People v. McDowell

• Decision Date: 20 September 1978
• Docket Number: Docket No. 77-2742
• Citation: 272 N.W.2d 576,85 Mich.App. 697
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William George McDOWELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 576

272 N.W.2d 576

85 Mich.App. 697

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William George McDOWELL, Defendant-Appellant.

Docket No. 77-2742.

Court of Appeals of Michigan.

Sept. 20, 1978.

Released for Publication Dec. 18, 1978.

Curtis G. Rundell, II, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Paul C. Louisell, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and BEASLEY and D. E. HOLBROOK, Jr., JJ.

BASHARA, Presiding Judge.

Our brother's opinion delineates the salient facts upon which the defendant bases his constitutional challenge to the felony-firearm statute. ¹ However, we neither conclude that the question is prematurely presented nor that the statute, when construed, is completely violative of defendant's constitutional immunity from double jeopardy. ²

The denial of defendant's motion to quash the felony-firearm charge placed the case in a posture where trial on both charges was imminent. The constitutional question involved was certified here, and we granted leave to appeal. That question is of sufficient moment to the defendant and the ultimate termination of this action against him that a determination on the merits, which have been fully briefed and argued, is warranted.

Initially, we observe that our state double jeopardy provision is coterminous in operational scope with that of its Federal counterpart. People v. Johnson, 396 Mich. 424, 430, n. 2, 240 N.W.2d 729 (1976); In re Ascher,130 Mich. 540, 545, 90 N.W. 418 (1902). Both clauses afford protection from multiple prosecutions And multiple punishment for the "same offense". North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Standards for determination of the "same offense" for double jeopardy purposes were enumerated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The test developed in Blockburger required an examination of the provisions of each statutory offense to determine whether one required proof of an additional fact which the other did not.

Michigan has held that under this theory, where one of two offenses charged is a necessarily lesser included offense of the other, merger takes place and convictions for both arising out of the same act are constitutionally impermissible. People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977).

We must concede, in light of the foregoing precedent and the analysis therefrom, that conviction of both felony-firearm and the underlying felony violates double jeopardy in that the underlying felony will always be a necessarily lesser included offense of felony-firearm.

However, this does not mean that we find the statute, when considered in its entirety, unconstitutional. An important element that cannot be overlooked in statutory construction is the essential ingredient of legislative intent. The primary rule governing statutory interpretation is first and foremost to ascertain and give effect to the manifest intent of the Legislature. Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

The intent of the statute so clearly indicates a mandatory additional penalty when a firearm is used or possessed during the commission of a felony that it is incumbent upon this Court to uphold, if at all possible such a clear statutory mandate, within the limits of constitutional proscription. Purview of the legislative history emphasizes certainty of punishment as the prevailing consideration in enacting the statute under review. ³

Rather than strike down the statute in its entirety, we construe it to be inoperable only as a separate distinct felony statute. We view it rather as a sentence enhancement or sentence augmenting statute.

Such an interpretation has precedential sanctions in this state. In Dickerson v. Heide, 69 Mich.App. 303, 308-309, 244 N.W.2d 459, 461 (1976), this Court stated:

"We find this to be an especially cogent example of a situation where literal application of a statute would cause an unfortunate and unintended result and where rejection of the literal dictates will further the intent of the statute."

Every legislative act is presumed to be constitutional. The courts are required, wherever possible, to construe in favor of validity. Often times it is necessary that the spirit and purpose of the statute should prevail over its strict letter, Thomas v. Consumers Power Co., 58 Mich.App. 486, 495, 228 N.W.2d 786 (1975); People v. Adams, 34 Mich.App. 546, 555, 192 N.W.2d 19 (1971).

Our Michigan Supreme Court in Williams v. Secretary of State, 338 Mich. 202, 208, 60 N.W.2d 910, 914 (1953), quotes with approval a particularly compelling maxim from Endlich on the Interpretation of Statutes, § 295:

" ' "Effect to be Given to True Intent of Act. Modification of Language. Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; Sometimes by altering their collocation; or by rejecting them altogether ; or by interpolating other words; under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. The ascertainment of the latter is the cardinal rule, or rather the end and object, of all construction; and where the real design of the Legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, The language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter." ' " (Emphasis supplied.)

See also Grand Rapids v. Crocker, 219 Mich. 178, 183, 189 N.W. 221 (1922).

The statute, with the offensive language removed, is still an act complete within itself. It does not require references to other statutes for its meaning, nor does it alter or amend another statute by reference to title. As such, it is not offensive to our state constitution. ⁴ In scope and application it can be analogized to the habitual offender ⁵ statute which the Michigan Supreme Court has found to be constitutional. In re Pardee, 327 Mich. 13, 41 N.W.2d 466 (1950), Cert. den., 339 U.S. 961, 70 S.Ct. 989, 94 L.Ed. 1371 (1950); People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976).

Critics of the view herein embraced may contend that our decision invades the province of the Legislature. To the contrary, we sincerely believe that we have sustained the obvious intent of the Legislature by exercising proper judicial construction.

Affirmed.

BEASLEY, Judge (concurring).

I concur with Judge Bashara in affirming.

My reasons for upholding the constitutionality of the felony-firearm statute as now constituted are set forth in People v. Johnson, 85 Mich.App. 654, 272 N.W.2d 605 (1978).

D. E. HOLBROOK, Jr., Judge (concurring in result).

The defendant is charged with assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and with possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Both charges are based on the same allegation that the defendant fired a gun through the door of a van occupied by eight off-duty police officers, one of whom was wounded in the foot. Defendant appeals from the denial of his motion to quash one or both of the counts or, alternatively, to compel the prosecutor to elect between them. The trial judge did conclude that the case involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an appeal from denial of the motion may materially advance the ultimate termination of the litigation. GCR 1963, 806.3(1)(a)(ii).

Defendant contends that in the circumstances of his case, he would be placed twice in jeopardy by having to defend against prosecution on both counts. I conclude that this issue is prematurely raised. The Federal and state constitutions provide that a criminal defendant cannot be put twice in jeopardy. U.S.Const., Am. V; Const.1963, art. 1, § 15. But a defendant is not placed in jeopardy until he is put to trial before the trier of facts; jeopardy does not attach until the jury is impaneled and sworn or, in a bench trial, until the court begins to hear evidence. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547; 27 L.Ed.2d 543 (1971); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); People v. Johnson, 396 Mich. 424, 431, n. 3, 240 N.W.2d 729 (1976); People v. Gardner, 37 Mich.App. 520, 525-526, 195 N.W.2d 62 (1972); People v. Pribble, 72 Mich.App. 219, 223, 249 N.W.2d 363 (1976). Even if it is true that conviction on both counts would constitute double punishment, the mere fact that the defendant is charged with both does not put him twice in jeopardy. See People v. Goodchild, 68 Mich.App. 226, 236-237, 242 N.W.2d 465 (1976), Lv. den., 397 Mich. 830 (1976); McDaniel v. Jackson, 78 Mich.App. 218, 259 N.W.2d 563 (1977). At this point, prior to trial, defendant has yet to be placed in jeopardy once, let alone twice. For this reason I would affirm the trial court.

However, I disagree with the majority's conclusion that there would be...