Opinion
No. CAAP–12–0000766.
07-31-2015
STATE of Hawai‘I, Plaintiff–Appellee, v. James HARRIS, Jr., Defendant–Appellant.
Kevin O'Grady, on the briefs, for Defendant–Appellant. Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
Kevin O'Grady, on the briefs, for Defendant–Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
FOLEY and FUJISE, JJ., with NAKAMURA, C.J., concurring separately.
SUMMARY DISPOSITION ORDER
Defendant–Appellant James Harris, Jr. (Harris) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment, entered on August 6, 2012, in the District Court of the First Circuit, Kâ ne‘ohe Division (District Court). The District Court convicted Harris of excessive speeding, in violation of Hawaii Revised Statutes (HRS) § 291C–105(a)(2) (2007).
The Honorable Linda K.C. Luke issued the Judgment.
HRS § 291C–105(a)(2) provides, “No person shall drive a motor vehicle at a speed exceeding ... [e]ighty miles per hour or more irrespective of the applicable state or county speed limit.”
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On appeal, Harris argues, among other things, that the District Court erred in convicting him where the court (1) lacked jurisdiction over the case because the charge failed to allege the mens rea, an essential element; and (2) abused its discretion in admitting Officer Mark Kutsy's (Officer Kutsy) speed reading without a sufficient foundation as to the officer's training and maintenance of the LTI [Laser Technology, Incorporated] 20–20 Ultralyte laser (Ultralyte).
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Harris's points of error as follows, and reverse.
With regard to first point of error, Plaintiff–Appellee State of Hawai‘i (State) issued Harris a citation for excessive speeding; the citation summoned Harris to appear in district court for arraignment; at the arraignment hearing, Harris waived the reading of the charge; prior to the commencement of trial, the State orally charged Harris; and the oral charge included the mens rea. The citation, coupled with the oral reading of the charge constituted the complaint. See Hawai‘i Rules of Penal Procedure Rule 5(b)(1) and 7(a), HRS § 291C–105(c) (Supp.2014). Because the oral charge included the mens rea, the complaint was not defective.
With regard to the second point of error, the District Court abused its discretion by admitting the speed-reading evidence because the State failed to establish that Officer Kutsy's training in the operation of the Ultralyte met the manufacturer's requirements. See State v. Amiral, 132 Hawai‘i 170, 178–79, 319 P.3d 1178, 1186–87 (2014) and State v. Gonzalez, 128 Hawai‘i 314, 326–27, 288 P.3d 788, 800–01 (2012). Without establishing such, the State failed to lay a sufficient foundation for admission of the speed reading. Absent the speed reading, there was insufficient evidence to support the conviction.
Given our holding, this court need not address Harris's remaining arguments. Therefore,
IT IS HEREBY ORDERED that the Notice of Entry of Judgment and/or Order and Plea/Judgment, entered on August 6, 2012, in the District Court of the First Circuit, Kâne‘ohe Division, is reversed.
CONCURRING OPINION BY NAKAMURA, C.J.
I concur in the majority's decision to reverse the defendant's excessive speeding conviction based on the lack of sufficient foundation regarding the officer's qualification to operate the laser gun because I believe this decision is dictated by existing precedent of the Hawai‘i Supreme Court. See State v. Amiral, 132 Hawai‘i 170, 178–79, 319 P.3d 1178, 1186–87 (2014) ; State v. Gonzalez, 128 Hawai‘i 314, 327, 288 P.3d 788, 801 (2012). However, I write separately to express my continuing disagreement with what I believe is an undue emphasis in these precedents on training requirements indicated by the laser gun's manufacturer in laying a sufficient foundation. See State v. Ramos, No. CAAP–12–0000138, 2014 WL 2694230, at *7–9 (Jun. 13, 2014) (Nakamura, C.J., concurring) (MOP); State v. Amiral, No. CAAP–11–0000374, 2013 WL 1829591, at *3–4 (Nakamura, C.J., dissenting) (SDO).
Although compliance with the manufacturer's training requirements is one way to show that the operator of a laser gun was qualified to operate the device, it is not the only way of making this showing. See State v. Eid, 126 Hawai‘i 430, 444–45, 272 P.3d 1197, 1211–12 (2012) ; State v. Amiral, 132 Hawaii 170, 180–81, 319 P.3d 1178, 1188–89 (2014) (Recktenwald, C.J., concurring). For example, in my view, the prosecution could establish that a police officer was qualified to operate the laser gun by demonstrating the officer's ability to use the laser gun to obtain accurate results for vehicles traveling at known speeds.
In Ramos, the State of Hawai‘i (State) represented that the manufacturer of the UltraLyte 20–20, the laser gun used in this case, had not set forth specific training requirements for the operation of the laser gun. See Ramos, 2014 WL 2694230, at *8. If this is true, it is easy to see why the State has struggled to lay a foundation that focuses on compliance with training requirements indicated by the manufacturer. As in this case, the officer can testify that he or she was tra‘ined to operate the device in accordance with the instructions set forth in the manufacturer's operating manual. But if the manual itself does not contain specific training requirements, the officer cannot say what the manufacturer's training requirements were or demonstrate compliance with the non-existent requirements. While the State could demonstrate that the officer's training met the requirements indicated by the manufacturer by hiring a manufacturer's representative to conduct or participate in the training, I do not see why hiring a manufacturer's representative should be required.
The record indicates that according to the manufacturer's manual, once the officer performs the four tests to assure the laser gun is in proper working order, the actual use of the gun to obtain a speed reading is not complicated. The officer aims the laser gun through the scope at the front or back license plate area of the vehicle. If the laser gun successfully locks onto the vehicle, it will emit a distinctive audible tone and display the speed reading; if the laser gun is unable to obtain a speed reading, it will not emit the distinctive tone and sometimes an error message will appear. Under these circumstances, no great amount of training would appear to be necessary to qualify a person to properly operate the laser gun.