Opinion
Case No. 99-07-3322-1-AP I.D. No. 9907008478
Submitted: December 4, 2000
Decided: March 26, 2001
On the Defendant's Appeal from the Decision of the Court of Common Pleas; Cr.A. Nos. 99-07-3322, 3323
Theodore F. Sandstrom, Esquire, Attorney for the Appellant.
Ahison L. Peters, Deputy Attorney General, for the State of Delaware.
OPINION AND ORDER FACTS AND PROCEDURAL POSTURE
This matter is before the Court from the decision of the Court of Common Pleas finding the Defendant guilty of Driving under the Influence in violation of 21 Del. C. § 4177.
On July 8, 1999, Corporal John J. Glenn of the Delaware State Police was on duty at approximately 1:00 a.m., when he noticed a vehicle proceeding northbound on Harmony Road in Newark, Delaware. The vehicle was proceeding partially on the shoulder of the road and was also traveling slower than the posted speed limit. In response to these observations, Corporal Glenn activated his emergency equipment. The operator of the vehicle, Miles A. Darst, then proceeded approximately 150 yards before pulling over onto the shoulder of the road and stopped.
Corporal Glenn estimated that the vehicle was traveling 25 mph in a 35 mph zone.
Corporal Glenn approached the vehicle from the passenger side and asked Mr. Darst to roll down the passenger window. When Mr. Darst complied, Corporal Glenn noticed a strong odor of alcohol coming from inside the car. He then asked for Mr. Darst's driver's license and registration, which Mr. Darst had some difficulty retrieving from the glove compartment. More specifically, he stated that Mr. Darst "fumbled around" when retrieving them and continued to look for the registration even after he already had it in his hand. After these documents were produced, Corporal Glenn ordered Mr. Darst to get out of the vehicle. As he attempted to do so, Mr. Darst stumbled but subsequently steadied himself against the vehicle. Furthermore, his eyes appeared glassy, his complexion was flushed, his speech was slurred and his shirt was untucked.
Based upon the manner in which the vehicle had been operated, as well as Mr. Darst's physical appearance and actions along with the smell of alcohol on his breath, Corporal Glenn concluded that Mr. Darst's ability to operate a motor vehicle was impaired and determined that field sobriety tests were appropriate. As a result, three such tests were administered to Mr. Darst: the finger-to-nose test, the one-legged-stand test and the toe-to-heel test. Mr. Darst failed each of these tests.
The finger to nose test requires the subject to stand with his feet together, arms extended, head tilted back and eyes closed. The police officer then touches one of the subject's fingers and the subject is required to touch the tip of his nose.
The one-legged stand test requires the subject to stand with his hands at this sides, look down at the toe of either foot, raise that foot approximately six inches off of the ground, continue to look at the foot and count from one to thirty out loud.
The toe-to-heel test requires the subject to walk toe to heel in a straight line for nine steps, turn and walk back, toe to heel, counting each step along the way.
He failed the finger-to-nose test because he was swaying and he touched the bridge of his nose instead of the tip of his nose. He failed one-legged-stand test and the toe-to-heel test because he was unable to maintain his balance during them. In light of Mr. Darst's performance on these tests, as well as the earlier observations mentioned above, Corporal Glenn decided to place him in custody and take him to Troop 6 to administer an Intoxilyzer test. The of which revealed that Mr. Darst's blood-alcohol concentration 0.18.
A person is under the influence of alcohol when that person's alcohol concentration is .10 or more, within four hours after the time of driving. 21 Del. C. § 4177.
On April 18, 2000, Mr. Darst appeared with counsel before the Court of Common Pleas in a non-jury trial. After listening to Corporal Glenn and Mr. Darst testify, the Court found Mr. Darst guilty of driving under the influence in violation of 21 Del. C. § 4177(a).
Mr. Darst makes three claims in appealing the judgment below. First, he asserts that the lower court erred when it denied his motion to suppress evidence of the results of the field sobriety tests and the Intoxilyzer test. He then goes on to argue that Corporal Glenn lacked probable cause to arrest him. Finally, Mr. Darst contends that the Court of Common Pleas abused its discretion by refusing to admit certain medical reports into evidence under the medical records exception to the hearsay rule. The State denies the existence of the errors as alleged.
The State, after specifically addressing the Defendant's first two arguments, did not directly respond to Mr. Darst's probable cause argument, did address that issue in its response to the hearsay and suppression issues.
DISCUSSION
The Superior Court's jurisdiction over appeals from the Court of Common Pleas is provided for in 11 Del. C. § 5301. This section provides that the accused shall have the right to appeal from any order of the Court of Common Pleas, and that appeal shall be conducted "on the record and shall not be tried de novo." In reviewing these appeals, this Court "must limit its scope of review to correcting errors of law and ascertaining whether the trial judge's factual findings are adequately supported by the record and are the product of an orderly and logical deductive process." Romain v. State Farm Mut. Auto. Ins. Co., Del. Super., C.A. No. 99A-02-003, Ridgley, P. J. (Dec. 2, 1999) (ORDER at 1) (quoting Wyatt v. Motorola Inc., Del. Super., C.A. No. 93A-01-004, Gebelien, J. (March 11, 1994) (Mem. Op.)). It is with this standard in mind that the Defendant's specific contentions and the trial court's rulings are examined.Motion to suppress evidence.
At trial, the State sought to enter the results of the Intoxilyzer and field sobriety tests into evidence. Defense Counsel moved to suppress this evidence on two grounds. The first was that Corporal Glenn lacked a reasonable articulable suspicion that Mr. Darst's ability to operate a motor vehicle was impaired. The Defendant then contended that Corporal Glenn should have discounted the results of the field sobriety tests based upon Mr. Darst's physical disabilities.
Mr. Darst testified that he suffers from a serious and permanent back injury.
The State opposed the motion on the grounds that under Common Pleas Criminal Rule 12, Mr. Darst's right to suppress evidence at trial was waived when he failed to object to the evidence prior to the start of the trial. The Court sustained this objection, holding that:
"[m]otions to suppress for lack of probable cause must be in writing, must be pled with factual specificity and particularity so that . . . all the parties are on notice what the basis of the Motion to Suppress will be. . . ."
Trial Tr. at 42, State v. Darst, Del. CCP, Cr. A. No. 99-07-3322, 3323, Welch, J. (July 10, 2000).
According to Mr. Darst, the Court erred in sustaining the State's objection because his motion to suppress falls under the "good cause" exception to such a waiver provided for in subsection (f) of Rule 12. He contends that he was not put on notice that suppression could be an issue to pursue before trial. This lack of notice is manifested in Corporal Glenn's failure to provide information regarding the roadway's location; failure to label Mr. Darst's driving as erratic; omitting any mention of any violation of the motor vehicle code; and finally not describing the roadway's physical condition. Thus, it is argued, the revelation of this evidence at trial constituted sufficient cause to raise the bar of Rule 12.
This rule provides:
(f) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the Court pursuant to subdivision (c), or prior to any extension thereof made by the Court, shall constitute waiver thereof, but the Court for cause shown may grant relief from the waiver.
The State responds that only when the defendant is ignorant of his legal rights or where the State has failed to object to the motion to suppress, is sufficient cause shown to permit the court to grant relief in question. Neither of these grounds raised by Mr. Darst fall into those categories in this particular case, and the trial court's refusal to allow presentation of the motion to suppress at trial did not, therefore, constitute error. Furthermore had the motion been granted, the State argues that it would be precluded from appealing the issue because jeopardy attached when Corporal Glenn began testifying at trial.
The Delaware Supreme Court has held that absent exceptional circumstances, a trial judge's refusal to hear an untimely motion to suppress on its merits is properly within the trial court's broad discretion of its rules of procedure. Barnett v. State, Del. Supr., 691 A.2d 614, 616 (1997). The courts have found exceptional circumstances to exist when the defendant is ignorant of his legal rights, or where the defendant was not put on notice that suppression was at issue before the trial began. State v. Moore, Del. Super., 187 A.2d 807 (1963); and State v. Bloominadale, Del. CCP, Cr. A. No. 99-07-3799, Smalls, J., (July 7, 2000).
After having reviewed the records below, the Court must conclude that no such exceptional circumstances existed and the court below did no err in that regard. First, Mr. Darst's claims of ignorance of his legal rights fails because he was represented by his present counsel at least as far back as his arraignment on September 16, 1999 and thus at least six months before the trial began. (See, State v. Darst, Plea of Not Guilty). Through his attorney, he is therefore presumed to have been aware of his legal rights. Furthermore, Mr. Darst's contentions that he was not put on notice of the location, condition or that there was any motor vehicle code violation, are curious in light of the fact that the citation issued specifically described the location of the violation, his blood-alcohol concentration and that as a result, he violated 21 Del. C. § 4177(a). The Alcohol Influence Initial Report also indicated that the surface type of the roadway was asphalt and that the weather was clear and dry. Appellant's Appendix at A-84. This information is sufficient to have put Mr. Darst on notice of both the location and condition of the incident and that he had committed a violation of the motor vehicle code. Nothing more was required.
The medical reports.
At trial, Mr. Darst sought to admit into evidence letters written by Dr. Wai Wor Phoon under the medical records exception to the hearsay rule. The Court refused to admit the letter because it did not come within the exception. DRE 803(4) provides that "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations . . ." are admissible as an exception to the general prohibition of hearsay statements.
Mr. Darst contends that the letters should have been admitted because the are presumptively reliable and trustworthy, and therefore present none of the usual dangers associated with hearsay statements. Furthermore, he asserts that by failing to considered Dr. Phoon's opinion as to Mr. Darst's inability to perform the field sobriety tests, the Court may have incorrectly factored these results into its ultimate conclusion of Mr. Darst's guilt. Had the letters been admitted, this evidence may have cast a reasonable doubt over the issue of whether Mr. Darst was actually impaired.
The information and opinions in these letters by Dr. Phoon are clearly hearsay. They are out-of-court statements made by Dr. Phoon and are being offered to establish the truth of their contents. At trial, the Court ruled that it would make a cursory viewing of the documents and if it was obvious on their face that they were medical records as described in DRE 803(4), the Court would consider the evidence. However, if the letters contained information that was provided for purposes other than medical treatment, it would exclude the evidence under the hearsay rule. After viewing the letters, the Court properly excluded them as falling outside of the exception.
The letters were addressed and sent directly to Mr. Darst's attorney, Mr. Sandstrom, after Mr. Darst had been arrested. Moreover, their content confirms that they were prepared specifically for litigation in this matter and not for any purpose related to medical treatment or diagnosis. Appellant's Appendix at A-87-88. Accordingly, the court below did not err by excluding this evidence.
Probable Cause.
Mr. Darst bases his contention that Corporal Glenn lacked probable cause to arrest him on several grounds. First he asserts that his performance on the field sobriety tests were easily explained by his disabilities about which he informed Corporal Glenn of at the scene. Therefore, he argues that his performance during these tests should not have been taken into account in assessing his sobriety. Lastly, Mr. Darst's appearance the night of the arrest was consistent with his "normal" appearance, and should not have been a factor as a result.
Probable cause is "measured not by precise standards, but by the totality of the circumstances through a case by case review of "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" State v. Maxwell, Del. Supr., 624 A.2d 926, 928 (1993), (quoting Illinois v. Gates, 462 U.S. at 231). "The possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude a determination that probable cause exists for an arrest." Id. at 930.
Applying these standards to this case, it is clear that Corporal Glenn was not required to discount Mr. Darst's performance on the sobriety tests due to his claims of disability. In addition, testimony at trial regarding the consistency of Mr. Darst's normal appearance with his appearance on the night of the arrest is irrelevant when considering Corporal Glenn's observations on the night of the arrest. Corporal Glenn used his experience and training to assess the situation and given the totality of the circumstances, the Court cannot conclude that the Court of Common Pleas erred by giving deference to his judgment. Stated differently, there is more than adequate evidence in the record to base the conclusion that Corporal Glenn had probable cause to detain and arrest Mr. Darst.
CONCLUSION
Based upon the foregoing, this Court must conclude that the Court of Common Pleas did not err as a matter of law. In addition, the decisions challenged by the Defendant below were supported by substantial evidence in the record as well. The Defendant's appeal must therefore be denied and the judgment by the Court of Common Pleas is hereby affirmed.