State v. Eid
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Hatem Eid was charged with excessive speeding. The charge stemmed from an incident in which an officer paced Eid's car with his own vehicle and concluded Eid was speeding. Prior to that incident, the officer had speed checks conducted on his patrol car, which were intended to establish that the speedometer was accurate. Prior to trial, Eid filed a motion in limine to exclude any speed check or speedometer reading evidence. The district court denied Eid's motion, admitted the evidence, and found Eid guilty of excessive speeding. The Intermediate Court of Appeals (ICA) concluded that the district court erred in admitting the speed check and speedometer reading evidence after determining that the State did not meet the foundational requirements set forth by State v. Fitzwater. The Supreme Court vacated the ICA's judgment and remanded, holding that the State established a sufficient foundation to admit the speed check evidence, and consequently, the speedometer reading in this case.
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Electronically Filed
Supreme Court
SCWC-29587
26-JAN-2012
08:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o--STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee,
vs.
HATEM A. EID, Respondent/Defendant-Appellant.
NO. SCWC-29587
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA No. 29587; HPD Traffic No. 1DTC-07-045030)
JANUARY 26, 2012
RECKTENWALD, C.J., NAKAYAMA, DUFFY, AND MCKENNA, JJ.;
WITH ACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY RECKTENWALD, J.
Hatem A. Eid was charged with excessive speeding in
violation of Hawai#i Revised Statutes (HRS) § 291C-105(a)(1)
(2007).1
1
The charge stemmed from an incident on September 19,
HRS § 291C-105 provides, in pertinent part:
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
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2007, when Officer Benjamin Perez allegedly paced Eid’s car with
his own vehicle and concluded Eid was traveling 65 miles-per-hour
(mph) in a 25 mph zone.
Prior to that incident, Officer Perez
had “speed checks” conducted on his vehicle at Roy’s Kalihi
Automotive Center & Towing (Roy’s Automotive), on April 5, 2007
and July 23, 2007.
Those checks were intended to establish that
the speedometer was accurate.
Prior to trial, Eid filed a motion in limine to exclude
any speed check or speedometer reading evidence on the ground
that the State would be unable to lay a sufficient foundation.
The District Court of the First Circuit2 held an extensive
pretrial hearing, which included testimony from the two mechanics
who owned the speed check equipment and performed the tests
pursuant to a contract with HPD.
After five days of testimony,
the district court denied Eid’s motion in limine.
At trial, the
district court admitted the speed check and speedometer reading
evidence over the objection of defense counsel.
The district
court then found Eid guilty of excessive speeding.
county ordinance;
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.
Any person who violates this section shall be
guilty of a petty misdemeanor . . . .
(2)
(c)
2
The Honorable David W. Lo presided.
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On appeal, the Intermediate Court of Appeals concluded
that the district court erred in admitting the speed check and
speedometer reading evidence.
State v. Eid, No. 29587, 2011 WL
2308055, at *1 (App. June 9, 2011) (SDO).
The ICA determined
that the State did not meet the foundational requirements set
forth by State v. Fitzwater, 122 Hawai#i 354, 376-77, 227 P.3d
520, 542-43 (2010), because the State only established the
manufacturer of the “master head” component of the speed check
equipment and not the entire speed check testing assembly.
at *1.
SDO
The ICA remanded the case for further proceedings “for
consideration of whether the remaining evidence was sufficient to
convict Eid of the lesser included offense of Noncompliance with
Speed Limit.”
Id.
The State of Hawai#i timely sought review in
this court.
The State raises one question in its application for a
writ of certiorari:
“Whether the ICA gravely erred by concluding
that there was insufficient foundation, as a matter of law, to
admit the speed reading obtained from the speedometer in Officer
Perez’s Ford Crown Victoria patrol car?”
For the reasons set forth below, we conclude that the
State established a sufficient foundation to admit the speed
check evidence, and consequently, the speedometer reading.
Accordingly, we vacate the ICA’s judgment and remand to the ICA.
I.
Background
The following factual background is taken from the
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record on appeal.
A.
Pretrial Motions
On January 25, 2008, Eid filed a Motion to Compel
Discovery or in the Alternative, Motion to Dismiss for Violation
of Hawai#i Rules of Penal Procedure (HRPP) Rule 16(b) and (c)3
(motion to compel).4
Eid pointed to a number of items that the
State allegedly failed to produce in response to a discovery
request made by Eid on November 27, 2007.
Specifically, Eid
listed the following items in his motion to compel:
(a)
(b)
(c)
(d)
(e)
(f)
HPD departmental policies and procedures for
conducting speeding citations;
The HPD manual for speeding citations;
The make and model of the car or motorcycle;
The age of the car or motorcycle;
The dates and description of repair work done on the
car or motorcycle during the period of any applicable
speedometer check;
The age of each tire on the car or motorcycle and any
3
Although Eid alleged a violation of HRPP Rule 16(b) and (c), Eid
only asserted arguments under HRPP Rule 16(b) in his motion to compel. HRPP
Rule 16(b)(2) provides, in pertinent part:
Upon written request of defense counsel and specific
designation by defense counsel of material or information
which would be discoverable if in the possession or control
of the prosecutor and which is in the possession or control
of other governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel; and if
the prosecutor’s efforts are unsuccessful the court shall
issue suitable subpoenas or orders to cause such material or
information to be made available to defense counsel.
4
This is the first document in the record on appeal, although it
appears that the district court held several prior hearings in which Eid was
orally charged and requested continuances for the purpose of filing a motion
to compel discovery.
In addition, it should be noted that the district court’s denial
of Eid’s motion to compel is not at issue in the instant application, but is
discussed at some length for background purposes because the arguments raised
in that motion are related to the arguments raised in Eid’s motion in limine
regarding the admissibility of the speed check. As discussed infra, the
district court held a single hearing on Eid’s motion to compel and motion in
limine.
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(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
information regarding maintenance of the tires;
The speed check card, including:
i.
The name of the auto shop used;
ii.
The name of the person who conducted the speed
check;
iii. A description of the procedures used to test the
speedometer;
iv.
Any other records regarding the speed check.
The maintenance records for any vehicle alleged to
have paced [Eid’s] speed for the period of any speed
checks (in particular, the records relating to the
tires and drive train of the vehicle) for one year
prior to and one year after the date(s) of the alleged
offense;
Any certification from any government or nongovernmental agency, including any
speedometer/odometer check, done on any vehicle
alleged to pace [Eid’s] speed;
Any speed reading for [Eid’s] vehicle;
The maintenance records, for one year prior and one
year after the date(s) of any alleged offense(s), for
any device used to calibrate the speedometer/odometer
of any motor vehicle used to pace [Eid’s] motor
vehicle;
The police maintenance records for any other speed
measuring device used in this case, for the year prior
and one year after the dates of any alleged
offense(s), done on any vehicle alleged to have paced
[Eid’s] speed;
The manufacturer’s operators and maintenance manuals
for any other speed measuring device used in this
case, for the year prior and one year after the dates
of any alleged offense(s), done on any vehicle alleged
to have paced [Eid’s] speed;
The speed check device manufacturer’s established
procedures for verifying and validating that the
instrument was in proper working order;
Written verification that said manufacturer’s
established procedures were followed;
Written verification that the speed check device or
machine was in proper working order;
Records of regular maintenance, servicing, upkeep,
repair, modification and/or calibration of the speed
check machine or device performed by the manufacturer
(or the manufacturer’s duly trained and licensed
representative, a year before and a year after the
dates of any alleged offenses(s), as well as official
maintenance, repair, modification, servicing, and/or
calibration manuals for the device in question
prepared by and/or relied upon by the manufacturer (or
the manufacturer’s duly trained and licensed
representative[)].
Eid argued that “[a]s the accuracy of the pacing method
is contingent upon correct operating procedures employed by HPD,
all information on which the speed check is based and that
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pertain to provide [sic] information relating to the speed of all
vehicles involved in the incident are essential to [Eid’s] case.”
Eid argued that the items listed in his motion to compel must be
provided “in order to adequately prepare not only for trial, but
also for anticipated pretrial motions.”
Eid further argued that
the requested materials would “tend to negate [his] guilt[.]”
The State argued in its opposition that the discovery
requested in Eid’s motion to compel was beyond the scope of HRPP
Rule 16(a) and (d).
Specifically, the State argued that because
this was not a felony case, and thus, discretionary discovery
applied, Eid “fail[ed] to demonstrate that the requested items
for training documents, records, and manuals [were] material and
reasonable[,]” as required by HRPP Rule 16(d).
On February 29, 2008, Eid filed a Motion in Limine to
Preclude Evidence of Honolulu Police Officer’s Speed Check Card
and Testimony of any Speedometer Reading (motion in limine).
Specifically, Eid sought an in camera hearing regarding
admissibility and sought to exclude: (1) any speed check card or
testimony related to the contents of a speed check card performed
on any vehicle alleged to have paced Eid’s vehicle; and (2) the
speedometer reading from any officer’s vehicle that was alleged
to have paced Eid’s vehicle.
In support of his motion, Eid
argued: (1) a speed check does not fall within the business
records exception or the public records exception to the hearsay
rule; (2) admission of the speed check into evidence through
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testimony of an HPD officer would violate Eid’s constitutional
right of confrontation; (3) evidence adduced at the in camera
hearing would fail to establish the requisite foundation for
admission of the speed check cards and speedometer reading; and
(4) the accuracy of a speed check and a speedometer go to the
admissibility and not the weight of the evidence.
The State did
not file an opposition to Eid’s motion in limine.
B.
Pretrial Hearing
A hearing on Eid’s motion to compel commenced on April
16, 2008 and continued over the course of five days.5
At the
outset, the parties stipulated to certain exhibits being admitted
into evidence for purposes of the hearing on the motion to
compel.6
The State presented the testimony of five witnesses:
Roy Ozaki (Roy), Duane Ozaki (Duane), Michelle Oki, Sergeant
Sherman Dowkin, and Officer Benjamin Perez.
witness was Marcus Ho.
The defense’s sole
The following relevant evidence was
adduced at the hearing.
1.
Roy Ozaki’s Testimony
Roy, the owner of Roy’s Automotive, and his son, Duane,
5
Eid’s case was heard with State v. Montalbo, 1DTC-07-045483, and
the State referred to the two cases as “test cases” for using a police
officer’s speedometer in the prosecution of an excessive speeding charge.
6
These exhibits included: State’s Exhibits 1-4 (photographs of the
equipment used during speed checks); State’s Exhibit 5 (Roy Ozaki’s CV);
State’s Exhibit 6 (letters from North Hollywood Speedometer and Clock);
State’s Exhibit 7 (Duane Ozaki’s CV); Defense Exhibit C (duplicates of the
letters from North Hollywood Speedometer and Clock); Defense Exhibit D (a copy
of Sergeant Sherman Dowkin’s July 21, 2007 speed check card); Defense’s
Exhibit E (Marcus Ho’s CV); and Defense Exhibit F (a copy of Officer Benjamin
Perez’s July 23, 2007 speed check card).
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testified as experts for the State.7
Both Roy and Duane are
licensed automotive mechanics and master certified automobile
technicians.
Roy testified that he and Duane are the only
persons who conduct speed checks for customers at Roy’s
Automotive, and they performed speed checks on the speedometer of
the vehicle used by Officer Perez in citing Eid.
Roy testified that they use three items to conduct
speed checks: (1) a master head; (2) rollers; and (3) a cable
[hereinafter collectively called “speedometer dynamometer”].8
Roy testified that he obtained his speedometer dynamometer from
another mechanic, Jack Higa.
Higa gave Roy the speedometer
dynamometer on the condition that he put in a bid to do speed
checks for HPD.
Roy did, and he was awarded a one-year contract
with HPD from 2007-2008.
After receiving the speedometer
dynamometer, Roy did not immediately start checking HPD vehicles.
Rather, Roy spent two to three weeks conducting at least four to
six speed checks on his own vehicles prior to checking the first
HPD vehicle.
Roy explained that they “wanted to test [the
speedometer dynamometer] and make sure [they] knew what [they]
were doing and the results would be coming out the way [they
were] supposed to be coming out.”
Roy estimated that in 2007, he
7
The district court qualified Roy as an automotive vehicle mechanic
expert and a motor vehicle mechanic dealer expert and qualified Duane as an
expert in the fields of automotive mechanics and repair and automotive
technology.
8
As explained infra, Roy’s Automotive occasionally used a scanner,
in addition to the speedometer dynamometer, to perform speed checks.
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performed more than 1,200 speed checks for HPD.
Roy testified that when he obtained the speedometer
dynamometer from Higa, he did not feel that he and Duane, “being
licensed technicians,” needed “special training” to learn how to
use the setup.
Roy explained that “for a mechanic, it’s pretty
straightforward.”9
Roy recounted that Higa told him, “eh, you
guys mechanics, you got two rolling wheels, the one cable, just
get the car on there and you measure everything out.
It’s as
simple as that, and you guys mechanics, you supposed to know what
you’re doing.”
Roy testified that he did not receive a manual
from Higa for the speedometer dynamometer, but added that he did
not feel that a manual was necessary.
Roy testified that during a speed check, the vehicle is
placed on the rollers of the speedometer dynamometer and the car
is started, causing the wheels of the car to spin and move the
rollers.
A cable connects the rollers to the master head.
When
the car’s wheels turn the rollers, the cable that connects the
rollers to the master head spins.
The spinning cable causes the
needle on the master head display to move and designate a speed,
which is based on the speed at which the rollers are spinning.
Roy’s speedometer dynamometer is strictly mechanical and does not
involve any computer software.
9
As discussed infra, the defense’s expert witness, Ho, similarly
testified that he did not believe formal training is necessary to learn how to
use a speedometer dynamometer.
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Roy further testified that during the speed check, the
speed reading from the master head is compared with the speed
shown on the car’s speedometer at ten mile-an-hour increments,
starting at 25 mph and ending at 95 mph.
When asked whether he
is “accurately recording the numbers on a speed check card[,]”
Roy affirmatively responded that he “write[s] down what [he]
see[s].”
Roy explained that the speed check card reflects the
readings of the car’s speedometer and the master head at various
speeds, including the extent to which the car’s speedometer
reading differs from the master head’s reading.
Roy testified that in February or March of 2007, he
noticed that comparison readings from the master head and the
speedometer were “okay” up to 75 mph, but the car’s speedometer
was “showing typically two or three [mph] fast at eighty-five;
four or five [mph] fast at ninety-five.”
Roy called Hartmut
Behrens, of North Hollywood Speedometer, and notified Behrens of
the master head readings.
North Hollywood Speedometer was the
manufacturer of the master head, and Roy believed that Behrens
was the owner of North Hollywood Speedometer.
Roy testified that
he explained to Behrens how he was working his speedometer
dynamometer and the types of cars being tested.
Behrens told
him, “you don’t have to send it back, nothing’s wrong, you’ve
fallen close to that two percent [margin of error] and from what
you’re telling me, it’s okay[.]”
Roy testified that he sent the master head to North
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Hollywood Speedometer in January 2008 to “get it checked out.”
Although Roy only sent the master head, he conveyed the necessary
measurements of his rollers to North Hollywood Speedometer.10
In
response to Roy’s inquiry, North Hollywood Speedometer sent two
letters to Roy’s Automotive signed by Behrens.
In the
January 16, 2008 letter, Behrens stated that the master head had
been overhauled and calibrated to the “specifications of the
speedometer roller device” used by Roy’s Automotive.
Behrens
indicated in the second letter11 that the master head was checked
for accuracy before it was overhauled by North Hollywood
Speedometer, with the following results:
MPH Readout at:
30
60
80
90
Masterhead indicated
31
62
82
93
The second letter further reported that “[b]esides the
damage to the outside casing and lens we found the instrument to
be in working condition.”
Below the results, the letter
indicated that “[c]onsidering a [plus or minus two-percent]
accuracy tolerance on the Masterhead[,] the readout is considered
to be accurate.”
As noted supra, the parties stipulated to both
10
Roy testified that North Hollywood Speedometer has a “similar
setup” as his shop based upon his correspondence with Behrens. Roy further
testified that he did not know who manufactured the rollers or the cable on
his setup, but he indicated that sometime in 2007 he replaced the original
cable he received with one made by Higa.
11
Roy testified that even though the second letter was dated
“January 29, 2009,” the “2009” was a typographical error and should have read
“2008.”
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letters being admitted into evidence for the purpose of the
pretrial hearing.
The July 23, 2007 speed check card prepared by Roy’s
Automotive for Officer Perez’s vehicle was also admitted into
evidence by stipulation.
A notation on the speed check card
indicated that the speed check was performed through the use of
the speedometer dynamometer and a “snap on scanner.”12
The
July 23, 2007 speed check card showed that Officer Perez’s
speedometer was tested and found to have no discrepancies with
the speedometer dynamometer at speeds up to 65 mph.
At higher
speeds, Officer Perez’s speedometer was registering: 1 mile slow
at 75 mph; 2 miles slow at 85 mph; 3 miles slow at 95 mph; 3
miles slow at 105 mph; and 3 miles slow at 110 mph.
The initials
on the speed check card indicated that Roy performed the speed
check.
In addition, Roy testified about how a vehicle’s tire
size and tire pressure can affect a vehicle’s speed, as well as
12
In addition to using the master head to perform speed checks, Roy
testified that for a brief period in July 2007, Roy’s Automotive used devices
called scanners to test HPD speedometers at speeds faster than 100 mph.
According to Roy, a scanner is a “diagnostic tool” that is attached to the
vehicle’s on-board computer that produces speedometer readings. The scanner
reads data sent to a car’s computer system, including the data used to produce
the speed reading shown on the car’s speedometer. When a scanner is used,
three things are looked at, “[t]he speedometer head of the vehicle, the master
head and the scanner.”
For speed checks in which a scanner was used, Roy testified that
they would place the car on the speedometer dynamometer and also connect the
scanner. Roy or Duane would look at the readings from both the master head of
the speedometer dynamometer and the scanner in testing the car’s speedometer
up to 100 mph. When the speed reached 100 mph, the master head of the
speedometer dynamometer would be disconnected and only the scanner used.
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their impact on the results of a speed check.
2.
Duane Ozaki’s Testimony
Duane’s testimony was substantially similar to Roy’s.
Duane testified that the purpose of the speedometer dynamometer
is “to check speedometer accuracy.”
Duane testified that during
a speed check, if there are discrepancies between the readings of
the master head and the vehicle’s speedometer, he will slow down
the vehicle and then accelerate it again to confirm the readings.
To Duane’s knowledge, the rollers and cable were never checked by
the manufacturers while in their possession.
On cross-examination, Duane conceded that all the
components of the speedometer dynamometer needed to be working
properly in order to get accurate readings.
Duane also responded
to extensive questions about how tire size and tire pressure
could affect speedometer readings.
3.
Marcus Ho’s Testimony
The district court qualified Eid’s expert witness, Ho,
as an expert on the mechanics of a dynamometer.
Ho testified
that he did not have any formal training in auto mechanics, but
he did not believe that formal training was necessary to operate
a speedometer dynamometer.
Rather, Ho believed that a person
could “gain knowledge about the [speedometer] dynamometer by
using it” “a couple [of] times.”
Ho testified that he owned and
operated a chassis speedometer dynamometer, which operated under
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the same mechanical principles as Roy’s Automotive’s speedometer
dynamometer, but differed in that it was not purely mechanical.
Instead, Ho’s produced a “digital readout[.]”
The manufacturer
of Ho’s speedometer dynamometer was Dyno Jet.
According to Ho, a
speedometer dynamometer can measure horsepower, torque, and/or
speed, depending on how it is set up.
Ho testified at length
about a number of factors that could affect the accuracy of the
test, including the stretching or twisting of the cable, tire
size, and tire pressure.
Ho opined that there were “more
variables than real-world conditions than on [Roy Automotive’s
speedometer dynamometer].”
When defense counsel asked whether
all three components of the speedometer dynamometer would need to
be calibrated properly to give an accurate reading, Ho responded
affirmatively.
4.
Officer Benjamin Perez’s Testimony
Officer Perez did not testify at the pretrial hearing.
Rather, the defense and State stipulated to various facts
relating to Officer Perez’s purchase and maintenance of his
subsidized vehicle.
The parties did not stipulate to any facts
related to the speed check, apparently because one of Officer
Perez’s speed check cards was already in evidence for the purpose
of the hearing.
5.
Michelle Oki’s Testimony
Oki, a supervisor for the HPD Vehicle Maintenance
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Section, testified that Roy was the vendor that HPD used for
speed checks, and no one at HPD calibrated speedometers.
Oki
testified that she has been working for HPD for almost 20 years
in various positions, including a vehicle dispatch service
writer, an automotive mechanic, and an automotive repair
supervisor, her current position.
Oki testified that based on
her experience it was “very rare [to] have speedometer problems”
in the patrol cars.
HPD had procedures in place when a problem
with a speedometer occurred.
Oki further testified that in the
last six years, a broken speedometer occurred “[a]bout nine
times.”
Additionally, Oki testified about the potential impact
on her ability to perform her job if the court compelled her to
provide some of the items requested by Eid’s counsel in every
traffic case.
6.
Sergeant Sherman Dowkin’s Testimony
Sergeant Dowkin, Traffic Enforcement Supervisor for the
windward side of Oahu, testified that he drove a subsidized
police vehicle, which he described as “a vehicle that the
officers can select from a list of approved vehicles from a
police department.”
Sergeant Dowkin also provided testimony on the “paceclock method” that officers use to measure the speed of another
vehicle.
He described it as following a vehicle for ideally
“two-tenths of a mile[,]” while “attempting to maintain a steady
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distance between the target vehicle and [the officer’s] vehicle,”
and then using the officer’s speedometer to measure “the speed of
the target vehicle[.]”
Sergeant Dowkin was not aware of any
manual “on how to do pace clocks[.]”
He testified that he was
aware of “HPD departmental policies and procedures for conducting
speeding citations[,]” but that there were policies against
disseminating that information to the public.
After hearing five days of testimony and considering
summation memoranda submitted by both parties, the district court
found that:
[T]he defendants’ expert, Marcus Ho, is an individual
with experience in auto racing with construction and
modification of cars for racing purposes. That Mr. Ho’s
Dynojet is utilized more for purposes of determining
horsepower, drive training, engine performance issues,
rather than for determining speed.
The [c]ourt will further find that Mr. Ho’s testimony
was neither persuasive nor convincing in establishing that
the requested discovery documents are reasonable and
material, and as such, this [c]ourt will deny the
defendants’ motion to compel discovery.
In terms of relevant information for pace cases, this
[c]ourt will allow the following information, not by
pretrial discovery, but rather upon testimony elicited by
either direct or cross-examination of the citing officer.
First being the applicable speed check card covering the
date of citation, any repairs to the speedometer made since
the date of the applicable speed check and any change in
tire size made since the date of the applicable speed check.
In light of this [c]ourt’s ruling, the [c]ourt finds
that there is no need for a hearing on the defendants’
motion in limine, and hereby deny [sic] same, and that these
matters are to be set for trial forthwith.
(Emphasis added).
Eid filed a motion for clarification on September 23,
2008, requesting that “the court clarify whether, in denying the
[m]otion in [l]imine, it relied upon the evidence adduced during
the hearing on the [m]otion to [c]ompel [d]iscovery on April 16,
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April 30, May 14, June 4, and June 18, 2008[.]”
At a October 3,
2008 hearing, the district court clarified that “the court’s
denial of the motion in limine [was] based on the same ruling and
reasoning [the] court articulated for its denial of [Eid’s]
motion to compel.”
C.
Bench Trial
On December 19, 2008, a one-day bench trial was held.
At the outset, the parties stipulated that it was “proper for the
court to consider the entirety of the hearings as to the motion
to compel for its ruling on the motion in limine.”
Additionally,
the parties stipulated that the three transcripts of the
testimony of Roy and Duane would be entered into evidence.
After
going over a colloquy with Eid, and informing him of, inter alia,
his right to confront and cross-examine Roy and Duane, the
district court approved the stipulation and entered the three
transcripts into evidence.
The State then proceeded to call its first witness,
Mark Kikuchi, an employee of the City and County of Honolulu,
Department of Transportation Services.
Kikuchi testified that
not all City and County streets and roads are listed within the
speed schedules.
Kikuchi further testified that Oneawa Street in
Kailua is not listed on the speed schedule, but the speed limit
for Oneawa Street is “25 [mph]” based on the default speed limit
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set by the Revised Ordinances of Honolulu (ROH).13
Kikuchi also
stated that there were signs posted on Oneawa Street that
indicated the speed limit of 25 miles per hour.
Over defense
counsel’s objections, the court eventually took judicial notice
“that the default speed limit for Oneawa Street is 25 miles per
hour” based on the default speed limit in ROH § 15-7.2(b)(1).
The State then called Officer Perez as its next and
final witness.
Officer Perez testified about the maintenance of
his subsidized vehicle, a 2004 Ford Crown Victoria, which he was
driving on September 19, 2007.
Pursuant to HPD requirements,
Officer Perez had a speed check conducted on his vehicle several
times, because speed checks are good for “one year from the date
of the speed check.”
Officer Perez testified that “speed checks
are conducted to ensure the accuracy of the individual vehicle
that is being checked,” and that they are used “[t]o make sure
that [his] speedometer is accurate when [he is] pace clocking
other vehicles.”
He further testified that “speed checks [are]
conducted on [his] vehicle in the course of regularly maintaining
[his] subsidized HPD vehicle[.]”
13
It appears that Kikuchi was referring to ROH § 15-7.2(b)(1)
(1983), which provides:
No person shall drive a vehicle on a public highway or
street at a speed in excess of the following speed limit
zones established or hereafter established therefor by
ordinance of the city council.
. . . .
(b)
Twenty-five miles per hour.
(1)
Any street or highway within the City and County
of Honolulu where a speed limit has not been
otherwise established.
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Officer Perez testified that he had two speed checks
that covered September 19, 2007, the day he issued the citation
to Eid.
Specifically, Officer Perez had a speed check conducted
on his vehicle on April 5, 2007, the results of which were
“written on a card with Roy’s letterhead on it.”
Officer Perez
explained that he personally took his car down to Roy’s
Automotive and waited for 20 to 25 minutes while Roy performed
the speed check.
When the State attempted to move the April 5,
2007 speed check card into evidence, defense counsel objected,
arguing that “[it was] hearsay and it [did] not fall into the
business records exception because the speed check card [was]
being used purposely or solely in anticipation of litigation in
issuing citations.”
Defense counsel further objected “pursuant
to all the reasons included in [Eid’s] motion in limine.”
The State argued that it was “simply trying to lay [a]
foundation under [Hawai#i Rules of Evidence] HRE Rule 104.”
Alternatively, the State argued that it had “laid a sufficient
foundation for . . . the admission of the speed check card as a
regularly conducted activity under HRE [R]ule 803(b)(6).”
The
court adopted the State’s arguments and overruled defense
counsel’s objections.
Accordingly, a copy of the speed check
card was admitted into evidence as State’s Exhibit 1.
The State
proceeded to ask Officer Perez about his understanding of the
April 5, 2007 speed check card.
Officer Perez explained that Roy
checked his speedometer at given speeds, and the results showed
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that when tested at 65 mph, his “vehicle[’s] speedometer was also
reading 65 [mph.]”
Officer Perez testified that he also had a speed check
performed on July 23, 2007 at Roy’s Automotive.
The court also
admitted a copy of the July 23, 2007 speed check card into
evidence over the same defense objections.
Officer Perez
testified that the July 23, 2007 speed check card also showed
that when tested at 65 mph, his speedometer was reading 65 mph.
When asked whether this “show[ed] that [his] vehicle[’s]
speedometer [was] working properly[,]” Officer Perez answered
affirmatively.
Officer Perez explained that he had two speed
check cards because the April 5, 2007 speed check was conducted
using only the speedometer dynamometer, while the July 23, 2007
speed check was conducted using a scanner and the dynamometer.
Officer Perez further testified to the events leading
to Eid’s citation for excessive speeding.
Officer Perez
testified that on September 19, 2007, at 1:20 a.m., he was on
duty and noticed Eid on Mokapu Boulevard turning onto Oneawa
Street.
Traveling behind Eid’s car, Officer Perez observed that
Eid started to accelerate in the area of Kaha Street “faster than
what appeared to be 25 [mph].”
Officer Perez testified that he
then pace-clocked Eid’s vehicle for over two-tenths of a mile.
Over defense counsel’s objection,14 Officer Perez testified that
14
The basis for the objection was “indiscernible.”
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during the pace-clock, his speedometer read “65 [mph].”
Officer
Perez further testified that as he was pacing Eid, they passed at
least three signs that indicated a speed limit of 25 miles per
hour.
Officer Perez then stopped Eid’s vehicle and issued Eid a
citation for traveling 65 mph in a 25 mph zone.
On cross-examination, defense counsel questioned
Officer Perez about the two speed check cards.
Specifically,
defense counsel pointed to the fact that “in April 2007 [Officer
Perez’s] speedometer was reading five miles fast at 95 miles an
hour,” while “three months later, in July of 2007 [Officer
Perez’s] speedometer was reading three miles slow at 95 miles an
hour[.]”
Officer Perez testified that he was not bothered by
this discrepancy, because the differences were explained to him
and “made sense[.]”
Officer Perez further testified that he had
no opinion as to whether one card was more accurate than the
other.
At the conclusion of Officer Perez’s testimony, the State
rested.
The defense then moved for judgment of acquittal,
arguing that the “State [had] failed to make a prima facie case
as to each and every material element of the offense charged,
specifically, [] the establishment of the speed limit zone.”
The
district court denied Eid’s motion for judgment of acquittal.
Eid chose not to testify.
The parties stipulated that
Ho would not be called as a witness in the defense’s case in
chief, but the testimony of Ho from the hearing on the motion to
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compel would be received into evidence.
After a colloquy with
Eid, the district court accepted the stipulation, and the defense
rested.
Both the State and the defense waived closing
arguments.
Thereafter, the court ruled in relevant part as
follows:
Based on the evidence presented at this trial today as well
as taking into consideration the testimony by way of
stipulation, the exhibits presented and the arguments made,
the representation made by counsel throughout the trial,
. . . the State has presented convincing evidence beyond a
reasonable doubt that the defendant was accurately paced by
Officer Perez for three-tenths of a mile at 65 [mph] and
that his speedometer indicating on the –- both speed checks
were accurate despite the fact that there were discrepancy
at higher rates of speed. The court is satisfied that the
State has proven that the defendant was travelling [sic] in
the -- in the pace clock distance at 65 [mph] in a 25 [mph]
zone, and as such, will find [Eid] guilty.
The court entered judgment the same day, sentencing Eid
to pay a $500 fine, a $30 criminal injuries fund fee, a $7 driver
education assessment, a $75 driver education assessment, and a
$25 neurotrauma fee.
Additionally, the court ordered Eid to
complete a driver’s education improvement course and perform 36
hours of community service.
license for 30 days.
Lastly, the court suspended Eid’s
The court granted defense counsel’s request
to stay the sentence pending appeal.
D.
ICA Appeal
On January 13, 2009, Eid filed his Notice of Appeal.15
15
Note that the Notice of Appeal and ICA briefs submitted by the
parties in this case predated Fitzwater, which this court decided on March 3,
2010.
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In his Opening Brief, Eid argued that the district court abused
its discretion:
(1) in denying his motion to compel; and (2) in
denying his motion in limine to preclude the evidence of Officer
Perez’s speed check card and speedometer reading.
Regarding the
denial of his motion to compel, Eid contended that “the items
requested were material and the request was reasonable[,]” and
thus, pursuant to HRPP Rule 16(b)(vii) and (d), the district
court abused its discretion in denying the motion.
As for the
denial of his motion in limine, Eid contended that an
insufficient foundation was laid to admit evidence related to the
alleged speedometer reading.
Specifically, Eid asserted that
“the State failed to adduce the requisite foundation that the
speedometer could be relied upon as substantive fact and that it
was in proper working order.”
In its Answering Brief, the State argued that much of
the information requested was disclosed at the hearing on the
motion to compel and any further discovery would amount to an
“open-ended fishing expedition.”
Additionally, the State argued
that Eid failed to show that discovery of certain requested items
was material and reasonable as required by HRPP Rule 16(d).
As
for the motion in limine, the State contended that Officer
Perez’s speedometer was calibrated by Roy’s Automotive using
Roy’s speedometer dynamometer.
Evidence adduced at the hearing
indicated that “the speedometer in Officer Perez’s Crown
[Victoria] was accurate at 25, 35, 45, 55, and 65.”
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fact that Eid was cited for “going 40 mph over the applicable
speed limit,” the State argued that there was room for a 10 mph
margin of error and that nothing in the record indicated that any
potential error amounted to that.
1.
The ICA’s Lead Opinion
The ICA issued its SDO on June 9, 2011.
The ICA’s lead
opinion held that “[t]here was insufficient evidence presented to
satisfy the foundational requirements of [Fitzwater] for
admissibility of the speed check card, and consequently, the
speedometer reading in this case.”
omitted).
SDO at *1 (internal citation
The lead opinion noted that “the State failed to prove
‘the manufacturer of the equipment used to perform the check[,]’
insofar as only the manufacturer of the ‘master head’ and not the
entire speed check testing assembly referred to as ‘the
dynamometer,’ was established.”
Id.
Accordingly, the lead
opinion held that “it was error to deny Eid’s motion in limine to
exclude evidence of the speed check card and speedometer
reading[,]” and concluded that “there was insufficient evidence
supporting [Eid’s] conviction for Excessive Speeding and that
conviction must be reversed.”
Id.
As a result, the ICA lead
opinion found it unnecessary to address Eid’s point of error
concerning discovery, and remanded the case to the district court
for consideration of whether the remaining evidence was
sufficient to convict Eid of the lesser included offense of
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Noncompliance with Speed Limit.
2.
Id.
The ICA Dissent
In his dissent, Chief Judge Nakamura disagreed with the
majority’s reading of Fitzwater.
Chief Judge Nakamura noted that
on its face, Fitzwater required evidence that the speed check was
“performed in the manner specified by the manufacturer of the
equipment used to perform the check.”
SDO Dissent at *5.
Chief
Judge Nakamura contended that the foundational requirements
established in Fitzwater “must be viewed in the context of the
assumptions the court was required to make due to the lack of
information about the kind of test performed.”
Id. at *6.
Thus,
he did not “read Fitzwater as imposing an inflexible rule that,
regardless of whether the court’s assumptions about speed checks
are true, the only way to establish the foundational requirements
for admission of speed check results and speedometer readings is
by reference to procedures and training established by the
manufacturer.”
Id.
Based on the testimony and evidence
presented at the pretrial hearing, Chief Judge Nakamura concluded
that the State was “able to lay an adequate foundation for the
admission of Officer Perez’s speedometer reading[,]” and “the
admission of the July 23, 2007, speed check evidence.”
*7.
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II.
A.
Standards of Review
Motion in Limine
The granting or denying of a motion in limine is reviewed
for abuse of discretion. The denial of a motion in limine,
in itself, is not reversible error. The harm, if any,
occurs when the evidence is improperly admitted at trial.
Thus, even if the trial court abused its discretion in
denying a party’s motion, the real test is not in the
disposition of the motion but the admission of evidence at
trial.
Miyamoto v. Lum, 104 Hawai#i 1, 7, 84 P.3d 509, 515 (2004)
(internal quotation marks, citations, ellipses, and brackets
omitted).
B.
Admissibility of Evidence
When a question arises regarding the necessary foundation
for the introduction of evidence, the determination of
whether proper foundation has been established lies within
the discretion of the trial court, and its determination
will not be overturned absent a showing of clear abuse.
State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233 (2009)
(internal quotation marks and brackets omitted).
III.
Discussion
In his opening brief to the ICA, Eid argued, inter
alia, that the district court erred in denying his motion in
limine to preclude the admission of the speed check cards and
Officer Perez’s testimony as to his speedometer reading.
Eid
asserted that “the State failed to adduce the requisite
foundation that the speedometer could be relied upon as
substantive fact and that it was in proper working order[,]”
under principles set forth in State v. Wallace, 80 Hawai#i 382,
910 P.2d 695 (1996), and State v. Manewa, 115 Hawai#i 343, 167
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P.3d 336 (2007).
This court subsequently decided Fitzwater,
which specifically addressed the foundation needed to admit
speedometer readings and speed check card evidence.
at 365-77, 227 P.3d at 531-43.
122 Hawai#i
Based on its reading of
Fitzwater, the ICA majority concluded that the State did not
establish sufficient foundation, because it had not proved the
identity of the manufacturer of the entire dynamometer.
*1.
SDO at
For the reasons set forth below, the ICA erred in reaching
that conclusion, since the evidence adduced at the pretrial
hearing was sufficient to establish that “the speed check could
be relied on as a substantive fact[.]”
Fitzwater, 122 Hawai#i at
377, 227 P.3d at 543 (quoting Wallace, 80 Hawai#i at 412, 910
P.2d at 725) (internal quotation marks omitted).
Accordingly,
the district court did not abuse its discretion in overruling
Eid’s lack of foundation objection and admitting the speed check
evidence and Officer Perez’s testimony.
A.
Foundational requirements required for admission of test
results
Fitzwater is the leading case on point because it
involved the reliability of speed check and speedometer reading
evidence in an excessive speeding case.
Id.
Fitzwater, however,
relied on prior cases regarding the admissibility of test results
involving other types of testing instruments.
P.3d at 540-44.
Id. at 374-78, 227
Accordingly, a review of those cases follows.
In Wallace, this court examined the admissibility of
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test results relating to the weight of cocaine.
409-16, 910 P.2d at 722-29.
80 Hawai#i at
At issue in Wallace was the
reliability of the scale a chemist used to weigh the cocaine.
Id.
This court reiterated the fundamental evidentiary rule that
“before the result of a test made out of court may be introduced
into evidence, a foundation must be laid showing that the test
result can be relied on as a substantive fact.”
80 Hawai#i at
407, 910 P.2d at 720 (quoting State v. Kemper, 80 Hawai#i 102,
105, 905 P.2d 77, 80 (App. 1995)).
This court stated that the
reliability of a test result requires “a showing that the
measuring instrument is ‘in proper working order.’”
Id. (quoting
State v. Thompson, 72 Haw. 262, 263, 814 P.2d 393, 395 (1991))
(internal quotation marks omitted).
Because the chemist “lacked
personal knowledge that the balance had been correctly calibrated
and merely assumed that the manufacturer’s service representative
had done so[,]” this court concluded that the State failed to
show that the balance was “in proper working order.”16
80 Hawai#i at 412, 910 P.2d at 725.
Wallace,
Accordingly, this court held
that the chemist’s testimony as to the net weight of cocaine was
inadmissible because inadequate foundation was laid.
Id.
Similarly, in Manewa, this court examined the
admissibility of testimony relating to the results of an
16
This court noted that defendant Wallace had conceded that the
necessary information could have been, but was not, provided via a document
from 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[.]” 80 Hawai#i at 412 n.28, 910 P.2d at 725 n.28.
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analytical balance used to weigh methamphetamine.
345-46, 167 P.3d at 338-39.
115 Hawai#i at
At trial, an HPD criminalist
testified to the weight of the methamphetamine, but he had not
actually calibrated or serviced the balance himself, nor did he
have knowledge about how it was done.
339.
Id. at 346, 167 P.3d at
The HPD criminalist merely testified that a manufacturer’s
representative “checks out and services the balance two times a
year” and fills out a form indicating that the balance is in
proper working condition.17
348.
Id. at 346, 355, 167 P.3d at 339,
This court identified the same foundational concerns that
it identified in Wallace:
first, the manufacturer’s service
representative did not testify to calibration of the balance, and
second, the State offered no business records of the manufacturer
indicating a correct calibration of the balance.
P.3d at 350.
Id. at 357, 167
Accordingly, the court held that an “inadequate
foundation was laid to show that the weight measured by the
balance could ‘be relied on as a substantive fact[.]’”
Id. at
356, 167 P.3d at 349 (quoting Wallace, 80 Hawai#i at 412, 910
P.2d at 725).
In State v. Assaye, this court applied the reasoning of
Wallace and Manewa to a laser gun used to measure a defendant’s
17
This court noted that such documents were in existence, but were
not offered by the state at trial. See Manewa, 115 Hawai#i at 355-56, 167
P.3d at 348-49 (“[A]s in Wallace, [the state] did not offer any business
records of the manufacturer indicating a correct calibration of the
balance. . . . Although available per the testimony of [the criminalist], [the
state] did not offer such records into evidence.”).
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speed in an excessive speeding case.
1227 (2009).
121 Hawai#i 204, 216 P.3d
At trial, the officer testified that he was
certified to use the laser gun and had also been instructed on
how to test and operate it.
Id. 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.
Id. at 206, 216 P.3d at 1229.
The trial court
overruled the objection and admitted the officer’s testimony.
Id. 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 “substantive fact.”
212-14, 216 P.3d at 1235-37.
Id. at
Specifically, this court held that
“the prosecution must prove that the laser gun’s accuracy was
tested according to procedures recommended by the manufacturer.”
121 Hawai#i at 215, 216 P.3d at 1238.
The court further 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[,]” and found that the prosecution did
not satisfy this burden either.
Id. at 215-16, 216 P.3d at 1238-
39.
Similar to the present case, Fitzwater involved charges
of excessive speeding.
122 Hawai#i at 357, 227 P.3d at 523.
In
Fitzwater, the State offered testimony from Officer Neal Ah Yat,
who stopped and cited Fitzwater for excessive speeding.
357-58, 227 P.3d at 523-24.
Id. at
Officer Ah Yat testified that a
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speed check was conducted on his police vehicle by “Jack’s
Speedo” in August 2006, but Officer Ah Yat did not testify about
how the speed checks were done.
Id. at 358, 227 P.3d at 524.
Over defense counsel’s objections, Officer Ah Yat testified to
the results of the speed check, which indicated 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.’”
358-59, 227 P.3d at 524-25.
Id. at
Thereafter, the court admitted a
copy of the speed check card into evidence over the objection of
defense counsel.
Id. at 359, 227 P.3d at 525.
On cross-
examination, Officer Ah Yat acknowledged that he had not
personally taken his vehicle to Jack’s Speedo and did not know
how the speed check was conducted.
Id.
Based in large part on
the testimony of Officer Ah Yat, the court found Fitzwater guilty
of excessive speeding.
Id. at 360, 227 P.3d at 526.
Fitzwater challenged his conviction on several grounds,
including insufficient foundation for the admission of the speed
check card and insufficient foundation to establish the
speedometer had been properly calibrated.
P.3d at 527-28.
Id. at 361-62, 227
As a preliminary matter, this court addressed
whether a speed check card could be admitted as a business record
under HRE Rule 803(b)(6).18
18
Id. at 362-63, 227 P.3d at 528-29.
HRE Rule 803(b)(6) (1993 and Supp. 2002) provided in pertinent
part:
Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
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After noting that Officer Ah Yat’s speed check card was most
likely prepared by a private shop and then incorporated by HPD
into its records, this court held that the card was not
admissible since the state had offered insufficient evidence to
establish the reliability of the document.19
Id. at 369, 227
P.2d at 535.
This court also addressed Fitzwater’s argument that
“the State failed to establish a sufficient foundation to show
that the speedometer had been properly calibrated under
principles set forth in [Wallace] and [Manewa].”
P.2d at 540.
Id. at 374, 227
As a preliminary matter, this court examined
Wallace and Manewa, which, as discussed supra, established the
foundational requirements necessary before results of the
calibration scales used to weigh narcotics can “be relied on as a
substantive fact[,]” and observed that those underlying
principles had been extended to the results of laser guns in
Assaye.
Fitzwater, 122 Hawai#i at 376, 227 P.3d at 542.
This
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.
19
In contrast to the circumstances in Fitzwater where there was no
evidence to establish the reliability of the speed check card, the parties
here stipulated to Roy and Duane’s pretrial testimony being admitted at trial.
As discussed supra, that testimony involved detailed information regarding how
speed checks are performed at Roy’s Automotive, as well as the existence of a
contractual relationship between HPD and their shop.
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court then stated: “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.”
Id.
(Emphasis
added).
After determining that the foundational requirements of
Wallace and Manewa should be extended to speed checks, given
similar underlying concerns about the reliability of the testing,
this court stated:
[I]n 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.
Id. at 376-77, 227 P.3d at 542-43 (citing Assaye, 121 Hawai#i at
212-14, 216 P.3d at 1235-37; Wallace, 80 Hawai#i at 412 n.28, 910
P.2d at 725 n.28; Manewa, 115 Hawai#i at 355-57, 167 P.3d at 34850).
As this court noted, “[t]he record [did] not indicate
exactly what kind of test was performed at Jack’s Speedo Shop,”
because the person(s) who actually conducted the speed check did
not testify at trial.
541.
Fitzwater, 122 Hawai#i at 375, 227 P.3d at
Although the citing officer, Ah Yat, testified that a speed
check was conducted on his police vehicle, his testimony did not
establish how the test was conducted or the qualifications of the
person who conducted it; rather, it was clear that his knowledge
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was based solely on the contents of the inadmissible speed check
card itself.
Id. at 358, 375, 227 P.3d 520 at 524, 541.
Given
these circumstances, we concluded that the “required information
was missing from the record here[,]” and that “[a]s a result,
inadequate foundation was laid to show that the speed check could
be relied on as a substantive fact.”
Fitzwater, 122 Hawai#i at
377, 227 P.3d at 543 (citations and quotation marks omitted).
B.
The ICA erred in concluding that the State failed to
establish a sufficient foundation for the reliability of the
speed checks, and consequently, the speedometer reading
Unlike Fitzwater, where there was no evidence to
establish the reliability of the speed check, in the present case
there is extensive evidence, including lengthy testimony from
master certified automobile technicians Roy and Duane about the
procedures and equipment used to conduct the checks, as well as
Roy’s discussions with North Hollywood Speedometer, the
manufacturer of the master head, and correspondence from North
Hollywood Speedometer documenting its calibration of the master
head.
As set forth below, this evidence established a sufficient
foundation that the results from the speed checks conducted using
the speedometer dynamometer could be relied on as substantive
fact.
See Wallace, 80 Hawai#i at 412, 910 P.2d at 725.
More
specifically, the State established that the speedometer
dynamometer was in proper working order, and used by persons
qualified to operate the device.
See Wallace, 80 Hawai#i at 407,
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412, 910 P.2d at 720, 725; see also State v. Tailo, 70 Haw. 580,
582, 779 P.2d 11, 13 (1989) (“The accuracy of a particular radar
unit can be established by a showing that the operator tested the
device in accordance with accepted procedures to determine that
the unit was functioning properly and that the operator was
qualified by training and experience to operate the unit.”).
The State established that Officer Perez’s speedometer
was tested for accuracy through the use of the speedometer
dynamometer on April 5, 2007 and on July 23, 2007.
Officer Perez
testified that he personally took his vehicle to Roy’s Automotive
for a speed check on April 5, 2007, and waited for 20-25 minutes
before he received the results of his speed check from Roy the
same day.
Officer Perez also testified that he had a speed check
conducted on July 23, 2007, and Roy’s Automotive prepared the
second speed check card as well.
In contrast to the record in
Fitzwater, Roy and Duane presented detailed testimony about how
speed checks are conducted at their shop.
Cf. Fitzwater, 122
Hawai#i at 375, 227 P.3d at 541 (noting that “[t]he record did
not indicate exactly what kind of test was performed”).
Specifically, Roy testified that they use a speedometer
dynamometer, which is comprised of the master head, rollers, and
a cable, to perform speed checks.
Roy testified that the
speedometer dynamometer is capable of calculating speed, and that
it is strictly mechanical.
Roy further testified that they
compare the reading of the master head to that of the vehicle’s
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speedometer at different speeds, and note any differences on the
speed check card.
Other evidence supported the conclusion that the
speedometer dynamometer was in “proper working order.”
80 Hawai#i at 407, 910 P.2d at 720.
Wallace,
Roy testified that he called
North Hollywood Speedometer, the manufacturer of the master head,
in February or March of 2007 when he noticed slight discrepancies
between the readings of the master head and a vehicle’s
speedometer at higher speeds.
After listening to Roy explain how
he was operating the machine, North Hollywood Speedometer
indicated to Roy that “nothing’s wrong[.]”
Also, within six
months of the July 23, 2007 speed check, Roy sent his master head
in for calibration in January, 2008.
At that time, Roy provided
the manufacturer with measurements of the size of the rollers,
which were needed to perform the calibration.
The manufacturer
then sent Roy a letter, which was admitted into evidence, that
showed that Roy’s master head was accurate within 2 mph for
speeds up to 80 mph.20
Thus, the evidence in the instant case
contrasts with previous cases in which the testifying witness
assumed that the device had been properly calibrated, but did not
have any personal knowledge.
See Fitzwater, 122 Hawai#i at 358,
375, 227 P.3d at 524, 541 (noting that the testifying witness’s
20
The evidence established that the calibration was performed prior
to the refurbishment of the master head, which was documented in a separate
letter.
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testimony did not establish a sufficient foundation because it
was clear that his knowledge was based solely on the contents of
the inadmissible speed check card itself); Wallace, 80 Hawai#i at
412, 910 P.2d at 725 (finding that the testifying witness “lacked
personal knowledge that the balance had been correctly calibrated
and merely assumed that the manufacturer’s service representative
had done so”); Manewa, 115 Hawai#i at 355-56, 167 P.3d at 348-49
(noting that the state “did not call the manufacturer’s service
representative to testify to [the] calibration of the balance”).
Additionally, the State established that the persons
conducting the speed check were qualified by experience to
operate the device.
See Tailo, 70 Haw. at 582, 770 P.2d at 13.
The State established at the pretrial hearing that only Roy and
Duane, experienced auto mechanics, performed speed checks on HPD
vehicles in 2007.
The district court qualified Roy as an
automotive vehicle expert and a motor vehicle mechanic dealer
expert and qualified Duane as an expert in the fields of
automotive mechanics and repair and automotive technology.
Although Roy did not receive specific training on how to use the
speedometer dynamometer, Roy testified that “for a mechanic, it’s
pretty straightforward.”
Notably, Eid’s expert witness, Ho,
similarly testified that he was not aware of any certification,
school, or formal training for operating or using a speedometer
dynamometer.
Rather, Ho testified that a person would gain
knowledge about a speedometer dynamometer by using it and through
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experience.
By showing that the speedometer dynamometer was in
proper working order and used by qualified mechanics in
conducting the speed checks, the State provided adequate
assurances that the results of the speed checks were reliable.
However, the ICA’s lead opinion rejected that conclusion, because
although the State established the manufacturer of the master
head (North Hollywood Speedometer), it did not establish the
manufacturer of the rollers and cable.
SDO at *1.
Thus, the ICA
reasoned, there was insufficient evidence to establish the
foundational requirements of Fitzwater.
Id.
We do not read Fitzwater as imposing a requirement that
the manufacturer of the entire dynamometer assembly be
established, if there is sufficient evidence in the record to
establish that the equipment that was used was reliable.
Although Roy testified that he did not know who manufactured the
rollers and cables,21 he further testified that their operation
is purely mechanical and was within his expertise as a licensed
mechanic:
the rollers are spun by the wheels of the car being
tested, and that spin is transmitted to the master head by the
cable.
Moreover, the master head, which is a more sophisticated
piece of equipment, was calibrated by its manufacturer North
Hollywood Speedometer in January 2008, about six months after the
21
At some point during 2007, Roy testified that he installed a
replacement cable that had been made by Higa.
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second of the two speed checks performed on Officer Perez’s car,
and nine months after the first test; in connection with that
calibration, Roy provided North Hollywood Speedometer with the
size of the rollers, which was needed to determine the accuracy
of the readings provided by the master head when used in Roy’s
dynamometer set-up.
Also, in February or March of 2007, which
was a month or two before the first of the two speed checks
performed on Officer Perez’s car, Roy spoke to North Hollywood
Speedometer, described the way he was working his dynamometer and
the cars that he was testing, and confirmed that the results he
was obtaining were “okay” because they were within the expected
margin of error.
All of this evidence was sufficient to satisfy the
requirement set forth in Fitzwater that the speed check be
“performed in the manner specified by the manufacturer of the
equipment[.]” 122 Hawai#i at 377-78, 227 P.2d at 542-43.
While
the manufacturer of the rollers and cable was not established,
the absence of that information was not material, since their
operation was straightforward and within the expertise of Roy and
Duane as licensed mechanics.
Moreover, there was additional evidence that supports
the admission of the evidence.
During the second of the two
speed checks, Roy used a digital scanner as well as the
dynamometer, and the record supports the inference that its
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readings were consistent with those of the dynamometer.22
Although the record does not contain detailed information about
the recommended procedures for the use of the digital scanner,23
nevertheless the readings provided by the scanner provide some
additional corroboration for the accuracy of the dynamometer.
Lastly, we note that we are reviewing the district
court’s determination that adequate foundation was established
for abuse of discretion.
Assaye, 121 Hawai#i at 210, 216 P.2d at
1233 (noting that the trial court’s determination “will not be
overturned absent a showing of clear abuse”) (citation omitted).
Given the evidence adduced here to establish a foundation, we
cannot say that the district court abused its discretion in
admitting the speed check evidence.
That evidence in turn
provided a sufficient foundation for Officer Perez’s testimony
regarding his speedometer reading on the day he cited Eid for
excessive speeding.
Specifically, both speed check cards showed
that Officer Perez’s speedometer was accurately reading 65 mph
when it was tested at that speed.
Additionally, Officer Perez
testified that prior to September 19, 2007, the day he cited Eid
for excessive speeding, he did not have any repairs done to his
speedometer.
Accordingly, a sufficient foundation was laid for
22
Roy testified that when a scanner is used, he compares the
readings of the master head, scanner, and the vehicle’s speedometer at speeds
up to 100 mph. Roy testified that when they would reach 100 mph, they would
detach the master head, and continue the speed check with just the scanner.
23
Roy testified that he updates the software for his scanners at
least once every two or three years.
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Officer Perez to testify that he paced Eid at 65 mph in a 25 mph
zone.
IV. Conclusion
For the foregoing reasons, we conclude that the State
established a sufficient foundation to admit the speed check
evidence, and consequently, the speedometer reading in this case.
Accordingly, we vacate the judgment of the ICA, and remand to the
ICA for a determination of whether the district court abused its
discretion in denying Eid’s motion to compel.
On the briefs:
/s/ Mark E. Recktenwald
Brian R. Vincent, Deputy
Prosecuting Attorney, for
petitioner/plaintiffappellee.
/s/ Paula A. Nakayama
Jon N. Ikenaga, Deputy
Public Defender, for
respondent/defendantappellant.
/s/ Sabrina S. McKenna
/s/ James E. Duffy, Jr.
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