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01/28/92 MICHAEL E. THOMAS v. UNITED STATES

January 28, 1992

MICHAEL E. THOMAS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Donald S. Smith, Trial Judge)

Before Farrell and King, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: King

KING, Associate Judge: After a jury trial, appellant Thomas was convicted of distribution of a controlled substance (DCS) while armed, *fn1 possession with the intent to distribute a controlled substance (PWID) while armed, *fn2 possession of a firearm during a dangerous crime, *fn3 possession of an unregistered firearm, *fn4 and unlawful possession of ammunition. *fn5 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). *fn6 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 an additional fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (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 (citing Whalen v. United States, 445 U.S. 684, 692, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (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 ...


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