Desai v. State , 198 A.3d 725 ( 2018 )

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
BHUSHAN DESAI )
Appellant, §
v. § ID No. 1706004090
THE STATE OF DELAWARE §
Appellee. §
Submitted: September l 1, 2018
Decided: November 16, 2018
Upon Appealfrom the Court of Common Pleas -
AFFIRMED.
OPINION
Michael W. Modica, Esquire, Attorney for Appellant.
Jillian L. Schroeder, Esquire, Attorney for Appellee.
STREETT, J.
Introduction
Bhushan Desai (“Defendant”, “Appellant”) contends that the Court of
Common Pleas (Trial Court) abused its discretion and/or committed legal error by
admitting records from the IntoXilyZer calibration logbook through Delaware State
Trooper August Zickgraf (Trooper Zickgraf) under D.R.E. 803(6),l the business
records exception to the hearsay rule. Defendant claims that Trooper Zickgraf did
not have a basis of knowledge to testify that the records were made “at or near the
time” of the performance of the Intoxilyzer calibration tests.2 Defendant argues that,
as such, Trooper Zickgraf was not a qualified witness and the logbook records were
l Rule 803. Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is
Available as a Witness.
The following are not excluded by the rule against hearsay regardless of whether the declarant
is available as a witness:
(6) Records of a Regularly Cona’uctea’ Actl``vity. A memorandum, report, record or
data compilation, in any form of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by -- or from information transmitted by
-- someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) making the memorandum, report, record or data compilation was a regular
practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness
2 Appellant’s Opening Brief, at 7.
inadmissible because the State failed to show that the records were made “at or near
the time” of the event as required by D.R.E. 803(6).3
The State (“Appellee”) responds that Trooper Zickgraf was a qualified witness
under D.R.E. 803(6) and that the Trial Court did not abuse its discretion or commit
legal error when it admitted the logbook records into evidence.4
For the reasons set forth below, the decision of the Trial Court is affirmed.
Factual and Procedural Historv
On June 7, 2017, Defendant was arrested for driving a vehicle while under the
influence of alcohol (DUI) in violation of 21 Del. C. § 4177, failing to have his
headlights on when required by law in violation of 21 Del. C. § 4331(a), and an
illegal U-turn in violation of 21 Del. C. § 4152(a)(1).
On August 23, 2017, Defendant filed a Motion to Suppress, arguing that the
officers lacked reasonable suspicion to stop Defendant’s vehicle and probable cause
to take Defendant into custody for DUI. On December 13, 2017, the Court of
Common Pleas held a hearing on Defendant’s Motion to Suppress.
Sergeant Mark Papili (Sergeant Papili) of the Delaware State Police testified
at the suppression hearing that on June 7, 2017, at approximately 2:00 a.m., he
observed Defendant’s vehicle travelling westbound on Kirkwood Highway at the
3 Ia’.
4 State’s Answering Brief, at 3.
intersection of Albertson Boulevard. Defendant’s vehicle’s headlights were not on
and Defendant made an illegal U-turn in front of Sergeant Papili. Sergeant Papili
turned on his emergency lights and pulled Defendant over.
Sergeant Papili approached Defendant’s vehicle on the passenger side and
spoke to him through the open window. Defendant was the driver and sole occupant
of the vehicle. Sergeant Papili testified that he detected an odor of alcohol coming
from inside the vehicle and from Defendant’s breath. He also observed that
Defendant’s eyes were bloodshot and that there was an open 12-ounce can of Miller
Lite beer in the center console of the vehicle. Sergeant Papili described Defendant’s
speech as slightly slurred. Shortly thereafter, Trooper Zickgraf arrived at the scene.
Trooper Zickgraf assumed control of the DUI investigation and Sergeant Papili left
the scene.
Trooper Zickgraf testified that he also smelled a strong odor of alcohol coming
from the inside of the vehicle and from Defendant’s breath.5 Defendant told Trooper
Zickgraf that he had roughly 2 beers approximately 30 minutes prior. Trooper
Zickgraf observed the open beer can in Defendant’s vehicle and described Defendant
as having bloodshot and glassy eyes and slightly slurred speech. Trooper Zickgraf
5 Trooper Zickgraf testified that he “believe[d]” that he approached the driver’s side of the vehicle
when he made initial contact with Defendant. Suppression Hearing, at 29-30 (Dec. 13, 2017).
4
told Defendant to exit the vehicle and noted that Defendant was unsteady on his feet
after exiting.
Trooper Zickgraf testified that from the totality of the situation he was able to
form an opinion that Defendant was intoxicated and he requested that Defendant
perform field sobriety tests. Defendant was administered the HGN, Walk and Turn,
and Balance tests. Based upon the information he received from Sergeant Papili and
the results of the field sobriety tests, Trooper Zickgraf placed Defendant under arrest
for the above offenses.6 Trooper Zickgraf then transported Defendant to the police
station where Trooper Zickgraf administered the Intoxilyzer breath test on
Defendant.7
As a prerequisite to admitting Defendant’s Intoxilyzer test results, the State
moved to admit the Intoxilyzer calibration logbook records through Trooper
Zickgraf s testimony to establish that the Intoxilyzer was working properly when it
was administered on Defendant. Trooper Zickgraf testified that he was trained on
the Intoxilyzer while he was at the academy, identified the Intoxilyzer logbook,
6 There was a preliminary breath test administered but it was not admitted into evidence because
it was not administered in 15 minutes.
7 Trooper Zickgraf testified that he began observing Defendant at 0301 in the lntoxilyzer Room
and that he put the card into the Intoxilyzer at 0325. He testified that Defendant could not have
consumed any alcohol from the time the observation period began and the time the Intoxilyzer test
was submitted Trooper Zickgraf also testified that the lntoxilyzer test was administered “[a]bout
an hour” after Defendant had been in physical control of his vehicle. Suppression Hearing, at 99-
100.
stated that it is kept in the Traffic Lieutenant’s office, that anyone in the building has
access to the logbook, and that the entries in the logbook were made by Cynthia
l\/IcCarthy who is the State Chemist (“State Chemist”). He testified that he
recognized the State Chemist’s signature because “[s]he came down to the Academy
when [he] was going through the training, and [the State Chemist] signed the front
board with her signature” and that “[t]he same signature as when she signed the
board at the Academy is to [sic] on the bottom of the [logbook entry] page.”8
Trooper Zickgraf also testified that the State Chemist calibrates the
Intoxilyzers, that the logbook was kept for the specific Intoxylzer used on Defendant,
that the logbook is kept in the ordinary course of business, and that the purpose of
the logbook is “to keep the results of when [the State Chemist] calibrates the
Intoxilyzers.”9 When asked by the State: “To the best of your knowledge were the
entries in that Log Book made at or near the time that the test was performed by [the
State Chemist]”, Trooper Zickgraf answered: “Yes, from my knowledge.”'O The
State then asked: “Is there any reason that you would believe the Log Book is
unreliable?” Trooper Zickgraf responded: “No.”l'
8 Suppression Hearing, at 88.
9 [d.
10 Id. at 89.
" 1d.
Trooper Zickgraf testified that the record in the logbook prior to the arrest was
dated May 22, 2017 at the top and that the State Chemist signed and dated the bottom
of the record (May 22, 2017) and wrote down the time (1315 hours). '2 He then
testified that the next log record was dated at the top for June 26, 2017 and that the
bottom of the record was the same as the previous record except for the different
date and time.'3 The State asked: “And does those logs indicate that the Intoxilyzer
was working properly on the dates before and after the Defendant’s arrest [on June
7, 2017]?”, to which Trooper Zickgraf answered: “Yes, ma’am.”14
Defendant’s counsel then cross-examined Trooper Zickgraf. The exchange
went as follows:
Q. Officer, what is your basis of knowledge to testify that Cynthia
McCarthy prepares that record at or near the time that she actually
performs the test?
A. Well, 1 wasn’t there obviously. So all 1 can verify that she signed
it. I can verify that’s her signature and that she tested it. And I can
verify that she did date it and - under her signature and she dated and
time _ put a time down.
Q. So it’s based upon what she wrote, but you don’t have any
independent personal knowledge from observing how she performs the
test that those documents were made at or near the time that she
performed the test?
12 Id. 89-90
13 Id, at 90.
14 Id
A. When 1 was at the Academy she did perform a~ test for the class. But
again 1 wasn’t at this exact date and time when she performed it.15
Q. When she was performing the test for the class, that was just for
your knowledge, right‘? That wasn’t for what her normal - you know,
you’ve never observed her normal routine?
A. No, 1 have not.16
Following this cross-examination, Defendant’s counsel objected to the
admission of the logbook. He told the court, “1 don’t think there’s a basis to establish
that it was made at or near the time of the testing.”17 Defendant’s counsel argued
that Trooper Zickgraf is required to provide a basis for his knowledge that the
records were made at or near the time of the calibration tests. Defendant’s counsel
asserted that establishing such a basis for knowledge is usually accomplished
15 Although one interpretation of Trooper Zickgraf s answer could be that he was not present when
the test was performed at the academy, it appears that the Trial Court, the State, and Defendant
agree that Trooper Zickgraf testified that he observed the performance of the test that took place
at the academy but that he did not witness the calibration tests (on May 22 and June 26) conducted
on the 1ntoxilyzer that was used on Defendant. The Trial Court, in its Opinion, stated: “Zickgraf
testified he believes l\/[s. McCarthy signs her name and dates the test document sequentially since
he witnessed Ms. McCarthy calibrate the 1ntoxilyzer machines while he was in the academy.”
State v. Desal``, 2018 WL 2324300, at *2 (Del. Com. Pl. May 22, 2018). Defendant conceded in
his Opening Brief that Trooper Zickgraf “observed [the State Chemist] perform the testing on one
occasion during training.” Appellant’s Opening Brief at 5, 12. So to, the State asserts that “Trooper
Zickgraf witnessed Ms. McCarthy perform a calibration check while at the police academy.”
State’s Answering Brief, at 14.
161d. at 91.
17 Id, at 92.
through observing the State Chemist’s routine in the past. The Trial Court admitted
the logbook subject to briefing by both parties on the issue.
This matter then proceeded to trial on the same day. The State moved to admit
the results of the 1ntoxilyzer breath test that Trooper Zickgraf had administered on
Defendant. The Trial Court admitted the 1ntoxilyzer breath test results subject to its
decision on the admissibility of the calibration logbook. After trial, the Trial Court
took the matter under advisement to decide the issue of the admissibility of the
calibration logbook records.
On January 19, 2018, Defendant filed his post-trial letter memorandum in
support of his objection to the admission of the logbook records. Defendant claimed
that there was an insufficient foundation for admission under D.R.E. 803(6), the
Business Records Exception. On February 6, 2018, the State submitted its post-trial
response in opposition and, on March 2, 2018, Defendant submitted his reply.
On May 22, 2018, the Trial Court denied Defendant’s Motion to Suppress the
1ntoxilyzer calibration logbook records and found Defendant guilty of Driving While
Under the 1nfluence, Making an 1mproper U-Turn, and Failing to Have on
Headlights When Required.18 1n denying Defendant’s Motion to Suppress, the Court
cited McCoy v. State19 which held that “[e]ven though [the officer] had not witnessed
18 State v. Desai, 2018 WL 2324300, at *5 (Del. Com. Pl. May 22, 2018).
19 McCoy v. State, 2014 WL 1357317 (Del. Apr. 3, 2014).
9
a calibration check by a chemist, he had sufficient knowledge of the procedure by
which the intoxilyzer records were created” and as such, he was a qualified witness.20
The Court reasoned that Trooper Zickgraf “testified to the same elements as in
McCoy.”21 The Court explained that Trooper Zickgraf testified that he recognized
the State Chemist’s handwriting, that the duty of the State Chemist is to calibrate the
1ntoxilyzer, that once the State Chemist verifies the 1ntoxilyzer is working properly
she records the results on each form, and that afterwards she writes the date and time
that the calibration tests were made and signs the form.
Defendant appeals the Trial Court’s denial of his Motion to Suppress.
Parties’ Contentions
On September 11, 2018, Defendant filed his Opening Brief with this Court.
Defendant contends that Trooper Zickgraf was not familiar with whether the
calibration records in the logbook were made by the State Chemist “at or near the
time” she conducted the calibration tests.22 Defendant claims that Trooper Zickgraf
“confessed to a lack of knowledge about when and how [the State Chemist] actually
prepared the certification record even though he was familiar with how [the State
20 Ia’. at 2; cited in State v. Desai, at *5.
21 State v. Desai, at *5.
22 Appellant’s Opening Brief, at 7.
10
Chemist] conducted the calibration testing.”23 Defendant argues that because of
Trooper Zickgraf’s “lack of knowledge of [the State Chemist’s] record making
process,” he is not a qualified witness under D.R.E. 803(6).2‘1
Defendant writes that although Trooper Zickgraf testified to familiarity with
the State Chemist’s signature and testing procedure and that “from [his] knowledge”
the entries in the logbook were made at or near the time of the calibration testing, he
did not provide any basis for his “knowledge.”25 Defendant further contends that
Trooper Zickgraf appears to base his conclusion (that the calibration records were
made near the time that the 1ntoxilyzer was tested) exclusively upon the contents of
the records themselves “as opposed to an understanding” of how the record entries
are completed.26 Defendant argues that a qualified witness is required to establish
familiarity with the process for not only how the record is kept but also how it is
created. Defendant asserts that Trooper Zickgraf “was required to establish his
personal knowledge that [the State Chemist] completed [the 1ntoxilyzer logbook
entry] at or near the time of the event.”27
23 [a'.
24 161
25 Id. at 12.
26 Id. at l3.
27 Id. at 18 (internal quotations omitted).
11
Defendant claims that the Trial Court erred in admitting the 1ntoxylizer
calibration logs because Trooper Zickgraf was not a qualified witness and the results
of Defendant’s 1ntoxilyzer breath test were erroneously admitted. As such,
Defendant contends that the DUI conviction based upon the 1ntoxilyzer breath test
results must be reversed.
Defendant cites several cases to support his argument. Defendant writes that
a Georgia Court of Appeals case, Mullinax v. State,28 “is directly on point with the
issue in this case” and “mirrors Defendant’s position in this case. . .”29 1n his brief,
Defendant explains that the court in Mullinax held that “the state trooper did not
establish the adequate foundation for admission of the testing certificates for the
1ntoxilyzer 5000 under the business records exception to the hearsay rule because
he did not know if the documents were made contemporaneously with the testing,
even though he was familiar with other aspects of how the records were
maintained.”30 Defendant asserts that the Mullinax holding “should control the
issue.”31
28 Mullinax v. State, 231 Ga.App. 534 (COA Ga. Mar. 24, 1998).
29 Appellant’s Opening Brief, at 10.
30 Id. at 9-10 (bold and italics in original) (internal quotations omitted).
31Id. at 10.
12
Defendant also cites United States v. Ordonez and Kol)nes v. World Fl``bers
Corp.32 Defendant states that, in Ordonez, the 9111 Circuit “determined that the
ledgers did not qualify as business records under 803 (6) because the prosecution did
not produce a custodian of the records or establish the foundational requirements for
admission under that rule, including the failure to establish that the entries were
made at or near the time of the transactions.”33 Defendant writes that, in Kolmes,
the United States Court of Appeals for the Federal District held that “documents
offered by an alleged patent infringer did not satisfy the business records exception
to the hearsay rule because its witness did not know when and how the documents
were prepared.”34
On October 1, 2018, the State submitted its Answering Brief. The State
contends that the Trial Court properly concluded that Trooper Zickgraf was a
qualified witness. The State argues that Trooper Zickgraf is familiar with the State
Chemist’s record-keeping process for 1ntoxylizer calibration logs; he testified that
he recognized the State Chemist’s handwriting and signature; he knew that the State
Chemist is responsible for conducting periodic checks of the calibration of the
1ntoxylizer; he knew that the State Chemist verifies that the 1ntoxylizers are working
32 U.S. v. Ordonez, 737 F.2d 793 (911‘ Cir. 1984); Kolmes v. World Fz'bers Corporation, 107 F.3d
1534, 1542 (Fed. App. 1997).
33 Appellant’s Opening Brief, at 10 (internal quotations omitted).
34 Id. at 11 (internal quotations omitted).
13
properly; and that the State Chemist then fills out the form with the results, signs,
dates and writes the time the tests were conducted, and then places the form in the
1ntoxylizer logbook that is located in the Traffic Lieutenant’s office. The State also
argues that Trooper Zickgraf indicated that he is familiar with the logbook.
Furthermore, the State points out that Trooper Zickgraf witnessed the State Chemist
perform a calibration test during his training at the police academy. Therefore, the
State concludes that Trooper Zickgrafs testimony “demonstrates the requisite
adequate familiarity with the 1ntoxylizer calibration and record-keeping process.”35
The State also points out that Trooper Zickgraf testified that the calibration
logbook recorded the calibration test result for the 1ntoxylizer used on Defendant,
there was no reason to believe that the entries in the logbook were unreliable, the
dates in the logbook indicated that the 1ntoxylizer was working properly before and
after it was used in the present case, the State Chemist signed, dated and provided a
time on the log sheets, and that the calibration log sheets were signed within minutes
of the times listed for the calibration tests.
1n addition, the State asserts that the dates and time listed on the logs “make
it self-evident that the calibration sheets are signed and prepared at or near the time
35 State’s Answering Brief, at ll (internal quotations omitted).
14
as required by” D.R.E 803(6) and that there is no reason to question the truthfulness
of the logbook records.36
On October 8, 2018, Defendant submitted his Reply Brief. Defendant argues
that, although the State points out that Trooper Zickgraf observed the State Chemist
perform the calibration testing, Trooper Zickgraf “did not witness the creating of the
record memorializing the results of the testing.”37 Defendant contends that Trooper
Zickgraf is not familiar with the process of recording the calibration results and
cannot be a qualified witness for testifying that the logbook records were made at or
near the time of the calibration tests because he did not witness how or when the
State Chemist recorded the calibration results on these logbook forms. Defendant
maintains that it was necessary for Trooper Zickgraf to have observed the process
by which the State Chemist recorded the results of the calibration tests in the
calibration logbook in order to establish the requisite familiarity.
Standard of Review
Under 11 Del. C. § 5301(c) Defendant has a right to appeal the Trial Court’s
decision to this Court. Such an appeal to this Court shall be reviewed on the record
and shall not be tried de novo.38 This Court is to correct errors of law and to review
36 Id. at 14 (internal quotations omitted).
37 Appellant’s Reply Brief, at l.
33 11 Del. C. § 5301(c) - From any order, rule, decision, judgment or sentence of the Court in a
criminal action, the accused shall have the right of appeal to the Superior Court in and for the
15
the factual findings of the Trial Court to determine “if they are sufficiently supported
by the record and are the product of an orderly and logical deductive process.”39
Errors of law will be reviewed de novo and findings of fact are given deference and
reviewed for clear error.40 “1f substantial evidence exists for a finding of fact, this
Court must accept that ruling, as it must not make its own factual conclusions, weigh
evidence, or make credibility determinations.”41
Discussion
“1t is well-established in Delaware that the prerequisite to introducing the
result of an intoxilyzer test into evidence is to present the certifications of the State
Chemist that the intoxilyzer machine was operating accurately before and after
testing the breath of the defendant on trial.”42 However, the Court has held that “[a]
State Chemist is not required to personally authenticate the certification. 1nstead,
county wherein the information was filed as provided in § 28, article 1V of the Constitution of the
State. Such appeal to the Superior Court shall be reviewed on the record and shall not be tried de
l'lOVO.
39 Burris v. Beneficz``al Delaware, INC., 2011 WL 2420423, at *1 (Del. Super. June 9, 2011).
40 Auwerda v. Sm¢e, 2017 wL 2729561, *6 (Del. super. June 19, 2017).
41 Klinedl``nst v. CACH, LLC, 2015 WL 3429941, at 3 (Del. Super. May 22, 2015), citing Fz'ori v.
State, 2004 WL 1284205, at *1 (Del. Super. May 26, 2004).
43 McCoy v. State, at *1.
16
such evidence can be introduced through the business records exception to the
hearsay rule”43 under D.R.E. 803(6).
D.R.E. 803(6) provides for the admission of a memorandum, report, record or
data compilation, in any form of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by -- or from information
transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not for
profit;
(C) making the memorandum, report, record or data compilation was a
regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of
trustworthiness.44
“Under Rule 803(6), the State [is] required to provide a proper foundation for
admission of the record through the testimony of the custodian or other qualified
witness”45 who “need only have knowledge of the procedures under which the
records were created.”46
43 101
44 D.R.E. 803(6).
45 Bruce v. State, 781 A.2d 544, 553 (Del. Sept. 13, 2001) (internal quotations omitted).
46 McCoy v. State, *2 (internal quotations omitted).
17
1n mez'ck v. State47 the Delaware Supreme Court outlined what a witness
must do to satisfy D.R.E. 803(6). The Court stated that:
A qualified witness, in addition to his or her familiarity with the record-
keeping system, must attest to the following foundational requirements
of Rule 803(6):
(1) [that] the declarant in the records had knowledge to make accurate
statements; (2) that the declarant recorded statements
contemporaneously with the actions which were the subject of the
reports; (3) that the declarant made the record in the regular course of
business activity; and (4) that such records were regularly kept by the
business.48
Thus, to determine whether the Trial Court erred in admitting the 1ntoxylizer
logbook records, this Court must first determine whether Trooper Zickgraf was a
qualified witness and then determine whether he showed that the records were made
at or near the time of the calibration tests.49
Essentially, Defendant claims that Trooper Zickgraf did not possess the
requisite familiarity with the record-keeping process because he never personally
observed the process by which the State Chemist records entries into the logbook.
However, McCoy v. State suggests that personal observation is not a requirement for
47 Trawick v. State, 845 A.2d 505, 508-509 (Del. Apr. 7, 2004).
48 Id.
49 See McCoy v. State, at *2 (“In addition to meeting the requirements of a qualified witness, the
State also provided sufficient evidence to satisfy the foundational requirements of Rule 803(6).”).
18
establishing the requisite familiarity.50 The Court held that “the witness need not
personally observe the State Chemist conduct a calibration of the intoxylizer
machine in order to admit the calibration log into evidence.”5 1 Although Defendant
argues that observing the calibration test is distinguishable from observing entries
into the logbook concerning the calibration results, the Delaware Supreme Court did
not make a distinction. 1t held that “[i]n order to be a qualified witness, the witness
need only to have knowledge of the procedure under which the records were
created.”52 “[A]ll that is necessary to be a qualified witness” is for the witness to
provide “testimony demonstrating his familiarity with the procedures in which the
records were created.”53 There is no requirement that the witness personally observe
the act of recording the results, participate in the document’s creation, or “even know
who recorded the information.”54
30 1n his Opening Brief Defendant states: “To the extent that McCoy does not require that [sic]
testimony of personal knowledge, then it conflicts with the well-established requirements of DRE
803(6) and is a flawed decision.” Defendant appears to be referring to this Court’s decision in
State v. McCoy, 2012 WL 1415698 (Del. Super. Feb. 21, 2012). However, it was affirmed in
2014 and the Supreme Court upheld the decision to permit the logbook. See McCoy v. State, 89
A.3Cl 477 (Del. Apr. 3, 2014).
31 McCoy v. State, at *2 (internal quotations omitted).
32 Id. (italics added).
53 Id_
54 State v. McCoy, 2012 WL 1415698, *4 (Del. Super. Feb. 21, 2012).
19
Here, Trooper Zickgraf’s testimony reflected knowledge of the procedures
under which the records were created. He explained that the purpose of the
1ntoxilyzer logbook was “to keep the results of when [the State Chemist] calibrates
the 1ntoxilyzer.”35 He stated that “once [the State Chemist] verifies that the 1ntox is
calibrated and running correctly she then fills out the form.”36 He attested that the
State Chemist provided a signature, date, and time on the calibration log sheets and
that “from [his] knowledge” the State Chemist made these entries in the logbook at
or near the time that the calibration tests were performed.37 Thus, Trooper Zickgraf
explained the purpose of the logbook, the sequence of events that led to the logbook
entries, the nature of the entries, and the timing of the entries. Trooper Zickgraf s
testimony adequately sets forth the record-keeping process for the calibration
logbook records.
Additionally, Trooper Zickgraf provided a basis for his knowledge. He
testified that he recognized the State Chemist’s handwriting and signature; that the
signature, dates, and times listed were in the State Chemist’s handwriting; and that
the date at the top of the page and the bottom of the page matched. When asked
whether he had any personal knowledge, obtained by “observing how [the State
33 Suppression Hearing, at 88 (emphasis added).
56 Id. at 98.
37 Id. at 88-89.
20
Chemist] performs the test that those documents were made at or near the time that
she performed the test,” Trooper Zickgraf explained that “[w]hen [he] was at the
Academy [the State Chemist] did perform a test for the class.”38
Furthermore, in Delaware there is a “well established presumption that, in the
absence of evidence to the contrary, those responsible for certain services to the
public will carry out their duties in a proper, careful, and prudent manner.”39 1n
McConnell v. State,60 the Delaware Supreme Court specifically applied this
presumption to State Chemists. The Court held that “[i]n the absence of evidence to
the contrary, there is a presumption that the State Chemist acted carefully and in a
prudent manner.”61 1n the instant case, Cynthia McCarthy is a state chemist.
Defendant has not offered any evidence to overcome the presumption that this State
Chemist acted carefully and in a prudent manner when she made the entries on the
log sheets. Therefore, when Trooper Zickgraf indicated that the signature, date, and
time provided by the State Chemist on the official record formed a basis for his
33 Suppression Hearing, at 91-92.
39 State v. McCabe, 1995 WL 562130, at *4 (Del. Super. Aug. 14, 1995) (quoting Judah v. State,
234 A.2d 910, 911 (Del. Nov. 2, 1967)). See also State v. McCoy, 2012 WL 1415698, at *5 (Del.
Super. Feb. 21, 2012), an"d McCoy v. State, 89 A.3d 477 (Del. Apr. 3, 2014); State v. Moon, 2014
WL 12684748, at *4 (Del. Com. Pl. Jul. 9, 2014).
60 McConnell v. State, 639 A.2d 74 (Del. Feb. 3, 1994).
6| lai
21
knowledge of when the entries were made, there was a presumption that the basis
was accurate.
As a qualified witness under D.R.E. 803(6) Trooper Zickgraf was required to
show that the record entries were made at or near the time of the calibration tests.
The Delaware Supreme Court held that under D.R.E. 803(6) a qualified witness must
“attest” that the declarant recorded statements contemporaneously with the actions
which were the subject of the reports.62
McCoy v. State illustrates how a qualified witness satisfies the “foundational
requirements of Rule 803(6)” concerning an 1ntoxilyzer calibration logbook.63 The
Court held that the qualified witness in the case satisfied the foundational
requirements when he testified that he recognized the handwriting of the State
Chemist on the logbook records, that the State Chemist is responsible for conducting
regular, periodic checks of the calibration of the 1ntoxilyzers, that the State Chemist
produces the logbook records contemporaneously with the calibration tests, that the
calibration records are made in the ordinary course of business, and that the
calibration records are kept as business records by the traffic lieutenant.
62 Trawick v. State, 845 A.2d 505, 508-509 (Del. Apr. 7, 2004).
63 McCoy v. State, *2.
22
Here, Trooper Zickgraf similarly testified that he recognized the handwriting
of the State Chemist on the logbook records, that the State Chemist is responsible
for calibrating the 1ntoxilyzers, that the calibration logbook is kept in the ordinary
course of business, and that the calibration logbook is kept in the traffic lieutenant’s
office. Trooper Zickgraf also attested that the State Chemist made the entries at or
near the time of the calibration tests. As such, it was not an error or abuse of
discretion for the Trial Court to find that Trooper Zickgraf satisfied the foundational
requirements as laid out in McCoy v. State.
Finally, the cases that Defendant cites in support of his claim are
distinguishable from the instant case. 1n Mullinax, which Defendant argues is
controlling, the trooper “testified that he did not know if the documents were made
contemporaneously with the testing.”64 1n the instant case, Trooper Zickgraf
answered in the affirmative when asked if the documents were made at or near the
time the test was performed.63 Nowhere in the transcripts does Trooper Zickgraf
state that he did not know if the documents were made contemporaneously with the
testing.
64 Mullz``nax v. State, 231 Ga.App. 534 (COA Ga. Mar. 24, 1998).
63 Suppression Hearing, at 89.
23
So too, United States v. Ordonez does not support Defendant’s claim.66 1n
Ordonez, the 9th Circuit held in 1984 that the Federal Rule was not satisfied because:
The government did not produce the custodian of the records as a
witness. No evidence was offered by any person that the records were
kept by persons having personal knowledge of the facts recorded or that
the entries were made at or near the time of the transaction No evidence
was presented to demonstrate that the persons who made the entries
were truthful and had a clear recollection of the facts. The entries were
made by many persons, some of them unidentified The expert’s
opinion that these entries were business records was not supported by
the foundational evidence required by Fed.R.Evid. 803(6).
Here, Trooper Zickgraf attested that the State Chemist made the records, that the
record was made at or near the time of the tests, and there was no question about
who made the records. Furthermore, in Kolmes v. World Fibers Corp.67, a 1997
case, the witness “failed to testify concerning the record-keeping process related” to
the records. Trooper Zickgraf described the record-keeping process. While
“officers in other cases may have been better qualified witnesses because of their
experience,” Trooper Zickgraf’s testimony met the “minimum requirements
necessary” to be qualified as a witness because he had knowledge of the system.68
Moreover, a qualified witness is to be construed broadly.69
66 U.s. v. ordonez, 737 F.2d 793, 805 (96“ Cir. 1984).
67 Kolmes v. World Fibers Corporation, 107 F.3d 1534, 1543 (Fed. App. 1997).
68 stare v. McCoy, ar *4 (2012).
69 Id. at *5 (citing U.S. v. Console, 13 F.3d 641, 657 (31‘1. Cir. 1993)).
24
The Trial Court did not commit legal error or abuse its discretion in admitting
the 1ntoxilzyer logbook and subsequently admitting the results of Defendant’s
1ntoxilyzer breath test. The law does not require that a qualified witness personally
observe the State Chemist’s routine in recording the calibration test results, there
was no indication of untrustworthiness, and there was substantial evidence for the
Trial Court to find that the calibration logbook records were made at or near the time
of the calibration tests.
Conclusion
Accordingly, for the foregoing reasons, the decision of the Court of Common
Pleas is AFFIRMED.
IT IS SO ORDERED.
MM A»»/»-/'v/
Diane Clarke §treett, Judge
Original to Prothonotary
cc: Jillian L. Schroeder, Esquire, Deputy Attorney General
Michael W. Modica, Esquire
25