NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2022
07:45 AM
Dkt. 46 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KALAHEO ENOKA RAY SAUCEDA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(WAILUKU DIVISION)
(CASE NO. 2DTC-21-601271)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Kalaheo Enoka Ray Sauceda (Sauceda)
appeals from the Amended Judgment and Notice of Entry of Judgment
filed on September 9, 2021 (Judgment), in the District Court of
the Second Circuit (District Court).1/ After a bench trial,
Sauceda was convicted of Excessive Speeding, in violation of
Hawaii Revised Statutes (HRS) § 291C-105(a)(1) (2020).2/
1/
The Honorable Kirstin M. Hamman presided.
2/
HRS § 291C-105(a)(1) states:
§ 291C-105 Excessive speeding. (a) No person shall
drive a motor vehicle at a speed exceeding:
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Saucedo raises a single point of error on appeal,
contending that there was no substantial evidence to support his
conviction because Plaintiff-Appellee State of Hawai#i (the
State) failed to lay the requisite foundation for the admission
of the laser gun speed reading.
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 Sauceda's point of error as follows:
Sauceda contends that the District Court abused its
discretion in admitting the testimony of Maui Police Department
Officer Stephen Kelley (Officer Kelley) regarding the subject
speed reading because the State failed to lay sufficient
foundation for the testimony. However, as the State argues, the
trial transcript shows no objection or motion to strike based on
lack of foundation at the time that Officer Kelley testified
about the speed readout for Saucedo's vehicle. It was not until
trial resumed, almost two months later, that Sauceda raised lack
of foundation and moved to strike the speed readout. The State
argued that the objection and motion to strike were very
untimely. The District Court overruled Sauceda's objection and
denied the motion to strike.
2/
(...continued)
(1) The applicable state or county speed limit by
thirty miles per hour or more[.]
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In Lee v. Elbaum, 77 Hawai#i 446, 449, 887 P.2d 656,
659 (App. 1993), this court held: "In order for an objection or
motion to strike to be 'timely' for purposes of Hawai#i Rules of
Evidence (HRE) 103(a), the objection to evidence must be made
when offered or when the grounds for objection become apparent,
or they are deemed waived on appeal." (Bolding added). The
court explained:
[HRE] 103(a) expressly provides that:
Error may not be predicated upon a ruling which admits
. . . evidence unless a substantial right of the party
is affected, and:
(1) Objection: In case the ruling is one admitting
evidence, a timely objection or motion to strike
appears of record, stating the specific ground of
objection, if the ground was not apparent from the
context[.]
HRE 103(a)(1) is identical to Federal Rules of Evidence
(FRE) 103(a)(1). HRE 103 Commentary. In discussing the
federal rule, Professors Wright and Graham state:
Rule 103(a)(1) requires that an objection be "timely."
The sanction for failure to make a timely objection is
the familiar sanction of nullity: that is, the
untimely objection will be deemed to be no objection
at all for purposes of review[.]
. . . .
In administering the requirement that an objection be
timely, the courts must consider both fairness and
efficiency. The objector ought not to be held to an
impossible standard such as requiring an objection
before the ground becomes apparent to him. The
opponent is entitled to have the objection raised at a
time that permits him to best obviate the objection.
Considerations of efficiency suggest that the
objection should be made before time has been wasted
introducing the evidence and while the court has some
means of effectuating the objection that is more
effective than ordering the jury to disregard the
evidence. In each case, the court must balance these
factors in arriving at a conclusion as to when the
objection is timely made.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
A good rule of thumb is found in Wigmore's Code:
An objection must be made as soon as the ground
of it is known, or could reasonably have been
known to the objector, unless some special
reason makes its postponement desirable for him
and not unfair to the officer. . . .
This is usually taken to mean that objections to
testimony must be made after the question but before
the answer.
. . . .
Of course, the motion to strike must also be timely.
It should be made as soon as the ground for objection
becomes apparent. The trial judge has discretion to
entertain an untimely motion to strike, but if he
refuses to do so, the objector cannot raise the point
on appeal.
21 C. Wright and K. Graham, Federal Practice and Procedure:
Evidence § 5037 at 187–90 (1977) (footnotes omitted).
The Hawai#i Supreme Court has not had occasion
to determine what constitutes a "timely" objection or
motion to strike for HRE 103 purposes. However, other
courts have generally held that objections to evidence
must be made when offered or when the grounds for
objection become apparent, or they are deemed waived
on appeal.
In Wagner v. Wagner, 1 Wash. App. 328,
461 P.2d 577
(1969), for example, the Washington Court of Appeals
held that where allegedly improper testimony was not
objected to until well into cross-examination, any
error that may have occurred was waived. 1 Wash. App.
at 333,
461 P.2d at 580. See also Blue Cross of
Western New York v. Bukulmez, 736 P.2d 834, 838 (Colo.
1987), Attorney Gen. of State v. New Mexico Pub. Serv.
Comm’n, 101 N.M. 549, 552–53,
685 P.2d 957, 960–61
(1984), Belmont Indus., Inc. v. Bethlehem Steel Corp.,
512 F.2d 434, 437 (3d Cir. 1975).
Id. at 452-53,
887 P.2d at 662-63 (Emphasis added).
Here, Sauceda objected to admission of the speed
reading from the laser device almost two months after the
evidence was admitted, at the end of Officer Kelley's cross-
examination, well after it was offered or an objection for lack
foundation should have been apparent. The District Court
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
rejected Sauceda's untimely objection and motion to strike. The
objection is waived on appeal.
Sauceda raises no other points of error. Given the
speed reading, when the evidence adduced in the trial court is
considered in the strongest light for the prosecution, State v.
Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007),
there was substantial evidence to support Sauceda's conviction
for Excessive Speeding.
Accordingly, the District Court's September 9, 2021
Judgment is affirmed.
DATED: Honolulu, Hawai#i, June 30, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Christina E. Gergis,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
Renee Ishikawa Delizo, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
5
