Summary
viewing the evidence in the "light most favorable" to the State in a defendant's appeal challenging the sufficiency of the evidence.
Summary of this case from STATE v. IYEROpinion
DEF. ID# 990201-4851.
Date Submitted: September 25, 2000.
Date of Decision: December 27, 2000.
John F. Brady, Esquire, Office of the Public Defender, Georgetown, Delaware, attorney for Defendant Below-Appellant;
Mark B. Chernev, Esquire, Department of Justice, Georgetown, Delaware, attorney for Plaintiff Below-Appellee.
MEMORANDUM OPINION
INTRODUCTION
This case presents an appeal from a decision a f the Court or Common Pleas in and for Sussex County. For the reasons set forth below, the decision of the court below is affirmed.
NATURE AND STAGE OF THE PROCEEDINGS AND STATEMENT OF FACTS
On February 20, 1999. Trooper Chambers of the Delaware State Police came upon the defendant. Kellianne C. Casey ("Casey"). whose car was parked on the northbound shoulder of Route 13A near Seaford. Trooper Chambers, who was headed southbound on that road, pulled over and attempted to get the attention of Casey. According to Chambers. Casey was attempting to start the car. but was unable to do so. and was avoiding eve contact with the Trooper. Seeing her difficulty. Trooper Chambers made a U-turn and pulled in behind Casey's vehicle.
Casey exited the car, and according to Chambers' testimony, nearly fell in the road attempting to get out. Casey told Chambers that she had come from the nearby bowling alley where she was looking for her daughter and that her car had "died" a few minutes earlier. Chambers detected the odor of alcohol on the breath of Casey. He further noticed glassy eyes, slurred speech and an inability to maintain her balance. In light of these observations, Chambers asked if she would perform field sobriety tests. She consented.
Chambers testified that Casey performed fairly well on one field test, the alphabet test, transposing only two letters, but that her speech continued to be slurred. He further noted that she failed two more field sobriety tests, the backward-count test and the one-leg stand. At that point Casey stated that she was too cold to perform further tests. Trooper Chambers asked if she would be more confortable doing additional tests at the Troop Headquarters. She agreed. Chambers handcuffed placed her in the in the back seat for transport to Troop 5.
Chambers stated that, on the way to the Troop, he sensed an even stronger odor of alcohol with Casey in the car than he had at the scene. Once arriving at the Troop, Casey was asked to perform the walk and turn test, using a seam between tiles on the floor as a guide to walk nine steps heel-to-toe, turn and take nine steps back. The Trooper testified that Casey stepped off the line repeatedly, raised her arms throughout, missed touching heel-to-toe on a number of steps and did not count out loud as instructed. The Trooper also administered the Horizontal Gaze Nastygmus ("HGN") test.
Finally, Trooper Chambers asked that Casey submit to a chemical Breathalyzer test. She again consented. When asked whether she had dentures. Casey said she did, to which the officer responded that she must remove them and keep them out for the test. She removed her dentures initially, but sometime before the twenty-minute period required for administration of the test expired, she placed them back in her mouth. Though there was disputed testimony as to why she did this or what led to the argument between the Trooper and Casey concerning putting them back in, she effectively refused to again remove the dentures. Trooper Chambers noted this as a refusal to take the breath test.
Casey's view of the facts is somewhat different. Her defense was based on the premise of drinking after driving. She claims that she experienced a flat tire while looking for her daughter. Since it was cold and she had few practical options about changing her tire, she chose to walk to a nearby bar and make some phone calls to her boyfriend. She was unable to reach him on the outside payphone and went in to get warm and continue to try to reach him. While in the bar she consumed a number of alcoholic beverages. She then returned to her car to retrieve her checkbook from the glove box. According to her testimony, she was reaching across the vehicle to do so when the trooper arrived. She was trying to start the car, because she had a flat.
Casey testified that she did not fall out of her vehicle, that she passed the first two sobriety tests, and that she was never given the one-leg stand test. She asserted that, upon going to the Troop, she also performed well on the walk and turn test. When asked to remove her dentures for the second time. Casey claims the officer did not tell her that they had to stay out or why. She testified that she did not refuse the intoxilyzer, but that the officer became angry with her and for that reason she did not cooperate any longer.
The trial court assessed the evidence and determined that probable cause existed to arrest Casey. The court permitted testimony concerning the walk and turn test conducted at the troop, but suppressed the evidence from the HGN test. The trial judge accepted Trooper Chamber's testimony as being credible. Finally, the trial judge found that the State had met its burden of proof in showing that Casey had actual physical control of a motor vehicle while under the influence of alcohol.
The ruling regarding suppression of the HGN test is not at issue in this appeal.
STANDARD OF REVIEW
When reviewing an appeal from the Court of Common Pleas, this Court assumes the same appeal posture as that of the Supreme Court. Baker v. Connell, Del. Supr., 488 A.2d 1303, 1309 (1985). In that role, a two-fold standard of review is employed. First, this Court may review any error of law de novo. Downs v. State, Del. Supr., 570 A.2d 1142 (1990). Second, the Superior Court is bound by findings of fact made by the lower court which are supported by the record and which are the product of a logical and deductive process. Id. at 1144.
Findings of fact made by the trial court must be supported by substantial evidence, Shahan v. Landing, Del. Supr., 643 A.2d 1357 (1994). Such evidence is that which a reasonable might mind accept to support a proposition. Oceanport v. Wilmington Stevedores, Del. Supr., 636 A.2d 892 (1994). Substantial evidence is more than a scinatilla, but less than a preponderance. Onley v. Cooch, Del. Supr., 425 A.2d 610 (1981). If substantial evidence exists for a finding of fact, this is Court must accept that ruling, as it must not make its own conclusions of fact, weigh evidence or make credibility determinations. Johnson v. Chrysler, Del. Supr., 213 A.2d 64 (1965). That this Court may have decided an issue of fact differently is not enough to overturn the lower court's findings. The court below must have abused its discretion in making such findings.
ISSUES PRESENTED
Appellant raises four points of contention for the consideration of this Court. First, she alleges that this matter should be remanded for an additional finding of fact regarding the operability of her car on the night of her arrest. Since her conviction, tile Delaware Supreme Court has ruled that one may not be found guilty of driving under the influence when one is in "actual physical control" of an inoperable vehicle. Bodner v. State, Del. Supr., 752 A.2d 1169, 1173 (2000). Second, the appellant contends that the court below erred by not ruling that Chambers had effected an arrest at the time that he handcuffed her and took her to the station, and that there was no probable cause for this arrest. Third. she claims that the court abused its discretion when it permitted testimony on the additional field tests, which were conducted at tile Troop after Casey's arrest. Finally, Casey argues that the court again abused its discretion by finding that there was adequate evidence to convict her for Driving Under the Influence.
For the reasons below, this Court finds no discernable merit in any of the appellant's contentions and hereby upholds the findings and rulings of the Court of Common Pleas. In making its findings, the court below exercised reasonable discretion. As a result of credibility determinations in flavor of the prosecution, the evidence presented was suffici ent to support conviction and will therefore not be disturbed by this Court.
DISCUSSION
Applicability of Bodner
In Bodner, the Supreme Court was confronted with a situation where the defendant was convicted of DUI when she was originally the passenger in a vehicle driven by someone who got the car stuck on a set of railroad tracks. After the driver fled, the defendant got behind the wheel and attempted to remove the car from the tracks, but was unable to do so. She was convicted under the DUI statute, 21 Del. C., § 4177, for having "actual physical control" of the vehicle. In reversing the conviction. Justice Holland wrote." . . . A person may not be properly convicted of driving while under the influence of alcohol by having actual physical control of an inoperable vehicle." Therefore, the operability of a vehicle is one factor the finder of fact must consider when determining guilt or innocence of a defendant in a DUI prosecution.
The defense in this case urges that this Court must remand the issue as to the operability of Casey's car at the time the officer arrived at the scene for a finding of fact by the court below. No such step is necessary. Under the standard of review, this Court must defer to findings if" any rational trier of fact could have found the evidence sufficient to establish the essential elements of the offense beyond a reasonable doubt." Williams v. State, Del. Supr., 539 A.2d 164 (1988). In doing so, this Court must view the evidence in a light most favorable to the prosecution.
While it is clear from the record and the decision of the Court of Common Pleas that the trial judge did not make a specific finding of fact whether Casey's vehicle was operating when Trooper Chambers arrived, it is equally apparent that the trial judge made a definitive credibility judgement. "The Court finds the trooper's testimony to be persuasive, despite Casey's assertion that since he could not recall the nature of the problem with her vehicle that night, the rest of his recollection of the facts should be questioned as well. In fact the Court was impressed with the quality of the trooper's recollection considering the time lapse between the arrest (2/20/99) and his testimony at trial (12/7/99)." State v. Casey, Del. CCP, Cr. A. No. S99-05-894, Beauregard, J. (January 13, 2000) at 4. The trial judge was in a position to assess the demeanor and veracity of the witnesses, and she accepted the trooper's testimony as the most credible. Therefore, this credibility determination by the trial court shall not be disturbed upon review.
The trial judge weighed the conflicting testimony and believed that there was greater merit in the Trooper's recollection. Even assuming, arguendo, that tile trial court completely accepted all of Chamber's testimony, including that Casey could not start the car at all, Bodner is inapplicable. Trooper Chambers testified that Casey told him she had just broken down minutes before he arrived. He further testified that she admitted to driving from the bowling alley to the location where the car became disabled. The operability of Casey's vehicle, which certainly would have been of concern had the court below given greater regard for her version of events, is a false issue since the trial judge did not accept the "drinking after driving" defense proffered by Casey.
This is not the situation contemplated by Bodner. There the vehicle that Bodner took "actual physical control" of was already rendered potentially inoperable because it was stuck on the railroad tracks. Here the trial judge believed. and the record supports, that Casey had control of the vehicle prior to it having mechanical difficulties. Specifically, the Court stated that it was "convinced beyond a reasonable doubt that Casey [was] guilty of having actual physical control of a vehicle while under the influence of alcohol." Casey, supra, at 4. Implicit in that statement is the notion that the court rejected Casey's "driving before drinking" defense, and therefore rendered the need for an express finding of vehicle operability moot.
Whether or not it was actually inoperable, the Supreme Court said, is for the consideration of the trier of fact.Bodner, supra.
Even were this Court to find some merit in the idea that the issue decided in Bodner is somehow of concern here, it would not be necessary for this Court to remand the case back to the Court of Common Pleas, or even to consider the matter at all. While the Supreme Court ruled onBodner at the time this direct appeal was pending, the case did not open any new legal avenue that was not already at the disposal of Casey in making her defense at trial. Bodner simply says that the Superior Court erred in failing to give an instruction to the jury to consider Bodner's defense of vehicle inoperability. Bodner, supra.
The case did not create a new defense. Casey could have argued below that her vehicle was inoperable and therefore she could not have been guilty of violating § 4177. but she did not. Claims and defenses not raised at the trial court are considered waived and may not be considered on appeal unless plain error is evident. Sullivan v. State. Del. Supr., 636 A.2d 931 (1994). cert. den. 115 S.Ct. 110 (1994). No such error presents itself in this case.
In fact Casey seems to imply in her testimony that Trooper Chambers assessment of her cars problem was worse than it really was. She stated "I never attempted to start the car. There was nothing wrong with my car starting. My problem that evening was that my tire blew out. There was nothing mechanically wrong with the car. . . . The officer failed to even find out what the problem with the car was. He never even bothered to ask me". Transcript at 243. Casey casts doubt on the credence of claiming the vehicle was inoperable. Certainly, if the problem was a flat tire, it is more operable than if Chambers was correct and she could not start it that night. A flat tire does not render a car immobile (and likely even more dangerous to the public if operated with a flat), whereas not being able to start it may.
Arrest and Probable Cause
Casey claims that the trial court erred as a matter of law when it failed to recognize that a custodial arrest had taken place at the time Trooper Chambers handcuffed her and placed her in the patrol car for transport to the Troop. She further asserts that probable cause did not exist at that time to allow for an arrest. For that reason she asks that this Court set aside her conviction.
The first matter is easily disposed of. As the State points out in its brief. the trial judge expressly found the arrest took place at the time Casey was handcuffed and placed in the patrol car. The trial judge stated, "It is absolutely clear to me that Miss Casey was under arrest at 1:19, when she was handcuffed, in the police vehicle, taken from the scene of the stop of her car, and into the police station." Transcript at 90. As the trial judge pointed out, this detention has the classic indicia of a custodial arrest. No error of law was committed in determining that Casey was under arrest at this time.
As to the probable cause determination. I can find no error in dismissing the suppression motion because probable cause appears to have existed. Probable cause determinations, as a question of law, are examined de novo by this Court upon review. State v. Maxwell. Del. Supr., 624 A.2d 926 (1993). Probable cause is measured on a case by case basis, wherein viewing the totality of circumstances a reasonably prudent person would have sufficient information to conclude that it is a fair probability that the defendant has committed a crime. Id. at 929-30. That is not the same level of proof necessary to support a conviction. Id,citing, Jarvis v. State, Del. Supr., 600 A.2d 38 (1991).
Here, the trial judge examined a number of factors that led her to the belief that probable cause existed at the time Trooper Chambers placed Casey in his vehicle and transported her to the Troop. After summarizing the testimony of the officer, she made her ruling concerning probable cause, "I look to see what happened up to that point — I have slurred speech, bloodshot eves, an admission of drinking, an open container of alcohol in the vehicle. almost falling getting out of the vehicle, having balance problems throughout the time that we are at the scene. I have three field tests given, one clearly a failure, the first one a pass, notthelessslurred speech, and the last one a failure." Transcript at 115.
Adequate testimony was presented at the hearing to support those observations. The trial judge carefully examined each of the factors the officer had suggested as evidence of impairment. See generally, Transcript at 111-5. In reaching its conclusion in this manner, the trial court did not abuse its discretion.
Furthermore, upon review of the transcript, this Court agrees that Trooper Chambers was justified in believing that Casey was impaired and that probable cause existed to arrest her and transport her to the Troop for further testing. The Trooper observed Casey nearly fall out of the car when he pulled in behind her, and she had balance problems thoughout their roadside encounter. Transcript at 24. He noticed that her breath smelled of alcohol, and she admitted she had been drinking. Id. at 25 26. Her eyes were observed as "bloodshot and glassy." Id. at 25. When she spoke with the officer, her words were extremely slurred. Id. While she performed well on the alphabet test, she exhibited slurred speech during the recital. Id. at 33. However, her execution of the number-count and leg-stand tests was poor and rated a failure by Chambers. Id. at 34-44. Viewing all of these factors, it is clear that Trooper Chambers was presented with adequate circumstances to raise his suspicion of impairment to the level of probable cause.
Admission of Additional Field Tests after Probable Cause Established
Casey objects to the admission of the field test conducted at the Troop. Her contention is that, once probable cause was established and she was placed under arrest at the scene, it was improper for the officer to have administered additional field tests, which are designed to aid in the probable cause determination. Further, she claims that any evidence resulting from the test after arrest should have been suppressed for failure to advise her of her Miranda rights. The State opposes this view and argues that it was appropriate use of the trial court's discretion to allow the testimony concerning the test at the Troop.
This Court can find no legally supportable proposition that would require the trial judge's decision in this regard to be overruled. Miranda warnings, while necessary when a custodial situation is at hand such as the one presented in this case, only apply to statements which are testimonial in nature. The right against self-incrimination does not extend to evidence as to the defendants conduct or demeanor, even while in custody. State v. Bliss, Del. Supr., 238 A.2d 848 (1968): State v. Durrant, Del. Supr., 188 A.2d 526 (1963): State v. Smith, 91 A.2d 188 (1952). Field sobriety tests, as a measure of the ability of a defendant to conduct himself or herself in a manner that does or does not indicate impairment, are not "testimonial". Smith at 192; State v. James, Del. Fam. Ct., 488 A.2d 118 (1984).
Casey makes much of the fact that the walk and turn test was undertaken after the point that the court below found that she was under arrest. Probable cause was already established. and, following her argument, that would make this last test superfluous for its intended purpose of helping establish probable cause. She cites Howard v. Voshell, Del. Super., 621 A.2d 804 (1992) for the proposition that because this evidence was gathered after her arrest, it cannot be considered. The appellant asks too much of this case. Howard dealt with the situation where an officer made an arrest and then attempted to use information acquired after the arrest to bolster the probable cause. Id. at 807. Such is not the case here.
As the court below pointed out, any test to discern intoxication, so long as voluntarily consented to. is simply additional evidence for the trier of fact to consider in assessing whether the defendant is guilty of the offense beyond a reasonable doubt. Transcript at 121. Once beyond the probable cause determination, any additional evidence elicited from more field tests goes not to the weight of evidence necessary for probable cause, but to that needed for a guilt or innocence inquiry. The trial court did not abuse its discretion by allowing testimony concerning the test, and made it clear that this information would be used only for the weight of the evidence in assessing guilt beyond a reasonable doubt. See Transcript at 123.
That said, this Court notes that if the lower court had refused to allow the test, that action also may have been within its discretion under the Rules of Evidence. While I have been unable to locate any case law that supports the appellant's notion that field tests conducted somewhere other than in the field at the time of first officer-motorist contact should be disallowed, this opinion is not to be construed that they must be admitted into evidence as a matter of law. It is incumbent upon the sound discretion of the trial judge of a particular case to determine whether the circumstances surrounding the post-arrest administration of such tests warrant admission of the results.
The facts of this case are likely to be encountered rarely. The officer apparently did not believe he had arrested the defendant until sometime after he had taken her to the Troop. The trial court determined, correctly, that the arrest had been effected earlier. Trooper Chambers administered the walk and turn test with the consent of Casey. Under other circumstances, the same trial court may have viewed things differently and still been within its discretion.
Evidence Necessary for Conviction
Following the standard set forth in Williams, above, this court is required to review the evidence in the light most favorable to the State and conclude whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Upon review of the record and the written decision of the trial judge below, it is clear that substantial evidence existed to support Casey's conviction and the court did not abuse its discretion.
The court considered not only that the evidence presented to establish probable cause discussed above, but also the defendant's demeanor and the testing conducted at the Troop. The trial judge made a clear credibility determination to accept the testimony of Trooper Chambers. This Court cannot reject such a finding unless it is found to be clearly erroneous such that justice requires its rejection. State v. Cagle, Del. Supr., 332 A.2d 140 (1974). In deference to the trial court's assessment of the witness before it, I cannot believe such error. In light of this credibility determination and the evidence adduced at trial, it appears that a reasonable trier of fact could have found sufficient evidence to find guilt beyond a reasonable doubt.
CONCLUSION
For the foregoing reasons, this Court rejects appellant's contentions, and the decision to the Court of Common Pleas is hereby affirmed.
IT IS SO ORDERED.
E. Scott Bradley