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05/31/90 WILLIE K. BEAN v. UNITED STATES

May 31, 1990

WILLIE K. BEAN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Robert I. Richter, Trial Judge

Rogers, Chief Judge, Newman and Terry, Associate Judges.

The opinion of the court was delivered by: Newman

One and one do not, as the government contends, always make two; when it comes to counting the number of criminal offenses contained within a single transaction, only the legislature is capable of that kind of addition.

Willie K. Bean appeals his conviction on two counts of violating D.C. Code § 22-3204 (1989 Repl.), one for carrying a knife and the other for carrying a sawed-off .22 calibre rifle. Although we find no merit in any of the issues raised by Bean in his appeal, we do find merit in an issue raised sua sponte by this court: that Bean's conduct constituted a single violation of the statute and, thus, he may only be sentenced on a single count. We remand with instructions to vacate one of the two convictions and resentence on the other, leaving to the trial court the choice of which conviction to vacate. Thorne v. United States, 471 A.2d 247, 249 (D.C. 1984). See also United States v. Knight, 166 U.S. App. D.C. 21, 30, 509 F.2d 354, 363 (1974).

I

According to the testimony of Officer Leonard Chappell of the Metropolitan Police Department, at about 9:45 p.m. on February 10, 1988, he was working a narcotics detail in the 3500 block of A Street, S.E., when he heard a radio broadcast that shots had been fired two blocks away in the 200 block of 37th Place, S.E. The broadcast stated that eyewitnesses had identified the shooter as Willie Bean, and gave a description of the car he was driving.

Chappell knew Bean from having arrested him some forty days earlier for assault with intent to kill. *fn1 Chappell also knew where Bean lived. Prior to checking Bean's residence, Chappell stopped at the crime scene and spoke to witnesses, who confirmed that Bean was the shooter. One witness also described the car Bean was driving. Chappell testified that he did not know the names of the witnesses to whom he spoke. Noting that the witnesses were "reluctant" to give their names, Chappell testified that he nonetheless knew them "by sight."

Chappell left the crime scene and headed for Bean's residence. On the way, he stopped at a red light at Minnesota Avenue and B Street, which was about one-and-one-half blocks from where Chappell knew Bean to reside. There Chappell observed a brown Chevrolet with paper tags backing up to the curb; the car answered the description of the car Bean was driving. Chappell estimated that he was some 65 feet away; he described the lighting conditions as "sodium vapor. . . igh intensity crime lights." He then saw Bean step from the car, bearing a long, cylindrical object in his hand. Chappell was unable to identify the object. He then saw Bean walk to the rear of the car and place the object in the trunk.

Chappell, who was uniformed and driving a marked cruiser, came through the intersection towards Bean. Bean saw him coming and ran; as he ran, he threw a set of keys over his shoulder. The keys hit the wall of an apartment building and slid to the ground. Chappell, knowing Bean's "propensity to be armed," drew his service shotgun and ordered Bean to stop. Bean did so and, on his own, assumed a prone position. At that point other officers arrived. Bean remained in his prone position.

Chappell retrieved the keys he had seen Bean discard and took them to the brown Chevy. When he reached the Chevy, he looked through the window and saw a "large, folding, locking blade knife" lying in plain view on the passenger seat. He then returned to the still-prone Bean and placed him under arrest for possession of the knife. Because he wanted to ascertain whether the long, cylindrical object he had seen Bean place in the trunk of the car was the weapon used in the shooting described by the witnesses he had spoken with, Chappell next went to the trunk of the car and opened it. There, without conducting a search of the contents, he observed the butt of a sawed-off .22 calibre rifle protruding from beneath the spare tire.

At trial, Bean's common-law wife, Sharon Carrington, testified for the defense. She stated that she owned a 1976 Gold Chevy Monte Carlo and that, several days after purchasing the car, she opened its trunk for the first time and saw the object identified by the government as the butt of a .22 calibre rifle sticking out from under the spare tire. Carrington testified that Bean had access to the car, but later testified that she had the only set of keys to it. She further testified that she had parked the car near the intersection of Minnesota Avenue and B Street S.E., which was around the corner from her house, sometime after 5:00 p.m. on the day Bean was arrested. Finally, she stated that Bean had been working on his car in front of her house from 5:00 p.m. until 9:35 p.m., at which time he took a shower before walking to the store.

Bean was convicted of two counts of violating § 22-3204, one for carrying the knife and one for carrying the gun. This appeal followed. *fn2 At oral argument, the court raised, sua sponte, the issue of whether Bean's conviction for two counts of carrying a dangerous weapon violated the doctrine established in Cormier v. United States, 137 A.2d 212 (D.C. 1957), which held that a defendant carrying two unlicensed pistols was guilty of only one count of violating § 22-3204. This court requested that counsel submit supplemental briefs on this issue. They did so.

II

D.C. Code ยง 22-3204 provides in relevant ...


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