Submitted: Oct. 23, 2013.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below— Superior Court of the State of Delaware, in and for New Castle County, Cr. I.D. No. 0605023366.
Before HOLLAND, BERGER, JACOBS and RIDGELY, Justices, and NOBLE, Vice Chancellor, constituting the Court en Banc.
RANDY J. HOLLAND, Justice.
This 26th day of November 2013, it appears to the Court that:
1) On January 1, 2007, a jury found the defendant-appellant, Gerard E. Szubielski (" Szubielski" ) guilty of Assault in the First Degree pursuant to title 11, section 613 of the Delaware Code. On March 2, 2007, the Superior Court granted the State's motion to declare Szubielski a habitual offender and sentenced him to life imprisonment pursuant to title 11, section 4214(b).
2) In this direct appeal, Szubielski has raised four claims of error: first, the prosecutor's questions during cross examination implied that the defense had a duty to corroborate their asserted facts, which constituted impermissible burden shifting in violation of the Fourteenth Amendment of the United States Constitution and article 1, section 7 of the Delaware Constitution; second, the prosecutor's closing argument repeatedly stating that there was no corroboration of Szubielski's asserted facts was prosecutorial misconduct amounting to improper burden shifting in violation of the Fourteenth Amendment of the United States Constitution and article 1, section 7 of the Delaware Constitution; third, the prosecutor's " improper comments" throughout the trial amounted to prosecutorial misconduct warranting reversal; and fourth, the repetitive errors by the prosecutor during trial amounted to a persistent pattern of prosecutorial misconduct compromising the integrity of the trial process, warranting reversal.
3) We have concluded that there was no reversible error. Therefore, the judgment of the Superior Court is affirmed.
4) On May 25th, 2006, Officer Simpkins attempted to pull Szubielski's vehicle over because it matched the description of a car reportedly used in another crime. Szubielski initially stopped after the officer activated her emergency equipment, but then drove away. Officer Simpkins testified that she chased Szubielski from Route 40 to Route 1, at speeds in excess of 65 mph. Szubielski lost control of his vehicle causing him to speed into a construction site. Ron Cirillo, a flagger for the construction site, sustained serious injuries as a result of Szubielski's car crashing into a dump truck and then striking him.
5) Szubielski was apprehended shortly thereafter and charged with Assault in the First Degree pursuant to Del.Code Ann. tit. 11, § 613. The State asserted that Szubielski recklessly sped away at speeds in excess of 80-90 miles per hour without his lights on. He fled from the pursuing officer into a construction zone, lost control of his vehicle, hit Ron Cirillo, and then attempted to flee the scene on foot.
6) At trial, Szubielski took the stand in his own defense. On direct examination, Szubielski described the events and circumstances leading up to the point where he lost control of his vehicle:
I noticed I had taken the turn a little too wide. I couldn't recover from it. I went down into a grass median area with high grass. Immediately as I went down in, I remember like water— it had water in it because the water shot out the sides like you were driving through a puddle. I immediately came back up onto the on ramp.
I proceeded to go enter Route 1. I noticed my car thumping. A loud thumping. It was, thump, thump, thump.
The car was still driving. I was driving it, I didn't know what the sound was.
7) He further testified that his girlfriend, Maggie, threw a soda in his face just before the crash:
I was looking in the rearview mirror, Maggie's screaming at me. She's yelling something about the lights, the lights. My eyes are glued to the rearview mirror as the officer is chasing me. I look down to the dashboard, I see the dashboard, the lights are dark. I see the radio— excuse me, the radio and the air conditioning and heat control, everything was dark. My whole entire dashboard was dark. I immediately reached over and turn— thinking something shorted out.
As I'm doing that, I get struck— I haven't even looked forward yet. I get struck on the right side of my face with an object. It wasn't hard to, like, knock me out or— but I immediately remember an ice— cold sensation of liquid on my face and on my hands where it splattered. I— my right eye immediately started burning. The liquid went into my eye. Partially into my left eye, but not as bad in my left as in my right. I remember rubbing my eye, continuing rubbing my eye, and I looked ...