IN THE SUPREME COURT OF THE STATE OF DELAWARE 

MALIK WILLINGHAM, 

Defendant Below, 

Appellant, 

v. 

STATE OF DELAWARE, 

Appellee.

§ 

§ 

§ No. 189, 2022 

§ 

§ Court Below—Superior Court 

§ of the State of Delaware 

§ 

§ Cr. ID Nos. N1910009457A 

§ N1910009457B 

§

Submitted: February 24, 2023 

Decided: April 27, 2023 

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices. 

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears 

to the Court that: 

(1) After an initial trial that resulted in a mistrial, in November 2021 a 

Superior Court jury found the defendant-appellant, Malik Willingham, guilty of two 

counts of drug dealing (cocaine and methamphetamine), possession of a firearm 

during the commission of a felony (“PFDCF”), and possession of a firearm by a 

person prohibited (“PFBPP”).1 The Superior Court sentenced Willingham to a total 

1

 The PFBPP charge was tried to the same jury as a separate “B” case, after the jury reached its 

verdict on the other charges. 
2

of forty-one years in prison, suspended after a total of eight years for decreasing 

levels of supervision. This is Willingham’s direct appeal. 

(2) The evidence presented at trial reflects that on the morning of October 

15, 2019, New Castle County police officer Mark Scullion was working as a member 

of the Mobile Enforcement Team, which was assigned to perform proactive patrol 

to address quality-of-life issues, including drug activity. As the officer drove along 

the main road entering the Sparrow Run neighborhood, a car with heavily tinted 

windows drove past him. Officer Scullion noticed an odor of marijuana as the car 

passed. He ran the license plate and discovered that the vehicle’s registration was 

suspended. He then made a U-turn, intending to conduct a traffic stop based on the 

suspended registration, but the car had parked at a nearby convenience store and the 

driver, Willingham, had exited the vehicle to enter the store. Willingham returned 

to the car and drove across the road to another convenience store. Officer Scullion 

conducted a motor vehicle stop in the parking lot of the second store. 

(3) As Officer Scullion approached the driver’s side door, he could smell 

the odor of marijuana and observed a marijuana blunt on the center console. Officer 

Scullion asked Willingham if he had marijuana, and Willingham said that he did. 

Officer Scullion decided to detain Willingham to search him and the car. The officer 

asked Willingham to exit the car, and placed him in handcuffs and told him that he 

was not under arrest but was being detained. Willingham admitted that he had a 
3

small amount of marijuana in his pocket. The officer searched Willingham and 

found $415 in cash. 

(4) Other officers from the Mobile Enforcement Team began arriving on 

the scene, and Officer Scullion and the other officers searched the car. The officers’ 

body-worn cameras captured much of the search. In a bookbag that was on the front 

passenger seat, the officers found 51 small orange containers of suspected crack 

cocaine, 19 small blue containers of suspected methamphetamine, and a digital scale. 

In the pocket of the driver’s side door, the officers found a loaded .223 rifle magazine 

wrapped in a plastic bag and rubber gloves. In the trunk of the car, the police officers 

found a large amount of personal property, including clothing, shoes, and toys. 

Behind the personal property, in the section of the trunk behind the rear passenger 

seat of the car, they found an unloaded Ruger Sturm .223 rifle. 

(5) A forensic DNA analyst testified that a DNA swab taken from the 

rifle’s grip produced a single-source DNA profile that matched Willingham’s 

reference sample. A forensic analytical chemist testified that 22 of the orange 

containers had crack cocaine, and he estimated with a 95% probability that the 51 

containers of crack cocaine weighed a total of 3.43 grams, plus or minus .15 grams. 

He testified that 15 blue containers had methamphetamine and estimated with a 95% 

probability that the 19 blue containers weighed a total of 15.5 grams, plus or minus 

.056 grams. A member of the Delaware State Police Drug Task Force opined that 
4

the amount and packaging of the drugs, the presence of paraphernalia consistent with 

drug dealing, the absence of paraphernalia for drug consumption, and the fact that 

Willingham had $415 in cash demonstrated that the drugs were meant for 

distribution. 

(6) The car was registered to Willingham and Kevin Mahoney, who 

testified that he had co-signed a loan with Willingham to purchase the car, when 

Willingham and Mahoney’s daughter were in a relationship, but had not driven the 

car since the purchase. Police contacted Mahoney after Willingham’s arrest to 

retrieve the vehicle. Mahoney cleaned out the car and discarded many items, and 

his daughter returned others to Willingham. Because the police officers did not 

preserve the backpack or the clothing as evidence, the court provided the jury with 

a missing-evidence instruction. The defense argued that the dual registration and 

the presence of certain items in the car suggested that there were other users or 

drivers of the car. The defense also argued that the items in the trunk could have 

transferred Willingham’s DNA onto the rifle. 

(7) Willingham was represented by counsel before and during his 

November 2021 trial. After his conviction, Willingham asked his counsel to file a 

motion to withdraw. The Superior Court held a hearing on December 17, 2021, and 

the court granted the motion. Willingham proceeded pro se after that time, including 

in this appeal. 
5

(8) Willingham asserts three claims of error in his opening brief on appeal. 

First, he contends that the Superior Court erred by declining to hear the merits of a 

pro se motion to suppress that he submitted when he was represented by counsel. 

Willingham asserts that he attempted orally “several times” to challenge the search 

as unconstitutional. On June 8, 2021, Willingham filed a pro se motion to suppress 

the evidence obtained from the search. The Superior Court referred the motion to 

Willingham’s counsel. On June 14, 2021, at the final case review before the first 

trial, Willingham argued that his counsel was ineffective for not filing a motion to 

suppress, argued that the evidence should be suppressed, and asked the court to 

consider his motion on the merits.2 The court declined to decide the motion on the 

merits, stating that “[i]t is a rule of this court that the court does not entertain 

applications by people who are represented by counsel.”3 The court also explained 

that while certain decisions are the client’s to make, others are the lawyer’s to make, 

and the decision about whether to file a motion to suppress was within counsel’s 

professional judgment.4 

(9) Willingham raised the issue again during the second trial and in a letter 

that he sent to the court before that trial. The Superior Court again explained that it 

was counsel’s decision whether to file a suppression motion, and that three different 

2

 App. to Answering Br. at B23-27. 

3

Id. at B27. 

4

Id. at B27-31. 
6

attorneys had determined that they did not have a good faith basis to file a 

suppression motion, including after having the benefit of sworn testimony during the 

first trial.5 The court declined to consider the suppression issue on the merits. 

(10) The Superior Court did not err by declining to consider Willingham’s 

pro se motion to suppress. Under Superior Court Rule 47, the Superior Court “will 

not consider pro se applications by defendants who are represented by counsel unless 

the defendant has been granted permission to participate with counsel in the 

defense.”6 Willingham “was not granted permission to participate with counsel in 

the defense and the Superior Court was not required to consider his pro se motion to 

suppress.”7

(11) Second, Willingham argues that the police search of his person and 

vehicle were unconstitutional, and the resulting evidence should have been 

suppressed. Specifically, he argues that the searches exceeded the “scope and initial 

justification” of the traffic stop, without probable cause for the warrantless searches. 

Because Willingham did not assert the merits of his claim in a properly presented 

5 State v. Willingham, I.D. No. 1910009457A, Trial Transcript, at 11-13 (Del. Super. Ct. Nov. 2, 

2021). 

6

 DEL. SUPER. CT. R. CRIM. PROC. 47. 

7 Blenman v. State, 2016 WL 889551, at *3 (Del. Mar. 8, 2016); see also McGlotten v. State, 2008 

WL 5307990, at *2 (Del. Dec. 22, 2008) (“[T]he record reflects that the Superior Court properly 

refused to consider McGlotten’s motions [to compel and to suppress] when he was represented by 

counsel.”). 
7

motion, as discussed above, we review for plain error.8 We find no plain error in the 

circumstances of this case. 

(12) Police may lawfully search a vehicle without a warrant if the police 

have probable cause to believe that the automobile is carrying contraband or 

evidence of criminal activity.9 “Probable cause determinations are made by 

evaluating the totality of the circumstances.”10 The record reflects that Officer 

Scullion smelled an odor of marijuana emanating from the car that Willingham was 

driving and of which he was the sole occupant; that the officer observed a marijuana 

blunt on the center console when he approached the car; and that when Officer 

Scullion asked Willingham if he had marijuana, Willingham admitted that he did. 

These facts are sufficient to establish that Officer Scullion had probable cause to 

believe that Willingham’s vehicle contained contraband or evidence of criminal 

activity, including consumption of marijuana in a moving vehicle in violation of 16 

Del. C. § 4764(d).11 

8 Cf. Pollard v. State, 284 A.3d 41, 44 (Del. 2022) (applying plain error standard of review to 

claim that Superior Court erred by failing to suppress evidence derived from vehicle search sua 

sponte). 

9

Id. at 46. 

10 Id. (internal quotations omitted). 

11 See id. at 47 (concluding that officers had probable cause to search a vehicle where the officers 

smelled marijuana emanating from the vehicle, observed marijuana remnants in the center console 

and on the floor of the vehicle, and observed a small nugget in the center console of the vehicle). 
8

(13) As to the search of Willingham’s person, police may search a suspect 

incident to a lawful arrest.12 “While a search typically occurs after an arrest, this 

Court has held that where the arrest and search are nearly contemporaneous, the 

search may precede the arrest, so long as the police do not use the search to establish 

probable cause for the arrest.”13 Willingham arguably was not under arrest when 

Officer Scullion searched him and found $415, but “he was arrested shortly 

afterwards” and the police did not use the $415 to establish probable cause to arrest 

him.14 Rather, the police had probable cause to arrest Willingham based on the drugs 

and rifle that they found when they searched the vehicle. We find no plain error 

arising from the searches in this case. 

(14) Finally, Willingham asserts that the evidence presented at trial was 

insufficient to establish that he possessed the drugs and weapons. Willingham did 

not move for a judgment of acquittal, and we therefore review for plain error.15 After 

reviewing the record, we conclude that a rational trier of fact, viewing the evidence 

in the light most favorable to the State, could find that Willingham possessed the 

drugs and rifle based on the evidence presented at trial, for purposes of convicting 

12 Spencer v. State, 2018 WL 3147933, at *4 (Del. June 25, 2018). 

13 Id. (internal quotations omitted). 

14 Id.

15 See Williamson v. State, 113 A.3d 155, 157 (Del. 2015) (“[I]t is well-settled that in a jury trial, 

if a defendant fails to make a motion for acquittal to the trial court, the defendant has failed to 

preserve the right to appeal the issue of the sufficiency of the evidence to convict, and we . . . apply 

the plain error standard of review.”). 
9

him of the drug charges and PFBPP.16 Proof of constructive possession is sufficient 

to satisfy the possession element of the drug offenses and PFBPP.17 To establish 

constructive possession, the State must show that a defendant (i) knew the location 

of the contraband; (ii) had the ability to exercise dominion and control over the 

contraband; and (iii) intended to guide the destiny of the contraband.18 The cocaine 

and methamphetamine were located in a backpack on the passenger seat of the car 

of which Willingham was co-owner, and of which he was the driver and sole 

occupant. The firearm was in the trunk of that same vehicle and had Willingham’s 

DNA on it, and ammunition that fit that gun was located in the pocket of the driverside door. Officers also located pieces of mail addressed to Willingham in the 

vehicle, and Willingham’s former girlfriend returned items from the car to 

Willingham after her father retrieved the car from impound. We conclude that the 

evidence was sufficient to find that Willingham constructively possessed the drugs 

and firearms, for purposes of finding him guilty of the drug offenses and PFBPP.19

16 See Farmer v. State, 844 A.2d 297, 300 (Del. 2004) (stating that the Court reviews claims of 

insufficient evidence 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). 

17 See Lecates v. State, 987 A.2d 413, 418-421 (Del. 2009) (discussing the possession element of 

drug-possession offenses and possession of a deadly weapon by a person prohibited, both of which 

may be satisfied by proof of constructive possession, and contrasting that standard with the “more 

limited” possession standard applicable to possession of a deadly weapon during commission of a 

felony, which also requires proof that the deadly weapon was “physically available and accessible” 

to the defendant during the commission of the felony). 

18 Bradley v. State, 2018 WL 5304859, at *2 (Del. Oct. 24, 2018). 

19 Cf. id. (concluding that evidence was sufficient to establish defendant’s constructive possession 

of drugs found in the trunk of a car that was registered to the defendant’s mother where the 
10

(15) To find Willingham guilty of PFDCF, the jury was required to 

determine that Willingham actually or constructively possessed the gun and that the 

gun was “physically available or accessible” to Willingham during the commission 

of the underlying felony.20 “The elements of availability and accessibility, however, 

do not require the weapon to be in the offender’s immediate physical possession or 

within easy reaching distance of the offender.”21 This Court has observed that the 

purpose of the PFDCF provision is to prevent a “non-violent” felony from becoming 

violent, and the term “during the commission of a felony” as used in the PFDCF 

statute “encompasses a somewhat extended time frame.”22

(16) This Court has held that the availability or accessibility element was 

satisfied when a gun and drugs were found in the defendant’s bedroom, even though 

the defendant was observed conducting drug transactions outside the home and was 

arrested outside;23 drugs and guns were found in a handbag in the trunk of a car that 

evidence included multiple documents with the defendant’s name that were found in the car, a bag 

of men’s clothing that was found in the trunk, and multiple recent accounts of the defendant’s 

possessing the car). 

20 Maddrey v. State, 975 A.2d 772, 775 (Del. 2009); Lecates, 987 A.2d at 421 (“The State must 

establish physical availability and accessibility in addition to proving actual or constructive 

possession.”). We note that the court instructed the jury that they had to find that “the weapon was 

in the immediate personal possession of, or under the immediate control of the defendant so that 

it was physically available or accessible during the commission of the crime” in order to find 

Willingham guilty of PFDCF. 

21 Pauls v. State, 476 A.2d 157, 160 (Del. 1984), quoted in Lecates, 987 A.2d at 419-20. 

22 Lecates, 987 A.2d at 420 (internal quotations omitted). 

23 See Childress v. State, 721 A.2d 929, 931-32 (Del. 1998) (“Here, a rational fact finder could 

conclude that Childress kept the firearm in such close proximity to his drug inventory that it was 

in his possession during the commission of the felony of drug trafficking. There was thus ample 
11

an officer had seen the defendant driving, which was parked outside the home of the 

defendant and his girlfriend, and the defendant and his girlfriend were inside the 

home when the police executed a search warrant;24 a rifle and handgun “were located 

less than 25 feet from the place where the narcotic drugs were discovered;”25 and 

handguns were found in a locked safe in the defendant’s bedroom, where drugs and 

drug paraphernalia were also located.26 We find no plain error in Willingham’s 

conviction for PFDCF on the basis of insufficient evidence. 

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED. 

BY THE COURT: 

/s/ Collins J. Seitz, Jr. 

 Chief Justice 

evidence to support the jury’s determination that Childress had immediate access to the firearm 

during the ‘continuing felony’ of his drug-dealing operation, and it is irrelevant that the firearm 

was unloaded when it was found in the search.”). 

24 Brooks v. State, 2007 WL 1470649, at *2 (Del. May 22, 2007); see also id. (stating that in 

Kornbluth v. State, 580 A.2d 556 (Del. 1990), “weapons found in close proximity to drugs in the 

same room were deemed sufficient to support a conviction for possession of deadly weapons 

during the commission of a felony, because the weapons were physically available or accessible 

to the defendant during the drug offense even though the defendant was not present at the time of 

the search”). 

25 Wilson v. State, 343 A.2d 613, 618 (Del. 1975). 

26 Maddrey v. State, 975 A.2d 772, 777-79 (Del. 2009); see also id.at 773 (“Because the record 

reflects that the evidence was sufficient for a jury to reasonably infer that the handguns were 

available and accessible during the course of Maddrey’s continuing felonies of Possession with 

Intent to Distribute Crack Cocaine and Maintaining a Dwelling for Keeping Controlled 

Substances, the judgment of the Superior Court must be affirmed.”).