SUPERIOR COURT

OF THE

STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DELAWARE 19947
TELEPHONE (302) 856-5264

December 30, 2019

Derek Gay, Esquire
Department of Justice
114 E. Market Street
Georgetown, DE 19947

Michael Abram, Esquire
115 S. Bedford Street
Georgetown, DE 19947

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RE: State of Delaware v. Matthew Gleason, Def. ID# 1903000579
Date Submitted: November 19, 2019
Dear Counsel:

Pending before the Court is an appeal that the State of Delaware (“the State”) has
brought from a dismissal of this case by the Court of Common Pleas (“CCP”). That court
suppressed evidence due to a discovery violation and ultimately, dismissed all charges against
Matthew P. Gleason (“defendant”), which included a charge of driving under the influence

(“DUI”). This is my decision reversing the decision below and remanding the matter to CCP.
The pertinent facts appear below.

Defendant was arrested on a DUI and a charge of not having proof of insurance on or
about March 2, 2019. The State filed an information in CCP on March 21, 2019.

The reason for the initial stop was that a call had been made regarding a domestic
incident and when the officers responded, they saw a male leaving the driveway and pulled him
over. The evidence establishing that the officers received this information was discoverable.
This evidence consisted of a recording of the dispatch from 911 to the officer and printouts
from SUSCOM that an officer might have read and on which the officer might have relied. These
printouts are called “ten times.” They accompany any SUSCOM audio recording and are self-
authenticating.

The State provided defense counsel with discovery. A cover sheet to the discovery
indicated the State had provided a SUSCOM 911 dispatch recording and a copy of the “ten
times.”

Five days before the trial, the Deputy Attorney General prosecuting the case sent
defense counsel an email stating that he believed all the discovery had been provided but if
defense counsel believed otherwise, he should contact the Deputy Attorney General. Defense
counsel did not respond to this email.

The matter came before CCP for trial on June 17, 2019. A number of cases were set to

be tried that date; however, because this case was the oldest on the trial docket, it was

 

‘The parties have submitted some facts in their briefing that were not of record. My review is
limited to information in the record that was available to the trial court when that court
decided the discovery issue. State v. Hicks, 2019 WL 2152707, *1 (Del. Super. May 15, 2019).
required to be tried first. As of June 17, 2019, the Delaware Supreme Court’s speedy trial
guidelines required criminal cases in CCP, including DUI cases, to be disposed of within 90 days
of the filing of an information.” As noted earlier, the State filed the information in this case on
March 21, 2019. As of the trial date on June 17, 2019, the 90-day speedy trial guideline deadline
had not passed, contrary to the belief of the trial judge.

The testifying officer was not present at the time the matters discussed below were
addressed in CCP. Instead, he was on his way to court in order to testify.

When the matter was called, defense counsel stated he had not received a recording of
the dispatch from 911 to the officer or the “ten times.” There was a lack of clarity in the record
regarding the 911 dispatch. The State provided defense counsel with a recording with codes.
Because the Deputy Attorney General was unsure of what the codes meant, he could not
conclusively state that the recording with codes constituted the 911 dispatch at issue. He
needed to speak to the arresting officer to obtain that clarification and, as noted above, that
officer was on his way to court. If the recording with codes was the 911 dispatch, then the State
had provided the 911 dispatch recording. Defense counsel argued that because the State had
not given the defense the “ten times,” the Court should bar the State from providing any
testimony about the stop of the vehicle and without such, there was no reasonable articulable

suspicion to stop the vehicle.

 

*Operating Procedures for the Delaware Judicial Branch, Appendix D-2, Policy on Speedy Trial
Guidelines. The Supreme Court amended that policy by order dated October 2, 2019, to extend
the time period for the disposition of DUI cases.

3
The State explained that its cover sheet to the discovery showed that the State had
provided both the 911 recording and the “ten times” to defense counsel. The trial court found
otherwise.

In response to the Court’s question to defense counsel as to whether defense counsel
was aware that he did not get the “ten times” and a dispatch tape, he stated:

Your Honor, | was aware that there was a dispatch tape that should have existed that |
did not get. That is correct. As far as the ten times | don’t know if | took notice of it. I'l
be completely honest with the Court. Unless something is wrong | usually ~ and maybe
to my detriment — ignore some of these things because they’re proforma [sic] asking the
same thing every single time. | mean | get experts written out for cases that are DUI
experts for speeding cases. So it doesn’t make a whole lot of sense for me to pay a ton
of attention to their written stuff but, yes, in all honesty | assumed that there was a
dispatch that | did not have but again | don’t know — you never know what they have.

| mean in their response it says SUSCOM dispatch recording. | got a SUSCOM dispatch
recording. | come here and I go; | think there’s probably more. There might not have
been more. It might have just been on the ten times, which again | didn’t get. | mean
just for example in this response it says; [sic] we may call the State chemist for blood or
drug analysis. It doesn’t apply. | mean there’s just all kinds of answers that don’t make
sense. So | can’t specifically rely on all of their answers.?

The State asked for a continuance. The State had the “ten times” with it at trial. The
documents were not extensive and defense counsel could have reviewed them that day if the
trial court had granted a recess. Defense counsel did not offer any reason why a continuance
might somehow prejudice the defendant. The trial court did not consider granting a recess
until the police officer arrived. The trial court stated it would not continue the case. It gave no
reason for the denial of a continuance although it did incorrectly state at some point that the

case was over the speedy trial guideline deadline.

 

* Transcript of June 17, 2019 Proceedings at 30-31 (“Trans. at "\
The trial court stated that the email the State sent asking if anything was missing was
not adequate. The trial court did not address prejudice to the defendant. The trial court then
ruled:

I’m suppressing whatever the ten tens and if there is a transcript or if there is a
dispatch tape that is suppressed as well in violation of the rules of discovery. | just do
not find there to be any excuse.*

The State explained that if the Court barred the State from presenting testimony on that
issue, the State could not make its case because there would be nothing to show reasonable
articulable suspicion to pull over the vehicle. The State then certified it could not proceed
without that evidence and CCP dismissed the case.

In the case of State v. Hicks,° this Court recently set forth the standard of review

appropriate to this matter:

The standard of review of an appeal from CCP is as follows:

The Superior Court is authorized to consider appeals from the Court of Common
Pleas in criminal matters. When addressing appeals from the Court of Common
Pleas, the Superior Court acts as an intermediate appellate court, with the same
function as that of the Supreme Court. In considering an appeal from the Court
of Common Pleas to the Superior Court, the Superior Court determines whether
there is legal error and whether the factual findings made by the trial judge are
sufficiently supported by the record. Factual findings by the Court of Common
Pleas are given deference and are reviewed for clear error. Legal questions are
reviewed de novo (footnotes and citations omitted).

The appellate court reviews a trial court's application of discovery rules for abuse of
discretion. (Footnotes and citations omitted).

 

“Id. at 37-38.

° 2019 WL 2152707, * 3 (Del. Super. May 9, 2019).
In a decision dated March 13, 2018, this Court reviewed the steps CCP must take in
dealing with discovery violations.® It explained in Rively:

3) Where the court below dismisses a case for a discovery violation, this Court reviews
whether that dismissal constituted an abuse of discretion. When faced with a discovery
violation, CCP can order the production of the discovery, grant a continuance, prevent
the introduction of material or impose any other order it deems just. However, before
issuing a sanction, the Court must weigh all relevant factors, including the extent of
prejudice to the defendant. The court must “balance the needs of society with the
defendant’s right to a fair trial.’” A case is not to be “dismissed absent some definable or
measurable prejudice to the defendant.” The defendant has the burden of showing
prejudice.

4) Here, the defense did not provide any reason for why the defendant might be
prejudiced. The court below did not weigh any factors in determining what sanction
should be imposed, and in particular, it did not consider any factors which might
support a finding of prejudice. Thus, the court below abused its discretion when it
dismissed the case. (Footnotes and citations omitted).”

The case at hand presents a nearly identical factual scenario as occurred in Rively. 8
There, as here, the defense did not address prejudice. That omission is particularly important
here where the defense recognized days before trial that it was missing the dispatch tape and
was on notice that it might be missing the “ten times.” As was the situation in Rively, CCP did
not undertake the weighing process required. In this case, the trial court held that because
there was a discovery violation, the information must be suppressed. Because the court below

failed to consider the prejudice element, it abused its discretion in suppressing the evidence.

 

* State v. Rively, Def. ID # 1704016124, Graves, J. (Del. Super. Mar. 13, 2018) (ORDER)(“Rively’”).

7Id. at 4-5.

* The defense attempts to distinguish the facts of this case from those of Rively. There are no
distinctions on the pertinent matters.
For the forgoing reasons, this decision is reversed and the matter is remanded for

prosecution.
IT IS SO ORDERED THIS 30" DAY OF DECEMBER, 2019.
Very truly yours,

(pe

Richard F. Stokes

cc: Prothonotary’s Office
Court of Common Pleas
