People v. Bynum

93 Mich. App. 563 (1979) 287 N.W.2d 290

PEOPLE
v.
BYNUM

Docket Nos. 78-4649, 78-4650.

Michigan Court of Appeals.

Decided November 7, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.

Rosenberg, Hartsook & Spuhler, for defendant.

Before: ALLEN, P.J., and R.B. BURNS and T.M. BURNS, JJ.

PER CURIAM.

On August 29, 1978, defendant pled guilty to breaking and entering an automobile with the intent to commit larceny over the value of $5, contrary to MCL 750.356a; MSA 28.588(1), robbery armed, contrary to MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). On September 7, 1978, he was sentenced to concurrent terms of five years imprisonment on the breaking and entering charge and the robbery charge, and to a two-year consecutive sentence on the felony-firearm charge. Four issues are raised on appeal.

First, defendant contends that the trial court erred by failing to comply with GCR 1963, 785.7, because the court failed to ascertain that the plea was made freely, voluntarily and understandingly. We disagree. The record clearly reflects that the trial judge accepted defendant's guilty plea after full compliance with GCR 1963, 785.7, as applied by our Supreme Court in Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975).

Second, defendant contends that his felony-firearm conviction must be vacated because it is based upon a statute that is unconstitutional on the ground that it improperly amends existing law by implication. Const 1963, art 4, § 25. This Court has consistently rejected such a contention, and we do so here. People v Walter Johnson, 85 Mich. App. 654, 659-660; 272 NW2d 605 (1978), People v Gary Hughes, 85 Mich. App. 674, 680-681; 272 NW2d 567 (1978), People v Blount, 87 Mich. App. 501, 504-505; 275 NW2d 21 (1978), People v Harris, 88 Mich. App. 280, 282; 276 NW2d 582 (1979), People v Tavolacci, 88 Mich. App. 470, 472; 276 NW2d 919 (1979), Wayne County Prosecutor v Recorder's Court Judge, 92 Mich. App. 119; 284 NW2d 507 (1979).

Third, defendant claims that the felony-firearm statute is unconstitutional because it violates his right against double jeopardy. This claim has been rejected by the Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979).

Finally, defendant argues that he may not be convicted as an aider and abettor of felony-firearm, since the requisite element of personal possession of a firearm by the defendant is missing. This Court has considered the issue, and there is a difference of opinion. Compare, People v Walter Johnson, 85 Mich. App. 654, 658; 272 NW2d 605 (1978), and People v Powell, 90 Mich. App. 273, 274-75; 282 NW2d 803 (1979), with, People v Walter Johnson, supra, at 672-673 (KAUFMAN, J., dissenting), People v Tavolacci, 88 Mich. App. 470; 276 NW2d 919 (1979), People v Powell, supra, at 275-276 (CYNAR, J., dissenting). However, careful reading of People v Tavolacci, supra, and the relevant portions of Judge KAUFMAN'S dissenting opinion in People v Walter Johnson, supra, persuades us that MCL 750.227b; MSA 28.424(2) does not require proof of personal possession of the firearm when used in the commission of a felony. See United States v James, 528 F2d 999, 1015 (CA 5, 1976), reh den, 532 F2d 1054 (1976), People v James Napoleon Taylor (Docket No. 77-1734, decided February 10, 1978 [unreported]), cf. United States v Brant, 448 F Supp 781 (WD Pa, 1978), United States v Giannoni, 472 F2d 136 (CA 9, 1973), cert den, 411 U.S. 935; 93 S. Ct. 1911; 36 L. Ed. 2d 396 (1973).

However, in order that an accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of, or to use the firearm during the course of a felony. People v Doemer, 35 Mich. App. 149; 192 NW2d 330; 47 ALR3d 1236 (1971), and see, People v Pearce, 20 Mich. App. 289; 174 NW2d 19 (1969), People v Little, 58 Mich. App. 12; 226 NW2d 735 (1975).

Therefore, the question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. GCR 1963, 785.7(3)(a). The record of defendant's plea indicates that defendant actively participated in the armed robbery by taking a ring and a watch from the complainant while his codefendant held the gun. This evidence is sufficient to give rise to the inculpatory inference that defendant knew his companion was armed with a firearm during the commission of a felony. Defendant's participation in the armed robbery is sufficient encouragement and assistance in the commission of the crime to constitute "aiding and abetting".

Affirmed.

T.M. BURNS, J. (dissenting).

I dissent and would hold that defendant cannot be convicted of violating the felony-firearm statute as an aider and abettor. The pertinent language of that statute provides that a person "who carries or has in his possession a firearm at the time he commits or attempts a felony" is guilty of a felony. MCL 750.227b(1); MSA 28.424(2)(1). I concur in the opinion of this Court in People v Powell, 90 Mich. App. 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich. App. 654; 272 NW2d 605 (1978), which held that this statute requires that a defendant personally carry or have in his possession a firearm in order to be guilty thereunder. This conclusion comports with and follows from the well-recognized rule of statutory construction that criminal statutes must be strictly construed. People v Hall, 391 Mich. 175, 189; 215 NW2d 166 (1974). Given the unique nature of the felony-firearm statute and the distinct social harm that it was intended to prevent, we should not expand its scope beyond the plain meaning of its words without clear legislative directive.