People v. Tavolacci, Docket No. 78-1177

• Decision Date: 06 February 1979
• Docket Number: Docket No. 78-1177
• Citation: 88 Mich.App. 470,276 N.W.2d 919
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy R. TAVOLACCI, Defendant-Appellant. 88 Mich.App. 470, 276 N.W.2d 919
• Court: Court of Appeal of Michigan — District of US

Page 919

276 N.W.2d 919

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy R. TAVOLACCI, Defendant-Appellant.

Docket No. 78-1177.

88 Mich.App. 470, 276 N.W.2d 919

Court of Appeals of Michigan.

Feb. 6, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 471] J. David Reck, Howell, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank R. DelVero, Pros. Atty., Thomas C. Nelson, Asst. Atty. Gen., Pros. Atty. App. Service, for plaintiff-appellee.

[88 MICHAPP 472] Before CYNAR, P. J., and R. B. BURNS and BREIGHNER, ^* JJ.

CYNAR, Presiding Judge.

Defendant appeals as of right from guilty pleas entered on November 22, 1977. On that date, pursuant to a plea bargain, defendant pled guilty to assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279 and possession of a firearm during the commission or attempt to commit a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). On December 27, 1977, he was sentenced to consecutive terms of 2 years imprisonment for the felony-firearm charge and 4 to 10 years for the assault.

We find no merit to defendant's argument that conviction of the two crimes constitutes double jeopardy. See People v. Hughes, 85 Mich.App. 674, 272 N.W.2d 567 (1978), and People v. Dillon, 87 Mich.App. 579, 275 N.W.2d 28 (1978).

Similarly, we reject defendant's argument that the felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2) involves amendment without republication, in violation of Const.1963, art. 4 § 25. See People v. Johnson, 85 Mich.App. 654, 272 N.W.2d 605 (1978).

Defendant's final contention is that there is an insufficient factual basis to support his guilty plea to possession of a firearm during the course of a felony. The prosecutor contends that the facts provided by defendant at the plea proceeding [88 MICHAPP 473] provide an adequate basis for a conviction as an aider and abettor.

At the plea proceeding defendant testified that he was a party to a plan to kill an undercover narcotics agent. As part of this plan he told the undercover agent of a drug buy that was arranged for him. The agent then appeared pursuant to defendant's instructions and was introduced to two other persons who were supposedly involved in the drug sale. In reality these individuals had armed themselves with a shotgun which they intended to use to kill the agent. Defendant testified that he knew a "weapon" was going to be used, but didn't know it would be a shotgun. The agent left in a car with the other two individuals. Shortly thereafter, an unsuccessful attempt upon the agent's life was made. Defendant was not present at the time of this assault, nor was he ever in actual possession of the firearm.

Defendant initially contends that a conviction under M.C.L. § 750.227b; M.S.A. § 28.424(2) is limited to the person who actually possesses the firearm. Such a view has been accepted, over a dissent, by one panel of this Court. See People v. Johnson, supra.

However, we believe that the felony-firearm statute should not be interpreted in such a limited manner. M.C.L. § 767.39; M.S.A. § 28.979 provides that:

"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."

We see no reasons why one not in possession of a firearm cannot be punished as an aider and abettor.[88 MICHAPP 474] The purpose of the aider and abettor statute is to punish those who had counseled, aided or abetted in the commission of an offense in the same manner as if they had actually committed the offense. People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974). Such a purpose is furthered by applying the statute to one who aides and abets the possession of a firearm in the course of a felony.

We also note that the aider and abettor statute is not limited in any way. It applies to all "offenses", including misdemeanors. People v.Hoaglin, 262 Mich. 162, 172, 247 N.W. 141 (1933). It has also been applied to a possessory crime, similar to that present here. In People v. Doemer, 35 Mich.App. 149, 151-152, 192 N.W.2d 330 (1971) the Court held that one could aid and abet the possession of marijuana. See also 47 A.L.R.3d 1239.

Nor do we see anything in the language of M.C.L. § 750.227b; M.S.A. § 28.424(2) that indicates a legislative intent to exclude the possibility of an aider and abettor to the crime described therein. The language of the statute applies to "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 * * * ". There are innumerable imaginable situations where one could act in such a way so as to aid and abet such possession. If the Legislature had wished to exclude such aiders and abettors from the punishment set forth in the statute, it could have done so in a manner similar to that which it used to exclude two felonies from the scope of the statute.

Furthermore, punishing aiders and abettors of the crime of "felony-firearm" is consistent with and would help to further the felony-firearm statute's[88 MICHAPP 475] purpose of deterring the use of handguns during the course of felonies. See People v. Elowe, 85 Mich.App. 744, 272 N.W.2d 596 (1978). Punishment of those who aid or abet this crime serves as a deterrence to such aiding and abetting. Consequently less persons would be likely to act as aiders and abettors. This reduction serves as additional deterrence upon the commission of the crime as well, as there are likely to be persons who are unable or unwilling to commit the offense of "felony-firearm" without some assistance.

In...