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

• Court: Court of Appeals of Virginia
• Decided: February 15, 2000
• Docket: 2991983
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 -