Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Trial Judge.
Before Rogers, Chief Judge, and Terry, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge : Appellant LineIl Freeman appeals his conviction for assault with a dangerous weapon, D.C. Code § 22-502 (1989 Repl.), and possession of a firearm during the commission of a crime of violence, id. § 22-3204 (b) (3991 Supp.), on the ground that the former conviction must be vacated because it merges with the latter conviction. We affirm.
Appellant pleaded guilty to assault with a dangerous weapon, D.C. Code § 22-502, *fn1 and possession of a firearm during a crime of violence, D.C. Code § 22-3204 (b), *fn2 arising out of an October 22, 1989 shooting in which he wounded Donald Linder. *fn3 The trial Judge imposed concurrent sentences of three to ten years for assault with a dangerous weapon, and five to fifteen years for possession of a firearm during the commission of a crime of violence, leaving open the issue of merger of offenses. The Judge denied appellant's motion to correct his sentence and to vacate his conviction for assault with a deadly weapon on the ground of merger. The Judge ruled that the two crimes were not "the same offense, nor is one a lesser included offense of the other," and that under the test in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), which is codified in D.C. Code § 23-112 (1989 Repl.), "each offense contains an element which the other offense does not." In addition, the budge concluded that the legislature intended to create the new crime of possession of a firearm during the commission of a crime of violence, and that the statutes under which the offenses arise serve different societal purposes. Appellant's motion seeking the same relief under D.C. Code § 23-110 was also denied. The budge rejected appellant's argument that assault with a dangerous weapon may not serve as a predicate offense for enhancement under § 22-3204 (b) because § 22-3204 (b) was not an enhancement provision but "a separate and distinct criminal offense."
The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). The role of the Double Jeopardy Clause, however, "is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offenses." Byrd v. United States, No. 89-804, slip op. at 6 (D.C. Oct. 15, 1991) (en banc) (quoting Albernaz v. United States, 450 U.S. 333, 344, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981)); Waller v. United States, 531 A.2d 994, 996 (D.C. 1987). where the legislature intends to impose multiple punishments for the same offense, multiple punishments do not violate the Double Jeopardy Clause. Missouri v. Hunter, 459 U.S. 359, 368, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983) ("simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes."); see also Albernaz, supra, 450 U.S. at 343-44; Waller, supra, 531 A.2d at 996. In the absence of clear legislative intent to allow multiple punishments, the Blockburger test controls in determining whether offenses merge. Byrd, supra, slip op. at 8 (citing Whalen v. United States, 445 U.S. 684, 691-92, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980)); see Simpson v. United States, 435 U.S. 6, 55 L. Ed. 2d 70 , 98 S. Ct. 909 (1978).
In 1989, the Council of the District of Columbia enacted the "Law Enforcement Amendment Act of 1989." D.C. Act 8-129, 37 D.C. Reg. 24 (December 21, 1989). The legislation included an amendment to the Code provision on carrying concealed weapons, D.C. Code § 22-3204, to provide that in addition to prohibiting such carrying, possession of a firearm while committing a crime of violence or dangerous crime would be punishable by a maximum sentence of 15 years and a mandatory minimum sentence of 5 years. According to the Committee Report, the legislation was "to help the District deal with the deadly threat to public safety posed by persons who possess firearms in violation of the laws of the District of Columbia, who commit offenses while armed with or having readily available firearms or imitations thereof. . . ." BILL NO. 8-185, "LAW ENFORCEMENT AMENDMENT ACT OF 1989", REPORT OF THE COMMITTEE ON THE JUDICIARY, COUNCIL OF THE DISTRICT OF COLUMBIA (December 4, 1989) at 3 (Report). The Report states that the legislation would "create the new offense of possession of a firearm while committing a crime of violence or dangerous crime, with an attendant 5 year mandatory minimum sentence." Id. As explained by its sponsor, the legislation "will then provide an additional offense of possession of a firearm while committing a crime of violence -- or a dangerous weapon. The difference there will be that the gun will not have to be used but can be possessed and be sufficient to kick in the new statute." Seventh Legislative (Additional) Meeting of the Council of the District of Columbia at 8 (March 7, 1989) (Meeting).
Neither the statute nor the legislative history refer specifically to the question of whether the offense of possession of a pistol while committing a crime of violence merges with the underlying crime of violence. That is, there is no express statement that there would be "multiple punishments for the same offense." See Robinson v. United States, 501 A.2d 1273, 1275 (D.C. 1985) (when more than one criminal statutory offense arises out of a single course of action, principal question is what punishment the legislature intended to authorize for the offenses). The sponsor of the legislation stated simply that the "Supreme Court of the United States Doctrine of Merger will apply." Meeting at 8. By referring to the Supreme Court, which has invariably applied Blockburger as a guide to legislative intent, the statement identifies the body of law through which the legislature wished its intent to be discerned.
Nevertheless, it is clear that the Council intended the amendment to § 22-3204 to create a "new firearm possession offense," which would be violated if an underlying dangerous crime or crime of violence "was committed while possessing a firearm or imitation firearm." Report at 4 (emphasis omitted). Furthermore, in order to accomplish this the Council amended the provision of the Code that prohibited carrying a concealed weapon, D.C. Code § 22-3204 (1989 Repl.). It did not, instead, amend the provision of the Code that simply provided for an additional penalty for committing a crime while armed, D.C. Code § 22-3202 (1989 Repl.). *fn4 Nor does the legislative history refer to the new provision as creating an enhancement provision. Indeed, the Report refers specifically to the view of the Chief of the Intake Division of the United states Attorney's Office that, according to the Report, the new provision would be "very helpful particularly in circumstances where a firearm was present during the commission of a crime of violence or a dangerous crime, but the firearm was not recovered." Report at 3. The Report noted, moreover, that firearms had "figured prominently" in the increased number of murders and assaults with firearms between January 1, 1988, and January 1, 1989. Id. at 2.
Accordingly, we conclude, in view of the nature of the amendment to the Code and the statements in the Report that a new offense is created, that the Council contemplated that multiple punishments would be imposed. But even if the legislative intent was not clear, it is clear that the offenses do not merge.
In Blockburger, supra, the Supreme Court described the test for determining ...