State v. Sprague

• Decision Date: 24 June 1974
• Docket Number: No. 73-133,73-133
• Citation: 113 R.I. 351,322 A.2d 36
• Parties: STATE v. Ronald E. SPRAGUE. C.A.
• Court: Rhode Island Supreme Court

Page 36

322 A.2d 36

113 R.I. 351

STATE v. Ronald E. SPRAGUE.

No. 73-133 C.A.

Supreme Court of Rhode Island.

June 24, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff.

Berberian & Tanenbaum, Aram K. Berberian, Cranston, for defendant.

OPINION

PAOLINO, Justice.

The defendant was charged with violating G.L.1956 (1968 Reenactment) § 31-14-1. ¹ The complaint and warrant alleges that he operated a motor vehicle on Cotober 26, 1971, '* * * on Rt. 95, a public highway in the City of Warwick, in the State of Rhode Island, at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, in that he did operate, said motor vehicle on said highway at a radar speed of 75 MPH in excess of the 60 miles per hour legally established speed limit.' The case was heard before a justice of the Superior Court sitting with a jury and resulted in a verdict of guilty. The matter is before this court on the defendant's appeal from the judgment entered in that court.

I

The defendant's first contention is that Interstate Route 95 is a freeway, not a highway, and therefore the provisions of § 31-14-2 ² do not apply. We do not agree.

Section 31-1-23(a) defines a highway as the '* * * entire width between boundary lines of every way when any part thereof is open to the use of the public for purposes of vehicular traffic.' This is the definition that applies here. Title 31 deals with 'Motor and Other Vehicles.' It contains no definition of freeway. As the state points out, if the term 'highway' were interpreted for the purpose of § 31-14-2 as not including Interstate Route 95, then the result would be that the state would be without authority to regulate speed on interstate highways. We do not believe that the Legislature intended such an unreasonable result. Statutes are not to be so construed as to reach meaningless or absurd results, State v. Milne, 95 R.I. 315, 321, 187 A.2d 136, 139 (1962), and, as we said in State v. Lemme, 104 R.I. 416, 423, 244 A.2d 585, 589-590 (1968), where one construction of an act of the Legislature operates to defeat an otherwise legitimate legislative intendment while another serves to support it, we will adopt the latter construction.

We hold that § 31-1-23(a) is applicable here and that Interstate Route 95 is a highway for the purpose of § 31-14-2. Section 24-10-1, which defines a freeway as '* * * a way especially designed for through traffic over which abutters have no easement or right of light, air or access by reason of the fact that their property abuts upon such way,' is not in conflict with our conclusion that Interstate Route 95 is a highway within the meaning of § 31-14-2. It merely defines the rights of abutting property owners with respect to easements or rights of light, air or access.

II

The defendant next contends that the tuning fork used to test the accuracy of the radar speed meter readings must be proved accurate before the radar speed meter readings are admitted into evidence.

Trooper Francis J. Martin, the officer who stopped defendant, explained how he operated the radar set he was using. He testified that he calibrated his radar unit with a tuning fork. ³ When he was asked by the state's attorney whether or not the radar set was in proper working order, defendant objected on the ground that there was no proof that the tuning fork was accurate. The trial justice overruled the objection and the officer was permitted to testify that the radar set was in proper operating order.

This question is one of first impression in this state. Since we have no decisions of this court directly in point we look for guidance to analogous cases in this state and cases in other jurisdictions which have passed on this question.

In State v. Barrows, 90 R.I. 150, 152, 156 A.2d 81, 82 (1959), the arresting officer testified that he pursued the defendant and, from his observation of the speedometer in his police car, determined that the defendant was driving at 65 miles per hour. The defendant objected to the admission of this testimony on the ground that it was inadmissible unless evidence as to the accuracy of the speedometer was first adduced. Another officer testified that he had recently tested the accuracy of the speedometer in the arresting officer's car by comparing it at various speeds with the readings observed on the speedometer of an accompanying motorcycle. The defendant then renewed his motion to strike on the ground that there was no showing that the accuracy of the speedometer on the motorcycle had been determined.

In Barrows we held that the testimony as to the speed at which the defendant's automobile was being operated, based on an observation of the speedometer readings in the arresting officer's motor vehicle, was admissible in evidence upon a showing that the operational efficiency of the device had been tested by an appropriate method within a reasonable period of time.

Although Barrows involved the accuracy of a speedometer while the instant case involves the accuracy of a radar unit, it seems to us that the cases are analogous and that the reasoning in Barrows should apply here. The evidence in the case at bar shows that the operational efficiency of the radar unit was tested within a reasonable time by an appropriate method, that is, the tuning fork. If we did not require the motorcycle speedometer in Barrows to have been previously tested as accurate, why should we require the tuning fork to have been previously tested?

When we look at the cases in other jurisdictions for an answer to this question we find, as defendant admits, a split of authority on the question of whether it must be shown that the tuning fork must have been previously tested for accuracy. Some cases support defendant's view, but we think the better rule is the one stated in People v. Abdallah, 82 Ill.App.2d 312, 226 N.E.2d 408 (1967), where the court held that radar speed meter readings are admissible without a prior showing of the reliability of the tuning fork that was used to test the accuracy of the radar unit.

Officer Martin's testimony setting forth his training and experience in the use of a radar unit, in addition to his testimony describing the tuning fork test on the day defendant was stopped, is reasonable and sufficient proof of the accuracy of the radar unit, and therefore the reading taken therefrom was admissible even though the tuning fork used to test the accuracy of the radar device was itself not tested for accuracy.

III

Under point III defendant argues that an in-court show-up identification is inadmissible into evidence and deprives defendant of due process of law as guaranteed to him by art. XIV, sec. 1 of amendments to the Constitution of the United States.

During direct examination the state's attorney asked Trooper Martin if he saw in the courtroom the operator of the motor vehicle he stopped. At that time defendant was seated at counsel table with his attorney. The defendant objected, arguing that such in-court identification violated the Wade, Gilbert, Stovall, trilogy. ⁴ The trial justice overruled defendant's objection and allowed the officer to answer. He identified defendant as the operator of the car he stopped.

In urging error, defendant contends that the in-court identification is subject to the standards set forth in Wade. He cites People v. McMath, 104 Ill.App.2d 302, 244 N.E.2d 330 (1968). Wade, Gilbert and Stovall are not applicable to the situation presented here; those cases were concerned only with pretrial identification procedures. Allen v. Rhay, 431 F.2d 1160 (9th Cir. 1970); United States v. King, 433 F.2d 937 (9th Cir. 1970). People v. McMath, supra, merely follows the rationale of Wade, Gilbert and Stovall; it does not extend the doctrine of those cases to identification procedures at a trial. The defendant has cited no authority, nor have we found any, which supports his position. Hence, we hold that the trial justice's ruling allowing Trooper Martin to identify defendant in the courtroom was not error.

IV

The defendant next argues that a defendant who takes the stand but does not actually testify may not have his credibility impeached by evidence of uncounseled prior nolo and guilty pleas in traffic cases.

The question of whether a defendant who takes the stand but does not testify can be impeached by evidence of prior convictions is not properly before us since the transcript shows that he did testify. The defendant took the stand and was duly sworn as a witness. His counsel then said 'No questions,' but after the state's attorney completed his cross-examination, defendant testified on redirect examination by his own counsel and again on recross-examination by the state.

We come now to the question of uncounseled prior nolo and guilty pleas in traffic cases. Under cross-examination by the state's attorney, defendant admitted, over his attorney's objection, that he had paid a fine on prior occasions for speeding. In redirect examination defendant's counsel elicited from defendant that he was not represented by counsel on any of those occasions. The defendant argues that, in the circumstances, the trial justice committed error in allowing this evidence and in instructing the jury that it had a right to such evidence in passing on defendant's credibility.

We shall assume for the purpose of this case that the trial justice erred in ruling that the record of the uncounseled prior convictions was admissible to impeach defendant's credibility. See Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Nevertheless, in view of the overwhelming evidence in this record that defendant was operating his vehicle in violation of § 31-14-1, we conclude that the admission of the prior speeding convictions and the trial justice's charge relative thereto was harmless error beyond a...