Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 18, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 119049
DESHOWN R. PASHA,
Defendant-Appellant.
________________________________
PER CURIAM
After a bench trial, defendant was convicted of
possession of less than twenty-five grams of heroin1 and
carrying a concealed weapon.2 On appeal, defendant argued
that the concealed weapon conviction was not supported by the
evidence. The Court of Appeals affirmed on authority of
People v Marrow, 210 Mich App 455; 534 NW2d 153 (1995), aff’d
453 Mich 903 (1996). We reverse the CCW conviction and
overrule the Court of Appeals holding in Marrow to the extent
1
MCL 333.7403(2)(a)(v).
2
MCL 750.227(2).
that it requires lawful ownership of a pistol as a
prerequisite to a valid claim to an exception contained in the
concealed weapons statute, MCL 750.227(2). In light of the
effect of our decision on the administration of justice, we
limit the retroactive effect of our holding to certain
categories of cases currently pending on appeal, as discussed
below.
I
In December 1998, police raided the house where defendant
was living. The police officers testified they found
defendant standing over a toilet, attempting to flush away
some heroin. In the process of securing defendant, the
officers found a pistol in the waistband of his pants.
Defendant testified that he was in boxer shorts when he opened
the door to the house for police and that the pistol that was
seized was actually found by police under a couch.
Defendant was charged with possession of less than
twenty-five grams of heroin, possession of a firearm during
the commission of a felony,3 and with being an habitual
offender, third offense.4 The trial court found defendant
guilty of the possession offense, acquitted him of the felony
firearm charge, and then indicated it was convicting him of
3
MCL 750.227b.
4
MCL 769.11
2
carrying a concealed weapon, MCL 750.227(2).5 Defendant was
sentenced to one to four years for the possession conviction
and one to five years for the CCW conviction.
The Court of Appeals affirmed.6 Defendant has applied
for leave to appeal.
II
With regard to the possession and carrying of firearms
and having them within a dwelling house, the following
statutes are germane. MCL 28.422 forbids a person from
purchasing, carrying, or transporting a pistol without first
obtaining a license. MCL 750.224f forbids certain felons,
such as defendant, from possessing a firearm. Further, MCL
750.227(2), our CCW statute, provides that, absent a concealed
weapons permit, a person may not carry a pistol in a concealed
manner except in a dwelling house, place of business, or other
land possessed by the person. In this case, we deal with the
exception known as the dwelling house exception.
5
A person shall not carry a pistol concealed on
or about his or her person, or, whether concealed
or otherwise, in a vehicle operated or occupied by
the person, except in his or her dwelling house,
place of business, or on other land possessed by
the person, without a license to carry the pistol
as provided by law and if licensed, shall not carry
the pistol in a place or manner inconsistent with
any restrictions upon such license.
6
Unpublished memorandum opinion, issued February 23,
2001 (Docket No. 220092).
3
In Marrow, the Court of Appeals read MCL 28.422 together
with MCL 750.227(2) to conclude that, while the Legislature
intended the CCW statute to allow a person to conceal an
otherwise lawful firearm to defend his property, the dwelling
house exception to the CCW statute did not sweep so broadly as
to extend to one who was precluded from even possessing or
carrying a weapon such as a felon under MCL 750.224f. Thus,
the defendant, a felon, who was standing with a gun in front
of his house shortly before being apprehended by a police
officer, could not avail himself of the dwelling house
exception, and his CCW conviction was upheld.7
III
Pursuant to the rule outlined in Marrow, the Court of
Appeals in this case held that the dwelling house exception to
the CCW statute does not apply to persons who are not lawful
possessors of weapons and that defendant was appropriately
convicted of CCW.
In reviewing whether the CCW statute can sustain such an
interpretation as offered by the Marrow Court, and now the
7
It is important to note that buttressing the Court’s
peremptory order, and indeed relied upon by this Court in our
affirmance of the judgment, was the fact the defendant did not
have a sufficient possessory interest in the property to come
within the dwelling house exception. This Court said:
[W]e affirm the judgment of the Court of
Appeals on the ground that the defendant did not
have a possessory interest in the area between the
sidewalk and roadway sufficient to come within the
exception stated in the statute. MCL 750.227. [453
Mich 903 (1996).]
4
current Court of Appeals panel, it is well to begin by
recalling the bedrock rule that the goal of judicial
interpretation of a statute is to ascertain and give effect to
the intent of the Legislature. McJunkin v Cellasto Plastic
Corp, 461 Mich 590, 598; 608 NW2d 57 (2000). “The first step
in that determination is to review the language of the statute
itself.” In re MCI Telecommunications Complaint, 460 Mich
396, 411; 596 NW2d 164 (1999). Thus, if the language is
clear, no further construction is necessary or allowed to
expand what the Legislature clearly intended to cover. People
v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). The
application of this rule is dispositive of this matter.
MCL 750.227(2) provides:
A person shall not carry a pistol concealed on
or about his or her person, or, whether concealed
or otherwise, in a vehicle operated or occupied by
the person, except in his or her dwelling house,
place of business, or on other land possessed by
the person, without a license to carry the pistol
as provided by law and if licensed, shall not carry
the pistol in a place or manner inconsistent with
any restrictions upon such license.
In order to qualify for the dwelling house exception, the
defendant must present evidence that the location where the
concealed pistol was carried was defendant’s dwelling house.
No other condition, such as lawful ownership of the pistol, is
statutorily required. To state this proposition is to expose
the problem with Marrow in that Marrow effectively read a
requirement of lawful ownership of the weapon into the
5
dwelling house exception to the CCW statute. Such an addition
of a requirement simply cannot be done by a court. If such a
condition is to be added, it must be added by the Legislature.
As that has not happened, this defendant has been convicted of
a crime that does not apply to him, and his conviction is
invalid. We therefore overrule the Court of Appeals holding
in Marrow that requires lawful ownership of the pistol as a
prerequisite to a valid claim to an exception contained in MCL
750.227(2).8
Moreover, we express our disapproval of the practice
employed by the trial court in this case. The prosecutor
charged defendant with felony-firearm, MCL 750.227b. The
trial court did not explain why defendant was not guilty of
that offense. Instead, it convicted defendant of CCW, an
offense that the prosecutor did not charge. It is doubtful
that CCW was truly a “cognate” offense of felony-firearm, so
the trial court probably lacked authority to convict the
defendant of that offense even under this Court’s pre-People
v Cornell, 466 Mich ___; ___ NW2d ___ (2002),9 jurisprudence.
8
We emphasize that our holding is confined to an
interpretation of the dwelling house exception to the CCW
statute. Convicted felons who possess firearms remain subject
to prosecution under other weapon laws, including 18 USC
922(g)(1) and MCL 750.224f. See generally Old Chief v United
States, 519 US 172; 117 S Ct 644; 136 L Ed 2d 574 (1997);
United States v Gordon, 744 F Supp 149 (ED Mich, 1990); People
v Swint, 225 Mich App 353; 572 NW2d 666 (1997).
9
Following our decision in Cornell, the trier of fact
may no longer convict a defendant of a cognate lesser offense.
6
IV
This Court will reverse a conviction on the basis of an
unpreserved nonconstitutional error if the error was plain and
affected substantial rights and if the defendant is actually
innocent or the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We
conclude that defendant has met the Carines standard. The
error is plain and defendant’s substantial rights have been
affected. Since it is clear defendant possessed the gun in
his residence, he has demonstrated, with regard to the CCW
conviction, that he is actually innocent.10 Defendant’s CCW
conviction is reversed, and we enter a directed verdict of
acquittal. MCR 7.316(A)(7).
Finally, we consider the effect of our decision to
overrule Marrow’s interpretation of the statutory dwelling
house exception. Prosecutors and courts have relied on Marrow
in deciding whether to charge or convict a defendant of CCW.
Full retroactive application of our holding would undermine
the interest in finality of convictions and disrupt the
effective administration of justice.
Accordingly, the retroactive effect of our decision is
limited to certain cases currently pending on appeal. To seek
10
While it appears defendant could have been prosecuted
for being a felon in possession of a firearm, MCL 750.224f, he
was not so charged. There also was no apparent obstacle to a
felony-firearm conviction.
7
retroactive application of our holding in a case currently
pending on appeal, a defendant must demonstrate that 1) the
dwelling house exception issue has been raised on appeal, and
2) the defendant either preserved the issue in the trial court
or is entitled to relief under Carines. See, generally,
Cornell, supra; Lowe v Estate Motors Ltd, 428 Mich 439, 475;
410 NW2d 706 (1987); Murray v Beyer Mem Hosp, 409 Mich 217,
221-223; 293 NW2d 341 (1980).
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
8
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 No. 119049
DESHOWN R. PASHA,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (dissenting).
I would not resolve this case by a per curiam opinion.
This case raises a jurisprudentially significant issue of
statutory interpretation: whether a felon in possession of a
concealed weapon convicted of CCW may avail himself of the
dwelling house exemption in the CCW statute, MCL 750.227(2).
In answering this issue, the per curiam opinion overrules the
Court of Appeals holding in, People v Marrow, 210 Mich App
455; 534 NW2d 153 (1995), aff’d, 453 Mich 903; 554 NW2d 901
(1996), which previously interpreted MCL 750.227(2) for the
same reason. I would rather grant leave so we may receive the
benefit of full briefing and argument by the parties before
taking such action.
KELLY , J., concurred with CAVANAGH , J.