James V. Auwerda
State of Delaware
SUBMITTED: April 3, 2017
Benjamin Warshaw, Esquire Office of the Public Defender
Matthew Keating, Esquire Department of Justice
before the Court is the appeal of James V. Auwerda
("appellant" or "Auwerda") from several
rulings of the Court of Common Pleas ("CCP")
rendered when appellant was prosecuted in that court on a
driving under the influence ("DUI") charge. This is
my decision affirming the judgment below.
January 23, 2014, appellant was arrested on a DUI charge. He
sought a trial in CCP. He agreed to a non-jury trial. A bench
trial commenced on December 9, 2014. Appellant was
represented by private counsel at this point.
the trial started, the prosecutor explained to the Court that
he was involved in several other matters occurring at the
same time, some of which were taking place in Justice of the
Peace Court. He detailed the coverage he had on the other
matters. He also explained that, at some point, he would need
a break from the Auwerda trial to address at least one of
those unrelated matters. The record makes clear that the
prosecutor had control of all of the unrelated matters at the
time the trial started, was focused on the trial, and was
ready to start prosecuting this DUI trial. These facts are
noteworthy because appellant maintains that the prosecutor
did not have everything under control and thus, argues that
the prosecutor wanted a mistrial to be ordered. The record
does not support appellant's unsubstantiated statements
that the prosecutor was harried and not prepared for trial.
appellant's motion to suppress was pending, CCP first
heard testimony which pertained to this motion to suppress.
The plan was that if, ultimately, the motion to suppress was
denied, then CCP would incorporate by reference all of the
admissible testimony offered in the suppression phase and
move on with the trial testimony.
first witness to testify was the individual who called 911 to
report appellant as a possible impaired driver. This witness,
who was an Emergency Medical Technician, was at the
drive-through lane at McDonald's on Route 1 near
Rehoboth, Delaware. The witness saw, in front of him,
appellant driving a small green sedan. Appellant was positioned
too far from the drive-through window and had to get out of
the car to pay for his food. When the witness reached the
drive-through window, he discussed with the McDonald's
employees their impression that appellant was intoxicated.
The witness followed appellant and called 911, giving the 911
dispatcher the tag number and make and model of
appellant's vehicle. While the witness was following
appellant, he observed appellant drive into a snow bank as
well as swerve a couple of times to the right through the
snow and back onto the road. Finally, appellant came to a
stop at a residence. The witness stayed on the phone with the
911 Center and continued to report his observations.
prosecutor attempted to submit a 911 DVD as well as a
Certification from the 911 Call Center with an attachment
which details information that is included on the 911 call. A
dispute arose as to the admissibility of the Certification
and attachment as well as the 911 DVD. Although defense
counsel objected to the admissibility, he did question the
relevance of the 911 tape since the witness already had
testified to what he reported to 911.
witness needed to establish the admissibility of the evidence
was on her way to the trial to testify.
proceedings then broke for a few minutes. After the break,
during a discussion at sidebar, the prosecutor reported that
he and the police officer had smelled alcohol coming from the
area of appellant. The prosecutor stated:
And what I want - what I'd like is - we can go through
the trial. I don't have a problem with that, but I
don't want to come back and have him get another attorney
and say that I showed up 'cause I was drinking, or
anything else, and want a new trial because - I mean,
he's going to have to put on the record that he's
going to waive any right if he was drinking, is drinking, I
don't know. But it - we can smell it. ....
counsel reported the following to the Court below. He had
spoken with appellant after the prosecutor brought the smell
issue to his attention. Defense counsel did not smell
anything on appellant. Appellant told defense counsel he had
been drinking the previous night and that appellant did not
feel he was under the influence. Defense counsel explained
that he had told the prosecutor that if the prosecutor had
concerns, then he could bring them to the Court's
Court discussed with counsel scenarios which could play out
in this situation. It could request that a Portable Breath
Test ("PBT") be administered to appellant and if he
showed a reading, then the Court would declare a mistrial. If
the Court did not order the PBT or if appellant refused the
PBT and the Court allowed the trial to continue, then
appellant, if convicted, could seek a new trial on the ground
that his inebriation prevented him from effectively assisting
his attorney. The Court also speculated that the
prosecutor's allegation in a DUI case is a problem in and
of itself, and stated, "So you might have poisoned the
well already by bringing this to my
attention...." The prosecutor noted, and the Court
agreed, that he had no choice but to bring the matter to the
Court's attention. The Court also stated that it did not
"think this is something ... [the prosecutor] wanted to
do." The Court further stated: "I gather
it's not just you. It's other staff that noticed
this, other people." There was more discussion about various
options available, particularly if a PBT was taken and no
alcohol registered. The Court mentioned that no matter what,
a mistrial most likely had to be declared.
a conference in Chambers was held. Defense counsel reported
that he met with appellant and discussed with him about
taking the PBT. Appellant refused to take the PBT. Appellant
wanted to go forward with the trial. Defense counsel noted,
however, that he agreed with the Court's opinion that
there was no choice but to declare a mistrial. The prosecutor
stated that he felt, as an officer of the court, he had to
bring the matter to the Court's attention and he did not
raise the issue to create a mistrial.
mistrial was declared.
counsel moved for a dismissal of the charges on the ground
that jeopardy had attached, and asserted that "[t]he
State, without any independent evidence, completely
eviscerated Mr. Auwerda's right to a fair trial by making
the unsubstantiated accusation of alcohol consumption and/or
defense counsel moved to withdraw, and CCP granted that
early March, 2015, CCP informed appellant that he needed to
contact the Public Defender's Office for representation.
In mid-May, 2015, appellant was sent a briefing schedule on
the motion to dismiss and he was given 2 months to submit a
brief. Appellant did not obtain representation by the Public
Defender's Office and instead filed, pro se, a
June 30, 2015, letter. Therein, he stated:
my case, I make a few points below. Some constitutional
1. NOT Driving.
2. No warrant, let in by senior citizen.
3. No Miranda Rights.
4. Double Jeopardy.
5. No known audio or video.
6. No witnesses, Driving behind, no possible facial
recognition. Described Green Car, my Car is silver.
7. Transcript requested no response from state. Funds sent
8. Mistrial. Not near any officer or prosecutor.
case was assigned to another CCP Judge. After considering the
pro se submission as well as the State's
submission, the CCP Judge denied the motion to dismiss,
ruling in an Order dated August 31, 2015, as follows.
appellant's eight issues were not applicable to the
motion to dismiss.
the Double Jeopardy claim, the Court found:
The Defendant, through previous counsel's motion to
dismiss, has alleged that the State made an unsubstantiated
accusation that he was drinking on the day [sic] trial. After
reviewing the record, there is no evidence that the
prosecutor goaded the Court into declaring a mistrial. In
fact, after lengthy discussion between the State, defense
counsel, and the Court in chambers and in the courtroom,
defense counsel agreed with the Court that there was no
choice but to declare a mistrial. Defense counsel also agreed
with the Court at trial that the State did not want to
provoke a mistrial. [Footnotes and citations
Court interpreted appellant's last ground as an argument
that declaring the mistrial was improper. The Court ruled:
In this instance, the Court sua sponte declared a
mistrial after speaking with the State and defense counsel,
who both agreed with the Court's reasoning. At the end of
the proceedings, the trial judge declared on the record that
the facts he learned could have a prejudicial impact on the
outcome of the case. [Footnote and citation
Court ruled the mistrial was declared out of manifest
necessity and denied appellant's motion to dismiss.
Thereafter, the Public Defender's Office entered its
appearance on appellant's behalf. Defense counsel renewed
the defense's motion to dismiss on the issues of
prosecutorial misconduct and double ...