People v. Marrow

• Decision Date: 05 May 1995
• Docket Number: Docket No. 162019
• Citation: 210 Mich.App. 455,534 N.W.2d 153
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard MARROW, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 153

534 N.W.2d 153

210 Mich.App. 455

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard MARROW, Defendant-Appellant.

Docket No. 162019.

Court of Appeals of Michigan.

Submitted Jan. 4, 1995, at Lansing.

Decided May 5, 1995, at 9:20 a.m.

Released for Publication July 12, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Arthur A. Busch, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Dale A. DeGarmo, Asst. Pros. Atty., for the people.

Arthur J. Tarnow, Detroit, for defendant.

Before FITZGERALD, P.J., and MARILYN J. KELLY and BASHARA, ^* JJ.

BASHARA, Judge.

Defendant was convicted of carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, and of being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084. He was sentenced to four to ten years' imprisonment and now appeals as of right. We affirm.

Police officers approached a house to arrest the defendant on an outstanding misdemeanor bench warrant. As they arrived, defendant was standing outside in an area of the driveway between the public sidewalk and the public street. One defense witness said the defendant was standing on the curb by the street. As the police stopped, defendant removed a handgun from his belt and threw the gun under a bush as he fled up the driveway and into the backyard.

The property on which defendant was arrested was owned by his mother, although she resided elsewhere. Defendant's mother testified that the defendant had stayed periodically at the property where he was arrested while he assisted in remodeling that property for rental use. The mother also testified that the defendant generally lived with his grandmother on another street. The parties were prepared to stipulate that the defendant consistently used the grandmother's address as his official mailing address, but the stipulation was not read to the jury because of the court's ruling that the defendant was not entitled to the jury instruction he requested.

I. POSSESSORY INTEREST EXCEPTION

Defendant first argues that the jury should have been instructed that a person is entitled to carry a concealed weapon on property in which he has a possessory interest consistent with M.C.L. § 750.227(2); M.S.A. § 28.424(2). ¹ The trial court ruled that an unspecified federal law barred defendant, as a convicted felon, from carrying a firearm of any kind and that the federal law preempted state law.

Defendant argues that even if he were subject to federal prosecution for possessing a weapon, he is exempt from state prosecution because our statute "allow[s] persons to defend those areas in which they have a possessory interest." People v. Clark, 21 Mich.App. 712, 176 N.W.2d 427 (1970). Defendant has only addressed the scope of the state exception and has not challenged the trial court's finding that federal law preempts state law in this regard. The prosecutor's brief concedes that there appears to be no basis for the court's ruling on preemption, but urges that the decision should be affirmed on other grounds. We agree. We offer no opinion regarding the precise issue of federal preemption because the specific federal statute ² has not been cited in the record. Instead, we reject the position defendant has argued on appeal and hold that the Legislature did not intend that a person such as this defendant be permitted to carry an unlicensed concealed weapon under these circumstances.

The prosecutor presented no proof to counter the defense witnesses' testimony that the defendant resided in the house while repairing it, and the trial court never reached the issue whether the defendant had a sufficient possessory interest. We need not reach that question (which may properly be a factual issue for the jury), though, because defendant was not entitled to the instruction as a matter of law even if he had a possessory interest in the property.

A. Convicted Felon in Possession

The first circumstance that leads to our conclusion is defendant's status as a convicted felon (and current parolee). We find no persuasive evidence that the Legislature intended that recently released convicted felons should be able to carry concealed weapons so that they might defend property because Michigan law presumes that parolees and guns are per se a dangerous combination.

At the time of this offense, M.C.L. § 28.422; M.S.A. § 28.92 provided that "no person shall purchase, carry or transport a pistol without first having obtained a license therefor as prescribed herein." See 1986 P.A. 161, § 1. The statute further provided that "in no event shall such a license be issued to a person who has been convicted of a felony or confined therefor in this state or elsewhere during the 8-year period immediately preceding the date of such application [for license]." Id. ³

When this section is read together with M.C.L. § 750.227; M.S.A. § 28.424, we believe the Legislature intended M.C.L. § 750.227; M.S.A. § 28.424 to allow a person to conceal an otherwise lawful firearm to defend his property. M.C.L. § 750.227; M.S.A. § 28.424, however, does not allow one to carry or possess a prohibited weapon. ⁴ The statute presumes that the weapon is lawfully owned, and only addresses its concealment. It does not extend a right to conceal an illegally owned weapon, even in one's own dwelling house or business property.

By analogy, we do not think the Legislature would have intended to allow a shopkeeper to own a machine gun for use in defending the shop (machine guns are prohibited by M.C.L. § 750.224; M.S.A. § 28.421). The illegal possession is not saved by the fact that the machine gun is kept in the shopkeeper's store; the Legislature has chosen to prohibit that class of weapons without regard to where they are used. Similarly, the Legislature has chosen to prohibit pistol ownership by a particular class of persons--convicted felons--and the convicted felon's decision to keep the pistol on his residential or business property should not alter the outcome.

This Court's decision in People v. Gatt, 77 Mich.App. 310, 258 N.W.2d 212 (1977), holding that the land need not be possessed for a legal purpose, does not alter our conclusion that the gun still must be legally owned. Here, the defendant presented no evidence that he was capable of lawfully possessing the pistol (and M.C.L. § 28.422; M.S.A. § 28.92 casts grave doubts on his ability to make such a showing). Therefore the question whether he might lawfully conceal it on land he possessed is never reached, and the instruction was properly declined.

B. Scope of Possessory Interest in Property

More important to our conclusion is the second circumstance: defendant carried the concealed weapon on the public easement and public sidewalks. This again involves an issue of first impression in Michigan, but we hold that the Legislature did not intend the exceptions to extend to areas the defendant has no need or right to defend.

Other jurisdictions are split regarding the issue whether a defendant is exempt from prosecution when carrying a weapon on a public road or sidewalk that adjoins or divides his property. See anno: Scope and effect of exception, in statute forbidding carrying of weapons, as to person on his own premises or at his place of business, 57 ALR3d 938, § 5. Some courts have held that such a defendant is not on his own premises so as to be exempt from prosecution. The rationale is that

[t]he easement which the public has in the highway is superior to any rights which the owner of the fee has. He can do nothing, by virtue of his ownership of the fee in the soil, antagonistic to the right of the public to use the highway as such. The public is in possession of the highway and has the right to pass to and fro upon it ad libitum. This right is to be enjoyed by the public without interruption or molestation in any manner from the owner of the freehold.

* * * * * *

... [T]he policy of [the] law is to conserve the public peace. In what more important place can this to be done that upon the public roads and streets which are set apart to the public and must be used by it? [Moss v. Arkansas, 65 Ark. 368, 369-370, 45 S.W. 987 (1898).]

See also Facion v. State, 290 So.2d 75 (Fla.App., 1975) (the defendant had no right to carry concealed pistol on sidewalk outside his apartment); Roy v. State, 552 S.W.2d 827, 829 (Tex.Crim.App., 1977), quoting Lattimore v. Texas, 65 Tex.Crim. 490, 145 S.W. 588 (1912) (rejecting claim that person who operates business from a vehicle can carry a weapon while driving because "the public roads, can in no proper sense be termed any man's place of business, since he has no right to an exclusive appropriation").

One jurisdiction gave a defendant the benefit of the exemption when he was found carrying a pistol on a road that ran over his father's land and divided the family property:

The fact that a public road is laid off on a man's land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquire only an easement, that is, the right of passing and repassing along it. [North Carolina v. Hewell, 90 N.C. 705, 706 (1884) (citations omitted).]

A third line of cases from Texas takes a middle approach, and allows a person to carry a weapon on public roadways or easements adjoining the person's property if the person possesses the weapon for otherwise lawful purposes. See Johnson v. State, 160 Tex.Crim. 314, 269 S.W.2d 406 (1954) (the defendant had right to carry pistol on public road connecting two parcels of land he owned as long as he did not have unlawful purpose); Deuschle v. State, 109 Tex.Crim. 355, 4 S.W.2d 559 (1927) (the defendant's right to carry a pistol on a public road dividing her farm and pasture depended on her purpose for carrying the pistol; absent lawful reason for carrying the pistol, the conviction was upheld). ⁵ We decline to adopt this rule because it conflicts with the Legislature's desire to...