State v. Owens
| Citation | 320 Md. 682,579 A.2d 766 |
| Decision Date | 26 September 1990 |
| Docket Number | No. 56,56 |
| Parties | STATE of Maryland v. Steven Chris OWENS. Sept. Term 1988. |
| Court | Maryland Court of Appeals |
Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.
Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS * and BLACKWELL, ** JJ.
In this case, we must decide whether an individual found to have distributed marihuana coated with phencyclidine (PCP) is subject to separate conviction and punishment for distribution of each of two controlled dangerous substances.
Respondent, Steven Chris Owens, was charged with distribution of PCP, distribution of marihuana, and conspiracy to violate the controlled dangerous substance law. At trial, an undercover Anne Arundel County police officer testified that on 18 August 1986, Owens aided Jeffrey Dan Ray in the sale of "loveboat" in the Woodland Beach area of Anne Arundel County. Loveboat is the street name for marihuana laced with PCP.
A jury sitting in the Circuit Court for Anne Arundel County found Owens guilty of all three charges. The trial judge sentenced Owens to four years imprisonment on each count, all to run concurrently. Owens appealed and the Court of Special Appeals, in an unreported opinion, affirmed Owens's convictions for distribution of marihuana and for conspiracy but vacated the conviction for distribution of PCP by merging it into the marihuana distribution conviction. We granted the State's petition for certiorari.
The State contends that loveboat consists of two different controlled dangerous substances that are subject to two different penalties. The State maintains that the legislature, in enacting Article 27, § 286, intended to permit multiple prosecutions for simultaneous distribution of controlled substances listed under different schedules. Alternatively, the State argues that if there must be a merger, the offense carrying the lesser penalty (distribution of marihuana) should merge into the greater offense (distribution of PCP).
Respondent contends that because he performed only one act of distribution, he should be subject to only one conviction for distribution. He also argues that when two controlled dangerous substances are combined in such a way that they can never again be divided into two separate substances, a single distribution of the resulting product cannot support multiple convictions.
Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.) Article 27, § 286(a) of the Maryland Controlled Dangerous Substances Act prohibits the manufacture, distribution or possession of any controlled dangerous substance. The statute provides in pertinent part:
(a) Except as authorized by this [Act], it is unlawful for any person: (1) [t]o manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance....
The penalty subsection provides:
(b) Any person who violates any of the provisions of subsection (a) with respect to:
(1) A substance classified in Schedules I or II which is a narcotic drug is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both.
(2) Phencyclidine ... is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $20,000, or both.
(3) Any other controlled dangerous substance classified in Schedule I, II, III, IV, or V shall, upon conviction, be deemed guilty of a felony and sentenced to a term of imprisonment for not more than 5 years or a fine of not more than $15,000, or both.
The Act establishes a classification of controlled dangerous substances into five separate schedules based upon the potential for abuse of a drug, the degree of psychic or physical dependence associated with the drug, and the drug's acceptability for medical use. See Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989). Marihuana is listed in Schedule I and PCP is listed in Schedule II. Neither is classified as a narcotic drug. "Loveboat" is not separately listed on any schedule.
Our task is to determine the legislative intent in this case, and thus the appropriate unit of prosecution. We faced a similar problem in Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989), where we said:
The multiple sentence-single statute problems, with which we are concerned here, embrace a wide range of factual situations and statutory provisions. The key, of course, is legislative intent. As helpful as the various rules of statutory construction may be in determining legislative intent, perhaps the soundest guidance comes from the Supreme Court's admonition that we give the language of a statute a 'commonsensical meaning.' United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).
Id. at 324, 558 A.2d 715. The variety of factual situations involving simultaneous possession of two or more controlled dangerous substances necessarily embrace a wide spectrum. At one end of the spectrum is the defendant found with a brick of marihuana and a separate one-pound bag of cocaine in the trunk of his car. Although the possession of each substance is simultaneous, each substance is separate and the possession of each clearly constitutes a separate offense.
At the other end of the spectrum is the defendant found in possession of heroin, who the State seeks to charge with separate counts of possession of heroin and possession of morphine. The theory of such a prosecution would be that heroin is derived from morphine, and heroin continues to contain molecules of morphine even after it is compounded into heroin. One who possesses heroin, therefore, also possesses morphine. Assuming the scientific validity of this proposition, we think it clear that the legislature did not intend separate prosecutions and punishments for possession of the heroin and possession of the morphine contained within it.
Due to the misdirected ingenuity of many persons who deal in the manufacture, distribution, and use of controlled dangerous substances, one may be certain that there will be any number of combinations falling at various places along the spectrum just described. We addressed one such instance in Cunningham v. State, supra, 318 Md. 182, 567 A.2d 126. The instant case presents another.
In Cunningham, the defendant possessed, within a single bag, quantities of heroin and...
To continue reading
Request your trial
-
Spitzinger v. State
...merges into the greater penalty. See State v. Burroughs, 333 Md. 614, 626, 636 A.2d 1009, 1015 (1994) and State v. Owens, 320 Md. 682, 688, 579 A.2d 766, 768-69 (1990) (both quoting State v. Jenkins, 307 Md. 501, 521, 515 A.2d 465, 475 (1986) ("where there is merger by legislative intent, t......
-
Dixon v. State
...merges into the greater penalty." Id. (citing State v. Burroughs, 333 Md. 614, 626, 636 A.2d 1009, 1015 (1994); State v. Owens, 320 Md. 682, 688, 579 A.2d 766, 768-69 (1990)). Therefore, the Court of Special Appeals, in its unreported opinion in Dixon I, under the rule of lenity, incorrectl......
-
Melton v. State
...Satterfield v. State, 325 Md. 148, 599 A.2d 1165 (1992), Dickerson v. State, 324 Md. 163, 596 A.2d 648 (1991) and State v. Owens, 320 Md. 682, 579 A.2d 766 (1990). While none of these cases are determinative on the issue before us, as they do not deal with the statutory scheme at issue in t......
-
Camann v. Commonwealth
...escape responsibility for both Schedule I controlled substances simply by mixing one substance into the other."), with State v. Owens, 579 A.2d 766, 768 (Md. 1990) ("Taking a common sense view of the matter, we simply not persuaded that the legislature intended separate prosecutions and pun......