State v. Rezentes
| Decision Date | 28 October 2016 |
| Docket Number | NO. CAAP–15–0000294,CAAP–15–0000294 |
| Citation | 139 Hawai'i 263,388 P.3d 51 (Table) |
| Parties | State of Hawai‘i, Plaintiff–appellee, v. Anthony Rezentes, Defendant–appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Craig W. Jerome, Deputy Public Defender, Office of the Public Defender, for Defendant–Appellant.
Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff–Appellee.
Defendant–Appellant Anthony Rezentes (Rezentes ) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment (Judgment), filed on March 4, 2015, in the District Court of the First Circuit, ‘Ewa Division (district court ).1 The district court convicted Rezentes of excessive speeding, in violation of Hawaii Revised Statutes (HRS ) § 291C–105(a)(1) and (2) (2007).2
On appeal, Rezentes argues that the district court wrongfully convicted him because the charge was fatally insufficient due to its failure to allege that the offense took place on a highway, an essential element; the court did not properly advise him of his right to testify pursuant to Tachibana v. State , 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303 (1995) ; and the court erroneously admitted evidence of the speed reading based on an insufficient foundation.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Rezentes's points of error as follows, and reverse the Judgment.
(1) Sufficiency of the charge. The failure of the charge to allege that the offense occurred on a highway was harmless. See HRS §§ 291C–21, –105(a) (2007); State v. Wheeler , 121 Hawai‘i 383, 391, 219 P.3d 1170, 1178 (2009) ("It is well settled than an ‘accusation must sufficiently allege all of the essential elements of the offense charged[.]’ " (citation omitted). Wheeler does not support Rezentes's position because Rezentes did not object to the charge at trial and raises this argument for the first time on appeal. Thus, we analyze the issue according to the "liberal construction standard." State v. Tominiko , 126 Hawai‘i 68, 76, 266 P.3d 1122, 1130 (2011). Rezentes does not argue that he was prejudiced by the omission of the subject language. Further, the oral charge included the definition of "highway"; and at trial, Honolulu Police Department Officer Vincent J. Tripi (Officer Tripi) testified that he stopped Rezentes on the H–3, which was a public way, road, street, or highway. Thus, prior to challenging the sufficiency of the charge on appeal, the record establishes that Rezentes was informed of the nature of the charge against him.
(2) Foundation for speed reading. The State established that Officer Tripi's training in the use of the Stalker radar gun met the requirements indicated by the manufacturer. See State v. Gonzalez , 128 Hawai‘i 314, 325–26, 288 P.3d 788, 799–800 (2012) ; Cf . State v. Amiral , 132 Hawai‘i 170, 178–79, 319 P.3d 1178, 1186-87 (2014) ; State v. Apollonio, 130 Hawai‘i 353, 361–63, 311 P.3d 676, 684–86 (2013) ; State v. Assaye , 121 Hawai‘i 204, 213–16, 216 P.3d 1227, 1236–39 (2009)State v. Gardner , No. SCWC–13–0002852, 2016 WL 1065400, at *4. (Haw. Mar. 15, 2016). Officer Tripi testified that he took an eight-hour training course—including classroom instruction, a practical exercise, and a written test—administered by an authorized representative of Applied Concepts, the Stalker's manufacturer. Officer Tripi was provided with a Stalker operating manual, published by Applied Concepts. In his training, he learned that prior to each shift, he was to perform a display test, self test, and tuning fork test on the Stalker. He explained how he was taught to conduct the various tests. He passed the written test and received a qualification card.
Rezentes argues that the district court erred in admitting Officer Tripi's testimony that he knew his training instructor was an authorized Applied Concepts representative because the instructor presented a card indicating such, and the officer knew the training manual was by Applied Concepts because "Applied Concepts" was printed on the cover or first page of the manual. Rezentes asserts that this testimony was inadmissible hearsay, in violation of Rules 801 and 802 of the Hawai‘i Rules of Evidence (HRE ); violated the "best evidence rule," under HRE Rule 1002 ; and was not based on the officer's personal knowledge, in violation of HRE Rule 602. However, the HRE did not apply to the preliminary question of the speed reading evidence's admissibility. See HRE Rule 104(a) () and Commentary to Rule 104(a) ; see also HRE Rule 1101(d) ().
The State, however, did not adduce sufficient evidence to show that the Stalker was tested according to the manufacturer's recommended procedures. See Assaye , 121 Hawai‘i at 213, 216 P.3d at 1236. At trial, Officer Tripi was questioned on cross-examination about how he conducted the tuning-fork test:
Officer Tripi's testimony on these points casts serious doubt on whether he complied with Applied Concept's recommendations when conducting the tuning-fork test and, by extension, whether the radar gun was accurate when it was used to measure Rezentes's speed. Because the State failed to establish that the radar gun was tested...
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State v. Werblun
...461 P.3d 29, No. CAAP-18-0000949, 2020 WL 1879621, at *1 (App. Apr. 15, 2020) (SDO); State v. Rezentes, 139 Hawai‘i 263, 388 P.3d 51, No. CAAP-15-0000294, 2016 WL 6330390, at *1 (App. Oct. 28, 2016) (SDO).Accordingly, the district court did not abuse its discretion in determining that the S......