People v. Bynum

• Decision Date: 07 November 1979
• Docket Number: Docket Nos. 78-4649,78-4650
• Citation: 287 N.W.2d 290,93 Mich.App. 563
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick BYNUM, Defendant-Appellant. 93 Mich.App. 563, 287 N.W.2d 290
• Court: Court of Appeal of Michigan — District of US

Page 290

287 N.W.2d 290

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick BYNUM, Defendant-Appellant.

Docket Nos. 78-4649, 78-4650.

93 Mich.App. 563, 287 N.W.2d 290

Court of Appeals of Michigan.

Nov. 7, 1979.

Released for Publication Jan. 29, 1980.

[93 MICHAPP 565] Robert A. Rosenberg, Brighton, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, App. Chief Asst. Pros. Atty., Brian D. Marzec, Asst. Pros. Atty., for plaintiff-appellee.

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

[93 MICHAPP 566] 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 $5.00, contrary to M.C.L. § 750.356a; M.S.A. § 28.588(1), robbery armed, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, contrary to M.C.L. § 750.227b; M.S.A. § 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 2-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 N.W.2d 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. Johnson, 85 Mich.App. 654, 659-660, 272 N.W.2d 605 (1978); People v. Hughes, 85 Mich.App. 674, 680-681, 272 N.W.2d 567 (1978); People v. Blount, 87 Mich.App. 501, 504-505, 275 N.W.2d 21 (1978); People v. Harris, 88 Mich.App. 280, 282, 276 N.W.2d 582 (1979); People v. Tavolacci, 88 Mich.App. 470, 472, 276 N.W.2d 919 (1979); Wayne County Prosecutor v. Recorder's Court Judge, 92 Mich.App. 433, 285 N.W.2d 318 (1979).

[93 MICHAPP 567] 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 N.W.2d 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. Johnson, 85 Mich.App. 654, 658, 272 N.W.2d 605 (1978), and People v. Powell, 90 Mich.App. 273, 274-75, 282 N.W.2d 803 (1979), with, People v. Johnson, supra, 85 Mich.App. at 672-673, 272 N.W.2d 605 (Kaufman, J., dissenting); People v. Tavolacci, 88 Mich.App. 470, 276 N.W.2d 919 (1979); People v. Powell, supra, 90 Mich.App. at 275-276, 282 N.W.2d 803 (Cynar, J., dissenting). However, careful reading of People v. Tavolacci, supra, and the relevant portions of Judge Kaufman's dissenting opinion in People v. Johnson, supra, persuades us that M.C.L. § 750.227b; M.S.A. § 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 F.2d 999, 1015 (CA 5, 1976), Reh. den., 532 F.2d 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 (W.D.Pa.1978); United States v. Giannoni, 472 F.2d 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 [93 MICHAPP 568] 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 N.W.2d 330, 47 A.L.R.3d 1236 (1971), and see, People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1969); People v. Little, 58 Mich.App. 12, 226 N.W.2d 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, Judge, dissenting.

I dissent and would hold that defendant cannot be convicted of violating the...