State v. Marts ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2022
08:07 AM
Dkt. 40 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRANDI M.P. MARTS, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTC-20-692189)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)
Defendant-Appellant Brandi M.P. Marts (Marts) appeals
from the District Court of the Second Circuit, Wailuku Division's
(district court), March 31, 2021 Judgment and Notice of Entry of
Judgment,1 convicting her of Excessive Speeding, in violation of
Hawaii Revised Statutes (HRS) § 291C-105(a)(1) (2020).2 Marts
contends Plaintiff-Appellee State of Hawai#i (State) failed to
lay sufficient foundation to introduce the speed-reading because
it failed to demonstrate that the citing officer met the
manufacturer's training requirements to operate the speed-
measuring device (Device) or that the Device was properly tested,
1
The Honorable Michelle L. Drewyer presided.
2
HRS § 291C-105(a) provides, in relevant part: "(a) No person shall
drive a motor vehicle at a speed exceeding . . . [t]he applicable state or
county speed limit by thirty miles per hour or more[.]"
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and that without the speed reading, no substantial evidence
supports the conviction.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Marts's
arguments as follows, and affirm.
The trial court has discretion to determine whether a
proper foundation is established, and we will not disturb such a
determination absent an abuse of discretion. State v. Assaye,
121 Hawai#i 204, 210, 216 P.3d 1227, 1233 (2009). To lay the
foundation to introduce a speed reading, the State must
demonstrate that (1) the accuracy of the device was tested
according to procedures recommended by the manufacturer (Testing
Prong), and that (2) "the nature and extent of an officer's
training in the operation" of the device met "the requirements
indicated by the manufacturer" (Training Prong). Id. at 213,
215, 216 P.3d at 1236, 1238 (footnote omitted). To satisfy the
Testing Prong, the State must establish the manufacturer's
recommended procedures to verify the accuracy of the device and
that the citing officer observed those procedures. State v.
Gonzalez, 128 Hawai#i 314, 325, 288 P.3d 788, 799 (2012). To
satisfy the Training Prong, the State "must establish both
(1) the [training] requirements indicated by the manufacturer,
and (2) the training actually received by the operator." Id. at
327, 288 P.3d at 801.
(1) Regarding the Testing Prong, Maui Police Department
Officer Marlon Madariaga (Officer Madariaga) testified that, per
his training from the manufacturer, the recommended testing
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
procedures include a visual inspection, self-test, display test,
scope alignment test, and delta distance test (Delta Test), and
on the day he cited Marts, he performed all tests as he was
trained to do, and that the Device passed. Though Officer
Madariaga used set points of 140 and 100 feet to conduct the
Delta Test, and the training manual recommends using set points
of 175 and 150 feet, he testified that the manual also allows for
the points to be shortened or modified, and that his use of 140
and 100 feet set points conformed to both the manual's
instructions and to his training. Thus, the record contains
evidence of the manufacturer's recommended testing procedures and
supports a finding that the Device successfully passed the tests
on the day of the citation. Id. at 325, 288 P.3d at 799.3
(2) Regarding the Training Prong, Officer Madariaga
testified that Roosevelt Rogers (Rogers), an employee of the
Device manufacturer, LTI, trained Officer Madariaga to test and
operate the Device; Officer Madariaga received, reviewed, and
used LTI's manual during the training, and the training conformed
with the manual and it met LTI's requirements for testing and
operating the Device; and upon completion of the training, Rogers
certified Officer Madariaga to use and test the Device. Officer
Madariaga's testimony sufficiently establishes the manufacturer's
training requirements for testing and operating the Device and
3
Marts waived her argument that the State failed to admit the Device's
manual into evidence. See State v. Long, 98 Hawai #i 348, 353, 48 P.3d 595,
600 (2002) ("[A] 'lack of foundation' objection generally is insufficient to
preserve foundational issues for appeal because such an objection does not
advise the trial court of the problems with the foundation."). Moreover, the
rules of evidence do not apply to preliminary foundational questions. See,
e.g., State v. Rezentes, 139 Hawai#i 263, 388 P.3d 51, No. CAAP-XX-XXXXXXX,
2016 WL 6330390, at *2 (App. Oct. 28, 2016) (SDO); State v. Mattos, 147
Hawai#i 147, 464 P.3d 935, CAAP-XX-XXXXXXX, 2020 WL 3224109, at *1 (App.
June 15, 2020) (SDO).
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
shows that Officer Madariaga completed the training and was
certified to test and operate the Device.
Accordingly, the district court did not abuse its
discretion in determining that the State laid proper foundation
to admit the speed reading. Assaye, 121 Hawai#i at 210, 216 P.3d
at 1233. THEREFORE, we affirm the district court's March 31,
2021 Judgment and Notice of Entry of Judgment.
DATED: Honolulu, Hawai#i, June 17, 2022.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Ashlyn L. Whitbeck,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge
Richard B. Rost, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
4