Law Updates for Prosecution Clinic

Speeding and Speed Checks

State v. Fitzwater Speed Check Card 122 Hawai'i 354, 227 P.3d 520 (2010)

Background: Defendant was convicted in the District Court of the First Circuit, T. David Woo, Jr., J., of excessive speeding. Defendant appealed. The Intermediate Court of Appeals affirmed, 2009 WL 1112602, in a summary disposition order. Certiorari was granted.

Holdings: The Supreme Court, Recktenwald, J., held that: (1) circumstances of the creation of speed check card purporting to verify accuracy of speedometer in police vehicle did not preclude admission of card as business record; (2) testimony of arresting officer failed to establish indicia of trustworthiness necessary to lay a foundation for admission of speed check card as business record, overruling State v. Ing, 53 Haw. 466, 497 P.2d 575; (3) when an entity incorporates records prepared by another entity into its own records, they are admissible as business records of incorporating entity provided that it relies on the records, there are other indicia of reliability, and requirements of hearsay exception for business records are otherwise satisfied; (4) speed check card was nontestimonial in nature, such that its admission did not violate defendant's right of confrontation; (5) to lay foundation for admission of speed checks on speedometers in police vehicles, state must establish how and when the speed check was performed, as well as identity and qualifications of person performing check; and (6) arresting officer's testimony not relating to speed check evidence was insufficient to establish excessive speeding, but evidence was sufficient to establish lesser-included non-criminal traffic infraction.

Judgment of Intermediate Court of Appeals vacated and case remanded.

Acoba, J., filed a concurring and dissenting opinion.

State v. Assaye 121 Hawai'i 204, 216 P.3d 1227 (2009) Laser Gun

Background: Defendant was convicted in the District Court, First Circuit, Christopher P. McKenzie, J., of excessive speeding. Defendant appealed, and the Intermediate Court of Appeals issued summary disposition order affirming the trial court. Defendant applied for writ of certiorari.

Holdings: The Supreme Court, Nakayama, J., held that: (1) speed reading given by laser gun was inadmissible absent proof that the same laser gun was tested according to manufacturer recommended procedures overruling State v. Stoa , 112 Hawai‘i 260, 145 P.3d 803; (2) officer's testimony at trial for excessive speeding was insufficient to prove that he was qualified by training and experience to operate laser speed gun used to determine speed of defendant's vehicle, overruling State v. Stoa , 112 Hawai‘i 260, 265, 145 P.3d 803; and (3) evidence of defendant's speed was insufficient to support conviction.

Reversed. State v. Yip Defendant convicts himself Unpublished Opinion 2010 WL 2513349 (Hawai'i App.)

Yip testified that he was driving at 55 miles per hour and Officer Maeshiro testified that the area had a speed limit of 45 miles per hour As in Fitzwater, there was sufficient evidence to convict Yip of non-compliance with the speed limit in violation of HRS § 291C-102(a)(1) (2007).

. State v. Jasper Unpublished Opinion 2010 WL 2441031 (Hawai'i App.)

we conclude that based upon State v. Fitzwater, 122 Hawai‘i 354, 227 P.3d 520 (2010), Officer Benjamin Moszkowicz's (Officer Moszkowicz) testimony regarding the speed at which Jasper was driving, based in turn upon the officer's speedometer, was inadmissible because the State failed to establish a proper foundation to show that the officer's speedometer had been properly calibrated and was therefore accurate.

At trial, Officer Moszkowicz testified that he made an appointment to check his speedometer with Roy's Kalihi Automotive Center. “Roy” took the car and put the rear tires on a set of rollers. Within minutes after the testing process, Officer Moszkowicz was given the speed check card. The police department also received a copy of the speed check card. Officer Moszkowicz testified that the speed check is obtained in the regular course of maintaining an HPD vehicle. The speed check is done once a year pursuant to police department policy. Based on the foregoing, the State offered the speed check card into evidence.

Jasper preserved the issue of the admissibility of the speed check card and Officer Moszkowicz's opinion regarding Jasper's speed based upon the officer's speedometer by means of a motion in limine and an objection at trial. The district court admitted the evidence of the speed check card over Jasper's objections and Officer Moszkowicz was allowed to testify that he paced Jasper's vehicle at 90 miles per hour. Jasper testified and denied speeding. … In Fitzwater, the Hawai‘i Supreme Court held that:

when an entity incorporates records prepared by another entity into its own records, they are admissible as business records of the incorporating entity provided that it relies on the records, there are other indicia of reliability, and the requirements of [Hawaii Rules of Evidence] Rule 803(b)(6) are otherwise satisfied.

Fitzwater, 122 Hawai‘i at 367-68, 227 P.3d at 534-35. In the present case, the State failed to present evidence of other indicia of reliability. To establish a foundation for the speed check results, the State was also required to adduce evidence of (1) how and when the speed check was performed, including whether it was performed in the manner specified by the manufacturer of the equipment used to perform the check, and

(2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it.

Id. at 376-77, 227 P.2d at 542-43. The State did not satisfy these requirements. As such, the foundation for Officer Moszkowicz's testimony regarding Jasper's speed was insufficient. No other evidence of Jasper's rate of speed was introduced at trial.

Therefore, the District Court of the First Circuit, 'Ewa Division's February 18, 2009 judgment is reversed.

State v. Shitanishi Defendant convicts himself Unpublished Opinion, 123 Hawai'i 81, 230 P.3d 381, 2010 WL 1226414 (Hawai'i)

We therefore conclude that the speed check evidence should not have been admitted. Absent this evidence, there was insufficient evidence to support Shitanishi's conviction for excessive speeding in violation of HRS § 291C-105(a)(1).[Excessive Speeding] Fitzwater, No. 28584, slip op. at 59-60. Accordingly, we vacate the judgments of the ICA and the district court.

However, there was sufficient evidence to establish that Shitanishi was driving his vehicle “at a speed greater than the maximum speed limit” in violation of HRS § 291C- 102(a)(1), [Noncompliance with speed limit prohibited] a non-criminal traffic infraction, based on Shitanishi's admission during his testimony that he was driving in excess of the speed limit, as well as the testimony of one of his passengers who observed the speed at which Shitanishi was traveling. Id. at 61. We therefore remand for entry of a judgment that Shitanishi violated HRS § 291C-102(a)(1), in accordance with the applicable statutes governing non-criminal traffic infractions. Id. State v. Silver Closing Arguments Unpublished opinion, 233 P.3d 719, 2010 WL 2637778 (Hawai'i App.)

Silver argues that the prosecutor engaged in misconduct during closing argument by arguing matters not supported by the evidence, specifically: 1) grooming techniques of sexual predators, and 2) presenting a PowerPoint slide which stated that Minor “[n]ever changed his account of events.” We conclude that Silver is not entitled to any relief based on these claims.

Silver argues that the prosecutor's closing argument and PowerPoint slides improperly argued that Silver had engaged in “grooming” Minor to submit to sexual abuse, even though the circuit court had excluded expert testimony regarding grooming because of lack of a factual basis to support such testimony. Although it excluded expert testimony on grooming, the circuit court permitted the State to argue facts and reasonable inferences from the evidence.

[Prosecutor]: Your Honor, just one more thing. To be clear, though. Anything that makes common sense or something that's within the realm of the lay witness, I can argue regardless of whether an expert talks about it; correct?

[Court]: You can argue the facts and reasonable inferences therefrom.

As Hawai‘i courts have recognized,

[d]uring closing arguments, a prosecutor is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence. It is also within the bounds of legitimate argument for prosecutors to state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence. In other words, closing argument affords the prosecution (as well as the defense) the opportunity to persuade the jury that its theory of the case is valid, based upon the evidence adduced and all reasonable inferences that can be drawn therefrom.

During closing argument, the prosecutor argued that Silver's conduct was consistent with his gradually testing the limits with Minor to see how far Silver could go. The prosecutor argued that Silver was getting “green lights” and felt he could keep going because, for example, “nobody said anything” about Silver's touching Minor in the pool. The prosecutor also argued that Silver planned the abuse, selected Minor because Silver did not think Minor would tell, and waited for an opportunity when Minor was tired and would be vulnerable. The circuit court sustained several objections made by Silver to the prosecutor's arguments….

Although Dr. Bivens's expert testimony regarding grooming was excluded, this ruling did not prohibit the State from arguing the evidence and reasonable inferences from the evidence. Based on the evidence presented, it was permissible for the prosecutor to argue that Silver had targeted Minor, because Minor appeared vulnerable, and that Silver had engaged in a series of steps to see how far he could go with Minor.

In analyzing allegations of prosecutorial misconduct, we consider “(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.” Here, the nature of the prosecutor's arguments complained of were not deceptive or reprehensible. The arguments were objectionable because of the way they were phrased, but they were based on evidence admitted at trial. The circuit court sustained Silver's objections to the challenged arguments and promptly instructed the jury to disregard them. The alleged misconduct relating to “grooming” did not affect Silver's substantial rights.

We also reject Silver's contention that the prosecution's PowerPoint slide which stated that Minor “[n]ever changed his account of events” and referred to people Minor “[t]old” constituted misconduct that requires Silver's convictions to be vacated. Silver did not object to this slide when it was displayed. During Silver's closing argument, Silver attempted to rebut this slide by arguing that the jury did not hear evidence of Minor's inconsistent statements because the prosecution did not introduce Minor's statements. The prosecution objected to Silver's argument.

At a bench conference, the circuit court advised the parties that both the prosecution's slide and Silver's attempt to rebut the slide by suggesting that the prosecution was “hiding the ball” were improper. The circuit court, however, permitted Silver to rebut the prosecution's contention that Minor “never changed his account of events” by arguing that there was no evidence to support the prosecution's claim. We conclude that the circuit court's ruling was sufficient to dissipate any prejudice from the prosecution's slide and thus the prosecution's use of the slide did not affect Silver's substantial rights.

We affirm. State v. Walsh, 123 Hawai'i 284, 231 P.3d 1001 (2010) (ICA) Closing Arguments

Defendant was convicted by jury of assault in the second degree.

Holding: The Intermediate Court of Appeals, Reifurth, J., held that prosecutor's comments during closing argument, implying that defendant tailored his testimony to be more credible after being present at jury voir dire and during other witnesses' testimony, violated defendant's state constitutional right to be present at trial. Vacated and remanded for new trial.

On appeal, Walsh contends that (1) his rights under the Hawai‘i Constitution were violated by the prosecutor's comments during closing argument that Walsh was able to tailor his testimony because he was present during jury voir dire and while other witnesses testified…

Walsh raises four points of error:

(1) The circuit court erred in allowing the prosecutor to make constitutionally impermissible arguments during closing argument that because Walsh was present during trial, he heard the testimony of all other witnesses and the voir dire of the jury, and tailored his testimony to match the evidence and appear more credible;

(2) The prosecutor's statements during closing argument constituted prosecutorial misconduct, and deprived Walsh of his right to due process and a fair trial;…

Unobjected To Closing Argument-Plain Error

The appellate court “will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.”

“Where defense counsel failed to object to the statements made during the Prosecutor's closing argument, we ... determine whether the statements were improper and, if so, whether they constituted plain error that affected [Defendant's] substantial rights.”

In Mattson, the prosecutor stated during closing argument that:

[The defendant] told you he lied before. He had a chance to sit through the evidence. He had to make his story gibe with what you've heard. What is in evidence. What [Kumia] even had to admit to, because she-.... He sat through the evidence. There is a 911 tape. [Kumia's] statement. [Hayashi's] statement. Based on all that, he is not telling the truth. All of a sudden he remembered that he grabbed that knife.

This case is about credibility. In order to believe the defendant, you have to be able to answer why didn't [Kumia] just give him the key? Why did [Kumia] lock him out of the house that night? Why lie the day after the event? Thank you.

Id. at 326-27, 226 P.3d at 496-97.

The Hawai‘i Supreme Court looked to Portuondo for guidance and concluded that the majority's holding did not adequately protect the defendant's rights guaranteed by article I, section 14 of the Hawai‘i Constitution (the “confrontation clause”). Id. at 325, 226 P.3d at 495. Rather, the court agreed with Justice Ginsburg's dissent, that “generic accusations of tailoring during closing argument that are based only on a defendant's presence throughout the trial burden the defendant's constitutional right to be present at trial and could discourage a defendant from exercising his constitutional right to testify on his own behalf.” Id. at 326, 226 P.3d at 496.

In sum, the Mattson court adopted the reasoning of Justice Ginsburg's dissent and concluded that it would be improper “under article I, section 14 of the Hawai‘i Constitution, for the prosecutor to make generic accusations during closing argument that a defendant tailored his testimony based solely on the defendant's exercise of his constitutional right to be present during the trial.” Id. The court, however, found that the prosecutor's specific statements were not impermissible because the prosecutor incorporated in his argument evidence adduced at trial to controvert the defendant's testimony.

In Mattson, the prosecutor's tailoring argument was not impermissible because “the prosecutor also referred to specific evidence adduced at trial that was directly contradictory to Mattson's testimony.” Id. at 327, 226 P.3d at 497. The court stated that since “the prosecution referred to specific evidence presented at trial in addition to referring to Mattson's presence at trial, it cannot be said that the prosecutor's remarks during closing argument constituted a ‘generic accusation’ that Mattson tailored his testimony based solely on his presence at trial.” Id.

This case, however, reflects a generic accusation because the prosecutor's argument does not reference any evidence and relates only to Walsh's presence in the courtroom. The prosecutor's argument drew attention to Walsh's presence during witness testimony and jury voir dire, emphasized that Walsh had heard all of the testimony prior to testifying himself, and implied that Walsh tailored his testimony to appear more credible.

Contrary to Walsh's argument, the prosecutor did not state that Walsh tailored his testimony. The implication of the prosecutor's argument, however, was such that the jury was left with the inescapable conclusion that because Walsh exercised his right to be present during jury voir dire and other witnesses' testimony, he was tailoring his testimony.

Moreover, and unlike the Mattson case, the offending portion of the prosecutor's closing argument did not refer to specific evidence adduced at trial which controverted Walsh's testimony. Rather, the statement addressed only the possible nefarious consequences associated with Walsh exercising his constitutionally protected rights. Walsh's failure to object to the closing argument at trial does not prevent us from addressing the issue on appeal. We “will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” Nichols, 111 Hawai'i at 334, 141 P.3d at 981 (quoting Sawyer, 88 Hawai'i at 330, 966 P.2d at 642).

“Where defense counsel failed to object to the statements made during the Prosecutor's closing argument, we ... determine whether the statements were improper and, if so, whether they constituted plain error that affected [Defendant's] substantial rights.” Suan, 121 Hawai'i at 174, 214 P.3d at 1164 (citing Clark, 83 Hawai'i at 304, 926 P.2d at 209).

Whereas the prosecutor's remarks during closing argument constituted a “generic accusation” that Walsh tailored his testimony based solely on his presence at trial, whereas we conclude that the evidence against Walsh was not overwhelming, and whereas, as a result, “the pivotal issue [in the case] was the credibility of the witnesses[,]” FN3 Walsh's rights under article I, section 14 of the Hawai‘i Constitution were violated. See State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986) (because credibility was a central issue in the case, the Hawai‘i Supreme Court could not “conclude beyond a reasonable doubt that the prosecutor's remarks had little likelihood of influencing this critical choice”). We cannot conclude that the prosecutor's conduct did not contribute to Walsh's conviction, and we therefore vacate and remand to the circuit court for a new trial.

FN3. State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986) (because credibility was a central issue in the case, the Hawai‘i Supreme Court could not “conclude beyond a reasonable doubt that the prosecutor's remarks had little likelihood of influencing this critical choice”). State v. Mattson, 122 Hawai'i 312, 226 P.3d 482 (2010) Closing Argument

Defendant was convicted, after a jury trial of first-degree terroristic threatening.

Holdings: The Supreme Court, Moon, C.J., held that: (1) it is improper under the Confrontation Clause of the Hawai‘i Constitution for a prosecutor to make generic accusations during closing argument that a defendant has tailored his or her testimony based solely on the defendant's exercise of his or her constitutional right to be present at trial, but (2) prosecutor's closing argument, referring to specific evidence adduced at trial that was directly contradictory to defendant's testimony, did not violate the Confrontation Clause.

…Based on the foregoing, we adopt the reasoning of the dissent in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) (Ginsburg, J., dissenting, with whom Souter, J., joined) and conclude that it would *328 be improper, under article I, section 14 of the Hawai‘i Constitution for the prosecution to make generic accusations during closing argument that a defendant has tailored his or her testimony based solely on the defendant's exercise of his or her constitutional right to be present at trial. In the instant case, however, we conclude that the prosecutor's comments were based on specific evidence adduced at trial-not solely on Mattson's exercise of his right to be present at trial-and, thus, such comments were not improper under the Hawai‘i Constitution. Consequently, we affirm the ICA's June 12, 2009 judgment on appeal that, in turn, affirmed the trial court's April 22, 2008 judgment of conviction and sentence.

DISSENTING OPINION BY ACOBA, J., IN WHICH DUFFY, J., JOINS. I respectfully dissent.

The majority's decision in this case unduly burdens a defendant's right to confront witnesses under article I, section 14 of the Hawai‘i Constitution, thereby undermining a fundamental principle of our justice system. FN2 Although the majority purports to adopt the position of the dissent in Portuondo, 529 U.S. at 76, 120 S.Ct. 1119 (Ginsburg, J., dissenting, joined by Souter, J.), this approach, as shown by several state decisions, provides little protection to defendants who not only have the constitutional right to be present at trial, but, as in our jurisdiction, are required by law to do so. The better rule, which is set forth in State v. Daniels, 182 N.J. 80, 861 A.2d 808 (2004), discussed infra, would prohibit the prosecution from explicitly referring “to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony.”