Turner v. United States

684 A.2d 313, 1996 D.C. App. LEXIS 219, 1996 WL 593728

• Court: District of Columbia Court of Appeals
• Decided: October 17, 1996
• Docket: 95-CM-59
• Status: Published

Opinions

FARRELL, Associate Judge:

Following a bench trial, appellant was found guilty of possession of marijuana (D.C.Code § 33-541(d) (1993)), possession of a prohibited weapon (machine gun) (id. § 22-3214(a) (1996)), carrying a pistol without a license (id. § 22-3204(a)), possession of an unregistered firearm (id. § 6-2311(a) (1995)), and possession of unregistered ammunition (id. § 6-2361(3)). The gun convictions arose from possession of a single firearm. Only one argument appellant makes on appeal requires discussion: he contends that his convictions for possession of an unregistered firearm and possession of a prohibited weapon merge because the firearm/weapon is a machine gun, and a machine gun cannot be registered under D.C.Code § 6-2312. We reject this contention and appellant’s remaining arguments, except that we agree with him (and the government) that the sentence pronounced orally at the sentencing hearing differs from that recorded on the Judgment and Commitment Order, which requires a remand for conformation of the two.

I.

Appellant was the front-seat passenger in a car that police stopped for a traffic violation. When a police officer smelled burnt marijuana in the ear, he ordered the occupants to step out. Appellant tried to flee and struggled with the officers. One officer eventually pulled from appellant’s waistband a Metropolitan Police Department “Glock 17” handgun containing a magazine loaded with seventeen rounds of ammunition. The Glock 17 was a machine gun within the definition of D.C.Code §§ 6-2302(10) and 22-320HC).¹ The police also found a bag of marijuana in his shoe.

II.

Appellant contends that his conviction for possession of an unregistered firearm (UF) merged with his conviction for possession of a prohibited weapon (PPW (a)-machine gun). He is mistaken. The now-familiar law on this subject was summarized recently by the Supreme Court:

Courts may not “prescrib[e] greater punishment than the legislature intended.” In accord with principles rooted in common law and constitutional jurisprudence, we presume that “where two statutory provisions proscribe the ‘same offense,’” a legislature does not intend to impose two punishments for that offense.

For over half a century we have determined whether a defendant has been punished twice for the “same offense” by applying the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If “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.” Ibid.

Rutledge v. United States, — U.S. —, —, 116 S.Ct. 1241, 1245, 134 L.Ed.2d 419 (1996) (internal citations omitted).² While “the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that it intended to allow courts to impose them,” id. at-, 116 S.Ct. at 1248 (citations omitted), neither party points to such an indication in this case, and so we apply the Blockburger test.³

PPW (a) requires proof of a fact that UF does not. The PPW (a) statute, as charged here, provides that “[n]o person shall within the District of Columbia possess any machine gun_” D.C.Code § 22-3214(a). The government thus had to prove that appellant knowingly and intentionally possessed a machine gun. See CRIMINAL Jury Instructions FOR THE DISTRICT OF COLUMBIA, No. 4.72 A (4th ed.1993).⁴ The UF statute, by contrast, does not require proof that the defendant possessed a machine gun or any other enumerated firearm. It punishes the act of “possess[ing] or control[ling] any firearm, unless the person ... holds a valid registration certificate for the firearm.” D.C.Code § 6-2311(a) (emphasis added). A “firearm” includes “any weapon which will, or is designed or redesigned, made or remade, readily converted or restored, and intended to, expel a projectile or projectiles by the action of an explosive-” Id. § 6-2302(9). On the other hand, besides proof that the defendant possessed a firearm, UF requires proof that the firearm was not registered to the defendant in the District of Columbia. Tyree v. United States, 629 A.2d 20, 22 (D.C.1993); Criminal Jury Instructions for the District of Columbia, No. 4.73. PPW (a) requires no proof of that fact. Under Block-burger, therefore, the two crimes are not the “same offense.”

Appellant argues to the contrary by pointing to D.C.Code § 6-2312(a), which provides:

A registration certificate shall not be issued for a:

(1) Sawed-off shotgun;

(2) Machine gun;

(3) Short-barreled rifle; or

(4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976 [with certain enumerated exceptions]. [Emphases added.]

Because a machine gun cannot be registered, appellant asserts that UF changes character, losing one of its statutory elements, when possession of a machine gun is charged: then (he says) “proof that the defendant merely possessed such a weapon is sufficient as a matter of law to make out the registration violation.”

Appellant confuses an element of the offense with the manner by which it is proved. Section 6-2312(a) does not convert UF into a different crime in some applications. It does not define a possessory offense at all, but simply prohibits issuance of a registration certificate for the enumerated firearms. Its effect may be that possession of a machine gun violates the UF statute, but that is only because it relieves the government of having to prove non-registration by the usual means, ie., a certificate of non-registration. See, e.g., Townsend v. United States, supra note 4, 559 A.2d 1319. Instead of introducing such a certificate (as it did in this ease), the government presumably may ask the trial court to take judicial notice of § 6-2312(a)’s ban and rest on that proof of non-registration. See, e.g., 2 John W. Strong, McCormick on Evidence § 335, at 413-14 (4th ed.1992); cf. Poulnot v. District of Columbia, 608 A.2d 134, 141 (D.C.1992) (doctrine of judicial notice “is essentially an expression of common sense,” a “ ‘judicial shortcut, a doing away ... with the formal necessity of evidence because there is no real necessity for it’” (citation omitted)). But this does not relieve the government of the burden of proving non-registration. The elements of UF are fixed; they are not fluid depending on the identity of the firearm possessed.

Appellant’s reliance on Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 (1980), does not help him. Whalen held that, for purposes of cumulative punishment under the Double Jeopardy Clause, the crime of felony murder subsumes and makes one of its elements commission of the underlying crime (there rape), which otherwise would not be the “same offense.” Id. at 694, 100 S.Ct. at 1439. UF and PPW (a)machine gun do not similarly become the same offense just because machine guns cannot be registered. The elements of UF remain the same and distinguish it from PPW (a) regardless of the type of firearm possessed. Nor does the principle that we construe “[ejaeh provision of [a] statute ... so as to give effect to all of the statute’s provisions,” District of Columbia v. Morrissey, 668 A.2d 792, 798 (D.C.1995) (citation omitted), aid appellant. Section 6-2312(a), besides insuring that no registration will issue for the listed firearms, allows one means of proof to replace another in a UF prosecution, as explained above. We thus give full effect to the section without reading into it the much broader purpose of redefining UF in specific applications.

“[W]hen the legislature excluded machine guns from those firearms which could lawfully be registered, the legislature was ‘concerned primarily with the inherent fire power of certain weapons....”’ United States v. Woodfolk, 656 A.2d 1145, 1148 (D.C.1995) (footnote omitted) (quoting Fesjian v. Jefferson, 399 A.2d 861, 865 (D.C.1979)), cert. denied, — U.S. —, 116 S.Ct. 1286, 134 L.Ed.2d 231 (1996). - Barring their registration was part of the legislature’s concern in Title 6 “to broaden and increase the limitations on firearms within the District.” Townsend, 559 A.2d at 1321. It scarcely harmonizes with this concern to read § 6-2312(a) as removing possession of these lethal weapons from the reach of UF because it also violates another statute. UF simply “turn[s] the screw of the criminal machinery ... tighter,” Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405 (1958), on the possession of such weapons.

Furthermore, appellant’s argument logically would have to include all of the firearms listed in § 6-2312(a), not just machine guns. These include any “[pjistol not validly registered to the current registrant in the District prior to September 24,1976”⁵ — which surely embraces most pistols now to be found in the District of Columbia. Appellant’s position would mean that UF-pistol merges with the crime of carrying a pistol without a license (D.C.Code § 22-3204(a)) in cases where both are charged. But this court has rejected the argument that these crimes merge under Blockbwrger, in part because “the registration offense requires proof of non-registration which the license offense does not.” Tyree, 629 A.2d at 23; see also Irby v. United States, 585 A.2d 759, 766 n. 11 (D.C.1991).

Though it is hardly necessary to say so, the logic of appellant’s argument would extend still further. Section 6-2313 sets forth a variety of conditions other than the nature of the firearm that disable a person from registering a firearm. These include minority, previous conviction for a crime of violence or a weapons offense, recent drug convictions, recent acquittal by reason of insanity or recent involuntary commitment to a mental institution, and others. Under appellant’s theory, if any of these conditions caused a defendant’s firearm not to be registered, non-registration would cease to be an element of UF just as in the case of machine guns, and UF would merge with another offense prohibiting possession. Blockbwrger does not support this wholesale restriction on cumulative punishment for UF and related weapons offenses.

For these reasons, we hold that appellant’s separate sentences for UF and PPW (a)machine gun may stand.

III.

Appellant contends that his sentence of one year in prison for possession of marijuana must be reversed because, after he committed the offense but before trial and sentencing, the Council of the District of Columbia reduced the maximum sentence for the offense to 180 days in prison. See D.C.Code § 33-541(d) (1993 & Supp.1996). He argues that he should receive the benefit of the law even though the legislative change he relies on is silent as to its intended effect on crimes committed before the effective date. Appellant’s argument is foreclosed by our recent decision in Holiday v. United States, 683 A.2d 61 (D.C.1996) (holding that statutory elimination of mandatory-minimum sentences for certain non-violent drug offenses is not applicable to offenses committed before the effective date of the repealing legislation, in light of the federal and District of Columbia “savings statutes”).

IV.

As the government concedes, the sentence recorded on the Judgment and Commitment Order differs from the sentence pronounced orally by the trial judge on January 5, 1995. As “[t]he sentence pronounced in open court constitutes the actual judgment of the court,” Davis v. United States, 397 A.2d 951, 954 (D.C.1979),⁶ the case must be remanded for the judge to issue a correct Judgment and Commitment Order in conformity with the oral pronouncement.

In all other respects, the judgments appealed from are

Affirmed.

1 . Appellant’s argument that he established the defense of "innocent possession" of the firearm as a matter of law has no merit. Evidence established that he had been in possession of the weapon for over four hours when arrested, a fact which — along with his attempted flight — the trial judge properly could Bad inconsistent with his story that he was on his way to the police station to surrender the gun when arrested. See, e.g., Hines v. United States, 326 A.2d 247 (D.C.1974).

2 . The Court went on to explain that, ”[i]n subsequent applications of the test, we have often concluded that two different statutes define the ‘same offense,' typically because one is a lesser included offense of the other.” •— U.S. at-, 116 S.Ct. at 1245.

3 . This court’s decisions follow the Supreme Court's merger analysis. See, e.g., Byrd v. United States, 598 A.2d 386, 389 (D.C.1991) (en banc); see also D.C.Code § 23-112 (1996) (embodying the Blockburger test).

4 . The government also had to prove the operability of the machine gun to convict under PPW (a), Washington v. United States, 498 A.2d 247 (D.C.1985), something UF does not require. Townsend v. United States, 559 A.2d 1319 (D.C.1989).

5 . The only exceptions pertain to weapons issued to special police officers and similar employees, and to retired Metropolitan police officers.

6 . "[T]he written Judgment and Commitment Order is intended only to memorialize the oral judgment." David v. United States, 579 A.2d 1172, 1175 (D.C.1990).