NORWICH – After approximately one hour of jury deliberations and one requested read-back of a state trooper’s testimony from Tuesday, the jury foreperson read aloud the verdict of David T. Spencer, charged with felony DWI. The verdict returned was not-guilty.
It was alleged that Spencer operated a motor vehicle while intoxicated on Feb. 23, 2013 on I-88 near Afton in Chenango County. Based on the verdict of the jury, the prosecution failed to prove beyond a reasonable doubt that Spencer drove while intoxicated.
Witnesses for the prosecution had testified Spencer was found to be walking along the side of state Route 7 and that his vehicle was in a ditch facing the opposite direction on I-88. The arresting trooper, Trooper Copolla, administered standard field sobriety tests prior to Spencer’s arrest, and said he failed the three tests given. Copolla testified that Spencer provided concise but consistent answers to the questions asked, and waited until he was instructed to begin each specific test. According to the arresting New York State Trooper, at one point in the interaction, Spencer took an aggressive stance and Copolla called for his partner to back him up.
Trooper Fleming arrived at the scene and testified to hearing Spencer say that he was done taking the sobriety tests. He said Spencer calmed down, and remained calm throughout the arrest. Spencer was warned that his refusal of a breath test would be used against him in court.
Trooper Copolla transported Spencer to be arraigned in the Town of Colesville Court, where he was then sent to the Broome County Jail – an error Copolla admitted to making.
Trooper Copolla additionally testified that he did not take notes on the sheet provided by the State Police for field sobriety tests. The defense pointed out – and the trooper agreed – that the sheet is suggested to be used for the purpose of recollection in case testimony if trial is necessary in the future.
Not only did the trooper testify that there were no notes regarding the three tests administered, but also that there was an error written on the Bill of Particulars that he filed with regard to the case – an error the trooper deemed “clerical.” He said once he realized his error, it was too late to correct it. The error involved the number of clues present during the administration of one of the sobriety tests that were used to suggest Spencer was intoxicated.
Spencer had told police the night of the incident that he was walking home because his tire had blown out. None of the prosecution’s witnesses could comment on whether or not they saw a flat tire on the vehicle.
Thomas Jackson, Spencer’s defense attorney, called one witness Wednesday: the man who towed the vehicle from the scene of the accident. The man testified under oath that the front right tire was indeed flat when he pulled the vehicle from the ditch.
During closing arguments by the prosecution, First Assistant District Attorney Stephen M. Dunshee said, “I’m not required to give you DNA, blood, or even a BAC. He doesn’t want to be held responsible for his choices, or accountable for his actions.” Dunshee asked the jurors to use their common sense, the evidence provided via the witness testimony – that included Trooper Copolla stating he believed Spencer to be impaired by alcohol – the failure of the three tests administered, and the fact Spencer refused to submit a breath sample.
In the defense’s summation, Jackson told the jury the presumption of Spencer’s innocence changes only at the end once the Judge has read the law and they begin deliberations, and that it was up to the jury to determine if the people had met the “high burden of proof beyond a reasonable doubt.”
“Likely guilty, probably guilty, those are not enough,” said Jackson to the twelve jurors. “Intoxicated has a legal meaning that the Judge will read to you, and that is what you apply.” He added that the trooper failed to take any notes on the State Police provided sheet regarding the sobriety tests, and that the trooper failed to administer one of the tests, the Vertical Nystagmus test.
“Doesn’t it have to be more than that? Is that what you’re going to rely on? Shouldn’t you demand more from the State Police, to make sure they’ve done things all along the right way?” asked Jackson to the jury. “They have to be on top of their game, you should demand that.”
He added that based on all the testimony and evidence, the people failed to prove that Spencer was intoxicated at the time of operating the motor vehicle.
Both Dunshee and Jackson asked the jury to use their common sense and plug the facts and evidence into the law as it was read by Chenango County Court Judge Frank B. Revoir Jr.
Following deliberations, the jury found Spencer not-guilty of the felony DWI against him. According to Jackson, Spencer could have been facing up to nine years in prison on that charge. The jury returned a guilty verdict on the lesser charge of driving while ability impaired – which is a violation – punishable of a maximum of 15 days in jail.
After the verdict was returned, Jackson said, “I had certainly hoped for the outcome that resulted, and I wasn’t surprised. I definitely think it’s the right verdict, and it’s been a long one-year process.”
“I appreciate the jury’s attention and hard work in reviewing the evidence,” said Dunshee. “Mr. Jackson was a gentleman.”
A pre-sentencing report will take weeks to complete, and Spencer will be sentenced for his violation in early April.