Wingate v. State

• Court: Supreme Court of Delaware
• Decided: November 4, 2024
• Docket: 473, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KYLE WINGATE, § § No. 473, 2023 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 2003008892 STATE OF DELAWARE, § § Appellee. §

Submitted: September 4, 2024 Decided: November 4, 2024

Before SEITZ, Chief Justice; VALIHURA, and LEGROW, Justices.

ORDER

Upon consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

(1) After a New Castle County jury found him guilty of his sixth DUI

offense, the Superior Court sentenced Kyle Wingate to two years of unsuspended

prison time, followed by probation. He now raises two contentions on appeal. First,

Wingate challenges whether the arresting officers had probable cause to arrest him

for DUI. Second, Wingate argues that the trial court abused its discretion and

committed structural error when it deferred its decision on the admissibility of

Wingate’s 14-year-old forgery conviction until after Wingate testified. We conclude that the events leading up to the arrest would lead a reasonable police officer to

believe that there was a fair probability that Wingate had driven under the influence

of alcohol. Further, this Court previously held that a trial judge may defer a decision

under D.R.E. 609 until after the defendant testifies or may reconsider a previous

holding under that rule based on the defendant’s testimony. We therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

(2) On September 21, 2020, a grand jury indicted Wingate on one count

each of Driving a Vehicle While Under the Influence of Alcohol or Any Drug (DUI),

Reckless Driving, Leaving the Scene of an Accident, and Driving a Vehicle While

License is Suspended or Revoked.1 Because a conviction in this case would

constitute Wingate’s sixth DUI offense, the State filed a notice of felony DUI

prosecution under 21 Del. C. § 4177(d)(6).2

(3) In July 2021, Wingate’s counsel moved to suppress, arguing that police

lacked probable cause to arrest Wingate and that all fruits of the arrest—including

the results of the blood test and the statements Wingate made after being taken into

custody—therefore should be suppressed.3 Wingate contended that because the

1 App. to Opening Br. at A10–11. 2 Id. at A12. “For a sixth offense occurring any time after 5 prior offenses, be guilty of a class D felony, be fined not more than $10,000 and imprisoned not less than 4 years nor more than 8 years.” 21 Del. C. § 4177(d)(6). 3 App. to Opening Br. at A14–20.

2 officers failed to administer a breath test or field sobriety tests before arresting

Wingate, there was insufficient evidence to support finding probable cause when the

officers only knew that Wingate had been driving, his vehicle was damaged, he

smelled of alcohol, and he admitted to drinking four alcoholic beverages that

evening.4 Wingate primarily relied on this Court’s decision in Lefebvre v. State,5

where we held that “a traffic violation combined with an odor of alcohol, standing

alone, do not constitute probable cause to arrest the driver for a DUI offense.”6

(4) In its response, the State argued that this case differed from Lefebvre—

where the defendant was stopped for failing to use a turn signal—because Wingate’s

conduct constituted more than a mere traffic violation.7 The State also pointed out

that Wingate admitted to drinking four alcoholic beverages, and this additional factor

also supported a probable cause finding.8

(5) At the suppression hearing in October 2021, Cpl. Shelton and Trooper

Raza testified to the above facts. A month later, the Superior Court denied Wingate’s

motion to suppress, citing the following factors as supporting probable cause: the

officers were responding to multiple reports of erratic driving, Wingate’s vehicle

4 Id. at A18. 5 19 A.3d 287 (Del. 2011). 6 App. to Opening Br. at A18–19 (quoting Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011)). 7 Id. at A26 (citing State v. Dopirak, 2017 WL 3129234, at *2 (Del. Super. July 24, 2017)). 8 Id. at A27.

3 was heavily damaged, Wingate exited out of the driver’s side door, the officers

smelled an odor of alcohol on Wingate, and Wingate admitted to consuming four

alcoholic beverages that evening.9 The court stated that it did not accord much

weight to Wingate’s conflicting statements to police about whether he had been

driving.10 The court also concluded that Trooper Raza, the arresting officer, could

reasonably rely on Cpl. Shelton’s observations of Wingate without conducting his

own independent investigation into Wingate’s sobriety.11 Finally, the court

concluded that even if the officers lacked probable cause to arrest Wingate for DUI,

they possessed probable cause to arrest him for reckless driving under 21 Del. C. §

701(b).12

(6) Two years later, after numerous delays caused by the COVID-19

pandemic and Wingate’s capias, the court held trial. During the pre-trial conference,

the State notified defense counsel and the court that it planned to enter a nolle

9 Opening Br. Ex. A at 8–9. 10 Id. at 10. 11 Id. 12 Id. (citing 21 Del. C. § 701(b) (“Any police officer authorized to arrest without warrant under subsection (a) of this section is further authorized at the scene of a motor vehicle accident, upon reasonable and probable cause to believe, based upon personal investigation which may include information obtained from eyewitnesses, that a violation has been committed by any person then and there present, to arrest such person without a warrant of arrest.”)). The State did not raise this argument in its response to Wingate’s motion, but the parties addressed the issue in supplemental briefing after oral argument.

4 prosequi on all charges except the DUI.13 At trial, the State introduced testimony

from six witnesses, including Trooper Raza, an eyewitness who called 911 to report

Wingate’s erratic driving, and the chemists who tested Wingate’s blood and reported

the results therefrom. The eyewitness, Jon Steffon, identified Wingate as the driver

and sole occupant of the truck.14

(7) After denying Wingate’s motion for judgment of acquittal,15 the court

conducted a colloquy with Wingate, who elected to testify. 16 Outside the jury’s

presence, defense counsel alerted the court to Wingate’s 2009 second-degree forgery

conviction and moved to exclude its admission under D.R.E. 609(b) because the

conviction was 14 years old.17 The State argued that the conviction’s probative value

substantially outweighed its prejudicial effect, but contended that because Wingate

had yet to testify, it was difficult to ascertain how important his credibility would

be.18 After hearing argument, the court stated that,

[a]t this point I’m going to rule that its inadmissible. . . At this point, not hearing testimony, though, it’s difficult for the [c]ourt to assess the importance of the testimony and centrality of credibility. So at this point I’m going to rule that its inadmissible. If for some reason during Mr. Wingate’s testimony and during cross-examination the State

13 App. to Opening Br. at A7. 14 Id. at A114–15. 15 Id. at A139–40. 16 Id. at A140–41. 17 Id. at A141. 18 Id. at A141–42.

5 believes there is something that has caused the [c]ourt to reevaluate those last two prongs, then I will hear it at sidebar before the jury until the [c]ourt rules on it.19

Wingate then testified to the following: on the night of his arrest, he received a call

from his brother informing him that his father, who was on hospice, would likely die

sometime that week.20 Later, Wingate’s “acquaintance” knocked on his door and

asked to borrow his truck—although Wingate knew the man, he did not know his

name.21 Because Wingate wanted to help, but had concerns about letting his

acquaintance take the truck, he offered to ride along.22 At trial, Wingate could not

recall where his friend wanted to go.23 Wingate testified that he fell asleep shortly

after they began driving, at around 8 p.m., and woke up between 11 p.m. and

midnight.24 Wingate stated that he became frustrated with his friend that they were

still driving and requested the payment that his friend had offered to use Wingate’s

truck.25 Thereafter the two men got into a physical altercation and the truck began

19 Id. at A142. 20 Id. 21 Id. at A142–43. 22 Id. at A142. 23 Id. 24 Id. at A143. 25 Id.

6 swerving off the road.26 During the fight, the truck hit a stop sign and could not be

driven any further, at which point the acquaintance jumped out and “took off.”27

(8) While waiting for police to arrive, Wingate noticed a “bag of white

substance,” and, knowing his acquaintance to be “nefarious,” assumed the bag

contained cocaine.28 Wingate testified that he “panicked” and, concerned that police

would arrive shortly, ingested the cocaine.29

(9) After Wingate’s direct examination, the State moved to admit the 2009

forgery conviction under D.R.E. 609, arguing that Wingate’s theory of the case was

an invention and—if the jury found him credible—it would acquit him of the DUI

charge.30 The court agreed, holding that because Wingate’s testimony directly

contradicted Steffon’s and Trooper Raza’s testimony, the forgery conviction’s

probative value substantially outweighed its prejudicial effect.31 Defense counsel

then asked if the conviction could be sanitized, but did not raise any objections or

state that Wingate had testified in reliance on the court’s prior indication that the

conviction was inadmissible.32

26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. at A144. 32 Id. at A145.

7 (10) After deliberations, the jury returned a verdict finding Wingate guilty

of driving under the influence of a combination of drugs and alcohol.33 The Superior

Court sentenced Wingate on December 1, 2023, to eight years at Level V

incarceration, suspended after 2 years for decreasing levels of probation and on the

condition that Wingate complete drug and alcohol treatment programs under 21 Del.

C. § 4177(d)(9).34

II. ANALYSIS

(11) We review the trial court’s denial of a motion to suppress for abuse of

discretion.35 “To the extent the claim of error implicates questions of law, however,

our standard of review is de novo.”36 A “trial court’s decision to admit evidence of

prior felony convictions is subject to review in this Court for an abuse of

discretion.”37 Where a defendant fails to raise a claim below, we review for plain

error.38 “Under the plain error standard of review, the error complained of must be

so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity

of the trial process.”39 Our review “is limited to material defects which are apparent

33 Id. at A162. 34 Opening Br. Ex. C at 1–2 (Sentencing Tr.). 35 Rivera v. State, 7 A.3d 961, 966 (Del. 2010). 36 Sierra v. State, 958 A.2d 825, 828 (Del. 2008). 37 Morris v. State, 795 A.2d 653, 665 (Del. 2002). 38 Mills v. State, 201 A.3d 1163, 1167 (Del. 2019); Nance v. State, 903 A.2d 283, 285 (Del. 2006). 39 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 8 on the face of the record; which are basic, serious and fundamental in their character,

and which clearly deprive an accused of a substantial right, or which clearly show

manifest injustice.”40

(12) Probable cause to arrest exists where the facts and circumstances within

the arresting officers’ “knowledge and of which they had reasonably trustworthy

information [are] sufficient in themselves to warrant a [person] of reasonable caution

in the belief that an offense has been or is being committed.”41

(13) The crux of Wingate’s first contention on appeal is that between the

time the officers arrived on the scene and when they arrested him, they “learn[ed]

nothing negative about his fitness to drive” and, accordingly, lacked probable cause

to arrest him for DUI.42 Wingate relies on this Court’s decisions in Rybicki v. State43

and Lefebvre v. State,44 where we held that “a traffic violation combined with an

odor of alcohol, standing alone, do not constitute probable cause to arrest the driver

for a DUI offense,”45 but when combined with “rapid speech, admission to drinking,

40 Id. 41 Tolson v. State, 900 A.2d 639, 643 (Del. 2006) (quoting Draper v. United States, 358 U.S. 307, 313 (1959)). 42 Opening Br. at 14. 43 119 A.3d 663 (Del. 2015). 44 19 A.3d 287 (Del. 2011). 45 Id. at 293.

9 bloodshot and glassy eyes and a failed alphabet test . . . the probable cause standard

has been satisfied.”46

(14) Although he concedes that the troopers’ failure to administer field

sobriety tests and a breathalyzer does not preclude finding probable cause to arrest,

Wingate argues that it “limit[s] the finding to the trooper’s observation at the

scene.”47 Those observations included: eyewitness reports of erratic driving

corroborated by the damage to Wingate’s truck and downed traffic sign, the odor of

alcohol, and Wingate’s admission to consuming four alcoholic drinks.

(15) Wingate argues that these facts are analogous to Lefebvre because here

the troopers knew only that Wingate had committed a traffic violation and smelled

of alcohol; he contends, without citation, that his admission to drinking four

alcoholic beverages “adds nothing to that equation as it provides the same

information as the odor of alcohol.”48 Wingate acknowledges that “each of these

factors[] can contribute to probable cause,” but he maintains that “they simply do

not add up to probable cause in this case.”49

(16) Wingate’s argument relies on the faulty premise that this case is

analogous to the facts in Lefebvre. It is not. The information obtained from the 911

46 Rybicki, 119 A.3d at 671 (Del. 2015) (quoting Lefebvre, 19 A.3d 287, 293 (Del. 2011)). 47 Opening Br. at 11. 48 Id. at 15. 49 Id. at 14.

10 calls50 and the observed damage to Wingate’s truck elevate his conduct well above

the “failure to signal” traffic violation at issue in Lefebvre. Moreover, despite

Wingate’s contentions otherwise, his admission to drinking earlier in the evening

provides additional information supporting the officers’ belief that he had been

driving under the influence. Both the odor of alcohol and Wingate’s admission

constitute reasonably trustworthy information that would contribute to a reasonable

belief that Wingate had been driving under the influence.

(17) As to Wingate’s argument that the Superior Court abused its discretion

by deferring its decision about the admissibility of Wingate’s prior conviction, we

addressed the very issue in Reyes v. State,51 holding that the Superior Court may

defer such an evidentiary ruling until after the defendant testifies. This Court

explained that,

[a] trial court has no obligation to rule upon such a motion before the defendant testifies. The trial court may have deferred the motion until the conclusion of Reyes’ direct examination, if he did elect to testify. A trial court generally has the option “to defer ruling on evidentiary issues until the evidence is actually offered for admission.” “This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the

50 The information in the 911 calls—including that the truck was being driven erratically and on a tire rim—was conveyed to the troopers before Wingate’s arrest. App. to Opening Br. at A42 (Suppression Hearing Tr.). 51 155 A.3d 331 (Del. 2017).

11 precise nature of the defendant's testimony, which is unknowable” until he actually testifies.52

We went on to explain in Reyes that the trial court would have discretion to

reconsider a motion in limine after hearing a defendant’s testimony, holding that

“[e]ven if the trial court had granted a motion in limine prior to Reyes’ testimony,

the ruling would have been subject to change as the evidence unfolded.”53

(18) Although Reyes is directly on point, Wingate did not address it in his

opening or reply brief. Wingate offered no reason for us to revisit Reyes, which

remains good law. We therefore affirm the Superior Court’s admission of Wingate’s

forgery conviction.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow Justice

52 Id. at 344 (quoting Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990); Fennell v. State, 691 A.2d 624, 626 (Del. 1997)). 53 Id.