State v. Hanson

• Decision Date: 03 October 1978
• Docket Number: No. 76-061,76-061
• Citation: 85 Wis.2d 233,270 N.W.2d 212
• Parties: STATE of Wisconsin, Respondent, v. Lawrence I. HANSON, Appellant.
• Court: Wisconsin Supreme Court

Page 212

270 N.W.2d 212

85 Wis.2d 233

STATE of Wisconsin, Respondent, v. Lawrence I. HANSON, Appellant.

No. 76-061.

Supreme Court of Wisconsin.

Argued Sept. 6, 1978.

Decided Oct. 3, 1978.

This is an appeal by Lawrence I. Hanson from an order affirming a judgment of conviction entered in the Dane County Court finding Hanson guilty of speeding in violation of sec. 346.57(4), Stats. The judgment of conviction entered by the HON. ARCHIE SIMONSON, County Judge, was made pursuant to an order of the Dane County Circuit Court reversing the County Court's original finding of not guilty. The HON. WILLIAM SACHTJEN reversed the original County Court finding of not guilty on an appeal brought by the state to the Circuit Court of Dane County. The state's appeal to the Circuit Court challenged Judge Simonson's ruling that judicial notice could not be taken of the accuracy and reliability of the speed radar device used in Hanson's arrest.

On January 4, 1975 at 1:18 p. m., the defendant, Lawrence I. Hanson, was ticketed for speeding on U.S. Highways 18-151 in the Town of Verona. He was cited for a violation of sec. 346.57(4), Stats., for allegedly traveling at a speed of 68 m. p. h. in a 55 m. p. h. zone. Hanson's speed on the highway was measured by a speed radar device.

Hanson contested the accuracy of the radar at trial on July 21, 1975 before the HON. ARCHIE SIMONSON, County Judge. At that time, the state called but one witness, Trooper Charles W. Holl. Holl was the patrolman operating the radar device that measured Hanson's speed. He testified the radar unit used was a "moving radar." The moving radar unit used is known by its manufacturer's trade name as the MR-7.

Trooper Holl also testified to the fact that he had received one hour of classroom instruction on the use of the moving radar device, and that he had practical experience with it since October, 1974 when the State Patrol bought this type of radar instrument. Holl also testified that in the morning prior to Hanson's citation he had tested the radar to insure its working order. Holl also testified that before and after issuing Hanson the citation he had tested the radar to insure that it was working properly. Holl stated that he couldn't remember if he had used the radar's "verify button" following the 68 m. p. h. reading on Hanson. Holl testified that his squad car was traveling 50-55 m. p. h. when he took the reading on Hanson.

At the close of Trooper Holl's testimony the state asked Judge Simonson to take judicial notice as to the accuracy and reliability of the "moving radar" device. Following this request, the state rested. The defense objected to judicial notice being taken in that there had been no competent proof offered to establish its reliability and accuracy.

On July 29, 1975, Judge Simonson determined that judicial notice could not be taken as to the MR-7's reliability and accuracy. Judge Simonson scheduled the matter for continued hearings where expert testimony could be introduced due to the technical nature of the device.

At the continued hearing defense counsel objected to the reopening of the case and moved in opposition to any further proceedings. The motion was denied. The expert testimony elicited at the continued hearings will be dealt with in the body of this decision. On October 8, 1975, Judge Simonson rendered a written decision finding the defendant not guilty of speeding, specifically finding that the state had not proven the moving radar was sufficiently accurate and reliable so as to base a conviction upon its measurement of the defendant's speed. Appeal was taken to the Dane County Circuit Court by the state.

Judge Sachtjen reversed Judge Simonson stating there was no significant difference between stationary and moving radar, and that Wisconsin has accepted by judicial notice the accuracy and reliability of stationary radar. Judge Sachtjen further noted the policy consideration that, in requiring the state to produce expert testimony in every speed radar case, law enforcement of speeding prosecutions would be adversely affected.

On remand, Judge Simonson found himself obligated to follow the Circuit Court decision and found the defendant guilty of speeding. On appeal by the defendant, the HON. RICHARD BARDWELL, Circuit Judge, in an oral opinion and written order, affirmed the determination of guilt ostensibly to avoid conflicting Circuit Court decisions.

Peter M. Gennrich, Madison (argued), for appellant; Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief.

Albert O. Harriman, Asst. Atty. Gen., for respondent; Bronson C. La Follette, Atty. Gen., on brief.

COFFEY, Justice.

Two issues are presented for review:

1. Whether the trial court erred when, on its own motions, it permitted the state after resting to reopen its case in order to supply the court with expert testimony as to the reliability and accuracy of the MR-7?

2. Whether the Circuit Court erred in reversing the County Court's determination that judicial notice could not be taken as to the reliability and accuracy of the MR-7?

The issue as to whether the trial judge can reopen a party's case for further testimony after the party has rested is important in determining the scope of the record from which this court makes its review. If the trial court improvidently reopened the case for further testimony, this court would be obliged to determine this case without the benefit of the expert testimony given at the continued hearings. We do not find the trial court in error in this respect. It has been consistently held that a litigant has no automatic right to reopen a case in order to produce additional testimony, but this limitation is not applicable to the trial court. The court may on its own motion reopen for further testimony in order to make a more complete record in the interests of equity and justice. Diener v. Heritage Mut. Ins. Co., 37 Wis.2d 411, 422, 151 N.W.2d 721 (1967); In re Estate of Javornik, 35 Wis.2d 741, 746, 151 N.W.2d 721 (1967). This rule promotes efficient judicial administration in avoiding another trial due to an incomplete record.

As to the second issue, the expert testimony received at trial indicated that both the stationary radar and moving radar devices rely on the same scientific principle known as the Doppler effect. Webster's Third New International Dictionary defines the Doppler effect as a scientific principle in the following manner:

"A change in the frequency with which waves (as sound, light, or radio waves) from a given source reach an observer, the frequency decreasing with the speed at which source and observer move away from each other and increasing with the speed at which they move toward each other so that the pitch of a sound is apparently raised or lowered as the source and the observer move toward or away from each other . . ."

In a speeding conviction based upon a stationary radar instrument, a legal explanation of the Doppler effect and its application in speed radar was presented in East Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958) at 631:

"The radar speed-detecting devices commonly used in traffic control operate on what is known as the Doppler Effect and utilize a continuous beam of microwaves sent out at a fixed frequency. The operation depends upon the physical law that when such waves are intercepted by a moving object the frequency changes in such a ratio to the speed of the intercepted object that, by measuring the change of frequency, the speed may be determined." ¹

Many states have held that judicial notice can be taken as to the reliability and accuracy of stationary radar due to the scientific acceptance of the soundness of the Doppler effect. ² 47 A.L.R.3d 822, "Proof, by Radar or Other Mechanical or Electronic Devices, of Violations of Speed Regulations."

The moving radar is a relatively recent innovation and at the time of the arrest in this case, moving radar had only been in use in Wisconsin for three months. Moving radar is claimed to have advantages over the traditional stationary radar which is mounted to a parked police car. The moving radar, on the other hand, can be used in tracking the speed of a car traveling in the opposite direction from a moving squad car. While both radar units employ the Doppler effect, the difference from stationary radar is that two frequency beams are emitted instead of just one. The moving radar's second beam is used to determine the patrol car's speed. The moving radar contains computer components which determine the speed of an oncoming car by subtracting the speed of the moving patrol car from the closing rate of the oncoming car to the patrol car.

To this court's knowledge, the State of Ohio is the only jurisdiction in the nation which has permitted the taking of judicial notice as to the reliability and accuracy of a moving radar unit. State v. Shelt, 46 Ohio App.2d 115, 346 N.E.2d 345 (1976). A New York court in People v. Cunha, Dist.Ct., 402 N.Y.S.2d 925 (1978) did not directly address the issue before this court, but held a speeding conviction using an untested moving radar device can uphold a conviction for speeding when the speed of the alleged violator can be supported by the testimony of qualified observers. A law enforcement officer was found to be a qualified observer. Supra at 926.

This case is indeed novel in raising a challenge as to whether judicial notice can be taken as to the reliability and accuracy of a moving radar device. Its novelty is heightened by the fact that Wisconsin has never directly ruled upon whether judicial notice can be accorded the accuracy and reliability of any speed radar device. The Circuit Court opinions found there was no reason to distinguish the moving radar from a stationary machine. These decisions relied on State v. Trailer Service, Inc., 61 Wis.2d 400, 212 N.W.2d 683 (1973) in finding that judicial notice had been taken as to the reliability of stationary radar and...