Sears v. State

• Decision Date: 14 May 1985
• Docket Number: 3 Div. 952
• Parties: Harold Eugene SEARS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1308

479 So.2d 1308

Harold Eugene SEARS v. STATE.

3 Div. 952.

Court of Criminal Appeals of Alabama.

May 14, 1985.

Rehearing Denied June 11, 1985.

Certiorari Denied Aug. 30, 1985

Alabama Supreme Court 84-992.

On Return to Remand Nov. 26, 1985.

John T. Kirk, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Harold Eugene Sears, the appellant, was charged in two indictments: one indictment charged trafficking in cocaine and the other indictment charged, in count one, the illegal possession of diazepam and, in count two, the illegal possession of marijuana. These indictments were consolidated for trial and Sears was determined to be guilty as charged. For his trafficking conviction, Sears was sentenced to imprisonment for a term of fifteen years and fined $25,000. For his possession conviction, he was sentenced to imprisonment for a term of fifteen years, with the sentence to run concurrently with his sentence in the trafficking conviction, and fined $25,000.

For purposes of this appeal, we need only relate the following facts: On the morning of July 29, 1983, Investigator Strope was told by an informant that Sears was leaving his residence at approximately 1:00 p.m. to pick up some cocaine to fill some orders. Investigator Byrd set up surveillance at Sears's residence at 12:15 p.m., while Strope obtained search warrants for Sears's person, motorcycle, house, and automobile. At 1:00 p.m., Byrd observed Sears leave his residence; he followed Sears for a while; and at 3:45 p.m., he observed Sears return to his residence. Sears was then seized, and the search warrants were executed. In Sears's bedroom, the officers discovered drug paraphernalia; in a can under the bed, a small amount of marijuana and two bottles containing diazepam; and another bottle containing diazepam, which was found in a dresser drawer. On Sears's person, the officers found a diazepam tablet and a plastic bag containing 34.1 grams of a mixture containing cocaine, which he had hidden inside his pants. Later, Sears stated that he purchased the seized cocaine for $2,000; that he did not personally use cocaine, but did use diazepam and alcohol; and that if he Sears contends that he was improperly convicted and sentenced because his simultaneous possession of diazepam, marijuana, and cocaine was not punishable as the multiple offenses of possession proscribed by § 20-2-70(a), Code of Alabama 1975, and trafficking in cocaine proscribed by § 20-2-80(2), but rather was one possession and thus one punishable offense. In support of this contention, Sears relies upon Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), aff'd on another ground, writ quashed as to instant issue, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), wherein the court expressly held that "where ... there is but a single point of control in time and place over several types of controlled substances, only a single offense has been committed, the offense of possession of controlled substances, and only one sentence is authorized." Id. at 882. This holding is predicated upon the court's consideration of (1) the constitutional double jeopardy provisions, U.S. Const. Amend. V and Ala. Const., Art. I § 9, prohibiting the prescribing of multiple punishments for the same offense, id. at 879; and (2) the language of § 20-2-70(a), which "indicates that the statute prohibits the 'possess[ion] ... of controlled substances enumerated in schedules I, II, III, IV, and V' and makes such possession 'of controlled substances' to be 'a felony' with only one scheme of punishment." Id. at 882 (emphasis in original). Upon these considerations, the court reasoned:

had known he was being followed, he would have ditched the cocaine.

"Clearly, the language of the statute indicates that the possession of [controlled] substances renders a defendant 'guilty of a felony' and not guilty of several felonies based upon how many drugs are simultaneously within the control of the defendant, or in which schedules they are listed. Once the presence of the first controlled substance is proven, the offense is complete, and the presence of other controlled substances at the same time does not act to split the possession. By applying the principles developed in our case law to the plain language of § 20-2-70(a) we thus find that the possession is the criminal offense, and our section does not sanction basing multiple prosecutions or sentences on the mere fact that several types of drugs were so possessed at one point in time. If the legislature had intended to allow such multiple prosecutions it would have certainly framed this section in language clearly manifesting such intent."

Id. at 882 (emphasis in original.)

As in Vogel, Sears's right to be free from multiple trials for the same offense has not been violated because he has been subjected to only one trial. Rather, the issue is whether, as in Vogel, Sears's protection against multiple punishments for the same offense has been disregarded. However, we find that the court's holding in Vogel is not dispositive of the instant case, for it is confined to its specific facts and the particular statute violated.

In determining if Sears wrongly suffered from multiple punishments for the same offense, we are guided by the following passage from Ohio v. Johnson, 467 U.S. 493, ----, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984):

"In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent, see Missouri v. Hunter, U.S. , 365 [103 S.Ct. 673, 678, 74 L.Ed.2d 535] (1983)." (Footnote omitted.)

Thus, we must determine whether the trial court exceeded its legislative authorization "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."

                by imposing multiple punishments for the same offense.   See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).  However, this determination rests upon whether possession and trafficking constitute the "same offense" for double jeopardy purposes.  The test utilized in the federal courts to determine whether the crimes are separate and consequently whether cumulative punishments may be imposed is the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).  Ohio v. Johnson, 467 U.S. at ----, 104 S.Ct. at 2541, n. 8.   In Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980), the United States Supreme Court explained that Blockburger's "rule of statutory construction" is to be employed "to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively."   See also Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981);  Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2225.   The applicable test is as follows
                

Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182. As noted in Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975), "[T]he Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."

In the instant case, the offense of possession and the offense of trafficking in cocaine are separate offenses governed by separate statutes, §§ 20-2-70 and 20-2-80(2), respectively, which provide separate punishments. However, neither statute suggests whether the Alabama Legislature intended that cumulative sentences be imposed when the violation of both statutes has been discovered at the same place and the same time. Thus, we must determine whether the legislature has in fact undertaken to create separate offenses which would allow cumulative punishments in a single trial in a case involving the possession of several controlled substances, one possession supporting the conviction of trafficking and the other supporting the conviction of possession.

We, too, look to the Blockburger test. Clift v. State, 352 So.2d 838 (Ala.1977), cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). ¹ See also, e.g., Hepstall v. State, 418 So.2d 223, 225 (Ala.Cr.App.1982); Brown v. State, 367 So.2d 557, 559 (Ala.Cr.App.1978), cert. denied, 367 So.2d 559 (Ala.1979). Applying this test to the statutory elements of the two offenses in question in the instant case, it is obvious that, because each offense has at least one statutory element that the other does not, the offenses are separate crimes even though the offenses are based upon the same factual event. Therefore, under the Blockburger test, we hold that the offenses of possession and trafficking were intended by the legislature to be separate Indeed, we have already reached this holding in Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), rev'd on other grounds, 435 So.2d 1365 (Ala.1983), wherein the court held that the appellant's conviction for possession of methaqualone was not barred by her prior conviction for trafficking in marijuana, notwithstanding that both charges arose from the same circumstances. In...