ANDREW J. DEASCANIS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: July 19, 2019
from Court of Common Pleas.
Charles E. Butter Judge.
the night of October 23, 2017, Lt. John McDerby, an officer
with the Division of Natural Resources and Environmental
Control ("DNREC") was patrolling the area of the
C&D Canal. He came across a pair of headlights out in
a field on the park grounds. After investigating, he learned
that the headlights belonged to a pickup truck that had
overturned in the field. In due course, it was learned that the
Defendant, Andrew Deascanis, had been drinking and driving in
the pickup truck and flipped it over while chasing deer
across the field.
2. In a
nutshell, those are the facts that brought the
Defendant's case into the Court of Common Pleas, where he
was tried for driving under the influence before a jury that
found him guilty of the offense. He filed this appeal making
several claims of error in the Court of Common
Pleas. Each of these claims will be addressed
Defendant's first argument is that the evidence was
insufficient to support a conviction. When such claims are raised
on appeal, the Court looks to at the evidence in the light
most favorable to the verdict winner.
Here, the Defendant, once found in the field with his
overturned truck, admitted he had been at a fundraiser at a
bar earlier in the evening and then to another bar to watch a
football game at which he drank, by his own admission, four
beers.Upon drinking beers and getting into his
pickup truck, he decided that this would be a good night to
venture out onto closed state parkland, through a field and,
upon observing a herd of deer, give pursuit across uncharted
terrain. When the deer turned, so did he, the
deer apparently more deftly than his truck. The truck he
flipped over had a cooler with beers in it. The arresting
officer noted that his speech was slightly slurred, his eyes
were glassy and bloodshot, and he smelled of
testimony at trial indicated that the Defendant succeeded in
passing, a number of field sobriety tests, but when offered a
portable breath tester and a later intoxylizer breath test,
he demurred, professing a disbelief in the accuracy of the
machinery. This, apparently, is the basis for his
belief that his conviction is without support in the record.
the Defendant's admissions to drinking that evening, the
alcohol at the scene, his odor of alcohol, his bloodshot and
glassy eyes, his recklessly flipping over his truck in an
open field, and his refusal to undergo sobriety testing were
all enough for the jury to conclude that he had been driving
the truck while under the influence of alcohol. Defendant
continues to argue the evidence that was not
present, (i.e., a blood alcohol test), and the differing
explanations for the evidence that was present,
(i.e., that he did not drink the beer cans that were found in
the cooler), but those arguments were all placed before the
jury and the jury found, on balance, that the State had made
its case beyond a reasonable doubt.
Certainly, to give the Defendant his due, the verdict was not
a foregone conclusion and the jury may have chosen to find
the State's evidence insufficient to prove
Defendant's guilty beyond a reasonable doubt. But this is
the very essence of a jury verdict and presents no occasion
for the Court to second guess the jury's decision. The
State presented evidence on each element of the offense and
the jury chose to credit the evidence presented by the State.
The Court cannot overturn the verdict simply because the
defendant still believes he should have been
Next, Defendant argues that the instructions were in error
because the trial judge told the jury it "should
consider only the evidence in the case" while the
Superior Court standard jury instruction contains the
somewhat sterner admonition that it "must determine
whether the defendant is guilty or not guilty solely from the
evidence presented during the trial."
the argument is that it is fatal to the verdict if the judge
says the jury "should" consider only the evidence
at trial instead of the jury "must" consider only
the evidence at trial. The Supreme Court has said that in
reviewing jury instructions, they will be deemed sufficient
"so long as they are reasonably informative and not
misleading, judged by common practices and standards of
verbal communication." Some deficiencies injury
instructions will be tolerated, so long as the instructions
are "a correct statement of the substance of the law ...
[and the jury was able to] intelligently perform its duty in
returning a verdict."
this case, the jury was not invited to consider evidence that
was not presented at trial. While "must" may
connote a more mandatory, restrictive tone than
"should," there was no other evidence the jury
might have considered that could have changed the result.
Additionally, this was not a case involving a violent assault
or deeply held moral or religious beliefs that might cause a
jury to base its verdict on matters not introduced at trial.
Particularly in the absence of a contemporaneous objection to
the instruction, the Court cannot find that the use of should
instead of must was plain error implicating the
Defendant's right to a fair trial.
Defendant makes a generalized claim of prejudice from the
prosecutor's repeated insertion of the first-person
pronoun in his closing argument. It is well understood that
the prosecutor is not permitted to insert his personal
opinion of the defendant's guilt to the
jury. But the record clearly shows that the
prosecutor was in fact admonished by the judge and jury was
instructed to ignore comments of personal belief by the
attorney. Finally, the comments were not an
inflammatory effort to get the jury to trust the prosecutor
as the voice of the state but more the uncertain averments of
a young prosecutor speaking to a jury honestly about his
beliefs - error to be sure, but ...