People v. Parr

Corrigan, J.

(concurring). I concur in the majority opinion, but write separately to question the analysis in People v Gardner, 194 Mich App 652; 487 NW2d 515 (1992). Gardner adopts People v Huizenga, 176 Mich App 800; 439 NW2d 922 (1989), concluding that inoperability can be an affirmative defense to a charge of carrying a concealed pistol in a vehicle, MCL 750.227(2); MSA 28.424(2). In ostensibly resolving a longstanding split of authority, however, Gardner failed to acknowledge or discuss People v Thompson, 189 Mich App 85; 472 NW2d 11 (1991), which rejected Huizenga. Notably, Judge Fitzgerald dissented in Thompson on grounds that he would have followed *47Huizenga. 189 Mich App 88. See Administrative Order No. 1990-6, 436 Mich lxxxiv.

The two opinions can be distinguished because Thompson relates to MCL 750.227b; MSA 28.424(2), possession of a firearm during the commission of a felony, while Gardner applies to MCL 750.227(2); MSA 28.424(2), carrying a concealed pistol in a vehicle. However, the Supreme Court expects uniform statutory interpretation of concealed weapon and felony-firearm offenses. In People v Hill, 433 Mich 464; 446 NW2d 140 (1989), a majority of our Supreme Court, over Justice Levin’s dissent, observed that "[t]he concealed weapon statute and the felony-firearm statute necessitate the same statutory construction.” 433 Mich 475. Moreover, in its analysis of MCL 750.224b; MSA 28.421(2), prohibiting possession of a short-barreled shotgun, Hill cited favorably those Court of Appeals cases that rejected the view that operability is an element of felony-firearm and concealed weapon offenses.

The law now provides that proof that a weapon is operable is not an element of a felony-firearm charge, MCL 750.227b; MSA 28.424(2), Thompson, supra. Under MCL 750.227(2); MSA 28.424(2), if operability is properly challenged, the prosecutor must prove the weapon is operable. Gardner, supra. In construing related statutes, our Court has inconsistently interpreted the same statutory definitions, contrary to Hill's directive. This is a serious and recurring matter of public importance because of the prominence of weapons offenses in our criminal courts.

In an appropriate case, the Supreme Court should resolve these inconsistent interpretations of related statutory provisions.