CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000374; CASE NO. 1DTI-10-123021)
Kevin O’Grady for petitioner.
ACOBA, McKENNA, AND POLLACK, JJ.
Petitioner/Defendant-Appellant John Amiral (Amiral) seeks review of the Intermediate Court of Appeals' (ICA) May 31, 2013 Judgment (ICA Judgment), filed pursuant to its April 30, 2013 Summary Disposition Order, affirming the Notice of Entry of Judgment and/or Order and Plea/Judgment (Judgment) entered by the District Court of the First Circuit, 'Ewa Division (district court) on April 12, 2011. For the reasons set forth herein, we vacate the ICA Judgment and the district court Judgment and remand the case to the district court for further proceedings.
A. Pre-Trial Proceedings
On July 26, 2010, Honolulu Police Department (HPD) Officer Zenas Ondayog issued a citation to Amiral for driving his vehicle sixty-five miles per hour in an area where the posted speed limit was fifty miles per hour.
The State of Hawai'i (State) filed a Notice of Traffic Infraction on July 28, 2010, charging Amiral with the offense of Exceeding the Speed Limit in violation of Hawai'i Revised Statutes (HRS) § 291C-102 (2007)
Amiral submitted via mail his Answer to Notice of Traffic/Parking Infraction form (Answer), which was filed on September 1, 2010. In his Answer, Amiral denied the charge and contested it by submission of a written statement.
In his written statement, Amiral contended that Officer Ondayog wrongfully issued a citation to him, as the Officer failed to indicate on the citation that the "device/speedometer was accurate, tested, [and] working properly."
On October 7, 2010, the district court held a "Chambers Review" regarding the charge against Amiral for Exceeding the Speed Limit. Having reviewed Amiral's written statement, the district court ruled in favor of the State and issued its Judgment and Notice of Entry of Judgment. The district court imposed a $75 fine, a $7 driver education assessment, a $10 neurotrauma surcharge, and a $40 administrative fee.
Amiral filed a Request for Trial on November 8, 2010. December 8, 2010, Amiral sent the State a Request for Disclosure, requesting all documents related to Officer Ondayog's Laser Technology Incorporated (LTI) UltraLyte 20-20 laser gun (UltraLyte), including the manual, maintenance logs, and Officer Ondayog's training in the use of the UltraLyte.
After receiving Amiral's Request for Disclosure, the State responded that the information requested by Amiral was either not available to their office or not discoverable under Hawai'i Rules of Penal Procedure (HRPP) Rule 16 (2010) .
Amiral filed a Motion to Compel arguing that the documents he requested from the State were discoverable under HRPP Rule 16 as material that "tends to negate the guilt of the defendant as to the offense charged."
On January 11, 2010, the district court held a hearing on Amiral's Motion to Compel and ordered that the State allow defense counsel to review and make one copy of the following: (1) "Marksman instructor manual"; (2) "Marksman (trainee) manual"; (3) "LTI UltraLyte operator (user) manual"; and (4) "LTI Marksman operator (user) manual."
B. Trial Proceedings
The district court held a bench trial on April 12, 2011. Prior to the commencement of trial the district court addressed outstanding discovery matters. Defense counsel argued that although he had a copy of the UltraLyte manual from a prior trial, the State failed to produce all of the other documents that were requested by Amiral's Motion to Compel. The district court found that since defense counsel had a copy of the manual and Amiral's motion had been ruled upon by the prior judge, it was not necessary to address the discovery issue further and proceeded with trial.
Officer Ondayog, who testified for the State, was the only witness. At approximately 7:34 a.m., on July 26, 2010, he was conducting speed enforcement of the westbound traffic along Moanalua Freeway, where the posted speed limit was fifty miles per hour. At the same time, Amiral was driving his vehicle westbound on Moanalua Freeway. As Amiral's vehicle approached his vantage point, Officer Ondayog observed that Amiral's vehicle was traveling at a higher rate of speed than the other vehicles in the flow of traffic and aimed his LTI UltraLyte at Amiral's vehicle.
Officer Ondayog indicated that in January 2002 he was trained and certified in the use of the UltraLyte by HPD Sergeant Ryan Nishibun at the police academy. On November 4, 2010, Officer Ondayog attended a "refresher course" on the use of the UltraLyte that was taught by HPD Officers Jeremy Franks and Ikaika Lee.
Both the training at the police academy and the "refresher course" consisted of a four-hour "lecture class" on the mechanics of the UltraLyte and four hours of "practice." Officer Ondayog recalled that there were thirty-two trainees in his class and none of the participants "failed" the course, as the course did not include a written or practical examination.
Officer Ondayog testified that he received a manual as a part of his training. He did not indicate whether the manual that he had been given and used for comparison was a: 1) "Marksman instructor manual"; (2) "Marksman (trainee) manual"; (3) "LTI UltraLyte operator (user) manual"; or (4) "LTI Marksman operator (user) manual."
The prosecutor asked Officer Ondayog if the instructions in the manual specified how to test the UltraLyte to verify that it was accurate and operating properly. Defense counsel objected on the basis of foundation and hearsay, arguing that Officer Ondayog did not have personal knowledge of the instructions in the manual. The district court initially sustained the objection, but later overruled the objection on the basis that "this is foundation for foundation because the training itself is foundation."
Over objection, Officer Ondayog testified that the instructions in the manual specified the tests to ensure that the UltraLyte is "working accurately and being operated properly, " and his training in the use of the UltraLyte was based upon those instructions in the manual.
Officer Ondayog stated that he was trained to conduct the following four tests in order to verify that the UltraLyte is working properly: (1) the "self-test"; (2) the "display test"; (3) the "scope alignment test"; and (4) the "delta distance velocity test" (delta/distance test) or the "calibration test" (collectively "four tests") The "self-test" confirms that the lights on the display of the UltraLyte are working properly. In order to conduct the "self-test, " Officer Ondayog explained that "you need to depress the trigger of the [UltraLyte]. Four numerical 8's will display. If there is a numerical like 5-0 or a 5-5, . . . the [display of the UltraLyte] is not working accurately."
The "display test" verifies that the lights on the display and the "test mode button" of the UltraLyte are working properly. The "display test" is conducted by pressing the "test mode button" on the UltraLyte. If a "TT" symbol and "four numerical 8's" appear on the display, then the "test mode button" and the lights on the display are working properly. Officer Ondayog testified that he conducts the "display test" before and after his shift.
The "scope alignment test" confirms that "the red dot within the center of the scope" and the UltraLyte laser are aligned. In order to conduct the "scope alignment test, " Officer Ondayog aims and holds the trigger of his UltraLyte at a light pole while panning the pole horizontally and vertically. If the scope and laser are aligned, the UltraLyte makes a high-pitched clicking sound, which is the same sound the device makes while it is tracking a vehicle. Officer Ondayog acknowledged that "hearing different pitches is a subjective thing as opposed to if a green light came on and it said [the UltraLyte was] working[.]" Officer Ondayog testified that he conducts the "scope alignment test" prior to his shift and after every traffic stop, and has never had to adjust the scope of his UltraLyte.
With respect to the delta/distance test, Officer Ondayog utilizes two concrete pillars and a marked parking stall on the "PI" level of the parking structure at the HPD main station. Officer Ondayog testified that he personally measured the distances between the marked parking stall and the two pillars and found that the distance to the nearest pillar was 130 feet and the distance to the furthest pillar was 155 feet. Officer Ondayog explained that based on an internal calculation of the two fixed distances, the UltraLyte should display "50" to verify the accuracy of the device.
Defense counsel then had Officer Ondayog read part of the manual, which indicated that "[f]or uniformity [in conducting the delta/distance test], [the fixed distance] should be 175 feet from the shooting mark." Officer Ondayog acknowledged that the "[pillars] were [constructed] to hold up the parking garage, " rather than to conduct the delta/distance test on his UltraLyte.
As to the calibration of his UltraLyte, Officer Ondayog testified that had not sent his UltraLyte to the manufacturer for maintenance since receiving the device in 2009. During this period, he also had not performed any maintenance on the Ultralyte other than to change the battery. Officer Ondayog explained, "I'm not an employee. I don't calibrate. I just conduct those four tests, that's it."
Officer Ondayog acknowledged that the UltraLyte was an electronic device that required software "to figure out what's going in to spit out some number on the display[, ]" but he did not know what type of software his UltraLyte required in order to work properly or how the software works. Officer Ondayog testified that he had neither checked for the internal software revision number nor did he know how to locate it. Officer Ondayog also had not sent his UltraLyte to the manufacturer for a software upgrade.
Officer Ondayog elaborated upon the usage and storage of his UltraLyte. On average, he stops more than forty cars a day when he conducts speed enforcement. Officer Ondayog testified that he had measured the speed of "hundreds of vehicles, maybe thousands[.]" When he is not using his ...