People v. Butler

People v Butler 1982] BUTLER

PEOPLE v (Calendar 10). 8, Argued Docket No. 62895. October No. De 27,May cided 1982. by jury Wayne Belton Butler was convicted in the Circuit Court, Gilmore, J., carrying Horace W. in a motor Appeals, Bashara, vehicle. The Court of V. J. Brennan and JJ. (N. Kaufman, P.J., dissenting), unpublished affirmed in an 77-1429). (Docket per opinion ap- curiam No. The defendant peals, arguing jury that the trial court’s failure to instruct the "carrying” requiring on the element of was error reversal. Levin, opinion by joined by Kavanagh, In an Justice Justices Fitzgerald, Ryan, Moody, Supreme Court held: jury "carrying” weapon Failure to instruct the is an charged requiring essential element of the crime is error rever- sal for a new trial. language proscribes carrying 1. The of the statute which weapon unequivocal require- of a in a motor vehicle is that, attach, guilt person ment in order for to must weapon. Knowledge weapon that there is a in the vehicle and presence automatically in the vehicle are insufficient to lead to weapon. a conclusion that the defendant is 2. An instruction a trial court which omits as an discharge essential element of the offense is insufficient to duty applicable court’s to inform the of the law. Such an permit instruction would the defendant to be convicted on the knowledge proximity weapon basis of his of and to the even though physical knowledge he had no contact with it and the acquired only shortly Reading before his arrest. this essen- permit tial prosecution element out of the statute would obligation prove circumvent its all the elements of the crime beyond a reasonable doubt. A entirety should be viewed in its _3. [1, ^{[3] [4] [5] [6]} 79 Am Jur 5 Am Jur 79 Am Jur 75 Am Jur 75 Am Jur 2d, Appeal 2d, Weapons 2d, Weapons 2d, References 2d, Trial Trial 713. §§ and Error 894. § 712-714, and Firearms and Firearms 15.§ for Points in Headnotes 716. § §§ 9, 12. 413 Mich 377 prejudicial, error is but the com- determine whether asserted remedy persons judge cannot a defec- other than the ments charge. The curative effect of a correct statement tive greatly closing argument diminished law counsel in judge referee. As is common of the as a detached stature judge practice, that on the in this case insisted his instructions definitive, prosecution’s position that the law were and the closing argument "carrying” to were curative is references in jury disregarded predicated assumption that on the admonition. adequately discharge obligation 4. The did not to jury regarding applicable quotation law. The of instruct the may theory place the statute all the elements of the crime jury, may ignored in but such a recitation be favor before colloquial expla- judge’s subsequent and more of the oftentimes "carrying” was mentioned several nation. In this case word charge, legal significance its was never ex- times in the but Moreover, necessary plained. explanation of the elements of jury legal the offense was calculated to divert the from the significance "carrying”. juror A of reasonable could have con- predicated proof cluded that a conviction need not be of a finding "carrying”, merely and that the word was a short- upon hand reference to other elements instructed and not itself separate element. In the instant case there was evidence which, believed, negated carrying if would have the element of may acquittal. have led to an separate Justice Levin also wrote a concurrence answer dissenting opinion. The issue whether there was sufficient defendant, by evidence to convict the as raised Justice Wil- liams, properly is not before the Court. The issue was not application appeal, raised the defendant in his for leave to when, during argument, oral was raised the issue Court, questioning by appellate the defendant’s counsel pains emphasize appeal took was not based on evidence, insufficiency infirmity jury of the but on the of the might helpful, instruction. While it discussion of the issue be precedential, being merely concept would not be dictum. The paragraphs elements of the offense is not raised in the initial raised, concept subsequently the instruction. no When the carrying. mention is made of did the the element of Nowhere identify carrying trial court of the describe as element crime, clearly principal let alone indicate it was a element offense, gravamen jury way or the of the in such a that the importance necessity. could not fail to understand its substance, style. omission concerns Reversed and remanded. v Butler Coleman, Williams, joined by Justice Chief Justice dissented. jury properly

There are in the two issues case: whether the guilty, judge gave rendered a verdict and whether the trial adequate covering jury of the instructions the elements offense. person knowingly operates A who a motor vehicle in which a may pistol carrying pistol is carried be inferred to be proscribed by weapons prosecution concealed statute. In a weapon, carrying jury for the a concealed instructions which language reading statute, include a of the of the clearly gravamen indicating carrying that the of the crime is defendant, operated whole, in a vehicle taken as a clearly crime, informed the of all the elements of the notwithstanding "carry” every the absence of the word paragraph of the instructions. 1. The mere in vehicle act of is insufficient proscription statute; to come within the the defendant pistol. knowingly must Because defendant owned driving, the vehicle he was and the was carried in vehicle, logical participated that he conclude pistol. Sufficient evidence was introduced to allow knowingly that the conclude defendant carried the pistol. Legislature, by employing contrasting wording 2. The the person” the on or clause "concealed about his with the succeed- ing otherwise, oper- clause "whether concealed or in a vehicle occupied by ated or him” intended a much looser nexus be- pistol tween a a defendant "in a vehicle” than a contrast, person”. concealed "on or about his In the facts in the nexus, pistol having instant case a establish substantial the been found on the floorboard of the car the between defendant’s driving carrying pistol, feet. In a vehicle a a defendant "car- proscription ries” the within of the statute. jury reading charge 3. The instructions included a against applicable statutory language. the defendant with the carrying emphasized particularly element the crime was way jury in such a that the failed to could not have understand importance necessity element. Taken as a whole, sufficiently jury instructions informed of all the elements of the crime.

Opinion op the Court Weapons Appeal — — — 1. Criminal Law Concealed Instructions Jury. to jury prosecution carrying weapon An instruction to in a for a [May- carrying which omits to instruct in an automobile requiring weapon of the offense is error is an essential element 28.424). (MCL750.227;MSA reversal Weapons Jury. — — to 2. Criminal Law Concealed Instructions weapon prosecution carrying jury a in a for An instruction to the elements of the offense are that there in an automobile that automobile, weapon that the defendant owned or a was automobile, operated defendant knew that the that the jury weapon is insufficient to inform the was in the automobile crime because omits essential of the elements of the (MCL carrying weapon element that defendant 28.424). 750.227;MSA Appeal. Jury — — 3. Criminal Law Instructions be A court’s to the should reviewed its trial requiring entirety error reversal oc- to determine whether curred, should not include consideration of but the review remedy than the trial an other- comments others charge. wise defective Dissenting Opinion Williams, J. Weapons Carrying — — —

4. Criminal Law Intent. Concealed defendant, carrying weapon in a A in order to be convicted vehicle, knowingly to have carried the motor must be shown vehicle; weapon weapon in the act of mere (MCL requisite criminal intent is insufficient without 28.424). 750.227;MSA Weapons Carrying. — — 5. Criminal Law Concealed operating who is A defendant owner of a motor vehicle may proscribed weapon police is discovered vehicle when a weapon purpose "carrying" be for the inferred be (MCL 750.227; applying weapons the concealed statute MSA 28.424). Weapons Jury. — — 6. Criminal Law Concealed Instructions prosecution Instructions to in a reading charged motor vehicle which included a of the crime language applicable statutory initially and the and which em- phasized weapon element of as an essential crime, whole, taken as a were sufficient to inform the when notwithstanding jury of failure of the the elements of the crime subsequent "carry” trial court to include the word in its elabo- 28.424). (MCL 750.227; ration the elements MSA People v Butler Opinion of the Court Kelley, Attorney General, Frank J. A. Robert Derengoski, General, Cahalan, Solicitor L. William Prosecuting Attorney, Reilly Wilson, Edward Prin- cipal Attorney, Appeals, Timothy Scallen, C. Prosecuting Attorney, people. Assistant for the Appellate Fawcett, Kim Robert Assistant State Defender, for the defendant. carry- J. Belton Butler was convicted of Levin,

ing weapon.1 people’s a concealed evidence riding tended to show that he was in an automo- judge, bile in which a revolver was found. The in instructing jury, pertinent language stated the making "carry of the statute it an offense to a pistol otherwise, whether concealed or in a vehicle operated occupied by” or the defendant. He said that the elements of the offense were that there automobile, was a that Butler owned operated and, automobile, or knew he weapon the automobile. He did weapon "carrying” not, however, instruct was an element of offense. requires

We hold that the failure to so instruct new trial and reverse and remand therefor.

I companion, Belton Butler Victoria Mc- person dirk, carry dagger, stiletto, "A who shall or other dangerous weapon except hunting adapted knives and carried as such, person, concealed on or about his or or whether concealed any him, operated occupied by except otherwise in vehicle or in his dwelling place possessed him; by house or of business or on land other person carry and a who shall on his concealed or about person, or, otherwise, operated or concealed in a vehicle or him, occupied by except dwelling place or house of business or possessed him, other provided land without a license to licensed, place law or if in a manner any upon license, guilty inconsistent with a restrictions such shall be felony, punishable by imprisonment prison not more state years, 750.227; $2,500.” than 5 28.424. fine of not more than MCL MSA [May- op the Court police officers

Loud, after two were arrested in driving as he was automobile stopped Butler’s Park, had earlier Michigan. police Highland Butler’s automobile to an linking report received a previous committed the rape robbery armed under surveil- the automobile placed and had day police after An officer testified lance. Butler and his com- the automobile stopped to leave the auto- complied with an order panion on the auto- mobile, resting a revolver he noticed from the driv- floorboard a short distance mobile’s companion his were arrested seat. Butler and er’s weapon. concealed charged with on cross-examination acknowledged The officer in possession had not seen Butler actual that he gap bridged by factual the revolver. This to surveil- report made the which led person who testified person of Butler’s automobile. That lance arrest, him Butler’s he saw day that on the before one found gun a "snub-nose” identical with also introduced prosecution in the automobile. in which he admitted a statement made Butler in that he knew the revolver was the automobile McLoud, companion, but asserted that his Victoria into the automobile and that brought gun had gun”. had the "she was the one who trial, Butler, At called only witness defense, pres- knowledge gun’s denied of the previous possession ence the automobile or any gun. The trial instructed the jury: "Now, charged under a defendant this case is Michigan says statute or a law of the State of insofar as pertinent person shall to this case the who People v Butler Opinion op the Court carry concealed or otherwise him, operated occupied by except vehicle dwelling place pos- land house business or other sessed provided by him without a license law, guilty felony. shall be of a words, "In other the elements of the offense which are, one, very simple, are number there was a pistol in oper- the motor vehicle which was owned or defendant, second, ated the and that the defendant pistol a in knew there was the motor vehicle. "It does not have to in be concealed the vehicle. The pistol

elements are the existence of the owned in the vehicle defendant, operated by knowledge or and the of pistol the defendant other that the was in vehicle. In the words, proved, it must be each of these elements proved beyond must be a reasonable doubt that vehicle, pistol was in the that the vehicle was owned or occupied defendant, operated third, or by the and the that vehicle. Those are the the defendant knew was in that of elements the offense. So it is complicated not a any way, you offense in can see.” (Emphasis supplied.) The Appeals Court in unpublished of affirmed an opinion. We reverse because was not instructed on an essential element of offense.

II parties The disagree concerning description of weapon crime of a concealed would satisfy obligation a trial court’s jury. The people contend that are elements there was a weapon operated in vehicle or occupied defendant and that he knew or presence. Butler, was aware of its who does not contest the legal against the evidence sufficiency him, contends such an omits an instruction element of the offense that a defendant’s knowl- edge that there an automobile 413 Mich op the Court presence are not automobile mere people

enough. must Butler contends prove, instruct, the trial court must and therefore the defendant unless that no offense is committed pistol. agree. "carried” We provides "person that a who shall The statute * * * concealed other- operated occupied by him” wise, in a vehicle guilty felony.2 of a shall be unequivocal. language the statute is unless the defendant offense is committed instrument. The normal forbidden "carries” meaning requires ordinary of this some- and thing word potentially fortuitous inter- more than the knowledge. presence Given the section wording any of that statute the absence Legislature not intend evidence did "car- independent rying” of- to be element reading justified fense, a court not be this would out of the statute.3 word "guilt is that A central tenet of the criminal law personal”.4 the accused is An instruction that can guilty only if the that he be found finds was act of sufficiency 483; issue, People aff'd one is mere (1926): 735 present case. 3 4 Id. ^[2] See (1975), 293 NW 727 instructions on 391 Mich knowledge riding by "Felonious carrying People people 321; of evidence others v 235 NW 170 612; Henderson, v cite invitation has are (1940); Germaine, possession with instructional omissions 218 NW2d the element Michigan necessary People owner and driver of an automobile required. (1931). 45 Mich 234 Mich 2 liquor decisions intoxicating liquor v (1974). Little, convict, “carrying” Some have dealt App 511; in None the car.” 623, 627; 58 Mich People support provide 206 unrelated to those at Cf. participation App involves v NW2d Moceri, their contention People v guidance with the 12; NW 771 226 more 294 in 705, Burrel, (1973), NW2d which in Mich legal than 706 People v Butler Opinion of the Court weapon comports with this traditional conception of criminal responsibility. Under given, instruction specific omitted reference element, to carrying as an an accused could be convicted if he knew that weapon there was a direct him proximity to even though he may have had physical no contact with the weapon and no knowledge presence of its in the vehicle until shortly before his arrest.

Reading "carrying” out of the statute would risk the conviction of innocents whose real only crime proverbial was the one of being wrong place wrong at law, time. The criminal however, misdeeds, punishes not misjudgment. An accused must author guilt. his own It cannot be ghost- written by others. The statutory prerequisite a defendant "carry” weapon guilt before at- taches implements an important principle of the criminal law that should not be yielded except upon truly compelling evidence of a legislative purpose to punish without regard to complicity.5 adopt

We the analysis of Justice Fitzgerald, writing v the Court of Appeals, Smith, I Jerome App 717, 722; Mich 176 NW2d (1970): "The weapons concealed punish statute pres- does not ence thrust cense’. In punish a car where the was found. The statute’s 'carrying weapons is concealed without li- words, point other of the statute is to Thus, 'carrying’. merely convict one who is present in a car necessarily upon rests two inferences: (a) an inference that he present; knows a (b) an inference that he pistol. There- fore, by showing even that someone knew a 5 States, Cf. Morissette v United 246; 240; 342 US 72 S L Ct 96 Ed (1952). 288 Mich 377 413

386 Opinion op the Court automatically to a conclusion not lead present should pistol.” the 'carrying’ he was

Ill that a of the "totality contend review people The that, judge if a indicates even of circumstances” ele- separately "carrying” instruct must offense, the elements of offense ment of the jury. communicated These effectively were (1) the reading of judge’s include: circumstances provision the pertinent the information both (2) offense, defining judge’s of the statute theory that the defendant of the defense statement he did and that "was not (3) vehicle”, presence know of its argument closing counsel’s references element. "carrying” circumstances, these neither

We conclude that an effective conjunction, supply nor in separately times for a which three stated antidote knowledge the defendant’s in the vehicle suffices. re- obligation instruct judge’s unless he in-

garding discharged law is not elements regarding structs correctly need Though might offense.6 say some self-evident, correct instruction empha- rule of deserve policies supporting this law sis. obligation all people prove have an 6 706, (1967); 714; People Liggett, v 148 NW2d See 378 Mich (1949); MacPherson, 438;

People Kanar, v v 323 Mich NW2d (1946). 242, 254; 22 NW2d People 387 Butler v Opinion of the Court elements of a crime a beyond reasonable doubt.7 If an judge may concerning omit instruction element, necessary people permitted are to persuasion. circumvent burden A this factual determination solely entrusted to the be jury may from effectively taken it and decided to adversely defendant, though even the people have failed its evidentiary meet burden. A judge’s incorrect recitation of the law under- the purpose jury mines instructions. Rather than conforming factfinding law, jury’s to the poses incorrect instruction the unacceptable risk of convicting defendant a crime unknown Michigan. not, therefore, to the laws of It is sur- prising this Court will scrutinize the don- and, tested instruction closely upon finding that a judge failed to inform a the true nature of charged, offense will not countenance claims of Reed, "harmless error” but will reverse. People v (1975). 342, 351; 393 224 Mich 867 NW2d This Court has said frequently charge a jury should be viewed in its entirety to deter- mine whether asserted error it But prejudicial.8 has not adhered to a "totality of circumstances” doctrine which would permit comments those other than the judge remedy a defective charge. The argued-for approach places too much faith in what is said as opposed to the credibility of the person says who it. When correctly counsel states the in closing argument law bench follows with an charge, erroneous it is more accu- rate say the former cures latter or that the jury faces a conflict? And if a jury must choose, can seriously be maintained that a

7 Rios, (1971). v 172; See 386 Mich 191 NW2d 297 People Schwitzke, (1946). v 182, 184; See NW2d 413 Mich 377 op the Court advocate rather its in an confidence repose

will referee? than a detached remarks effect of counsel’s curative The probable context is further diminished practice, insisted As is common at issue. were definitive. instructions law that his assump- on an position predicated people’s admoni- disobeyed judge’s the jury tion that remarks ade- tion. of whether counsel’s Regardless offense, unwilling to we are explain the quately for actually given the instructions look beyond effect. might ameliorate their circumstances People Noyes, v The people urge 207, (1950), the 210; 43 331 establishes NW2d if an of a crime not error omission of element containing statute reference relevant Though this was is read to the jury. element Noyes, only justification the result indeed in sentences which conclusory there offered two are rule for dispose provide of the case hand but no at not subsequently Court has future cases. This quotation of Noyes holding that relied on remedy an invariably relevant statute will Rather more misleading charge. otherwise if searching inquiry has been conducted to assess taken is "fair suffi- charge in its entirety v People Kruper, 340 comprehensive”, ciently (1954). 114, 122-123; Mich 64 NW2d 629 charge The fairness of a cannot be assessed jury in a not purely mechanical manner.9 Juries are 9 Michigan, reading accepted, jurisdictions It other than adequate the information or statute does not alone make offense, adequacy of on the of an and that instruction elements depends v whole. See United States instruction as a (CA Hernandez, Harris, 182, 4, 1965); F2d States United v (CA 1961) 2, (failure go general language beyond of F2d 86 v Butler Opinion of the Court steeped They parse methodically law. do not meaning. Though statutes quotation to discern their may theory place of the statute all jury, the elements of a before the such a judge’s crime may ignored recitation subsequent be favor colloquial expla-

and oftentimes more nation of the offense. judge

We are unable to conclude that the effec- tively "carrying” communicated the element jury. "carrying” While word men- judge’s charge, legal tioned several times in the its significance explained jury. was never to the More- judge’s explanation necessary over, the ele- ments of the offense was calculated to divert the attending significance legal from to the "carrying”. repeated Three times the necessary elements of the offense and on each people’s obliga- occasion made no mention of the prove tion to or of the need for the to find the "carrying” weapon. juror A reasonable could that a have concluded conviction need be predicated upon proof finding "carrying”, or a merely and that the word was a shorthand refer- upon ence to the other elements instructed separate not itself a element.10 We conclude that adequately discharge obliga- did not regarding applicable tion to instruct law of the case._ explain meaning "possession” statute and define or error); People Henderson, of was reversible 371; Rptr App v Cal 25 3d 101 Cal 129

(1972); (failure (1970) 57; Kimbrough, Super State v 109 NJ 262 232 A2d regarding passenger to instruct and distinction between respect meaning possession driver with of of stolen article is error); People Zurita, 871; reversible (1980). v 76 AD2d 428 495 NYS2d 10 expression general For an of that can doubt instruction ever misleading specific cure a one where there is no rhetorical inconsis two, tency Montana, 510, 518, between the see Sandstrom v 442 US fn (1979). 7; 2450; 99 S Ct 61 L Ed 2d 39 377

390 op the Court proper does not stem on a insistence Our nicety. procedural overdeveloped sense of from which, if evidence there was case In the instant negated of "car- the element believed, have would acquittal. may rying” led to an have IV people Though must that decided we have pistol and prove carried the defendant that separately instructed must be that offense, contours the exact of the element necessarily unsettled, requirement left remain this exacting discipline cases of future to await question.11 present directly which trial. for a new remanded Reversed and 11 means to jurisdictions with what it have dealt Other See, carrying generally, weapon Anno: Offense vehicle. in a motor place or weapon manner of as affected concealed concealment, 492. 43 ALR2d “carrying” "posses- concepts of that the law indicates The case (RI, Benevides, 425 A2d 77 See State v much in common. sion” have weapon 1981), when he defendant carries states that a over it. control or dominion of intentional exercises some element Most need not amount to jurisdictions this control have held encompasses possession” possession” "constructive but that it "actual States, 58 v United instrument as well. See Brown of the forbidden US (1929). 311; App 474 DC 30 F2d regarding evidence is what circumstantial and fast rules Hard weapon in a motor emphasized a conviction of sufficient to sustain vehicle have not evolved. the however, have, The decisions following relevancy or in combination: factors either alone (1) defendant, person accessibility proximity weapon of the the to the or (2) weapon was in defendant’s awareness (3) vehicle, possession him to of items that connect motor the tion of the drove defendant’s (4) opera- ammunition, ownership weapon, or such as defendant’s (5) vehicle, during length time which defendant Miller, 411; occupied 395 P2d v 238 Or the vehicle. See State 631; Whitman, Super (1964); 186 A2d 199 Pa Commonwealth v (1958); 33; Davis, (1963); People App 2d 320 P2d v 157 Cal (DC 1969); States, App, Common- v United 252 A2d Waterstaat (1981). Collins, 624; App 417 NE2d 994 v 81 Mass wealth understood, foregoing by reference to the to be We do not wish regard relevancy factors, importance. expressing any to their view with People v Butlee by Opinion Levin, J. Fitzgerald, Kavanagh, Ryan, and Blair JJ., Moody, Jr., J. Levin, concurred with (concurring). dissenting opinion Levin, J. The colleague my states that there are two issues in Firstly, this case. whether there was sufficient secondly, jury convict; evidence whether the adequately instructions covered the elements of opinion the offense. The concludes that evi- the. supports finding dence that the statute was judge’s and that violated instructions were not reversibly erroneous. only is, however,

There one issue. Defendant’s appellate expressly appellate counsel eschewed sufficiency consideration of of the evidence. were, indeed, The instructions erroneous. The de- consequence; fect is not a matter of little there is "reversible error”. "adequately”

The was informed that "carrying” was element of the offense in- any structions which thrice excluded reference to that element offense.

A only question application stated for appeal, granting leave to in this Court’s order appeal appeal leave to and in Butler’s brief on the trial court committed instructional error.1 application appeal question leave stated the as follows: reversibly "Whether the trial erred when it failed to instruct jury, requested counsel, as defense on the essential element of 'carrying’ charged weapon where the offense a concealed in a request motor vehicle and he when refused defense counsel’s appellee’s defense, theory presence, instruct on mere where the support theory?” evidence adduced at trial would granting appeal question This Court’s order leave to stated the follows: parties among "The are directed to include issues be briefed 413 Mich Levin, sufficiency argument, During of the oral questioning. by Butler’s raised bench evidence was questions, response appellate counsel, to the in his contesting sufficiency not

said: "I’m evidence here” a then my opinion inbe "[t]hat and would credibility jury question”, on if "it turns jury going an to to turn on accurate have it’s (Emphasis supplied.)_ instruction”.2 failing to reversible error trial court committed whether necessary prove jury to a violation as to all the elements instruct the of give 750.227; by failing jury to a 'mere MSA MCL 28.424 presence’ instruction.” questions appeal as follows: on stated brief Butler’s carrying a in a motor convict a defendant of "A. In to order knowledge pistol’s presence jury find of the vehicle must a both carrying? participation defendant in the act of vehicle and right judge deny appellant his constitutional "B. trial Did the failing by jury by to instruct resolve trial carrying? appellant participated in the act of partici- element of "C. failure to instruct the essential Was the pation in harmless error? the act judge’s appellant fair trial the trial refusal to "II. denied a Was request presence grant to instruct on mere where the the defense support theory?” trial evidence adduced at would pains emphasize appeal that his was Defendant’s counsel took evidentiary sufficiency infirmity of the not based on instruction: but on * * * 717; App I Mich "Mr. the Jerome Smith case [21 Fawcett: (1970)] presence in automobile NW2d 430 also states that mere an automatically where a is located does not lead to the conclusion every guilty that pistol. in the car is of involvement with the individual in that case? "Justice Williams: Who was defendant "Mr. Fawcett: Who was the defendant? In I "Justice Williams: the Jerome Smith case? "Mr. Jerome was the Fawcett: Smith defendant. driver, know, occupant? I was "Justice Williams: but he a Kirksey In- Ron "Mr. Fawcett: Back seat. Willie driver. gram passenger. awas this, That is not fours with is it? "Justice Williams: case on all Well, people "Mr. three and— Fawcett: there were "Justice Williams: The defendant was not the driver? got Correct, Kirksey In Mr. said he "Mr. Fawcett: correct. that case v Butler Levin, The dissenting opinion thus injects new issue into this case. While a discussion of evidentiary sufficiency may helpful, be would not be prece- " dential. 'Statements an opinion comments in concerning some rule of law or legal proposition necessarily involved nor essential determi- hand, are, nation however illuminat- case ing, but obiter dicta and lack the force ” Duffy, Hett v 456; adjudication.’ (1956). NW2d 284

The principle judicial self-discipline which discourages decision on issues not before the court seeks to economize the time and energy of the court and erroneous judgment. The avoid adver- sary system disciplines the judicial inquiry and serves the difficult crystallize choices with cigarettes buy Ingram out to and was never around Mr. when Smith, statement, according pretrial engaged Mr. discussion about analogize Ingram ato had then in a one, purchasing suppose arms. So I could that’s one position that Mr. Butler is in the same Mr. either your indicating or Mr. Smith unless perhaps Honor’s driver is some of control. indicia am, exactly. "Justice Williams: I Honor, your contesting sufficiency "Mr. Well not of Fawcett: I’m problem the evidence here. It’s not—we have on or don’t whether gone way they not the could have one or the had been other properly Our contention is instructed. that— Well, question you partici- "Justice Williams: isn’t that the whether pate? certainly participated The driver has of that the locomotion transporting gun. car. That car is the Honor, case, your "Mr. Fawcett: Well if then that’s 750.227 commission, requires only there’s a anyone that for in a could be car where pistol. And— passenger operating "Justice Williams: atNot all. The is not passenger in, may stepped put car. The the notice the have in after the driver came gun down, in, ten mües later a hitchhiker comes doesn’t even gun until later on. "Mr. my opinion jury question Fawcett: That would be whether, upon case, testimony based what is in the who participant, both, jury question, or neither. And if there is a it credibility turns on testimony of whatever is in if the record. And it credibility going turns on then it’s an have to turn on accurate Argument Court, Michigan Supreme instruction.” before the October 8, 1980. Butler, 62895, pp (Emphasis supplied.) v Case No. 3-4. Mich 377 Levin, J. generally find ourselves confronted. we presented in form of a issue is an When controversy, keenly a court and discrete contested that contributes both valuable resource is denied a judgment. legitimacy of its and wisdom to the suggested compelling has No reason been sufficiency reaching of appeal out to consider presented single issue evidence. does not concern sufficiency of the evidence. may be drawn inferences does concern what Nor presented varying are we factual situations. Nor justifi- question there is need with concerning formulating presumption cation for prima facie case. constitutes a what opinion dissenting expressed The view regarding sufficiency of the evidence consti- expression thereon tutes the first views jurisprudential this In this vac- Court. member uum, expression view, from other absent might Court, read some as be members of the having approval. I It is for this reason that our non-precedential, some feel constrained to make my which, own be- non-decisional observations they character, set are will be forth cause in a footnote.3 dissenting equates transportation opinion with act Butler, occupant, "carrying”. speaks carrying” He of "a car another then, gun. car, gun. is the The is of the It reasoned and the carrier driving belonged it "one must that since the car to Butler he was logically carrying pistol the he well as the was conclude that [as car] driving just car in the carrying must conclude that a man a vehicle as one carrying hay hay a a load in the vehicle”. load of was of driving hay ordinarily person carrying a of will A a car load know, necessarily wheel, a of the that is load before he takes there driving hay person in or does behind the vehicle. A automobile not, however, necessarily object, pistol, is in the know that a small a Nor, necessarily occupant, there the vehicle. if is another will driver occupant pistol carrying or the was a on about know whether his other vehicle, whether, person the he even while when entered the or v Butler Levin, it, operating occupant pistol place driver is the has removed a from a (a briefcase) jacket, purse placed of or concealment it in the interior of the vehicle. dissenting opinion intent, The states that there must be criminal "knowingly” carrying pistol and that Then, constitutes criminal intent. gun gun there that because was evidence looked like a that possession day had Butler gun operative a in had before he admitted the vehicle, conclude, then, was in the that must "[w]e knowingly in facts this case are that the defendant carried pistol operating”. agree in his vehicle which I he that such permits evidence the trier of fact to infer Butler was aware of presence gun vehicle; of the but does not follow that he "carried” it in the vehicle. dissenting opinion statutory language The examines the and states required that a much "looser nexus” is charge with the defendant where the carrying carrying "in a vehicle” than where the person”. "on or about his disagree apparent carry- I with the conclusion that element of ing knowing by merely showing is established that Butler drove the car pistol a was located it. within It must be shown that possession pistol. Butler had or control of the Suppose companion. companion a driver enters a with vehicle carrying weapon. During is companion a concealed course the drive the says, turns to the driver and "I’m a little uncomfortable.” produces pistol He then driver sees the and sets it down beside the driver. The pistol Perhaps parties’ but continues to drive. only away. reaching destination is a short distance Before the destina- stopped pistol tion the vehicle is alone the driver rather than the and the is discovered. On those facts logically trier fact could not conclude that it was the occupant pistol. who carried the apparent purpose The statute should be construed to out its deterring illegal possession of firearms. evil at which the driving occupying (possession) statute is aimed is not is a vehicle which there pistol carrying pistol but rather the of a concealed on or, person concealed, or about any one’s whether or not so vehicle. secreting contemplates The statute is aimed at the of firearms and two distinct situations: the of a "concealed on or about person” and the of a in "a vehicle”. The offender is person responsible secreting who is for the firearm person placing about his or for init a vehicle. The does not an pistol statute subject pant person liability merely being the driver or occu- possession a vehicle when else someone has the vehicle. Any interpretation other would differentiate in man- an irrational charged ner between defendants under statute. If the defendant is caught vehicle, people possession outside to presence must show estab- "carrying”. knowledgeable lish If he is within the vehicle his "carrying”. alone sufficesto establish agree requires I that the statute looser nexus the sense that proxy "in a vehicle” serves as a for concealment "on or about the person”. generally Possession of a within an automobile creates the Mich 377 by Opinion Levin, J.

B dissenting opinion states: The quoted paragraphs set of the five "The first and third language in of the statute which charge forth element, in principal fact the clearly indicates pistol in a gravamen, carrying is a vehicle of the crime quoted para- second the defendant. The operated by carrying element on particularly emphasizes graph the to a not fail way such could importance necessity carry- of the and understand the ing element.” s4of the instruc- paragraph The first and third person dangers jacket a who is concealment within the same compartment walking passenger of an automo- down the street. The easily pistol it and a contained within is bile is limited in size accessible located that instances, pistol occupants. it if the were In most is as its correspondences suggest upon person him. These or about upon possession pistol conditioning responsibility in an functionally conditioning responsibility equivalent is automobile pistol person. possessing on or a concealed about person disagree meant looser nexus is that a I would if what is driving knowing pistol merely that there a carries a in it. car is on or a vehicle” substitutes for "concealed about While "in person”, implies "carrying” is an element. The looser nexus still "Carrying” possession, nothing "carrying”. means about person weapon is or or in a car. carried on about Legislature, eliminating or need for concealment on The person treating pocket or much as a man’s about a did not eliminate the vehicle (a reach), purse gun depository readily is within woman’s where the persons necessity proving person or which being responsible gun within the vehicle is or are for the there may "carrying” properly guilty possessing found or therefore be abetting aiding possession carrying. or of such problems dissenting opinion appears The with be concerned proof prosecutor person in a one confront when more than (see problems vehicle fn 11 of where a is found. Those opinion discussing jurisdictions) do Court cases decided other giving justify reading "carrying” not the word the word out of the statute or "carrying” differing meanings in the same statute. Lastly, suggestion disagree I with that the was intended statute upon person charged operate differently depending whether the occupant. an with a vehicle is the driver or distinction, speaking statute makes no such without differentiation "operator occupant”. opinion dissenting quotes paragraphs of the instructions two v Butler Levin, quoted opinion tions do dissenting not iden- element. as an tify "carrying” They state rather charged that Butler with pistol. It was not at indicated all —let alone "clearly” —that "principal element, gravamen, the in fact the is the crime carrying”. The quoted second which re- paragraph, simply charged

peats that the defendant was with "carry- ing”, not "particularly emphasize does the carry- ing element”. Neither the first nor the second paragraph any makes reference to what the are elements of the offense or, indeed, to concept the of elements. concept

The that there are elements of of- is not fense alluded to in the first and second paragraphs. The jury composed is of laymen. The notion that there are elements of an offense is probably a new to That concept jurors. concept appear does not until instructions many paragraphs later. Then for the first time judge, the quoted the fourth and fifth paragraphs, speaks of the elements of the offense. quoted opinion not in Part I of the of the Court: "Now, defendant, Butler, in this charged case the Belton is in an brought by people Michigan information alleges Chandler, carry the of the State of which day January, 1976, that on the 28th at John R and Park, Highland City of the defendant then did and there pistol, wit, caliber, revolver, a a .32 steel blue seven shot Regent, G06594, operated occupied by serial in a certain vehicle defendant, wit, Chrysler Imperial bearing a Michigan 367, location, license number TRK at the above which not dwelling place possessed by house or of business or other land said pistol contrary defendant without a license to to the statute. words, charge vehicle, "In other in a motor course, pleaded and to this is guilty. the defendant has not Of up you, gentlemen, ladies and out of these instructions to resolve

that issue.” In pages intervening the one and one-half these between two paragraphs paragraph quoted opinion and the third I of Part judge innocence, the Court burden of presumption discussed the and, proof, length, at some reasonable doubt. charged He then returned to the offense in the instant case and jury paragraphs instructed quoted as set forth the three opinion I Part of the of the Court. [May- Mich Levin, "very are that elements judge

The states (ii) (i) a motor vehicle owned simple”: pistol, (iii) defendant, knowledge operated by then was in the vehicle. times those elements two more proceeds repeat are the elements "Those concludes: complicated any offense in So it is not a offense. can way, see.” you as not discuss dissenting opinion does alone paragraphs fifth quoted

fourth and of the offense. The conclu- the elements describe opinion sion in that the instructions of all elements clearly whole informed only acknowledgment without asserted elements identified as such to the did "carrying”. include as an did or describe judge identify

Nowhere indicate”, element, what "clearly let alone as dissenting opinion correctly characterizes element”, "gravamen” of the of- "principal emphasize "the car- judge fense. Nowhere did a that charge way on the in such rying element impor- could fail to understand jury not element.” tance and of necessity instructions, "although jury The statement that been, might adequately artful as have they as crime”, informed the elements jury may appropriate judge in a where the be case which, although in language covers elements elegance, lacking is nevertheless informative. The The style here is not substance: problem but thrice total omission of the carrying (by element it) sign-off with the omitting and its exclusion ("Those of- are the of the statement elements fense”). "carrying”

The treated as shorthand judge (like entering, description robbery, breaking People v Butler Dissenting Opinion by Williams, murder) arson and offense with which the defendant charged. How could a lay be regarded as "adequately” informed if an experi- enced and knowledgeable judge either did not forgot understand to lapse the jury element, on the principal gravamen offense?

Suppose charged is with breaking defendant entering. judge instructs jury early that instructions the defendant charged with breaking and, and entering, here, proceeds the presumption innocence, discuss the burden proof, and reasonable doubt. He then purports offense; describe the elements of the he says nothing breaking further about or entering, only the charged element, offense requires, as an proof of intent commit a felony. Such an in- struction would be misleading and inaccurate even though judge had told the defen- charged dant was with breaking and entering. It apparent, upon reading the dissenting opin- ion, defining what constitutes "carrying” pre- business, sents serious and difficult but it hardly can be said that is a "simple” this "uncom- plicated” matter.

Butler’s trial counsel asked for an instruction "carrying”. problem that confronts the trial and appellate of making intelligible benches to the lay jury what is meant by be "carrying” cannot solved permitting trial ignore issue and in effect read this troublesome out word of the statute. (dissenting).

Williams, J. There are two issues this case. The first is whether a jury properly rendered a 750.227; verdict of guilty under MCL 28.424, MSA "a pistol concealed on or Mich Dissenting Opinion Williams, person, or, other- whether concealed or his about occupied by operated him”. wise, in a vehicle beyond found a reasonable must have the floor of the there doubt that from the defendant owner a short distance operating vehicle and knew the vehicle who had been who car. The second issue was in the gave adequate judge jury in- trial covering of the offense. We the elements structions hold that a violation of facts showed trial did err in statute and giving instructions. We affirm Court his Appeals court. affirmation of trial Facts

I. companion, Mc- Butler and a Victoria Belton police Loud, stopped after two officers were arrested driving he was Butler’s automobile as Highland Michigan. police Park, earlier had linking report to an received a Butler’s automobile robbery rape previous committed armed and day placed the automobile under surveil- and had police lance. An officer testified that after stopped com- the automobile Butler his panion complied to leave the auto- with order resting mobile, he revolver on the auto- noticed a mobile’s floorboard a short distance from the driv- companion er’s and Butler his seat. charged were arrested weapon. with concealed trial, In Butler that a officer testified gun him in the auto- witness told found gun [Butler] looked had” mobile "like the that he prosecution day on the before arrest. The also his by Butler introduced a statement made in which he admitted that he knew the revolver was companion, but Victo- automobile asserted People v Butler Dissenting Opinion Williams, brought gun McLoud, ria had the the into automo- gun”. bile and that "she was the one who had the only trial, Butler, At the witness called knowledge gun’s pres- defense, denied previous possession any in ence of the the automobile gun. Appeals unpublished

The Court affirmed opinion. We affirm. Carrying Operated

II. a Vehicle A fair inference from facts recited above is police stopped carrying that a car the defen- passenger companion, owner-driver, dant and a gun floor a short distance from the driver. belonged Since the car driving to defendant and he was logically it, must one conclude that he was carrying pistol just in the vehicle as one must driving carrying conclude that a man of car a load hay carrying hay load of the vehicle. pistol However, the act mere in a pro- vehicle is not sufficient to come within the scription of the statute. There must be criminal Therefore, intent. ingly the defendant have must know- carried the in the vehicle. Defendant he,had knowledge gun testified that no that prior was in the vehicle and that he had not had possession prosecution pro- However, of it. gun gun duced evidence that looked like the possession day that defendant had had in his before and that defendant had that admitted gun jury’s was in the verdict, From vehicle. prosecution. is obvious that it believed the operative conclude, then, We must that the facts Dissenting Williams, J. knowingly the defendant case are in this operat- he was in his vehicle carried ing. driving question but is no There participated in defendant car carrying pistol. further conclude must We proscription of MCL come within facts such person providing shall that a 750.227; MSA 28.424 pistol carry felony guilty shall "who of a be * * * * * * . by operated him”. in a vehicle by examina- close is reinforced This conclusion language: statutory pertinent tion of the on or pistol concealed carry a shall person who "a otherwise, or or, concealed person, about his him”. occupied by operated or a vehicle Legislature careful and with must be credited The purposeful contrasting language. word-

use of per- age his on or about "concealed of the clause succeeding con- "whether clause son” with operated occu- otherwise, in a vehicle cealed or Legisla- significant. pied by him” therefore is clearly words, by these ture, choice of contrasting or other- "concealed with "concealed” person” "in a with wise”, his and "on about clearly much indicates This contrast vehicle”. "in a defendant nexus looser between phrase "on or about than in the vehicle” person” phrase. case, However, the instant nexus, because facts establish a substantial between the floorboard was in the car on feet. defendant’s person obviously to the limited

This decision is required "operated” are We who vehicle. proscription not, to, do decide whether and we apply to a facts would under these of the statute People v Butler Dissenting Opinion Williams, person who "occupied” the vehicle other than as operator. Jury

III. Correctness Instructions The second issue in this case is the correctness of the jury instructions. The applicable instruc- tions follow: "Now, defendant, Butler, this case the Belton charged in an brought by information people Michigan alleges State of day on the 28th 1976, January, land pistol, Chandler, at John R and City High- Park, the defendant did then and there wit, caliber, a .32 revolver, blue steel seven Regent, G06594, shot ated or serial in a oper- certain vehicle occupied defendant, wit, a Chrysler

Imperial bearing Michigan license number TRK 367, location, at the above dwelling which was not a place house or of business or possessed other land said defendant without a license to carry contrary to the statute. words, "In other in a vehicle, motor and to charge this the defendant has pleaded not guilty. Of up you, course ladies and gentlemen, out of these instructions to resolve that issue. "Now, the defendant in charged this case is under a statute or a law of the State Michigan says which pertinent insofar as carry to this person case that a who shall pistol concealed or in otherwise operated vehicle occupied him, by except in his dwelling place house or pos- business or other land by sessed him without a carry license to pistol the as provided by law shall be guilty felony. of a "In words, other offense, the elements of the are very simple, are, one, number that there was a pistol in the motor vehicle which oper- was owned or defendant, ated the second, and that the defendant knew pistol there was a in the motor vehicle. 413 Mich Dissenting Williams, in the vehicle. be concealed not have to "It does vehicle pistol existence the in the are the

elements defendant, knowledge the by the and operated owned of the defendant In in the vehicle. that words, of those elements proved, each it must be other doubt that beyond a reasonable proved must be vehicle, owned or the vehicle was that pistol was in operated or third, defendant, by the and occupied pistol was in the vehicle. knew the that the defendant So it is not a of the offense. the elements Those are (Em- see.” any way, you can complicated offense added.) phasis did not instruct that objects Defendant of MCL crime on all the elements specify he failed to 750.227; 28.424 that MSA in a vehicle. This he had' to "carry” the word on the fact argument is based of the paragraphs in the last two appear does ac- argument Defendant’s charge quoted above. recognize it fails to goes, as it but curate as far and third of the The first instructions as a whole. charge forth the set quoted paragraphs five indicates clearly the statute which language element, gravamen, fact principal in a vehicle crime is carrying of the quoted The second the defendant. operated carrying emphasizes paragraph particularly charge way on the in such a element importance could not fail to understand of the element. necessity in- the instructions consequence, As a since applicable reading cluded a with Kruper, v language, statutory (1954), 114, emphasized 122-123; NW2d first, third element second when paragraphs, and because the instructions of all the jury taken as a whole informed clearly 279; 271, People Dye, v elements, People v Butler Dissenting Opinion by Williams, J. cert den 361 US (1959), 935; NW2d 80 S Ct 367; (1960), 4 L 2d 355 Ed we cannot hold that trial Appeals and Court of erred.

Conclusion We hold that the facts that the defendant drove car in which a was carried and that he knew that pistol was the car come within proscription 750.277; of MCL MSA 28.424. We further hold that the trial court did not err instructing instructions, jury. although not as artful might been, have they adequately informed the jury of the elements of the crime.

Coleman, C.J., Williams, concurred with

Case Details

Case Name: People v. Butler

Court Name: Michigan Supreme Court

Date Published: May 27, 1982

Citation: 319 N.W.2d 540

Docket Number: 62895, (Calendar No. 10)

Court Abbreviation: Mich.