The Best Argument Ever for Merger of DCS-MCS and PCS
I have written a number of posts regarding merger of DCS (or MCS) and PCS. Has anyone preserved those arguments? Who knows. No one tells me anything. :(
The case law is against us, but some developments in the law have justified preserving the issue again. Here's one. MCS and PCS arguably merge under a State v. Blake analysis (i.e., you can't manufacture without possessing, even if possession isn't a specific element of MCS).
The argument isn't as strong for DCS, because the "D" in DCS is defined as "delivers or attempted to delivers". Since one could "attempt to deliver" without actually possessing something to deliver, committing a DCS doesn't necessarily require committing a PCS. Again, I have laid out arguments to the contrary elsewhere. Go the the a dozen posts page to find some of those arguments.
But the argument is even simpler than I realized. And it has been since 2010.
In 2010, the COA issued State v. Cufaude. Cufaude is a perfectly logical but unfortunate decision. At the time Cufaude was argued, the COA had already held that Unlawful Use of a [Dangerous] Weapon merged with Assault II (use of a dangerous weapon). State v. Ryder. Pretty simple and straightforward analysis. Can't really commit the latter without also committing the former.
But Cufaude came out differently. It didn't overrule Ryder, but it limited it. The Cufaude court noted that UUW could be charged either of two ways: attempted use of a dangerous weapon OR possession with intent to use a dangerous weapon. The defendant in Cufaude had been charged with "possession with intent to use," and in theory he could committ Assault II without actually possessing a dangerous weapon. In other words, he could committ Assault II involving use of a dangerous weapon and not inevitably "possess with intent to use." How? Slam someone's head against a cement sidewalk. You've committed Assault II even if you haven't "possessed" the sidewalk.
What this meant was that -- out of the two different theories that would support a conviction for UUW -- the theories were not equal, at least not when it came to merger. Getting convicted under one theory resulted in merger, but the other did not. And it depended on whether the theory -- not the crime, but the theory -- inevitably followed from the commission of the greater offense.
Which brings us to MCS, and the multiple theories under which a person can be convicted of MCS.
(15) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container[.]
Now, in order for the Blake analysis to not apply, at least one of those theories would not inevitably require possession of the controlled substance. Preparation, perhaps? You could prepare to manufacture meth without possessing it, I guess. But other theories would inevitably require possession. Repackaging inevitably requires possessing, dunnit? Assume that it does.
What if -- through either a motion to elect or the MJOA -- you were able to limit the jury's consideration of only those theories of manufacturing which necessarily required possession? For example, no evidence of "preparation," so the jury doesn't get a chance to consider preparation when they deliberate on whether your client "manufactured" methamphetamine. Assume you similarly exclude all other (unmergeable) theories, leaving only theories of MCS that necessarily require possession. Under the Ryder analysis, wouldn't they merge?
Two problems with this argument: first, this would appear to require a factual circumstance that allow you to limit the state's theories. [More on this below.] Further, there is a structural difference between UUW and MCS: the two theories of UUW are contained within the UUW statute, but you have to import the different theories of manufacturing from the definition of manufacturing. It's not clear to me why -- or rather, if -- the latter argument would result in a different analysis than the Ryder/Cufaude analysis.
Same thing with DCS. Assume your client is convicted after a controlled buy, i.e, he actually delivered.
"Deliver" or "delivery" means the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship.
Would the facts of the case justify knocking out the "constructive" and "attempted" theories of transfer, either through a motion to elect or an MJOA? Alternatively, could you ask for jury concurrence and have the jury mark on the verdict form which of the three it picked? Whatever the vehicle, if the jury only convicts under a theory of actual transfer, which would necessarily require possession, doesn't the Ryder/Blake analysis justify merger of DCS and PCS?
Here's one thing the COA hasn't answered, and when they do, this argument might get even better for the defense bar. Assume a defendant is convicted of Assault II and UUW, and the jury was told they could convict under either theory of UUW: that is, the jury could convicted based on the one theory that would require merger and/or they could convicted based on the one that wouldn't. The jury convicts but is never asked and never volunteers which theory it convicted of. (In most cases, probably both.)
Does the UUW still merge into the Assault II? That is, if both the Ryder and the Cufaude analyses would apply, which prevails? If the answer is Ryder, then the two counts merge as long as there is at least one mergeable theory on which the jury could have convicted. Consequently, you wouldn't have to force the jury to pick a mergeable theory of DCS or MCS. To prohibit merger, the jury would have to be limited to those theories (like "preparation" or "attempted transfer") that didn't necessarily require possession.