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State v. Harris

Superior Court of Delaware

April 26, 2017

EARL HARRIS, Defendant.

          Date Submitted: January 20, 2017

         Upon Defendant Earl Harris's Motion to Dismiss: DENIED

          Sean P. Lugg, Esquire (argued), and James J. Kriner, Esquire, Deputy Attorneys General, Delaware Department of Justice, 820 North French Street, 7th Floor, Wilmington, DE. Attorneys for the State.

          Patrick Collins, Esquire (argued), Collins & Associates, 716 North Tatnall Street, Suite 300, Wilmington, DE, and Benjamin Gifford, Esquire, The Law Office of Benjamin S. Gifford, IV, 14 Ashley Place, Wilmington, DE. Attorneys for Defendant Earl Harris.


          JURDEN, P.J.


         Before the Court is Defendant Earl Harris's ("Harris") Motion to Dismiss.[1]Harris argues that the State's failure to bring him to trial within 120 days of his transfer from New Jersey custody into Delaware custody violates his rights under the Uniform Agreement on Detainers ("UAD" or "IAD").[2] For the reasons that follow, Defendant's Motion to Dismiss is DENIED.


         A. Indictment and Harris's Incarceration in New Jersey

         On April 3, 2006, Harris and his co-defendant William Brown ("Brown")[3]were charged with Burglary Second Degree, Felony Theft, and Conspiracy Second Degree for events occurring on November 22, 2005.[4] On May 9, 2006, the State took Harris into custody.[5] Two days later, Harris posted secured bail and was released.[6] On March 1, 2007, the State entered nolle prosequis on the above charges.[7]

         On July 2, 2012, the State indicted Harris and Brown again, this time on capital murder charges.[8] At the time of indictment, Harris was incarcerated in New Jersey for convictions relating to an attempted shooting of two uniformed police officers in Woodbury, New Jersey.[9] On April 5, 2013, the State lodged a detainer against Harris with the State of New Jersey Department of Corrections.[10]

         On July 15, 2013, the State sent a letter to the then-assigned judge stating "[t]he State is desirous of bringing this matter to trial in a timely fashion."[11] The State anticipated that scheduling the case would be difficult given the complexity of the case itself and the complexities of trying capital cases.[12] In the July 15, 2013 letter, the State asserted that, pursuant to 11 Del. C. § 2543(c), "[i]f the State were to return the Defendants to Delaware on its own initiative the Court would be obligated to bring the matter to trial within 120 days." [13] At that time, neither Harris nor Brown was represented by counsel. Consequently, the State copied the Public Defender's Office ("PDO") on the letter and requested a scheduling conference with the Court.[14]

         On July 26, 2013, the Court followed up on the State's July 15, 2013 letter by forwarding the letter to the PDO and the Office of Conflicts Counsel.[15] The Court noted that scheduling could not proceed because Harris and Brown did not have counsel.[16] The PDO responded that it would assign counsel only after performing a representation intake and conflict evaluation, tasks that could not be performed given that Harris and Brown were incarcerated in other jurisdictions and the State had not provided a witness list.[17]

         On August 21, 2013, the Court requested that the State provide an update on the status of the case, and the State renewed its previous request for an office conference.[18] The lead prosecutor suggested that it would be prudent "to address the timing of the Defendants' return to Delaware pursuant to the [UAD]" because the State would "exercise significant control over the initial scheduling of the matter by virtue of the timing requirements of the [UAD]" if Harris and Brown were returned without a scheduling order in place.[19]

         In response, the PDO maintained that it could not represent Harris or Brown at the proposed office conference.[20] Based on the PDO's inability to perform a representation intake or conflict evaluation, the PDO concluded, "[f]or the PDO to attend an office conference and represent the interests of individuals who have not sought our services would be an ethical breach."[21] The record does not reflect that the State took further action to schedule an office conference or secure counsel for Harris or Brown in response to this correspondence.

         B. The State's Decision to Return Harris to Delaware

         In 2014, the lead prosecutor began the process of extradition by consulting with the Delaware Department of Justice ("DDOJ") Extradition Unit.[22] The supervisor of the DDOJ Extradition Unit informed the prosecutor that the UAD "was not used to return capital defendants to Delaware for trial and that consequently the 120-day time limit set forth in the [UAD] did not apply in such cases."[23] The DDOJ Extradition Unit directed the prosecutor to the manual of the National Association of Extradition Officials, and after reviewing the manual, the prosecutor came to believe that returning a defendant to Delaware on a Governor's Warrant would not trigger the UAD's 120-day time limit.[24]

         On November 14, 2014, the State returned Harris to Delaware using a Governor's Warrant, [25] and on December 5, 2014, the Office of Conflicts Counsel assigned counsel to represent Harris.[26]

         C. The March 2, 2015 Office Conference

         On January 26, 2015, defense counsel wrote to the Court noting that a trial date had not been set and requesting that the Court hold an office conference to address scheduling.[27] On March 2, 2015, the Court held an office conference. Just prior to the office conference, defense counsel, aware of the potential applicability of the UAD, asked the State how it returned Harris to Delaware.[28] The State told defense counsel that Harris was returned using a Governor's Warrant.[29]

         During the March 2, 2015 office conference, on the subject of the delay between the date of the alleged crimes and the instant indictment, the State explained that it brought capital murder charges against Harris and Brown after receiving the results of a years-long FBI investigation.[30] On the subject of the State's decision to return Harris and Brown to Delaware, the lead prosecutor offered the following:

A mea culpa for not knowing how the law works a little bit better. I thought to bring them back for trial-this would be an interstate detainer case and I thought it would be not the Delaware way to bring defendants back in a capital case without consulting with the Court and counsel about scheduling because you are supposed to try them within 120 days. So ... I wrote a couple of letters ... suggesting that we have a scheduling conference, that we figure out who the lawyers are going to be, and we'll bring the defendants back at the convenience of everybody. The public defendants objected to that because they said: We don't represent this guy and until we meet him, how can we do that?
So nothing ever happened with those scheduling conferences. And I hope Court and counsel here won't consider us to be proceeding in an unchivalrous way, but we finally said: All right, we are just going to bring them back.[31]

         Further, the lead prosecutor offered some commentary on the UAD's applicability to the case:

And it turns out that we don't bring them back under the interstate agreement anyway, so there would not have been a time limit. I didn't know that. Apparently, by general acclimation the interstate agreement on detainers does not apply in capital cases. It doesn't say that in the statute. I've been doing this for 30 years and I never knew that. But that's how it works. They come back on governor warrants. There never would have been a time limit.[32]

         Thus, at the March 2, 2015 office conference, the State represented: (1) the State returned Harris and Brown to Delaware on Governor's Warrants; (2) the State does not use the UAD to return capital defendants; (3) the UAD does not apply when the State uses a Governor's Warrant; and (4) the UAD does not apply in capital cases. (The accuracy of the State's legal assertions is addressed more fully later in this opinion.)[33] The State's factual assertion that it used Governor's Warrants to return both Harris and Brown is only partially correct. The State returned Harris on a Governor's Warrant but returned Brown on a writ of habeas corpus ad prosequendum.[34]

         Following the State's summation of the procedural history of the case, the discussion between the Court and the parties turned to the subject of scheduling. To begin, defense counsel requested that the Court schedule a proof positive hearing.[35] After scheduling the proof positive hearing for May 28, 2015, the Court inquired if there was any other business that could be accomplished.[36] Defense counsel responded, "I presume trial-wise we're looking at 2016 probably?"[37] Defense counsel then went on to explain:

Just to make a record calendar-wise, September 2015 is the Paladin Club capital case. I don't see that going away, unless it gets bumped for some reason into 2016. And then in April of 2016 I have the Jason Slaughter case [another capital case] .... So I don't imagine that's going away.
So from my perspective, whether we do two juries or not, I don't see this case getting to trial before the second half of 2016, unfortunately.[38]

         With the input and consent of the parties, the Court scheduled trial for eight weeks, beginning October 4, 2016, with jury selection beginning September 6, 2016.[39]

         D. Harris's First and Second Motions to Dismiss

         On March 2, 2016, Harris moved to dismiss all counts of the indictment except for intentional murder, based on the expiration of the statute of limitations.[40]The Court granted Harris's Motion to Dismiss Counts II-XIII, with the acquiescence of the State, except for two counts of felony murder (Counts III and IV) and the unchallenged count of intentional murder.[41]

         On March 18, 2016, Harris filed a Motion to Dismiss Counts III and IV of the Indictment on Speedy Trial and Due Process grounds.[42] In its Response to Harris's Motion to Dismiss Counts III and IV of the Indictment, the State argued, among other things, that Harris could have requested that the State return him to Delaware to stand trial pursuant to the UAD.[43] "If and when a defendant asserts his rights are factors of considerable significance in determining whether there has been a speedy trial violation."[44] And, "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial."[45] Therefore, the State argued, the fact Harris could have taken affirmative steps to assert his Speedy Trial rights, but did not, weighed against his Speedy Trial claim.[46]

         On June 2, 2016, the Court denied Harris's Motion to Dismiss Counts III and IV of the Indictment.[47]

         E. Rauf v. State

         On August 2, 2016, the Delaware Supreme Court decided Raufv. State, [48] holding certain aspects of Delaware's capital sentencing statute unconstitutional in light of the United States Supreme Court's decision in Hurst v. Florida[49] On August 15, 2016, at an office conference, the State affirmed that it would no longer pursue the death penalty in this case.[50]

         As a non-capital case, the parties agreed that an eight-week trial was no longer necessary, and jury selection was rescheduled from September to the beginning of October, with trial to immediately follow/[51] Trial would now only take five weeks.[52]

         F. United States v. Mauro and the Instant Motion to Dismiss

         On August 4, 2016, the State, on its own initiative and in commendable adherence to its duty of candor, [53] advised the Court and defense counsel by letter that it had erroneously represented that the UAD time limits did not apply in this case.[54] Citing United States v. Mauro, [55] the State acknowledged "[w]hile neither defendant asserted claims [in the Motion to Dismiss Counts III and IV of the Indictment] concerning timeliness of their prosecution pursuant to the Uniform Agreement on Detainers ... these provisions may apply here."[56]

         In response to this disclosure, Harris filed the instant Motion to Dismiss.[57]The State responded, and the Court held oral argument. At oral argument, defense counsel affirmed that he relied on the State's representation that it returned Harris to Delaware using a Governor's Warrant.[58] The State affirmed that it has no evidence that either Harris or Brown was "gaming the system" or "lying in wait" for the 120-day time limit to expire.[59]

         Following oral argument, it became clear that the expedited briefing and argument schedule the parties had pursued in an effort to maintain the October 2016 trial date had not produced a sufficient record for the Court to issue a decision.[60] The Court specifically highlighted the State's inconsistent representations regarding the applicable law and the means by which the State returned Harris and Brown to Delaware.[61]

         To help address the inconsistencies and deficiencies in the record, the lead prosecutor submitted an affidavit explaining that he made the July 15, 2013 representation that the UAD would apply in this case based on his general awareness that the UAD "was the primary vehicle used to return inmates serving sentences in other jurisdictions to Delaware for trial."[62] As of July 15, 2013, the prosecutor assumed that the UAD's 120-day time limit would apply.[63] Following his consultation with the DDOJ Extradition Unit, however, the prosecutor came to believe that the UAD would not apply to Harris or Brown because the State would not request custody pursuant to the UAD.[64]

         While the prosecutor's consultation with the DDOJ Extradition Unit sheds light on his belief that the UAD does not apply in this case because the State ultimately chose an alternative vehicle to secure the Defendants' return to Delaware, the prosecutor's affidavit does not explain his assertion at the March 2, 2015 office conference that the UAD "does not apply in capital cases." Nothing in the text of the UAD prohibits use of the UAD to transfer capital-eligible defendants, a fact the prosecutor recited immediately after asserting that the UAD does not apply in capital cases.[65] The only explanation proffered for the UAD's alleged total inapplicability to capital cases was offered at the March 2, 2015 office conference: "general acclimation."[66]


         Harris argues that 11 Del. C. §§ 2543-44 mandate dismissal of the remaining charges in the indictment because the State failed to bring him to trial within 120 days of his return to Delaware.[67] Harris maintains that, in light of Mauro, the Governor's Warrant used in this case constitutes a "written request for temporary custody" that triggers the UAD's 120-day time limit.[68] Finally, Harris acknowledges that the UAD's 120-day time limit may be waived by a defendant or tolled by a properly granted continuance, but maintains that he never waived his rights and the State never sought a continuance for good cause shown within the 120-day time limit.[69]

         In opposition, the State argues that the UAD's 120-day time limit is inapplicable to this case because the State returned Harris to Delaware on a Governor's Warrant.[70] According to the State, a Governor's Warrant is separate and distinct from a § 2543 "written request for temporary custody" that triggers the UAD's 120-day time limit.[71]

         Further, the State argues that, if the Court finds that the UAD's 120-day time limit applies, Harris waived his rights under § 2543 when he agreed to a trial date more than 120 days after his return to Delaware.[72] If the Court finds the UAD applicable and finds that Harris did not waive his rights, the State argues that good cause existed to hold trial more than 120 days after Harris's return to Delaware.[73]


         A. The Uniform Agreement on Detainers

         In 1969, the Delaware legislature enacted the UAD, [74] which "is designed in part to protect the rights of prisoners who have outstanding detainers lodged against them by another jurisdiction."[75] The preamble elaborates that "charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation."[76] As such, the purpose of the UAD is "to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints."[77]

         Pursuant to the express language of 11 Del. C. § 2543(c), once the State has lodged a detainer and made a written request for temporary custody, it must bring the untried indictment, information, or complaint to trial within 120 days of the defendant's arrival in Delaware.[78] A detainer is "a request by the receiving state for the sending state to detain the prisoner or to send notification when the prisoner is about to be released."[79] Under the UAD, a detainer is distinct from a "written request for temporary custody."[80] The detainer serves to put officials in the sending State "on notice that the prisoner is wanted in another jurisdiction, " whereas a "written request" represents "[f]urther action [which] must be taken by the receiving State in order to obtain the prisoner."[81]

         Once the receiving State lodges a detainer against a prisoner with sending State prison officials, the UAD, by its express terms, becomes applicable and the receiving State must comply with its provisions.[82] The Court may toll the UAD's 120-day time limit upon a showing of good cause in open court in the presence of the defendant or the defendant's counsel.[83] If the State fails to bring the matter to trial within 120 days or within the time allowed by a properly sought and granted continuance, the UAD requires ...

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