Myatt v. Commonwealth, 397 S.E.2d 275, 11 Va. App. 163 (Va.App. 10/09/1990)
[1]
Virginia Court of Appeals
[2]
Record No. 0807-88-2
[3]
397 S.E.2d 275, 11 Va. App. 163, 1990.VA.40073
<http://www.versuslaw.com>
[4]
October 9, 1990
[5]
RONALD W. MYATT
v.
COMMONWEALTH OF VIRGINIA
[6]
From the Circuit Court of the City of Richmond; James B. Wilkinson, Judge.
[7]
William H. Shewmake (Coates & Davenport, on briefs), for appellant.
[8]
Birdie H. Jamison, Assistant Attorney General (Mary Sue Terry, Attorney
General, on brief), for appellee.
[9]
Judges Barrow, Cole and Willis. Cole, J., dissenting. Argued at Richmond,
Virginia.
[10]
Barrow
[11]
BARROW, J.
[11 VaApp Page 164]

This appeal is from a speeding conviction resulting from radar surveillance. The
appellant contends that (1) he was entitled to introduce the testimony of an
expert witness to show that the radar did not accurately record his automobile's
speed and (2) calibration of the radar with tuning forks was insufficient to
permit the introduction of the radar measurement into evidence. We conclude
that the testimony of the expert witness was admissible and that the calibration
of the radar by tuning forks alone was insufficient without proper corroboration.
For these reasons, we reverse.
[12]
At the time of the alleged offense, the police officer was operating a stationary
radar unit located in a church parking lot facing
[11 VaApp Page 165]

oncoming traffic. The officer testified that her radar unit recorded that the
appellant's automobile was traveling fifty-three miles per hour. The speed limit
was forty miles per hour. The trial court convicted the appellant of speeding and
imposed a $50 fine.
[13]
During the course of the trial, the appellant testified and attempted to offer the
testimony of an expert witness. The appellant testified that he was driving a
Pontiac Fierro, a small two-door sports car, made of "indura-flex material...
essentially plastic." He said that he saw the arresting officer parked in the
church parking lot talking with another police officer in another car parked
parallel to hers and that the arresting officer looked up when he passed. He said
that the arresting officer's automobile was parked at an angle to the highway of
approximately twenty-five to thirty degrees. The traffic was light, and, although
there was no traffic in his "immediate vicinity," there were several cars in back
of him, including a large tractor-trailer truck, that were closing on him.
[14]
The appellant also proffered testimony of an expert witness. After the witness
described his credentials and appellant's counsel offered him as an expert
regarding the training and operation of speed measuring devices, his testimony
was proffered outside of the presence of the jury. The purpose of the testimony
was to show that the radar did not record the appellant's vehicle but, instead,
recorded that of another vehicle, possibly the tractor-trailer truck behind him.
The witness testified that, because of its size and material, the appellant's
vehicle was extremely difficult to pick up on radar, that the thirty degree angle
of the police officer's car to the highway would have caused an inaccuracy in
the speed recorded by the radar, that if the radar had skipped over the appellant's
vehicle it would have probably picked up the more reflective vehicle such as the
tractor-trailer truck and that the likelihood of the radar picking up the appellant's
vehicle was further reduced by the fact that the police vehicle was parked on a
lot approximately eighteen inches to two feet above the road. Finally, he would
also have testified that the audio dopler from the radar should not have
remained constant as the police officer testified that it did, but should have
dropped off as the appellant's vehicle got closer, unless the radar was reading a
vehicle further away, such as the tractor-trailer truck.
[11 VaApp Page 166]

The result of the use of radar to check the speed of a motor vehicle is prima
facie evidence of the speed of that motor vehicle. Code 46.2-882.*fn1 This
follows from the "natural and rational evidentiary relation" between the results
of a radar check of speeding and the actual speed of the motor vehicle. Dooley
v. Commonwealth, 198 Va. 32, 35, 92 S.E.2d 348, 350 (1956), appeal
dismissed, 354 U.S. 915 (1957). Expert testimony is not admissible to contest
the reliability of the use of radar for this purpose. Thomas v. City of Norfolk,
207 Va. 12, 14, 147 S.E.2d 727, 729 (1966). However, evidence may be
introduced to show that a particular radar reading may have improperly
recorded the speed of a vehicle which it had been used to measure. Dooley, 198
Va. at 35, 92 S.E.2d at 350. Such evidence is admissible to rebut the prima facie
presumption created by the statute. Id.
[15]
In this case, the expert's testimony was not offered to contest the legislative
decision that radar readings provided prima facie evidence of a motor vehicle's
speed; it was introduced, instead, to rebut the prima facie case by showing that
the particular radar reading in this instance was not a reliable indicia of the
speed of the appellant's automobile. The reflective qualities of the appellant's
motor vehicle, the presence of the tractor-trailer truck behind the appellant's
vehicle, the angle of the radar unit with respect to the highway, and its height
above the highway are not factors challenging the radar unit's ability to measure
motor vehicular speed. They are factors, however, that challenge the accuracy
of the radar reading of the appellant's speed on this occasion. For this reason,
we hold that the trial court erred in refusing to admit the expert's testimony into
evidence.*fn2
[16]
The appellant also contests the sufficiency of the evidence of the radar's
accuracy with the use of tuning forks. Since the proceeding must be remanded
for a new trial, we address that issue.
[17]
The only evidence that the radar had been tested for accuracy was the officer's
testimony that she had tested it with tuning forks, which in turn had been
certified to be accurate by "Southeastern
[11 VaApp Page 167]

Communications." The officer testified that she used two tuning forks, one for
thirty-five miles per hour and one for sixty-five miles per hour and, using
standard procedure, the radar readings indicated that the unit was functioning
accurately. In addition, the court admitted into evidence, over the appellant's
objection, certificates signed by a person on behalf of Southeastern
Communications certifying that ten months earlier the radar and the tuning
forks had been tested and were found to be operating properly.*fn3
[18]
The General Assembly statutorily has exempted from the bar of the
hearsay rule certain certificates used as evidence of a radar device's
calibration; however, the exemption extends only to certificates involving
calibration by use of a speedometer, not tuning forks. A certificate is
admissible over a hearsay objection when signed by an officer who has
calibrated a radar device against the speedometer and when accompanied
by a further certificate reflecting the accuracy of the speedometer used to
calibrate the radar device. Code 46.2-882.*fn4 The certificates must
conform to the requirements of the statute, including one which limits their
validity to six months. Id. There is no statutory authority overcoming the
hearsay rule with regard to certificates of the accuracy of tuning forks. The
certificates in this case, therefore, were not exempt from the hearsay rule
and should not have been admitted into evidence.
[19]
Without the certificates, the evidence of the accuracy of the radar device
was limited to the testimony of the officer that the radar device had
responded appropriately to two tuning forks, the accuracy of which was
not established. Thus, there was no evidence upon which to find that the
radar device appropriately responded to the tuning forks. Biesser v. Town
of Holland, 208 Va. 167, 169, 156 S.E.2d 792, 794 (1967); see also Crosby v.
Commonwealth, 204 Va. 266, 268, 130 S.E.2d 467, 468 (1963); Royals v.
Commonwealth, 198 Va. 883, 884, 96 S.E.2d 816, 817 (1957). The evidence of
the accuracy of the radar device used in
[11 VaApp Page 168]

this case was, therefore, insufficient.
[20]
In summary, we hold that the appellant was entitled to present expert testimony
tending to impeach the accuracy of the radar reading upon which the
Commonwealth's case was based, so long as it did not challenge the use of radar
as a device for measuring the speed of a moving vehicle. In addition, we hold
that a radar unit's accuracy is not established simply by proof that the unit was
tested by tuning forks without proper evidence of the accuracy of the forks.
[21]
The judgment of conviction is reversed and this proceeding is remanded for a
new trial.
[22]
Reversed and remanded.
[23]
Disposition
[24]
Reversed and remanded.
[25]
Cole, J., dissenting.
[26]
I respectfully disagree with the finding of the majority that all of the proffered
testimony of the expert witness was admissible and that the calibration of the
radar unit by tuning forks was insufficient to support the conviction.
[27]
Police Officer Elma Leap was the only witness for the Commonwealth. No
question has been raised concerning her qualification as a radar operator. She
has been a police officer for five years and assigned to the traffic division for
three years. She testified that on the morning in question she ran tests on the
radar unit prior to setting it up. She first checked the internal system in the radar
itself and determined that the unit was functioning properly. She next struck the
tuning forks on the padded steering wheel and held each one separately in front
of the radar field of influence to indicate the speed reflected on the radar. When
she struck the thirty-five miles per hour tuning fork, the radar unit registered
thirty-five miles per hour. When she struck the sixty-five miles per hour tuning
fork, the radar unit registered sixty-five miles per hour. According to her
testimony, the readings she obtained indicated the unit was functioning
accurately.
[28]
After testing the radar unit, Officer Leap put the radar unit in operation on
Broad Rock Road facing and clocking east bound traffic. She testified that she
visually observed the defendant approaching
[11 VaApp Page 169]

and in her mind estimated his speed to be over the speed limit. She testified that
the reading on the radar verified her visual observation of the defendant's speed.
The radar read-out showed the defendant was traveling fifty-three miles per
hour in a forty miles per hour posted zone. She pushed a button manually and
the defendant's speed was locked in at fifty-three miles per hour. Officer Leap
further testified that after each violation that day she checked the system
internally to make sure the unit was operating properly. When she went off
duty, she calibrated the radar unit again with the factory certified tuning forks.
She testified that the unit operated properly throughout the day, the same as
when it started that morning.
[29]
Under this set of facts, the majority concludes that "the only evidence that the
radar had been tested for accuracy was the officer's testimony that she had
tested it with tuning forks which in turn had been certified to be accurate by
Southeastern Communications." The majority further concludes: "Without the
certificates,*fn5 the evidence of the accuracy of the radar device was limited to
the testimony of the officer that the radar device had responded appropriately to
two forks, the accuracy of which had not been established." I disagree. In my
opinion, it does not follow that because the certificate was inadmissible there
was no corroboration of the accuracy of the radar unit in the record. In my
opinion, the tests with the two tuning forks constitute sufficient corroboration of
the accuracy of the radar unit.
[30]
The majority, in effect, holds that the failure to prove the accuracy of the tuning
forks is fatal to the Commonwealth's case. They would require the state to prove
not only the correctness of the radar unit which clocked the defendant's speed,
but also demand that the Commonwealth prove the accuracy of the tuning forks
used to check the accuracy of the radar unit. I would not cast the burden upon
the Commonwealth in a speeding case to do more than prove that a comparative
tuning fork analysis was
[11 VaApp Page 170]

made showing the accuracy of the radar unit. The vast majority of cases in the
United States do not require any corroboration of the accuracy of the radar unit
except comparison with the tuning forks.
[31]
This case involves the question of what evidence is required to establish the
accuracy of a radar speed-measuring device. Since 1954 the General Assembly
has authorized the use of radar machines to measure the speed of motor
vehicles. See Code 46.2-882. The statute contemplates that speed may be
checked by radar and that the results of the radar reading will be accepted as
prima facie evidence. Sweeny v. Commonwealth, 211 Va. 668, 670, 179 S.E.2d
509, 512 (1971). Proof of the accuracy of the particular radar speed-measuring
machine used, however, is required as a prerequisite to the admissibility of the
results obtained therefrom.
[32]
It is well established that the Commonwealth must prove that the radar machine
"had been properly set up and adjusted" and "must have been recently and
accurately tested." Royals v. Commonwealth, 198 Va. 876, 882, 96 S.E.2d 812,
816 (1957). In Thomas v. City of Norfolk, 207 Va. 12, 147 S.E.2d 727 (1966),
one issue involved was whether there was sufficient evidence in the record to
show that the radar machine had been recently tested for accuracy. The officers
testified that they had used two methods to test the radar machine. First, a car
driven by Officer Jackson passed through the radar beam at thirty, forty and
fifty miles per hour as indicated on his speedometer and these speeds accorded
with those indicated on the radar machine and noted by Officer Bennett.
Second, the accuracy of the speedometer was corroborated by tests which the
officers made with factory pre-tested tuning forks. One fork, when struck and
held in front of the radar set, indicated or registered on the latter instrument a
speed of thirty-five miles per hour. The second tuning fork did the same at fifty
miles per hour. Officer Bennett testified that the tuning fork tests showed that
the radar set accurately recorded these respective speeds.
[33]
Upon these facts the Supreme Court stated:
[34]
While the matter has not heretofore been presented to us it is well recognized in
other jurisdictions that evidence of a
[11 VaApp Page 171]

test of radar equipment by tuning forks in this manner is admissible as tending
to prove the accuracy of the equipment.
[35]
In the absence of evidence to the contrary in the present case, the trial court
accepted, as it had a right to do, the evidence of these testings as adequate proof
of the accuracy of the radar set.
[36]
Id. at 14, 147 S.E.2d at 728 (citations omitted). This case clearly stands for the
proposition that testing a radar machine for reliability by tuning forks is
sufficient to prove the accuracy of the equipment. See also Howell v.
Commonwealth, 213 Va. 590, 592, 194 S.E.2d 758, 760 (1973) (holding that
where two speedometers agreed independently with the radar device in every
test, it is improbable that all three speed measuring instruments would have
been inaccurate to precisely the same degree).
[37]
The majority relies upon the case of Biesser v. Town of Holland, 208 Va. 167,
156 S.E.2d 792 (1967), a case which is distinguishable on its facts. In Biesser,
the only test of the accuracy of the radar was by the use of "a tuning fork,"
which was not otherwise described. Moreover, no evidence was presented
concerning the manner of its use. The Court noted that the only witnesses in the
case spoke of "a" tuning fork and "his" tuning fork, as if only one was used. The
Court indicated there was no explanation in the record how the officer checked
the radar speeds of thirty-five, forty-five and fifty-five miles per hour by the use
of only one tuning fork. One tuning fork is generally not considered sufficient
corroboration to establish the reliability of the radar unit. See People v. Walker,
199 Colo. 475, , 610 P.2d 496, 500 (1980). Thus, in Biesser, the government's
case failed, not because tuning fork evidence was found insufficient, but
because the tuning fork evidence in that case was found deficient.
[38]
Our sister states are almost unanimous in holding that when two tuning forks
are used to ascertain the accuracy of a radar unit, no additional proof of the
accuracy of the tuning forks is necessary because each tuning fork corroborates
the accuracy of the other. Without attempting to list all of the cases, I will cite a
few as examples of many others: People v. Abdallah, 82 Ill. App. 2d 312, 226
N.E.2d 408 (1967) (holding that where the officer made several tests with the
tuning fork prior to and subsequent to [11 VaApp Page 172] the time the
defendant passed into the radar field, and the officer was of the opinion the
radar was working properly, there was sufficient proof of the accuracy of the
unit to find the defendant guilty); People v. Lynch, 61 Misc. 2d 117, 304
N.Y.S.2d 985 (1969) (holding that the accuracy of a radar unit was established
by internal test calibration in the machine itself, and by means of thirty and fifty
mile per hour tuning forks); State v. Overton, 135 N.J. Super. 443, 343 A.2d
516 (1975) (holding that tests made with four tuning forks demonstrated the
accuracy of the radar unit); State v. McDonough, 302 Minn. 468, 225 N.W.2d
259 (1975) (holding that the internal tuning fork in the radar unit calibrated as it
was to the same speed as the external tuning fork served as an adequate check
on the accuracy of the external tuning fork and the prosecution satisfied the
requirement that the external tuning fork was reliably calibrated); State v.
Shimon, 243 N.W.2d 571 (Iowa 1976) (holding that it is "inconceivable" that a
reading of the radar unit-prior to the readout taken of defendant's speed, a
subsequent testing of the radar unit with a tuning fork and the testing of the
radar unit against the speedometer of the police vehicle all were inaccurate);
State v. Primm, 4 Kan. App. 2d 314, 606 P.2d 112 (1980) (holding that the
accuracy of the radar unit was adequately shown by the officer's testimony
regarding the internal calibrations and the tuning fork tests); People v. Walker,
199 Colo. 475, , 610 P.2d 496 (1980) (holding that where a tuning fork test is
used to calibrate a radar device, the prosecution must show that two tuning
forks have been used, or, alternatively, that the single tuning fork used has been
certified as accurate within one year of the test); State v. Kramer, 99 Wis. 2d
700, 299 N.W.2d 882 (1981) (holding that where the trooper tested the radar
unit before and after the arrest, using both the device's own internal calibration
mechanism and two external tuning forks, the tests were sufficient to raise a
rebuttable presumption that the radar device was functioning accurately); State
v. Trantolo, 37 Conn. Supp. 601, 430 A.2d 465 (1981) (holding that there is no
more reason to require independent proof of a tuning fork's accuracy as a
prerequisite to admissibility than that of a ruler); State v. Ahern, 122 N.H. 744,
449 A.2d 1224 (1982) (holding that the use of two tuning forks provided
sufficient assurance that the tuning forks themselves were accurate because each
tuning fork corroborated the accuracy of the other); Shears v. State, 648 P.2d
841 (Okla. Crim. App. 1982) (holding that the testimony of officer that he had
performed both an external test of
[11 VaApp Page 173]

accuracy of the radar unit, using calibrated tuning forks, and an internal test,
using the component unit within radar itself, was sufficient to establish radar
accuracy at the time of the arrest for speeding); State v. Bechtel, 24 Ohio App.
3d. 72, 493 N.E.2d 318 (1985) (holding that where two tuning forks are used to
ascertain the accuracy of the radar unit, no additional proof of the accuracy of
the tuning forks is necessary because each tuning fork corroborates the accuracy
of the other); State v. Tailo, 779 P.2d 11 (Hawaii 1989) (holding that once the
State puts in evidence that the police conducted a tuning fork test indicating the
radar gun was properly calibrated, this evidence creates a prima facie
presumption that the tuning fork itself was accurately calibrated).
[39]
One authoritative writer says this about the potential for error in radar testings:
[40]
Some of these potential sources of error can be minimized or excluded by
careful operating procedures and on-site tests. These include the use of tuning
forks vibrating at frequencies such that their linear motions will cause the
speedometer to register particular speeds if it is receiving properly, use of an
internal, electronically activated tong for the same purpose, and simply
checking that, when aimed at another police car, the radar reading corresponds
with that car's speedometer reading.... At least on the question of admissibility,
however, most courts recognize that independent errors are unlikely to be
identical. They tend to hold that some combination of these methods is
sufficient to warrant admissibility.
[41]
E. Cleary, McCormick on Evidence 204 (3d ed. 1984) (footnote omitted). I
would follow the overwhelming weight of authority in the United States and
hold that a radar unit's accuracy is established by proof that two tuning forks
and the internal system of the radar unit were used as corroborating devices, as
was done in this case.
[42]
Concerning the evidentiary issue, defense counsel called David Stopper as an
expert witness to explain to the jury "that radar doesn't pick up the closest
vehicle, but that a number of things are involved such as the type of vehicle,
what's in the vehicle, and the size of the vehicle." The defendant contested the
fact that his car was picked up on radar, claiming that there was a tractor-trailer
truck half a mile down the road. The defense attempted to elicit
[11 VaApp Page 174]

this type of evidence from Stopper by asking him hypothetical questions. The
trial court did not permit this evidence to be introduced because it erroneously
thought that the radar statute prevented it. However, in my opinion, general
rules of evidence governing the use of expert testimony, not the radar statute,
precluded the introduction of this evidence. The expert witness in this case had
no personal knowledge of the facts. Therefore, he was required to give his
opinion based upon facts in evidence assumed in hypothetical questions. C.
Friend, The Law of Evidence in Virginia 217 (3d ed. 1988). In my opinion,
the proffered questions did not contain all of the facts in evidence and a proper
foundation was not laid for most of them. There is no need to refer to them in
more than general terms, and to suggest that on remand the questions should be
phrased appropriately and based upon facts proven in the evidence.
[43]
For the above reasons, I do not concur in the majority opinion.



Opinion Footnotes


[44]
*fn1 Formerly Code 46.1-198, repealed by 1989 Acts c. 727 effective October
1, 1989.
[45]
*fn2 Having reached this conclusion, we need not address the appellant's
contention that Code 46.1-198, if it prohibits the expert's testimony, is
unconstitutional because it creates a bar to the defendant's introduction of
relevant evidence on his own behalf. See Massey v. Commonwealth, 230 Va.
436, 442, 337 S.E.2d 754, 757-58 (1985).
[46]
*fn3 We are not able to correlate the radar certificate of accuracy with the tuning
fork calibrations. The radar certificates describe frequencies measured with the
abbreviation "GHz," while the tuning fork certificates refer to frequencies
measured with the abbreviation "MHz." Because of the conclusion we reach, we
need not address resolution of the significance, if any, of these different
abbreviations.
[47]
*fn4 In 1990, the General Assembly amended code 46.2-882 to make
admissible the certificate of accuracy of the tuning forks, subject to a six
month limitation.



Dissent Footnotes


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