IN THE COURT OF COMMON PLEAS FOR THE STATE 0F DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
v. ) Cr.A. No.: 1309010262
)
)
MICHAEL W. ZAPPA, )
)
Defendant. )
)
Submitted: February 24, 2016
Decided: April 8, 2016
Katherine Butler, Esquire Louis B. Ferrara, Esquire
_If`}k';,§artment of Justice Ferrara & Haley
~SE{;¥ N. French Street, 7th Floor 1716 Wawaset Street
Wilmington, DE 19801 Wilmington, DE 19806
Attorneyfor the State ofDelaware Attorney for Defendant

ORDER ON DEFENDANT’S MOTION FOR A MISTRIAL
COMES NOW, this 8th day of April 2016, the Court finds as follows:
l. On September 14, 2013, Michael Zappa ("Defendant") was arrested and charged
with Driving Under the Influence of Alcohol ("DUI"), in violation of 21 Del. C. § 4177.
2. On December 15, 2015 and January 29, 2016, the Court held a suppression
hearing to determine the legality of the stop and arrest.
3. During the hearing, the Court heard testimony from Corporal Megan Hazzard
("Corporal Hazzard"), Trooper Christopher A. Jewel ("Trooper Jewe1"), Corporal Heidi Carroll
("Corporal Carroll"), and Trooper Jenny Gliem ("Trooper Gliem") (collectively, the

"Troopers"), each of whom were involved in either the traffic stop or subsequent arrest of

Defendant. The Troopers testified about their training, their observations and interaction with
Defendant, and their opinion as to whether Defendant was intoxicated on the night in question.
The Court also received a copy of Corporal Hazzard’s Motor Vehicle Recording ("MVR"),
which captured Defendant’s behavior during the stop.

4. The Court also heard testimony from Defendant. On direct examination,
Defendant testified, inter alia, that he suffers from panic attacks and post-traumatic stress
disorder ("PTSD"), as a result of serving two tours of duty in Afghanistan. He further testified
that he was not driving under the influence, and that his actions on the night in question were
attributable to these medical conditions. On cross-examination, the State asked "And in fact,
later on that evening, you blew into an Intoxilyzer machine?" After Defendant responded
affirmatively, the State attempted to ask about the reading on the test.l Defense counsel
objected to that line of questioning, and moved for a mistrial (the "Motion"). In response, the
State argued that its line of questioning would elicit proper impeachment testimony from
Defendant. The State also argued that under the rules of evidence, it was proper to ask whether
Defendant knew that he showed signs of impairment. Ultimately, the Court reserved its decision
on the Motion, and ordered briefing on whether, at the suppression stage of a DUI hearing, the
State can elicit testimony from a defendant regarding the results of the Intoxilyzer test, for
purposes of impeachment.

5. On February 4, 2016, the State filed its submission with the Court, and provided
three reasons as to why the Court should not grant the Motion. First, the State argues that, at the
suppression stage of the proceeding, a mistrial is not a procedurally appropriate remedy. The

State contends that a mistrial is only an appropriate remedy when the trier-of-fact has heard

l The actual reading on the Intoxilyzer was never published to the Court.

2

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inadmissible testimony during trial that extremely prejudices the defendant and no meaningful

and practical alternatives’ exist."z Instead, the State contends that the Court should treat
Defendant’s Motion as an objection to the State’s line of questioning, and allow the State to
continue its cross-examination of Defendant. Second, the State argues that its line of questioning
was proper because it was attempting to challenge Defendant’s credibility. The State contends
that while ordinarily the Intoxilyzer results are inadmissible at this stage of the proceedings, the
results are relevant to challenge the truthfulness of Defendant’s testimony, and thus, may be used
on cross-examination Finally, the State argues that even if the Court determines that the State’s
line of questioning is improper, the Court should simply disregard the State’s question.
Therefore, the State requests that the Court deny the Motion and allow the suppression hearing to
continue.

6. On February 24, 2016, Defendant filed a reply to the State’s submission.
Defendant argues that the State’s line of questioning was improper because at the suppression
stage of the proceeding, the State was not pennitted to proffer any testimony concerning the
chemical testing of Defendant. He also claims that the State’s efforts in continuing its line of
questioning without correcting this error, despite Defendant’s objections and the Court’s caution,
demonstrated a disregard for the Court’s Rules of Procedure. Defendant argues that the State’s
attempt to question him about the intoxilyzer reading, coupled with what he deems to be prior
discovery violati0ns, warrants sanctions, which he contends should be in the form of a mistrial.3

7. The Court finds that Defendant’s Motion for a Mistrial is procedurally misplaced.
On a non-jury DUI Calendar, this Court hears suppression motions immediately prior to trial. If

the Court finds that reasonable articulable suspicion and probable cause existed, then following

2 State’s Br. p. 2 (quoting Brown v. State, 897 A.Zd 748, 752 (Del. 2006)).
3 In his brieflng, Defendant argues that a more appropriate sanction would be a dismissal of all pending

charges.

the hearing on the motion, the State moves all non-hearsay testimony into evidence and proceeds
to trial. In this case, the Court finds that declaring a mistrial would be improper, because this
matter is still at the suppression stage and has not yet moved forward to trial. Therefore, the
Court denies Defendant’s Motion and will address Defendant’s initial objection to the State’s
attempted question.

8. The question attempted by the State regarding Defendant’s performance on the
Intoxilyzer test was improper, albeit on cross-examination for purposes of impeachment, because
Defendant is not in the position to determine whether his performance on the Intoxilyzer test
satisfied the legal meaning of impairment under 21 Del. C. § 4177. Although Defendant may
have opened the door to challenge his credibility, the State’s attempted question was improper,
However, there are other appropriate questions the State could have asked to properly elicit
impeachment testimony.l Thus, the Court finds that the State’s attempted question was
improper, and sustains Defendant’s objection. The Court will proceed with the remainder of the

suppression hearing.

_ IT IS SO ORDERED THIS 8th day of April, 2016.

 

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':Shé`l`<`§<`;.$);;_,_:l§`§."`Rennie,
Judge

4 lndeed, defense counsel conceded at the suppression hearing that if the State had asked "[W]hether
Defendant was aware that there was a reading or chemical test indicating the presence of alcohol in his
system," then there would be no basis for an objection. Suppression Hearing at 2:04:14-16, State v.

Zappa, Cr. A. No. l3090l0262 (Jan. 29, 2016).

