From Casetext: Smarter Legal Research

State v. McCoy

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
Feb 21, 2012
ID # 0909009694 CLS (Del. Super. Ct. Feb. 21, 2012)

Opinion

ID # 0909009694 CLS

02-21-2012

STATE OF DELAWARE, Appellant, v. ERIN H. McCOY Appellee.

Paul R. Wallace, Esq., Morgan T. Zurn, Esq., Department of Justice, Carvel State Office Building, Wilmington, DE 19801. Attorneys for Appellant. Louis B. Ferrara, Esq., Ferrara & Haley, P.O. Box 118, Wilmington, DE 19899. Attorney for Appellee.


On Appeal from the Court of Common Pleas.

REVERSED and REMANDED.


ORDER

Paul R. Wallace, Esq., Morgan T. Zurn, Esq., Department of Justice, Carvel State

Office Building, Wilmington, DE 19801.

Attorneys for Appellant.

Louis B. Ferrara, Esq., Ferrara & Haley, P.O. Box 118,

Wilmington, DE 19899.

Attorney for Appellee.

Introduction

Before the Court is the State's appeal from a decision of the Court of Common Pleas excluding the admission of Intoxilyzer calibration sheets ("logs") into evidence through Corporal Jerold M. Huber ("Corporal Huber"). The Court has reviewed the submissions and the record below. For the reasons that follow, the decision of the Court of Common Pleas is REVERSED and REMANDED.

Background

On September 13, 2009, the Appellee, Defendant below, Erin H. McCoy ("McCoy" or "Defendant") was arrested by Corporal Jerold M. Huber ("Corporal Huber") of the Delaware State Police for driving under the influence of alcohol in violation of 21 Del. C. § 4177(a), and for crossing the center lane line into an opposing lane of traffic, in violation of 21 Del. C. § 4126(a)(3). At the time of the arrest, Corporal Huber was on routine patrol.

Corporal Huber testified at the suppression hearing in the Court of Common Pleas that on September 13, 2009, at approximately 1:13 a.m., he observed Defendant cross the center line of the highway twice, while driving on Philadelphia Pike in Wilmington. Corporal Huber followed the vehicle for approximately a quarter to a half a mile before he initiated a traffic stop. Defendant then turned left into the Wawa located at the intersection of Harvey Road and Philadelphia Pike without incident. Corporal Huber approached the vehicle and asked for the Defendant's license, insurance and registration. At this time, he detected a strong odor of alcohol coming from the vehicle. Defendant and the other passengers of the vehicle admitted to drinking earlier that evening. Corporal Huber noticed Defendant's pupils were dilated, glassy and bloodshot. Corporal Huber asked Defendant to exit the vehicle to perform field sobriety tests. After she initially refused, Defendant exited her vehicle and unsuccessfully performed field sobriety tests. Defendant was transported from the scene to Troop 1 where she consented to an Intoxilyzer test. Defendant's blood alcohol content was above the legal limit. As a result, on November 5, 2009, Defendant was charged, in the Court of Common Pleas, with Driving a Vehicle Under the Influence of Alcohol in violation of 21 Del. C. § 4177(a) and driving her vehicle in the improper lane of traffic in violation of 21 Del. C. § 4126(a)(3).

The record is unclear as to specific facts of the sobriety tests.

On January 12, 2010, Defendant filed a Motion to Suppress based on a lack of Reasonable Articulable Suspicion and Probable Cause. On May 3, 2010, the Court of Common Pleas heard argument pertaining to the Defendant's motion to suppress, which it denied. At the suppression hearing, Corporal Huber testified that he has been employed by the Delaware State Police for 13 years and has performed several hundred DUI arrests. Additionally, Corporal Huber testified that he completed 16 credit hours of police training in Intoxilyzer 5000 certification and 24 credit hours of DUI detection & Horizontal Gaze Nystagmus Certification with the Delaware State Police in February 1995. These certifications were admitted into evidence. Corporal Huber has not completed any updated classes since February 1995.

After the suppression motion was denied, the State requested a motion in limine on the admissibility of the Intoxilyzer calibration logs. The State called Corporal Huber as an "otherwise qualified witness" for admission of the Intoxilyzer logs, into evidence, under the business records exception to the hearsay rule (Delaware Rules of Evidence 803(6)).

At the hearing, Corporal Huber testified that: (1) the Intoxilyzer 5000 EN book is kept in the ordinary course of business for the purpose to show that the calibration of each month is completed to the requisite standard; (2) the book was regularly kept in the Lieutenant's office and all troopers have access to the calibrations for the Intoxilyzer machines; (3) Julie Willey ("Ms. Willey") is the state chemist for the Delaware state police and one of her jobs is to calibrate Intoxilyzer machines for the division; (4) he was familiar with Ms. Willey's signature, because he recognized it on documents; (5) the calibrations were performed on a monthly basis and were recorded once the calibrations were completed; (6) he was not familiar with the process of calibrating the Intoxilyzer machine; (7) he was not familiar with how the Intoxilyzer machines are calibrated generally; (8) he has not observed anyone perform a calibration on an Intoxilyzer machine and; (9) he could not recall whether he observed a calibration at DUI academy.

Based on Corporal Huber's lack of familiarity with the process of calibrating the Intoxilyzer machine and not being able to recall whether he had witnessed the calibration of a machine, the Court ruled that Corporal Huber was not an "otherwise qualified witness" under D.R.E. 803(6). The State then moved to dismiss its case pursuant to 10 Del. C. § 9902(b), as the Intoxilyzer logs were essential to its case.

10 Del. C. § 9902(b) provides: "When any order is entered before trial in any court suppressing or excluding substantial and material evidence, the court, upon certification by the Attorney General that the evidence is essential to the prosecution of the case, shall dismiss the complaint, indictment or information or any court thereof to the proof of which the evidence suppressed or excluded is essential. Upon ordering the complaint, indictment or information or any count thereof dismissed pursuant to the Attorney General's certification, the reasons of the dismissal shall be set forth in the order entered upon the record."

The State provided the Court of Common Pleas with an order on May 5, 2010, stating the motion was made during a pre-trial motion in limine and the evidence was essential to the prosecution of this case. The State requested that the Court of Common Pleas dismiss the indictment pursuant to 10 Del. C. § 9902(b). On June 23, 2010, the trial judge drafted an order which stated that Corporal Huber was not familiar with how the Intoxilyzer machine was calibrated and has not witnessed the calibration of an Intoxilyzer machine. The order further stated that the Attorney General's reliance upon 10 Del. C. § 9902(b) was misplaced and was denied because the motion was made during trial. The State filed this appeal on July 20, 2010.

Parties' Contentions

The Defendant filed a motion to dismiss the appeal for failure to comply with statutory requirements and lack of jurisdiction pursuant to Super. Ct. Crim. R. 39(h). This Court denied the Defendant's motion to dismiss on January 4, 2011, and Defendant was ordered to file an answering brief.

In its opening brief, the State argues that a proper foundation for the admission of the Intoxilyzer calibration logs was established pursuant to D.R.E. 803(6) and that the Court of Common Pleas improperly excluded the logs from evidence. The Defendant responded to the State's opening brief and argued that the evidence was properly excluded because Corporal Huber was not familiar with the calibration logs and as such, the lower court did not abuse its discretion in excluding the evidence. The State filed a response brief to the Appellee's answering brief.

The recent Supreme Court case of Bullcoming v. New Mexico involved a defendant who was charged with driving while intoxicated (DWI). A forensic lab report certified that defendant's blood-alcohol concentration was above the threshold for aggravated DWI. Bullcoming held that defendant had a right to be confronted with the analyst who made the certification, unless the analyst was unavailable at trial, and the accused had an opportunity, pretrial, to cross examine the scientist. This recent decision prompted the Court to ask the parties for additional briefing on the matter to determine if Bullcoming applied to this case. The State and Defendant agree that Bullcoming has no impact on this appeal.

564 U.S. _ (2011).

Id.

Standard of Review

This Court has authority to review decisions made by the Court of Common Pleas pursuant to 11 Del. C. § 5301(c). These appeals must be reviewed on the record provided and shall not be tried de novo This Court will not determine the credibility of the witnesses, make factual findings or weigh evidence. Instead, as an Appellate Court, this Court's role is to correct errors of law and to review the factual findings of the court below to ensure that the decision is sufficiently supported by the record and are the product of an orderly and logical deductive process. This Court reviews evidentiary rulings under an abuse of discretion standard. A Court abuses its discretion if it ignores recognized rules of law or exceeds the bounds of reason, producing an unjust result. Absent a clear abuse of discretion, this Court will not reverse an evidentiary ruling. The burden is on the State to establish a clear abuse of discretion for this Court to reverse the Court of Common Pleas.

10 Del. C. § 1326; See also Super. Ct. Civ. R. 72.

Burris v. Beneficial Delaware, Inc., 2011 WL 2420423, at *1 (Del. Super. Jun. 9, 2011) (citations omitted).

DiSabantino v. State, 808 A.2d 1216, 1220 (Del. Super. Feb. 27, 2002), aff'd 810 A.2d 349 (Del. 2002).

Capano v. State, 781 A.2d 556, 583 (Del. 2001).

Harper v. State, 970 A.2d 199, 200 (Del. 2009) (citing Kiser v. State, 769 A.2d 736, 739 (Del. 2001).

Id.

Id. at 201.

Discussion

In this case, the State has established that the Court of Common Pleas committed legal error when it held that Corporal Huber did not meet the foundational requirements of an "other qualified witness" under D.R.E. 803(6).

D.R.E. 803(6) is almost identical to F.R.E. 803(6). See State v. McCabe, 1995 WL 562130 (Del. Super. Aug. 14, 1995). Thus, federal case law is instructive on the issue of whether Corporal Huber is a qualified witness under D.R.E. 803(6).

In order for an intoxilyzer test to be admitted into evidence, the State must first establish that the intoxilyzer machine functioned properly before and after the Defendant's breath was tested. A State chemist is the individual responsible for ensuring the proper functioning of the intoxilyzer machine, but there is no requirement that the chemist testify at trial. Instead, the State can admit the calibration logs under the business records exception to the hearsay rule.

Talley v. State, 841 A.2d 308 (Del. 2003) (TABLE).

State v. Munden, 891 A.2d 196, 200 (Del. Super. 2005).

Talley, 841 A.2d at 2.

The business records exception to hearsay permits the admission of Intoxilyzer records without the testimony of the State chemist if: "(a) the record was prepared in the regular course of business, (b) it was made at or near the time of the event, (c) the information and circumstances of recordation are trustworthy, and (d) a custodian or other qualified witness is available to testify." "The purpose of the business records exception is to broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness." "The rationale for the exception is founded on the theory that records which are properly shown to have been kept as required[,] normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence." The term "other qualified witness" should be construed broadly.

Talley v. State, 841 A.2d 308 (Del. 2003) (TABLE) (internal quotations and citations omitted); D.R.E. 803(6).

Cavalry Portfolio Services, LLC v. Kumbaris, 2011 WL 6057861, at *3 (N.J. Super. Ct. App. Div. Dec. 7, 2011) (internal quotations omitted)(quoting Liptak v. Rite Aid, Inc., 673 A.2d 309, 319 (N.J. Super. Ct. App. Div. Apr. 2, 1996).

Liptak, 673 A.2d at 319 (internal quotations omitted) (quoting State v. Matulewicz, 499 A.2d 1363, 1364 (N.J. Nov. 21, 1985).

U.S. v. Console, 13 F.3d 641, 657 (3d Cir. 1993).

While the Rule requires that a custodian or qualified witness testify that the requirements of the business records exception have been met, there is no requirement that the "qualified witness" must have personally participated in the document's creation, observed the document's creation, or even know who recorded the information. The phrase "qualified witness" requires only someone who understands the system. Therefore, in admitting documents under the business records exception to the hearsay rule, the other qualified witness does not have to have personal knowledge of the entries in the records.

United States v. Moore, 791 F.2d 566, 574 (7th Cir.1986); Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994); See also United States v. Keplinger, 776 F.2d 678, 693 (7th Cir.1985).

Moore, 791 F.2d at 575 (citing Keplinger, 776 F.2d at 694); U.S. v. Wables, 731 F.2d 440, 449 (7th Cir. 1984).

Wables, 731 F.2d at 449.

In addition to the officer's familiarity with the record-keeping system, to suffice as an "other qualified witness," Corporal Huber must have testified that the State chemist had the knowledge to make accurate statements, that the chemist recorded the statements simultaneously with the actions that were taken, the records were created in the regular course of business activity and the business regularly kept the records.

Trawick v. State, 845 A.2d 505, 508-09 (Del. 2004) (internal quotations and citation omitted).

In Trawick v. State, this Court held that the chief of the felony narcotics unit in Baltimore City, Maryland, was a qualified witness because he had "an adequate familiarity with the records and recordkeeping process such that he would be a person qualified to authenticate these records for the purpose of the business records exception." The decision was affirmed by The Supreme Court of Delaware.

845 A.2d 505, 508-09 (Del. 2004) (internal quotations and citation omitted).

Id. at 508-09.

Id.

Also, in Palomino v. State, this Court concluded that the police officer was qualified to testify as a witness when he knew the records were made contemporaneously with the calibration test, the records were kept in the regular course of business, he was familiar with the signature of the state, and he had observed prior state chemists perform calibration checks.

Palomino, 2011 WL 2552603, at *2.

Similarly, in Clinger v. State, this Court held that the testifying officer was an "other qualified witness" under D.R.E. 803(6) because he received training on administering intoxilyzer tests and witnessed a calibration test performed by the former state chemist. This Court based its decision in part, on the foundational requirements necessary for an officer to testify as an "other qualified witness." This Court affirmed the lower court and found it was not an abuse of discretion to admit the logbook.

ID No. 0905002015 (Del. Super. Feb. 4, 2011).

The Court of Common Pleas decision under D.R.E. 806(3) is inconsistent with established case law. The cases that admit officer testimony as an "other qualified witness" to the business records exception involve officers who have general familiarity with the process of calibrating the Intoxilyzer machine. However, because the officers in other cases may have been better qualified witnesses because of their experience, here, Corporal Huber's testimony met the minimum requirements necessary to suffice as an "other qualified witness." Corporal Huber must merely have knowledge of the record keeping system and not the calibration process itself. Witnessing a calibration is one way to have knowledge of the record keeping system, but is not an actual requirement under D.R.E. 803(6).

See U.S. v. Riley, 236 F.3d 982 (8th Cir. 2001) (holding a police officers' testimony could not lay the foundation for the admissibility of business records exception when the officer had no personal knowledge about how the lab reports were prepared or maintained); Clinger v. State, ID No. 0905002015 (Del. Super. Feb. 4, 2011); Palomino v. State, 2011 WL 2552603, at *2 (Del. Super. Apr. 4, 2011).

Corporal Huber's testimony met the requirements of D.R.E. 803(6) qualifying him as an "other qualified witness." His testimony demonstrated that: (a) the record was prepared in the regular course of business by Ms. Willey; (b) the log was completed on a monthly basis contemporaneous to the calibration check; and (c) there is no indication that the information and circumstances of recording the logs is untrustworthy. "There is a well established presumption that, in the absence of evidence to the contrary, those responsible for certain services to the public will carry out their duties in a proper, careful, and prudent manner."

Judah v. State, 234 A.2d 910, 911 (Del. 1967).

In addition to the requirements of D.R.E. 803(6), Corporal Huber met the Trawick factors. He testified that: (a) Ms. Willey was the state chemist that was responsible for performing calibrations; (b) Ms. Willey recorded the logs simultaneously with the calibrations; (c) that the records were creating in the regular course of business activities and; (d) the records were regularly kept with the Delaware State Police in the Lieutenant's office.

Here, the State met its burden of establishing an abuse of discretion in the Court of Common Pleas. Corporal Huber demonstrated knowledge and familiarity of the record keeping system, stemming from his fourteen years with the Delaware State Police. He successfully completed 16 credit hours of police training in the Intoxilyzer 5000, but could not recall, at the hearing, whether he has witnessed a calibration at DUI academy. The pertinent inquiry for an "other qualified witness" under D.R.E. 803(6) is whether Corporal Huber was familiar with the record keeping system. Whether or not Corporal Huber knew how a calibration was performed or recalls witnessing a calibration does not disqualify him on those grounds alone.

As stated in US v. Console, an "other qualified witness" is to be construed broadly. Therefore, Corporal Huber should have been permitted to testify as such under D.R.E. 803(6).

13 F.3d 641, 657 (3d Cir. 1993).
--------

Conclusion

Based on the forgoing, the decision of the Court of Common Pleas is REVERSED and REMANDED.

IT IS SO ORDERED.

CALVIN L. SCOTT

Judge Calvin L. Scott, Jr.


Summaries of

State v. McCoy

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
Feb 21, 2012
ID # 0909009694 CLS (Del. Super. Ct. Feb. 21, 2012)
Case details for

State v. McCoy

Case Details

Full title:STATE OF DELAWARE, Appellant, v. ERIN H. McCOY Appellee.

Court:SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date published: Feb 21, 2012

Citations

ID # 0909009694 CLS (Del. Super. Ct. Feb. 21, 2012)

Citing Cases

Price v. State

Del. Sup. Ct. R. 8; see Casey v. State, 2000 WL 33179628, *2 (Del. Super. Ct. Dec. 27, 2000) ("When reviewing…

Naylor v. State

Id. See also Humes v. State, 2006 WL 2220982, *2 (Del. Super. Aug. 1, 2006) (finding the Superior Court in…