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[T] Talley v. State12/29/2003
Date Submitted: September 9, 2003
ORDER
On this 29th day of December, 2003, upon consideration of the briefs submitted by the parties, it appears to the Court that:
(1) Kevin D. Talley, the defendant-below, appellant ("Talley"), was convicted and sentenced by the Superior Court as a fourth offense Driving Under the Influence ("DUI") offender, in violation of 21 Del. C. 4177 (a) and 4177 (d)(4). Talley has appealed from that conviction and sentence. For the following reasons the judgment of the Superior Court will be affirmed.
(2) In May 2001, Talley was arrested for DUI in Sussex County, Delaware, and was later indicted by a Grand Jury for DUI in violation of 21 Del. C. 4177 (a). During Talley's jury trial, the State called a witness to establish a foundation for admitting into evidence the certification log of the intoxilyzer machine used to test Talley's breath for the presence of alcohol. The trial court admitted the certification log, over Talley's objection, under the business record exception to the hearsay rule. At the conclusion of the State's case, Talley moved for a judgment of acquittal of felony DUI, because only a non-specific DUI charge -- not a felony charge -- had been alleged in the indictment and proved before the jury. The trial court denied Talley's motion, ruling that Talley's prior DUI convictions were a consideration only for sentencing, but were not an element of the crime that had to be proved at trial.
(3) At the conclusion of the trial, Talley was convicted for DUI. At sentencing, the State filed a motion to declare Talley a fourth-time offender, and therefore guilty of a felony, under 21 Del. C. 4177 (d)(4) and (d)(6). The State attached to its motion evidence that that was Talley's seventh conviction for DUI. The trial court granted the State's motion, and Talley was sentenced for a fourth offense felony DUI. On appeal Talley advances three separate claims of error.
(4) Talley's first claims that the trial court erred by ruling that the State was not required to identify the offense with which he was charged as a felony DUI in the indictment. The argument fails for two reasons. First, under the Superior Court Rules of Criminal Procedure, a defense or objection based on a defect in the indictment is waived unless it is raised before trial. In this case, Talley did not object to the indictment until after the State had concluded its case at trial.
(5) Second, even if this claim were not procedurally barred, it lacks substantive merit, because the Delaware DUI statute specifically provides that a person who has been convicted of prior DUI offense "need not be charged as a subsequent offender in the Complaint, Information or Indictment..." Talley argues that that provision conflicts with Article 1, Section 8 of the Delaware Constitution, but this argument fails because Article 1, Section 8 relevantly provides that "no person shall for any indictable offense be proceeded against criminally by information," and here the State proceeded against Talley by indictment, not by information. Accordingly, the Constitutional provision upon which Talley relies is inapplicable. Talley also argues that the indictment lacks specificity, because it did not charge him as a fourth time DUI offender. That argument lacks merit because this Court has specifically rejected it in Stewart v. State, where we stated that a valid indictment need only "contain a plain statement of the essential facts constituting the offense charged." That was done here.
(6) Talley's second claim is that the trial court erred by rejecting his argument that the State was required to prove his prior DUI convictions as elements of
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