Fitzwater v. State

BELL, Judge. Appellant, Edward Hugh Fitzwater (Fitzwater) was found guilty by a jury in the Circuit Court for Garrett County of resisting arrest, failure to display a license, and speeding. The court sentenced Fitzwater to pay fines of: $500.00 for resisting arrest; $10.00 for failure to display a license; $40.00 for speeding and court costs. Fitzwater timely noted an appeal, raising four issues: ²⁷⁷ 1.

Did the court err in not requiring maintenance records to establish the internal calibration of the radar? 2. Did the court err in permitting a state trooper to testify as to the accuracy of the internal calibration procedure? 3. Did the court err regarding the use of documents by the state trooper to refresh his recollection? 4. Did the court invade the province of the jury by appointing a jury foreperson?

Our answer is no to all four questions; and we affirm. FACTS On June 3, 1982, Trooper John E. Foley (Foley) stopped Fitzwater for an alleged speeding violation. Foley had detected a speed of 66 m.p.h. with the Decatur radar device mounted in the patrol vehicle and had visually observed Fitzwater’s car travelling in excess of 50 m.p.h. When Foley stopped Fitzwater and requested to see his driver’s license and registration, Fitzwater refused to show him either.

Fitzwater refused a second request and Foley arrested Fitzwater. Due to Fitzwater’s persistent resistance, Foley forcibly removed Fitzwater from his vehicle. Trooper Foley was a certified operator of the radar. He testified at trial how the radar operated and how it was calibrated.

His testimony explained that: the device, which is mounted in the patrol vehicle, projects a beam that will pick up a moving object, an indicator shows the speed of the object-vehicle. It also has a digital readout indicating the simultaneous speed of the police vehicle. The machine is calibrated before use by a certified operator (Foley in this case) and it has two internal checks. One is a check to make sure all lights are functioning on the machine and the other is a tuning fork check which calibrates the speed.

Two tuning forks are assigned to the machine and are tuned to set speeds of 45 m.p.h. and 90 m.p.h. ²⁷⁸ Foley, who had successfully performed both of these tests, further testified that the machine is internally calibrated by a certified technician. When the State offered the maintenance records of the internal calibration into evidence, Fitzwater objected on grounds that the State violated discovery rules by failing to list the records as an exhibit. The court sustained the objection. Fitzwater also objected to Foley’s testimony regarding the internal calibration procedures and the radar readout.

The ground for objection was that no foundation had been laid because the maintenance records were not admitted and Foley was not a certified technician. The court overruled this objection, stating: “I think by this point it has been established that the use of the tuning fork calibrates the instrument, and if it doesn’t give you 45 and it doesn’t give you 90, it isn’t working. When it does, it is working.” Foley compared his speed on the readout of the radar device to that on the speedometer of his vehicle and it was the same. He had no indication that the radar device was not working properly and explained there were no other checkout or starting up procedures recommended for that particular machine.

He stated that he had followed all of the recommended procedures “faithfully”. On cross-examination, Foley testified that he did not know how the machine worked internally or exactly why tuning forks were used to test the machine. He stated that further internal calibration was done by a certified technician working for the Maryland State Police every six months. Fitzwater’s renewed objection to admission of testimony concerning calibration and the radar readout was denied, since the court accepted the trooper’s testimony that external readings would not be correct if the machine’s internal calibration was off.

His motion for judgment of acquittal at the end of the State’s case in chief was denied. Several witnesses testified for the defense. Charles E. Stemple, Jr., an employee of Fitzwater, testified he used the beige van for delivery of furniture and it could barely do 55 ²⁷⁹ miles per hour. William Madigan, another employee of Fitzwater, also testified that the beige van would not go over 55 miles per hour, loaded or unloaded.

Fitzwater testified that he was driving the van between 45 and 55 miles per hour that afternoon and that his speedometer registered 50 miles per hour. When he was stopped, Fitzwater asked the trooper what was the probable cause. Foley responded that Fitzwater was speeding at 66 miles per hour. Fitzwater stated he asked the trooper to read him his rights since it was a criminal violation but the officer put him under arrest, grabbed him, jerked him out of the van and handcuffed him without reading him his rights.

Fitzwater denied that he was resisting arrest, but explained he was just protecting himself. Additionally, Fitzwater testified that Foley changed the reading on the citation to read 66 miles per hour so that he would receive a higher number of points. Fitzwater’s motion for judgment of acquittal at the end of the case was denied and the jury returned verdicts of guilty on all three counts. I. Did the court err in not requiring maintenance records to prove the accuracy of internal calibration?

Fitzwater contends that the court erred in not requiring maintenance records to establish the accuracy of the internal calibration of the radar. Fitzwater maintains that by violating the discovery rules and thus not being able to produce the records at trial, the state failed to meet its burden to prove proper records were kept, as established by this Court in Great Coastal Express, Inc. v. Schruefer, 34 Md.App. 706 , 369 A.2d 118 (1977). Maryland has long recognized that the speed of a motor vehicle may be measured by radar. Md.Code (1974, Cum.Supp.1983) Courts and Judicial Proceedings Art., § 10-301.

Although the statute does not set forth any requirements for proving the accuracy of the radar, the Court in Great Coastal Express, Inc. supra, relying on Unit ²⁸⁰ ed States v. Dreos, 156 F.Supp. 200 (D.Md.1957) and Villegas v. Brysor, 494 P.2d 61 , 16 Ariz.App. 456 (1972), set forth some guidelines stating at p. 715, 369 A.2d 118 , It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were followed, and that proper records were kept. [There should be proof to indicate] the instrument relied upon was in good working order and accurate at the time the recording was made. Applying the above principles to the case at bar, we agree with the trial court that the requirements set forth in Great Coastal have been met. As Judge Thayer stated: As I read the requirements set forth [in Great Coastal, supra.] ... it is sufficient to show that the equipment has been properly tested and checked, and I take it the calibration that the officer did at 4:00 when he came on duty would satisfy that. That it was manned by a competent operator, the officer has testified that he is such.

That proper operative procedures were followed, I haven’t heard any evidence of that at this time. And that proper records were kept, I don’t know records of what, but it goes on to say that it must be shown that it was in good working order and accurate at the time the recording was made. Now the State has a record. I've not permitted it into evidence, but the fact that there is a record, I think is admissible....

(Emphasis added). At the time the court ruled on the objection, there was no testimony as to whether operative procedures were properly followed; however, by the end of the trial the evidence showed that Foley faithfully followed all the checkout and startup procedures. In light of the fact that Foley performed the two calibration tests, was a certified operator of that particular device and maintenance records did exist, we find this case to fall within the perimeters of Great Coastal. The court did not err. ²⁸¹ II.

Did the court err in allowing a state trooper to testify as to the accuracy of the internal calibration of the radar? Fitzwater contends that since Foley was not a certified technician he was not competent to testify as to the accuracy of the internal calibration. Fitzwater maintains that the court erred in admitting such testimony; and therefore, it had not been established that the equipment was built and operated on sound scientific principles and was in proper working order. The State, on the other hand, contends that since Foley was a qualified operator of the machine the court properly permitted Foley’s testimony as to calibration and speed detected by the radar.

The Court of Appeals of Maryland has established the test for admissibility of expert testimony. That