Scafetta v. Arlington County, 1515-90-4

• Decision Date: 18 February 1992
• Docket Number: No. 1515-90-4,1515-90-4
• Citation: 414 S.E.2d 438,13 Va.App. 646
• Parties: Joseph SCAFETTA, Jr. v. ARLINGTON COUNTY. Record
• Court: Virginia Court of Appeals

Page 438

414 S.E.2d 438

13 Va.App. 646

Joseph SCAFETTA, Jr. v. ARLINGTON COUNTY.

Record No. 1515-90-4.

Court of Appeals of Virginia.

Feb. 18, 1992.

John J. Grimaldi, II (Rosenthal, Rich, Grimaldi & Guggenheim, on briefs), for appellant.

Sheila E. Norman, Asst. Commonwealth's Atty., for appellee.

Present: BARROW, COLEMAN and DUFF, JJ.

BARROW, Judge.

This appeal is from a conviction of speeding. At trial the court refused to take judicial notice of a document issued by the Federal Communications Commission. We conclude that the trial court should have taken judicial notice of this document; however, because no showing was made of the relationship between this document and the issues raised at trial, we also conclude that the failure to take judicial notice of it was harmless error.

The appellant, Joseph Scafetta, Jr., was charged with driving forty-five miles per hour in a thirty miles per hour zone. Prior to trial, Scafetta moved to suppress all evidence of his speed on the ground that the radar device used to measure it was not of a type accepted by the Federal Communications Commission (FCC). As support, Scafetta proffered a certified copy of a public notice issued by the FCC listing radar devices which have been granted "type acceptance" pursuant to federal regulations. The Commonwealth objected on the ground that the document proffered was inadmissible hearsay. Scafetta requested the court to take judicial notice of the document, but the court declined to do so. The case proceeded to trial and Scafetta was found guilty as charged.

Courts are required to take judicial notice of official publications of the United States and its agencies which are published "pursuant to the laws thereof." Code § 8.01-388. The FCC is required to publish periodically a list of certain electronic equipment which has been type accepted by the commission. 47 C.F.R. § 90.203. The document proffered by Scafetta is the published "list of speed-measuring devices ... type accepted under Part 90 of the Rule." Therefore, the document proffered by Scafetta was an official publication of an agency of the United States which was published as required by the law of the United States and, therefore, should have been subject to judicial notice by the trial court.

The Commonwealth contends that this document was inadmissible hearsay. However, because we conclude that the trial court was required to take judicial notice of the contents of the document, it was not necessary for the document to be admitted into evidence. The Commonwealth is correct that copies of records of the United States and its agencies must be properly authenticated in order to be admissible. Code § 8.01-390; Ingram v. Commonwealth, 1 Va.App. 335, 340, 338 S.E.2d 657, 659 (1986). In this case, however, it is not the document which is being admitted into evidence; rather, it is the contents of the document which must be given judicial notice. Code § 8.01-388. Judicial notice permits a court to determine the existence of a fact without formal evidence tending to support that fact. C. Friend, The Law of Evidence in Virginia § 268, at 692 (3d ed. 1988). It was not, therefore, necessary that the document meet the requirements for admissibility into evidence.

The Division of Purchases and Supply is required to approve the equipment to be used in Virginia to measure the speed of motor vehicles. Code § 46.2-882. The Division of Purchases and Supply has specified that radar units used in the Commonwealth must have type acceptance approval from the FCC. Scafetta argues that the notice published by the FCC demonstrates that the radar used to measure the speed of his automobile was not authorized for use.

However, the evidence in this record does not support Scafetta's contention that the radar used to measure the speed of his automobile was not one having type acceptance approval from the FCC. The radar which was used to measure the speed of Scafetta's automobile was a Kustom Electronics Model KR10-SP radar device. Included among the radars which were type...