Opinion
Docket No. 55014.
Decided April 8, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James A. Cherry, Assistant Prosecuting Attorney, for the people.
David S. Anderson, for defendant on appeal.
Following a jury trial, defendant was convicted of aiding and abetting an 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). She now appeals by right and raises two issues.
Defendant claims error in the trial court's denial of her motion to suppress evidence seized from her apartment. We find no error in the trial court's ruling. The police were in pursuit of an armed felon and there was probable cause to believe that the felon was in the defendant's apartment. We agree that exigent circumstances existed which justified the warrantless search. The evidence seized was in plain view and discovered inadvertently while in pursuit of an armed suspect. Its seizure was legitimate. Coolidge v New Hampshire, 403 U.S. 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971).
At the close of the prosecution's proofs, defendant moved for a directed verdict of acquittal on the felony-firearm count. This motion was denied as was a motion for judgment notwithstanding the verdict following conviction. The firearm allegedly used in the armed robbery was discovered during the subsequent search of defendant's apartment. The people argue that the jury could reasonably infer that defendant aided and abetted the retention of the firearm used in the robbery because defendant drove the getaway vehicle and because she shared control of the apartment in which the firearm was found. We disagree. Proof that defendant knowingly assisted in a felony involving a firearm is not sufficient evidence upon which to convict her of aiding and abetting possession of a firearm during the commission of a felony. To convict this defendant of so aiding and abetting, it must have been shown that she knowingly performed some act or encouragement with the intent to assist her accomplices in keeping possession of the firearm. People v Johnson, 411 Mich. 50; 303 N.W.2d 442 (1981). In People v Doemer, 35 Mich. App. 149, 152; 192 N.W.2d 330 (1971), this Court, relying on People v Francis, 71 Cal.2d 66; 450 P.2d 591; 75 Cal.Rptr. 199 (1969), stated:
"To aid and abet possession, one must be more than merely present. There must be criminal intent and direct or indirect acts or encouragement which aid in the perpetration of the crime. People v Francis, supra. The act or encouragement must be done knowingly with the intent to aid the possessor [to] obtain or retain possession."
The discovery of the handgun in the apartment defendant shared with a codefendant is likewise insufficient to show that defendant aided in the retention of a firearm. The presence of the handgun in the apartment may show that she acquiesced in the retention of the handgun, but it does not show that she acted to assist in or encourage the retention of the firearm, particularly when one of the robbers shared the apartment and thus may have been responsible for the handgun's presence. We also read Johnson, supra, to require that the retention of the firearm occur during the felony. The felony here must have ended when the robbers concluded their escape and reached the apartment. The defendant's involvement with the firearm at the apartment, therefore, occurred after the felony was concluded. For this additional reason, we are persuaded that the evidence did not establish that this defendant aided and abetted in the possession of a firearm in the commission of a felony.
Accordingly, we reverse her conviction on that charge. Defendant's conviction of armed robbery is affirmed.