People v. Jackson

94 Mich. App. 24 (1979) 287 N.W.2d 357

PEOPLE
v.
JACKSON
PEOPLE
v.
DIALS

Docket Nos. 78-946, 78-4475.

Michigan Court of Appeals.

Decided November 21, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, Paul C. Louisell, Assistant Prosecuting Attorney, for the people in Jackson, and Timothy A. Baughman, Assistant Prosecuting Attorney, in Dials.

Mosley & Monroe, P.C., for defendant Jackson.

Balfour Peisner, for defendant Dials.

Before: CYNAR, P.J., and D.F. WALSH and L.B. BEBEAU,^[*] JJ.

PER CURIAM.

Defendant, Anthony Steven Jackson, was convicted on his pleas of guilty of the offenses of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant, Joseph Dials, was also convicted on his pleas of guilty of the same offenses.

On appeal both defendants contest the constitutionality of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). We have reviewed both records and have carefully considered the arguments of counsel. We find no reversible error in the convictions of either defendant.

The felony-firearm statute does not violate Michigan Const 1963, art 4, § 25, by revising, altering, or amending existing laws without reenacting and publishing them as required. Wayne County Prosecutor v Recorder's Court Judge, 92 Mich. App. 433; 285 NW2d 318 (1979), People v Walter Johnson, 85 Mich. App. 654; 272 NW2d 605 (1978), People v Tavolacci, 88 Mich. App. 470; 276 NW2d 919 (1979).

Conviction of both felony-firearm and second-degree murder does not violate the constitutional prohibition against double jeopardy. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979).

Finally, the felony-firearm statute is not unconstitutionally vague. As the Supreme Court stated in People v Howell, 396 Mich. 16, 20; 238 NW2d 148 (1976):

"A statute may be challenged for vagueness on three grounds:

"1. It does not provide fair notice of the conduct proscribed.

"2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.

"3. Its coverage is overbroad and impinges on First Amendment freedoms."

The felony-firearm statute proscribes carrying or possessing a firearm while committing or attempting to commit a felony. The crimes defendants were charged with were felonies. Both were in possession of a firearm at the time of the commission of the offenses. Under the facts of these cases the statute certainly provides "fair notice of the conduct proscribed" and it does not confer on the trier of fact "unstructured and unlimited discretion to determine whether an offense has been committed".

Moreover, defendant Jackson's contention that the statute is overbroad must also fail. Neither defendant argues that the statute impinges on First Amendment freedoms. When the statute challenged does not involve First Amendment freedoms, the challenge of overbreadth must be evaluated in the light of the facts of the case in which the issue is raised. People v Howell, supra, 21. Since neither defendant makes any claim that the conduct of which they were accused is constitutionally protected, neither has any standing to raise an overbreadth issue. Broadrick v Oklahoma, 413 U.S. 601; 93 S. Ct. 2908; 37 L. Ed. 2d 830 (1973).

Defendant Dials states the final issue to be as follows:

"Where a person is assaulted, and in the course of the assault, shoots the attacker, after which he panics and kills a witness, is he chargeable with murder in the second-degree?"

At the plea-taking proceeding defendant Dials admitted that when he and Jackson were in the alley, they discovered that the deceased's wife was in a car down the street and that she had seen defendant Dials and knew who he was. Jackson then said that the deceased's wife would have to go too. Dials told the court: "He handed me the pistol and I walked down to the car and fired to the car twice, walked back in the alley and handed Jackson the pistol".

Defendant Dials' admission that he killed a witness because she had seen him and knew who he was certainly supports a charge of second-degree murder. Guilty Plea Cases, 395 Mich. 96, 130; 235 NW2d 132 (1975).

Defendants' convictions are affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.