No. SCWC-12-0000477, Thursday, October 22, 2015, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. UBALDO A. CRUZ, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Phyllis J. Hironaka, Deputy Public Defender

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 08/25/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

Petitioner/Defendant-Appellant Ubaldo A. Cruz applied for writ of certiorari from the Intermediate Court of Appeals’ (ICA) May 15, 2015 judgment entered pursuant to its April 17, 2015 opinion. The ICA’s judgment affirmed the Circuit Court of the First Circuit’s (circuit court) April 11, 2012 judgment of conviction.

Cruz was convicted of nine counts of Sexual Assault in the Third Degree following a jury trial. At trial, the State sought to introduce 1) T-mobile records from Cruz’s mobile phone; and 2) a declaration from a custodian of records at T-mobile authenticating the records. Cruz objected to admission of the declaration on the basis that it was testimonial in nature, and thus cross-examination of the custodian was required under the confrontation clause and Crawford v. Washington, 541 U.S. 36, 59 (2004). The circuit court admitted the declaration over Cruz’s objection.

On appeal to the ICA, Cruz reasserted his argument regarding the admissibility of the declaration. The ICA held that contrary to Cruz’s assertion, admission of the declaration did not result in a confrontation clause violation.

In his application for writ of certiorari, Cruz raises the following issue: “Whether the ICA gravely erred in concluding that Custodian of Records Kaserkie’s Declaration (State’s Exhibit #19), which laid the foundation for admission of the T-Mobile business records (State’s Exhibit #20), was exempt from Confrontation Clause requirements.”