discussing State v. Rhinehardt, 1990 WL 9509, 1990 Del Super. LEXIS 9 (Del. Super 1990), Lonergan v. State, 590 A.2d 502 (Del.1991); McNul ty v. State, 655 A.2d 1214 (Del.1995); Watson v. State, 755 A.2d 390 (Del.2000)(TABLE); and Fletcher v. State, 2005 WL 646841, 2005 Del. LEXIS 124 (Del.2005)
How later courts described this case
- discussing State v. Rhinehardt, 1990 WL 9509, 1990 Del Super. LEXIS 9 (Del. Super 1990), Lonergan v. State, 590 A.2d 502 (Del.1991); McNul ty v. State, 655 A.2d 1214 (Del.1995); Watson v. State, 755 A.2d 390 (Del.2000)(TABLE); and Fletcher v. State, 2005 WL 646841, 2005 Del. LEXIS 124 (Del.2005)
- recognizing that inconsistent verdicts involving an acquittal of a PFDCF predicate offense and a conviction of PFDCF cannot stand
- rejecting premise underlying inconsistent verdict challenge as “not necessarily correct” because acquittal verdict may not be “the one the jury really meant” and “all we know is the verdict is inconsistent” (internal quotation marks omitted)
- “Given the statutory limitation on judicial review, the acquittal [of the predicate felony] removed from the jury’s consideration the very conduct” for which the defendant was charged.
Written by the judges who cited it.
The opinion
BERGER, J.,
Concurring in part and Dissenting in part.
I agree with the majority’s conclusion that here, as in McNulty v. State, 62 there is insufficient evidence to support Priest’s conviction on the charge of maintaining a vehicle. I would affirm, however, on the two PFDCF convictions.
Under settled law, the fact that the jury acquitted Priest on the predicate offenses is not dispositive. Inconsistent verdicts must be reviewed to determine whether there was sufficient evidence to support a conviction on the predicate offense. If there was, then the weapons conviction stands and the inconsistency is attributed to jury lenity. The majority has overturned more than 25 years of precedent, relying on a newly discovered legislative intent to preclude convictions in cases like this one. Since there have been no recent amendments to the relevant criminal statutes, I find no basis on which to write new law governing inconsistent verdicts. Therefore, I dissent.
In 1976, this Court held that a person may be convicted of a weapons charge without being convicted of the underlying felony. In Brooks v. State, 63 defendant advanced the very argument now adopted by the majority — that § 1447(e) 64 implicitly requires a conviction on the underlying felony. The Brooks Court rejected that argument, noting that, “[t]he statute does not require a conviction by its terms, but only requires that the weapons offense occur during the commission of a felony.” 65 Since then, this Court and the Superior Court have repeatedly upheld weapons convictions in cases where there was no underlying felony conviction. See, e.g.: Brown v. State, 729 A.2d 259 (Del.1999)(Upholding weapons convictions where defendant acquitted of underlying felonies.); Samuel v. State, 694 A.2d 48 (Del.1997)(Upholding four weapons convictions where the four underlying felonies were merged into two.); Fletcher v. State, 435 A.2d 1040 (Del.1981) (Upholding weapons conviction, after a guilty plea, where underlying robbery charge was nolle prossed.); State v. Nickerson, 1997 WL 855706 (Del.Super.), aff'd., Nickerson v. State, 734 A.2d 159 (Del.1999) (Upholding weapons conviction where defendant acquitted of underlying felony, but convicted on lesser included misdemeanor.); State v. Mintz, 1994 WL 465539 (Del.Super.)(Upholding weapons conviction, after a guilty plea, where defendant also pled guilty to misdemeanor.)
Because the jury acquitted Priest on the underlying felonies, this Court is obliged to review the record and determine whether, despite the verdict, there is sufficient evidence to support convictions on those drug *591 crimes. Viewed in the light most favorable to the State, the evidence that Priest was a participant in the planned drug deal may be inferred from the fact that: (i) Priest got into the car with Fletcher, and, according to Powell, Fletcher said, “this is his cousin, and he is got to come with me kind of thing....”; (ii) while Priest was sitting in the back seat, Fletcher told Powell that he had to go to Bob Evans to get “hooked up” (meaning get a supply of cocaine); and (iii) Priest was carrying a loaded, stolen gun. The jury was satisfied, from the evidence, that Priest and Fletcher were conspiring to commit the crime of possession with intent to deliver cocaine. The jury also could have concluded that Priest was Fletcher’s accomplice in possessing the crack cocaine found in the glove compartment, and in possessing the same cocaine with intent to deliver. As this Court noted in upholding Fletcher’s convictions:
The State showed that Fletcher and Priest were engaged in a joint criminal enterprise and conspired to sell the cocaine, that Priest rode in the vehicle after Fletcher obtained Powell’s consent, that Priest remained with the vehicle while Fletcher went into the restaurant, and that Priest was in possession of the firearm while he and Fletcher were in the car. That evidence was sufficient for the jury to conclude that Fletcher and Priest had agreed that Priest would carry the gun during the criminal enterprise. 66
In sum, since there is enough evidence to support convictions on the underlying drug charges, the jury’s decision to acquit Priest can be attributable to lenity, and the weapons convictions should be affirmed.
. 655 A.2d at 1219.
. 367 A.2d 638 (Del. 1976).
. At that time it was designated § 1447(d).
. Id. at 640.
. Fletcher v. State, 2005 WL 646841 , *4 (Del. Supr.).