People v. Davenport

• Decision Date: 01 May 1979
• Docket Number: Docket No. 77-1261
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William DAVENPORT, Defendant-Appellant. 89 Mich.App. 678, 282 N.W.2d 179
• Court: Court of Appeal of Michigan — District of US

Page 179

282 N.W.2d 179

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William DAVENPORT, Defendant-Appellant.

Docket No. 77-1261.

89 Mich.App. 678, 282 N.W.2d 179

Court of Appeals of Michigan.

May 1, 1979.

Released for Publication Aug. 22, 1979.

[89 MICHAPP 680] James R. Neuhard, State App. Defender by Michael E. Turner, Deputy State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., George Mullison, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and T. M. BURNS and D. E. HOLBROOK, Jr., JJ.

D. E. HOLBROOK, Jr., Judge.

On June 30, 1976, defendant was convicted by a jury of carrying a firearm with unlawful intent, M.C.L. § 750.226; M.S.A. § 28.423, and carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424. Given concurrent sentences of 21/2 to 5 years in prison he appeals as of right.

A deputy sheriff testified that he was in the Pickle Barrel Bar with two other deputies. While at the bar, he observed defendant enter the premises with two other individuals. At that time he saw the outline of a handgun in defendant's right-hand pants pocket. When defendant and the two other individuals left the building, the three deputies followed. The three deputies caught defendant once, but he got away. Upon catching him the second time, one deputy testified that defendant put his right hand in his right pants pocket. Once [89 MICHAPP 681] this occurred, all three deputies immediately grabbed defendant's right arm and removed the weapon. Testimony was elicited that when defendant's hand was forcibly removed from his right-hand pocket the gun was not in it. A patrolman testified that defendant had his hand in his right front pocket and that, "I could see the outline of a gun and he had his hand on the grip."

Following conclusion of the People's case, defendant rested without presenting any proof, making motions for directed verdicts on both counts. Defendant contends that the motions for directed verdict were improperly denied. A directed verdict may only be granted where there is no evidence, either direct or circumstantial, on each material element of the offense. People v. Maliskey, 77 Mich.App. 444, 448, 258 N.W.2d 512 (1977), People v. Hodo, 51 Mich.App. 628, 639, 215 N.W.2d 733 (1974). A review of the record indicates that there was some evidence introduced on each material element of both offenses. Defendant correctly argues that there were possible innocent theories concerning why his hand was in his pocket at the time of his arrest, however the prosecution is not required to negate every possible innocent theory in order to avoid a directed verdict of acquittal. People v. Edgar, 75 Mich.App. 467, 255 N.W.2d 648 (1977).

Defendant's primary contention, however, is that a conviction for both offenses violates double jeopardy. The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections. It protects against the second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). [89 MICHAPP 682] It is the protection against multiple punishments for the same offense that is at issue in this case. In Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the United States Supreme Court reiterated the test applicable to multiple punishments.

"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932): 'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offenses or only one, is whether each provision requires proof of a fact which the other does not * * * ' This test emphasizes the elements of the two crimes. 'If each requires proof of the fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes * * * ' Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)."

The elements of carrying a firearm with unlawful intent, M.C.L. § 750.226; M.S.A. § 28.423, are that the defendant be armed with a firearm, that at the time he was so armed he intended to use the firearm, and that he intended to use the firearm unlawfully against the person of another. CJI 11:2:01. The elements of carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, as far as this case is concerned, are that the defendant merely carried a pistol and that the pistol was concealed on or about his person. CJI 11:1:01. Each charge has the common element that defendant carried a pistol, but the carrying the concealed weapon charge requires proof that the pistol was concealed on or about the person of the defendant, and the [89 MICHAPP 683] going armed with the firearm with unlawful intent requires proof that the defendant intended to use the pistol unlawfully against the person of another. Since each requires proof of a fact the other does not, the Blockburger test is satisfied, and punishment for both offenses would not violate double jeopardy.

Defendant argues that the evidence which proved him guilty of carrying a firearm with unlawful intent necessarily proved him guilty of a carrying a concealed weapon. This argument is based upon the Michigan Supreme Court's holding in People v. Jones, 395 Mich. 379, 387-389, 236 N.W.2d 461, 464 (1975), which held that lesser included offenses in Michigan include both necessarily included lesser offenses and those lesser offenses that are related and hence cognate. The Court stated:

"The common law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law & Procedure, § 1799. This definition includes only Necessarily included offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate' or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate' in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in a higher offense.

"The failure to advert to the nature of the 'cognate' lesser included offense has caused confusion. The fact that a lesser offense, within the same category as the greater charged offense, has an element not included within the greater does Not preclude the lesser from being included within the greater." (Footnote omitted, emphasis in original.)

[89 MICHAPP 684] It is arguable Brown v. Ohio, supra, held that a lesser included offense and a greater offense are the same under Blockburger. It is also arguable that The expansive definition of lesser included offenses found in Jones precludes conviction for cognate lesser included offenses, as well as for necessarily lesser included offenses, after a conviction of the greater offense. But see People v. Risher, 78 Mich.App. 431, 260 N.W.2d 121 (1977), Wayne County Prosecutor v. Recorder's Court Judge, 85 Mich.App. 727, 272...