State v. Gonzalez (HSC November 28, 2012)
Background. Jose R. Gonzalez was charged with excessive speeding. HRS § 291C-105(a). At his arraignment, he was orally charged with the following:
[Gonzalez,] you're charged with on or about the 14th of January, 2011, in the City and County of Honolulu, State of Hawaii, you did drive a motor vehicle at a speed exceeding the applicable State of Hawaii or county speed limit by 30 miles per hour or more and/or 80 miles per hour or more irrespective of the applicable State of Hawai'i or county speed limit. By doing so you violated Section 291C-105(a)(1) and/or (a)(2) of the Hawai'i Revised Statutes.
Gonzalez orally moved to dismiss the charge on the grounds that the charge failed to state the requisite state of mind. The prosecution argued that state of mind is not required. The motion was denied.
At trial, HPD Officer Jeremy Franks testified that on the H-2 Freeway just before the Mililani Mauka off-ramp he used his Laser Technology Incorporated (LTI) Ultralyte 100 Laser to measure an oncoming vehicle's speed. The laser gun clocked the vehicle in at 96 m.p.h. in a 55-mph zone. Officer Franks stopped the vehicle. Officer Franks testified that he had been trained in using the laser gun and had verified the accuracy of the gun on the day he used it on the freeway. He explained that his training comprised of four hours of operational training in January 2003 at the police academy and more training by "LTI representatives" and a retired HPD sergeant, Bobby Lung. Officer Franks also testified that he had a manual on the laser gun, which requires four separate tests that must be done before it is used. Officer Franks testified that all four tests were done before using the laser gun. On cross-examination, Officer Franks admitted that the manual with the four tests for the laser gun was not the same manual that came with the laser gun. Nonetheless, the manual he used did have the HPD seal and the LTI copyright.
Gonzalez testified. He testified that he was a military police officer in the United States Army and on that day he was driving next to a black jeep which was driving erratically. Gonzalez testified that he sped past it to get away from it. He also testified that his own vehicle had problems with the transmission and whenever he would try to drive faster than fifty-five m.p.h., the vehicle would start to shake. He testified that on the day he was pulled over, the vehicle was not shaking. The district court found Gonzalez guilty as charged and added that it found that the prosecution had proven a "reckless" state of mind.
Although there is no mention of it in the opinion, there is no analysis by the ICA or even mention of the ICA. This suggests that the appeal was transferred directly to the HSC.
The Prosecution Waived the Argument on Appeal that Excessive Speeding is a Strict Liability Because it did not Raise the Issue Before the Trial Court (Even if the Prosecution did Prevail). The HSC first examined a procedural point: whether the prosecution is precluded from raising the argument that excessive speeding is a strict liability offense for the first time on appeal. It is well-settled that "the failure to properly raise an issue at the trial level precludes a party from raising that issue on appeal." State v. Kikuta, 125 Hawai'i 78, 89, 253 P.3d 639, 650 (2011). At the same time, however, the HSC noted that this usually does not apply to the party that has prevailed below.
Nonetheless, the HSC noted that "a party can waive an argument by failing to raise it at trial even if the party ultimately prevails on that issue." See Id., State v. Harada, 98 Hawai'i 18, 30, 41 P.3d 174, 186 (2002); State v. Rodrigues, 67 Haw. 496, 498, 692 P.2d 1156, 1158 (1985). Here, the HSC noted that the prosecution had the chance to argue that HRS § 291C-105(a) was a strict liability offense when Gonzalez moved to dismiss the charge on the grounds that no mens rea had been articulated. It did not. Instead, it argued that mens rea was not an element and did not need to be included in the charge. The prosecution cannot, according to the HSC, now raise this issue for the first time on appeal.
Strict Liability v. No Mens Rea: Apparently it's Different. It looks like the HSC is really tightening up its analysis of waived arguments for appellate purposes. Here, the HSC held that the prosecution waived its argument that excessive speeding is a strict liability offense because it did not raise that particular issue before the district court. This waiver may have happened even though the prosecution prevailed below and even though the prosecution argued that mens rea is not an element of the offense and, thus, need not be charged. So what exactly was the issue raised below?
It looks like the HSC has distinguished the issue of whether an offense has mens rea as an element from the issue of whether the same offense is a strict liability offense. Isn't this the same issue? Isn't an offense without a state of mind a strict liability offense? Apparently not. But what makes it even more difficult to figure out is that back in April, the HSC expressly noted that mens rea must be pleaded even though it is by definition not an element of the offense. Does that mean that there is no argument for the prosecution left to pursue on appeal because the district court prosecutor argued that mens rea was not an element and therefore needn't be pleaded as opposed to arguing that the offense was a strict liability offense requiring no proof of mens rea and therefore needn't be pleaded? Guess so.
Excessive Speeding Offense is Not a Strict Liability Offense. The HSC, cognizant that this issue would arise again and soon, examined the issue anyways. Criminal offenses found outside the Hawai'i Penal Code require proof of a state of mind unless "a legislative purpose to impose absolute liability plainly appears." HRS § 702-212. The commentary to the statute explains that in most cases, state of mind is required and there are "relatively few instances when absolute or strict liability will be recognized." Strict liability applies to offenses only if the statute "expressly impose[s] absolute liability," State v. Eastman, 81 Hawai'i 131, 140, 913 P.2d 57, 60 (1996), or (2) the legislative history "unequivocally indicates" the intention to get rid of the state-of-mind requirement. State v. Buch, 83 Hawai'i 306, 316, 926 P.2d 599, 607 (1996). According to the HSC, neither the statute's language nor history show any intention to eliminate the mens rea requirement. Thus, the prosecution must prove that in excessive speeding cases, the defendant acted intentionally, knowingly, or recklessly. HRS § 702-204.
In light of that holding, the prosecution conceded that the mens rea language needed to be part of the charge and should be dismissed without prejudice. State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012).
There was Adequate Foundation to show that the Laser Gun was Accurate. The HSC also examined the evidentiary issues raised at trial because of the likelihood of a retrial. Before the reading of a laser gun can be admitted at trial, the prosecution must lay a foundation that (1) that particular laser gun was complied with "accepted procedures" in testing its accuracy that have been recommended by its manufacturer and (2) the officer who used the laser gun met the training requirements approved by the manufacturer. State v. Assaye, 121 Hawai'i 204, 213-15, 216 P.3d 1227, 1236-38 (2009).
The HSC held that the prosecution laid enough foundation to show the laser gun was accurate. The manual used by Officer Franks may not have been the one provided by the manufacturer. However, the manual with the four tests was reviewed by LTI personnel, had the LTI copyright on it, and information from LTI personnel had been covered in the manual. That was enough for the district court and the HSC held that the district court did not abuse its discretion.
. . . but not Enough Foundation to show Proper Training. Establishing manufacturer-approved training is another story. Assaye requires evidence that "the nature and extent of an officer's training in the operation of the laser gun meets the requirement indicated by the manufacturer." Id. at 215, 216 P.3d at 1138. The HSC broke this requirement down into two parts: proof of "(1) the requirements indicated by the manufacturer, and (2) the training actually received by the operator of the laser gun."The prosecution here showed only the training actually received by Officer Franks. There was no evidence of what the manufacturer required. There was no evidence establishing what exactly was recommended by the manufacturer.