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State v. Shutak

Court of Common Pleas of Delaware, New Castle

September 29, 2017

CODY W. SHUTAK, Defendant.

          William Raisis, Esquire Office of the Attorney General Attorney for the State of Delaware

          Richard Ferrara, Esquire Ferrara & Haley Attorney for the Defendant


          Sheldon K. Rennie, Judge.

         On February 7, 2017, Defendant Cody W. Shutak ("Shutak") was arrested and charged with Driving Under the Influence ("DUI"), in violation of 21 Del. C. § 4177; Failure to Have Insurance Identification in Possession, in violation of 21 Del. C. § 2118; Improper U-Turn, in violation of 21 Del. C. § 4153; and Possession/Consumption of Marijuana for Personal Use, in violation of 16 Del. C. § 4764.[1] On March 7, 2017, Shutak entered a plea of not guilty. On June 12, 2017, Shutak moved to suppress evidence of his initial traffic stop and subsequent arrest. On August 10, 2017, the Court heard the Motion to Suppress ("Motion") and the trial. Following a hearing on the motion, the Court reserved its decision on the Motion, granted the State's motion to move all non-hearsay evidence into the record, and proceeded to trial on the merits. At the conclusion of trial, the Court again reserved decision. This is the Court's consolidated memorandum opinion on Shutak's Motion and decision after trial.


         The Court heard testimony and considered evidence during two phases of the DUI proceeding-the suppression hearing and DUI trial.[2] Based on the testimony presented at the suppression hearing and trial, the Court finds the facts to be as follows.

         A. Suppression Hearing Facts

         At the suppression hearing, the Court heard testimony from three witnesses: Alan DeCampli ("DeCampli"), Trooper Demi Moore ("Trooper Moore") of the Delaware State Police, and Trooper First Class Mark Ivey ("Trooper Ivey") of the Delaware State Police.

         On February 7, 2017, around 9:30 p.m., DeCampli was traveling north on Bear Corbitt Road, Route 7 in New Castle County, when he struck Shutak's vehicle that was obstructing the roadway. DeCampli applied his brakes as soon as he noticed Shutak's vehicle but, because it was dark, he was unable to prevent his vehicle from colliding with the passenger side of Shutak's vehicle. Corporal Stephen Ballard ("Corporal Ballard"), of the Delaware State Police, was the first officer to respond to the accident scene.[3] Shutak's eyes were bloodshot and glassy and Corporal Ballard smelt burnt marijuana during his conversation with Shutak.[4] Corporal Ballard directed DeCampli to remain in his vehicle. Hence, DeCampli never saw the driver of the other vehicle; however, he testified on cross-examination that he had asked Corporal Ballard why the vehicle was stopped in the middle of the road. Corporal Ballard informed him that the driver attempted to make an illegal U-Tum, but was unable to complete the turn and was in the process of reversing when the accident occurred.

         Trooper Moore, a five-year police veteran, was the second police officer to respond to the accident scene.[5] After arriving at the scene, Trooper Moore identified Shutak as the driver of the reversing vehicle. During the accident investigation, Corporal Ballard instructed Trooper Moore to inform family members of a passenger in Shutak's vehicle that the passenger had been transported to Christiana Hospital. Corporal Ballard then asked Shutak his name to which Shutak responded "Cody." Corporal Ballard then told Trooper Moore, "Cody is coming with me." It was at this time that Corporal Ballard spoke with DeCampli, and explained to him that Shutak had stopped in the middle of the road while attempting an illegal turn. Based on Shutak's role in causing the accident, the smell of burnt marijuana, and his bloodshot and glassy eyes, Corporal Ballard instructed him to exit the vehicle to conduct a DUI investigation.

         Corporal Ballard administered three tests: the Horizontal Gaze Nystagmus ("HGN") test, the Walk-and-Turn test, and the One-Leg Stand test. After he administered the tests, he asked Shutak, "How long ago did you smoke marijuana?" Shutak responded, "Two hours ago." Corporal Ballard then asked, "Do you think you were under the influence when driving?" Shutak responded, "Possibly a little bit, but not much." Corporal Ballard continued, "Do you think you should have been driving?" Shutak replied, "I mean, yeah." Corporal Ballard then reiterated, "But you definitely felt that you were under the influence though?" Shutak replied "Yeah, yes sir." Following this conversation, Corporal Ballard informed Shutak that he believed Shutak was still under the influence and, therefore, would have to transport Shutak to the police station. Shutak was asked if he had any questions, to which he responded, "No." Corporal Ballard then handcuffed Shutak.[6]

         Later that evening at approximately 10:18 p.m., Corporal Ballard paged Trooper Ivey, a certified Drug Recognition Expert ("DRE") assigned to the Delaware State Police Executive Protection Unit, for a DRE evaluation.[7] As part of his evaluation, Trooper Ivey interviewed Corporal Ballard for the DRE report. During this interview, Corporal Ballard told Trooper Ivey that he believed he had probable cause to arrest Shutak because: (1) Corporal Ballard smelled burnt marijuana during his conversation with Shutak, (2) Shutak's eyes were bloodshot and glassy, (3) Shutak admitted that he had smoked marijuana two hours before the accident, (4) Shutak performed an illegal U-Turn and was struck by an oncoming vehicle, and (5) Shutak performed poorly on the standardized field sobriety tests.[8] After his interview with Corporal Ballard, Trooper Ivey questioned Shutak.

         B. Trial Facts

         At the trial phase of the proceeding, the State recalled Trooper Ivey to the stand to testify regarding his interview with Shutak post-arrest. Trooper Ivey read Shutak his Miranda rights at the central detention area of Delaware State Police Troop Two ("Troop Two"). After waiving his rights, Shutak spoke candidly. Shutak stated that he and his friend had "smoked marijuana in a blunt"[9]-approximately thirty minutes before the collision-and became hungry, so they decided to drive to Texas Roadhouse. Shutak admitted that he made an illegal U-Turn while traveling to Texas Roadhouse.

         During the conversation, Trooper Ivey conducted a visual examination of Shutak. He testified that he smelled burnt marijuana on Shutak's breath and person, his face was flushed, his eyes were watery and bloodshot, his speech was slow and slurred, and, Trooper Ivey recorded Shutak's pulse at a rate of one-hundred and four.[10] Following the conversation, Trooper Ivey conducted the Horizontal Gaze Nystagmus test; Vertical Gaze Nystagmus test; Lack of Convergence test; Walk-and-Turn test; One-Leg stand test; Modified Rhomberg Balance Test; Finger-to-Nose test; and pupil dilation tests.[11]

         Based on the results of Trooper Ivey's observations of Shutak, and his extensive experience as a police officer, he believed Shutak was impaired.


         A. Motion to Suppress

         On a Motion to Suppress, the State must prove by a preponderance of evidence that the underlying stop and subsequent arrest are based on sufficient evidence.[12] Shutak raised the following grounds for suppression in his motion: (1) the initial detention was not based on reasonable articulable suspicion, (2) the arrest was not supported by probable cause, (3) the NHTSA field sobriety tests were not conducted in accordance with NHTSA standards, (4) he was not read his Miranda rights when he made incriminating statements during custodial interrogation, (5) the search of his vehicle was conducted without the requisite probable cause, and (6) his blood was drawn without probable cause.[13] However, Defendant did not argue, or present factual support for, grounds three, five, or six at the suppression hearing. Therefore, the Court will not address these arguments.[14]

         1. Reasonable Articulable Suspicion

         Shutak contends that Corporal Ballard did not have reasonable articulable suspicion to believe he had committed a crime. The Fourth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, protects individuals against unreasonable searches and seizures.[15] The Delaware Supreme Court has held, "[w]hen law enforcement directs a driver to stop her car, the State has 'seized' the car and its occupants, and the protections of the Fourth Amendment apply."[16] The State bears the burden of demonstrating that the stop was "reasonable under the circumstances, " and the officer conducting the stop had "reasonable articulable suspicion that a crime had occurred, is occurring, or is about to occur."[17]

         As part of his argument, Shutak contends that Corporal Ballard had no reasonable articulable suspicion to believe that a crime took place, and that the evidence before the Court is deficient to establish how the "incident occurred." The Court disagrees with Shutak's argument. Corporal Ballard stated that he heard the collision occur. Indeed, at approximately 19:20 minutes into the MVR, Corporal Ballard stated to Trooper Moore that his response time was "probably one of the quickest" because he was sitting in the parking lot across from the intersection where the collision occurred. Corporal Ballard stated to Trooper Moore that one of the vehicles attempted to make an illegal U-Turn and was hit when it was attempting to reverse while in the middle of the road. Also, at the suppression hearing, Trooper Moore identified Shutak as the driver of the reversing vehicle. Further, DeCampli testified that there was a collision between his vehicle and a second vehicle. He admitted that he did not see the driver of the other vehicle, but was informed by Corporal Ballard that the other driver was attempting to make a U-Turn when DeCampli hit Shutak's vehicle. This combined evidence is sufficient to prove how the collision occurred. In addition, because no "stop" occurred and Corporal Ballard arrived at the motor vehicle collision between Shutak and DeCampli, reasonable articulable suspicion was not required to investigate the stationary vehicles.[18] By law, Corporal Ballard had a duty to investigate the accident and Shutak had a duty to remain at the scene.[19]

         Shutak also appears to argue that Corporal Ballard did not have reasonable articulable suspicion to proceed from an accident investigation to a DUI investigation. This argument also lacks merit. Shutak caused an accident; Corporal Ballard smelled burnt marijuana on Shutak's breath and person; and Shutak's eyes were glassy and bloodshot. These facts are sufficient evidence to establish a reasonable articulable suspicion for Corporal Ballard to proceed to a DUI investigation.[20]

         2. Probable Cause

         Shutak also challenges his arrest, arguing that Corporal Ballard did not have probable cause to arrest him for driving under the influence based on the totality of circumstances. The probable cause standard is well established in Delaware:

[P]robable cause is an "elusive concept which . . . lies somewhere between suspicion and sufficient evidence to convict." Probable cause exists when "an officer possesses information which would warrant a reasonable man in believing that such a crime has been committed." In the context of DUI offenses, the arresting officer must possess facts which, when viewed in the totality of the circumstances, suggest a fair probability that the defendant was driving under the influence. In essence, the State has to establish that the arresting officer "possess[ed] a quantum of trustworthy factual information sufficient to warrant a man of reasonable caution in believing a DUI offense ha[d] been committed." Generally, probable cause to arrest a driver for a DUI offense is measured by the arresting officer's observations of the defendant, including the defendant's performance on field sobriety tests."[21]

         Shutak argues that certain evidence relied upon by the State to establish probable cause should be excluded and, if excluded, would vitiate a finding of probable cause to arrest him for DUI. Specifically, during the hearing, Shutak argued the following: (a) his incriminating statements after Corporal Ballard informed Trooper Moore, "Cody is coming with me, " should be excluded because Corporal Ballard's statement initiated a custodial interrogation; (b) the MVR should be excluded because the State did not establish its chain of custody; and (c) the Confrontation Clause of the Sixth Amendment to the United States Constitution prevents the introduction of Shutak's answers to Corporal Ballard's questions on the MVR because Corporal Ballard was unavailable as a witness. The Court will address these arguments in turn.

         a. Corporal Bollard's statement during the accident investigation does not constitute placing Shutak in custody.

         The Court disagrees with Shutak's assessment that Corporal Ballard's statement-"Cody is coming with me"-initiated a custodial interrogation. First, the context of the conversation does not support Shutak's argument that Corporal Ballard was indicating to Trooper Moore that he was placing Shutak in his police car. Corporal Ballard had just informed Trooper Moore that she should advise a passenger's family that the passenger was transported to Christiana Hospital. Thus, in that context, the statement "Cody is coming with me" indicated Shutak was remaining at the scene to continue his investigation, and not traveling to the hospital. Indeed, Corporal Ballard did not place Shutak in his police vehicle, but proceeded to initiate a DUI investigation by administering field sobriety tests.

         Second, Miranda was not required since it is clear from the context and circumstances surrounding Corporal Ballard's statement that he did not place Shutak in a "custodial setting."[22] A police officer is not required to read a defendant his Miranda rights unless the defendant is "(i) in custody or in a custodial setting, and (ii) the questioning [] rise[s] to the level of an interrogation."[23] Under Delaware law, a defendant is in custody "when, under the totality of the circumstances, a reasonable person in the same position would not feel free to leave."[24] Importantly, the test for determining custody is objective and does not depend on the investigating officer's intent.[25] An interrogation occurs when the police officer questions the defendant or the police officer acts or makes statements that the officer "should know are reasonably likely to elicit an incriminating response from the suspect."[26]

         The Delaware Supreme Court has held that the presence of a police officer at the scene of a motor vehicle accident coupled with the defendant's duty to stay at the scene does not trigger Miranda.[27] This Court has recently held that "the mere fact of an accident and a DUI investigation does not implicate Miranda[28] Therefore, non-accusatory statements during an accident investigation do not trigger Miranda.[29] Here, the duty of Shutak to remain at the scene of the accident, Corporal Ballard's statement which was ...

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