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State of Hawaii v. Shon K. Poteat

August 26, 2011

STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
SHON K. POTEAT,
DEFENDANT-APPELLANT.



APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT 'EWA DIVISION (CASE NO. 1DTA-10-01645)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Leonard and Ginoza, JJ.)

Defendant-Appellant Shon Poteat (Poteat) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment (judgment) filed on October 13, 2010 in the District Court of the First Circuit, 'Ewa Division (District Court).*fn1

After a bench trial, Poteat was convicted of Excessive Speeding, in violation of HRS § 291C-105(a)(1)(a)(2) (2007 Repl.).*fn2

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

On appeal, Poteat contends that the District Court erred in receiving evidence of a laser speed gun reading because:

(1) there was insufficient foundation that the laser gun was tested according to the manufacturer's recommended procedures and insufficient foundation that the officer was qualified by training and experience to operate the laser gun; and (2) the officer's testimony about alleged statements by representatives of the laser gun manufacturer was inadmissible hearsay and violated Poteat's right to confront witnesses.*fn3 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 by the parties, we resolve Poteat's points of error as follows.

At trial, Officer Jeremy Franks (Officer Franks)

testified that on February 22, 2010, he observed Poteat's vehicle on the H-1 freeway and it appeared to be traveling faster than the speed limit. Officer Franks testified that he activated a laser gun, pointed it at Poteat's vehicle, and the reading from the laser gun indicated a speed of 86 miles per hour. The defense objected to the laser gun reading, but the objection was overruled by the district court.

We conclude that there was insufficient foundation for admission of the laser gun reading and therefore the district court abused its discretion in admitting this evidence. Sufficient foundation for admission of the laser gun reading requires evidence: (1) "that the laser gun's accuracy was tested according to procedures recommended by the manufacturer[;]" and

(2) that "the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer." State v. Assaye, 121 Hawaii 204, 215, 216 P.3d 1227, 1238 (2009) (citations omitted).

In this case, there was sufficient evidence that the testing of the laser gun's accuracy was done according to the manufacturer's recommendations. However, there was not sufficient evidence that Officer Franks's training in the operation of the laser gun met the manufacturer's requirements. Specifically, although Officer Franks testified that his training in testing the laser gun was done according to manufacturer recommendations, there is no evidence that his training in otherwise operating the laser gun met manufacturer recommendations.

Officer Franks testified that he was initially trained in 2003 to use the laser gun. This consisted of four hours of classroom training, as well as practical use and operating the laser gun. As part of the classroom training, he testified he was issued a laser manual which "was generated by the manufacturer through HPD, and we were issued a copy of it from HPD." The manual had a "copyright from Laser Technologies" or "LTI" on the front cover, which stands for "Laser Technologies, Incorporated[,]" which is "the manufacturer of the laser".*fn4 Officer Franks confirmed that he was trained to do four tests on the laser gun that were contained in the manual as part of the manufacturer's recommended procedure. Notably, other than the training for the four tests, there is no ...


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