*1
York,
(1947);
U.S.
composition, Fay v. New
(plurality opinion);
Apodaca
Oregon,
v.
See, also, S. Teague 109 Ct. v. 2d 334
L. Ed. being error, judgment There is affirmed. no
Affirmed.
Ernie W.
Nebraska,
appellee,
v.
appellant.
Ernie W. se. General, Attorney Spire, Pаyne Robert M. and Kenneth W. for appellee. *2 C.J., Boslaugh, Shanahan,
Hastings, White, Caporale, Grant, JJ. Fahrnbruch,
Shanahan, J. county County, aAfter bench trial in the court for Lancaster guilty charge Ernie W. Chambers was found on the of per a motor vehicle at the of 70 miles hour a 55-mile-per-hour $25, plus zone and was fined costs. Chambers appealed County, to the district court for Lancaster decision; county hence, affirmed the appeal court’s Chambers’ to this court.
Trooper Patrol, of Robert Stivers State pilot Nebraska 1975, since was trained and certified the State Patrol to use 11, an aircraft speed. for detection vehicular On Septеmber officially maintaining Stivers was patrol an aircraft County, Interstate 80 in Lancaster which had a limit of site, per patrol miles hour at when he observed a blue Honda automobile, later determined to be driven passing other cars on the Interstate. Stivers believed that the “running was By Honda in excess оf the using limit.” “Accusplit battery-powered stopwatch, 735XP” Stivers timed Chambers’ vehicle as the car traveled the State Patrol’s predetermined 5,400 course of feet inches between two 3- rectangles painted 4-foot white on the shoulder of the According Interstate. stopwatch, to Stivers’ car Chаmbers’ traveled the measured course in 50.61 seconds. In view of the figure fractional decimal for the time on indicated stopwatch and consistent with State policy, Patrol Stivers rounded off the time for Chambers’ at 51 vehicle seconds and “speed consulted a chart” to convert the determinеd time into per miles hour. Based by Stivers, on the chart traveling car per was 70 miles Sgt. hour. Stivers then radioed Cruise, Interstate, Robert who was in his cruiser on the and told Cruise that Chambers’ traveling per Honda was 70 miles hour on aircraft, the Interstate. From the helped Stivers Cruise identify Chambers’ car and confirmed that Cruise hаd correctly identified stopped the vehicle clocked at 70 miles per during hour. Cruise opinion testified that his formed his vehicle, moving observation of Chambers’ “traveling mile-per-hour speed shortly in excess of the 55 limit” signaled pull before Cruise Chambers to to the Interstate’s shoulder, driving where Cruise issued Chambers citation for per 55-mile-per-hour hour in a zone. trial, objection only
At (foundation), over Chambers’ driving Stivers testified that at 70 Chambers was hour. Accusplit stopwatch Stivers also testified that the used to clock accuracy by Chambers’ car was checked for Fred Wilson again Jewelers on on Deсember 1986. jeweler, called Fred who testified that he used a “Q.T. Quartz Tester” to ascertain the used to time When Chambers’ car. asked on jewelers, your direct examination whether “other knowledge, just use a [Q.T. Quartz machine like that Tester] watches,” responded, check the Wilson Quartz *3 “Similar, Later, though.” during I’m not sure direct Wilson, “Stop examination when the State offered Wilson’s watch, Watch Certifications” for Stivers’ Chambers was Wilson, interrogate interrogation allowed to which included: you And whether also don’t know this
[CHAMBERS:] you quartz machine that use the one that is [the tester] jewelers you purpose the trade use for the that stated? probably There’s a dozen different
[WILSON:] companies thing. that sell machines that do the same you you’ve But don’t know and [CHAMBERS:] — that, already response my I testified to but wanted question you, you jewelers in the don’t know whether particular trade use this machine as the machine for testing these watсhes? No, I don’t.
[WILSON:] Mr. when was the last time [CHAMBERS:] your machine was tested to determine whether or it was accurate? know, it been. As far as I never has
[WILSON:] Asserting foundation, an insufficient evidential Chambers objected then to introduction of the certification documents. objection, court overruled Chambers’ recеived the documents, and, evidence, certification at the conclusion of is, guilty speeding, found Chambers a motor vehicle at 70 55-mile-per-hour hour in a zone. assigns errors, five each questions of which admissibility of evidence concerning speed of Chambers’ vehicle, which was determined reference to Stivers’ battery-powered stopwatch. boils down to a contention that the driving State’s evidence of his per hour, observation, determined Stivers’ timed inadmissible because the produce State failed to a foundation establishing of Stivers’
“Admission or exclusion of evidence is a matter fоr the court, discretion of the ruling trial whose on an evidential question will upheld be ruling unless such constitutes an abuse Olsan, of discretion.” 436 N.W.2d 128, 133 (1989).
Much of Chambers’ brief revolves around the assertion that speed an “electronic measurement” device purview within the of Neb. Rev. Stat. (Reissue 39-664 1988), provides part: (1) Detеrminations regarding speed any made motor upon vehicle based the visual any observation of may law enforcement officer be corroborated the use of radio microwaves or other electronic device. The results of such radio microwave or speed other еlectronic may measurement be accepted competent as evidence of speed of such motor any legal vehicle in court or proceeding when the of the vehicle is at issue. Before may the state offer in evidence the results of such radio microwave or other electronic measurement for the purpose establishing any vehicle, of motor the. *4 state shall the following: (a) The measuring proper device was in working order conducting measurement; at the time of (b) measuring The being operated device was in such a manner and under such cоnditions so as to allow a interference; possibility minimum of distortion or outside interpreting (c) person operating The such device and by training qualified such measurement device; experience properly operate the to test and (d) operator conducted external tests dеvice, upon measuring within a reasonable time both made, prior subsequent being and the to and arrest working measuring proper device was found to be in order. speeding
In
previous appeal
Chambers’
Chambers,
(1980),
*5 Stivers to time Chambers’ car is characterized as an stopwatch “electronic” that the Chambers’ “speed ignores even more measurement” device laws fundamental and universal than the laws of the State of Nebraska, namely, physics. Speed, the laws of or more correctly, velocity, is a function of distance and time. Time is = v(elocity) one of the two elements the formula only A device the two d(istance)/t(ime). which measures onе of foregoing “speed elements utilized in the formula is not a device,” measurement but is either a device to measure time (more commonly watch) known as a clock or or a device to Therefore, measure distance. conclude battery-operated stopwatch is not аn “electronic purview device within measurement” 39-664. Acknowledgment physics not end our of the laws of does trial, inquiry appeal. objected At Certifications,” “Stop introduction of Wilson’s Watch purportedly verified the of Stivers’ used to car, testimony objected to Stivers’ time Chambers’ and also regarding registered by for the resultant the time must, therefore, speed. We consider calculation of Chambers’ a sufficient evidential foundation whether the State established as results for admission of [240] traveling per
Chambers’ car was hour. Chambers, supra, In State v. we considered the use of a case, speeding upheld mechanical in a the defendant’s and stated: We believe the foundation evidence was sufficient to allow the State to establish the of the defendant’s vehicle use of the The evidence was that Lt. Grieser, flying airplane, Donald the officer the had been clocking ground trained and certified for vehicles from July 19, aircraft. The had been tested on 25, 1978, again August on and found to be accurate 6/io,ooo per within 1 24 per second hours or of second a jeweler minute. Fred A. performed the who the stopwatch, tests on the testified that the had been on Vibrograph tested a machine which was an accepted determining accuracy method for the of watches. Vibrograph occasionally machine was tested with Vibrograph another machine and other watches whose timekeeping accuracy by digital was verified watch or an electronic cloсk. 612-13, 299 N.W.2d
Id. at at 781. To sustain a conviction based on information derived from device, an electronic measuring or mechanical there must be proof that the . . . machine was accurate and “[reasonable functioning properly.” Kudlacek, State v. 229 Neb. 289, 292 426 N. W.2d (1988) (foundation relating accuracy оf Intoxilyzer See, also, radar unit and machine). Snyder, 465, 168 184 Snyder Kudlacek, Neb. N.W.2d In rejected admissibility for of information instrument, primary accuracy from a primary of the instrument, measuring such as a must be established appropriate testing device which itself has been tested for accuracy, testing lest such evidence testing and the itself - “might proceed verify have to ad infinitum” to 466, 168 Snyder, supra all instruments used. State v. at N.W.2d See, also, State, at 531. Peterson v. 163 Neb. 80 N.W.2d (1957) (an testimony officer’s that he drove patrol his car at hour, speedometer, through indicated the car’s testing range for the radar device used to vehiсle was sufficient foundation the defendant’s admissibility proof of the radar-determined without Thus, although rejected speedometer’s accuracy). we have any testing requirement device used to establish the primary measurement device must itself be tested, independently recognized procedure we have such a challenge primary thwart foundational device’s to the accuracy. See State v. N.W.2d Vibrograph, (1980) (mechanical stopwatch tested with a *6 against Vibrograph). was in turn itself tested another proof reliability Without some in device used the to test accuracy acсuracy primary for in a a test for of the primary meaningless Undoubtedly, device is a exercise. meaningless accuracy stopwatch test for in Stivers’ does not supply proof accuracy” required the “reasonable for the permissible concerning introduction of evidence information stopwatch. stopwatch derived from the The in test of the the present case somewhat resembles the situation in the clock, apocryphal story of the cannon and the recounted our responsible Chief Justice. The cannoneer firing was for the village square day. cannon in the at 6 o’clock each When asked cannon, how he knew it was time to fire the the cannoneer simply answered that he looked at the clock in the tower of the village hall at the other end of the street which ran from the o’clock, square to the hall. When the tower clock indicated 6 he However, fired the clockkeeper cannon. when the was asked accuracy, how he checked the every tower clock’s he said that fired, time, village up verify time the cannon he looked to the always event, any which was 6 o’clock. In we hold that to present prоof” stopwatch “reasonable that a was correctly time, as an accurate device to measure the watch must against integrity be tested a device whose instrumental or reliability through proof has been established either that the testing accuracy through device’s has been verified accuracy through proof independent testing test for or that the type recognized normally verify the used device is to accuracy stopwatches. case, present there is no on either
In the evidence of the bases accuracy which we have mentioned for verified in a 242 never, Quartz Tester had to his Q.T.
Wilson testified that his accuracy. Also, exactly what is knowledge, been tested explaining is no Tester? There Q.T. Quartz function, nature, operation Tester. Q.T. Quartz Further, testified he did not whether other Wilson know verify jewelers Q.T. Quartz used Tester to stopwatches. Consequently, presented in view of the record us, proof” there is no “reasonable used to Evidence clock car. that Chambers’ car took predetermined 51 seconds to travel the distance on Interstate 80 was, consequently, traveling at 70 miles hour was improperly received the trial court. Evidence basеd on charge against and, therefore, Chambers constitutes reversible error. For that reason, court, judgment we reverse the of the district decision, county affirmed the court’s this remand matter to the district court with the direction that the court district order county new trial for Chambers court. county admitting cоurt’s error in reversible evidence of through calculated information from Stivers’ error,” properly “trial characterized as which does not bar See,
retrial of
after
this reversal of his conviction.
States,
Burks v. United
437 U.S.
98 S. Ct.
57 L. Ed. 2d
(1978)
(retrial after reversal
aof defendant’s
when
*7
”
error,
is,
the reversal resulted from “triаl
“a defendant has
through judicial process
been convicted
which is
defective
respect, e.g.,
receipt
rejection
some fundamental
incorrect
or
evidence,
instructions,
prosecutorial misconduct,”
or
incorrect
15);
Nelson,_U.S___
437 U.S. at
Lockhart v.
109 S.
(double
Ct.
L. Ed. 2d
(1988)
jeopardy
clause of the
fifth amendment to the U.S.
Constitution does
bar retrial
evidence,
erroneously
if all the
defendant
whether
admitted
not,
also,
supports
See,
or
jury).
the action of
trial court or
Pierce,
966,
White, J., concurring part, part dissenting. and in majority proposition cites Burks and Lockhart for evidence, thаt mere trial error does not bar if retrial all not, erroneously supports whether admitted or the action of the upon 5th and 14th cases based jury. Both are trial court comprise thus U.S. Constitution and to the amendments law. federal constitutional approach
I believe the better would be to follow this court’s Palmer, decision in State v. Neb. N.W.2d 706 (1986), remaining where we considered whether the sufficient, procedural Although absent or “trial error.” Const, Palmer explicitly ruling did not our on Neb. base I, 12, today’s decision overrules Palmer. art.
I would reverse and dismiss. Nebraska, appellee, Willett, v. Richard W. appellant.
444 N.W.2d672 25, 1989. Filed No. 88-853. appellant.
Willis G. Yoesel for Spire, Attorney General, M. Robert M. Terri Weeks for appellee. C.J.,
Hastings, Boslaugh, White, Caporale, Shanahan, J J. Grant, Fahrnbruch,