LAW L!BRAHY

   

NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 297l7
§
lN THE lNTERMEDlATE COURT OF APPEALS §§
6 § wear
OF THE STATE OF HAWAlI - “§
`° ?“
§§ FY
STATE OF HAWAl‘I, Plaintiff-Appellee, v. B ab ‘*
TERRY M. JASPER, JR., Defendant-AppellantA§; é3
30
APPEAL FROM THE DISTRICT COURT OF THE FIRST ClRCUIT
_ ‘EwA D1vIsIoN
(TRAFFIC CASE NO. lDTC-08-OOl368)
SUMMARY DlSPOSITION ORDER
Fujise and Leonard, JJ.)
(Jasper),

C.J.,
Jr.

(By: Nakamura,
Terry M. Jasper,

Defendant¢Appellant,
appeals from a judgment of conviction on one count of excessive
speeding in violation of Hawaii Revised Statutes (HRS) § 29lC-
105(e> (2') (2007 & supp. 2009) entered in the Dietrict court of
the First Circuit, (district court).1

On appeal,
erred in denying his motion to compel discovery;

court erred in admitting the speed check card in violation of
and (3) the

‘Ewa Division
Jasper argues that (l) the district court
(2) the district

Jasper's constitutional right of confrontation;
district court erred in allowing the police officer to testify as

to his car's speedometer reading absent sufficient evidence of

its accuracy and reliability.
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, we conclude that
227 P.3d 520

based upon State v. Fitzwater, 122 Hawafi 354,
Officer Benjamin Moszkowicz's (Officer Moszkowicz)
based

(20lO),
testimony regarding the speed at which Jasper was driving,
was inadmissible because

in turn upon the officer's speedometer,
`the State failed to establish a proper foundation to show that

1 The Honorable Faye M. Koyanagi presided.

NOT FGR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

the officer's speedometer had been properly calibrated and was
therefore accurate.2

At trial, Officer Moszkowicz testified that he made an
appointment to check his speedometer with Roy's Kalihi Automotive
Center. "Roy" took the car and put the rear tires on a set of
rollers. Within minutes after the testing process, Officer
Moszkowicz was given the speed check card. The police department
also received a copy of the speed check card. Officer Moszkowicz
testified that the speed check is obtained in the regular course
of maintaining an HPD vehicle. The speed check is done once a
year pursuant to police department policy. Based on the
foregoing, the State offered the speed check card into evidence.

Jasper preserved the issue of the admissibility of the
speed check card and Officer Moszkowicz's opinion regarding
Jasper's speed based upon the officer's speedometer by means of a
motion in limine and an objection at trial. The district court
admitted the evidence of the speed check card over Jasper's
objections and Officer Moszkowicz was allowed to testify that he
paced Jasper's vehicle at 90 miles per hour. Jasper testified
and denied speeding.

A determination of the admissibility of evidence under
an exception to the hearsay rule is reviewed under the
right/wrong standard of review. Fitzwater, 122 Hawafi at 362,
227 P.3d at 528. iHowever, the district court's determination of
trustworthiness is reviewed for an abuse of discretion.
FitZwater, l22 HaWafi at 362, 363, 227 P.3d at 523, 529.

In Fitzwater, the Hawafi Supreme Court 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

2 Based upon our decision to reverse Jasper's conviction as a result of
the inadmissibility of the speed check card, we do not address Jasper's other
issues.

NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

the requirements of [Hawaii Rules of Evidence]
Rule 803(b)(6) are otherwise satisfied.

Fitzwater, 122 Hawai‘i at 367-68, 227 P.3d at 534-35. In the
present case, the State failed to present evidence of other
indicia of reliability. To establish a foundation for the speed

check results, the State was also required to adduce evidence of

(l) 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.

ld. at 376~77, 227 P.2d at 542-43. The State did not satisfy

these requirements. As such, the foundation for Officer

Moszkowicz's testimony regarding Jasper's speed was insufficient.

No other evidence of Jasper's rate of speed was introduced at
trial. f

Therefore, the District Court of the First Circuit,
‘Ewa Division's February 18, 2009 judgment is reversed.

DATED: Honolulu, Hawafi, June l7, 20lO.
On the briefs:

Phyllis J. Hironaka, 52 "jH/ ;%;Qé97H%Lb“*g

Deputy Public Defender,
for Defendant-Appellant. Chief Judge ~

Stephen K. Tsushima, k  ,.
Deputy Prosecuting Attorney,

City and County of Honolulu, Associate Judg
for Plaintiff-Appellee.

  
    

 

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