State v. Murray

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1602007591
IMEIR MURRAY,
Defendant.
Submitted: October 25, 2016
Decided: January 11, 2017
Opinion Issued: April 13, 2017
Corrected: Apri127, 2017
OPINION
Upon Defendant Imeir Murray ’s Motion to Dismiss,
DENIED.
Cynthia F. Hurlock, Deputy Attorney General, Department of JuStice, Wilmington,
Delaware, Attorney for the State of Delaware.
Colleen E. Durkin, Esquire, and Matthew C. Buckworth, Esquire, Collins &
Associates, Wilmington, Delaware, Attorneys for Defendant Imeir Murray.
WALLACE, J.
I. INTRODUCTION
Just over a year ago, Delaware decriminalized the act of possessing a small
quantity of marijuana for personal use. This motion, brought by a criminal
defendant arrested shortly after that enactment, brings to the fore some
undereXamined (or, more likely, some wholly unanticipated) consequences of that
change.
II. STATUTORY BACKGROUND:
DELAWARE’s FAsT-CHANGING DRUG LAwsl
In 2011, at the urging of the Drug Law Revisions Committee, Delaware
repealed significant portions of its extant criminal drug code and replaced it with
laws creating three main drug crimes.2 The least serious drug offenses - those
prohibiting simple possession of controlled substances were: (l) re-written;
(2) enumerated as Sections 4763 and 4764 of Title 16; (3) placed within the
original jurisdiction of the Court of Common Pleas; and, (4) assigned the lowest
criminal penalties.3
l For simplicity’s sake, the statutory history recounted here and referenced throughout this
Opinion will speak only to the changes made and the present statutory language applicable to
adults who violate Delaware’s marijuana and firearms laws.
2 See Del. H.B 19 syn., 146th Gen. Assem., 78 Del. Laws ch. 13 (2011).
3 See id. (noting the new drug laws classified “the simplest form of unlawful [drug]
possession” _ i.e., those defined in the new 16 Del. C. §§ 4763(a) & 4764(b) _ as Delaware’s
lowest grade misdemeanors); ia’. at § 58 (stating simple possession of any controlled substance
other than marijuana became a class B misdemeanor); id. at § 61 (stating simple possession of
marijuana became an unclassified misdemeanor).
_2_
That same 2011 Act also introduced a new felony to the Delaware Criminal
Code. That crime defined a brand-new set of persons prohibited from possessing
or controlling certain weapons:
Any person, if the deadly weapon is a semi-automatic or
automatic firearm, or a handgun, who, at the same time,
possesses a controlled substance in violation of § 4763,
01~ § 4764 OrTirle 16.4
As the rather simple language manifests, this statute created this new low-grade
felony “for a person who possesses a handgun or semi-automatic or automatic
firearm at the same time as the person possesses a controlled substance.”5
Four years later, Delaware reduced the penalties for simple possession of
marijuana even further. The provisions outlawing the illicit possession of
marijuana were: (1) again re-written; (2) still enumerated as Section 4764 of Title
16; (3) conferred split original jurisdiction between the Court of Common Pleas
and the Justice of the Peace Court; and, (4) assigned the lowest criminal
misdemeanor and civil violation status.6 As applicable to this case, the law now
4 Ia’. at § 5 (codified at ll Del. C. § 1448(a)(9) (2011) [hereinafter “PFBPP”]).
5 Ia'. at syn.
6 See Del. H.B. 39 syn., 148th Gen. Assem., 80 Del. Laws ch. 38 (2015); id. at § 2
(creating new civil violation for possession of less than an ounce of marijuana for personal use
and leaving that offense within § 4764 of Title 16); id. at § 5 (conferring original jurisdiction
over criminal marijuana possession offense to the Court of Common Pleas and original
jurisdiction over civil marijuana possession violation to the Justice of the Peace Court).
_3_
provides:
Any person 18 years of age or older, but under 21 years
of age, who [l851 A.2d 1269, 1274-75 (Del. 2003) (explaining Delaware’s lesser
included doctrine and procedures for jury trials); Ramsey v. State, 996 A.2d 782, 784-86 (Del.
2010) (explaining the same for bench trials).
'8 DEL. CODE ANN. tit. 11, § 206(b)(1) (2015). see also Del. super. Ct. Crim. R. 31(¢)
(“Conviction of lncluded Offense. The defendant may be found guilty of an offense included in
the offense charged in accordance with 11 Del. C. § 206.”); Waro' v. State, 575 A.2d 1156, 1158
(Del. 1990) (“A defendant may be convicted of a crime for which he has not been indicted if all
of the elements of that crime are included in the definition of the crime with which he has been
charged.”).
And, by virtue of its return, “a defendant is . . . on notice of all lesser-
vl9
included offenses under an offense charged in an indictment While his is now a
lesser-included civil violation, Murray has been no less “on notice” that a liability
finding for that possession of marijuana violation was possible. That this has been
determined pre-trial is of no moment.
“Leave to amend an indictment to state a lesser-included offense is a matter
”20 Superior Court Criminal Rule 7(e)
within this Court’s discretion to permit.
permits such an amendment “if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced.”Zl Because Murray was
already on notice of potential lesser-included offenses of the indicted marijuana
possession crime, he is hardly prejudiced by amendment of the indictment to
charge the civil violation and proceedings on that civil violation.22 “Dismissal” of
the marijuana offense is not required.
19 State v. Grossberg, 1998 WL 278391, at * 1 (Del. Super. Ct. Apr. 13, 1998).
20 Grossberg, 1998 WL 278391, at * 1 (citation omitted).
21 Del. Super. Ct. Crim. R. 7(e).
22 For the reasons mentioned above, how precisely to proceed on that civil violation is a
thorny issue still to be resolved by the Court and counsel. See, e.g., supra notes 14 & 15. That
issue, however, need not be resolved in this Opinion.
_9_
B. UNDER THE PLAIN READING oF TITLE 11, SECTIoN 1448(a)(9), ONE
CANNOT POSSESS A SEMI-AUTOMATIC HANDGUN AND MARIJUANA,
REGARDLESS oF THE AMoUNT, “AT THE SAME TIME.” IF THIS
STATUTORY PROHIBITION IS TO BE ELIMINATED, IT IS UP TO THE
GENERAL ASSEMBLY, NoT THIs CoURT, To Do So.
ln Count l of the indictment, Murray is charged under 11 Del. C.
§ 1448(a)(9). This prohibits the possession of a firearm by “[a]ny person, if the
deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the
same time, possesses a controlled substance in violation of § 4763, or§ 4764 of
Title 16.”23 Murray argues that because he possessed a “personal use quantity”, he
cannot be found guilty under the PFBPP statute. Not so.
As our Supreme Court recently reminded,
[W]e do not sit as an iiberlegislature to eviscerate proper
legislative enactments. lt is beyond the province of the
courts to question the policy or wisdom of an otherwise
valid law. Rather we must take and apply the law as we
find it, leaving any desirable changes to the General
Assembly.24
Murray doesn’t agree. He thinks that this Court should ignore the plain language
of an undoubtedly properly enacted criminal statute, because in his view the
General Assembly “could not possibly have contemplated” and “would have never
imagined a scenario” where one’s illegal possession of marijuana - now a civil
23 DEL. CODE ANN. tit. 11, § 1148(3)(9) (2015).
24 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1259 (Del. 2011) (citation
omitted).
_10_
offense - could prohibit one from simultaneously possessing a semi-automatic
handgun.25
“The role of the judiciary in interpreting a statute is to determine and give
”26 When the statute itself is unambiguous, then its
effect to the legislature’s intent.
plain language controls.27 “ln that instance, a court must apply the statutory
language to the facts of the case before it.”28 The words of 11 Del. C.
§ 1448(a)(9) are plain and simple. As such, this Court’s only job is to apply the
literal words of the statute to the facts of Murray’s case.29
Eleven Del. C. § 1448(a)(9) prohibits simultaneous possession of a firearm
and a controlled substance. Mere simultaneous possession of both items is all that
is required for a conviction under the statute.30
25 Def.’s Reply 2.
26 Ress v. smie, 990 A.2d 424, 428 (Del. 2010) (eiting Le ran v. mdependenee Meli, lne.,
940 A.2d 929, 932 (Del. 2007)).
27 See In re Adopiion of Swanson, 623 A.2d 1095, 1096-97 (Del. 1993) (“lf the statute as a
whole is unambiguous and there is no reasonable doubt as to the meaning of the words used, the
court’s role is limited to an application of the literal meaning of those words.”); Hoover v. State,
958 A.2d 816, 819 (Del. 2008) (“lf the language of the statute is unambiguous, the plain meaning
of the words controls.”) (citing lngram v. Thorpe, 747 A.2d 545, 547 (Del. 2000)).
28 Ress, 990 A.2d, ar 428.
29 See DiSiefano v. Watson, 566 A.2d 1, 4 (Del. 1989).
30 see ran rim v. s¢eze, 2016 WL 4978436, st *3 (Dei. sept 16, 2016) (noting that it is
drug possession that is the required element of 11 Del. C. § 1448(a)(9), not operating a drug lab
or manufacturing the subject drug) (emphasis added), ajj"g State v. Van Vliei, 2015 WL
5554058, at * 1 (Del. Super. Ct. Sept. 18, 2015) (distinguishing between manufacturing and
_11_
Still, Murray argues, his alleged possession of a “personal use quantity”
cannot render him a person prohibited under § 1448(a)(9) because the drug
possession statutes were recently amended to “decriminalize the possession or
”31 that possessory act, in his
private use of a personal use quantity of marijuana;
case, is now only a civil violation with a financial penalty.32 Even so, possession
of marijuana in any amount, a “personal use quantity” or not, remains illegal under
Delaware law. ln fact, it still remains an act “in violation of . . . § 4764 of Title
16.”33
To gain a PFBPP conviction, the State need only prove that Murray
possessed both the handgun and the marijuana at the same time. Murray correctly
points out that the language of 11 Del. C. § 1448(a)(9) was added to the statute in
2011 during Delaware’s drug law revisions.34 Murray incorrectly concludes that
possessing a controlled substance and finding that it is drug possession only that need be proven
under ll Del. C. § l448(a)(9)).
31 Del. H.B. 39 syn., l48th Gen. Assem., 80 Del. Laws ch. 38 (2015).
32 See DEL. CODE ANN. tit. 16, § 4764(c) (2015) (“Any person [who knowingly or
intentionally possesses a personal use quantity of a controlled substance or a counterfeit
controlled substance classified in§ 4714(d)(19) of this title, except as otherwise authorized by
this chapter] shall be assessed a civil penalty of $lOO for the first offense . . . .”).
33 See DEL. CODE ANN. tit. 11, § 1448(a)(9) (2015) (qualifying one as a person prohibited
from possessing a semi-automatic firearm or a handgun when he, at the same time, possesses a
controlled substance “in violation of § 4763, or § 4764 of Title 16.”).
34 See Del. H.B. 19 syn., 146th Gen. Assem., 78 Del. Laws ch. 13 (2011).
_12_
this change meant that “the new (a)(9) section was developed to criminalize drug
dealing while in possession of a gun” alone, not mere simultaneous possession of
both items.35 The plain language of the statute requires only simple (but illicit)
possession of a controlled substance. And that is just what the State alleges here.
Undeterred, Murray goes on to assert that “[t]o prosecute individuals who
are allegedly in possession of a firearm while committing a civil violation of
marijuana possession is clearly not consistent with the General Assembly’s intent
when it drafted 11 Del. C. § 1448(a)(9).”36 Because there was no such thing as a
civil marijuana violation when that PFBPP provision was first introduced, the
General Assembly certainly could have had no such intent then. But a court looks
behind the statutory language only if the statute is ambiguous37 - which it is not
here. And the General Assembly is presumed to be aware of extant statutes
relating to the same subject matter when it enacts a new provision.38 For example
35 Def.’s Mot. to Dismiss 11 13 (emphasis in original).
36 Ia'. Murray never really develops this statement into a claim of statutory ambiguity,
although that is in effect what he argues. See Coastal Barge Corp. v. Coastal Zone lna'us.
Control Ba’., 492 A.2d 1242, 1246 (Del. 1985) (“Ambiguity may also arise from the fact that
giving a literal interpretation to words of the statute would lead to such unreasonable or absurd
consequences as to compel a conviction that they could not have been intended by the
legislature.”).
37 See, e.g., Ramirez v. Mura’ick, 948 A.2d 395, 398 (Del. 2008); Leatherbury v. Greenspun,
939 A.2d 1284, 1288 (Del. 2007); State v. Cooper, 575 A.2d 1074, 1075-76 (Del. 1990).
38 See Del. Dep’t ofLabor v. Minner, 448 A.2d 227, 229 (Del. 1982) (“lt is assumed that
when the General Assembly enacts a later statute in an area covered by a prior statute, it has in
mind the prior statute and therefore statutes on the same subject must be construed together so
_13_
here, when it made the lowest class of illegal marijuana possession a civil, rather
than criminal, offense after putting § 1448(a)(9) on the books just fifty-one months
earlier. lf the General Assembly wanted to then exclude the newly-minted civil
offense of possessing a “personal use quantity” of marijuana from triggering that
recent PFBPP provision, it could have easily done so. lt did not.
When “a statute is unambiguous, and an application of the literal meaning
of its words would not be absurd or unreasonable, there is no legal basis for an
interpretation of those words by the court.”39 But even if the Court needed to
consult other sources it might to discern § 1448(a)(9)’s meaning, Murray’s
supposition would fair no better.
The Synopsis of the enactment that created the new weapons prohibition was
clear:40 it was created “for a person who possesses a handgun or semi-automatic or
automatic firearm at the same time as the person possesses a controlled
that effect is given to every provision unless there is an irreconcilable conflict between the
statutes, in which case the later supersedes the earlier.”) (quoting Green v. Cnly. Council of
Sussex Cnly., 415 A.2d 481, 484 (Del. Ch. 1980)). See, e.g., State v. Hollobaugh, 297 A.2d 395,
396 (Del. Super. Ct. Oct. 25, 1972). See also Cooper, 575 A.2d at 1076-77 (the General
Assembly is also presumed to be aware of judicial decisions interpreting similar or identical
language).
39 Dzszefene, 566 A.2d, et 4.
40 see Cerper v. New Ceszze Cmy. Bd. efEd., 432 A.2d 1202, 1205 (Del. 1981) (stating the
synopsis of a bill is “a proper source from which to glean legislative intent”); Hoover v. State,
958 A.2d 816, 820 (Del. 2008) (“[T]his Court may refer to parts of the legislative record to
establish the purpose of legislation where the record reveals more information about the
enactments.”).
_14_
substance.”41 Far from being an unreasonable or absurd prohibition, it is one
similar, if not more narrow, than that found in federal42 and sister states’ statutory
schemes.43 As federal courts have without fail found, such a law “proportionally
advances the government’s legitimate goal of preventing gun violence”44 by
aiming “to keep guns out of the hands of presumptively risky people.”45 And that
may rightly include those who illegally use or possess marijuana46
41 Del. H.B. 19 syn., 146th Gen. Assem., 78 Del. Laws ch. 13 (2011) (emphasis added).
42 Compare 18 U.S.C. § 922(g)(3) (under the federal analogue it is unlawful for anyone
“who is an unlawful user of or addicted to any controlled substance” to possess a firearm), with
DEL. CODE ANN. tit. 11, § 1448(a)(9) (2015) (under Delaware law it is unlawful for one to
possess a semi-automatic firearm or a handgun when he, “at the same time, possesses a
controlled substance in violation of” Delaware drug possession statutes). While the federal
statute prohibits a certain group of persons - those who unlawfully use drugs or are addicted to
them - from possessing a firearm, the Delaware statute requires that the gun and drugs be
possessed “at the same time.”
43 see Uttttea states v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) distng 25 states and D.C.
that had by that time outlawed possession or carrying of firearms by habitual drug users).
44 Uttttea states v. Carter, 750 F.3d 462, 470 (4th Cir. 2014). see, e.g., Uttttea states v_
Pattetsatt, 431 F.3d 832, 835-36 (5th Cir. 2005); Yancey, 621 F.3d 681, 684; Unttea states v.
seay, 620 F.3d 919, 924-25 (sth cir. 2010); Uttttea states it Dagatt, 657 F.3d 998, 999-1000
(9th Cir. 2011); Unttea states v. Catttaa, 923 F. supp. 2d 843, 850-51 (w.r). ve. 2013);
Roberge v. Unitea’ States, 2013 WL 4052926, at *18-19 (E.D. Tenn. Aug. 12, 2013).
45 Yancey, 621 F.3d at 683 (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112
(1983)). See Unitea' States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010) (noting that in
passing the federal prohibition, Congress expressed its intention to “keep firearms out of the
possession of drug abusers, a dangerous class of individuals”).
46 see thsatt v. Lytteh, 835 F.3d 1083, 1094 (9th cit 2016) (“it is beyond dispute that
illegal drug users, including marijuana users, are likely as a consequence of that use to
experience altered or impaired mental states that affect their judgment and that can lead to
irrational or unpredictable behavior.”); Carter, 750 F.3d, at 470 (“At bottom, we conclude that
the empirical evidence and common sense support the government’s contention that drug use,
including marijuana use, frequently coincides with violence.”); Yancey, 621 F.3d at 687
_15_
Still, it may well be that during the many recent writes and re-writes of our
drug laws the General Assembly never considered the use of non-criminal
marijuana possession as a potential element of the newest PFBPP crime. Sure, it’s
conceivable that if it ever did, the legislature might choose to eliminate non-
criminal marijuana possession as an element of that compound weapons crime.
But, the legislature has not done so. And, this Court cannot do so in its stead.47
The unambiguous current language of § 1448(a)(9), the other clues one might use
(if needed) to understand that language, and the easily discerned policy behind that
language leaves the reader to conclude that language means precisely what it says
_ in Delaware one is prohibited from possessing a handgun and even a small
amount of marijuana at the same time,
(observing when discussing the federal statute’s application to an “unlawful user” of marijuana:
“We have observed before that there is no constitutional problem with separating guns and
drugs.”).
47 see seth v. state, 592 A.2d 436, 440 (De1. 1991) (“[W]heu statutory language is beth
clear and consistent with other provisions of the same legislation and with legislative purpose
and intent, a court must give effect to that intent because it is for the legislature, and not the
courts, to declare the public policy of the State.”). See also State v. Cephas, 637 A.2d 20, 28
(Del. 1994) (“lt is the General Assembly and not this Court which has the prerogative to
legislate. This Court’s role is to construe existing legislation.”).
_16_
V. CONCLUSION
F or the foregoing reasons, Murray’s motion to dismiss the two counts of his
lndictment must be DENIED.
IT IS SO ORDERED.
@aa>
Paul R. Wallace, Judge
_17_