People v. Mitchell , 456 Mich. 693 ( 1998 )

575 N.W.2d 283 (1998) 456 Mich. 693

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Shane C. MITCHELL, Defendant-Appellee.

Docket No. 108135, Calendar No. 10.

Supreme Court of Michigan.

Argued December 10, 1997. Decided April 1, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David I. King, Assistant Prosecuting Attorney, Ann Arbor, for People.

Long & Baker, L.L.P. by Basil A. Baker, Ann Arbor, for Defendant-Appellee.

Opinion

WEAVER, Justice.

Defendant was charged with receiving or concealing stolen firearms or ammunition^[1] and possession of a firearm during the commission of a felony (felony-firearm).^[2] Defendant brought a motion to dismiss the felony-firearm charge on double jeopardy grounds. The trial court granted the motion, holding that it would violate the Double Jeopardy Clause if he were prosecuted under both statutes. Trial was stayed while the prosecutor appealed. The Court of Appeals issued an opinion affirming the trial court's ruling.^[3] We reverse and remand.

The sole question before us is whether it is a violation of the United States and Michigan Constitutions' prohibition against double jeopardy^[4] for defendant to be prosecuted for felony-firearm when the predicate felony is receiving or concealing a stolen firearm or ammunition.

There are various protections flowing from the double jeopardy guarantee of the United States and Michigan Constitutions: it precludes a second prosecution for the same offense after acquittal or conviction, and also protects against multiple punishments for the same offense. It is this last protection— protection against multiple punishments for the same offense—with which we are concerned today. This protection is designed to ensure that courts confine their sentences to the limits established by the Legislature. People v. Sturgis, 427 Mich. 392, 397 N.W.2d 783 (1986).

Where multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the Courts, not the Legislature. Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Where "a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger^[5], a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Missouri v. Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). Where the issue is one of multiple punishment rather than successive trials, the double jeopardy analysis is whether there is a clear indication of legislative intent to impose multiple punishment for the same offense. If so, there is no double jeopardy violation. People v. Robideau, 419 Mich. 458, 469, 355 N.W.2d 592 (1984). 1 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 102, p. 285.

Thus, we need only determine whether the Legislature has authorized multiple punishments. To do so, we look to the subject, language, and history of the statutes. Robideau, supra at 486, 355 N.W.2d 592.

M.C.L. § 750.535b; M.S.A. § 28.803(2)^[6] regulates both stolen firearms and stolen ammunition, and punishes those who receive, conceal, store, barter, sell, dispose of, pledge, or accept as security for a loan either of these items. M.C.L. § 750.227b; M.S.A. § 28.424(2)^[7] creates a separate felony for those who possess a firearm while committing a felony.

M.C.L. § 750.227b; M.S.A. § 28.424(2) specifically excludes violations of four felonies— § 223 (unlawful sale of a firearm), § 227 (carrying a concealed weapon), § 227a (unlawful possession of a firearm by licensee) and § 230 (alteration of identifying marks on a firearm). The Court of Appeals effectively held that this was not an exclusive list, and held that "mere possession of a weapon, without more, cannot serve as the predicate for a felony-firearm charge." 220 Mich.App. 439, 443, 559 N.W.2d 105 (1996). We disagree with this reading of the felony-firearm statute. The Court of Appeals erred in reading in an exception that was not included in the statute by the Legislature.

This Court has previously discussed the history and legislative intent of the felony-firearm legislation. In People v. Morton, 423 Mich. 650, 656, 377 N.W.2d 798 (1985), this Court said that "it [is] clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction." In People v. Sturgis, supra at 407, 397 N.W.2d 783, we noted that "[t]he language and structure of the statute thus contain no indication that the Legislature intended that a felony-firearm offense was a sentence-enhancement statute which precluded the charging and conviction of separate offenses." In Sturgis, supra at 407-408, 397 N.W.2d 783, this Court also concluded that "[t]he legislative history of the statute also reflects a commitment to reach all but the excepted felonies."

In 1990, the Legislature amended the felony-firearm statute. It added to the list of excepted felonies § 223 (unlawful sale of a firearm) and § 230 (alteration of identifying marks on a firearm). 1990 P.A. 321. We find it significant that in this amendment the Legislature did not add the felony at question here today, § 535b, receiving or concealing stolen firearms or ammunition, to the list of excepted felonies. Nor did it add any concluding catch-all phrase such as to trigger an ejusdem generis analysis. Rather, the Legislature simply listed the four exceptions without using any language such as "or other similar statute" that would give a court an open door to expand the number of exceptions. The fact that such language was not included must be given meaning. That meaning is that the list of four exceptions is exclusive. We reject the reasoning of People v. Walker, 167 Mich.App. 377, 385, 422 N.W.2d 8 (1988), that "the Legislature's intent was to preclude a possession offense from serving as the underlying felony for felony-firearm." This extrapolation from the list of exclusions in the felony-firearm statute is too broad, and reaches beyond the Legislature's explicit provisions. We overrule People v. Walker, supra, and its progeny to the extent that they are in conflict with our opinion today. We conclude that the Legislature's intent in drafting the felony-firearm statute was 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.

We reverse the decision of the Court of Appeals, reinstate the charge against defendant, and remand for further proceedings.

MALLETT, C.J., and BRICKLEY, BOYLE and TAYLOR JJ., concurred with WEAVER, J.

MARILYN J. KELLY, Justice.

I respectfully dissent.

We have been asked to determine whether a person apprehended with a stolen firearm may be charged and convicted of both receiving or concealing a stolen firearm and felony-firearm. The defendant in this case was initially charged with three crimes.^[1] He was bound over on receiving or concealing a stolen firearm^[2] and possession of a firearm during the commission of a felony.^[3] The receiving offense was used as the predicate felony for the felony-firearm charge.

In resolving the issue before us, the appropriate analysis begins with an inquiry into the intent of the Legislature. The object is to determine whether punishment under the two statutes in question for defendant's single act of possession violates the Double Jeopardy Clauses of the state and federal constitutions. People v. Robideau, 419 Mich. 458, 486, 355 N.W.2d 592 (1984).

We examine the subject, language, and history of the statutes. Id. at 486, 355 N.W.2d 592. We are mindful that the Legislature is free to determine what constitutes a criminal offense and, if it specifically intends, may authorize several penalties for a single criminal act. People v. Wakeford, 418 Mich. 95, 111, 341 N.W.2d 68 (1983).

I believe that the majority in this case has glossed over an important principle used in construing legislative intent: Where two statutes prohibit violation of a single social norm, albeit in somewhat different manners, the Legislature is normally deemed not to have intended multiple punishments. Robideau, supra at 487, 355 N.W.2d 592.

The two statutes under scrutiny in this case are M.C.L. § 750.535b; M.S.A. § 28.803(2) and M.C.L. § 750.227b; M.S.A. § 28.434(2). The former concerns stolen firearms and ammunition, and punishes those who receive, conceal, store, barter, sell, dispose of, pledge, or accept as security for a loan either one. The latter creates a separate felony for those who possess a firearm while committing a felony. The felony-firearm statute expressly excludes violation of four felonies: (1) unlawful sale of a firearm, M.C.L. § 750.223; M.S.A. § 28.420, (2) carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, (3) unlawful possession of a firearm by a licensee, M.C.L. § 750.227a; M.S.A. § 28.424(1), and (4) alteration of identifying marks on a firearm, M.C.L. § 750.230; M.S.A. § 28.427.

Both statutes prohibit violation of the same social norm: deterrence of the unlawful possession of firearms and ammunition. Therefore, it should not be readily assumed that the Legislature intended multiple punishments for one act violating both statutes.

The majority concludes that the Legislature intended the felony-firearm statute to provide an additional sentence for anyone possessing a firearm who commits a felony other than those four explicitly enumerated. Op. at 285. It cites language from People v. Sturgis^[4] for support. However, Sturgis can be distinguished from the case at hand and, in fact, bolsters defendant's position. In Sturgis, the defendant was convicted of felonious assault, possession of a firearm during the commission of a felony, and carrying a concealed weapon. This Court held:

We conclude that the history, language, and structure of the statutes indicate that felony-firearm and concealed weapon offenses are distinct offenses which may be separately punished in a single trial when the concealed weapon offense is not the predicate of the felony-firearm offense. [Id. at 410, 397 N.W.2d 783.]

The rationale in Sturgis is consistent with that in Wayne Co Prosecutor v. Recorder's Court Judge.^[5] There, it was found appropriate to convict the defendant of both second-degree murder and possession of a firearm during the commission of a felony. The Court ruled that the two crimes were separate: murder does not require the use of a firearm and felony-firearm does not require the predicate felony of murder.^[6]

The majority overrules People v. Walker, 167 Mich.App. 377, 422 N.W.2d 8 (1988). That case is distinguishable from the present case, also. In Walker, the Court of Appeals held that assault with intent to do great bodily harm less than murder was sufficient to serve as the underlying felony for the felony-firearm conviction. Thus, in Sturgis, Wayne Co Prosecutor, and Walker, the underlying felony involved an act separate from possession of a firearm during the commission of a felony.

The same rationale has been applied by the United States Supreme Court. In Ball v. United States,^[7] the defendant was convicted of receipt of a firearm by a convicted felon and possession of a firearm by a convicted felon. Predicated upon a review of the intent of Congress,^[8] the Court concluded that a defendant should not be subjected to two convictions for the same criminal act. It stated that Congress surely recognized that a felon who receives a firearm must also possess it. Id. at 862, 105 S.Ct. at 1672. Ball sets forth a constitutional baseline that this Court should not ignore. Yet, the majority makes no mention of it.

Against this backdrop of case law, it is implausible to conclude that the Michigan Legislature intended a defendant be punished twice for a single instance of possession of a single gun. We have before us a case in which the intent of the Legislature is so apparent that it overrides the literalness of the "except" clause relied on by the majority. It is noteworthy that the felonies listed in the "except" clause of the felony-firearm statute all involve possession of a firearm. It follows that the Legislature did not intend to impose duplicate punishment when the predicate felony involves the possession of a weapon, as contrasted with the use of a weapon.

Past decisions of this Court suggest that the intent of the Legislature is not that a possession-based firearm offense should become the predicate for a felony-firearm charge. Certainly, a contrary intent is not inevitable from a common-sense reading of the statute and its legislative history.

Any lingering uncertainty or ambiguity should be resolved in favor of lenity. As this Court stated in Robideau, "If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended." Id. at 488, 355 N.W.2d 592.

Therefore, I would affirm the decision of the Court of Appeals.

MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.

NOTES

[1] M.C.L. § 750.535b; M.S.A. § 28.803(2).

[2] M.C.L. § 750.227b; M.S.A. § 28.424(2).

[3] 220 Mich.App. 439, 559 N.W.2d 105 (1996).

[4] U.S. Const., Am. V provides, in pertinent part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;" Const. 1963, art. 1, § 15 provides: "No person shall be subject for the same offense to be twice put in jeopardy."

[5] The Blockburger test says that "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).

[6] M.C.L. § 750.535b(2); M.S.A. § 28.803(2)(2) states, in pertinent part:

A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both.

[7] The felony firearm statute, M.C.L. § 750.227b(1); M.S.A. § 28.424(2)(1) provides:

(1) 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 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.

[1] A charge of carrying a concealed weapon was dismissed.

[2] M.C.L. § 750.535b; M.S.A. § 28.803(2).

[3] M.C.L. § 750.227b; M.S.A. § 28.424(2).

[4] 427 Mich. 392, 397 N.W.2d 783 (1986).

[5] 406 Mich. 374, 280 N.W.2d 793 (1979).

[6] Although the Court in Wayne Co Prosecutor applied the Blockburger test, it recognized that issues challenging multiple punishment are to be decided by determining legislative intent. Wayne Co Prosecutor, supra at 389, 280 N.W.2d 793.

[7] 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).

[8] Although the Court utilized the Blockburger test to determine legislative intent, I believe that a Robideau analysis would yield the identical result. Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).