Submitted: July 12, 2017
Defendant's Motion for Mistrial or New Trial. Denied.
Defendant's Motion to Suspend Sentence. Denied.
Kelleher, Esquire of the Department of Justice, Dover,
Delaware; attorney for the State of Delaware.
M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover,
Delaware; attorney for the Defendant.
William L. Witham, Jr. Resident Judge
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.
The Defendant's Motion for a Mistrial or New
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.
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.
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,
(3) the Court had already denied the Defendant's motion
to suppress the Intoxilyzer Test results.
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.
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 ...