IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DUEVORN D. HARRIS, )
Defendant-Below, §
Appellant, )

V. § Case No. 1402016580
STATE OF DELAWARE, §
Appellee. §

Submitted: September 6, 2018
Decided: December 3, 2018
MEMORANDUM OPINION

On Appealfrom the Decision of the Court of Common Pleas
AFFIRMED

Joseph A. Hurley, Esq., Wilmington, Delaware, Attorney for Appellant/
Defendant-Below.

Matthew F. Hicks, Esq., Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Appellee/Plaintiff-Below.

ROCANELLI, J.

PROCEDURAL BACKGROUND

Defendant Duevorn Harris Was arrested and charged With Driving a Vehicle
Under the lnfluence of Alcohol and various traffic violations Defendant Was
represented by counsel and elected a non-jury trial in the Court of Common Pleas
(“Trial Court”). At trial, the State and Defendant stipulated to the “sufflciency of
the calibration logs” and the “sufficiency of the lntoxilyzer card.”l According to the
results of the lntoXilyzer test, Defendant had a Blood Alcohol Concentration
(“BAC”) of 0.163,2 more than double the legal limit of 0.08.3

The Trial Court found Defendant guilty of DUI Second Offense and the traffic
violations by Order and Opinion dated March 12, 2018. Defendant Was sentenced
by Order dated April 27, 2018. This appeal followed.

Defendant argues that (1) the Trial Court abused its discretion in considering
the Intoxi~lyzer test result because the State did not lay a proper foundation for the
admission into evidence of the calibration logs for the Intoxilyzer and Intoxilyzer
card showing the results of the IntoXilyZer test; (2) the Trial Court erred by ruling
that Defendant’s stipulation to the admissibility of the Intoxilyzer card precluded

Defendant from raising an objection to the reliability of the test result; and, in the

 

l State v. Duevorn Harris, C.A. No. 1402016580, at 14 (Del. Com. Pl. Nov. 14,
2017) (TRANSCRIPT).

2 Ia'. at 53.

321 Del. C. § 4177(a)(4).

alternative, (3) if the stipulation by Defendant’s counsel (“Defense Counsel”)
waived Defendant’s legal challenge to the results of the Intoxilyzer, then the ruling
of the Trial Court to accept the stipulation and allow admission of the evidence is
plain error which requires this Court to consider whether manifest injustice resulted
STANDARD OF REVIEW

The Superior Court may consider an appeal from the judgment of the Court
of Common Pleas in a criminal action.4 The appellate role of this Court is limited
to correcting legal error and determining whether the factual findings made by the
trial judge are “suffrciently supported by the record and are the product of an orderly
and logical deductive process.”5 Questions of law are reviewed de novo.6

This Court will review the Trial Court’s rulings on the admissibility of
evidence for abuse of discretion7 A trial court has abused its discretion when it
ignores rules of law or exceeds the bounds of reason, producing an unjust result.8

The burden is on the party challenging the admission of the evidence to establish a

 

4 ll Del. C. § 5301(0).

5 Onkeo v. State, 2008 WL 3906076, at *l (Del. July l, 2008); Wheeler v. Clerkin,
2005 WL 873341, at *2 (Del. Apr. 13, 2005).

6 11 Del. C. § 5301(0); Dz'Sabatino v. State, 808 A.2d 1216, 1220 (Del. Super. 2002)
aj"a', 810 A.2d 349 (Del. 2002).

7 Palomino v. State, 2011 WL 2552603, at *2 (Del. Super. Apr. 4, 2011); Graves v.
State, 2006 WL 496140, at *1 (Del. Super. Feb. 2, 2006).

8 Culp v. State, 766 A.2d 486, 489 (Del. 2001).

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clear abuse of discretion in order for this Court to reverse the Court of Common
Pleas.9
The challenge here involves the Trial Court’s consideration of evidence to
which the parties stipulated A factual stipulation does not determine the legal effect
of the facts stipulated, but a stipulation conclusively establishes that fact from which
the trier of fact may draw its own legal conclusion.10 Moreover, once a party
stipulates to the admissibility of evidence, the other party wishing to rely upon such
evidence is relieved of its obligation to establish a foundation.11
Defendant’s argument in the alternative involves Defendant’s failure to object
to the admissibility of evidence at trial, which “constitutes a waiver of the
defendant’s right to raise that issue on appeal, unless the error is plain.”12
Under the plain error standard of review, the error complained of must
be so clearly prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process. Furthermore, the doctrine of
plain error is limited to material defects which are apparent on the face
of the record; which are basic, serious and fundamental in their

character, and which clearly deprive an accused of a substantial right,
or which clearly show manifest injustice.13

 

9 See Harper v. State, 970 A.2d 199, 201 (Del. 2009).

10 See State v. Ricketts, 1971 WL 125303, at *3 (Del. Super. Dec. 3, 1971)
(explaining that the weight to be given to the stipulated results of a polygraph test is,
“as with all evidence, left solely to the trier of fact”).

11 See Hunt v. State, 2013 WL 5745696, at *2 (Del. Oct. 21, 2013) (concluding that
the defendant’s stipulation to a medical examiner’s report constituted a waiver of
any objection to the admission of such evidence).

12 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

13 Id. (internal citations omitted).

ln the absence of a timely objection at trial, it is the defendant’s burden to
demonstrate prejudice in order to justify reversal on appeal.14
ANALYSIS

Defendant’s first two arguments challenge the Tn'al Court’s consideration of
the Intoxilyzer test result. Defendant argues that the Trial Court abused its discretion
by considering Defendant’s lntoxilyzer test result because the State did not lay a
proper foundation to show that there was an uninterrupted twenty-minute
observation of Defendant prior to testing. Defendant further argues that the Trial
Court erred by ruling that the stipulation precluded Defendant from raising an
objection to the reliability of the lntoxilyzer reading. It is the State’s position that,
when Defendant stipulated to the “sufficiency” of the calibration logs and the
Intoxilyzer card, the State was relieved of its obligation to lay a foundation for the
admission of this evidence.

lt is well-established that the Intoxilyzer test, when administered in
accordance with the manufacturer’s established protocol, is a reliable indicator of an
individual’s BAC 1evel.15 “[T]he admissibility of intoxilyzer test results center on

the State providing an adequate evidentiary foundation for the test result’s

 

14 Clark v. State, 2014 WL 5408410, at *3 (Del. Oct. 21, 2014).
15 See Clawson v. State, 867 A.2d 187, 192 (Del. 2005); McConnell v. State, 1994
WL 43751,~at *l (Del. Feb. 3, 1994); Best v. State, 328 A.2d 141, 143 (Del. 1974).

5

admission,” which includes “showing that there was an uninterrupted twenty-minute
observation of the defendant prior to testing.”16

Here, Defendant stipulated to the “sufficiency” of the calibration logs and the
“sufficiency” of the Intoxilyzer card. “[O]bjections concerning the twenty minute
observation period are evidentiary foundation issues which may be raised either by
a pretrial motion or by an objection at trial.”17 Defendant did not object to the
admission in evidence of these documents Accordingly, the State was relieved of
its obligation to establish an evidentiary foundation Having stipulated to the
sufficiency of this evidence, Defendant waived any challenge to its admissibility
Therefore, the Trial Court did not abuse its discretion by considering the lntoxilyzer
test result which was admitted into evidence without objection

ln the alternative, Defendant argues that, due to his failure to object to the
foundation of the evidence by the stipulation entered, the ruling of the Trial Court to
accept the stipulation and allow admission of the evidence is plain error which
requires this Court to consider whether manifest injustice resulted. As provided by

Statute, where a person’s BAC is .08 or more, that person is guilty of Driving a

Vehicle while Under the Influence of Alcohol.18 Here, the stipulated lntoxilyzer

 

'6 Clawson, 867 A.2d at 191-92.
171d.
18 21 Del. C. §4177.

result indicated that Defendant had a BAC of 0. l 63.19 The record below established
that the Intoxilyzer was in good working order,20 that the lntoXilyzer test was
properly administered,21 and that Defendant’s BAC was more than twice the legal
limit.22 Thus, the overwhelming weight of the evidence in this case was in favor of
the State.

Here, Defense Counsel’s decision to stipulate to the Intoxilyzer test result was
a matter of defense strategy. It is not the role of a trial court to second-guess
counsel’s trial strategy.23 lt is well-established that “[d]efense counsel has the
authority to manage the day-to-day conduct of the defense strategy, including
making decisions about when and whether to object, which witnesses to call, and
what defenses to develop.”24 Even so, when the stipulations were presented, the
Trial Court challenged Defendant’s decision to stipulate to this evidence and
pointedly asked what issue was left for trial, to which Defense Counsel responded:
“guilt or innocence.”25 The Trial Court had no obligation to interfere with Defense

Counsel’S trial strategy. Indeed, it would have been improper to do so.

 

19 State v. Duevom Harris, C.A. No. 1402016580, at 53.
20 Ia'. at 44-48.

21Ia'. at 48-53.

22 [d. at 53.

23 Clark, 2014 WL 5408410, at *4.

24 Id.

25 Duevorn Harris, C.A. No. 1402016580, at 14.

7

There is no basis to conclude that the Trial Court committed plain error.
Moreover, Defendant has not demonstrated prejudice. Finally, this Court is
confident that manifest injustice did not result.

CONCLUSION

The Trial Court found that the State satisfied its burden of proof and that
Defendant’s guilt was established beyond a reasonable doubt. The Trial Court’s
factual findings are supported by the record and are the product of an orderly and
logical deductive process. The Trial Court’s decision after trial is free from legal
error. The Trial Court did not abuse its discretion by considering the Intoxilyzer test
result once the sufficiency of the calibration logs and Intoxylizer results was
stipulated by the parties. Manifest injustice did not result. The record evidence
supports Defendant’s conviction. Therefore, the decision of the Court of Common
Pleas is hereby AFFIRMED.

IT IS SO ORDERED this 3"1 day of December, 2018.

jy- <:;j dor-dig

The Honorable Aiidrea L. Rocanelli

