State v. Palomino, Cr. A. No. 0807040189 (Del.Gen.Sess. 9/3/2009)

• Decision Date: 03 September 2009
• Docket Number: Cr. A. No: 0807040189.
• Parties: STATE OF DELAWARE v. CECIL G. PALOMINO, Defendant.
• Court: Court of General Sessions of Delaware

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STATE OF DELAWARE v. CECIL G. PALOMINO, Defendant.

Cr. A. No: 0807040189.

Court of Common Pleas of Delaware, New Castle County.

Submitted: August 6, 2009.

Decided: September 3, 2009.

Upon Defendant's Objection to Admission of Evidence Under the Business Records Exception, OVERRULED.

Barzilai K. Axelrod, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State

Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

ROCANELLI, J.

Defendant Cecil G. Palomino was charged by information with Driving Under the Influence of Alcohol in violation of 21 Del. C. §4177(a).¹ Defendant objected to the admission into evidence of two certification sheets purporting to show the intoxilyzer machine was operating accurately before and after testing Defendant's breath. The Court concludes Trooper Joshua Walther is an "other qualified witness" who attested to the necessary foundational requirements of Rule 803(6) of the Delaware Rules of Evidence. Therefore, the business records exception to the hearsay rule is satisfied and Defendant's objection is overruled.

THE FACTS

On July 26, 2008, at 11:26 p.m., Trooper Walther of Delaware State Police Troop One responded to a report about a vehicle stopped on the exit ramp from Interstate 95 northbound to Marsh Road. Trooper Walther observed a 2002 Mazda MPV minivan ("Defendant's Vehicle") stopped on the far right side of the ramp, partially blocking traffic, with thick smoke coming from Defendant's Vehicle. Trooper Walther arrived from the opposite direction onto the ramp and pulled his marked patrol car in front of Defendant's vehicle. Upon approaching Defendant's Vehicle, Trooper Walther noticed a large amount of oil on the pavement under Defendant's Vehicle, and Trooper Walther observed the hood was warm to the touch.

Defendant was in the driver's seat, attempting to start Defendant's Vehicle. In response to Trooper Walther's inquiry, Defendant stated he had been driving on I-95 and smoke started coming from his vehicle so he pulled off I-95 onto the ramp. While standing approximately one to two feet away from Defendant, Trooper Walther noticed Defendant had bloodshot, glassy eyes, was slurring his words, and had a strong odor of alcohol on his breath. Trooper Walther asked Defendant to perform a series of field sobriety tests, to which Defendant consented.

The first field sobriety test performed by Defendant was the Horizontal Gaze Nystagmus ("HGN") test. It was established Trooper Walther was trained to administer HGN tests.² The HGN test was administered to Defendant in compliance with National Highway Traffic Safety Administration standards. Defendant failed six of the six possible clues. Trooper Walter read the instructions for the walk-and-turn test but Defendant did not understand the instructions and therefore did not complete the walk-and-turn test. Trooper Walther administered a portable breath test ("PBT"), which Defendant failed.

Trooper Walther placed Defendant under arrest for Driving Under the Influence of Alcohol in violation of 21 Del. C. §4177(a).³ Trooper Walther transported Defendant to Troop One. After observing Defendant for twenty minutes and obtaining Defendant's consent, Trooper Walther administered an intoxilyzer test according to standard operating procedure.

STATE'S EVIDENCE AND DEFENDANT'S OBJECTION

According to the State, the intoxilyzer machine at Troop One was calibrated by State Chemist Julie Willey before and after the test performed on Defendant, specifically calibration records dated July 18, 2008 and September 8, 2008 established the intoxilyzer machine was in good working order within acceptable range of error.⁴ The State did not present State Chemist Willey to testify at trial, and instead relied on Trooper Walther to testify as an "other qualified witness" who could attest to the necessary foundational requirements of Rule 803(6). According to the State, the business records exception to the hearsay rule applies.

Defendant objected on the grounds Trooper Walther is not an "other qualified witness" because he has never met State Chemist Willey and has never seen her perform a calibration check on an intoxilyzer machine. According to Defendant, the business records exception to the hearsay rule does not apply.

ANALYSIS

The Intoxilyzer 5000 with which Defendant's breath was tested has been deemed a scientifically acceptable means of measuring blood alcohol content.⁵ It is well-established the prerequisite to introducing the result of an intoxilyzer test into evidence is to present certifications by the State Chemist that the intoxilyzer machine was operating accurately before and after testing the breath of the defendant on trial.⁶ The State need not produce the State Chemist at trial to testify about the calibration tests and can instead rely on the business records exception to the hearsay rule, set forth in Rule 803(6) by presenting "the custodian or other qualified witness."⁷

A qualified witness must understand the record-keeping system.⁸ Defendant concedes Trooper Walther is generally familiar with the proper method used by State Chemists to calibrate an intoxilyzer machine; he has been trained regarding the calibration methods; and has observed calibration of intoxilyzer machines by State Chemists other than State Chemist Willey. Trooper Walther is a qualified witness.

"A qualified witness, in addition to his or her familiarity with the record-keeping system, must attest to the following foundational requirements of Rule 803(6): (1) [that] the declarant in the records had knowledge to make accurate statements; (2) that the declarant recorded statements contemporaneously with the actions which were the subject of the reports; (3) that the declarant made the record in the regular course of business activity; and (4) that such records were regularly kept by the business."⁹ As set forth below, the necessary foundational requirements have been established for the calibration sheets to be admitted into evidence under the business records exception to the hearsay rule.

First, the declarant is the State Chemist. "In the absence of evidence to the contrary, there is a presumption that the State Chemist acted carefully and in a prudent manner."¹⁰ Trooper Walther testified he recognized the handwriting on the certification sheets as that of State Chemist Willey and he recognized her signature because he reviewed an e-mail containing her signature. Defendant has not challenged the accuracy of the statements made by the State Chemist in the calibration logs; therefore the State is entitled to the presumption that State Chemist Willey acted carefully and in a prudent manner. The first prong of the foundational test is satisfied.

Second, there is evidence the State Chemist Willey recorded the statements in the log book contemporaneously with the calibration tests. According to Trooper Walther, the entries made by State...