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State v. Byard

Superior Court of Delaware

October 23, 2018

STATE OF DELAWARE
v.
KWAREASE A. BYARD, Defendant.

          Submitted: August 2, 2018

         Upon 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.

          OPINION

          Honorable Mary M. Johnston, Judge.

         FACTUAL AND PROCEDURAL CONTEXT

         Kwarease 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?
A: No.[1]

         After 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.[2]

         The following day, the Court gave the jury the following curative instruction:

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.

         The jury convicted Defendant of Assault in the First Degree and Reckless Driving, and found Defendant not guilty of Drag Racing and Other Speed Contests.

         After 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.

         STANDARD ...


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