Barnett v. State, 66

• Decision Date: 18 February 1997
• Docket Number: No. 66,1996,66
• Citation: 691 A.2d 614
• Parties: Elijah G. BARNETT, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 614

691 A.2d 614

Elijah G. BARNETT, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 66, 1996.

Supreme Court of Delaware.

Submitted: Feb. 18, 1997.

Decided: March 20, 1997.

Upon appeal from the Superior Court. AFFIRMED IN PART, REVERSED IN PART.

Court Below--Superior Court of the State of Delaware, in and for New Castle County; Cr.A. No. IN95-07-1054-6 and IN95-07-1058-62.

Jeffrey K. Martin, Wilmington, for appellant.

Timothy J. Donovan, Jr., Deputy Attorney General, Wilmington, for appellee.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT, and BERGER, JJ. (constituting the Court en Banc)

HOLLAND, Justice:

Following a jury trial in the Superior Court, the defendant-appellant, Elijah Barnett ("Barnett"), was convicted of Trafficking In Cocaine, Possession with Intent To Deliver Cocaine, Use of a Vehicle For Keeping Controlled Substances, Reckless Endangering in the Second Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Deadly Weapon by a Person Prohibited, Possession of Drug Paraphernalia, and Resisting Arrest. Barnett was found not guilty of Reckless Endangering in the First Degree and Use of a Dwelling For Keeping Controlled Substances. This is Barnett's direct appeal.

Barnett has raised two primary issues before this Court. First, he contends that the drug convictions and the weapons' convictions should be reversed. According to Barnett, the Superior Court abused its discretion by refusing to hear the merits of a motion to suppress the physical evidence of those crimes. Second, Barnett contends that the evidence presented by the State at trial was insufficient to sustain his convictions for the weapons' offenses. Specifically, Barnett contends that the State has not established that he had possession of a firearm, as the term "possession" is used in the relevant statutes.

This Court has concluded that Barnett's first contention is without merit. The Superior Court properly exercised its discretion in declining to hear the merits of an untimely motion to suppress that was filed by Barnett's trial attorney. Barnett's second contention, however, is meritorious. The record reflects that there was insufficient evidence to sustain Barnett's convictions of the weapons' offenses. Accordingly, the judgments of the Superior Court are affirmed in part and reversed in part. ¹

Facts

On May 2, 1995, the City of Newark Police Department received a telephone call from a confidential informant indicating that Barnett had traveled to New York by train to pick up cocaine. The informant provided Barnett's address. The informant also described the car that Barnett had driven to the train station.

The police officers contacted Barnett's stepmother ("Mrs. Barnett") at her place of employment. Mrs. Barnett told the police that the car described by the informant belonged to her, although it was registered in her incarcerated husband's name. Mrs. Barnett consented to the police searching her car. She also consented to the police searching her apartment, which was located at the address the informant had provided. She lived there with Barnett and her two minor sons.

After unsuccessfully looking for the car at the train station, the police proceeded to Mrs. Barnett's apartment. The police found the car, unoccupied, in the parking lot to the apartment complex. While the police were waiting for other officers to arrive, they saw Barnett leaving the apartment carrying a backpack.

Barnett got into the car that had been described by the informant. The police approached the car and identified themselves. Barnett backed out of the parking space and began to move forward. The police ordered Barnett to stop the car. One officer opened the driver's side door and told Barnett to put the gear lever in park. Instead of stopping, Barnett accelerated, striking the other officer with the open car door.

Barnett lost control of the automobile almost immediately and crashed into a sign at the parking lot exit. Barnett fled on foot, leaving his backpack in the car. The police then searched the motor vehicle. Inside of the backpack, they found a plastic bag containing crack cocaine, several vials containing powder cocaine, and assorted drug paraphernalia.

The police officers then went to search Mrs. Barnett's apartment. She was at home by now and renewed her prior consent for them to search. She directed the police to a bedroom that Barnett shared with her two minor sons. In the closet of Barnett's bedroom, the police found a bag that contained an empty box for a firearm and gun cleaning equipment. They also found a locked safe in the bedroom closet.

As the police continued to search, they found a locked box in the hall linen closet. The police did not find a key to the locked box. Mrs. Barnett told the officers that the locked box did not belong to her. She also asked the police to remove it from her home.

The officers took the locked box and the safe to the police station. Both containers were opened by force. Inside of the safe, the police found an electronic scale and drug paraphernalia. The locked box that had been taken from the hallway linen closet contained a pistol, ammunition, and a bag of quarters.

Suppression Motion Untimely

Drug and Weapons' Convictions

Barnett's initial challenge is directed at all of his convictions for drug-related and weapons' offenses. According to Barnett, the Superior Court improperly refused to hear the merits of his trial attorney's motion to suppress the introduction into evidence of certain physical items that were seized by the police. The Superior Court denied the motion to suppress because it was not filed on time.

The record reflects that Barnett was indicted in July 1995. A public defender was appointed to represent him. A privately retained attorney was substituted as Barnett's trial counsel on September 15, 1995.

Barnett's new trial counsel filed a motion to suppress on the morning of trial, November 13, 1995. The record reflects, however, that the pre-trial order stated that all motions were to be filed by September 20, 1995. In the absence of any exceptional circumstances, the motion to suppress had to be filed by that date.

The Superior Court concluded that the change in representation did not excuse Barnett's new trial counsel from reviewing the record and filing a timely motion to suppress. The trial judge did not find any exceptional circumstances present. Accordingly, the trial judge declined to hear the merits of the untimely motion to suppress. The record reflects that action was a proper exercise of the broad discretion vested in the Superior Court to enforce its rules of procedure and pre-trial orders. See Super.Ct.Crim.R. 12(b)(3), 17.1; see also Gebhart v. Ernest DiSabatino & Sons, Inc., Del.Supr., 264 A.2d 157 (1970).

Barnett acknowledges that he cannot raise the ineffectiveness of his trial counsel as an issue in this direct appeal. Duross v. State, Del.Supr., 494 A.2d 1265 (1985). Instead, he has requested this Court to invoke the plain error "interest of justice" exception provided for in Supreme Court Rule 8. ² We decline to do so. The appropriate remedy is a motion for postconviction relief pursuant to Rule 61 of the Superior Court's Rules of Criminal Procedure. Cf. Dixon v. State, Del.Supr., 581 A.2d 1115 (1990); Braxton v. State, Del.Supr., 479 A.2d 831 (1984). Accordingly, the judgments that were entered following Barnett's drug convictions are affirmed.

Firearm

Possession During the Course of a Felony

Physically Available or Accessible

Barnett was convicted of Possession of a Firearm During the Commission of a Felony. 11 Del.C. § 1447A ("Section 1447A"). Barnett contends that the evidence presented at trial was insufficient to sustain his conviction of that offense. The seminal decision by this Court with regard to conviction for Possession of a Firearm During the Commission of a Felony is Mack v. State, Del.Supr., 312 A.2d 319 (1973).

In Mack, this Court was required to construe the prior statutory offense of Possession of a Deadly Firearm During the Commission of a Felony. ³ This Court construed the word "possession" in that statute as encompassing the elements of availability and accessibility. Mack v. State, 312 A.2d at 322. In Mack, the defendant was convicted of Possession of a Narcotic Drug with Intent to Sell and Possession of a Deadly Firearm During the Commission of a Felony. Id. at 320. In that case, the police found drugs and drug paraphernalia in a clothes dresser in the defendant's bedroom. Id. The police also found a revolver close at hand to the drugs in a chest of drawers in the defendant's bedroom, which was found to be the locus of his continuing felonious drug activities. Id. at 322. This Court held that the State's evidence established a contemporaneous nexus between the drug felony and the firearm and also satisfied the available and accessible definition of possession as used in the statute.

Following Mack, in a trilogy of cases with varying factual patterns, this Court has consistently held that to secure a conviction pursuant to Section 1447, the State is "required to establish that at the time [the defendant] was engaged in the designated predicate felony [he] had a deadly weapon 'physically available or accessible to him.' " Gardner v. State, Del.Supr., 567 A.2d 404, 413 (1989) (quoting Mack v. State, Del.Supr., 312 A.2d 319, 322 (1973)); see Kornbluth v. State, Del.Supr., 580 A.2d 556 (1990); Lewis v. State, Del.Supr., No. 273, 1989, Holland, J., (Mar. 19, 1990) (ORDER). In Kornbluth and Lewis, this Court concluded that the weapons were accessible to the defendants during the commission of the predicate felonious drug activities. See Kornbluth v. State, Del.Supr., 580 A.2d 556 (1990); Lewis v. State, Del.Supr., No. 273, 1989, Holland, J., (Mar. 19, 1990) (ORDER). Conversely, in Gardner, this Court held that "the required evidentiary nexus of physical...