Opinion
No. 104101.
March 29, 1996.
Leave to Appeal Denied March 29, 1996:
Leave to cross appeal is also denied. Reported below: 212 Mich. App. 607.
I dissent from the portion of the order denying leave to appeal the reversal of defendant's conviction for possession of a firearm during the commission of a felony. MCL 750.227b; MSA 28.424(2).
I would grant leave to appeal. The Court of Appeals in a published opinion reversed the felony-firearm conviction on the basis that there was insufficient evidence to convict defendant of "possession" of a firearm during the commission of a felony. The Court of Appeals defined possession for purposes of the statute as ready accessibility and held that where the search of a home occupied by defendant produced eleven containers of cocaine (approximately 417 grams) and a loaded gun in a cabinet next to a closet containing cocaine, defendant could not be convicted of felony-firearm incident to possession or possession with intent to deliver cocaine, because he was not at the house at the time of the search.
The issue is whether possession of a firearm incident to a continuing offense such as possession of a controlled substance is to be determined by reference to the time of arrest or whether it is a question of fact whether a defendant possessed both the drugs and the firearm at any relevant time. See People v Williams (After Remand), 198 Mich. App. 537 (1993).
If the statute is interpreted as protecting only the situation where a defendant is present at the time of arrest, the Legislature's intent to discourage possession of a firearm during the commission of a felony is clearly implicated. The statute would appear to protect against the risk of injury from a firearm to anyone and at any time that a firearm is possessed while the felony is being committed. To read the statute more narrowly is to suggest that a defendant charged with murder could not also be charged with felony-firearm if he was absent from his home when the weapon was discovered. The anomaly is clear. The issue is important and recurring in criminal jurisprudence. I would grant leave to appeal.
I join in the dissent of Justice BOYLE.
I would grant the prosecutor's application for leave to appeal as cross-appellant.
I would grant the defendant-appellant's application for leave to appeal.