People v. Humphrey, Docket No. 320353.

• Decision Date: 15 September 2015
• Docket Number: Docket No. 320353.
• Citation: 312 Mich.App. 309,877 N.W.2d 770
• Parties: PEOPLE v. HUMPHREY.
• Court: Court of Appeal of Michigan — District of US

312 Mich.App. 309

877 N.W.2d 770

PEOPLE

v.HUMPHREY.

Docket No. 320353.

Court of Appeals of Michigan.

Submitted May 13, 2015, at Detroit.

Decided Sept. 15, 2015, at 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.

Melvin Houston, for defendant.

Before: WILDER, P.J., and OWENS and M.J. KELLY, JJ.

WILDER, P.J.

The prosecution appeals as of right a circuit court order granting defendant's motion to dismiss the charge against him of carrying a concealed weapon (CCW), MCL 750.227(2). On appeal, the prosecution argues that under the Michigan Supreme Court's interpretation of "firearm" under MCL 750.222(d) (providing the legal definition of "firearm" for offenses in Chapter XXXVII of the Michigan Penal Code),¹ the inoperability of a pistol is not a valid affirmative defense to a CCW charge, and therefore, the trial court erroneously dismissed defendant's CCW charge. We agree and reverse.

I. FACTS AND PROCEDURAL HISTORY

At approximately midnight on January 7, 2012, Detroit Police Officer Johnny Strickland and another officer were patrolling the area of St. Marys Street and McNichols Road in Detroit, Michigan, in a fully marked police car. Strickland observed defendant and another individual walking along the street despite the availability of a pedestrian sidewalk, an offense for which Strickland was authorized to issue a ticket. Strickland and the other officer approached defendant, and defendant looked in their direction. When the officers stopped and got out of the car, defendant "immediately reached ... toward his right pocket as if he was trying to reach into his pants." Strickland instructed defendant to place his hands in the air, but defendant fled when Strickland approached him. Strickland told defendant to stop, identified himself as a police officer, and ran after defendant. After chasing defendant for less than a block, Strickland caught up with him and immediately detained him, at which time defendant again attempted to reach into his right pants pocket. After Strickland handcuffed defendant, he frisked the area where defendant had reached and felt a handgun through defendant's pants. Defendant did not produce a valid concealed pistol license, and the weapon had not been visible before it was removed from defendant's pants because "he had on two pair of pants, [and] it was in the pants that [were] underneath the first pair." Strickland could not recall if he ever inspected the weapon to determine if it had been loaded or operable.

On November 11, 2013, the trial court entered an order requiring the Detroit Police Department to perform ballistics testing on the weapon seized from defendant in order "to determine whether the weapon is currently operable (i.e., capable of propelling a dangerous projective [sic: projectile] )." According to the laboratory report prepared by the Forensic Science Division of the Michigan State Police, dated February 5, 2012, well before the court's order for ballistics testing, "[t]he submitted firearm did not function in the condition it was received [sic], due to a missing firing pin."

On January 6, 2014, defendant filed a motion to dismiss the CCW charge against him. Defendant argued that the trial court should dismiss the CCW charge because the Michigan State Police ballistics report indicated that the weapon seized from defendant "was missing a firing pin and, as a result, could not be easily made operable at the time." According to defendant, this demonstrated that there was insufficient evidence to support one of the critical elements of the CCW charge. In support of his position, defendant asserted that there previously was a split of authority regarding whether an inoperable weapon could give rise to a CCW charge, but that subsequent cases resolved the issue and indicated that "an affirmative defense to the charge of carrying a concealed pistol can be made by the presentation of proof that the pistol in question would not fire and could not readily be made to fire a projectile." Accordingly, defendant argued that no reasonable trier of fact could find that the weapon recovered from defendant was operable, and therefore, the trial court should dismiss the CCW charge because the pistol did not constitute a firearm under MCL 750.222, which provides the definition relevant to MCL 750.227(2).

After a hearing on defendant's motion, the trial court ruled as follows:

Okay. I took an opportunity, I read [People v. Peals, 476 Mich. 636, 638, 720 N.W.2d 196 (2006),] as well as the other cases that are cited in the Criminal Jury Instruction 11.6 because I thought that they would be helpful. My main issue with [Peals ] is that it makes it clear time and time again that it applies to felon in possession and felony firearm.

I tend to agree ... that if there was a CCW charge within that particular case it probably would have applied it. However, throughout it's [sic] holding it distinguishes between the CCW charges and felon in possession and felony firearm. So I think this is a call that, for another court. I'm going to dismiss this case.

I think that ultimately the Court of Appeals or the Michigan Supreme Court has to clarify whether or not there [sic] new found opinion with respect to operability under firearms further extends to CCW. ‘Cause I haven't seen anything in the case law saying that it doesn't. Other than the [Peals ] case, which is very clearly applies [sic] to felony firearm and felon in possession.

So you're probably right. And the Court's going to get there eventually. I just don't think that they've done it yet. And this might be the case to do it. So, I'm going to dismiss it.

Accordingly, on January 28, 2014, the trial court entered an order dismissing the CCW charge for the reasons stated on the record.

II. STANDARDS OF REVIEW

This Court "review[s] for an abuse of discretion a trial court's decision on a motion to dismiss," People v. Stone,

269 Mich.App. 240, 242, 712 N.W.2d 165 (2005), which occurs "when [the trial court's] decision falls outside the range of principled outcomes," People v. Nicholson, 297 Mich.App. 191, 196, 822 N.W.2d 284 (2012). However, this Court reviews de novo questions of law on which a dismissal is based. People v. Owen, 251 Mich.App. 76, 78, 649 N.W.2d 777 (2002). Additionally, "[q]uestions of statutory construction are reviewed de novo." People v. Campbell, 289 Mich.App. 533, 535, 798 N.W.2d 514 (2010).

III. THE OPERABILITY OF A PISTOL IS NOT RELEVANT TO CHARGES BROUGHT UNDER CHAPTER XXXVII OF THE MICHIGAN PENAL CODE

The prosecution charged defendant with violating MCL 750.227(2), which provides:

A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

At the time of the instant offense, MCL 750.222(e) defined the term "pistol"² as "a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded firearm that by its construction and appearance conceals itself as a firearm."³ Additionally, at the time of the instant offense, the term "firearm," which applied to all offenses in Chapter XXXVII of the Michigan Penal Code, meant "a weapon from which a dangerous projectile may be propelled by an explosive, or by gas or air. Firearm does not include a smooth bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BB's [sic] not exceeding .177 caliber." MCL 750.222(d).

As recognized in People v. Brown, 249 Mich.App. 382, 384, 642 N.W.2d 382 (2002), "this Court has accorded various meanings to the statutory term ‘firearm,’ depending on the specific offense with which the defendant has been charged." Thus, while this Court found that an inoperable weapon qualified as a firearm for purposes of MCL 750.227b (possession of a firearm during the commission of a felony (felony-firearm)), and MCL 750.224f (felon in possession of a firearm (felon-in-possession)), Brown, 249 Mich.App. at 384–385, 642 N.W.2d 382, this Court has also held that the fact that a pistol was inoperable afforded a defendant an affirmative defense to a CCW charge:

This Court has ... held that a pistol, as defined under the concealed weapons statute, must be operable. People v. Gardner, 194 Mich.App. 652, 487 N.W.2d 515 (1992). That is, the pistol must be capable of propelling the requisite-sized dangerous projectile or of being altered to do so within a reasonably short time. Id. at p. 654 ; People v. Huizenga, 176 Mich.App. 800, 806, 439 N.W.2d 922 (1989). An affirmative defense to a charge of carrying a concealed pistol can be made by the presentation of proof that the pistol would not fire and could not readily be made to fire. Gardner, supra. [People v. Parr, 197 Mich.App. 41, 45, 494 N.W.2d 768 (1992).]

Consistent with this caselaw, subsequent opinions issued by this Court, and both the former and current versions of the model criminal jury instructions, recognize that an inoperable handgun does not constitute a firearm for purposes of the CCW statute, and that a defendant is not guilty of CCW when the gun is completely unusable and cannot be easily made operable. See, e.g., Brown, 249 Mich.App. at 384, 642 N.W.2d 382 ; M. Crim. JI 11.6 ; CJI2d 11.6.

However, in People v. Peals, 476 Mich. 636, 638, 720 N.W.2d 196 (2006), the Michigan Supreme Court considered whether the defendant possessed a firearm, as defined in MCL 750.222(d), and was therefore properly convicted of felon-in-possession, MCL 750.224f(1), and felony-firearm, MCL 750.227b. The Supreme Court he...