State v. Assaye
| Decision Date | 30 September 2009 |
| Docket Number | No. 29078.,29078. |
| Citation | 121 Haw. 204,216 P.3d 1227 |
| Parties | STATE of Hawai`i, Respondent-Plaintiff-Appellee v. Abiye ASSAYE, Petitioner-Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Summer M.M. Kupau, (James S. Tabe, on the briefs), Deputy Public Defenders, for petitioner-defendant-appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, for respondent-plaintiff-appellee.
MOON, C.J., NAKAYAMA, and DUFFY, JJ., Circuit Judge MARKS, in Place of RECKTENWALD, J., Recused, and ACOBA, J., Concurring Separately.
Petitioner-Defendant-Appellant, Abiye Assaye ("Assaye"), has applied for a writ of certiorari from the Intermediate Court of Appeals' ("ICA") January 13, 2009 summary disposition order affirming the District Court of the First Circuit's ("trial court's")1 judgment convicting Assaye of the offense of excessive speeding, in violation of Hawai`i Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2) (Supp.2006).2 In his application for writ of certiorari before this court, Assaye asserts that the ICA gravely erred (1) "in concluding that [Respondent-Plaintiff-Appellee, State of Hawai`i (`prosecution'),] laid the requisite foundation for the admissibility of the laser gun reading pursuant to State v. Stoa, 112 Hawai`i 260, 265, 145 P.3d 803, 808 (App.2006)," and (2) "by failing to recognize that the [prosecution] did not lay the requisite foundation for admissibility of the laser gun reading as required by State v. Wallace, 80 Hawai`i 382, 910 P.2d 695 (1996), and State v. Manewa, 115 Hawai`i 343, 167 P.3d 336 (2007)." For the following reasons, we reverse the trial court's February 27, 2008 judgment because the ICA's decision is obviously inconsistent with both this court's decision in Manewa and its own decision in State v. Ito, 90 Hawai`i 225, 978 P.2d 191 (App.1999).
A. Factual Background
On February 27, 2008, the prosecution orally charged Assaye with committing the offense of excessive speeding on September 5, 2007, in violation of HRS § 291C-105(a)(1) and/or (a)(2).
At a bench trial held on the same day, Honolulu Police Officer Jeremy Franks ("Officer Franks") testified that he was assigned "to the night enforcement detail solo bike, motorcycle unit," and in the evening of September 5, 2007, to "speed enforcement on the H-1 Freeway eastbound by the Radford pedestrian overpass." He testified further that he was equipped with and certified to use a "laser LTI 2020 Ultralight" ("laser gun"), and in the evening of September 5, 2007, used it on a vehicle that was traveling toward his stationary location on the freeway at a rate of speed that he observed to be "faster than the speed of traffic." Officer Franks testified that he aimed his laser gun at the front of this vehicle and his "laser" gave him "a reading of ninety miles per hour." Officer Franks testified that the posted speed limit for the stretch of freeway that he was monitoring that evening was fifty-five miles per hour. Officer Franks testified that he then proceeded to conduct a "traffic stop" to issue a citation to the driver of the vehicle, and identified Assaye as the person to whom the citation was issued.
At trial, Officer Franks testified, as follows, with regard to the proper functioning of his laser gun:
Q. Were you equipped with any type of device to measure the speed of vehicles that day?
A. Yes.
Q. What kind of a device was it?
A. The laser LTI 2020 Ultralight.
Q. Okay. Are you certified to use the LTI 2020?
A. Yes.
Q. Who were you certified by?
A. My instructor was Sgt. Ryan Nishibun.
Q. Okay. And was the certification valid on September 5, 2007?
A. Yes.
Q. And were you instructed in the testing and operating of the device?
A. Yes.
Q. How many hours of instructions did you receive?
A. Four.
Q. Okay. On that day, ... did you test your ultralight 2020 laser gun?
A. Yes, prior to my shift.
Q. Okay. And how did you test the gun?
A. I conduct four tests at the police main station. The first test is the self-test. You turn the laser on and the LEDs light up on the screen when you press the trigger. The next test is the display test. You scroll through the test mode button on the laser and it lights up all the LEDs on the screen saying that the display is working properly.
The next test is the scope alignment test. Also scrolled on the laser with the test button. The TT on the screen lights up and you look through the scope and there's a red dot in the middle of the scope and you press the trigger and wave it over a horizontal and vertical stationary object, and the tone of the laser when you press the trigger changes when you cross over the horizontal and vertical stationary object letting you know that the laser is centered, the scope is centered.
Then the final test is the delta distance test. That's used by two measuring tool[s], pre-measured points. First point, distance is a hundred and thirty feet. You scroll through the test mode button on the laser and it says D-1, or distance one, you shoot the furthest distance first. It comes out to one-thirty. Then you hit the select button and it goes to D-2, or distance two, and you shoot the closest distance to you which is one-0-five and the difference between that times two equals fifty, and if it's forty-nine, fifty or fifty-one, then the laser is calibrated and ready to go.
....
Q. And did you do all those tests that day?
A. Yes.
Q. And what was the results of those tests?
A. It was functional and working properly. No errors, messages or anything like that on the—it was functional.
[DEFENSE COUNSEL:] And your Honor, object as to lack of foundation and—
....
... Your Honor, the testimony that under Maneva, this is not sufficient to show that the laser was properly calibrated and working correctly that day. In the Maneva case, the situation was a scale, it was an electronic scale that the person, the expert testifying in that case had been trained to use, had used for twenty years.
....
The supreme court said that in Manewa that that evidence should have been suppressed, or—well, that evidence should not have been admitted given that the, that witness could not actually lay the proper foundation that that particular device was properly calibrated and working correctly that day. Given all that, and as in that case, the scale was an essential element because that was about the weight of amount of drugs.
In this case, the actual reading of a laser device is an essential element cause if he's, if it falls below a certain number, above a certain number, the defendant is either guilty or not guilty. Beyond that, your Honor, I would like to voir dire him as to his qualifications.
THE COURT: Well, I'm going to, if that's a motion to strike his testimony or an objection to the testimony, I'm gonna deny the motion, but will allow you to cross-examine the officer, and I just state for the record that I see a big difference between a scale ... weighing narcotics....
....
... and a laser, whether a laser is working properly. The technology has been approved by our appellate court.
....
....
... So ordered....
Q. How many times have you checked the laser like this before?
A. Everyday before I work. I work five days a week, so the last year and a half, I never had any problems with the laser. I never had to turn it in for maintenance or something was wrong with it, the internal components.... If it wasn't working properly, I wouldn't have took it out on my shift and I would have turned it into one of the instructors....
The only maintenance that I do on it is clean the screen when it gets smudgy and change the batteries when they get weak. Other than that, I test the laser prior to my shifts and between after every citation issued, and after every citation issued, I test the scope alignment and that's about it that I was instructed to do by the instructors. That's all I have to know that it's operating.
....
But on that day, it was working properly, no problems, and like I said before, I haven't had any problems since I've been assigned to the motorcycle detail over the year and three months that I've been shooting the laser, never had a problem with it.
Q. Just for clarification, before you issued the citation, did you check it?
A. Yes, fine, no problems.
(Brackets and ellipses added.)
With regard to the "scope alignment test," Officer Franks testified on cross-examination, as follows:
Q. (indiscernible) scope alignment test?
A. Sure.
Q. How far away is the stationary object that you (indiscernible)?
A. Could be anywhere from fifty to a thousand feet. A light pole or—
Q. When you did the test on that day, how far away was the stationary (indiscernible)?
A. As far as the delta distance test, hundred thirty feet.
Q. So, in fact, you just waved it over the delta distance pole?
A. Yeah.
....
Q. So, when you do your scope calibration, you're kind of just eye-balling it. You look through the scope and you're looking at your pole a hundred thirty feet away and got your red dot centered on the pole and you wiggle it back and forth and you can hear a tone when it hits the pole, right?
A. At the edge, the edge, yeah.
Q. So, is it a tone when it's off or a tone when it's on?
A. It's both. Tone when it's on and the pitch changes when you scan it over.
Q. Okay (indiscernible).
....
A. It's a little higher pitch knowing that you hit that mark.
Q. So, you believe that at least on that day that the scope was probably aligned based on (indiscernible) a hundred thirty feet away, it would tell you when it was actually hitting the object and when it wasn't hitting the object?
A. Yes.
(Ellipses a...
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