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Auwerda v. State

Superior Court of Delaware, Sussex

June 19, 2017

James V. Auwerda
v.
State of Delaware

          DATE SUBMITTED: April 3, 2017

          Benjamin Warshaw, Esquire Office of the Public Defender

          Matthew Keating, Esquire Department of Justice

         Dear Counsel:

         Pending 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.

         On 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.

         Before 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.

         Because 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.

         The 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[1] 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.

         The 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.

         The witness needed to establish the admissibility of the evidence was on her way to the trial to testify.[2]

         The 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. ....[3]

         Defense 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 attention.

         The 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...."[4] 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."[5] The Court further stated: "I gather it's not just you. It's other staff that noticed this, other people."[6] 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.

         Thereafter, 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.[7] 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.

         A mistrial was declared.

         Defense 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 impairment."[8]

         Thereafter, defense counsel moved to withdraw, and CCP granted that motion.

         In 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:

         Concerning my case, I make a few points below. Some constitutional issues.

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 in.
8. Mistrial. Not near any officer or prosecutor.

         The 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.

         Six of appellant's eight issues were not applicable to the motion to dismiss.

         As to 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 omitted.][9]

         The 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 omitted].[10]

         The 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 ...

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