Cunningham v. State

McAULIFFE, Judge. On 28 January 1987, Alvin Cunningham simultaneously possessed, in a single bag, separate quantities of heroin and cocaine. 1 The surrounding circumstances were sufficient to support a finding that Cunningham possessed these controlled dangerous substances with the intent to distribute them. The question presented here is whether Cunningham may be convicted and sentenced for two offenses under Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 286(a)(1). The resolution of this question depends upon the unit of prosecution intended by the General Assembly.

Cunningham was prosecuted on an information filed in the Circuit Court for Baltimore City. He was convicted on the first and third counts. The first count charged that Cunningham: unlawfully did possess a certain controlled dangerous substance of schedule # 1, to wit: Heroin, which is a narcotic drug, in sufficient quantity to reasonably indicate under all the circumstances an intent to ... distribute such controlled dangerous substance [in violation of Art. 27, § 286]. The third count utilized the same language, except that the substance was identified as cocaine instead of heroin, and the schedule was identified as # 2 instead of # 1.

The trial judge imposed identical and concurrent sentences for the two convictions, and Cunningham appealed. The Court .of Special Appeals affirmed, finding that “the legislative intent was to make the type of substance possessed, rather than the act of possessing, the ‘unit of prosecution.’ ” Cunningham v. State, 78 Md.App. 254 , ¹⁸⁵ 163, 552 A.2d 1335 (1989). We granted certiorari, and we now affirm. Cunningham argues that the General Assembly did not intend that two separate convictions could be obtained by proving that a defendant simultaneously possessed two different controlled dangerous substances.

At the very least, he suggests, the language of the statute renders the intent of the legislature uncertain, and therefore the rule of lenity should operate to resolve the ambiguity in his favor. We most recently discussed the principles that govern the resolution of this case in Randall Book Corp. v. State, 316 Md. 315 , 558 A.2d 715 (1989), Webb v. State, 311 Md. 610 , 536 A.2d 1161 (1988), and Brown v. State, 311 Md. 426 , 535 A.2d 485 (1988). In Randall Book, 316 Md. at 324 , 558 A.2d 715 , we said: The multiple sentence-single statute problems, with which we are concerned here, embrace a wide range of factual situations and statutory provisions. The key, of course, is legislative intent.

As helpful as the various rules of statutory construction may be in determining legislative intent, perhaps the soundest guidance comes from the Supreme Court’s admonition that we give the language of a statute a “commonsensical meaning.” United States v. Universal Corp., 344 U.S. 218, 221 , 73 S.Ct. 227, 229 , 97 L.Ed. 260 (1952). In attempting to determine legislative intent, we look first to the words of the statute, read in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence. Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628 (1987). In a case such as this, we consider “the general history and prevailing mood of the legislative body with respect to the type of criminal conduct involved.” Randall Book, supra, 316 Md. at 327 , 558 A.2d 715 .

The rule of lenity may or may not be an operative factor in determining legislative intent. When the legislative intent can be gathered from the various sources to which we have referred, that intent ¹⁸⁶ will be enforced, and the concept of lenity does not become an operable factor. If, however, the legislative intent cannot be determined, and the indicia point with equal force in opposite directions, the rule of lenity dictates that the matter be resolved in favor of the accused and against the possibility of multiple punishments. Id.

See also Brown v. State, supra, 311 Md. at 436 n. 8, 535 A.2d 485 . As Judge Eldridge pointed out for the Court in Dawkins v. State, 313 Md. 638, 645-46 , 547 A.2d 1041 (1988), the Maryland Controlled Dangerous Substances Act is modeled on the Uniform Controlled Dangerous Substances Act. See 9 U.L.A. 187 (1979). In adopting the Maryland Act, the legislature noted that many of the substances included in the coverage of the Act have a legitimate and useful medical purpose and are necessary to maintain the health and general welfare of the people of the State.

The legislature further declared, on the other hand, that: The General Assembly, however, finds and declares that the illegal manufacture, distribution, possession, and administration of controlled dangerous substances have a substantial and detrimental effect on the health and general welfare of the people of the State of Maryland. It is the purpose of this subheading to establish a uniform law controlling the manufacture, distribution, possession, and administration of controlled dangerous substances and related paraphernalia in order to insure their availability for legitimate medical and scientific purposes, but to prevent their abuse which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State of Maryland. The provisions of this subheading shall be liberally interpreted and construed so as to effectuate its general purpose as stated hereinabove. Article 27, § 276.

The Act establishes five separate schedules of controlled dangerous substances, grouping them generally with refer ¹⁸⁷ ence to: 1) the potential for abuse, 2) the level of accepted medical use, 3) the degree of safety for use under medical supervision, and 4) the severity of the potential danger of abuse, including physical or psychological dependence. Section 286(a)(1), with which we are particularly concerned in this case, provides in pertinent part: Except as authorized by this [Act], it is unlawful for any person ... to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to ... distribute ... a controlled dangerous substance____ The basic penalty provision for this section, found in subsection (b), provide: Any person who violates any of the provisions of subsection (a) with respect to: (1) A substance classified in Schedules I or II which is a narcotic drug is guilty of felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both____ (2) Phencyclidine, [and other closely related controlled dangerous substances], is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $20,000, or both.... (3) Any other controlled dangerous substance classified in Schedule I, II, III, IV or V shall, upon conviction, be deemed guilty of a felony and sentenced to a term of imprisonment for not more than 5 years or a fine of not more than $15,000, or both____ Section 277(f) defines what is meant by a controlled dangerous substance: “Controlled dangerous substance” means any drug, substance or immediate precursor in Schedules I through V of this subheading____ (emphasis supplied). Section 287, dealing with simple possession, has a similar framework.

Section 287(a) provides: Except as authorized by this subheading, it is unlawful for any person ... [t]o possess or administer to another ¹⁸⁸ any controlled dangerous substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice. Any violation of this section is a misdemeanor. The penalty prescribed is imprisonment not to exceed one year and a fine not to exceed $1,000, or both, if the substance involved is marihuana. If any other substance is involved, the penalty is imprisonment for not more than four years and a fine of not more than $25,000, or both.

Article 27, § 287(e). We read §§ 286 and 287 of the Act to authorize a separate conviction and punishment for the possession with intent to distribute, or possession, as the case may be, of each controlled dangerous substance covered by the Act, even when there is a simultaneous possession of more than one such substance. 2 Section 286 proscribes the possession (with the requisite intent) of “a controlled dangerous substance.” Section 287 proscribes the possession of “any controlled dangerous substance.” The article “a” and the word “any” have the same meaning in this context. In the definition section, “controlled dangerous substance” means “any” drug, substance, or immediate precursor in Schedules I through V. Article 27, § 277(f). We perceive this language to be deliberate, and to demonstrate the intention of the legislature to regulate each controlled dangerous substance, and to authorize a separate conviction for the possession of each substance.

See Brown v. State, supra, 311 Md. at 435-36, 535 A.2d 485 , where we discussed a similar choice of language in determining that the legislature intended to punish the single use of a handgun separately as to each victim involved. See also Tabb v. State, 250 Ga. ¹⁸⁹ 317, 297 S.E.2d 227, 230 (1982); State v. Meadors, 177 Mont. 100 , 580 P.2d 903, 907 (1978); State v. Collier, 567 S.W.2d 165, 166-68 (Tenn.1978); State v. Williams, 542 S.W.2d 3, 5-6 (Mo.App.1976). Moreover, we believe the prevailing mood of the Maryland General Assembly with respect to illegal drug activity is identical with that earlier attributed to Congress by the Supreme Court. [T]he history of the narcotics legislation in this country “reveals the determination of Congress to turn the screw of the criminal machinery — detection, prosecution and punishment — tighter and tighter.” Albernaz v. United States, 450 U.S. 333, 343 , 101 S.Ct. 1137, 1144 , 67 L.Ed.2d 275 (1981), quoting in part from Gore v. United States, 357 U.S. 386, 390 , 78 S.Ct. 1280, 1283 , 2 L.Ed.2d 1405 (1958). We have found nothing in the legislative history of the Maryland Act, or in the history of the Uniform Act, that indicates a contrary intent.

Nor are we persuaded to reach a different result by our review of a substantial number of cases from other jurisdictions that address this issue. Indeed, the better reasoned of those cases, and the