Opinion
Case No. 1503020405
07-13-2016
STATE OF DELAWARE, Plaintiff, v. JENNIFER MILLER, Defendant.
Nichole Whetham Warner, Esquire Deputy Attorney General Department of Justice 820 N. French Street, 7th Floor Wilmington, DE 19801 Attorney for the State of Delaware Richard B. Ferrara, Esquire Ferrara & Haley 1716 Wawaset Street Wilmington, DE 19806 Attorney for Defendant
Nichole Whetham Warner, Esquire
Deputy Attorney General
Department of Justice
820 N. French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware Richard B. Ferrara, Esquire
Ferrara & Haley
1716 Wawaset Street
Wilmington, DE 19806
Attorney for Defendant MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO REARGUE
This matter is presently before the Court on the State's Motion to Reargue (the "Motion"). On March 30, 2015, Jennifer Miller ("Defendant") was arrested and subsequently charged with Driving Under the Influence ("DUI"), in violation of 21 Del. C. § 4177, and other traffic-related offenses. On March 29, 2016 and April 27, 2016, the Court held a suppression hearing to determine the legality of the stop and arrest. During the hearing, the Court heard testimony from the arresting officer. During cross-examination, Defense Counsel inquired as to whether there was a report regarding the officer's performance. The arresting officer, who was training at the time of the stop, confirmed that his supervising officer wrote a report regarding his performance during the DUI investigation. Defense Counsel orally moved to dismiss pursuant to Court of Common Pleas Criminal Rule 16 ("Rule 16") and Brady v. Maryland. At that time, the Court did not permit the State to further question the arresting officer. The Court granted Defendant's oral motion, and dismissed the case.
373 U.S. 83, 87 (1947).
On May 4, 2016, the State timely noticed the present Motion for Reargument (the "Motion") pursuant to Court of Common Pleas Criminal Rule 57(b) and Court of Common Pleas Civil Rule 59(e). On May 6, 2016, the Court ordered Defendant to file a written response to the Motion. In her filing, Defendant raised new issues that the State did not address in its Motion. Therefore, the Court amended its Brief Schedule to allow the State to reply to Defendant's Response. On June 8, 2016, the State timely filed its Reply Brief. The Court has reviewed the facts, parties' arguments and applicable law. This is the Final Decision and Order on Defendant's Motion for Reargument.
I. Parties' Contentions.
A. The State's Motion
First, the State argues that reargument is appropriate because it did not violate either Rule 16 or the rules regarding exculpatory evidence. The State claims that Defendant did not establish that the State violated Rule 16 because she did not show that the DOR was material to preparing her defense, nor did she demonstrate that the result of the proceeding would have changed had the State disclosed the DOR. The report at issue is a Daily Observation Report ("DOR"), which is an internal police report. The State argues that the DOR is neither discoverable pursuant to Rule 16(a)(2), nor is it Brady material because it does not contain exculpatory evidence. While the State concedes that the DOR may be Giglio material, it argues that it was not required to produce Giglio material at the time of the suppression hearing. Therefore, the State argues that at the time of dismissal, no discovery violation occurred.
The State argues that Defendant was able to review the arresting officer's investigation on the Mobile Video Recorder ("MVR") and that the DOR merely contained the supervising officer's opinions regarding the events captured by the MVR. Furthermore, the State argues that disclosure of the DOR would not have changed the outcome of the proceeding since the field tests administered by the arresting officer were suppressed on other grounds.
405 U.S. 150 (1972).
Second, based on comments made by Defense Counsel, the State claims that Defendant should have known that there was a possibility that the DOR existed, and therefore, should have made a specific request for the DOR or filed a motion to compel. The State also argues that it did not know of the DOR until Defense Counsel cross-examined the arresting officer, and that the Court did not permit the State to explore the possibility of whether the DOR could have been produced in time for trial. The State maintains that Defendant's tactic of waiting until the day of trial to raise this issue with the DOR is both disfavored by the courts and impermissible, as addressed in State v. Wood. Thus, the State argues that Defendant's conduct should not be rewarded with a dismissal of the action.
2006 WL 515451 at *2 (Del. Super. Feb. 28, 2006).
The State also argued that while the Court has broad discretion to sanction the State for any potential discovery error, the appropriate remedy would be to continue the case to determine if the DOR could be produced or to suppress the arresting officer's testimony. The State claims that it was prepared to proceed on an impairment theory and call civilian witnesses to support its case, and therefore, either of the State's requested remedies would have cured the potential violation.
B. Defendant's Response in Opposition
Defendant argues that the DOR is discoverable pursuant to Rule 16(a)(1)(C) because the DOR specifically mentioned Defendant's arrest and evaluated the arresting officer's performance during the DUI investigation. Defendant maintained that she requested the State to produce all discoverable material on April 2, 2015, and at the Case Review on May 27, 2015. Moreover, Defendant argues that the State learned that the arresting officer was a field trainee on March 29, 2016, and therefore had a duty to determine whether the DOR existed and the State's failure to do so prior to the continuation of the suppression hearing on April 27, 2016 warranted sanctions. In response to the State's concession that the DOR may qualify as Giglio material, Defendant asserts that, because this case was scheduled as a bifurcated trial, the State should have been prepared to produce the DOR on the day of the suppression hearing. Therefore, Defendant claims that the Court properly exercised its discretion in dismissing the action for the State's Rule 16 discovery violation.
Defendant also maintains that the facts do not support the State's suggestion that Defense Counsel's conduct during the suppression hearing was impermissible. Defendant claims that Defense Counsel did not become aware of the existence of the DOR in this particular case until the arresting officer was subject to questioning on April 27, 2016, and therefore, was not engaging in any disfavored conduct.
Defendant conceded that while Defense Counsel is familiar with this type of report in general, Counsel had no way of knowing that a DOR
II. Legal Standard.
The Court of Common Pleas Criminal Rules do not specifically authorize motions for reargument. Nevertheless, Court of Common Pleas Criminal Rule 57(b) grants the Court authority to "proceed in any lawful manner not inconsistent with these Rules or with any applicable statute" when the criminal rules are silent as to the proper procedure the Court should utilize. Therefore, when considering a Motion for Reargument in a criminal matter, the Court looks to Court of Common Pleas Civil Rule 59(e), which governs Motions for Reargument in civil matters.
See State v. Dumas, 2016 WL 702003, at *2 (Del. Com. Pl. Feb. 22, 2016); State v. Slaney, 2016 WL 281464, at *2 (Del. Com. Pl. Jan. 20, 2016); Parisan v. Cohan, 2012 WL 1066506, at *1 (Del. Com. Pl. Mar. 29, 2012); see also State v. Munzer, 2009 WL 206088, at *1 (Del. Com. Pl. Jan. 9, 2009).
Pursuant to Court of Common Pleas Civil Rule 59(e), parties may request the Court to reconsider a previous finding of fact, conclusion of law, or judgment. When filing a Motion for Reargument, parties cannot restate arguments that were previously presented to the Court. Conversely, parties are also not permitted to present new arguments not raised in the original proceeding. Unless the moving party demonstrates that the Court either overlooked a controlling precedent or legal principle, or misapprehended the law or facts in a manner that would change the outcome of its decision had it been correctly or fully informed, the Court will not grant a Motion for Reargument. Furthermore, in seeking reargument, a party must demonstrate that there is newly discovered evidence or a change in the law, or otherwise prove that it has somehow experienced a manifest injustice. The Court will generally deny a motion for reargument absent a showing of abuse of discretion.
Slaney, 2016 WL 281464, at *2; State v. Boyer, 2007 WL 1651936, at *1 (Del. Com. Pl. June 8, 2007); Parisan, 2012 WL 1066506, at *1 (quoting Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)).
Tektree, LLC v. Borla Performance Indus., Inc., 2013 WL 5508761, at *1 (Del. Com. Pl. Oct. 2, 2013) (citing Strong v. Wells Fargo Bank, 2013 WL 1228028, at *1 (Del. Super. Jam. 3, 2013)).
Umphenour v. O'Connor, 2011 WL 2671916, at *1 (Del. Com. Pl. July 1, 2011).
Parisan, 2012 WL 1066506, at *1 (citing Beatty v. Smedley, 2003 WL 23353497 (Del. Super. Mar. 12, 2003)).
Id.
Sweetman v. State Farm Mut. Auto. Ins. Co., 2016 WL 526518, at *1 (Del. Com. Pl. Feb. 9, 2016) (citing Parisan, 2012 WL 1066506, at *1).
III. Opinion.
The Court has carefully reviewed this matter and the State's Motion, and finds that the Court overlooked a controlling legal principle and misapprehended the facts in a manner that would change the outcome of its decision had it been correctly or fully informed. The Court dismissed this matter pursuant to Rule 16 and Brady v. Maryland. Rule 16(a)(1)(C) requires the State to produce documents within its possession, custody or control that "are material to the preparation of the defendant's defense or are intended for use by the State as evidence in chief at the trial, or were obtained from or belong to the defendant." This requires Defendant to demonstrate that the evidence sought creates "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." The Court agrees with the State's position, and finds that the DOR was not material to Defendant's case because the DOR contained information that was readily apparent from the MVR, which Defendant was able to review. Moreover, Defendant did not prove that the production of the DOR would have resulted in a different outcome. The Court suppressed the field tests conducted by the arresting officer on grounds separate from anything raised within the DOR. Therefore, because Defendant failed to establish that the DOR was material to her case, dismissal pursuant to Rule 16 was improper.
Seen. 1.
Starling v. State, 882 A.2d 747, 756 (Del. 2005).
In Brady, the Supreme Court found that the "suppression of evidence by the prosecution favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." It is well settled that the State "has a duty to disclose exculpatory evidence regardless of the defendant's actions." To establish a Brady violation, a defendant must show: "(1) the prosecution either willfully or inadvertently suppressed evidence; (2) the evidence was favorable to the defendant because it was exculpatory or had impeachment value; and (3) the evidence was material." If "evidence could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict,'" it is material exculpatory evidence. However, "there is no Brady violation where the exculpatory information is available to the defense from other sources in the exercise of due diligence."
Brady, 373 U.S. at 87.
Gray v. United States, 2015 WL 4776945, at *7 (D. Del. Aug. 13, 2015) (citing United States v, Agurs, 247 U.S. 97, 107 (1976); Kyles v, Whitley, 514 U.S. 419, 433 (1995)).
Id. (citing Lambert v. Blackwell, 387 F.3d 210, 252 (3d. Cir. 2004)).
Id. (quoting Kyles, 514 U.S. at 435)).
Id. (citing United States v. Perdomo, 929 F.2d 967, 973 (3d. Cir. 1991)
The Court agrees with the State's position and finds that Defendant has not established that the DOR contained exculpatory evidence. Defendant argues that there could have been Brady material within the DOR, however this argument fails because "it is speculative at best, and fails to establish actual prejudice that Defendant suffered." Moreover, even if the DOR did contain exculpatory evidence, Defendant failed to establish that such evidence is material. Notwithstanding this, the State's failure to produce the DOR would not have constituted a Brady violation because any information that may have been within the DOR—i.e. the arresting officer's performance in conducting the DUI investigation—was readily available and apparent in the MVR. Therefore, the Court's incorrectly found that the State committed a Brady violation, and thus, dismissal of the matter pursuant to Brady was improper.
State v. Robert Swift, C.A. No. 1312016423 (Del. Com. Pl. Nov. 5, 2014) (citing State v. Burgos, 2014 WL 1275184, *3 (Del. Super. Mar. 31, 2014)).
Although the DOR is not discoverable under Rule 16 nor does it constitute Brady material, it is apparent that the DOR may constitute Giglio material. Under Giglio, the Supreme Court found that Brady also "requires prosecutors to disclose favorable and material evidence affecting the jury's judgment of a crucial prosecution witness' credibility" so that the defendant may "effectively cross-examine the [State's] witness at trial." A defendant however, is not entitled to Giglio material prior to trial. Notwithstanding the fact that this matter was scheduled as a bifurcated trial, at the time Defense Counsel orally moved to dismiss, Defendant's case was still within the suppression stage. Therefore, even if the DOR constituted Giglio material, Defendant was not entitled to the DOR at the time Defense Counsel motioned to dismiss.
Gray, 2015 WL 4776945, at *7 (citing Gigilo, 405 U.S. at 154).
Id. at *7, *8. --------
IV. Order.
For the foregoing reasons, The State's Motion for Reargument is GRANTED. The instant charges are hereby reinstated and the Suppression Hearing shall be rescheduled at the earliest convenience of the Court with notice to Counsel of Record.
IT IS SO ORDERED this 13th day of July, 2016.
/s/_________
John K. Welch, Judge cc: Ms. Diane Healy, CCP Criminal Case Manager