Brown v. State

• Decision Date: 01 September 1987
• Docket Number: No. 15,15
• Citation: 535 A.2d 485,311 Md. 426
• Parties: Donald Leroy BROWN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 426

311 Md. 426

535 A.2d 485

Donald Leroy BROWN v. STATE of Maryland.

No. 15, Sept. Term, 1987.

Court of Appeals of Maryland.

Jan. 13, 1988.

Melissa M. Moore, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and COLE, RODOWSKY, ADKINS and BLACKWELL, JJ.

BLACKWELL, Judge.

Maryland Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.), Article 27, § 36B(d) provides in pertinent part:

"Any person who shall use a handgun ... in the commission of any felony or any crime of violence ... shall be guilty of a separate misdemeanor...."

The common question in the two cases we now consider is whether multiple convictions of armed robbery, arising from a single criminal transaction involving multiple victims, support multiple convictions of § 36B(d). An additional question presented by one of the cases relates to the qualification of foreign convictions for purposes of enhanced punishment.

I

Two criminal cases against Petitioner Donald Leroy Brown ("Brown") from the Circuit Court for Montgomery County have been consolidated for review. Except for the number of victims, the two cases, No. 38247 and No. 38248, involved similar criminal episodes. Around midnight, Brown and a confederate, both armed, broke through the kitchen doors of occupied dwelling houses, assembled the occupants at gunpoint, ransacked the houses and carried away personal property belonging to the occupants. In case No. 38247, in which there were two victims, Brown was convicted of two counts of robbery with a deadly weapon, two counts of use of a handgun in the commission of a crime of violence, and burglary. In case No. 38248, in which there were four victims, Brown was convicted of four counts of robbery with a deadly weapon, four counts of use of a handgun in the commission of a crime of violence, and burglary. For the handgun use convictions, Brown received, in addition to the sentences imposed for the other convictions, two consecutive twenty year sentences in No. 38247 and four concurrent twenty year sentences in No. 38248. ¹

In No. 38247, the State proceeded against Brown as a subsequent offender pursuant to Maryland Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.), Article 27, § 643B. The trial court refused to impose enhanced punishment for reasons to be discussed infra.

Brown appealed the judgments in No. 38247 and No. 38248 to the Court of Special Appeals and that court consolidated the cases for review. ² Among other allegations of error, Brown challenged, in both cases, his conviction of and sentences for multiple counts of use of a handgun in the commission of a crime of violence arguing that a single criminal transaction supports only one handgun conviction and sentence. The State cross-appealed on the trial court's refusal to impose enhanced punishment in No. 38247. In an unreported, per curiam opinion, the Court of Special Appeals affirmed the judgments in No. 38247 and No. 38248 and, agreeing with the State on the cross-appeal, remanded No. 38247 for resentencing. We granted Brown's petition for writ of certiorari which presented the following two questions:

1. Was the evidence sufficient to sustain multiple convictions and sentences for use of a handgun in the commission of a crime of violence where there was only one criminal episode?

2. Did the trial court err in refusing to impose enhanced punishment under Article 27, § 643B of the Maryland Code? ³

II

While Brown has cast his first question in terms of the sufficiency of the evidence, the thrust of his argument is that the multiple handgun use convictions and sentences in No. 38247 and No. 38248 constitute multiple punishment for the same offense prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. ⁴ We disagree and affirm the convictions.

The Double Jeopardy Clause protects a criminal defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); Donaldson v. State, 305 Md. 522, 530, 505 A.2d 527, 532 (1986); Johnson v. State, 303 Md. 487, 520, 495 A.2d 1, 18 (1985). Multiple punishment challenges generally arise in one of two broad contexts:

"(a) A statute or a portion thereof proscribes designated conduct, and the question is whether the defendant's conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment."

Gore v. United States, 357 U.S. 386, 393-94, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405, 1411 (1958). See generally, Weston & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 111-22. The present challenge arises within the first.

Whether a particular course of conduct constitutes one or more violations of a single statutory offense affects an accused in three distinct, albeit related, ways: multiplicity in the indictment or information, multiple convictions for the same offense, and multiple sentences for the same offense. ^{5 5} All three turn on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent. See Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C.I.T., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915). ⁶

In each of the cases at bar, Brown was convicted of violations of § 36B(d). ⁷ In case No. 38247, in which Brown was convicted of two counts under § 36B(d), the crimes of violence were two armed robberies arising from a single criminal transaction involving two victims. Similarly, in case No. 38248, in which Brown was convicted of four counts under § 36B(d), the crimes of violence were four armed robberies arising from a single criminal transaction involving four victims.

Brown contends that the unit of prosecution of § 36B(d) is the criminal transaction. He rests his argument on the assumption that "whether a felon robs a single individual, or hypothetically fifty people at a social gathering, there still remains only one 'use' of the handgun." (Petitioner's brief at 28). Under Brown's theory, then, an individual who uses a handgun in a criminal transaction which results in one or more felony or violent misdemeanor convictions has committed only one handgun use offense regardless of the number of felony or violent misdemeanor convictions. The State, on the other hand, maintains that the unit of prosecution is the crime of violence and relies on the following passage from Battle v. State, 65 Md.App. 38, 50, 499 A.2d 200, 206 (1985), cert. denied, 305 Md. 243, 503 A.2d 252 (1986) (quoting Manigault v. State, 61 Md.App. 271, 279, 486 A.2d 240, 244 (1985)):

"A single criminal episode may, of course, give rise to a number of separate charges, some of which may be multiplied but some of which may not. The key is to identify the unit of prosecution. Both an aggravated assault (Count 1) and a simple assault (Count 2) may be multiplied when there are multiple victims. The unit of prosecution is the victim. With respect to the use of a handgun to perpetrate a crime of violence (Count 4), the unit of prosecution is the crime of violence. Assuming that the other elements have been proved, two victims imply two crimes of violence. That, in turn, implies two separate crimes of using a handgun to commit a crime of violence."

Thus, under the State's theory, the number of handgun use offenses will equal the number of felony or violent misdemeanor convictions.

We agree with the construction advanced by the State. The unit of prosecution of a statutory offense is generally a question of what the legislature intended to be the act or course of conduct prohibited by the statute for purposes of a single conviction and sentence. See Ladner v. United States, supra, 358 U.S. at 173-78, 79 S.Ct. at 211-14, 3 L.Ed.2d at 203-5; Bell v. United States, supra, 349 U.S. at 81-83, 75 S.Ct. at 622, 99 L.Ed. at 909-10; United States v. Universal C.I.T., supra, 344 U.S. at 221-25, 73 S.Ct. at 229-31, 97 L.Ed. at 264-66; Ebeling v. Morgan, supra, 237 U.S. at 628-30, 35 S.Ct. at 711-12, 59 L.Ed. at 1152-53. See also Thomas, A Unified Theory of Multiple Punishment, 47 Pitt.L.Rev. 1, 11 (1985). We think the language of § 36B(d) plainly indicates that the prohibited act is the use of a handgun in the commission of a felony or violent misdemeanor.

First, words in a statute are generally given their common and ordinary meaning. See Kaczorowski v. City of Baltimore, 309 Md. 505, 513-16, 525 A.2d 628, 632-33 (1987); Comptroller v. Fairchild Industries, 303 Md. 280, 284, 493 A.2d 341, 343 (1985); C. Sands, 2A Sutherland Statutory Construction § 47.28 (4th ed. 1984, 1987 Cum.Supp.). Section 36B(d) states, with emphasis added, that "[a]ny person who shall use a handgun in the commission of any felony or any crime of violence" is guilty of a handgun use offense. According to Webster's New International Dictionary (unabr. ed. 1959), "any" is defined as

"[i]ndicating a person, thing, etc., as one selected without restriction or limitation of choice,...