Willingham v. State ( 2023 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MALIK WILLINGHAM, §
§
Defendant Below, § No. 189, 2022
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID Nos. N1910009457A
§ N1910009457B
Appellee. §
Submitted: February 24, 2023
Decided: April 27, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) After an initial trial that resulted in a mistrial, in November 2021 a
Superior Court jury found the defendant-appellant, Malik Willingham, guilty of two
counts of drug dealing (cocaine and methamphetamine), possession of a firearm
during the commission of a felony (“PFDCF”), and possession of a firearm by a
person prohibited (“PFBPP”).1 The Superior Court sentenced Willingham to a total
1
The PFBPP charge was tried to the same jury as a separate “B” case, after the jury reached its
verdict on the other charges.
of forty-one years in prison, suspended after a total of eight years for decreasing
levels of supervision. This is Willingham’s direct appeal.
(2) The evidence presented at trial reflects that on the morning of October
15, 2019, New Castle County police officer Mark Scullion was working as a member
of the Mobile Enforcement Team, which was assigned to perform proactive patrol
to address quality-of-life issues, including drug activity. As the officer drove along
the main road entering the Sparrow Run neighborhood, a car with heavily tinted
windows drove past him. Officer Scullion noticed an odor of marijuana as the car
passed. He ran the license plate and discovered that the vehicle’s registration was
suspended. He then made a U-turn, intending to conduct a traffic stop based on the
suspended registration, but the car had parked at a nearby convenience store and the
driver, Willingham, had exited the vehicle to enter the store. Willingham returned
to the car and drove across the road to another convenience store. Officer Scullion
conducted a motor vehicle stop in the parking lot of the second store.
(3) As Officer Scullion approached the driver’s side door, he could smell
the odor of marijuana and observed a marijuana blunt on the center console. Officer
Scullion asked Willingham if he had marijuana, and Willingham said that he did.
Officer Scullion decided to detain Willingham to search him and the car. The officer
asked Willingham to exit the car, and placed him in handcuffs and told him that he
was not under arrest but was being detained. Willingham admitted that he had a
2
small amount of marijuana in his pocket. The officer searched Willingham and
found $415 in cash.
(4) Other officers from the Mobile Enforcement Team began arriving on
the scene, and Officer Scullion and the other officers searched the car. The officers’
body-worn cameras captured much of the search. In a bookbag that was on the front
passenger seat, the officers found 51 small orange containers of suspected crack
cocaine, 19 small blue containers of suspected methamphetamine, and a digital scale.
In the pocket of the driver’s side door, the officers found a loaded .223 rifle magazine
wrapped in a plastic bag and rubber gloves. In the trunk of the car, the police officers
found a large amount of personal property, including clothing, shoes, and toys.
Behind the personal property, in the section of the trunk behind the rear passenger
seat of the car, they found an unloaded Ruger Sturm .223 rifle.
(5) A forensic DNA analyst testified that a DNA swab taken from the
rifle’s grip produced a single-source DNA profile that matched Willingham’s
reference sample. A forensic analytical chemist testified that 22 of the orange
containers had crack cocaine, and he estimated with a 95% probability that the 51
containers of crack cocaine weighed a total of 3.43 grams, plus or minus .15 grams.
He testified that 15 blue containers had methamphetamine and estimated with a 95%
probability that the 19 blue containers weighed a total of 15.5 grams, plus or minus
.056 grams. A member of the Delaware State Police Drug Task Force opined that
3
the amount and packaging of the drugs, the presence of paraphernalia consistent with
drug dealing, the absence of paraphernalia for drug consumption, and the fact that
Willingham had $415 in cash demonstrated that the drugs were meant for
distribution.
(6) The car was registered to Willingham and Kevin Mahoney, who
testified that he had co-signed a loan with Willingham to purchase the car, when
Willingham and Mahoney’s daughter were in a relationship, but had not driven the
car since the purchase. Police contacted Mahoney after Willingham’s arrest to
retrieve the vehicle. Mahoney cleaned out the car and discarded many items, and
his daughter returned others to Willingham. Because the police officers did not
preserve the backpack or the clothing as evidence, the court provided the jury with
a missing-evidence instruction. The defense argued that the dual registration and
the presence of certain items in the car suggested that there were other users or
drivers of the car. The defense also argued that the items in the trunk could have
transferred Willingham’s DNA onto the rifle.
(7) Willingham was represented by counsel before and during his
November 2021 trial. After his conviction, Willingham asked his counsel to file a
motion to withdraw. The Superior Court held a hearing on December 17, 2021, and
the court granted the motion. Willingham proceeded pro se after that time, including
in this appeal.
4
(8) Willingham asserts three claims of error in his opening brief on appeal.
First, he contends that the Superior Court erred by declining to hear the merits of a
pro se motion to suppress that he submitted when he was represented by counsel.
Willingham asserts that he attempted orally “several times” to challenge the search
as unconstitutional. On June 8, 2021, Willingham filed a pro se motion to suppress
the evidence obtained from the search. The Superior Court referred the motion to
Willingham’s counsel. On June 14, 2021, at the final case review before the first
trial, Willingham argued that his counsel was ineffective for not filing a motion to
suppress, argued that the evidence should be suppressed, and asked the court to
consider his motion on the merits.2 The court declined to decide the motion on the
merits, stating that “[i]t is a rule of this court that the court does not entertain
applications by people who are represented by counsel.”3 The court also explained
that while certain decisions are the client’s to make, others are the lawyer’s to make,
and the decision about whether to file a motion to suppress was within counsel’s
professional judgment.4
(9) Willingham raised the issue again during the second trial and in a letter
that he sent to the court before that trial. The Superior Court again explained that it
was counsel’s decision whether to file a suppression motion, and that three different
2
App. to Answering Br. at B23-27.
3
Id. at B27.
4
Id. at B27-31.
5
attorneys had determined that they did not have a good faith basis to file a
suppression motion, including after having the benefit of sworn testimony during the
first trial.5 The court declined to consider the suppression issue on the merits.
(10) The Superior Court did not err by declining to consider Willingham’s
pro se motion to suppress. Under Superior Court Rule 47, the Superior Court “will
not consider pro se applications by defendants who are represented by counsel unless
the defendant has been granted permission to participate with counsel in the
defense.”6 Willingham “was not granted permission to participate with counsel in
the defense and the Superior Court was not required to consider his pro se motion to
suppress.”7
(11) Second, Willingham argues that the police search of his person and
vehicle were unconstitutional, and the resulting evidence should have been
suppressed. Specifically, he argues that the searches exceeded the “scope and initial
justification” of the traffic stop, without probable cause for the warrantless searches.
Because Willingham did not assert the merits of his claim in a properly presented
5
State v. Willingham, I.D. No. 1910009457A, Trial Transcript, at 11-13 (Del. Super. Ct. Nov. 2,
2021).
6
DEL. SUPER. CT. R. CRIM. PROC. 47.
7
Blenman v. State, 2016 WL 889551, at *3 (Del. Mar. 8, 2016); see also McGlotten v. State, 2008
WL 5307990, at *2 (Del. Dec. 22, 2008) (“[T]he record reflects that the Superior Court properly
refused to consider McGlotten’s motions [to compel and to suppress] when he was represented by
counsel.”).
6
motion, as discussed above, we review for plain error.8 We find no plain error in the
circumstances of this case.
(12) Police may lawfully search a vehicle without a warrant if the police
have probable cause to believe that the automobile is carrying contraband or
evidence of criminal activity.9 “Probable cause determinations are made by
evaluating the totality of the circumstances.”10 The record reflects that Officer
Scullion smelled an odor of marijuana emanating from the car that Willingham was
driving and of which he was the sole occupant; that the officer observed a marijuana
blunt on the center console when he approached the car; and that when Officer
Scullion asked Willingham if he had marijuana, Willingham admitted that he did.
These facts are sufficient to establish that Officer Scullion had probable cause to
believe that Willingham’s vehicle contained contraband or evidence of criminal
activity, including consumption of marijuana in a moving vehicle in violation of 16
Del. C. § 4764(d).11
8
Cf. Pollard v. State, 284 A.3d 41, 44 (Del. 2022) (applying plain error standard of review to
claim that Superior Court erred by failing to suppress evidence derived from vehicle search sua
sponte).
9
Id. at 46.
10
Id. (internal quotations omitted).
11
See id. at 47 (concluding that officers had probable cause to search a vehicle where the officers
smelled marijuana emanating from the vehicle, observed marijuana remnants in the center console
and on the floor of the vehicle, and observed a small nugget in the center console of the vehicle).
7
(13) As to the search of Willingham’s person, police may search a suspect
incident to a lawful arrest.12 “While a search typically occurs after an arrest, this
Court has held that where the arrest and search are nearly contemporaneous, the
search may precede the arrest, so long as the police do not use the search to establish
probable cause for the arrest.”13 Willingham arguably was not under arrest when
Officer Scullion searched him and found $415, but “he was arrested shortly
afterwards” and the police did not use the $415 to establish probable cause to arrest
him.14 Rather, the police had probable cause to arrest Willingham based on the drugs
and rifle that they found when they searched the vehicle. We find no plain error
arising from the searches in this case.
(14) Finally, Willingham asserts that the evidence presented at trial was
insufficient to establish that he possessed the drugs and weapons. Willingham did
not move for a judgment of acquittal, and we therefore review for plain error.15 After
reviewing the record, we conclude that a rational trier of fact, viewing the evidence
in the light most favorable to the State, could find that Willingham possessed the
drugs and rifle based on the evidence presented at trial, for purposes of convicting
12
Spencer v. State, 2018 WL 3147933, at *4 (Del. June 25, 2018).
13
Id. (internal quotations omitted).
14
Id.15
See Williamson v. State, 113 A.3d 155, 157 (Del. 2015) (“[I]t is well-settled that in a jury trial,
if a defendant fails to make a motion for acquittal to the trial court, the defendant has failed to
preserve the right to appeal the issue of the sufficiency of the evidence to convict, and we . . . apply
the plain error standard of review.”).
8
him of the drug charges and PFBPP.16 Proof of constructive possession is sufficient
to satisfy the possession element of the drug offenses and PFBPP.17 To establish
constructive possession, the State must show that a defendant (i) knew the location
of the contraband; (ii) had the ability to exercise dominion and control over the
contraband; and (iii) intended to guide the destiny of the contraband.18 The cocaine
and methamphetamine were located in a backpack on the passenger seat of the car
of which Willingham was co-owner, and of which he was the driver and sole
occupant. The firearm was in the trunk of that same vehicle and had Willingham’s
DNA on it, and ammunition that fit that gun was located in the pocket of the driver-
side door. Officers also located pieces of mail addressed to Willingham in the
vehicle, and Willingham’s former girlfriend returned items from the car to
Willingham after her father retrieved the car from impound. We conclude that the
evidence was sufficient to find that Willingham constructively possessed the drugs
and firearms, for purposes of finding him guilty of the drug offenses and PFBPP.19
16
See Farmer v. State, 844 A.2d 297, 300 (Del. 2004) (stating that the Court reviews claims of
insufficient evidence to determine whether any rational trier of fact, viewing the evidence in the
light most favorable to the State, could find the defendant guilty beyond a reasonable doubt).
17
See Lecates v. State, 987 A.2d 413, 418-421 (Del. 2009) (discussing the possession element of
drug-possession offenses and possession of a deadly weapon by a person prohibited, both of which
may be satisfied by proof of constructive possession, and contrasting that standard with the “more
limited” possession standard applicable to possession of a deadly weapon during commission of a
felony, which also requires proof that the deadly weapon was “physically available and accessible”
to the defendant during the commission of the felony).
18
Bradley v. State, 2018 WL 5304859, at *2 (Del. Oct. 24, 2018).
19
Cf. id. (concluding that evidence was sufficient to establish defendant’s constructive possession
of drugs found in the trunk of a car that was registered to the defendant’s mother where the
9
(15) To find Willingham guilty of PFDCF, the jury was required to
determine that Willingham actually or constructively possessed the gun and that the
gun was “physically available or accessible” to Willingham during the commission
of the underlying felony.20 “The elements of availability and accessibility, however,
do not require the weapon to be in the offender’s immediate physical possession or
within easy reaching distance of the offender.”21 This Court has observed that the
purpose of the PFDCF provision is to prevent a “non-violent” felony from becoming
violent, and the term “during the commission of a felony” as used in the PFDCF
statute “encompasses a somewhat extended time frame.”22
(16) This Court has held that the availability or accessibility element was
satisfied when a gun and drugs were found in the defendant’s bedroom, even though
the defendant was observed conducting drug transactions outside the home and was
arrested outside;23 drugs and guns were found in a handbag in the trunk of a car that
evidence included multiple documents with the defendant’s name that were found in the car, a bag
of men’s clothing that was found in the trunk, and multiple recent accounts of the defendant’s
possessing the car).
20
Maddrey v. State, 975 A.2d 772, 775 (Del. 2009); Lecates, 987 A.2d at 421 (“The State must
establish physical availability and accessibility in addition to proving actual or constructive
possession.”). We note that the court instructed the jury that they had to find that “the weapon was
in the immediate personal possession of, or under the immediate control of the defendant so that
it was physically available or accessible during the commission of the crime” in order to find
Willingham guilty of PFDCF.
21
Pauls v. State, 476 A.2d 157, 160 (Del. 1984), quoted in Lecates, 987 A.2d at 419-20.
22
Lecates, 987 A.2d at 420 (internal quotations omitted).
23
See Childress v. State, 721 A.2d 929, 931-32 (Del. 1998) (“Here, a rational fact finder could
conclude that Childress kept the firearm in such close proximity to his drug inventory that it was
in his possession during the commission of the felony of drug trafficking. There was thus ample
10
an officer had seen the defendant driving, which was parked outside the home of the
defendant and his girlfriend, and the defendant and his girlfriend were inside the
home when the police executed a search warrant;24 a rifle and handgun “were located
less than 25 feet from the place where the narcotic drugs were discovered;”25 and
handguns were found in a locked safe in the defendant’s bedroom, where drugs and
drug paraphernalia were also located.26 We find no plain error in Willingham’s
conviction for PFDCF on the basis of insufficient evidence.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
evidence to support the jury’s determination that Childress had immediate access to the firearm
during the ‘continuing felony’ of his drug-dealing operation, and it is irrelevant that the firearm
was unloaded when it was found in the search.”).
24
Brooks v. State, 2007 WL 1470649, at *2 (Del. May 22, 2007); see also id. (stating that in
Kornbluth v. State, 580 A.2d 556 (Del. 1990), “weapons found in close proximity to drugs in the
same room were deemed sufficient to support a conviction for possession of deadly weapons
during the commission of a felony, because the weapons were physically available or accessible
to the defendant during the drug offense even though the defendant was not present at the time of
the search”).
25
Wilson v. State, 343 A.2d 613, 618 (Del. 1975).
26
Maddrey v. State, 975 A.2d 772, 777-79 (Del. 2009); see also id.at 773 (“Because the record
reflects that the evidence was sufficient for a jury to reasonably infer that the handguns were
available and accessible during the course of Maddrey’s continuing felonies of Possession with
Intent to Distribute Crack Cocaine and Maintaining a Dwelling for Keeping Controlled
Substances, the judgment of the Superior Court must be affirmed.”).
11