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THE COURT OF APPEALS OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-6420
Appellant, ) District Court Nos. P0300319,
) P0300306, P0300735, P0300619
v. )
) O P I N I O N
CLYDE BAXLEY, LINDA )
WEATHERHOLT, JEFF ULLOM, )
and HEATHER SIEGEL, )
)
Appellees. ) [No. 1552 - October 16, 1997]
___________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Geoffrey T.
Comfort, Ron Wielkopolski, and Roy V.
Williams, Magistrates.
Appearances: Thane R. Mathis, Assistant
Municipal Prosecutor, and Mary K. Hughes,
Municipal Prosecutor, Anchorage, for
Appellant. Bradley K. Leutwyler, Leutwyler,
Brion & Associates, Anchorage, for Appellee
Baxley. Heather Siegel, pro se. No
appearances for Appellees Weatherholt and
Ullom.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
The Municipality of Anchorage prosecuted Clyde Baxley,
Linda Weatherholt, Jeff Ullom, and Heather Siegel for speeding in
a school zone, Anchorage Municipal Ordinance 09.26.020 or
09.26.030.C. Each of the defendants was issued a citation based
on a reading obtained from a photo-radar machine. On July 31,
1996, the municipality and the defendants appeared at a hearing
before District Court Magistrates Geoffrey T. Comfort, Ron
Wielkopolski, and Roy V. Williams. The magistrates, sitting
jointly, heard the municipality's case against all four
defendants. In its presentation, the municipality focused on
proving that photo-radar was an accurate and reliable method for
ascertaining and recording the speed of a motor vehicle.
Following three days of evidence and arguments, the
magistrates took the case under advisement. Two months later,
the magistrates issued a joint decision finding all the
defendants not guilty. The magistrates first stated that, absent
independent corroboration, radar results are not admissible. The
magistrates next concluded, in the alternative, that even if
photo-radar evidence were admissible, the evidence presented by
the municipality at the hearing failed to convince the
magistrates of the four defendants' guilt.
The municipality now appeals the magistrates' decision.
The municipality argues that photo-radar results are admissible
without independent corroboration. However, as explained below,
we conclude that this issue is moot because of the magistrates'
second conclusion: their conclusion that, even with the photo-
radar results, the municipality's evidence at trial did not
convince the magistrates of the defendants' guilt, and thus the
defendants were entitled to a verdict of acquittal.
The municipality next asserts that, even though the
magistrates may have acquitted the defendants after a trial based
on the facts of the case, the municipality is entitled to seek
appellate review of the magistrates' decision. The municipality
argues that such review is not barred by the double jeopardy
clause because traffic offenses are not "offenses" for purposes
of double jeopardy. We conclude that we need not decide this
issue because, even assuming that the municipality is entitled to
seek appellate review of the magistrates' verdicts, there is no
reversible error in the verdicts. We therefore affirm the
judgments of acquittal entered by the district court.
At the outset, we confront the municipality's assertion
that the three-day hearing in front of the magistrates was only
an evidentiary hearing, not a trial on the merits. To answer
this assertion, we believe it necessary to detail the evidence
presented at the hearing.
Before the hearing, the municipality made a motion
asking the court to take judicial notice of a report from the
National Cooperative Highway Research Program setting out
nationwide practices on the photographic enforcement of traffic
laws. The magistrates granted this motion at the beginning of
the hearing.
The first prosecution witness at the hearing was Augie
Henry, an administrative officer for the Anchorage Department of
Public Works. Henry testified about the process used by the
Municipality of Anchorage to adopt and to contract out a system
of photo-radar enforcement of speed limits; the contract was
eventually awarded to American Traffic Systems (ATS), a private
organization, in December 1995. Henry testified that although
the municipality remained in control of the photo-radar program,
ATS actually operated the program and received seventy percent of
the amount of collected fines. Henry then described some of the
administrative aspects of the photo-radar program.
Henry testified that he also had personally seen the
photo-radar photographs and driver license photographs of Ullom,
Weatherholt, and Siegel, and had signed their citations in his
capacity as a peace officer; Henry visually identified the
defendants in the courtroom and testified that, according to the
data generated by PR-100 photo-radar units, they had been
speeding at the indicated times and places (school zones) when
the photographs were taken.
Jim Lovell, an employee of the State of Alaska,
testified that he had tested the three PR-100 photo-radar units
used by ATS with various tuning forks and had verified that all
three of the photo-radar units accurately measured the tuning
forks' simulated speeds and otherwise performed their operations
and computations correctly.
John Warner, the general manager of ATS Alaska,
testified that he had participated in the training of employees,
in particular Edward Owens and Gary Evans, in the operation of
the PR-100 photo-radar units. Owens and Evans testified that
they were employees of ATS Alaska and had been trained to and did
operate the PR-100 photo-radar units at the times Weatherholt,
Siegel, and Ullom (Owens) and Baxley (Evans) were photographed
speeding. Owens and Evans testified that although they set up
the photo-radar machine and tested it with a tuning fork when
first arriving at and again before leaving the monitoring scenes,
the machine detected and photographed speeding vehicles
automatically. Owens and Evans testified that although they did
watch the flow of traffic, they had no part in personally
deciding, verifying, or taking any notes regarding which or
whether cars were speeding when they were photographed.
The municipality's next witness was Clint Davis, who
designed the photo-radar unit, the PR-100. The court recognized
Davis as a qualified expert in electrical engineering. Davis
testified at length about the PR-100 photo-radar device. He
testified that the PR-100 was designed to accurately measure the
speed of vehicles and to photograph the speeding vehicles (as
they approach and after they pass the photo-radar unit) and to
print the speed and time onto the photographs. Using the photo-
radar photographs of the defendants and using a measuring device,
Davis testified that the PR-100 unit had been parked at the
correct angle to accurately record Ullom, Siegel, Baxley, and
Weatherholt. Davis testified that the PR-100 unit was fully
automatic in its operation and that, other than deployment and
testing of the unit, the main role of the human operator was to
ensure the machine was not vandalized and to reload film as
necessary. He also testified about nineteen separate operations
that the unit performs to ensure the PR-100's accuracy.
The municipality's next witness was Robert Davies, the
director of field services for ATS. Davies had nearly twenty-
five years' experience in traffic enforcement with the New
Zealand police. New Zealand was one of the early (1993)
customers of the PR-100 photo-radar. Davies testified that he
had conducted extensive testing of the PR-100 units in New
Zealand and that the units had performed well. He testified that
the units were used by the New Zealand police, and in Riverside,
California; Paradise Valley, Arizona; Ft. Collins, Colorado; and
Commerce City, Colorado. Davies also, as had Davis earlier,
measured the photo-radar photographs of the four defendants and
confirmed that these measurements showed that the photo-radar
unit had been parked at the proper angle and that the four
defendants had been speeding as shown on the photo-radar
photographs.
Jeff Ullom was the only defendant who testified at the
hearing. Ullom testified that at the time he was cited for
speeding, a time he could identify because of the flash from the
photo-radar unit, his speedometer indicated that he was driving
at the twenty-mile-per-hour speed limit in the school zone.
Two months after the hearing, the magistrates issued written
findings and conclusions. In their decision, the magistrates
referred to the hearing as the defendants' trial. The
magistrates found that the scientific principles upon which photo-
radar was based were well established and had attained general
acceptance in the relevant scientific community.1 However, the
magistrates observed:
In stationary and moving radar trials in
the State of Alaska, this court has required
testimony by a trained police officer who is
certified to operate the equipment. That
officer has to first observe a speeding
vehicle and formulate an opinion as to the
speed of the vehicle before activating the
radar. If the officer receives a reading con-
sistent with his or her observations the
officer will then pursue the vehicle and
issue a citation. Radar is used as a
corrobative device.
The magistrates found that the municipality's assertion
that the photo-radar device accurately recorded the speeds of the
defendant motorists rested on the testimony of Clint Davis and
Robert Davies, witnesses the magistrates described as
individuals who have a great deal at stake
financially and who will testify to whatever
it takes to convince the court in a given
case. Obviously a favorable decision by this
court could be cited elsewhere and would be
of great value to American Traffic Systems in
fostering the growth of a market for its
product. Thus, the pecuniary interest of Mr.
Davis and Mr. Davies goes far beyond the
Anchorage program and would appear to be so
great as to call into question their
objectivity when discussing their product.
This is not the sort of testimony that
persuades this court to find the PR100
evidence of speeding admissible. Moreover,
were we to find this evidence admissible, the
questionable reliability of the testimony
renders it insufficient to sustain a
conviction beyond a reasonable doubt in each
of these cases. Accordingly, the court
orders the cases against the above defendants
dismissed.
The municipality appeals this decision.
The municipality asks us to reverse the magistrates'
conclusion that photo-radar evidence is inadmissible without
corroboration. However, that issue is moot. The magistrates
decided in the alternative that, even if photo-radar evidence is
admissible, the municipality still failed to establish the
defendants' guilt beyond a reasonable doubt.
It seems clear from the record that the proceeding that
took place in district court was a trial. The magistrates'
decision refers to the hearing as a trial, and the municipality
appears to have put on its entire case against the defendants,
including having them identified and attempting to establish that
they were speeding on the dates and times in question. One of
the defendants testified that he was not speeding. Furthermore,
in ruling against the municipality, the magistrates concluded:
This is not the sort of testimony that
persuades this court to find the PR100
evidence of speeding admissible. Moreover,
were we to find this evidence admissible, the
questionable reliability of the testimony
renders it insufficient to sustain a
conviction beyond a reasonable doubt.
Accordingly, the court orders the cases
against the above defendants dismissed.
The government may not appeal an acquittal of a
defendant after a trial (of a double-jeopardy "offense") because
such an appeal would violate the defendant's right against double
jeopardy. United States v. Martin Linen Supply Co., 430 U.S.
564, 571 (1977); Steve v. State, 875 P.2d 110, 115 (Alaska App.
1994); State v. Martushev, 846 P.2d 144, 147-48 (Alaska App.
1993). In determining whether the trial court's ruling was a
judgment of acquittal, the appellate court "must determine
whether the ruling of the judge, whatever its label, actually
represents a resolution, correct or not, of some or all of the
factual elements of the offense charged." Martin Linen, 430 U.S.
at 571; Martushev, 846 P.2d at 148. "[D]ismissal on legal
grounds that do not require resolution of the factual elements of
an offense . . . does not amount to a judgment of acquittal,
regardless of its timing or the label attached thereto."
Martushev, 846 P.2d at 148.
The municipality contends that the magistrates' ruling
was not a judgment of acquittal because it did not "[represent] a
resolution . . . of some or all of the factual elements of the
offense charged." The municipality points out that the
magistrates never addressed whether any of the defendants drove
above the posted speed limits at the time and place alleged.
However, the municipality's case rested on the accuracy of the
photo-radar unit. Once the magistrates found that they had a
reasonable doubt about the accuracy of the photo-radar, the
municipality did not have enough evidence to convict. The
magistrates made a factual ruling that "the questionable
reliability of the testimony [in support of photo-radar evidence]
renders it insufficient to sustain a conviction beyond a
reasonable doubt." This was an explicit finding that there was
insufficient evidence at trial to prove the defendant's guilt
beyond a reasonable doubt: in short, an acquittal based on the
factual evidence.
The municipality argues that even if we find that the
magistrates acquitted the defendants at trial, the double
jeopardy clause does not preclude our review of acquittals for
traffic infractions.2 However, even if we accepted the
municipality's argument, it would not lead to our reversing the
decision of the magistrates.
Even assuming that we have the authority to review
these acquittals, we would only review the magistrates' decision
to determine whether the evidence presented would allow a
reasonable fact finder to conclude that the municipality had
failed to prove its case. Here, the municipality's case rested
on the credibility of the photo-radar witnesses. The
magistrates, who heard the witnesses testify, were in a much
better position to determine their credibility than we are. In
general, the credibility of witnesses is exclusively a question
for the fact finder. See Simpson v. State, 877 P.2d 1319, 1320-
21 (Alaska App. 1994); Daniels v. State, 767 P.2d 1163, 1167
(Alaska App. 1989). Given the magistrates' resolution of the
witness credibility issue, a reasonable fact finder could have
concluded that the municipality had failed to prove its case.
Thus, even if we were to review the magistrates' verdicts, we
would find no reversible error.
The judgments in this case are AFFIRMED.
_______________________________
1 This test for admission of novel scientific evidence is
governed by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
adopted in Pulakis v. State, 476 P.2d 474 (Alaska 1970). See
Harmon v. State, 908 P.2d 434, 439 (Alaska App. 1995).
2 The municipality cites Carlson v. State, 676 P.2d 603
(Alaska App. 1984), in which this court held that traffic
violations were not double-jeopardy "offenses" for the purpose of
precluding subsequent prosecutions for criminal offenses arising
out of the same conduct. We have never decided whether the
government may appeal from an acquittal of a traffic violation;
courts from other jurisdictions are divided on the issue.
Compare, e.g., State v. Knoles, 256 N.W.2d 873 (Neb. 1977);
Commonwealth v. Walczak, 655 A.2d 592 (Pa. Super App. Div. 1995),
with Park Forest v. Fagan, 356 N.E.2d 59 (Ill. 1975).
