Trevor A. Jefferson
State of Delaware
Submitted: June 13, 2019
Melissa S. Lofland, Esquire, Kristin M. Potter, Esquire
Office of the Attorney General
A. Jefferson ("defendant") has appealed a decision
of the Court of Common Pleas ("CCP") finding that
he drove while impaired in violation of 21 Del. C. §
4177(a) and that he endangered the welfare of his child by
driving impaired with her in the vehicle in violation of 11
Del. C. § 1102(a)(5). This is my decision affirming the
judgment of the trial court.
and foundational issues resulted in the exclusion of much
evidence at the trial. The limited amount of evidence
admitted in this case consisted of a video from the arresting
officer's body camera and trial testimony from the
arresting officer and from a neighbor of defendant's
March 10, 2018, a citizen called in to the police with a
concern about a driver who may have been intoxicated, with a
child in the vehicle, near the Millsboro Bowling Alley. The
vehicle was described as a red Jeep Cherokee. Various units
responded to the area but the vehicle was not located. There
is no testimony that anyone saw defendant driving the
a few minutes of this first call, another call came in about
a domestic incident in the Town of Millsboro. This call was
from a neighbor of defendant's girlfriend. The neighbor
called the police because she heard yelling and screaming
outside of her house. She looked out and saw defendant in the
neighbor's driveway yelling and screaming and cursing.
She assumed defendant was yelling at her neighbor. She also
saw a child in the defendant's vehicle. Fearing for the
safety of her neighbor and the child, the neighbor called
911. This witness did not see the defendant inside the
vehicle at any point.
Officer Wharton, the arresting officer and the officer who
testified at the trial, came on the scene of the domestic
incident, defendant was standing in the driveway. Also in the
driveway was a red Jeep Cherokee with a child in the back
seat. The officer touched the vehicle, which was warm to the
touch "like it was just parked." Defendant's
clothing was orderly. However, his speech was slurred; a
moderate odor of alcohol was coming from him, which the
officer smelled from three feet away; defendant's eyes
were glassy; his face seemed flushed; "his balance was
not as great as it should be" in that "[h]is balance
wasn't there" and he was "swaying back and
forth." There were at least three small
(half-pint) alcohol bottles of Fireball in the passenger
floorboard of the vehicle. The testimony is clear that at
least one half-pint bottle of Fireball was empty. A
reasonable inference from the rest of the testimony is that
the other bottles also were empty. Defendant admitted he had
video from the police officer's body camera was entered
into evidence. Defendant initially denied driving, then he
said he sat in the car to stay warm, then he admitted driving
to the bowling alley in Millsboro and turning around and
coming back to the house. He also admitted the child was in
the car when he drove. On that video, defendant adamantly
admitted he was under the influence, stating that he was
was placed under arrest for driving under the influence
("DUI") and endangering the welfare of a child. He
was taken to the police station where field sobriety tests
and an intoxilyzer test were conducted. However, the results
of those tests were not admitted into evidence.
to defendant's appeal is a discovery matter which arose
in the middle of the trial. Officer Wharton's body camera
recorded from the time he first came on the scene until he
put defendant in the police vehicle to take him to the police
station. The officer turned the body camera back on once they
were at the police station. At the police station, the body
camera recorded defendant's field sobriety tests.
State transferred the body camera recordings of the events at
the two separate locations on two discs rather than one. The
first disc depicted the events at the girlfriend's house
while the second depicted the events at the police station.
In all, the State had seven discs. However, it provided the
defense with only six discs. The disc the State failed to
provide defendant was the second disc, the one depicting the
events which occurred at the police station. The parties
realized mid-trial that defendant did not have this second
disc from the body camera recordings.
realizing the defense did not have the second disc, defendant
objected to the admission of the disc. The Court excluded the
use of the second disc and went even further; it struck the
officer's testimony of the events depicted on that second
disc. Defendant did not ask for a recess or a continuance to
review the disc. More importantly, defendant did not argue
that the first disc depicting what happened at the home of
defendant's girlfriend should be excluded because of this
discovery violation. Defendant makes that argument for the
first time on appeal.
the CCP ruling verbatim:
So what the State has left is basically the officer's
testimony and the video that the Court was able to view and
has admitted regarding Officer Wharton's interaction with
Mr. Jefferson and his own statements.
Very rarely are Defendant's own statements sufficient to
convict the Defendant of aDUI.
In this instance the Defendant upon encountering Officer
Wharton clearly admitted many times that he was intoxicated
and under the influence.
He denied vehemently that he had been driving.
It was introduced into evidence that this whole matter came
to the police's attention, started with a BOLO as a
concerned citizen calling out in a concern about a perhaps
intoxicated driver near the Millsboro Bowling Alley with a
child in the vehicle.
Within a few minutes of that, according to the officer's
testimony, another call came in about a domestic in the Town
of Millsboro with the same description of vehicles and with a
child in the vehicle.
The officers responded to that after having failed to notice
or find the vehicle that had been called in with a BOLO.
Found the same described vehicle at the scene of... house
with a child in the vehicle.
The defendant was standing outside of the vehicle. The
Defendant admitted that he was extremely intoxicated. On
several occasions said that to the officer.
Then Mr. Jefferson further denied having driven.
The officer testified that the engine was warm as if it had