PEOPLE v MOORE; PEOPLE v HARRIS
Docket Nos. 120543, 119862
Supreme Court of Michigan
May 12, 2004
470 Mich 56
Argued October 15, 2003 (Calendar Nos. 3, 4)
Erwin Harris was convicted by a jury in the Washtenaw Circuit Court, Archie C. Brown, J., of felonies including felony-firearm on the basis of aiding and abetting his armed accomplice in an armed robbery. The Court of Appeals, HOOD, P.J., and METER, J. (WHITBECK, J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, finding sufficient evidence that Harris aided and abetted his accomplice, the gun possessor and handler, in the commission of felony-firearm and that Harris was therefore guilty of felony-firearm (Docket No. 222468).
The defendants appealed the felony-firearm convictions on the basis of the decision in People v Johnson, 411 Mich 50, 54 (1981), which required that a conviction for aiding and abetting felony-firearm required evidence of aiding or abetting in the obtaining or retaining possession of the firearm.
In an opinion by Justice WEAVER, joined by Chief Justice CORRIGAN, and Justices YOUNG and MARKMAN, the Supreme Court held:
The aiding and abetting statute,
Affirmed.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that the majority erred because there is nothing the defendants did, other than to encourage their respective accomplices to use the firearms, to support convictions of felony-firearm possession under an aiding or abetting theory. There is a difference between punishing aiding or abetting the use of a firearm and punishing aiding or abetting the carrying or possession of a firearm, which difference the majority has ignored in its analysis. Although the defendants did aid and abet the use of firearms, they did not aid or abet the carrying or possession of firearms and have not committed felony-firearm on an aiding or abetting theory.
The Legislature reenacted the felony-firearm possession statute after People v Johnson, 411 Mich 50 (1981), without addressing the error claimed to be found by this majority. By reenacting the felony-firearm possession statute after Johnson, the Legislature implicitly adopted the original judicial construction in that case.
Justice TAYLOR, dissenting, stated that he joined Justice CAVANAGH in part I of his dissent, but wrote separately to emphasize that the statute makes one an aider or abettor in felony-firearm,
CRIMINAL LAW - FELONY-FIREARM - AIDING AND ABETTING.
A conviction for attempting or committing a felony while in possession of a firearm, felony-firearm, is permissible under an aiding and abetting theory if the defendant, even though not having aided or abetted in the obtaining or retaining possession of the firearm
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief of Research, Training, and Appeals, and John C. Schlinker, Deputy Chief Assistant Prosecuting Attorney, for the people in Moore.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, for the people in Harris.
Robert L. Segar for defendant Moore.
State Appellate Defender (by Gail Rodwan) for defendant Harris.
WEAVER, J. In these two cases, defendants were convicted of felony-firearm1 under an aiding and abetting theory.2 Felony-firearm is the crime of carrying or possessing a firearm during the commission or attempted commission of a felony. The issue before the Court is whether the prosecutor must establish that a defendant assisted in obtaining or retaining possession of a firearm, the test that was set forth in People v Johnson, 411 Mich 50, 54; 303 NW2d 442 (1981), in order to convict the defendant of felony-firearm under an aiding and abetting theory. We overrule Johnson because the test that it created is narrower than the test set forth in the language of the aiding and abetting statute. We conclude that under the statute, the proper standard for establishing felony-firearm under an aid-
I. FACTS AND PROCEDURAL HISTORY
A
The charges against defendant Clarence D. Moore stem from a shooting in Flint on August 8, 1997. That night, Moore and his friend, DeJuan Boylston, argued with Jacky Hamilton and his brother, Johnny Hamilton. Shortly thereafter, Moore and Boylston approached the Hamilton brothers while they were fishing at a lake. Boylston was carrying a gun, and Moore told the two brothers that they had better start swimming out into the lake. Boylston then recognized Johnny Hamilton from basketball games in the neighborhood. This recognition prompted Boylston to retreat, telling Moore that he did not want a problem with the Hamiltons. According to Johnny Hamilton, after Boylston declined to shoot the brothers, Moore attempted to grab the gun from Boylston. During this time, Moore made derogatory statements to Boylston to encourage him to shoot the victims. He questioned Boylston‘s sense of masculinity and threatened that he would not associate with Boylston if Boylston did not shoot the Hamiltons. After walking about halfway up the hill, Boylston turned and fired, hitting Jacky, who later died from the gunshot wounds.
B
The charges against defendant Erwin Harris stem from a robbery that took place in Washtenaw County on September 28, 1998. Harris drove Eugene Mays to a gasoline station. Mays had a sawed-off shotgun in the vehicle. Harris first entered the store on the pretense of asking for directions. After leaving the store, he reentered moments later followed by Mays, who was wielding the shotgun. While Mays pointed the gun at the clerk, Harris approached a customer from behind and proceeded to remove the customer‘s wallet and other items from his pockets. The clerk refused to give Mays any money and pushed a button that locked the cash register. Although Harris repeatedly directed Mays to “pop,” or shoot, the clerk after he locked the register, the two men left the store without physically harming either the clerk or the customer.
Defendant Harris was convicted by a jury on two counts of armed robbery,8 two counts of felony-firearm9 on an aiding and abetting theory,10 and one count of
C
Both Moore and Harris sought leave to appeal in this Court. Each defendant argued that his conviction(s) for felony-firearm under an aiding and abetting theory should be reversed because he did not assist in either obtaining or retaining possession of the firearm, citing this Court‘s decision in Johnson. This Court granted leave to appeal in both cases and ordered that the cases be argued and submitted to the Court together. In each of these cases, the order granting leave to appeal limited the issues to “whether there is sufficient evidence to convict the defendant of violating
II
Resolution of these cases requires interpretation of the felony-firearm statute and the aiding and abetting statute. Statutory interpretation is a question of law that this Court reviews de novo. Robertson v Daimler-Chrysler Corp, 465 Mich 732, 739; 641 NW2d 567 (2002). If the statutory language is certain and unambiguous, that language is given its ordinary and generally accepted meaning. Piper v Pettibone Corp, 450 Mich 565; 542 NW2d 269 (1995).
The felony-firearm statute,
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony... is guilty of a felony, and shall be imprisoned for 2 years.
The felony-firearm statute applies whenever a person carries or has a firearm in his possession when committing or attempting to commit a felony. The evident purpose of the statute is to enhance the penalty for the carrying or possession of firearms during the commission of a felony and thus to deter the use of guns. Wayne Co Prosecutor v Recorder‘s Court Judge, 406 Mich 374, 391; 280 NW2d 793 (1979), overruled in part on other grounds by People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). The important rationale behind the felony-firearm statute is demonstrated in its unique and severe punishment scheme. Conviction for felony-firearm results in automatic imprisonment, which may not be suspended. The guilty person is also ineligible for probation or parole during the mandatory prison sentence. The felony-firearm prison term must be served before and consecutively to any term of imprisonment for the underlying felony. A second conviction of felony-firearm requires a flat five year sentence, while a third or subsequent conviction requires a flat ten year sentence.
The aiding and abetting 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.
Aiding and abetting means to assist the perpetrator of a crime. An aider and abettor is one who is present at the crime scene and by word or deed gives active encouragement to the perpetrator of the crime, or by his conduct makes clear that he is ready to assist the perpetrator if such assistance is needed. [21 Am Jur 2d, Criminal Law, § 206, p 273.]
Each defendant argues that his conviction(s) for felony-firearm on an aiding and abetting theory should be reversed because he did not assist in either obtaining or retaining possession of the firearm, citing this Court‘s decision in Johnson.
In Johnson, this Court resolved a division in the Court of Appeals over whether a person who does not actually possess a firearm could be convicted under the felony-firearm statute as an aider and abettor.12
In remanding, the Court added the restriction that to obtain a conviction for aiding and abetting the crime of carrying or possessing a firearm during the commission of a felony, it must be shown that the defendant assisted in obtaining or retaining the possession of the firearm:
To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one‘s possession during the commission of a felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the
defendant.“), and People v Johnson, 85 Mich App 654, 658; 272 NW2d 605 (1978), rev‘d 411 Mich 50 (1981) (“We interpret the felony-firearm statute to require that a defendant personally carry or have in his possession a firearm in order to be guilty thereunder. Being an aider or abetter in an armed robbery is not enough to subject a defendant to the enhanced sentence of the felony-firearm statute.” [Emphasis in original.]).
proscribed possession, or in retaining such possession otherwise obtained. See People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971); People v Francis, 71 Cal 2d 66; 450 P2d 591, 75 Cal Rptr 199 (1969).
In neither of the instant cases does the record show that the defendant assisted the accomplice to obtain or retain possession of the firearm which the accomplice possessed during the commission of the felony. [People v Johnson, supra, at 54 (emphasis added).]
B
Under the standard set forth in Johnson, each defendant‘s conviction would be reversed because neither defendant specifically aided the principal in “obtaining” or “retaining” the firearm for immediate or eventual possession by the principal during the commission or attempted commission of a felony.
Moore‘s accomplice was carrying the gun during the offense. There was no evidence introduced showing that Moore assisted Boylston in either obtaining or retaining possession of the gun. Similarly, Harris‘s accomplice was in possession of the weapon at all times, and there is no indication in the record that Harris assisted Mays in obtaining or retaining possession of the gun. The reasoning of the dissent in Harris clearly applies to both defendants:
There is no proof that Harris carried or loaded the firearm for Mays, that he purchased the firearm and gave it to Mays, or even that he reminded Mays to bring the firearm into the store with him. If Harris did help Mays obtain or retain the firearm before he entered the store, the record is simply silent on the matter. [Unpublished dissenting opinion, issued July 27, 2001, p 4 (Docket No. 222468).]
Thus, under Johnson‘s holding at 54 that “it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the
C
A close examination of the Court‘s decision in Johnson reveals that this holding was overly narrow because it unnecessarily restricted the scope of the class of persons who can be convicted of felony-firearm on an aiding and abetting theory. The Court relied on two drug possession cases, People v Francis and People v Doemer,13 in reasoning that to convict one of felony-firearm under an aiding and abetting theory, “it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained.” Johnson at 54.
The Johnson Court‘s holding takes the language of the Francis opinion out of context. The Francis court concluded that “[t]he record [did] not show that Francis aided or encouraged [his accomplice] in obtaining or retaining possession of marijuana.” Francis at 72. The actual test that the Francis court articulated for aiding and abetting is much broader than the test set forth in the language quoted in Johnson. The Francis court stated that “[i]n order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.” Francis at 72, quoting People v Villa, 156 Cal App 2d 128, 134; 318 P2d 828 (1957) (emphasis added). Thus, the language relied
Nothing in the language of Michigan‘s felony-firearm statute supports Johnson‘s narrow application of aiding and abetting principles to the commission of felony-firearm. In fact, the plain language of the statute suggests otherwise.14 In People v Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998), this Court noted that the list of four exceptions15 to the statute was exclusive and that the Legislature intended “to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute.” The felony-firearm statute makes no mention of a narrower standard or an exception for those who aid and abet felony-firearm; therefore, aiding and abetting felony-firearm should be no different from aiding and abetting the commission of any other offense.
Similarly, nothing in the aiding and abetting statute suggests that it should apply differently to a possessory offense than to any other crime. The general rule is that, to convict a defendant of aiding and abetting a crime, a prosecutor must establish that “(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime;
We do not disagree with Johnson‘s holding that a felony-firearm conviction is proper if a defendant aided the principal in “obtaining” or “retaining” the firearm while intending that the principal possess or carry the firearm during the commission or attempted commission of a felony, which possession or carrying by the principal occurs. But a defendant also can assist in the commission of a felony-firearm violation in other ways. All that is required to prove aiding and abetting felony-firearm is that the defendant aided and abetted another in carrying or having in his possession a firearm while that other commits or attempts to commit a felony.
Adherence to the Johnson standard has resulted in numerous cases where the intent behind the statutes—to deter the use of firearms during the commission of felonies and to punish one who assists in the commission of an offense as if he had directly committed such offense—has not only been unrealized, but has been subverted.16 The language of our statutes, the
results that are incompatible with the statutes. In People v Buck, 197 Mich App 404, 418; 496 NW2d 321 (1992), reversed in part by People v Holcomb, 444 Mich 853; 508 NW2d 502 (1993), the Court of Appeals held that there was insufficient evidence to sustain the felony-firearm conviction of one of the defendants because the prosecutor failed to show that he aided or abetted the acquisition or retention of the weapon at issue. Following the Johnson standard, the Court reversed the conviction of a defendant who had dragged a shooting victim back into reach after being shot so that one of his codefendants could shoot the victim twice more, finally killing him. In People v Eloby, 215 Mich App 472, 478; 547 NW2d 48 (1996), the defendant was convicted of kidnapping, robbery, and sexual assault. Although he aided and abetted the kidnapping, his conviction for felony-firearm was reversed because he did not actually hold the gun until after the victim was transported from the site of the kidnapping to the house where she was later assaulted.
Having overruled the narrow standard for aiding and abetting set forth in Johnson, we now apply general aiding and abetting principles to the facts of the cases before us. Under the aiding and abetting statute,
The prosecutors must do more than demonstrate that defendants aided the commission or attempted commission of the underlying crimes (here murder and robbery). Rather, the prosecutors must demonstrate that defendants specifically aided the commission of felony-firearm.18 Establishing that a defendant has aided and abetted a felony-firearm offense requires proof that a violation of the felony-firearm statute was committed by the defendant or some other person, that the defendant performed acts or gave encouragement that assisted in the commission of the felony-firearm violation, and that the defendant intended the commission of the felony-firearm violation or had knowledge that the principal intended its commission at the time
In each of the cases now before us, the prosecutor established that a violation of the felony-firearm statute was committed and that the defendant intentionally aided or abetted that violation. The defendant in each case aided or abetted felony-firearm by actively urging, inciting, encouraging, or motivating the principal to use the weapon that was in the principal‘s possession. Implicit in the use of a firearm is the possession of that firearm. Thus, when a defendant specifically encourages another possessing a gun during the commission of a felony to use that gun, he aids and abets the carrying or possessing of that gun just as surely as if he aided or abetted the principal in obtaining or retaining the gun. Moreover, the defendant in Harris encouraged and assisted the principal‘s possession of the firearm by specifically relying on that possession to intimidate his own robbery victim and by specifically ensuring that the principal would be able to successfully enter and exit the scene of the crime while carrying the firearm.
PEOPLE v MOORE
In this case, defendant Moore procured, counseled, aided, or abetted the possession of a firearm during the
PEOPLE v HARRIS
Defendant Harris drove his accomplice, Mays, to the gasoline station. Harris first entered the store and “cased” its interior on the pretense of asking for direc-
Harris‘s words and deeds, viewed in their entirety, demonstrated his intent to procure, counsel, aid, or abet the possession of a firearm during the commission of the armed robberies. He first “cased” the store, thereby ensuring that Mays could succeed in entering it while carrying a gun. He then relied on May‘s possession of the firearm to facilitate his own robbery of the customer. Finally, Harris expressly encouraged Mays to use the firearm in his possession to shoot the clerk after the clerk refused to give the men any money. Thus, Harris specifically aided and abetted the commission of felony-firearm. Accordingly, we affirm Harris‘s felony-firearm convictions.
IV
Because we have overruled Johnson‘s narrow test for aiding and abetting a felony-firearm in Michigan, we must also note that the pertinent criminal jury instructions for that crime are now invalid. The instructions for felony-firearm under an aiding and abetting theory directly, CJI2d 11.35(6), and indirectly, CJI2d 11.36(6), currently state “that the defendant intentionally helped the person who possessed the firearm get or keep it.” The new instructions should not include any of the limiting language of Johnson. Just as our new test is no
CONCLUSION
There is no foundation in the language of either the aiding and abetting statute or the felony-firearm statute to support this Court‘s narrow ruling in Johnson. To the extent that Johnson required a defendant to assist in either obtaining or retaining possession in order to be convicted of felony-firearm under an aiding and abetting theory, that decision is overruled. Following
CORRIGAN, C.J., and YOUNG and MARKMAN, JJ., concurred with WEAVER, J.
CAVANAGH, J. (dissenting). Today‘s majority claims there are more ways to aid or abet possession of a firearm during the commission of a felony than those stated in People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). Therefore, the majority sees fit to overrule Johnson. This conclusory claim, however, is not supported by a reasoned analysis grounded in the statutory language of
A fundamental flaw in the analysis offered by the majority is that it does not distinguish between a defendant‘s actions in aiding or abetting the predicate felony and aiding or abetting felony-firearm possession. The majority correctly states that “the proper standard for establishing felony-firearm under an aiding and abetting theory is whether the defendant‘s words or deeds ‘procure[d], counsel[ed], aid[ed], or abet[ted]’ another to carry or have in his possession a firearm during the commission or attempted commission of a felony-firearm offense.” Ante at 58-59. However, the majority then errs because it does not use this standard in its analysis. The majority finds there was sufficient evidence to convict defendants of felony-firearm possession because they aided or abetted in the commission of a crime. But it does not matter that the defendant procured, counseled, aided, or abetted the commission of a crime. What matters is that the defendant, procured, counseled, aided, or abetted felony-firearm possession. This analytical error permeates the opinion and results in convictions that violate the plain language, as well as the intent, of the statutes.
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years....
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.
Regarding defendant Moore, the majority states that Moore incited his accomplice to possess and use the firearm by attempting to grab the gun away from him and attacking the accomplice‘s masculinity. “It is clear that Moore‘s words and deeds were intended to encourage Boylston [the accomplice] to use the gun against the two victims during the commission of a felony.” Ante at 72 (emphasis added).
Regarding defendant Harris, the majority states, “Harris expressly encouraged Mays [the accomplice] to use the firearm in his possession to shoot the clerk after the clerk refused to give the men any money.” Ante at 73 (emphasis added). The majority also states that Harris “relied on May‘s possession of the firearm to facilitate his own robbery of the customer.” Ante at 73. As with defendant Moore, the majority adequately explains how defendant Harris encouraged the use of the firearm, yet nowhere in the opinion is it explained how either defendant aided or abetted the carrying or possession of the firearms. In both of these cases what is really being encouraged is the use of the firearm.
Contrary to the majority‘s assertion, I am not suggesting we treat a possessory offense differently from any other crime. Nor am I suggesting that we treat aiding or abetting felony-firearm possession differently from any other crime. I am merely applying basic rules of statutory construction and, once again, giving effect to the words used by the Legislature. See Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). The difference between possession and use is not a trivial one, and the fact that the Legislature chose to state that
While a defendant can aid or abet felony-firearm possession by physically assisting an accomplice in obtaining or retaining a firearm, there are also other ways to aid or abet an accomplice beyond physical assistance and Johnson does not preclude convictions for nonphysical assistance. A defendant can offer verbal encouragement to an accomplice before the accomplice has possession of the firearm or while the accomplice has possession of the firearm. But to meet the statutory standards, the verbal encouragement must relate to obtaining or retaining possession, not just the use. And while a person must indeed possess a firearm in order to use it, it does not mean that a defendant who encourages the use of a firearm that is already in the possession of an accomplice also encourages possession. Interpreting the statutory language in this manner would essentially make the felony-firearm possession statute a strict liability statute for anyone who commits or participates in a crime with an accomplice who possesses a firearm. A fair reading of the statutory language does not support the majority‘s position.
II. THE REENACTMENT RULE
The majority also ignores the fact that the Legislature reenacted the felony-firearm possession statute after the Johnson decision, yet the Legislature did not address the alleged “error” in Johnson. Under the reenactment rule, “[i]f a legislature reenacts a statute without modifying a high court‘s practical construction of that statute, that construction is implicitly adopted.” People v Hawkins, 468 Mich 488, 519; 668 NW2d 602
III. IMPROPERLY OVERRULING JOHNSON
Finally, I must address the majority‘s stated hesitancy to overrule Johnson, which was a unanimous opinion of this Court. The majority‘s zeal in overruling Johnson cannot, under any definition, be considered hesitancy. Its fervor results in an opinion that admits that the defendants cannot be convicted without overruling Johnson. The majority then offers a justification for overruling Johnson that does not comport with the statutory language used in
While the majority has liberally peppered its opinion with the word “possession,” merely claiming that de-
IV. CONCLUSION
Accordingly, I respectfully dissent and would reverse the defendants’ convictions for felony-firearm possession because the convictions violate the statutory language of
KELLY, J., concurred with CAVANAGH, J.
TAYLOR, J. (dissenting). I agree with part I of Justice CAVANAGH‘s dissent. I write separately to emphasize my concern that the majority‘s opinion makes an aider and abettor in virtually any gun-related crime guilty of felony-firearm. Yet, the plain language of the statute only makes an aider and abettor guilty of felony-firearm if his aiding and abetting is directed toward the carrying or possession of the firearm.1 That is the reading we should give the statute.
Under the Fourteenth Amendment to the United States Constitution, it is required that no individual be
Notes
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years.
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years.
It is well established that overruling precedent must be undertaken with caution. The application of stare decisis is generally “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. ” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). “However, stare decisis is not to be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions....” [462 Mich] 463.
Although under the doctrine of stare decisis we hesitate to overrule a prior decision by the Court, we may do so when we are certain that the case was wrongly decided and that “less injury will result from overruling than from following it.” McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904).