People v. Calloway

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.

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Unpublished opinion per curiam, issued August 30,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).

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

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

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

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

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

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).