Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
___________________________________________________________________________________________________________________________
FILED NOVEMBER 25, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 122430, 122431
D=ANDRE D. CALLOWAY,
Defendant-Appellant.
________________________________
PER CURIAM
Defendant was convicted after a jury trial of
violating MCL 750.224f (felon in possession of a firearm)
and MCL 750.227b (possession of a firearm during the
commission of a felony).a He argues that these convictions
violate the federal and state prohibitions against double
jeopardy.b The Court of Appeals rejected defendant=s double
jeopardy claim, holding that its decision in People v
a
Defendant was also convicted of assault with intent to
do great bodily harm less than murder, MCL 750.84.
b
US Const, Am V; Const 1963, art 1, ' 15.
Dillard, 246 Mich App 163; 631 NW2d 755 (2001), controlled.c
Defendant now seeks leave to appeal, arguing that Dillard
and our decision in People v Mitchell, 456 Mich 693; 575
NW2d 283 (1998), which the Dillard panel followed, were
wrongly decided. We disagree.
I
A challenge under the double jeopardy clauses of the
federal and state constitutions presents a question of law
that this Court reviews de novo. People v Herron, 464 Mich
593, 599; 628 NW2d 528 (2001). The double jeopardy clauses
of the United States and Michigan constitutions protect
against governmental abuses for both (1) multiple
prosecutions for the same offense after a conviction or
acquittal and (2) multiple punishments for the same
offense. Ohio v Johnson, 467 US 493, 497; 104 S Ct 2536;
81 L Ed 2d 425 (1984); Herron, supra. The issue presented
in this case is one of multiple punishments for the same
offense.
This Court discussed the constitutional protections
against multiple punishments in Mitchell, supra at 695,
which relied on People v Sturgis, 427 Mich 392; 397 NW2d
c
Unpublished opinion per curiam, issued August 30,
2002 (Docket Nos. 232225, 232274).
2
783 (1986). In Sturgis, Justice Boyle, speaking for a
majority, helpfully discussed the multiple punishment bar
by contrasting it with the multiple prosecution bar:
The Court can enforce the constitutional
prohibition against multiple prosecutions through
judicial interpretation of the term "same
offense" as intended by the framers of the
constitution. Judicial examination of the scope
of double jeopardy protection against imposed
multiple punishment for the "same offense" is
confined to a determination of legislative
intent. In the latter case, the core double
jeopardy right to be free from vexatious
proceedings is simply not present, People v
Robideau, [419 Mich 458, 485; 355 NW2d 592
(1984)]. Since the power to define crime and fix
punishment is wholly legislative, the clause is
not a limitation on the Legislature, Whalen v
United States [445 US 684, 700; 100 S Ct 1435; 63
L Ed 2d 715 (1980)], and the only interest of the
defendant is in not having more punishment
imposed than intended by the Legislature, People
v Robideau, supra, 485. Thus, "[even] if the
crimes are the same, ... if it is evident that a
state legislature intended to authorize
cumulative punishments, a court's inquiry is at
an end," Ohio v Johnson, 467 US 493, 499 n 8; 104
S Ct 2536; 81 L Ed 2d 425 (1984). [Sturgis, supra
at 400.]
The question is, then, whether the Astate legislature
intended to authorize cumulative punishments.@ Ohio, supra.
The felony-firearm statute, as relevant, states:
A person who carries or has in his or her
possession a firearm when he or she commits or
attempts to commit a felony, except a violation
of section 223, section 227, 227a or 230, is
guilty of a felony, and shall be imprisoned for 2
years. Upon a second conviction under this
3
section, the person shall be imprisoned for 5
years. Upon a third or subsequent conviction
under this subsection, the person shall be
imprisoned for 10 years. [MCL 750.227b(1).]
The felon in possession statute states, in relevant part:
(1) Except as provided in subsection (2), a
person convicted of a felony shall not possess,
use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm in this state
until the expiration of 3 years after all of the
following circumstances exist:
(a) The person has paid all fines imposed
for the violation.
(b) The person has served all terms of
imprisonment imposed for the violation.
(c) The person has successfully completed
all conditions of probation or parole imposed for
the violation. [MCL 750.224f.]
In considering MCL 750.227b in Mitchell, we concluded
that, with the exception of the four enumerated felonies,d
it was the Legislature=s intent Ato provide for an
additional felony charge and sentence whenever a person
possessing a firearm committed a felony other than those
four explicitly enumerated in the felony-firearm statute.@
Id. at 698.
d
MCL 750.223 (unlawful sale of a firearm), MCL 750.227
(carrying a concealed weapon), MCL 750.227a (unlawful
possession by licensee), and MCL 750.230 (alteration or
removal of identifying marks).
4
We follow, as did the Court of Appeals in Dillard,
supra, our Mitchell opinion in resolving this matter.
Because the felon in possession charge is not one of the
felony exceptions in the statute, it is clear that
defendant could constitutionally be given cumulative
punishments when charged and convicted of both felon in
possession, MCL 750.224f, and felony-firearm, MCL 750.227b.
Because there is no violation of the double jeopardy
clause, the Court of Appeals properly affirmed defendant=s
convictions. In lieu of granting leave to appeal, we
affirm the judgment of the Court of Appeals on this point.
MCR 7.302(F)(1). In all other respects, we deny defendant=s
delayed application for leave to appeal because we are not
persuaded that the questions presented should be reviewed
by this Court. Defendant=s motion to remand is also denied.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
5
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 122430, 122431
D’ANDRE D. CALLOWAY,
Defendant-Appellant.
_______________________________
KELLY, J. (concurring in result only).
Defendant was convicted of an assault, for being a
felon in possession of a firearm1 and for possessing a
firearm while committing a felony (felony-firearm).2 He
claims that the two latter convictions for the same act,
possessing a single firearm on a single occasion, violate
the double jeopardy clauses of the United States and
Michigan Constitutions. While I disagree with the Court’s
analysis, I concur in the result it reaches. I write
separately to reiterate what I believe to be the proper
analysis under the controlling precedent of the United
1
MCL 750.224f.
2
MCL 750.227b.
States Supreme Court and this Court.
The bar against double jeopardy protects against
multiple punishments for the same offense. The United
States Supreme Court and this Court have interpreted this
protection as a restraint on the courts and the prosecutor.
However, if the Legislature expressly desires, it is within
its power to provide for cumulative punishment of the same
conduct. People v Mitchell, 456 Mich 693, 695; 575 NW2d
283 (1998), citing Brown v Ohio, 432 US 161, 97 S Ct 2221;
53 L Ed 2d 187 (1977). To do so, it must express this
intent in clear terms. Mitchell, p 696, citing People v
Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984). The rule
of lenity requires that the courts presume that the
Legislature did not intend to punish conduct cumulatively
unless there is conclusive evidence of a contrary intent.
Robideau, p 488.
Legislative intent can be difficult to discern. “The
Legislature rarely reveals its intentions with a specific
statement.” Robideau, pp 486-487. Here, the Legislature
did not explicitly state its intent and, to ascertain it,
we must employ an analysis that the United States Supreme
Court and this Court have developed. The analysis has been
devised to protect substantial liberty interests and
2
tailored for double jeopardy challenges.
It begins with some general principles whose purpose
is to examine the subject, language, and history of the
statutes in question. Id., p 486. Basic to them is a
presumption that the Legislature did not intend multiple
punishments for one act that violates different statutes
protecting the same social norms. Id., p 487. Conversely,
a court could infer the intent of multiple punishments
where the social norms do not overlap. Additional tools of
statutory construction may be employed as well. But a
court must search for conclusive evidence of an implicit
intent to provide multiple punishments when the prosecutor
seeks multiple punishments for a single act.
In this case, the defendant was a convicted felon who
had committed a serious assault with a firearm. The
felony-firearm and assault statutes protect different
social norms. The assault statute and its common-law
predecessor are meant to preserve order. The felony-
firearm statute is intended to deter the unlawful
possession of firearms. Mitchell, p 700 (KELLY, J.,
dissenting). This supports the inference that the
Legislature intended to provide additional punishment of a
person who commits an assault while in possession of a
3
firearm. The rationale was, presumably, that someone
assaulted by a person having ready access to a deadly
weapon is at greater risk of injury than someone assaulted
by an unarmed person.
It is noteworthy that, in this case, the felony-
firearm charge would have been barred by double jeopardy if
it had been predicated on the felon-in-possession charge.
Both involve mere possession, protecting similar norms.
The felony-firearm statute is intended to deter the
unlawful possession of firearms by punishing those who
commit a felony with a firearm in their possession. Id.
Similarly, the felon-in-possession statute is intended to
deter the possession of firearms by those who have
previously committed a felony. Because the social norms
underlying the statutes are similar, an inference may be
drawn that the Legislature intended not to provide multiple
punishments for a single act that violated both statutes.
In addition, assault requires proof of more than mere
possession of the firearm.3
3
Accord People v Sturgis, 427 Mich 392; 397 NW2d 783
(1986) (simultaneous convictions allowed for unlawfully
carrying a concealed weapon [CCW], felonious assault, and
felony-firearm, but the CCW could not serve as the
predicate felony for the felony-firearm conviction), Wayne
Co Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280
4
This conclusion is consistent with the United States
Supreme Court interpretation of the double jeopardy
provision in Ball v United States, 470 US 856; 105 S Ct
1668; 84 L Ed 2d 740 (1985). Ball held that a defendant
could not be convicted simultaneously of receipt and of
possession of a stolen firearm, because receipt is implicit
in possession and no additional act is required.
The four exceptions listed in the felony-firearm
statute do not undercut this analysis. Unlawful sale of a
firearm, unlawful possession by a licensee, carrying a
concealed weapon (CCW), and altering the markings of a
firearm,4 do not result in a felony-firearm violation. The
majority determined that this list was exclusive and,
therefore, that the Michigan Legislature intended any other
felony with a firearm to be a violation of the felony-
firearm statute.
However, its analysis avoids the constitutional
question and assumes that, by providing a short list of
exceptions, the Legislature intended cumulative punishments
NW2d 793 (1979) (simultaneous convictions allowed for
second-degree murder and felony-firearm), and People v
Walker, 167 Mich App 377; 422 NW2d 8 (1988) (simultaneous
convictions allowed for assault with intent to do great
bodily harm less than murder and for felony-firearm).
4
MCL 750.223, 750.227a, 750.227, and 750.230.
5
for all unlisted crimes. When one applies the social norm
analysis, it becomes apparent that the felony-firearm
statute and its four exceptions protect diverse interests.
The unlawful sale statute and the markings statute
facilitate the regulation of firearms. The licensee’s
unlawful possession statute and the CCW statute prevent
deadly weapons from being available in situations where
they might be used imprudently. These interests are
different from, and more narrowly tailored than, the
felony-firearm statute, which protects against unlawful
possession in general.
Thus, there would be no double jeopardy bar to
simultaneous prosecutions under one of these statutes and
under the felony-firearm statute. It follows that the
Legislature intended not to provide cumulative punishments
for these four exceptions. Moreover, their inclusion
furnishes no conclusive evidence of an intent with respect
to other felonies.
This analysis illustrates the limited applicability of
the maxim expressio unius est exclusio alterius, which the
majority used in this case and in Mitchell. Rather than
standing as a rule of law, the maxim is merely an aid to
construction. It should not be used summarily to decide
6
constitutional questions.
In passing over the established social norm analysis
when deciding this case, the majority failed to apply the
rule of lenity. It should have done so, given that no
conclusive evidence of legislative intent exists.
Moreover, by expressly agreeing with the holding in People
v Dillard,5 this Court effectively decides the issue
presented there, although it is not presented in this case.
Dillard held that felon-in-possession can be the
underlying felony for felony-firearm. This per curiam
opinion affirms that holding in a case in which an assault
conviction could provide the underlying felony for the
felony-firearm conviction. There was no need to reach the
question whether felon-in-possession could be the predicate
felony.
This case should not be made a vehicle to resolve the
Dillard issue, a larger one not before the Court. For
these reasons, I cannot join the majority’s analysis in
this case or in Mitchell.
Marilyn Kelly
Michael F. Cavanagh
5
246 Mich App 163; 631 NW2d 755 (2001).
7