Lead Opinion
Opinion of the Court by
Petitioner/defendant-appellant Zachariah I. Fitzwater was convicted of excessive speeding in violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(l) (2007).
The Intermediate Court of Appeals (ICA), in a Summary Disposition Order (SDO), concluded that the district court did not err in admitting the speed check evidence. State v. Fitzwater, No. 28584,
This appeal requires us to resolve several issues relating to the admission of the speed check evidence. We hold that although the speed check was conducted with the understanding that its results would likely be used in the prosecution of speeding cases, the card could nevertheless qualify as a record of regularly conducted activity (“business record”) under Hawaii Rules of Evidence (HRE) Rule 803(b)(6), quoted infra. However, there was insufficient foundation to admit the card as a business record under that rule, and there was additionally insufficient foundation regarding the reliability of the speed check. Finally, we reject Fitzwater’s argument that the admission of the speed check evidence violated his right to confrontation under the Sixth Amendment of the United States Constitution.
Absent the speed check evidence, there was insufficient evidence to establish the accuracy of the speedometer in the officer’s vehicle, and to support Fitzwater’s conviction for excessive speeding in violation of HRS § 291C-105(a)(l). Accordingly, we vacate the judgments of the ICA and the district court. However, because there was sufficient evidence to establish that Fitzwater was speeding in violation of HRS § 291C-102(a)(1),
I. BACKGROUND
A. Proceedings in the District Court
On May 9, 2007, the State of Hawaii orally charged Fitzwater with “driving a motor vehicle at a speed exceeding the (indiscernible) speed or (indiscernible) speed limit [by] 30 miles per hour or more in violation of Hawaii Revised Statutes 291C-105(A)(1), driving 70 in a 35 mile-per-hour-zone.” Fitzwater pleaded not guilty.
Officer Neal Ah Yat testified that around 11:20 p.m. on the evening of January 24, 2007, he was patrolling Kamehameha High
Ah Yat testified a speed check was conducted on his police vehicle by “Jack’s Spee-do” in August of 2006, although he wasn’t sure of the exact day it was done. He testified that a speed cheek “calibrated the actual speed of the ear with the speedometer.” He stated that the speed is calibrated so that “we know that our speedometers are accurate, and when we pace vehicles at a certain speed, we know for sure that the vehicle is going that speed.” He said speed checks are “taken care of by the vehicle maintenance section [ (VMS),]” which “take[s] the vehicle to the shop[.]” The Deputy Prosecuting Attorney (DPA) asked him if “the speed check [is] conducted in the regular course of maintaining HPD vehicles[,]” to which he responded “[y]es.” Ah Yat did not testify about how the checks are done. He testified that they are conducted once a year, and are good for one year. The result of a speed check is recorded “[o]n a card that is given and assigned to each vehicle that shows that at whichever speed it’s tested, the vehicle is actually going what the speedometer says it is.”
When the DPA asked Ah Yat what the result of the speed check on his vehicle was, defense counsel objected on the ground that the information on the speed check card was inadmissible hearsay. The court overruled the objection based on State v. Ing,
has been qualified substantially by Crawford v. Washington, [541 U.S. 36 ,124 S.Ct. 1354 ,158 L.Ed.2d 177 (2004)], as well [as by] the Hawaii companion case, State v. Grace, [107 Hawai'i 133 ,111 P.3d 28 (App.2005)], that new foundation requirements imposed by [Crawford ] and [Grace ] are not based upon any court rules and/or the Hawaii Rules of Evidence, but are constitutional.
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We argue that the (indiscernible) now requires exclusion of any testimony or statement made by a declarant who is not here to testify (indiscernible) another witness, that absent (indiscernible) statement cannot be elicited from the witness (indiscernible) consequence unless the prosecution shows that first, declarant is quote, unquote unavailable, and there’s no (indiscernible) cross-examine.
Although Crawford does not (indiscernible), [Grace] adopted the test proposing Crawford by the National Association of Defense Lawyers (indiscernible) as testimonial (indiscernible) pertinent question is whether an objective observer would reasonably expect the statement to be available for use in prosecution.
I believe Officer Ah Yat has testified that his speed check, they’re made to pace cars so they can be used to prosecute speeding cases and Ing was decided (indis*359 cernible) requirements and that’s our objection.
The court overruled the objection, stating that it was “not gonna make any groundbreaking rules on that point until the supreme court rules on it[.]”
When the DPA again asked Ah Yat what the result of the speed check was, defense counsel objected, arguing that the State “did not lay appropriate foundation” for the evidence to be admissible as a business record under HRE Rule 803(b)(6). Defense counsel argued that because Ah Yat testified that “Jack[’s] Speedo Shop did the speed check and that somebody in the HPD took it to [the shop] and had it checked[,]” AR Yat was not a qualified witness or custodian pursuant to HRE Rule 803(b)(6). The court overruled the objection.
Ah Yat then testified that “[t]he highest speed tested [was] at 75 miles per hour [and it] show[ed] that the vehicle was indeed going 75 miles per hour.” Ah Yat testified that this meant that if he were pacing a vehicle and his speedometer showed that he was traveling at 70 miles per hour, the other vehicle was in fact traveling at 70 miles per hour.
A copy of the speed cheek card was admitted into evidence over the objection of defense counsel. Ah Yat identified the card as belonging to his vehicle because it bore his HPD vehicle number. Ah Yat testified that it was a true and accurate copy of the speed check that was on file with the HPD.
On cross-examination, Ah Yat acknowledged that he had not personally taken the vehicle to Jack’s Speedo Shop in August 2006 to have the speed check performed, but rather that a member of the HPD’s VMS (Ah Yat did not know who) had taken it in. Ah Yat did not talk to anyone at Jack’s Speedo about how the test was conducted. He did not recall when he received the speed check card, but added that “it stays with the vehicle.” Defense counsel then asked Ah Yat about the purpose of the speed card:
[defense counsel]: ... [Y]ou testified today that you did these speed checks, so you know that this speedometer in your HPD vehicle (indiscernible), correct?
[Ah Yat]: Yes.
[defense counsel]: And also because when the situation calls for it, you have to pace vehicles to judge their speed, correct?
[Ah Yat]: Yes, sir.
[defense counsel]: And then when you come to court to show, in fact, that your— you use these speed cheeks to show in court that the vehicle was acting, I mean was calibrated eorreetly as far as speed? [Ah Yat]: Yes, sir.
[defense counsel]: So, it’s reasonable to state that these speed cheeks are done and made available for use in prosecuting speeding eases?
[Ah Yat]: I’m sorry, what are you asking, sir?
[defense counsel]: Sir, is it fair to say that these speed checks for HPD vehicles, specifically [for his assigned vehicle], ... are done and are made so that officers such as yourself can use them in prosecuting speeding cases, or you use them in court?
[Ah Yat]: Oh, yes, sir, yes, sir.
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In response to questions from the court, Ah Yat testified that he had been driving his HPD vehicle “[a]lmost every night” for approximately a year, that the speedometer appeared to have been operating normally during that year, and that he had never observed anything unusual about the way the speedometer operated. After a brief recross-examination of Ah Yat, the State rested.
Defense counsel moved for judgment of acquittal, arguing again that Crawford and Grace precluded the admission of the speed check, and that the State did not lay the proper foundation for it to be admitted as a business record under HRE Rule 803(b)(6). The court denied the motion, finding that “it is a requirement, a rule of [HPD] that these automobiles get speed checked once a year and that this is done by thе maintenance section and that its records are kept in the regular course of business by the maintenance section, and therefore, it does qualify as a business record.”
The defense again moved for a judgment of acquittal on the same grounds, and the court ruled in relevant part as follows:
[T]he defense may have some argument about the Crawford, about whether or not Crawford makes inroads into State v. Ing and also some arguments about the foundation. I don’t really think that that case impacts Ing as much as defense counsel thinks because[] [t]he (indiscernible) of Ing was that devices such as speedometers are generally accurate and they can be relied upon by the courts to indicate speeds.
In fact, if you read carefully as the court seems to indicate, the speed check is merely the frosting on the eake[,] that it goes to the weight of the evidence as to beyond a reasonable doubt and it’s actually the officer’s observation of the speedometer that is the important event, important fact, operative fact in the ease.
The Court finds that this officer operated his patrol ear for well over a year, almost daily. He observed the operation of the speedometer, found that it seemed to be operating normally at all times, and on this particular day, the Court finds that when you take that into account that he paced the defendant at 70 miles an hour, that is a reasonably accurate clocking and irrespective of what Jack’s Speedo Shop may say.
Court also finds that there is this speed check and that the speed was, the speed of that officer’s vehicle was calibrated at both 65 miles an hour and at 75 miles an hour, both speeds found to be accurate. The Coui't finds that the defendant’s speed was 70 miles an hour beyond a reasonable doubt.
It appears that'there are certain things the defendant did that night that would indicate a reckless state of mind, driving without a helmet, driving without closed-toed shoes.
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And the Court finds that that high rate of speed of 70 in a 35 is evidence of a reckless state of mind, which satisfies the requirement of intent in this case. I therefore[ ] find that the State has proven its case beyond a reasonable doubt. I find the defendant guilty as charged.
The court entered judgment on May 9, 2007, sentencing Fitzwater to pay a $500 fine, a $75 driver education assessment, a $25 neurotrauma fee, and a $30 criminal injuries fund fee. The court also ordered Fitzwater to complete a driver’s education improvement course and to perform 36 hours of community service. The court also suspended Fitz-water’s license for 30 days, but permitted Fitzwater to drive to and from work and the driver’s educational requirements imposed by the court during the second half of the suspension. Fitzwater timely filed a notice of appeal on June 5,2007.
B. Proceedings in the Intermediate Court of Appeals
Fitzwater raised four issues on appeal to the ICA First, Fitzwater contended that the
The State responded that “nothing about the language of H.R.E. Rule 803(b)(6) ... makes the holding in State v. Ing inapplicable to the instant issue,” and that Ing stands for the proposition that “records of the routine and regular testing of the speedometers on police vehicles [are] admissible not only to prove that such tests ha[ve] been made but also as evidence of the accuracy of the speedometers.”
Second, Fitzwater argued that even if the speed cheek card was a record of a regularly conducted activity within the meaning of HRE Rule 803(b)(6), there was insufficient foundation for its admission. The State responded that a sufficient foundation had been established by Ah Yat’s testimony pursuant to Ing and HRE Rule 803(b)(6), since Ah Yat “explained] that the speed check card was kept in the ordinary course of HPD’s business and made at or near the time of the speeding incident....”
Third, Fitzwater argued that the admission of the card violated his right to confrontation under the Sixth Amendment of the United States Constitution and article I, section 14 of the Hawai'i Constitution. He argued that although Ing had found that admission of information contained on a speed cheek card did not violate the defendant’s right to confrontation, Crawford v. Washington had effectively overruled Ing and required testimony from the person who conducted the speed check and created the card.
In response, the State argued that unlike the statements in State v. Grace,
Finally, Fitzwater argued that the district court erred in permitting improper testimony by Officer Ah Yat. Fitzwater contended that Ah Yat gave what amounted to expert testimony about the speed check, but was not qualified to do so. Fitzwater also argued that the State failed to establish sufficient foundation to show that the speedometer had been properly calibrated, citing State v. Wallace,
The ICA resolved those four issues as follows in its SDO:
(1) The district court did not err by admits ting the speed check card as a business record under HRE Rule 803(b)(6).... (2) The district court did not err in overruling Fitzwater’s objection to the foundation for the speed check card as a business record. ... (3) Admission of the speed check card was not a violation of Fitzwater’s right of confrontation ... [and] (4) We decline to consider Fitzwater’s final point as he failed to object to the testimony of Officer Ah Yat on the ground that it was improper expert testimony.
State v. Fitzwater, No. 28584,
On May 12, 2009, the ICA entered its judgment affirming the district court’s judgment.
In his August 3, 2009 application for writ of certiorari (Application), Fitzwater raised the following questions:
1. Whether the ICA gravely erred in holding that the speed cheek card qualified as a business record.
2. Whether the ICA gravely erred in holding that the State adduced sufficient foundation to admit the speed check card as a business record.
3. Whether the ICA gravely erred in holding that admission of the speed check card was not a violation of Fitz-water’s right of confrontation under either the Hawaii Constitution or the United States Constitution.
4. Whether the ICA gravely erred in failing [to] address, as a matter of plain error, that Officer Ah Yat’s testimony constituted improper expert testimony.
The State did not file a response.
II.STANDARDS OF REVIEW
A. Application for a Writ of Certiorari
The acceptance or rejection of an application for a writ of certiorari is discretionary. HRS § 602-59(a) (Supp.2009). In deciding whether to accept an application, this court reviews the decisions of the ICA for (1) grave errors of law or of fact or (2) obvious inconsistencies in the decision of the ICA with that of the supreme court, federal decisions, or its own decisions and whether the magnitude of such eiTors or inconsistencies dictate the need for further appeal. HRS § 602-59(b).
B. Admissibility of Hearsay
“Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard.” State v. Machado,
C.Right of Confrontation
“We answer questions of constitutional law by exercising our own independent judgment based on the facts of the ease. Thus, we review questions of constitutional law under the ‘righVwrong’ standax*d.” State v. Fields,
“Violation of the constitutional x-ight to confi-ont advei’se witnesses is subject to the harmless beyond a reasonable doubt standard.” State v. Balisbisana,
III.DISCUSSION
A. The circumstances of the creation of the speed check card did not pi'eclude its admission as a business record under HRE Rule 803(b)(6)
In his Application, Fitzwater first argues that the speed check card was inadmissible as a business l'ecord under HRE Rule 803(b)(6) because it was created for the purposes of litigation, citing Palmer v. Hoffman,
HRE Rule 803(b)(6) (1993 & Supp.2002) states in x’elevant part:
Hearsay exceptions; availability of de-clarant immaterial. The following are not excluded by the hearsаy rule, even though the declarant is available as a witness:
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(b) Other exceptions.
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*363 (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.
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Thus, a record that is otherwise admissible under HRE Rule 803(b)(6) may nevertheless be inadmissible if “the sources of information or other circumstances indicate [aj lack of trustworthiness.” See Addison M. Bowman, Hawaii Rules of Evidence Manual § 803-3[5][D] (2008-2009 ed.) (“internal reports concerning events likely to generate litigation, offered by the organization that produces them, should be subject to routine scrutiny under rule 803(b)(6)’s untrustworthiness qualification”) (hereinafter HRE Manual)-, see also 2 Kenneth S. Broun et al., McCormick on Evidence § 288 at 312 (6th ed. 2006) (“When records are prepared in anticipation of litigation, they will often, but not always, demonstrate that lack of trustworthiness.”) (hereinafter McCormick on Evidence ).
We review the district court’s determination of untrustworthiness for abuse of discretion. See HRE Rule 803 emt. (the “preliminary determination of the trustworthiness of such records is discretionary with the court”); McCormick on Evidence § 288 at 311 (trial courts have a “discretionary power” to exclude evidence that meets the letter of the business records exception to the hearsay rule, but “which under the circumstances appear[] to lack the reliability that business records ordinarily have”); cf. Jhun,
The United States Supreme Court considered what constitutes a statement made “in the regular course” of business in Palmer.
[The report] is not a record made for the systematic conduct of the business as a business. An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls.
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In short, it is manifest that in this ease those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like[,] these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.
Id. at 113-14,
Fitzwater argues that Ah Yat’s agreement that “it’s reasonable to state that these speed cheeks are done and made available for use in prosecuting speeding cases” means that the speed check card was prepared in anticipation of litigation like the report in Palmer, and thus it should not be admissible under
Thus, the speed check card at issue here is distinguishable from the accident report in Palmer and the documents discussed in the foregoing cases. While those documents were created solely for the purposes of litigation in a particular case, the speed check card here was not created for use in a particular dispute. Rather, the speed check card is more akin to documents that reflect the results of regularly conducted tests, which have been held to be admissible as business or government records even if they are frequently used in litigation. See State v. Ofa,
Although Ah Yat testified that speed check cards were created with the understanding that they would be used in prosecuting speeding cases, the card at issue here wаs created in a non-adversarial setting about five months prior to the alleged speeding incident, and was not created for the specific purpose of prosecuting Fitzwater. Thus, the circumstances of its creation did not preclude its admission as a business record under HRE Rule 803(b)(6).
Thus, the circumstances in Melendez-Diaz were different from those here, where the document was not created specifically for the prosecution of Fitzwater. We therefore conclude that a speed cheek card can be properly admitted into evidence as a business record if the proper foundation is laid.
B. The State did not establish a sufficient foundation to admit the speed check card as a business record under HRE Rule 803(b)(6)
At trial, Fitzwater objected to the admission of Ah Yat’s testimony about the results of the speed cheek, and to the admission of the speed cheek card itself. Fitzwa-ter argued that this evidence was hearsay, and that there was insufficient foundation for its admission since Ah Yat was not a “qualified witness” who could properly authenticate the card as a business record under HRE Rule 803(b)(6). The district court admitted the testimony and the card over Fitzwater’s objection.
In his application to this court, Fitzwater notes, inter alia, that Ah Yat did not take the vehicle to the shop, was not present when the card was created, and had no personal knowledge about the calibration testing.
In order for a record to be admissible under HRE Rule 803(b)(6), the proponent must establish a sufficient foundation. Specifically,
[t]he proponent must establish (1) that the record evidences “acts, events, conditions, opinions, or diagnoses”; (2) that the record was made in the course of a regularly conducted aсtivity; and (3) that the record was made “at or near the time” of the acts or events that are recorded.
HRE Manual § 803-3[5][B]; see HRE Rule 803(b)(6).
Furthermore, “[t]he record must also survive the discretionary untrustworthiness exclusion of the rule.” HRE Manual § 803-3[5][B],
The necessary foundation can be established “by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11)
A person can be a “qualified witness” who can authenticate a document as a record of regularly conducted activity under HRE Rule 803(b)(6) or its federal counterpart even if he or she is not an employee of the business that created the document, or has no direct, personal knowledge of how the document was created.
... The phrase “other qualified witness” is given a very broad interpretation. The witness need only have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business. The witness need not have personal knowledge of the actual creation of the documents or have personally assembled the records. In fact, the witness need not even be an employee of the reeoi'd-keeping entity as long as the witness understands the entity’s record-keeping system.
There is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity’s business.
The sufficiency of the foundation evidence depends in part on the nature of the documents at issue. Documents that are “standard records of the type regularly maintained by firms in a particular industry may require less by way of foundation testimony than less conventional documents proffered for admission as business records.”
5 Joseph McLaughlin, Weinstein’s Federal Evidence § 803.08[8][a] (2d ed.2009) (footnotes omitted).
Thus, an employee of a business that receives records from another business can be a qualified witness who can establish a suffiсient foundation for their admission as records of the receiving business under HRE Rule 803(b)(6). Courts and commentators have articulated the necessary showing in such circumstances in different ways. For example, another leading commentator notes that “reliance by the organization on records created by others, although an important part of establishing trustworthiness, without more is not sufficient.” McCormick on Evidence § 292 at 318. This commentator goes to add that “when the business offering the records of another has made an independent check of the records, has integrated them into their own business operation in a way that establishes trustworthiness or contains other assurances of trustworthiness, or can establish accuracy by other means, the nec
In Air Land Forwarders, Inc. v. United States,
On appeal, the Federal Circuit surveyed eases from other circuits, and concluded that when an organization incorporates records of another entity into its own records, those records are admissible when the incorporating entity “relied upon those records in its day-to-day operations, and where there are other strong indicia of reliability.” Id. at 1344; see People v. Markowitz,
The court in Air Land did not specifically indicate whether the existence of reliance by the incorporating entity and the presence of other indicia of reliability was sufficient to qualify an incorporated record for admission as a business record under FRE Rule 803(6), or whethеr the other foundational requirements outlined by the rule must also be satisfied. However, other courts addressing the admissibility of records under these circumstances have indicated that the requirements of Rule 803(6) must still be met. See, e.g., United States v. Childs,
These eases represent a reasonable approach to authenticating documents in this situation. Thus, we hold that when an entity incorporates records prepared by another entity into its own records, they are admissible as business records of the incorporating entity provided that it relies on the records,
In the instant case, the record does not clearly establish how the speed check сard was produced. It appeal’s, from Officer Ah Yat’s testimony, that it is HPD’s practice to have speed checks conducted on its vehicles on an annual basis. According to Ah Yat, those checks are “taken care of’ by HPD’s VMS during the regular course of maintaining HPD’s vehicles. He testified that the VMS takes these vehicles “to the shop” to calibrate the speedometer, and “someone takes accurate records” of the test, which are recorded on a card that is placed in the vehicle. Ah Yat did not know how the cheeks are done, and did not testify about who actually performed the test at issue other than it “was done by Jack’s Speedo.”
Ah Yat testified that State’s Exhibit 1 was an accurate copy of the card that was in the vehicle he was driving on the night that he cited Fitzwater. Exhibit 1 is entitled “Jack’s Speedo Shop[.]” The next line contains the notation “Honolulu, Hawaii,” and a blank which was filled in with the handwritten notation “8-9-06,” beneath which appears the handwritten notation “Exp 8-9-07”. The card contains the printed statement “To Whom It May Concern: THIS IS TO CERTIFY THAT THE Speedometer of _ No. _Was tested and found to be registering _ Miles [] at _ M.P.H.[J” with spaces for a number of readings. The card was filled in with handwritten notations identifying the vehicle as Ford No. HPD 1040, and with varying speedometer readings. There is a line at the bottom which appears to contain a handwritten signature.
As the ICA noted in its SDO, Ah Yat’s testimony was not a “model of clarity.” State v. Fitzwater, No. 28584,
Ah Yat’s testimony was sufficient to satisfy several of the requirements of HRE Rule 803(b)(6) in order to admit the card as a business record of HPD. First, the speed check card is a “record” documenting the “aet[ ]” or “event[ ]” of calibrating Ah Yat’s vehicle’s speedometer. HRE Rule 803(b)(6). Second, there is sufficient evidence that the card was created “at or near the time” of the speed check. Id. Ah Yat testified that the check was “good” for a year, and that it was performed in August 2006. The card itself contains the handwritten notation “8-9-06,” beneath which was written “Exp. 8-9-07”. The notations on the card, together with Ah Yat’s testimony that the check was “good” for a year, support the inference that the speed check was performed on or about August 9, 2006, and that the card was created оn or about that date. See River Dock & Pile, Inc. v. O & G Indus.,
Finally, in order to determine whether Ah Yat’s testimony was sufficient to
However, Ah Yat’s testimony did not adequately establish that there were other indi-cia of reliability. Ah Yat’s testimony did not sufficiently establish that anyone at Jack’s was under a business duty to accurately calibrate the vehicle’s speedometer and to record the results, or that there are other reasons to conclude that the card was reliable. Cf. HRE Rule 803(b)(6) cmt. (recognizing that the “hallmark of reliability” is the “regularity and continuity which produce habits of precision, [the] actual experience of business in relying upon [the records], [and the] duty to make an accurate record as part of a continuing job or occupation.”) (quoting FRE 803(6), Advisory Committee’s Note) (brackets in original).
In determining whether records that were created by one entity and incorporated into the records of another entity exhibit indicia of trustworthiness and are admissible, some courts have found it significant that the entity that created the documents did so in connection with a contractual obligation owed to the second entity. For example, in White Industries v. Cessna Aircraft Co.,
Therefore, in the instant case, the existence of a contractual relationship between HPD and Jack’s for the performance and documentation of the tests would be a significant factor in establishing the necessary indi-cia of trustworthiness. White,
The State suggested in its ICA brief that State v. Ing supports the admission of the speed check card. The defendant there was convicted of speeding, based on a police officer’s testimony that he had paced the defendant’s vehicle using his police cаr, and found it to be exceeding the speed limit by at least 25 miles per horn’. Ing,
With regard to the admission of the card, this court cited to HRS § 622-5 and concluded that “[w]here regular tests are made and the records of the tests are kept by the City and County or the police department the card can be introduced as an ordinary business entry of evidence of such record indicating the routine testing of speedometers.”
Ing does not specifically address many of the foundational requirements required for admission of a document under HRE Rule 803(b)(6). Indeed, it is not clear from the opinion whether the speed check was conducted at HPD or at a private shop, who created the record, and whether it was created at or about the time of the test. Thus Ing has limited precedential value in this context, and to the extent it conflicts with the analysis set forth here, it is overruled.
Accordingly, the district court erred in concluding that there was sufficient foundation for the admission of the speed check card under HRE Rule 803(b)(6).
C. The admission of the card did not violate Fitzwater’s right of confrontation under the U.S. Constitution
Fitzwater argues that even if the speed check card is admissible as a business record under HRE Rule 803(b)(6), the State’s failure to call the declarant whose statements are reflected on the card to testify at trial violated his right to confrontation under the Sixth Amendment of the United States Constitution.
The confrontation clause provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[,]” U.S. Const, amend. VI, and this guarantee applies to both federal and state prosecutions, Crawford,
There has been no definitive statement by the Supreme Court regarding what is “testimonial” in nature. In Crawford, the defendant was charged with assault and attempted murder after stabbing a man who had allegedly attempted to rape his wife.
Various formulations of this core class of “testimonial” statements exist: “ex pаrte in-eourt testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeutorially,” Brief for Petitioner 23; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois,502 U.S. 346 , 365,112 S.Ct. 736 ,116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would*372 lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing.
Id. at 51-52,
The Court held that the wife’s statements were “testimonial under any definition,” id. at 61,
In Davis, the Court examined whether statements made to police in two separate cases were testimonial and therefore subject to confrontation under Crawford. In the first ease, the trial court admitted a recording of a 911 call by a woman reporting an incident of domestic abuse as it was happening, and her responses to the operator’s questions about the circumstances of the incident.
Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation— as either testimonial or nontestimonial, it suffices to decide the present eases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822,
The Court recently revisited the issue of what constitutes a “testimonial”-statement in Melendez-Diaz. There, Massachusetts police received a tip that a K-mart employee was engaging in suspicious activity. 129
Melendez-Diaz was charged with distributing and trafficking cocaine. Id. At trial, the prosecution introduced into evidence all of the bags seized, as well as three “certificates of analysis” showing the results of the tests performed on the seized substances by a state laboratory. Id. at 2531. The certificates were sworn to before a notary public by analysts at the laboratory, and stated the weight of the seized substance and that it contained cocaine. Id. Melendez-Diaz objected to the admission of the certificates on the grounds that Crawford required that the analysts testify in person. Id. The objection was overruled, and Melendez-Diaz was found guilty. Id. The Appeals Court of Massachusetts rejected his appeal, holding that pursuant to state law, the authors of certificates of forensic analysis were not subject to confrontation under the Sixth Amendment. Id.
The Supreme Court reversed, holding that the certificates fell within the “core class of testimonial statements” described in Crawford. Id. at 2532, 2542. The Court found that the certificates were “quite plainly affidavits[,]” and that the description in Crawford of “core” testimonial statements “mentions affidavits twice.” Id. at 2532 (citing White v. Illinois,
In response to concerns expressed by dissenting justices, the Court noted:
Contrary to the dissent’s suggestion, we do not hold, and it is not the ease, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s ease. While the dissent is correct that ‘[i]t is the obligation of the prosecution to establish the chain of custody,’ this does not mean that everyone who laid hands on the evidence must be called.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontesti-monial records.
Id. at 2532 n. 1 (internal citations omitted) (emphasis added).
As noted above, the Court in Melendez-Diaz observed that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”
Accordingly, Fitzwater’s right to confrontation under the Sixth Amendment was not violated by the admission of the speed check evidence.
D. The State failed to establish sufficient foundation for the reliability of the speed check
In his opening brief at the ICA, Fitzwater argued, inter alia, that Ah Yat provided expert testimony despite not being qualified to do so, and that the State failed to establish a sufficient foundation to show that the speedometer had been properly calibrated under the principles set forth in State v. Wallace and State v. Manewa. The State responded in its answering brief that State v. Ing supported the admission of Ah Yat’s testimony about the contents of the speed check card, and that in any event, there was sufficient evidence to support Fitzwater’s conviction independent of the speed check evidence.
In its SDO, the ICA sua sponte found that Fitzwater had failed to adequately preserve these arguments, and accordingly declined to address them. State v. Fitzwater, No. 28584,
Thus, we will address the merits of Fitzwa-ter’s arguments. We conclude that the district court erred in admitting the speed cheek card without the necessary foundational evidence regarding the reliability of the calibration testing as required by Wallace and Manewa.
The record does not indicate exactly what kind of test was performed at Jack’s Speedo Shop, although it is fair to infer that the test required some specialized training аnd/or expertise to perform. Officer Ah Yat did not indicate that he had any such training or expertise; instead, his testimony was quite clearly based solely on the contents of the speed cheek card.
In Wallace, we considered the admissibility of test results relating to the weight of narcotics. The State offered testimony from a Naval Investigative Service chemist concerning the results he obtained using an electronic balance to weigh cocaine. The chemist testified that the balance was calibrated annually by the manufacturer’s service representative, and he “assume[d] [the representative was] qualified to service and calibrate the balance.”
[The chemist] lacked personal knowledge that the balance had been correctly calibrated and merely assumed that the manufacturer’s service representative had done so. The service representative did not testify at trial regarding his calibration of the balance, nor did the prosecution, through a custodian of records, offer any business record of the manufacturer reflecting proper calibration of the balance. There being no reliable evidence showing that the balance was “in proper working order,” the prosecution failed to lay “a sound factual foundation” that the net weight of the cocaine measured by the balance was accurate. Therefore, because inadequate foundation was laid to show that the weight measured by the balance could “be relied on as a substantive fact,” [the chemist’s] assumption that the balance was accurate was based on inadmissible hearsay. Accordingly, we hold that the circuit court clearly abused its discretion in admitting [the chemist’s] testimony regarding the net weight of the cocaine.
Id. at 412,
In Manewa, the State offered testimony from an HPD criminalist concerning the results he obtained using an analytical balance to weigh methamphetamine. 115 Hawai'i at
The criminalist also testified that “I have my own personal balance which I verify and validate once a month and we so record it.” Id. at 346,
Accordingly, we held that the testimony of the criminalist regarding the weight of the substance was not properly admitted.
Wallace and Manewa thus described the foundational requirements that must be met before results of the calibration of scales used to weigh narcotics can “be relied on as a substantive fact.” Wallace,
Thus, in order for the results of speed checks to be admissible, the State must establish: (1) how and when the speed check was performed, including whether it
The required information was missing from the record here. It was not established by Ah Yat in his testimony. Nor was it established by the speed check card. As discussed in section III-B, the speed check card was not authenticated and was, therefore, inadmissible as a business record pursuant to HRE Rule 803(b)(6). As a result, “inadequate foundation was laid to show” that the speed check “eould ‘be relied on as a substantive faet[,]'” Wallace,
E. Absent the speed check evidence, there was insufficient evidence to support the district court’s judgment
As noted above, the district court relied on alternate grounds in finding that Fitzwater’s “speed was 70 miles an hour beyond a reasonable doubt.” In addition to the speed check evidence, which we have concluded was improperly admitted, the district court held that Ah Yat’s testimony that he had been operating his vehicle almost daily for over a year and observed that his speedometer seemed to be operating normally at all times provided an independent basis for concluding that Fitzwater had exceeded the speed limit by 35 miles per hour. Similarly, in its Answering Brief to the ICA, the State argued that this testimony by Ah Yat was sufficient “to establish that the speedometer of the police vehicle was accurately operational on the date of the offense....”
“HRS § 701-114(l)(a) and (b) (1993) requires proof beyond a reasonable doubt of each element of the offense....” Assaye,
Accordingly, there was insufficient evidence in the record to sustain Fitzwater’s conviction under HRS § 291C-105, and the conviction must be vacated. Cf. Assaye,
IV. CONCLUSION
Accordingly, we conclude that the speed check evidence should not have been admitted under HRE Rule 803(b)(6), and that, absent that evidence, there was insufficient evidence to support Fitzwater’s conviction for excessive speeding. We therefore vacate the May 12, 2009 judgment of the Intermediate Court of Appeals, and the May 9, 2007 judgment of the District Court of the First Circuit, and remand for further proceedings consistent with this opinion.
Notes
.HRS § 291C-105 states in relevant part:
Excessive speeding, (a) No person shall drive a motor vehicle at a speed exceeding:
(1) The applicable state or county speed limit by thirty miles per hour or more[.]
[[Image here]]
. The Honorable T. David Woo, Jr. presided.
. HRS § 291C-102 (2007) states in relevant part:
Noncompliance with speed limit prohibited. (a) A person violates this section if the person drives:
(1) A motor vehicle at a speed greater than the maximum speed limit other than provided in section 291C-105[.]
[[Image here]]
. The district court granted the State's motion to dismiss the no insurance charge, and to nolle prosequi the charge for driving without a license.
. The district court denied defense counsel's request for a voluntariness hearing on Fitzwater's statement to Ah Yat.
6. HRE Rule 902(11) (1993 & Supp.2008) provides that:
The original or a duplicate of a domestic or foreign record of regularly conducted activity that would be admissible under rule 803(b)(6), if accompanied by a written declaration of its custodian or other qualified person, certifying that the record was:
(A)Made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) Kept in the course of the regularly conducted activity; and
(C) Made by the regularly conducted activity as a regular practice.
The declaration shall be signed in a matter that, if falsely made, would subject the maker to a criminal penalty under the laws of the state or country where the declaration is signed....
. Federal Rules of Evidence (FRE) Rule 803(6) provides that the following is not excluded by the hearsay rule:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
There are several differences between HRE Rule 803(b)(6) and FRE Rule 803(6). For example, the federal rule explicitly requires that the record be created by a person with knowledge or from information transmitted by a person with knowledge, whereas HRE Rule 803(b)(6) does not explicitly include that requirement. Additionally, the federal rule requires that the record be both (1) kept in the course of regularly conducted activity and (2) made as part of the regular practice of the business activity, whereas HRE Rule 803(b)(6) has a single requirement that the record be made in the course of a regularly conducted activity.
Although cases interpreting provisions in the Federal Rules of Evidence are of course not binding on us, we may refer to them for their persuasive authority in interpreting similar provisions of the Hawaii Rules of Evidence. Jhun,83 Hawai'i at 478 ,927 P.2d at 1361 .
. We note, however, that Ah Yat's testimony leaves open the possibility that someone from HPD’s VMS actually performed the test using equipment located at Jack's Speedo, and/or documented the results of the test using Exhibit 1. To the extent that such uncertainty exists in the record, it indicates that “the sources of information or other circumstances indicate lack of trustworthiness” concerning the authenticity of the document. HRE Rule 803(b)(6).
. HRS § 622-5 (1976), which was repealed in 1980, provided:
A record of an act, condition, or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court or person having authority to hear, receive and examine evidence, the sources of information, method, and time of preparation were such as to justify its admission.
The term "business" includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.
The commentary to HRE Rule 803 notes that section (b)(6) was based upon HRS § 622-5 and FRE Rule 803(b)(6). HRE Rule 803 cmt.
. Although Fitzwater’s Application and Opening Brief suggest that the admission of the card also violated his rights under the Hawai’i Constitution, he did not provide any argument on that point and accordingly we do not address it here. Hawai’i Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be deemed waived.”).
. In Crawford, the Court noted that it had rejected the proposition that “we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law” in White v. Illinois,
. Although Ing holds that the admission of testimony based upon a speed check card did not violate the confrontation clause,
. In State v. Grace,
In light of our holding below that the speed check card is not testimonial because it was prepared in the course of regular equipment maintenance, we do not need to decide whether the ICA was correct in adopting the broader NACDL test in Grace.
. The Court also noted elsewhere in the opinion that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at
. We address the latter argument in section III— E below.
. We noted in a footnote that:
Wallace concedes in his brief that "[a] document provided by the calibrating agency showing the name of the person calibrating the [balance], that he was qualified, [and] that [the balance] was calibrated on a certain date may well have fallen under the hearsay exceptions] [relating to] business records, but this was not [offered into evidence]. See [HRE] 803(b)(6) or 803(b)(8)."
Id. at 412 n. 28,
. This court recently applied the reasoning of Wallace and Manewa in State v. Assaye,
This court held that the officer's testimony did not provide a sufficient foundation for the laser gun's speed reading to be admitted as a "substantive fact." Id. at 212-14,
[ajlthough [the officer] testified that he was "certified" to use the laser gun ... and he was "instructed in the testing and operating of the device," the prosecution does not point to anywhere in the record to indicate that the four tests that [the officer] testified to conducting were recommended procedures by the manufacturer for the purpose of showing that the laser gun was in fact operating properly on [the day the defendant was cited].
Id. at 213,
Furthermore, this court held that “the same burden of proof is applied to the issue of whether the officer is qualified by training and expеrience to operate the particular laser gun; namely, whether the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer.” Id. at 215,
. At oral argument, the State suggested that if this court concludes that there was insufficient foundation to admit the speed check evidence, this court should apply any new requirements set forth in this opinion prospectively pursuant to State v. Ikezawa,
. At oral argument, the State represented that speed checks have shown that speedometers are typically accurate to within “a couple miles per hour.” See MP3: Oral Argument, Hawai'i Supreme Court, at 01:02 to 01:03 (Nov. 5, 2009), available at http://www.courts.state.hi.us/courts/ oral_arguments/archive/oasc2 85 84.html. However, defense counsel represented that there have been cases in which speedometers were shown to be inaccurate by as much as 8 miles per hour. See id. at 01:10 to 01:11. These representations are not part of the record, and the record itself is silent with regard to the general accuracy of speedometers in police vehicles.
Concurrence Opinion
Concurring and Dissenting Opinion by
I concur in the result only, inasmuch as in this case there was an absolute failure of proof as to what test was employed to assess the accuracy of the speedometer and as to the reliability of that test, both fundamental tenets of scientific evidence. Because such failure of proof is determinative, in my view it is unwise to decide issues beyond that determination, as the majority does; rather we should await cases in which such issues must actually be decided.
Petitioner/Defendanb-Appellant Zachariah I. Fitzwater (Petitioner) was convicted of excessive speeding in violation of Hawai'i Revised Statutes (HRS) § 291C-105(a)(l) (2007 Repl.).
The crux of this ease, essentially posed in the first question, is whether a proper foundation was laid for the admission of the speed check card into evidence. The speed check card was patently inadmissible because (1) there is no evidence in this case of what test was administered to determine the accuracy of Officer Ah Yat’s speedometer, and (2) there is no evidence of the reliability of that test. “‘[A] fundamental evidentiary rule is that before the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact’” State v. Long,
I.
It is axiomatic that “[i]n Hawai'i, the admissibility of scientific or technical evidence is governed by Hawai'i Rules of Evidence (HRE) Rules 702 (1993) and 703 (1993).” State v. Werle,
“[T]o be admissible, ‘expert testimony must be both relevant and reliable.’” Long,
Additionally, “[t]he reliability requirement refers to evidentiary reliability—that is trustworthiness. Under this prong, admission of expert evidence is premised on the assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his or her discipline.” State v. Vliet,
Inasmuch as no evidence was introduced regarding the testing device, the further “ ‘foundational prerequisite ... [establishing] that the measuring instrument [was] in proper working order[ ]’ ” was not laid. Manewa,
Correlatively, there was no evidence that the device assumably used to test the speedometer was properly maintained, serviced, or calibrated. See State v. Assaye,
[ (1) ] that [whoever conducted the test] had any training or expertise in calibrating the [testing device], (2) that the [testing device] had been properly calibrated by the manufacturer’s service representatives, (3) that there was an accepted manufacturer's established procedure for “verifying and validating” that the [testing device] was in proper working order and that if such a procedure existed, that [the operator] followed it, and (4) that [the testing device] was in proper working order at the time the [speedometer] was [checked].
II.
Thus I cannot agree with the need for the discussion undertaken by the majority beyond the proposition that there was an absolute failure of proof by Respondent. Such a discussion is advisory and, thus, without the benefit of a concrete controversy to validate our opinion. See Kapuwai v. City & County of Honolulu,
The majority argues “the need to provide guidance on this issue in order to prevent ‘serious judicial mistakes’ in the future[.]” Majority opinion at 370,
Accordingly, we should await those cases that are premised on facts for which our ruling will have a real consequence. For example, in oral argument, Respondent admits that “there was not very detailed testimony as to what the [speed check] tests composed of and what [the person who conducted the tests] did.” MP3: Oral Argument, Hawai'i Supreme Court, at 0:41:31 (Nov. 5, 2009), available at http://www. courts.state.hi.us/courts/oraLarguments/ arehives/oase 28584.html. Respondent considered this “unfortunate” because at the time of oral argument, there was another “test case” currently on appeal “before the ICA” in which “[the person who conducted the tests] actually came in [to trial] and gave live testimony to what he did.” Id. at 0:41:44 to 41:53. Hence, we should decide requirements of admissibility and constitutional implications where they directly bear on the merits.
III.
However, inasmuch as the majority’s further exposition can be viewed as determinative of questions that may arise in future cases, it is necessary to address them. In my view, the second question and fourth question regarding whether the speed cheek card qualified as a business record and whether Officer Ah Yat was a qualified expert witness should not be reached because, as noted supra, there was no foundation for the speed cheek evidence. Nevertheless, inasmuch as the majority discusses the “business record” exception to the hearsay rule, I believe the following analysis applies.
At trial, over the objection of Petitioner, the court admitted the speed cheek card into evidence as a record of regularly conducted activity of the HPD. Officer Ah Yat testified that “[a] speed check is verification which is taken care of by the [HPD’s] vehicle maintenance section [ (VMS) ]” and that “[VMS] take[s] the vehicle to the shop to calibrate the actual speed of the car with the speedometer.” The speed cheek card associated with the officer’s vehicle was not a record originating with the HPD, but was seemingly created at “Jack’s Speedo [Shop (Jack’s) ].” Officer Ah Yat testified that he did not know when the HPD “received the speed-check card,” but apparently the speed check card was made part of the HPD’s records and “it stay[ed] with the vehicle[.]” Thus, the speed check card, which originated at Jack’s and became part of the HPD record, constitutes multiple hearsay.
There can be multiple levels of hearsay contained in a business record; and each of those levels must have a basis for being admissible. State v. Zukevich,
Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the*383 course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified tuitness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate labk of trustworthiness.
(Emphases added.)
Under HRE Rule 803(b)(6) or its federal counterpart, Federal Rules of Evidence (FRE) Rule 803(6),
A.
As to the first level of hearsay, that is, whether the speed cheek card is a record of a regularly conducted activity of Jack’s, there is no evidence that the speed card information was “made in the course of [Jack’s] regularly conducted activity,” or testimony by Jack’s custodian, “or other qualified witness” that the speed cheek card was made as part of the regularly conducted activity of Jack’s. HRE Rule 803(b)(6). Office Ah Yat was not a qualified witness of Jack’s because he was not sufficiently “familiar with the record-keeping procedures of [that] organization.” Baker,
B.
As to the second level of hearsay, Respondent must prove that the speed check card was a record of a regularly conducted activity of the HPD. HRE 803(b)(6), stated supra, requires foundational evidence that the record be “made in the course of regularly conducted activity,” “at or near the time of the act[,]” as “shown by the testimony of the custodian or other qualified witness.”
1.
As stated before, a qualified witness “need not have personal knowledge regarding the creation of the document offered, or personally participate in its creation, or even know who actually recorded the information.” Resolution Trust Corp.,
The majority asserts that “Ah Yat’s testimony was sufficient to satisfy several of the requirements of HRE Rule 803(b)(6) in order to admit the card as a business record of [the] HPD.”
In its opinion, the majority maintains that from “the most plausible interpretation of [Officer Ah Yat’s] testimony,” it had to “assume for purposes of argument” that “someone at [Jack’s], which is apparently a private shop, performed a test, created the card to document the results of that test, and then gave that record to someone from HPD’s VMS.” Majority opinion at 368,
Thus, the testimony of Officer Ah Yat did not demonstrate that he was “familiar with the record-keeping procedures of the organi
2.
As to proof that the speed check card was made in the course of a regularly conducted activity of the police department, HRE Rule 803(b)(6) does allow records prepared by one entity to be introduced as business records of another entity but only in some circumstances. However, the “mere possession or ‘custody’ of records” of another is not sufficient to “qualify employees of the possessing party to lay the requisite foundation.” 2 Kenneth S. Broun, et al., McCormick on Evidence § 292 (6th ed.2006). See Belber v. Lipson,
The preferable approach is to allow the possessing party of documents prepared by anоther to introduce the documents as its own business records, provided that the “other requirements of [FRE] Rule 803(6) are met and the circumstances indicate the records are trustworthy.” United States v. Childs,
In this case, the HPD has not established that it had conducted an “independent cheek” of Jack’s records or established their accuracy by other means when it incorporated Jack’s records into its own business records. As discussed in Part III.A. supra, Officer Ah Yat was not “sufficiently familiar” with the business practices of Jack’s, and Officer Ah Yat’s testimony did not establish that the records were made as part of Jack’s business practice. Phoenix Assocs.,
c.
The majority opinion contains an extended discussion suggesting that “the existence of a contractual relationship between HPD and Jack’s for the performance and documentation of the tests would be a significant factor in establishing the necessary indicia of trustworthiness” in order for Respondents to establish sufficient foundation for the admission of the speed check card under HRE 803(b)(6). Majority opinion at 369,
The majority’s analysis here constitutes an advisory opinion to the prosecution on how future cases such as these should be tried. See, e.g., State v. Domingues,
D.
Respondent has failed to establish that the speed check card satisfied the regularly conducted activity exception to the hearsay rule on both levels—first, as a regularly conducted activity of Jack’s, and second, as a regularly conducted activity of the HPD. In light of these facts, I would hold that the speed check card could not be properly offered into evidence because Officer All Yat was not a qualified witness and his testimony was not sufficient to establish that the speed check
rv.
Although the majority decides that the speed check evidence was inadmissible, it nevertheless goes on to decide the confrontation issue posed as the third question as if the speed check evidence was admissible, thereby deciding an issue no longer properly before this court and rendering an advisory opinion. See Kapuwai,
The majority concludes that “[Petitioner's] right to confrontation under the Sixth Amendment was not violated by the admission of the speed check evidencef,]” majority opinion at 374,
A.
In Melendez-Diaz, the U.S. Supreme Court said:
[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s ease.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
557 U.S. at - n. 1,
As to whether the testing device is accurate, we have held that such proof may be afforded through a witness. Werle,
We have indicated, as to maintenance records, that the accuracy of the testing device may be established under the business records exception to the hearsay rule. Assaye,
B.
Second, while Melendez-Diaz stated that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records[,]” — U.S. at - n. 1,
The majority’s assumption that “the speed check card at issue here ... is non-testimonial in nature,” is not warranted inasmuch as the facts in the record are ambiguous. A review of Officer Ah Yat’s testimony at trial is inconclusive as to whether the purpose of the speed cheek was part of the regular maintenance of the police department vehicles, or for the purpose of providing reliable evidence in speeding cases. See, e.g., People v. Carreira,
Q And describe to the Court what is a speed check?
A A speed check is verification which is taken care of by the vehicle maintenance section. They take the vehicle to the shop to calibrate the actual speed of the car with the speedometer.
Q And (indiscernible)?
A It’s done so that we can, we know that our speedometers are accurate, and when we pace vehicles at a certain speed, ive know for sure that the vehicle is going that speed.
Q Okay. And how often are these [speed checks] done?
A Once a year.
Q And how long are they good for?
A One year.
Q And is the speed check conducted in the regular course of maintaining HPD vehicles?
*389 A Yes, ma’am.
(Emphases added.) Officer Ah Yat testified that the speed checks were specifically done so that “[police officers] know that [their] speedometers are accurate, and when we pace vehicles at a certain speed, we know for sure that that vehicle is going that speed.” Officer Ah Yat agreed that the speed checks “are done and are made so that officers ... can use them in prosecuting speeding eases, or [] use them in court.” Based on the record, this court cannot reasonably conclude that Officer Ah Yat’s testimony established that the speed check card was made in a “non-adversarial setting in the regular course of maintaining [Officer] Ah Yat’s police vehi-ele[.]” Majority opinion at 374,
. HRS § 291C-105 states in relevant part:
Excessive speeding, (a) No person shall drive a motor vehicle at a speed exceeding:
(1) The applicable state or county speed limit by thirty miles per hour or more;
. The speed check card contained printed and handwritten text. The speed check card, with the handwritten portions indicated in quotes, read:
JACK’S SPEEDO SHOP Honolulu, Hawai'i, "8-9-06 ”
"Exp. 8-9-07”
To Whom It May Concern:
THIS IS TO CERTIFY THAT THE
Speedometer of "Ford" No. "HPD 1040"
Was tested and found to be registering
75 " " 75
Correction (illegible)
[Signature ]
. I agree with the majority that State v. Ing,
. I agree that there was sufficient evidence to support entry of judgment against Petitioner on the infraction of speeding in violation of HRS § 291C-102(a)(1). During trial, Petitioner admitted "going maybe 50 miles an hour or something like that” when the speed limit changed from 45 to 35 miles an hour. Therefore, there was sufficient evidence based on his testimony to establish that Petitioner was driving his vehicle "at a speed greater than the maximum speed limit” in violation of HRS § 291C-102(a)(1).
. HRE Rule 803(b)(6) is similar to FRE Rule 803(6), with some variations that are not material here. The commentary to HRE Rule 803 states, in pertinent part:
[HRE Rule 803(b)(6) is] based upon Fed. R.Evid. 803(6) ... and a prior statute, [HRS § ]622-5 (1976) (repealed 1980) (originally enacted as L 1941, c 218, 1, 2, 3; am L 1972, c 104, 2(e)). However, [1 the federal rule[J and the prior Hawaii statute limited admissibility to records of regularly conducted business activities, while the present rule has no such limitation. On the other hand, both the federal rule and the prior statute defined “business” very broadly as including businesses, professions, occupations, and even nonprofit institutions. See, e.g.. State v. Torres,60 H. 271 ,589 P.2d 83 (1978) (hospital business). The modification is therefore not a substantial one. In any event, the hallmark of reliability in this area is not the nature of the business or activity but rather its “regularity and continuity which produce habits of precision, [the] actual experience of business in relying upon [the records], [and the] duty to make an accurate record as part of a continuing job or occupation." [FRE] 803(6), Advisory Committee's Note. A further safeguard is that preliminaty determination of the trustworthiness of such records is discretionary with the court.
(Emphases added.) Cases interpreting provisions of the Federal Rules of Evidence are not binding on this court; however, this court may refer to them for persuasive authority in interpreting similar provisions of the Hawai'i Rules of Evidence. State v. Jhun,
. First, the majority asserts that "the speed check card is a 'record' documenting the 'act[]’ or 'event[]' of calibrating Ah Yat's vehicle's speedometer.” Majority opinion at 368,
. The majority cites Air Land Forwarders, Inc. v. United States, 111 F.3d 1338 (Fed.Cir.1999), as a test that the United, States Court of Appeals for the Federal Circuit uses to determine "whether a document created by one business and incоrporated into the records of another can be admitted as a business record of the incorporating business." Majority opinion at 367,
However, the majority agrees that the test set forth in Air Land is wanting inasmuch as Air Land allows hearsay statements made by third parties to be admitted under HRE 803(b)(6) as long as they are "incorporated” into another's business records and that person relied on the incorporation, even though those third party statements contain none of the requirements for admission set forth in HRE 803(b)(6). See majority opinion at 367, 111 P.3d at 533(''Air Land did not specifically indicate ... whether the other foundational requirements outlined by the rule must also be satisfied.”).
As set forth in the analysis above, in order for the possessing party of documents prepared by another to introduce the documents as its own business records, the other requirements of HRE Rule 803(b)(6) must be met and the circumstances must indicate that the records are trustworthy. This case is factually distinguishable from Air Land. In that case, the appellants, various carriers who transported household goods for military service members, appealed the district court’s admission of third party estimates of goods lost or damaged during the shipping.
Unlike the military service members who could be fined or imprisoned if they submitted false claims to the Military Claims Office, in the instant case, there is no evidence of an adverse consequence if Jack’s conducted its testing improperly. There is no fine or punishment if Jack's tests are inaccurate. Second, unlike Air Land, the government in this case has not established that police personnel were responsible for becoming "familiar with the competency of [the companies conducting the tests].” Nor did the government establish that the police were responsible for becoming familiar with the speed check test in general.