dissenting.
I must respectfully dissent from the majority opinion because it is not a violation of the double jeopardy provisions of the Kentucky Constitution to convict a defendant of more than one count where the defendant sells or possesses more than one drug or controlled substance listed on the same schedule.
I believe there are two separate crimes because the two different drugs consist of separate and distinct chemical compounds. When ingested, each drug can produce different effects on the human body. There are separate dangers and consequences arising from the use of each drug. As an example, a dose of Dilaudid is more potent than an equal dose of Percodan, and unlike Percodan, Dilaudid can produce quite a different adverse effect on- individuals with respiratory problems. See Houts et al., Courtroom Toxicology (1990).
KRS 505.020 provides in pertinent part that when a single course of conduct may establish the commission of more than one offense, the defendant may be prosecuted for *887each such offense. The statute lists certain exemptions, but none of these apply to this situation.
The majority opinion recognizes that the issue of simultaneous possession of more than one controlled substance enumerated in the same schedule, has been considered by other jurisdictions with similar statutes and by the Federal courts. The majority chooses to base its decision on the double jeopardy analysis provided by Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990).
In view of the fact that I have dissented previously from Ingram, supra, I must follow a consistent pattern of disagreement with any such analysis. As noted in my dissent in Ingram, beginning on page 325, the majority in that case attempted to meld all the Kentucky cases dealing with the question of multiple punishment, merger of criminal activity, single criminal impulse or single criminal act under the umbrella of double jeopardy whenever more than one criminal offense is charged. As noted in my dissent in Walden v. Commonwealth, Ky., 805 S.W.2d 102 at 109 (1991), the majority opinion in that case altered the law of Kentucky concerning double jeopardy by confusing the legal concept underlying two different terms, specifically, subsequent prosecution and multiple punishment. This case continues in the wrong direction.
I would respectfully suggest that our neighboring State of Tennessee in State v. Collier, Tenn., 567 S.W.2d 165 (1978), reached the correct result when it analyzed the Tennessee statute to the effect that the legislative intent to create a separate offense for the possession of each controlled substance, as well as separate penalties, were enumerated because each drug within a given schedule was dangerous and required control. See also, Nebraska v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
Missouri, in State v. Williams, Mo.App., 542 S.W.2d 3 (1976), determined that separate convictions would be valid for simultaneous possession of heroin and marijuana, both of which were Schedule I narcotics on the basis of legislative intent.
Georgia, in Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982) determined that there was no violation of double jeopardy principles when it affirmed the conviction of a defendant for four counts of possession with intent to distribute drugs, three of which were Schedule II controlled substances. Again the Court relies on its interpretation of the legislative intent. See also, Howard v. State, 144 Ga.App. 208, 240 S.E.2d 908 (1977).
Montana in State v. Meadors, 177 Mont. 100, 580 P.2d 903 (1978), found no double jeopardy prohibition from a conviction for possession of two drugs prohibited on the same schedule. The wording of the Montana statute was similar to that of KRS 218A.040.
New Mexico, in State v. Smith, 94 N.M. 379, 610 P.2d 1208 (1980) found no double jeopardy problem in a case in which the defendant was convicted of four counts of trafficking with intent to distribute narcotic drugs all arising from one sale. There were four different substances, and the defendant claimed that the four charges merged into one.
The majority opinion has chosen a different avenue in order to address this type of situation. I cannot agree because I believe that the clear legislative intent is to provide punishment for those who sell or possess specific individual drugs regardless of the schedule which lists the drugs. In this instance, I must disagree with the majority view, and it is my opinion that the facts here amount to what might be called a single impulse but which clearly has compound consequences.
I would affirm the conviction and reverse the Court of Appeals.