Wallace, 80 Hawai'i at 412, 910 P.2d at 725 (citations and internal quotation marks omitted). In State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009), we recognized that similar requirements applied in the context of admitting evidence about the calibration of laser guns used to measure speed. Id. at 212, 216 P.3d at 1235 (characterizing the admission of evidence relating to testing of a laser gun which omitted any reference to whether the tests "were procedures recommended by the manufacturer" as "obviously inconsistent with this court's decision in Manewa").
This court has previously considered, in certain contexts, whether the State must show that a measuring device was used in accordance with the manufacturer's recommended procedures before allowing the measurement into evidence. Wallace, 80 Hawai‘i at 412, 910 P.2d at 725 (calibration of electronic balance for measuring the weight of narcotics); State v. Manewa, 115 Hawai‘i 343, 167 P.3d 336 (2007) (electronic balance and gas chromatograph mass spectrometers used to measure and identify controlled substances); State v. Assaye, 121 Hawai‘i 204, 210-14, 216 P.3d 1227, 1233-37 (2009) (calibration of laser gun for measuring a vehicle's speed); State v. Fitzwater, 122 Hawai‘i 354, 227 P.3d 520 (2010) (calibration of speedometers for speed check results). In Wallace, we held that the State failed to lay a sufficient foundation as to the accuracy of an electronic balance that was used to weigh the amount of cocaine found in the defendant's car.
When a question arises regarding the necessary foundation for the introduction of evidence, the determination of whether proper foundation has been established lies within the discretion of the trial court, and its determination will not be overturned absent a showing of clear abuse.State v. Assaye, 121 Hawai‘i 204, 210, 216 P.3d 1227, 1233 (2009) (internal quotation marks and brackets omitted).III. Discussion
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 by the parties, we resolve Amiral's point of error as follows. Sufficient foundation for admission of the laser gun reading requires evidence: (1) “[t]hat the [l]aser [g] un [w] as [t]ested [a]ccording [t]o [m]anufacturer [r]ecommended [p] rocedures[,]” State v. Assaye, 121 Hawai‘i 204, 210, 216 P.3d 1227, 1233 (2009) and (2) “whether the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer[,]” Assaye, 121 Hawai‘i at 215, 216 P.3d at 1238. The person proffering such foundational testimony should have personal knowledge of the manufacturer's recommendations for testing of the laser gun and of the laser gun testing according to said recommendations to overcome hearsay concerns, see Assaye, 121 Hawai‘i at 213, 216 P.3d at 1236 (analyzing the police officer's testimony consistent with State v. Manewa, 115 Hawai‘i 343, 354 167 P.3d 336, 347 (2007), where the “expert's ‘personal knowledge’ that was adduced through his testimony at trial was sufficient ‘to establish that the GCMSs were in proper working condition’ “ (quoting Manewa, 115 Hawai‘i at 354, 167 P.3d at 347)).
Petitioner also maintained that an adequate foundation was not laid because State v. Manewa, 115 Hawai‘i 343, 167 P.3d 336 (2007), required Respondent to introduce evidence that "the instrument has been inspected and serviced as required by the manufacturer." (Citing State v. Assaye, 121 Hawai‘i 204, 217, 216 P.3d 1227, 1240 (2009) (Acoba, J. concurring).) B.
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 by the parties, we resolve Apollonio's points of error as follows. Sufficient foundation for admission of the laser gun reading requires evidence: (1) “that the laser gun was tested according to manufacturer recommended procedures[,]” State v. Assaye, 121 Hawai‘i 204, 210, 216 P.3d 1227, 1233 (2009) (formatting altered); and (2) “whether the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer[,]” Assaye, 121 Hawai‘i at 215, 216 P.3d at 1238. The person proffering such foundational testimony ‘should have personal knowledge of the manufacturer's recommendations for testing of the laser gun and of the laser gun testing according to said recommendations to overcome hearsay concerns.
[132 Hawai'i 175] The State argued in closing argument that Officer Ondayog's testimony satisfied evidentiary requirements under State v. Assaye, 121 Hawai‘'i 204, 216 P.3d 1227 (2009). The State maintained that Officer Ondayog tested and operated the UltraLyte according to the manufacturer's recommended procedures
”In State v. Assaye, 121 Hawai‘i 204, 216 P.3d 1227 (2009), the Hawai‘i Supreme Court addressed the necessary foundation for admission of a laser gun speed reading and held, first, that “the prosecution must prove that the laser gun's accuracy was tested according to procedures recommended by the manufacturer.” Id. at 215, 216 P.3d at 1238.
[128 Hawai'i 325] adequate foundation for the introduction of a speed reading from a laser gun, the State must demonstrate (1) that the laser gun's accuracy was tested according to manufacturer recommended procedures and determined to be operating properly prior to use, and (2) that the nature and extent of the officer's training in the operation of laser guns meets the requirements indicated by the manufacturer. (Citing State v. Assaye, 121 Hawai‘i 204, 213–15, 216 P.3d 1227, 1236–38 (2009).) Defendant argues that the State met neither of the foundational requirements.
Sufficient foundation for admission of the laser gun reading requires evidence that the laser gun was tested in accordance with the manufacturer's recommended procedure, and that "the nature and extent of an officer's training in the operation of a laser gun meets the requirements indicated by the manufacturer." State v. Assaye, 121 Hawai'i 204, 210, 215, 216 P.3d 1227, 1233, 1238 (2009). The person proffering such foundational testimony should have personal knowledge of the manufacturer's recommendations for testing of the laser gun and of the laser gun testing according to said recommendations to overcome hearsay concerns.