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State v. Wojtkowiak

August 2, 1979

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOUGLAS WOJTKOWIAK, DEFENDANT-APPELLANT



On appeal from Burlington Township Municipal Court.

Wells, J.s.c.

Wells

This is an appeal from defendant's municipal court conviction for speeding 68 m.p.h. in a 55 m.p.h. zone. At the request of defendant, and with the State's consent, the court opened the record below for the sole purpose of determining the scientific reliability of the K55 Radar Speed Detection Device. Defendant's conviction rests on a speed reading displayed by the K55 in State Trooper Albert J. Dempster's troop car as he and defendant approached one another, Trooper Dempster in a northbound lane and defendant in a southbound lane, on Route 295.

Because defendant, unrepresented below, did not raise it, and because both defendant and the State, on this appeal, advised the court that questions about the reliability of the K55 were affecting the administration of justice in the municipal courts, the court believed limited reopening of the record was warranted. R. 3:23-8(a) authorizes the appellate court to hold a "plenary trial de novo without a jury" where "the rights of defendant were prejudiced below." Because prejudice to defendant could only have arisen from the municipal judge's unchallenged assumption of reliability of the K55, the trial de novo is limited to that issue. All other matters will be decided on the record below.

Further authority, by analogy, is found in two recent instances in which the Appellate Division, itself, returned cases to the

trial court for plenary hearings on the scientific reliability of devices used in law enforcement. State v. Hibbs , 123 N.J. Super. 108 (App.Div.1972), on remand 123 N.J. Super. 152 (Cty.Ct.1972), aff'd 123 N.J. Super. 124 (App.Div.1973); State v. Boyington , 153 N.J. Super. 252 (App.Div.1977).

The legal criteria to be applied in admitting scientific evidence are well established. Before the results of any scientific test may be admitted in evidence it must be shown that the equipment or the methodology used has a high degree of scientific reliability and that the test is performed by qualified persons. State v. Chatman , 156 N.J. Super. 35, 38 (App.Div.1978).

Speed-measuring radar in various forms has been accepted since State v. Dantonio , 18 N.J. 570 (1955). See State v. Overton , 135 N.J. Super. 443 (Cty.Ct.1975) (Mark VIA), and State v. Boyington , 159 N.J. Super. 426 (Law Div.1978) (Decatur Ra-gun); State v. Musgrave , 169 N.J. Super. 204 (Law Div.1979) (K55 Speed Detection Device held reliable). This last decision is, of course, entitled to, and has received, great respect as that of a court of coordinate jurisdiction, but it does not appear that Judge Wichman heard conflicting expert testimony and, accordingly, this court offers its opinion on the same issue to analyze the reliability of the K55 in light of expert criticism.

Four experts, two called by each side, testified. In addition, the State called Trooper Dempster. The State's witnesses were principals of MPH Industries, manufacturer and distributor of the K55. The first witness, Robert E. Patterson, who built a crystal radio at age 10, is "entirely responsible for the total technical design and construction and manufacture of the K55 radar." He is a high school graduate with two years of college, graduated from the Army's Signal School at Fort Monmouth and ended his military career as head of maintenance of school equipment at the Missile Guidance School at Redstone Arsenal. This military career gave Patterson extensive theoretical and

practical knowledge of radar of all types. Patterson, after his military discharge, held successive jobs as chief electrical engineer at several companies in the electronics and radar industry in each of which degreed engineers reported to him. He holds five patents in various types of electronic circuitry design and built the first solid state cardiac monitors; he has also designed or contributed to the design of music amplification equipment, police radar (before the K55) and cardiac telemetry equipment. These devices depend on a common thread of theory and practical technology applicable to radar-informed speed measuring equipment and, in several instances, Patterson was in the forefront of the developing technology which finally emerged in various speed measuring radar devices.

The second State's witness was Edward Walker Sergeant. His qualifications are detailed in State v. Musgrave, supra. In this case Sergeant testified solely about the training programs offered by MPH, and, in particular, about the one he gave to a class of New Jersey State Troopers among whom was Trooper Dempster.

The defense's experts were Andrew L. Soccio and Dr. Leo Nichols. Soccio's qualifications are outlined later in this opinion. Dr. Nichols possesses a B.S. in Electrical Engineering from Virginia Military Institute, a Master of Science in Electrical Engineering from Ohio State and a Ph.D. in the same subject from Virginia Polytechnic Institute. Although Dr. Nichols holds a license as a professional engineer in Virginia, his primary profession is that of teacher, having risen from an instructor to his present position as head of the Department of Electrical Engineering at Virginia Military Institute, a job he has held for 11 years. He has taught basic electric circuits, thermodynamics and microwave theory and techniques. He has testified as an expert many times in several states on the theory and operation of traffic radar.

It is from the testimony of these witnesses, and Trooper Dempster, that the court makes its findings on all aspects of the

theory and operational characteristics of the K55 and, finally evaluates its reliability.

Principles of Doppler Radar

It is necessary to review certain basic ideas in order to understand the K55 and to describe its limitations.

Engineers generally depict radiant energy as moving in an undulating wave form pattern called "cycles." The number of cycles passing a given point in a given period of time is called "frequency." In music, the frequency at which sound reaches the ear determines the pitch people hear. Middle C on the piano, for example, when played, produces a sound wave at a frequency of X cycles a second, and the C one octave above middle C will generate a sound wave at 2X cycles a second. The higher the frequency, the higher the pitch will be. Note at the outset that this relationship between frequency and pitch is direct and not affected by other factors. For instance, it makes no difference how loudly or how softly you play middle C, or if you play it loudly and the octave C softly, the two sound waves produced will still reach the ear at the same frequency, X and 2X cycles a second. Nor does distance from the source of the sound make a difference. If a pianist in a concert hall plays middle C, that note is heard as middle C whether a listener is in the front row or in the last balcony row.

So far, we have considered a stationary source of sound waves. Let us now take a moving source. Assume a passenger at a station awaiting a train. Down track the train approaches at 50 m.p.h. The engineer blows his whistle, which sounds a single high-pitched note. The awaiting passenger will hear that single note slide up the scale or, as we have just learned, its frequency increases. This natural phenomenon, imparting the vaguely romantic wailing sound of approaching or receding train whistles, is the Doppler effect (or "shift") at an audible frequency. Note once again the strength of the source (i.e. ,

whether the whistle blows loudly or softly) or its distance from the listener has no bearing on the effect -- the pitch will slide up the scale, regardless of these factors as the train approaches. Furthermore, by definition, the Doppler effect cannot be heard from a stationary source. The frequency changes only with movement of the source.

All radar, including the K55, transmit or broadcast high frequency microwave energy which emanates from the transmitter in the cycle pattern and "echoes" back to the source. Sound, of course, does this too, but the reflector must be quite large whereas, with microwaves, small objects can and do reflect them.

If either the source of the microwave transmission is moving or a reflecting object is moving, the Doppler shift occurs. Thus if a person sitting in the moving source could "hear" microwaves, he would note a change in frequency of the returning cycles: increased frequency if the reflector is moving toward him (as in the case of the road or an approaching car) and decreased frequency if the reflector is moving away. Physicists have measured the frequency change and expressed the measurements in one of those simple, elegant formulae to which all nature appears ultimately reducible:

f[dop] = 2vf / c

where f[dop] is the frequency of the returning microwaves, v is the velocity (speed) of the reflector, f is the transmitted frequency from the microwave source and c is the speed of light. Since c is always constant and the transmitter sends out microwaves of a known f, the only variable in this formula is v. Note, once again, that distance between source and reflector is absent from the formula as is any factor for the strength of either the transmitted or echoed energy.

Description of the K55 -- Its Implementation of ...


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