State v. Fitzwater.

Hawai'i, Respondent/Plaintiff- STATE

Appellee, FITZWATER, I.

Zachariah

Petitioner/Defendant-

Appellant.

No. 28584. of Hawai'i.

Supreme Court

March 2010. April Amended

As Kupau, and Summer

Ronette Kawakami (John Tonaki, Defenders M. Deputy Public Tomasa, Defender, Dep- Taryn R. Public Defender, on the with them uty Public briefs), petitioner/defendant-appellant. for Vincent, and Brian Stephen K. Tsushima (Peter B. Car- Prosecuting Attorneys Deputy lisle, Prosecuting Attorney, with them on the check was conducted with the under- brief), respondeni/plaintiff-appellee. standing likely that its results would be used cases, prosecution speeding the card MOON, C.J., NAKAYAMA, DUFFY, and qualify could nevertheless as a record of RECKTENWALD, JJ.; ACOBA, J., with (“business regularly activity conducted rec- Concurring Separately Dissenting. ord”) under Hawaii Rules of Evidence (HRE) 803(b)(6), quoted Rule Howev- infra. Opinion of the Court er, there was insufficient foundation to admit RECKTENWALD, J. rule, the card as a business record under that additionally and there was insufficient foun- Petitioner/defendant-appellant Zachariah I. regarding dation reliability Fitzwater speed- was convicted of excessive Finally, ing reject argu- in check. we violation of Hawaii Revised Fitzwater’s Statutes (HRS) 291C-105(a)(l) (2007).1 § ment speed that the admission of At the check Fitzwa- right trial in evidence violated his ter’s the District Court of the to confrontation First (district court),2 under the Circuit Sixth Amendment of the United police a Honolulu States officer testified Constitution. that he followed Fitzwater’s motorcycle after he observed Fitzwater trav- evidence, speed Absent check there eling appeared at what high to be a rate of was insufficient evidence to establish the ac- officer, speed. According speed- to the curacy speedometer of the in the officer’s in police ometer his vehicle indicated that vehicle, support and to Fitzwater’s conviction traveling Fitzwater per was 70 miles in hour for speeding excessive in violation of HRS speed an area where the limit 35was miles 291C-105(a)(l). § Accordingly, we vacate per hour. The officer further testified that a judgments ICA and the district “speed check” had been conducted to deter- However, court. because there was suffi- police mine the of the vehicle’s cient evidence to establish that Fitzwater speedometer about five months before the speeding § in violation of HRS 291C- involving incident Fitzwater. Over the ob- 102(a)(1),3a lesser included non-criminal traf- jection counsel, pur- Fitzwater’s a card infraction, entry fic judg- we remand for of a porting to document the speed results of that ment that Fitzwater violated that section. evidence, check was admitted into and the officer testify was allowed to that the results I. BACKGROUND speed speedom- check showed that the eter was accurate. Proceedings A. in the District Court (ICA), Appeals 9, 2007,

The May Intermediate Court of orally On the State of Hawaii Summary (SDO), Disposition Order charged con “driving Fitzwater with a motor ve- (indiscernible) cluded that the district court did not err speed exceeding hicle at a admitting speed (indiscernible) check evidence. v. speed speed [by] limit 30 Fitzwater, 383, No. 120 Hawai'i per miles hour or more in violation of Hawaii 291C-105(A)(1), P.3d *1-2 (App. WL driving Revised Statutes 2009). Apr. timely sought Fitzwater then mile-per-hour-zone.” in a 35 Fitzwater review in this court. pleaded guilty. appeal requires

This us to resolve several Officer Neal Yat testified that around relating speed p.m. issues to the evening January admission of 11:20 on the although check evidence. patrolling High- We hold that he was Kamehameha § part: Noncompliance speed prohibited. 1.HRS 291C-105 states relevant limit with (a) (a) person person speeding, A violates this section if the Excessive No shall drive speed exceeding: a motor vehicle at a drives: (1) (1) applicable county speed state or lim- greater speed A motor vehicle at a than the by thirty per it more[.] miles hour or speed provided maximum limit other than section 291C-105[.] Woo, presided. 2. The Honorable T. David Jr. part:

3. HRS 291C-102 states in relevant given blue check is recorded a card that is way Waipio “[o]n near Uka Boulevard his parked in a assigned vehicle. He was to each vehicle that shows that white driveway “shooting tested, when four motor- laser” at whichever it’s the vehicle is extremely high cycles passed him “at an rate says actually going speedometer what the it speed.” get He was not able to a laser is.” they reading motorcycles because on the DPA asked Ah Yat what the When small, there were trees were too and because was, check on his vehicle result way. attempted Ah Yat then to catch objected ground counsel on the defense motorcycles pace up [them].” “to on the information card was motorcycles sped up and took Three of hearsay. inadmissible The court overruled off, it too and Ah Yat testified objection Ing, based on State v. 53 Haw. attempt dangerous for him to to follow them. (1972). Defense counsel motorcycle, He followed the fourth which was argued Ing: then Fitzwater, maintaining being driven a dis- substantially has been Craw lengths approximately tance of six car direct- 36, 124 Washington, [541 U.S. S.Ct. per ly behind him at a of 70 miles hour ford (2004) ], L.Ed.2d 177 [as as well approximately two-tenths of a mile. He case, by] companion the Hawaii State v. speedometer checked his at least three times Grace, (App. Hawai'i 111 P.3d 28 [107 traveling he at 70 miles to confirm that 2005) ], requirements that new foundation Fitzwater, they per pacing hour. As he was imposed by ] [Grace ] passed 30-mile-per-hour sign and a 35- [Crawford a upon any not based court rules sign. stopped Ah mile-per-hour Yat Fitzwa- and/or Evidence, Hawaii Rules of but are consti speeding, him excessive ter and cited “for tutional. in a as well as no insurance and no Ah Yat informed Fitzwater license.”4 When him,

why stopped he had Fitzwater stated “just trying keep up” with that he was (indiscernible) argue that We now motorcycles.5 other requires any testimony exclusion of speed Ah Yat check was con- testified by statement made a declarant who is not Spee- ducted on his vehicle “Jack’s (indiscernible) testify here to another wit- 2006, although August do” in he wasn’t (indiscernible) ness, that absent statement day of the exact it was done. He testi- sure (indis- cannot be elicited from the witness speed fied that a cheek the actu- “calibrated cernible) consequence prosecu- unless the speedometer.” speed al of the ear with the first, quote, tion that shows declarant is speed that He stated that the is calibrated so (indis- unavailable, unquote and there’s no speedometers our are accu- “we know that cernible) cross-examine. rate, pace and when we vehicles at a certain (indiscerni- Although does not Crawford speed, we know for sure that the vehicle is ble), adopted proposing [Grace] the test going speed.” speed that He said checks are the National Association Crawford vehicle maintenance “taken care of (indiscernible) Lawyers Defense testi- (VMS),]” “take[s] section which the vehicle [ (indiscernible) pertinent question monial is shop[.]” Deputy Prosecuting At- objective whether an observer would rea- (DPA) torney speed him if “the check asked sonably expect to be the statement avail- conducted in the course of main- [is] prosecution. able for use in vehicles[,]” taining HPD to which he re- I Officer Ah Yat testify believe has testified sponded “[y]es.” Ah Yat did not check, speed they’re pace that his made to about how the checks are done. He testified year, they prosecute cars so be used to they that are conducted once a and are can (indis- good year. speed speeding Ing The result of a cases and decided for one granted court the State's motion to 5. The district court denied defense counsel's re- 4. The district charge, hearing quest insurance and to nolle for a voluntariness on Fitzwater's dismiss the no charge driving prosequi without a license. statement to Yat. cernible) requirements [Ah our ob- Yat]: that’s Yes.

jection. [defense counsel]: And also because when it, you calls for pace the situation have to stating objection, The court overruled the judge speed, their vehicles to correct? gonna ground- that it was “not make breaking point rules on that until su- Yes, [Ah Yat]: sir. preme court rules on it[.]” you [defense counsel]: And then when again show, the DPA fact, asked Ah Yat what

When your— come to court was, speed you speed the result check defense use these cheeks to show objected, arguing counsel that the State “did acting, court that the vehicle was I mean lay appropriate foundation” for the evi- eorreetly speed? was calibrated as far as be dence to admissible as a business record Yes, [Ah sir. Yat]: 803(b)(6). under HRE Rule Defense counsel So, [defense counsel]: it’s reasonable to argued that because Ah Yat testified state that these cheeks are done and Speedo Shop did the “Jack[’s] prosecuting made for use in available somebody in it [the and that the HPD took to speeding eases? checked[,]” shop] had it AR Yat was not sorry, you asking, [Ah Yat]: I’m what are witness pursuant or custodian sir? HRE Rule The court overruled Sir, say [defense counsel]: it fair to objection. vehicles, checks for HPD these highest Ah Yat then testified that “[t]he vehicle], specifically assigned his [for hour per [was] [and tested 75 miles are made are done and so that officers go- it] show[ed] the vehicle was indeed yourself can use in prosecut- such as them per ing 75 miles hour.” Ah Yat testified cases, ing speeding you in use them if a pacing this meant that he were vehicle court? speedometer and his showed he was that Oh, sir, yes, yes, [Ah Yat]: sir. hour, at traveling per 70 miles the other traveling per vehicle was fact at miles

hour. court, response questions from the copy speed

A of the cheek admit- card was Ah that driving Yat testified he had been his objection ted evidence over the of de- into ap- every night” “[a]lmost HPD vehicle Ah Yat card as fense counsel. identified the year, speedometer that proximately a belonging to his vehicle bore his normally because it appeared operating been to have HPD vehicle number. Ah Yat testified that during year, and that he that had never speed true and copy it was a accurate anything way observed unusual about the that was on file with the HPD. check speedometer operated. After re- a brief Yat, of Ah the State rest- cross-examination cross-examination, Ah acknowl- On Yat ed. edged personally he had not taken the that Speedo August Shop vehicle to Jack’s judgment moved for Defense counsel speed but rath- performed, to have check аgain acquittal, arguing that and Crawford (Ah Yat er that a member of the HPD’s VMS speed precluded admission of the Grace who) know Ah Yat did not had taken it in. check, lay the State did not and that anyone talk to about Speedo did not at Jack’s a proper for it to be admitted as foundation did not how the test was conducted. He under HRE Rule business record card, speed he received the recall when motion, “it finding The court denied stays but added that “it with the vehicle.” a requirement, [HPD] is a rule of that these about the counsel then asked Ah Yat Defense speed year get automobiles checked once a speed purpose card: and is done the maintenance this kept its counsel]: to- section and that records are [defense [Y]ou testified checks, you of business the mainte- day speed did these so course section, therefore, your and you speedometer qualify nance it does know this (indiscernible), HPD vehicle as a business record.” correct? motorcycle operat-

Fitzwater testified that the be- The Court that this officer finds longed evening patrol year, to a ed his ear for well over a friend his. On motorcycle question, daily. operation the owner of the was almost He observed the intoxicated, motorcy- speedometer, and wanted to ride his found that it seemed times, stopped doing operating normally home. him from to be cle Fitzwater all so, particular day, and decided to take his friend’s bike home on this the Court finds that joined you him for him. Two friends on the ride when take that into account that he hour, motorcycles. paced on their Fitzwater testified the defendant at 70 miles an safety reasonably clocking that is a that he rode front his friends for accurate reasons, irrespective Speedo Shop because he did not have a helmet of what Jack’s they may say. help him and would be able to him with they riding, if he fell. an uniden- While were speed Court also that there is this finds sports tified driver on a bike similar to the was, check and riding one Fitzwater was “flew [them] that officer’s vehicle was calibrated at both going hour[.]” about hundred miles an Af- hour, 65 miles an hour and at 75 miles an [them],” police ter that driver “buzzed offi- speeds both found to be accurate. The pulled cer out and traveled behind them. Coui't finds that the defendant’s Fitzwater testified that he didn’t “look at the beyond 70 miles an hour a reasonable often[,]” speedometer really but estimated doubt. traveling per that he was at about 50 miles appears things It that'there are certain changed hour a zone that from a 45-to a night the defendant did that that would 35-mile-per-hour speed limit. The officer mind, driving indicate a reckless state passed then his two Fitzwater and friends on helmet, driving without a without closed- left, them, pulled cut in front of toed shoes. speculated Fitzwater over. Fitzwater pulled he was over because the officer con- motorcyclist. fused him with the fourth He high And the Court finds that that rate telling not recall did Officer Yat that he of 70 in a 35 is evidence of a trying keep up with the other motor- mind, which reckless state of satisfies the cyclists. requirement of intent in this case. I proven therefore[ ] find that the State has again judgment

The defense moved for a beyond its case a reasonable doubt. I find acquittal grounds, of on the same and the guilty charged. the defendant as court ruled in relevant as follows: may argument [T]he defense have some judgment May The court entered on Crawford, about the whether or about sentencing pay Fitzwater to a $500 Ing fine, assessment, makes inroads into State v. a driver education a $75 $25 Crawford arguments and also some about the foun- fee, injuries neurotrauma and a criminal $30 really I dation. don’t think that that case fund fee. The court also ordered Fitzwater impacts Ing as much defense as counsel complete improvement to a driver’s education (indiscernible) thinks because[] [t]he perform course and to of communi- 36 hours Ing speedometers was that devices such as ty suspended service. The court also Fitz- generally they accurate and can be days, permitted water’s license for 30 but upon by relied the courts to indicate Fitzwater to drive from to and work and the speeds. requirements imposed by driver’s educational during the court half of the the second sus- fact, you carefully if read as the court pension. timely Fitzwater filed a notice of indicate, speed seems to the check is mere- 5,2007. appeal on June eake[,] ly frosting goes the on the that it to weight beyond the of the evidence as to a Proceedings B. in the Intermediate Court actually reasonable doubt and it’s the offi- Appeals speedometer cer’s observation of the that event, fact, important appeal important op- is the Fitzwater raised four issues on to First, erative fact in the the ICA contended that the ease. Fitzwater qualifying (2005), speed district court erred in the in which P.3d 28 the ICA record, cheek card aas business since the held that the of two witnesses statements to prepared expectation card was the police with that they a officer that saw the defendant Thus, litigation. it would be used in hitting accord- his wife were testimonial nature Fitzwater, ing to card fell the within the Crawford, under the contained “information scope recognized by principle the Su- speed specific check card was within to preme Hoffman, Court in v. Palmer 318 U.S. operated by the vehicle Officer Ah Yat and (1943), 63 S.Ct. 87 L.Ed. which any particular not to individual ... and a report prepared held that an accident a speed record of the results cheek [of employee railroad a was not business record specific anticipation not] made in of [Fitzwa- regular because it was not made ter’s] trial.” argued course of Fitzwater also business. Finally, argued Fitzwater that the district

that the district erred in relying court on improper erred in permitting testimony court Ing, since that decision was based on a stat- by Officer Ah Yat. Fitzwater contended that repealed ute that had since been and re- gave expert Ah Yat what to amounted testi- placed by HRE Rule check, mony about the but was not responded “nothing The State that about argued to do also so. Fitzwater 803(b)(6) language Rule H.R.E. the State failed establish to sufficient Ing makes holding inapplica- v. State speedometer foundation to show had issue,” Ing ble to the instant and that stands calibrated, properly citing been State v. Wal- proposition for the “records of rou- lace, (1996) 80 Hawai'i P.2d 695 speedometers tine and testing Manewa, State 115 Hawai'i on only vehicles admissible not [are] (2007). responded The prove that such been ha[ve] tests made but pursu- cheek evidence was admissible speed- also as evidence of Ing, event Ah ant Yat’s ometers.” driving that he had been his vehi- Second, argued Fitzwater that even if the every night year almost cle that the regularly cheek card was a record speedometer appeared always op- had to be activity meaning conducted within erating normally sup- was itself sufficient to 803(b)(6), HRE Rule there was insufficient port conviction. foundation for its The admission. State re- The ICA resolved those four issues sponded that a sufficient foundation had been follows its SDO: pursuant established Ah Yat’s 803(b)(6), Ing and HRE Rule since Ah Yat (1) The not err district court did admits “explained] speed check card was ting card as a kept ordinary course HPD’s busi- 803(b)(6).... record under HRE Rule ness and made at or near the time of the err in overruling district court did not speeding incident....” objection the foundation Fitzwater’s to for Third, that argued Fitzwater the admission speed check as a business rec- card right of the card violated his confrontation (3) speed ord. ... Admission under the Sixth Amendment United card was not a of violation Fitzwater’s I, States Constitution and article section 14 (4) right of [and] confrontation We argued of the Hawai'i He Constitution. point decline to consider Fitzwater’s final although Ing had that admission of found object as he failed of speed information contained on cheek card ground Officer Ah Yat on the that it was right did not violate the defendant’s to con- testimony. improper expert frontation, Washington v. had ef- Crawford 28584, Fitzwater, v. No. 2009 WL fectively required Ing overruled testimo- 1112602,at *1-2. ny speed from the conducted the who check and created the card. 12, 2009, May ICA On entered its response, argued affirming judg-

In judgment the State that unlike the district court’s Grace, ment. statements State v. Hawai'i the rule would be Application trustworthiness” under for Writ of Certiorari C. discretion). for abuse of reviewed writ August application In his (Application), Fitzwater raised of certiorari C.Right of Confrontation following questions: questions answer of constitution gravely erred “We 1. the ICA Whether by exercising independent own qual- al law our speed cheek card holding that the facts of the ease. judgment based on the record. ified as a business Thus, questions review of constitutional we gravely ICA erred in 2. Whether ‘righVwrong’ standax*d.” State law under holding that the State adduced suffi- Fields, 503, 511, 115 Hawai'i 168 P.3d v. to admit the cient foundation (citation omitted). (2007) ellipsis record. check card as a business gravely erred in 3. the ICA Whether of constitutional “Violation holding admission of the subject x-ightto confi-ontadvei’se witnesses is of Fitz- check card was not a violation beyond a reasonable doubt to the harmless right confrontation under water’s Balisbisana, 83 Hawai'i standard.” State v. or the either the Hawaii Constitution (1996). 113-14, 924 P.2d 1219-20 United States Constitution. standard, applies this “the When the coui’t in fail- gravely ICA erred Whether the record and required coui’t is to examine address, plain a matter of ing [to] pos detei’mine whether thei’e is a l-easonable error, that Officer Yat’s sibility complained might the error testimony. improper expert constituted have contributed to the conviction.” Id. (intei-nal quotation at 1220 response. file a The State did not omitted). marks and citation OF REVIEW II.STANDARDS III.DISCUSSION Application

A. for a Writ of Certiorari creation of A. The circumstances of the rejection applica- acceptance or of an pi'eclude check card did not discretionary. tion for a writ of certiorari is un- its admission as a business record 602-59(a) deciding (Supp.2009). § HRS 803(b)(6) der HRE Rule application, court accept this whether (1) grave of the ICA for reviews the decisions Application, In his Fitzwater first ar incon- or of fact or obvious errors of law gues check card was inadmis in the decision of the ICA with sistencies as a business l'ecord under HRE Rule sible decisions, court, or its supreme fеderal 803(b)(6) pur because it was created for magnitude whether the own decisions and citing Hoffman, poses litigation, Palmer or inconsistencies dictate such eiTors 63 S.Ct. 87 L.Ed. 645 318 U.S. 602-59(b). appeal. for further HRS Massachusetts, need (1943),and Melendez-Diaz v. — -, 129 S.Ct. 174 L.Ed.2d U.S. Admissibility Hearsay B. (2009). below, set forth For the l’easons argument. i’eject we this admissibility evidence is “Where hearsay by application of the determined (1993 803(b)(6) Supp.2002) Rule & HRE result, rule, only be one correct there can part: in x’elevant states appellate standard for appropriate and the Hearsay availability exceptions; de- right/wrong standard.” State v. review is the following clarant immaterial. 445, 450, 127 Machado, Hawai'i P.3d rule, by hearsay even not excluded (2006) (citation omitted); Jhun, though available as a wit- the declarant is P.2d 477 & n. 83 Hawai'i ness: (1996) review (applying & n. 4 de novo HRE Rule admissibility of evidence under to (b) exceptions. Other 803(b)(8), noting question but evidence of a “lack of whether there was

SgS regularly Records of conducted ac- Supreme The United States Court consid- memorandum, tivity. report, A rec- ered what constitutes a statement made “in ord, form, compilation, or data regular course” of business in Palmer. acts, events, conditions, opinions, or plaintiff, 318 U.S. at 63 S.Ct. 477. The diagnoses, made in the course of a capacity in his individual and as the adminis- regularly activity, estate, conducted at or brought trator of his wife’s several acts, events, near the time of the con- against company causes of action a railroad ditions, opinions, diagnoses, or after he and his wife were involved in a shown of the custodi- railroad accident. 318 U.S. at 63 S.Ct. witness, an or other Palmer, or engineer who had been an complies certification that with rule accident, prior the train involved in the died 902(11) trial, or permitting a statute certifi- Supreme to and the Court considered cation, unless the sources of informa- signed represen- whether his statement to a or tion other circumstances indicate public tative of the utility railroad and state lack of trustworthiness. subsequent commission to the accident was “writing

admissible as a record made regular in ... course of such business[.]” Thus, a record that is otherwise admissible Id. at 111 n. Supreme 63 S.Ct. 477. The 803(b)(6) may under HRE Rule nevertheless Court, interpreting a federal statute that al- be inadmissible if “the sources of information records, lowed the admission of business held [aj or other circumstances indicate lack of report was not made “in the Bowman, trustworthiness.” See Addison M. course” of business and was inadmissible § Hawaii Rules Evidence Manual 803- hearsay, stating that: (2008-2009 ed.) (“internal reports 3[5][D] report] [The is not a record made for the concerning likely generаte litiga events systematic conduct of the business as a tion, organization offered pro report may business. An accident affect them, subject duces should be to routine that business in the sense that it affords 803(b)(6)’s scrutiny under rule untrustworthi management may information on which the (hereinafter qualification”) ness HRE Manu not, however, typical act. It is of entries al)-, al., see also 2 Kenneth S. Broun et systematically made or as a matter of rou- (6th § McCormick on Evidence 288 at 312 occurrences, tine to record events or 2006) (“When ed. prepared records are others, reflect pro- transactions with or to often, anticipation litigation, they will but vide internal controls. always, not demonstrate that lack of trust worthiness.”) (hereinafter McCormick on Ev ).

idence short, it is manifest that in this ease We review the district court’s determina reports systematic those are not for the tion of untrustworthiness for abuse of discre enterprise conduct of the as a railroad (the tion. See HRE “prelimi Rule 803 emt. payrolls, business. Unlike accounts receiv- nary determination of the trustworthiness of able, payable, lading accounts bills discretionary such records with the like[,] reports these are calculated for court”); McCormick on Evidence 288 at court, essentially use not (trial “discretionary power” courts have a primary utility business. Their is in liti- to exclude evidence that meets the letter of gating, railroading. exception hearsay the business records 113-14, Id. at 63 S.Ct. 477. rule, ap but “which under the circumstances pear[] reliability to lack argues that business agreement Fitzwater that Ah Yat’s have”); Jhun, ordinarily records 83 Ha that “it’s reasonable state that these cf. wai'i at 478 & n. 927 P.2d at 1361 & n. 4 cheeks are done and made available for use (noting question prosecuting speeding of whether there cases” means that was evidence of a “lack of prepared trustworthiness” check card was in antici- 803(b)(8) Palmer, pation under HRE Rule litigation report would be re of like the in discretion). viewed for abuse of and thus it should not be admissible under 364 However, 803(b)(6). partic- in the circum- here not created for use a

HRE Rule card was Rather, the creation of the check card dispute. stances of ular check from those in quite here are different card that reflect the is more akin to documents documents Palmer and other cases which tests, regularly results of conducted which inadmissible as business rec- have been held held to be admissible as business have been were found to be ords. Such documents they if are fre- government records even they because were created inadmissible litigation. Ofa, 9 quently usеd See State v. occurrence, response historical to a 130, 135-36, Haw.App. 828 P.2d 816-17 specific inci- anticipation litigation of on that (1992) (evidence log intoxilyzer which re- they with the moti- dent. Since were created “testing Intoxilyzer for accura- flected particular par- prevailing against a vation cy specified on the dates constituted a record inherently ty, their trustworthiness routine, made in a nonadversarial matters questionable. See Certain Underwriters setting” and was therefore nonadversarial Sinkovich, Lloyd’s, v. 232 F.3d London government a record under admissible as (4th Cir.2000) (accident report 2& n. 204-05 Ali, 803(b)(8)); v. 679 HRE Rule record even was not admissible as a business (in (Minn.Ct.App.2004) 367 N.W.2d by investigator be- prepared if an outside case, speeding the court held that records creating primary motive for cause certifying of the officer’s laser litigation report prepare was to of this gun qualified as business records even case, prepared ‍​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​‌‌‌​‌​​​​​‌​‌‌​​‌‍for particular and documents though the officer testified that the certifi- litigation “dripping with specific use in are police officers to use in cates were issued (citation misrepresent”) omit- motivations to proceedings court because the officer later ted); Fidelity Co. v. Timberlake Const. U.S. document also testified “that the certification (10th 335, 336, Co., F.3d & Guar. was created course Cir.1995) (trial admitting court erred in let- department’s business to ensure that the la- party in an insur- ters that were sent accurately measuring speed and meet- ser is dispute a fire coverage ance that arose after ....”) ing specifications the manufacturer’s store; appeals court observes at a Wal-Mart (internal omitted); quotations Bohsancurt the earmarks of the letters “have all Eisenberg, Ariz. being generated motivated and to further (calibration interest, actually litigation (Ct.App.2006) and maintenance party’s] with [the corner”); Accep- far around the Echo breath-testing machine fell within records Services, Corp. Retail tance v. Household exception “because the business records (10th Cir.2001) Inc., 267 F.3d 1090-91 gen- [they] factual memorializations contain (upholding the trial court’s refusal to admit machine, and the rec- erated a scientific correspondence which constituted business prepared technicians who are not ords “posturing” by lawyers in antic- legal drafted investigators have no proxies police State, litigation); Hardy v. ipation of interest in whether the certifi- demonstrable (in (Tex.App.2002) a case S.W.3d produce evidence that is favorable or cations involving hydraulic pumps, the court theft оf ....”) (in- particular adverse to a defendant pump held that a letter from the manufactur- omitted). quotations ternal and citations attorney issued re- er to a local district on Although Yat testified that confirming that the quest from officers understanding pumps not a cards were created with the manufacturer had sold the they prosecuting record because “the document was be used in would prosecuting cases, solely purpose created for the speeding the card at issue here was charges against appellant”). criminal setting in a non-adversarial about created alleged speeding prior months five Thus, at issue here is check card incident, specific created for the and was not distinguishable report from the accident Thus, prosecuting purpose of Fitzwater. Palmer and the documents discussed preclude of its creation did not circumstances documents foregoing cases. those While as a business record under its admission solely purposes litiga- created for the were case, speed check HRE Rule particular in a tion is consistent with this anal- card as record Melendez-Diaz the a business under HRE ysis. Melendez-Diaz involved a narcotics Rule The district court admitted prosecution, which the state introduced' testimony the card over and the Fitzwater’s laboratory analysts sworn statements from objection. the weight

which stated the substances court, application his this Fitzwater investigation during the recovered the de- notes, alia, inter Yat did that Ah not take the they and fendant confirmed that contained present not shop, vehicle the was when the Citing cocaine. 129 S.Ct. at 2530-31. Palm- created, personal was card and had no knowl- er, Court kept the noted that “[documents edge testing. about the calibration regular may ordinarily course of business their despite hearsay be admitted trial In order for a record to be admissible 803(b)(6), [b]ut status that is not the case if the HRE proponent under Rule regularly activity conducted business is the Spe- must establish a sufficient foundation. production of evidence for use at trial.” Id. cifically, The that at 2538. court observed the affida- (1) proponent [t]he establish must that the qualify

vits not would as traditional “official “acts, events, conditions, record evidences records,” id., noting or business that (2) opinions, diagnoses”; or that the record had analysts a record for the “ereate[d] sole regularly was made in the course of a purpose providing against evidence a de- (3) activity; conducted and record “pre- fendant” that the records had been was made “at or the time” оf near the acts pared specifically petitioner’s for use at tri- or events that are recorded. Id. at 2539-40. alt.]” 803-3[5][B]; § HRE Manual see HRE Rule Thus, the circumstances Melendez- 803(b)(6). here, were Diaz different from those where Furthermore, record must “[t]he also sur- specifically the document was not created the discretionary vive untrustworthiness ex- prosecution of Fitzwater. We therefore clusion of the rule.” HRE Manual 803- speed that card conclude a cheek can be 3[5][B], properly admitted into evidence as a business if proper record is laid. foundation necessary The can be foundation estab “by testimony of the lished custodian or The State did establish a suffi- B. witness, qualified or other certification admit cient foundation to 902(11)[6] complies or a statute with rule ” check card as a record under permitting HRE Rule certification.... 803(b)(6) Rule HRE 803(b)(6). Therefore, a check card trial, objected by: At as the be authenticated Fitzwater such one here can (1) card, testimony of Ah custodian of admission Yat’s about the (3) cheek, witness, qualified results to the admis from a complies HRE sion of the cheek card itself. Fitzwa- a certification that with Rule 902(11) permitting argued hearsay, or other statute certifica ter this evidence The does not include and that there was insufficient foundation for tion. record here such certification, “quali since Ah was not a nor the record reflect its admission Yat does testifying properly Ah Yat as a fied witness” who could authenticate custodian of 902(11) (1993 (B) Supp.2008) pro- Kept regularly Rule & 6. HRE the course con- that: activity; vides ducted (C) regularly activity original duplicate of a Made conducted or a domestic or foreign regularly activity conducted record of practice. as a 803(b)(6), would be rule admissible under signed in The declaration be a matter shall accompanied by if a written declaration of its that, made, subject falsely if would the maker person, certifying custodian or other penalty to a under the criminal laws of the record was: country state or where the declaration is (A)Made time of the at or near the occur- signed.... by, forth rence of the matters set or from by, with information transmitted matters; knowledge of those Rather, sufficiency appears card. it The of the foundation evi- cheek depends part in dence on the nature of the that Ah Yat’s was offered as qualified in order to documents at issue. Documents that are of a witness type regularly speed check card. “standard records of the authenticate the by particular in maintained firms a indus- may try require by way less of foundаtion “qualified person A can be a wit testimony than less conventional docu- can authenticate a document as a ness” who proffered ments for admission as business regularly activity under record of conducted records.” 803(b)(6) counter HRE Rule or its federal employee an part even if he or she is not McLaughlin, Joseph Weinstein’s Federal document, or the business that created the (2d ed.2009) (foot- § 803.08[8][a] Evidence direct, personal knowledge no of how the has omitted). e.g., Childs, United States v. 5 F.3d Appeals United States Court of for the Fed- (9th Cir.1993) (noting that “several cir Circuit eral considered whether a document cuits have held that can exhibits be admitted by created one incorporated business and entity, as business records of an even when into the records of another can be admitted entity that was not the maker of those rec aas business record of incorporating ords, long requirements so as the other of business. The question documents in were 803(6) Rule are met and the circumstances repair prepared by estimates had been trustworthy”); indicate the records are Bell parties third and military submitted to the State, v. (Tex.App.2004) 176 S.W.3d 92-93 by service goods members whose household (articulating a test similar to that in Air movers, damaged had been by and who had Land, whereby prepared a by document one filed military claims with the seeking com- incorporated by business and may another be pensation damage. for the Id. at 1340. The admissible as a business record of the incor trial court repair admitted the estimates as “(1) porating incorporated business if: it is military business records of the under FRE kept and in the of testifying course wit 803(6). Rule Id. at 1340-41. (2) business; nesses’ typically that business appeal, On the Federal surveyed Circuit upon relies of the contents of circuits, eases from other and concluded that (3) document; and the circumstances oth organization incorporates when an records erwise indicate the trustworthiness of the records, entity another into its own those document”; the court held that records of records are incorporat- admissible when the incorporating entity were admissible as ing entity upon “relied those records in its business records because this test was satis day-to-day operations, and where there are fied and because the witness from the incor strong other reliability.” indicia of Id. at porating business testified that the records 1344; Markowitz, People see 187 Misc.2d “kept were in the course of its busi 721 N.Y.S.2d 761-62 & n. 2 ness, [they] and that were created at or near (Air (N.Y.Sup.Ct.2001) requires Land “that them) the time” of the events described in incorporating rely upon thе ac- State, (citing Harris v. 846 S.W.2d 963- curacy of incorporated, the document and (Tex.App.1993)); Columbia First Bank v. there are other indicating circumstances States, (Fed.Cl. United 58 Fed.Cl. document”; the trustworthiness of the court 2003) (holding pro “when a document notes that previous rulings Air Land follows party incorporated duced a third into First, Second, Third, Fifth, Ninth and entity business records of another this Circuits). Eleventh The court held that the applies circuit [the test] Air Land of reliabili military test was satisfied since the incorpo- ty in order to admit a record that has an repair rated the estimates into its own rec- foundation[,]” appropriate otherwise since ords, claims, in paying relied on them “exception may ap business records be there were other reliability, indicia of includ- plied incorporated to documents in the rec ing the fact that service members were sub- parties, ords of the if the Air Land Forward ject penalties submitting to criminal false regularity ers test and the criteria FRE [of Land, claims. Air 172 F.3d at 1343-44. 803(6) satisfied.”). Rule ] have been The court in specifically Air Land did not indicate whether the existence of reliance represent These eases a reasonable incorporating entity presence and the approach authenticating documents in this Thus, other reliability indicia of was sufficient to situation. entity we hold that when an qualify incorporated record for admission incorporates prepared by records another en 803(6), records, as a business record under tity they FRE Rule into its own are admissible or whether the other require foundational incorporating as business records of the enti ty records, ments outlined provided rule must also be it relies on the SDO, Ah Yat’s As the ICA noted its reliability, and the are other indicia of there 803(b)(6) clarity.” are oth- was not a “model requirements of HRE Rule (1) Fitzwater, requirements State v. No. 2009 WL erwise satisfied. reliance, reliability do not plausible interpreta indicia at *1. The most rule; rather, supplant provisions someone at tion of his is that necessary circum- them as in these apparently private we view Speedo, Jack’s which is satisfy requirement the rule’s test, stances to the card to shop, performed a created in the course test, the records were “made of that and then document results activity” incorpo- regularly conducted gave record to someone from HPD’s 803(b)(6); see rating entity. HRE Rule purposes argu will assume for VMS. We 803-3[5][B], HRE Manual case,8 analyze ment that such was the accordingly. the evidence case, the record does not In the instant clearly the check card establish how testimony sufficient Ah Yat’s was Ah аppeal’s, from Officer produced. It was satisfy requirements to several testimony, practice it is HPD’s to Yat’s 803(b)(6) Rule in order to admit the HRE speed checks conducted on its vehicles have First, record of HPD. the card as a business Yat, According Ah annual basis. to on an documenting speed check card is a “record” are “taken care of’ HPD’s those checks calibrating Ah “event[ ]” the or “aet[ ]” during course of maintain- VMS speedometer. HRE Rule Yat’s vehicle’s He testified that ing HPD’s vehicles. 803(b)(6). Second, evi there is sufficient shop” “to the takes these vehicles VMS created “at or near dence that the card was speedometer, “someone calibrate Id. Ah Yat the time” of the check. test, are accurate records” of the which takes “good” for a testified that the check was placed card that is in the recorded on a August year, performed it was and that how the vehicle. Ah Yat did know The card itself contains the handwrit 2006. done, testify about and did not cheeks “8-9-06,” notation beneath which was ten actually performed the test at issue oth- who on the “Exp. 8-9-07”. The notations written Speedo.” er than it “was done Jack’s card, testimony together with Ah Yat’s Exhibit 1 was Ah Yat testified that State’s support “good” year, was for a the check in the copy of the card that was an accurate per check was inference night driving he on the that he vehicle August and that formed on or about Exhibit 1 is entitled “Jack’s cited Fitzwater. created on or about that date. the card was Speedo Shop[.]” The next line contains the Indus., Pile, & River Dock & Inc. v. O G See “Honolulu, Hawaii,” and a blank notation (rely 595 A.2d Conn. the handwritten no- which was filled with to establish ing on notations on document “8-9-06,” appears the beneath which tation near the time of the that it was created at or “Exp 8-9-07”. handwritten notation v. Cessna described); White Industries act printed “To contains statement card Co., F.Supp. Aircraft May It Concern: THIS IS TO CER- Whom (W.D.Mo.1985) (foundation admissibility for _ Speedometer of TIFY THAT THE 803(6) must under FRE Rule document _Was tested and found to be No. appropriate some source-from come “from _ _ registering Miles [] M.P.H.[J” itself, or from external evi the document readings. The spaces for a number of with (either or circumstantial dence direct filled in with handwritten notations card was both), or from some combination of these HPD identifying as Ford No. the vehicle things”). varying speedometer read- and with Finally, determine in order ings. There is a line at the bottom which testimony sufficient to whether Ah Yat’s signature. a handwritten appears to contain note, however, uncertainty exists To the extent that such We that Ah Yat's 8. record, of informa- рossibility it indicates that “the sources open someone from leaves using indicate lack of trust- actually performed tion or other circumstances VMS the test HPD’s authenticity concerning Speedo, equipment doc- worthiness” located at Jack's and/or using document. HRE Rule of the test Exhibit umented the results

QfiQ 803(6) establish that the card was “made in the The court noted that FRE Rule re regulai’ly aetivity[,]” quired course of a conducted party that each who is involved 803(b)(6); HRE creation Rule see HRE of a business record be Manual under a [B], duty report business 803-3[5] we consider whether the information re document, flected on the and that such a incorporated established that HPD duty imposed creating entity could be on the it, cheek card into its records and relied on as relationship a contractual with the and whether there were additional indicia of receiving entity. (noting Id. at 1061 that “a reliability. Ah Yat’s was sufficient entity’s receiving interest infor to establish incorporated card was mation quite easily can be found into the records HPD. Yat was familiar continuing requirement contractual for the procedures with HPD’s handling speed same as in employees, a directive to as least cards, i.e., original of the card receiving entity when the customarily uses kept the vehicle to which it relates. information”); and relies on that see Mar though Even Ah Yat was not the who kowitz, (noting, 721 N.Y.S.2d at 761 in a theft actually put car, the card into the his famil- involving case admissibility of records of iarity procedure with the is sufficient. His employer incorporated which records of a testimony also established that HPD relies bank with employer whom the had a contrac upon speed check cards such as the one at tual relationship, receiving entity’s that “a issue here in day-to-day operations its employee may provide sufficient foundation order speedometers to ensure that testimony for a record entity, from a second HPD vehicles are accurate. though even employee cannot relate the However, testimony Ah Yat’s did not ade- entity’s other specific making prac record quately establish that there were other indi- tices, employee if the is well familiar with the reliability. cia Ah Yat’s did not circumstances under which pre the record is sufficiently anyone establish that at Jack’s pared, if prepared the record is on behalf of duty accurately was under a business to cali- receiving entity and in accordance with brate the speedometer vehicle’s and to rec- requirements, its if and the receiver routine results, ord the or that there аre other rea- records”); ly relies on such Donald I.J. Kel- to sons conclude that the card was reliable. so, 803(6): Applying C.R.E. the Business 803(b)(6) HRE Rule (recognizing cmt. Cf. Exception Records Third-Party to Informa reliability” “regu- “hallmark of is the tion, (“[W]hen 2000) (May 29 Colo. Law. 55 larity continuity produce and which habits of third-party information or records have been precision, experience actual [the] of business provided part relationship a business records], in relying upon duty [the [and the] party, between a business and the third to make part an accurate record as of a party’s third information has been considered continuing job occupation.”) (quoting FRE recipi admissible as a business record of the 803(6), Note) (brackets Advisory Committee’s ent.”). original). Therefore, case, in the instant the exis- determining whether records that were relationship tence of a contractual between by entity incorporated created one and into performance HPD and for Jack’s and entity the records of another exhibit indicia documentation of signifi- the tests would be a admissible, trustworthiness some establishing necessary cant factor in indi- significant courts have found it that the enti White, cia of F.Supp. trustworthiness. ty that created the documents did in con so 1060; Markowitz, 721 N.Y.S.2d at 761. obligation nection with a contractual owed to However, vague Ah Yat’s was too entity. example, the second For White suffice, to where Ah Yat testified that HPD Co., Industries v. Cessna shop” year, vehicles are taken “to the once a Aircraft (W.D.Mo.1985), F.Supp. the court but did not indicate that there was con- held that it would admit forms that had been relationship require tractual that would created retail aircraft dealers and submit shop accurately conduct and record the Thus, ted to the speed defendant aircraft manufacturer as cheek. the State failed to estab- ongoing relationship. of their contractual lish a sufficient foundation for the admission many Ing specifically address speed check card under HRE Rule does 803(b)(6), requirements required court erred in ad- district foundational mitting the card. HRE Rule admission of a document under 803(b)(6). Indeed, it is not clear from the suggested in its ICA brief that The State opinion whether the check was con- Ing supports the admission of the State v. private shop, HPD who ducted at or at The defendant there was speed check card. record, created the and whether it was creat- speeding, police on a offi- convicted of based Ing ed at or about the time of the test. Thus paced testimony that he had the defen- cer’s context, precedential has limitеd value in this car, using vehicle his and found dant’s analysis and to the extent it conflicts with the exceeding it be limit at least here, set forth it is overruled. 466-67, Ing, per 25 miles horn’. 53 Haw. at 497 P.2d at 576. The officer testified Accordingly, the district court erred he used on that occasion had a “th'e vehicle concluding that there was sufficient founda- speedometer check for and that the tion for the admission of the City Coun- vehicle is maintained card under HRE Rule ty”; and that the check card indicated that per speedometer read about three miles C. The admission of the card did not vio- per hour. Id. at hour fast at 55 miles right late Fitzwater’s of confrontation The card not admitted 497 P.2d at 576. under the Constitution U.S. appeal, ar- into evidence. On the defendant testimony concerning gued that the officer’s argues that even if the Fitzwater hearsay, the results of the check was speed check card is admissible as business right and that its admission violated his 803(b)(6), the record under HRE Rule confrontation. Id. at 497 P.2d at 576-77. State’s failure to call the declarant whose statements are reflected on the card to testi card, regard the With to admission fy right at trial violated his to confrontation § this court cited to HRS 622-5 and conclud- under the Sixth Amendment of the United regular tests are made and “[w]here ed that argues Specifically, States Constitution.10 he City kept by the the records of tests holding compels that the in Melendez-Diaz County police department and or the check card was conclusion that ordinary card can be introduced as an busi- hearsay subject testimonial entry of record indicat- ness of evidence such right light In of our hold confrontation. testing speedometers.”9 ing the routine ing that the State failed to establish a suffi at 497 P.2d at 577. observed Id. We cient foundation to admit the “testimony relative to the test card as a business record under HRE reliability” that the defen- bore indicia of and 803(b)(6), argument we need not address this bringing dant “failed to adduce evidence to However, purposes appeal. for the of this speedometerf.]” issue the recognize provide guidance on we the need also held that the admission of the Id. We prevent judicial rights this issue in order to “serious card did not violate defendant’s future, Kapuwai City under the confrontation clause. Id. mistakes” and institutions, (1976), repealed operation § 9. 622-5 which was whether carried on HRS 1980, provided: profit or not. shall, act, condition, event, commentary A record of an or The to HRE Rule 803 notes that relevant, competent (b)(6) if upon insofar as be evidence section HRS 622-5 and was based the custodian or other witness testi- FRE Rule HRE Rule cmt. 803 identity prepara- and the mode of its fies to its tion, if made in the course and it was Although Aрplication Opening 10. and Fitzwater’s business, act, at or near time of suggest Brief card also that the admission of the condition, event, if, opinion and or rights violated his tion, under the Hawai’i Constitu- hear, having authority to the court or provide any argument he did not on evidence, examine the sources of receive and point accordingly we not address it here. do method, information, preparation and time of (HRAP) Appellate Hawai’i Rules of Procedure justify were as to its admission. such 28(b)(7) ("Points argued may be Rule every kind of The term "business" includes waived.”). deemed business, occupation, calling, profession, or

371 Honolulu, 33, 42, County Amendment, 121 211 Hawai'i we must determine whether the (2009) Fields, (citing P.3d State v. 67 card is “testimonial.”12 268, 276, (1984)), Haw. 686 P.2d There been has no definitive statement reoccur, especially likely since the issue is Supreme regarding Court what is “testi- Mahoe, 284, 285, see State v. 89 Hawai'i Crawford, monial” nature. In the defen- P.2d (addressing an issue not charged attempted dant was with assault and necessary disposition for the of the ease “be- stabbing murder alleg- after a man who had cause it raises a novel issue that has the edly attempted rape his wife. 541 U.S. at eases”); potential to recur in future State v. 38-40, 124 S.Ct. 1354. The wife invoked the 596, 615-16, Bumanglag, 63 Haw. privilege state testify, marital and refused to (1981). Accordingly, we conclude that tape-record- the trial court admitted her the admission of a cheek card for ed statements to the as evidence that proper which a foundation has been estab- self-defense, stabbing offering was not lished does not violate a defendant’s Sixth why several reasons the statement was trust- rights. Amendment worthy. Id. at 124 S.Ct. 1354. The provides perti confrontation clause Coui’t held that the Confrontation Clause nent prosecutions, “[i]n all criminal “applies against to ‘witnesses’ the aceused-in enjoy right the accused shall to be words, other testimony.’” those who ‘bear him[,]” against confronted with the witnesses (citation omitted). Id. at 124 S.Ct. 1354 Const, VI, guarantee U.S. amend. and this turn, “‘Testimony,’ in typically ‘a solemn applies prosecutions, to both federal and state declaration pur- or affirmation made for the wford, 541 U.S. at 124 S.Ct. Cra ” pose establishing proving some fact.’ Crawford, the United States Su (citation omitted). Id. and internal brackets preme Court held that the confrontation The Court further held that clause bars “admission of testimonial state Various formulations of this core class of ments of a witness appear who did not parte “testimonial” statements exist: “ex testify, trial unless he was unavailable to equiva- in-eourt or its functional prior opportunity defendant had had a is, affidavits, lent-that material suсh as 53-54, for cross-examination.” Id. at examinations, prior custodial Although S.Ct. 1354. the Court in Crawford the defendant was unable to cross- open possibility left that the confronta examine, pretrial or similar statements apply tion clause would to nontestimonial reasonably expect that declarants would to hearsay,11 Washington, the Court in Davis v. proseeutorially,” be used Brief for Petition- 813, 821, 2266, 547 U.S. 126 S.Ct. 165 23; “extrajudicial er statements con- (2006), 224 subsequently L.Ed.2d held that materials, tained in formalized testimonial is the testimonial “[i]t character of the state affidavits, depositions, prior such as testi- separates hearsay ment that it from other confessions,” Illinois, mony, or White v. that, subject while to traditional limitations 346, 365, 736, 502 U.S. 112 S.Ct. evidence, upon hearsay subject is not to the (1992) (Thomas, J., 821, joined by L.Ed.2d 848 Confrontation Clause.” Id. at 126 S.Ct. Scalia, Therefore, J., concurring in and concur- 2266. in order to determine ring judgment); in whether the author of a cheek card is “statements that were subject to confrontation under the Sixth made under circumstances which would Crawford, Although Ing In the Court noted that it had re 12. holds that the admission of testi 11. jected proposition apply that “we the Con mony upon check card did based statements, only clause, 468, frontation Clause to testimonial violate the confrontation 53 Haw. at leaving regulation by hearsay the remainder to 577, 497 P.2d at it was decided in 1972 and thus 346, Illinois, 352-53, law” in White v. 502 U.S. predated restructuring of confrontation 736, (1992). 112 S.Ct. 116 L.Ed.2d 848 541 U.S. jurisprudence Supreme clause initiated at 124 S.Ct. 1354. The Court noted that Thus, any Court in it has limited if Crawford. "[ajlthough analysis our in this case casts doubt value, precedential and to the extent it conflicts holding, definitively on that we need not resolve here, analysis with the it is overruled. today, whether it survives our decision because any [the issue] statement at is testimonial under definition.” Id. objective reasonably happening, describing past to

lead an witness rather than events,” (emphasis believe that the statement would be avail- id. at 126 S.Ct. 2266 trial,” original; quotations at Brief for in citation internal able for use a later omitted). “simply National Association of Criminal Defense and brackets The caller witness; Lawyers acting et al. as Amici Curiae 3. These was not as a she was not testifying. formulations all share a common nucleus she said was not ‘a weaker What coverage testimony’ trial[.]” and then define the Clause’s at substitute for live at Id. (emphasis original; levels of abstraction around it. at 126 S.Ct. 2266 various articulation, omitted). contrast, Regardless precise of the In the circum- citation qualify any interrogation statements under defini- of the second constitut- some stances example, parte testimony investigation possibly ex at a into tion-for ed “an criminаl conduct[,]” preliminary hearing. past police officer where (as seeking [the “not to determine first 51-52, 124 Id. at S.Ct. 1354. case]) happening,’ “what is but rather ‘what The Court held that the wife’s statements ” 829-30, happened.’ at Id. 126 S.Ct. 2266. definition,” were “testimonial under id. again precisely The Court declined to define “le[ft] at S.Ct. but another nature, holding what is “testimonial” as day any spell comprehensive effort to out follows: definition of id. at ‘testimonial^]’” attempting produce to an ex- Without S.Ct. 1354. haustive classification of all conceivable Davis, In the Court examined whether statements—or even all conceivable state- police separate statements made to in two response police interrogation— ments to subject were testimonial and therefore cases nontestimonial, either it testimonial to confrontation under In the Crawford. present suffices to decide the eases to hold ease, the trial court admitted a record- first are as follows: Statements nontestimonial ing reporting of a 911 call a woman an police when made course interro- happen- incident of domestic as it was abuse gation objectively under circumstances in- ing, responses operator’s and her dicating primary purpose questions about the circumstances of the inci- interrogation police to enable assistance 817-19, dent. U.S. at 126 S.Ct. 2266. ongoing emergency. They meet case, court second trial admitted a objec- testimonial when circumstances “battery signed by affidavit” a woman tively ongo- indicate that there is no such presence police subsequent to an incident ing emergency, primary pur- and that the alleged domestic abuse. Id. at pose interrogation is to establish or S.Ct. 2266. The Court state- found both prove past potentially events relevant response ments were made inter- prosecution. later criminal rogation. Id. at 126 S.Ct. 822, 126 Id. S.Ct. 2266.13 compared interrogation Court in the first Crawford, recently to in of case that and found that The Court revisited the issue difference ... what constitutes a “testimonial”-statement in “[t]he [between two] is There, apparent things. po- In [the on the face of first Melendez-Diaz. Massachusetts ease], making tip employee the 911 lice a that a [the call] woman was received K-mart speaking things they actually engaging suspicious activity. about as were in Grace, girls' In State v. 107 Hawai'i 111 P.3d statements were testimonial because (App.2005), they were "made under circumstances which the ICA considered what kinds of objective reasonably would lead an witness in nature statements "testimoniar' under the Grace, believe that the statement would be available for girls Sixth Amendment. In two witnessed trial,” Hawai'i at alleged use at later incident of domestic violence and (citation omitted). at 38 by police were interviewed at the scene. Id. at adopted light holding 111 P.3d at 31. The ICA the test In of our below that the promulgated by the National Association for check card is not testimonial because it was (NACDL), Lawyers prepared maintenance, regular equipment Criminal Defense identified ‍​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​‌‌‌​‌​​​​​‌​‌‌​​‌‍in the course need whether "[v]arious as one of formulations of we do not to decide Crawford statements!,]'' adopting this core class of 'testimonial' see the ICA was correct in the broader 51-52, 541 U.S. at 124 S.Ct. and held that NACDL in test Grace. ment) (“[T]he up impli S.Ct. at 2530. The officers set surveil- Confrontation Clause is lot, parking in by extrajudicial lance the K-mart and ob- only cated statements insofar repeatedly they served the defendant received as are contained in formalized testimo work, picked materials, affidavits, at after calls which he would be depositions, nial such as confessions.”). up at the front of the prior testimony, store a blue sedan or The and return a short time later. Id. The offi- Court stated that “[t]he ‘certificates’ are live, employee, functionally cers detained and searched the identical to in-court testimo finding plastic bags ny, doing ‘precisely four clear white contain- what a witness does on ” ing Davis, resembling a substance cocaine. The (citing Id. direct examination.’ Id. 2266) officers then arrested the two men in the (emphasis U.S. at 126 S.Ct. omit sedan, ted). Furthermore, one of whom was only Melendez-Diaz. Id. “not were the affi placed The officers then all three men in a davits ‘made under circumstances which police noticing objective cruiser. Id. After the three would reasonably lead an witness fidgeting making gestures men furtive believe that the statement would be available station, trial,’ en route to the Crawford, searched for use at a later [541 U.S] 52[, 1354], plastic bag containing the cruiser and found a 124 S.Ct. but under Massachu bags 19 smaller hidden the vehicle. Id. purpose setts law the sole of the affidavits provide ‘prima was to facie evidence of the charged Melendez-Diaz was with distribut- composition, quality, weight’ and the net trial, ing trafficking cocaine. Id. At substance,” analyzed (citing id. at 2532 prosecution introduced into evidence all of Laws, Ill, 13; emphasis Mass Gen. eh. seized, bags as well as three “certificates original). rejected argument The court analysis” showing the results of the tests analysts subject that the were not to confron performed on the seized substances they tatiоn “accusatory” because were not laboratory. state Id. at 2531. The certifi- witnesses, holding “they certainly pro notary public cates were sworn before a testimony against petitioner, proving vided by analysts laboratory, at the and stated the necessary one fact for his conviction-that the weight of the seized substance and that it possessed substance he was cocaine.” Id. at contained cocaine. Id. Melendez-Diaz ob- (emphasis original). jected to the admission of the certificates on grounds required response expressed by to concerns dis- Crawford analysts testify person. objection senting justices, Id. The the Court noted: overruled, and Melendez-Diaz was found Contrary suggestion, to the dissent’s we do guilty. Appeals Id. The Court of Massachu- hold, ease, anyone not and it is not the rejected appeal, holding pursu- setts his testimony may whose be relevant in estab- law, ant to state the authors of certificates of lishing custody, authenticity the chain of analysis subject forensic were to confron- sample, testing de- tation under the Sixth Amendment. Id. vice, appear must prosecution’s ease. dissent is While reversed, Supreme holding Court obligation correct that ‘[i]t is the certificates fell within the “core class prosecution to the chain of establish custo- testimonial statements” described in Craw dy,’ everyone this does not mean that who Id. at 2542. The Court found ford. laid hands on the evidence must be “quite plainly that the certificates were affi Additionally, pre- called.... documents davits[,]” description and that the in Craw pared equipment course of “core” testimonial “men statements ford may qualify maintenance well as nontesti- (citing tions affidavits twice.” Id. at 2532 monial records. Illinois, 346, 365, 112 White v. 502 U.S. S.Ct. (1992)) 736, (Thomas, J., (internal omitted) 116 L.Ed.2d 848 Id. at 2532 n. 1 citations added).14 concurring part concurring judg (emphasis in and in because—having opinion The Court also noted elsewhere but been created for the admin- public generally "[b]usiness and records are entity’s istration of an affairs and not for the they admissible absent confrontation not because purpose establishing proving some fact at rules, qualify exception hearsay under to the judg- D. The failed to establish sufficient concurred in the State Justice Thomas reliability foundation for the of the ment, separately. He reiterated and wrote speed check concurrence in majority’s citation to his White, noting that “I continue to adhere ICA, opening In his brief at the Fitzwater my position that ‘the Confrontation Clause alia, argued, provided Ah Yat ex inter only implicated by extrajudicial statements testimony being qualified pert despite not so, they are contained in formalized insofar as that the failed to do and State establish materials, affidavits, speed de- foundation to such as sufficient show testimonial properly been calibrated under testimony, ometer had prior or confessions.’” positions, principles set forth in State v. Wallace 365, White, (citing at Id. at 2543 502 U.S. responded and State v. Manewa. State 736) (Thomas, concurring and S.Ct. J. answering Ing sup in its brief that State v. concurring judgment). Thomas stated ported Ah the admission of Yat’s opinion in “jointed] the Court’s this that he card, speed about the contents of the check at in this case because the documents issue event, and that in there was sufficient affidavits,’ ante, at quite plainly ‘are case support evidence to Fitzwater’s conviction such, they ‘fall within the core 2532. As independent speed check evidence.15 governed by class of testimonial statements’ Id. Clause[.]” the Confrontation SDO, sponte In its the ICA sua adequately Fitzwater had failed to found that above, the Court in Melendez- As noted preserve arguments, accordingly these prepared in Diaz observed that “documents declined to address them. v. Fitzwa regular equipment maintenance course of 28584, 120 ter, No. Hawai'i 205 P.3d may qualify well as nontestimonial records.” However, at *2. we con WL speed n. 1. The check card 129 S.Ct. declining clude that the ICA erred created in a non-adversari at issue here was arguments. address Fitzwater’s Fitzwater setting maintain al course of objected in Ah the district court that Yat’s vehicle, ing prior five months Yat’s hearsay was based on inadmissible According alleged speeding incident. there was insufficient foundation for and that ly, v. it is nontestimonial nature. See U.S. the admission of the check card. (E.D.Va. Forstell, F.Supp.2d 579-82 context, objections Viewed these were suf 2009) (where charged with the defendant preserve ficient to the issue of whether the influence, speeding, driving under the speed check card satisfied foundational intoxicated, driving concluded requirements while court described in Wallace and Ma- (when 103(a)(1) device, HRE that certificates that a radar neiua. See Rule evidence, fork, Intoxilyzer party disputes admissibility tuning were tested for party timely object “stating must functioning properly accuracy and were non- specific ground objection, specific if the subject to the Confronta testimonial and ground apparent was not from the con Melendez-Diaz); tion under Clause U.S. text[.]”). apparent It was that Fitzwater was (4th Gitarts, Fed.Appx. 940 n. 2 objecting to a lack of foundation to show that Cir.2009) (unpublished disposition, citable speеdometer properly had been calibrat pursuant Appellate Pro to Federal Rules objec ed and was therefore accurate. His 32.1) (concluding cedure Rule that “Melen response tions were made in to the State explicitly reaffirms dez-Diaz Crawford’s asking Ah Yat to describe the results of the holding that traditional business records are check, essentially asking Ah Yat to evidence”). not testimonial testify that the results showed that Accordingly, right to confron- Fitzwater’s speedometer speeds. was accurate at various not See, tation under the Sixth Amendment was e.g. Long, 98 Hawai'i 353- State v. (defense violated the admission 600-602 objected that there was “insufficient evidence. counsel Melendez-Diaz, argument III— trial—they 15. We address the latter in section are not testimonial.” E below. 129 S.Ct. at 2539-40. instead, an HPD expertise; testimony quite foundation” for criminalist’s testimo his was ny clearly solely the substance which the defendant based on the contents of the charged possessing was with was cocaine speed cheek card. upon testing

based her of the substance us Wallace, In we considered the admissibili- device; ing appropriate objection was ty relating weight test results to the preserve sufficient to the issue of whether or testimony narcotics. The State offered from not the State established a sufficient founda Investigative a Naval Service chemist con- tion as to the of the device because cerning the he using results obtained an [the “the basis for foundational defendant’s] weigh electronic balance to cocaine. The objection should have been to the obvious chemist testified that the balance was cali- court”); Wallace, 80 Hawai'i at 411 n. annually by brated the manufacturer’s ser- (defendant 910 P.2d at 724 n. 26 representative, vice and he “assume[d] [the objected to forensic chemist’s re representative was] to service and garding weight the net of the cocaine as calibrate the balance.” 80 Hawai'i at scale, analytic indicated arguing “it’s However, 910 P.2d at 721. we held that: hearsay using as to the fact that he’s a scale. personal knowledge [The chemist] lacked if We don’t know the scale is accurate correctly the balance had been cali- recognized although this court defen merely brated and assumed that the manu- objection dant’s “hearsay” was made on representative facturer’s service had done grounds, given explanation the context of his representative so. The service did not tes- objection, ‘apparent’ for the “it was tify regarding at trial his calibration of the objection circuit court that really one balance, prosecution, nor did the through a foundation”). Moreover, proper of lack of records, any custodian of offer appeared the district court to understand the reflecting record of the manufacturer objections nature of Fitzwater’s when it re proper calibration of the balance. There sponded by citing Ing, to in which this court being showing no reliable evidence “testimony indicated that the officer’s rela order,” proper “in working balance was tive to the check bore indicia of relia prosecution lay failed to “a sound factual bility.” 53 Haw. at 497 P.2d at 577. weight foundation” that the net of the co- Therefore, sufficiently gave Pitzwater caine measured the balance was accu- opportunity fully “trial court ... an to under Therefore, inadequate rate. because foun- thus, and, objection stand the appropriate weight dation was laid to show that ly Long, rule on it.” 98 Hawai'i at (citations measured the balance could “be relied omitted). P.3d at 599 fact,” on [the as a substantive chemist’s] Thus, we will address the merits Fitzwa- assumption that the balance was accurate arguments. ter’s conclude that We the dis- hearsay. was based on inadmissible Ac- admitting trict court erred in cordingly, we hold that the circuit court necessary cheek card without the foundation- clearly admitting its discretion in abused regarding reliability al evidence testimony regarding [the chemist’s] the net testing required by calibration Wallace weight of the cocaine. and Manewa. (citations Id. at 910 P.2d at 725 omitt exactly The record does not indicate what ed).16 performed Speedo kind of test Jack’s Manewa, offered Shop, although it is fair to infer that the test required specialized training concerning from an HPD criminalist the re some ex- and/or pertise perform. analytical using Officer Ah Yat did not sults he obtained balance training weigh indicate that methamphetamine. he had such or 115 Hawai'i at hearsay exceptions] 16. We noted a footnote that: well have fallen under the records, [relating to] business but this was not Wallace concedes in his brief that docu- "[a] 803(b)(6) evidence]. into See provided by calibrating agency [offered [HRE] ment show- 803(b)(8)." ing person calibrating the name of the (citation [balance], qualified, n. he Id. at n. 910 P.2d at 725 [and] [the that was omitted; may original). balance] a certain was calibrated on date brackets 345-46, at criminalist before results of the calibration of scales 167 P.3d 338-39. The weigh that he did not know how to cali used to narcotics can “be relied on as a testified himself, Wallace, although brate or service balance substantive fact.” 80 Hawai'i at 412, (citations representative “checks out a manufacturer P.2d at 725 and internal year’” omitted). and services the balance times a quotation two marks State v. As indicating (2009), 204, and fills out a form that the bal saye, 121 Hawai'i 216 P.3d proper working ance is in condition. Id. at recognized requirements ap we that similar 346, 355, 167 339, P.3d at 348. The manufac plied admitting in the context of evidence representative turer’s was not called as a guns about the calibration of laser used to State, “[m]oreover, by witness and 212, speed. measure at Id. at Wallace, any offer [the State] did not busi (characterizing the admission of evidence re indicating ness records of the manufacturer a lating testing gun to of a laser which omitted correct calibration of the balance.” Id. at any reference to whether the tests “were 355, 167 P.3d 348. procedures by recommended the manufactur “obviously er” as inconsistent with this The criminalist also testified that “I have ”). court’s decision Manewa Based on the my personal verify balance I and own which us, apply record before we see no reason to validate once a month and we so record it.” 346, However, requirements different foundational in the Id. at 167 P.3d at 339. this checks, underlying context of noted that there was “confusion” in the since the court reliability regarding testing record whether that balance was concerns about the of the weighing samples, appear Ing involved and further to be similar. To the extent that testimony suggests concluded that the chemist’s did that the results of checks are not establish that he they inherently had followed the “manu- admissible because “bore in- procedure” facturer's established for cali- reliability” dicia of without mention of 13, brating the balance. Id. at 356-57 & n. requirements being these foundational satis fied, 577, 167 P.3d at 349-50 & n. 13. 53 Haw. at 497 P.2d at it is overruled. Accordingly, we held that the regarding weight the criminalist Thus, in order for the results of properly substance was not admitted.17 admissible, speed checks to be the State Wallace and Manewa thus described the must establish: how and when the requirements performed, foundational including that must be met check was whether it recently applied reasoning [ajlthough 17. This [the officer] court testified that he was Assaye, Wallace and gun Manewa "certified" to use the laser ... and he was (2009), Hawai'i 216 P.3d 1227 which the testing operating "instructed in the charged speeding defendant with excessive device," prosecution point any- does not 291C-105(a) being in violation of HRS after where in the record to indicate that the four pulled over an HPD officer who used laser conducting [the officer] tests that testified to gun 205, speed. to measure the defendant's Id. at procedures by were recommended the manu- trial, 216 P.3d at 1228. At the officer testi- purpose showing facturer for the gun fied that he was certified to use the laser gun operating properly laser was in fact on operate had also been instructed how to test and day [the the defendant was cited]. 205-06, it. Id. at 216 P.3d at 1228-29. When Id. at 216 P.3d at 1236. asked about the results of die tests he had con- Furthermore, this court held that “the same shift, gun prior ducted on the laser to his defense proof applied burden of whether issue of objected counsel as to lack of foundation. Id. at qualified by training experience the officer is 206, 216 P.3d at 1229. The trial court overruled operate particular gun; namely, laser objection and admitted the officer's testimo- whether the nature and extent of an officer's ny. Id. at 216 P.3d at 1230. training operation gun of a laser meets the This court held that the officer's did requirements indicated the manufacturer.” provide a sufficient foundation for the laser prosecution Id. at 216 P.3d at 1238. The gun's speed reading to be admitted as "sub satisfy 212-14, failed to this burden because it failed to stantive fact." Id. at 216 P.3d at 1235- training show whether the the officer received Specifically, prose this court held that the requirements “prov[ing] cution did not meet its burden of met the of the manufacturer of the gun’s according lasergun. the laser was tested Id. at 216 P.3d at 1239. manufacturer,” procedures recommended id. at 216 P.3d at because

377 performed specified by ted), was in the manner and the district court in admitting erred equipment the manufacturer of the used to speed check evidence.18 cheek, perform identity and qualifications person performing speed evidence, E. Absent the check there cheek, including whether had support was insufficient evidence to training whatever the manufacturer recom judgment the district court’s mends in competently perform order to it. above, As noted the district court 212-14, Assaye, See 121 Hawai'i at 216 P.3d relied grounds on alternate in finding that 1235-37; Wallace, 28, at 80 Hawai'i at 412 n. “speed Fitzwater’s was 70 miles an hour 28; Manewa, 910 P.2d at 725 n. 115 Hawai'i beyond a reasonable doubt.” In addition to 355-57, at 167 P.3d at 348-50. The State evidence, speed check which we have may provide through this information in- admitted, concluded improperly was the dis testimony through court properly a au trict court held that Ah Yat’s thenticated pursuant record operating he had been his vehicle almost 803(b)(6). Wallace, HRE Rule See 80 Ha daily year for over a and observed that his 28,

wai'i at 412 n. 910 P.2d at 725 n. 28 speedometer operating seemed to be normal (recognizing required foundation ly provided at all times independent basis eould by be established pro “[a] document concluding that Fitzwater had exceeded by calibrating Manewa, vided agency”); speed by limit per 35 miles hour. Simi 355, (“[m]ore- 115 Hawai'i at 167 P.3d at 348 larly, ICA, in Answering its Brief to the over, Wallace, as in did [the State] not offer argued testimony by State that this Ah Yat any business records of the manufacturer was sufficient “to speedom establish that the indicating a correct calibration of the bal eter of the vehicle ance”). accurately oper above, As noted section III-B ational on the date of the offense....” 803(b)(6) HRE Rule provides that a business may by record be authenticated the testimo 701-114(l)(a) (b) (1993) § “HRS re- ny of either the custodian of the record or a quires proof beyond a reasonable doubt of witness, byor certification accor each Assaye, element of the offense....” 121 902(11) dance with HRE Rule or a statute 216, Hawai'i at (quoting 216 P.3d at 1239 permitting certification. Manewa, 357-58, 115 Hawai'i at 167 P.3d at 350-51). prove speed- To that Fitzwater was required information was ing excessively § in violation of HRS 291C- missing from the record here. It was not 105, prove beyond the State must a reason- by testimony. established Ah Yat in his Nor driving able doubt that it Fitzwater was at a by speed established check card. speed III-B, exceeding As limit 30 miles discussed section was, per hour or Ah check card more. Id. Yat testified that was not authenticated and therefore, traveling per inadmissible a Fitzwater was 70 miles hour in business record zone, pursuant per a 35 mile to HRE Rule As re hour which was 5 miles a sult, “inadequate per greater foundation hour than the threshold was laid to estab- show” that the check “eould ‘be relied lished HRS 291C-105. Other than '” faet[,] Wallace, on as a speedometer substantive 80 Yat’s ap- Ha that his 412, (citations peared wai'i 910 P.2d at 725 operating omit to have been normally Co., argument, suggested argument. Liberty 18. At oral the State that if Zane v. Mut. Fire Ins. 60, 16, this court concludes that there was insufficient Hawai'i 76 n. 165 P.3d 977 n. 16 evidence, Ranch, ‍​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​‌‌‌​‌​​​​​‌​‌‌​​‌‍(2007); Kaholo, foundation to Haw.App. admit the Hana Inc. v. 329, 332, apply any (1981). requirements this court should new set event, opinion prospectively pursuant question prospective application forth this "the Ikezawa, [only] 75 Haw. 857 P.2d 593 arises when this court announces new (1993). Jess, Argument, Supreme MP3: Oral Hawai'i rule.” State v. 117 Hawai'i Court, (Nov. 2009), (2008); Ikezawa, http:// at 01:08 available at P.3d see 75 Haw. at www.courts.state.hi.us/courts/oraLarguments/ ("judicial 857 P.2d at 597 decisions are apply retroactively”). We need not address assumed to We are not archive/oasc28584.html. case, argument previously announcing this because it was not a new rule in this but are proceedings, applying raised the State in precedent these but was instead the established of Ma- appeal instead raised for the first time on at oral newa Wallace. presented year, no court determines that the evidence throughout previous there was support convic to establish that at trial was insufficient to admissible evidence other speedometer was accurate and greater Ah Yat’s but sufficient to tion of a offense Thus, we must de- proper working order. included of support a conviction of a lesser testimony alone was Ah Yat’s fense, cide whether may entry for the court remand beyond a reasonable sufficient to establish judgment of conviction on the lesser included police speedometer on his doubt that the ”) (citation omitted). offense[.]’ per 5 miles was accurate to within vehicle night of the offense. We con- hour on IV. CONCLUSION not, relatively given the clude that it was per miles hour.19 margin of error of 5 Accordingly, small we conclude that evidence should not have been admit- check insufficient Accordingly, there was that, 803(b)(6), under HRE Rule ted Fitzwater’s evidence in the record to sustain evidence, absent that there was insufficient 291C-105, § and the under HRS conviction support conviction for evidence to Fitzwater’s Assaye, 121 vacated. conviction must be Cf. speeding. excessive We therefore vacate 216, However, 216 P.3d at 1239. Hawai'i at 12, May judgment of the Intermediate 2009 to sufficient evidence establish there was 9,May judg- Appeals, Court of and the 2007 driving his vehicle “at a Fitzwater was ment of the District Court of the First Cir- speed limit” in greater than the maximum cuit, proceedings for further and remand 291C-102(a)(l),. § based on of HRS violation opinion. consistent with this during his Fitzwater’s admission driving in excess of the that he was Dissenting Opinion by Concurring and limit, testimony. Ah Yat’s See as well as ACOBA, 363, 370, J. 641 P.2d Simpson, v. 64 Haw. State (1982) (“Under 320, 325 the “waiver doctrine’ only, in I concur in the result inasmuch as sufficiency will review the appellate courts failure of this case there was an absolute pre light of all the evidence the evidence employed proof to what test was to assess as record.”); Pudiquet, State v. 82 sented in the accuracy speedometer of the and as to 423-425, 1032, 419, P.2d 1036- Hawai'i 922 test, reliability fundamental of that both (considering the entire rec (App.1996) 1038 tenets of scientific evidence. Because such ord, testimony, in including the defendant’s determinative, my proof view failure evidence); sufficiency assessing the beyond that it is unwise to decide issues 218, 224, Gomes, 177 v. 117 Hawai'i State determination, does; majority rather as (2008) 928, (concluding that 934 because P.3d we should await cases which such issues moving “put defendant on evidence after actually be must decided. judgment acquittal [the at the end of for a Petitionеr/Defendanb-Appellant Zachariah case, he waived error State’s] (Petitioner) motion). I. Fitzwater was convicted of Accordingly, re of this we denial” speeding excessive in violation of Hawai'i Re judgment entry of a that Fitzwater mand 291C-105(a)(l) (2007 (HRS) 291C-102(a)(l), § vised Statutes § HRS accor violated trial, Repl.).1 At Petitioner’s the District governing applicable statutes dance with (the court) Circuit allowed Court the First traffic infractions. State v. non-criminal Cf. (the 74, 90, 613, Line, Department the Honolulu Police HPD or 214 P.3d 629 121 Hawai'i HPD) (“It (2009) testify appellate that ‘if Police Officer Neil Ah Yat is established represented representations argument, id. at 01:11. These the State See 01:10 to 19. At oral record, speedometers are not and the record itself is have checks shown regard general accuracy couple per typically silent with accurate to within “a miles speedometers Argument, vehicles. Hawai'i Su- hour.” See MP3: Oral 5, Court, (Nov. 2009), preme at 01:02 to 01:03 part: in relevant 1. HRS 291C-105 states http://www.courts.state.hi.us/courts/ available (a) speeding, oral_arguments/archive/oasc2 er, Excessive No shall drive 8584.html. Howev- speed exceeding: represented that there have a motor vehicle at a defense counsel (1) county speed applicable limit speedometers state or in which were shown to been cases more; per by thirty per miles hour or much as 8 miles hour. be inaccurate speedometer that his was accurate on the test result can be relied on aas substantive ” day 348, “speed 354, Petitioner was cited. A Long, 98 Hawai'i fact’ card,”2 purported verify which 595, (emphasis original) P.3d speedometer in the officer’s (quoting Kemper, State v. 80 Hawai'i vehicle, was admitted into evidence (citation (App.1995) P.2d objection. court over Petitioner’s The Inter omitted)). quotation internal marks In the (ICA) Appeals mediate Court of affirmed gravely absence of such evidence the ICA Fitzwater, Petitioner’s conviction. State v. holding proper erred in that a foundation was No. 120 Hawai'i Consequently, laid. a discussion of the other (Haw.App. at *2 Apr. WL questions majority undertaken is ex 2009) (SDO). questions The four raised in Therefore, advisory. traneous and I concur Application Petitioner’s for Writ of Certiorari only majority. the result reached (1) gravely are whether the ICA erred in holding Respondent/Plaintiff-Appellee that I. (Respondent) State of Hawai'i adduced suffi speed cient foundation to admit the check Hawai'i, It is axiomatic that “[i]n the ad (2) record; holding card as a business that missibility of scientific or technical evidence check card as a business governed by is Hawai'i Rules of Evidеnce (3) record; holding that the admission of the (HRE) (1993) (1993).” Rules 702 and 703 speed check card was not a violation of Peti Werle, 274, 282, State v. 121 Hawai'i 218 P.3d right tioner’s to confrontation under either (2009). 762, Hence, proper 770 “a foundation Constitutions, the Hawai'i or United States for the introduction of a scientific [or techni (4) address, failing plain and as a matter of necessarily test cal] result would include ex error, that Officer Yat’s consti (1) pert testimony regarding: qualifica improper expert testimony. tuted (2) expert; tions of the expert whether the ease, essentially posed The crux of this employed techniques valid to obtain the test question, proper first is whether a foun (3) result; measuring whether the in dation was laid for the admission of the ” proper working strument is ‘in order.’ speed check card into evidence. The Manewa, 343, 350, State v. 115 Hawai'i 167 patently check card was inadmissible because (2007) (quoting Long, P.3d 343 98 Ha (1) there is no evidence in this case of what (internal quota wai'i at 48 P.3d at 601 test was administered to determine the accu omitted)). tion marks and citation (2) racy speedometer, of Officer Ah Yat’s admissible, ‘expert “[T]o be reliability there is no evidence of the of that ’ ” evidentiary Long, test. must be both relevant and reliable. “‘[A] fundamental rule is (quoting that before the result of a test out of 98 Hawai'i at 48 P.3d at 601 made evidence, 172, 181, may Maelega, court be introduced into a State v. 80 Hawai'i 907 (1995)). showing According must be laid the P.2d to the ma foundation card, printed 2. The check card contained and handwritten text. The with the portions quotes, handwritten indicated in read: JACK’SSPEEDO SHOP ” Honolulu, Hawai'i, "8-9-06

"Exp. 8-9-07” May To Whom It Concern: IS CERTIFYTHATTHE THIS TO

Speedometer "HPD "Ford" No. 1040" registering

Was tested and found to be 25 Miles at 25 M.P.H.

35 Miles at 35 M.P.H. 45 Miles at 45 M.P.H.

55 Miles at 55 M.P.H. 65 Miles at 65 M.P.H. " " (illegible) [Signature ]

Correction Yat, only (indicating prosecu that the jority, Officer Ah witness for 910 P.2d at 725 presented could have “reliable evidence testify how the tion Respondent, “did not about showing proper ‘in the balance was speedometer] done.” checks Ma [of ” (citation omitted), through working order’ jority Conse opinion at 227 P.3d at 524. representative testimony of the service quently, there is no evidence how “regarding for the balance his calibration of “speed conducted. It follows cheek” was “through rec the balance” or a custodian of qualify attempt no could be made to ords, offering] any record of the expert Ah Yat as an on the test Officer proper reflecting manufacturer calibration speedometer. on his administered balance”). Additionally, reliability requirement “[t]he Correlatively, there no evidence that reliability—that evidentiary refers assumably speed the device used to test the prong, trustworthiness. Under this admis maintained, serviced, properly ometer was exрert premised on the sion of evidence is Assaye, calibrated. See State v. 121 Hawai'i opinion assumption expert’s will (holding 216 P.3d knowledge a reliable basis in the have prove prosecution required discipline.” State v. experience of his or her by police officer on tests conducted a laser 94, 106, Vliet, 95 Hawai'i proper working gun to see if it was in order (2001) (citations, brackets, quo and internal procedures by “were recommended the man omitted) original). in (emphasis tation marks purpose showing for of ufacturer the that the Respondent attempt by was made No particular gun operating laser was in fact establish, Yat, through Officer Ah that the Manewa, 357, properly”); 115 Hawai'i at 167 proper applica on speed test was based “the (holding proper that foundation P.3d at 350 techniques grounded valid in valid tion of weight drugs for of was not established be Long, underlying principles.” 98 Hawai'i at produce prosecution cause “failed to evidence 355, (emphasis original) in 48 P.3d at 602 procedure any of manufacturer’s established Montalbo, 130, 136, (quoting v. 73 Haw. and verification” that for such validation (1992)). 1274, Consequently, 828 P.2d 1279 measuring drugs properly scale used for was reliability of there is no evidence the the calibrated); Wallace, 412, 80 Hawai'i at 910 speedometer. Offi test administered on the (holding the failure of the P.2d at 725 that then, testimony, neither cer Yat’s was prosecution “through to offer a custodian of establishing nor in that the relevant reliable any ... of manu records business record the reflected on card could test result reflecting proper facturer calibration” of a on be relied as substantive fact. weigh drugs scale used to meant that testi Inasmuch as no evidence was introduced mony weight drugs of net was inadmissible device, regarding testing the further proper because foundation “ prerequisite [establishing] established). ‘foundational scale was not Because Officer measuring prop [was] instrument test, he could not Ah Yat did not conduct the ” Manewa, working result, order[ ]’ er was not laid. testify as to such As a matters. 350, (quoting 115 Hawai'i at 167 P.3d at 343 evidence did not establish 382, 407, Wallace, State v. 80 Hawai'i 910 (1) that conducted the [ ] [whoever test] (1996) (internal 695, quotation P.2d any training expertise calibrating or had omitted)). marks and citation Whether the (2) device], [testing [testing that testing working properly instrument was properly had calibrated device] been may be established of a representatives, the manufacturer’s service through (3) business records. Mane accepted manufactur- there was an wa, 355, 115 Hawai'i at 167 P.3d at 348 “verifying procedure er's established for (indicating prosecution [testing could have validating” that device] and repre the manufacturer’s service proper working “eall[ed] order that if testify existed, opera- sentative to to calibration of the bal procedure [the such a it, testing records of the [the or “offer followed tor] ance^]” working at the indicating proper device] manufacturer a correct calibration order balance”); Wallace, 412, [speedometer] time the was [checked]. 80 Hawai'i at

3«1 Manewa, wisdom, ly weigh 115 Hawai'i 167 P.3d at 347 efficacy, and timeliness (brackets omitted). then, Obviously, power there of an exercise of acting”) their before (internal marks, was no evidence that the quotation footnote, device and cita inspected omitted). “ha[d] been and serviced as re- tion quired by Assaye, the manufacturer.” majority argues provide “the need to (Acoba, J., Hawai'i at 216 P.3d at 1240 guidance on this prevent issue order to Hence, concurring). card result judicial ‘serious mistakes’ in the future[.]” evidence,3 was inadmissible in and the court Majority opinion at 227 P.3d at 536 granted should have Petitioner’s motion for (quoting Kapuwai, 121 Hawai'i at

judgment acquittal as to the HRS 291C- Fields, (quoting P.3d at 759 67 Haw. at speeding charge.4 105 excessive 1386)). This, 686 P.2d at however is an incomplete quotation Kapuwai from

II. states, complete quote Fields. The addition ally, “in situations appeal where resort I agree Thus cannot with the need for the may be Kapuwai, otherwise foreclosed.” majority discussion undertaken be 759; Fields, Hawai'i at 211 P.3d at yond proposition that there was an abso fact, Haw. at 686 P.2d at proof by Respondent. lute failure of Such a Kapuwai plurality opinion rejected the and, thus, advisory discussion is without the provide guidance, invitation to holding that controversy benefit of a concrete to validate portion opinion of the ICA’s concerning opinion. Kapuwai our City County See & “attorney’s ripe fees and costs was not Honolulu, 33, 41, 121 Hawai'i decision and advisory opin constitute[d] an (2009) (concluding that “the ICA’s opinion ion akin to the issuance where advisory opinion issuance of an unripe on an subject jurisdiction.” there is no matter 121 implicates issue concerns proper— about the 43, (Moon, C.J., Hawai'i at 211 P.3d at 760 properly limited—role of courts in a court) (cita announcing the decision of the society pru democratic and contravenes the omitted) added). Fields, (emphasis tion In (in judicial dential self-governance”) rules of probation authorizing condition warrantless quotation omitted); ternal marks and citation probationers searches of threatened the con Trustees Hawaiian v. of Office of Affairs right against stitutional Yamasaki, 154, 171, priva thе invasion of 446, 69 Haw. 737 P.2d (1987) cy (“When and was expressly “neither mandated nor 456 confronted with an ab statutory provisions.” sanctioned hypothetical question, stract or we have ad 276, court, Haw. at 686 P.2d at 1386. problem prohibition dressed the in This terms of a (Ci ”) exercising power “general against rendering ‘advisory opinions[.]’ superinten its omitted); Fields, courts, 268, dence” over (citing tation State v. inferior id. HRS 67 Haw. 602-4), § (recognizing appropriate 686 P.2d concluded that it was prudential judicial attempt that “the rules of “to act before there [was] self- an order, governance sentencing enforce founded concern about court’s since proper—and properly duty prevention limited—role of [its] courts bounden inelude[d] society always judicial a democratic of relevant of serious mistakes in situations concern” and “even the absence of consti appeal may where resort be otherwise ” restrictions, added). foreclosed[,]’ tutional courts must still (emphasis eareful id. agree majority Ing, agree 3. I with the that State v. I there was sufficient evidence to (1972), specif- support entry judgment against Haw. 497 P.2d 575 "does not Petitioner on ically many require- speeding address of the foundational the infraction of in violation of HRS 291C-102(a)(1). trial, required During § ments for admission of a document Petitioner ad- 803(b)(6)” "going maybe under HRE Rule as discussed mitted above. 50 miles an hour or some- Majority opinion thing speed changed at 227 P.3d at 536. like that” when the limit Therefore, light authority supra, of more recent cited I con- from 45 to 35 miles an hour. there majority Ing prece- cur with the has "limited was sufficient evidence based on his context, driving dential value in this and to the extent establish that Petitioner was his vehicle here, analysis speed greater speed [that] it conflicts with the set forth "at a than the maximum 291C-102(a)(1). it is overruled.” Id. at 227 P.3d at 536. limit” in violation HRS regularly as a record of conducted

Clearly, present does not evidence this case Ah Yat opinion activity of the HPD. Officer testified plurality situation discussed speed which is “where resort to that check is verification Kapuwai “[a] and in Fields taken care of vehicle mainte- appeal may [HPD’s] otherwise foreclosed.” 67 be (VMS) Here, “[VMS] nance section and that [ ]” 686 P.2d at 1386. Haw. shop the vehicle to the to calibrate admissibility speed take[s] check card is not contesting speedom- the actual of the car with the unripe discussion and cheek card associated with admissibility, Petitioner has not been fore- eter.” such, origi- the officer’s vehicle was not a record bringing appeal. As closed from HPD, seemingly nating re- with the but was “prevention] judicial mistakes where (Jack’s) Speedo [Shop created at “Jack’s appeal may ].” otherwise be foreclosed” sort to not know simply applicable here. Officer Yat testified that he did is speed-check when the HPD “received the Accordingly, we should await those cases card,” apparently but check card premised on facts for which our that are part made of the HPD’s records and “it consequence. ruling a real For will have Thus, stay[ed] vehicle[.]” with the argument, Respondent ad- example, in oral card, originated which at Jack’s very detailed testi- mits that “there was not record, part of the HPD constitutes became mony [speed tests check] as to what multiple hearsay. person con- composed [the of and what who Argu- did.” MP3: Oral tests] ducted the multiple hearsay can be levels of There Court, ment, Supreme at 0:41:31 Hawai'i record; in a and each of contained (Nov. 5, 2009), http://www. available at being those levels must have a basis for courts.state.hi.us/courts/oraLarguments/ Zukevich, Hawai'i admissible. State Respondent 28584.html. consid- arehives/oase 203, 205-06, (1997); 932 P.2d 342-43 at the time ered this “unfortunate” because Rockresorts, 645, 650, Warshaw v. 57 Haw. argument, there was another “test of oral (1977). “According to currently appeal the ICA” case” on “before (1993)], however, ‘[h]earsay HRE Rule 805 [ who conducted the “[the which hearsay not excluded un- included within gave actually came in live tests] [to trial] hearsay rule if der the each testimony to he did.” Id. at 0:41:44 to what with an ex- combined statements conforms Hence, require- we should decide 41:53. ception hearsay provided rule in the[ ] admissibility im- ments of and constitutional Zukevich, rules.’” 84 Hawai'i at 932 they directly plications where bear on the Furthermore, “multiple hearsay at P.2d merits. requirement[,]” only creates a multi-level and hearsay independently “if each level of meets III. admissibility requirements the for under an However, majority’s applicable hearsay exception, as the fur- the circum- [is] inasmuch exposition guarantee viewed as determina- of trustworthiness for ther can be stantial great single- questions may that arise in future such a statement as as for [] tive of cases, hearsay.” Commentary In necessary it to address them. level to HRE Rule is (1993). “record,” i.e., view, question regard, and fourth the my the second 805 card, question regarding speed speed satisfy regu- the cheek must the whether the larly activity exception the. qualified a business record and conducted card first, Jack’s, second, qualified hearsay Ah Yat was a ex- rale at at whether Officer because, respect organization, reached HPD. to each pert witness should not be With then, regularly of conducted supra, as noted there was no foundation the “records rule, Nevertheless, activity” exception hearsay in- HRE speed cheek evidence. 803(b)(6) majority (Supp.2007) the “busi- controls: asmuch as the discusses Rule rule, exception hearsay I ness record” activity. A regularly Records of conducted following analysis applies. believe the memorandum, record, report, or data com- Petitioner, form, acts, events, trial, objection pilation, in of condi- At of over tions, diagnoses, opinions, cheek card into or made in the court admitted the

nnn regularly 803(6) course activity, conducted met; at ments Rule are the witness of of acts, events, or near the time of the condi- personal need not have knowledge of the tions, opinions, diagnoses, or as shown keeping practice record or the circumstances the testimony the custodian or other objected under which the to records were of tuitness, qualified or certification that (Citation added.) kept.”) (Emphasis omit 902(11) complies with ‍​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​‌‌‌​‌​​​​​‌​‌‌​​‌‍rule or a statute ted.); Iredia, United States v. 866 F.2d certification, permitting unless the sources (5th (“A Cir.1989) 120 qualified witness is one or other circumstances in- of information explain who can keeping system record dicate labk trustworthiness. organization require vouch that the added.) (Emphases 803(6) ment (Emphasis [FRE] met.” added.)) (Citation omitted.); 4 Jack B. 803(b)(6) Under HRE Rule or its federal Margaret Weinstein & Berger, A. Wein- counterpart, Federal Rules of Evidence ¶ 803(6)[02], stein’s (FRE) Evidence at 803(6),5 803-178 qualified Rule witness “need (1984) (“The phrase qualified ‘other witness’ personal not have knowledge regarding the given should be interpretation; broadest offered, creation of the document person or he need not employee be an entity of the ally participate creation, so in its or even know long (Foot as he system.”) understands the actually who recorded the information.” omitted.) note Corp. Eason, Resolution Trust v. 17 F.3d (8th Cir.1994) (quoting United Franks, (8th States v. 939 F.2d A. Cir.1991)). qualified must, A witness howev is, As to the hearsay, first level of er “be familiar with the record-keeping pro whether the cheek card is a record of a organization.” cedures of the United States regularly Baker, (6th activity Jack’s, Cir.2006) conducted v. there F.3d (“ is no evidence witness,” ‘To be an card informa- qualified “other it is tion was “made in the course necessary laying [Jack’s] regularly activity,” foundation conducted for the introduction of the busi custodian, personal qualified ness record Jack’s have “or other knowledge of their wit- preparation.... All ness” that the cheek required is card was of the made as witness regularly is that he or activity she be familiar with conducted record-keeping procedures Jack’s. HRE organiza Rule Office Ah Yat ” (Quoting Dyno qualified tion.’ was not a witness of Constr. Co. v. Jack’s because McWane, Inc., (6th sufficiently 198 F.3d he was not 575-76 “familiar with Cir.1999).)). Box, See record-keeping procedures also United organiza- States of [that] (5th Cir.1995) (“A 50 F.3d Baker, tion.” F.3d 518. Other than explain system witness one ivho can conclusory Officer Ah Yat’s statement keeping record require records[,]” vouch that the “someone takes accurate there is 803(b)(6) event, 5. HRE any Rule is similar to FRE Rule reliability the hallmark of in this 803(6), with some variations that are not materi- area is not the nature of the business or activi commentary al here. The to HRE Rule 803 ty “regularity continuity but rather its states, pertinent part: produce precision, which habits [the] actual of 803(b)(6) upon [HRE Rule is] based Fed. experience relying upon business in [the rec of 803(6) statute, prior R.Evid. § ... and a [HRS ords], duty [and the] to make an accurate record (1976) 1980) (repealed (originally ]622-5 en continuing job occupation." as a or of 1941, 3; 218, 1, 2, acted as L c am L c 803(6), Advisory [FRE] Committee's Note. A 104, 2(e)). However, [1 the federal rule[J and safeguard preliminaty is that determina further prior admissibility the Hawaii statute limited tion the trustworthiness such records is of of regularly to records of conducted business ac discretionary with the court. tivities, present while the rule has no such added.) (Emphases interpreting provi- Cases hand, limitation. On the other both the feder sions the Federal Rules of Evidence are not prior al rule and the statute defined “business” court; however, binding may on this this court businesses, very broadly including profes persuasive authority refer to them for in inter- sions, occupations, nonprofit and even institu preting provisions similar of the Hawai'i Rules of See, Torres, e.g.. tions. State v. 60 H. 589 Jhun, 472, 478, Evidence. State v. 83 Hawai'i (1978) business). (hospital P.2d 83 The modi (1996). fication is therefore not a substantial one. In conducted, that he was a “custo- mony did not establish the test was no evidence how on qualified recorded the information Both the or who at Jack’s dian or other witness.” Furthermore, there is no evidence “Ah acknowledged the card. majority and the ICA ” entry made the at Jack’s was clarity.’ that whoever testimony not a ‘model of Yat’s speedometer and duty to test the Fitzwater, under No. 2009 WL (quoting Id. In accurately record the result. the absence *1). testimony Ah at Officer Yat’s evidence, is not admis- the card of such he unfamiliar with HPD’s indicates that Rule sible under HRE speed check record-keeping procedure for (1) knowledge he no

cards because had actually or who B. it was VMS Jack’s whether test, (2) whether it was VMS performed the hearsay, Respon- to the second level of As results, normally recorded the or Jack’s who speed check card prove must that the dent recorded, (4) when the test was activi- regularly record of a conducted was a methodology the checks. used to conduct 803(b)(6), supra, HRE stated ty of the HPD. rec- requires foundational evidence that the majority opinion, maintains that its regularly ord “made the course be interpretation of plausible “the from most activity,” “at or near the time of conducted testimony,” Ah it had to “as- Yat’s] [Officer act[,]” testimony by the as “shown purposes argument” for that “some- sume or other witness.” qualified custodian [Jack’s], apparently private one at which is a test, shop, performed a created card to 1. test, and then document results of before, witness As stated from HPD’s gave that record to someone knowledge regard- personal “need not have 368, 227 at Majority opinion at P.3d VMS.” offered, or ing the creation of the document added). majority (emphases The con- creation, participate in or even personally its testimony open “Ah leaves cedes that Yat’s actually the informa- know who recorded from possibility that someone HPD’s Corp., 17 F.3d at tion.” Resolution Trust using actually performed the test VMS However, famil- the witness must “be 1132. [Jack’s], docu- equipment located at and/or record-keeping procedures of iar with Id. at test[.]” mented the results of the Baker, organization!,]” 458 F.3d at very The fact that the 227 P.3d at 534 n. 8. system,” & Ber- Weinstein “understand majority purposes had to “assume ¶ (footnote 803(6)[02], ger, supra, at 803-178 added) that the argument” (emphasis omitted), “explain system of record its records created tests were conducted and keeping requirements and vouch kept particular way, is an obvious met,” Box, exception] are [the did indication that Officer Yat’s 356; Iredia, accord 866 F.2d at 120. F.3d at keeping sufficiently “explain the record “Ah majority asserts that Yat’s testi- Iredia, system organization.” mony satisfy several of the was sufficient 120; Box, at 356. accord 50 F.3d F.2d 803(b)(6) of HRE Rule in order requirements Thus, Ah Yat did of Officer record of to admit the card as a business he was “familiar with not demonstrate that Majority opinion at HPD.”6 [the] organi- However, record-keeping procedures of the Ah Yat’s testi- P.3d at 534. Officer '8-9-06,' First, majority which was written "the notation beneath asserts that 368, documenting 'Exp. P.3d at 534. 8-9-07'.” Id. at 227 'act[]’ a 'record' the check card is Third, regard majority to calibrating that with Ah Yat's vehicle's the asserts 'event[]' of or “ 368, 'made in the Majority opinion whether the check card was speedometer.” at 227 ” 803(b)(6)). activityU' regularly a conducted (quoting Sec- course of P.3d at 534 ond, HRE Rule 803(b)(6)), (quoting "the State estab- majority HRE Rule asserts that "there is sufficient the incorporated that HPD the created 'at or near lished evidence that the card was it,” majority relied on Ah card into its records and the check” because Officer the time' of 535, 369, opinion [] "did not 'good' at 227 P.3d at but for a Yat "testified that the check 2006[,]” reliabil- August there were other indicia of year,” performed in establish that "it was that 369, "[tjhe ity[,]” at 535. id. at a] card handwritten [ ] and that contained 3«5 zation[,]” Baker, 458 F.3d at (holding “un- that records were inadmissible as a system[,]” derst[ood] the Weinstein & Ber- business Conway record of Dr. because “the ¶ 803(6)[02], (footnote ger, supra, at 803-178 custody by mere Conway [Dr.] of the medical omitted), “explain or that he could the record records of another doctor incorpo- d[id] not keeping system organization[,]” Iredia, of the rate them Conway’s into [Dr.] business rec- 120; Box, 866 F.2d at accord 50 F.3d at 357. ords.”); Bommarito, Zundel v. 778 S.W.2d light In inadequacy of the of Officer Ah Yat’s (Mo.App.1989) 958 (determining that testimony, Respondent prove failed to' that produced by records another and received Officer Ah “qualified Yat was a witness” who by and held the bank did not render them “explain could system keeping of record bank). business records of the Additionally, requirements' and vouch that of Rule upon mere reliance the record is also not 803(6) Box, 356; are met.” 50 F.3d at accord enough qualify to employees possess- of the Iredia, Therefore, 866 F.2d at 120. Officer ing party lay to requisite foundation. Yat was not testify § McCormick on (citing Evidence 292 speed check card was a record of regularly v. Radley, (Me.2002) 804 A.2d activity conducted of the HPD in this case. (stating permit admission of records company of one through of a 2. employed by entirely witness different proof As to check card was organization “simply because her employer made in the regularly course of a conducted relied organization’s on [the other] records in activity police department, HRE Rule ,own dealing, its wholly business unsup- 803(b)(6) prepared does allow by records one law”)). ported by rule or entity to be introduced as business records of entity only another but preferable some circum- The approach is to allow the However, stances. possession the “mere possessing party of prepared by documents ‘custody’ of records” of another is not suffi- another to introduce the documents as its “qualify employees cient to possessing records, own provided business that the “oth party lay requisite requirements 803(6) foundation.” er of [FRE] Rule are Broun, al., Kenneth S. et McCormick on met and the circumstаnces indicate the rec (6th ed.2006). Evidence See Belber v. ords trustworthy.” are United States v. (1st Lipson, Cir.1990) Childs, (9th 905 F.2d Cir.1993).7 5 F.3d Forwarders, majority 533(''Air jority opinion cites Air Land Inc. v. at 111 P.3d at Land States, (Fed.Cir.1999), United 111 F.3d 1338 as a specifically did not indicate ... whether the oth- United, Appeals test that the States Court of for requirements er foundational outlined the rule the Federal Circuit uses to determine "whether a satisfied.”). must also be incorpo- document created one business and above, analysis As set forth in the in order for rated into the records of another can be admitted possessing party prepared by of documents incorporating as business record of the busi- another to introduce the documents as its own Majority opinion ness." 227 P.3d at 533. records, requirements the other HRE According majority, the Federal Circuit in 803(b)(6) Rule must be met and the circum- circuits, “surveyed Air Land cases from other stances must indicate that the records are trust- organization and concluded that when an incor- worthy. factually distinguishable This case is porates entity records of another into its own case, appellants, from Air Land. vari- records, those records are admissible when the transported goods ous carriers who household incorporating entity upon ‘relied those records in members, military appealed for service the dis- day-to-day operations, its and where there are party trict court’s admission of third estimates of " strong reliability.' other indicia of Id. at goods damaged during shipping. lost or 1344). (quoting 227 P.3d at 533 172 F.3d at holding F.3d at 1340. In that the district court properly party reports However, admitted these third as majority agrees that the test set military. business records of the Air Land noted wanting forth in Air Land is inasmuch as Air "repair estimates at issue were clear- hearsay Land allows statements made third ly upon by military during 803(b)(6) relied parties the claims to be admitted under HRE as 1343, (2) “[mjili- long adjudication process[,]” they "incorporated” id. at into another's taiy business records and service members could relied on be fined im- and/or id., incorporation, claim[,]” though prisoned submitting party even those third a false requirements Military personnel statements contain none of the for "the Claims Office were 803(b)(6). admission set forth in HRE responsible becoming ma- See for familiar with the com- c. company can custodian example, For the of the records” independent “an cheek make majority opinion The contains extended accuracy by other means.” establish or “can suggesting that “the existence of a discussion Assocs., Stone, See, III v. e.g., Id. Phoenix relationship contractual between HPD and Cir.1995) (2d (determining that F.3d performance and Jack’s for the documenta- supply a founda if witness “can sufficient significant tion of the tests would be a factor tion!;,]” employment is then the “source establishing necessary indicia of trust- irrelevant,” concluding trans that a wire Respondents worthiness” order for to es- record as a business fer was admissible tablish sufficient foundation for the admis- partnership’s accountant was “suf where the card HRE sion of the check under 803(b)(6). practice” Majority opinion ficiently the business 227 P.3d familiar with added). (emphasis This discussion records were made as at 535-36 to establish that the superfluous, as neither Petitioner nor Re- practice); Munoz v. Strahm part of that spondent has raised this issue. Nor does (Fed.Cir.1995) Farms, Inc., 69 F.3d appli- any factual basis exist in the record for court did not (concluding that the district relationship in cation of a contractual this admitting into evi abuse its discretion case. by business dated Kodak as dence slides photographer photographer where records of analysis majority’s here constitutes an practice him it for testified that was advisory opinion prosecution how to the on processing for and to to send film to Kodak such these should be tried. future cases See, receiving after e.g., Domingues, on the slides 106 Hawai'i dates (2005) (Acoba, J„ Kodak); Childs, 480, 499, 5 F.3d at 1333-34 them from J.) by Nakayama, (stating dissenting, joined Depart (admitting automotive records from by proposition “the advanced because as business records ment of Motor Vehicles majority argued by was not briefed dealership dealership the ear of a car where court[,]” parties[ or decided ] accuracy of the results confirmed the [, in the record ... “[n]o factual basis exists inventory). keep of their using it to track majority’s holding constitutes an t]he case, the HPD has not established In this advisory opinion one side on how future “independent cheek” it conducted an had may under the new statute be saved eases their accura- of Jack’s records or established dismissal”). respectfully from motions for I incorporated cy by means when it other agree approach. cannot with such an into its own business records. Jack’s records D. supra, Ah in Part III.A. Officer

As discussed “sufficiently familiar” with the Yat was not Respondent failed to establish that the has Jack’s, practices of and Officer regularly con- check card satisfied did not establish Yat’s hearsay activity exception ducted rule made as of Jack’s business records were levels—first, regularly on both as a conduct- Assocs., 60 F.3d at 101. practice. Phoenix Jack’s, second, regu- activity as a ed independent of an In the absence of evidence larly aсtivity light the HPD. In conducted established other facts, check or of of these I would hold that the means, speed check card was not admis- properly into check card could not be offered regularly conducted All Yat was not a sible “as a record evidence because Officer HRE Rule was not activity” the HPD under witness and his speed check sufficient to establish that Second, Jack's are inaccurate. unlike Air petency in the local area and with tests of estimators Land, government general,” not estab- estimating process this case has id. at 1344. personnel responsible police were for military service members who could lished Unlike the competency they becoming imprisoned [the "familiar with the if submitted false be fined or Office, companies conducting Military tests].” Nor did in the in- claims to the Claims case, government were re- an adverse establish there is no evidence of stant becoming testing sponsible familiar with the im- consequence if conducted its Jack’s general. punishment properly. fine or if check test There is no 1, regularly card was a record of a conducted 557 U.S. at - n. 129 S.Ct. at 2532 n. 1 added). before, (emphases activity under HRE As noted Rule order lay a foundation for the result of an out of test, expert court there testimony must be rv. “proper appli that the test was based on the techniques grounded cation of valid in valid Although majority decides underlying principles.” Long, 98 Hawai'i at inadmissible, check evidence was it 354-55, 601-02,. 48 P.3d at expert Such goes nevertheless on to decide the confronta- Hence, appear' in person. must insofar as posed question tion issue as the third as if “accuracy testing of the device” in Me admissible, check evidence was lendez-Diaz involves evidence that the test thereby deciding longer properly an issue no reliable, see, Werle, employed e.g., rendering before this court and advisory an 286, 762, Hawai'i such evidence opinion. 41, Kapuwai, See 121 Hawai'i at presented through must be expert wit 758, Yamasaki, 171, 211 P.3d at 69 Haw. at ness. 456, Fields, 274, 737 P.2d at 67 Haw. at testing As to whether the device is accu P.2d at 1385. rate, proof we have held may that such be majority concludes that “[Petitioner's] Werle, through afforded a witness. 121 Ha right to confrontation under the Sixth 286, wai'i at 218 P.3d at 774 (holding there by Amendment was not violated the admis- was insufficient evidence “to establish evidencef,]” majority sion of the check reliability foundational of [Petitioner’s] blood 540, opinion at 227 P.3d at because the alcohol test results under” Montalbo because speed check card is a prepared qualified “document[ ] of a technician who “was rеgular equipment course of procedures mainte- to describe the he followed to nance,” id. at (quoting petitioner’s] P.3d at 540 obtain [the blood alcohol test results, Massachusetts, Melendez-Diaz v. 557 U.S. and state the test results as shown -,-n. testing S.Ct. 2532 n. instrument” was not (2009)), testify “general “[ajccordingly reliability L.Ed.2d 314 as to the [ ] is nature[,]” acceptance energy respectful- [radiative nontestimonial in attenua id. I First, testing procedure”); Assaye, tion] chemical ly disagree for two reasons. Hawai'i ease, facts, 121 Hawai'i at 216 P.3d at 1236 case law controls and this on its (holding proper that no foundation was laid implicate does not the confrontation clauses gun speed reading for admission of laser of the United States or Hawai'i constitutions. because the record did not Second, indicate that Officer Ah Yat’s was in- conducting [officer] “tests the testified to [on establishing sufficient in gun] proce laser were recommended prepared cards were in the course purpose dures the manufacturer for the equipment opposed pro- maintenance as showing gun oper that the laser was in fact viding speeding evidence in cases. ating properly”); Manewa 115 Hawai'i at (holding 167 P.3d at 347 there no A. proper foundation laid for the admission of drug weight prosecution because failed to Melendez-Diaz, Supreme the U.S. any expertise establish that technician had Court said: calibrating drug balance of scale or “that the hold, case, do not [W]e and it is not the properly balance had been calibrated anyone testimony may whose be rele- representatives” manufacturer’s service or in establishing custody, vant the chain of accepted “that there was an manufacturer’s authenticity sample, procedure ‘verifying] established and val device, testing appear must idating]’ proper the balance was in prosecution’s working ease.... Addi- order” and the technician followed tionally, Wallace, prepared regu- documents procedure); 80 Hawai'i at equipment may (holding “prosecution lar course maintenance 910 P.2d at 725 qualify lay well as nontestimonial records. failed to a sound factual foundation that 388 ” maintaining regular [Officer] ... was accurate’ because the course of

the ‘balance vehicle, prior showing Ah Yat’s five months reliable evidence [it] there was “no alleged speeding according incident[and proper working “[t]he was in order” where Majority ly, it is non-testimonial in nature.” testify trial representative did not at service balance”). opinion at at 227 P.3d regarding his calibration of the majority’s assumption speed “the indicated, The maintenance rec have as to We check card at issue here is non-testimoni ords, accuracy testing of the device that the nature,” inasmuch as al is not warranted may under the business rec be established ambiguous. A the facts in the record are hearsay Assaye, exception ords rule. of Ah Yat’s at trial review Officer 214 at 1237 n. 8 121 Hawai'i at n. purpose as to whether the is inconclusive (noting speed of the cheek laser the absence speed part regular cheek was logs testimony by officer gun calibration police department maintenance of the vehi kept department logs such would be cles, purpose providing for the reliable evidence); files, into but were submitted See, e.g., People speeding evidence in cases. Manewa, 115 Hawai'i at 167 P.3d at Carreira, N.Y.S.2d WL proper (holding that no foundation was laid 2010) Jan.12, (N.Y.City Ct. *5 drug properly cali showing that a scale was analysis (holding that certificates of of breath brated because the lab technician “did not inspec alcohol simulator solution and of the balance, know how to calibrate or service the maintenance, tion, and calibration a breath representative as to his or no service testified typi test instrument could not be considered balance, her calibration of the and no busi non-testi cal business records and therefore record was introduced into evidence in ness Melendez-Diaz, monial under be ”) added); (emphasis lieu such purpose “the cause entire calibration Wallace, 80 Hawai'i at 412 n. 910 P.2d at testing provide evi solution is to reliable (“[A] provided n. 28 document [driving intoxi prosecuting dence for while calibrating showing agency the name of and, offenses]” “[b]ut cated for need to balance, person calibrating the that he was court, prove [driving intoxicated] while qualified, and that the balance was calibrated ex procedures these and records would not may date well have fallen under on a certain ist”). portion The relevant of Officer relating hearsay exceptions to business testimony during direct examination to Yat’s records, not offered into evi but this was this issue is as follows: dence.”) (Brackets omitted.). prece These Q And describe to the Court what is a dents, necessary apply, if would control speed check? under our case law and I do not discern speed A A check is verification which is material basis for an extended discussion of taken care of the vehicle maintenance the facts of the ease. Melendez-Diaz under shop They take the vehicle to the section. accuracy testing device and the of the car to calibrate actual implicated in maintenance records are not speedometer. with as, supra, the this case inasmuch as indicated (indiscernible)? Q And concerning speedometer test result can, A It’s done so that we we know and, consequently, questions inadmissible accurate, speedometers that our are concerning the of so-called mainte pace speed, when we vehicles at a certain not be reached. nance records would going the vehicle is ive know sure that speed. B. Q Okay. And how often are these Second, while Melendez-Diaz stated [speed checks] done? regular prepared “documents course year. A Once a may qualify equipment maintenance well — Q long they good And how for? records[,]” nontestimonial U.S. at - n. year. A One added), I (emphasis at 2532 n. 1 S.Ct. agree majority’s Q conclusion And is the check conducted do not with maintaining HPD here course card at issue “[t]he setting in vehicles? created in a non-adversarial Yes, A ma’am. added.)

(Emphases Officer Ah Yat testified specifically checks were done “[police

so that officers] know that [their] accurate,

speedometers are and when we

pace speed, vehicles at a certain we know for

sure that going speed.” that vehicle is agreed

Officer Ah Yat checks

“are done and are made so that officers prosecuting eases,

can use them in speeding them in [] use court.” Based on the

record, reasonably this court cannot conclude Officer Ah Yat’s established check card was made setting in

“non-adversarial course maintaining Ah Yat’s [Officer] vehi- Majority opinion

ele[.]” 227 P.3d at question,

540. significant This applica constitutions,

tion of our should be resolved clearly

in a establishing pivotal case

facts; case, one, not in a such as this where

the record is unclear.

227 P.3d 555 SCHWENKE,

Toe as Guardian of the

Property Sogi of and Next Friend of

Schwenke, Incapacitated Person; an

and Faavae Schwenke Palolo

Schwenke, Sogi Minor Children

Schwenke, Incapacitated Person,

Plaintiffs-Appellants, HAWAII,

OUTRIGGER LLP HOTELS Sky Court;

dba Ohana Maile and Wack Services, Inc., Defendants-Appel

enhut

lees, 1-10; 1-10;

John Does Jane Does Doe

Partnerships 1-10; Corporations Doe 1-

10; 1-10; Doe Entities Doe Governmen ‍​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​‌‌‌​‌​​​​​‌​‌‌​​‌‍ 1-10, Unincorporat

tal Entities and Doe 1-10,

ed Associations Defendants.

No. 28319. Appeals

Intermediate Court of of Hawai'i.

March notes leading document was created.7 As one com Thus, employee mentator has noted: an of a that re- business ceives records from another business can be phrase qualified ... The “other witness” qualified a witness who can establish a suffi- given very interpretation. broad a cient foundation for rec- their admission as only enough familiarity need have witness receiving ords of the HRE business under record-keeping system of the with Rule Courts and commentators question explain business how the necessary showing have articulated the ordinary record came into existence in the ways. such circumstances different For course of business. The witness need not example, leading another commentator notes personal knowledge of the actual cre- have by organization that “reliance on records personally of the documents or have ation others, by although important created fact, assembled the records. thе wit- trustworthiness, part establishing without employee ness need not even be an more is not sufficient.” McCormick on Evi- reeoi'd-keeping entity long as as the wit- goes dence 292 at 318. This commentator entity’s record-keep- understands the ness offering to add that “when business ing system. independent records of another has made an requirement records, There is no the rec- integrated check of the them has prepared by entity ords have been operation way into their own in a them, custody long they as as were has that establishes trustworthiness or contains trustworthiness, in the course of some enti- created other assurances of or can means, ty’s by business. establish other the nec- (FRE) 803(6) 7. Federal Rules of Evidence Rule There are several differences between HRE following by provides 803(b)(6) 803(6). that the is not excluded Rule and FRE Rule For exam- hearsay rule: ple, explicitly requires the federal rule memorandum, record, report, A or data com- by person knowledge record be created a with or form, acts, events, pilation, tions, condi- person from information transmitted a with diagnoses, opinions, or made at or near 803(b)(6) knowledge, whereas HRE Rule does by, the time by, or from information transmitted explicitly requirement. include that Addi- knowledge, kept if in the with tionally, requires the federal rule that the record regularly conducted business activ- course of a ity, (1) kept regularly be both in the con- course of regular practice if it was the activity regu- ducted and made as memorandum, activity business report, to make the practice activity, lar of the business whereas compilation, data all record or 803(b)(6) single requirement HRE Rule has a testimony of shown the custodian or record be made the course of witness, other or certification regularly activity. 902(11), 902(12), conducted complies Rule or a with Rule certification, Although interpreting provisions permitting cases statute unless the or the method cir- source information Federal Rules of Evidence are of course not preparation us, cumstances of indicate lack of binding may on we refer to them for their trustworthiness. The term “business” as used persuasive authority interpreting pro- similar business, institution, paragraph in this includes Jhun, visions of the Hawaii Rules of Evidence. association, calling profession, occupation, and Hawai'i at 927 P.2d at kind, every whether or not conducted profit. 3fi7 essary may However, foundation be established.” Id. satisfied. addressing other courts at 318-19. admissibility of records under these cir require cumstances have indicated that the Forwarders, In Air Land Inc. v. United 803(6) See, ments of Rule must still be met. States, (Fed.Cir.1999), 172 F.3d 1338

Case Details

Case Name: State v. Fitzwater.

Court Name: Hawaii Supreme Court

Date Published: Mar 3, 2010

Citation: 227 P.3d 520

Docket Number: 28584

Court Abbreviation: Haw.