Driving During Suspension - Motion for a New Trial

Defendant brings this motion pursuant to Court of Common Pleas Criminal Rule 33 for a new trial. Defendant alleges that the testimony relied upon by the Court in reaching its original decision finding the defendant guilty of Driving During Suspension is tainted in part because the officer was not truthful regarding the basis for the initial stop. The State opposes the motion relying upon State v. Lynch, Del. Supr., 32 Del. 600, 128 A. 565, 2 W.W. Harr. 600 (1925) . The State argues that the motion brought pursuant to CCP Criminal Rule 33 must be denied because defendant failed to meet the standards for granting a new trial. The State alleges that in order for the defendant to prevail on his motion for a new trial on the grounds of newly discovered evidence, it must appear: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial and could not have been discovered by the existence of due diligence; (3) that it is not merely cumulative nor impeaching. The history of this case reveals that on April 26, 1999, the defendant was issued a citation for driving while his license was suspended in violation of 21 Del. C. 2756(b). A trial was held on November 3, 1999. a written decision was rendered after trial on November 22, 1999 where the Court found the defendant guilty of the offense charged. In that decision, the Court relied upon the testimony of Officer X where he testified he stopped the defendant's vehicle and did not issue the citation for a stop sign violation because defendant was an informant for the police. The defendant at that time argued that the stop was pretextual and the officer stopped him merely because he was a black male in a predominantly white neighborhood. The Court conducted a hearing on the motion for a new trial on November 30, 2000. at that hearing, the defense called Officer X of the Wilmington Police Department. Officer X had previously testified he did not issue the stop sign citation because the defendant was an informant for Officer X. Officer X testified he recalls having a conversation with Officer X on the date in question, but does not recall asking the officer not to issue the stop sign citation nor does he recall indicating the defendant was an informant for the police. However, on cross-examination, Officer X indicated there may have been other conversations which he does not have an independent recollection at this time. In reviewing the evidence taken at the hearing on defendant's motion for a new trial, I am unable to conclude that the evidence is such that it would: change the outcome of the trial, materially alter my conclusion that the officer had a basis to stop the vehicle on the night in question. While there is some difference regarding the nature of the testimony between Officer X and Officer X, I am not prepared to conclude that the officer did not have a basis to stop the defendant on the night in question. Further, it appears that the testimony which the defense would have the Court consider at this proceeding is to impeach the credibility of the officer regarding the stop. Under the law of this jurisdiction, it is clear that testimony or the evidence which serves only to impeach the credibility of the officer is not sufficient for the Court to grant a motion for a new trial. State v. Hamilton, Del. Super. 406 A.2d 879 (1974). Additionally, I do not find the defendant's assertion that he was stopped as a result of his race to be either credible or reliable given the testimony of Officer X. Officer X who is black testified he lived in the neighborhood where defendant was stopped. Accordingly, the motion for a new trial is hereby Denied.