People v. Sturgis

• Decision Date: 20 January 1984
• Docket Number: Docket No. 64319
• Citation: 130 Mich.App. 54,343 N.W.2d 230
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Allen STURGIS, Defendant-Appellant. 130 Mich.App. 54, 343 N.W.2d 230
• Court: Court of Appeal of Michigan — District of US

Page 230

343 N.W.2d 230

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Allen STURGIS, Defendant-Appellant.

Docket No. 64319.

130 Mich.App. 54, 343 N.W.2d 230

Court of Appeals of Michigan.

Submitted June 15, 1983.

Decided Oct. 25, 1983.

Released for Publication Jan. 20, 1984.

[130 MICHAPP 58] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty. and Judith A. Baxter, Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant-appellant.

Before R.B. BURNS, P.J., and MacKENZIE and BANKS, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his jury conviction of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, possession of a firearm during [130 MICHAPP 59] the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. The sole issue raised on appeal is whether defendant's conviction of these three offenses violated his right against double jeopardy. We find no double jeopardy violation.

The prosecution's main witness was a security guard at a lounge. He testified that he learned that the defendant had a gun, he called the police, and then approached the defendant, who was in front of the lounge. The guard stated that he told the defendant to keep his hands where they could be seen, and that defendant then lifted his jacket and pulled out a gun. The guard then ducked behind a nearby car, the defendant ran across the street, and the guard gave chase. The guard testified that defendant turned around and fired one shot at him. Defendant, in his testimony, admitted that he was carrying a concealed gun without a license when he went to the lounge. However, defendant stated that when the security guard approached him he told him he wasn't going to do anything and began to pull out the gun from under his jacket only with the intention of giving the gun to the guard. Defendant also testified that he ran off when the guard ducked behind the car, admitted that he fired his gun into the air, but denied having fired at the security guard.

We first note that the felony-firearm statute expressly provides as follows:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years." M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

Sections 227 and 227a referred to in the above-[130 MICHAPP 60] quoted language are the statutes prohibiting the carrying of concealed weapons and unlawful possession of pistols, respectively. We interpret the above-quoted provision to mean not that one may never be convicted of both felony-firearm and carrying a concealed weapon, but rather, only that the offense of carrying a concealed weapon may not be the underlying felony to support a felony-firearm conviction. People v. London Williams, 117 Mich.App. 262, 268, 323 N.W.2d 663 (1982), but see People v. Chauncey Carter, 96 Mich.App. 694, 293 N.W.2d 681 (1980), lv. den. 410 Mich. 872 (1980); People v. Shelton, 93 Mich.App. 782, 786, 286 N.W.2d 922 (1979) (dissenting opinion of N.J. Kaufman, J.). In the present case, the trial court's instructions clearly conveyed to the jury that only the assault offense charged, and not the carrying a concealed weapon charge, could supply the underlying felony necessary to convict defendant of felony-firearm. Thus, defendant's conviction of felony-firearm was based on the underlying felony of felonious assault, not carrying a concealed weapon, and was, therefore, consonant with the express terms of the statute.

Turning now to defendant's constitutional double jeopardy claim, defendant's conviction of both felony-firearm, with felonious assault as the underlying felony, and of felonious assault did not violate his federal or state constitutional right to be protected against double jeopardy since the felony-firearm statute reflects a clear legislative intent to impose multiple punishment for a single wrongful act. Wayne County Prosecutor v. Recorder's Court Judge (People v. Alexander), 406 Mich. 374, 280 N.W.2d 793 (1979); People v. Owens, 108 Mich.App. 600, 606, 310 N.W.2d 819 (1981), lv. den. 412 Mich. 866 (1981); Wayne County Prosecutor v. Recorder's [130 MICHAPP 61] Court Judge (People v. Meeks), 92 Mich.App. 433, 441, 285 N.W.2d 318 (1979), lv. den. 408 Mich. 905 (1980). Consequently, the only remaining question is whether, given his lawful conviction of felonious assault and felony-firearm, defendant's additional conviction of carrying a concealed weapon violated his right to be protected against double jeopardy.

The double jeopardy analysis for purposes of the federal constitutional guarantee against double jeopardy, U.S. Const., Am. V, is whether there is a clear indication of legislative intent to impose multiple punishment for the same offense. Missouri v. Hunter, --- U.S. ----, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). If so, there is no double jeopardy violation and it is not necessary to apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Missouri v. Hunter, supra. The Blockburger test is not a constitutional test, but rather, a rule of statutory construction to be applied where there is no clear legislative intent to authorize multiple punishment. Missouri v. Hunter, supra. The assumption underlying the Blockburger test is that a legislature does not intend to impose multiple punishment for the same offense, and the Blockburger test is employed to determine whether the criminal statutes under which a defendant is convicted proscribe the same offense or different offenses. Missouri v. Hunter, supra. Under the Blockburger test, if each statutory crime requires proof of a fact which the other does not, then they do not proscribe the same offense, but rather, separate offenses for which multiple punishment may be imposed. Blockburger, supra. Although the Blockburger test uses the phrase "proof of a fact", actually the test focuses on the statutory elements of the crimes involved, and not the particular facts [130 MICHAPP 62] adduced at trial. People v. Alvin Carter, 415 Mich. 558, 578, 330 N.W.2d 314 (1982).

The double jeopardy clause of our state constitution, Const.1963, art. 1, Sec. 15, has been construed to provide broader double jeopardy protection. People v. Alvin Carter, supra, pp. 582-583, 330 N.W.2d 314. For purposes of our state guarantee against double jeopardy, it is necessary to examine not only whether an offense is a necessarily lesser included offense of the other, but also whether it is a cognate lesser included offense of the other in the sense that they share common statutory purposes and common elements related to those purposes. People v. Alvin Carter, supra, pp. 583-584, 330 N.W.2d 314. In addition, a "factual proofs" analysis must be employed for state constitutional purposes; this analysis focuses on the particular factual proofs adduced at trial rather than the theoretical elements of the offenses involved. People v. Alvin Carter, supra, pp. 584-588, 330 N.W.2d 314. Thus, even if one offense is not by definition a necessarily lesser included offense of the other, if based on the facts of the particular case one of the offenses is a lesser included offense of the other, conviction of both offenses is prohibited. People v. Alvin Carter, supra, pp. 583-584, 330 N.W.2d 314; People v. Jankowski, 408 Mich. 79, 91, 289 N.W.2d 674 (1980). In other words, where, based on the facts of the particular case, the jury in finding the defendant guilty of one offense must necessarily find him guilty of the other, the defendant may not be convicted of both offenses; in such a situation, the two offenses blend together into a single wrongful act for which the defendant may not be multiply punished. People v. Stewart (On Rehearing), 400 Mich. 540, 548-549, 256 N.W.2d 31 (1977). For example, one may not be convicted of possession and the delivery or sale of the same heroin where the possession is merely that which [130 MICHAPP 63] is necessarily incident to the sale or delivery. People v. Stewart (On Rehearing), supra; People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976). Similarly, one may not be convicted of armed robbery and larceny where both offenses arise from a single taking. People v. Jankowski, supra. However, if there is a clear manifestation of legislative intent to authorize multiple punishment for a single wrongful act, the state's guarantee against double jeopardy is not violated. Wayne County Prosecutor, supra, 406 Mich. 402, 280 N.W.2d 793.

There is no clear legislative intent authorizing defendant's conviction for carrying a concealed weapon even if it constitutes multiple punishment for a single act since the felony-firearm statute, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), expressly prohibits use of a carrying a concealed weapon conviction to act as the underlying felony to support a felony-firearm conviction and neither the felonious assault statute, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, nor the carrying a concealed weapon statute, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, reflect any such legislative intent. Consequently, we must proceed to apply the Blockburger test and the state constitutional analysis.

Under the Blockburger test, defendant's additional conviction of carrying a concealed weapon did not violate his right against double jeopardy. Comparing the elements of carrying a concealed weapon with those of felony-firearm, the former requires proof of concealment while the latter does not, and the latter requires proof of the commission or attempted commission of another felony which the former...