    IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE,                                     )
                                                       )
                 v.                                    )            Case No. 1512010138
                                                       )
JOSHUA L. PAYNE,                                       )
                                                       )
        Defendant.                                     )


                                       Submitted: March 24, 2017
                                         Decided: May 31, 2017


Dominic A. Carrera, Jr., Esquire                           Benjamin S. Gifford IV, Esquire
Deputy Attorney General                                    Law Office of Benjamin S. Gifford IV
820 N. French Street, 7th Floor                            14 Ashley Place
Wilmington, DE 19801                                       Wilmington, DE 19804
  Attorney for the State of Delaware                         Attorney for Defendant


                                    DECISION AFTER TRIAL


        The defendant, Joshua L. Payne (“Defendant”), was charged on December 14, 2015

with Failure to Stop at a Stop Sign, in violation of 21 Del. C. § 4164(a), and Driving While

Suspended, in violation of 21 Del. C. § 2756(a). Trial was held on February 7, 2017, where

the State called as its only witness Officer Brianna Oaddams1 (“Officer Oaddams”) of the

Wilmington Police Department. Additionally, during the trial, the State moved for the

admission of several documents to which the Defendant objected. At the conclusion of


1 Officer Oaddams has been a police officer with the Wilmington Department of Police for approximately
two years. She is assigned to the patrol division, and is responsible for enforcing traffic laws and responding
to emergency calls. The Court finds Officer Oaddams to be a credible witness.
trial, the Court reserved decision, and ordered supplemental briefing on the issue of the

documents’ admissibility. This is the Court’s decision after trial.



                      FACTUAL AND PROCEDURAL HISTORY

       On December 14, 2015, while patrolling the area of 5th Street in Wilmington,

Delaware, Officer Oaddams observed Defendant driving near the intersection of 5th and

Monroe Street. Officer Oaddams further testified that Defendant failed to stop, which was a

blatant disregard for the stop sign. Officer Oaddams testified that thereafter she followed

Defendant for several blocks and stopped him at 3rd and West Street. Defendant provided

Officer Oaddams with his identification, and Officer Oaddams conducted a motor vehicle

inquiry through DELJIS; the DELJIS inquiry revealed Defendant’s license had been

suspended. Defendant was thereafter arrested for Failure to Stop at a Stop Sign and Driving

While Suspended.

       A bench trial was held on February 7, 2017, and through the testimony of the officer,

the State sought to introduce several documents to establish that the Defendant’s license was

suspended. These documents, introduced as State’s Exhibit 1, consisted of an Affidavit of

Mailing, Official Notice of Revocation, and a Certified Driving Record. Defense counsel

raised several evidentiary objections to the admission of these documents.        Following

argument by both parties, the Court conditionally admitted the documents subject to

Defense counsel’s objections.      The Court reserved decision and ordered supplemental

briefing on the issue of the documents’ admissibility.




                                                2
                               PARTIES’ CONTENTIONS

       Defendant contends the affidavit of mailing, official notice of revocation, and

certified driving record are inadmissible as hearsay evidence, because the State failed to

satisfy the requirements of Delaware Rules of Evidence (“D.R.E.”) 803(6) and 902(11) for their

admission. Defendant first contends that the documents are hearsay under Rule 803(6), and

as such are not admissible unless the State can establish that such records were made at or

near the time by and from information transmitted by a person with knowledge and kept in

the regular course of business as shown by testimony of a custodian or other qualified

witness. Further, Defendant argues the State cannot meet its burden of authentication in the

alternative under Rule 902(11), because such section requires a party who seeks to admit the

records pursuant to this section “to provide written notice of such intention to all adverse

parties.” Therefore, Defendant reasons the written declaration—an affidavit sworn on June

28, 2016—must be excluded because the State failed to give the required notice.

       Furthermore, Defendant argues the driving record offered by the State is not

properly certified and cannot be admitted pursuant to 21 Del. C. § 2736(e). Defendant

concedes the statute allows for the admission of a motor vehicle conviction record into

evidence absent the appearance of an employee or agent of the Division of Motor Vehicles,

so long as the conviction record has been certified by the Director of Motor Vehicles.

However, Defendant contends the certification at the bottom of the driving record is invalid

as it fails to comply with the notarial rules of this State. Specifically, Defendant contends no

notary public attested to the certification at the bottom of the driving record. Defendant




                                               3
argues the State’s failure to obtain a properly certified copy of the driving record undermines

the reliability of the document absent witness testimony to its accuracy.

       Because the State allegedly failed to comply with the requirements of 803(6) and

902(11) and allegedly failed to introduce a properly-certified driving record, Defendant

argues the documents conditionally entered into evidence as State’s Exhibit 1 must be

excluded.      Furthermore, Defendant argues the only other evidence against him—the

testimony of Officer Oaddams—is insufficient to support a conviction of Driving While

Suspended. Accordingly, Defendant moves the Court to enter a finding of Not Guilty as to

that charge.

       Conversely, the State argues Defendant’s reliance on 803(6) and 902(11) for the

exclusion of the documents is unfounded, as 21 Del. C. § 2736 specifically provides for the

documents’ admissibility. It is the State’s contention that the affidavit of mailing and official

notice of revocation are admissible pursuant to section 2736(c), while the driving record is

properly certified and admissible pursuant to section 2736(e). The State also argues, in the

alternative, that the proposed exhibits are admissible pursuant to the public records

exception of D.R.E. 803(8) and are properly authenticated under the self-authentication rule

set forth in D.R.E. 902(4). For these reasons, the State submits the documents were

properly admitted into evidence.       As such, the State maintains the properly admitted

documents—along with the testimony presented at trial—establishes Defendant’s guilt

beyond a reasonable doubt.




                                               4
                                               DISCUSSION

                                   I. Admissibility of the Evidence

        Pursuant to 21 Del. C. § 2736, whenever a license is suspended or revoked the State

must provide notice of the suspension or revocation to the license holder.2 This statute

allows the State to prove a license holder received notice of suspension by “an affidavit of

any person over 18 years of age, naming the person to whom such notice was given and

specifying the time, place and manner of the giving thereof.”3 This statute was enacted to

“eliminate the cumbersome methods of proof required for license revocation by establishing

means to prove suspension or revocation that would not require the presence of a Division

employee in Court for every trial.”4 When proof of notice is made by an affidavit in this

manner, the Court may admit the affidavit into evidence5 and it will be unnecessary for an

employee or agent of the Department of Motor Vehicles to appear personally in court.6

        As required under section 2736(c)(2), the State submitted a notarized affidavit of a

Department of Motor Vehicles employee, Michaele Bradley, who swears that she is over 18

years of age. The affiant further avers that on December 10, 2013, an envelope was mailed

to Payne, Joshua Lee at 141 Autumn Horseshoe, Newark DE 19702, which contained a

copy of his Official Notification of Withdrawal of Driver’s License and/or Driving

Privileges. Attached to the affidavit of mailing is the official notice of revocation. I find that

this affidavit satisfies section 2736(c)(2). Accordingly, the affidavit of mailing and official



2 See 21 Del. C. § 2736(a).
3 21 Del. C. § 2736(c)(2).
4 Carroll v. State, 2002 WL 35628656, at *2 (Del. Super. Apr. 16, 2002).
5 See McMonigle v. State, 2009 WL 27311, at *2 (Del. Super. Jan. 6, 2009).
6 21 Del. C. § 2736(d).


                                                        5
notice of revocation are admitted into evidence to establish the fact Defendant received

notice of his license suspension.

        Likewise, I find the certified driving record admissible pursuant to 21 Del. C. §

2736(e). Section 2736(e) provides:

        “In any prosecution under this Code, a conviction record as maintained in the
        Division of Motor Vehicles, which has been certified by the Director of the
        Division of Motor Vehicles, may be admitted into evidence and shall be
        competent evidence that the person named therein was duly convicted of each
        offense enumerated therein and of the status of the person’s driving license
        and/or privileges. It shall be unnecessary for any employee or agent of the
        Department to personally appear for the admission into evidence of such
        conviction record in any proceeding under this Code.”7

        Defendant objects to the admission of the driving record on the grounds that the

document is not properly certified under the notarial rules of this State. However, I find no

merit in Defendant’s argument.            There is a difference between the requirements for

certification of public documents by public officials and the requirements for certification of

notarial acts under 29 Del. C. § 4321 et seq.     Section 4322 of Title 29 lists the various acts

which require certification by a notarial officer.8 Excluded from this list are copies of official

or public records that can be certified by a public official.9 Therefore, since the statute

provides for the driving record’s admission, I need not reach the authenticity issue raised by

Defendant.

        Pursuant to 21 Del. C. § 2736(e), the State submitted Defendant’s driving record. The

bottom of the driving record is affixed with the State’s seal for the Department of

Transportation. The bottom of the driving record states:

7 21 Del. C. § 2736(e)(emphasis added).
8 See 29 Del. C. § 4322.
9 See 29 Del. C. § 4322(d).


                                                  6
           “I, the undersigned, an officer of the Division of Motor Vehicles for the State
           of Delaware, in whose charge the above records are, DO HEREBY
           CERTIFY that the above is a true and correct copy of the driving record of
           the above named individual as it appears in the Division of Motor Vehicles,
           and that I am the officer having legal custody of this record.”

Moreover, the document is electronically signed by Scott Vien, the Director of the Division

of Motor Vehicles. This is sufficient to demonstrate that the driving record is properly

certified by the Director of Motor Vehicles. Accordingly, I find that the driving record is

admissible pursuant to 21 Del. C. § 2736(e).

                                 II. Sufficiency of the Evidence

A. Failure to Stop at a Stop Sign

           Defendant is charged by Information with Failure to Stop at a Stop Sign, in violation

of 21 Del. C. § 4164(a). In order to find Defendant guilty on this charge, the State has to

establish beyond a reasonable doubt that: (1) Defendant operated a motor vehicle; (2)

Defendant failed to come to a complete stop at an intersection controlled by a stop sign; and

(3) the stop sign was properly posted and clearly visible.10 At trial, Officer Oaddams testified

that she observed Defendant driving a vehicle near the area of 5th and Monroe Street, and

observed Defendant drive through a stop sign. Officer Oaddams further testified that it was

a blatant disregard for the stop sign. However, there is no testimony that the sign was

properly posted or clearly visible. Further, there is no testimony of Defendant’s approach to

the intersection, only that it was a blatant disregard, with no explanation of what constitutes

blatant. Such evidence is insufficient to prove beyond a reasonable doubt the offense

charged. Accordingly, I find Defendant not guilty of Failure to Stop at a Stop Sign. In so


10   21 Del. C. § 4164(a).
                                                 7
concluding, I do not find that Officer Oaddams lacked reasonable articulable suspicion to

stop the vehicle.

B. Driving While Suspended

          Defendant also stands charged with Driving While Suspended, in violation of 21 Del.

C. § 2756(a). In order to find Defendant guilty on this charge, the State has to establish

beyond a reasonable doubt that: (1) Defendant’s driving license or driving privileges were

suspended or revoked; (2) that notice of the revocation or suspension was given as provided

by the statute; and (3) that Defendant operated a motor vehicle on a public highway.11

Furthermore, in order for there to be a legal revocation or suspension, the State must

properly notify the Defendant of his revocation or suspension.12

          In this case, Officer Oaddams testified that she observed Defendant drive a vehicle

on December 14, 2015. The admitted certified driving record establishes that Defendant’s

license was suspended on or about the date he was operating the motor vehicle.

Furthermore, the admitted affidavit of mailing and official notice of revocation establish the

fact that Defendant was given notice of his license suspension prior to December 14, 2015.

Therefore, I find that the evidence establishes beyond a reasonable doubt Defendant’s guilt

of violating 21 Del. C. § 2756(a). The clerk shall schedule the matter for sentencing.

                                                             IT IS SO ORDERED.


                                                             _________________________________
                                                                         Alex J. Smalls,
                                                                         Chief Judge
State v Payne – May 31 2017




11 21 Del. C. § 4164(a); McMonigle v. State, 2009 WL 27311, at *2 (Del. Super. Jan. 6, 2009); State v. Kimbi, 2015
WL 5007981, at *2 (Del. Com. Pl. Aug. 21, 2015).
12 McMonigle, 2009 WL 27311, at *3.


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