Opinion
Nos. 9812005928, K99-06-0385A, K99-06-0386A.
Submitted: September 14, 1999.
Decided: December 30, 1999.
Upon State's Appeal of Trial Court's Dismissal of Criminal Action Against Appellee
Martin B. O'Connor, Esq., Deputy Attorney General, Department of Justice, Dover, Delaware, for the State.
John M. Willard, Esq., Wilmington, Delaware, for Defendant.
AFFIRMEDORDER
Upon consideration of the State's appeal from a Court of Common Pleas decision denying it's motion to vacate an order dismissing this proceeding, it appears that:
1. The defendant, Wayne Kozak, was arrested in Felton, Delaware, on December 8, 1998 for DUI in violation of 21 Del. C. § 4177 and Driving While Suspended in violation of 2l Del. C. § 2756(a). Mr. Kozak elected to have his case transferred from the Justice of the Peace Court to the Court of Common Pleas.
2. After being transferred to the Court of Common Pleas, the case was scheduled for case review on three different occasions. Each time the case review was continued at the request of defense counsel. After that, the case was scheduled for trial twice, and, again, on each occasion was continued at the request of defense counsel.
3. The third trial date was April 14, 1999. When the case was called that morning, defense counsel moved for another continuance on the ground that a material defense witness was not present. The State objected, citing the fact that a State witness, Miss Ivey, who was present, had already taken off work "two or three times" to be at court to testify. The motion for a continuance was denied.
4. Later in the day, as the court continued to work through its calendar, the case was called a second time. The prosecutor then informed the court that Miss Ivey had "taken off" and the State was unable to proceed. Apparently Miss Ivey was an essential witness for the State. The State requested a continuance. The defendant moved to dismiss. The court denied the continuance and dismissed the charges pursuant to Rule 48 (b) for unreasonable delay in bringing the case to trial.
5. On April 26, 1999, the State filed a motion asking the court to vacate its order of dismissal. In its written motion, the State contended that the defendant and defense counsel spoke to Miss Ivey between the two calendar calls and that their comments caused her to leave the courthouse. The State also argued that the defendant had not demonstrated any prejudice to justify a dismissal, noting that the defendant himself had sought a continuance earlier that same day.
6. The motion was heard May 19, 1999. At that time the State informed the court that it had intended to call Miss Ivey to testify concerning the allegations made in the motion, but she had not appeared. When the court asked what measures had been taken to secure her appearance, the State responded that no special arrangements had been made; that she had been sent a letter informing her that her appearance was required. Defense counsel vigorously denied the allegations against him. The defendant took the witness stand and testified that he did have a conversation with Miss Ivey in the courthouse on April 14, but that the substance of it was that she had apologized to him for all the "trouble" she had put him through. The defendant denied causing her to leave. The court denied the motion to vacate, stating that "(i)t seems to me he has the right to have his trial on the date scheduled, and he's prejudiced if he's here for trial and doesn't have his right to a trial and a verdict." This appeal then followed.
7. When addressing appeals from the Court of Common Pleas, this Court sits as an intermediate appellate court. As such, its function is the same as that of the Supreme Court. Therefore, the Court's role is to "correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process." A trial court's power, under Rule 48(b), is a discretionary one, not governed by established speedy trial concepts of the sixth amendment. The grant or denial of a motion to vacate a dismissal order is also a discretionary act. Accordingly, on appeal, a reviewing court must determine if there was an abuse of discretion.
State v. Richards, Del. Super., Cr.A. No. 96091381, Toliver, J. (May 28, 1998) (Opinion and Order).
State v. Huss, Cr.A. No. IN93-04-0294AC, Gebelein, J. (October 8, 1993) (Mem. Op.) (citing Shipkowski v. State, Del. Super., Cr.A. No. IK88-03-0033A, Steele, J. (July 28, 1989); and Baker v. Connell, Del. Supr., 488 A.2d 1303 (1985)).
Id. (citing Levitt v. Bouvier, Del. Supr., 287 A.2d 671, 673 (1972)).
State v. Johnson, Del. Super., 564 A.2d 364 (1989).
State v. Richards, Del. Super., Cr.A. No. 96091381, Toliver, J. (May 28, 1998) (Opinion and Order).
8. In order to dismiss a case pursuant to Rule 48(b), the trial court must find that there has been unnecessary delay attributable to the prosecution, and that the defendant has suffered some prejudice as a result. However, prejudice in the traditional sense, such as by death or disappearance of a witness, loss of evidence, or other impairment of the opportunity to prepare for trial, is not required. Prejudice may be any factor which causes or threatens legal harm or detriment to the defendant. Minimally, the prejudice must be something "beyond that normally associated with the criminal justice system necessarily strained by a burgeoning case load."
State v. McElroy, Del. Supr., 561 A.2d 154 (1989).
State v. Budd Metal, Del. Supr., 447 A.2d 1186 (1982); State v. Fischer, Del. Supr., 285 A.2d 417 (1971).
State v. Harris, Del. Supr., 616 A.2d 288 (1996); State v. McElroy, Del. Supr., 561 A.2d 154 (1989).
9. The State first contends that since its witness did appear initially for trial and since the prosecutor did promptly inform the court after the witness suddenly left the courthouse, the delay should not be attributable to the State. However, although the delay was apparently not due to any neglect or fault on the part of the prosecutor, there was no apparent emergency or other just cause which would explain or justify why the State's necessary witness simply left the courthouse. Under these circumstances the delay must be held to be both unnecessary and attributable to the State. It was certainly not caused by the trial court. And the trial court made no finding that it was caused by the defense.
10. The State next contends that the delay must produce some "definable or measurable" prejudice, which is a "condition precedent to a dismissal," citing McElroy and Harris. It argues that simply not having trial on the date scheduled alone is insufficient to warrant dismissal. While the cases cited do use the phrases emphasized by the State, the Delaware Supreme Court has also affirmed dismissal where the State was unable to produce a necessary witness on the first scheduled trial date, without a showing of actual damage to the defendant's case. As mentioned above, a showing of prejudice in the traditional sense is not necessary under Rule 48(b).
State v. Glaindez, Del. Supr., 346 A.2d 156 (1975).
11. Both the State and its witnesses, and the defendant, do have some interest in a scheduled trial date. Obviously, scheduled trial dates are frequently continued for many different reasons. But scheduled trial dates do have some legal value to the parties involved, and when a trial date is disturbed because one side is not prepared, there is at least some minimal legal prejudice to the other side. And while there is obvious irony in seeing a case dismissed against the State when the defendant had requested a continuance the same day, that aspect of the case goes both ways. Once the trial court denied the defendant's request for a continuance, the signal that was sent was that the trial was going forward. There would also be irony in seeing the State given a continuance for a missing witness when the defendant had just been denied a continuance requested on the same grounds.
12. Whether this court would have decided the case the same way is beside the point. The State was not able to secure the appearance of its witness either at trial or at the hearing on the motion to vacate. The State was not in a position to offer any reasonable explanation for its witness's absence. Under all the circumstances presented, the trial court's denial of the State's motion to vacate the order of dismissal was not an abuse of discretion.
THEREFORE, IT IS ORDERED that the decision of the trial court is affirmed. _________________ Resident Judge
oc: Prothonotary cc: Order Distribution