PEOPLE v. PERRY

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Docket Number

Docket No. 78-1875.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people. Daniel J. Blank, for defendant.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

The People appealed from an order of the Detroit Recorder's Court dismissing two counts charging possession of a firearm during the commission of a felony under MCL 750.227b; MSA 28.424(2). The appeal was decided by the Michigan Court of Appeals on October 2, 1979 (Docket No. 78-1875) before Judges Bashara (P.J.), J.H. Gillis and V.J. Brennan. Counsel of record for the People included Frank J. Kelley, Robert A. Derengoski, William L. Cahalan, Edward R. Wilson and Andrea L. Solak; defendant was represented by Daniel J. Blank.

Legal Issues Presented

Whether the felony-firearm statute (MCL 750.227b; MSA 28.424(2)) is constitutional.
Whether a person not in actual possession of a firearm may be charged with aiding and abetting a person who possesses the firearm in violation of the felony-firearm statute.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal 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)	Cited for the proposition that the Supreme Court upheld the constitutionality of the felony-firearm statute.	The Court of Appeals relied on this decision to dispose of the first issue by recognizing that the statute has been upheld as constitutional.
People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979)	Cited as one of the decisions reflecting a division within panels of this Court on the application of aiding and abetting to the felony-firearm statute.	The Court compared conflicting panel decisions, noting Powell as part of the split and rejecting its contrary view in favor of the analysis adopted here.
People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979)	Cited as the contrasting panel decision on whether aiding and abetting applies to the felony-firearm statute; also cited for the observation that neither statute contains limiting language.	The Court acknowledged Tavolacci but concluded there is no language in either statute limiting their combined application and therefore declined Tavolacci's contrary implication.
People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971)	Cited to show that the aider and abettor statute has previously been applied to possessory crimes.	The Court relied on Doemer as authority supporting the proposition that aiding and abetting may be applied to possessory offenses, bolstering its conclusion that a nonpossessor may be charged under aiding and abetting for felony-firearm violations.

Court's Reasoning and Analysis

The court addressed the two issues in sequence. For the first issue, the court noted that the Michigan Supreme Court recently resolved it by upholding the constitutionality of the felony-firearm statute in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).

For the second issue, the court analyzed the interaction between the felony-firearm statute and the aider and abettor statute (MCL 767.39; MSA 28.979). The court observed the statutory requirement that a person "carry or have in his possession a firearm at the time he commits or attempts to commit a felony" under the felony-firearm statute. It then quoted the aider and abettor statute: "Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."

The court reasoned that there is no language in either statute that limits the application of one to the other. It further noted that the aider and abettor statute had been applied previously to possessory crimes (citing People v Doemer). Concluding from the plain text of the statutes and supporting precedent, the court held that the proper application of the aiding and abetting statute to the felony-firearm statute permits charging a person who is not in actual possession of a firearm as an aider and abettor of one who is in possession.

Based on that reasoning, the court reinstated the charges brought under MCL 750.227b; MSA 28.424(2).

Holding and Implications

Holding: The Court of Appeals reversed the Recorder's Court order dismissing the two felony-firearm counts and remanded the case for further proceedings. Reversed and remanded.

Implications: As a direct effect of the decision, the two counts charging possession of a firearm during the commission of a felony were reinstated. The opinion recognizes that the Michigan Supreme Court had upheld the constitutionality of the felony-firearm statute; beyond reinstating the charges and adopting the rule that a nonpossessor may be charged as an aider and abettor, the opinion does not discuss broader implications or purport to announce a broader rule beyond its application to the case at hand.

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PEOPLE v PERRY

PER CURIAM.

The people appeal from an order of the Detroit Recorder's Court dismissing two counts of possessing a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).

Two issues are presented on appeal: (1) whether the felony-firearm statute is constitutional, and (2) whether one not in actual possession of a firearm may aid and abet a person who violates the felony-firearm statute.

The Supreme Court has recently disposed of the first issue, upholding the constitutionality of the felony-firearm statute in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).

The second issue is one which has divided two panels of this Court. Compare People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), and People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979).

It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.

The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.

The aider and abettor statute provides that:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."

There is no langauge in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, supra. Further, the aider and abettor statute has been applied previously to possessory crimes. People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971).

We therefore reinstate the charges brought under MCL 750.227b; MSA 28.424(2).

Reversed and remanded.