Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E.C. Queen, Trial Judge
Rogers, Chief Judge, and Ferren, Terry, Steadman, Schwelb and Wagner, Associate Judges, and Belson, Senior Judge.* Opinion for the court by Associate Judge Steadman. Opinion Concurring in part and Dissenting in part by Senior Judge Belson, with whom Associate Judge Wagner joins.
The opinion of the court was delivered by: Steadman
Arrested while driving a vehicle stolen the month before, appellant in this case was convicted both of unauthorized use of a vehicle ("UUV"), a crime under D.C. Code § 22-3815 (1989), and of receiving stolen property ("RSP"), a crime under D.C. Code § 22-3832 (1989), and was given consecutive sentences. The issue before us on appeal is a recurring one: where a defendant commits a single act which meets the requirements for conviction under two distinct statutory criminal provisions, can the defendant, after being tried and convicted in a single trial of both charges, be punished separately under each provision or under only one?
Although the answer has double jeopardy overtones, it ultimately turns on the legislative will. In the great bulk of cases, evidence of legislative intent with respect to any two specific statutes will be lacking. The issue is then resolved by application of what is known as the Blockburger test, *fn1 codified in this jurisdiction in D.C. Code § 23-112 (1989). However, the case before us is unusual in that in enacting the statute encompassing the two crimes of which appellant was convicted, the Council of the District of Columbia did include a provision addressing the general issue, D.C. Code § 22-3803 (1989). We conclude that a proper interpretation of that section permits appellant to be convicted of both RSP and UUV but to be sentenced for those crimes only concurrently, and not consecutively.
Appellant was arrested after police discovered that the car he was driving, a 1975 Datsun, had been reported as stolen a month previously. Although there was a key in the ignition of the car, it neither belonged to nor started the Datsun. The keyslot of the car's ignition had been "punched," probably with a screwdriver, in order to make the hole large enough for any key to fit the ignition. Testimony at trial established that the altered condition of the ignition would permit at least partial operation of the car with a key not belonging to the Datsun. During a search of the car, police found four coat hangers, a screwdriver, a wrench, and approximately eleven different keys, none of which belonged to the car.
Appellant testified that he had borrowed the Datsun from a friend identified only as "Smitty." He contradicted himself by first stating he had gone to Smitty's to pick up the car, but later indicating that Smitty had brought the car to him. Smitty told appellant that he had lost the key to the car, but that it would run without a key. Appellant noticed that the ignition did not lock, and Smitty told him he could turn the car off by pushing in the "prong on the end" of the ignition and turning it.
In a bench trial, the court specifically found that appellant had "guilty knowledge that the was stolen." The court found appellant guilty on both of the charged counts and sentenced him to imprisonment for a period of two to six years, execution of sentence being suspended, and to probation for a period of five years for the RSP offense, and to imprisonment for a period of twenty months to five years for the UUV count. The sentences were to be served consecutively. *fn2
On appeal, appellant challenged only the sufficiency of the evidence to convict. The government in its brief commendably brought up a second issue presented by appellant's multiple convictions for UUV and RSP. It referred to (but argued as wrongly decided) our holding in Worthy v. United States, 509 A.2d 1157 (D.C. 1986), that where the receipt and use of a motor vehicle are part of a unitary transaction, the defendant cannot be convicted of both offenses.
A panel of this court, hearing the appeal, concluded that applying the well-settled standard for review of sufficiency of evidence, see, e.g., Rose v. United States, 535 A.2d 849, 850 (D.C. 1987), there was "ample support" for the convictions. Memorandum Order and Judgment, June 28, 1990. We think this ruling was plainly correct, and appellant does not argue it further before the en banc court. On the multiple punishment issue raised by the government, the panel deemed itself bound by Worthy and several related cases applying a "factual analysis" to multiple punishment issues. E.g., Arnold v. United States, 467 A.2d 136, 138-39 (D.C. 1983) (per curiam). Noting that in this case "the facts necessary to prove RSP necessarily established UUV," [ *fn3] the panel remanded the case to allow the trial Judge to vacate one of the convictions and to resentence appellant. Id.
The government, asserting that the "factual analysis" test of Worthy and Arnold was "plainly inconsistent" with Supreme Court precedent, sought rehearing en banc, which we granted by order of February 27, 1991. Subsequently, the Public Defender Service was granted leave to file a brief as amicus curiae, which took the position that whatever the correct resolution in other situations, the issue of multiple punishments with respect to these two particular offenses is governed by D.C. Code § 22-3803, and that that section forbids more than one conviction. We agree that that Code section is controlling, although we differ with the precise interpretation proffered by the Public Defender Service.
The Double Jeopardy Clause, insofar as it applies to the problem of multiple punishments imposed following a single trial, *fn4 limits only the authority of courts and prosecutors. "The role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Albernaz v. United States, 450 U.S. 333, 334 (1981), quoting Brown v. Ohio, 432 U.S. 161, 165 (1977). 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." Id., 450 U.S. at 344.
The problem normally presented is an absence of any evidence of actual legislative intent with respect to multiple punishments when two legislative provisions apply to and provide punishment for the same criminal act in a given case. Hence, almost sixty years ago, the Supreme Court laid down the rule to be followed in such situations in Blockburger v. United States, supra, 284 U.S. at 304:
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 an additional fact which the other does not.
The Supreme Court recently reaffirmed *fn5 the position that in applying this test, the court looks at the statutorily-specified elements of each offense and not the specific facts of a given case as alleged in the indictment or adduced at trial. "The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged." Grady v. Corbin, 110 S. Ct. 2084, 2093 n. 12 (1990) (emphasis in original). In Corbin, the Court contrasted the use of the Blockburger test to determine the permissibility of multiple punishments following a single trial with the appropriate test in the context of successive prosecutions. While establishing a "conduct" test in the latter "successive prosecution" context as a limitation regardless of ...