December 27, 2013
STATE OF DELAWARE,
KEVIN HYNSON, Defendant.
Submitted: December 5, 2013
Allison J. Abessinio, Esquire, Deputy Attorney General, Attorney for the State of Delaware
Jonathan Layton, Esquire Layton & Associates, P.A., Attorney for Defendant
DECISION AFTER TRIAL
Honorable Sheldon K. Rennie, Judge
On December 19, 2012, Defendant Kevin Hynson ("Hynson") was arrested and charged with possession of marijuana in violation of 16 Del, C, § 4764, and possession of drug paraphernalia in violation of 16 Del. C. § 4771.
A non-jury trial was held on December 5, 2013. At trial, the Court heard testimony from two witnesses. At the conclusion of trial, the Court reserved decision. This is the Court's decision after trial.
At trial, Officer John Stuart testified as the State's first witness. Officer Stuart has been employed as a police officer for the Middletown Police since 2009. On December 19, 2012, Officer Stuart was on uniform patrol when he observed a tan sedan entering onto U.S. Route 301 from Ash Boulevard in Middletown, Delaware. Officer Stuart testified that he observed Hynson, whom he was familiar with, operating the vehicle. Officer Stuart testified that he conducted a standard DELJIS check (the "DELJIS testimony"). Counsel for Hynson objected to the DELJIS testimony, arguing that such testimony is hearsay not within any exception to the hearsay rule. The State countered that it is established in Delaware case law that information obtained from DELJIS is not barred by the hearsay rule. The Court reserved decision on the hearsay objection, and Officer Stuart was instructed to proceed with his testimony.
Officer Stuart proceeded to testify that he conducted a traffic stop of the tan sedan. He observed Hynson and one passenger in the vehicle. Officer Stuart asked both occupants for identification and asked Hynson for his registration and proof of insurance, which Hynson provided. Officer Stuart noticed that Hynson and the passenger appeared nervous, and he detected an odor of marijuana permeating from the vehicle.
A second officer arrived at the scene, and Officer Stuart instructed Hynson to exit the vehicle. Officer Stuart asked Hynson about the marijuana smell, and inquired if there was anything illegal in the vehicle. Hynson stated that there was one gram of marijuana in a marijuana grinder located in the middle console of the vehicle. At that point, Hynson and the passenger were detained.
Officer Stuart conducted a search of the vehicle and recovered the grinder and the marijuana. Both items were taken back to the police station where the marijuana was weighed and determined to be approximately one gram. Both items were then secured in evidence envelopes and placed in evidence lockers.
On cross-examination, Officer Stuart testified that, although Hynson physically had possession of his license, his license was in fact suspended. Officer Stuart testified that he was only aware of the suspension because of the DELJIS check.
On re-direct, the State moved to admit into evidence the grinder and marijuana recovered from the vehicle. Counsel for Hynson objected on the basis that the items should have been moved into evidence on direct examination. The Court sustained the objection, and the grinder and marijuana were not received into evidence at that time.
The second witness to testify for the State was Dr. Bipin Mody ("Dr. Mody").Dr. Mody testified that he is a forensic chemist, and he has been employed by the medical examiner's office for 10 years.
Dr. Mody testified that after performing a series of three tests on the contents of the grinder, he formed the opinion that marijuana was present. Dr. Mody explained that he did not conduct an analysis on the grinder itself; rather, the analysis was limited to the contents of the grinder. The State moved the marijuana into evidence, but the grinder was not admitted into evidence.
In closing argument, Hynson argued that because the grinder had not been admitted into evidence, it could not be considered by the court; thus, the State failed to prove that Hynson was in possession of drug paraphernalia. Additionally, Hynson argued, for the first time, that the State failed to prove that the initial stop of Hynson was lawful. The basis for Hynson's argument is that Officer Stuart's testimony regarding the facts underlying the stop of Hynson's vehicle was cut short by the defense's hearsay objection to the DELJ1S testimony. Thus, according to Hynson, Officer Stuart's testimony failed to establish that the initial traffic stop was premised on Hynson's suspended license. Accordingly, Hynson asks the Court to conclude that the stop was invalid, and everything flowing there from should be suppressed.
a. The DELJIS transmission is not barred by the hearsay rule
Generally, hearsay is not admissible under Delaware law. The Delaware Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Here, Officer Stuart's DELJIS testimony was not being offered for its truth; Hynson was not charged with driving on a suspended license, and the State was not offering the DELJIS testimony to establish that Hynson's license was in fact suspended. Rather, the DELJIS testimony was being offered to show the effect it had on Officer Stuart. The DELJIS transmission prompted Officer Stuart's decision to stop Hynson's vehicle. Since the DELJIS testimony was not offered for its truth, it is not hearsay and thus is not barred by the hearsay rule. Since the DELJIS testimony is not hearsay as defined by D.R.E. 801(c), Hynson's objection to the DELJIS testimony is overruled.
b. The Court can find the Defendant guilty of possession of drug paraphernalia based solely on Officer Stuart's testimony.
Hynson argues that because the State failed to move the grinder into evidence, Hynson cannot be found guilty of possession of drug paraphernalia. In Hendricks v. State, the Supreme Court of Delaware held that the "reliable secondary testimonial evidence" was sufficient to find the defendant guilty of possession of drug paraphernalia in the absence of the physical evidence at trial. Likewise, the testimony of Officer Stuart, which the Court found to be reliable and credible, is sufficient to find Hynson guilty of possession of drug paraphernalia, despite the State's failure to move the grinder into evidence.
c. The basis for the traffic stop of Hynson was established through testimony in the record.
Finally, Hynson argues that Officer Stuart failed to testify about the basis of the traffic stop, and therefore there is no evidence in the record to establish that the stop was valid. Officer Stuart testified that DELJIS revealed Hynson's license was suspended. While this testimony was offered simultaneously with Hynson's objection, the Court finds that the DELJIS testimony was not hearsay and is therefore admissible. Thus, the Court considers Officer Stuart's account of the events preceding the traffic stop as testimonial evidence. Furthermore, Officer Stuart also testified on cross-examination that he knew Hynson's license was suspended because he ran the DELJIS check. After consideration of Officer Stuart's testimony in its entirety, the Court finds that there existed reasonable suspicion to conduct the traffic stop.
The Court finds that the State has presented sufficient evidence to find Hynson guilty of possession of marijuana in violation of 16 Del. C. § 4764, and possession of drug paraphernalia in violation of 16 Del. C. § 4771. Accordingly, the Court finds Defendant Kevin Hynson GUILTY on all counts. This Judicial Officer shall retain jurisdiction of this case and will schedule it forthwith for sentencing.
IT IS SO ORDERED.