Opinion
No. 0805041121.
Submitted: December 15, 2008.
Decided: December 23, 2008.
Upon Consideration of Defendant's Motion to Dismiss Counts 1, 2,3 and 4 of the Indictment GRANTED.
Deborah J. Buswell, Esq., Department of Justice, Dover, Delaware for the State.
James E. Liguori, Esq., Liguori, Morris Yiengst, Dover, Delaware for Defendant.
SUMMARY
Because, under the agreed facts of this case, Defendant could not be considered by a rational fact finder (in following the jury instruction presented at the close of trial) to have "immediate possession" or "immediate control of" or "physical availability" or "physical access" to the weapons discovered with any reasonable nexus to the predicate felony, Defendant's Motion to Dismiss Counts 1, 2, 3 and 4 is GRANTED.
FACTS
The facts forming the basis for the respective positions on this Motion are contained in the stipulation attached to the State's Response. Thus, we know that the 827 Townsend Blvd., Dover, Kent County, Delaware residence leased by Defendant is a single family home having three levels. On the top floor are four bedrooms, one of which was used by Defendant.
Defendant was observed exiting his bedroom, where at a later time, long after Defendant's having been restrained (and only upon Defendant's so advising the officer), a loaded shotgun was found. Notably, no illegal substances were located there. The firearm was in a closet, in that bedroom from which Defendant was exiting. A .357 revolver, in the basement bedroom used by another, where marijuana was located, was found. Hence, in that room, two floors removed from Defendant, there existed a firearm and a small quantity of an illegal substance, but not Defendant.
In a third bedroom was equipment for use with a revolver, though neither firearm nor substance nor Defendant was in that area.
In the living room was a .40 handgun, but not any substance, and not Defendant.
In the kitchen was a .40 Smith and Wesson owned by Defendant, but again neither substance nor Defendant was in that area. .
Under the basement stairs was a large supply of marijuana, but no firearm and no Defendant.
For these purposes, Defendant has admitted ownership of all the noted marijuana and the kitchen Smith and Wesson and the bedroom closet shot gun.
Given those facts, and assuming for the argument of this Motion that Defendant possessed illegal substances to support the charges of intent to deliver, maintaining a dwelling and possession of paraphernalia, all within 1000 feet of a school, the question is whether the existence of the aforementioned weaponry can be considered to have been possessed by Defendant during the commission of a felony.
ANALYSIS
Denotationally, the transitive verb "commit" infers an act. However, some felonies can, by their own special statutory definition, be "committed" in the absence of any action, and take place by state of being. Possession of an illegal substance, without more, is such a felony. Given that, however, one must be circumspect about the inclusion of other felonies based upon such states, as opposed to acts.
The legitimate legislative concern with someone's possessing a firearm during the commission of a felony is, of course, the enhanced potential for danger of someone's being injured.
It is not merely owning a firearm (in order, theoretically, to discourage anyone's contemplating committing a felony from having title to a weapon), which is the concern . It is the establishment of the potential danger of injuring someone in the course of committing a felony.
Here, the "commission" of the various illegal substance offenses is a virtually motionless event. The predicate felony, during which the charge of possession of a firearm is alleged to have occurred, is stated in the indictment as Count 5, possession with intent to deliver a Schedule I Controlled Substance. That intent to deliver arises out of the discovery of a quantity located, rather than the observation of an effort to transfer. The remaining counts 6, 7 and 8 are inert possessions of substances. Thus, the commercial activity, while legally determinable and even admitted in the abstract, was not actually taking place within any witness' ken.
It is difficult to say, from anything other than a technical, statute-satisfying sense, that any commission of any act is going on.
With the exception of the evidently small quantity of marijuana in the basement bedroom, used not by Defendant but by another resident, two floors from where Defendant was confronted, no illegal substance was found in the same room with any weapon.
Similarly, Defendant was not in same room with any substance, or actually in a room with any weapon.
Defendant CERTAINLY had no immediate possession, immediate control OR physical availability to any weapon, the closest being a shot gun in a closet in the room Defendant was leaving.
Thus, what we have are drugs, weapons and Defendant all in the confines of one building, but little else. There is no suggestion of any real confluence of actor, substance and firearm, and barely any two of the three.
The State, of course, recognizes all of the foregoing, but asserts that common law permits at least the argument to a jury that Defendant could be considered, from a legal standpoint, to be in possession of a firearm for purposes of these substance charges, citing Lewis v. State, Kornbluth v. State, and Childress v. State.
1990 WL 38306 (Del.).
580 A.2d 556 (Del. 1990).
721 A.2d 929 (Del. 1998).
Various factual distinctions can be drawn between those cases and the instant case relative to size of abode, degree of "accessibility", proximity between the substances and the weapons, and so forth. The most salient point is that the features of this case so closely match those of Gardner v. State that they necessitate conformity to the analysis found therein.
567 A.2d 404 (Del. 1989).
In this case regarding the shotgun, the Defendant, confronting the officers while he was leaving his bedroom, was at that point further precluding from himself the accessibility of that shotgun, which was so sequestered from Defendant in that closet that the search of the premises by the officers did not even reveal its existence. It was only located significantly later when Defendant advised them of its presence. Additionally, no substances were found in the room in which the shotgun was closeted.
The two 40 caliber handguns were not even on the same floor of the residence on which Defendant was confronted or in any room in which any substances existed. The .357 revolver, while somewhere in the same room as the evidently small quantity of marijuana, was not in a room or on the same floor that Defendant was either in or entering.
Gardner holds, at pages 413 and 414;
The clear legislative policy supporting the enactment of section 1447 is "to discourage the accessibility of a deadly weapon during the commission of a crime, thus reducing the probability of serious harm to the victim". . .[T]he automatic compounding of drug felonies through the use of section 1447 charges whenever a weapon is found in the general vicinity of a defendant charged with a drug-related felony is illogical and, as a matter of fundamental fairness, indefensible. There is no suggestion in this case that the safety of the arresting officers was ever at risk by the presence of any guns in the residence once Gardner had been placed in custody.
In order to secure a conviction for possession of a deadly weapon during the commission of a felony as proscribed by 11 Del. C. § 1447, the State is required to establish that at the time he was engaged in the designated predicate felony the defendant had a deadly weapon "physically available or accessible to him."
Id. at 413-14, (quoting Mack v. State, 312 A.2d 319, 322 (Del. 1973)).
That reasoning, based upon the facts of that case, is particularly pertinent to the case here under consideration. Accordingly, on the basis of the stipulated facts, there is no necessary evidentiary nexus of physical accessibility between any of the weapons contained in the Townsend Blvd. residence and Defendant's engaging in the underlying felony of possession with intent to deliver.
Therefore, Defendant's Motion to Dismiss Count 1, 2, 3 and 4 of the instant indictment is Granted.
SO ORDERED this 23rd day of December, 2008.