People v. Swint

• Decision Date: 12 September 1997
• Docket Number: Docket Nos. 191572,192493
• Citation: 572 N.W.2d 666,225 Mich.App. 353
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Edward SWINT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 666

572 N.W.2d 666

225 Mich.App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Edward SWINT, Defendant-Appellant.

Docket Nos. 191572, 192493.

Court of Appeals of Michigan.

Submitted April 3, 1997, at Detroit.

Decided Sept. 12, 1997, at 9:10 a.m.

Released for Publication Dec. 23, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for People.

State Appellate Defender by Ronald E. Steinberg, for Defendant-Appellant on appeal.

Before MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.

MARKEY, Presiding Judge.

Following a jury trial, defendant was convicted on November 14, 1995, of being a felon in possession of a firearm, M.C.L. § 750.224f; M.S.A. § 28.421(6). On November 29, 1995, the trial court held a hearing and determined that defendant was guilty of a probation violation based on defendant's failure to report to his probation officer. At a subsequent sentencing hearing, the trial court found that defendant was a fourth-offense habitual offender and sentenced him to three to ten years' imprisonment for the felon in possession/habitual offender conviction. The court also sentenced defendant to a concurrent term of thirty-two to forty-eight months' imprisonment for the probation violation. In Docket No. 192493, defendant appeals as of right the conviction of felon in possession of a firearm. In Docket No. 191572, defendant appeals as of right the conviction of probation violation. We affirm.

I

On May 20, 1995, while on probation for felonious assault, defendant allegedly handled a rifle while at his home and in the presence of his infant daughter, Elizabeth, and the infant's mother, Denise Simpson. Simpson testified at trial that she and defendant argued that day, that he was suicidal, that he had a rifle in his hands, which he would cradle in his arms, and that "he'd hold it up to his head and wanted to kill himself. He said he'd kill himself if I left." Defendant would not permit Simpson to leave with the child, so Simpson left alone and contacted her mother. Both Simpson and her mother returned to defendant's house. Simpson's mother also testified that defendant threatened to shoot her unless she left his property and would shoot any police officers who came to the house. Both Simpson and her mother left again without the child.

Because she feared for the safety of both her child and defendant, Simpson then contacted the sheriff's department, whose deputies interviewed both women and confirmed defendant's criminal record. The sheriff's deputies surrounded defendant's house, announced their presence to defendant, and instructed him to come out the front door of the house with his hands in the air. Testimony revealed that when defendant did not respond, the sheriff's deputies used sirens to wake defendant, in case he was sleeping. Deputy James West, who had been positioned behind defendant's house, testified that he saw not only the back door of the residence open but also defendant tossing a long-barreled gun into the back yard. "[A] long gun came out the back door and then [defendant] came out the back of the residence, out the back door." Deputy West radioed the other deputies that "[h]e's coming out, he's got a gun." Deputy West and another deputy arrested defendant as he apparently attempted to "[go] for the gun." The gun, a .22 caliber rifle, was found stuck in the ground.

Defendant testified at trial. He denied threatening Simpson but admitted that he begged her not to leave and threatened that if he had to live alone, he would kill himself. He also denied ever holding the rifle in his hands or cradling it in his arms. Defendant also admitted that the rifle was in the kitchen, in plain view, leaning against a wall. He did not know how long the gun had been there because the house was damaged by fire, and he had not lived there for several days. Defendant testified that the woman with whom he previously lived had two sons who came to defendant's house to hunt and to shoot guns, and the rifle at issue belonged to one of them. Luke Cassel, one of the boys defendant referred to, identified the rifle as one that his father had given him for Christmas. He stated that he had taken the rifle to defendant's house in May 1995 to hunt birds, that he had left the gun in defendant's house without defendant's permission, and that he had forgotten about it. Defendant also denied threatening to shoot Simpson's mother or the police if they came to the house but admitted telling her that he would "rather shoot her than look at her."

Defendant further testified that when he was awakened by sirens outside his house and realized that the police were outside, he picked up the gun because he knew that, as a convicted felon, he was not supposed to be around a gun. So, he grabbed the gun and threw it out the back door as far as he could. He denied that he intended to jump out and grab the gun.

II

For the first time in Michigan, we have been asked to determine whether M.C.L. § 750.224f; M.S.A. § 28.421(6) ¹ violates Const. 1963, art. 1, § 6, which states, "Every person has a right to keep and bear arms for the defense of himself and the state." ² We find that it does not.

A

Unfortunately, federal cases interpreting the Second Amendment of the United States Constitution provide no guidance to us because the text of the Second Amendment, which states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," differs significantly from the text of art. 1, § 6. Benjamin v. Bailey, 234 Conn. 455, 467, 662 A.2d 1226 (1995). Moreover, the Second Amendment is not applicable to the states through the Fourteenth Amendment. Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 875, 38 L.Ed. 812 (1894). Several states, including Connecticut (art. I, § 15), Alabama (art. I, § 26), Indiana (art. I, § 32), Ohio (art. I, § 4), Oregon (art. I, § 27), and Wyoming (art. 1, § 24), have constitutional right-to-bear-arms provisions virtually indistinguishable from the language in Const. 1963, art. 1, § 6. Other states, including New Hampshire (part I, art. 2-a) and North Dakota (art. I, § 1), define the list of protected uses of firearms more expansively than Michigan by authorizing the right to keep and bear arms for purposes including "defense of self, family home and others, lawful common defense, hunting, and recreational use." While some states chose to mirror the language of the Second Amendment, e.g., North Carolina (art. I, § 30), still others make explicit statements in their constitutions that the right to keep and bear arms is subject to state regulation, i.e., Louisiana Constitution, art. I, § 11 ("this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person"); Colorado Constitution, art. II, § 13 (similar to Louisiana).

In determining whether a Connecticut statute banning assault rifles violated that state's constitutional right to bear arms, the Connecticut Supreme Court set forth a two-tiered method of inquiry that we find compelling in analyzing the issue presented on appeal. ³ Benjamin, supra at 463, 662 A.2d 1226. First, before we determine what level of scrutiny to apply where a statute is challenged as unconstitutional, we must determine whether the case at bar involves an infringement on a constitutionally protected interest. Id. "To do so, we must define the boundaries of the right invoked. Only if we were to conclude that the statute infringes on an interest in bearing arms that is protected by the state constitution would we have to decide what level of justification the state must proffer to support such an infringement and whether the state has satisfied that burden in this case." Id.

The Benjamin court went on to review the specific language of the Connecticut Constitution, which provides that "every citizen has a right to bear arms in defense of himself and the state." Id., citing Conn. Const., art. I, § 15. We find insightful the court's analysis of this language:

The limiting language of the provision [i.e., "in defense of himself and the state"] may be understood to establish two related principles. First, it demonstrates that the bearing of arms is not valued in and of itself, but only as a means to particular ends. Second, it clearly indicates what purposes are not accorded explicit constitutional protection: the bearing of arms for any purpose other than defense of one's self or the state.

In this connection, the textual link between the right to bear arms and its enunciated purpose itself suggests a limitation on the nature and scope of the constitutional right. The common law principle permitting one to use deadly force in self-defense has long been restricted by the general rule of reason.... Thus, the constitutional text embodies a rule of reason, rather than an absolute. [Id. at 464-465, 662 A.2d 1226 (emphasis added).]

We agree with the Benjamin court's interpretation of the constitutional right to bear arms and we find it applicable to Const. 1963, art. 1, § 6. Indeed, defendant does not claim that he is being deprived of his right to defend himself or the state. He merely challenges the felon-in-possession statute because it denies him, for a limited time, the right to bear arms for any purpose, thereby valuing the bearing of arms in and of itself. Indeed, we agree that the bearing of arms for any purpose other than defense of self or state is not accorded explicit constitutional protection. Whether defendant can successfully allege a constitutional infringement on his right to defend himself with arms is an open question under Benjamin however.

We also note that while art. 1, § 6 ensures a Michigan citizen's right to keep and bear "arms," that term is not defined. Black's Law Dictionary ...