by Douglas Ankney

The Supreme Court of Delaware clarified the meaning of “mixture” as the term is used in Delaware’s Uniform Controlled Substances Act (“Act”).

Police recovered from the person of Darren Wiggins a vial containing an amber liquid and brown chunks. Wiggins was ultimately charged with several offenses, including one count of Aggravated Possession of PCP based on the contents of the vial.

At Wiggin’s trial, forensic chemist Heather Moody testified that the amber liquid tested positive for phencyclidine (“PCP”). She did not test the brown chunks and did not know what they were. She testified that the combined weight of the liquid and the chunks was 17.651 grams, but she had not weighed either the liquid or the chunks separately. The State offered no evidence as to the comparison of the brown chunks or their relationship to the liquid PCP mixture.

After the prosecution rested, Wiggins moved for judgement acquittal on the Aggravated Possession charge, arguing the State failed to prove the PCP mixture met the 15-gram statutory weight threshold.

The State had not proven the weight of the liquid PCP mixture and had not shown the brown chunks were part of that mixture. The Superior Court denied the motion. Wiggins appealed the denial, arguing the State presented insufficient evidence to convict him of aggravated possession.

The Delaware Supreme Court observed that it “review[s] the denial of a motion for judgment of acquittal de novo to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt.” Pardo v. State, 160 A. 3d 1136 (Del. 2017).

At the time of Wiggin’s arrest the Aggravated Possession provision of the Act read “any person who … [p]ossess a controlled substance in a Tier 3 quantity … shall be guilty of a class B felony.” 16 Del. C. § 4752 (4). A Tier 3 controlled substance quantity was defined as “15 grams or more of phencyclidine [PCP], or of any mixture containing any such substance.” 16 Del. C § 4751C (3)(f). Resolution of the appeal then turned on the definition of “mixture” as used in the Act.

In Chapman v. United States, 500 U.S. 453 (1991), the Supreme Court of the United States (“SCOTUS”) interpreted the meaning of “mixture” in a federal Aggravated Possession statute that was similar to Delaware’s. In Chapman, SCOTUS considered whether liquid LSD and the blotter paper on which it was applied were a “mixture” for the purpose of weight for sentencing — the greater the weight, the steeper the penalty. SCOTUS noted that “Congress adopted a ‘market-oriented’ approach to punish drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.” Id.

SCOTUS observed that blotter paper was used to facilitate distribution of LSD; was not easily separated from the LSD; and was often ingested with the LSD. Id. SCOTUS distinguished the blotter paper from packaging materials and containers like glass vials, which could not be considered part of a mixture. Id. Because the blotter paper was a “medium used to facilitate the distribution of the drug” and acted as a “tool of the trade for those who traffic in [LSD],” SCOTUS held that the LSD and the blotter paper were a mixture and included the weight of the blotter paper for sentencing. Id.

Since Chapman, the federal circuits have split in the application of the decision to other mixtures. The “Second, Third, Sixth, Seventh, Ninth and Eleventh Circuits have adopted the approach that sentencing calculations … may not be based on the weight of mixtures containing unusable unmarketable materials.” United States v. Killion, 7F. 3d 927 (10th Cir. 1993). This is referred to as “the majority approach and bases the determination of whether a component is part of a mixture on whether the compound remains “usable in the chain of distribution after the component is included.” United States v. Rodriguez, 975 F2d 999 (3d Cir. 1992).

Other federal circuits reject the majority approach. The First, Fifth, and Tenth Circuits do not consider the marketability of a drug substance as long as the mixture contains a detectable amount of a controlled substance. Killion.

In Traylor v. State, 458 A.2d1170 (Del. 1983), the Delaware Supreme Court acknowledged that the General Assembly intentionally adopted a “market-oriented” sentencing scheme that was similar to the federal scheme in Chapman. “[D]angerous drugs are generally marketed in a diluted or impure form. If illegal substances are so distributed, then the General Assembly does not act irrationally or unreasonably when it addresses the marketing of the compound rather than the pure form of the drug.” Traylor.

The Court concluded that “the plain meaning of ‘mixture’ read in context with Delaware’s statutory scheme is consistent with the approach adopted by the Third Circuit and the majority of other federal circuits that have considered the issue; mixtures include only those compounds that are marketable or ‘usable in the chain of distribution.’”

In the instant case, the State failed to present any evidence on which a rational jury could find that the brown chunks were marketable or usable in the chain of distribution. The standard for the State was not high. It required only some evidence that the chunks were a PCP byproduct, or were necessary for distribution, or were consumed along with the PCP, etc. But the State presented no evidence other than the chunks were in the vial with the liquid PCP mixture.

Accordingly, the Court reversed the conviction for Aggravated Possession because no rational jury could have found the mixture met the 15-gram threshold weight without the brown chunks, and the Court remanded for re-sentencing based on the lesser offense of Misdemeanor Possession.See: Wiggins v. State, 2020 Del. LEXIS 135 (2020).

Subscribe today

Already a subscriber? Login

Related legal case