Grandelli v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ERIK GRANDELLI, §
§ No. 506, 2013
Defendant-Below, §
Appellant, § Court Below: Superior Court of
§ the State of Delaware in and for
v. § Sussex County
§
STATE OF DELAWARE, §
§
Plaintiff-Below, § Cr. ID No. 1206017104
Appellee. §
Submitted: June 27, 20141
Decided: September 19, 2014
Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
ORDER
This 19th day of September 2014, upon consideration of the parties’ briefs
and the Superior Court record, it appears to the Court that:
(1) The appellant, Erik Grandelli (“Grandelli”), filed this appeal from his
conviction and sentencing in the Superior Court on his second violation of
probation (“VOP”). The background of this matter is as follows.
(2) On September 12, 2012, Grandelli pled guilty to Driving under the
Influence (Fourth Offense). The Superior Court sentenced Grandelli to five years
1
On September 17, 2014, at the Clerk’s request, the Prothonotary submitted several Superior
Court filings relevant to this appeal but inadvertently not included in the record filed on January
24, 2014.
at Level V suspended after six months for eighteen months at Level III probation
with “zero tolerance for alcohol” use.
(3) On April 18, 2013, Grandelli was charged with his first VOP. The
violation report alleged that, during a home visit on April 11, 2013, Grandelli took
a breathalyzer test that registered a blood alcohol content of .202% in violation of
the “zero tolerance for alcohol” condition of his sentence.
(4) On April 25, 2013, the Superior Court found Grandelli guilty of VOP
and resentenced him to four years and four months at Level V suspended for
eighteen months at Level III probation. The court reimposed the “zero tolerance
for alcohol” condition and added a new condition that Grandelli be monitored with
a transdermal alcohol device (“TAD”) to detect any alcohol consumption.
(5) On June 20, 2013, Grandelli was charged with his second VOP. The
violation report alleged that, on June 17, 2013, Grandelli’s TAD detected a
“drinking event” that was confirmed on June 18, 2013. On September 5, 2013, the
Superior Court found Grandelli guilty of VOP and resentenced him to four years at
Level V suspended after successful completion of the Reflections Program for one
year at Level III probation. The court also reimposed the “zero tolerance” and
TAD monitoring conditions. This appeal followed.
(6) On appeal, Grandelli claims that his second VOP conviction should be
overturned because one of the State’s witnesses “withheld key evidence” and “was
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biased [and] clearly presented a conflict of interest.” Also, Grandelli claims that
the Superior Court abused its discretion “by not considering the ‘preponderance of
evidence’ [and by] passing judgment with a closed mind.”
(7) At the VOP hearing, David Smith, Grandelli’s probation officer,
testified that he and another officer, in conjunction with BI Incorporated
(hereinafter “BI”), are responsible for installing and overseeing TAD monitoring in
Sussex County.2 Smith explained that a TAD consists of a transmitter that the
probationer wears around his ankle, and a receiver that attaches to the
probationer’s home telephone. According to Smith, information from the
transmitter is downloaded into the receiver at regular intervals and sent over the
telephone network to a computer at Smith’s office. Smith explained that when he
receives an email alert of an event indicating that a probationer has consumed
alcohol, he does a preliminary review of the scope and duration of the event and
then asks BI to analyze the data and confirm whether the event was a drinking
event or a false positive.
(8) Smith testified that he received alerts from Grandelli’s TAD on June
12 and June 17, 2013. According to Smith, BI concluded that the June 12 event
was a false positive, but that the June 17 event was a drinking event. Smith
testified that when Grandelli reported to the office on June 19, 2013 for his regular
2
BI Incorporated provides offender monitoring equipment and services.
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visit, Smith arrested him and charged him with VOP for having consumed alcohol
in violation of the “zero tolerance” condition of his sentence.
(9) Todd Bloemendaal, a BI engineer involved in the development and
programming of TADs, testified that a TAD is designed to be calibrated every six
months, and that Grandelli’s TAD was last calibrated on May 20, 2013, less than a
month before the June 17, 2013 alert. Bloemendaal further testified that, in his
opinion, Grandelli’s TAD was functioning properly on June 17, 2013. Finally,
using BI-prepared graphs that depicted the data logged from Grandelli’s TAD on
June 17, 2013, Bloemendaal testified that the data was consistent with a drinking
event that started at 4:06 p.m., peaked at 8:01 p.m., and ended at 12:30 a.m. the
following morning.
(10) On cross-examination, Bloemendaal testified about the June 12, 2013
events that were determined to be false positives (hereinafter the “June 12 events”).
When asked if he had graphs depicting the data logged from the June 12 events,
Bloemendaal stated that he had them on his computer.
(11) When questioned about his financial interest in BI, Bloemendaal
stated that he had applied for a patent for a TAD sensor that could prove profitable
for BI if the patent is approved, but he denied that he would make more money
from the patent. Bloemendaal also agreed that if BI’s TADs were “somehow
declared to be not valid or not reliable” there would be negative financial
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ramifications for the company, but he denied that he would have a financial
setback.3
(12) For the defense, Grandelli’s mother, Mary Baker, testified that, as of
June 17, 2013, Grandelli had been living with her for eight or nine months and was
working full-time in construction. According to Baker, on June 17, 2013, after
Grandelli’s employer drove him home from work around 5:00 p.m., she and her
husband ate dinner and watched television with Grandelli until he went to bed
around 10:30 p.m. Baker testified that she did not observe Grandelli drinking any
alcohol or appearing intoxicated that evening. Grandelli also took the stand and
denied drinking alcohol at any time that day and night.
(13) On appeal, Grandelli claims that his VOP conviction should be
overturned because Bloemendaal “withheld evidence” when he failed to use graphs
when testifying about the June 12 events. It is unclear how Bloemendaal’s failure
to use graphs constituted a withholding of evidence, and Grandelli does not explain
how Bloemendaal’s use of graphs when testifying about the June 12 events would
have tilted the balance of evidence in his favor. In any event, Bloemendaal’s
failure to use graphs when testifying about the June 12 events went to the weight of
his testimony, not its admissibility, and did not invalidate Grandelli’s conviction.4
3
Hr’g Tr. at 100 (Sept. 5, 2013).
4
Hickman v. Paraq, 167 A.2d 225, 231 (Del. 1961).
5
(14) Next, Grandelli claims that his VOP conviction should be overturned
because Bloemendaal was biased because he had a financial interest in BI and,
therefore, in the success of the State’s case. Grandelli’s claim is without merit.
Rather than invalidating Grandelli’s conviction, Bloemendaal’s financial interest in
BI went to the weight of his testimony, not its admissibility, and was explored
thoroughly as a potential source of bias on cross-examination.5
(15) Next, Grandelli challenges the admission of the TAD evidence,
claiming that the State did not lay a proper foundation for its admission.
According to Grandelli, the State was required to demonstrate that the TAD was
calibrated both before and after the June 17, 2013 drinking event. His claim is
without merit. Bloemendaal testified, generally, that a TAD should be calibrated
every six months and did not need to be calibrated after a drinking event.
Specifically, Bloemendaal testified that Grandelli’s TAD was properly calibrated
on May 20, 2013, less than a month before the June 17, 2013 alert. Based on
Bloemendaal’s expert testimony, there was an adequate evidentiary foundation to
admit the TAD evidence.6
5
Harris v. State, 2009 WL 189162, at *2 (Del. Jan. 20, 2009) (citing Weber v. State, 457 A.2d
674, 680 (Del. 1983)).
6
Clawson v. State, 867 A.2d 187, 191 (Del. 2005); Harris v. State, 2014 WL 3888254, at *3
(Del. Aug. 7, 2014) (citing Sturgis v. Bayside Health Ass’n Charter, 942 A.2d 579, 584 (Del.
2007)).
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(16) Next, Grandelli challenges the sufficiency of the State’s evidence.
According to Grandelli, Baker’s testimony, and a letter from his employer detailing
a “minute by minute operation” of the work day on June 17, 2013, proved his
innocence by a preponderance of the evidence. His claim is without merit. In
Delaware, a VOP need only be proven by “some competent evidence” to
reasonably satisfy the judge that the conduct of the probationer has not been as
good as required by the conditions of probation.”7 In this case, the Superior Court
concluded, and we agree, that the State presented sufficient competent evidence to
revoke Grandelli’s probation.
(17) Finally, Grandelli claims that the Superior Court judge abused his
discretion by “passing judgment with a closed mind” when he did not consider
Grandelli’s many accomplishments when imposing sentence.8 Grandelli’s claim is
without merit. “A judge sentences with a closed mind when the sentence is based
on a preconceived bias without consideration of the nature of the offense or the
character of the defendant.”9 In this case, contrary to Grandelli’s claim, the record
reflects that the judge listened to Grandelli’s version of the events on June 17,
7
Rivera v. State, 2014 WL 2093709, at *3 (Del. May 15, 2014) (citing Brown v. State, 249 A.2d
269, 272 (Del. 1968)).
8
Grandelli submits that he successfully completed a DUI program during his incarceration, and
that, on probation, he enrolled in an outpatient drug and alcohol counseling program with
mandatory AA meetings, obtained full-time employment, completed all of the hours of
community service, paid nearly half of the $5,700 fine imposed on his original conviction, made
all of his weekly visits to his probation officer, and always had clean urine screens.
9
Weston v. State, 832 A.2d 742, 746 (Del. 2003).
7
2013, and permitted Grandelli to testify about his accomplishments. Indeed, the
record reflects that the Superior Court has been tremendously patient with
Grandelli, in the face of his long-standing performance of extremely dangerous
conduct toward his fellow citizens and his continuing failure to refrain from
alcohol use. The Superior Court would have been well within its discretion to
sanction Grandelli far more harshly than it did, given the record.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
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