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
In 2011, at the urging of the Drug Law Revisions Committee, Delaware repealed significant portions of its extant criminal drug code and replaced it with laws creating three main drug crimes.
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:
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."
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.
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.
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.
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.
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.
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.
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.
And, by virtue of its return, "a defendant is . . . on notice of all lesser-included offenses under an offense charged in an indictment."
"Leave to amend an indictment to state a lesser-included offense is a matter within this Court's discretion to permit."
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."
As our Supreme Court recently reminded,
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.
"The role of the judiciary in interpreting a statute is to determine and give effect to the legislature's intent."
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.
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 quantity of marijuana;"
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.
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)."
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."
The Synopsis of the enactment that created the new weapons prohibition was clear:
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 noncriminal 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.
For the foregoing reasons, Murray's motion to dismiss the two counts of his Indictment must be