272 P.3d 1197 (Hawai'i 2012), SCWC-29587, State v. Eid

Docket Nº:SCWC-29587.
Citation:272 P.3d 1197, 126 Hawai'i 430
Opinion Judge:RECKTENWALD, J.
Party Name:STATE of Hawai‘i, Petitioner/Plaintiff–Appellee, v. Hatem A. EID, Respondent/Defendant–Appellant.
Attorney:Brian R. Vincent, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee. Jon N. Ikenaga, Deputy Public Defender, for respondent/defendant-appellant.
Judge Panel:RECKTENWALD, C.J., NAKAYAMA, DUFFY, and McKENNA, JJ.; with ACOBA, J., concurring separately. Concurring Opinion by ACOBA, J.
Case Date:January 26, 2012
Court:Superior Court of Hawai'i
 
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Page 1197

272 P.3d 1197 (Hawai‘i 2012)

126 Hawai'i 430

STATE of Hawai‘i, Petitioner/Plaintiff–Appellee,

v.

Hatem A. EID, Respondent/Defendant–Appellant.

No. SCWC-29587.

Supreme Court of Hawai‘i.

January 26, 2012

Page 1198

Brian R. Vincent, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee.

Jon N. Ikenaga, Deputy Public Defender, for respondent/defendant-appellant.

RECKTENWALD, C.J., NAKAYAMA, DUFFY, and McKENNA, JJ.; with ACOBA, J., concurring separately.

OPINION

RECKTENWALD, J.

[126 Hawai'i 431] Hatem A. Eid was charged with excessive speeding in violation of Hawai‘i Revised Statutes (HRS) § 291C–105(a)(1) (2007).1 The charge stemmed from an incident on September 19, 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 Circuit 2 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.

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. SDO at *1. 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?"

Page 1199

[126 Hawai'i 432] 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 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) HPD departmental policies and procedures for conducting speeding citations;

(b) The HPD manual for speeding citations;

(c) The make and model of the car or motorcycle;

(d) The age of the car or motorcycle;

(e) The dates and description of repair work done on the car or motorcycle during the period of any applicable speedometer check;

(f) The age of each tire on the car or motorcycle and any information regarding maintenance of the tires;

(g) 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.

(h) 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;

(i) Any certification from any government or nongovernmental agency, including any speedometer/odometer check, done on any vehicle alleged to pace [Eid's] speed;

(j) Any speed reading for [Eid's] vehicle;

(k) 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;

(l ) 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;

(m) The manufacturer's operators and maintenance manuals for any other speed measuring device used in this case, for the year prior and one year [126 Hawai'i 433]

Page 1200

after the dates of any alleged offense(s), done on any vehicle alleged to have paced [Eid's] speed;

(n) The speed check device manufacturer's established procedures for verifying and validating that the instrument was in proper working order;

(o ) Written verification that said manufacturer's established procedures were followed;

(p) Written verification that the speed check device or machine was in proper working order;

(q) 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 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 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: [126 Hawai'i 434]

Page 1201

Roy Ozaki (Roy), Duane Ozaki (Duane), Michelle Oki, Sergeant Sherman Dowkin, and Officer Benjamin Perez. The defense's sole witness was Marcus Ho. 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, 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...

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