Summary
In People v Gibson, 94 Mich. App. 172, 176; 288 N.W.2d 366 (1979), this Court held that whether the gun was operable or not does not affect a conviction for armed robbery.
Summary of this case from People v. BerberichOpinion
Docket No. 78-4055.
Decided December 5, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.
Robert A. Rosenberg, for defendant on appeal.
Before: BASHARA, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant moved for a new trial at sentencing on May 17, 1978. That motion was denied. Defendant was sentenced at that time to a prison term of 8 to 20 years on the armed robbery count and to the mandatory 2 years on the felony-firearm count. Defendant appeals by right.
Defendant's conviction arose out of the robbery of the Polka Dot Party Store in Wyandotte, Michigan, by two men. Defendant was identified at trial as being the robber without a gun.
Defendant argues that the felony-firearm statute is unconstitutional under the double jeopardy prohibition and under Michigan Const 1963, art 4, § 25, which prohibits amendment of statutes by implication.
These constitutional arguments were recently settled by the Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 391; 280 N.W.2d 793 (1979). The statute was found to be constitutional.
Defendant further argues that one not in actual possession of a firearm cannot be convicted under the felony-firearm statute of aiding and abetting a person in actual possession of a firearm who violates the felony-firearm statute. This Court has been divided on this issue. Cf., People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), and People v Perry, 92 Mich. App. 732; 285 N.W.2d 217 (1979).
"It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.
"The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.
"The aider and abettor statute 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.'
"There is no language in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979). Further, the aider and abettor statute has been previously applied to possessory crimes. People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971)." People v Wimbush, 94 Mich. App. 152; 288 N.W.2d 375 (1979).
Angelo Sandusky, defendant's purported partner in the robbery, mentioned at trial that the gun used to perpetrate the armed robbery was not operable. Defendant did not pursue or challenge this evidence at trial. At the time of sentencing defendant moved for a new trial on the grounds that the prosecution had failed to prove, as an element of its case, that the firearm was operable. The motion was denied and defendant claims error.
Initially it should be noted that the armed robbery statute does not require proof that a gun is operable. It is the victim's reasonable belief that the defendant is armed that is sufficient to sustain the conviction. Whether the gun was operable or not, therefore, would not affect this defendant's armed robbery conviction.
The felony-firearm statute, MCL 750.227b; MSA 28.424(2), provides:
"Sec. 227b. (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. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years."
The definition of a firearm is contained in MCL 8.3t; MSA 2.212(20):
"Sec. 3t. The word `firearm', except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB's not exceeding .177 calibre by means of spring, gas or air."
The primary and fundamental rule of statutory construction is to ascertain and give effect to the purpose and intention of the Legislature. Intent must be inferred from the language used, but it is not the meaning of the particular words in the abstract only or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied. White v Ann Arbor, 406 Mich. 554, 562; 281 N.W.2d 283 (1979). See also People v Gilbert, 88 Mich. App. 764, 768; 279 N.W.2d 546 (1979).
The Supreme Court has found that the legislative purpose behind the felony-firearm statute is to deter the use of firearms due to their inherent dangerousness. Wayne County Prosecutor, supra. Therefore, the felony-firearm statute requires a construction in harmony with that finding, MCL 8.3; MSA 2.212.
It is our opinion that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. A contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur.
Defendant also alleges that he was denied effective assistance of counsel because defense counsel failed to subpoena and present testimony of attorneys present at the various pre-trial lineups and photo showups. Defendant does not not argue that the lineups were unfair.
Testimony concerning the various witnesses' ability or inability to identify the defendant was presented at trial. Defendant does not now specify what testimony the attorneys could have presented. The decision not to present specific witnesses relates to trial strategy and as such will not support a claim of ineffective assistance of counsel. People v Roberson, 90 Mich. App. 196, 204; 282 N.W.2d 280 (1979).
Defendant also challenges the sufficiency of the evidence regarding his identification as one of the robbers because a witness to the robbery who had identified the defendant at trial had previously identified another person as being the robber instead of defendant. However, the record reflects that Angelo Sandusky, who had been convicted of the robbery in question on the day prior to defendant's trial, testified that defendant had been his accomplice.
In reviewing a claim of insufficient evidence the evidence must be viewed in the light most favorable to the prosecutor. People v McCracken, 88 Mich. App. 286, 294; 276 N.W.2d 609 (1979). In a criminal prosecution, all that is required to support a conviction is that the prosecutor introduce some competent direct or circumstantial evidence as to each essential element of the crime charged so as to support the jury's finding of guilt beyond a reasonable doubt. It is for the jury, not the court, to weigh the evidence. People v Clark, 88 Mich. App. 88, 90-91; 276 N.W.2d 527 (1979).
Affirmed.