Opinion
ID No. 9903012717.
Submitted: December 7, 1999.
Decided: March 7, 2000.
Defendants Motion for New Trial — Denied.
Adam D. Gelof, Esquire; Deputy Attorney General; 114 East Market Street, Georgetown, Delaware 19947.
James E. Liguori, Esquire; Liguori, Morris Redding, 46 The Green Dover, Delaware 19901.
Counsel:
This is the Court's decision on Defendant's Motion for New Trial pursuant to Superior Court Criminal Rule 33.
On December 1, 1999, Defendant, James N. Green, Jr., was convicted of driving a vehicle while under the influence, a fourth offense, and driving without a license. The motion for a new trial raises the following issues:
1. The trial was replete with prosecutorial misconduct so pervasive that a fair trial could not be conducted.
2. Improper and prejudicial comments introduced by the prosecution were so seminal and insidious in nature to the issues before the jury that a fair verdict could not be rendered.
Superior Court Criminal Rule 33 states in pertinent part: "The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. . . ." A motion for a new trial on the ground that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial court and the action of that court will be reviewed only when there is a clear abuse of discretion.
Hutchins v. State, Del. Supr., 153 A.2d 204 (1959).
Prosecutorial misconduct is examined by the use of a three-prong test as adopted by the Supreme Court in Hughes v. State. In Hughes, the court utilized a specific test for determining whether improper prosecutorial remarks required a reversal of a conviction because they prejudicially effected the substantial rights of the accused. The test requires the court to determine: (1) the centrality of the issue effected by the alleged error; (2) the closeness of the case; and (3) the steps taken to mitigate the effects of alleged error.
Del. Supr., 437 A.2d 559 (1981).
This Court has reviewed in detail the areas of testimony during the trial, as well as the summation of the parties, to ascertain whether the Defendant should be accorded a new trial in the interest of justice. The trial was conducted by a relatively new prosecutor and the Defendant was represented by a very able and experienced defense attorney. The Court finds that both parties were very well-prepared and zealous in their respective offense and defense in this matter. As a consequence, and typically, attorneys sometimes extend the bounds of acceptable behavior at trial. However, in those instances where the parties may exceed the bounds, the Court finds that no prejudicial error occurs in those areas where the Court properly instructs the jury to disregard statements and instructs the jury to draw no inference from such testimony.
The Defendant raises only one specific concern in the motion. At trial, the Prosecutor asked if the Defendant was convicted of a felony. There was a clear disagreement by counsel as to whether a previous third conviction for DUI was a felony. After consultation of the law, the Court determined that the Prosecutor was in error. However, since the Defendant never testified that he was in fact guilty of a felony, the Defendant was not prejudiced by the question asked by the Prosecutor. Furthermore, the Court did instruct the jury to disregard any comments by the Prosecutor that referred to Mr. Green as a felon. The Court has reviewed the remarks and conduct of the State using the Hughes test and finds that the substantive rights of the Defendant have not been prejudicially effected.
In the case at bar, the Prosecutor, in his summation, also made certain references to the intoxicated status of the Defendant and stated that "every DUI has a defense." In both instances, the Court gave curative instructions to the jury to negate the effects of the alleged error. The State's remarks did not prejudicially effect the rights of Mr. Green since they were quickly dealt with and corrected by the Court. In addition, there was a strong body of evidence to warrant a jury to find for the prosecution and against the Defendant in this case.
In conclusion, the Court finds that the defense has failed to show that a reasonable probability exists that but for the Prosecution's alleged errors, the results of these proceedings would have been different or that the judgment or outcome was so seriously compromised so that a just and fair verdict could not have been rendered. Therefore, Defendant's motion is hereby denied .
IT IS SO ORDERED.
dmh oc: Prothonotary xc: Order Distribution