Scott M. White, s/k/a Scott Matthew White v. CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
SCOTT M. WHITE, S/K/A
SCOTT MATTHEW WHITE
MEMORANDUM OPINION * BY
v. Record No. 2991-98-3 JUDGE SAM W. COLEMAN III
FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Paul Joseph Duggan for appellant.
(Mark L. Earley, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Scott M. White was convicted in a bench trial of operating a
motor vehicle in excess of the posted speed limit in violation of
Code § 46.2-870. On appeal, White argues that the trial court
erred by denying his motion to suppress the evidence of his speed
and erred by admitting documentary evidence without requiring it
to be authenticated. He also argues that the evidence was
insufficient to support the conviction. For the following
reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
On July 4, 1998, White was operating his vehicle on
Interstate 81 in Rockbridge County. He was stopped by Trooper
Walt Baker and was issued a summons for traveling seventy-eight
miles per hour in a sixty-five miles per hour zone.
At trial, Baker testified that he was operating a stationary
radar device on Interstate 81 in Rockbridge County. Baker
testified that, after he visually suspected White was exceeding
the speed limit, he released the "hold" button on his radar.
White's vehicle was the only vehicle in the radar beam at the
time. The vehicle's speed registered at seventy-eight miles per
hour.
Baker testified that he performed multiple tests on the radar
device before and after his shift to ensure the device's accuracy.
He performed preprogrammed checks of the device's internal
calibrations and field tests of the device using tuning forks both
while the patrol vehicle was stationary and while it was moving,
and a separate test against the patrol vehicle's speedometer.
Baker testified that the radar device registered accurately during
all of these tests.
A certificate of the patrol vehicle's speedometer calibration
revealed that at speeds of fifty-five to sixty-five miles per hour
there was a one mile per hour discrepancy between the speedometer
and the radar device. The discrepancy, however, did not exist at
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other speeds. Baker testified that police department policy
permits a two-mile-per-hour margin of error in the patrol
vehicle's speedometer before it must be recalibrated. A
certificate verifying the accuracy of the tuning forks was not
proffered by the Commonwealth.
ANALYSIS
A. Motion to Suppress
White argues that the stop of his vehicle violated his Fourth
Amendment rights against unreasonable seizures. He argues that
Baker was unable to rely on the radar device's measure of speed as
justification for the stop because the radar device used to
measure his speed was inaccurate and improperly tested. White
asserts that without the radar device's measure of speed, Baker
had no probable cause or reasonable suspicion for which to stop
him and, therefore, the trial court erred by denying his motion to
suppress the evidence of his speed.
When we review a trial court's denial of a motion to
suppress, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In
our review, "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
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support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,
517 U.S. 690, 699 (1996)). We consider de novo whether those
facts implicate the Fourth Amendment and, if so, whether the
officer unlawfully infringed upon an area protected by the Fourth
Amendment. See id."'[W]hen the police stop a motor vehicle and detain an
occupant, this constitutes a 'seizure' of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (en banc) (quoting Zimmerman v.
Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "In
order to justify an investigatory stop of a vehicle, the officer
must have some reasonable, articulable suspicion that the vehicle
or its occupants are involved in, or have recently been involved
in, some form of criminal activity." Logan, 19 Va. App. at 441,
452 S.E.2d at 367. "To determine whether an officer has
articulated a reasonable basis to suspect criminal activity, a
court must consider the totality of the circumstances, including
the officer's knowledge, training, and experience." Freeman v.
Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995)
(citation omitted).
Here, as White's vehicle approached, Baker suspected, based
on his experience, that it was exceeding the speed limit. Baker
engaged the radar device, which he had previously tested for
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accuracy. The radar device revealed that White was traveling
thirteen miles per hour above the posted speed limit. Based upon
the results of the radar device, Baker had probable cause to
believe that White was committing a traffic violation. Therefore,
Baker was justified in stopping White and charging him with
speeding. Accordingly, the trial court did not err by denying
White's motion to suppress.
B. Admission of Documentary Evidence
White argues that the Commonwealth failed to prove that the
radar device used by Baker met or exceeded the standards
established by the Division of Purchases and Supply (DPS) as
provided by Code §§ 46.2-882 and 2.1-446. White also argues that
the trial court erred by admitting a memorandum from DPS regarding
traffic radar equipment because the document was incomplete and
unauthenticated. The radar results of a machine that has been
calibrated are entitled by statute to a presumption of correctness
and are admissible regardless of whether the Commonwealth proves
that the specific machine met or exceeded the standards
established by DPS. Accepting for purposes of this appeal that
the trial court erred by admitting into evidence the
unauthenticated letter from DPS, the admission of the letter into
evidence was harmless error.
Baker testified that the radar device was issued to him by
the Department of State Police for use in his patrol car. The
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Commonwealth introduced a letter from the DPS which indicated that
the radar device used by Baker was approved for use in determining
speed of motor vehicles. The letter was addressed to "Police
Chiefs, Sheriffs and Law Enforcement Authorities in the
Commonwealth of Virginia." The letter was dated and notarized on
December 30, 1996. The Commonwealth, however, only introduced a
photocopy of the letter and failed to authenticate the document as
either an official written document or as a business record.
The trial court admitted the document as a business record.
The business records exception allows the
introduction into evidence of regular
business entries of persons, other than the
parties, where the entrant is unavailable to
testify at trial and the trustworthiness of
the entries are established by showing the
regularity of preparation of the records and
the fact that they are relied upon in the
transaction of business by those for whom
they are kept.
Hooker v. Commonwealth, 14 Va. App. 454, 456, 418 S.E.2d 343, 344
(1992).
The Commonwealth argues that the letter from DPS was
admissible under the "official records" exception. This exception
"allows the admission of certain official public documents,
without the necessity of producing the record keeper, so long as
the keeper or entrant had personal knowledge contained in those
records and could be called to testify regarding them." Id. at
456, 418 S.E.2d at 344; see also Code § 8.01-390. "It is a
generally recognized rule that records and reports prepared by
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public officials pursuant to a duty imposed by statute, or
required by the nature of their offices, are admissible as proof
of the facts stated therein." Williams v. Commonwealth, 213 Va.
45, 46, 189 S.E.2d 378, 379 (1972). Code § 8.01-390 has codified
the official recorded document exception to the hearsay rule and
provides that copies of the record shall be received as prima
facie evidence "provided that such copies are authenticated to be
true copies both by the custodian thereof and by the person to
whom the custodian reports." Id.
Here, no foundation was laid for admitting the letter from
DPS under the business records exception or the official records
exception to the hearsay rule. No evidence of the regularity of
the preparation of the letter was presented. Further, the letter
was not shown to be an official public document. Without a proper
foundation for its admissibility, the letter was inadmissible into
evidence as an exception to the hearsay rule.
Even though the trial court erred by admitting the document,
we find the error was harmless. See Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). The
letter from DPS to the chief law enforcement officers that the
device had been approved by DPS for determining speed was not
essential to the Commonwealth's proof. The result of the use of
certain radar devices as specified by statute is prima facie
evidence of a vehicle's speed. See Code § 46.2-882. The prima
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facie evidence may be rebutted by showing that the radar device is
not an approved device. See Scafetta v. Arlington County, 13 Va.
App. 646, 649, 414 S.E.2d 438, 440, aff'd on reh'g, 14 Va. App.
834, 425 S.E.2d 807 (1992). White failed to rebut the prima facie
proof that he was exceeding the speed limit or to rebut that the
radar device was approved. Accordingly, the trial court's error
in admitting the document was harmless.
C. Sufficiency
White also argues the evidence is insufficient to support his
conviction because the Commonwealth failed to prove the accuracy
of the radar device used to record his speed.
On review, we view the evidence in the light most favorable
to the prevailing party and grant to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Jenkins, 255 Va.
516, 521, 499 S.E.2d 263, 265 (1998). "The judgment of a trial
court sitting without a jury is entitled to the same weight as a
jury verdict, and will not be disturbed on appeal unless plainly
wrong or without evidence to support it." Beck v. Commonwealth,
2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986).
Code § 46.2-882 provides that the speed of a motor vehicle
may be checked by radar or other specified speed detection
devices. "The results of such determinations shall be accepted as
prima facie evidence of the speed of such motor vehicle in any
court or legal proceeding where the speed of the motor vehicle is
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at issue." Code § 46.2-882; see also Gray v. Commonwealth, 18 Va.
App. 663, 666, 446 S.E.2d 480, 482 (1994). Where a question
arises about the calibration or accuracy of the radar device, a
certificate "showing the calibration or accuracy of the
speedometer of any vehicle or of any tuning fork employed in
calibrating or testing the device . . . shall be admissible as
evidence of the facts therein stated." Code § 46.2-882. The
statute, therefore, provides that the calibration and accuracy of
the radar device may be shown by either a tuning fork or
speedometer test. See Gray, 18 Va. App. at 667, 446 S.E.2d at
483.
Here, the evidence proved that Baker performed both the
tuning fork and speedometer tests on the radar device. Although
the Commonwealth failed to introduce evidence that the tuning
forks were accurately calibrated, the Commonwealth introduced the
calibration certificate for the patrol vehicle's speedometer. The
calibration certificate indicated that the vehicle's speedometer
had been calibrated within six months of the offense and was
accurate at the speed at which White was charged. We find that
the evidence proved the accuracy of the radar and of the radar
results and, thus, was sufficient to support the conviction.
Accordingly, we affirm.
Affirmed.
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