Opinion
ID No.: 0105009399
Submitted: May 21, 2002
Decided: June 17, 2002
Upon Defendant's Motion to Attach Jeopardy and Bar Retrial. DENIED.
Upon Defendant's Motion to Dismiss for Violation of Right to Speedy Trial DENIED.
Upon Defendant's Motion to Dismiss for Unnecessary Delay DENIED.
Cynthia R. Kelsey, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for the State of Delaware.
David J. J. Facciolo, Esquire, Wilmington, Delaware, Attorney for Defendant Roman Lewis, Jr.
MEMORANDUM OPINION
Defendant Roman Lewis, Jr. ("defendant"), moves the Court to attach double jeopardy and bar retrial or, in the alternative, dismiss the indictment on the charges of possession with intent to deliver a nonnarcotic schedule I controlled substance in violation of Title 16 Del. C. § 4752 of the Delaware Code of 1974, as amended, and maintaining a dwelling for keeping controlled substances, in violation of Title 16 Del. C. § 4755(a)(5) of the Delaware Code of 1974, as amended. For the reasons that follow, the motion to attach double jeopardy and bar retrial is DENIED, the motion to dismiss the indictment for violation of defendant's Sixth Amendment right to a speedy trial is DENIED, and the motion to dismiss the indictment for unreasonable delay is DENIED.
I. Procedural and Factual Background A. Pretrial Events
The following background is provided in an effort to establish the unfortunate history of this case and the context in which this opinion was formulated. Sadly, the chronology demonstrates that the prosecutor's failure to adequately prepare her case and the resultant late production by the prosecutor of key evidence necessitated a mistrial, wasted court resources and counsels' time and efforts, and unnecessarily delayed the adjudication of the charges lodged against defendant.
The facts giving rise to the indictment are as follows. On May 11, 2001, Senior Probation Officer Perry Allfather responded to 4 Carter Street in Bear, Delaware, to conduct a routine administrative search of the living quarters of Ramon Lewis, the brother of the defendant. At the time of this search, Ramon Lewis was on probation and under the supervision of the Department of Probation and Parole. Pursuant to the conditions of Ramon Lewis's release, his living quarters were subject to random searches. When Officer Allfather searched the bedroom of Ramon Lewis, he discovered 12 individually packaged plastic bags containing a green leafy substance, later determined to be marijuana, inside a dresser drawer. Located in a separate drawer of the same dresser was $2400 in United States Currency. The currency was packaged and secured with a rubber band in three separate denominations. Ramon Lewis, present at the time of the search, stated to Officer Allfather that his brother, defendant, Roman Lewis, Jr., also resided in this bedroom. Ramon Lewis further told Officer Allfather that the drawer in which the packaged marijuana was found was maintained by the defendant.
Officer Allfather contacted the New Castle County Police Department and requested assistance with the collection of the discovered contraband. Officer David Diana responded to the Lewis home. Upon his arrival, Officer Diana met and conversed with Roman Lewis, Sr. ("father") and Ramon Lewis. Roman Lewis, Sr. corroborated the information provided by his son, Ramon Lewis, and told Officer Diana that the dresser in question was maintained by the defendant. The father also reported that the defendant was previously arrested for possession of a controlled substance. Additional investigation by Officer Allfather revealed that, at the time of the search, the defendant was on probation in connection with a 1994 cocaine trafficking conviction in New York. After collecting the contraband, Officer Diana secured a warrant and executed a search of the premises that yielded no additional evidence.
The same day, Officer Diana contacted the defendant at his place of employment and asked that he report to the New Castle County Police Department for questioning about the items seized at his residence. The defendant arrived at the station between 3:30 p.m. and 4:00 p.m., was Mirandized, and taken to an interview room for questioning. According to Officer Diana, he apprised the defendant of the purpose of the interview and asked him if he wanted to give a statement. According to Officer Diana, the defendant agreed to give a statement and signed a standard Miranda form. Officer Diana then commenced the interview. Officer Diana recorded the interview on audiotape. Among other things, the defendant admitted that the seized marijuana was his. He also described the location of the dresser and the location and packaging of the marijuana. The defendant told Officer Diana that he purchased the marijuana and intended to sell it to his friends.
February 22, 2002 Trial Tr. at 29-30.
Id.
Id. at 30.
The fact that the interview was recorded is documented in the Initial Crime Report. See Court Ex. 1.
Court Ex. 1.
Following this interview, the defendant was charged with possession with intent to deliver a non-narcotic schedule I controlled substance, maintaining a dwelling for keeping controlled substances and possession of non-narcotic schedule I controlled substance within 1000 feet of a school. The defendant was released on $11,000 unsecured bail, engaged the services of the defense counsel for legal representation, and waived a preliminary hearing.
On June 4, 2001, a Grand Jury indicted the defendant for possession with intent to deliver a non-narcotic schedule I controlled substance and maintaining a dwelling for keeping controlled substances. Also on June 4, 2001, the prosecutor forwarded to defense counsel "automatic discovery" pursuant to Rule 16. The "automatic discovery" under Rule 16(a)(1) was, "[s]ee enclosed report(s)." Attached to the prosecutor's June 4 letter was a copy of the initial crime report.
See Court Ex. 4; Super. Ct. Crim. R. 16.
Court Ex. 1.
The penultimate paragraph of the State's June 4, 2001 automatic discovery stated:
If you have filed or intend to file a separate request for discovery, be advised that the materials contained herein comprise our entire response.
Court Ex. 4 at 2 (emphasis added).
Court Ex. 4 at 2 (emphasis added).
On June 19, 2001, defense counsel, pursuant to Rule 16, served a request on the prosecutor for, among other things, a "copy of all written or recorded statements or confessions made by the defendant[s]." Defendant's June 19, 2001 discovery request also requested:
Super. Ct. Crim. R. 16
Court Ex. 5 at 1 (emphasis added).
An opportunity pursuant to Jencks v. State, 353 U.S. 657 (1957), to review reports and statements, whether oral, written or recorded, made by persons who will testify at trial, regardless of whether the individual used the statement or report to prepare for examination. I would appreciate it if you could share this information with me prior to trial in order to avoid delay prior to cross-examination.
Court Ex. 5 at 2 (emphasis added).
Court Ex. 5 at 2 (emphasis added).
Defense counsel received no discovery from the State in response to its June 19, 2001 request.
The Initial Case Review occurred on July 30, 2001 and the Final Case Review occurred on September 4, 2001. On October 26, 2001, the Court set the trial date of February 21, 2002. It appears that at no time prior to the commencement of the trial did the prosecutor provide any further discovery to defense counsel.
B. Trial Events
On February 21, 2002 the jury was drawn, impaneled and sworn. In her opening statement, the prosecutor told the jury:
The Defendant . . . who also lived at that residence, was interviewed with regard to the finding of the marijuana and stated that the — he told the probation officer where the marijuana was and how it was packaged in the drawers. And he told the officer that he was, that he had bought that marijuana and that he was planning to go to a party in Maryland that weekend, and he had purchased marijuana not only for himself but for his friends who were going to be at that party, and that he was going to be at that party, and that he was going to take it to Maryland to sell to his friends in Maryland. However, he wasn't going to make any profit off of that marijuana.
* * *
So based upon the Defendant's own statements about what he intended to do with that marijuana, he admitted, basically, that he possessed it with the intent to deliver it. So that's the evidence that you will hear with regard to the possession with intent to deliver.
February 21, 2002 Trial Tr. at 4-5 (emphasis added).
February 21, 2002 Trial Tr. at 4-5 (emphasis added).
The prosecutor called as her first witness Farnam Daneshgar, a forensic chemist who analyzed the contraband found in the defendant's residence and identified it as marijuana. The prosecutor's second witness, Timothy Sullivan of the New Castle County Police Department, testified regarding the chain of custody for the marijuana evidence. Officer Diana of the New Castle County Police Department was the State's third witness. Officer Diana provided an account of the events that transpired on May 11, 2001, leading up to the defendant's arrest. Officer Diana testified that the defendant agreed to come to the police station for an interview and that, when he arrived, he was Mirandized and signed a Miranda waiver form. Officer Diana testified that he interviewed the defendant and recorded the interview on audiotape. Defense counsel objected and requested a sidebar conference. At sidebar, defense counsel stated that this was the first time he was informed as to the existence of a recorded statement by the defendant, despite his request for a copy of such a recording, if it existed. The prosecutor replied that she was unaware until this moment that an audiotape of the defendant's statement existed. The following colloquy then took place:
February 22, 2002 Trial Tr. at 30.
Prosecutor:
Your Honor, what I did was sent the police reports in discovery which indicated that he made a statement and basically what the substance of the statement was. It doesn't say whether it's taped or not taped, it just doesn't say anything. I didn't — because it didn't say specifically that it was taped, I didn't realize it was taped, either, and, in fact, thought it wasn't. However, there was never any inquiry from the defense about whether or not it was taped or not taped.
Court:
All right. So what do we do now?
Prosecutor:
Well, it's the State's position that this much is admissible. I suppose that the defense can have time to listen to the tape and in order to cross-examine this police officer, but right now I want to go forward with basically the substance of the taped statement.
Defense counsel:
Well, I regard this as a serious discovery violation, and I'm asking for the highest sanction, which is a mistrial.
Prosecutor:
Your Honor, the State has committed no discovery violation. We sent them the standard discovery. We have never received any questions or requests for supplemental information, absolutely nothing. So how the State failed to comply with any discovery order is beyond all comprehension.
Defense counsel:
We asked for a copy of any recorded statements in our standard discovery. I was never given any indication that there was an audio or recorded statement. In fact, that was one of the representations that we decided to go to trial.
February 22, 2002 Trial Tr. at 32-33.
February 22, 2002 Trial Tr. at 32-33.
At this point, the Court asked defense counsel for a copy of his discovery request and excused the jury for a recess. Defense counsel provided the Court a copy of the June 19, 2001 request. The Court then questioned Officer Diana as follows:
Court Ex. 5.
Court:
Officer, did I hear your testimony correctly there was an audiotape that was made of the defendant?
Officer Diana:
Yes, ma'am.
Court:
Approximately what length is it?
Officer Diana:
I would speculate about 20 minutes. It was a brief conversation.
Court:
Where is the tape?
Officer Diana:
At County police headquarters.
Court:
Is there a reason you didn't bring it today?
Officer Diana:
I just didn't pick it up, no ma'am, it's my error. The Court then questioned the prosecutor as to why she failed to produce the recorded statement in response to defense counsel's June 19, 2001 discovery request. The prosecutor responded:
Prosecutor:
Your Honor, I don't have that discovery request in my file. The only thing that I have ever sent to [defense counsel] is the, what's called automatic discovery. And I have a copy of that, which is — which indicates, With regard to written, recorded or oral statements made by the defendant or any codefendant in response to interrogation then known to the defendant to be a State agent, I have the "see enclosed reports."
And then I also — and it also says, Reasonable inspections of documents, tangible evidence, inspection of relevant material documents, tangible evidence, inspection of relevant material documents or objects will be permitted. The chief investigating officer in this court is noted in the attached police report, if you wish to see the physical evidence seized in this case, please make arrangements to do so through him or her. Additional tangible evidence, if any, may be viewed only upon specific indication and a proffer of materiality. The following exchange then occurred:
Defense counsel:
And I couldn't make such a proffer of such arrangement based on my assumption that there was none because it was never directly answered in paragraph 1 in the automatic discovery.
Prosecutor:
And I never sent — I never responded, responded to his request at all.
Court:
Well, let me ask a question. In the reports that you attached as part of the discovery the State provided, it indicated that the statement was made by the Defendant?
Prosecutor:
Yes, Your Honor.
Court:
And is there an outline of that statement?
Prosecutor:
Yes.
Court:
All right. Was it your impression that that was the only statement made and that all of it was contained in the report?
Defense counsel:
Yes. My understanding was that it was a statement, and I assumed it was a statement that was not recorded because it was never noted that it was recorded. And I've gone more than nine months thinking that. I guess I have to rely on what's given to us at the time and not rely on my having to make sure that the State is not giving me something.
Court:
Well, with respect to the fact that it's not in the State's file, I see a notice of service that's signed by Mr. Facciola. And he's representing as an officer of the court and certifying that he made the discovery request and that it was served on Ms. Epstein [another deputy] on June 19th, 2001. I note that he specifically by hand changed the date to reflect the accurate date, it was June 13th as typed, and it's reflected that it was changed to June 19th and it was served by hand. So, the presumption is great that it was delivered and it was received. My question is the prejudice to the Defendant insofar as —
Prosecutor:
Well, wait —
Court:
Wait, I'm not finished, okay. Mr. Facciola represented during our sidebar conference that he would not have proceeded to trial had he known about the existence of a tape-recorded statement. That causes me concern because that's pretty grave prejudice in this setting. So I'd like to hear more about that.
Prosecutor:
Well, Your Honor, first of all, Ms. Epstein [the prosecutor to whom the June 19, 2001 discovery request was addressed] is not the counsel of record, I am, and always have been.
Court:
Well, are you suggesting that Ms. Epstein if she saw something that wasn't related to her case wouldn't have forwarded it on to the appropriate attorney general?
Prosecutor:
She may have in fact done that. What I am suggesting to the Court is by informal agreement between the attorney general's office and the public defender's office, we have agreed to send them what is called automatic discovery. There is much dispute about whether or not we send police reports or don't send police reports, but in this particular instance it is quite clear that I sent the police report.
Court:
But after you did that, Mr. Facciola sent you a letter. His letter is dated after your automatic discovery, and his letter says, okay, give me a copy of all written or recorded statements. And you didn't. I mean, that's undisputed, you didn't give him the tape-recorded statement.
* * *
But even if you didn't get his request, your automatic discovery is not accurate insofar as you're standing here today the second day of trial telling the Court you didn't know there was an audiotape.
Prosecutor:
I didn't. It's not in the police report.
Court:
Right. So how can he know about it if you didn't? That's precisely my point.
Prosecutor:
That I am not disputing.
Court:
Well, the burden is on the State.
Prosecutor:
Okay. That's fine.
Court:
The burden's on the State. I mean, if you're saying that you provided automatic discovery, and that everything he needed was in there, it wasn't, because it didn't reflect an audiotape was made, and you yourself didn't know there was an audiotape?
Prosecutor:
No, I didn't.
Defense counsel:
I motion for a mistrial with prejudice to the State. The prosecutor represented to the Court that the police did not tell her that there was an audiotape of the defendant's statement. However, it became clear that the police noted in the police report that the interview of the defendant was tape-recorded:
Prosecutor:
Your Honor, there are two separate issues. The fact that the police did not tell us there was an audiotape is a separate issue from whether or not the State responded to the defendant's request. And it is my position that the Court needs to focus on the issue of whether or not — whether or not the fact that there was nothing in the police report about the audiotape is a discovery violation. But whether or not we sent or responded to the request that Mr. Facciola sent to the wrong deputy is a separate issue.
Court:
Okay. Let's deal with the issues one at a time, because I'm going to tell you how I feel about that. If someone sends a letter —
Officer Diana:
Your Honor, may I interject? In the police report it's clearly reflected that there is a taped statement. If I may produce the report for you?
February 22, 2002 Trial Tr. at 34.
Id. at 35.
Court Ex. 5 at 5.
Id. at 35-41.
Id. at 44-45 (emphasis added).
February 22, 2002 Trial Tr. at 34.
Id. at 35.
Court Ex. 5 at 5.
Id. at 35-41.
Id. at 44-45 (emphasis added).
Confronted with the fact that the police report indicated that the interview between Officer Diana and Defendant was tape recorded, the prosecutor then argued:
Prosecutor:
Well, the State's position is that they would have provided it had . . . [defense counsel] followed up on . . . [the prosecutor's] automatic discovery by requesting to hear it.
Defense counsel:
Well, our [June 19] letter asks for the statement. And we're entitled to the recorded statement, we're not just entitled to go listen to it at their convenience.
Id. at 47.
Id.
Id. at 47.
Id.
At this juncture, the Court sent the jury home for the day and instructed the prosecutor to obtain a copy of the defendant's recorded statement and provide it to defense counsel. The Court further instructed that it would entertain a suppression motion, if defense counsel decided such a motion was warranted after listening to the recorded statement. That same day, after defense counsel listened to the tape, he moved to suppress the statement:
Defense counsel:
The defendant was inquired about whether he wanted a lawyer, and apparently he asserted his right and the officer continued to make strong suggestions to try to persuade him to make a statement. Somewhere in the early part of the statement my client says, If I make — if I confess does my brother go free? But when they signed the Miranda warning form, my client never says, answers yes to the do I understand my rights, and then the question, Having these rights in mind, do you wish to talk to us now, my client declined ever to fill that in. And it appears that my client did not voluntarily make the statement.
Id. at 54-55.
Id. at 54-55.
The prosecutor (who listened to the audiotape for the first time on the second day of trial) conceded that the defendant's statement was inadmissible because the police continued to question him after he invoked his constitutional right to counsel:
Prosecutor:
Your Honor, to be perfectly honest with the Court, I could — what happened is the defendant was advised of his Miranda warnings, he indicated that he wanted a lawyer, and the officer sort of said, Well, let me explain to you what happens if you do that. I could think of no argument in defense of that conduct, and, in fact, called appeals to see if perhaps I was missing something, and they could think of none, either.
Id. at 55 (emphasis added).
Id. at 55 (emphasis added).
Because the prosecutor conceded that the statement had to be suppressed and no curative instruction could remove the taint imposed by the prosecutor's remarks during opening statements about defendant's statement, a mistrial was granted. After declaring a mistrial, the Court requested counsel to brief the issue of double jeopardy.
Trial Tr. at 65-66.
Id. at 57.
C. Post-Trial Events
On March 28, 2002, defense counsel moved the Court to attach double jeopardy and bar retrial, or, in the alternative, dismiss the indictment or complaint on the grounds of a violation of defendant's right to a speedy trial or for unnecessary delay. In support thereof, defense counsel argues that the intentional or reckless conduct of the prosecutor in failing to discover the existence of the defendant's taped statement to the police and consequent failure to comply with the defendant's request for such a statement, "had the same effect as actual malice, or bad faith by the prosecutor." In the event that the Court does not attach double jeopardy and bar retrial, defense counsel requests dismissal of the indictment pursuant to a violation of the defendant's constitutional right to a speedy trial or Rule 48(b) for unnecessary delay.In response, the prosecutor argues that the facts of this case do not support a finding of intentional prosecutorial misconduct necessary to bar retrial, as set forth in Oregon v. Kennedy and adopted by the Delaware Supreme Court in State v. Long. Specifically, the prosecutor asserts that because she did not intentionally provoke a mistrial nor obtain any benefit from a new trial, retrial is permissible. Inexplicably, the prosecutor does not even address in her written response defense counsel's argument for dismissal pursuant to the defendant's constitutional right to a speedy trial or Rule 48(b).
456 U.S. 667 (1982).
628 A.2d 84 (Del. 1993).
On May 21, 2002, the Court held a fact finding hearing and provided the parties with an additional opportunity to present their arguments. At the conclusion of the hearing, decision was reserved.
II. Discussion A. Double Jeopardy Analysis
The Double Jeopardy Clause of the Fifth Amendment, binding on the states through the Fourteenth Amendment, provides that no person shall be twice put in jeopardy of life or limb for the same offense. Jeopardy attaches in a jury trial when the jury is impaneled and sworn. It signifies the promise of finality that inures to the benefit of the accused. The Double Jeopardy Clause of the Delaware Constitution is virtually identical to its federal counterpart, and according to the Delaware Supreme Court, the standard by which it is analyzed is coextensive with the federal constitution. The double jeopardy clauses of the United States and Delaware Constitutions:
Benton v. Maryland, 395 U.S. 784 (1969).
Crist v. Bretz, 437 U.S. 28 (1978); Tarr v. State, 486 A.2d 672 (1984).
United States v. Jorn, 400 U.S. 470, 479 (1971).
Del. Const., art. I, § 8; Evans v. State, 445 A.2d 932, 933 (Del. 1982); Bailey v. State, 521 A.2d 1069 (Del. 1987).
Bailey v. State, 521 A.2d 1069 (Del. 1987).
Protect a defendant against governmental actions intended to provoke a mistrial and thereby subject the defendant to substantial burdens imposed by multiple prosecutions.
* * *
The double jeopardy clauses bar retrial where `bad faith conduct by a judge or prosecutor threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant.'
Bailey v. State, 521 A.2d at 1078, quoting United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasis added).
Bailey v. State, 521 A.2d at 1078, quoting United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasis added).
Criminal defendants may seek refuge from multiple punishments or repeated prosecutions under the protective mantle of the Double Jeopardy Clause. The United States Supreme Court described the policy underlying this provision, in pertinent part, as follows:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184 (1957).
Green v. United States, 355 U.S. 184 (1957).
Armed with the shield of the Double Jeopardy Clause, a defendant can exercise his "valued right to have his trial completed by a particular tribunal." That being said, the provision does not guarantee that "the State will vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense." A criminal defendant can be reprosecuted for the same offense where his conviction is reversed on appeal. Retrial is also not barred where "a defendant's motion is necessitated by prosecutorial error." Thus, a mistrial granted at the defendant's request will not ordinarily bar retrial because it constitutes "a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact." However, a narrow exception to this rule exists wherein retrial is barred. That exception, as set forth in Oregon v. Kennedy, is reserved for "those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial."
Oregon v. Kennedy, 456 U.S. 667, 671-672 (1982).
Jorn, 400 U.S. at 484.
See Green v. United States, supra.
Jorn, 400 U.S. at 485.
United States v. Scott, 437 U.S. 82 (1978).
Oregon v. Kennedy, 456 U.S. 667 (1982) (emphasis added).
Kennedy, 456 U.S. at 679 (emphasis added).
A careful review of the record, including the trial transcript, memoranda submitted by counsel, post-trial hearing transcript and case law leads the Court to conclude that the facts of this case do not warrant dismissal of the charges on Double Jeopardy Clause grounds. That is not to say that the Court condones in any way the prosecutor's violation of Superior Criminal Rule 16 and her failure to diligently prepare the State's case against the accused by reviewing the evidence in advance of trial. It cannot be disputed that the prosecutor had the burden to provide defense counsel with the discovery he requested. The failure to comply with this request constituted a serious discovery violation and, in this instance, resulted in a mistrial. The prosecutor presented many arguments during trial in defense of her conduct and to establish she did not violate Rule 16. These arguments ranged from, ". . . the police did not tell us there was an audiotape . . ." to "I didn't [know there was an audiotape] . . . it's not in the police report," to "I never got [defense counsel's discovery request] . . . to it was defense counsel's responsibility to make arrangements to listen to the tape. None of these arguments, even if correct, alleviated the prosecutor's duty and responsibility to know of, and produce before trial, the audiotape Officer Diana made of his interview with the defendant.
Trial Tr. At 34. See Ward v. State, 1991 WL 247756, Steele, J. (Del.Supr.) at *3. ("The State's attempt to blame the police for its own inattention is irresponsible, and fails to recognize that, when assisting the Department of Justice in a prosecution, the police must be viewed as agents of the Attorney General and the State.")
Trial Tr. At 39.
Trial Tr. At 40.
Trial Tr. At 35.
The prosecutor's boilerplate automatic discovery letter and attachments understandably and predictably caused defense counsel to assume that no tape recording of the defendant's statement existed. After all, the prosecutor was obligated to produce it under Rule 16, did not produce it on June 4, 2001 with the automatic discovery, and told defense counsel, "the materials contained herein comprise our entire response." The fact that the prosecutor represented to the Court that she did not receive the June 19, 2001 discovery request from defense counsel in no way negates or minimizes the violation. Defense counsel served the request by serving the prosecutor who did the intake on the case. The request should have made its way to the prosecutor handling the trial. The prosecutor neglected to notice at any point up to trial that the police report indicated the defendant's statement was recorded. Because the prosecutor failed to learn of and produce the audiotape and defense counsel relied on the prosecutor's representation in its automatic discovery, defense counsel did not discover before trial that his client's constitutional rights were violated during the course of the interview when the interviewing officer persisted in his questioning after the defendant invoked his right to counsel. It is virtually certain that, had the prosecutor produced the taped statement before trial, defense counsel would have filed a motion to suppress. It is clear to the Court that the Court would have granted that motion. It is also clear that defense counsel would have employed a different trial strategy had that been the case. The defendant was substantially and irreparably prejudiced when, during her opening statement, the prosecutor told the jury that the defendant made inculpatory statements concerning his ownership of the marijuana and his intent to sell it. No curative instruction could remove from the jury's mind the inevitable and indelible taint associated with the existence of the defendant's statements to the police that the jurors would now be instructed to disregard. Accordingly, the Court saw no option but to grant defense counsel's motion for a mistrial.
Court Ex. at 2.
When questioned at the fact finding hearing about this discovery violation and the resulting mistrial, the prosecutor attempted to explain her conduct by pointing out that the trial occurred during the "Criminal Blitz" and that the State had inadequate resources to adequately prepare all the cases set for trial during the Blitz. While the Court is sensitive to the demands placed upon the State during the "Blitz," it cannot overlook the fact that the prosecutor had at least two Court initiated opportunities, long before the Blitz, to educate herself about the case and the evidence supporting the case against the accused. These two opportunities were the Initial and Final Case Reviews. Under the Criminal Case Management Plan, the prosecutor was required to provide all automatic discovery and respond to written Rule 16 requests made by the defendant. The Court expected that the Initial Case Review would be utilized by counsel to discuss the case, the evidence and a possible plea. That expectation was not met here. It could not have been because the prosecutor was not even aware of what evidence existed. By the time of the Final Case Review, the Court expected that counsel "would have thoroughly discussed the case. . . ." Again, that could not have happened given what transpired on the second day of trial. The entity charged with the responsibility of prosecuting cases must diligently and thoroughly review before trial the investigation conducted by the police, and the evidence generated from that investigation, in order to avoid waste of Court resources, prevent unnecessary delays and disruption of Court business, and safeguard the accuseds', the victims,' and the public's right to prompt justice. Sadly, those duties were not met here.
Superior Court New Castle County Criminal Case Management Plan adopted 1/18/2000.
Id. at 4.
Id. at 6.
State v. Glaindez, 346 A.2d 156 (Del. 1975); State v. Fischer, 285 A.2d 417 420 (Del. 1971) "Orderly and speedy prosecutions must be promoted to the end that innocent persons may have prompt exoneration and release, and guilty persons may experience prompt conviction and punishment.").
While the Court agrees with defense counsel and finds that the prosecutor erred by failing to discover and tender to him a copy of the defendant's taped statement, it cannot find, based on the facts presented, that the prosecutor's conduct rose to the level of intentional prosecutorial misconduct sufficient to bar retrial on Double Jeopardy Clause grounds. The record is devoid of any evidence of intent by the State to commit the discovery violation or prompt the mistrial. Accordingly, although the prosecutor failed to properly prepare her case by reviewing all the evidence and failed to comply with Rule 16, the Court will not bar retrial.
B. Speedy Trial Right Analysis
The United States Constitution and the Delaware State Constitution provide identical guarantees to a criminal defendant of the right to a speedy trial. Unlike other constitutional rights, the right to a speedy trial is vague by nature. Whether or when the right has been violated cannot be determined with precision. "As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial." Accordingly, the facts of the individual case are determinative on the issue of whether a violation of an accused's speedy trial rights has occurred.
U.S. Const. amend. VI; Del. Const. art. I, § 7; Fensterer v. State, 493 A.2d 959 (Del. 1985).
Barker v. Wingo, 407 U.S. 514, 521 (1972).
Id.
Id.
State v. Braithwaite, 1997 WL 902840 (Del.Super.)
As the Delaware Supreme Court noted:
Orderly and speedy prosecutions must be promoted to the end that innocent persons may have prompt exoneration and release, and guilty persons may experience prompt conviction and punishment. Such orderly and speedy prosecutions may not be avoided or delayed out of existence by prosecutorial tactics.
Fischer, 285 A.2d at 420 (citation omitted).
Fischer, 285 A.2d at 420 (citation omitted).
In Barker v. Wingo, the United States Supreme Court adopted a balancing test wherein the conduct of the prosecutor and the defendant are weighed to ascertain whether a speedy trial violation has occurred. The Supreme Court identified four factors in making this determination. These are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant.
407 U.S. 514 (1972).
Id
Id. at 530.
According to the Supreme Court, "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Because of the imprecision of the right to speedy trial, the Supreme Court has held that "the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. In the case sub judice, the Court will assume that the delay in the adjudication of this case is presumptively prejudicial. The Grand Jury indicted the defendant in June 2001, 12 months ago. Because of the mistrial, trial has necessarily been delayed a few months. While there is no specific delay that triggers a speedy trial analysis, at least facially, this temporal lapse is sufficient to examine the facts of this case under the remaining factors.
Id.
The United States Supreme Court has characterized the right to a Speedy Trial as "vague, amorphous, relative and slippery." Barker, 407 U.S. at 521, 522.
Id. at 531 (citations omitted).
See Skinner v. State, 575 A.2d 1108 (Del. 1990).
Closely related to the length of the delay is the reason for it. Obviously, the finding of intentional prosecutorial misconduct designed to delay a trial in order to hamper the defense is weighted more heavily against the State than a "more neutral reason such as negligence or overcrowded courts." In this case, the delay in adjudication caused by the mistrial is mainly attributable to the prosecutor by virtue of her lack of preparation and discovery violation. As stated previously, however, the prosecutor's conduct was not intentional, it was negligent. Thus, the Court assigns less weight to this factor. Nonetheless, the Court is mindful that "the ultimate responsibility must rest with the government rather than the defendant."
Barker v. Wingo, 407 U.S. at 531.
Id.
Id.
The third factor is Defendant's responsibility to assert his right to a speedy trial. According to the United States Supreme Court:
Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of is speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
Barker v. Wingo, 407 U.S. 514, 531 (1972) (citations omitted).
Barker v. Wingo, 407 U.S. 514, 531 (1972) (citations omitted).
In this case, the defendant asserted his right to a speedy trial by way of motion after the Court declared a mistrial. Because of the Court's heavy criminal case load, there will be some delay in rescheduling this trial. Practically speaking, the prosecutor's discovery violation will result in a delay of approximately 6 months. The length of delay does not weigh heavily against the State.
The final consideration under the speedy trial analysis is prejudice to the defendant caused by the delay. This factor "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." The United States Supreme Court described those interests to be, "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." With respect to the first interest, the defendant has remained free on unsecured bail since his arrest. Accordingly, there is no evidence of oppressive pretrial incarceration. Regarding the second interest, the defendant has offered no evidence that he suffered or is suffering extraordinary anxiety incident to the delay. The defendant does not claim any heightened degree of anxiety than that normally experienced by a person charged with having committed serious crimes. The final consideration, namely, whether the defense itself was impaired, is the most serious interest to be protected to insure fairness. There is nothing in the record to suggest that the delay of the defendant's trial has impaired or will impair his ability to adequately defend himself. Thus, it cannot be said that this interest is or will be compromised because of the delay.
Id. at 532.
Id.
See State v. Johnson, 564 A.2d 364, 369 (Del.Super. 1989).
Skinner, 575 A.2d at 1117.
On balance, when weighing all the requisite factors, the Court finds that the defendant's constitutional right to a speedy trial has not been violated. Viewing the facts and circumstances of this particular case, the Court does not find that the prosecutor acted knowingly, in reckless disregard of the probable consequences of her actions (or inaction), or intended to provoke the mistrial. The delay, while regrettable, was due to neglect and not intentional misconduct or bad faith on the part of the prosecutor. Although the defendant asserted his right to a speedy trial, he has made an insufficient showing of prejudice caused by the delay. Accordingly, the defendant's motion to dismiss the indictment for a violation of his right to a speedy trial must be denied.
Compare State v. Long, 1992 WL 207258, Steele, J. (Del. Super) at *5.
C. Rule 48(b) Analysis
The defendant also asserts that his indictment should be dismissed under Rule 48(b). That rule provides as follows:
Super. Ct. Crim. R. 48(b).
(b) By court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer in Superior Court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
The Superior Court's power under this rule is discretionary and not governed by established concepts of the Speedy Trial Clause of the Sixth Amendment. While Rule 48(b) implements the right of an accused to a speedy trial under the Sixth Amendment, it is not entirely coexstensive with that right. According to the Delaware Supreme Court, "Rule 48(b) serves a somewhat broader purpose and there are instances of dismissal involving no denial of constitutional rights." The Delaware Supreme Court:
State v. Fischer, 285 A.2d 417, 418 (Del. 1970) (citations omitted).
Johnson, 564 A.2d at 370 (citation omitted).
Fischer, 285 A.2d at 418 (citations omitted); Hughey v. State, 522 A.2d 335, 340 (Del. 1987).
has consistently confined its approval of a trial court's exercise of its Rule 48(b) authority to cases where the unnecessary delay is attributable to the prosecution and where the delay has been found to work some definable or measurable prejudice to the defendant.
State v. Harris, 616 A.2d 616 A.2d 288, 292 (Del. 1992); State v. McElroy, 561 A.2d 154, 157 (1989) (citations omitted).
State v. Harris, 616 A.2d 616 A.2d 288, 292 (Del. 1992); State v. McElroy, 561 A.2d 154, 157 (1989) (citations omitted).
The defendant is hard pressed here to argue that the unnecessary delay is solely attributable to the State. The fact that the police tape-recorded the interview with the defendant is documented in the police report that was produced to defense counsel on June 4, 2001, many months before trial. Although defense counsel had the police report well before trial, he failed to see the notation concerning the existence of an audiotape. Had defense counsel seen the notation, presumably he would have asked the prosecutor why she had not produced the defendant's taped statement with her automatic discovery, and would have either demanded the audiotape or made arrangements to listen to it. Under Rule 48(b), this fact, coupled with the lack of prejudice, weigh against dismissal.
Court Ex. 1; February 22, 2002 Trial Tr. 47-48.
February 22, 2002 Trial Tr. at 46, 47-48.
Defense counsel's failure to move to compel production of the audiotape, however, does not negate, excuse or minimize the prosecutor's discovery violation.
The prejudice to the defendant must be "definable or measurable" and "beyond that normally associated with the criminal justice system necessarily strained by burgeoning case load." As the Court has previously noted, the defendant has failed to show prejudice. The Delaware Supreme Court has noted some of the types of prejudice that would justify dismissal under Rule 48(b):
Id. at 156.
[t]he unexplained commencement of a new prosecution long after a dismissal by the State of the same charge in another court; the anxieties suffered by a defendant as the result of delay and uncertainty in duplicative prosecutions against him; the notoriety suffered by a defendant and his family as the result of repeated commencement of prosecutions for the same offense; the expenses, legal and otherwise, attendant upon a subsequent renewal in another court of a dismissed prosecution.
Johnson, 564 A.2d at 370.
Johnson, 564 A.2d at 370.
In arguing for dismissal under Rule 48(b), the defendant relies on State v. Fischer and State v. Hoffstein. The defendant contends that the delay in his prosecution resulting from the mistrial (necessitated by the prosecutor's discovery violation) amounts to prosecutorial maneuvering sufficient to warrant dismissal as an appropriate sanction. The Court cannot agree. Unlike the facts in Fischer, there was no prosecutorial "maneuvering" here. Rather, it was the prosecutor's blunder that precipitated the unfortunate series of events. As noted above, the Court is satisfied that the prosecutor did not intentionally withhold the defendant's taped statement. The Court is also fully satisfied that the prosecutor did not orchestrate the mistrial. Prosecutorial negligence is not enough under Rule 48(b).
285 A.2d 417. (Del. 1971).
315 A.2d 594 (Del. 1974).
285 A.2d at 419, quoting State v. Fischer, 269 A.2d 244, 247 (Del.Super.) 1970.
See Fisher, 269 A.2d at 247.
The defendant's reliance upon State v. Hoffstein is also misplaced. In that case, a prosecutor entered a nolle prosequi on a DUI charge against the defendant in a Justice of the Peace Court and a month later the defendant was indicted by the Grand Jury on the same charge. The trial judge dismissed the indictment pursuant to Rule 48(b). On appeal, the Delaware Supreme Court condemned the practice employed by the prosecutor, noting:
315 A.2d 594 (Del. 1974)
We see Rule 48(b) as a proper means of intervention and control by the Superior Court over the `transfer' of cases having the foregoing results. Orderly and speedy prosecutions must be promoted to the end that innocent persons may have prompt exoneration and release, and guilty persons may experience prompt conviction and punishment. Such orderly and speedy prosecutions may not be avoided or delayed out of existence by prosecutorial tactics.
The public has an increasingly insistent interest and concern in the subject of speedy trial. There is a fast-growing school of thought that prompt justice is an essential weapon against crime. The action of the Superior Court in this case is a commendable step in that direction.
State v. Hoffstein, 315 A.2d 594, 596 (Del. 1974), quoting State v. Fischer, 285 A.2d 417, 419-20 (Del. 1971) (citations omitted).
State v. Hoffstein, 315 A.2d 594, 596 (Del. 1974), quoting State v. Fischer, 285 A.2d 417, 419-20 (Del. 1971) (citations omitted).
The facts of Hoffstein are inapposite to the case at bar and provide no support for dismissal under Rule 48(b). Because the Court finds that the unnecessary delay is not solely attributal to the prosecutor, and further, because the defendant has failed to establish the requisite prejudice, the defendant's motion to dismiss pursuant to Rule 48(b) is denied.
III. Conclusion
For the foregoing reasons, the defendant's motions to attach double jeopardy and bar retrial, to dismiss for violation of speedy trial rights, or to dismiss for unnecessary delay are DENIED.
IT IS SO ORDERED.