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Desai v. State

Superior Court of Delaware

November 16, 2018

BHUSHAN DESAI Appellant,
v.
THE STATE OF DELAWARE Appellee.

          Submitted: September 11, 2018

         Upon Appeal from the Court of Common Pleas -AFFIRMED.

          Michael W. Modica, Esquire, Attorney for Appellant.

          Jillian L. Schroeder, Esquire, Attorney for Appellee.

          OPINION

          DIANE CLARKE STREETT, JUDGE

          Introduction

         Bhushan Desai ("Defendant", "Appellant") contends that the Court of Common Pleas (Trial Court) abused its discretion and/or committed legal error by admitting records from the Intoxilyzer calibration logbook through Delaware State Trooper August Zickgraf (Trooper Zickgraf) under D.R.E. 803(6), [1] the business records exception to the hearsay rule. Defendant claims that Trooper Zickgraf did not have a basis of knowledge to testify that the records were made "at or near the time" of the performance of the Intoxilyzer calibration tests.[2] Defendant argues that, as such, Trooper Zickgraf was not a qualified witness and the logbook records were inadmissible because the State failed to show that the records were made "at or near the time" of the event as required by D.R.E. 803 (6).[3]

         The State ("Appellee") responds that Trooper Zickgraf was a qualified witness under D.R.E. 803(6) and that the Trial Court did not abuse its discretion or commit legal error when it admitted the logbook records into evidence.[4]

         For the reasons set forth below, the decision of the Trial Court is affirmed.

         Factual and Procedural History

         On June 7, 2017, Defendant was arrested for driving a vehicle while under the influence of alcohol (DUI) in violation of 21 Del. C. § 4177, failing to have his headlights on when required by law in violation of 21 Del. C. § 4331(a), and an illegal U-turn in violation of 21 Del C. § 4152(a)(1).

         On August 23, 2017, Defendant filed a Motion to Suppress, arguing that the officers lacked reasonable suspicion to stop Defendant's vehicle and probable cause to take Defendant into custody for DUI. On December 13, 2017, the Court of Common Pleas held a hearing on Defendant's Motion to Suppress.

         Sergeant Mark Papili (Sergeant Papili) of the Delaware State Police testified at the suppression hearing that on June 7, 2017, at approximately 2:00 a.m., he observed Defendant's vehicle travelling westbound on Kirkwood Highway at the intersection of Albertson Boulevard. Defendant's vehicle's headlights were not on and Defendant made an illegal U-turn in front of Sergeant Papili. Sergeant Papili turned on his emergency lights and pulled Defendant over.

         Sergeant Papili approached Defendant's vehicle on the passenger side and spoke to him through the open window. Defendant was the driver and sole occupant of the vehicle. Sergeant Papili testified that he detected an odor of alcohol coming from inside the vehicle and from Defendant's breath. He also observed that Defendant's eyes were bloodshot and that there was an open 12-ounce can of Miller Lite beer in the center console of the vehicle. Sergeant Papili described Defendant's speech as slightly slurred. Shortly thereafter, Trooper Zickgraf arrived at the scene. Trooper Zickgraf assumed control of the DUI investigation and Sergeant Papili left the scene.

         Trooper Zickgraf testified that he also smelled a strong odor of alcohol coming from the inside of the vehicle and from Defendant's breath.[5] Defendant told Trooper Zickgraf that he had roughly 2 beers approximately 30 minutes prior. Trooper Zickgraf observed the open beer can in Defendant's vehicle and described Defendant as having bloodshot and glassy eyes and slightly slurred speech. Trooper Zickgraf told Defendant to exit the vehicle and noted that Defendant was unsteady on his feet after exiting.

         Trooper Zickgraf testified that from the totality of the situation he was able to form an opinion that Defendant was intoxicated and he requested that Defendant perform field sobriety tests. Defendant was administered the HGN, Walk and Turn, and Balance tests. Based upon the information he received from Sergeant Papili and the results of the field sobriety tests, Trooper Zickgraf placed Defendant under arrest for the above offenses.[6] Trooper Zickgraf then transported Defendant to the police station where Trooper Zickgraf administered the Intoxilyzer breath test on Defendant.[7]

         As a prerequisite to admitting Defendant's Intoxilyzer test results, the State moved to admit the Intoxilyzer calibration logbook records through Trooper Zickgraf s testimony to establish that the Intoxilyzer was working properly when it was administered on Defendant. Trooper Zickgraf testified that he was trained on the Intoxilyzer while he was at the academy, identified the Intoxilyzer logbook, stated that it is kept in the Traffic Lieutenant's office, that anyone in the building has access to the logbook, and that the entries in the logbook were made by Cynthia McCarthy who is the State Chemist ("State Chemist"). He testified that he recognized the State Chemist's signature because "[s]he came down to the Academy when [he] was going through the training, and [the State Chemist] signed the front board with her signature" and that "[t]he same signature as when she signed the board at the Academy is to [sic] on the bottom of the [logbook entry] page."[8]

         Trooper Zickgraf also testified that the State Chemist calibrates the Intoxilyzers, that the logbook was kept for the specific Intoxylzer used on Defendant, that the logbook is kept in the ordinary course of business, and that the purpose of the logbook is "to keep the results of when [the State Chemist] calibrates the Intoxilyzers."[9] When asked by the State: "To the best of your knowledge were the entries in that Log Book made at or near the time that the test was performed by [the State Chemist]", Trooper Zickgraf answered: "Yes, from my knowledge."[10] The State then asked: "Is there any reason that you would believe the Log Book is unreliable?" Trooper Zickgraf responded: "No."[11]

          Trooper Zickgraf testified that the record in the logbook prior to the arrest was dated May 22, 2017 at the top and that the State Chemist signed and dated the bottom of the record (May 22, 2017) and wrote down the time (1315 hours).[12] He then testified that the next log record was dated at the top for June 26, 2017 and that the bottom of the record was the same as the previous record except for the different date and time.[13] The State asked: "And does those logs indicate that the Intoxilyzer was working properly on the dates before and after the Defendant's arrest [on June 7, 2017]?", to which Trooper Zickgraf answered: "Yes, ma'am."[14]

         Defendant's counsel then cross-examined Trooper Zickgraf. The exchange went as follows:

Q. Officer, what is your basis of knowledge to testify that Cynthia McCarthy prepares that record at or near the time that she actually performs the test?
A. Well, I wasn't there obviously. So all I can verify that she signed it. I can verify that's her signature and that she tested it. And I can verify that she did date it and - under her signature and she dated and time - put a time down.
Q. So it's based upon what she wrote, but you don't have any independent personal knowledge from observing how she performs the test that those documents were made at or near the time that she performed the test?
A. When I was at the Academy she did perform a test for the class. But again I wasn't at this exact date and time when she performed it.[15]
Q. When she was performing the test for the class, that was just for your knowledge, right? That wasn't for what her normal - you know, you've never observed her normal routine?
A. No, I have not.[16]

         Following this cross-examination, Defendant's counsel objected to the admission of the logbook. He told the court, "I don't think there's a basis to establish that it was made at or near the time of the testing."[17] Defendant's counsel argued that Trooper Zickgraf is required to provide a basis for his knowledge that the records were made at or near the time of the calibration tests. Defendant's counsel asserted that establishing such a basis for knowledge is usually accomplished through observing the State Chemist's routine in the past. The Trial Court admitted the logbook subject to briefing by both parties on the issue.

         This matter then proceeded to trial on the same day. The State moved to admit the results of the Intoxilyzer breath test that Trooper Zickgraf had administered on Defendant. The Trial Court admitted the Intoxilyzer breath test results subject to its decision on the admissibility of the calibration logbook. After trial, the Trial Court took the matter under advisement to decide the issue of the admissibility of the calibration logbook records.

         On January 19, 2018, Defendant filed his post-trial letter memorandum in support of his objection to the admission of the logbook records. Defendant claimed that there was an insufficient foundation for admission under D.R.E. 803(6), the Business Records Exception. On February 6, 2018, the State submitted its post-trial response in opposition and, on March 2, 2018, Defendant submitted his reply.

         On May 22, 2018, the Trial Court denied Defendant's Motion to Suppress the Intoxilyzer calibration logbook records and found Defendant guilty of Driving While Under the Influence, Making an Improper U-Turn, and Failing to Have on Headlights When Required.[18] In denying Defendant's Motion to Suppress, the Court cited McCoy v. State[19] which held that "[e]ven though [the officer] had not witnessed a calibration check by a chemist, he had sufficient knowledge of the procedure by which the intoxilyzer records were created" and as such, he was a qualified witness.[20]The Court reasoned that Trooper Zickgraf "testified to the same elements as in McCoy."[21] The Court explained that Trooper Zickgraf testified that he recognized the State Chemist's handwriting, that the duty of the State Chemist is to calibrate the Intoxilyzer, that once the State Chemist verifies the Intoxilyzer is working properly she records the results on each form, and that afterwards she writes the date and time that the calibration tests were made and signs the form.

         Defendant appeals the Trial Court's denial of his Motion to Suppress.

         Parties' Contentions

         On September 11, 2018, Defendant filed his Opening Brief with this Court. Defendant contends that Trooper Zickgraf was not familiar with whether the calibration records in the logbook were made by the State Chemist "at or near the time" she conducted the calibration tests.[22] Defendant claims that Trooper Zickgraf "confessed to a lack of knowledge about when and how [the State Chemist] actually prepared the certification record even though he was familiar with how [the State Chemist] conducted the calibration testing."[23] Defendant argues that because of Trooper Zickgraf s "lack of knowledge of [the State Chemist's] record making process," he is not a qualified witness under D.R.E. 803(6).[24]

         Defendant writes that although Trooper Zickgraf testified to familiarity with the State Chemist's signature and testing procedure and that "from [his] knowledge" the entries in the logbook were made at or near the time of the calibration testing, he did not provide any basis for his "knowledge."[25] Defendant further contends that Trooper Zickgraf appears to base his conclusion (that the calibration records were made near the time that the Intoxilyzer was tested) exclusively upon the contents of the records themselves "as opposed to an understanding" of how the record entries are completed.[26] Defendant argues that a qualified witness is required to establish familiarity with the process for not only how the record is kept but also how it is created. Defendant asserts that Trooper Zickgraf "was required to establish his personal knowledge that [the State Chemist] completed [the Intoxilyzer logbook entry] at or near the time of the event."[27]

         Defendant claims that the Trial Court erred in admitting the Intoxylizer calibration logs because Trooper Zickgraf was not a qualified witness and the results of Defendant's Intoxilyzer breath test were erroneously admitted. As such, Defendant contends that the DUI conviction based upon the Intoxilyzer breath test results must be reversed.

         Defendant cites several cases to support his argument. Defendant writes that a Georgia Court of Appeals case, Mullinax v. State, [28] "is directly on point with the issue in this case" and "mirrors Defendant's position in this case..."[29] In his brief, Defendant explains that the court in Mullinax held that "the state trooper did not establish the adequate foundation for admission of the testing certificates for the Intoxilyzer 5000 under the business records exception to the hearsay rule because he did not know if the documents were made contemporaneously with the testing, even though he was familiar with other aspects of how the records were maintained."[30] Defendant asserts that the Mullinax holding "should control the issue."[31]

         Defendant also cites United States v. Ordonez and Kolmes v. World Fibers Corp[32] Defendant states that, in Ordonez, the 9th Circuit "determined that the ledgers did not qualify as business records under 803(6) because the prosecution did not produce a custodian of the records or establish the foundational requirements for admission under that rule, including the failure to establish that the entries were made at or near the time of the transactions."[33] Defendant writes that, in Kolmes, the United States Court of Appeals for the Federal District held that "documents offered by an alleged patent infringer did not satisfy the business records exception to the hearsay rule because its witness did not know when and how the documents were prepared."[34]

         On October 1, 2018, the State submitted its Answering Brief. The State contends that the Trial Court properly concluded that Trooper Zickgraf was a qualified witness. The State argues that Trooper Zickgraf is familiar with the State Chemist's record-keeping process for Intoxylizer calibration logs; he testified that he recognized the State Chemist's handwriting and signature; he knew that the State Chemist is responsible for conducting periodic checks of the calibration of the Intoxylizer; he knew that the State Chemist verifies that the Intoxylizers are working properly; and that the State Chemist then fills out the form with the results, signs, dates and writes the time the tests were conducted, and then places the form in the Intoxylizer logbook that is located in the Traffic Lieutenant's office. The State also argues that Trooper Zickgraf indicated that he is familiar with the logbook. Furthermore, the State points out that Trooper Zickgraf witnessed the State Chemist perform a calibration test during his training at the police academy. Therefore, the State concludes that Trooper Zickgraf s testimony "demonstrates the requisite adequate familiarity with the Intoxylizer calibration and record-keeping process."[35]

         The State also points out that Trooper Zickgraf testified that the calibration logbook recorded the calibration test result for the Intoxylizer used on Defendant, there was no reason to believe that the entries in the logbook were unreliable, the dates in the logbook indicated that the Intoxylizer was working properly before and after it was used in the present case, the State Chemist signed, dated and provided a time on the log sheets, and that the calibration log sheets were signed within minutes of the times listed for the calibration tests.

         In addition, the State asserts that the dates and time listed on the logs "make it self-evident that the calibration sheets are signed and prepared at or near the time as required by" D.R.E 803(6) and that there is no reason to question the truthfulness of the logbook records.[36]

         On October 8, 2018, Defendant submitted his Reply Brief. Defendant argues that, although the State points out that Trooper Zickgraf observed the State Chemist perform the calibration testing, Trooper Zickgraf "did not witness the creating of the record memorializing the results of the testing."[37] Defendant contends that Trooper Zickgraf is not familiar with the process of recording the calibration results and cannot be a qualified witness for testifying that the logbook records were made at or near the time of the calibration tests because he did not witness how or when the State Chemist recorded the calibration results on these logbook forms. Defendant maintains that it was necessary for Trooper Zickgraf to have observed the process by which the State Chemist recorded the results of the calibration tests in the calibration logbook in order to establish the requisite familiarity.

         Standard of Review

         Under 11 Del. C. § 5301(c) Defendant has a right to appeal the Trial Court's decision to this Court. Such an appeal to this Court shall be reviewed on the record and shall not be tried de novo.[38] This Court is to correct errors of law and to review the factual findings of the Trial Court to determine "if they are sufficiently supported by the record and are the product of an orderly and logical deductive process."[39]Errors of law will be reviewed de novo and findings of fact are given deference and reviewed for clear error.[40] "If substantial evidence exists for a finding of ...


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