Craig W. Jerome, (James A. Tabe on the application), for petitioner.
Brandon H. Ito, for respondent.
ACOBA, McKENNA, and POLLACK, JJ., with RECKTENWALD, C.J., concurring and dissenting, with whom NAKAYAMA, J., joins.
[130 Hawai'i 354] We hold that because the charge of Excessive Speeding, Hawaii 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 Hawaii 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 23, 2011 Notice of Entry of Judgment and/or Order and Plea/Judgment of the district court of the first circuit  (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 Hawaii (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.
[130 Hawai'i 355] I.
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 Hawaii, 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)(  ) of the [HRS], as you have had one prior conviction within a five-year period.
Petitioner did not object to the oral charge.
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." 
According to the officer, the manual stated that four tests  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.
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 [130 Hawai'i 356]
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 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.
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.
In closing argument, Petitioner stated " that [the 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.
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."
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 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 Hawaii 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 Hawaii 204, 217, 216 P.3d 1227, 1240 (2009) (Acoba, J. concurring).)
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 [130 Hawai'i 357]
to determine whether the laser was working properly." State v. Apollonio, No. CAAP-11-0000695, 128 Hawaii 129, 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.
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 Hawaii 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.
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 Hawaii 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 Application (Response). On November 13, 2012, Petitioner filed a Reply.
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."  (Citing Nesmith, 127 Hawaii at 56, 276 P.3d at 625.) Additionally, Petitioner argues that " the oral charge was fatally defective under Hawaii Rules of Penal Procedure (HRPP) Rule 7(d),"  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 Hawaii 139, 142, 63 P.3d 1109, 1112 (2003).)
In its Response, Respondent argues that " [t]he Nesmith majority's holding that mens rea must be alleged in a charge was 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 Hawaii 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 [130 Hawai'i 358]
conviction.’ " (Quoting Nesmith, 127 Hawaii at 56, ...