Wednesday, October 30, 2013

HSC Drops Some (Personal) Knowledge on HPD

State v. Apollonio (HSC October 10, 2013)
Background. Ricardo Apollonio was charged with excessive speeding. HRS § 291C-105(a)(1). The complaint and oral arraignment failed to allege the requisite state of mind. In other words, there was nothing in the charging instrument indicating that the conduct was done intentionally, knowingly, or recklessly. At trial, the HPD officer testified that he cited Apollonio for excessive speeding after using the LTI 20-20 laser gun (check itout here).

The officer testified that he was using the laser gun and that he was trained to operate the gun. He said that his training consisted of “class work, going over the operator’s manual, and hands-on time with the laser itself.” His trainer was another HPD officer. The officer testified that the manual was provided by the manufacturer and Apollonio objected on the grounds that the officer lacked the personal knowledge and hearsay. The district court overruled the objection on the grounds that “those issues have been resolved in some other case.”

According to the officer, the manual identified four tests necessary to establish that the laser gun was working properly: the self-test, the display test, the scope alignment test, and the delta distance test. All four were done on the date in question and according to those tests, the gun was working properly. Then the officer testified that he stood on Kamehameha Highway in an area where the speed limit was 35 mph. He used the laser gun on Apollonio’s vehicle and clocked him in at 76 mph. On cross-examination, the officer admitted that during his training there were only HPD officers and he had no personal knowledge if anyone from the manufacturer of the laser gun was there.

Apollonio’s motion to strike the officer’s testimony based on a lack of foundation was denied. The district court found him guilty. Apollonio appealed. The ICA held that the foundation was adequate and affirmed. Apollonio petitioned for certiorari and for the first time raised the sufficiency of the charge.

The Defective Charge Warrants Remand for New Trial . . . First off, the HSC held that the charge was defective for the failure to include mens rea. The HSC made it clear that a knowing, intentional, or reckless state of mind is required in excessive speeding prosecutions. State v. Nesmith, 127 Hawaii 48, 56, 276 P.3d 617, 625 (2012). The HSC took the opportunity to make it clear that when the charge fails to include the state of mind, it simply cannot be construed to have reasonably stated an offense and so it must be dismissed without prejudice. Id. See also State v. Gonzalez, 128 Hawaii 314, 324, 288 P.3d 788, 798 (2012).

The Foundation Needed Before the Results of the Laser Gun can Come in. Before the results of the laser gun comes in at trial, the prosecution must show (1) that the accuracy of the laser gun was tested according to the procedures recommended by the manufacturer and (2) “the nature and extent of an officer’s training in the operation of a laser gun [met] the requirements indicated by the manufacturer.” State v. Assaye, 121 Hawaii 204, 213-215, 217, 216 P.3d 1227, 1236-1238 (2009).

Nothing Personal . . . The HSC examined whether it was enough for the officer to assume that the manual came from LTI. “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” HRE Rule 602. Personal knowledge means that the witness “perceived the event about which he testifies.” Commentary, HRE Rule 602. “[W]itnesses may not testify based on ‘guesswork’ or ‘speculation,’ such as when the witness concludes that a fact ‘must have’ been true.” Addison M. Bowman, Hawaii Rules of Evidence Manual § 602-1(5).

The officer’s testimony that the manual came from the manufacturer was based on the kind of “guesswork” and “speculation” Prof. Bowman was cautioning against. The problem, according to the HSC, was that the only people at the officer’s training were other officers. Nobody from LTI gave him the manual. He never met an LTI representative and he did not know personally if anyone from LTI provided these manuals to HPD. This was a lack of personal knowledge.

Appearances are Deceiving. On top of that, the officer’s testimony about the appearance of the manual did not arise to personal knowledge. The officer may have testified that the manual cover read “LTI 20-20 Operator’s Manual,” but that alone did not connect it to LTI. There was no evidence that LTI produced the manual or that the manual was written by anyone at LTI. Thus, the district court erred in finding sufficient evidence linking the manual to the manufacturer.

The Second Prong: Manufacturer-Approved Training, not just Training. The HSC also rejected the district court’s finding under the second prong too. Under this prong, the prosecution must establish that the officer’s training satisfied the laser manufacturer’s requirements. Assaye, 121 Hawaii at 215, 216 P.3d at 1238. According to the HSC, this requires a showing of both (1) the training requirements set forth by the manufacturer, and (2) the officer was actually trained by the operator of the laser gun. It is not enough for the officer to describe his training. There has to be a link to the manufacturer and none was presented here.

Chief Justice Recktenwald’s Dissent. The CJ agreed with the majority that the judgment must be vacated and remanded to be dismissed without prejudice because of the lack of mens rea. The CJ believed that when the challenges the charge for the first time on appeal, the appellate court’s review should be limited to plain error. That means that the appellant has to show prejudice by the error. The CJ pointed out that the previous cases in Nesmith and Gonzalez, the defendants challenged the sufficiency of the charge before the trial court. Here, Apollonio waited until after the district court convicted him and after the ICA affirmed. Apollonio raised the issue only for the first time in his petition for certiorari. Because he waited so long, the CJ would have construed the charge liberally under State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983) and State v. Wells, 78 Hawaii 373, 381, 894 P.2d 70, 78 (1985). Under that liberal construction, the CJ would have found the charge sufficient. He also believed that a deficient charge is not a jurisdictional matter thereby allowing the plain error rule. Justice Nakayama joined.

The Big Concurrence. The CJ (and Justice Nakayama) note that they agree with the majority about the foundation and it should be remanded for a new trial.

Friday, October 11, 2013

Failure to Clarify Theory of OUI Meant no Theory can Proceed on Remand

State v. Nakano (HSC October 9, 2013)
Background. Daniel Nakano was charged with operating a vehicle under the influence of an intoxicant. HRS § 291E-61. The complaint alleged that Nakano either committed the offense by having an amount sufficient to impair his normal faculties or guard against casualty in violation of HRS § 291E-61(a)(1) and or by operating a vehicle with a BAC of 0.08 or more in his blood or breath in violation of (a)(3). The complaint did not plead any state of mind. Nakano and the prosecution entered a plea agreement. Nakano requested a conditional plea allowing him to plead no contest to HRS § 291E-61(a)(1) and challenge the sufficiency of the plea on appeal. There was nothing in the change-of-plea form or during the colloquy that indicated if the plea included the other theory under (a)(3). The prosecution agreed to the conditional plea and the district court sentenced Nakano, but stayed it pending appeal.

On appeal, the ICA held that pursuant to State v. Nesmith, 127 Hawai'i 48, 276P.3d 617 (2012), the (a)(1) theory. The ICA vacated the judgment and then held on remand that the State could prosecute Nakano for violation of (a)(3). Nakano moved to reconsider on the grounds that he never pleaded no contest under the (a)(3) theory and the ICA denied the motion in part. Nakano petitioned for cert.

Have an A-1 Day. The HSC first held that the ICA correctly found a Nesmith violation. The complaint did not include a state of mind for the (a)(1) violation—operating with “an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty.” That rendered the charge insufficient and must be dismissed without prejudice. State v. Spearman, 129 Hawaii 146,151-52, 296 P.3d 359, 364-65 (2013). The issue for the HSC is whether the prosecution could move forward on remand with the (a)(3) violation. It held it could not without breaching the plea agreement.

A Plea Agreement is a Contract. “A plea agreement is essentially a contract entered into between the State and the defendant, in which the defendant agrees to plead guilty or no contest to a charge and to forego certain constitutional rights (including the right to trial) in exchange for which the State promises some form of leniency or cooperation in prosecution.” State v. Adams, 76 Hawaii 408, 412, 879 P.2d 513, 517 (1994). The prosecution “is bound by the terms of a plea agreement which serves as the inducement or consideration for a defendant’s guilty or no-contest plea.” State v. Abbott, 79 Hawaii 317, 319, 901 P.2d 1296, 1298 (App. 1995). And when the plea is the result of a promise by the prosecution “so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

The Prosecution has to Uphold its End of it. Neither the change-of-plea form nor the oral colloquy indicated if Nakano was pleading no contest for just the (a)(1) method or the (a)(3) method or both. Nonetheless, the prosecution agreed to conditional plea pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 11(a)(2). Because the record did not have any indication if the prosecution intended to give up the proceedings under (a)(3), that term of the plea agreement had to be construed by the HSC.


According to the HSC, this was “at the very least” an ambiguous term. The “plea agreement containing terms that are ambiguous or reasonably susceptible to different interpretations is strictly construed in favor of the defendant.” State v. Abbott, 79 Hawaii at 320, 901 P.2d at 1299. Here, the HSC held that the agreement prohibited the State from going forth on remand with an (a)(3) prosecution. According to the HSC, if it were to allow the State to proceed on the (a)(3) prosecution, it would not fulfill the promise it made to Nakano. A breached plea agreement is more than a civil violation. It “implicates due process, and the interests of justice.” State v. Miller,122 Hawaii 92, 101, 223 P.3d 157, 166 (2010). And so, on remand, the State cannot prosecute Nakano on the (a)(3) violation.