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State v. Davis

Supreme Court of Hawaii

May 15, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
RAYMOND S. DAVIS, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0001121; CASE NO. lDTA-12-01623)

          Phyllis J. Hironaka for petitioner

          James M. Anderson for respondent

          McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

          OPINION

          POLLACK, J.

         This case concerns the admissibility of two Intoxilyzer Supervisor's Sworn Statements to prove that the Intoxilyzer used to test Raymond S. Davis's breath alcohol content was in proper working order. The State relied on these out-of-court statements in establishing the reliability of Davis's breath alcohol test results, which in turn served as a basis for his conviction for the offense of operating a vehicle under the influence of an intoxicant. We consider whether the Intoxilyzer Supervisor's Sworn Statements were admissible given the facts of this case under the Hawaii Rules of Evidence.

         I. BACKGROUND

         The State of Hawai'i filed a complaint in the District Court of the First Circuit (district court), charging that, on March 3, 2012, Raymond S. Davis committed the offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (1) and/or (a) (3) (Supp. 2011).[1] At the commencement of the bench trial, [2] the State orally arraigned Davis only under HRS § 291E-61(a)(3) for operating or assuming actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per 210 liters of breath. Davis entered a plea of not guilty to the charge.

         The State's first witness was Officer Russell Maeshiro, who testified that on March 3, 2012, around 2:10 a.m., he stopped Davis's car after observing Davis weave in and out of marked lanes without using his blinkers or hand signals. Officer Maeshiro approached the driver's side of the vehicle and observed that Davis had red, bloodshot, glassy eyes and noted that Davis spoke with an apparent slight slur. The officer stated that he asked Davis to complete a field sobriety test after smelling the odor of an alcoholic beverage coming from the interior of Davis's car. At this point in the testimony, Davis stipulated that, based on Officer Maeshiro's observations, the officer had reasonable suspicion to stop Davis and probable cause to arrest him for OVUII.

         Officer Kimberly Ann Chaney testified that she transported Davis from the location of the stop to the Kalihi police station. Officer Chaney related that she informed Davis of the implied consent law by reading him form HPD-396K.[3] After Davis elected to take a breath test, Officer Chaney testified that she turned on the Intoxilyzer 8000, identified as serial number 80-003486 (Intoxilyzer), and that the machine proceeded to conduct and pass an internal self-check.

         After questioning Officer Chaney regarding the internal self-check, the State asked whether "based on [Officer Chaney's] training and experience in operating the Intoxilyzer 8000, " the instrument "appear[ed] to be operating properly and accurately on the date in question." Before Officer Chaney responded, the State showed to defense counsel two Intoxilyzer 8000 Accuracy Test Supervisor's Sworn Statements, dated February 29, 2012, and March 16, 2012 (Sworn Statements 1 and 2, respectively). The State, however, asked no questions of Officer Chaney regarding Sworn Statements 1 and 2. Rather, the State informed the court that Sworn Statements 1 and 2 "show[ed] that the instrument was working properly" and that it sought to admit the documents into evidence as proof of the Intoxilyzer's condition and accuracy.

         The top half of Sworn Statements 1 and 2 includes a machine printout of the calibration testing data from the Intoxilyzer. The bottom half of Sworn Statements 1 and 2 includes a pre-printed text block in which a person by the name of Woo Kang is identified as the Intoxilyzer supervisor. As to the machine printout of the calibration testing data, there is a table listing the following information in this order: (1) air blank; (2) simulator temperature; (3) reference sample #1; (4) air blank; (5) air blank; (6) simulator temperature; (7) reference sample #2; (8) air blank; (9) ITP check; and (10) air blank. Next to each category of information, except the simulator temperatures, is a data entry based on "g/21OL BrAC."[4] Next to each data entry is a time stamp.

         The pre-printed text block located in the bottom half of Sworn Statements 1 and 2 contains the following statement:

I, Woo KANG, swear that the aforementioned information is true and correct and that I am a duly licensed Intoxilyzer 8000 supervisor trained to maintain and perform accuracy tests on the Intoxilyzer 8000. The Intoxilyzer 8000 is a breath alcohol testing instrument approved for use in the State of Hawaii pursuant to section 321-161 of the Hawaii Revised Statutes as amended. The Intoxilyzer was operating accurately in compliance with the State of Hawaii Department of Health Administrative Rules, Title Eleven, Chapter 114-7, on the date indicated below, when I conducted the accuracy test recorded on this document.

         Below this pre-printed language are the date, Woo Kang's signature, and his license number and its expiration date.

         Davis objected to Sworn Statements 1 and 2 being entered into evidence based upon, inter alia: (1) lack of foundation; (2) hearsay; and (3) hearsay within hearsay. Davis argued that Sworn Statements 1 and 2 did not substantively comply with the requirements of Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (1993 & Supp. 2002), which is the hearsay exception for records of regularly conducted activity (i.e., business records). Further, Davis maintained that without more information or testimony as to Sworn Statements 1 and 2, the data printout reflecting the calibration test results was meaningless to the court; he noted, for example, that there was no evidence presented as to what known reference samples were used in the calibration testing and what their "target values" or output should have been in the machine's data printout. Additionally, Davis contended that there was no information presented as to the specifics of the calibration procedure performed by Kang, which apparently differed from the Intoxilyzer's internal self-check. Davis also objected to the admission of Sworn Statements 1 and 2 into evidence under the public records exception. Davis argued that Sworn Statements 1 and 2 lacked reliability on their face because the State failed to present the circumstances of how the information was obtained, given that Kang did not testify at trial.

         The State contended that there was sufficient legal basis under HRE Rule 803(b)(8) (1993 & Supp. 2002) for the admission of Sworn Statements 1 and 2 into evidence because they were public records made in the course of a regularly conducted activity. The State maintained that each document was a self-authenticating copy of the original log, which was kept in the custody of the Honolulu Police Department (HPD), a public office, and that each document contained a data compilation. The State further argued that the criteria for admitting Sworn Statements 1 and 2 into evidence were met because each document, on its face, complied with the requirements prescribed in the Hawai'i Administrative Rules (HAR), and each document indicated that the Intoxilyzer was "operating accurately" when calibrated. The State maintained that the district court did not need to look at the data printout set forth in Sworn Statements 1 and 2 to determine whether or not the device was operating accurately because Kang swore that the machine was operating accurately in compliance with the HAR.

         Over the defense's objection, the district court received into evidence Sworn Statements 1 and 2.[5] The district court, also over objection, admitted into evidence the March 3, 2012 Sworn Statement of Intoxilyzer Operator (Operator Statement), which indicated that the breath alcohol content measured by the Intoxilyzer for Davis was .139 grams of alcohol per 210 liters of breath.

         Based on the evidence presented, the district court concluded that the State met the three foundational requirements to show that Davis's breath test results could be relied on as substantive evidence: (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered. The court also determined that the State showed strict compliance with the requirements of the HAR. Consequently, the district court concluded that the State proved beyond a reasonable doubt that Davis had .08 or more grams of alcohol per 210 liters of breath at the time he was driving on March 3, 2012. Accordingly, the district court found Davis guilty of the offense charged and entered its Order and Notice of Entry of Order on November 29, 2012.

         Davis appealed to the Intermediate Court of Appeals (ICA), challenging the district court's admission of Sworn Statements 1 and 2 into evidence on the grounds that they did not meet the foundational requirements and failed to comply with the requirements of the business records exception.[6] Davis noted that he had objected at trial to the admission of Sworn Statements 1 and 2 under the Hawaii Rules of Evidence as inadmissible hearsay. Davis further contended that because the district court erred in admitting Sworn Statements 1 and 2, the State failed to present any evidence that the Intoxilyzer used to test his breath alcohol content was in proper working order and thus failed to lay a proper foundation for the admission of his breath test results. In response, the State maintained that the district court properly admitted Sworn Statements 1 and 2 into evidence as public records under HRE Rule 803(b)(8). The State therefore argued that the district court did not err in admitting Davis's breath test results into evidence.

         In a Summary Disposition Order, the ICA ruled that the district court did not err by admitting Sworn Statements 1 and 2 into evidence because they were admissible as self-authenticating public records under HRE Rules 803(b)(8) and 902(4). The ICA reasoned that because Intoxilyzer calibration tests by the HPD are required, pursuant to HAR § 11-114-12, [7] to be kept and maintained by the Intoxilyzer supervisor for at least three years, Sworn Statements 1 and 2 are public records or reports of a public agency and, therefore, an exception to hearsay within the meaning of HRE Rule 803(b)(8).[8] Accordingly, the ICA affirmed the district court's Order and Notice of Entry of Order entered on November 29, 2012.

         II. STANDARDS OF REVIEW

         "When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard." State v. Jhun, 83 Hawai'i 472, 477, 927 P.2d 1355, 1360 (1996) (quoting Kealoha v. Cty. of Hawai'i, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)). However, in cases where the rules of evidence require a "judgment call" by the trial court, "the traditional abuse of discretion standard should be applied." Id. Thus, in Jhun, in reviewing the trial court's ruling with respect to hearsay and HRE Rule 803(b)(8), this court applied the right/wrong standard because the trial court did not have to make a "judgment call" when it determined that the proffered evidence failed to qualify under the public records exception, as the report did not set forth factual findings resulting from an investigation. Id. at 477-81, 927 P.2d at 1360-64.

         III. DISCUSSION

         In his Application for Writ of Certiorari, Davis contends that the ICA erred in concluding that the district court properly admitted into evidence Sworn Statements 1 and 2 under the Hawaii Rules of Evidence.[9] Davis maintains that because Sworn Statements 1 and 2 were improperly admitted, evidence of his breath alcohol content obtained from the Intoxilyzer was also improperly received and thus there was insufficient evidence to support his OVUII conviction.

         In State v. Thompson, 72 Haw. 262, 814 P.2d 393 (1991), this court noted that to admit a specific Intoxilyzer breath alcohol test result into evidence, the prosecution must lay a proper foundation "to establish the accuracy of the alcohol concentrations used in breath tests." Id. at 263, 814 P.2d at 394. The foundation must show that "(1) the intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered." Id. at 263, 814 P.2d at 394-95 (quoting State v. Souza, 6 Haw.App. 554, 558, 732 P.2d 253, 257 (1987)). This foundation is necessary to prove the reliability of the test result that establishes intoxication before the test result can be relied on as a substantive fact. Souza, 6 Haw.App. at 558, 732 P.2d at 256.

         "[I]n meeting the foundational prerequisites for the admission of the Intoxilyzer test result[, ] there must be a showing of strict compliance with those provisions of the [Hawai'i Administrative] Rules [governing the testing of blood, breath, and other bodily substances for alcohol concentration] which have a direct bearing on the validity and accuracy of the test result."[10] State v. Kemper, 80 Hawai'i 102, 105, 905 P.2d 77, 80 (App. 1995) (quoting State v. Matsuda, 9 Haw.App. 291, 293, 836 P.2d 506, 508 (1992)). This includes establishing that the calibration procedure used to test the accuracy of the Intoxilyzer strictly complied with the HAR because the calibration test has a "direct bearing on the validity and accuracy of the test result obtained from that Intoxilyzer." Souza, 6 Haw.App. at 562, 732 P.2d at 259. Accordingly, in order "to fulfill the foundational prerequisites of admissibility" of the test result in this case, the State was required to show that the Intoxilyzer calibration test, which has a direct bearing on the validity and accuracy of Davis's breath test result, was in compliance with HAR § 11-114-7[11] and was therefore in proper working order on the calibration testing dates. See id.

         A. Admissibility under Public Records Exception, HRE Rule 803(b)(8)

         The State contended at trial, and the ICA agreed, that Sworn Statements 1 and 2 were admissible public records under HRE Rule 803(b)(8) (1993 & Supp. 2002) and thus demonstrated that the Intoxilyzer was in proper working order on the dates of the calibration testing.[12]

         i. Analysis of "Matters Observed, " HRE Rule 803(b)(8)(B)

         HRE Rule 803(b)(8) sets forth the public records hearsay exception:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

HRE Rule 803(b)(8) (1993 & Supp. 2002).

         Thus, the public records exception to the hearsay rule allows for the admission of records, reports, statements, or data compilations, in any form, of public offices or agencies if those documents contain certain categories of information and meet other requirements of this hearsay exception. Id. Under HRE Rule 803(b)(8)(B), a public record may be admissible if it sets forth "matters observed pursuant to a duty imposed by law as to which there was a duty to report." A record or report will not be admissible under the public records exception, however, if it falls within the exclusion clause of HRE Rule 803(b)(8)(B), which prohibits the admission in criminal cases of "matters observed by police officers and other law enforcement personnel." Id.

         Therefore, determining whether proffered hearsay evidence falls within HRE Rule 803(b)(8)(B) requires a two-part inquiry. First, the proponent of the evidence must establish that the record or report presents "matters observed" and that there existed a duty to make and report the observations. Id. Second, the proffered evidence must not fall within the criminal case exclusion clause as a matter observed by law enforcement personnel.[13] Id.; see also Addison M. Bowman, Hawaii Rules of Evidence Manual § 8O3-3[8][D], at 8-44 (2016-2017 ed.).

         As to the first inquiry, the phrase "matters observed" "could reach virtually everything, but apparently it was intended to have [a] narrower meaning." Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.50, at 910 (5th ed. 2012). That is, the term "matters observed" narrows the coverage of subsection (B) "to information that is concrete and simple in nature, " rather than encompassing all "records describing an almost endless variety of acts, events, and conditions in the world observed and depicted by public officials." Id. at 910. Indeed, "matters observed" are "routine recordations not resulting from analysis or judgment" and do not encompass "conclusions, opinions, and evaluative findings." Bowman, supra, § 803-3[8][D], at 8-44 (emphasis added); see also Pool v. Wade, 685 N.E.2d 791, 793 (Ohio Ct. App. 1996) (analyzing "matters observed" subsection of similar Ohio public records exception and stating that "[n]otably, the Rule does not include records, or portions of records, that may be characterized as flevaluations' or 'interpretations' of . . . events or transactions." (quoting Weissenberger's Ohio Evidence § 803.105, at 409 (1996))) .

         Examples of data or information compilations that do constitute "matters observed" include official weather observations, Village of Evanston v. Gunn, 99 U.S. 660, 666-67 (1878) (meteorological observations by U.S. Signal Service); judgments or orders of the court, State v. Samonte, 83 Hawai'i 507, 538, 928 P.2d 1, 32 (1996) (court record of judgment of conviction); a Coast Guard description of a damaged buoy, United States v. Tug Otto, 296 F.Supp. 1130, 1133 (S.D. Tex. 1967) (record of the board of survey finding that the buoy was damaged beyond economic repair admissible because "[n]o particular degree of expertise would be required to make a determination if a particular buoy were damaged beyond economic repair"); reports detailing observed conditions at institutional facilities, Schwartzberg v. Califano, 453 F.Supp. 1042, 1046 (S.D.N.Y. 1978) (U.S. Department of Health, Education, and Welfare report recounting observations of nursing home and health facility); and "observations in an accident report that describe the scene and equipment and report concrete measurements and easily observable damage or destruction, " Mueller & Kirkpatrick, supra, § 8.50, at 911.

         ii. Comparison to "Factual Findings, " HRE Rule 803(b)(8)(C)

         Comparing the term "matters observed" within subsection (B) of HRE Rule 803(b)(8) and the term "factual findings" within subsection (C) further demonstrates the former's limited scope. "Factual findings from an investigation" admissible under HRE Rule 803(b) (8) (C)'s federal counterpart[14] have been interpreted by the United States Supreme Court to include "conclusions or opinions that flow from a factual investigation." See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 164 (1988); see also State v. Jhun, 83 Hawai'i 472, 481, 927 P.2d 1355, 1364 (1996) (noting that "independent conclusions or opinions" may be admissible as "factual findings" under HRE Rule 803(b)(8)(C)). Notably, the legislative history of the federal public records exception suggests that its drafters envisioned the "factual findings" subsection--rather than the "matters observed" or "activities of an office or agency" subsections--as providing the gateway for admission of "evaluative reports" that would otherwise constitute hearsay. See Beech Aircraft Corp., 488 U.S. at 164-67 (discussing legislative history of FRE 803(8)(A)(iii) and determining that the Advisory Committee "surely" intended that "factual findings" subsection would allow for admission of "evaluative reports").

         In keeping with this distinction, the term "matters observed" within the federal public records exception has been interpreted as excluding evaluative findings and opinions. See Baker v. Elcona Homes Corp., 588 F.2d 551, 556-57 (6th Cir. 1978). In Baker, a defendant in a vehicular negligence lawsuit sought to introduce a police accident report to settle the disputed fact of whether a traffic light was red or green at the time of an accident. Id. at 555. The police report included (1) the responding officer's visual description of the accident scene upon arrival, including measurements and physical markings, (2) a transcript of the officer's subsequent interview with one of the parties, (3) a notation that "apparently unit #2 (the Valiant) entered the intersection against a red light, " and (4) notations that "unit #2" failed to yield the right-of-way and that both drivers were "preoccupied." Id. at 554-55. The police report was admitted into evidence over the plaintiff's hearsay objection. Id. at 555. On appeal, the Sixth Circuit Court of Appeals determined that the "matters observed" and "factual findings" subsections of FRE 803(8) were applicable. Id. at 555-56. The Court of Appeals first concluded that "the direct observations and recorded data" of the responding officer "clearly" constituted "matters observed" within the meaning of FRE 803(8)(A)(ii). Id. at 556. The Sixth Circuit's "principal concerns, " however, related to, inter alia, whether the traffic light and fault notations were properly admissible under either the "matters observed" or "factual findings" subsections. Id. The Court of Appeals concluded that the traffic light and fault notations were more appropriately characterized as "factual ...


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