State v. Anderson

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NOT DESIGNATED FOR PUBLICATION

No. 114,447

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MAXWELL D. ANDERSON,
Appellant.


MEMORANDUM OPINION

Appeal from Republic District Court; STARLA L. BORG NELSON, judge. Opinion filed July 22,
2016. Affirmed.

Maxwell D. Anderson, appellant pro se.

No appearance by appellee.

Before GREEN, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Defendant Maxwell D. Anderson appeals his conviction and
resulting fine for speeding following a bench trial in the Republic County District Court.
Representing himself throughout the trial and appellate proceedings, Anderson unleashes
both what might be regarded as technical challenges to the prosecution and broad
constitutional attacks. Ultimately, we find no valid grounds for reversing the conviction
and, therefore, affirm the judgment.

Late in the afternoon on May 16, 2015, Kansas Highway Patrol Trooper Justin
Davis used a radar unit in his patrol car to measure the speed of an automobile driven by
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Anderson at 86 mph on a section of Highway 81 with a posted limit of 70 mph. We infer
from the record the radar to have been a Stalker DSR 2X. Davis pulled Anderson over
and issued him a citation for operating a motor vehicle in excess of the posted speed
limit, a traffic infraction under K.S.A. 2015 Supp. 8-1558.

Anderson pled not guilty and requested a trial. In due course, he filed motions for
discovery and to dismiss. The district court ordered the State to produce any evidence in
its custody or control that "would be used against" Anderson. Anderson sought to dismiss
the prosecution on the grounds the citation was legally insufficient and because the State
would be unable to prove the radar unit's reliability. Anderson later filed a motion
contesting the adequacy of the discovery the State provided.

Before starting the scheduled bench trial on August 11, the district court heard
argument on Anderson's motions and denied them. Davis testified at trial to his training
in using the radar unit and the steps he took to check its accuracy the day he stopped
Anderson. The State also introduced the manufacturer's certificates attesting to the
accuracy of the radar unit and of the tuning forks field officers regularly use to check the
machine's continued accuracy. Anderson did not testify. The district court found
Anderson guilty and fined him $81, plus $108 in costs.

This court granted Anderson's motion to appeal out of time. Anderson has filed a
lengthy brief, raising half a dozen points of claimed error. The State chose not to submit a
responsive brief. We take up Anderson's arguments and augment the factual and
procedural history as necessary to address them.


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LEGAL ANALYSIS

Legal Sufficiency of Traffic Citation

Anderson contends the citation was defective and of no legal force because it did
not include a "state registration number" for his car as required by K.S.A. 8-2106(b) and
K.S.A. 8-2108. Accordingly, he says the case should have been dismissed based on that
statutory defect. Alternatively, he contends the omission either deprived the district court
of subject matter jurisdiction, rendering the conviction void, or violated the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. We address and
dispose of those arguments together and need not delve into legal principles bearing on
standing or due process. Anderson's foundational premise—that the citation was
flawed—is wrong. In turn, the arguments based on that premise similarly lack merit.

As provided in K.S.A. 8-2108, a citation for a traffic offense, such as speeding,
must be in a form that includes the information required in K.S.A. 8-2106. And K.S.A. 8-
2106(b) mandates that a citation contain specific information about the offense, the
driver, and the motor vehicle, including the "state registration number of the person's
vehicle, if any." The citation identifies Anderson as a resident of Omaha, Nebraska, and
lists a Nebraska license plate number for his car. Anderson doesn't dispute that
information.

Under Nebraska law, a motor vehicle's registration number is the designation
appearing on the assigned license plate. Neb. Rev. Stat. § 60-389 (2010) (Nebraska motor
vehicle department "shall . . . assign to such motor vehicle . . . a distinctive registration
number in the form of a license plate"). The citation issued to Anderson contained his
car's license plate number and identified Nebraska as the licensing state. The citation,
therefore, satisfied the legal requirements of K.S.A. 8-2106 and K.S.A. 8-2108. All of
Anderson's arguments based on a contrary notion fail for that reason.[1]
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[1]When Anderson was stopped, Kansas issued registration numbers different
from license plate identifications for vehicles registered in this state. The state
registration number appeared on the annual decal affixed to the license plate. Since July
2015, the decals bear an identification that matches the assigned license plate. See K.S.A.
2015 Supp. 8-134(e). Anderson tried to fashion an argument based on the system for
vehicle registration in Kansas that used separate license plate identifications and state
registration numbers. But K.S.A. 8-2106(b) simply requires a state registration number if
any, recognizing that some states may not use them at all. As we have explained,
Nebraska uses the license plate identification as the registration number. So a traffic
citation that includes the license plate identification for a Nebraska motor vehicle satisfies
K.S.A. 8-2108.

State's Compliance with Brady Obligation

Anderson next argues the State failed to provide the serial number of the Stalker
DSR 2X Davis had in his patrol car, the radar training materials the Kansas Highway
Patrol uses with troopers, and Davis' scores on any examinations given to him during his
training on the radar equipment. The district court did not order the State to produce that
information in response to Anderson's discovery requests. On appeal, Anderson
characterizes the failure of the State to provide that information as a violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), requiring the
government to turn over exculpatory evidence to a defendant in a criminal prosecution.
The State's failure to comply with Brady violates a defendant's constitutional right to due
process. State v. Warrior, 294 Kan. 484, 504, 277 P.3d 1111 (2012). The State has an
obligation to provide a defendant with Brady material even without a court order.

Evidence is exculpatory if it tends to disprove a fact in issue that is material to
guilt or punishment or if it may be used to impeach inculpatory evidence or witnesses of
the prosecution. See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972); State v. Lackey, 295 Kan. 816, 823, 286 P.3d 859 (2012). A Brady
violation, then, requires: (1) evidence favorable to the defendant either because it is
exculpatory or impeaching; (2) the State's willful or inadvertent suppression of that
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evidence; and (3) prejudice to the defendant based on the materiality of the withheld
evidence. Warrior, 294 Kan. at 506. In this context, withheld evidence is material if its
disclosure would have created a reasonable probability of a different result at trial. 294
Kan. at 507.

Anderson asserted his constitutional claim based on Brady for the first time on
appeal. We could fairly discard the claim for that reason. See State v. Godfrey, 301 Kan.
1041, 1043, 350 P.3d 1068 (2015). But Anderson's argument also fails substantively
since he has not shown that the requested information would have been exculpatory at
trial. He simply offers possible scenarios in which it might have been helpful in his
defense. For example, he says with the serial number he could find out if the
manufacturer had repaired the specific radar unit or otherwise determined it to have been
malfunctioning at some time. Or, he says, the Highway Patrol training may have been
inadequate. But Davis testified about his classroom instruction and in-field training using
radar. He also explained how he operated the Stalker DSR 2X on the day he stopped
Anderson.

At trial, Anderson offered and the district court received as evidence the
manufacturer's 47-page operating manual for the Stalker DSR 2X. So Anderson had the
manual available to cross-examine Davis and to challenge the way he tested and ran the
radar. A deviation from the procedures in the manufacturer's operating manual would
tend to undercut the reliability of the speed readout Davis received. That would affect the
weight of the evidence favoring a conviction. By comparison, the Highway Patrol
training materials are quite collateral. Whether Davis adhered to the absolute letter of his
training has nothing directly to do with whether he used the Stalker DSR 2X the way the
manufacturer intended to achieve optimal results. Armed with the operating manual,
Anderson had the materials he needed to explore whether Davis properly operated the
Stalker DSR 2X.

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In short, Anderson has advanced no concrete basis to suggest a Brady violation.
The concerns he has raised at this stage are far too speculative to warrant relief in the
form of a new trial. See United States v. Morales, 746 F.3d 310, 317 (7th Cir. 2014);
Beltran v. Harrington, No. CV 10-5525-GW, 2015 WL 1517771, at *28 (C.D. Cal. 2015)
(unpublished opinion).

Foundation for Radar Readout

Anderson next argues the district court should not have admitted testimony or
other evidence as to the speed readout Davis got from the radar because the unit had not
been examined within a year by the manufacturer or someone else trained to determine
that the internal systems were functioning properly. As Anderson acknowledges, he asks
us to impose a new, restrictive rule of admissibility for radar evidence.

As Anderson also acknowledges, a district court's ruling on the admissibility of
otherwise material evidence—and a radar readout is plainly material in a contested
speeding case—typically will be reviewed on appeal for abuse of discretion. State v.
Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 (2013); Wendt v. University of Kansas Med.
Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). A district court exceeds that discretion if
it rules in a way no reasonable judicial officer would under the circumstances, if it
ignores controlling facts or relies on unproven factual representations, or if it acts outside
the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013);
State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012).

In State v. Primm, 4 Kan. App. 2d 314, 606 P.2d 112 (1980), this court outlined
the requirements for admitting as evidence radar readings of vehicle speeds. The
proponent of the evidence has to establish the radar unit functioned accurately when
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making the reading. 4 Kan. App. 2d 314, Syl. ¶ 2. The foundation evidence must
demonstrate: (1) the operator tested the radar unit in accordance with accepted
procedures; (2) the radar unit responded within the designated specifications for that
testing and otherwise appeared to be working properly; and (3) the operator had adequate
training and experience with the equipment. 4 Kan. App. 2d 314, Syl. ¶ 3. The Primm
decision also recognized district courts could take notice of the general reliability of the
science underlying the radar measurement of speeds of moving vehicles. 4 Kan. App. 2d
314, Syl. ¶ 1. Thus, the proponent of a radar readout does not have to produce evidence
outlining the scientific principles and a testifying law enforcement officer need not be
familiar with, let alone understand, those principles.

As we have said, at trial, Davis generally described the classroom and in-service
training he received in using the Stalker DSR 2X. Davis testified that on the day he
stopped Anderson, the internal testing mechanism for the Stalker DSR 2X showed the
unit to be working properly. Davis explained that he also tested the unit at the beginning
and end of his shift that day with two tuning forks that vibrate at different frequencies.
The tuning forks, supplied by the manufacturer of the Stalker DSR 2X, simulate the
reflected signal the radar picks up from moving vehicles, and because the tuning forks
have different known frequencies, the radar should report different readouts, each within
a narrow specified range, if the unit is operating correctly. Davis testified the tuning fork
protocol showed the Stalker DSR 2X to be functioning as intended. The State also
introduced and the district court received in evidence a certificate from the manufacturer
showing the radar unit to have been certified as accurate on May 31, 2013, and similar
certificates from the manufacturer showing the tuning forks to be accurate as of that date.

On appeal, Anderson effectively concedes the State produced sufficient evidence
to satisfy the Primm foundation for admitting the readout Davis got from the Stalker DSR
2X. But Anderson argues the accuracy of radar units may decline over time and the
longer a given unit goes without examination and maintenance by a trained technician the
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more likely it will be inaccurate. He says the same holds true for retesting the frequencies
at which the tuning forks vibrate. Anderson asks us to adopt an irrebuttable presumption
or per se rule that would exclude as evidence all readings from a radar unit that hasn't
been professionally examined and certified as accurate in more than a year.

In support of that rule, Anderson cites four court decisions and a 35-year-old law
review article. We are unpersuaded. In People v. Walker, 199 Colo. 475, 481, 610 P.2d
496 (1980), the Colorado Supreme Court held that "[if] a tuning fork test is used to
calibrate a radar device, . . . the prosecution must show that two tuning forks have been
used, or, alternatively that the single tuning fork used has been certified as accurate
within one year of the test." The court recognized that in testing with dual tuning forks,
each result tended to corroborate the other, considerably enhancing confidence in the
accuracy of the radar unit. 199 Colo. at 480. So Anderson's reliance on Walker is wholly
misplaced. The case actually recognizes the testing procedures Davis used to be sufficient
to admit radar readouts. Anderson also cites City of Aurora v. McIntyre, 719 P.2d 727,
729 (Colo. 1986), which applied the holding in Walker, and United States v. O'Shea, 952
F. Supp. 700, 701-02 (D. Colo. 1997), which cited Walker with favor. Neither helps him.
Anderson invites us to consider Cromer v. State, 374 S.W.2d 884 (Tex. Crim. 1964),
where the court upheld the sufficiency of the evidence for a speeding conviction based on
a readout from a radar unit tested both with a single tuning fork and by using it to
measure the speed of the patrol car in comparison to fixed objects. A dissenting judge in
Cromer would have reversed the conviction because the State presented no evidence the
tuning fork had been calibrated or that the speedometer of the patrol car was itself
accurate. 374 S.W.2d at 887-88 (Morrison, J., dissenting). Nothing in Cromer even hints
at a per se rule of the sort Anderson promotes. In Trichter and Patterson, Police Radar
1980: Has the Black Box Lost its Magic? 11 St. Mary's L.J. 829, 859 (1980), the authors
recommend, among other things, that manufacturers annually certify the accuracy of
radar units. But they offer no particularized explanation for that precise recommendation
apart from the general idea that periodic examination of radar units would turn up
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operational problems. Anderson points to no jurisdiction that has taken up that
recommendation.

In this case, we have been offered no good reasons to jettison or even augment the
evidentiary requirements set out in Primm. And we are not disposed to upset settled rules
without good reason.

Confrontation Clause Considerations

On appeal, Anderson contends the admission of the certificate of accuracy for the
Stalker DSR 2X and the certificates of accuracy for the tuning forks violated his right to
confront witnesses against him as guaranteed in the Sixth Amendment to the United
States Constitution because the persons performing the testing and preparing the
certificates did not testify at trial and, therefore, were not subject to cross-examination—
the essence of the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 53-
54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); California v. Green, 399 U.S. 149, 157-
58, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). Before turning to the substantive issue, we
mention that Anderson made no trial objection to the certificates for the tuning forks. The
absence of a contemporaneous trial objection, as required in K.S.A. 60-404, precludes
appellate review of any claimed error, including a constitutional deficiency. See State v.
Moore, 302 Kan. 685, 697-98, 357 P.3d 275 (2015). Here, the legal issue presented on
appeal with respect to the three documents is identical, and nothing would factually
distinguish the radar certification from the tuning fork certifications in this case.

The right of confrontation does not bar the admission of all extrajudicial
statements against a criminal defendant. The right covers those statements considered
"testimonial." Bullcoming v. New Mexico, 564 U.S. 647, 657-58, 131 S. Ct. 2705, 180 L.
Ed. 2d 610 (2011); Crawford, 541 U.S. at 60. Broadly cast, testimonial statements are
those "'establish[ing] or prov[ing] past events potentially relevant to later criminal
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prosecution.'" Bullcoming, 564 U.S. at 659 n.6 (quoting Davis v. Washington, 547 U.S.
813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 [2006]). Thus, for example, when a law
enforcement agency submitted seized evidence believed to be an illegal drug to a lab for
analysis, the chemist's resulting report, made under oath, identifying the white powder to
be cocaine was indisputably testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305,
309-11, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Likewise, an unsworn report of a
forensic examiner as to the alcohol level in a blood sample submitted by law enforcement
officers was testimonial in a drunk driving prosecution. Bullcoming, 564 U.S. at 664-65.
The reports, therefore, should not have been admitted because the persons performing the
reported testing were not subject to cross-examination by the defendants. The common
theme uniting them and rendering them subject to the Confrontation Clause was an
objective declarant's reasonable belief the statements would be used in a later judicial
proceeding. Melendez-Diaz, 557 U.S. at 311; see Bullcoming, 564 U.S. at 663-64 (citing
Melendez-Diaz). In other words, the chemist and the forensic examiner would have
expected the information in the reports to be relevant in some criminal case.

The Kansas Supreme Court applied those principles in State v. Benson, 295 Kan.
1061, 1067-68, 287 P.3d 927 (2012), to find that a certificate attesting to a periodic
calibration of an Intoxilyzer 5000, used to determine a person's blood-alcohol level from
a breath sample, was not testimonial and, therefore, could be admitted as evidence
without running afoul of the Confrontation Clause. The court held that the certificate was
"generated as part of the regular equipment maintenance" and "speaks only to the
reliability of the evidence that [a defendant's] blood alcohol level was above the legal
limit [but] does not prove or disprove that element." 295 Kan. at 1067. The holding in
Benson applies by direct analogy to the manufacturer's certificate stating the Stalker DSR
2X unit performed accurately on May 31, 2013, and compels the same conclusion—the
admission of the certificate does not implicate the constitutional right of defendants in
speeding cases to confront the witnesses against them.

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If anything, that rationale applies with greater force to the certificate for the radar
unit. To admit breath test results in a driving-under-the-influence case, the State must
show the particular machine used to perform the test has been certified by the Kansas
Department of Health and Environment. State v. Ernesti, 291 Kan. 54, 62-63, 239 P.3d
40 (2010). That is, the certification forms part of the necessary evidentiary foundation to
admit the result. The same, however, is not true of the certificate for a radar unit used to
determine the speed of a motor vehicle. As outlined in Primm, the evidentiary foundation
for a radar readout requires only that the law enforcement officer have been trained to
operate the unit and the officer's testimony that he or she properly tested the unit and it
appeared to be functioning correctly. 4 Kan. App. 2d 314, Syl. ¶ 3. There is no
requirement the State produce evidence the manufacturer or some other entity has
examined a radar unit and determined it to be accurate. Such evidence, though
unnecessary, would provide some circumstantial support showing the radar unit to be
reliable and, hence, the readout to be accurate. But based on Benson that evidence would
not be testimonial.

As Anderson points out, a subsidiary rationale offered in Benson, 295 Kan. at
1066-67—that the certificate for the Intoxilyzer 5000 was not produced for use in a
specific case or against a particular defendant—is suspect in light of Williams v. Illinois,
567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). In that case, five justices rejected
the government's argument that the Confrontation Clause did not apply to a reported
DNA profile because the profile had not been produced primarily for the purpose of
charging or prosecuting the defendant. See 132 S. Ct. at 2261-64 (Thomas, J., concurring
in judgment); 132 S. Ct. at 2273-74 (Kagan, J., dissenting).[2] Notwithstanding Williams,
the ultimate holding in Benson seems to be intact and governs here.

[2]In Williams, the defendant argued a violation of the Confrontation Clause
impermissibly tainted his state court conviction for rape, when a government expert
testified to an inculpating DNA match and outlined her reliance on a report from an
independent laboratory establishing the DNA markers found in biological evidence
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recovered from the victim shortly after the crime. No one from the independent
laboratory testified at trial or was ever subject to cross-examination about the report. In
an opinion written by Justice Alito, four justices voted to affirm the conviction because
the report was not testimonial, in part, because it was not generated for the principle
purpose of prosecuting or "targeting" the defendant. Williams, 132 U.S. at 2242-44.
Writing for himself, Justice Thomas expressly rejected that reasoning but voted to affirm
because the report lacked what he viewed as the requisite "formality and solemnity" to be
testimonial for purposes of the Confrontation Clause. 132 U.S. at 2255, 2273-74
(Thomas, J., concurring in judgment). The remaining four justices rejected entirely the
reasoning advanced in Justice Alito's opinion and dismissed Justice Thomas' view of the
Confrontation Clause. 132 U.S. at 2265 (Kagan, J., dissenting). Those justices would
have found a violation of the Confrontation Clause. So five justices voted to affirm the
conviction but could not agree on why. But five justices refused to confine the
Confrontation Clause to evidence generated primarily to advance a particular criminal
case or the prosecution of a particular defendant.

Even if we were mistaken and the admission of the certificate of accuracy for the
Stalker DSR 2X (and the tuning fork certificates, for that matter) violated the
Confrontation Clause, Anderson has failed to show material prejudice depriving him of a
fair trial. Most trial errors, including constitutional ones, do not afford a defendant relief
if, under the circumstance, they are harmless. The harmless-error rule applies to
Confrontation Clause violations. Bullcoming, 564 U.S. at 668 n.11; Delaware v. Van
Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Holman,
295 Kan. 116, 143, 284 P.3d 251 (2012). A constitutional error may be treated as
harmless when the party benefiting from the error, here the State, can show beyond a
reasonable doubt that the outcome of the trial was not affected. Holman, 295 Kan. at 143;
Ward, 292 Kan. 541, Syl. ¶ 6.

In his brief, Anderson has not addressed harmlessness. Having reviewed the
record, including the trial transcript, we fail to see any substantive prejudice to Anderson.
The certificate of accuracy provided nothing more than cumulative evidence that the
Stalker DSR 2X was working properly when Davis spotted Anderson racing through
Republic County. Davis testified that the Stalker DSR 2X's internal calibration system
indicated the unit to be functioning correctly. The radar responded appropriately when
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Davis tested it with the dual tuning forks. And he otherwise saw nothing suggesting the
unit might have malfunctioned. As we have said, all of that satisfied the evidentiary
foundation outlined in Primm, and those distinct tests and observations provided
redundant checks supporting the accuracy of the radar readout.

In short, no evidence called into question the functionality of the Stalker DSR 2X
or its determination of the speed of Anderson's car. And ample properly admitted
evidence showed the readout to be correct. The certificate of accuracy simply gilded the
evidentiary lily.

Had the prosecutor vouched for the certainty of the evidence based on the
manufacturer's certificate and waved it around in front of a jury, we might linger a bit
longer over the matter of harmlessness. But this wasn't a jury trial, and the prosecutor
didn't even mention the certificate in a closing argument that lasted less than 2 minutes.
In a detailed bench ruling immediately following the trial, the district court specifically
relied on the evidentiary standards outlined in Primm, Davis' training, and his testimony
as to his testing and observation of the radar unit the day he stopped Anderson. The
district court mentioned the certificate only in passing. In light of the trial evidence and
the record as a whole, we conclude without hesitation that the certificate had no
demonstrable impact on the district court's decision to convict Anderson. Any violation
of the Confrontation Clause, therefore, would have been harmless.

Having addressed Anderson's arguments on appeal, we find no basis to reverse his
conviction and the resulting fine.

Affirmed.