Hughes v. State, I.D. No. 0202016153 (Del. Super 11/4/2003)

• Decision Date: 04 November 2003
• Docket Number: Cr. A. No. N02122381.,I.D. No. 0202016153.
• Parties: SEAN P. HUGHES, Appellant-Defendant Below, v. STATE OF DELAWARE, Appellee.
• Court: Delaware Superior Court

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SEAN P. HUGHES, Appellant-Defendant Below, v. STATE OF DELAWARE, Appellee.

I.D. No. 0202016153.

Cr. A. No. N02122381.

Superior Court of Delaware for New Castle County.

Submitted: August 3, 2003.

Decided: November 4, 2003.

UPON APPEAL FROM A DECISION OF THE COURT OF COMMON PLEAS.

AFFIRMED.

Robert G. Carey, Esquire, Assistant Public Defender, Wilmington, Delaware for the Appellant-Defendant Below.

Saagar B. Shah, Esquire, Deputy Attorney General, Wilmington, Delaware for the Appellee.

OPINION AND ORDER

ABLEMAN, J.

This is an appeal from the conviction and sentencing Order issued by the Court of Common Pleas on December 17, 2002. Following a bench trial, the Court found the defendant, Sean Hughes ("Appellant"), guilty of Driving a Vehicle Under the Influence of Alcohol ("DUI") in violation of 21 Del. C. § 4177(a)(5).¹ At trial, the Appellant moved to suppress evidence based on a lack of probable cause. The Court of Common Pleas denied the motion to suppress and the Intoxilyzer results were submitted into evidence.

This is Appellant's second DUI conviction. Pursuant to 21 Del. C. § 4177(d)(2), he was sentenced to the minimum mandatory period of incarceration of sixty days at Level V and received a fine. Additionally, he was placed on probation for fifteen months at Level I. As a special condition of probation, he was directed to be evaluated for substance abuse at D.E.R.P. and, thereafter, complete a course of instruction or program of rehabilitation established by 21 Del. C. § 4177(e).

Despite having already served his sentence, Appellant filed the instant appeal with the objective of having his second DUI conviction removed from his record. On July 1, 2003, his counsel filed a brief and motion to withdraw pursuant to Appellant's Brief Under Superior Court Civil Rule 72, Superior Court Criminal Rule 39 (C) and Supreme Court Rule 26(c). Appellant's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues and the appeal is without merit. By letter, dated June 2, 2003, Appellant's attorney informed him of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw and the accompanying brief. Appellant was also informed of his right to supplement his attorney's presentation. Appellant responded to his counsel on June 27, 2003, raising seven issues incorporated in his appeal brief that he asks this Court to consider. The State ("Appellee") has responded to the position taken by Appellant's counsel and has moved to affirm the Court of Common Pleas' decision. This is the Court's decision on appeal.

Statement of Facts

On February 19, 2002, Corporal Keith R. Mark of the Delaware State Police, Troop 6, was patrolling the west side sector of New Castle County (Route 4, Route 2, Kirkwood Highway, parts of I-95, and Route 41).² Corporal Mark responded to a criminal complaint of terroristic threatening at Vince's Sport Center in Newark New Castle County, Delaware.³ While interviewing the alleged victim and witness, both individuals identified Appellant's vehicle as it drove into the parking lot. Appellant was the suspect in the criminal complaint that Corporal Mark was investigating.⁴

After his attention was directed to Appellant's car entering the parking lot, Corporal Mark observed a female passenger in the front right seat of the car. Corporal Mark testified that Appellant parked his car in a space of the parking lot of Vince's Sport Complex approximately fifty to one hundred feet away from where he was positioned.⁵ When Appellant got out of his car, Corporal Mark walked immediately towards the Appellant.⁶

Upon approaching the Appellant to investigate the terroristic threatening complaint, Corporal Mark smelled a strong odor of alcohol emanating from the Appellant. He further observed that Appellant's eyes were watery, bloodshot, and glassy as well.⁷ When Corporal Mark asked the Appellant if he had been drinking, he responded that he had consumed one drink and two shots.⁸ Appellant told Corporal Mark that he and his female passenger had picked up a birthday cake and had returned to Vince's for her son's birthday party. Prior to picking up the cake and before returning to Vince's, they had stopped to consume some drinks.⁹ While Corporal Mark suspected that the Appellant might have been under the influence, he decided not to investigate the DUI out of concern for officer safety. Instead, he arrested the Appellant on the terroristic threatening complaint.¹⁰ Corporal Mark believed it was prudent to delay sobriety field testing as he feared an impending altercation possibly involving the Appellant, the alleged male victim, the male witness, and himself.¹¹

Corporal Mark transported the Appellant to the Delaware State Police Troop 6 where he removed the handcuffs and asked the Appellant to undergo field sobriety tests, as well as to submit to an Intoxilyzer exam inside the Intoxilyzer room.¹² Corporal Mark performed the Horizontal Gaze Nystagmus ("HGN"), the Portable Breath Test ("PBT"), the Alphabet Test, and the Counting Backwards Test on the Appellant who voluntarily submitted to these tests.¹³ Corporal Mark did not perform any physical field tests on the Appellant because Appellant advised him that he suffered from leg or knee problems.¹⁴ Corporal Mark testified that the purpose for conducting these field sobriety tests was to establish probable cause for being under the influence of alcohol.¹⁵ Appellant stated to Corporal Mark that he was taking Valium, but that he was not ill at the time the tests were being conducted.¹⁶

Corporal Mark testified that all the field sobriety tests were conducted in accordance with the National Highway Traffic Safety Administration standards. Appellant failed the HGN and the PBT tests, but passed the Alphabet and Counting Backwards tests.¹⁷ Based on Appellant's slurred speech, bloodshot and watery eyes, and his failure to pass the HGN and PBT tests, Corporal Mark determined that Appellant's faculties were impaired. He then conducted the Intoxilyzer test on Appellant.¹⁸ In compliance with the requirements for administering the Intoxilyzer test, Corporal Mark ensured that Appellant did not eat, smoke, or belch during the twenty-minute observation period before administering the test.¹⁹ Additionally, Appellant informed Corporal Mark that he was not wearing dentures.²⁰ Finally, Corporal Mark testified that the Appellant did not, nor could not, have consumed any alcohol between the time he first observed the Appellant driving through the parking lot and when he underwent the Intoxilyzer test.²¹ Appellant registered a blood alcohol reading of 0.111.

Appellant's Contentions

In his brief, Appellant asserts that, upon exiting his vehicle, during the short period of approximately fifteen seconds that he alleges he was not observed by Corporal Mark, he reached in the back seat for the birthday cake and gifts, and simultaneously, drank a quarter pint of Southern Comfort, tossing the bottle in the grass.²² Appellant's female passenger corroborated this story. He further contends that he properly parked his vehicle between the marked parking lanes and that he did not stumble or stagger as he approached Corporal Mark. He justified his slurred speech as the consequence of having his jaw broken in two places and having undergone reconstructive surgery.²³ And, he claimed that the smell of alcohol emanating from his person may have been the result of beer spilt on him earlier in the day when he was at a bar drinking.²⁴ Appellant purports that Corporal Mark acted on a hunch and that he was forced to submit to field sobriety tests without the requisite articulable suspicion.

Appellant was involved in an automobile accident in 1996 as a result of which he sustained a crushed skull, broke his jaw in two places, split the roof of his mouth, and knocked out his teeth. He underwent reconstructive surgery for a metal bridge for his lower teeth and metal plates and screws across the front of his jaw.²⁵ He testified that he told Corporal Mark that five or six of his teeth were removable and that he had dentures, a plate and bridges.²⁶ Based on these facts, he alleges that Corporal Mark did not sufficiently interview him to determine if the condition of his mouth and teeth were such that residual alcohol content was trapped therein, providing a false positive BAC reading. Appellant also contends that he did not voluntarily submit to the Intoxilyzer test, but was coerced.²⁷

Finally, Appellant asserts that Corporal Mark lacked the requisite good cause to remove him from the scene in order to conduct field sobriety tests at Troop 6. Therefore, according to Appellant, the trial court committed error or abused its discretion: 1) in not suppressing the arrest; and 2) in admitting into evidence the Intoxilyzer reading of his blood alcohol content.

Standard and Scope of Review

In Levitt v. Bouvier, the Delaware Supreme Court set forth the proper scope of review of an appeal in a non-jury Superior Court case to the Supreme Court.²⁸ In State v. Cagle, the Court extended the same procedural standard and scope of review set forth in Levitt to an appeal on the record from the Court of Common Pleas to this Court.²⁹ In essence, when reviewing appeals from the Court of Common Pleas, the Superior Court sits as an intermediate appellate court, and as such, its function is the same as that of the Supreme Court.³⁰

Therefore, the applicable standard of review for appeals from the Court of Common Pleas to the Superior Court is de novo for legal determinations and "clearly erroneous" for findings of fact.³¹ While errors of law are reviewed de novo,³² findings of fact are reviewed only to confirm and verify that they are supported by substantial evidence.³³ Therefore, the Court's role is to correct errors of law and to review the factual findings of the court below to determine if they are "sufficiently supported by the record...