People v. Johnson, Docket Nos. 62147

CourtSupreme Court of Michigan
Citation303 N.W.2d 442,411 Mich. 50
Docket Number2,Nos. 1,62854,Docket Nos. 62147,s. 1
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Walter JOHNSON, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Robert TAVOLACCI, Defendant-Appellant. Calendar
Decision Date30 March 1981

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty. Appeals, Andrea Solak, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Raymond L. Miller, Michael P. Hubbarth, Detroit, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank R. Del Vero, Pros. Atty., Thomas C. Nelson, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys., Lansing, for plaintiff-appellee.

J. David Reck, P. C., Howell, for defendant-appellant.

KAVANAGH, Justice.


Defendant Walter Johnson and codefendant Edgar Johnson held up a bar in the City of Detroit. Defendant Walter Johnson took money from the cash register while his codefendant kept the patrons at bay with a revolver. The defendants left the bar and divided the money.

On March 7, 1977, defendant Walter Johnson entered a plea of guilty as charged to the offenses of robbery armed, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of or attempt to commit a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to not less than 25 nor more than 75 years on the armed- robbery count and the mandatory 2-year imprisonment on the felony-firearm count.


Defendant Timothy Tavolacci had agreed to bring Jack McAleer, an undercover officer from the Washtenaw Area Narcotics Team, to a pool hall in Howell, Michigan, under the pretense of making a drug deal. According to the plan defendant was to introduce McAleer to Randy Harmon and Frederick Budziak who were to take him to a remote field and kill him. On May 17, 1977, defendant brought McAleer to the pool hall and introduced him to Harmon and Budziak. McAleer, Harmon and Budziak drove to a field outside of Oak Grove in Cohoctah Township, Livingston County. Budziak took a shotgun out of the trunk of the car and pointed it at McAleer. McAleer was able to disarm Budziak and the plan failed. Defendant remained in the pool hall during this time and eventually went to the home of a friend where he later received word of the frustrated attempt.

Defendant pled guilty of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and to possession of a firearm during the commission of or attempt to commit a felony M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to a term of imprisonment of not less than four nor more than ten years on the assault charge and a mandatory two-year term of imprisonment on the felony-firearm charge.

In the instant cases 85 Mich.App. 654, 272 N.W.2d 605, 88 Mich.App. 470, 276 N.W.2d 919, the defendants did not personally possess a firearm during the commission of the felonies. On appeal the prosecutors have contended that a defendant may be guilty of violating M.C.L. § 750.227b, notwithstanding the lack of actual personal possession, if he is shown to have aided and abetted another who has such possession.

Because in a felony-firearm prosecution the possession of the firearm is a distinct crime from the underlying felony, Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), the aiding and abetting charge must be established in each to support conviction of each.

To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one's possession during the commission of a felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise...

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39 cases
  • People v. Buck, Docket Nos. 119249
    • United States
    • Court of Appeal of Michigan (US)
    • December 8, 1992
    ...a firearm during the commission or attempt to commit a felony. Passeno, supra, 195 Mich.App. at 97, 489 N.W.2d 152. In People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981), our Supreme Court stated that in order to sustain a conviction of aiding Page 328 and abetting felony-firearm, "it m......
  • Harris v. Booker, Case No. 04-CV-74766-DT
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 8, 2010 punished equally upon conviction for the crime. See People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974). In People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981), the Michigan Supreme Court held that a person could be convicted of aiding and abetting felony firearm only if he or......
  • People v. Moore, Docket No. 120543
    • United States
    • Supreme Court of Michigan
    • May 12, 2004
    ...establish that a defendant assisted in obtaining or retaining possession of a firearm, the test that was set forth in People v. Johnson, 411 Mich. 50, 54, 303 N.W.2d 442 (1981), in order to convict the defendant of felony-firearm under an aiding and abetting theory. We overrule Johnson beca......
  • People v. Purofoy, Docket Nos. 52122
    • United States
    • Court of Appeal of Michigan (US)
    • June 29, 1982
    ...427, 431, 196 N.W.2d 839 (1972), lv. den. 388 Mich. 758 (1972). Contra: People v. Dixon, 85 Mich.App. 271, 276, 271 N.W.2d 196 (1978). 7 411 Mich. 50, 303 N.W.2d 442 8 Id., 54, 303 N.W.2d 442. 9 People v. Walker (On Remand), 374 Mich. 331, 132 N.W.2d 87 (1965). 10 People v. Ronald Smith, 27......
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