Williams v. Com., 0974-86-3

• Decision Date: 16 February 1988
• Docket Number: No. 0974-86-3,0974-86-3
• Citation: 5 Va.App. 514,365 S.E.2d 340
• Parties: Billy Dean WILLIAMS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 340

365 S.E.2d 340

5 Va.App. 514

Billy Dean WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 0974-86-3.

Court of Appeals of Virginia.

Feb. 16, 1988.

Martin F. Clark, Jr. (Clark & Clark, P.C., Stuart, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and COLE, JJ.

COLE, Judge.

Appellant, Billy Dean Williams, was convicted in a jury trial of speeding in violation of Code § 46.1-193 and fined twenty-five dollars. He raises three issues on appeal: (1) whether his conviction was invalid because he was tried under a nonexistent code subsection; (2) whether the jury was improperly instructed upon the effect of calibration evidence in determining guilt or innocence and punishment for speeding in accordance with Code § 46.1-193.1; and (3) whether the trial court erred in not allowing defense counsel, during final argument, to discuss Williams' potential liability for court costs. We answer each of these inquiries in the negative, and accordingly, we affirm.

I. FACTS

On March 27, 1986, Trooper G.E. Miller, Jr. clocked a 1985 Peterbuilt tractor trailer truck being operated by appellant, Billy Dean Williams, at a speed of fifty-nine miles per hour in a forty- five mile per hour zone. The trooper was using a moving radar system. He issued Williams a traffic summons charging him with a violation of Code § "46.1-193" which sets the minimum/maximum speed limits. The summons described the charge as "speed 59/45."

At trial, the Commonwealth's evidence consisted of Trooper Miller's testimony and the result of the radar check. In his case-in-chief, Williams testified that he was aware of the forty-five mile per hour speed limit and that, according to his speedometer, he was traveling within that speed limit. He then introduced a calibration certificate showing the result of a test conducted about five weeks after the offense. The test disclosed that a speedometer reading of forty-five miles per hour on his truck was obtained when the truck actually was going fifty-eight miles per hour.

The jury returned a verdict finding Williams guilty of speeding "58 miles per hour in a 45 miles per hour zone," and fined him twenty-five dollars. This appeal followed.

II. CONVICTION UPON NONEXISTENT CODE SUBSECTION

Williams first maintains that he was convicted of violating a nonexistent code subsection, and that therefore, his conviction must be reversed. At the close of the Commonwealth's evidence, Williams moved to strike the evidence, contending that he was charged under the incorrect statute. The court overruled the motion, finding that Williams was charged under the appropriate section, Code § 46.1-193, but erroneously amended the warrant to show the subsection as "46.1-193h(3)," a nonexistent subsection. We hold that the error is not fatal to the conviction.

A summons must describe the offense charged. Rule 3A:4(b). This description must comply with Rule 3A:6(a), which provides that an indictment must give an accused notice of the nature and character of the offense charged against him. Greenwalt v. Commonwealth, 224 Va. 498, 501, 297 S.E.2d 709, 710-11 (1982). In Williams v. Petersburg, 216 Va. 297, 301-02, 217 S.E.2d 893, 897 (1975), the defendant argued that his conviction for refusing to take a breath test was invalid because the warrant inaccurately recited the applicable code section. In that case, instead of referring to Code § 18.1-55.1, which required that the breath sample be given, the warrant referred to Code § 18.1-54.1 which addressed preliminary field sobriety tests. The court found it sufficient that the warrant specifically charged the defendant with refusing to take a breath test, and held that the "misrecital [did] not invalidate the conviction." Id. at 302, 217 S.E.2d at 897.

In this case the traffic summons stated that Williams was charged with "speed 59/45." This description was sufficient to give him notice of the nature and character of the offense for which he was charged. Williams does not contend that he did not know the nature of the charge against him or that he did not have an opportunity to defend against that charge. Accordingly, despite the misrecital of the applicable subsection of the statute, the description of the offense set out in the summons gave the defendant notice of the offense of which he was charged.

III. INSTRUCTIONS ON CALIBRATION TEST

Next, Williams claims that the jury was incorrectly instructed upon Code § 46.1-193.1, which provides:

In the trial of any person charged with exceeding any maximum speed limit in this Commonwealth, the court shall receive as evidence a sworn report of the results of a calibration test of the accuracy of the speedometer in the motor vehicle operated by the defendant or the arresting officer at the time of the alleged offense. Such report shall be considered by the court or jury in both determining guilt or innocence and in fixing punishment.

He argues that the court erred in refusing to give three instructions he tendered because: (1) Code § 46.1-193.1 creates an absolute defense to a speeding charge where the speedometer reading on a motor vehicle is incorrect and is relied upon by the operator to determine his speed; (2) if the statute is not an absolute bar, it fashions a narrow and specific exemption to the malum prohibitum statute designed to protect those drivers who, without knowledge or intent, violate the maximum speed limit and in good faith rely upon the accuracy of their speedometers and find them incorrect; and (3) Code §§ 46.1-193.1 and 46.1-193 are conflicting and, therefore, the court gave inconsistent instructions to the jury.

A.

The trial court refused to give the following instructions requested by the defendant:

Instruction 1:

The Court instructs the Jury that the defendant, Mr. Williams, is entitled to rely on the speed shown on his truck's speedometer. If you believe that Mr. Williams' speedometer showed him traveling at a lawful speed at the time he was stopped, and that because his speedometer was incorrect, Mr. Williams exceeded the speed limit, then you shall find the defendant, Mr. Williams, not guilty.

Instruction 2:

The Court instructs the Jury that if you believe from the evidence that the defendant, Mr. Williams' speedometer showed Mr. Williams to be driving at a lawful speed at the time he was stopped by the State Trooper, then regardless of Mr. Williams' actual speed as determined by radar, the defendant, Mr. Williams, shall be found not guilty.

Instruction 3:

The Court instructs the Jury that if you believe the evidence of the mechanic who performed the calibration on Mr. Williams' truck that Mr. Williams' speedometer was incorrect, and that it showed Mr. Williams to be traveling at a lawful speed when he actually was traveling at a speed greater than the posted speed, you shall find the defendant, Mr. Williams, not guilty.

We find that the legislature, in enacting Code § 46.1-193, did not intend to bar a conviction for speeding for persons with inaccurate speedometers. Such an interpretation would discourage motorists from repairing defective speedometers and encourage tampering with them so as to prevent a conviction for speeding. We do not think the legislature intended to encourage a result that would foster unlawful activity. See Code § 46.1-308(ii) (illegal to operate motor vehicle with defective speedometer).

We find no language in the statute supporting the argument that the legislature intended an incorrect speedometer reading to constitute an absolute bar to a conviction for speeding. In a speeding case the only issue is whether the defendant's vehicle was in fact exceeding the lawful maximum speed. If so, he is guilty; if not, he is innocent. The calibration report is admissible in evidence and the fact finder under the statute may give it such weight as it deems proper under the facts and circumstances of the particular case.

The gravamen of the three instructions tendered by the defendant is that they removed from the fact finder the element of discretion which the statute imposes upon it. The instructions told the fact finder that if the speedometer showed Williams was traveling at a lawful rate of speed in accordance with the speedometer reading, although h...