State v. Hefton

586 A.2d 1195, 1988 Del. Super. LEXIS 376
CourtSuperior Court of Delaware
DecidedOctober 14, 1988
StatusPublished

This text of 586 A.2d 1195 (State v. Hefton) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hefton, 586 A.2d 1195, 1988 Del. Super. LEXIS 376 (Del. Ct. App. 1988).

Opinion

TAYLOR, Judge.

The defendant, Tina Hefton, was found guilty of trafficking in cocaine (16 Del. C. § 4753A(a)(2)) and possession with intent to deliver a narcotic schedule II controlled substance: cocaine (16 Del. C. § 4751(a)).1 The element of intent in the charge of possession with intent to deliver was established by evidence of the quantity of drug possessed by the defendant and the expert testimony of a police detective who is knowledgeable as to the practices of drug users and who testified that the quantity which defendant possessed was more than a “user” of the drug would ordinarily carry or have. Counsel for defendant argues that defendant cannot be convicted and sentenced for both of these charges because to do so would subject the defendant to double jeopardy in violation of the United States Constitution.

I

Defendant contends that she cannot be sentenced for both the trafficking and the possession with intent to deliver convictions because this would impose multiple punishments for a single criminal act. The submissions have focused primarily on the Delaware Supreme Court decision in Jefferson v. State, Del.Supr., 543 A.2d 339 (1988) (Order), and this Court’s decisions in State v. Parson, Del.Super., 509 A.2d 90 (1986); State v. Getter, Del.Super., IN-85-11-0834, IN-85-12-1771-1775, 1987 WL 8690, Balick, J. (February 5, 1987) (Letter Op.); and State v. Skyers, Del.Super., Cr.A.Nos. IN-86-02-0775, IN-86-03-0339, 1988 WL 55311, Martin, J. (May 31, 1988) (Memo. Op.), motion for reconsideration denied, 1988 WL 77712, Martin, J. (July 21, 1988) (Memo.Op.). All of these cases considered whether simultaneous conviction and sentencing on a charge of drug trafficking and a charge of possession of a drug with intent to deliver it, involving the same occurrence and the same drug, violated double jeopardy.

Getter applied the holding of the United States Supreme Court in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) that the double jeopardy clause only prevents imposing greater punishment than the legislature intended. In searching for legislative intent with respect to the statutes in the two charges, the Court looked to the standard which was specified in 11 Del. C. § 206(a)(1) and § 206(b)(1), noting that that statutory standard was similar to that announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Applying that standard, Getter found that each statute required proof of a fact which the other did not require, and held that conviction and sentencing on both charges was permissible.

The Delaware Supreme Court in Jefferson commented that this Court's decision in Getter “correctly states the law applicable in cases such as this” and held that because trafficking in a drug and possession of a drug with intent to deliver it each involved proof of a fact which the other does not, simultaneous conviction and sentencing on both charges was permissible. Jefferson, supra, at 2.

It should be noted that in Getter the defendant’s intent to deliver the drug was established by testimony of defendant’s confederate who, after being granted immunity, testified about previously having received drugs from defendant and that when defendant was arrested, defendant and the witness were meeting for the purpose of transferring the drugs from defendant to the witness. Therefore, in Getter the prosecution did not rely on the quantity of the drug to create an inference of intent to deliver.

In Skyers, the prosecution did not rely on evidence of prior drug dealing or testimony of a confederate describing defendant’s intention to deliver the drug, as the prosecu[1197]*1197tion had done in Geller. Instead, the prosecution relied on the quantity of drug to support the inference that defendant intended to deliver the drug.2 The Court in Skyers held that the same evidence, namely, the quantity of drugs was used to prove the trafficking charge and the possession with intent charge, and held that the conviction and sentencing on both charges was barred by double jeopardy. Addressing the subject of legislative intent, Skyers found no legislative intent to have the sentences for trafficking and possession with intent run consecutively.

One of the grounds which Skyers relied on in finding that the General Assembly did not intend to make consecutive sentences for possession with intent to deliver and trafficking was the failure of the trafficking statute to include language similar to that in 11 Del. C. § 1447(c), which states that a sentence for possession of a deadly weapon during commission of a felony shall not run concurrently with any other sentence. That statute has undergone a succession of modifications which have increased its harshness in response to court decisions which have interpreted the statute in a more restrictive manner. Cf. Davis v. State, Del.Supr., 400 A.2d 292 (1979); rev’d. on other grounds, Le-Compte v. State, Del.Supr., 516 A.2d 898 (1986). The language of § 1447(c) quoted in Skyers was enacted in 1976 by 60 Del. Laws Ch. 306. Two days later, an amendment to 11 Del. C. § 3901 was enacted which by its terms eliminated concurrent sentences of imprisonment entirely and required that all such sentences run consecutively. 60 Del. Laws Ch. 308; Cf. Davis, 400 A.2d at 295. Skyers proceeded from the premise that no legislative intent had been expressed which was applicable to the statutes involved here. That legislative intent has been expressed in 11 Del. C. § 3904 as well as in the title of the trafficking statute. That intent is that the penalty for violation of each statute shall be successive.

Skyers, also discussed the provisions of 11 Del. C. § 206 and the clarifying decision in Mackie v. State, Del.Supr., 384 A.2d 625 (1978), and concludes that the conviction of Skyers on the charges of possession with intent and trafficking depended on the “same proof” and, hence, could not constitute separate convictions. This conclusion does not flow from § 206. The pertinent language of § 206 quoted in Skyers, which appears in paragraph (b)(1) refers to “proof of the same or less than all the facts required to establish the commission of the offense charged”. Skyers apparently equates proof of facts with evidence. It is clear from the Commentary which follows § 206 of the Delaware Criminal Code that the draftsmen of the Code were referring to proof of the elements of the crime and not to evidence. The interchangeable reference to proof of facts and proof of elements when referring to the same concept finds its origin in Blockburger, supra.

II

In LeCompte v. State, Del.Supr., 516 A.2d 898

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Related

Blockburger v. United States
284 U.S. 299 (Supreme Court, 1931)
Brown v. Ohio
432 U.S. 161 (Supreme Court, 1977)
Whalen v. United States
445 U.S. 684 (Supreme Court, 1980)
Illinois v. Vitale
447 U.S. 410 (Supreme Court, 1980)
Albernaz v. United States
450 U.S. 333 (Supreme Court, 1981)
Missouri v. Hunter
459 U.S. 359 (Supreme Court, 1983)
Ball v. United States
470 U.S. 856 (Supreme Court, 1985)
Davis v. State
400 A.2d 292 (Supreme Court of Delaware, 1979)
MacKie v. State
384 A.2d 625 (Supreme Court of Delaware, 1978)
Redden v. State
281 A.2d 490 (Supreme Court of Delaware, 1971)
LeCompte v. State
516 A.2d 898 (Supreme Court of Delaware, 1986)
Williams v. State
286 A.2d 756 (Supreme Court of Delaware, 1971)
Traylor v. State
458 A.2d 1170 (Supreme Court of Delaware, 1983)
Farren v. State
285 A.2d 411 (Supreme Court of Delaware, 1971)
State v. Parson
509 A.2d 90 (Superior Court of Delaware, 1986)

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Bluebook (online)
586 A.2d 1195, 1988 Del. Super. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hefton-delsuperct-1988.