IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IOANNIS ALEXOPOULOS, )
)

Defendant-Below, )

Appellant )

)

v... ) ID. No. 1405008028

)

STATE OF DELAWARE, )
)

Plaintiff-Below, )

Appellee. )

Submitted: January 25, 2016
Decided: Apri1 22, 2016

ORDER
Upon Appealfrom the Court of Common Pleas of the State of Delaware
in and for New Castle County,
AFFIRMED, IN PART; DISMISSED, IN PART.

This 22nd day of April, 2016, upon consideration of the parties’ briefs and
the record below, it appears to the Court that:

(1) Following a July 2015 jury trial in the Court of Common P1eas,
Appe11ant Ioannis Alexopoulos was found guilty of Driving Under the Influence

("DUI"), Leaving the Scene of a Collision, and Improper Lane Change.' Prior to

1 C.C.P. Trial Tr. at 234-35._

sentencing, the State entered a nolle prosequi on the leaving the scene count.z The
Court of Common Pleas imposed a fine and probated term of imprisonment for the
DUI charge. For the improper lane change, Alexopoulos received a $25 f1ne.3
Alexopoulos has appealed his convictions.

(2) This Court takes criminal appeals from the Court of Common Pleas.4
Such appeals are "reviewed on the record," not "tried de novo."5 In that way, this
Court "functions in the same manner as the Supreme Court, in its position as an
intermediate appellate court, when considering an appeal from the Court of

Common Pleas."é

(3) Here Alexopoulos argues that the Court of Common Pleas erred
when it denied his motion for a mistrial after a State’s witness recounted that as he
implored Alexopoulos to remain at his accident scene, Alexopoulos "was
determined to get away" and mentioned that "he had a previous DUI and could not

stay at the scene." The Court finds that the Court of Common Pleas did not abuse

2 C.C.P. Dkt. ar 1._

3 Id, at 3_.,
" DEL. cone ANN. m 11, § 5301(¢) (2015).
1a

6 Layne v. State, 2006 WL 3026236, at *l (Del. Super. Ct. Sept. 26, 2006) (citing Dickens
v. State, 2003 WL 21982924, at *3 (Del. Super. Ct. July ll, 2003)); see also Baker v. Connell,
488 A.2d 1303, 1309 (Del. l985) (Superior Court’s function as intermediate appellate court is
basically the same as the Supreme Court).

_p__

(l6) Pena’s second factor requires the Court to consider the extent of any
prejudice caused by the c0mment. Alexopoulos argues that Gomez v. State%
should control here. In Gomez, the Supreme Court determined that this Court
abused its discretion by denying a mistrial and electing to issue a curative
instruction where a witness testified that the defendant had also committed a sexual
assault against the victim’s cousin. The trial court in Gomez had previously ruled
evidence of that sexual assault against a different niece inadmissible.37 The
Supreme Court found that the witness’s statement "created an impermissible
inference that [the defendant] committed the offense for which he was being tried,"
and the subject matter was so closely related to the charged conduct that a curative
instruction could not have remedied the prejudice to the defendant.38

(l7) Alexopoulos’s reliance on Gomez is unavailing.” While the witness’s
testimony was somewhat related to the offense for which Alexopoulos was being

tried (a DUI), the remark about the prior was Alexopoulos’s own. Here the

14, 2013) (witness’s one statement that he saw "mug shots" of the defendant was not sufficient
to warrant a mistrial).

25 A.3d 786, 794-95 (Del. 2011).

39 So too is his reliance on Ashley v. State where a spectator’s courtroom outburst patently

prejudiced the defendant’s claim of self-defense because it accused the defendant of previously
being the aggressor in an unprovoked stabbing that had earlier been specifically ruled
inadmissible by the trial court. 798 A.2d 1019 (Del. 2002).

_1]_

witness’s testimony was not revealing the existence or facts of Alexopoulos’s
previous conviction. He relayed only the comment Alexopoulos made about how
that prior was affecting his actions on the evening of the accident. Alexopoulos’s
statement had never been formally excluded from evidence by the court. And
again, Alexopoulos’s own words while he fled the accident scene may have
otherwise been admissible to demonstrate the reason for Alexopoulos’s attempt to
avoid the police and his consciousness of his own impairment when he hit the
guardrail. In turn, it was far less prejudicial than an accusatory outburst or
reference to a prior crime the witness claimed to have had personal knowledge of.40
As such - while maybe a closer call - the second Pena factor did not favor a
mistrial.

(18) The third Pena factor requires the Court to consider whether
Alexopoulos’s was a "close case." Prejudice from a witness’s improper statement
is mitigated where there is "strong, independent evidence" of guilt/n This was not
a close case. The remaining evidence_the witness’s testimony that Alexopoulos

suddenly veered off the road, smelled like alcohol, had slurred speech, walked up

"° see snipes v_ Snne, 2015 WL 1119505, en *3 (Del. Mar. 12, 2015) (nnoing no likelihood
of prejudice where witness’s comments complained of were "vague, innocuous, and made no
specific reference to [defendant] or the crime for which he was charged").

41 See Jones v. State, 2013 WL 596379, at *2 (Del. Feb. 14, 2013); see also Payne v. State,
2015 WL l46906l, at *4 (Del. Mar. 30, 20l5) (fmding case was "not close" where three
witnesses identified defendant as committing the offense).

_12_

the road erratically, and acted irrationally; the investigating trooper’s testimony
that Alexopoulos smelled like alcohol, had slurred speech and bloodshot eyes; and
the Intoxilizer results that showed Alexopoulos had a prohibited alcohol content of
O.l442_was overwhelming evidence that Alexopoulos violated Delaware’s DUI
statute. Thus, the third prong of Pena favors the State.43

(19) As to the final Pena factor, the trial judge offered to give a curative
jury instruction, but Alexopoulos made a strategic decision to decline it.44
Alexopoulos’s decision to decline the Court of Common Pleas’ offer to give a
curative instruction was a tactical decision that constitutes a waiver of the ability to
argue here that the trial judge’s efforts to mitigate any prejudice were
insuff1cient.45 So the fourth Pena factor weighs against Alexopoulos.“’

(20) The Court of Common Pleas properly assessed the factors for
determining whether a mistrial was necessary, and concluded that a sufficient

alternative to a mistrial existed in a curative instruction, which Alexopoulos

C.C.P. Trial Tr. at 99-100, ll7, 146_.

43 See Pena v. State, 856 A.Zd 548, 551 (Del. 2004) (fmding it was "not a close case" where
two witnesses testified against defendant, claiming they were carrying drugs for him).

C.C.P. Trial Tr. at 88-89_._,
See Andrus v. State, 1998 WL 736338, at * 4 (Del. Oct. l, 1998).
46 see snipes v_ S¢a¢e, 2015 wL 1119505, at *4 (Del. Mar. 12, 2015) ("snipes’ counsel

expressly requested that the trial court refrain from giving such an instruction. Accordingly, the
fourth Pena factor weighs in favor of the State.").

_]3_

expressly requested the trial judge refrain from giving. After carefully weighing
the factors under the Pena analysis, this Court concludes that the Court of
Common Pleas was within its discretion in denying Alexopoulos’s motion for a
mistrial

NOW THEREFORE, IT IS ORDERED that the Court of Common Pleas’
judgment of conviction on the DUI charge is, therefore, AFFIRMED. Because
the sentence for the lane change violation does not meet the jurisdictional

requirement, the appeal as to that conviction must be DISMISSED without

review/17

so oRDERED this 22“" day of April, 2016.

jj

PAUL R. WALLACE, JUDGE

Original to Prothonotary

cc: Louis B. Ferrara, Esquire
Danielle J. Brennan, Deputy Attorney General

47 see Reese v_ State, 2014 WL 4059213, at *1 (Del. Aug. 15, 2014) (supteme court must
dismiss appeal of any individual sentence that fails to meet the constitutional threshold for
appealable sentences); Castura v. State, 2009 WL 2365558, at *2 (Del. July 16, 2009) (when
appeal is to the Supreme Court, "each sentence [imposed] must be evaluated individually in
order to determine whether it meets the constitutional threshold" and for those sentences that do
not "meet the jurisdictional requirement . . . appeal as to those convictions must be dismissed
without review"); Stevens v. State, 110 A.3d 1264, 1272 (Del. Super. Ct. 2015) (citing Johnson
v. State, 2008 WL 2721698, at *l (Del. July 14, 2008)) (same for appeals to this Court from the
Court of Common Pleas).

_14_

its discretion when it denied the mistrial motion. The Court therefore affirms the
judgment of the Court of Common Pleas.

(4) On the very rainy evening of May l0, 2014, Alexopoulos was driving
on Lancaster Pike away from Wilmington and toward the intersection with
Hercules Road in New Castle County when he crashed his pickup truck into a
guardrail. A witness, who was a passenger in a car traveling behind Alexopoulos,
saw him travel across the center lane into oncoming traffic, then change direction
and drive off the right side of the road into the guardrail.

(5) The witness’s wife pulled over onto the right shoulder. While she
called 91 l, the witness got out to see if he could assist anyone in the truck. He saw
Alexopoulos "sort of stagger[] out of the vehicle" and then begin "walking up the
shoulder of the road towards Hockessin."7 As he tried to navigate the narrow
shoulder, Alexopoulos was "at times veering into the road." The witness and
another driver, who also saw the accident, told Alexopoulos to stop walking, and
they "tried to convince him to stay at the scene."g

(6) The witness testified at Alexopoulos’s trial. The following exchange

took place between the prosecutor and the witness regarding the witness’s

7 C.C.P. Trial Tr. at 29._'

8 1a ar 29-30.

observations of Alexopoulos as Alexopolous was ambling on the shoulder:

Q. Was there anything else about this individual that made you
think he was, to use your words, off his game?

A. Well, sure. l mean, his course of behavior. I mean, one of
the things that we tried to do, me and this other gentleman,
was to convince him to stay at the scene. And he refused to
do that and his reasoning, his articulated reasoning was
irrational in light of the obvious circumstances that were,
that he was facing.

Did you ever detect an odor of alcohol from him?
Yes.

Are you able to give a characterization of that odor?
No, it was just odor of alcohol, I mean.

Did it -- how did his physical condition appear to you?

?>©.>©?>@

Well, it’s difficult. I mean, honestly he was a little
disheveled. l wouldn’t expect otherwise given that the
nature of the accident. l was a little surprised he was, you
know, not more injured than he was. He was determined to
get away. And we made efforts, me and the other
gentleman, to convince him to stay and his reasoning, when
he said, l recall him saying that he owned a restaurant, had
had a previous DUI and could not stay at the scene.g

Alexopoulos did not contemporaneously object to this testimony. And this was the

only mention of Alexopoulos’s prior DUI during the trial.'O

Ia'. at 31-32.

'0 Defense counsel first suggested that the witness recounted Alexopoulos’s prior-DUI

comment two or three times during his testimony. Ia'. at 61-62, 65, 69. He later admitted it
happened only once. Ia'. at 69.

_4_

(7) The witness continued that he told Alexopoulos "that his vehicle was
on the side of the road, it had a license plate on it, [and] that [Alexopoulos]’s not

going to make things better for [himself] if [he] leaves the scene."" When

1112

walking, Alexopoulos could not "maintain a straight line out of traffic, and went

"pretty dam far up the hill" before he eventually stopped.” The witness recalled
that Alexopoulos’s speech was slurred.m As the witness described him - upon
tallying all of his observations - Alexopoulos "was a very determined person who
was impaired."l§ After the police arrived and Alexopoulos was secured, the
witness spoke to a Delaware State Police trooper and gave the trooper his contact
information.

(8) Only after the witness had completed his direct, cross and redirect
testimony did Alexopoulos raise any objection. It was then that he moved for a

mistrial because the witness referenced that Alexopoulos told the witness of his

" 1a ar 32,_
'2 1a ar 54.
13 Ia'. at 51_.

"‘ 1a at 30, 57.

15 Id. at 53; see also ia'. at 57 (when asked what made him conclude Alexopoulos was
impaired, the witness summarized: "Well, one I could smell alcohol. Two, his speech was
slurred. Three, what he was doing and how he was responding to the circumstances was entirely
irrational.").

_5_

prior DUI as he was leaving the accident scene.'é Defense counsel argued the
witness’s miscue was so highly prejudicial to Alexopoulos because "it just totally
taints it" such that he had "no chance [once] th[e] jury hears that he has a prior""

and so a mistrial was the only possible remedy.'g

(9) Both defense counsel and the prosecutor acknowledged that the
witness had been specifically instructed before trial not to bring up this particular

statement by Alexopoulos during his testimony.'g

(l0) After a reces;~;i to conduct the appropriate research, the trial judge
denied Alexopoulos’s motion for a mistrial. The trial judge applied the four-factor
test established by our Supreme Court to evaluate whether a witness’s unsolicited

comment was sufficiently prejudicial to merit a mistrial. After reviewing all of the

‘6 1a ar 60-61.

" 1a ar 62, 65._

18 Ia'. at 61-62, 72-73 (defense counsel arguing that, based on his vast DUI experience, a

mistrial is the only appropriate remedy and is always granted in such a circumstance).

19 Ia'. at 60-65, 85 (defense counsel noting witness properly instructed); ia'. at 65-66, 70
(prosecutor confirming that witness was properly instructed before testifying). The Delaware
Supreme Court has directed the State to "prepare [its] witnesses to avoid the risk of prejudice
from an unnecessary reference" to a defendant’s past criminal acts. See Justice v. Stare, 947 A.2d
l097, 1102 n.27 (Del. 2()08). There is no doubt here that the appropriate caution was given to
the witness; the witness, however, drifted into the wrong lane by recounting Alexopoulos’s

words at the roadside when he was asked to testify about Alexopolous’s physical appearance.
C.C.P. Trial Tr. at 31-32.

_6_

factors, the court found they weighed against a mistrial.zo ln sum, the trial judge
found that the witness made the one statement "in passing, not for the truth of the
matter but the fact that someone made that statement to him," and that it was not a
"close case."z' The trial judge found the statement was not sufficiently prejudicial
to warrant a mistrial and instead, a curative jury instruction would suffice. But
Alexopoulos declined the offer of a curative jury instruction because he did not
want to "emphasize the problem." Per Alexopoulos’s request, the trial judge gave
no curative instruction.zz

(l l) Whether to grant a mistrial after an unsolicited response by a witness
rests within the trial judge’s sound discretion” because "the [ ] Court [of Common
Pleas] is in a better position to measure the risk of prejudice from events at trial."m

A mistrial is required only where there is "manifest necessity or the ends of public

2° 1a ar 85-88 (chihg Ravaz v. s»a»a, 956 A.za 23 (Del. 2008), which applied the art-used
four-factor test articulated in Pena v. State, 856 A.2d 548, 550-51 (Del. 2004) to decide whether
a mistrial should be granted in response to a witness’s allegedly prejudicial testimony).

2' 1a ar 85-83.

22 1a a188-89.

22 Tayzar v. sza¢a, 690 A.zd 933, 935 (Del. 1997).

24 Justice, 947 A.2d at 1110 (quoting Guy v. State, 913 A.2d 558, 565 (Del. 20()6)); Jones v.
State, 2013 WL 596379, at *2 (Del. Feb. 14, 2013) ("We recognize that trial judges are in a

better position to assess the risk of prejudice resulting from trial events compared to appellate
judges reviewing a transcript.").

_7_

justice would be otherwise defeated"z§ and there are "no meaningful and practical
alternatives."% This Court reviews the Court of Common Pleas’ denial of a motion
for mistrial in these circumstances for abuse of discretion or a denial of a
substantial right of the defendant.” The denial will be reversed on appeal only if it
is based on unreasonable or capricious grounds.zg

(12) As an initial matter, this Court is skeptical, as was the trial judge,zg
that the witness’s mention of Alexopoulos’s mid-flight statement providing his
reason for not sticking around for the police was improper. Evidence of flight and
consciousness of guilt was directly relevant to central issues in the case_whether
Alexopoulos was under the influence, knew he was under the influence, and was
fleeing the accident scene because he knew that he was under the inf`luence. Such

evidence is generally and has long-been admissible in criminal cases.30 And it

25 G@mez v. S¢a¢e, 25 A.zd 786, 793-94 (Del. 2011) (citing Bamher v_ S¢a¢e, 977 A.2d 370,
390 (Del. 2009)).

26 Ashzey v. s¢are, 798 A.zd 1019, 1022 (1)@1. 2002).

27 Jus¢zce, 947 A.2d ar 1102 (qu@ring Pena v. s¢a¢e, 856 A.zd 543, 550 (Dei. 2004)).
28 Banther, 977 A.Z-d at 890 (citing Zimmerman v. State, 628 A.Zd 62, 65 (Del. 1993)).
29 See, e.g., C.C.P. Trial Tr. at 73.

30 See Colon v. State, 1994 WL 605540, at *2 (Del. Oct. 27, l994) ("The general rule is that
evidence of flight can be used in a criminal prosecution to establish consciousness of guilt.");
McKinney v. State, 466 A.Zd 356, 359 (Del. 1983) (any conduct undertaken by a defendant to
conceal crime that tends to show consciousness of guilt is relevant); Thomas v. State, 467 A.2d
954, 958 (Del. 1983) (citing Tice v. State, 382 A.2d 231, 233 (Del. 1977)) (flight instruction
proper "where there is evidence of flight or concealment and the evidence reasonably supports an

_3_

would have been particularly relevant here where defense counsel was offering

31

alternative explanations for Alexopoulos’s departure. But assuming, as the

parties have in this appeal, that the witness should not have referred to
Alexopoulos’s own contemporaneous explanation as to why he was leaving the
accident scene, this Court should review the Court of Common Pleas’ application
of the mistrial analysis adopted by the Delaware Supreme Court.

(13) When considering whether a witness’s unsolicited comments require
the trial judge to declare a mistrial, this Court looks to the four-factor test of Pena
v. State_first, the nature and frequency of the offending comment; second, the
likelihood of resulting prejudice; third, closeness of the case; and fourth, the
adequacy of the trial judge’s actions to mitigate any potential prejudice.”
Considering these factors, the Court of Common Pleas did not abuse its discretion

by refusing to grant a mistrial.
(14) Perhaps - no, certainly - it would have been better had the witness

honored the State’s strategic decision to forgo use of Alexopoulos’s admission and

inference that defendant fled because ‘of a consciousness of guilt and a desire to avoid an
accusation based thereon, or for some other reason. . . ."’).

3 ' C.C.P. Trial Tr. at 64-65, 84 (Defense counsel: "And my argument was he left because it

was pouring rain, he couldn’t get in his car . . . He couldn’t get into his car ‘cause he locked his
keys in the car. And he’s gonna go home.").

32 856 A.2d 548, 550-51 (Del. 2004) (adopting the four-part analysis first articulated in
Taylor v. State, 690 A.Zd 933, 935 (Del. l997) to assess a "witness outburst" situation for a case
in which a mistrial was requested after an unsolicited prejudicial response by a witness).

..9..

not indulged his own unresponsive riff to a wholly proper question. No doubt, his
unilateral injection of the defendant’s ramblings left the trial court, prosecutor and
defense counsel with no opportunity to engage in the preadmission balancing
required under Delaware Rule of Evidence 403.33 But misadventures by testifying
witnesses rarely require mistrials or reversals of trial court decisions denying them.
Instead, such unfortunate circumstances are examined under Pena. The Court will
do so here.

(15) First, the nature and frequency of the witness’s comment do not favor
the grant of a mistrial. He mentioned Alexopoulos’s statement revealing his prior
DUI only once. And then, it was only the unresponsive tail end of a prolix answer
to an undoubtedly proper question posed by the prosecutor. Thus, the mention of

Alexopoulos’s "previous DUI" was "neither persistent nor frequent" but was a

934

"one-time occurrence.’ When a comment is "ileeting, unsolicited, and reflect[s

the defendant’s] own words," it does not necessitate a mistrial.35 Accordingly, the

first Pena factor did not favor a mistrial.

33 D.R.E. 403 ("Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. . .") (emphasis added).
34 copper v. srare, 85 A.zd 689, 694 (Del. 2014).

35 smith v. Sza¢e, 963 A.zd 719, 723 (Del. 2003); see also Asbury v. sm¢e, 2015 wL
5968404, at *3 (Del. Oct. 13, 2015) (single offending comment in rape and strangulation trial
that defendant previously "went to jail" weighed against mistrial); Payne v. State, 2015 WL
l46906l (Del. Mar. 30, 2015) (fact that it was a single witness’s single statement that defendant
had been "locked up" militated against a mistrial); Jones v. State, 2013 WL 596379 (Del. Feb.

_]O_

