People v. Burgess

• Decision Date: 20 August 1984
• Docket Number: Docket No. 72376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Jay BURGESS, Defendant-Appellant. 419 Mich. 305, 353 N.W.2d 444
• Court: Michigan Supreme Court

Page 444

353 N.W.2d 444

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Jay BURGESS, Defendant-Appellant.

Docket No. 72376.

419 Mich. 305, 353 N.W.2d 444

Supreme Court of Michigan.

Aug. 20, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Richard H. Browne, Asst. Pros. Atty., Pontiac, for the people.

Thomas J. Quarles, Detroit, for defendant-appellant.

PER CURIAM.

In this case, the Court of Appeals has reversed a felony conviction, but has left undisturbed an accompanying conviction of possession of a firearm during the commission of the felony. We believe that this was error, and we reverse the defendant's felony-firearm conviction.

I

The information in this case listed three counts of criminal conduct. Count I alleged that the defendant had committed an assault while armed with a dangerous weapon (felonious assault). M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Count II alleged that the defendant had possessed a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I above". M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Count III alleged that the defendant had carried a weapon in his automobile (CCW). M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. A jury found the defendant guilty of all three counts. He was sentenced to a term of from one to four years in prison for assault with a dangerous weapon, a term of two years in prison for the felony-firearm conviction, and a term of from one to five years in prison for carrying a weapon in his automobile. The trial court ordered that the sentences for Counts I and III be served concurrently and that they be served consecutively to the sentence for Count II.

The defendant appealed to the Court of Appeals, raising several issues. In an unpublished per curiam opinion, ¹ the Court of Appeals agreed with the defendant that the trial court had erred in permitting testimony that suggested that the defendant had possessed a controlled substance at the time of his arrest. The Court of Appeals further agreed with the defendant that testimony concerning his silence at the time of arrest violated People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973). Finally, the Court of Appeals agreed with the defendant that the trial court had given an erroneous instruction on the charge of assault with a dangerous weapon.

"Defendant next argues that the trial court erred in instructing the jury on the elements of felonious assault. We agree. Although the trial court did instruct based on CJI 17:4:01, it omitted the first paragraph in that instruction. Therefore, although the jury was properly instructed that defendant could be convicted of felonious assault on either of two different theories, under only one theory was it instructed that the defendant [would] need a dangerous weapon. As such, under the first theory it was instructed that it need not find that defendant used a dangerous weapon. Using a dangerous weapon is necessary. People v. Stevens, 409 Mich. 564; 297 N.W.2d 120 (1980); People v. Stubbs, 110 Mich.App. 287; 312 N.W.2d 232 (1981), lv. den. 413 Mich. 950 (1982)."

The Court of Appeals explained that, "[c]onjoining these three errors", it was reversing the defendant's conviction of assault with a dangerous weapon. The court went on, however, to explain that neither the felony-firearm conviction nor the CCW conviction would be reversed.

"Conjoining these three errors, we reverse defendant's felonious assault conviction. However, we decline to reverse either his carrying a concealed weapon or felony-firearm conviction. Unless the error is per se reversible, we will not reverse a conviction if defendant's defense is not legally recognized. Defendant's only defense to the charges was intoxication. Although intoxication is a defense to felonious assault, People v. Polk (On Rehearing), 123 Mich.App. 737; 333 N.W.2d 499 (1981), it is not a defense to a general intent crime like carrying a concealed weapon. People v. Lane, 102 Mich.App. 11, 15; 300 N.W.2d 717 (1980). Felony firearm requires that the firearm be carried or possessed during the course of a felony or an attempted felony. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), app. dis. 444 U.S. 948 [100 S.Ct. 418, 62 L.Ed.2d 317] (1979). As such, because felony firearm is also a general intent crime, intoxication is again not a legal defense. Therefore, because defendant's only defense in this case is not a legal defense to either of these crimes and because none of the errors complained of are per se reversible, we find the errors harmless for his convictions for felony firearm and carrying a concealed weapon.

"Even though the felony-firearm charge was predicated on the felonious assault and not the carrying of a concealed weapon, we will not reverse the felony-firearm conviction merely because we have reversed the felonious assault conviction. Michigan courts allow inconsistent verdicts. People v. Lewis, 415 Mich. 443; 330 N.W.2d 16 (1982). The errors requiring reversal for felonious assault in this case do not in and of themselves require reversal for felony firearm. See People v. Morgan [123 Mich.App. 27, 333 N.W.2d 163 (1983) ]."

The defendant has applied to this Court, asking us to reverse his two remaining convictions. The prosecutor has filed an application for leave to cross-appeal, asserting that the trial court properly instructed the jury on the crime of assault with a dangerous weapon.

II

This defendant was charged with possession of a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I". The jury found the defendant guilty as charged, and affirmed its finding of guilt "of the crime of carrying a concealed weapon, felonious assault, and of felony-firearm in the manner and form that the people have in their information in this cause charged". The Court of Appeals determined that this defendant's conviction of assault with a dangerous weapon must be reversed. The issue is whether the felony-firearm conviction must also be reversed.

III

The felony-firearm statute reads:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

"(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1)."

In Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), we said that felony-firearm is clearly a separate crime, and not merely a sentence enhancement measure. The relationship between a felony-firearm offense and the underlying felony was more fully explored in People v. Lewis, 415 Mich. 443, 330 N.W.2d 16 (1982). In that case, we dealt with three cases in which juries had entered acquittals on the underlying felony, together with convictions of felony-firearm. The defendants in Lewis argued that a verdict of not guilty on the...