Thomas v. US, 90-524.

• Decision Date: 28 January 1992
• Docket Number: No. 90-524.,90-524.
• Citation: 602 A.2d 647
• Parties: Michael E. THOMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

602 A.2d 647

Michael E. THOMAS, Appellant, v. UNITED STATES, Appellee.

No. 90-524.

District of Columbia Court of Appeals.

Argued November 7, 1991.

Decided January 28, 1992.

William T. Morrison, Washington, D.C., appointed by the court, for appellant.

Elizabeth H. Danello, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, and David E. Mills, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before FARRELL and KING, Associate Judges, and PRYOR, Senior Judge.

KING, Associate Judge:

After a jury trial, appellant Thomas was convicted of distribution of a controlled substance (DCS) while armed,¹ possession with the intent to distribute a controlled substance (PWID) while armed,² possession of a firearm during a dangerous crime,³ possession of an unregistered firearm,⁴ and unlawful possession of ammunition.⁵ He contends that the offense of possessing a firearm while committing a dangerous crime is "the same offense" as both PWID while armed and DCS while armed, and therefore his multiple convictions violate the Double Jeopardy Clause of the Fifth Amendment. He also contends that since he was not previously convicted of committing a "dangerous crime," the trial court erred in imposing a five year mandatory-minimum sentence pursuant to § 22-3202(a)(2).⁶ We conclude the legislature did not intend for the offenses to merge; therefore, we hold that appellant's multiple convictions do not violate the Double Jeopardy Clause.

I.

An undercover police officer approached appellant on the street and offered him twenty dollars in exchange for some crack cocaine. Appellant summoned an accomplice, handed him keys to a car parked nearby, and told him to retrieve some cocaine. The accomplice went to the car, opened the trunk of the car, looked around in it, and then closed it, opened the door on the passenger side of the car, looked under the seat, and returned carrying a white paper towel. The accomplice returned the keys to appellant and handed a zip lock bag containing a single white rock, later determined to be cocaine, to the police officer in exchange for a pre-recorded twenty dollar bill. The undercover officer then returned to his vehicle and radioed a lookout to a waiting arrest team.

Upon receiving the undercover officer's broadcast, the arrest team stopped appellant and his accomplice on the street. After the undercover officer who had purchased the cocaine rode by and positively identified them, they were placed under arrest. When stopped, the accomplice dropped the paper towel; it had concealed seven packets of cocaine held together by a safety pin. After being placed under arrest, appellant was searched. The keys to the car and the pre-recorded funds used to purchase the cocaine were recovered from his pockets. After using the keys recovered from appellant to open the trunk of the car, the arresting officers discovered a bag sitting on top of the spare tire. In the bag, the police discovered a loaded, operable pistol and two identification cards, each containing appellant's name and photograph.

II.

Before analyzing the specific contention raised by appellant, it will be helpful to review the general legal principles that apply. As this court recently observed:

The Double Jeopardy Clause, insofar as it applies to the problem of multiple punishments imposed following a single trial, limits only the authority of the courts and prosecutors.... Thus, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed."

Byrd v. United States, 598 A.2d 386, 388-389 (D.C.1991) (en banc) (citations omitted). Thus, we must ascertain what the legislature intended by enacting the two provisions.

Unless a contrary legislative intent is readily discernable, the Supreme Court has held 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.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). In this jurisdiction, the Blockburger rule was "codified as an express declaration of legislative intent in D.C. Code § 23-112 (1989)." Byrd v. United States, supra, 598 A.2d at 389 (citations omitted). "The Blockburger rule is to be applied in the analysis of multiple punishment issues `in the absence of a clear indication of contrary legislative intent.'" Id. at 389, 52 S.Ct. at 186 (citing Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980)). In short, we look to the statutes to discern the legislature's intent. With those principles in mind, we turn to the statutory provisions involved here.

III.

D.C.Code § 22-3202 (1989 Repl. & 1991 Supp.) ("3202") provides:

(a) Any person who commits a crime of violence, or a dangerous crime in the District of Columbia when armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machine gun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles):

(1) May, if he is convicted for the first time of having so committed a crime of violence, or a dangerous crime in the District of Columbia, be sentenced, in addition to the penalty provided for such a crime, to a period of imprisonment, which may be up to life imprisonment and shall, if convicted of such offenses while armed with any pistol or firearm, be imprisoned for a mandatory-minimum term of not less than 5 years; and

(2) Shall, if he is convicted more than once of having so committed a crime of violence, or a dangerous crime in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a minimum period of imprisonment of not less than 5 years and a maximum period of imprisonment which may not be less than 3 times the minimum sentence imposed and which may be up to life imprisonment and shall, if convicted of such second offense while armed with any pistol or firearm, be imprisoned for a mandatory-minimum term of not less than 10 years.

(b) Where the maximum sentence imposed under this section is life imprisonment, the minimum sentence imposed under subsection (a) of this section may not exceed 15 years imprisonment.

(c) Any person sentenced pursuant to paragraph (1) or (2) of subsection (a) above for a conviction of a crime of violence while armed with any pistol or firearm, shall serve a mandatory-minimum term of 5 years, if sentenced pursuant to paragraph (1) of subsection (a) of this section, or 10 years, if sentenced pursuant to paragraph (2) of subsection (a) of this section, and such person shall not be released on parole, granted probation, or granted suspension of sentence, prior to serving such mandatory-minimum sentence.

(d) Except as provided in subsection (c) of this section, any person sentenced under subsection (a)(2) of this section may be released on parole in accordance with Chapter 2 of Title 24, at any time after serving the minimum sentence imposed under that subsection.

(e)(1) Chapter 8 of Title 24 shall not apply with respect to any person sentenced under paragraph (2) of subsection (a) of this section.

(2) The execution or imposition of any term of imprisonment imposed under paragraph (2) of subsection (a) of this section may not be suspended and probation may not be granted.

(f) Nothing contained in this section shall be construed as reducing any sentence imposed or authorized to be imposed.

(g) No conviction with respect to which a person has been pardoned on the ground of innocence shall be taken into account in applying this section.

D.C.Code § 22-3204(b) (1991 Supp.) ("3204(b)") provides simply that:

No person shall within the District of Columbia possess a pistol, machine gun, shotgun, rifle, or any other firearm or imitation firearm while committing a crime of violence or dangerous crime as defined in § 22-3201. Upon conviction of a violation of this subsection, the person may be sentenced to a term of imprisonment for a term not to exceed 15 years and shall be sentenced to imprisonment for a mandatory-minimum term of not less than 5 years and shall not be released on parole, or granted probation or suspension of sentence, prior to serving the mandatory-minimum sentence.

In 1989, the Council of the District of Columbia enacted legislation creating 3204(b) and amending 3202.⁷ The legislation created 3204(b) as a new substantive offense. The legislation also amended 3202, a penalty enhancement provision which had already been in effect for many years, to add "or dangerous crime" to subsections 3202(a)(1) and (2) after the words "crime of violence."⁸

We are satisfied that when the Council created 3204(b) and amended 3202, it did not intend for the offense defined by 3204(b) to merge with an offense subject to the enhanced penalty provision of 3202. There are a number of factors which persuade us of the legislature's intent. First, the concerns addressed by the two provisions are substantially different. That difference becomes apparent when comparing: (1) the scope of the two provisions; and, (2) the penalties authorized by them.⁹ Second, the legislature deliberately avoided treating the two provisions as the same offense.¹⁰ Third, merging the two provisions would produce absurd results.¹¹ We will address each of these factors in more detail.

A. The provisions address substantially different concerns.

Section 3202 is a complex penalty enhancement provision which serves multiple purposes. The primary purpose of 3202 is to authorize imposition of an additional penalty for committing certain underlying offenses while armed with or having readily available a...