Opinion
ID No: 0502018702B.
December 7, 2005.
ORDER
On December 5, 2005, Defendant, upon completion of a colloquy with the Court on the topic, elected to proceed with a bench trial, rather than a jury trial. This trial concerned only the charge of possession of a weapon by a person prohibited, in violation of 11 Del. C. § 1448.
The evidence established that Defendant was indicted under that statute for acts occurring on February 25, 2005. The evidence was the testimony of Cpl. Hake and several exhibits including: a photo of a knife on a sofa, the knife, and two Family Court sentencing documents.
That evidence established that the knife was found by investigating officers, in the course of a search with warrant, under a sofa cushion in the house belonging to Defendant. When confronted, and after the application of Miranda warnings, Defendant (on two separate occasions) admitted to the location of the search's being his home, ownership of the sofa where the knife was found, owning the knife, and using the sofa as his sleeping facility in the home. Further, Defendant was located directly behind the sofa upon the police entry into the house. Finally, Defendant admitted that he kept the knife as he did, because he had recently been robbed, and wanted available protection against any recurrence.
The Family Court documentation, admitted without objection, showed that one Raeshaun D. Godwin had been convicted in Family Court of Burglary 2nd (May 7, 1997 — State's Exhibit 3) and Assault in a Detention Facility, Burglary 2nd, Felony Theft and Carrying a Concealed Deadly Weapon (March 23, 1998 — State's Exhibit 4). Cpl. Hake identified, without cross-examination, those certified records of charges as being the acts of this Defendant.
Additionally, the March 23, 1998 exhibit noted that Defendant was on notice of (though, through a nolle prosequi, was not convicted of) his being a person prohibited from possession of a deadly weapon.
The evidence also established that the knife found (its blade being in excess of 3") was a deadly weapon, and that Defendant was sufficiently close to his juvenile adjudications, being under 25 years of age, to satisfy the requirements of 11 Del. C. § 1448 (d)(4).
Following presentation of the State's case, the Defendant moved for Judgment of Acquittal on the basis that the indictment was fatally flawed. The indictment read:
Raeshaun D. Godwin on or about the 25th day of February, 2005, in the County of Kent, State of Delaware, did having been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, knowingly have in his possession, a military type knife, a deadly weapon.
The argument of the Defendant was that State v. Robinson, Del. Supr., 251 A. 2d 552 (1969) required an indictment to contain particularity and definiteness as to the statutory element of the prior conviction to inform the defendant of the charge confronting him sufficiently to enable him to prepare his defense. The opinion goes on to describe the minimum detail required to include: identification of the prior conviction by brief statement of the charge, identification of the Court of that conviction, the case number and the date of the conviction.
On the basis of that case language alone, the indictment herein fails, as moved by Defendant.
However, Superior Court Criminal Rule 12 refers to the procedure of presenting defenses and objections. Rule 12 (b) advises that the defense here raised is capable of being raised for determination before trial by Motion. The Rule goes on to say that certain motions must be raised before trial. Among those is a defense based on a defect in the indictment (Rule 12 (b)(2)). Rule 12 (f) then says that a failure so to raise that defense prior to trial constitutes a waiver of such a defense.
An exception to that prohibition exists if the defect is "jurisdictional" (Rule 12(b)(2)). Since nothing implicating personal or subject matter shortcoming with the case by the phraseology of the indictment appears; and since, as a matter of fact, the Defendant was clearly on notice of his prior convictions by pre-trial agreement to the admission of the Family Court documents (Exhibits 3 and 4); the Court finds Defendant's Motion for Judgment of Acquittal not well taken, and the same is DENIED.
Following the aforedescribed determination, the Defendant elected, again following a colloquy on the topic with the Court, not to testify; and he rested.
Counsel for Defendant then argued for acquittal on a variety of other legal issues:
a) possession of the weapon by Defendant was not established;
b) Defendant was not previously advised that he was a person prohibited;
c) no proper connection between the Family Court documents and the evidence existed in this case.
As to Defendant's possessing the knife, the unrefuted testimony was that Defendant admitted to the home's being his, the proper search of which revealed the knife; that Defendant admitted using the sofa, under one of the cushions of which the knife was located, for his regular sleeping facility; and that he owned the knife itself for the purpose of protection against potential robbers. Upon proper entry of the home, the police came upon Defendant directly behind the sofa. Still, Defendant correctly asserts that mere ownership does not equate to possession. More is needed.
Defendant concurs that 11 Del. C. § 3504 concerning proof of possession applies to this consideration. That statute notes that, in a prosecution of any offense committed in relation to personal property, it is sufficient if, at the time the offense was committed, the proof demonstrates that either actual or constructive possession exists. With Defendant's being directly behind the sofa on which he slept, under a cushion of which the knife was located — all within Defendant's admitted knowledge and within his easy acquisition, Defendant's constructive, if not actual, possession exists under this evidence.
Additionally, the statute under which Defendant was charged equates "possessing" with "controlling" for purposes of a violation of the statute. For the foregoing reasons, Defendant's control of the knife was demonstrated by the evidence.
Finally, the approved jury instruction (number 36g) relevant to this charge further describes "possession" for fact-finder consideration. As stated, "possession includes . . . that the weapon was within the defendant's reasonable control, that is . . . the defendant had the power and the intention, at a given time, to exercise control over the weapon." Here, again, the evidence showed that Defendant, at a time when he slept on the sofa, kept the knife immediately beneath him so that he could physically grasp it (according to Defendant to fend off robbers); and that Defendant was in what amounts to arm's length of the knife, even when the search was going on.
Accordingly, while Defendant did not have the knife within his clutch at the moment of police entry, he knew where it was; he kept it for use against intrusions upon his person and/or property; and he was located within easy access to it. Defendant was "in possession" of this admittedly deadly weapon.
Next, Defendant asserts that no one had ever advised Defendant that he was a person prohibited from possessing such a weapon. To support that position, Defendant asserts (not during the presentation of evidence, but for the first time in closing argument) that, in his prior, juvenile pleas, he was not told — as one is on the Superior Court Truth in Sentencing form Question 13, executed during the course of a plea-taking — that following his delinquency adjudications he was prohibited from possession of such a weapon. To begin with, no such "instruction" is given following a precedent felony jury verdict conviction, but the prohibition exists none-the-less. Second, the statute ( 11 Del. C. § 1448 (a)(4) creates the prohibition upon the fact of felony-delinquency adjudication, not upon the adjudication-cum-warning. Hence, prior Courtroom warning of one's status as a prohibited person simply is not an element of the offense. Finally, at least one of the Family Court adjudication forms put into evidence (Exhibit 4: March 23, 1998) specifically notes Defendant — even at that early date — was charged with, and specifically on notice of, being a person prohibited from possessing a deadly weapon. While that charge was nolle prossed in the course of plea negotiations, any "notice factor" certainly existed.
The Court finds Defendant's reference to State v. Kipp, Del. Supr., 704 A 2d 839 (1998) inapposite. In Kipp, the prior conviction was for a misdemeanor, albeit a "qualifying" violent one ("felony or crime of violence"). His Truth in Sentencing form, which was signed and Court-accepted, erroneously but specifically indicated that any prohibition against possession of a deadly weapon was NOT applicable to his situation. The Kipp Court held that knowledge of thepossession, as opposed to knowledge of possession's being criminal, is the only necessary element; and that "ignorance of the law is not a defense to crime." Hence, the reversal in Kipp was the result of the very narrow, or as the Court put it "unique", circumstances of that case's fact pattern. Defendant Kipp, the Court held, "made a diligent effort . . . to ascertain and abide by the law." The mistake of law in that case was specifically created by the State's express actions. As described previously, no such situation exists herein by any stretch of argument.
Finally, Defendant argues that there is no connection between the Family Court documents (Exhibits 3 and 4, showing the prior adjudications) and the evidence in the instant case. While no admitted testimony specifically tied the case numbers of the Family Court documents to Defendant, uncontroverted testimony of Cpl. Hake was that the adjudications memorialized in Exhibits 3 and 4 concerned Defendant. Not only would that testimony be sufficient to withstand a dismissal motion in the face of equally compelling counter-evidence, nothing contrary existed.
CONCLUSION
For the foregoing reasons, Defendant's Motion for Acquittal and arguments on the record cannot prevail. Defendant is adjudged GUILTY of Possession of a Deadly Weapon by a Person Prohibited.