IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
I.D. No. 1612006969 WLW

V.

IRVIN C. ROTHENBERG,
Defendant.
Submitted: July 12, 2017
Decided: August 16, 2017
ORDER
Upon Defendant’s Motion for Mistrial or NeW Tn`al.
Dem'ed.

Upon Defendant’s Motion to Suspend Sentence.
Denied.

Dennis Kelleher, Esquire of the Department of J ustice, Dover, Delaware; attorney for
the State of Delaware.

J ames M. Stiller, Jr., Esquire of Schwartz & SchWartz, Dover, Delaware; attorney for
the Defendant.

WITHAM, R.J.

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

Before the Court are two motions filed by the Defendant and the State’s
responses in opposition. ln his first motion, the Defendant asks this Court to grant
a mistrial, or in the alternative, for a new trial as a result of the State’s allegedly
improper statement made during the State’s opening statements In the event the
Court does not grant the Defendant’s first motion, the Defendant asks this Court to
suspend his sentence as a result of his numerous medical conditions. For the reasons
set forth below, the Defendant’s motions are DENIED.

DISCUSSI()N
A. The Defendant’s Motion for a Mistrial or New Trial

On June 14, 2017, a jury found the Defendant, Irvin C. Rothenberg, guilty of
Driving Under the Influence of Alcohol and/or Drugs and Failure to Yield to a
Vehicle or Pedestrians in a Intersection or Crosswalk.

The Defendant now objects to the State’s allegedly improper statements made
during the State’s opening remarks to the jury. During opening argument, the
Defendant contends, and the State admits, that the State divulged to the jury that
evidence Would show that an lntoxilyer Test administered to the Defendant indicated
that the Defendant’s blood alcohol content (“BAC”) Was .207% at the time the test
Was administered

The Defendant contends that he did not object to the State’s comment because
(l) it Was made during opening argument, (2) the Court had already instructed the

jury that argument by the attorneys Was not to be construed as evidence,l and (3) the

 

1 The Court gives preliminary instructions to the jury as a part of its introduction to the trial.

2

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

Court had already denied the Defendant’s motion to suppress the Intoxilyzer Test
results.

The Intoxilyer Results, however, were not admitted into evidence because the
Court determined that the test was administered improperly as a result of live
testimony at trial. The Court issued a curative instruction prior to closing, directing
the jury to disregard any evidence or statements related to the Intoxilyzer Test results.

Now, after the trial has concluded, the Defendant challenges the State’s
reference to the lntoxilyzer Test results during the State’s opening argument. The
Defendant acknowledges that the State had a “good faith” basis to believe that it
would be able to introduce evidence of the results at trial. However, the Defendant
contends that despite the State’s “good faith” basis, the State’s remarks were “highly
improper and unfairly prejudicial to the Defendant.” The State’s remarks allegedly
constituted a “bell that simply cannot be unrung with curative instruction.” Thus, the
Defendant requests this Court to grant a mistrial pursuant to Superior Court Criminal
Rule 26.3 or , in the alternative, for the Court to grant a new trial pursuant to Rule 33.

As the trial has concluded, the Court will not address the Defendant’s request
for a mistrial Furthermore, although the Defendant cites Rule 26.3, the Defendant’s
motion exclusively addresses the standard set forth f`or the Court to grant a new trial
pursuant to Rule 33. Therefore, the Court will address only the motion for a new
trial.

Under Superior Court Criminal Rule 33, upon a defendant’s motion, the Court

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

may “grant a new trial to that defendant if required in the interest of justice.”2 A new
trial is warranted “only if the error complained of resulted in actual prejudice or so
infringed upon defendant’s fundamental right to a fair trial as to raise a presumption
of prejudice.”3

The Defendant claims that the State should not have referenced the specific
results of the Intoxilyzer Test during the State’s opening statement. However, a
prosecutor, in an opening statement, may allude to evidence that he or she intends to
offer and believes in good faith will be admissible at trial.4 Here, the State had a
reasonable basis to believe the Intoxilyzer results would be admissible because the
Court had already denied the Defendant’s motion to suppress the results. Thus, the
State could properly refer to the results in its opening to the jury.5 A new trial is

therefore not warranted in the interest of justice on this ground.

 

2 Super. Ct. Crim. R. 33.

3 Hughs v. State, 490 A.2d 1034, 1043 (Del. 1984); see Starling v. State, 882 A.2d 747, 755
(Del. 2005).

4 See Quill v. State, 2014 WL 4536556, at *3 (Del. Sep. 12, 2014) (citing Hughes v. State,
437 A.2d 559, 567 (Del. 1981); Davis v. State, 2014 WL 3943100, at *2 (Del. Aug. 12, 2014).

5 The Defendant urges this Court to consider factors set forth in Hughes v. State, to determine
whether a new trial is Warranted. Hughes, 437 A.2d 559 (Del. 1981). However, as the Delaware
Supreme Court in Baker v. State explained, the first step under either “harmless error” or “plain
error” review is to determine “whether prosecutorial misconduct occurred.” Baker v. State, 906 A.2d
139, 149-50 (Del. 2006). If the Court determines that no misconduct occurred, the analysis ends. Id.
Therefore, as the Court in this case has determined that prosecutorial misconduct did not occur, the
Court’s analysis must end.

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

B. The Defendant’s Motion to Suspend Sentence

In the Defendant’s second motion he asks this Court to suspend the
incarceration portion of any sentence imposed pursuant to 21 Del C. § 4177(d)(4),
as a result of the Defendant’s recent conviction.

Section 4177(d)(4) provides, in pertinent part, that an individual convicted for
DUI shall:

For a fourth offense be guilty of a class E felony, be fined not more
than $7,000, and imprisoned not less than 2 years nor more than 5 years.
. . . [T]he first 6 months of the sentence shall not be suspended, but shall
be served at Level V and shall not be subject to any early release,
furlough or reduction of any kind. The sentencing court may suspend up
to 18 months of any minimum sentence set forth in this paragraph
provided, however, that any portion of a sentence suspended pursuant
to this paragraph shall include participation in both a drug and alcohol
abstinence program and drug and alcohol treatment program as set forth
in paragraph (d)(9) of this section.”6

Despite the strict language of 4177(d)(4) requiring a mandatory six-month
period of incarceration, the Defendant begs the Court to consider his numerous
medical conditions when deciding his sentence. According to exhibits attached to the
Defendant’s motion, he suffers from the following: anemia; benign essential

hypertension; diabetes; alcoholic cirrhosis of the liver; aortic stenosis; severe

degenerative joint disease; and eye conditions. These conditions allegedly require

 

6 21 Del. C. § 4177(d)(4).

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

frequent office visits.7 Finally, the Defendant alleges that he requires extensive
rehabilitation as the result of alcohol addiction. Therefore, the Defendant requests
this Court suspend his mandatory sentence pursuant to ll Del. C. § 4221.

ll Del. C. § 4221 provides, in relevant part, that

a court may modify, defer, suspend or reduce a minimum or mandatory

sentence of l year or less, or a portion thereof, where the court finds by

clear and convincing evidence that the person to be sentenced suffers

from a serious infirmity with continuing treatment needs which

make incarceration inappropriate and that such person does not

constitute a substantial risk to the con/lmr/mity.8

Under the circumstances of this case, even if the Court determines that the
Defendant’ s medical conditions make incarceration inappropriate, the Court must still
deny the Defendant’ s request to suspend the mandatory sentence because his drinking
and driving pose a “substantial risk to the community.” The Court’s decision is
guided by its holding in State v. Harrz`ngton, where the Court determined that the

defendant in that case posed a substantial risk to the community absent incarceration

as a result of his drinking and driving.9 In that case, the defendant was convicted of

 

7 The Defendant has submitted a letter from a treating doctor from Delaware Podiatric
Medicine, P.A. which indicates that the defendant requires diabetic foot care every two months with
a visit to his office. ln addition, a letter has been received from Delaware Eye Clinic stating that
follow-up care will be required.

8 11 Del. C. § 4221 (emphasis added).
9 State v. Harrington, 2017 WL 781573 (Del. Super. Feb. 28, 2017).

6

State v. Irvin C. Rothenberg
I.D. No. 1612006969 WLW
August 16, 2017

two separate third offenses for driving under the influence.10 As the Defendant in this
case has been convicted for an equally egregious fourth offense, the Court is
compelled to hold as it did in Harrington. No evidence has been submitted to
show that the Department of Correction could not insure that his medical needs will
be met. Therefore, the Defendant’s motion for suspension of his sentence is denied.
CONCLUSION

Defendant’s Motion for a Mistrial or New Trial is DENIED. Defendant’s
Motion to Suspend his Sentence is DENIED.

IT IS SO ORDERED.

/¢//4/¢€3

Hon. William L. Witham, Jr.
Resident Judge

 

WLW/dmh
oc: Prothonotary
xc: Dennis Kelleher, Esquire
J ames M. Stiller, Jr., Esquire

 

10 ld.

