State v. Long

• Decision Date: 21 June 2002
• Docket Number: No. 23473.,23473.
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Dewitt LONG, aka Lamar Long Dewitt, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

48 P.3d 595

98 Haw. 348

STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Dewitt LONG, aka Lamar Long Dewitt, Petitioner/Defendant-Appellant.

No. 23473.

Supreme Court of Hawai`i.

June 21, 2002.

Joseph S. Mottl, on the petition for petitioner/defendant-appellant.

LEVINSON, RAMIL, and ACOBA, JJ.; and MOON, C.J., Dissenting, with whom NAKAYAMA, J. Joins.

Opinion of the Court by ACOBA, J.

We hold that, while an objection of "insufficient foundation" is generally not adequate to preserve the objection for appeal, the basis for the objection in this case was evident from the context in which it was made and, thus, came within an exception to the general rule.

In a jury trial, Petitioner/Defendant-Appellant Dewitt Long (Petitioner) was convicted and found guilty of Count III, Theft in the Second Degree, Hawai`i Revised Statutes (HRS) § 708-831(1)(a) (1993), and Count IV, Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243 (1993), of the subject complaint. His appeal, assigned to the Intermediate Court of Appeals (ICA),¹ presented the solitary question, apparently related to Count IV, of whether the first circuit court (the court)² erred in allowing Shirley Brown, a criminalist with the Honolulu Police Department, to testify that the substance Petitioner was charged with possessing was cocaine. In essence, on appeal Petitioner contended that "[t]here was no testimony [by Brown] concerning the maintenance and calibration of the [Fourier Transform Infrared Spectrometer (FTIR)] machine prior to its use[]" and, therefore, the "court here abused its discretion in admitting" the results of the FTIR test indicating the substance recovered from Petitioner was cocaine.

On March 14, 2002, the ICA issued a summary disposition order (SDO) affirming the convictions. On April 19, 2002, we granted Petitioner's petition for writ of certiorari which reiterated his contention on appeal. No argument was presented with respect to the theft charge and, thus, we affirm the conviction for theft in the second degree.

I.

We use the term "foundation" as it relates to the admission of evidence to mean "the factual foundation that satisfies the requirements for . . . admission [of testimonial or physical evidence]." 1 C. Fishman, Jones on Evidence Civil and Criminal § 3:24, at 259 (7th ed.1992). Brown's testimony, elicited by Respondent/Plaintiff-Appellee State of Hawai`i (the prosecution), which is relevant to the question raised, was as follows:

A [BROWN]. Okay. Well, first I weigh the item, and [sic] was removed from the bag, and then I proceed to analyze it, and I do three different types of tests.

I did a color test, and then I did a microcrystalline test, and then I used one of the laboratory instruments as the final test.

Q [PROSECUTOR]. Now, to summarize then, the color test is essentially kind of giving you some direction as to where you might look for a more definitive test; is that correct?

A. Yes.

Q. And the microcrystalline test is of a similar nature, only a little more precise?

A. Correct.

Q. And then you finally use a final test in order to make what, at least for your purposes would be considered to be a more conclusive determination; is that correct?

A. Yes.

Q. And when you took and when you did the color microcrystalline test, what direction, at least, did that point you to in this instance?

A. Well, they indicated that the substance might contain cocaine.

Q. All right. So those tests, having given you that direction, what did you then do?

A. Then I use[d] one of the laboratory instruments, and in this case I used the FTIR, which is the fourier transform infrared spectrometer.

. . . .

A. Well, essentially what you do is you—the sample is prepared, and then is placed into the instrument [(FTIR)] where it is then subjected to infrared rays, and there are things that happen on the molecular level. And in the end what you get is a graph, and from this graph you can determine what the substance is.

. . . .

Q. And is there a particularly distinctive form of that graph for cocaine?

A. Yes.

. . . .

Q. And what did that substance contain?

A. I found it to contain cocaine.

(Emphases added.) Defense counsel objected as follows:

[DEFENSE COUNSEL]: Your Honor, objection foundation. We'd object to insufficient foundation, request that the response be stricken.

THE COURT: I'll overrule the objection. You may answer. In fact, have answered, and it will not be struck.

(Emphases added.) Thereafter, the defense cross-examined Brown:

Q [DEFENSE COUNSEL]. The FTIR machine, I'll refer to it as that, is there a single machine in the laboratory— lab, or are there several?

A. There are several.

Q. Now, the process of the machines are electronic, are they not, as opposed to mechanical? You plug it in and the measurements and all these things take place internally to the machine?

A. Yes.

Q. Approximately how many specialists such as you, work in the lab are actually hired, work at any time during the given week?

A. That use the instrument?

Q. Mm-hm.

A. About four.

Q. And are the instruments assigned specifically to each of you specialists, or might you use one machine and then another machine during the course of a week depending on which one is available?

A. We use what's available.

(Emphasis added.) On redirect examination, in apparent response to the defense's questions concerning the machines, the prosecution asked the following question:

Q. Are the machines—all the machines, all four of them tested from time to time and calibrated to ensure their accuracy?

A. All the instruments are checked.

(Emphasis added.)

The prosecution maintained that "[Petitioner]'s objection was . . . general and non-specific" and, thus, "the alleged specific defect in foundation was not pointed out to the trial judge by [Petitioner.]"

II.

A.

This jurisdiction has yet to determine whether an objection on the basis of "insufficient foundation," without anything more, is specific enough to raise a foundational issue on appeal. Professor Addison Bowman characterizes a similar "lack of foundation" objection as an "example[] of [an] objection[] considered fatally general[.]" A. Bowman, Hawaii Rules of Evidence Manual § 103-2B, at 19 (2d ed.1998) (citation omitted) [hereinafter Evidence Manual].

An examination of case law from other jurisdictions reflects a majority view, similar to that of Professor Bowman's, that a simple objection such as "insufficient foundation" or "lack of foundation" does not preserve the issue on appeal. See Hendrickson v. King County, 101 Wash.App. 258, 2 P.3d 1006, 1012 (2000)

("An objection claiming a lack of foundation is a general objection." (Internal quotation marks and citation omitted.)); Filan v. State, 768 So.2d 1100, 1101 (Fla.Dist. Ct.App.2000) ("[T]he objection `lack of foundation,' like its first cousin `improper predicate,' is not a `specific ground of objection' within the meaning of section 90.104(1)(a) [requiring that an objecting party `stat[e] the specific ground of objection if the specific ground was not apparent from the context']." (Internal quotation marks and citation omitted.)); Rogen v. Monson, 609 N.W.2d 456, 459 (S.D.2000) ("The objection of `lack of foundation' has no single defined meaning" and amounts to a "general objection[.]" (Internal quotation marks and citation omitted.)); Tolver v. State, 269 Ga. 530, 500 S.E.2d 563, 565 (1998) ("[O]bjection on the ground of lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for review." (Internal quotation marks and citations omitted.)); Castaneda by Correll v. Pederson, 176 Wis.2d 457, 500 N.W.2d 703, 709 (Wis.Ct.App.1993) (characterizing as "non-specific" the objection "lack of foundation"), reversed in part on other grounds by 185 Wis.2d 199, 518 N.W.2d 246, 249 (1994); State v. Malsbury, 186 N.J.Super. 91, 451 A.2d 421, 425 (1982) ("The . . . objection was that there was no proper foundation laid. No specification of the basis of this objection was offered. Thus, this is a general and legally incompetent objection."), overruled on other grounds by State v. Matulewicz, 198 N.J.Super. 474, 487 A.2d 772, 777 (1985); Board of Assessors of Woburn v. Ramada Inns, Inc., 371 Mass. 894, 357 N.E.2d 776, 776 (1976) ("The[ ] general grounds [of `lack of foundation and lack of proper method'] did not fairly raise the hearsay objection[.]"); Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267, 1270 (N.M.Ct.App.1973) ("It has long been the rule in this state that general objections asserting that any given testimony is incompetent, irrelevant or immaterial or that no proper foundation has been laid are not sufficient to sustain a specific objection raised on appeal." (Citations omitted.)); Cavanagh v. Ohio Farmers Ins. Co., 20 Ariz.App. 38, 509 P.2d 1075, 1080 (1973) ("We have reviewed the record and find that appellant's objection (`No foundation') was not sufficiently specific to preserve the matter for appellate consideration." (Citations omitted.)); People v. Moore, 13 Cal.App.3d 424, 91 Cal.Rptr. 538, 544 n. 8 (1970) (explaining that there is a "general rule that where the objection is lack of proper foundation, counsel must point out specifically in what respect the foundation is deficient" (citations omitted)); Hedges v. Conder, 166 N.W.2d 844, 856 (Iowa 1969) ("We have said reversible error cannot be predicated upon the general objection that no proper foundation has been laid for admission of the opinion."); Jimison v. Frank L. McGuire, Inc., 223 Or. 499, 355 P.2d 222, 224 (1960) (describing as "general in nature" an objection "for the reason that [the testimony] is incompetent, irrelevant, and immaterial and not a proper foundation laid" (internal quotation marks omitted)). But see Hendrix v. State, 40 Ark.App. 52, 842 S.W.2d 443, 447 (1992) ("It was argued in our conference that the objection to [lack of foundation] . . . was not properly preserved for appeal...