State v. Murray

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

v. ) I.D. No. 1602007591

)

)

IMEIR MURRAY, )
)

Defendant. )

Submitted: October 25, 2016
Decided: January 11, 2017
Opinion ISsued: April 13, 2017

OPINION

Upon Defendant Imeir Murray ’s Motion to Dismiss,
DENIED.

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.

WALLACE, J.

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 f`ore some
underexamined (or, more likely, some wholly unanticipated) consequences of that

change.

II. STATUTORY BACKGROUND:
DELAWARE’s FAsT-CHANGING DRUG LAwsl

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repealed significant portions of its extant criminal drug code and replaced it with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

l For simplicity’s sake, the statutory history recounted here and referenced throughout this

Opinion will speak only to the changes made and the present statutory language applicable to
adults who violate Delaware’s marijuana and firearms laws.

2 See Del. H.B 19 syn., 146th Gen. Assem., 78 Del. Laws ch. 13 (2011).
3 See id. (noting the new drug laws classified “the simplest form of unlawful [drug]
possession"’ _ i.e., those defined in the new 16 Del. C. §§ 4763(a) & 4764(b) - as Delaware’s
lowest grade misdemeanors); ia'. at § 58 (stating simple possession of` any controlled substance
other than marijuana became a class B misdemeanor); ia’. at § 61 (stating simple possession of
marijuana became an unclassified misdemeanor).

_2-

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 rule 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

4 Id. at § 5 (codified at ll Del. C. § l448(a)(9) (2011) [hereinafter “PFBPP”]).

Id. at syn.

6 See Del. H.B. 39 syn., l48th Gen. Assem., 80 Del. Laws ch. 38 (2015); id. at § 2
(creating new civil violation for possession of less than an ounce of marijuana for personal use
and leaving that offense within § 4764 of Title 16); ia’. at § 5 (conferring original jurisdiction
over criminal marijuana possession offense to the Court of Common Pleas and original
jurisdiction over civil marijuana possession violation to the Justice of the Peace Court).

_3_

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 8100 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

7 DEL. CODE ANN. tit. 16, § 4764(c) (2015) (defining the offense of simple possession of
marijuana and setting forth its classification, when a first offense, as a civil violation); id. at
§ 4701(33) (defining “personal use quantity” and “leaf marijuana”).

_4_

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 ounce10 of “leaf marijuana” or less is deemed a “personal
use quantity” of marijuana. And now, under Delaware law, the simple possession
of a personal use quantity of marijuana is a civil, not criminal, offense,ll

lt is undisputed that the amount of marijuana found in Murray’s room

exposes him to, at most, a civil marijuana possession violation. lt is disputed what

8 See Indictment, State v. Murray, I.D. No. 1602007591 (Del. Super. Ct. Apr. 25, 2016)
(D.I. 14) (charging Murray with PFBPP, a felony, pursuant to ll Del. C. § l448(a)(9) and
misdemeanor possession of marijuana under 16 Del. C. § 4764(b)); St.’s Resp., State v. Murray,
I.D. No. 1602007591, at l n.l (Del. Super. Ct. Oct. ll, 2016) (the preliminary estimated weight
of the marijuana seized was 30 grams).

9 See Def.’s Mot. to Dismiss Ex. A., State v. Murray, I.D. No. 1602007591 (Del. Super. Ct.
Sept. 8, 2016).

10 One ounce is equal to approximately 28.35 grams. See WEBSTER’s ENCYCLOPEDIC
UNABRIDGED chrloNARY oF THE ENGLISH LANGUAGE, Weights and Measures Table (1996)
(showing 28.35 grams are the metric system equivalent of the one U.S. ounce). Without doubt,
this weight conversion also applies to leaf marijuana See Marl`juana Weight: Grams, Quarters
and Ounces Explained, STUFF STONERS LIKE, http://stuffstonerslike.com/2016/01/marijuana-
weight-grams-quarters-and-ounces-explained/ (last visited Apr. 12, 2017).

“ See DEL. CODE ANN. rit. 16, §§ 4764(¢), 4701(33) (2015).
_5_

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 ls 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).
ln Count ll of his indictment, Murray was charged with marijuana
possession as a criminal misdemeanor under 16 Del. C. § 4764(b). lt 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

12 Def.’s Mot. to Dismiss 2_3; St.’s Resp. 2.

_6_

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

3715

how does this Court accommodate a “civil violation that arrives via indictment,

'3 see, e.g., Dei. s.B. 63, i43d Gen. Assem., 75 Del. Laws ch. 204 (2005) (adding a new
chapter the Delaware Motor Vehicle Code to provide a framework for enforcing civil trq}jic
offenses) (emphasis added).

14 See Preface, Del. J.P. Ct. Civ. Viol. R. (adopted June l, 2013) (“Statutory violations
which result in civil penalties present the Justice of the Peace Court with unique issues.
Although the penalty imposed for a violation of these statutes is civil, the process by which the
penalty is acquired and processed is similar to that of criminal matters. These unique
circumstances are addressed by the following rules.”). Other states too offer little consistent
guidance on procedural issues for civil violations, such as the appropriate charging instruments,
burden of proof, joinder with criminal matters, etc. See also MD. CODE ANN., LOCAL GOV’T §
11-207 (West 2013) (providing that for a Maryland “civil infraction,” the defendant may be
found guilty or not guilty, “the court shall apply the evidentiary standards provided by law for
the trial of a criminal case”, and “the burden of proof is the same as required by law in the trial of
a criminal case.”); id. at § 11-211 (stating that in Maryland, the “[a]djudication of a civil
infraction is not a criminal conviction for any purpose.”); MICH. COMP. LAWS ANN. § 600.8821
(West 2016) (ln Michigan, after a “formal hearing,” a judge “determines by a preponderance of
the evidence that the defendant is responsible for a state civil infraction. . . .”); ia'. at § 600.8827
(a Michigan state civil infraction “is not a lesser included offense of a criminal offense.”); N.J.
Ct. R. 3:15-3(a) (stating “the court shall join any pending non-indictable complaint for trial with
a criminal offense based on the same conduct or arising from the same episode” and a New
Jersey Superior Court judge “shall sit as a municipal court judge” simultaneously with the jury
hearing the criminal charge but renders the verdict him- or herself with the respect to the
infraction based on the trial evidence, or on evidence heard outside the jury’s presence if
necessary); WASH. REV. CODE ANN. § 7.80.070 (West 2006) (stating a notice of civil infraction
in Washington represents a determination that a civil infraction has been committed and that
determination is final unless contested); id. at § 7.80.100 (stating in Washington, “[a] hearing
held for the purpose of contesting the determination that a civil infraction has been committed
shall be without a jury” and the burden is upon the state “to establish the commission of the civil
infraction by a preponderance of the evidence.”).

15 The situation of having no statutory definition of “civil violation” in Delaware’s criminal
or drug codes is made only worse by the mixing in of terms that are clearly defined elsewhere in
those codes and applicable to crimes and criminal procedure. E.g., DEL. CODE ANN. tit. 16, §

_7_

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 ln 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. 111

4764 (2015) (dubbing possession of marijuana under § 4764(0) a “civil violation”); id. at
§ 4764(0) (providing that an individual like Murray would be “assessed a civil penalty of 8100
for the first offense”) (emphasis added); id. at § 4764(0) (referring to the proscription in 16 Del.
C. § 4764(c) as “a civil offense” and later requiring payment within a certain time “of final
adjudication of the violation”) (emphasis added); ia’. at tit. 11, § 233(a) (defining an “offense” as
synonymous with “crime” and that it is “an act or omission forbidden by a statute of this State
and punishable upon conviction by . . . imprisonment . . . fine . . . or [o]ther penal discipline)
(emphasis added); ia’. at tit. 11, § 233(c) (noting that a kind of “offense” is a “violation”)
(emphasis added).

16 Del. Super. Ct. Crim. R. 57(d) (“Procedure Not Provided. ln all cases not provided for by
rule or administrative order, the court shall regulate its practice in accordance with the applicable
Superior Court civil rule or in any lawful manner not inconsistent with these rules or the rules of
the Supreme Court.”) (emphasis added).

17 see stare v. Cex, 851 A.2d 1269, 1274-75 (Del. 2003) (explaining Delaware’s lesser
included doctrine and procedures for jury trials); Ramsey v. State, 996 A.2d 782, 784-86 (Del.
2010) (explaining the same for bench trials).

18 DEL. CODE ANN. tit. ll, § 206(b)(1) (2015). See also Del. Super. Ct. Crim. R. 31(0)
(“Conviction of lncluded Offense. The defendant may be found guilty of an offense included in
the offense charged in accordance with 11 Del. C. § 206.”); Wara’ v. State, 575 A.2d 1156, 1158
(Del. 1990) (“A defendant may be convicted of a crime for which he has not been indicted if all
of the elements of that crime are included in the definition of the crime with which he has been
charged.”).

And, by virtue of its return, “a defendant is . . . on notice of all lesser-

9919

included offenses under an offense charged in an indictment 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

”20 Superior Court Criminal Rule 7(e)

within this Court’s discretion to permit.
pennits 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.

'9 stare v. Gressberg, 1998 WL 278391, at * 1 (Del. super. Ct. Apr. 13, 1998).
20 Gressberg, 1998 WL 278391, ar * 1 (eirarien emitted).

21 Del. Super. Ct. Crim. R. 7(e).

22 For the reasons mentioned above, how precisely to proceed on that civil violation is a
thorny issue still to be resolved by the Court and counsel. See, e.g., supra notes 14 & 15. That

issue, however, need not be resolved in this Opinion.

_9_

B. UNDER THE PLAIN REAI)ING 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 ls UP To THE
GENERAL AssEMBLY, NoT THIs CoURT, To Do So.

ln Count l 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 iiberlegislature to eviscerate proper

legislative enactments lt 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

23 DEL. CODE ANN. tit. 11, § 1148(3)(9) (2015).

24 sheehan v. obzares of s¢. aneis de sales, 15 A.3d 1247, 1259 (Dei. 2011) (eiratien
omitted).

_10_

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

”26 When the statute itself is unambiguous, then its

effect to the legislature’s intent.
plain language controls.27 “ln 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

. . . . 30
1s requlred for a conv1ction under the statute.

25 Def.’s Reply 2.

26 Ross v. Staie, 990 A.2d 424, 428 (Del. 2010) (citing LeVan v. Indepena’ence Mall, Inc.,
940 A.2d 929, 932 (Del. 2007)).

22 see rn re Adep¢ien efswansen, 623 A.2d 1095, 1096-97 (Del. 1993) (“lfrhe statute as s
whole is unambiguous and there is no reasonable doubt as to the meaning of the words used, the
court’s role is limited to an application of the literal meaning of those words.”); Hoover v. State,
958 A.2d 816, 819 (Del. 2008) (“lf the language of the statute is unambiguous, the plain meaning
of the words controls.”) (citing lngrarn v. Thorpe, 747 A.2d 545, 547 (Del. 2000)).

28 Ress, 990 A.2d, 61428.
29 see Disiefane v. Warsen, 566 A.2d1,4(De1. 1989).

30 see ran rim v. s¢a¢e, 2016 WL 4978436, at *3 (Del. sept 16, 2016) (noting that it is
drug possession that is the required element of ll Del. C. § 1448(a)(9), not operating a drug lab
or manufacturing the subject drug) (emphasis added), ajj"g State v. Van Vliet, 2015 WL
5554058, at * 1 (Del. Super. Ct. Sept. 18, 2015) (distinguishing between manufacturing and

_11_

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

”31 that possessory act, in his

private use of a personal use quantity of marijuana;
case, is now only a civil violation with a financial penalty.32 Even so, possession
of marijuana in any amount, a “personal use quantity” or not, remains illegal under
Delaware law. ln fact, it still remains an act “in violation of . . . § 4764 of Title
16.”33

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.34 Murray incorrectly concludes that

possessing a controlled substance and finding that it is drug possession only that need be proven
under ll Del. C. § 1448(a)(9)).

3' Dei. H.B. 39 syn., 148ih Gen. Assem., 80 Del. Laws eh. 38 (2015).

32 See DEL. CODE ANN. tit. 16, § 4764(c) (2015) (“Any person [who knowingly or
intentionally possesses a personal use quantity of a controlled substance or a counterfeit
controlled substance classified in § 4714(d)(l9) of this title, except as otherwise authorized by
this chapter] shall be assessed a civil penalty of 8100 for the first offense . . . .”).

33 see DEL. CODE ANN. iii. 11, § 1448(a)(9) (2015) (quaiifyirig erie as a person prohibited
from possessing a semi-automatic firearm or a handgun when he, at the same time, possesses a

controlled substance “in violation of § 4763, or § 4764 of Title 16.”).

34 see Del. H.B. 19 syn., 146th Gen. Assem., 78 Del. Laws eh. 13 (2011).

_12_

this change meant that “the new (a)(9) section was developed to criminalize drug
dealing while in possession of a gun” alone, not mere simultaneous possession of
both items.35 The plain language of the statute requires only simple (but illicit)
possession of a controlled substance. And that is just what the State alleges here.
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 ll Del. C. § 1448(a)(9).”36 Because there was no such thing as a
civil marijuana violation when that PFBPP provision was first introduced, the
General Assembly certainly could have had no such intent then. But a court looks
behind the statutory language only if the statute is ambiguous`?'7 - which it is not
here. And the General Assembly is presumed to be aware of extant statutes

relating to the same subject matter when it enacts a new provision.38 For example

35 Def.’s Mot. to Dismiss 11 13 (emphasis in original).

36 Ia', Murray never really develops this statement into a claim of statutory ambiguity,
although that is in effect what he argues. See Coastal Barge Corp. v. Coastal Zone Ina'us.
Control Ba'., 492 A.2d 1242, 1246 (Del. 1985) (“Ambiguity may also arise from the fact that
giving a literal interpretation to words of the statute would lead to such unreasonable or absurd
consequences as to compel a conviction that they could not have been intended by the
legislature.”).

37 See, e.g., Ramirez v. Mura'ick, 948 A.2d 395, 398 (Del. 2008); Leatherbury v. Greenspun,
939 A.2d 1284, 1288 (Del. 2007); State v. Cooper, 575 A.2d 1074, 1075-76 (Del. 1990).

33 see Del. Dep’i efLaber v. Minner, 448 A.2d 227, 229 (Del. 1982) (“It is assumed that
when the General Assembly enacts a later statute in an area covered by a prior statute, it has in
mind the prior statute and therefore statutes on the same subject must be construed together so

_13_

here, when it made the lowest class of illegal marijuana possession a civil, rather
than criminal, offense after putting § 1448(a)(9) on the books just fifty-one months
earlier. lf the General Assembly wanted to then exclude the newly-minted civil
offense of possessing a “personal use quantity” of marijuana from triggering that
recent PFBPP provision, it could have easily done so. lt did not.

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.”39 But even if the Court needed to
consult other sources it might to discern § 1448(a)(9)’s meaning, Murray’s
supposition would fair no better.

The Synopsis of the enactment that created the new weapons prohibition was

40

clear: it was created “for a person who possesses a handgun or semi-automatic or

automatic firearm at the same time as the person possesses a controlled

that effect is given to every provision unless there is an irreconcilable conflict between the
statutes, in which case the later supersedes the earlier.”) (quoting Green v. Cnty. Council of
Sussex Cniy., 415 A.2d 481, 484 (Del. Ch. 1980)). See, e.g., State v. Hollobaugh, 297 A.2d 395,
396 (Del. Super. Ct. Oct. 25, 1972). See also Cooper, 575 A.2d at 1076_77 (the General
Assembly is also presumed to be aware of judicial decisions interpreting similar or identical
language).

33 Disiefaae, 566 A.2d, at 4.

40 see Carper v. New Casize Cpiy. Ba. afEd., 432 A.2d 1202, 1205 (Del. 1981) (stating the
synopsis of a bill is “a proper source from which to glean legislative intent”); Hoover v. State,
958 A.2d 816, 820 (Del. 2008) (“[T]his Court may refer to parts of the legislative record to
establish the purpose of legislation where the record reveals more information about the
enactments.”).

_14_

substance.”41 Far from being an unreasonable or absurd prohibition, it is one
similar, if not more narrow, than that found in federal42 and sister states’ statutory
schemes.43 As federal courts have without fail found, such a law “proportionally
advances the government’s legitimate goal of preventing gun violence”44 by
aiming “to keep guns out of the hands of presumptively risky people.”45 And that

may rightly include those who illegally use or possess marijuana46

4‘ Del. H.B. 19 syn., 146th Gen. Assem., 78 Del. Laws eh. 13 (2011) (emphasis added).

42 Cornpare 18 U.S.C. § 922(g)(3) (under the federal analogue it is unlawful for anyone
“who is an unlawful user of or addicted to any controlled substance” to possess a firearm), with
DEL. CODE ANN. tit. 11, § l448(a)(9) (2015) (under Delaware law it is unlawful for one to
possess a semi-automatic firearm or a handgun when he, “at the same time, possesses a
controlled substance in violation of” Delaware drug possession statutes). While the federal
statute prohibits a certain group of persons - those who unlawfully use drugs or are addicted to
them ~ from possessing a firearm, the Delaware statute requires that the gun and drugs be
possessed “at the same time.”

43 see Uniied states v. Yapcey, 621 F.3d 681, 684 (7ih Cir. 2010) dising 25 states and D.C.
that had by that time outlawed possession or carrying of firearms by habitual drug users).

44 Unitea1 States v. Carter, 750 F.3d 462, 470 (4th Cir. 2014). See, e.g., Unitea’ States v.
Patterson, 431 F.3d 832, 835-36 (Sth Cir. 2005); Yancey, 621 F.3d 681, 684; Unitea' States v.
Seay, 620 F.3d 919, 924-25 (8th Cir. 2010); Unitecl States v. Dugan, 657 F.3d 998, 999-1000
(9th Cir. 2011); Unitea’ States v. Conraa’, 923 F. Supp. 2d 843, 850-51 (W.D. Va. 2013);
Roberge v. Unz'tea’ States, 2013 WL 4052926, at *18-19 (E.D. Tenn. Aug. 12, 2013).

45 Yancey, 621 F.3d at 683 (citing Dickerson v. New Banner lnst., Inc., 460 U.S. 103, 112
(1983)). See United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010) (noting that in
passing the federal prohibition, Congress expressed its intention to “keep firearms out of the
possession of drug abusers, a dangerous class of individuals”).

46 See Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016) (“lt is beyond dispute that
illegal drug users, including marijuana users, are likely as a consequence of that use to
experience altered or impaired mental states that affect their judgment and that can lead to
irrational or unpredictable behavior.”); Carter, 750 F.3d, at 470 (“At bottom, we conclude that
the empirical evidence and common sense support the government’s contention that drug use,
including marijuana use, frequently coincides with violence.”); Yancey, 621 F.3d at 687

_15_

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 non-
criminal 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.47
The unambiguous current language of § 1448(a)(9), the other clues one might use
(if needed) to understand that language, and the easily discerned policy behind that
language leaves the reader to conclude that language means precisely what it says
- in Delaware one is prohibited from possessing a handgun and even a small

amount of marijuana at the same time.

(observing when discussing the federal statute’s application to an “unlawful user” of marijuana:
“We have observed before that there is no constitutional problem with separating guns and
drugs.”).

47 See Seth v. State, 592 A.2d 436, 440 (Del. 1991) (“[W]hen statutory language is both
clear and consistent with other provisions of the same legislation and with legislative purpose
and intent, a court must give effect to that intent because it is for the legislature, and not the
courts, to declare the public policy of the State.”). See also State v. Cephas, 637 A.2d 20, 28
(Del. 1994) (“lt is the General Assembly and not this Court which has the prerogative to
legislate. This Court’s role is to construe existing legislation.”).

_16_

V. CONCLUSION

For the foregoing reasons, Murray’s motion to dismiss the two counts of his
lndictment must be DENIED.

IT IS SO ORDERED.

..,.

@;)

Paul R. Wallace, Judge

_17_