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State v. Rothenberg

Superior Court of Delaware

August 16, 2017

STATE OF DELAWARE,
v.
IRVIN C. ROTHENBERG, Defendant.

          Submitted: July 12, 2017

         Upon Defendant's Motion for Mistrial or New Trial. Denied.

         Upon Defendant's Motion to Suspend Sentence. Denied.

          Dennis Kelleher, Esquire of the Department of Justice, Dover, Delaware; attorney for the State of Delaware.

          James M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover, Delaware; attorney for the Defendant.

          ORDER

          William L. Witham, Jr. Resident Judge

          Before the Court are two motions filed by the Defendant and the State's responses in opposition. In his first motion, the Defendant asks this Court to grant a mistrial, or in the alternative, for a new trial as a result of the State's allegedly improper statement made during the State's opening statements. In the event the Court does not grant the Defendant's first motion, the Defendant asks this Court to suspend his sentence as a result of his numerous medical conditions. For the reasons set forth below, the Defendant's motions are DENIED.

         DISCUSSION

         A. The Defendant's Motion for a Mistrial or New Trial

         On June 14, 2017, a jury found the Defendant, Irvin C. Rothenberg, guilty of Driving Under the Influence of Alcohol and/or Drugs and Failure to Yield to a Vehicle or Pedestrians in a Intersection or Crosswalk.

         The Defendant now objects to the State's allegedly improper statements made during the State's opening remarks to the jury. During opening argument, the Defendant contends, and the State admits, that the State divulged to the jury that evidence would show that an Intoxilyer Test administered to the Defendant indicated that the Defendant's blood alcohol content ("BAC") was .207% at the time the test was administered.

         The Defendant contends that he did not object to the State's comment because (1) it was made during opening argument, (2) the Court had already instructed the jury that argument by the attorneys was not to be construed as evidence, [1] and (3) the Court had already denied the Defendant's motion to suppress the Intoxilyzer Test results.

         The Intoxilyer Results, however, were not admitted into evidence because the Court determined that the test was administered improperly as a result of live testimony at trial. The Court issued a curative instruction prior to closing, directing the jury to disregard any evidence or statements related to the Intoxilyzer Test results.

         Now, after the trial has concluded, the Defendant challenges the State's reference to the Intoxilyzer Test results during the State's opening argument. The Defendant acknowledges that the State had a "good faith" basis to believe that it would be able to introduce evidence of the results at trial. However, the Defendant contends that despite the State's "good faith" basis, the State's remarks were "highly improper and unfairly prejudicial to the Defendant." The State's remarks allegedly constituted a "bell that simply cannot be unrung with curative instruction." Thus, the Defendant requests this Court to grant ...


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