People v. Hill
| Decision Date | 27 September 1989 |
| Docket Number | Docket Nos. 81818,81819 |
| Citation | 446 N.W.2d 140,433 Mich. 464 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rodney HILL, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Derrick MEDLEY, Defendant-Appellee. 433 Mich. 464, 446 N.W.2d 140 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Crim. Div., Research, Training and Appeals, Don W. Atkins, Principal Atty., Appeals, Detroit, for People.
Carole M. Stanyar, Detroit, Mich., for Derrick Medley.
Michael A. Reynolds, Southfield, Mich., for Rodney Hill.
We granted leave to appeal in these cases to decide whether two defendants can be charged with possession of one short-barreled shotgun contrary to M.C.L. Sec. 750.224b; M.S.A. Sec. 28.421(2), when each defendant had in his possession one of the two component parts that comprised the short-barreled shotgun.
We find that possession of a prohibited firearm is not limited to actual possession, but may include both constructive possession, and joint possession by defendants acting in concert. Further, we find that the fact that a firearm is temporarily inoperable does not preclude prosecution for its possession where the statute expressly prohibits such possession. Therefore, we conclude that there is sufficient record support in the cases we decide today to support the charge of illegal possession of a short-barreled shotgun brought against each defendant. Finally, we are persuaded that there are strong policy considerations that support our holding which discourages the practice of "breaking down" a shotgun to escape prosecution for illegal possession of weapons which our legislature has clearly prohibited.
Accordingly, we hold that the Court of Appeals erred in affirming the dismissal of the charges. Thus, we reverse the decision of the Court of Appeals, reinstate the charges against the defendants, and remand the cases to the trial court for proceedings consistent with this opinion.
On the evening of January 17, 1986, Detroit Police Officers Thomas Dogonski and Earl Cunningham were dispatched to the intersection of Ellis and Grandmont to investigate a report of a "large fight." They arrived two minutes after receiving the call and saw the two defendants standing together near the intersection of Ellis and Woodmont, approximately one block away. Unable to see anyone else in the area, the officers drove up to the defendants to inquire about the reported fight.
As the police drew even with the two men, Officer Dogonski noticed blood dripping from a fresh cut under defendant Medley's left eye. At this point, he also observed a large bulge under the left side of Medley's coat. Explaining that it was an iron pipe, Medley began to reach toward his coat. Dogonski instructed him not to move, held onto Medley, and pulled out the breech portion of a shotgun. 1 Also found in Medley's possession was one loaded 12-gauge shotgun shell.
After being alerted that Medley appeared to have a weapon, Officer Cunningham conducted a "pat-down" search of defendant Hill. He discovered the barrel portion of a sawed-off, double-barreled shotgun stuffed in the front of Hill's pants. Not only did the barrel portion "lock[ ] right up together" with the breech, but both parts came from the same manufacturer and had matching serial numbers. The barrel was twelve inches long, and the assembled gun totaled seventeen inches in length. Consequently, the defendants were charged with possession of a short-barreled shotgun pursuant to M.C.L. Sec. 750.224b; M.S.A. Sec. 28.421(2).
After Medley's preliminary examination, the magistrate dismissed the charges. The plaintiff filed an application for leave to appeal the dismissal of the charges against Medley in the Detroit Recorder's Court. This application was denied on the ground that the examining magistrate did not abuse her discretion in dismissing the case. The plaintiff then filed an application for leave to appeal in the Court of Appeals, which was granted on January 6, 1987.
Conversely, Hill was ordered to stand trial. The acting magistrate, Judge Lubienski, ruled that the defendants were so close in time and place that the "two pieces of gun could come together, [and] become an active and very dangerous weapon." Judge Lubienski also noted that this created a "danger contemplated by the statute" and that this danger is what the "Legislature wants to prevent." Following the preliminary examination, Hill filed a motion to quash in the Recorder's Court. In granting the motion, the court found that the prosecution failed to show that Hill was in possession of a "shotgun," and the case was dismissed. On May 9, 1986, the plaintiff appealed the dismissal.
Upon the plaintiff's motion, the Court of appeals consolidated the two cases, and on September 11, 1987, it upheld the lower courts' dismissal of the cases against each defendant. 2 The plaintiff sought leave to appeal, which we granted on March 22, 1988. 3
If it appears that a felony has been committed for which there is probable cause to charge the defendant, it is the statutory duty of the magistrate to bind the defendant over for trial. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. Although the magistrate need not establish guilt beyond a reasonable doubt, there must exist evidence of each element of the crime charged or evidence from which the elements may be inferred. People v. Doss, 406 Mich. 90, 276 N.W.2d 9 (1979). It is not the function of the magistrate to discharge the accused when the evidence conflicts or raises a reasonable doubt as to guilt. Such questions are for the trier of fact. People v. Coons, 158 Mich.App. 735, 405 N.W.2d 153 (1987), lv. den. 428 Mich. 900 (1987). Thus, the issue we must now decide is whether the conduct of Hill and Medley, as shown by the evidence presented at their preliminary examinations, falls within the scope of the statute prohibiting the possession of a short-barreled shotgun.
Possession may be proven by circumstantial as well as direct evidence. United States v. Smith, 591 F.2d 1105 (CA 5, 1979). The question of possession is factual and is to be answered by the jury. United States v. Holt, 427 F.2d 1114 (CA 8, 1970).
A general discussion of "possession" is found in 72 C.J.S., Possession, p. 233 (1951), which provides, "[the term possession] is interchangeably used to describe actual possession and constructive possession, which often so shade into one another that it is difficult to say where one ends and the other begins."
Federal courts consistently have recognized two types of possession, actual and constructive. United States v. Burch, 313 F.2d 628 (CA 6, 1963); United States v. LaGue, 472 F.2d 151 (CA 9, 1973). Although not in actual possession, a person has constructive possession if he "knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons...." Burch, supra at 629; see also United States v. Craven, 478 F.2d 1329 (CA 6, 1973). Possession of a firearm need only be constructive to establish the element of possession. United States v. Martin, 706 F.2d 263 (CA 8, 1983); Holt, supra. Whether actual or constructive, possession may be joint as well as exclusive. Craven and Holt, supra. It has been held:
" " Smith, supra at 1107, quoting United States v. Ransom, 515 F.2d 885, 890-891 (CA 5, 1975), cert. den. 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976), reh. den. 425 U.S. 945, 96 S.Ct. 1687, 48 L.Ed.2d 189 (1976).
Michigan courts also have recognized that the term "possession" includes both actual and constructive possession. As with the federal rule, a person has constructive possession if there is proximity to the article together with indicia of control. People v. Davis, 101 Mich.App. 198, 300 N.W.2d 497 (1980). Put another way, a defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant. Physical possession is not necessary as long as the defendant has constructive possession. People v. Terry, 124 Mich.App. 656, 335 N.W.2d 116 (1983).
We find that the decisions of the Court of Appeals and the federal courts are well-reasoned interpretations of the intent of the respective Legislatures when they enacted the applicable statutes regulating the possession and use of firearms. Therefore, we agree with the theory of constructive firearm possession and recognize the theory of joint firearm possession if the evidence suggests two or more defendants acting in concert.
We must now decide if the two shotgun parts constitute the firearm prohibited by the short-barreled shotgun statute. Section 224b of the Michigan Penal Code prohibits the possession of short-barreled shotguns. 4 The term "short-barreled shotgun" is defined in Sec. 222(e) of the Penal Code. 5 Because a "short-barreled shotgun" is described as a modified or altered "shotgun," we must look to the definition of "shotgun." 6 Noting that "shotgun" is described as a "firearm," we are lead to the statutory definition of "firearm." 7 The defendants contend that because each component part, individually without the other, is incapable of "propelling a dangerous projectile," neither defendant can be charged with possession of a short-barreled shotgun. We disagree.
In determining the purpose of the law prohibiting the possession of short-barreled shotguns, the statutory rule of construction provided for in the Penal Code should be applied. M.C.L. Sec....
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