People v. Reed, Docket No. 59041
| Decision Date | 16 February 1983 |
| Docket Number | Docket No. 59041 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Reginald REED, Defendant-Appellee. 121 Mich.App. 575, 329 N.W.2d 758 |
| Court | Court of Appeal of Michigan — District of US |
[121 MICHAPP 576] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Andrea L. Solak, Asst. Pros. Atty., for the People.
Gerald S. Surowiec, Detroit, for defendant-appellee on appeal.
Before CYNAR, P.J., and KAUFMAN and MAHINSKE, * JJ.
Defendant was charged with two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and with one count of felony firearm. M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant pled guilty to the crimes charged. Defendant was sentenced to a term of one to ten years on an armed robbery count plus the mandatory two-year term on the felony-firearm count. Defendant appealed as of right.
A panel of the Court of Appeals found that the record did not show that defendant assisted his accomplice in obtaining or retaining possession of the firearm which his accomplice possessed during the commission of the felony. The Court of Appeals remanded defendant's case for a hearing under the authority of People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981). People v. Reed (Docket No. 53733, decided May 28, 1981 [unreported] ). The trial court conducted a hearing. Upon making a finding of insufficient evidence on the element of assisting his accomplice in obtaining or retaining possession of the firearm used by the accomplice, the court vacated defendant's conviction under the [121 MICHAPP 577] felony-firearm count. The prosecutor filed a claim of appeal and appeals as of right.
Prior to accepting defendant's guilty plea on July 11, 1980, the trial court questioned defendant to determine whether defendant was guilty of the crime charged. When the court asked defendant whether he was armed, defendant replied that he was armed with a stick and that his accomplice had a revolver.
The Johnson remand hearing was held July 7, 1981. The prosecutor presented William Miller and Torri Whitehead as witnesses, both of whom had testified at the preliminary examination. Whitehead testified that defendant possessed what appeared to her to be a pipe. Miller testified that defendant possessed what appeared to be a shotgun, but he was not sure. The prosecutor did not present evidence that defendant assisted his accomplice in obtaining or retaining possession of the firearm used by the accomplice. Defendant did not testify at the evidentiary hearing. Miller and Whitehead testified consistently with their testimony at the preliminary examination.
The trial court concluded that it was limited by the Court of Appeals opinion to considering evidence that defendant assisted his accomplice in obtaining or retaining possession of the firearm used by the accomplice. The court found that it was without jurisdiction to redetermine the nature of the instrument possessed by defendant.
The prosecutor argues that the trial court erroneously dismissed the felony-firearm count when, under a Johnson remand, the prosecution presented evidence from which actual possession could be inferred to support a guilty plea.
In a felony-firearm prosecution, the possession of a firearm is a crime distinct from the underlying [121 MICHAPP 578] felony. The aiding and abetting charge must, therefore, be established in each to support the conviction for each. Johnson, supra, 411 Mich. p. 54, 303 N.W.2d 442.
Johnson, supra, 411 Mich. pp. 54-55, 303 N.W.2d 442.
A panel of this Court instructed the trial court to, upon remand, give the prosecutor an opportunity to establish the missing element pursuant to the dictates of Johnson. People v....
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