Satterfield v. State

McAULIFFE, Judge,

dissenting.

The Court holds today that a defendant may not be charged with more than one offense under Article 27, § 287(d)(2) for possession of multiple items of drug paraphernalia so long as those items are used in conjunction with the manufacture, distribution, possession, or administration of the same controlled dangerous substance. The majority concedes that this interpretation is not clearly intended by the legislature but only that “it is at least [as] equally plausible” as an interpretation allowing for multiple convictions for possession of multiple items of paraphernalia, and that the rule of lenity tips the balance toward the interpretation favoring the accused. Because I agree with the Court of Special Appeals that the legislature intended to allow more than one unit of prosecution for possession of different kinds of paraphernalia when used in conjunction with the same illicit drug, I dissent.

As this Court has previously recognized, the legislature has intended in some instances to allow multiple convictions and sentences for the simultaneous possession of items made unlawful under the same statutory provision. Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989) (simul*157taneous possession of heroin and cocaine justified separate convictions and sentences); Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989) (simultaneous display for sale of 116 different pornographic magazines supported 116 convictions and sentences).

We have said that to determine what the legislature intended as the appropriate unit of prosecution, we must look at the plain meaning of the words of the statute in light of “the general history and prevailing mood of the legislative body with respect to the type of criminal conduct involved.” Cunningham, supra, 318 Md. at 185, 567 A.2d 126, quoting Randall Book, supra, 316 Md. at 327, 558 A.2d 715. In both of these cases, we inferred the intent to allow multiple units of prosecution not from specific statutory language authorizing them but from the history of the statutes and a more general analysis of the statutory language.

The grounds we found in those cases to support allowing multiple units of prosecution are equally present in this case. First, in terms of the general legislative history of Section 287, the Section is part of the same legislative act, the Maryland Controlled Dangerous Substances Act, that was at issue in Cunningham. When we held in Cunningham that two convictions were proper for simultaneous possession of two drugs, we emphasized that the provisions of the Act were intended to be liberally construed and that

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.”

Cunningham, supra, 318 Md. at 189, 567 A.2d 126 (citations omitted). The majority does not suggest, and I find no indication in the Act, that Section 287 was intended to be treated differently from other provisions of the Act.

*158Second, in terms of interpreting the plain meaning of Section 287(d)(2), its language is similar to that found in the statute construed in Randall Book permitting a conviction for each separate pornographic magazine displayed for sale. In Randall Book we noted that the specificity of the statute contributed to the interpretation that multiple units of prosecution were intended:

In the case before us, the statute proscribes the knowing display for advertising purposes of ‘[a]ny picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts sadomasochistic abuse, sexual conduct or sexual excitement, or any verbal description or narrative account of these activities or items.’ Art. 27, § 416D(a). It seems apparent that the legislature specifically intended to establish a small unit of prosecution.

Randall Book Corp., supra, 316 Md. at 327, 558 A.2d 715. Section 287(d)(2) similarly lists with specificity the different items that constitute paraphernalia and the different uses which make the paraphernalia unlawful to possess. Thus, as in Randall, it can be inferred that multiple units of prosecution were intended for possession of different types of paraphernalia.

The majority does not contest that multiple convictions would be allowed if each item of paraphernalia involved in this case were used in conjunction with a different illicit drug. They state, however, that only one unit of prosecution is permissible when the different paraphernalia are possessed for the use of the same drug. To support this distinction, the majority relies on State v. Owens, 320 Md. 682, 579 A.2d 766 (1990), in which we held that the simultaneous possession of marijuana and PCP are not separate offenses if the two substances are for all practical purposes irrevocably joined as one.

Reliance on Owens is misplaced because, in contrast to that case, here the two items of paraphernalia possessed by Petitioner were not irrevocably joined as one. In Owens, we specifically relied on the fact that the two substances *159were mechanically bound together “in a way that renders it impossible, in any practical sense, to separate them.” Id. at 687, 579 A.2d 766. Here, however there are two different types of paraphernalia possessed for two different purposes. The syringe was used in the manufacture of the PCP product to spray the parsley flakes, while the baggies were used as a means of packaging and distributing the sprayed flakes. The items were thus distinct and intended for different purposes. As the Court of Special Appeals held, “this is an instance where the possession of each item is simultaneous, yet they are entirely separate, and thus the possession of each clearly constitutes a separate offense.”

The majority’s holding produces the odd result that if Petitioner had been found to possess a whole laboratory of equipment and supplies for the manufacture, packaging, and distribution of PCP, only one unit of prosecution would be permissible under Section 287. I do not believe that the Legislature intended such a result when it enacted the Maryland Controlled Dangerous Substances Act. I would affirm the judgment of the Court of Special Appeals.

Judges RODOWSKY and KARWACKI have authorized me to state that they join in the views expressed herein.