People v. Moore

• Decision Date: 12 May 2004
• Docket Number: Docket No. 4.,Docket No. 3,Docket No. Calendar,Docket No. 120543,Docket No. 119862
• Citation: 470 Mich. 56,679 N.W.2d 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence D. MOORE, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Erwin Harris, Defendant-Appellant.
• Court: Michigan Supreme Court

679 N.W.2d 41

470 Mich. 56

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence D. MOORE, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Erwin Harris, Defendant-Appellant.

Docket Nos. 120543, 119862, Calendar Nos. 3, 4.

Supreme Court of Michigan.

Argued October 15, 2003.

Decided May 12, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief of Research, Training, and Appeals, and John C. Schlinker, Deputy Chief Assistant Prosecuting Attorney, Flint, MI, for the people in Moore.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, Ann Arbor, MI, for the people in Harris.

Robert L. Segar, Flint, MI, for defendant Moore.

State Appellate Defender (by Gail Rodwan), Detroit, MI, for defendant Harris.

OPINION

WEAVER, J.

In these two cases, defendants were convicted of felony-firearm¹ under an aiding and abetting theory.² Felony-firearm is the crime of carrying or possessing a firearm during the commission or attempted commission of a felony. The issue before the Court is whether the prosecutor must 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 because the test that it created is narrower than the test set forth in the language of the aiding and abetting statute. We conclude that under the statute, the proper standard for establishing felony-firearm under an aiding and abetting theory is whether the defendant's words or deeds "procure[d], counsel[ed], aid [ed], or abet[ted]" another to carry or have in his possession a firearm during the commission or attempted commission of a felony-firearm offense.³ Applying that standard, we hold that there was sufficient evidence in each case to support the felony-firearm convictions, and we affirm both defendants' convictions.

I. Facts and Procedural History

A

The charges against defendant Clarence D. Moore stem from a shooting in Flint on August 8, 1997. That night, Moore and his friend, DeJuan Boylston, argued with Jacky Hamilton and his brother, Johnny Hamilton. Shortly thereafter, Moore and Boylston approached the Hamilton brothers while they were fishing at a lake. Boylston was carrying a gun, and Moore told the two brothers that they had better start swimming out into the lake. Boylston then recognized Johnny Hamilton from basketball games in the neighborhood. This recognition prompted Boylston to retreat, telling Moore that he did not want a problem with the Hamiltons. According to Johnny Hamilton, after Boylston declined to shoot the brothers, Moore attempted to grab the gun from Boylston. During this time, Moore made derogatory statements to Boylston to encourage him to shoot the victims. He questioned Boylston's sense of masculinity and threatened that he would not associate with Boylston if Boylston did not shoot the Hamiltons. After walking about halfway up the hill, Boylston turned and fired, hitting Jacky, who later died from the gunshot wounds.

Following a jury trial, defendant Moore was convicted of murder in the first degree,⁴ assault with intent to murder,⁵ and felony-firearm⁶ on an aiding and abetting theory.⁷ In an unpublished opinion, the Court of Appeals affirmed Moore's convictions on all counts.

B

The charges against defendant Erwin Harris stem from a robbery that took place in Washtenaw County on September 28, 1998. Harris drove Eugene Mays to a gasoline station. Mays had a sawed-off shotgun in the vehicle. Harris first entered the store on the pretense of asking for directions. After leaving the store, he reentered moments later followed by Mays, who was wielding the shotgun. While Mays pointed the gun at the clerk, Harris approached a customer from behind and proceeded to remove the customer's wallet and other items from his pockets. The clerk refused to give Mays any money and pushed a button that locked the cash register. Although Harris repeatedly directed Mays to "pop," or shoot, the clerk after he locked the register, the two men left the store without physically harming either the clerk or the customer.

Defendant Harris was convicted by a jury on two counts of armed robbery,⁸ two counts of felony-firearm⁹ on an aiding and abetting theory,¹⁰ and one count of fleeing and eluding the police.¹¹ Harris appealed his convictions for the armed robbery of the customer and for the two counts of felony-firearm. In an unpublished, divided decision, the Court of Appeals upheld Harris's convictions.

C

Both Moore and Harris sought leave to appeal in this Court. Each defendant argued that his conviction(s) for felony-firearm under an aiding and abetting theory should be reversed because he did not assist in either obtaining or retaining possession of the firearm, citing this Court's decision in Johnson. This Court granted leave to appeal in both cases and ordered that the cases be argued and submitted to the Court together. In each of these cases, the order granting leave to appeal limited the issues to "whether there is sufficient evidence to convict the defendant of violating MCL 750.227b and whether the decision in People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981), should be overruled or modified." People v. Harris, 467 Mich. 896, 654 N.W.2d 328 (2002); People v. Moore, 467 Mich. 897, 654 N.W.2d 328 (2002).

II

Resolution of these cases requires interpretation of the felony-firearm statute and the aiding and abetting statute. Statutory interpretation is a question of law that this Court reviews de novo. Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 739, 641 N.W.2d 567 (2002). If the statutory language is certain and unambiguous, that language is given its ordinary and generally accepted meaning. Piper v. Pettibone Corp., 450 Mich. 565, 542 N.W.2d 269 (1995).

A

The felony-firearm statute, M.C.L. § 750.227b(1), states:

A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony... is guilty of a felony, and shall be imprisoned for 2 years.

The felony-firearm statute applies whenever a person carries or has a firearm in his possession when committing or attempting to commit a felony. The evident purpose of the statute is to enhance the penalty for the carrying or possession of firearms during the commission of a felony and thus to deter the use of guns. Wayne Co. Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 391, 280 N.W.2d 793 (1979), overruled in part on other grounds by People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). The important rationale behind the felony-firearm statute is demonstrated in its unique and severe punishment scheme. Conviction for felony-firearm results in automatic imprisonment, which may not be suspended. The guilty person is also ineligible for probation or parole during the mandatory prison sentence. The felony-firearm prison term must be served before and consecutively to any term of imprisonment for the underlying felony. A second conviction of felony-firearm requires a flat five year sentence, while a third or subsequent conviction requires a flat ten year sentence. M.C.L. § 750.227b(1)-(3).

The aiding and abetting statute, M.C.L. § 767.39, states:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

The purpose of the aiding and abetting statute is "to abolish the common law distinction between accessories before the fact and principals so that one who counsels, aids or abets in the commission of an offense may be tried and convicted as if he had directly committed the offense." People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974), citing People v. Gould, 384 Mich. 71, 77, 179 N.W.2d 617 (1970). The phrase "aids or abets" is used to describe any type of assistance given to the perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the commission of that crime. Palmer, p. 378, 220 N.W.2d 393.

Aiding and abetting means to assist the perpetrator of a crime. An aider and abettor is one who is present at the crime scene and by word or deed gives active encouragement to the perpetrator of the crime, or by his conduct makes clear that he is ready to assist the perpetrator if such assistance is needed. [21 Am. Jur. 2d, Criminal Law, § 206, p. 273.]

Each defendant argues that his conviction(s) for felony-firearm on an aiding and abetting theory should be reversed because he did not assist in either obtaining or retaining possession of the firearm, citing this Court's decision in Johnson.

In Johnson, this Court resolved a division in the Court of Appeals over whether a person who does not actually possess a firearm could be convicted under the felony-firearm statute as an aider and abettor.¹² Johnson consisted of two separate cases in which each defendant was convicted of felony-firearm on a theory of aiding and abetting. In the first case, defendant Johnson and an accomplice robbed a bar in Detroit. The accomplice held the gun while Johnson took money from the cash register. They then split the money after leaving the bar. In the second case, defendant Tavolacci brought the victim, an undercover narcotics officer, to a pool hall under the pretense of making a drug deal. The defendant's two accomplices then took the officer to a remote field and attempted to shoot him. The defendant stayed at the pool hall while the attempted murder took place. Johnson resolved the division at ...