Opinion
ID. No. 0804009949.
Submitted: October 16, 2009.
Decided: November 13, 2009.
Upon Defendant's Motion to Dismiss or Merge Counts 2, 4, 8, 11, 13, 15 and 18. Denied.
ORDER
Introduction. In this capital murder case, Defendant Millard Price moves the Court to merge or dismiss the eight counts of Possession of a Firearm During the Commission of a Felony (PFDCF), as charged against him in the indictment. Defendant argues that these charges violate his protection under the Double Jeopardy Clause because the State does not allege that he possessed multiple guns during the incident on April 9, 2008. Defendant also argues that four firearms charges merge with the four charges of aggravated menacing. He does not challenge the firearms charges associated with the charges of murder first degree, attempted degree first degree, burglary first degree or car jacking first degree. The State opposes Defendant's motion, arguing that there is no violation of either constitutional or statutory law. Having reviewed the parties' submissions as well as the applicable law, the Court concludes that the motion must be denied.
The Court notes that Defendant filed a separate motion to merge or dismiss four of the weapons charges. Although Defendant makes a different argument in this motion, it does not affect the reasoning or outcome of the other motion.
Discussion of multiple weapons charges. The Delaware Supreme Court has previously addressed the issue of multiple weapons charges when there is only one weapon used in carrying out more than one felony. The Court has found no double jeopardy violation because this charging practice is consistent with the purpose of 11 Del. C. § 1447, which is to deter the use of a deadly weapon while committing a felony because the weapon increases the chance of harm to the victim.
Nance v. State, 903 A.2d 283, 288 (Del. 2006); Graham v State, 2004 WL 557168 (Del.); Robertson v. State, 630 A.2d 1084 (Del. 1993); Pauls v. State, 554 A.2d 1125 (Del. 1989); LeCompte v. State, 516 A.2d 898 (Del. 1986).
Defendant now raises a challenge to the holding of Graham v. State as it pertains to this case. Graham held that aggravated menacing focuses on the victim's perception of threat while PDWDCF focused on actual danger. For this reason, the two crimes could be sentenced separately and did not merge. Defendant challenges that holding because this case involves a "firearm" instead of a "deadly weapon." The statutory definition of "firearm" includes inoperable and unloaded weapons (as well as operable and loaded ones). For this reason, Defendant argues, PFDCF and aggravated menacing merge into one crime because there is no statutory distinction between actual danger and perceived danger from a loaded or inoperable gun. The Court disagrees, first, because an unloaded shotgun can be dangerous to a victim, as can any other unloaded or inoperable firearm.
2004 WL 557168 (Del.) (holding that aggravating menacing and PDWCF, which was based on felony aggravated menacing, could be separately sentenced).
Id.
Title 11 § 222 (12) provides as follows: "Firearm" includes any weapon from which a shot, projectile or other object may be discharges by force or combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded. It does not include a BB gun.
Second, the Court observes that Graham dealt with PDWDCF, whereas this Defendant is charged with PFDCF. Defendant takes this into account only to the extent that it confirms his argument. When deciding whether a person has been charged for one act under two separate statutes, the question is whether each provision requires proof of a fact which the other does not. For PFDCF, the State will be required to prove that Defendant possessed a firearm. For aggravated menacing, the State will be required to prove that Defendant intentionally placed another person in fear of imminent physical injury. The Court finds that these are different statutory elements and that these offenses do not merge.
Nance v. State, 903 A.2d 283 (Del. 2006) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
Title 11 Del. C. § 1447A.
Title 11 Del. C. § 602(b).
Whalen v. United States, 445 U.S. 684, 691-92 (1980).
The Court need not address the firearms charges associated with felonies other than aggravating menacing because Defendant has not presented any argument to support their dismissal or merger.
Conclusion. For all these reasons, Defendant's motion to merge or dismiss the eight counts of PFDCF against him is DENIED. IT IS SO ORDERED.