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Jefferson v. State

Superior Court of Delaware

June 27, 2019

Trevor A. Jefferson
State of Delaware

          Submitted: June 13, 2019

          Melissa S. Lofland, Esquire, Kristin M. Potter, Esquire Office of the Attorney General

         Dear Counsel:

         Trevor 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.

         1) Facts

         Discovery 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 girlfriend.

         On 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 vehicle.

         Within 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.

         When 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."[1] 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"[2] in that "[h]is balance wasn't there"[3] and he was "swaying back and forth."[4] 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.[5] Defendant admitted he had consumed Fireball.

         The 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 "wasted".

         Defendant 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.

         Significant 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.

         The 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.[6] 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.

         Upon 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.

         I quote 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.[7]
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 ...

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