Submitted: August 2, 2018
the Defendant's Motion for Mistrial GRANTED
Michael B. DegliObizzi, Esquire, Erik C. Towne, Esquire
(Argued), Department of Justice, Wilmington, Delaware,
Attorneys for the State.
Michael W. Modica, Esquire, (Argued) Wilmington, Delaware,
Attorney for Defendant.
Honorable Mary M. Johnston, Judge.
AND PROCEDURAL CONTEXT
Byard was charged with Assault in the First Degree, Reckless
Driving, Drag Racing and Other Speed Contests, Driving a
Vehicle While License is Suspended or Revoked, and No Proof
of Insurance. Trial was held on July 10, 11, and 12, 2018. On
direct examination, the State's Chief Investigating
Officer (CIO) testified:
Q: How, if any - or what, if any, efforts did you make to
speak with the Defendant?
A: The phone number that was listed by Officer Hunt, I
attempted that twice. And then the address that was given on
the report, I rode down there and knocked on the door.
Q: Were you ever successful in speaking with the Defendant?
the State concluded the CIO's direct examination,
Defendant moved for a mistrial. Defendant alleged that the
State violated Defendant's Fifth Amendment right to
remain silent by eliciting comments on his lack of
participation in the investigation.
following day, the Court gave the jury the following curative
The State asked the Chief Investigating Officer a couple of
questions. The State asked him whether or not, during the
course of his accident reconstruction investigation, he
attempted to talk to the Defendant. And if my recollection
serves, the answer was that there had been two attempts to
call the Defendant and the Defendant did not return those
calls. You must not consider that evidence in any way. The
Defendant has no obligation to return those calls. The
Defendant has no obligation to speak with the police officer,
and you must not consider that in any way in arriving at your
verdict. You must not discuss it and you must not let it
enter into your thinking about the case.
jury convicted Defendant of Assault in the First Degree and
Reckless Driving, and found Defendant not guilty of Drag
Racing and Other Speed Contests.
the trial concluded, Defendant submitted a legal memorandum
on July 19, 2018, requesting that the convictions be reversed
and a new trial be ordered. The State responded on July 27,
2018, and Defendant replied on July 30, 2018. Oral argument
was held on the motion for mistrial on August 2, 2018.