State v. Murray

• Decision Date: 11 January 2017
• Citation: State v. Murray, 158 A.3d 476 (Del. Super. 2017)
• Parties: STATE of Delaware, v. Imeir MURRAY, Defendant.
• Court: Delaware Superior Court

158 A.3d 476

STATE of Delaware,

v.Imeir MURRAY, Defendant.

Superior Court of Delaware.

Submitted: October 25, 2016

Decided: January 11, 2017

Opinion Issued: April 13, 2017

As Corrected April 27, 2017

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.

OPINION

Paul R. Wallace, Judge

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 LAWS ¹

In 2011, at the urging of the Drug Law Revisions Committee, Delaware repealed significant portions of its extant criminal drug code and replaced it with laws creating three main drug crimes.² The least serious drug offenses—those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: (1) 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

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, or § 4764 of Title 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 provides:

Any person 18 years of age or older, but under 21 years of age, who [knowingly or intentionally possesses 1 ounce or less of marijuana in the form of leaf marijuana] shall be assessed a civil penalty of $100 for the first offense ....⁷

When simple possession of marijuana became a civil offense, no change was made to the 2011 PFBPP statute prohibiting a person from possessing a handgun and a controlled substance at the same time.

It is against this backdrop that the Court examines the viability of the two indicted offenses that Defendant Imeir Murray faces.

III. FACTUAL AND PROCEDURAL BACKGROUND

On February 11, 2016, Imeir Murray was asleep in his bedroom of his family's apartment when law enforcement came to execute an arrest warrant for his mother. A subsequent search of Murray's bedroom revealed two caches of marijuana. One was in his dresser; the other was on a lower shelf of his closet, mere feet from his head as he slept. On an upper shelf of that same closet was a loaded semi-automatic handgun. Police arrested Murray that day.

Murray was indicted by the Grand Jury for one count of possession of a firearm by a person prohibited and one count of possession of marijuana as an unclassified misdemeanor offense. At that time, it was believed that the marijuana weighed more than an ounce.⁸

After Murray's arrest and indictment, the State's drug lab report confirmed that the substance seized from Murray's bedroom was indeed marijuana. That report also showed that the total drug weight of both caches was 22.63 grams.⁹ Under Delaware law, one ounce of "leaf marijuana" or less is deemed a "personal use quantity" of marijuana.¹⁰ And now, under Delaware law, the simple possession of a personal use quantity of marijuana is a civil, not criminal, offense.¹¹

It is undisputed that the amount of marijuana found in Murray's room exposes him to, at most, a civil marijuana possession violation. It is disputed what legal effect that fact has on the two charges for which Murray was indicted and faces trial in this Court.¹²

IV. DISCUSSION

Murray suggests that his two indicted charges should be dismissed as a matter of law. First, as to the possession of marijuana count, Murray argues that because the weight of the drug actually recovered qualifies only as a "personal use quantity," he committed only a civil violation and the indicted drug count should be "dismissed" here. Second, as to the PFBPP count, Murray argues that the weapons possession statute wasn't intended to be applied in connection with a civil violation quantity of marijuana. So, he contends, his second indicted charge should also be dismissed. Murray is wrong on both counts.

A. MURRAY IS NOT DUE OUTRIGHT DISMISSAL ON THE POSSESSION OF MARIJUANA COUNT; RATHER, HE FACES POTENTIAL LIABILITY FOR A CIVIL VIOLATION UNDER TITLE 16, SECTION 4764(c).

In Count II of his indictment, Murray was charged with marijuana possession as a criminal misdemeanor under 16 Del. C. § 4764(b). It turned out, however, that the later lab report revealed he may only be liable for marijuana possession as a civil violation under 16 Del. C. § 4764(c). When the statutory creature of a "violation" subject only to a "civil penalty" was born into Delaware's criminal and drug codes, it was, unfortunately, not concomitantly framed a statutory (or other) procedural home in which to dwell.¹³

There have since been efforts by some Delaware courts to build the structure needed, but it has become increasingly clear that there is little solid footing.¹⁴ So how does this Court accommodate a "civil violation"¹⁵ that arrives via indictment, information, or, as here, legal happenstance? With the only blueprint it has: its own Criminal Rule 57(d).¹⁶

Delaware statutory law and this Court's rules provide for the consideration of an included offense by a jury or judge when the State's evidence is insufficient to prove the originally indicted offense.¹⁷ In turn,

A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when ... [i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.¹⁸

And, by virtue of its return, "a defendant is ... on notice of all lesser-included offenses under an offense charged in an indictment."¹⁹ 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 within this Court's discretion to permit."²⁰ Superior Court Criminal Rule 7(e) permits such an amendment "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."²¹ 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.

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.

In Count I 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 überlegislature to eviscerate proper legislative enactments. It 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 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 effect to the legislature's intent."²⁶ When the statute itself is unambiguous, then its plain language controls.²⁷ "In 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

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 private use of a personal use...