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                                                                   Electronically Filed
                                                                   Supreme Court
                                                                   SCWC-13-0002852
                                                                   15-MAR-2016
                                                                   08:08 AM




                                 SCWC-13-0002852

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

              STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,


                                         vs.


       COLIN D. GARDNER, Petitioner/Defendant-Appellant.

________________________________________________________________

              CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-13-0002852; CASE NO. 2DTC-13-004202)

                           SUMMARY DISPOSITION ORDER
    (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)


                                 I.   Introduction

               On January 19, 2013, Petitioner/Defendant-Appellant

Colin Gardner (“Gardner”) was cited by Officer Carl Eguia

(“Officer Eguia” or “Citing Officer”) for excessive speeding.

At a bench trial in the District Court of the Second Circuit,

Wailuku Division (“district court”),1 Gardner orally moved to

suppress the Citing Officer’s laser gun reading on the basis


1
    The Honorable Richard A. Priest, Jr. presided.
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that proper foundation for the gun had not been laid.                 The

district court denied the motion and found Gardner guilty.

               Gardner timely applied for writ of certiorari

(“Application”) on September 29, 2015 from an August 3, 2015

Judgment entered by the Intermediate Court of Appeals (“ICA”)

pursuant to its June 30, 2015 Summary Disposition Order (“SDO”).

Although the State submitted a confession of error in its

Answering Brief, the ICA affirmed the district court’s “Notice

of Entry of Judgment and/or Order and Plea/Judgment, filed on

July 19, 2003.”2         State v. Gardner, No. CAAP-13-0002852, at 7

(App. June 30, 2015) (SDO).

               In his Application, Gardner presents the following

question: “Whether the ICA gravely erred in holding that the

prosecution established a sufficient foundation for the

admission of the speed reading generated by the Laser Technology

Incorporated 20-20 TruSpeed laser gun.”              Gardner argues two

points: (1) “the State failed to establish that the nature and

extent of Officer Eguia’s training in the operation of the laser

gun met the requirements set forth by the manufacturer,” and (2)

“the State did not prove that the specific laser device used was

properly calibrated either through inspection or servicing by

the manufacturer’s representatives.”             Gardner asks that the

2
  After the Notice of Appeal was filed, the district court amended the
judgment on May 6, 2014 with respect to the value of the fine and imposition
of community service.


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district court’s judgment be reversed.              The State did not

respond to the Application.

               This court accepted Gardner’s Application on November

10, 2015.        For the following reasons, this court holds the ICA

erred in concluding that the laser speed reading was admissible.

                                 II.   Background

A.        Factual Background

               Around 4:00 p.m. on January 9, 2013, Officer Carl

Eguia tested his LTI 20/20 TruSpeed laser gun (“laser gun”) to

see if it was working properly.            The laser gun passed the

requisite tests.         Around 6:43 p.m. that same day, Officer Eguia

observed a vehicle traveling north on Mokulele Highway “at a

high rate of speed” in a 45-miles-per-hour zone.                He used his

laser gun to take a reading of the vehicle’s speed by aiming at

the vehicle’s front “license plate area.”              The laser gun

indicated that the vehicle was traveling at 76 miles per hour.

Officer Eguia then conducted a traffic stop on the vehicle, and

issued the driver of the vehicle, Gardner, Citation No. 2DTC-13-

004202, for violating “HRS 291C-105(a)(1) Excessive Speeding –

30+ MPH over speed limit.”3




3
  “No person shall drive a motor vehicle at a speed exceeding . . . [t]he
applicable state or county speed limit by thirty miles per hour or more.”
HRS § 291C-105(a)(1) (2007).



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B.        District Court Proceedings

               A bench trial was held on July 19, 2013.           Officer

Eguia testified as to the events of January 9, 2013, and the

extent of his training with respect to the laser gun.

Specifically, Officer Eguia was trained on August 24, 2012 to

“test[] and operate[]” the laser gun by way of classroom

instruction and written and practical tests.               As part of the

training, Officer Eguia was given and read the “LTI 20-20

TruSpeed laser manual,” which the course “went through.”                 The

training covered topics such as “the utilization of the laser,

how to test and make sure that it’s working properly[,] . . .

how to get speeds of vehicles[,] . . . what to do if the laser

is not working properly[,] and how to down [take out of

commission] the laser itself.”            During the course, Officer Eguia

“practiced . . . doing the four tests that have to be conducted

[prior to taking the laser on the roadway, and upon returning]”

to ensure the laser gun was working properly.

               Officer Eguia’s instructor was fellow Officer Dennis

Arns (“Officer Arns”), who was certified as an instructor by Bob

Long (“Mr. Long”), a representative of LTI, the laser gun’s

manufacturer.4        Officer Eguia was subsequently also instructed by

Mr. Long on how to instruct a course on the laser gun’s use.


4
  Mr. Long was not an employee with LTI, however. Officer Eguia had testified
that he “[n]ever met anybody actually from LTI who is employed by LTI.”


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            After Officer Eguia was excused, Gardner moved to

suppress the reading from the laser gun on the basis that the

proper foundation pursuant to State v. Gonzalez, 128 Hawaii 314,

288 P.3d 788 (2012), State v. Manewa, 115 Hawaii 343, 167 P.3d

336 (2007), State v. Assaye, 121 Hawaii 204, 216 P.3d 1227

(2009), and State v. Wallace, 80 Hawaii 382, 910 P.2d 695

(1996), was not laid, as

            there [was]n’t any competent evidence in the record as to
            the nature and extent of the training or as to the proper
            use and the manufacturer’s recommendations [of the laser
            gun] . . . . All of [Officer Eguia’s] information and
            testimony as to the testing that he did as to his training
            was based on hearsay information obtained strictly from the
            manual that he received and not from any direct knowledge
            he has from LTI itself.”

He further argued that there was no expert testimony regarding

the margin of error of the laser gun, as required by State v.

Fitzwater, 122 Hawaii 354, 227 P.3d 520 (2010).            The district

court denied the motion, relying on State v. Stoa, 112 Hawaii

260, 145 P.3d 803 (App. 2006), for the proposition that the LTI

was “specifically . . . approve[d] . . . as a laser speed gun.”

The district court acknowledged that Stoa was overruled by

Assaye, but that it was on other grounds.           The district court

then stated: “Admissibility in the test results then depend upon

a foundation [that] assures the accuracy of the particular

application[] [of the laser gun].           And in this phase of the

proceedings, I’m going to find the [S]tate has met its burden


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under that [standard].”       Gardner then moved for a judgment of

acquittal based on the State’s failure to meet its burden beyond

a reasonable doubt as to each and every element of the crime,

which was largely based upon Gardner’s assertion that an

improper foundation was laid for the admission of the laser gun

speed reading with respect to Officer Eguia’s training.              After

the court denied the motion, Gardner was called to the stand.

            Gardner testified that he had turned on the cruise

control function of his car prior to turning on to Mokulele

Highway where Officer Eguia spotted him.           His speedometer read

that he was traveling at 45 miles per hour.            To his knowledge,

his car’s speedometer and cruise control function were working

properly.     There was a steady stream of traffic that day, both

in front of and behind Gardner’s vehicle.           Mokulele is a two-

lane highway in each direction.         Gardner drove in the right

lane, and vehicles passed him on the left.           Gardner’s vehicle

did not have a front license plate.          In his closing argument,

Gardner’s counsel argued, among other things,

            [N]otwithstanding the laser gun readout, there just isn’t
            evidence in the record to support specifically what speed
            Mr. Gardner was going . . . .
                 [Gardner] was going 45 miles per hour based on the
            fact that his car was functioning properly on the day that
            he did set his cruise control at the legal speed limit as
            well as kept it at that speed. It’s not enough to show
            what his speed was, and we’re not conceding that there is
            credible evidence in the record or that the record has been
            made to lay the foundation properly to get the laser gun
            reading in.




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             The district court ultimately adjudged Gardner guilty,

and imposed a fine of $500 and a thirty-day suspension of his

driver’s license.       The district court also imposed a mandatory

driver retraining course, and ordered that fines, fees, and

assessments be paid within six months.

C.     Appeal to the ICA

             Gardner timely filed a Notice of Appeal to the ICA.

Gardner argued that the district court’s “Notice of Entry of

Judgment and/or Order and Plea/Judgment filed on July 19, 2013”

be reversed because:

             The district court erred in denying Gardner’s motion to
             strike/suppress the reading of Officer Eguia’s laser gun
             because the State failed to establish that (1) the laser
             gun was tested according to the manufacturer’s recommended
             procedures and found to be working properly, (2) the nature
             and extent of Officer Eguia’s training in the use of the
             laser gun met the requirements indicated by the
             manufacturer, (3) the laser gun had been inspected and
             serviced as required by the manufacturer, and (4) Officer
             Eguia was [] qualified to testify as to the speed reading
             of the laser gun.
                   . . . .
                   . . . Absent Officer Eguia’s testimony [regarding the
             speed reading of his laser gun], the State adduced no other
             evidence at trial sufficient to prove that Gardner drove at
             a speed exceeding the applicable speed limit by 30 miles
             per hour or more.

The State agreed that “the district court erred in concluding

that the State laid sufficient foundation for the speed reading

given by the laser gun, and in denying Gardner’s Motion to

Suppress the speed reading of 76 miles per hour.”              Among other

things, the State noted that “the record is silent” as to (1)

“what type of training is recommended by the manufacturer” of


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the laser gun, (2) what procedures the manufacturer required in

determining a particular gun’s margin of error, and (3) whether

Officer Eguia received training from an employee or authorized

representative of the laser gun manufacturer.            The State

“respectfully request[ed] that [the ICA] reverse Gardner’s

conviction and sentence entered in the district court’s Notice

of Entry of Judgment and/or Order Plea/Judgment filed on July

19, 2013.”

            In its June 30, 2015 Summary Disposition Order upon

reviewing the merits, the ICA held that “evidence [showing]

Officer Eguia was trained and certified by the manufacturer’s

representative as an instructor in the use of the laser gun,

together with the evidence of the extent of his training” was

sufficient to show that the Citing Officer’s training met the

manufacturer’s requirements.        Gardner, SDO at 5 (citing State v.

Amiral, 132 Hawaii 170, 179, 319 P.3d 1178, 1187 (2014)); see

also id. at 3–5 (quoting Officer Eguia’s trial testimony).                  The

ICA further held that, pursuant to Gonzalez, 128 Hawaii 314, 288

P.3d 788, inspection or service of the laser gun by the

manufacturer was not necessary , and that the laser gun was

working properly based on Officer Eguia’s testimony that (1) he

read the manufacturer’s manual for the laser gun several times,

(2) his training was based on and conducted in conformance with

the manual, (3) the manual contained instructions for four

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accuracy tests, and (4) he conducted those four tests before and

after using it to read Gardner’s speed.            See id. at 6.    Based on

the foregoing, the ICA concluded that the district court did not

abuse its discretion in admitting the laser gun speed reading,

and that therefore “the State adduced sufficient evidence to

prove every element of Gardner’s offense beyond a reasonable

doubt.”    Id. at 7 (citing Assaye, 121 Hawaii at 216, 216 P.3d at

1239).

             Accordingly, the ICA affirmed the “Notice of Entry of

Judgment and/or Order and Plea/Judgment, filed on July 19,

2013.”     Id.

                         III.    Standard of Review

              “When a question arises regarding the necessary

foundation for the introduction of evidence, ‘[t]he

determination of whether proper foundation has been established

lies within the discretion of the trial court[,] and its

determination will not be overturned absent a showing of clear

abuse.’”    State v. Loa, 83 Hawaii 335, 348, 926 P.2d 1258, 1271

(1996) (quoting State v. Joseph, 77 Hawaii 235, 239, 883 P.2d

657, 661 (App. 1994)) (brackets in original).

                                IV.   Discussion

            To establish the requisite foundation for the

admission of a speed reading from a laser gun, the prosecution



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must present evidence demonstrating two requirements: (1) the

operator of the laser gun received training, the nature and

extent of which meet the laser gun manufacturer’s requirements,

and (2) that prior to making the at-issue reading, the laser gun

was tested and determined to be operating properly according to

the manufacturer’s established procedures.           See Amiral, 132

Hawaii at 178, 319 P.3d at 1186 (quoting Assaye, 121 Hawaii at

215, 216 P.3d at 1238); Assaye, 121 Hawaii at 213, 216 P.3d at

1236 (citing Manewa, 115 Hawaii at 354, 167 P.3d at 347).

            With respect to the first requirement that the laser

gun operator receive training that meets the laser gun

manufacturer’s requirements, the ICA stated that the State

            “could . . . establish[] the type of training the
            manufacturer recommended” by providing the court with
            evidence that course instructors were “actually certified
            by the manufacturer or had been trained by the
            manufacturer,” “that the training course itself was
            approved by the manufacturer or was consistent with the
            manufacturer’s requirements,” and that “the [operator]
            learn[ed] to perform the four tests” set forth in the laser
            gun’s manual to verify its accuracy.

Gardner, SDO at 3 (quoting dicta from Amiral, 132 Hawaii at 179,

319 P.3d at 1187) (alterations in original).            The ICA noted that

the Citing Officer received both training to operate the laser

gun (“user training”), and training to instruct on the use of

the laser gun (“instructor training”).           Although the user

training was conducted by a fellow police officer, Dennis Arns

(who was certified as an instructor by Bob Long, a


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representative of the manufacturer), the instructor training was

conducted by Mr. Long.       Officer Eguia received instructor

certification from Mr. Long that stated “LTI certification.”

The ICA also noted the scope of Officer Eguia’s user training

pursuant to his testimony.        See Gardner, SDO at 5.       The ICA

concluded that “the evidence presented, which included that

Officer Eguia was trained and certified by the manufacturer’s

representative as an instructor in the use of the [l]aser [g]un,

together with the evidence of the extent of his training, was

sufficient to show that Officer Eguia’s training met the

requirements indicated by the manufacturer.”            Id. at 5 (citation

and internal quotation marks omitted).

            In sum, the evidence shows that Mr. Long was a

representative of the laser gun manufacturer; both Officers Arns

and Eguia received instructor training from Mr. Long; Officer

Arns conducted Officer Eguia’s user training; and Officer Eguia

learned how to conduct the manufacturer’s accuracy tests through

his training with Officer Arns.         There is no evidence that the

user training course taught by Officer Arns, which was completed

by Officer Eguia, was “itself . . . approved by the manufacturer

or was consistent with the manufacturer’s requirements.”              The

ICA homed in on the fact, however, that the instructor training

was conducted by Mr. Long, the laser gun manufacturer’s

representative.      Thus, presumably, with respect to how to

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instruct on the use of the laser gun, the prosecution could

establish that Officer Eguia was taught by the manufacturer

through its representative, Mr. Long, and that Mr. Long’s

instructor course was approved by the manufacturer.

            Lacking, however, is any evidence regarding the nature

and extent of Officer Eguia’s instructor training from the

manufacturer.     Specifically, there is no evidence that Mr. Long

taught Officer Eguia how to execute the manufacturer’s required

tests to verify the accuracy of the laser gun.            Additionally,

Officer Eguia did not testify that he executed those tests

pursuant to what he learned from Mr. Long.           Without such a

showing, the prosecution failed to demonstrate that the

instructor training Officer Eguia received from Mr. Long

satisfies the first requirement.

            It is possible that Officer Eguia may have had

personal knowledge as to whether Officer Arn’s user course

(which Officer Eguia took to learn how to use the laser gun)

complied with the manufacturer’s requirements for such a course

(as Officer Eguia was taught by Mr. Long as to how to instruct

such a user course).       The record is bare of any testimony,

however, that the user training Officer Eguia received from

Officer Arns comported with the manufacturer’s requirements.

            As the requirement regarding the nature and extent of

Officer Eguia’s training was not met, the State failed to lay a

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proper foundation for the admission of the laser gun reading.

This requirement is well established in our case law.

Accordingly, the ICA erred in determining that the district

court did not abuse its discretion in admitting the laser gun

reading.    Reversal of the judgment, as requested by both Gardner

and the State, is warranted.

                               V.   Conclusion

            For the foregoing reasons, IT IS HEREBY ORDERED that

the ICA’s Judgment on Appeal is reversed and the district

court’s “Notice of Entry of Judgment and/or Order and

Plea/Judgment, filed on July 19, 2003” is reversed.

            DATED:    Honolulu, Hawaii, March 15, 2016.

James S. Tabe                         /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Artemio C. Baxa
for respondent                        /s/ Sabrina S. McKenna

                                      /s/ Richard W. Pollack

                                      /s/ Michael D. Wilson




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