B. Hawai‘i Caselaw Indicates that the Contents of Records
Excluded by the Public Records Exception Cannot Be Read into
Evidence Through Another Hearsay Exception
Hawai‘i caselaw offers guidance as to how this apparent
conflict should be resolved. This court addressed a similar
attempt to circumvent the public record exception’s restrictions
13
HRE Rule 802.1(4) provides as follows:
The following statements previously made by witnesses who
testify at the trial or hearing are not excluded by the
hearsay rule:
. . . .
(4) Past recollection recorded. A memorandum or
record concerning a matter about which the witness
once had knowledge but now has insufficient
recollection to enable the witness to testify fully
and accurately, shown to have been made or adopted by
the witness when the matter was fresh in the witness’
memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit
unless offered by an adverse party.
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in Davis. As explained, the State sought in Davis to enter a
technician’s statements regarding the accuracy of an
Intoxilyzer. 140 Hawaii at 254, 400 P.3d at 455. The State
argued that even if the technician’s statements were not
admissible under the public records hearsay exception, the HRE
Rule 803(b)(6) business records hearsay exception was an
alternative ground through which the document could be admitted.
Id. at 265, 400 P.3d at 466. On review, this court held that
“[a]lthough ordinarily the proponent of hearsay is entitled to
‘shop around’ among the exceptions, the public records exception
preempts” the business record exception as it applies to public
records and “forecloses access to business records
admissibility.” Id. (quoting Addison M. Bowman, Hawaii Rules of
Evidence Manual § 803-3[6][F], at 8-41 (2016-2017 ed.) (some
alterations omitted). We therefore held that “records excluded
by [the public records exception] cannot be admitted through the
‘back door’ as a business record.” Id. (citing United States v.
Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005); United States v.
Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002); United
States v. Cain, 615 F.2d 380, 382 (5th Cir. 1980)); see also
State v. Hammell, 917 A.2d 1267, 1271 (N.H. 2007) (holding the
identically worded New Hampshire public records exception cannot
be circumvented using the business record exception because
doing so would enable “an end run around one of the very
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purposes for which [the public records exception] was
promulgated”--namely, the exclusion of police records when
offered against the defendant in a criminal case).
Thus, this court’s precedent strongly suggests that
public records that are inadmissible under the hearsay exception
specifically governing such records may not be read into
evidence at trial under an alternative hearsay rule. The past
recollection recorded exception would serve as no less a “back
door” to the admission of documents that the public records
exception specifically prohibits than the business record
exception, and it would stand to reason that it would likewise
be “preempt[ed]” and “foreclose[d]” when applied to public
records. Davis, 140 Hawaii at 265, 400 P.3d at 466 (quoting
Bowman, Hawaii Rules of Evidence Manual § 803-3[6][F], at 8-41
(2016-2017 ed.).
C. Other Jurisdictions Have Declined to Admit Police Reports
Through Hearsay Exceptions Other than the Public Records
Exception, Including as Recorded Past Recollections
When faced with the precise question at issue in this
case, the United States Court of Appeals for the Ninth Circuit
applied much the same reasoning employed in Davis to the federal
equivalents of the public records and past recollection recorded
hearsay exceptions.14 In United States v. Pena-Gutierrez, the
14
Federal cases interpreting the Federal Rules of Evidence (FRE)
serve as “persuasive authority in interpreting similar provisions of the
(continued . . .)
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court considered the admission of an Immigration and
Naturalization Service report containing statements made by an
undocumented person about his attempt to cross the border while
hidden in the defendant’s car. 222 F.3d 1080, 1084-85 (9th Cir.
2000). Relying on an earlier case that had analyzed the
admission of public records under the federal equivalent of the
business records hearsay exception, the Ninth Circuit held that
the trial court had erred by admitting the report under the past
recollection recorded hearsay exception, explaining that law
enforcement reports are admissible “if at all, only under the
public-records exception.” Id. at 1087 (citing United States v.
Orozco, 590 F.2d 789, 793 (9th Cir. 1979)). The court went on
to find the report inadmissible under the public records hearsay
exception because, much like Officer Ostachuk’s report in the
present case, it was an “on-the-scene investigative report of a
crime” falling squarely within the law enforcement exclusion.
(. . . continued)
[HRE].” State v. Fitzwater, 122 Hawaii 354, 383 n.5, 227 P.3d 520, 549 n.5
(2010) (citing State v. Jhun, 83 Hawaii 472, 478, 927 P.2d 1355, 1361
(1996)). At least one scholar has also noted the tension between the federal
equivalents of these provisions, stating that there is a “serious question”
about the admissibility of police reports under the past recollection
recorded exception. Professor Michael H. Graham, one of the nation’s leading
scholars on evidence, cautions that courts should be “extremely reluctant” to
admit police reports under the past recollection recorded exception because
Congress has had the opportunity to amend the exclusion for police
observations and has consistently declined “to credit the accuracy of
documents prepared by law enforcement personnel purporting to recount
criminal investigations.” 7 Michael H. Graham, Handbook of Federal Evidence
§ 803:5 (8th ed. 2017).
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Id. (quoting United States v. Wilmer, 799 F.2d 495, 501 (9th
Cir. 1986); see also United States v. Hernandez-Rojas, 617 F.2d
533, 535 (9th Cir. 1980) (“[T]he subjective report made by a law
enforcement official in an on-the-scene investigation . . .
lack[s] sufficient guarantees of trustworthiness because [it is]
made in an adversary setting [and is] likely to be used in
litigation.”).
Courts of a number of other jurisdictions have
similarly stated that hearsay in public records may not be
admitted through the back door of another hearsay exception,
suggesting that the document must comply with the restrictions
built into the public records exception to be admissible. See
Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1345
(Fed. Cir. 1999); United States v. Brown, 9 F.3d 907, 911 (11th
Cir. 1993); Fischer v. State, 207 S.W.3d 846, 860 (Tex. Ct. App.
2006).15 The caselaw of a number of courts across the country
15
While some courts have reached a different conclusion as to the
admissibility of police reports under the past recollection recorded
exception, these cases either ignore the legislative history of the exclusion
for police observations or surmise that an officer’s presence at trial
resolves any cross-examination concerns. See United States v. Hayes, 861
F.2d 1225, 1230 (10th Cir. 1988) (tax payment records compiled by an Internal
Revenue Service agent admitted as a business record because there was no
evidence that the records were untrustworthy); United States v. Picciandra,
788 F.2d 39, 44 (1st Cir. 1986) (undercover drug enforcement agent report
admitted under the past recollection recorded exception because it had
“indicia of trustworthiness”); United States v. Sawyer, 607 F.2d 1190, 1193
(7th Cir. 1979) (revenue agent’s report admitted under the past recollection
recorded exception because the agent was available for cross-examination).
As discussed infra, both the legislative history of the public records
hearsay exception and Hawai‘i law regarding the availability of a witness for
(continued . . .)
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thus suggests a similar conclusion to our own--that is, that the
public record hearsay exception offers the sole hearsay
framework under which the admissibility of law enforcement
reports may be admitted at trial.
D. The History of the Public Records Hearsay Exception Supports
Prohibiting the Admission of Police Reports Through Other
Exceptions
The conclusions of the Davis and Pena-Gutierrez courts
are unsurprising in light of the history of the public records
hearsay exception. When considering the identical federal rule
after which our exception was modeled, the United States Court
of Appeals for the Second Circuit in United States v. Oates
recounted that “an overriding concern of the Advisory Committee
was that the rules be formulated so as to avoid impinging upon a
criminal defendant’s right to confront the witnesses against
him.”16 560 F.2d 45, 68 (2d Cir. 1977). The court explained
that the language of the public records exception was amended
during the drafting process to add the exclusion for “matters
observed by police officers” to protect a defendant’s
(. . . continued)
cross-examination strongly weigh in favor of prohibiting the admission of
police reports as recorded past recollections.
16
When enacting the Hawai‘i Rules of Evidence, the legislature
adopted the public records hearsay exception contained in the FRE verbatim,
though the federal rule has since been amended nonsubstantively. See Oates,
560 F.2d at 66-67 (setting forth FRE Rule 803(8) as it was worded in 1977).
The legislative history of the federal rule is thus especially persuasive in
interpreting our own public records hearsay exception. See Fitzwater, 122
Hawai‘i at 383 n.5, 227 P.3d at 549 n.5.
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confrontation rights. Id. at 69. Significantly, the Second
Circuit noted, the Senate attempted to limit the application of
the exclusion by adding a proposed provision that “would have
rendered the exclusion . . . ineffective in the event the author
of the report was ‘unavailable’ to testify.” Id. (citing S.
Rep. No. 1277 (1974)). However, as detailed by the Oates court,
the “attempt to emasculate” the exclusion was unsuccessful, and
the unavailability provision was removed by the Committee of
Conference.17 Id. (citing H.R. Rep. No. 1597 (1974) (Joint
Explanatory Statement of the Committee of Conference)).
Expanding on the legislative history of the proposed
provision, the Second Circuit stated that after the Committee of
Conference submitted its final version of the rules to the
Senate and the House of Representatives, Representative William
Hungate presented the Committee’s official report to the House.18
Id. at 70. During his presentation, Representative Hungate
17
Both the Federal and Hawai‘i Rules of Evidence consider a witness
who does not have sufficient recollection to testify about the substance of a
prior statement unavailable for purposes of hearsay analysis. See FRE Rule
804(a)(3); HRE Rule 804(a)(3). Thus, the reading into evidence of a police
report authored by an officer who is unable to remember the substance of the
events it details would fall squarely within the proposed unavailability
limitation that was specifically rejected by the original drafters of the
public records exception.
18
Representative Hungate was the Chairman of the House Judiciary
Subcommittee on Criminal Justice, presided over hearings regarding the
proposed Federal Rules of Evidence, was a floor manager for the legislation,
and was a member of the Committee of Conference appointed to resolve the
differences between the versions of the rules approved by the House and
Senate. Oates, 560 F.2d at 69-70.
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explained that the Committee “rejected the Senate’s attempt to
create a new hearsay exception which would have permitted
admission of police reports authored by officers unavailable to
testify.” Id. Representative Hungate told the House that “[a]s
the rules of evidence now stand, police and law enforcement
reports are not admissible against defendants in criminal
cases.” Id. (quoting 120 Cong. Rec. H12254 (daily ed. Dec. 18,
1974)) (emphasis added). Thus, the Oates court concluded that
“it was the clear intention of Congress to make evaluative and
law enforcement reports absolutely inadmissible against
defendants in criminal cases,” and “it must have been the
unquestionable belief of Congress that the language of [Federal
Rule of Evidence] 803(8)(B) and (C) accomplished that very
result.” Id. at 73.
The Second Circuit further noted that the legislative
history specifically addressed the admission of police reports
through exceptions other than the public records hearsay
exception. Id. As the court related, Representative Elizabeth
Holtzman expressed concern that a catchall hearsay exception
would open “a ‘back door’ to [admission of] police reports and
negate[] the conference committee’s prior prohibition against
admission of such evidence.” Id. at 71 (quoting 120 Cong. Rec.
H12255-56 (daily ed. Dec. 18, 1974)). The Oates court thus
determined that the exclusion of police reports “applies with
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equal force to the treatment of such reports under any of the
other exceptions to the hearsay rule” because the admission of
such reports under another exception “would serve to deprive the
accused of the opportunity to confront his accusers as
effectively” as the drafters intended.19 Id. at 78 (emphasis
added).
The history of the public record exception clearly
demonstrates that it was intended to render all police reports
“absolutely inadmissible against defendants in criminal cases.”
Id. at 73. Indeed, Representative David Dennis, who first
introduced the exclusion for police observations, explained that
the purpose of the exclusion was to “give the defendant the
chance to cross examine [the police officer], rather than just
reading [the officer’s] report into evidence.” Jack B.
Weinstein & Margaret A. Berger, 4 Weinstein’s Evidence § 803(8),
at 803-22 (1996). This precise result of reading the contents
of a police report into evidence occurs when the police report
is admitted through the past recollection recorded hearsay
exception. See HRE Rule 802.1(4) (“If admitted, the memorandum
or record may be read into evidence but may not itself be
19
The dissent characterizes our position as “rel[ying] heavily on
the Second Circuit’s analysis in Oates.” Dissent at 5. But it is the
legislative history of the federal public records hearsay exception that
provides guidance for our holding, and this court has long recognized that
“the history of the federal rule is highly persuasive as to the purpose of
the Hawai‘i rule.” Cvitanovich-Dubie v. Dubie, 125 Hawai‘i 128, 147, 254 P.3d
439, 458 (2011).
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received as an exhibit unless offered by an adverse party.”).
Thus, the legislative purpose of the public records hearsay
exception would be vitiated if the State could use the past
recollection recorded exception as a “back door” to admitting
police reports. See United States v. Blackburn, 992 F.2d 666,
671 (7th Cir. 1993) (“[I]f a document prohibited under [the
public records exception] can come into evidence under [the
business records exception], then the [public records
exception’s] restrictions are rendered nugatory.”).
E. Admitting Police Reports as Recorded Past Recollections
Produces Illogical Results
In addition to being unsupported by precedent and
contrary to the intent of our evidentiary rules, admitting
police reports through the past recollection recorded hearsay
exception leads to irrational results. The HRE Rule 803(b)(8)
hearsay exception for public records and its exclusions apply
regardless of whether the declarant is available to testify.
Thus, admitting police reports under the HRE Rule 802.1(4) past
recollection recorded hearsay exception, which applies only when
a testifying declarant has “insufficient recollection to enable
the witness to testify fully and accurately,” creates an
illogical dichotomy. Documents that are wholly inadmissible
both when the authoring official is absent, and thus subject to
no cross-examination, and when the author testifies from
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personal knowledge and is subject to full cross-examination,
would be deemed admissible only when the author has insufficient
recollection to testify fully and accurately about the events
underlying the reports, making the official subject to only
cross-examination that is ineffective at ascertaining the truth.
Such a distinction is not rationally justified, and it is
contrary to statements by multiple courts that the public
records exception was “intended to bar the use of law
enforcement reports as a substitute for the testimony of the
officer.” United States v. Sawyer, 607 F.2d 1190, 1193 (7th
Cir. 1979).
The dissent argues that this extremely limited cross-
examination is sufficient to satisfy any concerns the drafters
may have had about the introduction of police reports. Dissent
at 8-9, 13 n.4. This contention is plainly refuted in this case
and decidedly incorrect as a general principle. A police
officer’s pro forma taking of the stand, as occurred here, does
not eliminate the danger that the law enforcement exclusion in
the public records exception was intended to address: a
defendant being denied the right to cross-examine a police
officer about the substance of the officer’s report. Such
reports are inherently less reliable than other witness
recollections that are recorded soon after the events they
recount, for police reports are created in an adversarial
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setting for the primary purpose of substantiating a criminal
charge against the defendant. Only through meaningful cross-
examination can a defendant test the accuracy of a police
officer’s account of events that took place in this context, and
this cannot occur when an officer testifies to a lack of memory
and simply recites the contents of the report to the factfinder.
The State in this case was essentially able to use
Officer Ostachuk’s report as a substitute for his testimony.
When the defense counsel attempted to cross-examine the officer
about the SFST he conducted, the officer could not testify to
any information about Abrigo’s performance that was not
contained in his report--a document that was prepared for the
specific purpose of building a case against Abrigo. Because of
the officer’s lack of memory, Abrigo did not have a meaningful
opportunity to challenge any of the officer’s observations and
conclusions regarding the clues of intoxication that Abrigo
allegedly displayed. That is, the State convicted Abrigo on
nothing more than a police report without affording him an
adequate opportunity to challenge the officer’s observations.
Abrigo’s ostensible ability to question the officer’s general
credibility and methodology was a hollow substitute for cross-
examination on the officer’s actual basis for arresting Abrigo
and charging him with a crime, and the process plainly did not
offer any assurances of the report’s reliability.
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The dissent argues that our interpretation could
adversely affect an OVUII prosecution by precluding the
introduction of a police officer’s report when the officer is
unable to recall the details of the driver’s SFST performance
months after a stop. Dissent at 3. But the administrative
difficulty of providing a prompt trial does not justify
dispensing with the assurances of reliability inherent in
meaningful cross-examination. Moreover, the same result could
occur in any trial in which a police report is admitted under
the past recollection recorded hearsay exception, irrespective
of the seriousness of the charges or the strength of the
evidence against the defendant. A defendant could be convicted
of a major felony offense on the sole basis of a report authored
by a police officer who is the only witness to the alleged
crime, all without any opportunity to challenge the substance of
the report through in-court cross-examination. The injustice of
an interpretation of our evidentiary rules that would allow a
defendant to be convicted solely on the basis of a police report
being read into evidence is manifest, and we are thus obliged to
reject it. See HRE Rule 102 (providing that the “rules shall be
construed to,” inter alia, “secure fairness in administration”
and to promote the “growth and development of the law of
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evidence to the end that the truth may be ascertained and
proceedings justly determined” (emphasis added)).20
The dissent also responds by quoting a passage from a
treatise on evidence that argues that it is impractical to
expect law enforcement officials to recall specific, detailed
information such as “serial or license numbers, makes of cars,
detailed descriptions of objects at crime scenes, or precise
details about physical layout.” Dissent at 11 (quoting
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.51
(5th ed. 2012)).21 As an initial matter, this court has not yet
20
“In any event, such a reading would contravene the doctrine of
‘constitutional doubt,’ which dictates that, ‘where a statute is susceptible
of two constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided, our
duty is [to] adopt the latter.’” State v. Jess, 117 Hawai‘i 381, 399–400, 184
P.3d 133, 151–52 (2008) (quoting In the Interest of Doe, 96 Hawai‘i 73, 81, 26
P.3d 562, 570 (2001)). Under our current caselaw, the admission of a
witness’s prior out-of-court statements does not violate a defendant’s
confrontation and cross-examination rights even when the witness is
completely unable to remember the subject matter of the prior statement. See
State v. Fields, 115 Hawai‘i 503, 517, 168 P.3d 955, 969 (2007). However, the
continuing viability of this precedent has been called into doubt by our more
recent holding that the confrontation clause of the Hawai‘i Constitution is
“satisfied” only by “sufficient and meaningful” cross-examination. State v.
Nofoa, 135 Hawai‘i 220, 230-31, 349 P.3d 327, 337-38 (2015). It is thus
noteworthy that, in addition to all of the stated reasons underlying our
analysis, our holding is consistent with our duty to adopt an evidentiary
interpretation that avoids addressing a grave constitutional question. That
is, by concluding that Officer Ostachuk’s report was inadmissible on the
basis of our evidentiary rules, we render it unnecessary to address Abrigo’s
contention that the officer’s near-total lack of recollection violated his
constitutional right to confront and cross-examine the witnesses against him.
21
The treatise on which the dissent relies also counsels that the
exclusion of law enforcement reports in the public records hearsay exception
should not be used to exclude various public records for which another
“narrow and specific” hearsay exception applies in the rare instance in which
they are authored by police. Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 8:90 (4th ed. 2018). These include the “vital statistics”
of birth, death, or marriage that are typically admissible under the federal
(continued . . .)
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addressed the extent to which the law enforcement exclusion in
the public record exception bars the admission of purely routine
observational data. See Davis, 140 Hawai‘i at 259 n.15, 400 P.3d
at 460 n.15 (declining to reach the issue). Assuming such
informational data cannot be admitted through this route or by
properly authenticated documentary evidence, see HRE Rule 901, a
police report or any other document, photograph, or object may
be used to refresh an officer’s memory both before testifying
and while on the stand. See HRE Rule 612. Only when the
officer’s recollection of the events underlying the report is so
inadequate that reviewing the report or other refreshing item is
unable to bring these details to mind and other means are not
available would the admissibility of routine observational data
under HRE Rule 803 require consideration. This rare scenario
cannot drive the result of our analysis when the alternative--
depriving the defendant of meaningful cross-examination of a
(. . . continued)
equivalent of HRE Rule 803(b)(9) and a certificate indicating the absence of
a public record that is usually admissible under the federal equivalent of
HRE Rule 803(b)(10). Id. Although we need not now decide the full extent of
law enforcement records excluded by the public records hearsay exception, the
treatise’s position is consistent with the longstanding maxim of statutory
interpretation that, “where there is a ‘plainly irreconcilable’ conflict
between a general and a specific statute concerning the same subject matter,
the specific will be favored.” Richardson v. City & Cty. of Honolulu, 76
Hawai‘i 46, 55, 868 P.2d 1193, 1202 (1994) (quoting Mahiai v. Suwa, 69 Haw.
349, 356–57, 742 P.2d 359, 366 (1987)). Thus, the more specific inclusion of
vital statistics would likely control over the more general exclusion of law
enforcement reports included in the public record exception. Similarly, the
more specific exclusion of law enforcement reports takes precedence over the
more general inclusion of a witness’s recorded past recollections.
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significant State’s witness--is the outcome of the dissent’s
position. To hold that reading the contents of the police
report is admissible in this case, in which the witness was the
only source of evidence against the defendant, would establish a
precedent for trials to be determined on the basis of police
reports and not testimony, ultimately compromising the
fundamental rights of defendants and the ability of factfinders
to accurately determine the issues before them.
Thus, we now formally hold that police reports may not
be admitted against a defendant in a criminal case under the HRE
Rule 802.1(4) past recollection recorded hearsay exception. We
conclude that Officer Ostachuk’s report could not have been
admitted under the public records exception, and thus the past
recollection recorded exception could not serve as a “back door”
to read the report into evidence. Accordingly, the ICA erred in
holding that the content of Officer Ostachuk’s report was
admissible.22 Because Officer Ostachuk’s testimony was the only
evidence presented by the State, Abrigo’s conviction cannot
stand.
22
In holding that Officer Ostachuk’s testimony was admissible under
the past recollection recorded exception, the ICA relied on State v. Bloss, 3
Haw. App. 274, 649 P.2d 1176 (1982). In Bloss, the ICA held that a police
officer could read a parking citation that he issued into evidence under the
past recollection recorded exception. Id. at 278, 649 P.2d at 1179. Bloss
did not evaluate the legislative intent of the public records exception, nor
did it discuss the public records exception at all. We thus overrule Bloss
to the extent that it may be read to allow such a record to be admitted under
the past recorded recollection exception.
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IV. CONCLUSION
Based on the foregoing, the ICA’s judgment on appeal
is vacated, the judgment of conviction is vacated, and the case
is remanded to the circuit court for further proceedings
consistent with this opinion.
Susan Arnett /s/ Sabrina S. McKenna
Taryn R. Tomasa
for petitioner /s/ Richard W. Pollack
Brian R. Vincent /s/ Michael D. Wilson
For respondent
35