STA TE OF DELAWA RE
T. Henl ey Graves
SUSSEX COUNTY COURTHOUSE
P.O. BOX 746
GEORGETOWN, DE 1 9947
May 4, 2004
Carole E.L. Davis, Esquire
114 E. Market Street
Georgetown, DE 19947
Edward C. Gill, Esquire
P.O. Box 824
Georgetown, DE 19947
RE: State v. Wynne, Def. ID# 0305017503
DATE SUBMITTED: March 23, 2004
Pending before the Court is an appeal which the State of Delaware (“the State”) has
brought, pursuant to 10 Del. C. § 9902(b),1 asserting the Court of Common Pleas (“CCP”)
10 Del. C. §9902(b), it is provided as follows:
When any order is entered before trial in any court suppressing or excluding
substantial and material evidence, the court, upon certification by the Attorney
General that the evidence is essential to the prosecution of the case, shall dismiss
the complaint, indictment or information or any count thereof to the proof of
abused its discretion in denying a continuance request. The parties have briefed the issue on
appeal, and this is my decision affirming the decision below.
On May 20, 2003, defendant Benjamin Wynne (“defendant”) was arrested on a charge of
driving under the influence in violation of 21 Del. C. § 4177(a)(5).2 Defendant requested a jury
trial, thereby requiring a transfer of the matter to CCP. Defendant was arraigned in CCP on
August 28, 2003. On that date, he was given a jury trial date of October 27, 2003. Because his
attorney had filed a motion to suppress, CCP, on or about September 5, 2003, scheduled a
suppression hearing for October 21, 2003.
On October 1, 2003, the State, for the first time, requested a continuance of the October
21, 2003, suppression hearing. It gave the following as its reason for its request: “Tpr. Oldham
on scheduled vacation from 10/19/03 to 11/4/03 out of state”. The State also explained that Mr.
Gill, defendant’s attorney, did not oppose the continuance request. The State’s request was made
in accordance with CCP’s unwritten policy to grant first-time continuance requests when the
which the evidence suppressed or excluded is essential. Upon ordering the
complaint, indictment or information or any count thereof dismissed pursuant to
the Attorney General’s certification, the reasons of the dismissal shall be set forth
in the order entered upon the record.
In 21 Del. C. § 4177, it is provided in pertinent part:
(a) No person shall drive a vehicle:
(5) When the person’s alcohol concentration is, within 4 hours after the time of
driving, .10 or more. ***
testifying officer was on vacation.3
The Court denied the request. It did not provide a reason for the denial.
By letter dated October 3, 2003, the State asked that the Court reconsider its request for a
continuance of the suppression hearing on October 21, 2003, because the case had not been
continued previously and Mr. Gill did not oppose the continuance. Apparently, CCP denied the
request for reconsideration and no reason for the denial appears to have been given.
By motion dated October 17, 2003, the State moved for a continuance of the suppression
hearing and the trial date. In that motion, the State explains as follows:
2. *** The defense seeks to suppress all of the State’s evidence against the
defendant from the traffic stop on. Trooper Oldham’s testimony is essential if the
State is to establish that the stop and arrest of the defendant was constitutional,
and that the defense is not entitled to suppression. Thus, denial of the State’s
request will result in dismissal of the State’s case either because the State’s only
witness, Trp. Oldham does not appear or because all evidence in the State’s case
will be suppressed.
3. While the Court in this matter has denied a State requested continuance, such
issues are usually framed as being under Rule 48(b), failure for the state to
prosecute. As Trp. Oldham is the only witness the State would call at a
suppression hearing, given the court’s denial of the State’s request, the State will
surely not be prepared to go forward on October 21, 2003.
The State, noting no speedy trial issues and no prejudice to the defendant existed,
requested that the Court reconsider its previous denials and grant its requests for continuances of
the suppression hearing and trial dates.
The Court addressed the October 17, 2003, request for reconsideration of its previous
According to CCP:
And, you know, we go way out of our way consistently. We have an unwritten
policy, it’s informal, it’s not the policy that has to be adhered to all the time, but
by and large, we grant every request the State makes for officer vacation
continuance, the first time. You get one vacation continuance on each case.
decisions on October 21, 2003, the time set for the suppression hearing. Defendant was present in
the courtroom. The arresting officer was not present because she was on vacation out of state.
During the hearing, the Court finally stated the reason for its denial. The State’s delay in
making the continuance request was inexcusable, a continuance would result in the trial not
taking place for two months from its originally scheduled date, and the Court’s interest in
moving its cases was paramount. The Court expressed its opinion that the State should have a
system whereby it checks vacations of officers at the time of arraignment, and if the Attorney
General’s Office does not seek a continuance at that time, then it should not be allowed a
continuance based on the reason that the officer was on vacation. The Court explained that it was
not examining the prejudice aspect to the defendant; instead, what it considered was “the
providence of the Court to control the pace of its work and its calendar.”
The Deputy Attorney General explained that he understood the Court’s position, but
there was nothing his office could do about the situation; i.e., there existed no procedure whereby
it could have determined any earlier that the vacation conflict existed and have sought a
Despite the State’s entreaties, the Court denied the request for a continuance because it
planned to keep its calendar moving and “it’s becoming a real burden and a real difficult task to
try to reschedule these matters for jury trials.”
The State then could not proceed on the motion to suppress because it lacked the
necessary witness to present its case. Importantly, the State offered no evidence to show that it
had made any attempts to secure the officer’s presence at the suppression hearing. The Court
granted the motion to suppress; the State certified that it could not proceed to trial without the
suppressed evidence. The Court then dismissed the driving under the influence case pursuant to
10 Del. C. § 9902(b).
“[A]pplications for continuances are left to the discretion of a trial judge whose ruling
will not be disturbed on appeal unless that ruling is clearly unreasonable or capricious.” Bailey v.
State, 521 A.2d 1069, 1088 (Del. 1987). The standards to be applied when reviewing the decision
below are set forth in Secrest v. State, 679 A.2d 58, 66 (Del. 1996):
First, the party seeking the continuance has the burden of establishing a clear
record of the relevant facts relating to the criteria for a continuance, including the
length of the requested continuance. Second, the party seeking the continuance
(a) that it was diligent in preparing for the presentation of the testimony;
(b) that the continuance will be likely to satisfy the need to present the
(c) that the inconvenience to the Court, opposing parties, witnesses and jurors is
insubstantial in relation to the likely prejudice which would result from the denial
of the continuance.
In this case, the State was well aware for a couple of weeks before the hearing that CCP
was denying its request, it just did not know why. The Court below certainly has the inherent
authority to control its calendar. State v. Augustine, Del. Super., Cr. A. Nos. I N-91-09-1557, et
al., Herlihy, J. (October 29, 1992). Unfortunately for the State, it was caught in a change by CCP
of its continuance policy. It would have been more judicious for CCP to have notified the State
of its change in policy before implementing it and, in any case, to have provided a reason for its
denial at the time of the first request.
What matters here, however, is that despite knowing CCP was denying its continuance
request, the State appeared at the hearing on the suppression motion without making any efforts
to secure the officer’s presence. Thus, the State failed to establish it diligently prepared for the
presentation of the testimony, the first requisite of Secrest v. State, supra. Once CCP denied the
continuance request, then the State should have subpoenaed the police officer to insure her
presence at the hearing. The State’s failure to secure the presence of the witness for the
suppression hearing is what caused the continuance. See State v. Richards, Del. Super., Def. ID#
9609004774, Toliver, J. (May 28, 1998). When the trial court denied the continuance request on
the day of the suppression hearing, it acted reasonably and within its discretion. See In the Matter
of the Petition of the State of Delaware for a Writ of Mandamus, 720 A.2d 559 (Del. 1998).
For the foregoing reasons, I affirm the decision of the Court below.
IT IS SO ORDERED.
Very truly yours,
T. Henley Graves
CCP Clerk’s Office
The Honorable Kenneth S. Clark, Jr.