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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000695
                                                              10-OCT-2013
                                                              09:03 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o—


           STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

          RICARDO APOLLONIO, Petitioner/Defendant-Appellant.


                            SCWC-11-0000695

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0000695; CASE NO. 1DTC-10-010161)

                            October 10, 2013

    ACOBA, MCKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
     CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                  OPINION OF THE COURT BY ACOBA, J.

            We hold that because the charge of Excessive Speeding,

Hawai#i Revised Statutes (HRS) § 291C-105(a)(1) (Supp. 2010),

against Petitioner/Defendant-Appellant Ricardo Apollonio

(Petitioner) did not allege that Petitioner acted intentionally,

knowingly, or recklessly it failed to allege the requisite state

of mind.    State v. Nesmith, 127 Hawai#i 48, 56, 276 P.3d 617, 625

(2012).    Therefore, for the reasons stated herein, we vacate the

August 22, 2012 judgment of the ICA, which affirmed the August
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23, 2011 Notice of Entry of Judgment and/or Order and

Plea/Judgment of the district court of the first circuit1 (the

court) and the court’s aforesaid judgment, and remand the case to

the court for dismissal without prejudice.          Because of the

likelihood of retrial, we also conclude that

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent)

failed to lay an adequate foundation to admit the laser
instrument (laser gun or laser) reading of Petitioner’s vehicle’s

speed into evidence.

                                     I.

                                     A.

            On August 23, 2011, Petitioner was orally arraigned and

charged in the court with excessive speeding, as aforesaid.                 The

charge alleged as follows:
            On or about July 1st, 2010, in the City and County of
            Honolulu, State of Hawai#i, you did drive a motor vehicle at
            a speed exceeding the applicable state or county speed limit
            by 30 miles per hour or more by driving 76 miles per hour in
            a 35-mile-per-hour zone, thereby violating Section 291C-105,
            subsection (a)(1)(C)([2]) of the [HRS], as you have had one
            prior conviction within a five-year period.

Petitioner did not object to the oral charge.2


      1
            The Honorable Lono Lee presided.

      2
            Prior to trial, Petitioner filed a Motion to Compel Discovery,
asking Respondent to disclose, inter alia, “[t]he Operator’s Manual for the
specific laser gun used in this case,” and “[t]he [Honolulu Police Department
(HPD)] training manual for speeding citations.” [(Petitioner’s) Motion to
Compel (Traffic Court docket number 23) at 3]   In response, Respondent
pointed out that the HPD had “loaned to the Department of the Prosecuting
Attorney one copy each of: 1) the operator manual for the Marksman; 2) the HPD
training manual, and 3) the operator manual for the [Laser Technologies, Inc.
(LTI)] 20/20 UltraLyte, all provided by [LTI].” Further, “[o]n October 28,
2009, the DPA made those three manuals available for review by defense
counsel.” Respondent contended that Petitioner could not make copies of the
manuals due to copyright laws. However, the court issued a protective order
allowing Petitioner to review and make one copy of each manual that Petitioner

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            The HPD officer involved (the officer) testified that

on July 1, 2010, he cited Petitioner for excessive speeding.                On

that date, a LTI 20-20 laser gun was used to measure the speed of

Petitioner’s vehicle.

            The officer was trained in October 2006 by Sergeant

Ryan Nishibun.     His training consisted of “class work, going over

the operator’s manual, and hands-on time with the laser itself.”
He maintained that the operator’s manual was “provided by [LTI].”

Defense counsel objected to this testimony due to “lack of

personal knowledge and hearsay.”           The court overruled the

objection, stating that “those issues have been resolved in some

other case.”3

            According to the officer, the manual stated that four

tests4 were necessary to establish that the laser gun was working

properly.    All four tests were performed on the date in question

and indicated the laser was working properly.            The officer

stationed himself on the shoulder of Kamehameha Highway south of
Punalau Place.     The speed limit in the area was thirty-five miles

per hour (mph).     His laser gun indicated that Petitioner’s

vehicle was traveling at a speed of 76 mph.            Based on the speed

reading, Petitioner’s vehicle was stopped and Petitioner cited.




requested Respondent to disclose.   The manuals are not a part of the record.

      3
            The court did not specify what case it relied upon.

      4
            The four tests are the self-test, the display test, the scope
alignment test, and the delta distance test.

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          On cross-examination, the officer explained that the

people who trained him were “all HPD officers,” and that “there

was nobody from LTI present.”       He related that the front cover of

the manual “may have” had the HPD emblem stamped on it.            The

manual was provided by an HPD officer.         He “[did not] know the

person who wrote the manual,” and “[did not] know” if the manual

was “written or compiled by the [HPD].”
          Based on this testimony, Petitioner renewed his motion

to strike the speed reading based on a lack of foundation.

Petitioner argued that the officer “[did] not recall what the

manual looks like,” “[did] not know who prepared the manual,” and

was “not able to say where or what the manual was prepared in

accordance with.”    The court rejected the motion, stating that

“[t]he court has also heard that that was [sic] the manuals

provided by HPD in conjunction with LTI as part of [the

officer’s] training at the [police] academy.          So the court will

give it its due weight.”
          Petitioner continued cross-examination “with a few

questions based on the court’s ruling.”         The officer indicated he

“assume[d] that somebody [from LTI] had to have provided [the

manual],” but that he “[did not] know personally whether anybody

from LTU provided these manuals to [HPD].”         (Emphases added).

Further, “[w]hen [he] testified on direct examination [that he

was] . . . trained in accordance with the manual that LTI

provided, that was just based on [his] assumption that somebody


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from LTI must have provided [the manual].”         (Emphasis added.)

Petitioner then asked the witness about the maintenance of the

laser gun.   The officer testified that he had “no idea” if there

were “any software upgrades that would have been provided” for

the laser gun.

            On redirect examination, the officer testified that he

“pass[ed] the [training] course” provided by HPD, and was
“qualified to use the [laser gun].”         Defense counsel objected

that the officer did not have personal knowledge regarding

whether or not he was qualified.         The court overruled the

objection.   Petitioner conducted recross-examination and then

renewed his motion to strike, arguing that the officer “has no

personal knowledge [of] who provided the manual.”           The court

again denied the motion.

                                    B.

            Petitioner testified that on July 1, 2010, he was

traveling northbound on Kamehameha Highway.          He explained that
before being pulled over he was “looking at his [speedometer] the

whole time” and that he was never traveling faster than 60 mph.

He also recounted that he was speeding because “he had to [use]

the bathroom really bad.”      On cross-examination, Petitioner

admitted that he did not know whether his speedometer was working

properly.

                                    C.

            In closing argument, Petitioner stated “that [the


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officer] testified on direct that he was trained in accordance

with the manufacturer’s specification[s],” but that on cross-

examination, [the officer] admitted that “he had no personal

knowledge as to whether or not he actually was.”           Petitioner also

contended that the excessive speeding statute required Respondent

to demonstrate that Petitioner recklessly traveled 30 mph faster

than the speed limit, and because Petitioner testified that his
speedometer indicated he was traveling at 60 mph, Respondent had

not established that Petitioner was reckless as the statute

required.

                                    D.

            The court found Petitioner guilty as charged, holding

that it “heard credible testimony from [the officer] regarding

his training and qualifications,” and that the officer “followed

the manufacturer’s instructions” to ensure that the laser gun was

working properly.    Addressing mens rea, the court found that the

relevant state of mind was “intentional, knowing, or reckless,”
and that “the court can infer from the circumstances that

traveling at that speed, at the minimum, is reckless.”

                                    II.

                                    A.

            Petitioner appealed to the ICA.       According to

Petitioner, the only evidence introduced regarding the

manufacturer’s recommendations for testing the laser gun or

training officers was provided by the manual, and the officer did


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not have personal knowledge that the manual was provided by LTI.

On this basis, Petitioner argued that Respondent failed to lay an

adequate foundation for introducing the speed reading from the

laser gun.

          Petitioner also maintained that an adequate foundation

was not laid because State v. Manewa, 115 Hawai#i 343, 167 P.3d

336 (2007), required Respondent to introduce evidence that “the
instrument has been inspected and serviced as required by the

manufacturer.”    (Citing State v. Assaye, 121 Hawai#i 204, 217,

216 P.3d 1227, 1240 (2009) (Acoba, J. concurring).)

                                    B.

          The ICA held that adequate foundation had been

established to admit the speed reading.         The ICA noted that the

officer received eight hours of training from the HPD, “confirmed

that during training he was provided with a training manual,

which he acknowledged was provided by [LTI]” and testified that

during training he was “taught [four] tests recommended by the
manufacturer to determine whether the laser was working

properly.”   State v. Apollonio, No. CAAP-11-0000695, 2012 WL

2894715, at *2 (App. July 16, 2012).        According to the ICA,

“[e]vidence from [the officer’s] testimony” “confirmed that he

performed these four tests on the laser gun on July 1, 2010, and

that the results of the tests indicated that the laser was

operating correctly.”     Id.




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           Further, the officer explained that the manual he

received as a part of his training “‘said Operator's Manual, LTI

20–20 Operator’s Manual,’” although “[the officer] later agreed

that the manual cover may also have stated ‘Honolulu Police

Department’ [or contained an HPD logo].”            Id.   He “could not

definitely say that the manual was not written or compiled by

HPD.”   Id.     The ICA concluded that, “[i]n light of the foregoing,
the officer’s testimony was sufficient to establish that ‘the

nature and extent of [his] training . . . meets the requirements

indicated by the manufacturer.’”           Id.   (Quoting Assaye, 121

Hawai#i at 215, 216 P.3d at 1238.)

           Addressing Manewa, the ICA held that once the laser is

tested in accordance with procedures recommended by the

manufacturer, “the Assaye majority did not require any further

showing of inspection and service as required by the

manufacturer.”      Id.   Therefore, the ICA rejected Petitioner’s

argument that Respondent was required to demonstrate that the
manufacturer had properly serviced the laser gun.             Id.

                                     III.

           Petitioner presents the following questions in his

Application:
           1.      Whether the ICA’s order affirming [Petitioner’s]
                   conviction constitutes an obvious inconsistency with
                   [this court’s] April 12, 2012 decision in [Nesmith,
                   127 Hawai#i 48, 276 P.3d 617].

           2.      Whether the ICA gravely erred in holding that
                   [Respondent] laid sufficient foundation for the
                   admission of the laser gun reading.

On November 7, 2012, Respondent filed a Response to Petitioner’s

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Application (Response).       On November 13, 2012, Petitioner filed a

Reply.

                                     IV.

                                     A.

            In connection with his first question, Petitioner

argues that “[t]he oral charge [] failed to allege the

intentional, knowing, and reckless states of mind required to
alert the defendant[] of precisely what [he] needs to defend

against to avoid a conviction.”5          (Citing Nesmith, 127 Hawai#i at

56, 276 P.3d at 625.)      Additionally, Petitioner argues that “the

oral charge was fatally defective under Hawai#i Rules of Penal

Procedure (HRPP) Rule 7(d),”6 because “state of mind was an

‘essential fact,’ which was required to be alleged.”             Finally,

according to Petitioner, due to the lack of mens rea in the

charge, “the [] court lacked jurisdiction over the case.” (Citing

State v. Cummings, 101 Hawai#i 139, 142, 63 P.3d 1109, 1112

(2003).)
                                     B.

            In its Response, Respondent argues that “[t]he Nesmith

majority’s holding that mens rea must be alleged in a charge was


      5
            The concurring and dissenting opinion (dissenting opinion)
contends that “[i]t was not until the case reached this court that, for the
first time, [Petitioner] contended that the charge was inadequate.”
Dissenting opinion at 2. Nesmith was filed on April 12, 2012, well after
February 24, 2012, the date Petitioner declined to file a Reply Brief before
the ICA. Thus, Petitioner could not have raised the Nesmith argument before
the ICA.

      6
            HRPP Rule 7(d) states in relevant part that “[t]he charge shall be
a plain, concise and definite statement of the essential facts constituting
the offense charged.”

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based on its reasoning that ‘a charge omitting the mens rea

requirements would not alert a defendant that negligently

operating a vehicle under the influence of an intoxicant . . .

for instance is not an offense recognized [by statute].’”

(Quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at 625.)            “In other

words,” Respondent contends, Nesmith held that the “state of mind

must be included in the charge to ‘alert the defendants [] [of]
precisely what they needed to defend against to avoid a

conviction.’” (Quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at

625.)

            Respondent observes that Petitioner’s “defense was that

he was never aware that he was driving his vehicle more than

sixty [mph].”     According to Respondent, Petitioner’s counsel

stated the correct state of mind requirements during closing

argument and noted that “this is not a negligence case.”

Respondent argues that, therefore, Petitioner “was clearly aware

of precisely what he needed to defend against [to avoid] a
conviction.”    Thus “his constitutional rights were not adversely

affected.”7



      7
            Further, Respondent contended for the first time that HRS §
291C-105(a) involves an absolute liability offense, and hence the State was
not required to allege a state of mind in the charge. Respondent’s argument
that HRS § 291C-105(a) is an absolute liability offense was not raised before
the court, and is therefore waived. See State v. Kikuta, 125 Hawai#i 78, 89,
253 P.3d 639, 650 (2011) (“[T]he failure to properly raise an issue at the
trial level precludes a party from raising that issue on appeal.”). In any
event, Respondent’s arguments are virtually identical to those raised by the
State in State v. Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012). In
Gonzalez, the argument that excessive speeding is a strict liability crime was
rejected. Id. at 324, 288 P.3d at 798. Accordingly, we do not discuss this
contention further.

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                                    C.

            In Nesmith, this court cited with approval Elliot, in

which the petitioner had challenged the sufficiency of the oral

charge for the first time on appeal, arguing that the oral charge

did not include a mens rea element.        Nesmith, 127 Hawai#i at 56,

276 P.3d at 625 (“[Elliot] provides an illustration of how

omission of facts in a charge can render a charge deficient.”)
Nesmith stated that, as a result, Elliot “liberally reviewed the

oral charge in favor of its validity.”         Id.   However, “[e]ven

under a liberal review, [this court] held [in Elliot] that the

charge could not be reasonably construed to state the offense of

resisting arrest,” because “the requisite state of mind was

omitted.”    Id.

            In this case, as in Elliot, Petitioner challenged the

sufficiency of the oral charge for the first time on appeal, and

therefore the charge must be construed liberally in favor of its

validity.    Id.   As in Elliot, the instant charge omitted the
requisite state of mind.      Analogous to Elliot, then, the

excessive speeding charge cannot be “reasonably construed to

state an offense.”     Id.   Nesmith therefore mandates dismissal

without prejudice.     Id.

            Respondent argues that Nesmith supports a contrary

result, because Nesmith holds that a charge is only deficient if

defendants lack the notice necessary to avoid a conviction.                In

Elliot, however, this court noted that the defendant “has not


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indicated how she was surprised or prejudiced by the omissions,

and the record does not show that she was hampered in her

defense.”    77 Hawai#i at 311, 884 P.2d at 374 (brackets omitted).

Nevertheless, Elliot held that “with respect to the resisting

arrest count, the requisite state of mind was omitted from the

charge,” and therefore “the oral charge at issue [was] fatally

defective.”    Id. at 313, 884 P.2d at 376.        Similarly, in this
case, the charge omitted the requisite state of mind, and

therefore it cannot be “reasonably construed to state [an]

offense.”    Id.

            Less than ten months ago this court, in a unanimous

opinion,8 held that the failure to allege a requisite state of

mind results in dismissal without prejudice:
            In Nesmith, this court reasoned that ‘state of mind requirements,
            though not an element of an offense’ were required to be included
            in the charges against the defendants in order ‘to alert the
            defendants of precisely what they needed to defend against to
            avoid a conviction.’ 127 Hawai#i at 56, 276 P.3d at 625 (internal
            quotation marks and citations omitted). Nesmith held that [if a]
            state of mind [is not] included in a charge[] the case [is]
            dismissed without prejudice. Id. at 54, 276 P.3d at 623. Because
            the charge here did not contain the requisite state of mind, as
            the State concedes, Nesmith mandates dismissal without prejudice.

Gonzalez, 128 Hawai#i at 324, 288 P.3d at 798.9          Accordingly, we

      8
            Respectfully, in light of this court’s recent unanimous adherence
to this proposition, the dissenting justices’ position with respect to plain
error need not be discussed.

      9
            The dissent contends that Gonzalez is distinguishable because in
Gonzalez, the defendant objected to the oral charge before trial commenced.
Dissenting opinion at 2-3 n.2. However, based on Nesmith, Gonzalez stands for
the principle that a charge that fails to include the requisite state of mind
would be dismissed without prejudice, Gonzalez, 128 Hawai#i at 324, 228 P.3d
at 798 (“Nesmith held that [if] state of mind [is not] included in a charge []
the case [is] dismissed without prejudice.”), even if an objection is not
raised at trial and the defendant was not prejudiced by the omission of state
of mind. Elliot, 77 Hawai#i at 313, 884 P.2d at 376; cf. Nesmith, 127 Hawai#i
at 55; 276 P.3d at 624 (“Like Elliott, in this case, the . . . state of mind
requirements . . . needed to be charged[.]”).

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adhere to this core principle:        A charge that fails to charge a

requisite state of mind cannot be construed reasonably to state

an offense and thus the charge is dismissed without prejudice

because it violates due process.10        Elliot, 77 Hawai#i at 313, 884

P.2d at 376; see also Nesmith, 127 Hawai#i at 56; 276 P.3d at 625

(“In Elliott, the petitioner challenged the sufficiency of this

oral charge for the first time on appeal . . . .            Even under a
liberal review, we held that the charge could not be reasonably

construed to state the offense of resisting arrest.”).

                                     V.

           Due to the likelihood of retrial, Petitioner’s argument

that Respondent failed to lay an adequate foundation for the

introduction of the speed reading from the laser gun may be

addressed in part to prevent future error.          In order to lay an

adequate foundation for the speed reading from a laser gun, the

State must demonstrate (1) that the accuracy of the laser gun was

tested according to procedures recommended by the manufacturer,
Assaye, 121 Hawai#i at 213, 216 P.3d at 1236, and (2) that “the

nature and extent of an officer’s training in the operation of a

      10
            The dissent contends that dismissing the charge has the effect of
“treating timely and untimely objections to a charge the same.” Dissenting
opinion at 14 n.6. However, that a charge that does not include the requisite
state of mind is dismissed without prejudice based on due process is now
firmly established. See Nesmith, 127 Hawai#i at 56; 276 P.3d at 625; see also
Gonzalez, 128 Hawai#i at 324, 288 P.3d at 798; State v. Bortel, No. SCAP-12-
0000392, 2013 WL 691794, at *3 (Haw. Feb. 25, 2013) (mem.) (“According to
Gonzalez, Nesmith held that the state of mind must be included in a charge or
the case [is] dismissed without prejudice.”) (internal quotation marks
omitted); State v. Castro, No. SCWC-30703, 2012 WL 3089722, at *1 (July 30,
2012) (SDO). As this court concluded in Nesmith, “mens rea must be alleged in
a[ ] charge.” 127 Hawai#i at 56; 276 P.3d at 625.



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laser gun [met] the requirements indicated by the manufacturer.”

Id. at 215, 216 P.3d at 1238.           Petitioner argues that neither

requirement was satisfied here.           He also asserts that Respondent

failed to introduce evidence that the laser gun was “inspect[ed]”

or service[d] by the manufacturer,” as required by Manewa, 115

Hawai#i at 354, 157 P.3d at 347.

                                        A.
              Petitioner advances three arguments suggesting that,

under the first prong of the Assaye test, Respondent did not

establish that the laser gun was tested in accordance with the

manufacturer’s recommendations.           First, Petitioner argues that

the officer’s knowledge of the four tests was based upon “reading

the manual that was never offered or admitted into evidence.”

Thus, according to Petitioner, “his testimony was based upon

hearsay[11] –- the contents that he obtained from the manual were

statements, other than statements made by him while testifying,

offered to prove the truth of the matter asserted – that the
manufacturer, LTI, recommended these four tests to ensure that

the device was in proper working order.”

              Second, Petitioner argues that “[the officer] assumed

the manual was published by LTI,” but he was “trained by an HPD

officer, he received the manual from the training officer, and

        11
              Hawai#i Rules of Evidence (HRE) Rule 802 provides, in relevant
part:

              Rule 802. Hearsay
                    Hearsay is not admissible except as provided by these
              rules, or by other rules prescribed by the Hawai#i supreme
              court, or by statute.

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the manual’s cover was imprinted only with the words ‘Operator’s

Manual’ and possibly an HPD logo.”         Additionally, “[the officer]

admitted that he did not know who provided the manual to HPD,

whether the manual was written or compiled by HPD, and that he

never met anyone from LTI.”       Petitioner declares that thus, “[the

officer’s] testimony that the tests were recommended by the

manufacturer should not have been admissible for lack of personal
knowledge.”

            Third, Petitioner contends that the best evidence rule

required Respondent to introduce the manual itself into evidence.

According to Petitioner, HRE Rule 100212 states that “‘to prove

the content of a writing . . . the original writing . . . is

required’” and here “the content of the manual was the very

evidence the State relied upon to establish that LTI had

recommended the four tests.”

            Regarding training under the second prong of the Assaye

test, Petitioner argues that Respondent “failed to adduce any
evidence as to whether the [officer’s] training . . . met the

requirements indicated by the manufacturer.           In fact,

[Respondent] did not present any evidence as to what LTI even




      12
            HRE Rule 1002 provides as follows:

            Rule 1002. Requirements of Original
                  To prove the content of a writing, recording, or
            photograph, the original writing, recording, or photograph
            is required, except as otherwise provided in these rules or
            by statute.

(Emphasis added.)

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requires in the training in the operation [sic] of the laser

gun.”   (Emphasis in original.)

           Finally, with respect to Manewa, Petitioner asserts

that this court held that an inadequate foundation was laid when

a chemist “lacked the personal knowledge that an [analytical

balance] had been properly calibrated,” and “merely assumed that

the manufacturer’s service representative had done so.”
Petitioner then cites the concurring opinion in Assaye as holding

that “Manewa ‘requires not only that the State show that there is

an accepted manufacturer’s procedure . . . but also to show that

the instrument has been inspected and serviced as required by the

manufacturer.’”    (Quoting Assaye, 121 Hawai#i at 217, 216 P.3d at

1240 (Acoba, J., concurring).)

                                    B.

           In its Response, Respondent argues that all of

Petitioner’s evidentiary arguments other than its personal

knowledge objection are waived, because they were not raised
before the ICA.    As to personal knowledge, Respondent relies on

the arguments made before the ICA, where it maintained that the

officer’s testimony that the manual was provided by LTI was a

“reasonable inference,” and that other evidence linked LTI to the

manual, such as the fact that the laser gun was manufactured by

LTI and the title of the manual was the “LTI 20-20 Operator’s

Manual.”




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          Further, Respondent contends that “[Petitioner’s] exact

argument [regarding the best evidence rule] was recently rejected

in another case.”    (Citing State v. Jervis, No. 30463, 2011 WL

1713501 (App. May 5, 2011) (SDO).)        In Jervis, the ICA reasoned

that the best evidence rule did not apply because “[the

officer’s] testimony about the manual was not adduced to prove

the contents of the manual, but rather to establish foundation
for his testimony.”     Jervis, 2011 WL 1713501 at *1 (citing

Fireman’s Fund Ins. Co. v. Stites, 258 F.3d 1016, 1023 (9th Cir.

2001); Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1486 (10th

Cir. 1987); United States v. Carlock, 806 F.2d 535, 551 (5th Cir.

1986); Lang v. Cullen, 725 F. Supp. 2d 925, 953–54 (C.D.Cal.

2010)).

          With respect to Manewa, Respondent argued that there,

this court held that the State had established that a “[Gas

chromatograph mass spectrometer]” was working properly because an

expert “testified that he personally conducted a ‘routine check’
‘each and every morning’ ‘to ensure that all the parameters are

within the manufacturer’s specifications.’”          (Quoting Manewa, 115

Hawai#i at 354, 167 P.3d at 347.)        Respondent contended that,

therefore, establishing that a “routine check” was performed is

enough to establish that a device is working.          Lastly, Respondent

maintained that in the instant case “it was never established at

trial whether there was in fact a manufacturer’s service

representative who periodically calibrated the laser gun,” and in


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the absence of such evidence “the State is not required to show

that the laser gun ‘had been properly calibrated by the

manufacturer’s servicing representative.’”          (Quoting Manewa, 115

Hawai#i at 354, 167 P.3d at 347.)

                                     VI.

                                     A.

            Petitioner argues that “[a]bsent [the officer’s]
assumption that LTI might have provided the manual . . . there is

nothing in evidence to support that [the tests used to verify the

gun’s accuracy] were recommended by LTI.”          We conclude that in

this respect, admission of the officer’s testimony as evidence

was wrong.    See Kealoha v. County of Hawai#i, 74 Haw. 308, 319-

20, 844 P.2d 670, 676 (1993) (“When application of a particular

evidentiary rule can yield only one correct result, the proper

standard for appellate review is the right/wrong standard.”).13


      13
            This court has not addressed whether the court’s finding that a
witness has personal knowledge pursuant to HRE Rule 602 is reviewed under the
right/wrong standard or the abuse of discretion standard. The right/wrong
standard applies to questions where “there could only be one correct answer”
such as “whether the evidence had simply failed to fulfill the applicable
requirements for admission.” Kealoha, 74 Haw. at 319, 844 P.2d at 676; see
also State v. Moore 82 Hawai#i 202, 217, 921 P.2d 122, 137 (1996) (holding
that, regarding hearsay exceptions, “the appropriate standard for appellate
review is the right/wrong standard,” because “with respect to the exceptions,
the only question for the trial court is whether the specific requirements of
the rule were met”). However, the abuse of discretion standard applies to
questions that require the court to make a “judgment call” such as those that
require balancing on the part of the trial court. Kealoha, 74 Haw. at 315,
844 P.2d at 674 (holding that HRE Rule 403 questions are subject to the abuse
of discretion standard because they require a “delicate balance between
probative value and prejudicial effect”).
            As with the hearsay exceptions, the only question for the court
under Rule 602 is whether or not a witness has personal knowledge of the
matter he or she testifies to, i.e., “whether or not the specific requirements
of the rule were met.” Moore, 82 Hawai#i at 217, 921 P.2d at 137. Hence,
where the court’s ruling regarding the witness’ personal knowledge is
concerned, “the appropriate standard for appellate review is the right/wrong
standard.” Id.

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           HRE Rule 602 provides that “[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.”

The Commentary to HRE Rule 602 explains that, “‘Personal

knowledge,’ for purposes of this rule, means that the witness

perceived the event about which he testifies.”          In other words,

witnesses may not testify based on “guesswork” or “speculation,”
such as when the witness concludes that a fact “must have” been

true.   See Addison M. Bowman, Hawai#i Rules of Evidence Manual §

602-1[5] (2012) (hereinafter Bowman, HRE Manual).

           Here, the officer’s testimony that the manual was

provided by LTI was based on “guesswork” and “speculation.”                As

he acknowledged, the officer did not “know personally whether

anybody from LTI provided [the] manual[],” but “assumed that

somebody from LTI must have provided it.”         The only individuals

present during the officer’s training were HPD officers.            The

manual was provided by “the traffic division instructors that
were training [the officer].”       Thus, “nobody from LTI gave [him]

the manual.”   The officer recounted that he had “[n]ever met a

representative from [LTI].”      Finally, the officer confirmed that

he “[didn’t] know personally whether anybody from LTI provided

these manuals to [HPD].”      In other words, the officer had no

personal knowledge that the manual was provided by LTI, or was an

LTI manual.




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            Additionally, the officer’s testimony regarding the

manual’s appearance did not connect the manual to LTI.             “[T]he

only thing that [he could] recall about the manual” was that it

said “Operator’s Manual” on its cover and that it “may have a[n]

HPD logo.”    Although the officer did state that the manual’s

cover read “LTI 20-20 Operator’s Manual,” this indicated only

that the manual concerned the laser gun designated “LTI 20-20,”
and not that LTI produced the manual.         In sum, the officer

provided no testimony as to the manual itself that would suggest

that it was from LTI.

            Finally, the officer conceded that he did not have

personal knowledge regarding who wrote or compiled the manual.

The officer did not know “if the manual . . . that may or may not

be stamped with the [HPD] logo was [sic] written or compiled by

the [HPD].”    He did not “know the person who wrote the manual.”

The officer had no verifiable basis for concluding that the

manual was provided by LTI.14
            Thus, nothing in evidence was “sufficient to support a

finding” that the officer had personal knowledge of the fact as

testified to on direct, see HRE Rule 602, that the manual was

“provided by [LTI], the manufacturer of [the] LTI 20-20.”

Respondent itself noted that the officer’s statement on direct

examination was based on the inference that the manual “must


      14
            As noted before, none of the manuals produced in discovery were
admitted into evidence or linked to the officer’s testimony. Although
Respondent allowed Petitioner to review three separate manuals in discovery,
as noted, the record is silent as to the contents of the manuals.

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have” been provided by LTI.      Rule 602 prohibits precisely such an

inference.   That inference, without any basis in fact, must be

categorized as guesswork.      See Bowman, HRE Manual at § 602-1[5]

(noting that the personal knowledge rule is violated when a

witness concludes that a fact “musta,” i.e, “must have,” been

true).   Because the officer lacked personal knowledge that the

manual was “provided by” LTI, there was no evidence establishing
that the four tests performed by the officer were recommended by

the manufacturer.    Therefore, the court erred in concluding that

the four tests were recommended by the manufacturer.

                                    B.

           Respondent apparently maintains that even without the

officer’s testimony, the evidence supported the conclusion that

the manual was provided by LTI, essentially because the laser gun

was manufactured by LTI and the cover of the manual read “LTI 20-

20 Operator’s Manual.”     Contrary to the court’s finding, there

was no evidence connecting LTI to the manual itself.            As
discussed supra, the fact that “LTI” was in the manual’s title

indicated only that the manual concerned the laser designated

“LTI 20-20,” and not that LTI produced the manual.           Evidence

regarding the manual -– the officer’s testimony that the HPD logo

was on the cover and that the manual was provided to him by an

HPD officer –- implied that the manual was compiled, not by LTI,

but by the HPD.    Hence, the court erred by concluding that the

manual was provided by LTI.


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                                    C.

          Respondent’s failure to link the manual to the laser

gun’s manufacturer resolves Petitioner’s contention that

Respondent failed to satisfy the first prong of Assaye.

Petitioner’s arguments regarding the hearsay rule and best

evidence rule were not raised in Petitioner’s Opening Brief

before the ICA, and are therefore waived.         Hawai#i Rules of
Appellate Procedure Rule 28(b)(7) (“Points not argued may be

deemed waived.”).

                                   VII.

                                    A.

          Petitioner also asserts that Respondent failed to

satisfy the second prong of Assaye, which requires the State to

prove that an officer’s training in the operation of a laser

conformed to the manufacturer’s requirements.          121 Hawai#i at

215, 216 P.3d at 1238.     To recount, Respondent argues as it did

before the ICA that Assaye does not require the State to set
forth the manufacturer’s requirements for officer training, but

instead “implicitly teaches that it is difficult to discern how

anyone can use the laser gun properly without any training or

instruction.”   (Emphasis in original.)        The officer’s testimony

that he received eight hours of training, according to

Respondent, met that requirement.         To the contrary, Assaye held

that the State must establish that an officer’s training




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satisfied the laser manufacturer’s requirements.           121 Hawai#i at

215, 216 P.3d at 1238.

          Logically, this requires a showing as to both (1) the

training requirements set forth by the manufacturer, and (2) the

training actually received by the operator of the laser gun.               We

have said before that this showing cannot be met simply by

describing the officer’s training.        See id. at 215-16, 216 P.3d
at 1238-39 (holding that although an officer testified that he

was “certified” after taking a “four hour class,” the State

“ha[d] not shown whether the training that [the officer] received

[met] the requirements of the manufacturer of the laser gun”)

(internal quotations omitted).       Consequently, Respondent could

not demonstrate that the officer’s training met the

manufacturer’s requirements because the only evidence of those

requirements was the manual, and there was no evidence linking

the manual to LTI.

                                    B.

          Respondent also asserts that because in closing
argument Petitioner “conceded that [the officer] testified on

direct [examination] that he was trained in accordance with the

manufacturer’s specification,” and that “the specification was

derived from the manual itself,” Petitioner cannot now argue that

[the officer’s] training was insufficient.15         But read in its


     15
          In closing argument, Petitioner argued that

          [d]efense will concede that the officer testified on direct
          that he was trained in accordance with the manufacturer’s

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entirety, Petitioner’s closing argument demonstrates that

Respondent’s contention is incorrect.          Petitioner argued that on

cross-examination, the officer admitted that although he

“testified on direct examination that he was trained in

accordance with the manual that LTI provided,” that “was just

based on [his] assumption that somebody from LTI must have

provided it.”       Thus, Petitioner’s “concession” did not preclude
the argument that the officer had only speculated as to who

provided the manual upon which his training was based.16

                                    VIII.

            According to Petitioner, the concurring opinion in

Assaye correctly interprets Manewa, and under the concurrence,


            specification. Defense did ask to voir dire at that point,
            however, also acknowledge[d] that it could be done on cross-
            examination subject to re-objection. And I believe on
            cross-examination, defense was able to successfully elicit
            that while the officer stated the words he was trained on
            the manufacturer’s specification in accordance [sic], he had
            no personal knowledge as to whether or not he actually was.

(Emphases added.)

       16
             The record here does not reveal any prosecution in which the State
has established that the four tests referred to and the training requirements
are set forth in a manual that has been verified by the manufacturer and
provided to the State by the manufacturer. See, e.g., State v. Eid, 126
Hawai#i 430, 444-45, 227 P.3d 1197, 1211-12 (2012) (noting that in a “test
case” there was “extensive evidence, including lengthy testimony from master
certified automobile technicians . . . that the procedures and equipment used
to conduct the [speed checks]” gave “adequate assurances that the . . . speed
checks were reliable”); see also Assaye, 121 Hawai#i at 213-15, 216 P.3d at
1236-38 (requiring that accuracy of a laser gun must be “adduced through
evidence that the procedures are recommended by the manufacturer,” that “an
officer’s training in the operation of a laser gun meets the requirements
indicated by the manufacturer.”); In re Admissibility of Motor Vehicle Speed
Readings Produced by the LTI Marksman 20-20 Laser Speed Detection Sys., 314
N.J. Super. 233, 714 A.2d 381, 391-92 (1998)) (“the admissibility of speed
readings produced by the LTI Marksman 20-20 Laser Speed Detection System shall
be subject to certain rules, which includes the requirement that pre-
operational checking procedures recommended by the manufacturer of the laser
speed detector shall be shown to have been made in each case”) (brackets and
internal quotation marks omitted)).

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Respondent must also demonstrate that the laser gun was serviced

by a representative of the manufacturer to lay an adequate

foundation for the speed reading taken from the laser gun.             In

this case, there is no clear evidence in the record with respect

to the periodic servicing of the laser guns.          Petitioner asked

the officer whether the laser gun was under warranty and required

periodic software updates, but he replied that he was “unaware”
of any such requirement.      Thus, Petitioner’s question regarding

Manewa need not be resolved here.

                                    IX.

          Based on the foregoing, the August 22, 2012 judgment of

the ICA, which affirmed the court’s August 23, 2011 Notice of

Entry of Judgment and/or Order and Plea/Judgment and the court’s

aforesaid judgment are vacated and the case remanded to the court

with instructions to dismiss the case without prejudice.


Craig W. Jerome,                     /s/ Simeon R. Acoba, Jr.
(James A. Tabe on
the application),                    /s/ Sabrina S. McKenna
for petitioner
                                     /s/ Richard W. Pollack
Brandon H. Ito,
for respondent




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