People v. Pasha

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.