People v. Wilder
| Decision Date | 28 October 2014 |
| Docket Number | Docket No. 316220. |
| Citation | 861 N.W.2d 645,307 Mich.App. 546 |
| Parties | PEOPLE v. WILDER. |
| Court | Court of Appeal of Michigan — District of US |
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Karen A. Bahrman, Prosecuting Attorney, for the people.
Casselman & Henderson, PC, Marquette (by Thomas P. Casselman ), for defendant.
Before: MURPHY, C.J., and SAWYER and M.J. KELLY, JJ.
We granted defendant's delayed application for leave to appeal her jury-trial conviction of possession of a firearm while intoxicated (PFWI), MCL 750.237. The jury acquitted her of charges of felonious assault, MCL 750. 82, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and domestic violence, MCL 750.81(2). Defendant was sentenced to serve nine months' probation and 60 days in jail. At trial, defendant herself testified that she had been intoxicated and that she had briefly possessed a firearm. According to defendant, however, the possession was solely for the purpose of moving the gun for personal safety or precautionary reasons, so that it would not be readily accessible to her domestic partner who was angry at defendant, was familiar with the gun's location, and was also intoxicated. This appeal poses the question whether the state and federal constitutional right to keep and bear arms, U.S. Const., Am. II ; Const. 1963, art. 1, § 6,1 precluded defendant's prosecution and conviction under MCL 750.237, or minimally requires that we remand for a new trial, in this as-applied challenge of the statute. We affirm.
This case arises out of a domestic dispute. On July 2, 2011, at about 5:00 a.m., defendant, a retired deputy sheriff, called 911 to report a possible home invasion. A short time later, defendant called the police and stated that a response was no longer necessary. The police nevertheless proceeded to defendant's home to investigate. Two responding state troopers testified that upon their arrival at the home, they found both defendant and her domestic partner, the complainant, to be in an intoxicated state, with defendant being the more intoxicated of the pair. The complainant told the troopers that defendant had threatened and assaulted her. At the scene, the complainant took a preliminary Breathalyzer test (PBT), which reflected a blood alcohol level of 0.13%. Defendant refused to take a PBT at the scene; however, she did ultimately submit to a PBT about three hours later at the county jail, which revealed a blood alcohol level of 0.167%.
According to the complainant, defendant was upset over various matters and somewhat angry before defendant retired to the couple's shared bedroom in the early-morning hours of July 2, 2011. The complainant decided to sleep on the living-room couch. The complainant testified that within 10 to 15 minutes, defendant emerged from the bedroom and began hitting and strangling the complainant, yelling for the complainant to get out of the house. The complainant broke free from defendant's grasp, grabbed a sweatshirt, and then ran to the front door. The complainant indicated at one point during her testimony that before she left the home, the complainant turned around and was confronted by defendant pointing a handgun at the complainant's chest from a distance of about six inches. Later in her testimony, the complainant explained that the complainant was already outside the home when defendant first brandished the gun, aiming it directly at the complainant through a porch screen window or door. The complainant testified that defendant orally threatened to kill her. While the complainant was outside, defendant remained in the home, and the complainant pleaded with defendant for an opportunity to retrieve some pants and her medicine, but defendant refused her request. From outside, the complainant could hear defendant call 911 and report that an intruder was attempting to enter the home. After the police subsequently arrived, the complainant was allowed to retrieve some items from the bedroom. In her bedroom closet, the complainant saw the gun that defendant had earlier brandished, and she gave it to the troopers.
Defendant took the stand in her own defense and presented a different account of the events than that elicited from the complainant. Defendant testified that she had been drinking alcohol throughout the day on July 1, 2011, and that when the complainant arrived home from work shortly before midnight on July 1, the two drank several beers. Defendant acknowledged that she was intoxicated at the time of the charged offenses, but noted that the complainant was likewise intoxicated. Defendant testified that in the early morning hours of July 2, as the two were consuming alcohol, they discussed various matters, including the possibility of a separation. Defendant claimed that the complainant was angry and that the major point of contention between the two stemmed from the complainant's incessant requests or demands for sex, which defendant had been rejecting for some time. Defendant also recounted earlier episodes in the relationship with the complainant in which the complainant, while angry, had smashed defendant's fishing rod against a wall and threw defendant's laptop computer to the floor. Defendant stated that, because of the complainant's inebriated state, her anger, and her prior acts of property destruction, while the complainant was in the bathroom, defendant had moved a handgun she owned from the bottom shelf of her nightstand next to her bed to the complainant's personal closet in the bedroom, even though defendant had her own closet in the room. According to defendant, the complainant was fully aware that the gun was kept on the lower shelf of the nightstand. And defendant explained that she moved the gun because she was fearful that the complainant might use it against her.
When asked on cross-examination why defendant had placed the gun in the complainant's own closet considering the nature of defendant's fear, defendant claimed that she had had to move quickly and the complainant's closet was the nearest to the nightstand. Defendant testified that she asked the complainant to leave, but the complainant had retorted that defendant could not make her leave. Defendant subsequently went to sleep, but was later awakened and frightened by the sound of someone stirring outside of her home. The person outside demanded to be let in, and defendant, not recognizing the voice at first and not being able to see the individual in the darkness, called 911, because she believed that a home invasion was occurring. Shortly thereafter, defendant discovered that it was the complainant outside of the home, and defendant let her inside. Defendant testified that she then called the police to explain that a response was no longer necessary, but the police nevertheless responded. Defendant denied threatening or physically assaulting the complainant, and she denied brandishing the handgun and pointing it at the complainant.
Defendant was charged with felonious assault, MCL 750.82, felony-firearm, MCL 750.227b, domestic violence, MCL 750.81(2), and PFWI pursuant to MCL 750.237, which provides, in relevant part, as follows:
Before trial, defendant moved to dismiss the PFWI charge, arguing that MCL 750.237 was unconstitutional as applied to the circumstances of this case, because it infringed her Second Amendment right, as well as her right under Const. 1963, art. 1, § 6 to keep and bear arms, especially within the confines of her home. Defendant did not assert that MCL 750.237 was facially unconstitutional. The trial court denied the motion, ruling that “given the broad powers of the [L]egislature to pass legislation for the general health, safety and welfare of the public, and combined with the minimalistic nature of the penalty associated therewith, a 90–day misdemeanor penalty, the issue does not raise itself to the level of constitutional scrutiny, as suggested by ... [d]efendant.”
Following the presentation of the prosecution's proofs at trial, defendant moved for a directed verdict on the PFWI charge for the constitutional reasons previously argued, and the court denied the motion, standing by its original ruling. The jury was instructed as follows regarding the charge:
The People to prove this charge must first prove as follows, that the defendant carried or possessed or used or discharged a firearm. Secondly, that the defendant was under the influence of alcoholic liquor, or that her ability to use a firearm was visibly impaired because of the consumption of alcoholic liquor ... at the time she carried, or possessed, or used or discharged the firearm.
At the end of this instruction, the trial court stated, “And an objection to this instruction is noted for the record, Mr. Casselman [defense counsel].”
Defendant was acquitted of all charges except the charge of PFWI, for which defendant was found guilty by the jury. Following trial, defendant filed a motion for judgment notwithstanding the verdict, which was denied, and subsequently she filed a motion for a new trial or a directed verdict of acquittal, which was also denied. The primary basis for these motions was the alleged infringement of defendant's state and federal constitutional right to keep and bear arms, along with associated or interwoven claims of instructional error. In the motion for a new trial or a directed verdict of acquittal, defendant cited and relied on a recently issued opinion from this Court in People v. Deroche, 299 Mich.App. 301, 829 N.W.2d 891 (2013). The panel in Deroche held that the Second...
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