People v. Glenn, Docket No. 58518

• Decision Date: 06 May 1983
• Docket Number: Docket No. 58518
• Citation: 122 Mich.App. 675,332 N.W.2d 404
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tyrone E. GLENN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 404

332 N.W.2d 404

122 Mich.App. 675

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tyrone E. GLENN, Defendant-Appellee.

Docket No. 58518.

Court of Appeals of Michigan.

Submitted Sept. 15, 1982.

Decided Oct. 20, 1982.

Released for Publication May 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Mary Ellen O'Connell, Detroit, for defendant-appellee.

Before BRONSON, P.J., and BEASLEY and CYNAR, JJ.

PER CURIAM.

After a preliminary examination held on February 23, 1981, defendant, Tyrone E. Glenn, was bound over for trial on charges of assault with intent to commit great bodily harm less than murder, in violation of M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm in the commission of a felony, in violation of M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On March 20, 1981, the trial court granted defendant's motion to dismiss the felony-firearm count. Thereafter, defendant pled guilty to the lesser included offense of felonious assault, in violation of M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, and, on April 6, 1981, he was sentenced to two years probation, with the last six months to be served in the county jail. ¹ From the trial court's dismissal of the felony-firearm charge, the prosecutor appeals by delayed appeal granted.

At the preliminary examination, the complainant, Lamont Horne, testified that on the afternoon of February 6, 1981, defendant stabbed him with an ice pick and repeatedly struck him on the head with a small caliber pistol. In dismissing the felony-firearm charge, the trial judge ruled that defendant's employment of the pistol as a bludgeon did not constitute conduct proscribed by the felony-firearm statute.

On appeal, the prosecutor maintains that the trial court erred in dismissing the charge since the felony-firearm statute prohibits the possession, rather than the use, of a firearm at the time of the commission or attempted commission of a felony. Defendant responds that the statute is inapplicable to instances where an assailant uses a firearm as a bludgeon.

Resolution of this issue is controlled adversely to defendant by People v. Elowe, ² where this Court, in a well-reasoned opinion, held that if a defendant had possession of a firearm at the time he committed or attempted to commit a felony, the felony-firearm statute applies even though the defendant did not use the weapon during the perpetration or attempted perpetration of a felony. In Elowe, the defendant was charged in a two count information with delivery of a controlled substance and possession of a firearm in the commission of a felony. The trial court dismissed the felony-firearm count because it found that no connection existed between the act of possession of the firearm and the commission of the felony. In reinstating the felony-firearm charge, the Elowe Court stated:

"The purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony and to assure the punishment of persons who possess handguns during the perpetration of a felony. The goal of deterrence is better achieved without adding the requirement of a 'nexus' between the firearm and the felony. By punishing the 'possession', as opposed to 'use', of a firearm during the commission of a felony, the Legislature was attempting to reduce the possibility of injury to victims, passersby and police officers. Had defendant's criminal enterprise gone awry, he may well have been tempted to use his firearm to effect an escape. The mere fact that a felon has a...