People of Michigan v. Erwin Harris

Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 12, 2004
PEOPLE OF THE STATE OF MICHGIAN,
Plaintiff-Appellee,
v No. 120543
CLARENCE D. MOORE,
Defendant-Appellant.
_______________________________
PEOPLE OF THE STATE OF MICHGIAN,
Plaintiff-Appellee,
v No. 119862
ERWIN HARRIS
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
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 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.3 Applying that
standard, we hold that there was sufficient evidence in
each case to support the felony-firearm convictions, and we
affirm both defendants’ convictions.
1
MCL 750.227b.
2
MCL 767.39.
3
Id.2
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.
3
Following a jury trial, defendant Moore was convicted
of murder in the first degree,4 assault with intent to
murder,5 and felony-firearm6 on an aiding and abetting
theory.7 In an unpublished opinion, the Court of Appeals
affirmed Moore’s convictions on all counts.
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.
4
MCL 750.316.
5
MCL 750.83.
6
MCL 750.227b.
7
MCL 767.39.
4
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 fleeing and
eluding the police.11 Harris appealed his convictions for
the armed robbery of the customer and for the two counts of
felony-firearm. In an unpublished, divided decision, the
Court of Appeals upheld Harris’s convictions.
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 MCL 750.227b and whether the
decision in People v Johnson, 411 Mich 50 (1981), should be
8
MCL 750.529.
9
MCL 750.227b.
10
MCL 767.39.
11
MCL 750.479a(3).
5
overruled or modified.” People v Harris, 467 Mich 896(2002); People v Moore, 467 Mich 897 (2002).
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
DaimlerChrysler 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).
A
The felony-firearm statute, MCL 750.227b(1), states:
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
6
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.
MCL 750.227b(1)-(3).
The aiding and abetting statute, MCL 767.39, states:
Every person concerned in the commission of
an offense, whether he directly commits the act
constituting the offense or procures, counsels,
aids, or abets in its commission may hereafter be
prosecuted, indicted, tried and on conviction
shall be punished as if he had directly committed
such offense.
The purpose of the aiding and abetting statute is “to
abolish the common law distinction between accessories
before the fact and principals so that one who counsels,
aids or abets in the commission of an offense may be tried
and convicted as if he had directly committed the offense.”
People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974),
citing People v Gould, 384 Mich 71, 77; 179 NW2d 617
7
(1970). The phrase “aids or abets” is used to describe any
type of assistance given to the perpetrator of a crime by
words or deeds that are intended to encourage, support, or
incite the commission of that crime. Palmer, p 378.
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 Johnson
12Contrast People v Tavolacci, 88 Mich App 470, 475;
276 NW2d 919 (1979), rev’d People v Johnson, supra, (“[O]ne
may be convicted as an aider and abettor to the felony-
firearm offense.”), with People v Bridges, 98 Mich App 436,
439; 296 NW2d 275 (1980), rev’d 411 Mich 969 (1981), (A
person who does not actually possess a firearm may not be
convicted under the statute as an aider and abettor.),
People v Powell, 90 Mich App 273, 275; 282 NW2d 803 (1979),
(“[T]he language of the felony-firearm statute clearly
contemplates ‘personal’ possession of a firearm by the
defendant. . . .”), and People v Johnson, 85 Mich App 654,
658; 272 NW2d 605 (1978), rev’d 411 Mich 50 (1981), (“We
8
consisted of two separate cases in which each defendant was
convicted of felony-firearm on a theory of aiding and
abetting. In the first case, defendant Johnson and an
accomplice robbed a bar in Detroit. The accomplice held
the gun while Johnson took money from the cash register.
They then split the money after leaving the bar. In the
second case, defendant Tavolacci brought the victim, an
undercover narcotics officer, to a pool hall under the
pretense of making a drug deal. The defendant’s two
accomplices then took the officer to a remote field and
attempted to shoot him. The defendant stayed at the pool
hall while the attempted murder took place. Johnson
resolved the division at the Court of Appeals by concluding
that a defendant may be guilty of felony-firearm even if
the defendant did not personally possess a firearm during
the commission of a felony if the defendant is shown to
have aided and abetted another who had such possession.
The Court remanded both cases to the respective trial
courts.
In remanding, the Court added the restriction that to
obtain a conviction for aiding and abetting the crime of
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].).
9
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 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
10
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 proscribed
possession, or in retaining such possession otherwise
obtained,” both defendants’ convictions of felony-firearm
under an aiding and abetting theory would be reversed.
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
11
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 on by the
Johnson Court is not the actual test set forth in Francis
for aiding and abetting possessory crimes.
13
In deciding Doemer, the Michigan Court of Appeals
simply relied on the same language as in Francis, a
California Supreme Court case.
12
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.
14
The felony-firearm statute, MCL 750.227b(1), states
in part:
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.
15
The four enumerated exceptions are for violations
of MCL 750.223 (unlawful sale of a firearm), MCL 750.227
(carrying a concealed weapon), MCL 750.227a (unlawful
possession of a firearm by a licensee), and MCL 750.230
(alteration of identifying marks on a firearm).
13
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; and (3) the defendant
intended the commission of the crime or had knowledge that
the principal intended its commission at the time that [the
defendant] gave aid and encouragement.” People v Carines,
460 Mich 750, 768; 597 NW2d 130 (1999). The aiding and
abetting statute neither expressly nor impliedly limits the
persons or crimes encompassed by its terms. The language
of the statute applies to “every person” who commits “an
offense.” Johnson’s holding, that to convict one of
felony-firearm under an aiding and abetting theory it must
be established that the defendant assisted in either
obtaining or retaining possession of the firearm, is not
based on the language of the aiding and abetting statute.
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
14
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
16
Various panels of the Court of Appeals have applied
the narrow Johnson test in felony-firearm aiding and
abetting cases, often producing 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.
15
language of our statutes, the Johnson Court’s misreading of
Francis, and appellate cases following Johnson that are
incompatible with the statutes all command that this Court
overrule the narrow Johnson standard. For these reasons,
we overrule Johnson and hold that aiding and abetting the
commission of felony-firearm is no different from aiding
and abetting the commission of any other felony.17
III
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, MCL 767.39, the
17
As we stated in People v Petit, 466 Mich 624, 633;
648 NW2d 193 (2002):
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).
16
correct test for aiding and abetting felony-firearm in
Michigan is whether the defendant “procures, counsels,
aids, or abets in [another carrying or having possession of
a firearm during the commission or attempted commission of
a felony].”
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
18
Despite the concern expressed in Justice Taylor’s
dissent, our opinion does not make “an aider and abettor in
virtually any gun-related crime guilty of felony-firearm.”
Post at 1. As explained above, we specifically require the
prosecutor to do more than demonstrate that the defendants
aided the commission or attempted commission of the
underlying crimes. Nor are we suggesting that the fact
that the defendant incidentally benefited from the
principal’s possession of the firearm is sufficient to
convict the defendant of aiding and abetting felony-firearm
possession. Rather, to convict a defendant of felony-
firearm under an aiding and abetting theory, the prosecutor
must present evidence proving that the defendant
intentionally aided or abetted felony-firearm possession by
specific words or deeds.
17
the commission of the felony-firearm violation or had
knowledge that the principal intended its commission at the
time that the defendant gave aid and encouragement.
Carines, supra, at 768. In determining whether a defendant
assisted in the commission of the crime, the amount of
advice, aid, or encouragement is not material if it had the
effect of inducing the commission of the crime. People v
Smock, 399 Mich 282, 285; 249 NW2d 59 (1976). It must be
determined on a case-by-case basis whether the defendant
“'performed acts or gave encouragement that assisted,'”
Carines, supra at 768, quoting People v Turner, 213 Mich
App 558, 568; 540 NW2d 728 (1995), in the carrying or
possession of a firearm during the commission of a felony.
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
18
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
commission of a felony—the murder of Jacky Hamilton.
Although Moore did not “obtain or retain” the gun that
killed the victim, nor did he pull the trigger, his words
and actions incited Boylston to use the firearm that was in
his possession to do exactly that. Moore provoked Boylston
to shoot at the victims by attempting to grab the gun away
from him and by telling him to “give me the gun; I’ll do
it.”19 When Boylston first refused to shoot and turned to
walk away from the victims, Moore attacked his sense of
masculinity and threatened to dissociate himself from
19
Justice Cavanagh’s dissent argues that Moore’s
actions in attempting to take away the gun that Boylston
possessed “did not encourage his accomplice’s possession;
Moore was actually encouraging just the opposite.” Post at
5. But Moore’s words and actions, viewed in context, do
not evidence an intent to deprive Boylston of the gun, but
rather an intent to ensure that Boylston use the gun that
was in his possession.
19
Boylston if he did not shoot the two men. It is clear that
Moore’s words and deeds were intended to encourage Boylston
to use the gun against the two victims during the
commission of a felony. In so provoking and inciting a
hesitant Boylston to use the gun that he was carrying,
Moore necessarily induced Boylston to possess that gun.
Thus, applying the general aiding and abetting standard to
the facts of this case, we hold that there was sufficient
evidence in the record to establish that defendant
performed acts or gave encouragement that assisted in the
commission of the felony-firearm violation. Accordingly,
we affirm Moore’s felony-firearm conviction.
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
directions. He left the store and then promptly reentered,
followed by Mays, who was carrying a gun. Although Mays
clearly had actual possession of the firearm at all times,
Harris specifically used his confederate’s possession of
that firearm to intimidate and rob a store customer.
Harris also encouraged Mays to “pop,” or shoot, the store
clerk when the clerk locked the register and refused to
hand over any money. When the attempt to rob the store
20
proved unsuccessful, defendant drove away with his
accomplice and the firearm.
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
21
language of Johnson. Just as our new test is no longer
limited to obtaining or retaining the firearm, our jury
instructions should likewise not be limited to the language
of getting or keeping that firearm.
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 MCL 767.39,
the appropriate test for aiding and abetting felony-firearm
in Michigan is whether the defendant “procures, counsels,
aids, or abets in [the commission of a felony-firearm
offense].” Applying this standard, we hold that there was
sufficient evidence in each case to support the felony-
firearm convictions, and we affirm both defendants’
convictions.
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
22
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 120543
CLARENCE D. MOORE,
Defendant-Appellant.
________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 119862
ERWIN HARRIS,
Defendant-Appellant.
________________________________
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 MCL 750.227b(1) and 767.39.1 Therefore, I must
respectfully dissent.
I. ANALYSIS
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
1
MCL 750.227b(1) relates to the carrying or possessing
of a firearm when committing or attempting to commit a
felony, and states the following:
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
. . . .
MCL 767.39 relates to the abolition of the distinction
between an accessory and a principal, and states the
following:
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.
2
commission or attempted commission of a felony-firearm
offense.” Ante at 2. 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.
There is a difference between aiding or abetting the
use of a firearm and aiding or abetting the carrying or
possession of a firearm, yet the majority’s analysis is
devoid of this distinction. The majority admits that it
was not established at trial that defendants Harris and
Moore aided or abetted their respective accomplices in
obtaining or retaining a firearm. The majority explicitly
states, “Under the standard set forth in Johnson, each
defendant’s conviction would be reversed because neither
defendant specifically aided the principal in ‘obtaining’
or in ‘retaining’ the firearm for immediate or eventual
possession by the principal during the commission or
3
attempted commission of a felony.” Ante at 10. However,
the majority’s analysis does not describe what defendants
Harris and Moore did, other than encourage their respective
accomplice to use the firearm, to support convictions of
felony-firearm possession under an aiding or abetting
theory. The majority admits, “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.” Ante
at 18 (emphasis added). Procuring, counseling, aiding, or
abetting the use of a firearm in a predicate felony is not
the same as procuring, counseling, aiding, or abetting the
carrying or possession of a firearm.
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 20 (emphasis added).
I agree that defendant Moore’s attacks on the
accomplice’s masculinity encouraged the accomplice to use
the firearm. But the majority’s argument that Moore
encouraged possession by unsuccessfully trying to take the
4
firearm away is nonsensical. The accomplice already
possessed the firearm, and Moore tried to take it away.
Moore’s actions did not encourage his accomplice’s
possession; Moore was actually encouraging just the
opposite. Arguing that Moore’s actions, which sought to
divest his accomplice of possession of the firearm,
actually encouraged possession defies logic.
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 21
(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 21. 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
5
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 MCL 750.227b(1) applies
only to a “person who carries or has in his or her
possession a firearm when he or she commits or attempts to
commit a felony” should not be ignored.
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
6
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 (2003)
(Cavanagh, J., dissenting), citing 28 Singer, Statutes and
Statutory Construction (2000 rev), Contemporaneous
Construction, § 49.09, pp 103-112. The Legislature “is
presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that
interpretation when it [reenacts] a statute without change
. . . .” Lorillard, a Div of Loew’s Theatres, Inc v Pons,
434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978). “The
reenactment rule differs from the legislative-acquiescence
doctrine in that the former canon provides ‘prima facie
7
evidence of legislative intent’ by the adoption, without
modification, of a statutory provision that had already
received judicial interpretation.” Hawkins, supra at 488,
quoting Singer at 107. In overruling Johnson, the majority
reaches its desired result by ignoring the actions and
intent of our Legislature, as well as the plain language of
the statutes.
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 MCL 750.227b(1) and 767.39. Further, the
majority provides no sound example of how a person can aid
or abet felony-firearm possession other than assisting in
obtaining or retaining the possession of the firearm.
While the majority has liberally peppered its opinion
with the word “possession,” merely claiming that defendants
aided or abetted the possession of a firearm does not make
it so. Besides the copious use of the word “possession,”
8
the majority only supports its decision to overrule Johnson
with conclusory statements that Johnson’s test was too
“narrow.” However, the statutory language and the actions
of our Legislature belie this erroneous conclusion.
IV. CONCLUSION
Accordingly, I respectfully dissent and would reverse
the defendants’ convictions for felony-firearm possession
because the convictions violate the statutory language of
MCL 750.227b(1) and MCL 767.39.
Michael F. Cavanagh
Marilyn Kelly
9
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 120543
CLARENCE D. MOORE,
Defendant-Appellant.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
V No. 119862
ERWIN HARRIS,
Defendant-Appellant.
_______________________________
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 forced
to speculate, at peril of indictment, whether his conduct
is prohibited. Dunn v United States, 442 US 100, 112; 99 S
Ct 2190; 60 L Ed 2d 743 (1979). This is an exercise of the
rule of lenity,2 which should control the resolution of this
case and cause us to conclude that all the felony-firearm
statute criminalizes is aiding and abetting the carrying or
possessing of a firearm, nothing more.3
Clifford W. Taylor
1
MCL 750.227b(1), the statute we are interpreting,
relates to the carrying or possessing a firearm when
committing or attempting to commit a felony, and states the
following:
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. . . .
2
The propriety of the rule of lenity was recently
reaffirmed by the Supreme Court in United States v
Granderson, 511 US 39, 54; 114 S Ct 1259; 127 L Ed 2d 611(1994).
3
I recognize that MCL 750.2 provides that “The rule
that a penal statute is to be strictly construed shall not
apply to this act or any of the provisions thereof. . . .”
It is, of course, a fundamental axiom of American law,
rooted in our history as a people and requiring no
citations to authority, that the requirements of the
Constitution prevail over a statute in the event of a
conflict.
2