State v. Ramos
| Citation | 334 P.3d 777 (Table),134 Hawai'i 114 |
| Decision Date | 13 June 2014 |
| Docket Number | No. CAAP–12–0000138.,CAAP–12–0000138. |
| Court | Court of Appeals of Hawai'i |
| Parties | STATE of Hawai‘i, Plaintiff–Appellee, v. Cristopher J.A. RAMOS, Defendant–Appellant. |
Jon N. Ikenaga, Deputy Public Defender, on the briefs, for Defendant–Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
MEMORANDUM OPINION
Defendant–Appellant Cristopher J.A. Ramos (Ramos) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment, entered on February 17, 2012, in the District Court of the First Circuit, Honolulu Division (district court).1 Ramos was convicted of Excessive Speeding, in violation of Hawaii Revised Statutes (HRS) § 291C–105(a)(1) (2007).2
In his opening brief, Ramos contends that the district court abused its discretion in admitting evidence of a laser gun speed reading because the State failed to provide sufficient foundation for its admission into evidence. Ramos claims that without evidence of the laser gun reading, his conviction must be reversed for insufficient evidence.
(Brackets in original and emphasis added).
After initial briefing by the parties was completed, this court issued an order on February 24, 2014, that set the case for oral argument and ordered that the parties be prepared at oral argument to discuss:
Subsequently, Ramos requested a continuance of oral argument and to allow for supplemental briefing. In an order issued on March 3, 2014, this court granted Ramos's request to continue the oral argument and ordered supplemental briefing on the issues set forth in the February 24, 2014 order, as well as the impact on this appeal of the Hawai‘i Supreme Court's recent decisions in State v. Amiral, 132 Hawai‘i 170, 319 P.3d 1178 (2014), and State v. Davis, No. SCWC–12–0000074, ––– P.3d ––––, 2014 WL 747422 (Haw. Feb. 26, 2014).
In his supplemental brief, inter alia, Ramos raised for the first time a challenge to the charge in this case. He asserts that he had not made a deliberate choice not to challenge the sufficiency of the charge on appeal and that the supreme court's decisions in Nesmith, Apollonio, Gonzalez and Armitage establish that the failure to allege mens rea in the charge renders it deficient.
In its supplemental brief, the State essentially conceded that Ramos's conviction should be reversed, stating that Officer Maeshiro's testimony in this case “seems to suffer from the same deficiencies” that the Hawai‘i Supreme Court noted as to the officer's testimony in Amiral. The State thus summed up its position as follows:
Relying in substantial part on Assaye, supra, Defendant requests that his conviction be reversed should this Honorable Court conclude, “the State failed to lay a sufficient foundation for [Officer] Maeshiro's testimony regarding the speed reading given by the laser gun.” OB at page 16. As noted hereinabove, the deficiencies in the officer's testimony regarding his training to operate the laser speed gun seem to have rendered inadmissible his testimony of the reading from the device. Without such testimony, there was no evidence of the speed at which Defendant was traveling. Therefore, under the particular circumstances of this case, Appellee cannot in good faith contest Defendant's request.
Oral argument was held on April 9, 2014. At oral argument, the State expressly conceded the district court erred in holding that there was sufficient foundation to admit the laser gun reading in this case. The State also attempted, however, to present a User's Manual to the court that day, which the State represented to be the User's Manual for the laser gun at issue in this case, and requested the court take judicial notice that the manual did not contain any operator training requirements. The court advised the State that it would be given three weeks to file a motion as to its request for judicial notice, which the State subsequently filed. We address the State's motion infra.
For the reasons discussed below, we reverse Ramos's conviction.
In Apollonio, the Hawai‘i Supreme Court recently established that a defendant may successfully challenge the sufficiency of a charge for failure to allege mens rea even when the challenge to the charge is raised for the first time on appeal. 130 Hawai‘i at 358, 311 P.3d at 681.
Under the Motta/Wells liberal construction standard, where an appellant alleges a charge is defective for the first time on appeal, an appellate court must “liberally construe the indictment in favor of validity[.]” State v. Motta, 66 Haw. 89, 93, 657 P .2d 1019, 1021 (1983) ; see also State v. Wells, 78 Hawai‘i 373, 381, 894 P.2d 70, 78 (1995). In such circumstances, a conviction will not be vacated “unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime. ” Motta, 66 Haw. at 91, 657 P.2d at 1020 (emphasis added).
In Apollonio, the supreme court held that even under the liberal construction standard, when the charge failed to allege the required mens rea, the “charge cannot be reasonably construed to state an offense.” 130 Hawai‘i at 358, 311 P.3d at 681 (citation and internal quotation marks omitted), see also State v. Akitake, 131 Hawai‘i 166, 316 P.3d 1277, No. SCWC–29934 (Haw. Jan. 10, 2014) (SDO). The conviction in Apollonio was thus vacated and the case remanded with instructions for the district court to dismiss the case without prejudice. 130 Hawai‘i at 363, 311 P.3d at 686.
In this case, Ramos is charged with Excessive Speeding in violation of HRS § 2910105(a)(1). Excessive Speeding Gonzalez, 128 Hawai‘i at 315, 288 P.3d at 789. Because the charge against Ramos did not allege the requisite mens rea, the charge was deficient.
If we were to decide this case solely on the deficiency in the charge, we would vacate Ramos's conviction and remand the case to the district court with instructions to dismiss the charge without prejudice. See id. However, in this appeal, Ramos has challenged the foundation for the laser gun reading and contends that without the laser gun reading there is insufficient evidence to support his conviction. Unlike in Gonzalez, we must further address Ramos's argument as to sufficiency of the evidence. See Davis, 2014 WL 747422, at *20.
Officer Maeshiro, the only trial witness, testified that on January 17, 2011, he utilized a laser gun on Ramos's vehicle, which was traveling on Nimitz Highway. According to Officer Maeshiro, the laser gun he operated that day was manufactured by Laser Technologies, Inc. (LTI) and was a 20–20 Ultralite3 model. Officer Maeshiro testified that the reading from the laser gun indicated Ramos's vehicle was traveling at seventy-six miles per hour, and that the speed limit in the area was thirty-five miles per hour.
In State v. Assaye, 121 Hawai‘i 204, 216 P.3d 1227 (2009), the Hawai‘i Supreme Court addressed the necessary foundation for admission of a laser gun speed reading and held, first, that “the prosecution must prove that the laser gun's accuracy was tested according to procedures recommended by the manufacturer.” Id. at 215, 216 P.3d at 1238. Second, the court held that the prosecution must demonstrate that the officer using the laser gun was qualified by training and experience to operate a particular laser gun, namely “whether the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer. ” Id. (emphasis added).
Officer Maeshiro testified that he was originally trained in 1994, in a four-hour course, to operate the Marksman laser gun, and that in 1998 he had a one-hour “familiarization course” when the Ultralite model came out. Officer Maeshiro testified that both the Marksman and Ultralite laser guns were manufactured by LTI, and that he had reviewed the LTI manual with respect to the operation and testing of both types of laser guns. According to Officer Maeshiro, the manuals were from LTI and he knows they were LTI manuals because they “had the Laser Technologies logo and the copyright and registered trademark insignias on it.” Assuming arguendo that this testimony provides sufficient evidence that the manuals reviewed by Officer Maeshiro were “provided by” LTI, see Gonzalez, 128...
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