State v. Rabellizsa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-DEC-2020
07:47 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DICKIE RABELLIZSA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(WAIANAE DIVISION)
(CASE NO. 1DTC-19-015651)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Dickie Rabellizsa (Rabellizsa)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment) entered on November 4, 2019, in the
District Court of the First Circuit, Wai#anae Division (District
Court).1 After a bench trial, the District Court convicted
Rabellizsa of one count of Excessive Speeding, in violation of
1
The Honorable Michelle N. Comeau presided.
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Hawaii Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2)
(2007).2
Rabellizsa raises a single point of error on appeal,
contending that the District Court erred in allowing Honolulu
Police Department Officer Steven A.Y. Chun's (Officer Chun's)
testimony as to a radar speed reading because the State failed to
lay sufficient foundation, and therefore, there was insufficient
evidence to convict Rabellizsa.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Rabellizsa's point of error as follows:
2
HRS § 291C-105 provides, in relevant part:
§ 291C-105 Excessive speeding. (a) No person shall
drive a motor vehicle at a speed exceeding:
(1) The applicable state or county speed limit by
thirty miles per hour or more; or
(2) Eighty miles per hour or more irrespective of
the applicable state or county speed limit.
(b) For the purposes of this section, "the
applicable state or county speed limit" means:
(1) The maximum speed limit established by county
ordinance;
(2) The maximum speed limit established by official
signs placed by the director of transportation
on highways under the director's jurisdiction;
or
(3) The maximum speed limit established pursuant to
section 291C-104 by the director of
transportation or the counties for school zones
and construction areas in their respective
jurisdictions.
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To lay an adequate foundation for the speed reading
from a laser device, the State must demonstrate that: (a) the
accuracy of the laser device was tested according to the
manufacturer's recommended procedures; and (b) "the nature and
extent of an officer's training in the operation of a laser
[device met] the requirements indicated by the manufacturer."
State v. Assaye, 121 Hawai#i 204, 213-15, 216 P.3d 1227, 1236-38
(2009). To meet the training prong, "the prosecution must
establish both (1) the requirements indicated by the
manufacturer, and (2) the training actually received by the
operator of the laser gun." State v. Gonzalez, 128 Hawai#i 314,
327, 288 P.3d 788, 801 (2012).
Officer Chun testified that he measured Rabellizsa's
speed at 83 miles per hour using his Stalker Radar device, which
is installed in his vehicle. Officer Chun testified that he
received classroom training, as well as training in his vehicle,
and that he was tested on how to set up, test, and use the
device. He testified that he received his training from Steve
Hocker (Hocker), who is a representative from Stalker, and that
the training was specific to the Stalker Radar device (as well as
the Stalker Lidar, which is a handheld unit). Office Chun stated
that Hocker provided a written manual for the radar device during
the training and that the device manufacturer was Applied
Concepts. Officer Chun was asked whether that was the same name
as on the manual he was given, but after an objection (which was
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overruled), no answer was recorded in the transcript. The next
questions pertained to whether the manual provided specific
training, procedures or requirements necessary to use the radar
device, and Officer Chun's awareness of the procedures and
requirements in the manual. Further questions regarding Officer
Chun's training regarding the Stalker Radar device were asked and
answered, including questions as to the training he received to
ensure that the device was functioning accurately, as well as the
training that a person must receive to use the radar device.3
Officer Chun was specifically asked whether the
training he was given was "provided by the manufacturer" and,
without objection, he answered yes. He was asked how he knew
this and, without objection, he responded that he was told that
by the instructor and it was in the manual. Further testimony
was given regarding the specific training.
Later in his testimony, Officer Chun was asked more
specifically about the trainer and he testified that Hocker was a
representative from Stalker, which is the company that provides
the Stalker Radar units from Applied Concepts. Officer Chun
testified that Hocker provided him with an instructor
certificate, and a photo identification of the instructor
(Hocker), and that the instructor's certificate stated that he
3
Officer Chun was also examined on the manufacturer's recommended
procedures for testing the device and Officer Chun's testing of the device in
accordance with those procedures.
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(Hocker) is an instructor from Applied Concepts and that he is an
instructor for the specific radar device at issue in this case.
Officer Chun further testified that, although the
device is installed in his vehicle and connects to the vehicle's
speedometer, it obtains speeds using an antenna and measures
speed based on its own, independent, software and the device gets
recalibrated or updated by the manufacturer every three years.
In reference to the date of the speeding incident, Officer Chun
was asked whether his radar device had been calibrated within the
three years; he responded affirmatively, that it had.
On appeal, Rabellizsa contends that there was
insufficient foundation laid because there was no testimony on
(a) whether the manual was created and endorsed by the
manufacturer, Applied Concepts – referencing the above-referenced
lack of response in the transcript to the question about the name
on the manual – and (b) whether the manufacturer recommends
training through the manual, the instructor, or both, in order to
operate and test the radar device. Rabellizsa also argues on
appeal – although he did not object to a lack of foundation on
this basis in the District Court – that the State failed to
establish that the Stalker Radar device was properly calibrated
by Applied Concept's service representative.
"When a question arises regarding the necessary
foundation for the introduction of evidence, the determination of
whether proper foundation has been established lies within the
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discretion of [district court], and its determination will not be
overturned absent a showing of clear abuse." Assaye, 121 Hawai#i
at 210, 216 P.3d at 1233 (citations, internal quotation marks and
brackets omitted).
Based on our review of the entirety of Officer Chun's
testimony, we conclude that the District Court did not abuse its
discretion in determining that the State carried its burden to
establish that the training provided through the instruction of
Hocker and pursuant to the manual were the requirements indicated
by the manufacturer, and that the training received by Officer
Chun was pursuant to the manufacturer's requirements. See
Gonzalez, 128 Hawai#i at 327, 288 P.3d at 801. We further
conclude, based on our review of the entire record, that the
State established that the radar device's accuracy was tested
according to the procedures recommended by the manufacturer, and
the District Court did not plainly err with respect to
calibration of the radar device. In addition to Officer Chun's
testimony that his radar device had been calibrated by the
manufacturer within the three years recommended by the
manufacturer, Officer Chun testified as to his training and
execution of the use of two tuning forks and other tests used to
test the accuracy of the radar device, in accordance with the
manufacturer's recommendations. See State v. Tailo, 70 Haw. 580,
583, 779 P.2d 11, 13 (1989) (explaining that a special tuning
fork can be used to check the calibration of a radar device;
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"[t]he tuning fork is specially tuned to vibrate at a frequency
equal to the Doppler frequency for some set speed stamped into
the handle of the fork"). Accordingly, we conclude that the
District Court did not abuse its discretion in determining that a
proper foundation was laid and in admitting the speed reading
from the radar device in this case.
For these reasons, the District Court's November 4,
2019 Judgment is affirmed.
DATED: Honolulu, Hawai#i, December 18, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Andrew I. Kim,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
Sonja P. McCullen, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
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