State v. Vallejo, 14946
| Decision Date | 09 January 1992 |
| Docket Number | No. 14946,14946 |
| Citation | 823 P.2d 154,9 Haw.App. 73 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Henry Saturno VALLEJO, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Where a defendant has not objected to a criminal charge until after his or her conviction, the charge will be liberally construed, and where the charge reasonably includes the necessary elements of the offense charged, and the defendant is neither surprised nor prejudiced by the claimed omission, the charge will be upheld.
2. Where the defendant was charged with speeding in violation of Hawaii Revised Statutes (HRS) § 291C-102(a) (1985) and was informed that the charge pertained to a county road, the defendant was put on notice that he had allegedly exceeded a speed limit established by a county ordinance.
3. Rule 202(b), Hawaii Rules of Evidence (1985), requires the courts to take judicial notice of all duly enacted ordinances.
4. Speed limits on Honolulu's county roads are established by Revised Ordinances of Honolulu (ROH) § 15-7.2 (1983 ed.). The names of the individual streets covered by the speed limits in ROH § 15-7.2 are listed in Schedules IV through X, XXXIII, and XXXVII, attached to and incorporated in the ordinance. Where the district court, during the trial of a speeding citation, took judicial notice of the Schedules on file with the clerk of the court, the court took judicial notice of the ordinance.
5. ROH § 15-7.2(2)(a) establishes a speed limit of 25 miles per hour on any street or highway within the City and County of Honolulu where the speed limit has not been otherwise established.
6. Where a police officer testified in a speeding violation trial that in his training he was taught that official traffic control signs are "posted" and bear a label on the back, that he had previously checked the speed limit sign in question, and that it was posted and bore such a label, the trial court properly allowed the police officer to state his opinion that the sign was official.
7. A presumption is a deduction or an inference that may be drawn by the trier of fact from certain facts found or established during the course of a trial. A statutory presumption that shifts to the accused the burden of disproving any element of the offense charged is invalid. The judgment of the legislature in establishing a presumption is to be given great weight by the courts, provided it is based on common experience or reliable empirical data.
8. The presumption of HRS § 291C-31(c) (1985), that where an official traffic-control device is placed in a position approximately conforming to law the device shall be presumed to have been so placed by the official act or direction of lawful authority unless the contrary shall be established by competent evidence, is the legislature's recognition of the common experience that where such a device is in a legally proper place on the highway, it was placed there by some properly authorized agent of the government. The statute does not impermissibly shift the burden of proof, since the state is still required to convince the trier of fact that the presumption flows from the proven facts.
9. Although the word shall is normally accorded a mandatory meaning when used in a statute, it may be given a directory meaning when it comports with the legislature's intention.
Mariano V. Hernando (Traffic Clinic Hawaii, of counsel), on the briefs for defendant-appellant.
Alexa D.M. Fujise, Deputy Pros. Atty., City and County of Honolulu, on the brief for plaintiff-appellee.
Before BURNS, C.J., and HEEN, J., and KAULUKUKUI, Circuit Judge, ASSIGNED by Reason of Vacancy.
On October 11, 1990, Defendant-Appellant Henry Saturno Vallejo (Defendant) was convicted after a bench trial of operating his automobile in excess of the posted speed limit of 25 miles per hour (mph), in violation of Hawaii Revised Statutes (HRS) § 291C-102(a) (1985). 1
Defendant was cited for traveling at a speed of 49 mph in a 25 mph zone on Kapahulu Avenue after he was "shot" with a K-15 radar gun by the citing police officer (Officer). 2 At the trial, the Officer testified that Defendant passed a 25 mph speed limit sign posted on Kapahulu Avenue near the spot where he was shot. The Officer also testified:
Q And at the police academy, Officer, is there any type of instruction that you receive in recognizing a City and County of Honolulu or State of Hawaii sign?
A Yes, sir. It's posted and there's a label on the back of the sign.
Q In this particular instance, did you check to see if there was a label on that sign?
A No, sir. It's--I've checked it before, but not that night cause it's the same sign that was there, same sign, same post.
Q And that label was on that sign when you last checked it?
A Yes, sir.
Q Okay, Officer, based upon your training and experience was, are you able to say whether or not that was an official City and County of Honolulu or State of Hawaii speed sign?
A Yes, sir.
Defendant's objection to the last answer was overruled.
The trial court then took judicial notice of the schedules of speed limits (Schedules) on county highways on file with the clerk of the district court and found the official speed limit on Kapahulu Avenue was 25 mph. 3
At the close of the State's case, Defendant moved for a judgment of acquittal on the ground that the State had not proven that the speed limit had been established in one of the two ways required by HRS § 291C-102. 4 The motion was denied. Defendant rested and renewed his motion, this time arguing that HRS § 291C-31(c) (1985), which the court had relied on to find that the speed limit sign testified to by the Officer was placed under lawful authority, unlawfully shifted the burden of proof to him. Defendant's second motion was also denied, and the court adjudged him guilty.
The questions on appeal are:
(1) whether the oral charge against Defendant was legally sufficient;
(2) whether the State proved (a) that the speed limit had been established by ordinance; (b) that the speed limit sign was an official traffic control device; and (c) that the speed limit sign had been erected under lawful authority.
We will discuss those questions seriatim.
Defendant was charged as follows:
MR. HOKE: Okay. Mr. Vallejo, on or about April 19, 1990, in the District of Honolulu, City and County of Honolulu, State of Hawaii, you did drive a motor vehicle at a speed greater than the maximum speed limit by driving at 49 miles per hour in a 25-mile-per-hour zone, in violation of Section 291C-102(a) of the Hawaii Revised Statutes which pertains to a county road.
Defendant asserts that the charge was legally deficient because it did not specifically charge him with violating either a county ordinance or a state statute. The argument is without merit.
Defendant did not object to the charge below. Consequently, it will be liberally construed in favor of validity. State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983). If the charge reasonably includes the necessary elements of the offense charged, and the defendant is neither surprised nor prejudiced by the claimed omission, the charge will be upheld. Id.
Here, Defendant was clearly charged with violating HRS § 291C-102(a) and was informed that the charge "pertain[ed] to a county road." Thus, he was effectively put on notice that he had allegedly exceeded a speed limit established by a county ordinance.
Moreover, the record indicates Defendant was not misled or prejudiced by the charge. The record shows that when the court indicated it was taking judicial notice of the Schedules, Defendant produced his own set of Schedules in an effort to convince the court that Kapahulu Avenue was not listed on the Schedules.
Defendant's argument with respect to the State's burden of proof is confusing. However, we construe his argument to be that the State failed to prove (A) the ordinance establishing the speed limit; (B) that the speed limit sign was official; and (C) that the sign had been erected under lawful authority. The argument is without merit.
Speed limits for Honolulu county roads are established by Revised Ordinances of Honolulu (ROH) 1978 Chapter 15 (1983 ed.), the Traffic Code. The Traffic Code establishes a myriad of regulations, including speed limits, governing traffic on county roads. Speed limits are established by ROH § 15-7.2. The names of the individual streets covered by the speed limits in ROH § 15-7.2 are listed in Schedules IV through X, XXXIII, and XXXVII, attached to and incorporated in the Traffic Code. Rule 202(b), Hawaii Rules of Evidence (HRE) (1985), requires the courts to take judicial notice of all duly enacted ordinances. 5 When the court took judicial notice of the Schedules filed with the clerk, it took judicial notice of ROH § 15-7.2. Consequently, the ordinance was proved.
The pertinent provision of ROH § 15-7.2 is as follows:
Sec. 15-7.2. Speed Limit Zones.
* * * * * *
(2) Twenty-five miles per hour.
(a) Any street or highway within the City and County of Honolulu where speed limit has not been otherwise established.
* * * * * *
(c) On those streets or portions thereof described in Schedule V attached hereto and made a part hereof; subject, however, to the limitations and extensions set forth therein.
We have examined the Schedules and confirm Defendant's assertion that Kapahulu Avenue is not listed under Schedule V, which designates streets where the speed limit is 25 mph. Moreover, we do not find Kapahulu Avenue listed in any other schedule. Consequently, in accordance with ROH § 15-7.2(2)(a), the trial court properly found that the speed limit on Kapahulu Avenue is 25 mph.
Defendant argues that the court erred in permitting the Officer to testify that the speed limit sign was an official sign. We disagree.
The Officer testified that in his training program he was taught that official traffic control signs are "posted" and bear a...
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