IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1704004345
v.

ROBERT A. MACDONOUGH,

Defendant.

Submitted: November 13, 2017
Decided: January 12, 2018

On Defendant’S Amended Motion to Disrniss.l DENIED.

MEMORANDUM OPINION

William H. Leonard, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.

Jason R. Antoine, Esquire, Wilmington, Delaware, Attorney for Defendant.

COOCH, R.J.

 

l Defendant f`lled a Motion to Dismiss (“Original Motion”), followed by an Amended l\/Iotion to
Disrniss (“Arnended Motion”). The Amended Motion incorporated by reference all arguments
from the Original Motion.

I. INTRODUCTION

Pending before this Court is Defendant’s motion to dismiss This case arises
out of a fatal car accident allegedly caused by Defendant. Defendant was cited at the
time of the accident with Failure to Stop at a Red Light, which Defendant resolved
through Probation Before Judgment (“PBJ”) in Justice of the Peace Court Nine (“JP
Ct. 9”). Nine months later, Defendant was indicted on an Operation of a Vehicle
Causing Death charge. The indictment alleged that Defendant drove negligently by
disregarding a red light. Two months later, Defendant was re-indicted on the same
charge, but on a different theory of negligence, in that the re-indictment charged
Defendant with the negligence of Careless Driving.

Defendant argues that the present indictment before this Court should be
dismissed for two reasons. First, Defendant argues, pursuant to Superior Court
Criminal Rule 48(b), that the State caused an unnecessary delay in bringing
Defendant to trial and as a result caused Defendant prejudice Second, Defendant
contends that the re-indictment for Operation of a Vehicle Causing Death is barred
by the Double Jeopardy Clause of the Fifth Amendment of the United Stated
Constitution and Article l, § 8 Of the Delaware Constitution.

The indictment of Defendant for Operation of a Vehicle Causing Death will
not be dismissed because the Court concludes that there was no unnecessary delay
attributable to the State under Superior Court Criminal Rule 48(b). Also, this Court
holds that prosecution of the Operation of a Vehicle Causing Death in the re-
indictment charge is not precluded by the Double Jeopardy Clause of either the
Federal or Delaware Constitutions because jeopardy did not attach when Defendant
elected PBJ in JP Ct. 9. Defendant’s motion to dismiss is therefore denied.

II. FACTS AND PROCEDURAL HISTORY
On July l, 2016, Defendant drove his vehicle through a red light and collided

with another vehicle.2 The driver of the other vehicle was Leyland S. Reffett (“the
victim”).3 Although the victim was conscious at the scene of the accident, when

 

2 State’s Resp. at l.
3 ]d.

police arrived, he was transported to a hospital where he died.4 An autopsy revealed
that the cause of death was blunt force trauma as a result of the collision.5

The state trooper who responded to the scene of the accident interviewed
Defendant.(’ Defendant said he did not remember what happened after he entered the
intersection and collided with the victim’s car, nor did he remember whether his
traffic light was red or green.7 The trooper also interviewed eyewitnesses to the
accident who stated that they witnessed Defendant run the red light and strike the
victim’s car.8 The trooper assessed his findings at the scene and issued Defendant a
citation for “Failure to Stop at a Red Light.”9

At some point soon after he issued the citation to Defendant, the trooper
learned that the victim had died as a result of the accident.l() The trooper informed
the Delaware State Police Collision Reconstruction Unit of this fact which then
began a vehicular fatality investigation.ll

Defendant pled guilty to Failure to Obey a Traffic Device charge in violation
of21 Del. C. § 4107 in JP Ct. 9 and elected PBJ, on August 22, 2016.'2 JP Ct. 9 then
later “enter[ed] an order discharging [Defendant] from probation” after Defendant
completed PBJ.'3

On September 16, 2016, an officer interviewed Defendant again, at which
time Defendant stated that he could not remember whether the traffic light was red
or yellow.14 The officer informed Defendant that the officer would communicate
with the State regarding the pursuit of additional charges against Defendant, and
advising Defendant that he could be charged with Operation of a Vehicle Causing
Death.'5

 

4 Ia’.; see also State v. Maca’onough, ID No. 1704004345, Cooch R.J., at 8 (Del. Super. Sept. 29,
2017) (TRANSCRIPT) [hereinafter Oral Argument Transcript] (Defense Counsel: “The victim
was deceased two hours and 18 minutes after the accident[.]”).

5 State’s Resp. at l.

" Ia'.

7 Ia’.

8 Id.; Def.’s Reply at 3.

9 Def.’s Am. Mot., Ex. B, at 4.

'0 Id. ar 2.

|I ]d

'2 Ia’., see also Def.’s Am. l\/lot., EX. A.

13 Ia’.; ll Del. C. §4218(g).

'4 Ia’.; Def.’s Reply at 3.

15 Def.’s Reply at 3.

On April 17, 2017, a grand jury indicted Defendant for Operation of a Vehicle
Causing Death.16 The indictment alleged that Defendant caused the Victim’s death
by F ailing to Obey a Traffic Device.I7

At the time of Defendant’s first case review on June 5, 2017, the State
informed defense counsel that the State intended to re-indict Defendant on the same
charge of Operation of a Vehicle Causing Death, but on the negligence theory of
careless driving.18 On June 12, 2017, a grand jury returned the present re-indictment
to this effect against Defendant.19

Defendant filed two continuance requests in July of 2017.20 Defendant’s July
7, 2017 continuance request for trial and final case review sought additional time to
file motions and review discovery.21 Defendant’s July 31, 2017 continuance request
of the first trial date of September 14, 2017 was due to defense counsel’s vacation.
The Court granted both requests.22

Defendant then filed a Motion to Dismiss on July 17, 2017 and an Amended
Motion to Dismiss on July 31, 2017.23 Trial is scheduled for January 23, 2018.

III. THE PARTIES’ CONTENTIONS

A. Defendant ’s Contentions24

Defendant makes two main arguments in support of his motion to dismiss.
First, Defendant claims that the State caused an unnecessary delay, pursuant to
Superior Court Criminal Rule 48(b), in bringing Defendant to trial and, as a result,
caused Defendant prejudice25 Second, Defendant asserts that the re-indictment for

 

16 State’s Resp. at 2.

'7 Ia.’. at 2-3.

'8 Ia', at 3.

19 Id

20 Ia'.; Def.’s Reply at 2.

2' Ia'.

22 Id

23 Def.’s Original Mot.; Def.’s Am. Mot.

24 Defendant also had raised a third contention in his Amended Motion that prosecution is barred
under 11 Del. C. § 208. Def.’s Am. Mot. at 2-3. Defendant has since withdrawn this argument
Def.’s Reply Br. at 2 n. 1. As such, the Court need not reach this issue.

25 Def.’s Original Mot. at 3.

Operation of a Vehicle Causing Death under a theory of Careless Driving is barred
by the Double Jeopardy Clause of the Fifth Amendment of the United Stated
Constitution and Article I, § 8 of the Delaware Constitution.26

First, in support of his 48(b) argument, Defendant argues there was an
unnecessary delay in bringing him to trial because there was a nine-month delay
between the accident and the first indictment and an eleven-month delay between
the accident and the re-indictment.27 Defendant also contends that he was prejudiced
by the delay because he is 61-years-old, has been disabled since 2003, has various
medical ailments, can only move with the aid of a walker, and lives in Pennsylvania
and needs a family member to drive him to Court.28 Furthermore, Defendant argues
that he has had “high levels of anxiety since he found out he was being twice
prosecuted for this incident.”29

Defendant also argues that, by seeking re-indictment on a separate charge, the
State did so “presumably to set forth a stronger argument that the case is not barred
by [the] double jeopardy clause.”30 “This negligent choice of forum by the State and
the unnecessary delay for indictment and re-indictment does leave the impression of
unfair manipulation of the criminal process.”3'

Second, Defendant argues that this case should be dismissed because the
indictment is barred under the Double Jeopardy Clause of the Fifth Amendment of
the United Stated Constitution and Article I, § 8 of the Delaware Constitution.32
Defendant asserts that the indictment is barred pursuant to Double Jeopardy because
Defendant pled guilty to 21 Del. C. § 4107 and JP Ct. 9 “enter[ed] an order
discharging [Defendant] from probation” after Defendant completed PBJ.33
Defendant contends that he has a “legitimate expectation of finality” and should not
be subjected to multiple punishments for the same offense.34

 

26 Ial. at 4.

27 [d

28 Id

29 Ia’.; see also Def.’s Reply at 5 (“The Defendant has also suffered from anxiety due to the
unknown status of the prosecution for nine months.”).

30 Def.’s Original Mot. at 4.

31 Def.’s Reply Br. at 8.

32 Def.’s Original Mot. at 4.

33 la at 5; 11 Del. C. §4218(g).

34 Id.

B. The State ’S Contentz`ons

First, the State argues that any unnecessary delay in bringing Defendant to
trial “is not attributable to the State[]” because Defendant filed two continuance
requests on July 7, 2017 and July 31, 2017.35 The State also contends that Defendant
has not demonstrated that he suffered prejudice because “[h]e has never been held
in connection with this case.”36 The State also essentially argues that Defendant is
unable to claim prejudice when less than two months separated the initial indictment
and the re-indictment, and the re-indictment was “well before trial.”37 Also, the State
argues that there has been “no evidence presented that the current prosecution caused
or exacerbated Defendant’s [medical conditions].”38

Second, the State makes arguments that Double Jeopardy does not preclude
this Superior Court prosecution of Defendant for Operation of a Vehicle Causing
Death.39 Primarily, the State argues that Double Jeopardy did not attach in the first
JP Ct. 9 proceeding because PBJ is an administrative process without the
adjudication of guilt.40 Thus, the State argues that “Defendant’s participation in the
PBJ program does not preclude prosecution” in this Court because jeopardy did not
attach in JP Ct. 9.4'

 

35 State’s Resp. at 5.

36 Ia'. at 6.
37 Ia'. (citing Phillips v. State, 154 A.3d 1130, 1146 (Del. 2017) (finding that that there was no

prejudice when State re-indicted defendant 129 days after initial indictment)).
38 lai

39 la ar 6-13.
40 Ia’. at 7 (citing Tarr v, State, 486 A.2d 672, 674 (Del. 1984) (holding that “[a] defendant's election

to participate in a first offender's program to avoid prosecution for the charge of driving under the
influence . . . does not fit within any of these typical situations where jeopardy usually attaches[]”
because of “the administrative nature of the first offender's program”).

4' Ia'. at 9; Alternatively, the State argues that Defendant may be prosecuted for both F ailure to
Obey a Traffic Device and Operation of a Vehicle Causing Death because “the same conduct . . .
may establish the commission of [each] offense.” Ia'. The State argues that, because neither of the
two offenses is an “included offense” pursuant to 11 Del. C. § 206(b), the re-indicted Operation
of a Vehicle Causing Death charge is not precluded by Double Jeopardy. Ia'. at 12. The State also
argues alternatively that it does not seek to prosecute Defendant multiple times for the same
offense. ]a'. at 13. Rather, the State contends that it seeks prosecution for Defendant’s alleged
operation of a vehicle causing death of another person. Ial.

Additionally, the Deputy Attorney General candidly acknowledged that the State sought the re-
indictment to improve its Double Jeopardy position. Oral Argument Transcript, supra n.4, at 19.
The Court need not reach these issues.

IV. DISCUSSION

Defendant’s motion to dismiss is denied because there has been no
unnecessary delay pursuant to Superior Court Criminal Rule 48(b) and because
prosecution of Defendant for Operation of a Vehicle Causing Death is not precluded
by the Double Jeopardy Clause of the Fifth Amendment of the United Stated
Constitution or Article I, § 8 of the Delaware Constitution.

A. Dl'sml`ssal Parsuant to Superl'or Court Criminal Rule 48(l)) is Not
Warrantea’.

The indictment of Operation of a Vehicle Causing Death will not be dismissed
because the Court finds that there has been no unnecessary delay attributable to the
State and because any prejudice to Defendant of as a result of a delay was not
essentially beyond that of an ordinary party to a criminal justice proceeding.

This Court has broad discretionary authority to dismiss an indictment if there
has been “unnecessary delay.”42 Superior Court Criminal Rule 48(b) states:

lf there is unnecessary delay in presenting the charge to a 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, the court may dismiss
the indictment, information or complaint.

To dismiss an indictment under Rule 48(b), there must be an “unnecessary delay”
that is attributable to the State and “such delay must be established to have had a
prejudicial effect upon defendant beyond that normally associated with a criminal
justice system necessarily Strained by a burgeoning case load. ”43 “Such prejudice
must be attributable to the prosecution and must have prejudiced the Defendant in
some measurable way.”44

Defendant has failed to demonstrate that there has been an unnecessary delay
attributable to the State in indicting Defendant or bringing Defendant to trial. This
Court finds no unnecessary delay between the July 1, 2016 accident and the April
17, 2017 indictment, nor between the July 1, 2016 accident and the June 12, 2017
re-indictment. The Court acknowledges that vehicular fatality investigations are
lengthy processes Among other reasons, a medical examiner’s report apparently

42 Del. Super. Ct. Crim. R. 48(b).
43 See State v. McElroy, 561 A.2d 154, 155-56 (Del. 1989) (internal quotation marks omitted).
44 Sraze v. Anderson, 2009 WL 2620502, ar *2 (Del. super. Aug. 21, 2009).

“takes 12 to 15 weeks to get[.]”45 As such, this Court does not find that there was an
unnecessary delay attributable to the State in presenting the charge to a grand jury.
Moreover, due to the fact that Defendant made two continuance requests prior to
trial, this Court does not find that there was an unnecessary delay attributable to the
State in bringing Defendant to trial.

Additionally, this Court does not find that Defendant was measurably
prejudiced “beyond that normally associated with [the] criminal justice system” in
large part because he has been at liberty for the extent of his case. Defendant argues
that anxiety suffered from “commencement of a new prosecution after dismissal of
the same charge in another court[]” is a factor that supports a finding of prejudice
under Rule 48(b).46 However, Defendant’s charge in JP Ct. 9 was Failure to Obey a
Traffic Device, while his charge in this Court is Operation of a Vehicle Causing
Death. Defendant’s health conditions are a minor factor in determining potential
prejudice from a delay, The anxiety suffered by Defendant does not appear greater
than that of an ordinary party to a criminal justice proceeding

Thus, dismissal pursuant to Superior Court Criminal Rule 48(b) is not
warranted here because there has been no unnecessary delay attributable to the state,
nor was there any measurable prejudice to the Defendant beyond that of an ordinary
party to the criminal justice system. As stated, Defendant requested two separate
continuances in this case.

B. Double Jeopardy Does Not Preclua’e Prosecutz`on of Operation of a
Vehicle Causing Death.

Prosecution of Defendant for Operation of a Vehicle Causing Death in this
Court following adjudication in JP Ct. 9 does not run afoul of the Double Jeopardy
Clause of the Fifth Amendment of the United Stated Constitution or Article I, § 8 of
the Delaware Constitution because jeopardy did not attach in the JP Ct. 9 proceeding

“Both the United States and Delaware Constitutions provide that no person
shall be twice put in jeopardy of life or limb for the same offense.”47 The Double
Jeopardy Clause guarantees three protections “It protects against a second
prosecution for the same offense after acquittal. lt protects against a second

 

43 Oral Argument Transcript, supra n.4, at 18.
46 Def.’s Reply Br. at 4 (citing State v. Morris, 340 A.2d 846, 850 (Del. Super. 1975)).
47 Tarr v. State, 486 A.2d 672, 674 (Del. 1984) (citing U.S. Const. amend. V and Del. Const. art.

1,§ 8).

prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.”48

“A crucial determination that must be made, when double jeopardy is an issue,
is whether jeopardy attached in the first proceeding.”49

The question of when jeopardy attaches is relatively settled in most instances In a
nonjury trial jeopardy attaches when the first witness is sworn. ln a jury trial it
occurs when the jury is impaneled and sworn. Finally, in those cases where the
defendant is convicted, based on a plea of guilty, double jeopardy will be found to
preclude a subsequent conviction for the same offense.50

The Delaware Supreme Court in Tarr stated that “[t]he question of when
jeopardy attaches is relatively settled in most instances.”51 No Delaware case has
apparently addressed the precise issue here of whether Double Jeopardy precludes a
subsequent prosecution in this Court when a defendant has pled guilty to another
offense stemming from the same conduct, but where that previous court then
“enter[ed] an order discharging [Defendant] from probation” after Defendant
completed PBJ, with no final conviction attaching.52

This Court looks to Tarr for guidance. This Court agrees with the State’s
argument that the first offender’s program in Tarr provides direction by analogy to
Defendant’s PBJ here.

The defendant in Tarr was charged with operating a motor vehicle under the
influence of alcohol after she drove her car into a tree while intoxicated53 The
defendant elected to participate in, and subsequently completed, the DUI first
offender’s course of instruction. The passenger of the defendant later died as a result
of injuries sustained in the accident. The defendant was then indicted for vehicular
homicide in the first degree.54

The defendant in Tarr claimed on appeal that the second indictment should
have been dismissed by this Court on Double Jeopardy grounds However, the
Delaware Supreme Court held that the subsequent vehicular homicide charge was

 

48 Smre v. Cook, 600 A.2d 352, 354 (Del_ 1991 ).

49 Tarr, 486 A.2d at 674.

30 Ia'. (citations and internal quotation marks omitted).
54 Ia'.

52 11 Del. C. §4218(g).

33 Tarr, 486 A.2d at 673.

54 ld. ar 674.

not precluded by Double Jeopardy because the first offender’s program that the
defendant elected to pursue in her first charge was administrative in nature and “is
similar to a civil sanction which does not preclude a subsequent criminal
prosecution.”33 The Delaware Supreme Court acknowledged that

[a] defendant's election to participate in a first offender's program to avoid
prosecution for the charge of driving under the influence . . . does not fit within any
of these typical situations where jeopardy usually attaches However, given the
nature of this project, we find it conceptually incompatible with the usual indicia
upon which a viable claim of double jeopardy rests.3(’

This Court finds that Defendant’s completion of PBJ is very much analogous
to the DUI first offender’s program in Tarr. The PBJ statute of 11 Del. C. § 4218(a)
provides that “a court exercising criminal jurisdiction after accepting a guilty plea
or nolo contendere plea may, with the consent of the defendant and the State, Stay
the entry of judgment, defer further proceedings, and place the defendant on [PBJ]
subject to such reasonable terms and conditions as may be appropriate.” Upon
completion of terms and conditions of PBJ “the Court shall enter an order
discharging the person from probation. . . . Discharge of a person under this section
shall be without judgment of conviction and is not a conviction for purposes of any
disqualification or disability imposed by law because of conviction of a crime.”57

Completion of the Delaware PBJ statute does not result in an acquittal or a
conviction. Rather, successful completion of PBJ results in a dismissal58 The
Delaware Supreme Court in Ryan v. State held, “successful completion of [PBJ] . . .
does blot out the existence of guilt. While [the defendant] may not be innocent in
fact, his discharge from probation renders him innocent as a matter of law and results
in a dismissal[.]”39 Because the Failure to Obey a Traffic Device charge resulted in
dismissal following Defendant’s successful completion of PBJ , Double Jeopardy did
not attach. As such, the Operation of a Vehicle Causing Death charge before this
Court is not precluded by the Double Jeopardy Clause.

PBJ is similar to the first offender’s program in that it provides a defendant an
administrative alternative to an adjudication of guilt or innocence through the
judicial system. Thus, Double Jeopardy does not bar prosecution of the Operation of

 

33 Ia', at 675.

36 ]a’. at 674.

37 11 Del. C. § 4218(g).

33 Ryan v. Sl'ate, 791 A.2d 742, 744 (Del. 2002).
39 Ia'. (internal quotation marks omitted).

10

a Vehicle Causing Death charge in this Court because jeopardy never attached in JP
Ct. 9 following Defendant’s completion of PBJ.

V. CONCLUSION

Dismissal of the indictment is not warranted for either of the arguments
offered by Defendant. First, dismissal pursuant to Superior Court Criminal Rule
48(b) is not warranted because there was no unnecessary delay attributable to the
state, nor was there any measurable prejudice to the Defendant beyond that of an
ordinary party to the criminal justice system. Second, prosecution of Defendant for
Operation of a Vehicle Causing Death in this Court following adjudication in JP Ct.
9 is not barred by the Double Jeopardy Clause of the Fifth Amendment of the United
Stated Constitution or Article I, § 8 of the Delaware Constitution because jeopardy
did not attach in the JP Ct. 9 proceeding as Defendant elected PBJ, the successful
completion of which results in dismissal

Defendant’s motion to dismiss is DENIED.

Richard R. Cooch, J.

cc: Prothonotary

ll

