O'BRYANT v. District of Columbia

223 A.2d 799, 1966 D.C. App. LEXIS 242

• Court: District of Columbia Court of Appeals
• Decided: November 14, 1966
• Docket: 3894
• Status: Published

Opinions

QUINN, Associate Judge:

Appellant was charged in separate in-formations with eighteen violations of the District of Columbia Traffic and Motor Vehicle Regulations, all resulting from an early morning chase through city streets. The informations alleged failure to slow at intersections (seven), unreasonable speed (five), failure to obey traffic signals (three), driving without lights, driving on the wrong side of the street, and carrying a defaced permit. Following a consolidated trial, he was convicted of all charges except carrying a defaced permit and received sentences of ninety days in jail for the single continuous offense of unreasonable speed and $25 or ten days for each of the other offenses — an aggregate of $300 or 120 days. Appellant’s motion for a new trial was denied, and after making an unsuccessful attempt to file a single notice of appeal for all thirteen convictions, he noted an appeal from the conviction on the charge of unreasonable speed.

We are initially faced with the question of the scope of the present appeal. Our Code provides that a person convicted of crime may appeal as a matter of right except when the penalty imposed is less than $50, in which case review shall be by application for the allowance of an appeal. D. C.Code § 11-741 (Supp. V 1966). In Yeager v. District of Columbia, D.C.Mun.App., 33 A.2d 629 (1943), we held that an appeal as of right would not lie where the appellant had been charged in separate informations with eight offenses, was found guilty, and was fined $25 for each offense. In Chambers v. District of Columbia, 90 U.S.App.D.C. 153, 194 F.2d 336 (1952), reversing D.C. Mun.App., 80 A.2d 397 (1951), eighteen infractions had been charged in a single information. The appellant had been found guilty on all counts and fined $25 on each (some “to run concurrently”), and the judgment as entered on the back of the information included the notation: “(total fine $100).” The United States Court of Appeals held that an appeal as of right should be allowed.

While we are aware that the above cases can be distinguished because of the number of informations filed and the fact that one judge aggregated the fines, we do not believe that these were controlling factors. The right of appeal should not depend upon such inconsequential matters. We believe the only logical conclusion to be drawn from Chambers is that when several offenses, closely related in both nature and time, are prosecuted in one trial— whether they are charged in separate in-formations or as separate counts in one information—the total of the fines imposed is the amount which determines the right of appeal; and that if the total is $50 or more, a single appeal from the several convictions may be taken as a matter of right. In the case at bar, the clerk’s office was wrong in not allowing a single notice of appeal to be filed. We shall therefore consider the merits of each of appellant’s convictions.

Appellant contends that there was insufficient evidence to establish his identity as the operator of the vehicle involved in the chase. The arresting officer testified that appellant was found in the front seat of the car, and that the car was registered in the name of appellant’s uncle. Another officer testified that the car had passed him while he was parked at the curb. When he yelled to the driver to turn on his lights, the latter turned his head toward him and the officer was able to see clearly that it was appellant. This same officer appeared at the scene of the arrest a short time later, identified appellant (who was then sitting with another man in the rear of a police car), and charged him with operating without lights. Appellant and the other occupants of the car testified that the operator was an unidentified person known only by the nicknames “Scotch” and “Country.”

It is fundamental that the credibility of a witness is to be determined by the trier of fact, and such a determination is not subject to review. The trial court’s finding that appellant was the operator of the vehicle is supported by substantial testimony and will not be set aside on appeal. D.C.Code § 17-305 (a) (Supp. V 1966); Monarch Const. Corp. v. J. H. Marshall & Assoc., Inc., D.C.App., 213 A.2d 894 (1965).

Appellant next contends that there was insufficient evidence to support a conviction for unreasonable speed. We disagree. Although no exact speed was confirmed, there was testimony that the car pulled away from the curb at a “high rate of speed” and that in another area it was traveling “in excess of twenty-five” miles per hour. This testimony, plus judicial notice of the speed limits on the streets involved, was sufficient to establish a violation of the unreasonable speed regulation.

Regarding the other offenses for which appellant was convicted, we find there was sufficient evidence to sustain the trial court’s finding on the charge of driving without lights. There is no evidence, however, that appellant failed to obey any red lights or that he was driving on the wrong side of the street. The record merely indicates that the arresting officer recited that he charged appellant with these violations. This is not sufficient evidence to prove that the violations occurred, and these convictions must be reversed. There is also no substantiation for three of the seven counts of failure to slow at intersections since the officer’s testimony does not show that the car traveled through these intersections. These three convictions must also be reversed.

Finally, appellant contends that his motion for a new trial should have been granted because of newly discovered evidence—the true identity of the driver. It is well settled that the trial court has broad discretionary powers in granting or denying a motion for a new trial on this ground, and its action will not be disturbed on appeal unless an abuse of that discretion appears. McDonnel v. United States, 81 U.S.App.D.C. 123, 155 F.2d 297 (1946).

Five days after the trial appellant presented to the trial court an affidavit stating that he had just determined the identity of the driver, and gave his name, address and telephone number. There was no showing that the same information, with diligent effort, could not have been ascertained before the trial. Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951). Nor were there affidavits from the other participants (i. e., the alleged driver or the other passengers) exonerating appellant as in Brodie v. United States, 111 U.S.App.D.C. 170, 295 F.2d 157 (1961). We find no abuse of the trial court’s discretion in refusing to grant appellant a new trial under the circumstances.

The convictions on Informations Nos. 21597-65, 21598-65, 21600-65, 21603-65, 21606-65, 21607-65 and 21613-65 are reversed. The remaining convictions are affirmed.

So ordered.