State v. Marlowe

CourtSupreme Court of Georgia
Citation277 Ga. 383,589 S.E.2d 69
Docket Number No. S03G0351, No. S03G0564.
PartiesThe STATE v. MARLOWE. Pearson v. The State.
Decision Date17 November 2003

OPINION TEXT STARTS HERE

John T. Strauss, for Malone and Pearson.

W. Kendall Wynne, Jr., Dist. Atty., Jeffrey L. Foster, Asst. Dist. Atty., for the State.

FLETCHER, Chief Justice.

We granted certiorari in these cases to consider conflicting opinions from the Georgia Court of Appeals regarding whether multiple convictions for the possession of a weapon during the commission of a felony merge when there is continuous possession of a single weapon during multiple predicate offenses.1 We conclude that the legislature has not authorized multiple convictions for possession of a weapon when multiple felonies are committed against one victim. Multiple convictions may be authorized in other circumstances such as when there are multiple victims. Therefore, we affirm in part and reverse in part in both cases.

Isaac Pearson was convicted of ten separate felonies based on his gun-wielding attack on three people and ten counts of possession of a gun during the commission of a felony. For the predicate felonies, he received two life sentences, plus consecutive sentences totaling 160 years. For each of the ten possession charges he received five years to run consecutively. The Court of Appeals rejected Pearson's argument that he could only be sentenced for one possession charge since he possessed only one gun during the crime spree.2

Kevin Marlowe was convicted of three separate felonies based on his knife-wielding attack on an elderly woman and three counts of possession of a knife during the commission of a felony. For the predicate felonies, he received a 20 year sentence, 10 to serve, and two 10 year sentences, all sentences to run concurrently. For each of the possession charges he received five years to run consecutively. The Court of Appeals held that because the possession of the knife was continuous and the felonies were committed upon one victim, the possession charges should have been merged into one for sentencing.3

1. The question of multiple punishments (as opposed to multiple prosecutions ) for the same criminal conduct is addressed under the rubric of substantive double jeopardy.4 Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute.5 It is for the legislature to "determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished."6 Typically, the question is whether the same conduct may be punished under different criminal statutes.7 In that situation, it is appropriate to apply the "actual evidence" test or "required evidence" test found in OCGA §§ 16-1-6 and 16-1-7, the double jeopardy statutes.8 However, a different question is presented here: whether a course of conduct can result in multiple violations of the same statute.9 The United States Supreme Court has held that this question requires a determination of the "unit of prosecution," or the precise act or conduct that is being criminalized under the statute.10 Other states have also recognized that the required evidence test is not appropriate when the question is multiple punishments involving a single statutory provision.11 Accordingly, the starting point must be the statute itself.

2. OCGA § 16-11-106(b) provides, in relevant part, that

Any person who shall have on ... his ... person a firearm or a knife ... during the commission of ...:
(1) Any crime against or involving the person of another;
(2) The unlawful entry into a building or vehicle;
(3) A theft from a building or theft of a vehicle;
(4) Any crime involving [illegal drugs as enumerated in the final two divisions in subsection (b) of the statute].
and which crime is a felony, commits a felony and, ... shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence.

( a) OCGA § 16-11-106(e) provides that "[a]ny crime committed in violation ... of this Code section shall be considered a separate offense." The predecessor to subsection (e) was added in 1976 in order to overturn several decisions of this Court.12 In those cases, this Court had held that the possession of a firearm offense was a lesser-included offense of armed robbery and of murder, and thus, the possession offense had to be vacated.13 In light of this legislative history, subsection (e) does not demonstrate a legislative intent to impose multiple convictions for possession of a weapon based on multiple predicate felonies—the issue considered here. Instead, it evidences only the legislative intent to provide punishment for both the possession offense and the predicate felony.14 Thus, subsection (e) would require that the possession offense stand even when the predicate felony merges as a matter of fact into another offense.15

(b) Additionally, subsection (b) fails to clearly delineate the unit of prosecution. This Court has previously recognized that the language of the subsection (b) statute is ambiguous.16 A similar federal statute is also widely regarded as ambiguous as to the unit of prosecution.17 The federal cases that struggle with defining the unit of prosecution under the federal statute provide extensive analysis of the issue that is useful in interpreting the analogous Georgia statute.

18 U.S.C. § 924(c)(1)(A) provides criminal penalties for "any person who, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm."18 Some federal courts have held that the predicate felony is the proper unit of prosecution, so that there may be as many possession offenses as there are predicate felonies.19 Other courts have held that the unit of prosecution focuses on the use of a firearm rather than on the predicate offense.20 Under this analysis, the statute permits "only as many counts as there are uses of the firearm."21 Where there are distinct uses of a single gun in multiple predicate crimes, multiple convictions may be warranted under this statute.22 We are persuaded by the reasoning of the courts that reject the predicate felony as the unit of prosecution, because "[t]o base a statute's unit of prosecution on an offense that the statute does not prohibit is illogical."23 Accordingly, we reject the analysis that would permit as many possession counts as there are predicate felonies. Instead, the relevant unit of prosecution is the possession of a firearm during the commission of the specified categories of felonies.24

(c) The first category of felony is "any crime against ... the person of another." By reference to any crime against a person, the legislature has indicated its intent to impose separate criminal liability upon a defendant for each person against whom a crime is committed. The remaining categories of felonies are those involving illegal entry into or theft from a building or vehicle and those involving illegal drugs. By specifying the separate categories, the legislature has indicated its intent to impose separate criminal liability upon a defendant for each separate category of crime committed. Under this interpretation, where multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16-11-106(b)(1), and additionally once for firearm possession for every crime enumerated in subsections (b)(2) through (5).

3. In light of the above legal analysis, in Marlowe, the Court of Appeals properly merged the two possession offenses stemming from attempted robbery and aggravated assault against a single victim. However, the possession charge predicated on the burglary count, a crime involving illegal entry into a building, would stand. In Pearson, the Court of Appeals permitted ten possession offenses simply because there were ten predicate felonies. A proper analysis permits three possession charges based on the crimes committed against three separate victims, and two possession charges based on the crimes of burglary and motor vehicle hijacking. The remaining possession charges, predicated on multiple felonies committed against the victims, should have been merged.

Judgment affirmed in part and reversed in part in Case No. S03G0351 and affirmed in part and reversed in part in Case No. S03G0564.

All the Justices concur, except CARLEY and THOMPSON, JJ., who concur in part and dissent in part, and HINES, J., who dissents.

CARLEY, Justice, concurring in part and dissenting in part.

According to the majority,

the legislature has not authorized multiple convictions for possession of a weapon when multiple felonies are committed against one victim. Multiple convictions may be authorized in other circumstances such as when there are multiple victims.

Majority opinion, p. 383, 589 S.E.2d at 70-71. I agree that OCGA § 16-11-106 authorizes convictions for as many counts of possessing a weapon as the evidence shows there are victims of predicate felonies committed by the accused. In my opinion, however, the majority's holding that only one conviction is authorized when the armed defendant commits numerous felonies against a single victim is based upon an erroneous construction of the clear language of the statute. Therefore, I dissent to the partial affirmance and partial reversal of the judgments in these two cases. In my opinion, the judgment in Case Number S03G0351 is erroneous and should be reversed in its entirety, whereas the judgment in Case Number S03G0564 is correct and should be completely affirmed.

An unambiguous criminal statute cannot be altered by judicial construction. Vines v. State, 269 Ga. 438, 440, 499 S.E.2d 630 (1998). OCGA §...

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