Calibration Foundation Requisites Extend to Speed Check Certificates

State v. Fitzwater (HSC March 3, 2010)

Background. Fitzwater was charged with excessive speeding. HRS § 291C-105(a)(1). During his trial, Officer Ah Yat testified that he saw Fitzwater travelling on his motorcycle at a high rate of speed. Officer Ah Yat, also on a motorcycle, followed him. Officer Ah Yat paced Fitzwater for 0.2 of a mile and his odometer read 70 mph. in a 30 mph. zone.

Officer Ah Yat testified that his motorcycle underwent a "speed check," a test performed by a non-police entity known as Jack's Speedo in which the actual speed of the vehicle is calibrated against the speed read on the odometer. The speed check is accurate for up to one year. Officer Ah Yat testified that the speed check card was created with an understanding that it would be used to prosecute speeding cases. Fitzwater objected to the admission of a card issued by Jack's Speedo that recorded the recent speed check on the grounds that it was inadmissible hearsay and violated the confrontation clauses. The district court overruled. Fitzwater then objected to the card on the grounds that the State failed to lay adequate foundation. That too was overruled. The card was admitted into evidence, Fitzwater was found guilty, and the ICA affirmed.

Sufficient Objection to Foundation Made by Objecting to the Testimony at Trial. Fitzwater argued that the prosecution did not lay proper foundation establishing that the speedometer on Officer Ah Yat's motorcycle had been properly calibrated. The ICA refused to review this issue on the grounds that Fitzwater failed to preserve this on appeal. The HSC disagreed with the ICA's analysis. The HSC noted that it was obvious that Fitzwater was objecting to a lack of foundation regarding the calibration of the speedometer. "His objections were made in response to the State asking Ah Yat to describe the results of the speed check, essentially asking Ah Yat to testify that the results showed that the speedometer was accurate at various speeds." That, according to the HSC, was enough to preserve the issue on appeal. HRE Rule 103(a)(1) (when "the ruling is one admitting evidence," the party must timely object by "stating the specific ground of objection, if the specific ground was not apparent from the context"); State v. Long, 98 Hawai'i 348, 353-55, 48 P.3d 595, 600-602 (2002) .

State Failed to Establish Adequate Foundation for Properly Calibrated Mechanism. Generally before a measurement can be admitted at trial, the proponent must establish that the mechanism recording the measurement was properly calibrated. See State v. Wallace, 80 Hawai'i 382, 910 P.2d 695 (1996); State v. Manewa, 115 Hawai'i 343, 167 P.3d 336 (2007); State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009). The HSC found "no reason to apply different foundational requirements in the context of speed checks, since the underlying concerns about the reliability of the testing appear to be similar."

The HSC held that in order to 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 was performed in the manner specified by the manufacturer of the equipment used to perform the check, and (2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it." See State v. Assaye, 121 Hawai'i at 212-14, 216 P.3d at 1235-36; State v. Manewa, 115 Hawai'i at 355-57, 167 P.3d at 348-50; State v. Wallace, 80 Hawai'i at 412 n. 28, 910 P.2d at 725 n. 28. The HSC held that the speed check card nor the testimony of Officer Ah Yat established these foundational requirements. Thus, the district court erred in allowing Officer Ah Yat to testify about the accuracy of the odometer. Without this accuracy, there was insufficient evidence to find Fitzwater guilty of excessive speeding.

The Business Records Exception to the Hearsay Rule Applies. Hearsay statements are inadmissible. HRE Rule 802. However, a record "made in the course of a regularly conducted activity, at or near the time [of the incident] . . ., as shown by the testimony of the custodian or other qualified witness, or by certification" not excluded by the hearsay rule "unless the sources of information or other circumstances indicate a lack of trustworthiness." HRE Rule 803(b)(6). The HSC rejected Fitzwater's argument that the speed check card was made in anticipation of litigation and thus was not conducted "in the course of a regularly conducted activity."

In doing so, the HSC distinguished two U.S. Supreme Court cases. In Palmer v. Hoffman, 318 U.S. 109 (1943), the SCOTUS held that a signed statement made after a railroad accident was not conducted in the regular course and was inadmissible hearsay. Id. at 113-14. The signed statement, according to the HSC, was "inadmissible because they were created in response to a[n] historical occurrence, and in anticipation of litigation on that specific incident. Since they were created with the motivation of prevailing against a particular party, their trustworthiness was inherently questionable." The HSC also distinguished Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S.Ct. 2527 (2009), where the SCOTUS held that sworn statements by lab analysts were not made in the course of a regularly conducted activity. Id. at 2539-40. The SCOTUS explained that these statements were not traditional business records because they were "a record for the sole purpose of providing evidence against a defendant" and were "prepared specifically for use at [Melendez-Diaz's] trial[.]" Id.

According to the HSC, this is not signed statement ala Palmer nor an affidavit like Melendez-Diaz because the speed check card was not created specifically for the prosecution of Fitzwater. The HSC characterized the speed check card as a document created as the result of a regularly conducted test. See State v. Ofa, 9 Haw. App. 130, 135-36, 828 P.2d 813, 816-17 (1992).

What if You're in the Business of Creating Evidence? "Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman made that distinction clear." Melendez-Diaz, 129 S.Ct. at 2539. The HSC does not seem to dispute this rule. Instead, it distinguishes the SCOTUS cases on the grounds that the document here was created for a more general purpose than the evidence for use at Fitzwater's trial--even though it was clear that these kinds of documents were created with an understanding that they would be used in speeding prosecutions. Does this mean that a document can be created in the regular course and be admissible so long as it was not created for the single prosecution?

Laying the Foundation under HRE Rule 803(b)(6). A record can be authenticated by either the testimony of a custodian, "a qualified witness," or by certification pursuant to the rules of evidence or statute. HRE Rule 803(b)(6). The HSC noted that a "qualifying witnesses" need not possess personal knowledge about the record itself. The qualifying witness must be familiar "with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business." Weinstein's Federal Evidence § 803.08[8][a]. Here, Officer Ah Yat was a "qualifying witness" that could establish the necessary foundation.

The proponent of the record 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 activity"; and (3) the record was made "at or near the time" of the acts recorded. A. Bowman, HRE Manual § 803-3[5][B]. "The record must also survive the discretionary untrustworthiness exclusion of the rule." Id.

A Record is "Made in the Course of a Regularly Conducted Activity" by Incorporation and Reliability. The issue in this case, according to the HSC, was whether the prosecutor established that the speed check card was "made in the course of a regularly conducted activity." Relying on primarily federal cases, the HSC held 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, there are other indicia of reliability, and the requirements of HRE Rule 803(b)(6) are otherwise satisfied." See Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1344 (Fed. Cir. 1999). The HSC concluded that the record showed that the prosecution established that the card had been incorporated into HPD's own records, but the prosecution failed to show any other indicia of reliability. The HSC specifically stated that Officer Ah Yat's testimony did not 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 the card was reliable." Thus, the district court erred in admitting the speed check card.

Proving Reliability . . . So how do you prove that there was indicia of reliability? The HSC left a big hint in this case. It seems that the proponent must show that the entity creating the document--Jack's Speedo--had a reason to be accurate. This can be a business duty or subjection to criminal penalties if they submit false claims. Air Land Forwarders, Inc. v. United States, 172 F.3d at 1343-44. But a common indicia of reliability, according to the HSC, arises when the creating entity made the record out of a contractual obligation. White Indus. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1060 (W.D. Mo. 1985); People v. Markowitz, 721 N.Y.S.2d 758, 761 (N.Y. Sup. Ct. 2001). The HSC pointed out that in this case a contractual relationship between HPD and Jack's Speedo for the performance and documentation of the tests would have been "a significant factor."

Confrontation Clause not Violated by the Admission of the Speed Check Card. Although there was no reason to rule on the constitutional issue, the HSC felt a there was a need to provide guidance and prevent "serious judicial mistakes" in the future. Kapuwai v. City and County of HNL, 121 Hawai'i 33, 42, 211 P.3d 750, 759 (2009). The "accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The confrontation clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

The Confrontation Clause only applies to "testimonial" hearsay. Davis v. Washington, 547 U.S. 813, 821 (2006). Nontestimonial hearsay may be permitted under hearsay exceptions. Id.

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. Later, the SCOTUS held that affidavits prepared in anticipation of litigation were barred by the Confrontation Clause because they were in that "core class of testimonial statements." Melendez-Diaz v. Massachusetts, 129 S.Ct. at 2532, 2542.

Here, the HSC held that the speed check card was not prepared in anticipation of litigation of Fitzwater and was nontestimonial in nature. There was no constitutional violation.

Justice Acoba's Concurrence and Dissent. Justice Acoba concurred in the result only. He agreed with the majority that 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[.]" This failure of proof is determinative. Justice Acoba believed that the analysis should have ended there because "it is unwise to decide issues beyond that determination[.]" Justice Acoba analyzed the foundation-of-calibration issue and wrote that the remainder of the opinion was dicta and advisory.


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