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Docket Number

Docket No. 78-1063.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people. George S. Buth, for defendant on appeal.

Judges

PER CURIAM.
T.M. BURNS, J. (dissenting).

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Smart Summary

People v. Atkins, Docket No. 78-1063 (Mich. Ct. App. Nov. 6, 1979)

Factual and Procedural Background

On December 7, 1977, defendant pled guilty to robbery armed, contrary to MCL 750.529; MSA 28.797, and to possession of a firearm in the commission thereof (felony-firearm), contrary to MCL 750.227b; MSA 28.424(2). On January 23, 1978, defendant was sentenced to 7-1/2 to 20 years on the robbery charge and to a mandatory two years consecutive imprisonment on the felony-firearm charge. Defendant appeals raising two issues. The record of the guilty plea and the factual basis for the felony-firearm plea were examined by the Court of Appeals. The appellate panel issued a per curiam opinion affirming the convictions; Judge T.M. Burns filed a dissent.

Legal Issues Presented

Whether the felony-firearm statute (MCL 750.227b; MSA 28.424(2)) is unconstitutional under double jeopardy principles.
Whether a defendant, as an aider and abettor who did not personally carry or have physical possession of the firearm, can be convicted under the felony-firearm statute.

Arguments of the Parties

Defendant's Arguments

Defendant asserted that the felony-firearm statute violates the Double Jeopardy Clause.
Defendant argued that, as an aider and abettor who did not personally carry or possess the firearm during the robbery, he could not be convicted under the felony-firearm statute.

The People's Arguments

The opinion does not contain a detailed account of the People's trial or appellate arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979)	Rejection of the double jeopardy challenge to the felony-firearm statute.	The court relied on the Michigan Supreme Court's rejection of the double jeopardy claim and likewise rejected defendant's double jeopardy challenge.
People v Walter Johnson, 85 Mich. App. 654, 658; 272 N.W.2d 605 (1978)	Discusses the scope of culpability under the felony-firearm statute (varied holdings/dissent noted).	Cited as part of a line of authority reflecting differing views in this Court; used in comparing positions on whether personal possession is required.
People v Powell, 90 Mich. App. 273, 274-5; 282 N.W.2d 803 (1979)	Addresses whether personal possession is required for conviction under the felony-firearm statute.	Included among authorities demonstrating intra-court disagreement; cited in discussion of differing holdings and dissents.
People v Walter Johnson, supra at 672-673 (KAUFMAN, J., dissenting)	Dissenting view that personal possession is not required or alternatively addressing the statutory scope.	Referenced to show that there are dissenting analyses within prior opinions which influenced the court's reading that personal possession is not required.
People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979)	Interprets the felony-firearm statute with regard to possession and aider/abettor liability.	Read carefully by the court and cited as persuasive authority that personal possession need not be proven for felony-firearm conviction of an aider and abettor.
United States v James, 528 F.2d 999, 1015 (CA 5, 1976), reh den 532 F.2d 1054 (1976)	Federal appellate discussion relevant to aiding and abetting liability for possessory firearm offenses.	Cited as persuasive support for the view that personal possession need not be established for an aider and abettor.
United States v Brant, 448 F. Supp. 781 (WD Pa, 1978)	Federal district court treatment of related possessory firearm issues (noted as "cf.").	Mentioned as comparative authority (cf.) in the court's survey of relevant federal decisions.
United States v Giannoni, 472 F.2d 136 (CA 9, 1973), cert den, 411 U.S. 935; 93 S Ct 1911; 36 L Ed 2d 396 (1973)	Federal appellate authority on aiding and abetting and firearm possession issues.	Used as additional federal authority supporting the court's interpretation that personal possession by the defendant is not always required.
People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330; 47 ALR3d 1236 (1971)	Principle that to convict an aider and abettor of a possessory crime it must be shown he knowingly acted or encouraged, with intent to aid, the possessor to obtain/retain/use the firearm.	Cited by the court to state the required mens rea and conduct for aiding and abetting a possessory offense; formed part of the test applied to the plea record.
People v Pearce, 20 Mich. App. 289; 174 N.W.2d 19 (1969)	Related authority on aider and abettor liability.	Included as supporting Michigan appellate precedent for the proposition concerning aider and abettor liability in possessory offenses.
People v Little, 58 Mich. App. 12; 226 N.W.2d 735 (1975)	Related authority on aiding and abetting principles.	Cited as additional state appellate authority relevant to aider and abettor liability.
People v Sharp, 57 Mich. App. 624; 226 N.W.2d 590 (1975)	Authority on affirmance of robbery convictions.	Cited in affirming the defendant's armed robbery conviction.
People v Spry, 74 Mich. App. 584, 595; 254 N.W.2d 782 (1977)	Authority on affirmance of convictions (contextual).	Cited in support of affirming defendant's robbery conviction.
People v Hall, 391 Mich. 175, 189; 215 N.W.2d 166 (1974)	Principle that statutes defining criminal acts must be strictly construed.	Quoted in the dissent (T.M. Burns, J.) to support a view that felony-firearm must be strictly construed to require personal possession.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps, closely following the text of the opinion:

The court rejected defendant's double jeopardy challenge by reference to the Michigan Supreme Court decision in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), which rejected that claim. The panel stated it likewise rejects the contention in this case.
On the question whether an aider and abettor may be convicted under the felony-firearm statute without proof that he personally carried or possessed the firearm, the panel surveyed conflicting opinions in the Court of Appeals (citing People v Walter Johnson; People v Powell; People v Tavolacci) and several federal decisions (including United States v James; United States v Giannoni), and concluded that MCL 750.227b; MSA 28.424(2) "does not require proof of personal possession of the firearm when used in the commission of a felony."
The court clarified the required proof to convict an aider and abettor of a possessory crime: it must be shown that the accused "knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of or to use the firearm during the course of a felony," citing People v Doemer and similar authorities.
The court applied the rule governing the sufficiency of a factual basis for a guilty plea (GCR 1963, 785.7(3)(a)) and examined the plea record to determine whether that factual basis existed for the felony-firearm plea.
In examining the plea record, the court relied on defendant's admissions: he drove the stolen automobile used to transport the group; he and companions had broken into a house and taken four guns including a shotgun; the guns were used to rob three businesses; for the particular robbery at issue defendant waited outside in the car but admitted he knew companions entered with a shotgun to commit the robbery; and the proceeds were equally divided. The court determined this constituted a sufficient factual basis to conclude defendant knowingly acted and encouraged his companions to obtain and use the firearm during the felony.
Based on these findings, the court affirmed the robbery conviction and found the factual basis sufficient to support the felony-firearm conviction as to an aider and abettor.
The opinion notes a dissent by T.M. Burns, J., who argued the statute must be strictly construed and that the operative language "who carries or has in his possession" requires personal possession, and therefore would not convict an aider and abettor under the felony-firearm statute.

Holding and Implications

Holding: The judgment of the trial court was Affirmed.

Implications:

The Court of Appeals upheld the robbery and the consecutive mandatory two-year felony-firearm sentence imposed on defendant.
The panel held that MCL 750.227b; MSA 28.424(2) does not require proof of the defendant's personal physical possession of the firearm where the defendant is charged as an aider and abettor, provided there is a factual basis showing the defendant knowingly acted with intent to aid the possessor to obtain, retain, or use the firearm during the felony.
The court applied the established requirement that a factual basis for a guilty plea be present (GCR 1963, 785.7(3)(a)) and found the plea record sufficient in this case.
The opinion contains a noted dissent holding the contrary view (that the statute must be strictly construed to require personal possession), indicating continuing disagreement within the Court of Appeals on the statutory interpretation.

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PEOPLE v ATKINS

PER CURIAM.

On December 7, 1977, defendant pled guilty to robbery armed, contrary to MCL 750.529; MSA 28.797, and possession of a firearm in the commission thereof, contrary to MCL 750.227b; MSA 28.424(2). On January 23, 1978, he was sentenced to prison for 7-1/2 to 20 years for the robbery charge and to a mandatory two years consecutive imprisonment on the felony-firearm charge. Two issues are raised on appeal.

First, defendant claims that the felony-firearm statute is unconstitutional on grounds of double jeopardy. This claim was rejected by the Michigan Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979). We likewise reject the contention here.

The second issue raised by defendant-appellant questions whether he, as an aider and abettor, can be convicted under the felony-firearm statute where there is no indication that defendant personally carried, or had in his possession, a firearm at the time of the robbery. There is a difference of opinion in this Court on this issue. Compare People v Walter Johnson, 85 Mich. App. 654, 658; 272 N.W.2d 605 (1978), and People v Powell, 90 Mich. App. 273, 274-5; 282 N.W.2d 803 (1979), with People v Walter Johnson, supra at 672-673 (KAUFMAN, J., dissenting), People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979), People v Powell, supra at 275-276 (CYNAR, J., dissenting). Careful reading of People v Tavolacci, supra, and the relevant portions of Judge KAUFMAN'S dissenting opinion in People v Walter Johnson, supra, persuades us that MCL 750.227b; MSA 28.424(2) does not require proof of personal possession of the firearm when used in the commission of a felony. See United States v James, 528 F.2d 999, 1015 (CA 5, 1976), reh den 532 F.2d 1054 (1976), cf., United States v Brant, 448 F. Supp. 781 (WD Pa, 1978), United States v Giannoni, 472 F.2d 136 (CA 9, 1973), cert den, 411 U.S. 935; 93 S Ct 1911; 36 L Ed 2d 396 (1973).

However, in order that an accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of or to use the firearm during the course of a felony. People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330; 47 ALR3d 1236 (1971), and see, People v Pearce, 20 Mich. App. 289; 174 N.W.2d 19 (1969), People v Little, 58 Mich. App. 12; 226 N.W.2d 735 (1975).

Therefore, the question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. GCR 1963, 785.7(3)(a). Although it is clear that the accused, as an aider and abettor, need not be present at the scene of the crime, it is necessary that a sufficient factual basis be provided to show that he procured, counseled, aided or abetted in the commission of the possessory offense. People v Tavolacci, supra, at 475. Thus, while we affirm defendant's conviction on the armed robbery charge, People v Sharp, 57 Mich. App. 624; 226 N.W.2d 590 (1975), People v Spry, 74 Mich. App. 584, 595; 254 N.W.2d 782 (1977), it is necessary to examine the record of defendant's guilty plea in order to determine if there was a sufficient factual basis provided for defendant's conviction as an aider and abettor to "felony-firearm". We find that there is.

Defendant admitted driving the stolen automobile used to transport him and his cohorts to a house where they all broke and entered, taking four guns, including a shotgun. Defendant and his companions subsequently used these guns to rob three business establishments. However, during the particular robbery for which defendant pled guilty, he did not enter the food store, but instead waited outside in the car. Despite his lack of personal, physical possession of the shotgun used to rob this establishment, defendant admits that he knew that his companions went into the store with a shotgun in order to rob someone. Moreover, the proceeds of the robbery were equally divided among defendant and his companions. This evidence is sufficient to establish that defendant knowingly acted and encouraged his companions to obtain possession of a firearm and that he assisted and encouraged them to use the firearm during the commission of a felony.

Affirmed.

T.M. BURNS, J. (dissenting).

The operable language of the felony-firearm statute states that a person "who carries or has in his possession" a firearm at the time that he commits or attempts to commit a felony is guilty of a felony. MCL 750.227b(1); MSA 28.424(2)(1). Statutes that define criminal acts must be strictly construed. People v Hall, 391 Mich. 175, 189; 215 N.W.2d 166 (1974). Therefore, I concur in the opinions of this Court in People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), and People v Walter Johnson, 85 Mich. App. 654; 272 N.W.2d 605 (1978), which held that the felony-firearm statute requires that a defendant personally carry or have in his possession a firearm in order to be found guilty thereunder. I would hold that defendant cannot be convicted of violating the felony-firearm statute as an aider and abettor.

PEOPLE v. ATKINS