City of St. Louis v. Boecker, 31278

• Decision Date: 17 September 1963
• Docket Number: No. 31278,31278
• Citation: 370 S.W.2d 731
• Parties: CITY OF ST. LOUIS, Plaintiff-Respondent, v. Forrest BOECKER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 731

370 S.W.2d 731

CITY OF ST. LOUIS, Plaintiff-Respondent, v. Forrest BOECKER, Defendant-Appellant.

No. 31278.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1963.

Forrest Boecker, St. Louis, for defendant-appellant.

Thomas J. Neenan, City Counselor, H. J. Dodson, Asst. City Counselor, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Defendant was arrested and charged with violating an ordinance of the City of St. Louis which limited the maximum speed of automobiles to 30 miles per hour. He was tried and found guilty in the City Court and thereafter appealed to the St. Louis Court of Criminal Correction. A trial by jury in that court resulted in a verdict and judgment finding defendant guilty and assessing as penalty a fine of $25. From that judgment defendant prosecutes this appeal.

Defendant was arrested by Officer John Hoffman of the St. Louis Metropolitan Police Department on June 1, 1961, about 11:35 A.M., on Lindell Boulevard, an east-west street in the City of St. Louis. The only evidence tending to prove that defendant was exceeding the lawful speed limit was that given by Hoffman, over the timely and proper objections of defendant. The officer testified that he was operating a radar speedmeter mounted in the trunk of his police car, and that as defendant's automobile, proceeding westwardly, passed through the beam projected from the radar machine the dial of the radar speedmeter indicated defendant's speed as 40 miles per hour. On cross-examination the officer admitted that defendant's car was 'lagging behind' other automobiles which were proceeding westwardly on Lindell ahead of defendant.

It has been said that normally there are four basic issues involved in the conviction of an accused for a speed violation detected by radar: (1) the accuracy of the device as a scientific instrument; (2) the proper functioning of the particular machine used; (3) the identification of the accused as the speed violator; and (4) hearsay evidence as it may relate to the testing and setting up of the unit, to identification, and to the arrest of the accused. ¹ To those we suggest the addition of a fifth, that of the training and experience of the operator. However, in this appeal defendant has raised only one of the foregoing issues, and accordingly our review will be confined to that question. In brief, what the defendant here contends is that Officer Hoffman's testimony as to the speed registered on the radar speedmeter was not admissible, and that without it no submissible case was made, because there was no evidence that the radar device had been adequately tested or that it was functioning properly at the time defendant was arrested. The City, of course, contends to the contrary.

The only evidence of any test made of the radar device was that given by Officer Hoffman. Asked by the City's counsel whether on the day of the arrest he had tested the radar machine in any way before he took out the police car in which it was installed, he stated:

'Well, there is a tuning fork, as they call it, used specifically for checking this instrument, this unit. And this fork is used in a manner that you can turn it on, then you flip this fork and you touch it lightly, cause a virbration in it. And you hold it to the rear where the box would be that is picking up this--shooting out this beam, and that makes a reading on your visual meter of thirty miles an hour. And when it holds that reading for several seconds, then we are told that the machine is in perfect operating condition.'

Defendant objected to the hearsay involved in the latter part of the officer's answer and moved that it be stricken, but the record fails to show any ruling by the court.

Sergeant Herbert Bosch, supervisor of the Communications Technical Section of the Police Department, who was licensed by the Federal Communications Commission to service radar units and was in charge of the maintenance and repair of the Police Department's machines, testified that the tuning fork used to test the radar devices was very similar to a tuning fork used by a piano tuner; that it is cut to a certain audial frequency; that when held in front of the radar instrument and vibrated, it has the same effect on the radar as a car going through the beam at 30 miles per hour; that if the dial registers 30 miles per hour it is considered a test of the accuracy of the machine; and that it is an accepted test, recommended by radar engineers. On cross-examination the Sergeant stated that the Police Department had two tuning forks, one calibrated for 30 miles per hour and the other for 60. He also stated that he had no personal knowledge of when, either before or after defendant's arrest, the unit used by Officer Hoffman had been tested.

Both the defendant and the City cite and rely on the only reported Missouri case involving radar, State v. Graham, Mo.App., 322 S.W.2d 188, decided by the Springfield Court of Appeals in 1959. In that case the state troopers had tested their radar machine shortly before defendant's arrest, and at the point where the arrest occurred, by what is called the run-through test, in which a car was driven through the beam at speeds of 50 and 70 miles per hour (as indicated on the automobile speedometer) to determine whether corresponding speeds were registered on the dial of the radar speedmeter; and also by the use of two tuning forks calibrated to register 50 and 70 miles per hour on the radar speedmeter. The defendant, who was charged with going 65 miles per hour in a 50 mile per hour zone, raised among others the same points as does the defendant here, namely, that there was no proof that the radar had been properly tested or that it was functioning properly at the time of his arrest. The court stated that it was a matter of common knowledge that an automobile speedometer reflects only approximate speed and that there is considerable variance in the speedometers of different cars. It noted that there was no evidence that the speedometer in the patrol car used to check the accuracy of the radar device was itself accurate, or had ever been checked. But it held (l. c. 197 of 322 S.W.2d):

'* * * If such a situation existed in a close case, where there was a slight difference between the allowed and actual speed, we might question the admissibility of such speedometer evidence; but here there was an excess of 15 miles per hour. In addition, there was the confirmation of the tuning fork test. These tests we think were sufficient to make the evidence of the radar speedmeter admissible.'

The court further held that (l. c. 197 of 322 S.W.2d), '* * * the dual tests made almost immediately before the occasion * * *' was prima facie proof that the machine was functioning properly at the time of defendant's arrest.

Defendant argues that it was held in effect in that case that a run-through test by a moving vehicle is absolutely essential to establish the accuracy and proper functioning of a radar speedmeter, and that the court relied entirely on such a test. On the other hand, the City asserts that the court in State v. Graham, supra, recognized the sufficiency of the tuning fork test, standing alone, as prima facie proof of the accuracy and proper operating condition of the radar unit. In our opinion neither view is correct. As the foregoing quotations illustrate, the court based its decision on the duality of the tests made. We think that the important principles to be deduced from State v. Graham, supra, are three-fold: First, the acceptance as a matter of judicial knowledge, '* * * that a radar speedmeter is a device which, within a reasonable engineering tolerance, and when properly functioning and properly operated, accurately measures speed in terms of miles per hour.' (l. c. 195 of 322 S.W.2d); Second, the recognition as a matter of judicial knowledge that the device may not operate properly upon occasions and for various reasons, and that it is therefore, '* * * the obligation of the proponent who uses it to establish prima facie that the machine was properly functioning * * *' (l. c. 197 of 322 S.W.2d); and Third, that '* * * the value of such tests (of a radar speedmeter) would depend upon the accuracy of the measuring device against which it is checked. * * *' (l. c. 197 of 322 S.W.2d).

Unlike the situation which existed in State v. Graham, supra, dual tests were not made in the present case; in fact, Officer Hoffman testified that the Police Department ceased making the run-through tests some years before, when the use of the tuning fork began. The only test made of the accuracy of the radar unit here involved was the tuning fork test made by Hoffman 'on the morning' of the day of the arrest, before he took the police car 'out,' presumably at the start of his tour of duty on that day. The record is totally devoid of any evidence of the time when, and the place where, such test was made. No evidence was introduced as to the nature and extent of the movements of the car during the period of unknown length which intervened between the making of the test and the arrest of defendant. Nor is there any testimony as to the manner in which Hoffman set up the unit at the site on Lindell Boulevard, the procedure he followed when he activated the device, or the length of time the set had been in operation before the arrest was made. In fact, when his testimony regarding the test (heretofore quoted in full) is read carefully it will be noted that he did not even state that the radar speedmeter read 30 miles per hour when he tested it with the tuning fork; all that he actually did was to describe in the abstract the nature of and the principle underlying the tuning fork test. For the purposes of this case, however, we will infer from his testimony that the radar device read 30 miles per hour at the time he tested it with the tuning fork.

Bearing in mind the principle stated in State v. Graham, supra, that it is the obligation of...