State of Delaware v. Robert Swift

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
)
v. ) Cr. A. No. 1312016423
)
ROBERT SWIFT, )
)
Defendant. )
Submitted: June 30, 2014
Decided: November 5, 2014
Chris Marques, Esquire Louis B. Ferrara, Esquire
Deputy Attorney General Ferrara & Haley
820 N. French Street, 7th Floor 1716 Wawaset Street
Wilmington, DE 19801 Wilmington, DE 19806
Attorney for the State of Delaware Attorney for Defendant
ORDER ON DEFENDANT’S MOTION REGARDING
DISCOVERY OF POLICE OFFICER’S FIELD NOTES
COMES NOW this 5th day of November 2014, the Court finds as follows:
1) On December 27, 2013, Defendant Robert Swift (“Defendant”) was arrested
and charged with Driving Under the Influence of Alcohol, in violation of 21 Del. C. § 4177.
2) On May 20, 2014, the Court held a suppression hearing that continued and
concluded on May 22, 2014. The Court found that Cpl. Pixley, the arresting officer, had
probable cause to arrest Defendant. Following the Court’s decision on the Motion to
Suppress, Defendant moved to exclude evidence of the field sobriety tests for the State’s
failure to produce Cpl. Pixley’s field notes, which included a description of Defendant’s
performance on the field tests. Defendant made its motion at the end of the hearing
because it learned of the field notes for the first time during Cpl. Pixley’s cross examination.
The Court reserved its decision regarding Cpl. Pixley’s field notes, and indicated that it
would hear Defendant’s argument regarding the field notes, but that it would not invalidate
the decision finding probable cause.
3) Cpl. Pixley’s relevant testimony is as follows: in the matter at hand, Cpl. Pixley
took field notes, which described the events that occurred on the night Defendant was
arrested, including Defendant’s performance on the field sobriety tests. When Cpl. Pixley
conducts field sobriety tests, he writes the results of the tests down in his notebook,
transposes them into his report, and destroys them. Usually, Cpl. Pixley keeps his field notes
for about a year. He acknowledged that it was possible that he still had his field notes for
the current matter, however he was “not one hundred percent” as to whether his notes still
existed. Cpl. Pixley did not know that Defendant asked the State to produce any notes that
Cpl. Pixley recorded. Cpl. Pixley did not search any of his records to see whether his field
notes existed.
4) Defendant submitted memorandum on the Motion, and argued that the State
failed to comply with its duty to provide discovery by failing to produce Cpl. Pixley’s field
notes. Defendant argues that the State failed to offer any explanation as to why it did not
seek or produce Cpl. Pixley’s field notes. Defendant acknowledges that the prejudice
suffered by Defendant by not having the field notes is unknown, however Defendant argues
that until the State produces these field notes, Defendant is presumed to be prejudiced.
Defendant requests a dismissal of Defendant’s charges due to the State’s pattern of having a
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“cavalier attitude with regard to the production of requested items invariable causes
difficulties in trying, specifically driving under the influence, cases.”1
5) The State submitted memorandum on the Motion, and argued that the State
did not make a discovery violation because Cpl. Pixley’s field notes were transposed into his
report, which the State provided to Defendant. The State claimed that upon its inquisition
as to the existence of Cpl. Pixley’s notes, “Cpl. Pixley revealed that the notes were
destroyed.”2 The State argued, that based on his testimony that Cpl. Pixley retains or
transposes and then destroys the notes, the field notes in question were ultimately
transposed into the report and subsequently destroyed. The State maintains that
Defendant’s speculative argument on prejudice he has suffered fails to establish actual
prejudice. Therefore, the State argues that there is no discovery violation and no prejudice
suffered by Defendant.
6) Under Johnson v. State, a criminal defendant is entitled to discovery of a police
officer’s notes pursuant to Superior Court Criminal Rule 16(a).3 When the State does not
withhold the officer’s notes, and the notes are contained in the officer’s report, there is no
Rule 16 violation.4 However, when the State learns about an officer’s notes during his
testimony in court, the State has a duty to inquire about these notes.5
1 Defendant’s Memorandum at p. 2.
2 The State’s Memorandum at p. 2.
3 550 A.2d 903 (1988).
4 Owens v. State, 2001 WL 789647, at *2 (Del. Super. Jan. 23, 2001).
5 See Johnson, 550 A.2d at 909; see also Oliver v. State, 60 A.3d 1093, 1097 (Del. 2013).
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7) I agree on its face that the State did not commit a discovery violation under
Rule 16(a). When Defendant filed a discovery request on January 10, 2014 that included a
specific request for Cpl. Pixley’s field notes, the State responded by maintaining that the field
notes were not discoverable; however, the State provided all known written reports and
information regarding Defendant’s appearance, including his performance on any field tests.
The first time that both Defendant and the State learned of Cpl. Pixley’s field notes was
during his cross examination at the suppression hearing. Cpl. Pixley testified that when he
conducts field sobriety tests, he writes the results of the tests down in his notebook,
transposes them into his report, and destroys them. Although Cpl. Pixley testified that he
usually keeps his field notes for about a year, he was “not one hundred percent” as to
whether his field notes regarding the current matter still existed. After learning of these field
notes, the State inquired as to the existence of these notes, and Cpl. Pixley revealed that the
notes were destroyed. Therefore, based on Cpl. Pixley’s testimony coupled with the fact that
his notes were no longer in existence, the Court finds that Cpl. Pixley transposed his notes
into his report.
8) I am unable to conclude that Defendant has been prejudiced by the State’s
failure to produce Cpl. Pixley’s field notes. Defendant acknowledges that he does not know
what these field notes contain, and admittedly, does not know whether the substance of the
notes is prejudicial. Defendant also argues that “[t]here could be Brady material and certainly
Jencks material contained in the notes.”6 This argument however, fails because it is
speculative at best, and fails to establish actual prejudice that Defendant suffered.7
6 Defendant’s Memorandum at p. 2.
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9) Further, if Defendant sought to object to the State’s discovery responses,
specifically its assertion that Cpl. Pixley’s field notes were not discoverable, Defendant had
sufficed notice at case review.8 On March 14, 2014, during Defendant’s DUI Case Review,
there were two discoverable items noted as outstanding: the MVR, and the PBT calibration
logs. Defendant did not make an additional request for the arresting officer’s field notes at
this time, nor did he request the Court to compel the State to produce the field notes.
Defendant cannot then make an argument that the State failed to produce the field notes
during a suppression hearing, which was held just a week before the original trial date.9
However, if the Defendant makes a request for field notes and such notes have not been
destroyed, then such notes shall be produced.
10) Therefore, my finding that Cpl. Pixley had probable cause to arrest Defendant
stands. The State did not commit a Rule 16(a) discovery violation, nor has Defendant
established prejudice with regard to not having the field notes.
11) The Clerk shall schedule this matter for trial.
7 State v. Burgos, 2014 WL 1275184 at *3 (March 31, 2014).
8
State v. Wood, 2006 WL 545451, at *2 (Feb. 28, 2006); see Clawson v. State, 867 A.2d 187 (Del. 2005).
9
Id.5
IT IS SO ORDERED
_________________________________
The Honorable Alex J. Smalls
Chief Judge
Swift-ORD Nov 2014
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