State v. Ing , 53 Haw. 466 ( 1972 )

OPINION OF THE COURT BY

KOBAYASHI, J.

Appellant was arrested and cited, by the arresting officer, for speeding in violation of Section 15-7.2(2), Revised Ordinances of Honolulu 1969, as amended.

The pertinent testimony of the arresting officer is as follows:

a) That he “clocked” the appellant;

b) That he maintained a constant distance between appellant’s and his car;

c) That there were no vehicles between his vehicle and the appellant’s;

d) That at the high point-of the clocking his speedometer read 60 miles an hour but a more constant speed of 50 miles an hour in a 25-mile-per-hour zone;

e) That the registration of appellant’s speed was indicated on the speedometer of his vehicle;

f) That the posted speed limit on the clocked highway is 25 miles an hour;

g) That the vehicle he used on that occasion had a speedometer check for accuracy and that the vehicle is maintained by the City and County;

h) That the speedometer check card for accuracy indicated that at 55 miles per hour it would be three miles fast and that at 45 miles per hour it would be two miles fast.

Appellant did not take the witness stand nor did he cáll on any witness to testify on his behalf. The trial court adjudged appellant guilty as charged.

The appellant specifies as error:

1. That the arresting officer’s testimony as to the reading of his vehicle’s speedometer while clocking the appellant is' hearsay;

2. That his constitutional “right to confrontation” of the mechanic who speed-tested the speedometer of the arresting officer’s vehicle was violated;

3. That the prosecution failed to prove a prima facie case of unlawful speeding on the part of appellant.

We disagree.

HEARSAY RULE

The hearsay rule does not prevent a witness from testifying as to what he heard and saw; it is rather a restriction on the proof of fact through extra-judicial statements. In the instant case the arresting officer testified that his speedometer, while clocking the appellant, read 60 miles an hour but a more constant 50 miles an hour; that his vehicle was maintained by the City and County; that the speedometer on his vehicle was speed-tested for accuracy; that the card showing the speed-test read that at 55 miles per hour the speedometer would be three miles fast and at 45 miles per hour it would be two miles fast. His testimony is based on what he did and saw. See People v. Marsellus, 2 N.Y.2d 653, 143 N.E.2d 1, 163 N.Y.S.2d 1 (1957); Government of Virgin Islands v. Rodriguez (D.C.Virgin Islands), 300 F. Supp. 909 (1969). Obviously his testimony relative to the speed test bore indicia of reliability. Appellant, however, failed to adduce evidence bringing to issue the accuracy of the speedometer of the arresting officer’s vehicle. Neither did appellant question the date of the speed-test card or the frequency of the speed tests of the speedometer in question. The trier of fact, in this case, was satisfied from the evidence adduced that the speedometer was accurately operational. See Marsellus, supra; State v. Tarquinio, 3 Conn. Cir. 566, 221 A.2d 595 (1966).

The problem of offering into evidence the speed-test card can be readily resolved. Where regular tests are made and the records of the tests are kept by the City and County or the police department the card can be introduced as an ordinary business entry of evidence of such record indicating the routine testing of speedometers. HRS § 622-5; State v. Ellis, 5 Conn. Cir. 190, 248 A.2d 71 (1968).

CONFRONTATION CLAUSE

On the record of this case we cannot say that the evidentiary rule applied by the trial court in permitting the arresting officer to read the speed-test card violated the confrontation clause even if it did not conform to the hearsay rule. See California v. Green, 399 U.S. 149 (1970) wherein the court stated at 155-156:

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. . . . [M]erely because evidence is admitted in violation of a long-established hearsay rule does not lead to the' automatic conclusion that confrontation rights have been denied.

Gerald Ah Mai for defendant-appellant. Douglas Halsted, Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney, by Franklin Mukai, Deputy Prosecuting Attorney, on the brief), for plain tiff-appellee.

We are of the further opinion that, on the record of the instant case where appellant failed to adduce evidence bringing to issue the accuracy of the speedometer, production of the mechanic who performed the speed check was unnecessary and even if he were produced cross-examination of the mechanic would be of small utility, if at all, to the appellant.

The rationale of Justice Harlan in his concurring opinion in Dutton v. Evans, 400 U.S. 74 (1970), is appropos. At 95 he states:

If one were to translate the Confrontation Clause into language in more common use today, it would read: “In all criminal prosecutions, the accused shall enjoy the right to be present and to cross-examine the witnesses against, him.” Nothing in this language or in its 18th-century equivalent would connote a purpose to control the scope of the rules of evidence. The language is particularly ill-chosen if what was intended was a prohibition on the use of any hearsay ....

At 95-96 the Justice states:

A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant. ... If the hearsay exception involved in a given case is such as to commend itself to reasonable men, production of the declarant is likely to be difficult, unavailing, or pointless.

PRIMA FACIE CASE

We are of the further opinion that the record shows that the trial court correctly denied appellant’s motion for judgment of acquittal premised on prosecution’s alleged failure to establish a prima facie case. State v. Pontillo, 5 Conn. Cir. 332, 252 A.2d 141 (1968).

Judgment affirmed.