IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
I.D. No. 1409012827

vt t Kent County

ADDERSON G. SEGO,
Defendant.

Submitted: July 26, 2016

Decided: August 10, 2016

ORDER
Upon Defendant’s Motior1 to Dismiss.

Denied.

Jason C. Cohee, Esquire of Department of Justice, Dover, Delaware; attorney for the
State of Delaware.

Suzanne MacPhers0n-Johnson, Esquire of the Offlce of the Public Defender, Dover,
Delaware; attorney for Defendant.

WITHAM, R.J.

State v. Adderson G. Sego
I.D. N0. 1409012827
August 10, 2016

Defendant Adderson G. Sego, Jr. ("Sego") was arrested on September l8, 2014
and indicted on February 2, 2015 on charges of Assault Second Degree, Possession
of a Deadly Weapon during the Commission of a Felony, and Resisting Arrest. Sego
moves to dismiss this case based on a violation of his right to a speedy trial as
guaranteed under the Sixth and Fourteenth Amendments of the United States
Constitution, article 1 section 7 of the Constitution of the State of Delaware, and
Superior Court Criminal Rule 48(b).

FACTS AND PROCEDURAL HISTORY

Sego was arrested on September l8, 2014. Due to Sego’s hospitalization as the
result of injuries sustained during the arrest, a preliminary hearing was not scheduled
until October 24, 2014. On October 24, 2014, the matter was continued at the State’s
request. On October 31, 2014, Sego waived his preliminary hearing, bail was
modified to unsecured, and the Court of Common Pleas ordered pretrial probation at
Level IV Home Confinement. On Deccmber 4, 2014, pretrial probation was reduced
to Level III.

The Court’s scheduling order set a final case review date of May l3, 2015 and
a trial date of May 18, 20l5. On January 8, 2015, the State provided discovery to
Sego. This included a reciprocal discovery request which specifically included a
request for any potential experts to be used at trial. At final case review on May 13,
20l5, after a sidebar, the case was scheduled for control on July 7, 201 5. On July 7,
20l5, final case review was scheduled for September 30, 20l5, and trial was

scheduled for October 5, 201 5. At final case review on September 30, 20l5, after a

State v. Adderson G. Sego
I.D. No. l4090l2827
August l0, 2016

sidebar, final case review was rescheduled for December 2, 2015 and trial was
rescheduled for December 7, 20l5. At final case review on December 2, 2015, after
a sidebar, the Court scheduled control for January 4, 2016.

The State points out that Sego did not inform the State that the need for expert
medical testimony was being evaluated until December 20l5. The State also
contends that discovery was provided eleven months earlier, in January 20l 5, and at
that time the State had filed a reciprocal discovery request. The State brought the
expert witness issue to the Court’s attention in December 2015 and again on January
4, 20 l 6. At the January 4, 2016 control hearing, the Court gave the State thirty days
to evaluate whether a scheduling order goveming expert disclosures was necessary.
Also on January 4, 20 1 6, Sego requested a new trial date be set far enough out so that
medical personnel that may be needed to testify for Sego would have enough time to
clear their schedules and be available for trial. The Court scheduled a trial date for
April 5, 2016.

On March 3 l , 2016, the State requested a continuance because Trooper
Amanda Pini, the arresting officer and assault victim, was allegedly seven months
pregnant. A new trial was scheduled for July l9, 20l6, however, on July l4, 20l6,
the State once again requested a continuance because Trooper Pini was still pregnant
and was not scheduled to give birth until August 3, 2016. The State admitted that it’s
representation to the Court that Trooper Pini was seven months pregnant on March
3 l. 2016 was in error. The Court denied the State’s request without prejudice.

Both the State and the Defense note that each continuance granted between

State v. Aa'derson G. Sego
I.D. No. l4090l2827
August l0, 2016

May l3, 2015 and April 5, 2016 was made at the Court’s request,‘ but it should be
noted that these continuances were granted after a sidebar by agreement with the
parties. Because sidebars are not generally recorded unless requested, there is no
record of the reason new dates were granted. In any event, there was no objection
entered on Sego’s behalf.
DISCUSSION

In Barker v. Wingo, the United States Supreme Court created a four part
balancing test "in which the conduct of both the prosecution and the defendant are
weighed."z "The test considers: (l) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice
resulting to the defendant from the delay."3 "The right to a speedy trial attaches as
soon as the defendant is accused of a crime through arrest or indictment, whichever
occurs first."" Although speedy trial rights are also implemented by Superior Court
Criminal Rule 48(b), the showing of prejudice required for violation of Rule 48(b)

is "broader than normally associated with a Sixth Amendment analysis."5

l The State asserts that the delay from December 2, 2015 through April 5, 2016 was
attributable to the defense. The State noted that if the Defense had evaluated their expert witnesses
in a timely fashion, the case could have been tried months ago.

2 Barker v. Wingo, 407 U.S. 5l4, 530 (l972).

3 Brodie v. State, 2009 WL 188855, at *2 (Del. Jan. 26, 2009).

4 Id. at *3 (quoting Mia'dlebrook v. State, 802 A.2d 268, 273 (Del. 2002)).
5 State v. Walstrum, 2015 WL l577664, at *l (Del. Super. Mar. 19, 20l5).

4

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State v. Adderson G. Sego
I.D. N0. 1409012827
August lO, 2016

Length of the Delay

Under the Barker test, the length of the delay is a trigger, and the remaining
three factors are not considered unless there is some delay that is presumptively
prejudicial.é The Supreme Court of Delaware has found that "if the delay between
arrest or indictment and trial exceeds one year, the Court generally should consider
the other Barker factors."7

Twenty-three months have passed since Sego was arrested in September 2014.
This delay is presumptively prejudicial. The first Barker factor weighs in favor of
Sego and the Court will therefore consider the remaining three factors.

Reason for the Delay

The second Barker factor considers the reason for the delay. The weight
assigned to a delay depends upon the reason for the delay.g Deliberate attempts by
the State "to delay the trial in order to hamper the defense should be weighted heavily
against the govemment."9 Neutral reasons such as negligence or crowded court
dockets should be weighed less heavily. 10 "Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay."“

The five week delay between Sego’s arrest and his preliminary hearing was due

6 Id.

7 Cooper v. State, 2011 WL 6039613, at *7 (Del. Dec. 5, 201 l) (TABLE).
8 Barker, 407 U.S. at 531.

9 Ia’.

10 Ia'.

" Id.

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State v. Adderson G. Sego
I.D. No. 1409012827
August 10, 2016

to injuries sustained during the arrest and the resulting hospitalization. The one week
delay from the date of the scheduled preliminary hearing and the date on which Sego
waived his preliminary hearing is attributable to the State. The delay from May l3,
20 l 5, through December 2, 2015, was the result of continuations granted by the Court
after sidebars with counsel. There is no record of the reason for the continuances at
sidebar. This delay of six and a half months may be attributed to the Court; however,
Sego did not object to the delays. The four month delay from December 2, 2015,
through April 5, 2016, can be attributed to Sego’s late notification regarding expert
witnesses. The final delay of almost four months was the result of two continuance
request by the State due to Trooper Pini’s pregnancy.

Of the fourteen and a half months that have passed since the original final case
review date was scheduled, six and a half months are attributable to the Court, four
months are attributable to Sego, and four months are attributable to the State. The
reasons for the delays attributed to the Court are unknown and occurred after
sidebars, and delays attributable to the State are the result of a pregnancy. There was
no attempt by the State to hamper Sego’s defense, and therefore the delays will not
be heavily weighted. Nonetheless, this Barker factor weighs in favor of Sego.

Defendant ’s Assertion of the Right to a Speedy Trial

"If and when a defendant asserts his rights are factors of considerable

significance in determining whether there has been a speedy trial violation."‘z

Although a defendant who fails to demand a speedy trial does not forever waive that

12 Bailey v. State, 521 A.Zd l069, 1082 (Del. l987).

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State v. Adcz'erson G. Sego
I.D. No. 1409012827
August l0, 2016

right," "failure to assert the right will make it difficult for a defendant to prove that
he was denied a speedy trial.""‘

Sego had not asserted his right to a speedy trial, either directly or inferentially,
until the motion at bar was filed on July 26, 2016. This assertion comes more than
twenty-two months from the date of Sego’s arrest. During those twenty-two months,
the Court convened on five separate occasions. Sego could have asserted this right
at any time during the pendency of the case, but perhaps more importantly, Sego had
the opportunity to assert his right in the courtroom on numerous occasions. Sego has
by no means forfeited his right to a speedy trial, but his failure to assert that right at
an earlier time weighs against him. Therefore, the third Barker factor weighs in favor
of the State.

Prejua'ice Resulting to the Defendant from the Delay

"The prejudice prong should be considered in light of three of defendants’
interests that the speedy trial right was designed to protect: (l) preventing oppressive
pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3)
limiting the possibility that the defense will be impaired."l$

Under the first prong, Sego suffered no prejudice from pretrial incarceration

because his incarceration was minimal. After six weeks, Sego was placed on Level

IV Home'€onfrnement and by December 4, 2014, probation was reduced to Level III.

13 Barker, 407 U.S. at 528.
14 Ia'. at 532.
15 Middlebrook v. State, 802 A.2d 268, 276 (Del. 2002).

7

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State v. Adderson G. Sego
I.D. NO. 1409012827
August l0, 2016

Under the second prong, Sego claims anxiety increases on any criminal defendant
with the passage of time. Although Sego was released to Level III probation on
December 4, 2014, he "was presumptively prejudiced to at least some extent by
anxiety and concem regarding the delay of his trial."“" Under the third prong, Sego
expresses a concem that witnesses memories fade over time. lt is true that memories
can fade over time, but the passage of two years is not enough time to prejudice
Sego’s defense. Having considered the three prongs of the fourth Barker factor, the
Court concludes that Sego suffered very little prejudice as a result of the delay. Thus,
the fourth Barker factor weighs in favor of the State.

CONCLUSION
A delay of more than two years from the date of arrest to the date of trial does
not fall within the Superior Court’s Guidelines for Criminal Trials. However, after
considering the four Barker factors, the Court finds the third and fourth factors
outweigh the first two factors. Importantly, the State has not intentionally hampered
Sego’s defense, and Sego had not registered an objection to any of the multiple

continuances until July 2016.

16 Ia'. at 277.

¢ a-_.-¢srn

State v. Adderson G. Sego
I.D. No. 1409012827
August 10, 2016

The Court finds that Sego’s right to a speedy trial has not been violated, and
the Defendant’s motion to dismiss is therefore DENIED.
IT IS SO ORDERED.

   

. Wi ham, Jr.
Resident Judge

WLW/dmh
oc: Prothonotary
xc: Jason C. Cohee, Esquire
Suzanne MacPherson-Johnson, Esquire

