Opinion
C.A. No. 95M-06-042.
Submitted: February 13, 1996.
Decided: September 4, 1996.
Ferris W. Wharton, Esquire, Wilmington, Delaware. Attorney for Complainant.
Charles M. Oberly, III, Esquire, Wilmington, Delaware. Attorney for Petitioner.
John S. Malik, Esquire, Wilmington, Delaware. Attorney for Horton.
MEMORANDUM OPINION
On October 13, 1994, Sandra Horton, the defendant in the underlying criminal case, was arrested for Driving While Under the Influence ("DUI"). She elected trial in Justice of the Peace Court and was found guilty. Horton then appealed to the Court of Common Pleas for a trial de novo. 11 Del.C. §§ 5917 (b), 5920.
At her arraignment in the Court of Common Pleas the defendant waived jury trial. The State, however, pursuant to Court of Common Pleas Criminal Rule 23(a), refused to consent to a bench trial and requested a jury. The court denied this request holding that the State had waived its right to trial by jury by bringing its initial prosecution of defendant in the Justice of the Peace Court.
The State then filed a petition seeking a Writ of Mandamus in Superior Court to compel the Court of Common Pleas to provide a jury trial in Horton's case. The Court held an evidentiary hearing in this matter to establish the procedures followed in the lower courts for this type of case . This is the Court's decision in the matter.
As this case involves Court of Common Pleas procedures, the Court appointed counsel to represent the Court. Horton joined in the Court of Common Pleas' position.
Most DUI cases in New Castle County begin with a traffic summons under 21 Del. C. § 703 which requires the defendant to appear in Justice of the Peace Court, although the State has the option of instituting prosecution in the Court of Common Pleas. Rodgers v. State Del. Supr. 457 A.2d 727 (1983). When the defendant appears at the designated JP Court he or she may elect to have trial there or to remove the case to the Court of Common Pleas ("CCP"). The State has no such reciprocal right other than by entering a nolle prosequi and reinstating prosecution in CCP by filing an information. If the defendant elects trial in Justice of the Peace Court and is convicted such conviction may be appealed to CCP for a trial de novo.
Upon appeal the CCP first holds a case review and arraignment at which time the defendant is asked to elect between a jury or non-jury trial under CCP Criminal Rule 23(a). CCP has no procedures that inquire as to the State's consent to a waiver of the right to a jury. The State in the instant case, however, refused to consent by filing a Request for Jury Trial as noted. The State's request was denied by the lower court on grounds that the State waived its right to a jury trial by initially prosecuting the case in JP Court.
Superior Court has been granted the power to issue a writ of mandamus.See 10 Del. C. § 564. A writ of mandamus "is issuable not as a matter of right but only in the exercise of sound judicial discretion." In Re State of Delaware, Del. Supr., 616 A.2d 292, 293 (1992); see Ingersoll v. Rollins Broadcasting of Delaware, Inc., Del. Supr., 272 A.2d 336, 338 (1970). Superior Court may issue this writ "to lower tribunals, boards and agencies, inter alia, to compel performance of their official duties." Schagrin Gas Co. v. Evans, Del. Supr., 418 A.2d 997, 998 (1980); see In Re State of Delaware, Del. Supr., 597 A.2d 1, 2 (1991); In Re Bordley, Del. Supr., 545 A.2d 619, 620 (1988); accord Capital Educators Ass'n v. Camper, Del. Ch., 320 A.2d 782, 786 (1974). "As a condition precedent to the issuance of the writ, [the plaintiff] must demonstrate: that he has a clear right to the performance of the duty; that no other adequate remedy is available; and that the trial court had arbitrarily failed or refused to perform its duty." In Re Harding, Del. Supr., No. 467, 1994, Hartnett, J. (Dec. 30, 1994) (ORDER); see In Re Moore, Del. Supr., No. 177, 1995, Berger, J. (May 26, 1995) (ORDER).
The burden is upon the State in the case sub judice to demonstrate that its right to the writ is "both `clear and indisputable.'" In Re State of Delaware, Del. Supr., 603 A.2d 814, 815 (1992). Regardless, "[m]andamus is not a proper remedy to control or reverse judicial action in a case in which the matter is interlocutory and can be subsequently reviewed on appeal." Williams v. Marvel, Del. Supr., 158 A.2d 486, 486 (1960).
The Court of Common Pleas contends that mandamus is not appropriate here since the State has failed to show that no other adequate remedy is available. See In Re Harding, supra. Respondent latches onto the language in Williams v. Marvel, supra, to argue that the State has an alternative remedy, appeal under 10 Del. C. § 9903.
Section 9903 permits an appeal by the State "to determine a substantial question of law or procedure. . . ." 10 Del. C. § 9903. Section 9903, however, applies only post-trial and does not serve as an appellate route for the specific case in which the question arose. As stated by the Supreme Court's decision in State v. Roberts:
The primary purpose of § 9903 `is to afford to the State the opportunity to have reviewed by this Court adverse rulings of law made by lower courts — not for the purpose of having an appellate decision in the specific case in which the question arose, but for the purpose of having the question finally decided for future cases- all with due regard for the double jeopardy guaranty.'State v. Roberts, Del. Supr., 282 A.2d 603, 607 (1971) (emphasis added) (quoting State v. Clark, Del. Supr., 270 A.2d 371 (1970)); see State v. Bennefield, Del. Supr., 567 A.2d 863, 864 n. 1 (1989) (stating that § 9903 permits appeals "on an advisory basis for future cases" without affecting the underlying action).
Although § 9903 may aid the State by having their question settled for future cases, § 9903 will not aid the State by having the question settled for the Horton case. Therefore, an appeal under § 9903 is not an available alternative remedy for the State's problem in Horton. In addition, the Court finds no weight in Respondent's argument that the State is attempting to control the Court of Common Pleas' docket. The State is merely attempting to enforce a right allegedly granted under Rule 23(a). Any resulting control over the Court of Common Pleas' docket is incidental and a problem for the Court of Common Pleas to resolve under its rule making power. The Court finds that no other adequate remedy is available to the State in the case sub judice. Rule 23(a) states in full:
Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.
Delaware has consistently interpret ed Superior Court Rule 23(a) to grant the State the right to refuse consent to a waiver and insist on a jury trial. See Fetters v. State, Del. Supr., 436 A.2d 796, 799 (1981) (noting that "the State may properly insist upon a jury trial."); Young v. State, Del. Supr., 407 A.2d 517, 519 (1979) (stating that Rule 23(a) "requires the State's consent to a non-jury trial. . . ."); Longoria v. State, Del. Supr., 168 A.2d 695, 698 (1961) (stating that "[w]e think that the State was entitled to insist that the case be tried before a jury.").
Superior Court Criminal Rule 23(a) is identical to the Court of Common Pleas rule.
Recently, the Supreme Court of Delaware further drew out the distinction inherent in Rule 23(a). That is, if either the State or the court refuses to consent then the waiver is ineffective. Polk v. State, Del. Supr., 567 A.2d 1290, 1295 (1989) ("Under plain wording of Rule 23(a), a waiver of jury trial will not be effective if the court denies the motion or the State refuses to consent.") (emphasis added).
In the case sub judice, the State refused to consent to the defendant's waiver of jury trial. The State made their position known to the Court both through a written request filed with the Information and orally at the case review. Under Fetters, Young and Longoria, the State was entitled to have the case tried by a jury.
Finally Respondent argues that the State waived its right to a jury trial by bringing the case initially in the JP Court and not the Court of Common Pleas. The difficulty with this argument is that neither the Court of Common Pleas rules nor the Justice of the Peace Court rules so provide. In fact, a clear implication of CCP Rule 23(a) is that the State retains a right to insist on a jury trial upon appeal as does the defendant. Moreover, there was no evidence that the State ever intended to waive its right to a jury trial by bringing this DUI case initially in the JP Court. Rather, the State generally files DUI cases in JP Court as a matter of course, and for valid policy reasons related to the efficient processing of cases.
The Court sees no reason why by Court Rule the defendant's waiver of jury trial and the State's consent thereto cannot be made part of defendant's initial election of trial in the Justice of the Peace Court.
The Court finds that the State did not waive its right to a jury trial by originally bringing the DUI case in JP Court.
For these reasons a writ of mandamus will be issued directing the Court of Common Pleas to try State v. Horton with a jury.