APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CR. NO. 09-1-1724).
Phyllis J. Hironaka, Deputy Public Defender, for Defedant-Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
FOLEY, PRESIDING JUDGE, FUJISE AND LEONARD, JJ.
[135 Hawai'i 295] OPINION
In this appeal stemming from a criminal prosecution, we are asked to consider another permutation of Crawford: Whether the foundation for the admission of business records which may be laid by way of declaration under our rules of evidence must meet the live testimony and cross-examination requirements of the Confrontation Clause.
This case arises out of sexual assaults committed by Defendant-Appellant Ubaldo A. Cruz (Cruz) against his neighbor's daughter (CW) over three days in October, 2009. At the time of these assaults, Cruz was 49 years old and CW was 15 years old. The prosecution's theory of the case was based, in part, on Cruz's phone calls to CW on her cellular telephone throughout the three-month period of August, September, and October of 2009. To this end, the State filed, on May 10, 2010, a " Declaration of Custodian of Business Records" (Custodian Declaration) created and sworn to by the custodian of records for T-Mobile USA, Cruz's carrier.
Cruz moved for an order excluding, among other things, " Testimonial or documentary evidence relating to T-Mobile Telephone records [for a specified telephone number.]" The Circuit Court denied this request, but did not rule on Cruz's argument that the failure to call the custodian of records to testify at trial was a violation of Cruz's right to confront under Crawford.
The following day, the matter was taken up again as the prosecution sought to introduce the records.
[PROSECUTOR]: Your Honor, at this time, the State will introduce into evidence State's 19, which is a certified copy of a declaration of custodian of records from T-Mobile USA, and State's 20, which are business records from T-Mobile.
. . . .
[CIRCUIT COURT]: [Prosecutor], how will you establish that they are business records other than your statement that they are business records?
[135 Hawai'i 296] [PROSECUTOR]: It's in the declaration from T-Mobile that these are business records.
[CIRCUIT COURT]: And there's a stipulation to admit the declaration of the custodian of records?
[DEFENSE COUNSEL]: No, Your Honor, this was the basis of our objection previously made in the motion in limine.
[PROSECUTOR]: And, Your Honor, this is offered pursuant to Hawaii Rules of Evidence 902, sub (11). What it is, it's a declaration of a custodian of records that allows the State to admit these ...