State v. Calvert

• Decision Date: 18 December 1984
• Docket Number: No. 66049,66049
• Citation: State v. Calvert, 682 S.W.2d 474 (Mo. 1984)
• Parties: STATE of Missouri, Respondent, v. Brent Dee CALVERT, Appellant.
• Court: Missouri Supreme Court

Page 474

682 S.W.2d 474

STATE of Missouri, Respondent, v.Brent Dee CALVERT, Appellant.

No. 66049.

Supreme Court of Missouri En Banc.

Dec. 18, 1984.

Rehearing Denied Jan. 15, 1985.

Kenneth J. Berra, Richmond, for appellant.

Farrell D. Hockemeier, Sp. Pros.Atty., Richmond, for respondent.

HIGGINS, Judge.

A jury convicted defendantBrent Dee Calvert of driving while intoxicated, section 577.010, RSMo 1978, and speeding, section 304.010, RSMo 1978.His punishment was fixed at fines of $500 and $100; judgment was rendered accordingly.A majority of the Court of Appeals, Western District, affirmed; the dissenters transferred the case to this Court, citing conflict with existing case law and the general interest and importance of the issue raised.The questions for decision, upon which the court of appeals divided, are whether the State established the scientific reliability of the radar speed device in question when operated in a moving mode, and the accuracy of the device when it recorded the speed of defendant's vehicle.Other questions are raised by charges that the trial court erred in admitting breathalyzer test results because the State failed to cooperate with discovery as required by section 577.020(4), RSMo 1978; in permitting the arresting officer to give his opinion of the speed of defendant's vehicle; and in refusing a proffered converse instruction.Affirmed.

On September 27, 1981, Sergeant Harvey Oberweather of the Missouri State Highway Patrol was patrolling a 55 miles per hour speed zone on Highway 13 north of Henrietta, Missouri, when defendant approached in his vehicle from the opposite direction.The sergeant was in an unmarked patrol car equipped with a Speed Gun Eight radar unit, a device designed to record the speed of traffic.The Speed Gun Eight, functional in both a stationary and moving mode, was switched to the moving mode.Sergeant Oberweather formed an opinion, based on observation, that the approaching car was traveling faster than 65 or 70 miles per hour; the Speed Gun Eight recorded the speed at 74 miles per hour.He testified to both his opinion and the radar reading.The sergeant changed direction and gave chase.Defendant stopped his vehicle in the middle of the highway.Defendant's appearance, demeanor, and the odor of alcohol on his breath, led the officer to conclude that defendant was intoxicated.Defendant admitted drinking but denied he was intoxicated or had been speeding.A breathalyzer test administered at the Ray County Jail showed defendant had .15 of one percent alcohol in his blood.Sergeant Oberweather arrested defendant for exceeding the speed limit and for operating a motor vehicle while intoxicated.

Appellant argues that the State failed to lay a proper foundation for admission of the radar speed gun reading of the speed of his vehicle.He challenges the admissibility of the 74 miles per hour recording because there was no expert testimony that the unit could accurately measure the speed of a moving oncoming vehicle when the unit is in a patrol vehicle moving in the opposite direction.

Sergeant Oberweather, a 15-year veteran of the Highway Patrol whose experience includes some 5,000 speeding arrests, described his formal training and practical experience with the Speed Gun Eight.James Smith, a Highway Patrol communications specialist, described his training as an expert and experience with radar speed guns; his qualifications went unchallenged.Their testimony showed that the Speed Gun Eight operates on the Doppler theory, and they described its implementation in the enforcement of speed limits by the use of radar.Smith explained:

"[The radar] sends out a high frequency radio beam down the highway and if it strikes a moving object the beam will be bounced back to the radar at a higher pitch.Say the beam struck a car doing 70 miles per hour, the outgoing signal would come back at 2200 cycles higher in pitch, and the radar has a calibrator that divides that to miles per hour and displays on the screen, and the beam strikes the pavement from the patrol car which gives the speed of the highway patrol car and the moving radar substracts (sic) the ground speed on the oncoming traffic and reads out, it displays.....One display gives the ground speed of the patrol car and the other the oncoming traffic."

Oberweather testified that the Speed Gun Eight is capable of functioning in a stationary or moving mode, and in the latter, "when we are driving down the highway it will give us our speed as well as the oncoming vehicle...."

Courts first judicially noticed the Doppler principle for use in speed detection in 1955, and the scientific reliability of radar speed devices based on the Doppler principle has been recognized in Missouri since 1959.State v. Graham, 322 S.W.2d 188(Mo.App.1959).Other courts and commentators have accepted as reliable moving radar devices that operate on the Doppler principle.Village of Pemberville v. Dietrich, 7 Ohio Misc.2d 48, 455 N.E.2d 727(Mun.Ct.1983);State v. Primm, 4 Kan.App.2d 314, 606 P.2d 112(1980);State v. Wojtkowiak, 170 N.J.Super. 44, 405 A.2d 477(Law Div.1979), rev'd on other grounds, 174 N.J.Super. 460, 416 A.2d 975(App.Div.1980);People v. Donohoo, 54 Ill.App.3d 375, 12 Ill.Dec. 49, 369 N.E.2d 546(1977);Note, Radar Speed Detection: Homing in on New Evidentiary Problems, 48 FordhamL.Rev. 1138(1980).ContraPeople v. Conlon, 109 Misc.2d 729, 440 N.Y.S.2d 831(Dist.Ct.1981).The Western District earlier upheld a speeding conviction based on a speed reading registered by a Speedgun Six, the predecessor of the unit used here.State v. Hunziker, 638 S.W.2d 793(Mo.App.1982).SeeWojtkowiak, supra, 405 A.2d at 487(affirming speeding conviction based on moving radar reading);Donohoo, supra, 369 N.E.2d at 548-549(same);State v. Shelt, 46 Ohio App.2d 115, 75 Ohio Op.2d 103, 346 N.E.2d 345(1976)(same).See alsoState v. Hanson, 85 Wis.2d 233, 270 N.W.2d 212(1978)(courts in future cases may take judicial notice of reliability of moving radar device).

Under these authorities this record provides sufficient proof of the scientific reliability of the Speed Gun Eight to constitute a prima facie case for admission of its speed reading; there was no conflicting expert testimony.

Appellant also contends the State failed to prove the accuracy of the particular unit used.The proponent of radar evidence must prove the unit was operating accurately at the time of its use relative to the violation to sustain a speeding conviction.Graham, supra, at 196-197; Annot., 47 A.L.R.3d 822(1973).

Sergeant Oberweather stated that the State Highway Patrol periodically checks the speed gun and returns the unit with a certification of accuracy if it is in proper working order; the Highway Patrol last certified this particular unit on June 16, 1981.Before using this unit in detection of defendant's speed, Sergeant Oberweather performed three different tests to check the accuracy of this radar unit.At the beginning and end of each shift, he tests the unit for accuracy in both modes with tuning forks calibrated to produce speed readings of 30 miles per hour and 70 miles per hour.There was testimony from James Smith to show the accuracy and proper functioning of the tuning forks employed.In addition, the sergeant testified that he utilizes the internal calibration within the unit to check its accuracy.The third test consists of checking the radar unit display against the certified speedometer of his patrol car.The sergeant conducted each of the above tests on the day of the arrest.The evidence does not show the results of the tuning fork tests.

Appellant would support his contention by citing City of Jackson v. Langford, 648 S.W.2d 927(Mo.App.1983).In Langford there was no evidence of the time and place of testing, and the officer used only the two tuning forks to test the accuracy of the radar gun.Here, however, Sergeant Oberweather testified that he shuts off the unit if it fails to display the correct readings when tested with the tuning forks; and permissible inferences from his entire testimony are that the unit registered correctly in response to each check for accuracy, and that the radar speed gun registered accurately when tested.SeeCity of St. Louis v. Boecker, 370 S.W.2d 731, 734(Mo.App.1963).Appellant's objection to the admissibility of the radar evidence relates not to the results of the testing procedures but to the time and location of testing.Appellant cites Boecker, supra, andState v. Weatherwax, 635 S.W.2d 34(Mo.App.1982), which condition the admissibility of radar evidence upon a showing that the arresting officer tested the radar unit at the site and near the time of the arrest.Both Weatherwax and Boecker involved the use of stationary radar, a distinction made by the Western Division majority.

In following Boecker, supra, decided 20 years ago, the court in Weatherwax recognized that the earlier decision required the site test to reduce the possibility that outside factors produced an inaccurate speed reading.635 S.W.2d at 35.In the instant case, the arresting officer acknowledged the possibility of spurious readings and estimated their occurrence at not more than one-half of one percent.External interference, in the form of bridges or power lines, may affect the functioning of the unit.A distorted reading may also result from internal interference, such as the patrol car heater, air conditioner or radio.Smith testified that any distortion produced by power lines consists of transitory, "flash" readings, which the stronger signal from a target vehicle overrides.Oberweather testified that he never experienced external interference in the area where he arrested defendant.He further testified that the radar gun produces a reading if pointed directly at the heater or air conditioner in the patrol car; the gun was affixed to the dashboard of the patrol vehicle, facing forward, and...