IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. ) Case No. 1512010138
)
JOSHUA L. PAYNE, )
)
Defendant. )
Submitted: March 24, 2017
Decided: May 31, 2017
Dominic A. Carrera, Jr., Esquire Benjamin S. Gifford IV, Esquire
Deputy Attorney General Law Office of Benjamin S. Gifford IV
820 N. French Street, 7th Floor 14 Ashley Place
Wilmington, DE 19801 Wilmington, DE 19804
Attorney for the State of Delaware Attorney for Defendant
DECISION AFTER TRIAL
The defendant, Joshua L. Payne (“Defendant”), was charged on December 14, 2015
with Failure to Stop at a Stop Sign, in violation of 21 Del. C. § 4164(a), and Driving While
Suspended, in violation of 21 Del. C. § 2756(a). Trial was held on February 7, 2017, where
the State called as its only witness Officer Brianna Oaddams1 (“Officer Oaddams”) of the
Wilmington Police Department. Additionally, during the trial, the State moved for the
admission of several documents to which the Defendant objected. At the conclusion of
1 Officer Oaddams has been a police officer with the Wilmington Department of Police for approximately
two years. She is assigned to the patrol division, and is responsible for enforcing traffic laws and responding
to emergency calls. The Court finds Officer Oaddams to be a credible witness.
trial, the Court reserved decision, and ordered supplemental briefing on the issue of the
documents’ admissibility. This is the Court’s decision after trial.
FACTUAL AND PROCEDURAL HISTORY
On December 14, 2015, while patrolling the area of 5th Street in Wilmington,
Delaware, Officer Oaddams observed Defendant driving near the intersection of 5th and
Monroe Street. Officer Oaddams further testified that Defendant failed to stop, which was a
blatant disregard for the stop sign. Officer Oaddams testified that thereafter she followed
Defendant for several blocks and stopped him at 3rd and West Street. Defendant provided
Officer Oaddams with his identification, and Officer Oaddams conducted a motor vehicle
inquiry through DELJIS; the DELJIS inquiry revealed Defendant’s license had been
suspended. Defendant was thereafter arrested for Failure to Stop at a Stop Sign and Driving
While Suspended.
A bench trial was held on February 7, 2017, and through the testimony of the officer,
the State sought to introduce several documents to establish that the Defendant’s license was
suspended. These documents, introduced as State’s Exhibit 1, consisted of an Affidavit of
Mailing, Official Notice of Revocation, and a Certified Driving Record. Defense counsel
raised several evidentiary objections to the admission of these documents. Following
argument by both parties, the Court conditionally admitted the documents subject to
Defense counsel’s objections. The Court reserved decision and ordered supplemental
briefing on the issue of the documents’ admissibility.
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PARTIES’ CONTENTIONS
Defendant contends the affidavit of mailing, official notice of revocation, and
certified driving record are inadmissible as hearsay evidence, because the State failed to
satisfy the requirements of Delaware Rules of Evidence (“D.R.E.”) 803(6) and 902(11) for their
admission. Defendant first contends that the documents are hearsay under Rule 803(6), and
as such are not admissible unless the State can establish that such records were made at or
near the time by and from information transmitted by a person with knowledge and kept in
the regular course of business as shown by testimony of a custodian or other qualified
witness. Further, Defendant argues the State cannot meet its burden of authentication in the
alternative under Rule 902(11), because such section requires a party who seeks to admit the
records pursuant to this section “to provide written notice of such intention to all adverse
parties.” Therefore, Defendant reasons the written declaration—an affidavit sworn on June
28, 2016—must be excluded because the State failed to give the required notice.
Furthermore, Defendant argues the driving record offered by the State is not
properly certified and cannot be admitted pursuant to 21 Del. C. § 2736(e). Defendant
concedes the statute allows for the admission of a motor vehicle conviction record into
evidence absent the appearance of an employee or agent of the Division of Motor Vehicles,
so long as the conviction record has been certified by the Director of Motor Vehicles.
However, Defendant contends the certification at the bottom of the driving record is invalid
as it fails to comply with the notarial rules of this State. Specifically, Defendant contends no
notary public attested to the certification at the bottom of the driving record. Defendant
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argues the State’s failure to obtain a properly certified copy of the driving record undermines
the reliability of the document absent witness testimony to its accuracy.
Because the State allegedly failed to comply with the requirements of 803(6) and
902(11) and allegedly failed to introduce a properly-certified driving record, Defendant
argues the documents conditionally entered into evidence as State’s Exhibit 1 must be
excluded. Furthermore, Defendant argues the only other evidence against him—the
testimony of Officer Oaddams—is insufficient to support a conviction of Driving While
Suspended. Accordingly, Defendant moves the Court to enter a finding of Not Guilty as to
that charge.
Conversely, the State argues Defendant’s reliance on 803(6) and 902(11) for the
exclusion of the documents is unfounded, as 21 Del. C. § 2736 specifically provides for the
documents’ admissibility. It is the State’s contention that the affidavit of mailing and official
notice of revocation are admissible pursuant to section 2736(c), while the driving record is
properly certified and admissible pursuant to section 2736(e). The State also argues, in the
alternative, that the proposed exhibits are admissible pursuant to the public records
exception of D.R.E. 803(8) and are properly authenticated under the self-authentication rule
set forth in D.R.E. 902(4). For these reasons, the State submits the documents were
properly admitted into evidence. As such, the State maintains the properly admitted
documents—along with the testimony presented at trial—establishes Defendant’s guilt
beyond a reasonable doubt.
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DISCUSSION
I. Admissibility of the Evidence
Pursuant to 21 Del. C. § 2736, whenever a license is suspended or revoked the State
must provide notice of the suspension or revocation to the license holder.2 This statute
allows the State to prove a license holder received notice of suspension by “an affidavit of
any person over 18 years of age, naming the person to whom such notice was given and
specifying the time, place and manner of the giving thereof.”3 This statute was enacted to
“eliminate the cumbersome methods of proof required for license revocation by establishing
means to prove suspension or revocation that would not require the presence of a Division
employee in Court for every trial.”4 When proof of notice is made by an affidavit in this
manner, the Court may admit the affidavit into evidence5 and it will be unnecessary for an
employee or agent of the Department of Motor Vehicles to appear personally in court.6
As required under section 2736(c)(2), the State submitted a notarized affidavit of a
Department of Motor Vehicles employee, Michaele Bradley, who swears that she is over 18
years of age. The affiant further avers that on December 10, 2013, an envelope was mailed
to Payne, Joshua Lee at 141 Autumn Horseshoe, Newark DE 19702, which contained a
copy of his Official Notification of Withdrawal of Driver’s License and/or Driving
Privileges. Attached to the affidavit of mailing is the official notice of revocation. I find that
this affidavit satisfies section 2736(c)(2). Accordingly, the affidavit of mailing and official
2 See 21 Del. C. § 2736(a).
3 21 Del. C. § 2736(c)(2).
4 Carroll v. State, 2002 WL 35628656, at *2 (Del. Super. Apr. 16, 2002).
5 See McMonigle v. State, 2009 WL 27311, at *2 (Del. Super. Jan. 6, 2009).
6 21 Del. C. § 2736(d).
5
notice of revocation are admitted into evidence to establish the fact Defendant received
notice of his license suspension.
Likewise, I find the certified driving record admissible pursuant to 21 Del. C. §
2736(e). Section 2736(e) provides:
“In any prosecution under this Code, a conviction record as maintained in the
Division of Motor Vehicles, which has been certified by the Director of the
Division of Motor Vehicles, may be admitted into evidence and shall be
competent evidence that the person named therein was duly convicted of each
offense enumerated therein and of the status of the person’s driving license
and/or privileges. It shall be unnecessary for any employee or agent of the
Department to personally appear for the admission into evidence of such
conviction record in any proceeding under this Code.”7
Defendant objects to the admission of the driving record on the grounds that the
document is not properly certified under the notarial rules of this State. However, I find no
merit in Defendant’s argument. There is a difference between the requirements for
certification of public documents by public officials and the requirements for certification of
notarial acts under 29 Del. C. § 4321 et seq. Section 4322 of Title 29 lists the various acts
which require certification by a notarial officer.8 Excluded from this list are copies of official
or public records that can be certified by a public official.9 Therefore, since the statute
provides for the driving record’s admission, I need not reach the authenticity issue raised by
Defendant.
Pursuant to 21 Del. C. § 2736(e), the State submitted Defendant’s driving record. The
bottom of the driving record is affixed with the State’s seal for the Department of
Transportation. The bottom of the driving record states:
7 21 Del. C. § 2736(e)(emphasis added).
8 See 29 Del. C. § 4322.
9 See 29 Del. C. § 4322(d).
6
“I, the undersigned, an officer of the Division of Motor Vehicles for the State
of Delaware, in whose charge the above records are, DO HEREBY
CERTIFY that the above is a true and correct copy of the driving record of
the above named individual as it appears in the Division of Motor Vehicles,
and that I am the officer having legal custody of this record.”
Moreover, the document is electronically signed by Scott Vien, the Director of the Division
of Motor Vehicles. This is sufficient to demonstrate that the driving record is properly
certified by the Director of Motor Vehicles. Accordingly, I find that the driving record is
admissible pursuant to 21 Del. C. § 2736(e).
II. Sufficiency of the Evidence
A. Failure to Stop at a Stop Sign
Defendant is charged by Information with Failure to Stop at a Stop Sign, in violation
of 21 Del. C. § 4164(a). In order to find Defendant guilty on this charge, the State has to
establish beyond a reasonable doubt that: (1) Defendant operated a motor vehicle; (2)
Defendant failed to come to a complete stop at an intersection controlled by a stop sign; and
(3) the stop sign was properly posted and clearly visible.10 At trial, Officer Oaddams testified
that she observed Defendant driving a vehicle near the area of 5th and Monroe Street, and
observed Defendant drive through a stop sign. Officer Oaddams further testified that it was
a blatant disregard for the stop sign. However, there is no testimony that the sign was
properly posted or clearly visible. Further, there is no testimony of Defendant’s approach to
the intersection, only that it was a blatant disregard, with no explanation of what constitutes
blatant. Such evidence is insufficient to prove beyond a reasonable doubt the offense
charged. Accordingly, I find Defendant not guilty of Failure to Stop at a Stop Sign. In so
10 21 Del. C. § 4164(a).
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concluding, I do not find that Officer Oaddams lacked reasonable articulable suspicion to
stop the vehicle.
B. Driving While Suspended
Defendant also stands charged with Driving While Suspended, in violation of 21 Del.
C. § 2756(a). In order to find Defendant guilty on this charge, the State has to establish
beyond a reasonable doubt that: (1) Defendant’s driving license or driving privileges were
suspended or revoked; (2) that notice of the revocation or suspension was given as provided
by the statute; and (3) that Defendant operated a motor vehicle on a public highway.11
Furthermore, in order for there to be a legal revocation or suspension, the State must
properly notify the Defendant of his revocation or suspension.12
In this case, Officer Oaddams testified that she observed Defendant drive a vehicle
on December 14, 2015. The admitted certified driving record establishes that Defendant’s
license was suspended on or about the date he was operating the motor vehicle.
Furthermore, the admitted affidavit of mailing and official notice of revocation establish the
fact that Defendant was given notice of his license suspension prior to December 14, 2015.
Therefore, I find that the evidence establishes beyond a reasonable doubt Defendant’s guilt
of violating 21 Del. C. § 2756(a). The clerk shall schedule the matter for sentencing.
IT IS SO ORDERED.
_________________________________
Alex J. Smalls,
Chief Judge
State v Payne – May 31 2017
11 21 Del. C. § 4164(a); McMonigle v. State, 2009 WL 27311, at *2 (Del. Super. Jan. 6, 2009); State v. Kimbi, 2015
WL 5007981, at *2 (Del. Com. Pl. Aug. 21, 2015).
12 McMonigle, 2009 WL 27311, at *3.
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