NO. 28584 – Thursday, November 5, 2009 – 9 a.m.

NO. 28584 – STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. ZACHARIAH IAN FITZWATER, Petitioner/Defendant-Appellant.
(Excessive Speeding)

Attorney(s) for Petitioner/Defendant-Appellant(s)
Honorable John M. Tonaki, Public Defendaer, and Taryn R. Tomas, Deputy Public Defender

Attorney(s) for Appellee-Appellant & Appellee-Cross-Appellant(s)
Honorable Peter B. Carlisle, Prosecuting Attorney, and Stephen K. Tsushima, Deputy Prosecuting Attorney, City & County of Honolulu

and

NO. 28737 – STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. KENNETH MICHAEL WINFREY, Petitioner/Defendant-Appellant.
(Excessive Speeding)

Attorney(s) for Petitioner/Defendant-Appellant(s)
Honorable John M. Tonaki, Public Defendaer, and James S. Tabe, Deputy Public Defender

Attorney(s) for Appellee-Appellant & Appellee-Cross-Appellant(s)
Honorable Peter B. Carlisle, Prosecuting Attorney, and Brian R. Vincent, Deputy Prosecuting Attorney, City & County of Honolulu

NOTE: Order consolidating cases for oral argument, filed 9/23/09.

COURT: RTYM, CJ; PAN, SRA, JED & MER, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

No. 28584: Petitioner Zachariah I. Fitzwater applied for a writ of certiorari to review the judgment entered by the Intermediate Court of Appeals (ICA) pursuant to the ICA’s April 27, 2009 summary disposition order (SDO). The SDO affirmed the judgment entered by the District Court of the First Circuit, which convicted Fitzwater of excessive speeding in violation of Hawai`i Revised Statutes § 291C-105(a)(1) (2007).

Fitzwater challenges the district court’s admission of evidence relating to a “speed check” that was conducted on the speedometer of a police car that was being driven by the officer who stopped Fitzwater. Fitzwater contends that the ICA gravely erred in holding that: 1) the speed check card qualified as a business record, 2) the State adduced sufficient foundation to admit the speed check card as a business record, and 3) admission of the speed check card was not a violation of Fitzwater’s right of confrontation under either the Hawaii Constitution or the United States Constitution. Fitzwater also contends that the ICA gravely erred by declining to consider his argument that the police officer’s testimony constituted improper expert testimony.

No. 28737: Petitioner/Defendant-Appellant Kenneth Michael Winfrey applied for a writ of certiorari from the Intermediate Court of Appeals’ April 29, 2009 summary disposition order which affirmed the District Court of the First Circuit’s August 3, 2007 judgment convicting Winfrey of excessive speeding, in violation of Hawai`i Revised Statutes (HRS) section 291C-105(a)(1).

In his application, Winfrey asserts that the ICA gravely erred when it: (1) concluded that the speed test results for the police officer’s vehicle were admissible as a business record through the police officer’s testimony; (2) concluded that admission of the speed test results through the officer’s testimony and through the speed check card did not violate Winfrey’s right of confrontation; (3) concluded that the officer’s testimony regarding the speed test results was sufficient to establish the accuracy of the officer’s speedometer; and (4) concluded that Winfrey failed to object and thus waived his evidentiary and constitutional challenge to the officer’s testimony regarding the results of the speed check, and assuming arguendo that Winfrey did waive his challenge, whether the ICA gravely erred by failing to recognize plain error.