Opinion
CRIMINAL ACTION NOS. 99-08-0167 Driving A Vehicle Under the Influence of Alcohol; 99-08-0168 Driving After Judgment Prohibited; 99-08-0172 Failure to Stop at Stop Sign; 99-08-0173 Failure to Have Insurance Identification in Possession; 99-08-0174 Failure to Report Accident to Police Agency
Trial Date: December 16, 1999.
BEFORE THE HONORABLE T. HENLEY GRAVES AND A JURY
Stephanie Tsantes, Esquire, Department of Justice, Georgetown, Delaware, attorney for the State; and
Ruth M. Smythe, Esquire, attorney for defendant.
DUTY OR FUNCTION OF JUDGE AND JURY
Members of the jury, you have now heard all of the evidence that is going to be presented in this case, and in a few minutes you will hear the arguments of the attorneys for the State and for the defendant. I shall not review the evidence that has been presented to you because you, the jury, are the sole and exclusive judges of the facts of the case, of the credibility of the witnesses, and of the weight and value of their testimony.
I shall now instruct you as to the applicable principles of law governing this case. No single one of these instructions states all of the law applicable to this case. Therefore, you should listen and consider all of these instructions together in reaching your verdict. It is your duty as jurors to follow the law as I shall state it to you. You are not to be concerned with the wisdom of any rule or law stated by me. You must apply the law as instructed even if you do not agree with that law because it is the law of this State as enacted by the Legislature.
It is your duty to determine the facts and to determine them only from the evidence presented to you. You are to apply the law, as I will instruct you, to the facts and, in this way decide the case.
If, in these instructions, any rule, direction or idea is stated in a manner which appears to give it more significance than other instructions, no such emphasis is intended by me, and none should be inferred by you.
At times throughout this trial, I have been called upon to pass upon the question of whether or not certain evidence may be properly admitted. It is the duty of a lawyer to object to evidence which she or he believes may not properly be offered and you should not be prejudiced in any way against a lawyer who makes objections or the party she or he represents. You are not to be concerned with the reasons for such rulings and are not to draw any inferences from the rulings. Whether evidence is admissible is purely a question of law. In admitting evidence to which an objection is made, I do not determine what weight should be given to such evidence, nor do I pass upon the credibility of the witnesses. Any offer of evidence that has been rejected by me, you of course, must not consider. As to any questions to which an objection was sustained, you must not speculate upon what the answer might have been.
The defendant is charged with one count of one count of Driving a Vehicle Under the Influence of Alcohol, one count of Driving After Judgment Prohibited; one count of Failure to Stop at Stop Sign; one count of Failure to Have Insurance Identification in Possession; and one count of Failure to Report Accident to Police Agency. The defendant has pled "not guilty" to these charges.
The information is a mere accusation against the defendant. It is the charging document. It is not, in itself, any evidence of the guilt of the defendant, and you should not allow yourselves to be influenced in any way, however slightly, by the fact that an indictment has been filed against the defendant.
In these instructions, I will explain the elements of the offense(s) charged in the indictment. The elements of an offense are those physical acts, attendant circumstances, results and states of mind which are specifically included within the definition of the offense in the Criminal Code. If words are defined in the Criminal Code, I will give you their Code definitions. Otherwise, you should give words their commonly accepted meanings. I will also explain the burdens of proof the law imposes upon the State as well as other aspects of your function as jurors. Finally, I will explain the possible verdicts.
INFORMATION
The Attorney General of the State of Delaware by information makes that MARK R. KOESTER did commit the following offenses, to wit:
COUNT 1 — DRIVING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL — S99-08-0167
MARK R. KOESTER, on or about the 8th day of August, 1999, in the County of Sussex, State of Delaware, did drive a motor vehicle while under the influence of alcohol, in violation of Title 21 Del. C. § 4177(a)(1) of the Delaware Code.
COUNT 2 — DRIVING AFTER JUDGMENT PROHIBITED — S99-08-0168
MARK R. KOESTER, on or about the 8th day of August, 1999, in the County of Sussex, State of Delaware, did drive a motor vehicle after having been found to be an Habitual Offender in the Court of Common Pleas of the State of Delaware, on 11/29/95, and while the judgment of that Court prohibiting him from operating a motor vehicle remained in effect, in violation of Title 21 Del. C. § 2310(a) of the Delaware Code.
COUNT 3 — FAILURE TO STOP AT STOP SIGN — S99-08-0172
MARK R. KOESTER, on or about the 8th day of August, 1999, in the County of Sussex, State of Delaware, did drive on County Road 64, approximately one mile south of the Town of Gumboro, and failed to stop at an intersection which was indicated by a stop sign, before entering the said intersection, in violation of Title 21 Del. C. § 4164(a) of the Delaware Code.
COUNT 4 — FAILURE TO HAVE INSURANCE IDENTIFICATION IN POSSESSION S99-08-0173
MARK R. KOESTER, on or about the 8th day of August, 1999, in the County of Sussex, State of Delaware, on County Road 64, 1 mile south of the Town of Gumboro, drive a motor vehicle upon the public highways of the State of Delaware without having his insurance card in his possession, in violation of Title 21 Del. C. § 2118(p) of the Delaware Code.
COUNT 5 — FAILURE TO REPORT ACCIDENT TO POLICE AGENCY S99-08-0174
MARK R. KOESTER, on or about the 8th day of August, 1999, in the County of Sussex, State of Delaware, did being the driver of a vehicle involved in an accident that appears to have involved a driver whose physical ability was impaired as the result of the use of alcohol, did fail to report said accident immediately to the nearest police agency, in violation of Title 21 Del. C. § 4203 (a)(3) of the Delaware Code.
s/M. JANE BRADY ATTORNEY GENERAL
__________________________ DEPUTY ATTORNEY GENERAL
DATED: September 13, 1999 abw
COUNT 1 — DRIVING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL
Before the defendant may be found guilty of driving a motor vehicle while under the influence of alcohol, the State must prove both of the following two elements beyond a reasonable doubt:
1. The defendant drove a motor vehicle at or about the time and place charged. "To drive" shall include driving, operating or having physical control.
AND
2. The defendant drove the vehicle while under the influence of alcohol. Not every person who has consumed alcoholic beverages is under the influence as that phrase is used here. "While under the influence" shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle. It is not necessary that the person be "drunk" or "intoxicated." Nor is it required that impaired ability to drive be demonstrated by particular acts of unsafe driving. What is required is proof that the defendant's ability to drive safely was impaired by alcohol.
Police officers are permitted to give their opinion as to whether a person observed by them was under the influence of intoxicating liquor. You are not bound by an officer's opinion, but should give this evidence such weight as you deem it entitled to receive, considering the facts upon which he based his opinion the other evidence admitted by the Court and the various factors used to judge the credibility of every witness.
The law provides that a person who drives a motor vehicle while his blood alcohol concentration is one tenth of one percent or more by weight, as shown by a chemical analysis of a breath sample taken within four hours of operating a motor vehicle, shall be guilty of operating a motor vehicle while under the influence of intoxicating liquor. This provision does not preclude a conviction based on other evidence.
This Court recognizes that the testing device used in this case employs a scientifically sound method of measuring the alcohol content of a person's blood. The State is not required to prove the scientific reliability of the test but is required to establish that the device was in good working order and was properly operated by a qualified person.
In order to find the defendant guilty of the offense charged, you must be satisfied beyond a reasonable doubt that the defendant was under the influence of alcohol while driving a motor vehicle. To the extent that the State relies upon a scientific test for measuring the blood alcohol content of the defendant's blood that test (1) must have been taken within four hours of the driving of the motor vehicle and (2) the results of the test must demonstrate beyond a reasonable doubt that there was one tenth of one percent or more by weight of alcohol in the defendant's blood at the time of the driving.
If you find that each element of the offense has been proven beyond a reasonable doubt, your verdict should be guilty. If you do not so find, your verdict should be not guilty.
COUNT 2 — DRIVING AFTER JUDGMENT PROHIBITED
In order to find the defendant guilty of Driving After Judgment Prohibited, you must find that the following two elements have been proven beyond a reasonable doubt:
1. The defendant was operating a motor vehicle.
AND
2. Defendant was prohibited from the operation of a motor vehicle pursuant to the judgment of a Court. The judgment remained in effect at the time of the offense.
If you find beyond a reasonable doubt that the State has proved each element of this offense, then you must find the defendant guilty. If you do not so find or if you have a reasonable doubt as to the element of the offense, you must find the defendant not guilty.
COUNT 3 — FAIL TO STOP AT A STOP SIGN
In order to find the defendant guilty of failing to stop at a stop sign, you must find that the following elements have been established beyond a reasonable doubt:
1. The defendant did operate a motor vehicle.
AND
2. The defendant did failure to stop for a stop sign at an intersection on Court Road 64, approximately one mile south of the Town of Gumboro.
If, after considering all of the evidence, you find that the State has proven that the defendant acted in such a manner as to satisfy all of the elements of the offense of Fail to Stop at a Stop Sign, on the date and place stated in the information, you must find the defendant guilty. If you do no so find, you must find the defendant not guilty.
COUNT 4 — FAILURE TO HAVE INSURANCE CARD IN POSSESSION
In order to find the defendant guilty of failure to have insurance card in possession, you must find that all of the following elements have been established beyond a reasonable doubt:
1. The defendant did operate a motor vehicle.
AND
2. The defendant failed to have the insurance identification card issued for said vehicle in his possession.
If, after considering all of the evidence, you find that the State has proven that the defendant acted in such a manner as to satisfy all of the elements of the offense, you must find the defendant guilty. If you do not so find, or if you have a reasonable doubt, you must return a verdict of not guilty.
COUNT 5 — FAILURE TO REPORT AN ACCIDENT TO POLICE AGENCY
In order to find the defendant guilty of failure to report an accident, you must find that all of the following elements have been established beyond a reasonable doubt:
1. The defendant did operate a motor vehicle.
AND
2. The defendant's physical ability was impaired as the result of the use of alcohol.
AND
3. The defendant was involved in an accident and the defendant did fail to report the accident to the police agency which had primary jurisdictional responsibility for that location.
If, after considering all of the evidence, you find that the State has proven that the defendant acted in such a manner as to satisfy all of the elements of the offense, you must find the defendant guilty. If you do not so find, or if you have a reasonable doubt, you must return a verdict of not guilty.
PERMITTED INFERENCE OF STATE OF MIND
I have instructed you that an element of the offense charged is that the defendant acted with a required state of mind or with a particular belief. It is, of course, difficult to know what is going on in another person's mind. Therefore, our law permits the jury to draw an inference, or, in other words, to reach a conclusion about the defendant's state of mind from the facts and circumstances surrounding the acts the defendant is alleged to have done. In reaching this conclusion, you may consider whether a reasonable man in the defendant's circumstances would have had or lacked the requisite state of mind or belief. You should, however, keep in mind at all times that it is this defendant's state of mind or belief which is at issue here, and in order to convict the defendant, you are required to find beyond a reasonable doubt that the state of mind or belief required for guilt existed.
PRESUMPTION OF INNOCENCE — REASONABLE DOUBT
The law presumes every person charged with a crime to be innocent. This presumption of innocence requires a verdict of not guilty, unless you are convinced by the evidence that the defendant is guilty beyond a reasonable doubt.
The burden of proof is upon the State to prove all of the facts necessary to establish the crime charged beyond a reasonable doubt.
Reasonable doubt is a practical standard.
On the one hand, in criminal cases the law imposes a greater burden of proof than in civil cases. Proof that a defendant is probably guilty is not sufficient.
On the other hand, there are very few things in this world that we know with absolute certainty. Therefore, in criminal cases, the law does not require proof that overcomes every possible doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. Therefore, based upon your conscientious consideration of the evidence, if you are firmly convinced that the defendant is guilty of the crime charged, you should find the defendant guilty. If, on the other hand, you think there is a real possibility or, in other words, a reasonable doubt that the defendant is not guilty, you must give the defendant the benefit of the doubt by finding the defendant not guilty.
DIRECT AND CIRCUMSTANTIAL EVIDENCE DEFINED
There are two types of evidence from which a jury may properly find the facts of a case. One is direct evidence. The testimony of an eyewitness is an example of direct evidence. The other is indirect or circumstantial evidence; that is, the proof of facts or circumstances from which the existence or non-existence of other facts may reasonably be inferred. In this case, the State and the defendant have relied in part upon circumstantial evidence.
It is not unusual in a criminal case to rely upon circumstantial evidence.
To warrant a conviction, all of the evidence, direct and circumstantial, must lead you to conclude beyond a reasonable doubt that the accused committed the offenses charged.
ARE LIMITING INSTRUCTIONS NECESSARY? (GETZ)
Was there 404(b) Getz evidence or other evidence to have limiting instruction.
ARE LIMITING INSTRUCTIONS NECESSARY? (Hearsay evidence)
If hearsay evidence is determined, is there a need for a limiting instruction? Was hearsay introduced for specific purpose?
ARE LIMITING INSTRUCTIONS NECESSARY? (3507 TESTIMONY)
Limiting instructions advising from 3507 testimony, i.e, is a 3507 instruction necessary?
If accomplice liability — liability for conduct of another, then go to J. Holland's Chance decision.
CREDIBILITY OF WITNESSES AND CONFLICTS IN TESTIMONY
You are the sole judge of the credibility of each witness who has testified and of the weight to be given to the testimony of each.
If you should find the evidence in this case to be in conflict, then it is within your province to reconcile the conflicts if you can so as to make one harmonious story of it all. If you cannot reconcile these conflicts, then it is your duty to give credit to that portion of the testimony which you believe is worthy of credit, and you may disregard that portion of the testimony which you do not believe to be worthy of credit.
In considering the credibility of witnesses and in considering any conflict in testimony, you should take into consideration each witness' means of knowledge, strength of memory and opportunity for observations, the reasonableness or unreasonableness of the testimony, the consistency or inconsistency of the testimony, the motives actuating the witness, the fact, if it is a fact, that the testimony has been contradicted, the witness' bias, or prejudice, or interest in the outcome of this litigation, the ability of the witness to have acquired the knowledge of the facts to which the witness testified, the manner and demeanor of the witness while on the witness stand, and the apparent truthfulness of the testimony, and any and all other facts and circumstances shown by the evidence which affect the credibility of the testimony.
ATTORNEY'S BELIEF OR OPINION
The role of an attorney is to zealously and effectively advance the claims of the party he or she represents within the bounds of the law. An attorney may argue all reasonable inference from evidence in the record. However, it is not proper for an attorney to state his or her personal opinion as to the truth or falsity of any testimony or evidence or his or her opinion as to the guilt or innocence of an accused. What an attorney personally thinks or believes about the testimony or evidence in a case is not relevant, and you are instructed to disregard any personal opinion or belief concerning testimony or evidence which an attorney may have offered during the course of the trial.
Further, what an attorney states in his or her opening or closing arguments is not evidence. Evidence consists of testimony from witnesses testifying from the witness stand and exhibits introduced through their testimony. It is this evidence only which you may consider in reaching your verdicts.
SYMPATHY
I instruct you that your verdict must be based solely and exclusively on the evidence in the case; that you cannot be governed by passion, prejudice, sympathy, public opinion or any motive whatever except a fair and impartial consideration of the evidence; and that you must not, under any circumstances, allow any sympathy which you might have or entertain for any of those involved to influence you in any degree whatsoever in arriving at your verdict.
ELECTION OF DEFENDANT NOT TO TESTIFY
Ladies and gentlemen of the jury, the defendant has chosen not to testify. The defendant has a constitutional right to testify or not to testify as he chooses. That fact that the defendant did not testify must not be construed by you as an indication that the defendant is guilty of the crime charged. Like every other person charged with an offense, this defendant is presumed innocent until proven guilty beyond a reasonable doubt.
Furthermore, because the burden of proof, as described earlier, is upon the State to prove the existence of all elements of the crime beyond a reasonable doubt, the defendant is not required to present any evidence on his own behalf. You shall not draw any inference of guilt or innocence from the defendant's choice not to testify.
JURY'S DELIBERATIONS
Before concluding, I want to say a few words about your deliberation process. How you conduct your deliberations is solely within your province. However, I would like to suggest that you discuss the issues fully, giving all jurors a fair opportunity to express their views, before committing yourself to a particular position. Each of you has a duty to consult with the others with an open mind and to deliberate with a view toward reaching an agreement. Each of you should decide the case for yourself, but only after impartially considering the evidence with your fellow jurors. You should not surrender your honest convictions solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict, but you should not hesitate to re-examine your own view and change your opinion if you are persuaded by another view.
POSSIBLE VERDICTS — UNANIMITY
The possible verdicts are as follows:
As to Count 1 — Driving a Vehicle Under the Influence of Alcohol:
1. Guilty as charged; or 2. Not Guilty.
As to Count 2 — Driving After Judgment Prohibited:
1. Guilty as charged; or 2. Not Guilty.
As to Count 3 — Failure to Stop at Stop Sign:
1. Guilty as charged; or 2. Not Guilty.
As to Count 4 — Failure to Have Insurance Identification In Possession:
1. Guilty as charged; or 2. Not Guilty.
As to Count 5 — Failure to Report Accident to Police Agency:
1. Guilty as charged; or 2. Not Guilty.
All twelve jurors must unanimously agree as to any verdict returned by the jury.
To reach a verdict of guilty, you must find the State has proved the elements of a particular offense unanimously and beyond a reasonable doubt.
When you have agreed upon your verdicts, notify the bailiff, and the bailiff will inform you when to return to the courtroom. Upon your return, the clerk will ask the foreman as to each charge, "What is the jury's verdict?" and your foreman will announce the verdict.