Submitted: June 19, 2013
Matthew B. Frawley, Esquire Department of Justice
Eugene J. Maurer, Jr., Esquire Eugene J. Maurer, Jr., P.A.
The defendant was indicted by the Grand Jury on charges of Carrying a Concealed Deadly Weapon, Possession of Ammunition by a Person Prohibited and Possession of a Firearm by a Person Prohibited on January 22, 2013. The case was scheduled for a jury trial on May 23, 2013 but just prior to the selection of the jury, the parties agreed to a bench trial. Evidence was presented on May 23rd and 24th including testimony from the defendant. At the conclusion of the evidence, the Court agreed to allow the submission of letter memorandum regarding the justification defense of "choice of evils" that had been asserted by the defendant during the trial. This is the Court's ruling after considering the parties' submissions.
There is no dispute that the State presented sufficient evidence to support the charges. Officers were called to the area of Pleasant and Van Buren Streets in the city of Wilmington based upon receiving a complaint about an individual with a firearm. A description of the individual was provided, and upon arriving at the location, the officers observed an individual matching that description. As they exited their vehicle, the defendant began to run, and during the chase removed a silver handgun from his waist area, subsequently throwing the gun over a garage. The gun was recovered by the police, and the defendant was taken into custody.
While the defendant acknowledges that because of a prior felony conviction he illegally possessed a loaded gun, at trial he relied on the defense of justification or what is better known as the "choice of evils" defense. In support of this defense, the defendant testified that approximately three weeks before the arrest an incident occurred between friends of his, who were at his house for a party, and a female who was walking by and lives around the corner from his home. Soon after this incident occurred, the female's uncle confronted the defendant and an argument ensued over what had occurred. A couple days later, while the defendant was walking home, he was struck in the head by the uncle, causing an injury to the defendant's head area. The defendant subsequently learned that the uncle was a fugitive from Puerto Rico on what he believed to be outstanding murder charges.
The defendant did not feel he could call the police since he believed it would only make matters worse in the neighborhood where he lived. In addition to the uncle, the defendant also had a conflict with another individual in the neighborhood who believed the defendant was snitching on him, for his drug and robbery-related activity. This led to several confrontations with that individual as well. Several days prior to the defendant being arrested, the uncle, as well as the other individual, both approached the defendant brandishing a knife, but the defendant was able to escape the confrontation.
The defendant testified that he was terrified as a result of these events and believed his family was in danger. The defendant and his girlfriend even discussed leaving the neighborhood. The day before the defendant was arrested, the uncle reappeared at the defendant's home and based upon his conduct, the defendant believed he was armed, although he never actually saw a firearm. Fearing for his life and that of his family, the defendant at that point decided to obtain a handgun.
The "choice of evils" justification defense is set forth in 11 Del. C. § 463. The statute states as follows:
Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant and which is of morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
As a result, under the statute, in order for the defendant to prevail he must establish the following:
(1) His illegal conduct was necessary as an emergency measure;
(2) It occurred in order to avoid an imminent public or private injury ...