State v. Fitzwater, No. 28584.
| Court | Hawaii Supreme Court |
| Writing for the Court | ACOBA, J |
| Citation | 227 P.3d 520 |
| Parties | STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Zachariah I. FITZWATER, Petitioner/Defendant-Appellant. |
| Docket Number | No. 28584. |
| Decision Date | 05 April 2010 |
227 P.3d 520
STATE of Hawai'i, Respondent/Plaintiff-Appellee,
v.
Zachariah I. FITZWATER, Petitioner/Defendant-Appellant.
No. 28584.
Supreme Court of Hawai`i.
March 3, 2010.
As Amended April 5, 2010.
COPYRIGHT MATERIAL OMITTED
Ronette Kawakami and Summer Kupau, Deputy Public Defenders (John M. Tonaki, Public Defender, and Taryn R. Tomasa, Deputy Public Defender, with them on the briefs), for petitioner/defendant-appellant.
Stephen K. Tsushima and Brian Vincent, Deputy Prosecuting Attorneys (Peter B. Carlisle,
MOON, C.J., NAKAYAMA, DUFFY, and RECKTENWALD, JJ.; with ACOBA, J., Concurring Separately and Dissenting.
Opinion of the Court by RECKTENWALD, J.
Petitioner/defendant-appellant Zachariah I. Fitzwater was convicted of excessive speeding in violation of Hawai'i Revised Statutes (HRS) § 291C-105(a)(1) (2007).1 At Fitzwater's trial in the District Court of the First Circuit (district court),2 a Honolulu police officer testified that he followed Fitzwater's motorcycle after he observed Fitzwater traveling at what appeared to be a high rate of speed. According to the officer, the speedometer in his police vehicle indicated that Fitzwater was traveling 70 miles per hour in an area where the speed limit was 35 miles per hour. The officer further testified that a "speed check" had been conducted to determine the accuracy of the police vehicle's speedometer about five months before the incident involving Fitzwater. Over the objection of Fitzwater's counsel, a card purporting to document the results of that speed check was admitted into evidence, and the officer was allowed to testify that the results of the speed check showed that the speedometer was accurate.
The Intermediate Court of Appeals (ICA), in a Summary Disposition Order (SDO), concluded that the district court did not err in admitting the speed check evidence. State v. Fitzwater, No. 28584, 120 Hawai`i 383, 205 P.3d 648, 2009 WL 1112602, at *1-2 (App. Apr. 27, 2009). Fitzwater then timely sought review in this court.
This appeal requires us to resolve several issues relating to the admission of the speed check evidence. We hold that although the speed check was conducted with the understanding that its results would likely be used in the prosecution of speeding cases, the card could nevertheless qualify as a record of regularly conducted activity ("business record") under Hawai'i Rules of Evidence (HRE) Rule 803(b)(6), quoted infra. However, there was insufficient foundation to admit the card as a business record under that rule, and there was additionally insufficient foundation regarding the reliability of the speed check. Finally, we reject Fitzwater's argument that the admission of the speed check evidence violated his right to confrontation under the Sixth Amendment of the United States Constitution.
Absent the speed check evidence, there was insufficient evidence to establish the accuracy of the speedometer in the officer's vehicle, and to support Fitzwater's conviction for excessive speeding in violation of HRS § 291C-105(a)(1). Accordingly, we vacate the judgments of the ICA and the district court. However, because there was sufficient evidence to establish that Fitzwater was speeding in violation of HRS § 291102(a)(1),3 a lesser included non-criminal traffic infraction, we remand for entry of a judgment that Fitzwater violated that section.
A. Proceedings in the District Court
On May 9, 2007, the State of Hawai'i orally charged Fitzwater with "driving a motor vehicle at a speed exceeding the (indiscernible) speed or (indiscernible) speed limit by 30 miles per hour or more in violation of Hawaii Revised Statutes 291C-105(A)(1), driving 70 in a 35 mile-per-hour-zone." Fitzwater pleaded not guilty.
Officer Neal Ah Yat testified that around 11:20 p.m. on the evening of January 24, 2007, he was patrolling Kamehameha Highway
Ah Yat testified a speed check was conducted on his police vehicle by "Jack's Speedo" in August of 2006, although he wasn't sure of the exact day it was done. He testified that a speed check "calibrates the actual speed of the car with the speedometer." He stated that the speed is calibrated so that "we know that our speedometers are accurate, and when we pace vehicles at a certain speed, we know for sure that the vehicle is going that speed." He said speed checks are "taken care of by the vehicle maintenance section (VMS)," which "takes the vehicle to the shop." The Deputy Prosecuting Attorney (DPA) asked him if "the speed check is conducted in the regular course of maintaining HPD vehicles," to which he responded "yes." Ah Yat did not testify about how the checks are done. He testified that they are conducted once a year, and are good for one year. The result of a speed check is recorded "on a card that is given and assigned to each vehicle that shows that at whichever speed it's tested, the vehicle is actually going what the speedometer says it is."
When the DPA asked Ah Yat what the result of the speed check on his vehicle was, defense counsel objected on the ground that the information on the speed check card was inadmissible hearsay. The court overruled the objection based on State v. Ing, 53 Haw. 466, 497 P.2d 575 (1972). Defense counsel then argued that Ing:
has been qualified substantially by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as well as by the Hawaii companion case, State v. Grace, 107 Hawai'i 133, 111 P.3d 28 (App. 2005), that new foundation requirements imposed by Crawford and Grace are not based upon any court rules and/or the Hawaii Rules of Evidence, but are constitutional.
...
We argue that the (indiscernible) now requires exclusion of any testimony or statement made by a declarant who is not here to testify (indiscernible) another witness, that absent (indiscernible) statement cannot be elicited from the witness (indiscernible) consequence unless the prosecution shows that first, declarant is quote, unquote unavailable, and there's no (indiscernible) cross-examine.
Although Crawford does not (indiscernible), Grace adopted the test proposing Crawford by the National Association of Defense Lawyers (indiscernible) as testimonial (indiscernible) pertinent question is whether an objective observer would reasonably expect the statement to be available for use in prosecution.
I believe Officer Ah Yat has testified that his speed check, they're made to pace cars so they can be used to prosecute speeding cases and Ing was decided (indiscernible)
requirements and that's our objection.
The court overruled the objection, stating that it was "not gonna make any groundbreaking rules on that point until the supreme court rules on it."
When the DPA again asked Ah Yat what the result of the speed check was, defense counsel objected, arguing that the State "did not lay appropriate foundation" for the evidence to be admissible as a business record under HRE Rule 803(b)(6). Defense counsel argued that because Ah Yat testified that "Jack's Speedo Shop did the speed check and that somebody in the HPD took it to the shop and had it checked," Ah Yat was not a qualified witness or custodian pursuant to HRE Rule 803(b)(6). The court overruled the objection.
Ah Yat then testified that "the highest speed tested was at 75 miles per hour and it showed that the vehicle was indeed going 75 miles per hour." Ah Yat testified that this meant that if he were pacing a vehicle and his speedometer showed that he was traveling at 70 miles per hour, the other vehicle was in fact traveling at 70 miles per hour.
A copy of the speed check card was admitted into evidence over the objection of defense counsel. Ah Yat identified the card as belonging to his vehicle because it bore his HPD vehicle number. Ah Yat testified that it was a true and accurate copy of the speed check that was on file with the HPD.
On cross-examination, Ah Yat acknowledged that he had not personally taken the vehicle to Jack's Speedo Shop in August 2006 to have the speed check performed, but rather that a member of the HPD's VMS (Ah Yat did not know who) had taken it in. Ah Yat did not talk to anyone at Jack's Speedo about how the test was conducted. He did not recall when he received the speed check card, but added that "it stays with the vehicle." Defense counsel then asked Ah Yat about the purpose of the speed card:
defense counsel: ... You testified today that you did these speed checks, so you know that this speedometer in your HPD vehicle (indiscernible), correct?
Ah Yat: Yes.
defense counsel: And also because when the situation calls for it, you have to pace vehicles to judge their speed,...
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..., 580 F.2d at 772 ; United States v. Carranco , 551 F.2d 1197, 1200 (10th Cir. 1977) ; see also State v. Fitzwater , 122 Hawai'i 354, 227 P.3d 520, 531-36 (2010) ; Pizza Corner, Inc. v. C.F.L. Transp., Inc. , 792 N.W.2d 911, 913-14 (N.D. 2010). [¶14] We adopted the federal courts' integrate......
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Arrowood Indem. Co. v. Fasching, CC 17CV37770 (SC S067964)
...were made and kept was not required to have personally assembled the proffered record); State v. Fitzwater, 122 Hawai'i 354, 367-68, 227 P.3d 520, 533-34 (2010) (holding that third-party records "are admissible as business records of the incorporating entity provided that it relies on the r......
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Arrowood Indem. Co. v. Fasching, SC S067964
...documents were made and kept was not required to have personally assembled the proffered record); State v. Fitzwater, 122 Haw 354, 367-68, 227 P.3d 520, 533-34 (2010) (holding that third-party records "are admissible as business records of the incorporating entity provided that it relies on......
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Paulette Ka‘anohiokalani Kaleikini v. Thielen, No. 28491.
...zones of privacy for the seizure of mere evidentiary material[.]”) (Citation omitted.); cf. State v. Fitzwater, 122 Hawai‘i 354, 374, 227 P.3d 520, 540 (2010) (quoting Justice Thomas's concurring opinion in White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), which s......
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Bank of N.Y. Mellon v. Shone, Docket: Cum-19-48
..., 580 F.2d at 772 ; United States v. Carranco , 551 F.2d 1197, 1200 (10th Cir. 1977) ; see also State v. Fitzwater , 122 Hawai'i 354, 227 P.3d 520, 531-36 (2010) ; Pizza Corner, Inc. v. C.F.L. Transp., Inc. , 792 N.W.2d 911, 913-14 (N.D. 2010). [¶14] We adopted the federal courts' integrate......
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Arrowood Indem. Co. v. Fasching, CC 17CV37770 (SC S067964)
...were made and kept was not required to have personally assembled the proffered record); State v. Fitzwater, 122 Hawai'i 354, 367-68, 227 P.3d 520, 533-34 (2010) (holding that third-party records "are admissible as business records of the incorporating entity provided that it relies on the r......
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Arrowood Indem. Co. v. Fasching, SC S067964
...documents were made and kept was not required to have personally assembled the proffered record); State v. Fitzwater, 122 Haw 354, 367-68, 227 P.3d 520, 533-34 (2010) (holding that third-party records "are admissible as business records of the incorporating entity provided that it relies on......
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Paulette Ka‘anohiokalani Kaleikini v. Thielen, No. 28491.
...zones of privacy for the seizure of mere evidentiary material[.]”) (Citation omitted.); cf. State v. Fitzwater, 122 Hawai‘i 354, 374, 227 P.3d 520, 540 (2010) (quoting Justice Thomas's concurring opinion in White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), which s......