State v. Sharon H.
| Decision Date | 05 February 1981 |
| Citation | 429 A.2d 1321 |
| Parties | STATE of Delaware v. SHARON H. and Dennis H. . Heard |
| Court | Delaware Superior Court |
Alex J. Smalls, Deputy Atty. Gen., Wilmington, for the State of Delaware.
Hank R. Bernstein, Wilmington, for Sharon and Dennis H., appellees.
State's appeal from the Municipal Court dismissal of information. Defendants, half-brother and half-sister, were charged with (1) engaging in a prohibited marriage in violation of 13 Del.C. § 102, and (2) perjury in the third degree in violation of 11 Del.C. § 1221, in that they swore falsely and contrary to the requirements of 13 Del.C. § 127.
The parties agree to the following facts:
Sharon and Dennis H., appellees, are half-brother and half-sister by blood, born of the same mother, but of different fathers. Sharon, when approximately ten days old, was adopted by the W. family, by whom she was raised. Dennis became a ward of the State, and was raised in or by various State programs. After reaching maturity, Sharon discovered that she had a half-brother, Dennis. After locating him in the Smyrna Correctional institution, Sharon assisted Dennis in obtaining parole. They were married on July 11, 1979.
On October 31, 1979, appellees were arrested and jailed for violations of 13 Del.C. § 102 1 and 11 Del.C. § 1221. 2
In Municipal Court, appellees had argued that even if they were half-brother and half-sister by blood, the provision of 13 Del.C. § 102 prohibiting marriages between brothers and sisters was inapplicable to the appellees' situation because under 13 Del.C. § 919, 3 Sharon's adoption eliminated any tie between Sharon and Dennis as a matter of law. Appellees had also argued that the provisions of Chapter 9 of Title 13 prohibiting examination of the adoption records prohibited any inquiry into the matter of Sharon's adoption, which would be necessary for the State to prove its allegations.
The Municipal Court dismissed the information charging Sharon and Dennis with a violation of 13 Del.C. § 102, stating:
"(T)he Court concludes that the clear and unequivocal language used throughout Chapter 9 of Title 13 of the Code dictates that the State cannot examine into relationships which as a matter of public policy and law are put at rest with adoption." State v. H., M-79-11-0167, 0167D, 0192 and 0192D (Fraczkowski, J., May 28, 1980).
Since the perjury count was based on the denial under oath that Sharon and Dennis were related by blood, the Court held that inquiry would require the same type of prohibited inquiry, and so dismissed all charges.
The State appeals the dismissal, contending the provisions of Chapter 9 of Title 13 of the Delaware Code have no bearing in a prosecution brought pursuant to 13 Del.C. §§ 101(a)(1) 4 and 102. The appellees reassert the position they took in Municipal Court. Appellees first seek dismissal of the State appeal on procedural grounds.
Appellees want the present appeal dismissed pursuant to Superior Court Criminal Rule 48(b), which provides:
Appellees say the State has unnecessarily delayed the prosecution of the appeal: (1) By waiting until the last possible minute to file the appeal; (2) by failing to comply with Superior Court Criminal Rule 38.1(a), which requires the State to file a motion to establish a briefing schedule not later than the next appropriate criminal motion day after the filing of the appeal; and (3) by failing to file its opening brief in accordance with the briefing schedule, which was filed three months late. Simply, did the actions of the State unnecessarily delay the appeal so that the appellees are entitled to have this appeal dismissed?
A motion to dismiss pursuant to Superior Court Criminal Rule 48(b) is left to the sound discretion of the Court. State v. Fischer, Del.Supr., 285 A.2d 417 (1971). While the provision is an implementation of the right of an accused to a speedy trial, the provision serves a broader purpose and is not co-extensive with constitutional limitations under the Sixth Amendment. State v. Fischer, supra; State v. Morris, Del.Super., 340 A.2d 846 (1975). Rule 48(b) does not require the traditional showing of prejudice required by a constitutional challenge of deprivation of the right to a speedy trial, such as death or disappearance of witnesses, or loss of counsel. However, some showing of prejudice, such as unexplained commencement of new prosecutions, anxieties resulting from the repeated commencement of prosecutions for the same offense, or additional expenses as a result of subsequent prosecutions on the same offense is needed to justify the exercise of the Court's discretion in favor of a defendant to dismiss. State v. Fischer, supra.
The appellees seek to analogize the facts of this case to the facts involved in Fischer and in State v. Glaindez, Del.Supr., 346 A.2d 156 (1975). In State v. Fischer, supra, the State charged the defendants with the misdemeanors of the same and disposition of lottery tickets. The State commenced prosecution in the Municipal Court. Defendants appeared with counsel on the scheduled date and demanded trial; the State, however, obtained a postponement. Defendants appeared at the second scheduled trial date, ready for trial; the State again postponed the trial. On the third date, defendants again appeared, ready for trial. The State, without explanation, dismissed the charges against both defendants. Three months later, the State commenced a new prosecution on the same charges in the Superior Court by Grand Jury indictments. The Court dismissed the indictments pursuant to Superior Court Criminal Rule 48(b), stating that the process employed by the State in Fischer to "transfer" the case from Municipal Court gave the impression of a conscious, unfair manipulation of the criminal process. State v. Fischer, Del.Super., 269 A.2d 244 (1970), aff'd Del.Supr., 285 A.2d 417 (1971).
In State v. Glaindez, supra, the Court dismissed the State's case against a defendant charged with first degree assault and a weapon's possession charge. Arraignment had been on December 31, 1974. A trial date of March 13, 1975 was set at the pretrial conference on February 7, 1975. The State subpoenaed the victim and his wife on February 19, 1975; the subpoenas were returned non est inventus on March 5, 1975, with a notation that the victim and his wife were known to have moved to Pennsylvania. The State did not learn of the Sheriff's return until the day before the trial. The State admitted to the Court on the day of trial, however, that it could have learned of the Sheriff's return by calling the Sheriff's office on any date after March 5, 1975, which it failed to do. On that basis, the Court denied the State's request for a continuance, and dismissed the case. See State v. Glaindez, supra.
Comparing the facts of Fischer and Glaindez to the present case, I conclude that the appellees have not demonstrated the type of prejudice required for the exercise of this Court's discretionary power to dismiss the State's appeal. In Fischer and Glaindez, defendants' rights to a speedy trial on the merits were sabotaged by the State. In this case, the appellees were afforded their right to a speedy trial. They chose to oppose the State's charges on a legal basis by a motion to dismiss, rather than to try the case on the merits. The appellees were successful and the informations were dismissed. The State properly exercised its right to an appeal pursuant to 10 Del.C. § 9902. Although filed "at the last minute", the State's appeal pursuant to 10 Del.C. § 9902 was filed within the applicable period. Since the State has filed its appeal within the period mandated by the Court, appellees cannot be heard to say that the timely filing of the appeal constituted "unnecessary delay".
The State was not prompt in setting a brief schedule and filing its brief. However, the only prejudice appellees claim is (1) that the delay caused them continued offensive publicity; and (2) that they (or their attorney) have been required to make repeated appearances in court. The record shows very few court appearances no more than are usually made on an appeal under 10 Del.C. § 9902.
The prejudice of offensive publicity claimed by the defendants is no more than could reasonably be expected in a case of this nature. The appellees have shown no prejudice by unusual publicity caused by any delay of the State in moving this appeal.
The motion to dismiss under Superior Court Criminal Rule 48(b) is denied.
Appellees contend that the State improperly brought this appeal pursuant to 10 Del.C. § 9902 5. They argue that all evidence had been submitted to the Municipal Court, and the Court considered the evidence in its decision to dismiss and, in effect, rendered a Judgment of Acquittal. If the decision is a Judgment of Acquittal, the State's only avenue of appeal is 10 Del.C. § 9903. 6 The appellees argue that the State did not obtain leave of this Court for this appeal, and therefore the appeal of the State should be dismissed.
Appellees ignore the language of the decision of the Municipal Court. It clearly states at the top of page 1 that "(t)he record before the Court is most sketchy and counsel have assumed certain facts in argument which are not actually part of the record." State v. Dennis H. and Sharon H., M-79-11-0167, 0167D, 0192 and 0192D (Fraczkowski, J., Municipal Court, May 28, 1980). The Court then proceeded to dismiss the State's informations on the legal bases which will be discussed in Parts III and IV of this opinion. There is no indication in the record that the Municipal Court had heard the evidence when it decided the motion to dismiss. In a non-jury case, if the Court...
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