Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsSep 18, 1984
137 Mich. App. 657 (Mich. Ct. App. 1984)
137 Mich. App. 657357 N.W.2d 925

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Docket No. 73096.

Decided September 18, 1984. Leave to appeal applied for.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

Lippitt, Lyons, Wolney, Goldpaugh, Sudnick Grand (by John J. Goldpaugh), for defendant.

Before: M.J. KELLY, P.J., and BRONSON and C.W. SIMON, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


The prosecution appeals as of right from an order quashing the information and dismissing charges against defendant of felonious assault, MCL 750.82; MSA 28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2). We reverse and remand for reinstatement of the charges.

The complainant, Stephen Nevels, testified at the preliminary examination that the defendant, a Detroit police officer, assaulted and pistol-whipped him after ordering him out of his van near the area of Mound and Seven Mile Roads in the City of Detroit. Defendant was off duty, dressed in plain clothes and driving his personal car at the time and did not immediately identify himself as a police officer. Apparently, defendant was investigating an armed robbery and believed that complainant was involved. Conflicting evidence was introduced regarding complainant's possession and use of a knife.

The examining magistrate denied the defendant's motion to dismiss the charges and defendant was bound over on both counts. The trial court, however, later granted the defendant's pretrial motion to quash the information, dismissing both counts.

In dismissing the felonious assault charge, the trial court considered complainant's preliminary examination testimony and determined that the examining magistrate had abused her discretion in ordering the defendant bound over on that count. The trial court held that the prosecution had failed to present evidence sufficient to establish that a crime had been committed in that the defendant "was acting reasonably and out of the course of his employment". We too have reviewed the preliminary examination testimony. We find that the trial court improperly substituted its judgment for that of the magistrate and resolved a factual question which should have been left for the trier of fact after consideration of evidence produced at a full trial. Inasmuch as the complainant's testimony was sufficient to show probable cause to believe that a felonious assault had been committed and that defendant had committed it, People v Talley, 410 Mich. 378, 385-386; 301 N.W.2d 809 (1981); MCL 766.13; MSA 28.931, we conclude that defendant was properly bound over on that charge.

The prosecution also appeals the trial court's dismissal of the felony-firearm count. In dismissing Count II, the court held that the felony-firearm statute does not apply to off-duty police officers who are required by departmental regulation to carry guns while off duty:

"I believe the Legislature passed the law because there were a lot of people committing burglaries with weapons when they weren't necessarily committing crime on the streets using weapons and the idea was to curb the use of weapons causing fatal situations where they didn't exist and I do agree with Judge Ravitz. It wasn't meant to cover police officers who are by order required to carry a firearm. I read the law in the matter and I don't believe that the appellate court has acted on the matter and we have to give them something to act on. I agree with counsel in this case. I think that it would be a violation of rights to require them to carry a weapon and then to accuse them of a felony of carrying the weapon that they're required to carry in the first place."

We reject this construction of the felony-firearm statute as we are not persuaded by the plain language of the statute that the Legislature intended to create a police officer exemption.

Criminal statutes must be strictly construed with each word interpreted according to its ordinary usage and common meaning. Where the words of the statute are clear, we will not change the meaning of that statute by imposing our own notions or beliefs regarding its wisdom or efficacy. People v Gilbert, 414 Mich. 191, 210-213; 324 N.W.2d 834 (1982); People v Terry, 124 Mich. App. 656, 659; 335 N.W.2d 116 (1983).

The felony-firearm statute clearly and unambiguously states:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * * is guilty of a felony, and shall be imprisoned for two years." MCL 750.227b(1); MSA 28.424(2)(1). The statute provides for only two exceptions: where the underlying felony is carrying a concealed weapon, MCL 750.227; MSA 28.424, and where the underlying felony is the unlawful possession of a pistol by a licensee, MCL 750.227a; MSA 28.424(1).

Contrary to the defendant's arguments on appeal, there is no evidence to suggest that the Legislature intended to exempt off-duty police officers from the felony-firearm statute. In fact, as recently as 1981, the Legislature was presented with the opportunity to exempt police officers from the provisions of § 227b when it amended MCL 750.231; MSA 28.428. Prior to its amendment, § 231 specifically excluded police officers from the provisions of MCL 750.224; MSA 28.421 (manufacture, sale or possession of a weapon) and MCL 750.227; MSA 28.424 (carrying a concealed weapon). The 1981 amendment further excepted police officers from the provisions of MCL 750.227c; MSA 28.424(3) and MCL 750.227d; MSA 28.424(4), which were added to our criminal code by the same public act, 1981 PA 103. Had the Legislature intended to exempt off-duty police officers from the felony-firearm statute, it could easily have done so under § 231.

We find analogous two other decisions issued by this Court rejecting proposed exemptions to the felony-firearm statute. In People v Korona, 119 Mich. App. 369; 326 N.W.2d 143 (1982), we refused to exempt defendants who are found guilty but mentally ill. That decision followed the reasoning set forth in People v Abend, 94 Mich. App. 13; 286 N.W.2d 926 (1979), where we refused to except from the felony-firearm statute those defendants who were in lawful possession of a firearm at the time the underlying felony was committed. We held:

"Defendant's position has no support in the statute or in relevant case law. On the contrary, the statute reflects exceedingly clear legislative intent to punish anyone who, at the time of commission or attempted commission of a felony, possesses a firearm whether the initial possession was legal or illegal. If the Legislature had intended to exempt anyone, such as law enforcement officers or persons licensed or otherwise lawfully in possession of a firearm, from the general proscription of MCL 750.227b; MSA 28.424(2), it most certainly would have done so by providing explicit statutory exceptions as it did throughout the firearms section of the penal code. MCL 750.222 et seq.; MSA 28.419 et seq." 94 Mich. App. 14.

For the same reasons, we decline to except off-duty police officers from the provisions of the felony-firearm statute.

Reversed and remanded.