State v. Fitzwater
| Citation | 227 P.3d 520 |
| Decision Date | 05 April 2010 |
| Docket Number | No. 28584.,28584. |
| Parties | STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Zachariah I. FITZWATER, Petitioner/Defendant-Appellant. |
| Court | Supreme Court of Hawai'i |
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, Prosecuting Attorney, with them on the brief), for respondent/plaintiff-appellee.
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.
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 near Waipio Uka Boulevard in his blue and white police vehicle. He was parked in a driveway "shooting laser" when four motorcycles passed him "at an extremely high rate of speed." He was not able to get a laser reading on the motorcycles because they were too small, and because there were trees in the way. Ah Yat then attempted to catch up to the motorcycles "to pace them." Three of the motorcycles sped up and took off, and Ah Yat testified that it was too dangerous for him to attempt to follow them. He followed the fourth motorcycle, which was being driven by Fitzwater, maintaining a distance of approximately six car lengths directly behind him at a speed of 70 miles per hour for approximately two-tenths of a mile. He checked his speedometer at least three times to confirm that he was traveling at 70 miles per hour. As he was pacing Fitzwater, they passed a 30-mile-per-hour sign and a 35-mile-per-hour sign. Ah Yat stopped Fitzwater and cited him "for excessive speeding, 70 in a 35, as well as no insurance and no license."4 When Ah Yat informed Fitzwater why he had stopped him, Fitzwater stated that he was "just trying to keep up" with the other motorcycles.5
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:
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:
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Case Notes
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