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State v. Coffee2/12/2004
ecause it was not the original of the card; the exhibit was received over Coffee's counsel's objection.
We note that the record of the referenced test case, State v. Danny Wong, [FN12] is not before this court. The record in this case contains nothing more than references to the Wong case, and our review must be limited to the record before us. HRS § 641-2 (1993).
FN12. The appeal in State v. Wong, S.Ct. No. 22505 was dismissed by stipulation of the parties on November 16, 1999.
Judicial notice of an adjudicative fact is permissible if the fact is "not subject to reasonable dispute that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." HRE Rule 201.
In its answering brief, the State contends that the taking of judicial notice by the district court was proper because "[a]fter 'an extensive hearing' held in Wong, ... Judge Kimura qualified Officer Dowkin as an [sic] DRE and ruled that 'the DRE program 12 step matrix was a valid test to ascertaining drug impairment[.]' " In support of this contention, the State relies on State v. Akana, 68 Haw. 164, 706 P.2d 1300 (1985), in which the Hawai'i Supreme Court noted that "[t]he most frequent use of judicial notice of ascertainable facts is in noticing the contents of court records." Id. at 165, 706 P.2d at 1302. The State also relies on State v. Kotis, 91 Hawai'i 319, 984 P.2d 78 (1999), for the proposition that the "taking of judicial notice of the records and files of a case may or may not be proper, depending upon the type of record at issue and the purpose for which it is considered." Id. at 343, 984 P.2d at 102.
The Hawai'i Supreme Court has "validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same." Akana, 68 Haw. at 165, 706 P.2d at 1303. In the instant case, the district court took judicial notice of its prior determination that Officer Dowkin was qualified as a DRE and the matrix test was a valid test to ascertain drug impairment. Coffee was not a party in the Wong case. The district court acknowledged that not only was Coffee not a party in the Wong case, but also that Coffee's attorney was unfamiliar with and not privy to the court's prior ruling in Wong.
A judge's personal familiarity with his prior decision in a different case does not warrant the taking of judicial notice of that prior decision solely in the interest of judicial efficiency. The district court judge's taking such judicial notice denied Coffee a fair hearing because Coffee was not privy to the evidence offered in Wong nor afforded the opportunity to test, explain, or refute such evidence. Pua v. Hilo Tribune-Herald, Ltd., 31 Haw. 65, 69-70 (1929). A defendant must be fully appraised of the evidence submitted and be allowed to cross-examine witnesses, inspect the documents, and offer her own rebuttal or explanatory evidence. Id. at 70.
The State contends that the taking of judicial notice was proper because in Wong the Office of the Public Defender and the Office of the Prosecuting Attorney had stipulated that, after Wong, all other defendants in DUI-drug cases handled by the aforementioned offices would be precluded from re-litigating the same issues that had been ruled upon in Wong. However, as the record in Wong is not before this court, we cannot evaluate the reliability of the matrix test and Officer Dowkin's expertise to determine if they are "so well-established that their reliability *200 **1009 may be presumed." State v. Ito, 90 Hawai'i 225, 236, 978 P.2d 191, 202 (1999).
The federal district court in United States v. Everett, supra, noted in its e
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