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Village of Algonquin v. Sato

Court of Appeals of Illinois, Second District

April 25, 2018

THE VILLAGE OF ALGONQUIN, Plaintiff-Appellee,
v.
MARK E. SATO, Defendant-Appellant.

          Appeal from the Circuit Court McHenry County. No. 16-TR-31757 Honorable Jeffrey L. Hirsch, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

          OPINION

          JORGENSEN JUSTICE

         ¶ 1 Plaintiff, the Village of Algonquin, charged defendant, Mark E. Sato, with driving over the posted speed limit (Algonquin Municipal Code § 41.01 (amended Dec. 21, 2010) (incorporating by reference 625 ILCS 5/11-601(b) (West 2016))). Defendant proceeded pro se. After a bench trial, the court found him guilty and imposed $311 in fines and fees. Defendant, still proceeding pro se, appeals. He contends that (1) the judgment was erroneous because there was no proof that a valid engineering survey supported the speed limit and (2) plaintiff did not provide a proper foundation for the evidence of his speed as measured by police radar and the officer's squad-car speedometer. We affirm.

         ¶ 2 At trial, Algonquin police officer Josh Latina was the sole witness. On direct examination, he testified as follows. On September 27, 2016, at 7:50 a.m. he was on patrol, driving in the middle lane of southbound Randall Road and momentarily stopped at a red light at the intersection with County Line Road. The posted speed limit was 50 miles per hour. As the light turned green, he saw a silver car go through the intersection at a high speed. Latina accelerated, catching up to the car and pacing it, keeping a car length behind. His squad-car speedometer read 75 miles per hour. The squad car, including the speedometer, had been tested every three months. Had the car failed any part of the test, it would have been taken out of service until it was repaired.

         ¶ 3 Latina testified that he had also activated the car's radar device, a Genesis II directional model mounted on the dashboard. It also read 75 miles per hour. Latina had tested the radar device at 7 a.m. and did so again after the stop. Both times the device passed the test. Latina explained that he used two tuning forks that were set for different speeds. He testified in part, "you hit the metal tuning fork *** on another piece of metal. *** And then you put it in front of the radar unit and it gives you a reading and if the reading matches the speed on the tuning fork, then you know the radar is calibrated properly." Latina activated his emergency lights and pulled over the car, which defendant was driving.

         ¶ 4 Defendant did not object to any of the testimony about the speedometer or the tests of the radar unit.

         ¶ 5 On cross-examination, defendant first asked Latina whether he could present the "calibration log" for the radar device. Latina said that he could not. Defendant then asked Latina whether he could present "the traffic engineering survey as *** required by 23 CFR 630 [sic] and [the Manual on Uniform Traffic Control Devices (MUTCD)] Title 23 VSA [sic] showing that the speed survey [was] less than five years old and that the speed posted was in compliance." Plaintiff objected on grounds of foundation and relevance. Defendant asserted that without the survey the speed limit would not be enforceable. He contended that it was plaintiff's burden to introduce the survey. He had made a request under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) to the McHenry County State's Attorney's office for the survey report; the office responded that it had no such document, and it referred him to the county's transportation department. Defendant stated that it was not his responsibility to provide the foundation for plaintiff's evidence. The court disagreed that plaintiff had any such burden, and it sustained plaintiff's objection.

         ¶ 6 Noting that Latina had testified that he had used tuning forks to test the radar device, defendant asked Latina to "present for the purpose of foundation as to [sic] the evidence and to the required documents [sic] certifying that the tuning forks themselves [were] accurate, [had] been tested and certified within the last six months." The State objected. The court told defendant that he could not use cross-examination to make Latina produce records but could ask the officer about documents that he might have. Defendant then asked Latina whether he had "the accompanying documentation for the tuning fork accuracy." Latina said that he did not have the documentation with him and did not personally know of it, as testing records were maintained by a supervisor. Asked how he knew that the tuning forks were accurate on the day of the stop, Latina said that he had no way of testing the tuning forks; that was "above [his] pay grade."

         ¶ 7 Defendant asked Latina whether he had documentation from "an approved speedometer shop certifying the accuracy" of the speedometer that he had used on the day of the stop. Latina responded that he had no such documentation with him and that it would be kept in a file by a supervisor. Latina reiterated that the speedometer was checked every three months as part of preventive maintenance, but he did not personally know about the maintenance procedure.

         ¶ 8 Defendant tendered the court authorities that, he claimed, were pertinent to the radar and speedometer readings. The court stated that there were two separate potential issues: the admissibility of the evidence, based on the sufficiency of the foundation, and the weight to be accorded to the evidence were it admitted. The court ruled that there was a sufficient foundation for Latina's testimony about the radar and speedometer readings. Latina then testified that, when he first saw defendant pulling away from the intersection, he believed that defendant was speeding. He based his belief on his experience as a traffic officer and on the fact that defendant was driving faster than everyone else on the road.

         ¶ 9 In its closing argument, plaintiff contended that Latina's observations of defendant, along with the radar and speedometer readings, proved that he had been driving 75 miles per hour in a 50-mile-per-hour zone. Defendant contended that plaintiff had failed to show that an engineering survey had been performed no more than five years before the stop, as needed to make the speed limit valid under federal law. He also argued that plaintiff had failed to introduce evidence that the radar and speedometer had been properly tested and certified as accurate. In reply, plaintiff asserted that, because defendant had not objected when the evidence relating to the radar and speedometer readings was introduced, his arguments on this point went, at the most, to the weight of this evidence, not its admissibility.

         ¶ 10 The trial court issued a written judgment stating as follows. Based on the evidence, the radar and the speedometer had been accurate and reliable. Although plaintiff had not produced test results for the instruments, there was no evidence that they had not been working properly. Further, plaintiff had not had the burden to produce a traffic-engineering study to validate the speed limit. As Latina's testimony about the radar reading and his personal observation of defendant's driving was unrebutted, plaintiff had proved that defendant had driven 25 miles per hour over the posted speed limit. The court later imposed $311 in fines and fees against defendant. He timely appealed.

         ¶ 11 Plaintiff has not filed a brief. Nonetheless, we may decide the appeal on its merits. See First Capitol Mortgage Corp. v. Talandis ...


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