Opinion
ID No. 0408022175.
Submitted: February 16, 2007.
Decided: May 31, 2007.
On the Defendant's Motion for a New Trial. DENIED.
Stephen M. Walther, Deputy Attorney General, Department of Justice, Wilmington, DE.
Leo J. Ramunno, Esquire, Wilmington, DE.
Dear Counsel:
Paul E. Weber (the "Defendant") has filed a Motion for a New Trial (the "Motion"), to which the State has responded. After reviewing the parties' submissions, the Motion is hereby denied for the reasons set forth below.
Background
On September 20, 2004, Mr. Weber was indicted and charged with Attempted Robbery First Degree and Attempted Carjacking. On November 1, 2004 Mr. Weber was re-indicted for the same charges, and a trial date was subsequently scheduled for February 23, 2005. On that date, the State requested to have the trial continued due to the fact that an officer was not available, and the Court granted this request. A scheduling order was again issued, and trial was scheduled to commence on March 17, 2005. On March 15, 2005 Mr. Weber requested a continuance of the trial due to the fact that a "necessary" witness, Ann Blake Tracy, PhD, was unavailable. The continuance form filed by the Defendant stated:
11 Del. C. § 836.
A necessary witness for the defense, Ann Blake Tracy, PhD is not available for trial due to health issues.
See D.I. 17 (Superior Court of Delaware Continuance Request Form).
A copy of an email from Dr. Tracy to the Defendant was attached which indicated that the witness would be bedridden for several months. There was no indication as to what the witness would testify about or any detail as to the significance of her testimony set forth in the continuance request submitted to the Court. Since the case at that juncture was already beyond the speedy trial guidelines and was 209 days old, and this was the second time it had been scheduled for trial, and it appeared that the anticipated substance of the "expert testimony" had never been disclosed to the State in discovery, the Court denied the continuance request.
Accordingly, the four-day jury trial commenced on March 17, 2005 and the Defendant was found guilty of the two charged offenses. As a result of the Defendant's previous convictions in this Court for Receiving Stolen Property (felony), Forgery Second Degree, Assault Second Degree and Burglary Second Degree, the State filed a motion to declare the Defendant a habitual offender. The Defendant subsequently requested his sentencing date be continued to allow more time to properly respond to the habitual offender motion, which the Court granted.
The Defendant then filed a number of motions for the Court to consider: (1) Motion for an Evidentiary Hearing; (2) Motion to Preclude Imposition of Sentence; (3) Motion for Expenditure of State Funds; (4) Motion to Merge Offenses; and (5) Motion for Status Hearing. To resolve these motions, the Court held an office conference on November 17, 2005. The Court granted the Motion for an Evidentiary Hearing stating a hearing was "granted to the extent necessary to show lack of opportunity for rehabilitation." The Court denied each of the Defendant's remaining motions.
D.I. 33.
On January 13, 2006, the Defendant was scheduled to be sentenced, and again the Court granted a second request for a continuance. Then, on February 28, 2006, the trial judge advised the parties of his decision to recuse himself from this case. As a result, the case was reassigned to the current Judge. On June 16, 2006, the Defendant filed his Motion for a New Trial and a Motion to Deny State's Application to Declare Defendant a Habitual Offender. The State has responded to each motion. This is the Court's opinion with respect to the Defendant's Motion for a New Trial.
The trial and all matters prior to February 28, 2006 were handled by Judge Toliver except for the requests to continue the trial.
Discussion
I. Newly Discovered Evidence
Superior Court Criminal Rule 33 states, in pertinent part:
The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment. . . . A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
See State v. Halko, 193 A.2d 817, 821 (Del.Super.Ct. 1963) (citations omitted), aff'd on other grounds, 204 A.2d 628 (Del. 1964); see also McCray v. State, 781 A.2d 694 (Del. 2001).
Super. Ct. Crim. R. 45(b) which states "the court may not extend the time for taking any action under Rules 29, 33, 34, 35 and 61(i)(1), except to the extent and under the Conditions stated in them."
The Defendant asserts he is entitled to a new trial because newly discovered evidence has been uncovered which, if presented to the jury, could have negated the "knowingly and intentional" elements of the charged offenses. Newly discovered evidence is evidence that has been "discovered since trial, and the circumstances must be such as to indicate that it could not have been discovered before trial with due diligence." Here, the Defendant offers no evidence that fits this definition. Within his motion for a new trial the Defendant indicates his planned trial strategy was to establish he had psychosis at the time he committed the crimes charged which was induced by a prescribed drug. To support this theory, the Defendant attached documents to his motion relating to the medication he was prescribed at and around the time he committed these crimes and the potential side effects of those medications. But, many of these documents are either dated prior to the commencement of the March 2005 trial, or those that are dated post-trial, are generally duplicative of the pre-trial documents. There is nothing within these documents to establish that this evidence was discovered after the trial.
Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987), citing State v. Lynch, Del. Oyer Term., 128 A. 565, 568 (Del. 1925).
The Defendant states in his motion that:
[T]he Defendant would have offered a fact based defense showing he suffered a psychotic episode thus negating the crucial elements of the offense. The Defendant would have provided further fact based evidence showing that his psychosis was induced by a prescribed pharmaceutical drug. . . . [T]he Defendant was prepared to offer fact based evidence that the intoxicating drug can induce psychosis. The Defendant contends the fact he was not permitted to offer his overwhelming plausible defense violated the most fundamental and critical Due Process provision — the right to be heard. Def. Mem. for New Trial at 3.
In addition, the Defendant admittedly planned to establish his defense through the testimony of eight witnesses. One of those eight witnesses was Dr. Tracy whose unavailability caused Mr. Weber to seek a continuance. But, on the third day of trial defense counsel advised the Court that, since Dr. Tracy was unavailable to testify, a decision was made to not call the seven additional witnesses. As a result, information concerning Mr. Weber's theory of drug-induced psychosis was available, but for logistical reasons, was never presented.
Trial Tr. vol. 3, 10, March 21, 2005.
D.I. 17 (Superior Court of Delaware Continuance Request Form) On March 15, 2005, a continuance request was filed by the Defendant seeking a continuance of Mr. Weber's trial because Dr. Tracy was unavailable due to health reasons. The Court denied this request because the "expert [was] not identified in discovery." See also, Trial Tr. vol. 3, 9-17, March 21, 2005.
Trial Tr. vol. 3, 15, March 21, 2005.
The Court notes that it reviewed the trial transcript in its entirety and it appears that at no point during the trial were the seven additional witnesses ever offered for testimony, thus the Court did not rule whether the testimony would have been appropriate.
While Dr. Tracy was perhaps unavailable to the Defendant, there is nothing to suggest that the remaining evidence and potential testimony regarding Mr. Weber's alleged psychosis included in the Defendant's motion was unknown or unavailable to the Defendant at the time of trial. This evidence, therefore, does not fit the definition of "newly discovered evidence" as set forth above. Choosing to not use evidence that the Defendant was well aware of prior to and during the trial does not then mean a defendant can term the evidence "newly discovered" for purposes of seeking a new trial.
Because in this instance the Defendant cannot seek a new trial based on newly discovered evidence, the Defendant's motion for new trial had to be filed no later than seven days following a verdict. A verdict of guilty was announced by the jury and recorded by the Court on March 22, 2005, and the Defendant's motion was filed more than a year later, on June 16, 2006. The Defendant's motion for a new trial is therefore untimely, and this Court does not have the authority to hear this matter.
See Puryear v. State, 2000 WL 1611056 (Del.Super.Ct.) (A motion for new trial was denied as untimely since it was filed past the seven days from the date of the verdict and the attorney was aware during the course of the trial of the issues raised in the motion.); State v. Garnett, 1998 WL 442706 (Del.Super.Ct.) (The defendant did not produce any newly discovered evidence, therefore, the motion for a new trial was denied since it was not filed within seven days of the verdict.).
II. Continuance Request
What it appears to the Court that the Defendant is really arguing is that the Court improperly denied his continuance request and therefore precluded him from presenting critical evidence to the jury regarding his mental status at the time of the offense which could have effected their decision as to whether Mr. Weber knowingly and intentionally committed the offenses. The Court disagrees.
First, "[r]equests for continuances are left to the discretion of a trial judge whose ruling will not be disturbed on appeal unless that ruling is clearly unreasonable or capricious." Insisting that a case proceed to trial when it was nearly seven months old and had been scheduled previously for trial, and the only reason for the continuance request was the unavailability of an expert witness who had not been disclosed to the State nor had been the subject of a pre-trial Daubert hearing, is not unreasonable or capricious. And, it should be noted that the significance of the witness and the substance of her testimony was not disclosed to the Court when the continuance was requested. A general statement that she was "not available" did not alert the Court to how the witness played into the defense of the case.
Lopez v. State, 918 A.2d 338 (Del. 2006) (The Court denied the defendant's three requests for continuance to allow the defendant time to investigate a "possible alibi."), citing Secrest v. State, 679 A.2d 58, 64 (Del. 1996).
But, even if one was to assume that the Court's decision to deny the continuance was wrong, the appropriate procedural method to raise the issue with the Court once a trial occurred was for the Defendant to file within the seven day time frame a motion for a new trial under Rule 33 setting forth in detail how the Court's decision had adversely effected his presentation of a defense and request that in the interest of justice a new trial be granted. Such a motion was not made and thus the Court is not now in a position to grant the Defendant a retrial even if it felt it was appropriate.
III. State v. Cabrera
The Defendant next argues that the ruling in State v. Cabrera entitles him to a new trial, and that the time bar of Rule 33 is not applicable in this instance since the Cabrera ruling was rendered more than seven days from the verdict in this case. In that case, the Court allowed Mr. Cabrera to withdraw his guilty plea prior to sentencing since he established that he had a history of somnambulism (sleepwalking) which could be presented to the jury as a means to show Mr. Cabrera lacked the required intent to commit the charged crimes. Mr. Weber argues that, in light of Cabrera, he is entitled to a new trial because he would now like to present evidence of the effects of Effexor to negate the elements of intentionally or knowingly within his charged offenses. However, these cases are in different procedural postures that make the Cabrera ruling distinguishable. Cabrera had pled guilty and thus the decision whether to allow him to withdraw his plea was controlled by Rule 32(d), which would allow the withdrawal with a showing of "fair and just reason." Cabrera's motion was filed timely under this rule and it was this standard that allowed Judge Herlihy to grant the relief requested.
891 A.2d 1066 (Del.Super.Ct. 2005). (The Court allowed his guilty plea to be withdrawn pursuant to Rule 32(d). Rule 32(d) allows the Court to withdrawal a plea if the defendant shows "any fair and just reason," and by Mr. Cabrera establishing that he may be able to present a defense negating the elements of "knowingly and intentionally" by establishing a history of somnambulism, the Court determined this to be a fair and just reason to allow the withdrawal of his guilty plea.).
The Defendant's case is, however, different. He has had his day in court and the opportunity to present a defense. The ruling on the continuance request may have put the Defendant in a difficult position, but he could have attempted to present the defense by calling the seven other witnesses he has now identified in his motion. But for what the Court assumes is a strategic reason, he decided not to do so. The Court's ruling on the continuance request did not address the admissibility or relevance of this evidence, nor did it prevent the Defendant from presenting a defense. It may have not been the exact one the Defendant had hoped to present, but the opportunity to attempt to do so was available and waived. Obviously, the Defendant's motion is not controlled by Rule 32(d), it is controlled by Rule 33. These rules impose different standards, and regardless of the ruling in Cabrera, the Court simply cannot waive the time requirement within Rule 33 because Mr. Weber now has regret about his trial strategy or because he failed to raise the alleged unfairness of the continuance decision in a timely manner after the verdict. The Defendant's Motion was not timely filed, and as indicated above, this Court does not have the authority to hear the Defendant's untimely Motion.
Super. Ct. Crim. R. 45(b).
IV. Postconviction Relief
Recognizing his Motion may be deemed untimely, the Defendant further urges this Court to consider the Defendant's motion for a new trial as a motion for postconviction relief filed in accordance with Rule 61. While the Defendant is correct that, in certain circumstances, the Court can convert an untimely Rule 33 motion to a Rule 61 motion, that exception does not apply in this instance. In those cases where such action is taken, the defendant had been sentenced prior to filing his Rule 33 motion, and Rule 61 was the only appropriate method for the defendant to seek relief. Since a motion filed pursuant to Rule 61 "may not be filed until the judgment of convict ion is fin al," and si nce the Defen dant's conviction is not yet final, it is not appropriate for this Court to treat this motion for a new trial as a motion for postconviction relief pursuant to Rule 61. With no basis for this Court to accept Mr. Weber's untimely motion, the Court is precluded from hearing the matter.
See Downes v. State, 771 A.2d 289 (Del. 2001) (When a defendant filed a motion for a new trial pursuant to Rule 33 after the two year time limitation, the Court treated the defendant's motion as one filed pursuant to Rule 61 since it was still filed within the three year time limit of Rule 61, and he had been sentenced prior to filing his motion.); State v. Brathwaite, 2003 WL 1410155 (Del.Super.Ct.) (A motion seeking a new trial based on ineffective assistance of counsel was filed past the seven days allotted in Rule 33, causing the Court to treat the motion as a postconviction relief request under Rule 61.).
State v. Reed, 2005 WL 2615630 (Del.Super.Ct. 2005); State v. Lewis, 792 A.2d 1198 (Del.Super.Ct. 2002); State v. Morgan, 2006 WL 1454812 (Del.Super.Ct.); Brathwaite, 2003 WL 1410155.
According to Rule 61(m), the Defendant's judgment is not final until one of three things occurs: 1) 30 days pass after the Defendant is sentenced, if he does not file an appeal; 2) the issuance of a mandate or order finally determining the case from the Supreme Court after an appeal or 3) the issuance of a mandate or order finally disposing the case on direct review by the United States Supreme Court if the Defendant seeks certiorari with the United States Supreme Court. None of these three things occurred in this case since the Defendant has not yet been sentenced.
Conclusion
For the reasons set forth above, the Defendant's Motion for a New Trial is hereby denied. The Court has delayed its decision on the State's motion to declare Mr. Weber a habitual offender until it has conducted the evidentiary hearing agreed to by Judge Toliver. It is unclear exactly what the Defendant intends to present, but the hearing will be limited to the legal basis for the habitual offender motion and the Defendant's chance for rehabilitation required in 11 Del. C. § 4214(a). The Court will contact counsel to set a hearing date.
Buckingham v. State, 482 A.2d 327, 330 (Del. 1984) ("[T]he legislature intended to reserve the habitual offender penalties for those individuals who were not rehabilitated after the specified number of separate encounters with the criminal justice system and a corresponding number of chances to reform.").
IT IS SO ORDERED this 31st day of May 2007.