Trala v. State

244 A.3d 989

John TRALA, Defendant-Below, Appellant,

v.STATE of Delaware, Plaintiff-Below, Appellee.

No. 480, 2019

Supreme Court of Delaware.

Submitted: October 21, 2020

Decided: December 22, 2020

Santino Ceccotti, Esquire (argued), Office of Public Defender, Wilmington, Delaware.

John R. Williams, Esquire (argued), Department of Justice, Dover, Delaware.

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

VALIHURA, Justice:

A Superior Court jury convicted Defendant–Below/Appellant John Trala of driving under the influence. Trala contends the trial court erred in denying his motion for a mistrial after the State, in its rebuttal argument, asserted that defense counsel's lack of evidentiary objections to certain witness testimony relating to Trala's blood chemical analysis suggested that defense counsel had acknowledged the reliability of that incriminating evidence. He also claims he was denied a fair trial because the prosecutor, in a rebuttal remark, expressed her favorable personal opinion as to the credibility of the arresting officer who was a key witness for the State.

The jury specifically found both that Trala drove while under the influence of alcohol, and that he drove while his blood alcohol concentration was above the DUI threshold, two independent theories of liability supporting the same DUI charge.¹ In light of that dual holding, which is supported by overwhelming evidence, any error arising from the prosecutor's misconduct was harmless. Because of that, and because certain comments, although improper, are not illustrative of a pattern of repetitive misconduct, we AFFIRM the conviction.

I. Procedural History

This case arises from a minor rear-end traffic collision on the evening of Saturday, March 23, 2019. State troopers arrested motorist John Trala following that incident, and the State held a preliminary hearing five days later.² On April 22, 2019, the grand jury indicted Trala on two counts, Driving Under the Influence (DUI) and Following a Vehicle Too Closely.³ The Superior Court held a jury trial beginning September 16, 2019.⁴ The jury issued its verdict two days later, convicting Trala of DUI but acquitting him of Following a Vehicle Too Closely.⁵

On November 14, 2019, the Superior Court sentenced Trala as a seven-time DUI offender.⁶ The judgment of sentence included a fifteen-year term at Level V supervision suspended after five years and completion of Key and Reflections programs, and a $10,000 fine of which $7,500 was suspended.⁷

II. Factual Record

On the evening of March 23, 2019, Trala rear-ended another vehicle on Route 9 in Lewes in Sussex County, Delaware while that vehicle had stopped at a light at the Route 9 intersection with Route 1.⁸ The passenger in the other vehicle, a retired police officer, called 9-1-1. The jury heard the recorded 9-1-1 call⁹ in which the passenger described the collision and told the dispatcher that the other driver was drunk.¹⁰ The passenger authenticated his voice on the tape and identified Trala as the other driver.¹¹ He testified that he believed Trala was drunk because Trala was slurring his words and yelling, and having difficulty balancing.

Trooper Michelle Galiani of the Delaware State Police responded to the call.¹² Her vehicle's audio-visual recording equipment captured the interaction and the recording was admitted into evidence. In the recording, Trala concedes that he rear-ended the other vehicle, but claims that it had stopped at a green light.¹³ He initially denied having consumed any alcohol.¹⁴ When Trooper Galiani confronted him about the smell of alcohol emanating from his person, he gave different accounts about when he had consumed two beers and eventually described his drinking as having occurred at "[o]ne, two [in the afternoon]."¹⁵

Trooper Galiani testified that she observed Trala as having slurred speech, bloodshot and glassy eyes, and an odor of alcohol.¹⁶ She conducted field sobriety tests, which were audible but out of view of the vehicle's recording equipment.¹⁷

Trala continuously interrupted Trooper Galiani when she gave instructions as to the walk-and-turn test and one-leg stand, and, according to her testimony, he had difficulty performing them apparently due to pain or injury in his knee.¹⁸ He also failed to properly perform the alphabet and counting field sobriety exams.¹⁹ He failed to stop at the assigned letter in the alphabet, and while counting down from 69 he skipped the numbers 68 through 60.²⁰ He counted other numbers out of order, and on finishing, he reflected that he had not counted correctly, but declined Trooper Galiani's offer to try again.²¹ Following these tests, she administered a portable breath test to Trala who, after several attempts, produced a result of a 0.08 blood alcohol concentration.²² Trooper Galiani testified that Trala was sucking in breath instead of blowing at the appropriate time, and stated that because of this, she believed that the breath sample was of poor quality.²³ Lastly, Trooper Galiani procured the services of phlebotomist Serena Hall to perform a blood alcohol test. Trooper Galiani also explained the documented chain of custody on the test kit.²⁴

Hall explained that she deviated slightly from the kit's default protocols by using a 21-gauge butterfly needle as opposed to the 16-gauge needle provided in the kit.²⁵ Hall testified that she made a standard practice of using 21-gauge needles in lieu of the standard kit needle because she believed that the smaller needle size reduced patient pain and improved safety for both patient and provider.

Finally, the State proffered the expert testimony of forensic chemist Holly Fox.²⁶ Fox explained the procedures she undertook testing Trala's blood sample with the gas chromatograph, including placing the sample in a "rocker" that mixes it thoroughly. Her conclusion, having tested the blood, was that it contained 0.15 grams per 100 milliliters.

In closing arguments, Trala's counsel attacked Hall's failure to follow the kit's instructions by failing to note her substitution of needles in the chemical test report's remarks column.²⁷ He urged the jury to consider that other discrepancies may also have occurred but may have gone undocumented. He also urged the jury to question whether Fox's testimony as to her testing procedures was sufficiently credible to allow her report of Trala's blood alcohol level to meet the State's burden of proof.

In rebuttal closing argument, the State pointed out that Trooper Galiani did not base her inference that Trala was intoxicated on his poor balance in the walk-and-turn and one-leg test. The State argued to the jury that "you heard Trooper Galiani testify that she didn't count those tests against defendant, and if anything goes to her credibility, I think it's that statement right there ."²⁸

Additionally, the State argued to the jury that "[t]here was never an objection during testimony as to whether or not there was proper blood collection ." As for testing protocols, "there was also never an objection made as to whether or not testing protocols were followed ."²⁹ The State went on to declare that "there was no objection that the phlebotomist didn't follow the appropriate procedures when performing the blood draw of the defendant ."³⁰

The State continued to use this "no objection" formulation in its discussion of Fox's testimony, asserting that "defense didn't object that she wasn't qualified to be in that position ."³¹ Further, "[h]e didn't object that she wasn't qualified to perform duties in that position, and he didn't object that she wasn't qualified to analyze blood samples for the presence of alcohol ."³² With respect to the gas chromatograph, the State asserted, "[t]here was no objection from defense counsel that the machine wasn't working properly that day ."³³ And as to the possible inaccuracy of the machine, the State argued that "if [defense counsel] was so upset by the fact that Ms. Fox didn't know the error rate, how come he didn't object to the certificate of analysis coming into evidence? How come he didn't object to you seeing that 0.15 that is the defendant's blood alcohol concentration on that date ?"³⁴

Although defense counsel initially did not object to these statements, when the State invoked this "no objection" formulation for the tenth time, defense counsel requested a sidebar and objected.³⁵ Asserting that the "no objection" argument improperly led the jury to believe that failure to object meant that either the defendant or his counsel had conceded the credibility of the evidence, Trala's attorney requested a mistrial.³⁶ The Court denied that request, but instructed the jury to "disregard all of those references to objection, okay, in [the State's] closing comments."³⁷

The following day, after the jury had already deliberated for more than two hours the day before, and after determining that an additional curative instruction was necessary, the Court previewed such instruction with the parties.³⁸ The parties accepted it without modification.³⁹ The Court subsequently delivered the instruction to the jury, telling them:

Whether evidence is admissible or inadmissible is [a] matter for me to decide. So lawyer objections matter to me because they help me decide whether or not something should come in or shouldn't come in. They don't matter to you. Once I decide to admit evidence, then it is your province as jurors to make what you will of that evidence. You can believe it or disbelieve it. You can be persuaded by it or not persuade[d] by it. Whether [defense counsel] objected or didn't object doesn't matter for your purposes. It matters for my purposes.

So I just wanted to tell you why. Like I said, once evidence has been admitted, it's there for your consideration. You can be persuaded by it or not persuaded by it. It is within your province to accept it or reject it. You might believe it or disbelieve it. You may put a lot of weight on it or a little weight or no weight. So that is all your province.⁴⁰

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