[121]*121HERRMANN, Chief Justice:
On this appeal, we are required to decide, inter alia, whether the defendant Sara C. Hunter may be sentenced cumulatively upon convictions in one trial of: (1) Assault in the First Degree, in violation of 11 Del.C. § 613(1);1 and (2) Possession of a Deadly Weapon During the Commission of a Felony, in violation of 11 Del.C. § 1447.2
I.
The defendant was indicted upon two counts: Count I charged violation of § 613 3 and Count II charged violation of 1447.4 Upon her conviction in a single trial on both Counts, the defendant was sentenced to incarceration for a period of 10 years-5 years on the § 613(1) conviction and 5 years on the § 1447 conviction, to run consecutively. Later, pursuant to a motion for reduction of sentence, the sentence on the § 613(1) conviction was changed to probation for 5 years commencing upon the termination of the minimum 5 year term of incarceration mandated by the Statute for the § 1447 conviction. The defendant attacks the con-[122]*122vietions on various grounds, and the § 1447 conviction and sentence especially upon the basis of Davis v. State, Del.Supr., 400 A.2d 292 (1979).
II.
The basic facts will be stated as generally and briefly as possible; other facts, relevant to specific grounds of the appeal, will be detailed in the discussion of the specific contentions.
The charges against the defendant arose out of an altercation that occurred at the defendant’s apartment. The victim testified that she had been requested by her cousin to go to the defendant’s house to settle a difference between the cousin and the defendant. After an argument at the doorway to the defendant’s apartment, according to the victim’s testimony, the defendant jumped out of the doorway, threatened to kill her, and stabbed her with a knife causing cuts requiring over 150 stitches, including lacerations of the face, breast, arms and back, and a 4 inch stab under shoulder blade. On the other hand, the defendant testified that, while still inside her doorway, she was cut by the victim with a knife before she stabbed the victim in self-defense. There was evidence that the victim had been drinking during the day in question which, according to the self-defense position of the defendant, resulted in the victim’s being intoxicated at the time of the altercation.
III.
Disposing first of the defendant’s assertions of reversible errors in. the trial as follows:
First, the defendant contends that the Trial Court committed error in admitting into evidence a photograph showing the victim a short time after the stabbing, bandaged after emergency treatment, sitting in a wheel chair. The evidence was objected to as irrelevant, unduly prejudicial, and inflammatory. We find no abuse of discretion by the Trial Court in the admission of the photograph. Shantz v. State, Del.Supr., 344 A.2d 245 (1975).
Secondly, the defendant contends that the Trial Court committed reversible error in refusing to allow either testimony by an expert witness as to the blood alcohol content of the victim or by failing to instruct the jury under 21 Del.C. § 4177(a).5 We find no error in this connection in view of the facts that the jury heard testimony that the victim’s blood alcohol count was .10% and perhaps higher, and that there was no request for an instruction under § 4177(a).
Finally, in her general attacks upon the convictions, the defendant argues that the prosecutor’s remark in his rebuttal summation regarding “prior conviction” falsely implied that the defendant had a previous conviction and was so prejudicial as to require reversal. We find no merit in this contention.
In its closing argument the defense stated:
“The only two episodes of violence that you have heard about Sara Hunter, who has never been convicted of a felony, a mother of five was the episode four to six weeks before this one.”
In his rebuttal summation, the prosecutor stated:
“Don’t let someone who may have a prior conviction be convicted on less evidence than someone who doesn’t have a prior conviction. The evidence required for each person is the same. They stand new in front of the law every time they stand up here.”
There has been no showing of error in the trial to justify a new trial.
[123]*123IV.
Turning now to the more difficult question of whether the conviction and sentence on the felony-weapon possession charge under § 1447 may stand in the light of Davis, our conclusion is that Davis does not apply in this case.
The Davis case involved convictions for Attempted Robbery in the First Degree under 11 Del.C. § 8326 and Possession of a Deadly Weapon During the Commission of a Felony under § 1447; a separate sentence was imposed on each charge. In Davis, this Court followed the example of Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 913, 55 L.Ed.2d 70, 76 (1978): before examination to determine whether cumulative punishments for two statutory offenses are constitutionally permissible, it is necessary, following the policy of avoiding constitutional decisions when possible, to determine whether the Legislature intended to subject the defendant to multiple penalties for the single criminal transaction in which she engaged. After analyzing and comparing the elements of § 832(a)(2) and § 1447, this Court concluded in Davis that “as to armed robbery, the General Assembly has defined two indistinguishable crimes and that it intended to replace the weapons statute, § 1447, with the special aggravated crime of first-degree robbery, § 832”.
The Davis approach does not govern the instant case because the Assault First Degree Statute, § 613, lacks the statutory history of the Robbery Statute, § 832, as outlined in Davis, and because § 613 lacks any “built-in” enhancement-of-punishment provision comparable to § 832(c). Moreover, unlike the Robbery Statute § 832(a)(2) in its relationship to § 1447 which arises out of the mere “display” of a deadly weapon, by the three Assault Statutes the General Assembly seeks to enhance punishment more for the perpetrator’s state of mind and the seriousness of the injury than for the possession of the deadly weapon used. The Assault in the Third Degree Statute [11 Del.C. § 611(2)] proscribes the infliction by means of a deadly weapon of physical injury with criminal negligence; violation of § 611(2) is a misdemeanor. The Assault in the Second Degree Statute [11 Del.C. §§ 612(2) and (3)] proscribes the infliction by means of a deadly weapon of physical injury intentionally, or of serious physical injury recklessly; violation of either of these sections is a class C felony. Finally, the Assault in the First Degree Statute [11 Del.C. § 613(1)] proscribes the infliction by means of a deadly weapon of serious physical injury intentionally; violation of § 613(1) is a class B felony. There is no enhanced punishment by reason of the possession of a deadly weapon built into the Assault Statutes. Clearly, therefore, it cannot be said, as in Davis
Free access — add to your briefcase to read the full text and ask questions with AI
[121]*121HERRMANN, Chief Justice:
On this appeal, we are required to decide, inter alia, whether the defendant Sara C. Hunter may be sentenced cumulatively upon convictions in one trial of: (1) Assault in the First Degree, in violation of 11 Del.C. § 613(1);1 and (2) Possession of a Deadly Weapon During the Commission of a Felony, in violation of 11 Del.C. § 1447.2
I.
The defendant was indicted upon two counts: Count I charged violation of § 613 3 and Count II charged violation of 1447.4 Upon her conviction in a single trial on both Counts, the defendant was sentenced to incarceration for a period of 10 years-5 years on the § 613(1) conviction and 5 years on the § 1447 conviction, to run consecutively. Later, pursuant to a motion for reduction of sentence, the sentence on the § 613(1) conviction was changed to probation for 5 years commencing upon the termination of the minimum 5 year term of incarceration mandated by the Statute for the § 1447 conviction. The defendant attacks the con-[122]*122vietions on various grounds, and the § 1447 conviction and sentence especially upon the basis of Davis v. State, Del.Supr., 400 A.2d 292 (1979).
II.
The basic facts will be stated as generally and briefly as possible; other facts, relevant to specific grounds of the appeal, will be detailed in the discussion of the specific contentions.
The charges against the defendant arose out of an altercation that occurred at the defendant’s apartment. The victim testified that she had been requested by her cousin to go to the defendant’s house to settle a difference between the cousin and the defendant. After an argument at the doorway to the defendant’s apartment, according to the victim’s testimony, the defendant jumped out of the doorway, threatened to kill her, and stabbed her with a knife causing cuts requiring over 150 stitches, including lacerations of the face, breast, arms and back, and a 4 inch stab under shoulder blade. On the other hand, the defendant testified that, while still inside her doorway, she was cut by the victim with a knife before she stabbed the victim in self-defense. There was evidence that the victim had been drinking during the day in question which, according to the self-defense position of the defendant, resulted in the victim’s being intoxicated at the time of the altercation.
III.
Disposing first of the defendant’s assertions of reversible errors in. the trial as follows:
First, the defendant contends that the Trial Court committed error in admitting into evidence a photograph showing the victim a short time after the stabbing, bandaged after emergency treatment, sitting in a wheel chair. The evidence was objected to as irrelevant, unduly prejudicial, and inflammatory. We find no abuse of discretion by the Trial Court in the admission of the photograph. Shantz v. State, Del.Supr., 344 A.2d 245 (1975).
Secondly, the defendant contends that the Trial Court committed reversible error in refusing to allow either testimony by an expert witness as to the blood alcohol content of the victim or by failing to instruct the jury under 21 Del.C. § 4177(a).5 We find no error in this connection in view of the facts that the jury heard testimony that the victim’s blood alcohol count was .10% and perhaps higher, and that there was no request for an instruction under § 4177(a).
Finally, in her general attacks upon the convictions, the defendant argues that the prosecutor’s remark in his rebuttal summation regarding “prior conviction” falsely implied that the defendant had a previous conviction and was so prejudicial as to require reversal. We find no merit in this contention.
In its closing argument the defense stated:
“The only two episodes of violence that you have heard about Sara Hunter, who has never been convicted of a felony, a mother of five was the episode four to six weeks before this one.”
In his rebuttal summation, the prosecutor stated:
“Don’t let someone who may have a prior conviction be convicted on less evidence than someone who doesn’t have a prior conviction. The evidence required for each person is the same. They stand new in front of the law every time they stand up here.”
There has been no showing of error in the trial to justify a new trial.
[123]*123IV.
Turning now to the more difficult question of whether the conviction and sentence on the felony-weapon possession charge under § 1447 may stand in the light of Davis, our conclusion is that Davis does not apply in this case.
The Davis case involved convictions for Attempted Robbery in the First Degree under 11 Del.C. § 8326 and Possession of a Deadly Weapon During the Commission of a Felony under § 1447; a separate sentence was imposed on each charge. In Davis, this Court followed the example of Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 913, 55 L.Ed.2d 70, 76 (1978): before examination to determine whether cumulative punishments for two statutory offenses are constitutionally permissible, it is necessary, following the policy of avoiding constitutional decisions when possible, to determine whether the Legislature intended to subject the defendant to multiple penalties for the single criminal transaction in which she engaged. After analyzing and comparing the elements of § 832(a)(2) and § 1447, this Court concluded in Davis that “as to armed robbery, the General Assembly has defined two indistinguishable crimes and that it intended to replace the weapons statute, § 1447, with the special aggravated crime of first-degree robbery, § 832”.
The Davis approach does not govern the instant case because the Assault First Degree Statute, § 613, lacks the statutory history of the Robbery Statute, § 832, as outlined in Davis, and because § 613 lacks any “built-in” enhancement-of-punishment provision comparable to § 832(c). Moreover, unlike the Robbery Statute § 832(a)(2) in its relationship to § 1447 which arises out of the mere “display” of a deadly weapon, by the three Assault Statutes the General Assembly seeks to enhance punishment more for the perpetrator’s state of mind and the seriousness of the injury than for the possession of the deadly weapon used. The Assault in the Third Degree Statute [11 Del.C. § 611(2)] proscribes the infliction by means of a deadly weapon of physical injury with criminal negligence; violation of § 611(2) is a misdemeanor. The Assault in the Second Degree Statute [11 Del.C. §§ 612(2) and (3)] proscribes the infliction by means of a deadly weapon of physical injury intentionally, or of serious physical injury recklessly; violation of either of these sections is a class C felony. Finally, the Assault in the First Degree Statute [11 Del.C. § 613(1)] proscribes the infliction by means of a deadly weapon of serious physical injury intentionally; violation of § 613(1) is a class B felony. There is no enhanced punishment by reason of the possession of a deadly weapon built into the Assault Statutes. Clearly, therefore, it cannot be said, as in Davis regarding § 832(a)(2), that the purpose and effect of § 613(1) is the same as § 1447.
Accordingly, we hold that the Davis case is inapposite and that, therefore, the § 1447 conviction and sentence in the instant case do not fall by reason thereof.
[124]*124V.
A.
But that conclusion may not be permitted to end the matter. Cases in which the State “is able to prove violations of two separate criminal statutes with the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger7 test.” Simpson v. United States, supra, 435 U.S. at 11, 98 S.Ct. at 912, 55 L.Ed.2d at 76.
Before entering into an examination of whether cumulative punishments for the two offenses under § 613(1) and § 1447 are constitutionally permissible, just as in Davis we considered preliminarily the question of whether the General Assembly intended to subject the defendant to multiple penalties for the single criminal act in which she engaged. It is our conclusion that such was the legislative intent. There is no statutory history to the contrary; and the two Statutes are clear and unambiguous, leaving no room for the application of rules of statutory construction. Compare Simpson v. United States, supra. “There is nothing anywhere in the pertinent Statutes to suggest that one statutory offense was intended to be deprived of its status as the basis for prosecution by reason of its relationship to another offense. Indeed, the clear purpose and intent of the Felon’s Firearm Possession Act [§ 1447] is to contrary.” State v. Honie, Del.Supr., 310 A.2d 872, 874 (1973).8
For these reasons and the reasons stated in Part IV hereof, we conclude that § 1447 creates an offense distinct from the underlying § 613(1) felony of Assault First Degree, and that it was the legislative intent to subject this defendant to multiple penalties for the single criminal act in which she engaged. Accordingly, in this case we reach the constitutional double jeopardy issue and the need to evaluate § 613(1) and § 1447 in the light of the Blockburger test.
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Delaware Constitution, Art. I, § 8, similarly provides that no person shall be twice put in jeopardy “for the same offense”. We have little helpful case law under the State Constitutional provision, see e. g., State v. Turner, Del.Supr., 3 Storey 305, 168 A.2d 539 (1961); State v. Hamilton, Del.Super., 318 A.2d 624 (1974); but there are several recent helpful pronouncements on the subject by the United States Supreme Court.
The double jeopardy guarantee “serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown v. Ohio, 431 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193 (1977). “What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for ‘the same offense’ ”, Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168, 180 (1977), and protection “against 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, 665 (1969).
In Blockburger, the Supreme Court set out the test for determining “whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.” Brown v. Ohio, supra, 431 U.S. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. It [125]*125there held that “[t]he applicable rule is 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 a fact which the other does not.” Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed.2d at 309. “The Blockburger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the ‘same offense’ for double jeopardy purposes.” Simpson v. United States, supra, 435 U.S. at 11, 98 S.Ct. at 912, 55 L.Ed.2d at 76. The test emphasizes the elements of the two offenses. “If each requires proof of a fact that the other does not, the Block-burger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the offenses.” Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616, 627, n.17 (1975).
In the instant case, it is clear that the Blockburger test has not been satisfied and that multiple punishments for the “same offense” have been imposed. Section 1447 required proof of no fact not required by § 613(1). The elements required to be proved under Count I and Count II of the Indictment were identical: Under Count I, the State, to obtain a conviction for Assault in the First Degree, was required to prove that defendant intentionally caused serious physical injury to another person by means of a deadly weapon. Under Count II, the State was compelled to prove the possession of the deadly weapon as well as all the elements of the underlying felony, Assault in the First Degree, as alleged in Count I. Compare United States v. Busic, (3 Cir.), 587 F.2d 577 (1978). For double jeopardy purposes, the two offenses are undoubtedly “the same”.
B.
But that does not mean that the two convictions under the two Counts of the Indictment may not stand. The Double Jeopardy Clause prohibits “multiple prosecutions” for the same offense, Jeffers v. United States, 432 U.S. 137, 150-151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977). Since the crux of this constitutional proscription lies in the ordeal of multiple trials and multiple punishment for the same offense, North Carolina v. Pearce, supra, 89 S.Ct. at 2089, dual indictments and dual convictions in a single, simultaneous prosecution for an act which amounts to the same offense under separate statutes do not violate the Double Jeopardy Clause. See United States v. McDaniel, 176 U.S.App.D.C. 60, 538 F.2d 408 (1976); United States v. Redman, (D.Del.), 470 F.Supp. 50 (1979); United States v. Hearst, (N.D.Cal.), 412 F.Supp. 877 (1976). See also Simpson v. United States, supra; United States v. Busic, (3 Cir.), 587 F.2d 577 (1978); but cf. United States v. Eagle, (8 Cir.), 539 F.2d 1166 (1976). It is only when, as here, multiple punishments are imposed upon such dual convictions under statutes that proscribe the same offense that the spectre of constitutional violations arise.
In addition to the federal double jeopardy authorities, it is settled in this jurisdiction that a weapon-possession charge under § 1447, set out in the indictment separately from the underlying offense, as here will support a separate conviction under § 1447. Mackie v State, Del.Supr., 384 A.2d 625 (1978).9
Accordingly, both convictions are affirmed.
C.
Since the cumulative sentences imposed by the Trial Court in the instant case may not stand, there must be a remand for resentencing. Under the conclusions reached herein, the case returns under the [126]*126remand with both convictions intact. Adopting the practice of the Third Circuit Court of Appeals on the remand of this case for resentencing, we direct that the State shall have the election to proceed under either § 613 or § 1447, but not both. See United States v. Busic, supra, 587 F.2d at 589.
The practice of allowing such prosecutorial choice, without regard for the “rule of lenity”, is in accord with recent pronouncements of the United States Supreme Court, United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), involving two statutes that contained overlapping provisions prohibiting convicted felons from receiving firearms, but each authorizing different maximum penalties. The Court there stated:
“This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. * * *. Whether to prosecute and what charge to file or bring * * * are decisions that generally rest in the prosecutor’s discretion. * * *. [Tjhere is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. * * * The prosecutor may be influenced by the penalties available upon conviction, but this fact standing alone does not give rise to a violation of the Equal Protection or Due Process Clauses. * * * Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. * * *.” 99 S.Ct. at 2204-5.
Affirmed as to the convictions. The sentences are set aside and the cause remanded for further proceedings consistent with this opinion.