Hamann v. State

• Decision Date: 16 May 1989
• Citation: 565 A.2d 924
• Parties: David S. HAMANN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 924

565 A.2d 924

David S. HAMANN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: May 16, 1989.

Decided: Oct. 12, 1989.

Joseph A. Hurley, Wilmington, for appellant.

Gary A. Myers, Deputy Atty. Gen., Wilmington, for appellee.

Before CHRISTIE, C.J., and HORSEY and HOLLAND, JJ.

CHRISTIE, Chief Justice:

Defendant, David A. Hamann, appeals his conviction of violating 21 Del.C. § 4177(a), ¹ driving a vehicle while under At approximately 1:15 a.m. on April 18, 1986, Chief Michael Capriglione of the Newport Police observed the operator of a 1967 Chevrolet drive his vehicle through a red light. While following the car, Chief Capriglione also observed the car turn left into a one-way street and proceed for one block in the improper direction. Subsequently, the police officer commanded the operator to pull the car over, and he did so. When the officer approached the vehicle, he noticed an odor of alcohol coming from inside the car. He asked the driver, David A. Hamann, if he had consumed any alcohol that night, and Mr. Hamann said that he had. He then asked Mr. Hamann to exit the car so that he could perform field tests for sobriety. Mr. Hamann said that he would be unable to perform the physical dexterity tests because he was suffering from disc problems in his back. The physical tests were not administered, but Mr. Hamann was asked to recite the alphabet. His speech was slurred and he forgot some letters and transposed others. Chief Capriglione then took Mr. Hamann to Delaware State Police Troop 6 Headquarters, where a State trooper administered a breath test on Mr. Hamann at 1:27 a.m. The test revealed a blood alcohol level of .15 percent. Mr. Hamann was charged with violating 21 Del.C. § 4177, operating a vehicle while under the influence of alcohol, and 21 Del.C. § 4107, failure to obey a traffic control device. He was found guilty of both charges in Superior Court in April, 1988. He appeals only the driving under the influence conviction. ²

the influence of alcohol. First, he contends that the trial court breached his constitutional right of confrontation by not allowing his attorney to ask questions of the State Chemist which bore on the legitimacy of the measuring device used to determine blood alcohol content. Second, he charges that the trial judge violated Delaware Constitution art. IV, § 19, by asserting the validity of the scientific principles incorporated by the blood alcohol test in his instructions to the jury. Third, the appellant contends that the court improperly refused to sequester the chief investigating officer before the opening argument of defense counsel, and fourth, he contends that the court abused its discretion by asserting a fact which had not been established at trial in an answer to a question from the jury. We find no merit to any of these contentions, and thus we affirm the conviction.

I.

At the trial, the State introduced into evidence copies of pages of a log showing calibrations performed on the machine ³ which was used to measure Mr. Hamann's breath sample on April 18, 1986. The dates on the forms indicated that the calibrations were taken on April 15, 1986, and April 25, 1986, and were performed by David Sockrider, State Chemist. Mr. Sockrider was not called as a witness in person by the State.

These documents were introduced by the State without objection during the testimony of Officer Gagnon. Officer Gagnon testified that these documents indicated that the machine was operating properly on April 15, 1986 and on April 25, 1986. Officer Gagnon also testified that on April 18, 1986, he performed tests on the machine prior to administering the breath test to Mr. Hamann. In the first of these tests, air was blown into the chamber which then produced a reading of 00 thus indicating that there was no alcohol present. He then inserted a quartz attenuator into the machine which produced a reading of .25, the specified reading required within plus or minus .01. Officer Gagnon then took out the quartz attenuator and put more fresh air into the chamber and observed a reading of 00. At this point, the defendant blew into the machine with enough force to cause a green light to turn on and long enough to complete a cycle as indicated by a yellow light. The machine indicated a reading of .15. Immediately after completing After the prosecution rested its case, defense counsel made a proffer of evidence regarding a line of questioning the defense wished to put to David Sockrider, who had been subpoenaed as a witness for the defense. Defense counsel argued that his questioning would be cross-examination, because, as he asserted, Mr. Sockrider had in effect been used as an expert witness by the prosecution in that the two documents which he had signed were admitted as evidence. Defense counsel also said that he would question Mr. Sockrider as an expert on the nature of the machine used in Mr. Hamann's breath test. He would be asked to give his opinion about whether the quartz attenuator would cause error if it were nicked, marred, or soiled or placed into the machine improperly; whether the conversion principle of 2100 to 1 part of alcohol in the blood to alcohol in the air which is used by the machine is uniformly applicable to the entire population and to what extent might the ratio vary from one person to another; whether human temperatures vary and to what extent the machine measurements depend on a uniform human temperature of 34 degrees Centigrade or 98.6 degrees Fahrenheit; and whether a capped or false tooth could collect alcohol in the mouth and to what extent it might produce a distorted reading.

                that portion of the test, Officer Gagnon again filled the chamber with fresh air which produced a reading of 00.  The officer testified that there was nothing during the entire operation of this test which caused him to conclude that the machine was not functioning properly.  Defense counsel asked Officer Gagnon during cross-examination if the machine were capable of malfunctioning, and he answered, "Yes."   The record contains no other testimony at the trial regarding the operation or accuracy of the Intoxilyzer machine used in the test of Mr. Hamann on April 18, 1986
                

All of these issues had been addressed earlier by the Superior Court in an evidentiary hearing involving several cases including this case. The State had moved to quash subpoenas issued by several defendants, each of whom had been shown to have alcohol content in their breath above the statutory limit. ⁴ The defendants had subpoenaed David Sockrider, among others, to appear when documents which they had prepared were introduced as evidence of the proper functioning of the breath test machines. The court denied the motion to quash the subpoenas on the basis that once the documents were introduced, the defendants' "right of cross-examination" was protected by the sixth amendment of the United States Constitution. ⁵ State v. Adams, Del.Super., Cr.A. No. IN85-10-0016T, Gebelein, J. (Nov. 4, 1987). However, the court limited the scope of cross-examination of the signers of the documents to "the procedures followed in calibration tests, and preparation of reports of the results of the calibration tests on the machine at issue in the case." Regarding the witnesses, the court added, "Their presence does not make them available to the defense as expert witnesses for any other purpose." Id. The trial judge in Mr. Hamann's case applied this same distinction and ruled that each of the areas of the defense counsel's questioning of David Sockrider exceeded the scope of the legally permissible cross-examination under Adams and, therefore, would not be allowed. The defense argues that this ruling violated the defendant's right of confrontation under the sixth amendment.

Although at the trial the reports signed by Mr. Sockrider were introduced without explanation of their evidentiary character, documents such as these have been admitted as business records under D.R.E. 803(6). Best v. State, Del.Supr., 328 A.2d 141, 143 (1974). Thus, it appears that the documents were admitted under an exception to the hearsay rule, even though Mr. Sockrider himself did not testify. The trial court upheld the defendant's right to subpoena and to cross-examine Mr. Sockrider, on the basis of the right to confront witnesses guaranteed under both the U.S. and Delaware Constitutions. U.S. Const. amend. VI; Del.Const. art. 1, § 7. ⁶ The right of confrontation is not absolute, however. See McLean v. State, Del.Supr., 482 A.2d 101, 103 (1984). It is subject to the trial court's discretion regarding scope. D.R.E. 611. Specifically, cross-examination should be limited to matters raised in direct examination and those affecting the credibility of the witness. D.R.E. 611(b). ⁷ Mr. Sockrider was available to testify, and the defense was permitted to cross-examine him as a witness. The areas of inquiry proposed by defense counsel, however, did not address the actual procedures used by Mr. Sockrider on the dates that he calibrated the machine, nor did they target Mr. Sockrider's credibility as the one who prepared those records. The State did not introduce Mr. Sockrider as an expert on the general legitimacy of the machine used in the breath test and the scientific principles involved in its operation. Therefore, it was proper and within the trial court's discretion to exclude the proffered testimony. ⁸

II.

The defendant next challenges the instructions given to the jury by the trial judge. In his charge, the trial judge stated:

Delaware law provides that any person charged with this offense whose blood alcohol concentration is one-tenth of one percent or more by weight as shown by a chemical analysis of a breath sample, taken within four hours of driving a motor vehicle, shall be guilty.

This provision does not preclude a conviction based on other evidence. In other words, a...