Opinion
ID #0302013230, 0303000975.
August 29, 2003.
ORDER
This 29th day of August 2003, the Court having received several submissions relating to Defendants' motion to dismiss and after conducting an evidentiary hearing on the matter it appears that:
1. The State of Delaware through the Department of Justice ("DOJ") and Adult Protective Services ("APS") commenced an investigation into alleged financial misconduct by Cynthia Baker ("Baker") in January of 2001. During the course of the investigation, Lester Johnson ("Johnson") and Janet Wooley ("Wooley") interviewed the alleged victim Jane Kilroy ("Kilroy") on three separate occasions in January, February and March. Kilroy, whose birthday is August 16, 1930, had been attending a senior center. On March 16, 2001, Wooley received a letter purportedly written by Kilroy requesting APS to leave her alone. Initially, APS honored this request.
2. Thereafter, Baker was notified that she was to be placed on the Adult Abuse Registry on May 23, 2001. ABS alleged that Baker had misappropriated $70,000 of Kilroy's funds from November 1999 to December 2000. During this period of time, Kilroy conducted a number of legal transactions including the signing of a mobile home lease in December 1999 and the signing of an addendum to the lease in July 2000. On June 27, 2000 she executed a will, durable power of attorney, and health care power of attorney.
3. On June 7, 2001, Baker appealed her placement on the Adult Abuse Registry and requested an administrative hearing. The next day, ABS received a letter, purportedly written by Jane Kilroy, stating that Baker did not use her money without permission. Baker retained Eric Mooney, Esq. ("Mr. Mooney") to represent her in the Adult Abuse Registry proceedings. The hearing which was initially scheduled for November 20, was continued a number of times before being held on August 1, 2002. The August hearing did not conclude until February 24, 2003 when it was adjourned.
Kilroy's guardian believes this letter is a forgery.
The hearing was continued due to a number of reasons including unavailability of witnesses and the schedules of the attorneys.
4. On March 22, 2002, the Court of Chancery declared Kilroy to be a disabled person and appointed her daughter Robin Shipley ("Shipley") as guardian of her person and property.
5. Meanwhile, the DOJ continued to conduct its investigation in order to determine whether criminal charges should be brought against Baker. On March 4, 2002, Johnson recommended that criminal charges be initiated. Johnson emailed Deputy Attorney General Paula Ryan, Esq. ("Ms. Ryan") on October 15, 2002, indicating that Kilroy had agreed to cooperate in the event that criminal charges would be sought against Baker. On February 19, 2003, the State made the decision to proceed criminally against Baker and Gregg Burton ("Burton"). Indictments were filed on March 31, 2003. The Defendants are charged with financial exploitation of an infirm adult, theft and conspiracy. The allegations claim the wrongful use of over $50,000 of Kilroy's money between November 1, 1999 and December 31, 2000. The Defendants will have separate trials to avoid the effect of admissions by Baker against Button. See Fogg v. State, 719 A.2d 947 (Del. 1998) citing Bruton v. United States, 391 U.S. 123 (1968) (holding that a Defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his nontestifying codefendant's confession naming him as a participant in a crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the confessing co-defendant).
6. Subsequently, on February 26, 2003, the State determined not to proceed with the Adult Abuse Registry proceedings. Defendant was notified of that decision on April 1, 2003.
7. Defendants argue that the case should be dismissed pursuant to Superior Court Criminal Rule 48(b) because there was unnecessary delay in filing the present charges. Defendants argue that the DOJ was actively involved in this administrative process through its investigator Lester Johnson and Deputy Attorneys General Kristopher Starr and Phoebe Young. Defendants allege that criminal charges could have been filed at an earlier date, but that the State declined to bring charges in order to gain a tactical advantage. Defendants further argue that they have been unfairly prejudiced by the State's delay. Defendants assert that the alleged victim, Kilroy, was available to testify in favor of the defense at the start of the civil proceedings, but she has since become mentally incompetent and is unavailable to testify on behalf of the Defendants. Defendants argue that Kilroy' s testimony would have been exculpatory at the time of the initiation of the investigation and that they have been prejudiced by the loss of this evidence.
Initially, Defendants argued in their motion that the decision to bring criminal charges was in retaliation for Baker's successful defense at the civil proceedings. In addition to Kilroy's consent or not to the expenditures, a technical question was presented whether Baker was technically subject to the registry proceedings as a service provider. See 11 Del. C. § 8564(4); 29 Del. C. § 7971. This status is immaterial to a criminal investigation. The evidence presented at the hearing establishes that the decision to prosecute criminally was made prior to the conclusion of the civil proceedings. Thus, I find that the present charges are not retaliatory in nature.
8. The issue involves the application of Criminal Rule 48(b) and the Due Process Clause. Superior Court Criminal Rule 48(b) provides that the Court may dismiss an indictment, information or complaint "[i]f there is unnecessary delay in presenting the charge to the grand jury or in filing an information against a Defendant who has been held to answer in Superior Court, or if there is unnecessary delay in bringing a Defendant to trial." Del. Super. Ct. Crim. R. 48(b). This rule is a codification of the Court's inherent power to dismiss a case for want of prosecution. State v. Johnson, 564 A.2d 364, 370 (Del.Super. 1989). The decision to grant or deny a motion to dismiss is within the sound discretion of the trial court. Id.
9. In order to dismiss a complaint due to unnecessary delay, "the delay, unless of constitutional dimensions, must be attributable to the prosecution and must have prejudiced the Defendant in some measurable way." Clark v. State, 794 A.2d 1160 (Del. 2002). The potential for prejudice to the "defendant exists any time a previously dismissed charge is reinstated, filed anew, reinstituted or renewed by any other name, either by the State or by the courts." State v. Pruitt, 805 A.2d 177, 181 (Del. 2001). Prejudice for the delay in prosecution includes: "the death or disappearance of witnesses, the loss of evidence, or any other denial of a reasonable opportunity to prepare for trial", "anxiety suffered by the Defendant as a result of the delay, uncertainty of duplicative prosecution, the notoriety suffered by both a Defendant and his family as the result of the recommencement of a prosecution for the same offense, and the expenses legal and otherwise that accompany any renewal of a dismissed action." Id. at 181-82. "When delays are caused by the State due to a situation within its control, there is no abuse of discretion in dismissing the charges." State v. Johnson, 564 A.2d at 371.
10. As set forth in Preston, "[i]n such hearing, in which the Defendant has the burden of proof, he is entitled to consideration of factors such as (1) the length of the delay; (2) the reason for the delay; (3) the prejudicial effect of the delay (compare Barker v. Wingo, 407 U.S. 514. 92 S.Ct. 2182. 33 L.Ed.2d 101 (1972)) (4) whether defense witnesses have become unavailable by reason of delay, (5) whether the delay was purposeful and intended to prejudice the Defendant; and (6) the kind of evidence and the quantum which is available to prove the State's case. See Coca v. District Court. Cob. Supr., 530 P.2d 958 (1975)." Further, "reliance by the Defendants solely upon the real possibility of prejudice which is inherent in any extended delay that memories will dim, witnesses will become inaccessible, and evidence be lost . . . are not in themselves enough to demonstrate that [Defendants] cannot receive a fair trial and to therefore justify the dismissal of the indictment." State vs. Dietz, Del. Super, Cr. No. 970702145 Goldstein, J. (March 4, 1998) (Mem. Op.) quoting Preston, 338 A.2d at 567. See also United States v. Gonzalez, 907 F. Supp. 785 (D. Del. 1995) (five year indictment delay and loss of character witnesses did not violate Defendant's due process rights); Crippen v. State, 696 A.2d 396 (Del. 1995) (potential loss of witnesses is a hypothetical injury that does not amount to actual prejudice).
11. Here, the delay was significant. Johnson recommended prosecution as early as March 4, 2002, but charges were not filed until the following year. Ms. Ryan argued that the reason for the delay was the lack of enough evidence to support criminal charges. While it is clear that the State did not have enough evidence to indict at the start of the investigation, such evidence was available by March 4, 2002. Thus, the first two prongs weigh in favor of dismissing the case.
12. However, Defendants have failed to show how they have been prejudiced from the delay. Their anxiety is no different from what is experienced by other charged defendants. Further, the Defendants failed to show how Kilroy's mental State was significantly different at the time of indictment from when the complaint and information about the Defendants' conduct was first known. The medical records show that Kilroy has been a confused person for a long time as a result of the fact that she suffers from dementia and is a recovering alcoholic. In addition, Johnson's report notes that Kilroy was diagnosed with Fragile X syndrome. This is essentially a genetic form of mental retardation that would have adversely affected Kilroy's mental processing since birth. The record also reflects that Kilroy's mental State fluctuates. She has her good days and her bad days. There were periods during the investigation in which she was actually both physically and mentally worse than she appeared at the recent competency hearing. In several of the initial meetings with the investigator in 2001, she appeared confused and one contact resulted in a 911 call given her poor condition.
13. Defendant Burton has also failed to show how he has been prejudiced by the alleged delay in bringing the criminal charges. Burton was not a party to the civil proceedings. Thus, he lacks standing to challenge the State's decision to bring criminal charges before the end of the civil proceedings against Baker. The record further reflects that the State did not discover evidence of Burton's involvement until much later in the investigation.
14. Defendants have also failed to show that defense witnesses have become unavailable by reason of the delay or that exculpatory evidence has been lost. Kilroy is available to testify at trial. Counsels allege that she would have testified in favor of the defense when the investigation commenced, i.e. that she approved the Defendants spending practically all of her money, but there is nothing in the record that proves this fact. Statements regarding Kilroy's potential past testimony are mere speculation. If Kilroy testifies at trial that Baker and Burton misappropriated her funds, then any past exculpatory statements made by Kilroy could be introduced under sections 11 Del. C. § 3507 or 11 Del. C. § 3516 of Title 11. See Bailey v. State, 521 A.2d 1069, 1083 (Del. 1987) (finding that while live witness testimony may be preferable, the past statements of witnesses could be introduced in lieu of the live testimony without prejudice to the defense).
Defense counsel argued that potential defense witnesses, such as employees of the casinos during the period of time Baker and Burton were allegedly gambling with Kilroy's funds, may no longer be available to testify as a witness at trial. However, Defendants failed to make a proffer that such witnesses could not presently be located or if located would provide testimony exculpatory to the defense.
In fact, the record suggests that such evidence was not previously available to the defense. During the civil proceedings, the dissipation of Kilroy's assets was alleged. Mr. Mooney argued that Kilroy was not an infirm individual and could manage her own affairs. Evidence that Kilroy was competent and had approved the use of her money by Baker was vital to this defense. At the time, Kilroy was living with Baker, and she was easily available to the defense to be interviewed or to have evidence preserved. However, Kilroy was not called to testify as a witness at the civil proceedings or even interviewed by Mr. Mooney. If such exculpatory evidence was available, it would have been obtained by an experienced defense counsel. Further, the medical records reflect that Kilroy was often confused during this period which may explain this situation. When interviewed in the early part of 2001, Kilroy told the investigators that her account had about $55,000. However, the account had been exhausted allegedly due to the actions of the Defendants between November 1999 and December 2000.
15. Moreover, the defense continues to have a number of documents available to be introduced at trial to establish that Kilroy was able to manage her own affairs including the handwritten letters to ABS, the mobile home lease and the will, durable power of attorney and health care power of attorney. In addition, any exculpatory hearsay statements by Kilroy may be admissible at trial as an exception to the hearsay rule, or fall within the residual exception to the hearsay rule. See DR. E. 807; Demby v. State, 695 A.2d 1152, 1157 (Del. 1997) ("the hearsay rule may not be applied mechanistically to defeat the ends of justice.").
16. Defendants have also failed to show that the delay was purposeful and intended to prejudice the Defendants. The record reflects that the State failed to bring criminal charges at an earlier date due to the lack of sufficient evidence to sustain the charges. The investigation was ongoing and the State continued to receive records from the casinos which were needed to compare with the bank records and ATM withdrawals. Despite Defendants assertions that the State waited for Kilroy to become incompetent as a witness before filing charges, Kilroy remained confused throughout this time period and was in a worse physical and mental condition at certain times during this period. The State did not delay to gain a tactical advantage or to unfairly manipulate the judicial process. Cf. State v. Fischer, 285 A.2d 417 (Del. 1971).
17. Finally, the State has substantial evidence to support the charges against the Defendants including Kilroy's medical records, casino records, bank records, and witness testimony. The probable cause affidavit in Baker's case details inculpatory statements.
Considering the foregoing, Defendants' motions to dismiss based upon the rule and constitutional considerations are denied.
IT IS SO ORDERED.