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Electronically Filed
Supreme Court
SCWC-11-0000374
13-FEB-2014
07:51 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
JOHN N. AMIRAL, Petitioner/Defendant-Appellant.
SCWC-11-0000374
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000374; CASE NO. 1DTI-10-123021)
February 13, 2014
ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
CONCURRING, WITH WHOM NAKAYAMA, J. JOINS
OPINION OF THE COURT BY POLLACK, J.
Petitioner/Defendant-Appellant John Amiral (Amiral)
seeks review of the Intermediate Court of Appeals’ (ICA) May 31,
2013 Judgment (ICA Judgment), filed pursuant to its April 30,
2013 Summary Disposition Order, affirming the Notice of Entry of
Judgment and/or Order and Plea/Judgment (Judgment) entered by the
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District Court of the First Circuit, #Ewa Division (district
court) on April 12, 2011. For the reasons set forth herein, we
vacate the ICA Judgment and the district court Judgment and
remand the case to the district court for further proceedings.
I. BACKGROUND
A. Pre-Trial Proceedings
On July 26, 2010, Honolulu Police Department (HPD)
Officer Zenas Ondayog issued a citation to Amiral for driving his
vehicle sixty-five miles per hour in an area where the posted
speed limit was fifty miles per hour.
The State of Hawai#i (State) filed a Notice of Traffic
Infraction on July 28, 2010, charging Amiral with the offense of
Exceeding the Speed Limit in violation of Hawai#i Revised
Statutes (HRS) § 291C-102 (2007).1
Amiral submitted via mail his Answer to Notice of
Traffic/Parking Infraction form (Answer), which was filed on
1
HRS § 291C-102 provides:
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; or
(2) A motor vehicle at a speed less than the minimum
speed limit, where the maximum or minimum speed limit is
established by county ordinance or by official signs
placed by the director of transportation on highways
under the director's jurisdiction.
(b) If the maximum speed limit is exceeded by more than ten miles
per hour, a surcharge of $10 shall be imposed, in addition to any
other penalties, and shall be deposited into the neurotrauma
special fund.
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September 1, 2010. In his Answer, Amiral denied the charge and
contested it by submission of a written statement.
In his written statement, Amiral contended that Officer
Ondayog wrongfully issued a citation to him, as the Officer
failed to indicate on the citation that the “device/speedometer
was accurate, tested, [and] working properly.”2
On October 7, 2010, the district court held a “Chambers
Review” regarding the charge against Amiral for Exceeding the
Speed Limit.3 Having reviewed Amiral’s written statement, the
district court ruled in favor of the State and issued its
Judgment and Notice of Entry of Judgment. The district court
imposed a $75 fine, a $7 driver education assessment, a $10
neurotrauma surcharge, and a $40 administrative fee.
Amiral filed a Request for Trial on November 8, 2010.
December 8, 2010, Amiral sent the State a Request for Disclosure,
requesting all documents related to Officer Ondayog’s Laser
Technology Incorporated (LTI) UltraLyte 20-20 laser gun
(UltraLyte), including the manual, maintenance logs, and Officer
Ondayog’s training in the use of the UltraLyte.
2
In his written statement, Amiral also contended that Officer
Ondayog: (1) erred in writing on the citation that Amiral was a “Navy
Captain” as his uniform reflected that he was a “Navy Lieutenant”; (2) failed
to properly identify himself on the citation as his name and identification
number were illegible; and (3) was not “professional” in his behavior. Amiral
also attached copies of his (1) military orders to attend an annual training
in Hawai#i on the date of the citation, (2) car rental invoice, (3) driving
abstract for the State of Virginia, and (4) citation.
3
The Judgment and Notice of Entry of Judgment indicated that Amiral
was not present at the October 7, 2010 hearing.
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After receiving Amiral’s Request for Disclosure, the
State responded that the information requested by Amiral was
either not available to their office or not discoverable under
Hawai#i Rules of Penal Procedure (HRPP) Rule 16 (2010).
Amiral filed a Motion to Compel arguing that the
documents he requested from the State were discoverable under
HRPP Rule 16 as material that “tends to negate the guilt of the
defendant as to the offense charged.”
On January 11, 2010, the district court held a hearing
on Amiral’s Motion to Compel and ordered that the State allow
defense counsel to review and make one copy of the following:
(1) “Marksman instructor manual”; (2) “Marksman (trainee)
manual”; (3) “LTI UltraLyte operator (user) manual”; and (4) “LTI
Marksman operator (user) manual.”
B. Trial Proceedings
The district court held a bench trial on April 12,
2011.4 Prior to the commencement of trial the district court
addressed outstanding discovery matters. Defense counsel argued
that although he had a copy of the UltraLyte manual from a prior
trial, the State failed to produce all of the other documents
that were requested by Amiral’s Motion to Compel. The district
court found that since defense counsel had a copy of the manual
4
The district court allowed Amiral’s counsel to waive Amiral’s
presence because Amiral was stationed in the State of Virginia at the time of
trial.
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and Amiral’s motion had been ruled upon by the prior judge, it
was not necessary to address the discovery issue further and
proceeded with trial.
Officer Ondayog, who testified for the State, was the
only witness. At approximately 7:34 a.m., on July 26, 2010, he
was conducting speed enforcement of the westbound traffic along
Moanalua Freeway, where the posted speed limit was fifty miles
per hour. At the same time, Amiral was driving his vehicle
westbound on Moanalua Freeway. As Amiral’s vehicle approached
his vantage point, Officer Ondayog observed that Amiral’s vehicle
was traveling at a higher rate of speed than the other vehicles
in the flow of traffic and aimed his LTI UltraLyte at Amiral’s
vehicle.
Officer Ondayog indicated that in January 2002 he was
trained and certified in the use of the UltraLyte by HPD Sergeant
Ryan Nishibun at the police academy. On November 4, 2010,
Officer Ondayog attended a “refresher course” on the use of the
UltraLyte that was taught by HPD Officers Jeremy Franks and
Ikaika Lee.
Both the training at the police academy and the
“refresher course” consisted of a four-hour “lecture class” on
the mechanics of the UltraLyte and four hours of “practice.”
Officer Ondayog recalled that there were thirty-two trainees in
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his class and none of the participants “failed” the course, as
the course did not include a written or practical examination.
Officer Ondayog testified that he received a manual as
a part of his training. He did not indicate whether the manual
that he had been given and used for comparison was a: 1)
“Marksman instructor manual”; (2) “Marksman (trainee) manual”;
(3) “LTI UltraLyte operator (user) manual”; or (4) “LTI Marksman
operator (user) manual.”
The prosecutor asked Officer Ondayog if the
instructions in the manual specified how to test the UltraLyte to
verify that it was accurate and operating properly. Defense
counsel objected on the basis of foundation and hearsay, arguing
that Officer Ondayog did not have personal knowledge of the
instructions in the manual. The district court initially
sustained the objection, but later overruled the objection on the
basis that “this is foundation for foundation because the
training itself is foundation.”
Over objection, Officer Ondayog testified that the
instructions in the manual specified the tests to ensure that the
UltraLyte is “working accurately and being operated properly,”
and his training in the use of the UltraLyte was based upon those
instructions in the manual.
Officer Ondayog stated that he was trained to conduct
the following four tests in order to verify that the UltraLyte is
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working properly: (1) the “self-test”; (2) the “display test”;
(3) the “scope alignment test”; and (4) the “delta distance
velocity test” (delta/distance test) or the “calibration test”
(collectively “four tests”) The “self-test” confirms that the
lights on the display of the UltraLyte are working properly. In
order to conduct the “self-test,” Officer Ondayog explained that
“you need to depress the trigger of the [UltraLyte]. Four
numerical 8’s will display. If there is a numerical like 5-0 or
a 5-5, . . . the [display of the UltraLyte] is not working
accurately.”
The “display test” verifies that the lights on the
display and the “test mode button” of the UltraLyte are working
properly. The “display test” is conducted by pressing the “test
mode button” on the UltraLyte. If a “TT” symbol and “four
numerical 8’s” appear on the display, then the “test mode button”
and the lights on the display are working properly. Officer
Ondayog testified that he conducts the “display test” before and
after his shift.
The “scope alignment test” confirms that “the red dot
within the center of the scope” and the UltraLyte laser are
aligned. In order to conduct the “scope alignment test,” Officer
Ondayog aims and holds the trigger of his UltraLyte at a light
pole while panning the pole horizontally and vertically. If the
scope and laser are aligned, the UltraLyte makes a high-pitched
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clicking sound, which is the same sound the device makes while it
is tracking a vehicle. Officer Ondayog acknowledged that
“hearing different pitches is a subjective thing as opposed to if
a green light came on and it said [the UltraLyte was] working[.]”
Officer Ondayog testified that he conducts the “scope alignment
test” prior to his shift and after every traffic stop, and has
never had to adjust the scope of his UltraLyte.
With respect to the delta/distance test, Officer
Ondayog utilizes two concrete pillars and a marked parking stall
on the “P1” level of the parking structure at the HPD main
station. Officer Ondayog testified that he personally measured
the distances between the marked parking stall and the two
pillars and found that the distance to the nearest pillar was 130
feet and the distance to the furthest pillar was 155 feet.
Officer Ondayog explained that based on an internal calculation
of the two fixed distances, the UltraLyte should display “50” to
verify the accuracy of the device.
Defense counsel then had Officer Ondayog read part of
the manual, which indicated that “[f]or uniformity [in conducting
the delta/distance test], [the fixed distance] should be 175 feet
from the shooting mark.” Officer Ondayog acknowledged that the
“[pillars] were [constructed] to hold up the parking garage,”
rather than to conduct the delta/distance test on his UltraLyte.5
5
Officer Ondayog also testified that he had not performed the “time
over distance checks” as he was not instructed on those procedures during his
(continued...)
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As to the calibration of his UltraLyte, Officer Ondayog
testified that had not sent his UltraLyte to the manufacturer for
maintenance since receiving the device in 2009.6 During this
period, he also had not performed any maintenance on the
Ultralyte other than to change the battery. Officer Ondayog
explained, “I’m not an employee. I don’t calibrate. I just
conduct those four tests, that’s it.”
Officer Ondayog acknowledged that the UltraLyte was an
electronic device that required software “to figure out what’s
going in to spit out some number on the display[,]” but he did
not know what type of software his UltraLyte required in order to
work properly or how the software works. Officer Ondayog
testified that he had neither checked for the internal software
revision number nor did he know how to locate it. Officer
Ondayog also had not sent his UltraLyte to the manufacturer for a
software upgrade.
Officer Ondayog elaborated upon the usage and storage
of his UltraLyte. On average, he stops more than forty cars a
day when he conducts speed enforcement. Officer Ondayog
testified that he had measured the speed of “hundreds of
vehicles, maybe thousands[.]” When he is not using his
5
(...continued)
training. With regard to the “instrument confidence check” on the UltraLyte,
Officer Ondayog could not recall if the manual contained any information as to
that procedure.
6
The device had previously been assigned to another officer.
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UltraLyte, the device is stored in the trunk of his duty
motorcycle.
On the date of the incident, Officer Ondayog performed
the four tests on his UltraLyte before his shift, “in accordance
with LTI’s recommended procedures[.]” Defense counsel objected
based on lack of foundation, and the district court overruled the
objection. Officer Ondayog testified that based on the results
of the four tests he determined that the UltraLyte was in “good
working condition.” Upon triggering his UltraLyte on Amiral’s
vehicle, the device indicated that Amiral’s vehicle was traveling
sixty-five miles per hour. Although there were other vehicles in
the area, Officer Ondayog testified that if the UltraLyte
detected more than one vehicle then the device would display an
error sign.
Officer Ondayog indicated that he operated the
UltraLyte in accordance with his training and the manufacturer’s
recommended procedures when he triggered the UltraLyte on
Amiral’s vehicle. Again, defense counsel’s objection as to lack
of foundation was overruled.
On cross-examination, Officer Ondayog testified that he
did not have personal knowledge of (1) “any tests that can be
conducted on the [UltraLyte] that the manufacturer recommends
that ensures it’s operating as intended[,]” (2) “how those tests
worked[,]” or (3) the “internal operation of the [UltraLyte and]
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how it works.” Officer Ondayog’s knowledge of the four tests was
based on his reading of the manual and his training.
Defense counsel then made an oral motion to strike
Officer Ondayog’s testimony on the basis that Officer Ondayog
lacked independent knowledge that the four tests were recommended
by the manufacturer to ensure that the UltraLyte was accurate and
working properly. The district court allowed the State to
conduct its redirect examination of Officer Ondayog before ruling
on the defense’s motion.
During redirect and re-cross examinations, Officer
Ondayog testified regarding the sound that the UltraLyte makes
when it is tracking a vehicle and the error sign the device
displays when more than one vehicle is detected.
The State and defense rested their cases, without the
court having ruled on the motion to strike.
The State argued in closing argument that Officer
Ondayog’s testimony satisfied evidentiary requirements under
State v. Assaye, 121 Hawai#i 204, 216 P.3d 1227 (2009). The
State maintained that Officer Ondayog tested and operated the
UltraLyte according to the manufacturer’s recommended procedures
The State maintained that Officer Ondayog was not
required to understand the “internal mechanisms and software” of
the UltraLyte. Additionally, the State argued that the pillars
Officer Ondayog utilized to perform the delta/distance test were
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“reasonably close” to the manufacturer’s recommended distance of
175 feet.
Thus, the State contended that it had proven by a
preponderance of the evidence that Amiral’s vehicle was traveling
sixty-five miles per hour in an area where the speed limit was
fifty miles per hour.
The defense argued in response that Officer Ondayog did
not have personal knowledge that the four tests were recommended
by the manufacturer and that the training Officer Ondayog
received was inadequate, as there was no written or practical
examination.
The defense also contended that the State did not
produce evidence that the UltraLyte was working properly based on
the following: (1) the evidence of the results from the “self-
test” and the “display test” were irrelevant as they did not
verify that the UltraLyte was accurate; (2) Officer Ondayog’s
UltraLyte had never been serviced by the manufacturer for
software upgrades or maintenance since it was issued to him;7 (3)
the scope alignment test was arbitrary because it was based on
Officer Ondayog’s subjective hearing and was conducted using a
7
Defense counsel also argued that the State “need[s] to produce
other things [as to the maintenance of the UltraLyte] because apparently
they’re made once and they never need upkeep other than a battery. They never
need any maintenance.” Defense counsel observed that the UltraLyte software
was also suspect because “[it] apparently put some software engineers out of
business because whenever they designed this thing in the 90s nobody’s ever
had to improve on the software. There’s no updates. There’s no codes. There
is nothing.”
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random light pole that Officer Ondayog could not recall the
distance for; and (4) Officer Ondayog failed to perform the
delta/distance test according to the manufacturer’s recommended
distance. Thus, the defense contended that the State did not
satisfy the evidentiary requirements under State v. Manewa, 115
Hawai#i 343, 167 P.3d 336 (2007) and Assaye, 121 Hawai#i 204, 216
P.3d 1227.
The district court found that although Officer Ondayog
used a 155-foot marker to conduct the delta/distance test, it was
not a “fatal flaw,” as the distance recommended by the manual was
not a requirement and the UltraLyte would have to be accurate at
any distance. The district court also found that Officer Ondayog
was qualified to operate his UltraLyte, and the State therefore
established a sufficient foundation as to the speed reading.
Accordingly, the district court denied the defense’s motion to
strike Officer Ondayog’s testimony and held that the State met
its burden of proof by a preponderance of the evidence that
Amiral’s vehicle was traveling sixty-five miles per hour in an
area where the speed limit was fifty miles per hour.
The district court imposed a $75 assessment, a $40
administrative fee, a $7 application assessment, and a $10
neurotrauma fee.
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On April 12, 2011, the district court entered its
Notice of Entry of Judgment and/or Order and Plea/Judgment
reflecting its disposition at trial.
On May 3, 2011, Amiral filed a Notice of Appeal to the
ICA.
C. Appellate Proceedings
Amiral filed an Opening Brief with the ICA and raised
the following point of error on appeal:
(a) The [district] court erred when it failed to sustain
defendant counsel’s objection pertaining to lack of
foundation and hearsay to the admission of the laser gun
evidence.
Amiral argued that the district court erred in failing
to sustain defense counsel’s foundation and hearsay objections to
the admission of the speed reading from Officer Ondayog’s
UltraLyte. Amiral contended that the State did not provide
sufficient evidence demonstrating that Officer Ondayog’s
UltraLyte was working properly on the date of the citation.
Amiral maintained that the State failed to establish that Officer
Ondayog had personal knowledge as to whether the four tests were
recommended by the manufacturer or as to how the four tests
worked. Amiral also argued that the delta/distance test was not
conducted according to the manufacturer’s recommendation.
Additionally, Amiral argued that the State failed to
prove that Officer Ondayog was properly trained and certified in
the use of the UltraLyte as required under Assaye. Amiral
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maintained that there was no evidence as to the “nature and
extent” of Officer Ondayog’s training or that the training
satisfied the manufacturer’s requirements. Amiral also asserted
that the evidence in the record demonstrated that the training
did not include a written or practical examination to verify that
Officer Ondayog had acquired the required knowledge to correctly
operate his UltraLyte and conduct the four tests.
Finally, Amiral contended that the State failed to
establish that Officer Ondayog’s UltraLyte was properly
calibrated as he did not have personal knowledge of the procedure
to calibrate the UltraLyte or knowledge that his UltraLyte was
calibrated by the manufacturer. Accordingly, Amiral argued that
the speed reading should not have been admitted into evidence
under Manewa, as Officer Ondayog admitted that he had not
submitted his UltraLyte to the manufacturer for maintenance or
calibration since he had been assigned the device.
In its Answering Brief, the State argued that the
district court did not abuse its discretion in finding that there
was sufficient foundation for the admission of the speed reading
into evidence. The State maintained that Officer Ondayog’s
testimony demonstrated that (1) he was provided the UltraLyte
manual, and (2) his training in the use of the UltraLyte was
based on the manufacturer’s recommended procedures in the manual.
The State therefore contended that there was sufficient evidence
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demonstrating that Officer Ondayog’s training and experience
satisfied the manufacturer’s requirements.
The ICA issued its Summary Disposition Order on April
30, 2013, which included a dissenting opinion by the Honorable
Chief Judge Craig H. Nakamura. The majority opinion found that
Officer Ondayog’s testimony that he had conducted the four tests
on his UltraLyte in accordance with the manufacturer’s
recommended procedures established that he was sufficiently
trained in the use of the UltraLyte. The majority also found
that Officer Ondayog’s testimony established that the nature and
extent of his training met the requirements indicated by the
manufacturer.
The majority distinguished this case from State v.
Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012), where the record
was silent as to what type of training was recommended by the
manufacturer. 128 Hawai#i at 327, 288 P3d at 801. The majority
found that Officer Ondayog’s testimony was similar to the
testimony of the chemist in State v. Manewa, 115 Hawai#i 343, 167
P.3d 336 (2007), “who testified that he tested the device and
determined that ‘the parameters are within the manufacturer’s
specification[s.]’” The majority further noted that the Assaye
court relied upon the chemist’s testimony in Manewa in stating
that “the ‘expert’s personal knowledge that was adduced through
his testimony at trial was sufficient to establish that the [gas
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chromatograph mass spectrometers] were in proper working
condition.’”
In addition, the majority found that under Assaye
Officer Ondayog’s testimony of the manufacturer’s recommended
procedures, which according to the majority was based upon his
personal knowledge of the contents of the manual reflecting those
procedures, was not hearsay. Furthermore, as to calibration, the
majority found that the evidence showing that the device had been
tested in accordance with the manufacturer’s procedures was
sufficient, and under the majority opinion in Assaye no further
showing of inspection or servicing by the manufacturer was
necessary.
Consequently, the majority rejected Amiral’s contention
that the district court abused its discretion in admitting the
speed reading.
The dissent cited to State v. Eid, 126 Hawai#i 430,
443-33, 272 P.3d 1197, 1210-11 (2012), which held that in order
to lay an adequate foundation that the speed reading was
sufficiently reliable to warrant admission, the prosecution was
required to show that (1) the UltraLyte was in proper working
order (the proper functioning prong), and (2) the officer who
used the UltraLyte was qualified to operate it (qualified
operator prong). The dissent found that Officer Ondayog’s
testimony that he conducted the four tests set forth in the
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operating manual to determine whether the UltraLyte was in good
working order satisfied the proper functioning prong. However,
the dissent stated that the State failed to distinguish between
the proper functioning prong and the qualified operator prong.
As to the qualified operator prong, the dissent found
that the State only presented Officer Ondayog’s “conclusory
assertion that he was trained to operate the laser gun according
to the manufacturer’s recommended procedure.” Inasmuch as Amiral
had adequately raised an objection based on lack of foundation
regarding Officer Ondayog’s competency to use his UltraLyte, the
dissent reasoned that the State was required under State v.
Gonzalez to introduce more specific evidence from which the
conclusion that Officer Ondayog was qualified to operate the
UltraLyte could be drawn.
The dissent observed that, in addition to the
manufacturer’s training requirements, the State could have
provided evidence that (1) Officer Ondayog was tested and
demonstrated his ability to operate the UltraLyte to obtain
accurate speed readings, or (2) the manual contains specific
instructions on how to operate the UltraLyte and Officer Ondayog
demonstrated competence in following those instructions.
The dissent concluded that without such evidence the
State did not satisfy the qualified operator prong and therefore
failed to lay an adequate foundation for the admission of the
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speed reading. Without evidence of the speed reading, the
evidence was insufficient to prove that Amiral committed the
traffic infraction of Exceeding the Speed Limit.
Pursuant to the majority opinion, the ICA affirmed the
district court Judgment.
D. Application for Writ of Certiorari
On June 4, 2013, Amiral filed an Application and
presented the following question:
(a) Did the [ICA] err when it ruled that the [district] court did
not err when it found that sufficient foundation had been laid
for the laser gun reading?
Amiral argues that the ICA erroneously upheld the
district court’s finding that a sufficient foundation had been
established for the admission of the speed reading into evidence.
Amiral contends that the State failed to produce
evidence of the manufacturer’s training requirements to operate
the UltraLyte or that Officer Ondayog’s training met those
requirements as required by Gonzalez. Thus, Amiral argues, there
was no evidence as to the “nature and extent” of Officer
Ondayog’s training as required by Assaye.
Amiral also argues that the State failed to prove that
Officer Ondayog’s UltraLyte was calibrated as there was no
evidence that he was trained or qualified to calibrate his
UltraLyte. Amiral maintains that there was no evidence of the
manufacturer’s recommendations as to the calibration and
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maintenance of the UltraLyte. Further, Amiral asserts that there
was no evidence demonstrating that the UltraLyte was accurate as
required by Manewa because the device had not been submitted to
the manufacturer for calibration or maintenance services since
Officer Ondayog was assigned the device.
Lastly, Amiral argues that the State failed to produce
evidence that the UltraLyte was working properly on the date of
the citation. Amiral maintains that Officer Ondayog did not have
personal knowledge as to whether the four tests were recommended
by the manufacturer or how the tests worked. Therefore, Officer
Ondayog’s testimony was based upon inadmissible hearsay.
The State did not file a Response.
II. DISCUSSION
A.
Amiral contends that the ICA erred in affirming the
district court’s finding that Officer Ondayog was qualified to
operate his UltraLyte, as there was no evidence that his training
met the manufacturer’s requirements.
In order to establish a sufficient foundation for the
admission of a speed reading from a laser gun, the prosecution is
required to produce evidence that the “nature and extent of an
officer’s training in the operation of the laser gun meets the
requirements indicated by the manufacturer.” State v. Assaye,
121 Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009). “[T]o meet
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this burden the prosecution must establish both (1) the
requirements indicated by the manufacturer, and (2) the training
actually received by the operator of the laser gun.” Gonzalez,
128 Hawai#i at 327, 288 P.3d at 801.
In Gonzalez, the State provided evidence regarding the
extent of the training that the officer who operated the laser
gun had received. Id. The evidence demonstrated the officer
received four hours of training in 2003, and further training in
2009 and 2010. Id. However, the record was silent as to “what
type of training is recommended by the manufacturer.” Id. The
court in Gonzalez, therefore held that “[w]ithout a showing as to
the manufacturer’s recommendations, the court could not possibly
have determined whether the training received by [the officer]
met ‘the requirements indicated by the manufacturer.’” Id.
Similarly in this case, Officer Ondayog testified that
he received training in January 2002 and November 2010. Both
courses consisted of a four-hour lecture class on the mechanics
and operation of the UltraLyte and four hours of practice.
Officer Ondayog also testified that his training “was based upon
those instructions” in the manual. The ICA majority opinion held
that “Officer Ondayog’s testimony was sufficient to establish
that the nature and extent of Officer Ondayog’s training in the
operation of a laser gun meets the requirements indicated by the
manufacturer.” The majority opinion differentiated this case
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from Gonzalez, stating that in Gonzalez “the record [was] silent
as to what type of training is recommended by the manufacturer.”
However, as the ICA dissenting opinion notes, “Officer
Ondayog’s conclusory assertion that he was trained to operate the
laser gun according to the manufacturer’s recommended procedure”
is insufficient to demonstrate that he was qualified to operate
the laser gun. As further noted by the dissent, Gonzalez
requires, in addition to proof of the “extent” of the officer’s
training, evidence of “what type of training is recommended by
the manufacturer.” Gonzalez, 128 Hawai#i at 327, 288 P.3d at
801. In this case, the evidence did not establish what type of
training the manufacturer recommended.
Officer Ondayog’s testimony that the training he
received was consistent with what he read in the manual regarding
the manufacturer’s recommended procedures is insufficient under
the standard established by Gonzalez, for the following reasons.
First, no evidence was presented showing that the
manual relied upon by Officer Ondayog to perform the four tests
actually set forth the manufacturer’s recommended training
requirements.8
8
It is unclear what “manual” Officer Ondayog was referring to when
he testified that the training he received was consistent with the recommended
procedures in the manual. The district court’s January 11, 2011 “Order
Regarding Production of the Laser Technology, Incorporated Manuals,” provides
that defense counsel “shall be allowed to review” and make a copy of the
“Marksman instructor manual (pages 1-13),” “Marksman (trainee) manual (pages
14-44),” “LTI Ultralyte operator (user) manual,” and “LTI Marksman operator
(user) manual.” It is also unclear what the differences are between the four
manuals listed in the order.
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Although Officer Ondayog testified that his training
conformed with the manufacturer’s requirements because his
training conformed with the manual, the contents of the manual as
to those requirements were not established by the State. Thus,
it is not possible to determine whether the manufacturer’s
recommendations were actually described in the manual, so that
conformance with the manual would be equivalent to conformance
with the manufacturer’s recommendations.
Second, assuming that the manufacturer’s
recommendations were contained in the manual relied upon by
Officer Ondayog, his conclusory statement that the manual
conformed to the training he received did not describe the type
of training stated in the manual.
Third, there was no other evidence to demonstrate that
an officer learning to perform the four tests described by
Officer Ondayog satisfies the manufacturer’s training
requirements. Consequently, the officer’s description of the
four tests did not identify the type of training recommended by
the manufacturer.9
Fourth, there is no indication in the record that the
instructors of the training courses Officer Ondayog attended were
actually certified by the manufacturer or had been trained by the
manufacturer. Additionally, there was no evidence that the
9
Cross-examination demonstrated that Officer Ondayog was unfamiliar
with various aspects of the UltraLyte.
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training course itself was approved by the manufacturer or was
consistent with the manufacturer’s requirements. Such evidence
together with the Officer’s learning to perform the four tests
could have established the type of training the manufacturer
recommended.10
Based on the foregoing, the ICA majority erred in
holding that Officer Ondayog’s training met the manufacturer’s
requirements on the basis of his testimony that his training was
consistent with the instructions and recommendations he read in
the manual. As recognized by the ICA dissent, Gonzalez requires
“the introduction of more specific evidence from which the
conclusions that the officer was qualified to operate the laser
gun could be drawn.” Accordingly, the State failed to lay an
adequate foundation for the introduction of the laser gun
reading, and thus the trial court erred in admitting the speed
reading into evidence.
B.
Amiral argues that the ICA erroneously held that the
State established a sufficient foundation to admit the speed
reading into evidence because there was no evidence that Officer
Ondayog’s UltraLyte was properly calibrated. The ICA majority
10
The ICA’s dissent states that “there is more than one way to
establish the officer’s competency,” suggested that the State may prove that
an officer is qualified to operate a laser gun by producing evidence showing
that the officer was tested and demonstrated the ability to operate the laser
gun to obtain accurate results. There is no indication in the record that
Officer Ondayog had completed any type of proficiency test administered or
approved by the manufacturer regarding the proper use of the UltraLyte.
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held that under Assaye, the State was not required to produce
evidence that the UltraLyte had been inspected or serviced by the
manufacturer because Officer Ondayog conducted the four tests in
accordance with the procedures recommended by the manufacturer.
While we do not agree that Assaye is authority for the principle
for which it was cited, in light of our disposition of this case
we do not resolve this issue.11
C.
Amiral contends that the district court abused its
discretion by admitting Officer Ondayog’s testimony that his
UltraLyte was working properly because Officer Ondayog (1) relied
11
In State v. Wallace, this court held that the accuracy of an
electric balance used to weigh cocaine was not established, where the
operator, a forensic chemist, “lacked personal knowledge that the balance had
been correctly calibrated and merely assumed that the manufacturer’s service
representative had done so.” 80 Hawai#i 382, 412, 910 P.2d 695, 725 (1996).
In State v. Manewa, the court applied the Wallace analysis and held that the
reliability of an “analytical balance,” a scientific device that measures
weight, required proof that it was properly calibrated by a representative of
the manufacturer. 115 Hawai#i 343, 354, 167 P.3d 336, 347 (2007).
In the context of laser guns, the Assaye court held that the
prosecution failed to establish a foundation for the admission of a speed
reading because there was no evidence showing that the four tests the officer
conducted on his laser gun “were recommended procedures by the manufacturer
for the purpose of showing that the laser gun was in fact operating
properly[.]” 121 Hawai#i 204, 217, 216 P.3d 1227, 1240 (2009). However, the
majority opinion in Assaye did not reach the issue of calibration as discussed
in Manewa, and therefore did not hold that evidence of calibration was not
required. Thus, the conclusion of the ICA’s majority opinion, that “[t]he
Assaye majority did not require any further showing of inspection and service
by the manufacturer,” is not dispositive.
In addition, the concurrence in Assaye indicated that Manewa not
only requires that the State show that there is an accepted manufacturer’s
procedure for ensuring that the instrument is in proper working order, but
also that the instrument has been inspected and serviced as required by the
manufacturer. 121 Hawai#i at 217, 216 P.3d at 1240 (Acoba, J., concurring).
Officer Ondayog initially testified that the delta/distance test
verified the “accuracy of the instrument, the calibration.” He later
testified, “I don’t calibrate. I just conduct those four tests, that’s it.”
As Officer Ondayog explained, “I’m not an [LTI] employee.” Consequently, the
record is unclear as to whether calibration or maintenance of the Ultralyte is
periodically necessary to assure its accuracy.
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on the instruction he received during his training and his
reading of the manual, and (2) lacked personal knowledge that the
four tests were recommended by the manufacturer or how the tests
worked. Our disposition of this case as previously discussed
renders it unnecessary to address this issue.
III. CONCLUSION
For the foregoing reasons, we vacate the ICA Judgment
and the district court Judgment, and remand the case to the
district court for further proceedings.
Kevin O’Grady /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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State v. Amiral.Â
Court: Hawaii Supreme Court
Date filed: 2014-02-13
Citations: 132 Haw. 170, 319 P.3d 1178
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