City of Springfield v. Waddell
| Decision Date | 13 July 1995 |
| Docket Number | No. 19414,19414 |
| Parties | CITY OF SPRINGFIELD, Respondent, v. Garen WADDELL, Appellant. |
| Court | Missouri Court of Appeals |
Garen Waddell, appellant, pro se.
No appearance for respondent.
Before PREWITT, CROW and PARRISH, JJ.
A jury in Springfield Municipal Division 22 of the Circuit Court of Judicial Circuit 31 found Appellant guilty of speeding in violation of a Springfield municipal ordinance. The jury assessed punishment at a fine of one dollar. The trial court entered judgment in accordance with the verdict.
Appellant brings this appeal per § 479.150.2(2). 1 His brief, submitted pro se, presents the following point relied on:
"1. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: the evidence does not support the verdict beyond a reasonable doubt.
A. There is no competent evidence to establish what speed the Appellant was driving.
B. Evidence was entirely circumstantial.
C. Facts and circumstances relied on by prosecution were inconsistant [sic] with each other and with the hypothesis of guilt.
2. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: court lacked jurisdiction and thus verdict had no validity.
3. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: denial of change of venue, denial of peremtory [sic] challenge.
4. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: complete corruption of the record to the point of non-viability.
5. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: denial of due process of law by court's display of substantial bias and prejudice denying proper legal representation.
6. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: in permitting the prosecution to comment on Appellant's failure to call the witness.
7. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: erroniously [sic] placing burden of proof of jury and witness misconduct on Appellant.
8. Trial court erred in not entering a judgement of not guilty that Appellant was driving in excess of the posted speed limit because: seating of improper jury."
Rule 30.06(d) 2 sets forth the requirements for a point relied on in this appeal. Rules 37.01, 37.61(e), and 30.33; §§ 479.150.2(1)-(2) and 543.220.1. Rule 30.06(d) reads, in pertinent part:
"The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...."
Appellant's point relied on fails to satisfy the "wherein and why" requirement of Rule 30.06(d). City of Springfield v. Rogers, 867 S.W.2d 692, 693-94 (Mo.App.S.D.1993); State v. Root, 820 S.W.2d 682, 685-86 (Mo.App.S.D.1991). An appellate court has no duty to resort to the argument portion of the brief to deduce wherein and why an appellant believes a trial court erred. Root, 820 S.W.2d at 686. Nonetheless, we have sifted the thirty pages of argument in Appellant's brief in an attempt to extract the import of each paragraph of his point. We shall address the contentions as we understand them, mindful that Appellant has the burden of demonstrating error. State v. Harrison, 539 S.W.2d 119, 121 (Mo.App.1976).
Contention 1(A) maintains the evidence was insufficient to support the verdict of guilty returned by the jury in that there was no competent evidence to establish Appellant's speed. In addressing that contention, we are aware that Respondent was required to prove Appellant guilty beyond a reasonable doubt. City of Kansas City v. Oxley, 579 S.W.2d 113, 114 (Mo. banc 1979). The standard of review for determining whether the evidence met that requirement is set forth in State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).
As explained in Oxley, 579 S.W.2d at 115, an appellate court neither weighs the evidence nor judges the credibility of the witnesses. Those are tasks for the jury. State v. Wright, 476 S.W.2d 581, 584 (Mo.1972).
Viewed favorably to the verdict, the evidence establishes that on the morning of September 28, 1993, Officer David Larry Tuter of the Springfield Police Department was operating a radar unit on Grand Street in Springfield. The power source for the unit was the battery on Tuter's motorcycle. The motorcycle engine was "turned off."
To "set up" the radar unit at that site, Tuter performed three procedures to ensure it was operating properly. First, he pushed a switch to determine whether all the tubes were working properly. He obtained a reading showing they were. Next, he did an "internal calibration" and again received a reading showing the unit was working properly. Finally, he struck a 50 mile-per-hour tuning fork in front of the unit and obtained a 50 mile-per-hour reading. He testified he followed these procedures "before and after each stop."
Asked whether he did anything else before directing the radar unit toward vehicular traffic, Tuter explained he performed a "sweep [of] the area with the radar" to detect outside interference. He observed none.
Between 10:30 and 11:00, Tuter saw a westbound Pontiac on Grand approaching his position. Tuter estimated its speed at 35 miles per hour, which exceeded the posted speed limit of 20 miles per hour. Tuter "put the radar unit into operation" and achieved a "radar lock" on the Pontiac, obtaining a reading of 36 miles per hour.
Tuter pursued the Pontiac and stopped it. Appellant was the driver. Tuter issued Appellant a citation for speeding.
One of Appellant's challenges to the sufficiency of the evidence is based on City of St. Louis v. Boecker, 370 S.W.2d 731 (Mo.App.1963), and State v. Weatherwax, 635 S.W.2d 34 (Mo.App.W.D.1982), which hold that a speeding conviction cannot be based on radar without proof that the unit was tested and found to be operating properly at the site of the alleged violation and reasonably close to the time it occurred. Boecker, 370 S.W.2d at 737; Weatherwax, 635 S.W.2d at 35.
Appellant maintains Tuter's testimony was insufficient to demonstrate compliance with Boecker and Weatherwax in that Tuter was unable to recall what time he calibrated the radar unit.
Asked on cross-examination what time he calibrated the unit, Tuter replied it could have been 9:30 or 10:15. That would have been anywhere between 15 and 90 minutes before Appellant's Pontiac appeared.
In Boecker, the officer tested the radar unit with a tuning fork before he left the police station to go on duty. 370 S.W.2d at 734. He did not test the unit at the site of the violation, and there was no evidence regarding the elapsed time between the test at the station and the violation. Id. In Weatherwax, the officer tested the radar unit with tuning forks at his home at 7:00 a.m., before going on duty. 635 S.W.2d at 34-35. Some four hours later, at a different location, he used the unit to detect a speeding violation. Id. at 35. He did not test the unit at that site, nor did he test it again until going off duty at 4:00 p.m. Id. In both cases, appellate courts held the evidence insufficient to support a conviction.
Appellant, who acquired knowledge about radar in military service, asserts his research disclosed no case that holds the accuracy of a radar unit can be established solely by a tuning fork.
The subject was addressed in Boecker, where the appellate court did not question the use of a tuning fork to test the accuracy of a radar unit "as a matter of principle." 370 S.W.2d at 736. However, Boecker noted the value of such a test hinged on the accuracy of the tuning fork. Id. Because there was no evidence that the tuning fork in Boecker was accurate, the appellate court had "grave doubts" that the test was sufficient to establish that the radar was functioning properly. Id. Despite such doubts, Boecker did not base reversal on the tuning fork test, but instead on the failure of the officer to test the unit at the site of the violation and reasonably close to the time it occurred. Id. at 736-38.
Here, there was evidence regarding the accuracy of the tuning fork and radar unit. Don Oliver, who holds a "radio telephone operator's license" from the Federal Communications Commission ("FCC"), has "certified" radar units for "eight to ten years." On May 7, 1993, he certified the unit used by Tuter.
Explaining the process, Oliver testified that the frequency of the tuning fork for that unit is counted by an electronic frequency counter at his shop. Accuracy of the unit itself is tested by the tuning fork and by two other tuning forks at the shop. Oliver avowed Tuter's radar unit had these margins of error: 4/100 of a mile per hour at 30 miles per hour, 12/100 of a mile per hour at 50 miles per hour, and 5/100 of a mile per hour at 65 miles per hour.
In State v. Moore, 700 S.W.2d 880 (Mo.App.E.D.1985), the arresting officer tested his radar unit with a 30-mile-per-hour tuning...
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