                                        SUPERIOR COURT
                                                 OF THE
                                      STATE OF DELAWARE
JAMES T. VAUGHN, JR.                                                       KENT COUNTY COURT HOUSE
    PRESIDENT JUDGE                                                              38 THE GREEN
                                                                             DOVER, DELAWARE 19901



                                         June 19, 2014


   Dennis Kelleher, Esq.                                  Joseph A. Hurley, Esq.
   Department of Justice                                  1215 King Street
   102 West Water Street                                  Wilmington, Delaware 19801
   Dover, Delaware 19901

             Re:      State v. Robert P. Bryer
                      ID. No. 1008011916

   Counsel:

          The defendant has filed a motion to dismiss this case on the grounds that his
   speedy trial and due process rights have been violated. He also moves to dismiss for
   unnecessary delay in the prosecution under Rule 48(b). I grant the motion under Rule
   48(b).

           On August 14, 2010, the defendant, Robert P. Bryer, Jr., was involved in an
   incident with a Milford police officer. Bryer was arrested and charged with assault
   in the second degree, two counts of reckless endangering in the first degree, offensive
   touching, resisting arrest, endangering the welfare of a child, and disorderly conduct.
   He was indicted on these charges on October 4, 2010.

           On May 16, 2011, the State nolle prossed all of the charges against Bryer. By
   letter dated May 16, 2011 to defense counsel, the Deputy Attorney General assigned
   to the case stated “[t]his letter will confirm our agreement that in exchange for the
   State dismissing the charges pending against your client. . .your client agrees not to
   pursue any civil remedies against The City of Milford or any officers involved in the
   incident.” It appears that there is no underlying written agreement. It appears that
   the letter is the only evidence of an agreement.

             On May 6, 2013, Bryer was reindicted on the same original charges that were
State v. Robert P. Bryer
ID. No. 1008011916
June 19, 2014

nolle prossed in 2011. Bryer acknowledges that the letter was sent by the State to his
defense attorney, but argues that no enforceable agreement was reached.

       The State responds that it believed at the time that the defense had agreed not
to pursue civil remedies in exchange for the termination of the 2011 prosecution. The
State contends that Bryer subsequently filed an action in federal court, thus violating
the agreement.1 The State does not address whether the alleged agreement was
enforceable or valid and contends that it was Bryer’s responsibility to correct the
State’s belief that an agreement had been reached. The State argues that both parties
are responsible for the delay and thus the case should not be dismissed.

                                STANDARD OF REVIEW

       Superior Court Criminal Rule 48(b) allows the Court to exercise its discretion
to dismiss an indictment or information for “unnecessary delay.”2 While speedy trial
rights are implemented by Rule 48(b), prejudice in the traditional sense is not
required and the Court’s discretion is “broader than normally associated with a Sixth
Amendment analysis.”3 There are two criteria required for a dismissal under Rule
48(b): the unnecessary delay must be attributable to “the deliberate choice of the
prosecuting authorities for no valid reason,” and that the delay was prejudicial.4

                                        DISCUSSION

      Although the letter written to defense counsel at the conclusion of the first
prosecution refers to an agreement not to file a civil case, it is a letter between
counsel which refers to “our” agreement. The record is ambiguous as to whether the

       1
         The suit was filed by different counsel for Bryer, not his defense counsel on the
criminal charges.
       2
           State v. Budd Metal Co., Inc., 447 A.2d 1186, 1188 (Del. 1982).
       3
           Id.
       4
           State v. McElroy, 561 A.2d 154, 156 (Del. 1989).

                                                2
State v. Robert P. Bryer
ID. No. 1008011916
June 19, 2014

defendant himself knowingly entered into such an agreement. For this reason, I am
not willing to conclude that the defendant himself agreed not to file a civil action.
Therefore, I need not consider the enforceability or lack of enforceability of an
agreement to waive rights to file a civil action in exchange for a dismissal of criminal
charges.

       Since I do not find that there was an enforceable agreement between the State
and the defendant, I find that the delay between the two prosecutions was attributable
to the State. I also find that the delay was unnecessary. I also find that the delay has
caused prejudice to the defendant. In his civil suit, he has, at a minimum, filed a
complaint which sets forth his version of what occurred. The complaint, plus any
other information disclosed in the civil case, would be available to the State in
preparing its case in chief, to the prejudice of the defendant.

      Therefore, the motion to dismiss under Rule 48(b) is granted.

      IT IS SO ORDERED.


                                               /s/ James T. Vaughn, Jr.


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