Opinion
ID No. 0909024117.
Date Submitted: July 16, 2010.
Date Decided: August 10, 2010.
Upon State of Delaware's Motion to Vacate Dismissal: DENIED
John W. Downs, Esquire, Attorney for the State of Delaware.
John S. Edinger, Jr., Esquire, Attorney for the Defendant.
OPINION
Background
Before the Court is the State of Delaware's Motion to Vacate Dismissal. The facts giving rise to this motion are as follows. The defendant was indicted for Robbery First Degree on November 9, 2009. At 4:53 p.m. on the day before trial, the State faxed a trial continuance request to the Criminal Administrative Judge (the "CAJ") of this Court. The basis for the eleventh hour continuance request was the unavailability of a "necessary State's witness" ("the Witness"). The CAJ denied the continuance request because it came too late, determining that the State should have ascertained and confirmed the availability of its necessary witnesses earlier than two days before trial.
D.I. 2.
D.I. 9. The Continuance Request Form states: "Reason(s): A necessary State's witness is hospitalized in Puerto Rico. The witness traveled to Puerto Rico for family matters and became ill while there and has been hospitalized and not able to return to Delaware. The State just became aware of this while talking to other witnesses."
At the Call of the Calendar on the morning of trial, the Criminal Assignment Judge presiding over the trial calendar refused to overturn the CAJ's denial of the State's continuance request. The State advised the Criminal Assignment Judge that it could not prosecute the case without the necessary Witness. The defendant moved to dismiss pursuant to Super. Ct. Crim. R. 48(b), and the Court granted the motion. The State then asked for the opportunity to speak with the CAJ before the case was dismissed. The Criminal Assignment Judge responded, "you can go up and talk to her and ask to file for re-argument . . . but I'm not going to change her order." The State went upstairs to chambers, but the CAJ was not available. The State went back downstairs to the Call of the Calendar and had the following exchange with the Criminal Assignment Judge:
Tr. Call of the Calendar, 3:18-20, Apr. 20, 2010, D.I. 17. The Criminal Assignment Judge advised the State: "I don't think that is really the way that you ask for re-argument . . . to go up to a Judge's office, but it might be worth a try. I don't know." Tr. at 4:2-5.
Had the CAJ been available, she would not have changed her ruling given the State's conduct leading up to the continuance request.
Prosecutor: The other matter was Carl Richards, Your Honor. The Court is going to dismiss that case. The State asks that it be done without prejudice.
The Court: I am dismissing it with prejudice. You're not ready. The Court has it on the calendar for today. The case is ready to go forward, you're not. That's the end of it.
Prosecutor: Yes, Your Honor.
The Court: Don't turn around and walk out like that. That is very disrespectful. That is very disrespectful.
Prosecutor: I apologize, Your Honor.
The Court: If you don't like my decision, I'm sorry.
Prosecutor: But I acknowledged the Court. I said, "Yes, Your Honor," and I turned —
The Court: That was very disrespectful and I don't want to see you behave like that again.
Prosecutor: I apologize, Your Honor.
The Court: You have been at it all morning and I'm not real happy about it.
Prosecutor: Your Honor, may I be dismissed?
The Court: You may wait until the Court dismisses you.
Prosecutor: Your Honor, I don't want to walk out if the Court — I don't know what to do. I was walking out because my cases are done.
The Court: All right. Then you may be dismissed.
Prosecutor: Thank you.
Tr. at 5:12-23, 6:1-19.
The State knew in December, 2009 that this case was going to trial on April 20, 2010. The Scheduling Order issued on December 3, 2009 stated:
(1) The following Court dates are established:
(A) First Case Review on 12/14/2009, at 01:45 p.m.
(B) Final Case Review on 4/12/2010, at 01:45 p.m
(C) Trial on 4/20/2010. Counsel and Defendant must attend the calendar call on the day of trial at 9:00 a.m.
(2) Counsel should immediately notify their witnesses and the Defendant of these dates. If there are issues regarding the unavailability of witnesses or any other scheduling problems, counsel is to notify the Court (Attn: Tameka Lewis) within two weeks from the date of this order of these concerns. If this occurs, the case will be rescheduled by the Prothonotary's Office. Otherwise the date will remain as previously scheduled absent exceptional circumstances.
D.I. 4.
Pursuant to Criminal Administrative Order dated March 28, 2000, "[c]ounsel for the State and the defendant have a responsibility as officers of the Court to eliminate unnecessary delay consistent with their ethical obligations to their clients."
Super. Ct. Crim. Admin. Order, Mar. 28, 2000, § 1. Section One of the March 28, 2000 Criminal Administrative Order states in its entirety: "From the commencement of a criminal prosecution to its conclusion by adjudication or otherwise, any elapsed time other than reasonably required for pleadings, discovery, and Court events is unacceptable and should be eliminated. To enable just and efficient resolution of cases, the Superior Court, not counsel or the litigants, shall control the pace of litigation. Counsel for the State and the defendant have a responsibility as officers of the Court to eliminate unnecessary delay consistent with their ethical obligations to their clients."
Although the Witness was so necessary to the prosecution of this case that the State could not prosecute the case without her, the State did not make an effort to locate and speak to her untilone week or less before trial. The State's initial efforts to talk to this essential Witness consisted of the State leaving a message on a phone number obtained from the police report. On April 17, 2010, just three days before trial, the State visited the bank where the Witness worked (and where the alleged crime occurred) "to locate the State's witness, however, to no avail." At approximately noon on the day before trial, the alleged victim, a co-worker of the Witness, called the State in response to phone messages left by the State. The alleged victim confirmed she would appear for trial the next day. The State asked the alleged victim if she knew the whereabouts of the Witness. The alleged victim advised the State that the Witness was in Puerto Rico. According to the alleged victim, the Witness had a family emergency earlier in the month that required her presence in Puerto Rico. While in Puerto Rico, the Witness became ill and was hospitalized.
See State's Br. at 2, D.I. 14 (" During the week prior to the trial's start date, the State made efforts to contact the victim and witness; messages were left on phone numbers obtained from the police report.") (emphasis added).
According to the State, "[i]n preparation for trial, subpoenas were issued." State's Br. at 2. However, there is no indication in the record that multiple subpoenas were issued or to whom they were issued. The docket reflects the issuance of only one subpoena on April 6, 2010 (14 days before trial). See D. I. 8. Thus, it is not clear that the Witness was ever subpoenaed.
State's Br. at 2.
State's Br. at 2-3.
Id. at 3. Nowhere in the State's briefing does it indicate when the Witness entered the hospital or how long she was expected to be hospitalized. And there is no indication that the State contacted the Witness to verify the information provided by the alleged victim.
Discussion
The authority of this Court to dismiss a case for failure to prosecute, or to comply with its rules or orders is well established. "It is an inherent power of the trial court, which is concomitant to the control rested in a trial court, to manage its affairs and to achieve orderly disposition of its business." Rule 48(b) is "a codification of the inherent power of a court to dismiss for want of prosecution." The Supreme Court has consistently held that Rule 48 serves a "broader purpose than guaranteeing a defendant's constitutional rights to a speedy trial." For a criminal indictment to be dismissed pursuant to Rule 48 for unnecessary delay:
The delay must be attributable to the prosecution and have a prejudicial effect upon defendant beyond that normally associated with a criminal justice system necessarily strained by a burgeoning caseload.
State v. McElroy, 561 A.2d at 155-56; State v. Fell, 1993 WL 61699, at *1 (Del. Feb. 19, 1993).
Although a prosecutor's failure to produce witnesses necessary for trial normally constitutes a delay attributable to the State, the State will generally not be held responsible for delays that result from events beyond its control. Certainly, the Witness' hospitalization in Puerto Rico is an event beyond the State's control. But what was within the State's control, long before trial, and most certainly before the week preceding trial, was the ability to locate the "necessary" Witness and ascertain her availability for trial.
Id.; State v. Harris, 616 A.2d at 291; State v. Johnson, 564 A.2d 364, 371 (Del. Super. 1989).
Pursuant to the December 3, 2009 Scheduling Order, the State should have immediately notified the Witness of the trial date. Then, as the trial approached, the State should have contacted the Witness again to make sure she was still available. Inexplicably, the State decided to wait until 7 days or less before trial to contact the Witness. This was a decision within the State's discretion and control, and its decision to wait until the week before trial to call a "necessary" witness was, at best, risky, at worst, cavalier. The State's failure to learn of the Witness' hospitalization in Puerto Rico until the day before trial is not an event beyond its control.
See State v. Anderson, 349 A.2d 748, 749 (Del. 1975)("The concept and goals of prompt justice are the obligations of counsel on both sides of a criminal case."). See also Super. Ct. Crim. Admin. Order, Mar. 28, 2000, § 1("Counsel for the State and defendant have a responsibility as officers of the Court to eliminate unnecessary delay. . . .").
As noted previously, the Witness apparently had traveled to Puerto Rico in early April.
In State v. Glaindez, the State requested a continuance on the morning of trial because the prosecution did not learn until the day before trial that a subpoena issued for the victim was returned Non est inventus. The State in Glaindez never followed up with the Sheriff to insure that the subpoena had been served. The defendant was ready for trial, objected to the continuance, and moved for dismissal. The Court dismissed the case, stating:
346 A.2d 156 (Del. 1975).
To come in on the morning of trial and advise the Court that a Sheriff's return last week indicates a nonappearing witness, and to bring that to the attention of the Court the opening day of trial as a basis for a continuance, to my mind, is unpardonable, and the Court will not be a party to that kind of delay.
Id. at 157.
The Supreme Court affirmed, finding "no abuse of discretion and agree[ing] with the Court's rationale and ruling." As in Glaindez, the State could have and should have learned earlier than the day before trial that its Witness was not going to appear. Here, the State did too little, too late. The State's conduct in this regard is similarly "unpardonable" and the Court will not countenance it.
Id.
The State argues that dismissal was inappropriate because the defendant has not shown prejudice. A "showing of prejudice in the traditional sense is not necessary under Rule 48(b)." Prejudice may be "any factor which causes or threatens legal harm or detriment to the defendant." The defendant was prejudiced by the State's conduct. Had the State undertaken to contact its necessary Witness perhaps a month (instead of a week or less) prior to trial, it would have been able to speak with her before she left the country, and could have advised her to contact the State if for any reason she had to leave the State between then and trial. Presumably, had the State done this, the Witness would have called the State about her trip to Puerto Rico. At that time, weeks before trial, the State could have requested a continuance. Had the Court known about the Witness' unavailability, it could have granted a brief continuance, and done so before defense counsel completed his trial preparation. Had the State learned of, and advised the Court of, the Witness' unavailability earlier, the Court could have rescheduled the case for only a week or two later, assuming the Witness was discharged from the hospital and well enough to return to the U.S. Under that scenario, the defendant would only have been incarcerated a week or two longer.
Id.
State v. Kozak, 1999 WL 1846459, at *2 (Del. Super. Dec. 30, 1999) (noting that prejudice in the traditional sense is not required).
As noted by the Supreme Court:
[j]udicial tolerance is often appropriate if a delay is caused by occasional inadvertence or excessive demands placed on the part of the criminal justice system, but in any given case the delay or reason behind it may be intolerable and thus unjustified.
Key v. State, 463 A.2d 633, 636 (Del. 1983).
The State's conduct necessitating the eleventh hour continuance request and the resultant delay is intolerable and thus unjustified. The Motion to Vacate the Dismissal is therefore DENIED.
IT IS SO ORDERED.