Brown v. State

BLACKWELL, Judge. Maryland Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.), Article 27, § 36B(d) provides in pertinent part: “Any person who shall use a handgun ... in the commission of any felony or any crime of violence ... shall be guilty of a separate misdemeanor____” The common question in the two cases we now consider is whether multiple convictions of armed robbery, arising from a single criminal transaction involving multiple victims, support multiple convictions of § 36B(d). An additional question presented by one of the cases relates to the ⁴²⁹ qualification of foreign convictions for purposes of enhanced punishment. I Two criminal cases against Petitioner Donald Leroy Brown (“Brown”) from the Circuit Court for Montgomery County have been consolidated for review.

Except for the number of victims, the two cases, No. 38247 and No. 38248, involved similar criminal episodes. Around midnight, Brown and a confederate, both armed, broke through the kitchen doors of occupied dwelling houses, assembled the occupants at gunpoint, ransacked the houses and carried away personal property belonging to the occupants. In case No. 38247, in which there were two victims, Brown was convicted of two counts of robbery with a deadly weapon, two counts of use of a handgun in the commission of a crime of violence, and burglary. In case No. 38248, in which there were four victims, Brown was convicted of four counts of robbery with a deadly weapon, four counts of use of a handgun in the commission of a crime of violence, and burglary.

For the handgun use convictions, Brown received, in addition to the sentences imposed for the other convictions, two consecutive twenty year sentences in No. 38247 and four concurrent twenty year sentences in No. 38248. 1 In No. 38247, the State proceeded against Brown as a subsequent offender pursuant to Maryland Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.), Article 27, § 643B. The trial court refused to impose enhanced punishment for reasons to be discussed infra. ⁴³⁰ Brown appealed the judgments in No. 38247 and No. 38248 to the Court of Special Appeals and that court consolidated the cases for review. 2 Among other allegations of error, Brown challenged, in both cases, his conviction of and sentences for multiple counts of use of a handgun in the commission of a crime of violence arguing that a single criminal transaction supports only one handgun conviction and sentence. The State cross-appealed on the trial court’s refusal to impose enhanced punishment in No. 38247. In an unreported, per curiam opinion, the Court of Special Appeals affirmed the judgments in No. 38247 and No. 38248 and, agreeing with the State on the cross-appeal, remanded No. 38247 for resentencing.

We granted Brown’s petition for writ of certiorari which presented the following two questions: 1. Was the evidence sufficient to sustain multiple convictions and sentences for use of a handgun in the commission of a crime of violence where there was only one criminal episode? 2. Did the trial court err in refusing to impose enhanced punishment under Article 27, § 643B of the Maryland Code? 3 II While Brown has cast his first question in terms of the sufficiency of the evidence, the thrust of his argument is that the multiple handgun use convictions and sentences in No. 38247 and No. 38248 constitute multiple punishment for the same offense prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United ⁴³¹ States Constitution. 4 We disagree and affirm the convictions. The Double Jeopardy Clause protects a criminal defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishment for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656, 664-65 (1969); Donaldson v. State, 305 Md. 522, 530 , 505 A.2d 527, 532 (1986); Johnson v. State, 303 Md. 487, 520 , 495 A.2d 1, 18 (1985). Multiple punishment challenges generally arise in one of two broad contexts: “(a) A statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions.

Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.” Gore v. United States, 357 U.S. 386, 393-94 , 78 S.Ct. 1280, 1285 , 2 L.Ed.2d 1405, 1411 (1958). See generally, Weston & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 111-22. The present challenge arises within the first. ⁴³² Whether a particular course of conduct constitutes one or more violations of a single statutory offense affects an accused in three distinct, albeit related, ways: multiplicity in the indictment or information, multiple convictions for the same offense, and multiple sentences for the same offense. 5 All three turn on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent. See Ladner v. United States, 358 U.S. 169 , 79 S.Ct. 209 , 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955); United States v. Universal C.I.T., 344 U.S. 218 , 73 S.Ct. 227 , 97 L.Ed. 260 (1952); Ebeling v. Morgan, 237 U.S. 625 , 35 S.Ct. 710 , 59 L.Ed. 1151 (1915). 6 ⁴³³ In each of the cases at bar, Brown was convicted of violations of § 36B(d).* 12**** 7 In case No. 38247, in which Brown was convicted of two counts under § 36B(d), the crimes of violence were two armed robberies arising from a single criminal transaction involving two victims.

Similarly, in case No. 38248, in which Brown was convicted of four counts under § 36B(d), the crimes of violence were four armed robberies arising from a single criminal transaction involving four victims. ⁴³⁴ Brown contends that the unit of prosecution of § 36B(d) is the criminal transaction. He rests his argument on the assumption that “whether a felon robs a single individual, or hypothetically fifty people at a social gathering, there still remains only one ‘use’ of the handgun.” (Petitioner’s brief at 28). Under Brown’s theory, then, an individual who uses a handgun in a criminal transaction which results in one or more felony or violent misdemeanor convictions has committed only one handgun use offense regardless of the number of felony or violent misdemeanor convictions. The State, on the other hand, maintains that the unit of prosecution is the crime of violence and relies on the following passage from Battle v. State, 65 Md.App. 38, 50 , 499 A.2d 200, 206 (1985), cert. denied, 305 Md. 243 , 503 A.2d 252 (1986) (quoting Manigault v. State, 61 Md.App. 271, 279 , 486 A.2d 240, 244 (1985)): “A single criminal episode may, of course, give rise to a number of separate charges, some of which may be multiplied but some of which may not.

The key is to identify the unit of prosecution. Both an aggravated assault (Count 1) and a simple assault (Count 2) may be multiplied when there are multiple victims. The unit of prosecution is the victim. With respect to the use of a handgun to perpetrate a crime of violence (Count 4), the unit of prosecution is the crime of violence.

Assuming that the other elements have been proved, two victims imply two crimes of violence. That, in turn, implies two separate crimes of using a handgun to commit a crime of violence.” Thus, under the State’s theory, the number of handgun use offenses will equal the number of felony or violent misdemeanor convictions. We agree with the construction advanced by the State. The unit of prosecution of a statutory offense is generally a question of what the legislature intended to be the act or course of conduct prohibited by the statute for purposes of a single conviction and sentence.

See Ladner v. United States, supra, 358 U.S. at 173-78 , 79 S.Ct. at ⁴³⁵ 211-14, 3 L.Ed.2d at 203-5 ; Bell v. United States, supra, 349 U.S. at 81-83 , 75 S.Ct. at 622 , 99 L.Ed. at 909-10 ; United States v. Universal C.I.T., supra, 344 U.S. at 221-25 , 73 S.Ct. at 229-31 , 97 L.Ed. at 264-66 ; Ebeling v. Morgan, supra, 237 U.S. at 628-30 , 35 S.Ct. at 711-12 , 59 L.Ed. at 1152-53 . See also Thomas, A Unified Theory of Multiple Punishment, 47 Pitt.L.Rev. 1, 11 (1985). We think the language of § 36B(d) plainly indicates that the prohibited act is the use of a handgun in the commission of a felony or violent misdemeanor. First, words in a statute are generally given their common and ordinary meaning.

See Kaczorowski v. City of Baltimore, 309 Md. 505, 513-16 , 525 A.2d 628, 632-33 (1987); Comptroller v. Fairchild Industries, 303 Md. 280, 284 , 493 A.2d 341, 343 (1985); C. Sands, 2A Sutherland Statutory Construction § 47.28 (4th ed. 1984, 1987 Cum. Supp.). Section 36B(d) states, with emphasis added, that “[a]ny person who shall use a handgun in the commission of any felony or any crime of violence” is guilty of a handgun use offense. According to Webster’s New International Dictionary (unabr. ed. 1959), “any” is defined as “[indicating a person, thing, etc., as one selected without restriction or limitation of choice, with the implication that everyone is open to selection without exception; one, no matter what one; all, taken distributively; every.” To like effect, see Black’s Law Dictionary (5th ed. 1979).

Second, the legislature is presumed to use words consistently throughout a statute. Supervisor of Assessments of Baltimore City v. Chase Associates, 306 Md. 568, 575 , 510 A.2d 568, 571 (1986). “Any” appears not only before the words “felony” and “crime of violence” but also before the word “person.” We find that the legislature’s use of the term “any” before “person” imparts a clear and unambiguous meaning to its use of “any” before “felony” and “crime of violence” and the meaning imparted is one which is consistent with the ordinary meaning of “any.” It means “every.” At least in the context of multiple victims, nothing in the language of § 36B(d) suggests, as argued by ⁴³⁶ Brown, that there can be only one handgun use offense per criminal transaction. We are convinced that multiple handgun use convictions and sentences are appropriate where there are multiple victims. Brown’s use of a handgun put each victim in the cases at bar in fear of death or serious bodily harm.

Punishment for criminal conduct should be commensurate with responsibility and a defendant who terrorizes multiple persons with a handgun is more culpable than a defendant who terrorizes only one. We have carefully reviewed the legislative history of § 36B(d) and find no support for the position advanced by Brown. We must enforce § 36B(d) as written. 8 Accordingly, the handgun use convictions in No. 38247 and No. 38248 are affirmed. Ill In No. 38247, the State proceeded against Brown as a subsequent offender pursuant to Maryland Code (1957, 1982 Repl.Vol., 1987 Cum.Supp.), Article 27, § 643B, 9 and, as one ⁴³⁷ of the predicate convictions of a § 643B(a) “crime of violence”, relied upon a 1971 District of Columbia conviction for second degree burglary.

It was the State’s view, disputed by Brown, that the District of Columbia conviction was equivalent to a conviction under Maryland’s daytime housebreaking statute. As proof of the conviction, the State introduced and the trial court admitted certified copies of the following documents from the public record of United States v. Brown, No. 131-71, from the United States District Court for the District of Columbia: the docket, the indictment, and the judgment and commitment order. The judgment and commitment order provides, in pertinent part: “IT IS ADJUDGED that the defendant upon his plea of guilty and the Court being satisfied there is a factual basis for the plea has been convicted of the offense of ⁴³⁸ SECOND DEGREE BURGLARY (TITLE 22 DISTRICT OF COLUMBIA CODE, SECTION 1801(B)[) ] as charged in Count 3 ... IT IS ADJUDGED that the defendant is guilty as charged and convicted.” Count 3 of the indictment states: “On or about October 14, 1970, within the District of Columbia, Donald L. Brown entered the dwelling of Godfrey Vaughan, with intent to steal property of another.” 10 Because second degree burglary under D.C.Code Ann. § 22-1801(b) may be committed by either the breaking and entering, or entering without breaking, of a number of different properties, 11 and Maryland’s daytime housebreaking statute proscribes only the breaking of a dwelling ⁴³⁹ house, 12 the State also called one of the District of Columbia police officers who investigated the offense as a witness.

Over the objection of defense counsel, the officer testified, inter alia, that the subject property was a dwelling house and that entry had been gained by force. The trial judge refused to consider the testimony of the police officer in determining whether the District of Columbia conviction was a predicate conviction reasoning “[i]t is the crime for which [the defendant] is convicted that [§ 643B] speaks to, and not what he did.” Concluding that the State had otherwise failed to establish that the District of Columbia conviction was one encompassing the breaking of a dwelling house, the trial judge consequently disqualified the District of Columbia conviction as a § 643B(a) predicate conviction. In so doing, he rendered Brown ineligible for treatment as a three time offender under § 643B(c). In the Court of Special Appeals, the State cross-appealed on the trial judge’s refusal to impose enhanced punishment.

The Court of Special Appeals agreed with the State and remanded No. 38247 for resentencing. The intermediate appellate court concluded: “It thus appears that the D.C. statute is more expansive than § 30(b) and encompasses conduct which, under Maryland law, would constitute a crime of violence, pursuant to § 643B(a), as well as conduct which would not constitute such an offense. The D.C. statute does not require that the premises or building be a dwelling or that entry into the