Opinion
I.D. No. 0802030738.
Submitted: July 1, 2009.
Decided: August 21, 2009.
On Defendant's Motion to Dismiss. Denied.
Philip Bangle, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.
Joseph A. Hurley, Esquire, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
Before the Court in this gambling/tax evasion case is Defendant William Shane Anderson's motion to dismiss thirty six counts of a thirty eight count indictment pursuant to Superior Court Criminal Rule 48(b). Defendant argues that the thirty-six gambling-related counts in the indictment should be dismissed because he has been prejudiced by the State entering a nolle prosequi on or about February 4, 2009, on related charges in the Court of Common Pleas. The State subsequently brought similar charges against him in this Court alleging violations of the same statutes, but on later dates than the September 21, 2007 poker game that formed the basis for the Court of Common Pleas charges. For the reasons that follow, the Court finds that Defendant has not been prejudiced, and that Defendant is not otherwise entitled to relief pursuant to Rule 48(b). Defendant's motion to dismiss is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
On or about February 21, 2008, Defendant was arrested by the Middletown police and charged with on one count each of Possession of a Gambling Device, Advancing Gambling First Degree, Providing Premises for Gambling, and Conspiracy Third Degree; he was also charged with three counts of Endangering the Welfare of a Child. All of these charges arose out of a poker game that had allegedly occurred at Defendant's residence in Middletown on September 21, 2007. Defendant pled not guilty in the Court of Common Pleas to all of the charges on March 31, 2008.Trial was scheduled for August 11, 2008 in the Court of Common Pleas. However, for reasons not identified in the record, the State requested a continuance, and the trial was rescheduled for October 2008, but Defense counsel advised the Court of Common Pleas of a scheduling conflict and requested a rescheduling. Trial was then rescheduled for November 24, 2008. That Court, however, continued the trial from that date because of conflicts with its docket on that date, and trial was rescheduled to February 4, 2009. However, on that date, the State entered a nolle prosequi on all charges.
Id.
Id.
Id.
The Middletown police, beginning in September 2007, had begun an extensive investigation of Defendant's alleged poker games, and obtained two search warrants for Defendant's residence that were executed on February 21, 2008. From that search, the police confiscated nine computers, three cellular phones and their SIM cards, and an ATM machine, which Defendant had allegedly installed in his house.
See Affidavit of Probable Cause attached to Def.'s Reply B. at Ex. D.
State's Response B. at 2.
On March 3, 2009, a New Castle County Grand Jury indicted Defendant in the Superior Court on two counts of tax evasion in violation of 30 Del. C. § 571, eighteen counts of Providing Premises for Gambling in violation of 11 Del. C. § 1404, and eighteen counts of Possessing a Gambling Device in violation of 11 Del. C. § 1405. The events giving rise to various counts in the indictment allegedly occurred on December 2, 2007, December 5, 2007, December 9, 2007, December 12, 2007, January 6, 2008, January 9, 2008, January 13, 2008, January 16, 2008, January 20, 2008, January 23, 2008, January 27, 2008, February 2, 2008, February 6, 2008, February 10, 2008, February 13, 2008, February 17, 2008, February 20, 2008, and February 24, 2008, and resulted from the continuing investigation by the Middletown Police Department. The indictment did not charge Defendant with any crimes stemming from the September 21, 2007 poker game that had been the sole focus of the Court of Common Pleas prosecution.
The various counts of the indictment are all similar (only the dates are different) and each read as follows:
"Count 3. A Misdemeanor Providing premises for gambling in violation of Title 11, Section 1404 of the Delaware Code of 1974, as amended. William "Shane" Anderson, on or about December 2, 2007, in the County of New Castle, State of Delaware, did knowing keep or maintain a house or place where gambling was carried on. Count 4. A Misdemeanor Possessing a gambling device in violation of Title 11, Section 1405 of the Delaware Code of 1974, as amended. William "Shane" Anderson, on or about December 2, 2007, in the County of New Castle, State of Delaware, did knowingly keep, exhibit, manage, place or possess a gambling device."
Def.'s Reply Br. Ex. B.
Def.'s Opening Br. Ex. B.
Defendant apparently had a "Texas Hold'Em Poker" individual license issued by the Delaware Gaming Control Board ("Board") on or about July 5, 2007. After his arrest, the State filed a complaint against Defendant before the Board. Defendant has attached an unexecuted copy of a "Consent Agreement" before the Board to his Reply Brief where Defendant purportedly agreed to an "appropriate disciplinary sanction." However, the record does not disclose if that document was in fact executed by the State and Defendant. Def.'s Reply B. at Ex. F.
Defendant filed the instant motion to dismiss on April 14, 2009. Defendant's trial is scheduled to begin on September 1.
II. CONTENTIONS OF THE PARTIES
Defendant seeks dismissal of Counts three through thirty-eight of the March 2009 indictment, being eighteen Counts of Providing Premises for Gambling and eighteen Counts Possessing a Gambling Device. Defendant does not in this motion seek dismissal of Counts One and Two that charge him with income tax evasion for years 2007 and 2006, respectively. Relying on Superior Court Criminal Rule 48(b) and the Sixth Amendment of the U.S. Constitution, Defendant asserts that counts three through thirty-eight should be dismissed because of an unwarranted delay in prosecution and alleged manipulation of the judicial process by the State. Defendant contends that he was prejudiced by the State when it nolle prossed the charges indicted in the Court of Common Pleas at the "eleventh hour," and then gave "re-birth" to those charges in the Superior Court.
U.S. CONST. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .").
Def's Supp. Opening Br. at 4.
Def.'s M. Dis. at ¶ 4, ¶ 6.
In response, the State contends that the March 2009 indictment involves charges arising from a different set of facts than those charges as to which the State entered a nolle prosequi in the Court of Common Pleas. The State emphasizes that the charges originally brought in the Court of Common Pleas arose out of a single incident on September 21, 2007, while the charges in the March 2009 indictment arose out of an alleged course of conduct taking place from December 2, 2007 until February 24, 2008. The State has also represented that it may bring new tax evasion charges relating to income Defendant received in 2008.
The State further contends that the Defendant's right to a speedy trial under the Sixth Amendment of the United States Constitution was not violated. Since the March 2009 indictment involves different charges than the charges arising out of the September 21, 2007 incident, the State contends that the Defendant's right to a speedy trial did not attach until March 3, 2009, the date of the indictment. Finally, the State contends that, even assuming that there had been an unnecessary delay, Defendant suffered no undue prejudice.
State's Response Br. at 7.
Id. at 8-9.
III. STANDARD OF REVIEW
Pursuant to Superior Court Criminal Rule 48(b), the Court has the discretionary power to dismiss a case for want of prosecution. This discretion is not governed by, and is broader than, the established concepts of an individual's right to a speedy trial under the Sixth Amendment of the U.S. Constitution. While the Court may dismiss charges against a defendant even where there is no denial of constitutional rights, the Court will only dismiss charges pursuant to Rule 48(b) upon a showing of prejudice against the defendant. Such prejudice must be attributable to the prosecution and must have prejudiced the Defendant in some measurable way.IV. DISCUSSION
Defendant has failed to show that he has been measurably prejudiced by any alleged delay in the proceedings against him, and the State's actions do not rise to the level of unfair manipulation requiring dismissal of the counts against Defendant. Accordingly, Defendant's motion to dismiss is denied.Defendant correctly notes that where the State manipulates the criminal process by voluntarily dismissing charges in a lower court and then commencing a new prosecution on those same charges in a higher court, a dismissal of the charges pursuant to Rule 48(b) may be appropriate, depending on the particular circumstances. In this instance, however, the State has not unfairly manipulated the criminal process because it did not commence a new prosecution in the Superior Court on identical charges arising from the same set of facts as the charges the State voluntarily dismissed in the Court of Common Pleas.
Defendant's reliance on State v. Grace is unavailing. In Grace, the defendant was arrested for Driving Under the Influence ("DUI") in January 2000. The defendant was tried and convicted in Justice of the Peace Court and sentenced as a second offender. The defendant then exercised her right to an appeal in the Court of Common Pleas. While her appeal was pending the State determined that the defendant was a third DUI offender, entered a nolle prosequi of her appeal, and presented the DUI charge to the grand jury for indictment as a third offender. Upon the defendant's motion to dismiss, the Superior Court held that the defendant's statutory and constitutional right to an appeal had been infringed.
2001 WL 1221661 (Del. Super. July 27, 2001).
Id. at *1.
Id. at *2.
The Grace Court, however, found it "unnecessary to address whether the indictment should be dismissed on double jeopardy grounds or under Superior Court Criminal Rule 48(b)." Defendant has not been tried yet so his statutory or constitutional right to an appeal has not been violated, accordingly, the Court's analysis in Grace is inapplicable here.
Id. at *2 n. 7.
Defendant's reliance on State v. Fischer and State v. Pruitt is also unpersuasive because those cases both involved re-prosecutions of the same charge arising from identical facts, while here Defendant has not been re-prosecuted on the same charge arising from identical facts. In Fischer, the defendants were charged with misdemeanor offenses relating to the unauthorized sale and disposition of lottery tickets. The Delaware Supreme Court affirmed the Superior Court's dismissal of an indictment for unnecessary delay after the defendants' trials were rescheduled three times, the State then "dismissed . . . without explanation" the charges brought against the defendants in the Municipal Court of Wilmington, and three months later the State "commenced new prosecutions . . . on the same charges" in the Superior Court. The Superior Court held, and the Supreme Court affirmed, that the charges against the defendants should be dismissed because the State unfairly prejudiced the defendants by re-prosecuting him on the same charges arising from the same incident.
285 A.2d 417 (Del. 1971).
805 A.2d 177 (Del. 2002).
Id. at 419.
The Delaware Supreme Court held further in Fischer that the defendants had not been prejudiced by types of things "ordinarily considered in connection with the constitutional guaranty of [a] speedy trial: death or disappearance of witnesses, loss of evidence, loss of counsel, or other denial of opportunity to prepare for trial." The Court concluded, however, that the defendants were nonetheless prejudiced under the particular facts of that case. The Court further observed that:
Id.
[O]ther types of prejudice may be sufficient to move the exercise of [the Superior Court's] discretion under Rule 48(b): the unexplained commencement of a new prosecution long after a dismissal by the State of the same charge in another court; the anxieties suffered by a defendant as the result of delay and uncertainty in duplicative prosecutions against him; the notoriety suffered by a defendant and his family as the result of repeated commencement of prosecutions for the same offense; the expenses, legal and otherwise, attendant upon a subsequent renewal in another court of a dismissed prosecution. These and like considerations may constitute sufficient `prejudices' to justify the exercise of the Court's discretion under Rule 48(b).
Id.
Id.
Similarly, in Pruitt, the Delaware Supreme Court affirmed the Superior Court's dismissal of charges against the defendant pursuant to Rule 48(b). The defendant had been arrested and charged with Driving Under the Influence, Driving While License Suspended or Revoked, and Disregarding a Red Light in November 2000. The defendant had been also issued a separate summons for possession of marijuana. A few days after his arrest, the defendant appeared before a Justice of the Peace who, unable to locate the summons and complaint, dismissed the charges. The next day the arresting officer made an ex parte motion to reinstate the charges. After learning that the error the previous day was merely clerical, the Justice of the Peace reinstated the charges.
Id. at 178.
However, the Justice of the Peace failed to give notice to the defendant that the Court had reinstated the charges against him. Thus, legitimate questions arose as to whether the defendant's due process rights were violated. Consequently, the State entered a nolle prosequi and brought "identical charges by indictment in the Superior Court." The Supreme Court noted that the possible due process violation in the Justice of the Peace Court might have been the impetus for the State voluntarily entering a nolle prosequi in the Justice of the Peace Court and subsequently recharging the defendant in the Superior Court.
Id.
Id. at 182.
The Pruitt Court, relying on Fischer, held that prejudice to the defendant was "inherent" because the State's voluntary dismissal of the charges in the Justice of the Peace Court, and its subsequent filing of identical charges in Superior Court as a means of potentially curing a flawed prosecution, was a "deliberate manipulation of the judicial process." The Court further held that "absent compelling circumstances not present here, once the State engages in a prosecution in a court of competent jurisdiction, it should be prohibited from pursuing that prosecution to its ultimate conclusion in any forum other than one it initially chose."
Id. at 183.
Id.
Here, unlike the defendants in Fischer and Pruitt, the State did not bring identical charges against Defendant in Superior Court after entering a nolle prosequi in a lower court because the two sets of charges did not arise from an identical set of underlying facts. The charges brought against Defendant in the Court of Common Pleas arose from a single incident of alleged illegal gambling that occurred in September 2007. Also, the Middletown police undertook a criminal investigation of Defendant beginning in September 2007. The charges that Defendant wants dismissed that were brought in Superior Court arose from multiple occurrences of alleged illegal gambling dating from December 2007 through February 2008.
In his motion to dismiss, Defendant states that "[t]he evidence that the State had vis-à-vis the Counts hereby implicated was present, upon information and belief, at all times during the pendency of the matter in the Court of Common Pleas." Def.'s M. Dismiss, at ¶ 5. However, Defendant is incorrect in his assertion, as is shown by the February 21, 2008 search warrants attached to his reply brief.
Moreover, here the State has not engaged in a "deliberate manipulation of the judicial process." In Pruitt, the Supreme Court noted that it would "undermine" the power granted to the Court of Common Pleas if the "State [could] negate a decision of [the Court of Common Pleas] by voluntarily dismissing a case and renewing it in a different court without the weight of the lower court's unfavorable decision." The Supreme Court further questioned the State's motives in dismissing the charges against the defendant, specifically whether the State had dismissed the charges in the Justice of the Peace Court then subsequently recharging the defendant in Superior Court in a possible effort to cure a due process violation.
Id.
Id. at 183 n. 24.
Here, the State has not attempted to cure a flawed prosecution by voluntarily dismissing the charges against Defendant in the Court of Common Pleas. Moreover, the State was not trying to avoid the weight of an unfavorable decision in the Court of Common Pleas when it voluntarily dismissed the charges against Defendant there.
The State commendably acknowledges that it should have nolle prossed the charges brought in the Court of Common Pleas sooner than it did, as a matter of professional courtesy to Defendant and Defendant's counsel, so as not to have required Defendant and his counsel to have unnecessarily prepared for trial on February 4, 2009. If in the Superior Court indictment the State had reinstated the charges against Defendant stemming from the alleged incidents on September 21, 2007, Defendant might have been able to show the "[o]ther types of prejudice" that warrant dismissal pursuant to Rule 48(b), but because the charges brought against Defendant in Superior Court arise from a completely separate set of facts, the defendant has suffered no prejudice.
Defendant alleges that he was prejudiced by the State's conduct because: 1) he sustained highly negative publicity from the "gambling bust;" 2) his ability to earn a living under the auspices of a world poker organization was compromised; 3) his child was ridiculed by her peers because of the publicity surrounding his arrest; 4) his now ex-wife "flipped" and may serve as a State's witness as part of plea she accepted; 5) his marriage ended as a result of the "incredible pressures brought by this prosecution;" and 6) Defendant and his counsel had prepared to go to trial on February 4, 2009. The Court does not find it necessary to hold a hearing as Defendant requests to develop these facts because, even if these facts were largely true, Defendant has not been prejudiced by the State as the State has not unduly delayed Defendant's trial and such collateral facts are oftentimes part and parcel of a criminal prosecution, which can be stressful to all concerned.
Def.'s Opening B. at 5-6.
V. CONCLUSION
Defendant has not been prejudiced by the manner in which the State has prosecuted the charges against him, therefore, dismissal pursuant to Rule 48(b) is inappropriate. Thus, for the aforementioned reasons, Defendant's motion to dismiss is DENIED.
Although Defendant hints in his motion at a Sixth Amendment ("speedy trial") violation, that contention (if it is a contention) was not briefed and is deemed abandoned. See, e.g., Stevens v. State, 676 A.2d 907, 1996 WL 69769, at *2 (Del. 1996) (holding that where a defendant "has not briefed the other [] arguments in support of his claim, those arguments are deemed waived and abandoned and will not be addressed by this Court.").
IT IS SO ORDERED.