Opinion
I.D. No. 02030006830.
Date Submitted: February 4, 2003.
Date Decided: May 27, 2003.
Upon Consideration of Defendant/Appellee's Motion to Dismiss DENIED.
ORDER
On this 23rd day of May, 2003, upon consideration of the record and Defendant/Appellee Robert S. Schleifer's ("Defendant") Motion to Dismiss, it appears to the Court that:
1. Defendant was charged with driving while under the influence of alcohol in violation of title 21, section 4177 of the Delaware Code. On August 12, 2002, after a hearing, the Court of Common Pleas ("CCP") granted Defendant's State of Delaware v. Robert S. Schleifer I.D. No. 0203006830 Page 2 motion to suppress the results of chemical tests that established Defendant's blood alcohol content to be above the legal limit.
2. After suppression of the evidence, the following colloquy took place between the trial court, the Deputy Attorney General ("Deputy") and defense counsel:
DEPUTY: Your Honor, I guess with that, I need to move the Court to dismiss this case as it is a necessary and integral piece of evidence, and that needs to be on the record.
THE COURT: Is that your understanding? Although we're not at that point, I would be scheduling it.
DEPUTY: Well, Your Honor, we are at that point, because the State —
THE COURT: Okay.
DEPUTY: — cannot proceed without this evidence.
THE COURT: Okay. Even though we're not going to proceed today anyway, because I told you we wouldn't be.
DEPUTY: I understand.
DEFENSE COUNSEL: I'm not sure what he just did. (At this time a discussion was held between Mr. Lugg and Mr. Ferrara.)
DEPUTY: Your Honor, we will deal with the issue.
THE COURT: Pardon?
DEPUTY: For, for the record, when the Court makes a ruling on a suppression issue that has direct bearing on a piece of evidence which would ultimately lead to the conviction of an individual, the State, I believe in good faith, I can't wait for the Court to schedule this.
THE COURT: Okay.
DEPUTY: What I'm indicating to the Court is that this is necessary and integral. That also plays into appellate issues as well, the Court's acceptance of that certificate. I believe Mr. Ferrara may be aware of this.
DEFENSE COUNSEL: Should I — I guess what I'm saying is he's saying he can't go forward. I guess the next thing I want to do is move to dismiss.
THE COURT: Right, and I'll grant that.
DEFENSE COUNSEL: Thank you.
Suppression Hr'g Tr. (Aug. 12, 2002) at 372-73. The State and Defendant disagree as to whose representations, after the motion to suppress was granted, prompted the trial court to grant the motion to dismiss. The CCP criminal docket sheet in State v. Schleifer, Del. CCP, No. 02030876IF, Bradley, J., reflects the following:
08/13/2002 Dismissed at Trial — Motion to Suppress Granted. Bradley William C. Jr.
08/13/2002 Case Dismissed at Trial — Motion to Suppress Granted. Bradley William C. Jr.
3. On August 24, 2002, the State filed a timely notice of appeal to this Court. On January 2, 2003, Defendant filed a motion to dismiss the appeal for lack of jurisdiction.
4. Title 10, section 9902(b) of the Delaware Code provides:
When any order is entered before trial in any court suppressing or excluding substantial and material evidence, the court upon certification by the Attorney General that the evidence is essential to the prosecution of the case, shall dismiss the complaint, indictment or information or any count thereof to the proof which the evidence suppressed or excluded is essential. Upon ordering the complaint, indictment or information or any count thereof dismissed pursuant to the Attorney General's certification, the reasons of the dismissal shall be set forth in the order entered upon the record.
5. The Supreme Court in State v. Cooley explained that section 9902(b) provides a three-step procedure that must be followed in order for the State to perfect an appeal as of right under section 9902(c). The procedure is as follows,
State v. Cooley, 430 A.2d 789, 791 (Del. 1981).
DEL. CODE ANN. tit. 10, § 9902(c) provides that "[t]he State shall have an absolute right of appeal to an appellate court from an order entered pursuant to subsection (b) of this section and if the appellate court upon review of the order suppressing the evidence shall reverse the dismissal, the defendant may be subject to trial."
(1) The Trial Court enters an order adverse to the State `suppressing or excluding substantial and material evidence;'
(2) The Attorney General then certifies that the `evidence is essential to the prosecution of the case;' 2 DEL. CODE ANN. tit. 10, § 9902(b).
(3) Whereupon, the Court `shall' enter an order dismissing the complaint.
The meaning of the word "essential" as used in § 9902(b) should be defined according to its commonly accepted meaning since it is not statutorily defined. See State v. Cooley, 473 A.2d 818, 823 (Del.Super. 1983).
Cooley, 430 A.2d at 791. It is the latter order, the order dismissing the complaint, which the State has an absolute right of appeal. Id. The procedural requirements of section 9902(b) were reemphasized in Cooley, 473 A.2d at 821, where the Superior Court stated:
(1) that the State must certify to the court that the suppressed evidence is essential to the prosecution of the case; and
(2) that the court, acting upon the State's certification that such evidence is essential, must dismiss the action.
6. Defendant argues that "[t]he transcript of the hearing, along with the docket, show that the State failed to take the dismissal contemplated under § 9902(b)." Specifically, Defendant contends that "[t]he deputy attorney general articulated a general inability to proceed, and the [trial court] dismissed the case on defense counsel's motion, and therefore, "the Superior Court lacks jurisdiction to hear this appeal."
Appellee's Mot. Dismiss ¶ 4
Id.
7. In this case, there is no written order setting forth the requisites of section 9902(b). There is no written certification by the State that the suppressed evidence is essential. Furthermore, the CCP criminal docket entry does not clarify that the State certified that the evidence was essential to the prosecution of the case or that the court below dismissed the case based upon that certification. Therefore, the Court must review the transcript of the August 12, 2002 Suppression Hearing to determine if the requisites of section 9902(b) were met during that proceeding.
8. Upon review of the transcript, this Court finds that on August 12, 2002 the Deputy who argued on behalf of the State in opposition to the suppression motion orally complied with the requirements of section 9902(b). The trial judge's grant of Defendant's motion to suppress evidence prompted the Deputy to state on the record, "I need to move the Court to dismiss this case as [the suppressed evidence] is a necessary and integral piece of evidence" and the State "cannot proceed without this evidence." Furthermore, the Deputy indicated to the court that the suppressed evidence was necessary and integral, and that the trial court's acceptance of that certificate would play a role in appellate issues.
Suppression Hr'g Tr. at 373.
Id.
9. Defendant argues that the trial court dismissed the action based on defense counsel's motion to dismiss, however, the Court finds that the order of dismissal was a direct result of the trial court's acceptance of the Deputy's certification and not defense counsel's motion.
For the foregoing reasons, Defendant/Appellee's Motion to Dismiss is DENIED. Defendant/Appellee's answering brief is due on June 13, 2003 and Appellant's reply brief is due on June 27, 2003.
IT IS SO ORDERED.