State v. Van

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAR-2021
07:57 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
XUAN VAN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTI-16-004761)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Xuan Van (Van) appeals from the
Notice of Entry of Judgment and/or Order and Plea/Judgment
(Judgment) entered by the District Court of the First Circuit,
Honolulu Division,1 on May 15, 2019. For the reasons explained
below, we reverse the Judgment.
On January 23, 2016, state Deputy Sheriff Raymund
Calucag (Deputy Calucag) used an UltraLyte 20/20 laser device to
measure that Van was operating a vehicle at a speed of 32 miles
per hour in a 15-mile-per-hour zone. Deputy Calucag cited Van
for failing to comply with the speed limit, in violation of
Hawaii Revised Statutes (HRS) § 291C-102(a)(1) (2007).2 After a
bench trial the district court found that Van violated the
1
The Honorable Blake T. Okimoto presided.
2
HRS § 291C-102(a)(1) provides: "A person violates this section if
the person drives . . . a motor vehicle at a speed greater than the maximum
speed limit[.]"
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
statute. On appeal, Van contends that the State failed to lay a
foundation for admission of Officer Calucag's testimony about
Van's speed.
Van argues the State failed to establish that Deputy
Calucag was qualified to operate the laser device.3 We agree.
In order to establish a sufficient foundation for
admission of a speed reading from a laser gun, the
prosecution is required to produce evidence that the nature
and extent of an officer's training in the operation of the
laser gun meets the requirements indicated by the
manufacturer. To meet this burden 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. Amiral, 132 Hawai#i 170, 178, 319 P.3d 1178, 1186 (2014)
(cleaned up) (underscoring added) (citing State v. Assaye, 121
Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009) and State v.
Gonzalez, 128 Hawai#i 314, 327, 288 P.3d 788, 801 (2012)).
Deputy Calucag was the only witness to testify at
trial. He testified that he was first trained to use the
UltraLyte 20/20 by the Honolulu Police Department (HPD) in 2009,
and received a refresher course in 2015.4 Both sessions involved
four hours of classroom instruction and four hours of "on-the-
road practical training." He received and read the device
manufacturer's manual during both sessions. He described the
four tests he was trained to perform to confirm the laser device
was working properly. He described how he was trained to aim the
device, confirm target acquisition, and read the speed. He
testified that everything he learned was contained in the
manufacturer's manual for the device, there was nothing in the
manual not covered by his training, and there was nothing in his
3
Van also contends that the State failed to prove whether the speed
measuring device Deputy Calucag used was a laser or a radar device. During
the trial both defense counsel and Deputy Calucag referred to the device as a
"laser." For purposes of this order it does not matter whether the device was
a laser or a radar because Van is challenging the qualified operator prong,
not the proper functioning prong.
4
The record does not indicate whether the "refresher course" was
given by HPD, the state Department of Public Safety, the laser manufacturer,
or another entity.
2
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training that contradicted the manual. But the State did not ask
Deputy Calucag to describe the training "requirements indicated
by the manufacturer," as required under Assaye, 121 Hawai#i at
215, 216 P.3d at 1238, Amiral, and Gonzalez.
On cross-examination, defense counsel asked Deputy
Calucag:
Q That was -- okay.
Do you know if that training that you received from
HPD, okay, was pursuant to the manufacturer's
recommendations?
A Yes, sir.
Q Not -- no, no, no. Listen to the question. So
I'm not talking about whether the tests were done, okay, but
the actual training. Do you know?
With the actual training. Not the tests or the -- for
the accuracy. I understand that. But do you know if that
training was done by a -- pursuant to the manufacturer's
requirements?
A Yes.
Q How do you know that?
A They're LTI instructors.
. . . .
Q So let -- let me ask you then. What are the re
-- training requirements? By the manufacturer.
A For the student or --
Q For the training.
A -- the instructor?
Q Yeah.
A I have no idea.
Q Okay. So you don't actually know that, correct?
A No –
On redirect the State did not clarify whether Deputy Calucag's
answers pertained to the manufacturer's training requirements for
the student, the instructor, or both.
In this case, as in Gonzalez, "the record is silent as
to what type of training is recommended by the manufacturer."
3
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Gonzalez, 128 Hawai#i at 327, 288 P.3d at 801. The district
court erred in admitting Deputy Calucag's testimony about his
laser speed measurement. Without that testimony, there was no
evidence that Van violated HRS § 291C-102(a)(1). Accordingly,
the Judgment is reversed.
DATED: Honolulu, Hawai#i, March 18, 2021.
On the briefs:
/s/ Keith K. Hiraoka
Loren J. Thomas, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
Brian S. Kim, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge
4