Opinion
ID: 1310000325
03-10-2015
STATE OF DELAWARE v. KHIRY L. BROWN, Defendant.
pc: Periann Doko, Deputy Attorney General Eugene J. Maurer, Jr., Esquire Allison Mielke, Esquire
MEMORANDUM OPINION AND ORDER
Upon Defendant's Motion to Dismiss - DENIED. SILVERMAN, J.
This is one of the so-called "OCME" cases. Having sweated-out the court's deciding the global issues and finding himself on the losing side, Defendant asserts his right to a speedy trial.
I.
Originally, the case, indicted on November 25, 2013, was scheduled for trial on April 1, 2014. In March 2014, however, the State announced an investigation into misconduct at the Office of the Chief Medical Examiner. In summary, it was learned that someone in the OCME was tampering with and diverting controlled substances sent to the OCME for testing. The resulting scandal was unprecedented and it threw into flux all of the then-pending drug prosecutions. It took until November 17, 2014 for the court to sort-out the problem. This case was then set for trial on February 12, 2015.
State v. Irwin,ID No. 130901246, ID No. 1310000634, ID No. 1310018849, 2014 WL 6734821 (Del. Super. Nov. 17, 2014).
On February 12, 2015, this case was over 400 days old. As it happened, the State's chief investigating officer took ill that day and was unavailable. It was proffered that he had the flu and had called-in sick. When the court rescheduled the case, denying Defendant's motion to dismiss without prejudice to filing the formal motion now before the court, the court suggested, but did not order, that the State attach the officer's affidavit to the State's response, which the State did not do.
The State's submission to the contrary notwithstanding, the State did not "suggest to proceed with jury selection and begin testimony the following day or to continue with other witnesses." And, Defendant did say to whom he was referring when he argued that the State was unprepared because it had not subpoenaed every potential witness in the chain of custody. By name, Defendant identified the people who transportedhe drugs to the OCME and from the OCME to the testing laboratory. Defendant relied on the decision globally addressing the OCME situation, arguing the State was obligated to produce everyone who was in the chain of custody. As the court held at the time, that is an overstatement of the OCME decision.
Id.
The considerable delay between the indictment and February trial date is attributable almost entirely to the time it took to address the OCME situation. Like virtually all the defendants who were potentially affected by the OCME situation, Defendant tacitly agreed that his case would be delayed while the OCME decision was pending. The way Defendant puts it is:
As a professional courtesy, counsel has not opposed the State's continuance requests. However, Mr. Brown and counsel have not purposefully delayed the prosecution and have not contributed to the delayed prosecution beyond informing the court that the case was not ready to proceed because ofThe upshot of Defendant's position is that he did not assert his right to a speedy trial until February 12, 2015. For completeness, the court further observes that Defendant was on bail for most of the time this case was pending. His custody status changed in January 2015, when he was arrested for a new drug-related charge.
the then-pending Motion in limine. However, now that Mr. Brown is held in custody on this charge and in light of the length of time that has transpired, Mr. Brown is asserting his right to a speedy trial through this motion. Therefore, the Court should find that Mr. Brown has asserted the right and has not frivolously done so in the past.
II.
Substantively, Defendant primary relies on Middlebrook v. State and Barker v. Wingo which Middlebrook follows. Of necessity, Middlebrook adopts the four-part test in Barker. Under Middlebrook, the court must now balance:
802 A.2d 268, 273 (Del. 2002).
407 U.S. 514, 530 (1972). --------
1. the length of delay;As explained above, the length of the delay is 470 days, today. The reason for the delay was the OCME situation, a problem caused in no part by Defendant. Although he now wishes to benefit from it, Defendant did not assert his right to a speedy trial until February 12, 2015, a month ago. Finally, because the delay exceeded one year, the State's arguments to contrary notwithstanding, the delay is prejudicial as a matter of law.
2. the reason for the delay;
3. defendant's assertion of the right to a speedy trial; and
4. prejudice to Defendant from the delay.
III.
While the court has just held that the delay was presumptively prejudicial and it was not caused at all by Defendant, those factors are outweighed by Defendant's approach to the sensational and unprecedented problem presented by the OCME situation. Undeniably, Defendant originally decided not to press for a speedy trial and risk the State's putting together a satisfactory chain of custody. Instead, like virtually everyone else in his situation, Defendant chose to await the outcome of the global, OCME decision. Denying Defendant's speedy trial motion for the delay before February 12, 2015 is consistent with his strategy and expectation.
Finally, as to the State's unpreparedness on February 12, 2015, the court will excuse the State under the circumstances. After jury selection, however, Defendant may have the opportunity to question the chief investigating officer, under oath, about his illness in February. Furthermore, the State tacitly conceded that it did not have the drug evidence couriers available for trial in February. Accordingly, the State may not call those witnesses now. If that leaves a fatal hole in the chain of custody, so be it.
For the foregoing reasons, Defendant's motion to dismiss based on a speedy trial is DENIED.
IT IS SO ORDERED.
/s/ Fred S. Silverman
Judge
oc: Prothonotary (Criminal)
pc: Periann Doko, Deputy Attorney General
Eugene J. Maurer, Jr., Esquire
Allison Mielke, Esquire