People v. Moore

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 MAY 12, 2004

PEOPLE OF THE STATE OF MICHGIAN,

Plaintiff-Appellee,

v No. 120543

CLARENCE D. MOORE,

Defendant-Appellant.

_______________________________

PEOPLE OF THE STATE OF MICHGIAN,

Plaintiff-Appellee,

v No. 119862

ERWIN HARRIS

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

WEAVER, J.
 In these two cases, defendants were convicted of

felony-firearm1 under an aiding and abetting theory.2

Felony-firearm is the crime of carrying or possessing a

firearm during the commission or attempted commission of a

felony. The issue before the Court is whether the

prosecutor must establish that a defendant assisted in

obtaining or retaining possession of a firearm, the test

that was set forth in People v Johnson, 411 Mich 50, 54;

303 NW2d 442 (1981), in order to convict the defendant of

felony-firearm under an aiding and abetting theory. We

overrule Johnson because the test that it created is

narrower than the test set forth in the language of the

aiding and abetting statute. We conclude that under the

statute, the proper standard for establishing felony-

firearm under an aiding and abetting theory is whether the

defendant’s words or deeds “procure[d], counsel[ed],

aid[ed], or abet[ted]” another to carry or have in his

possession a firearm during the commission or attempted

commission of a felony-firearm offense.3 Applying that

standard, we hold that there was sufficient evidence in

each case to support the felony-firearm convictions, and we

affirm both defendants’ convictions.

1
MCL 750.227b.

2
MCL 767.39.

3
Id.
2

 I. Facts and Procedural History

A

The charges against defendant Clarence D. Moore stem

from a shooting in Flint on August 8, 1997. That night,

Moore and his friend, DeJuan Boylston, argued with Jacky

Hamilton and his brother, Johnny Hamilton. Shortly

thereafter, Moore and Boylston approached the Hamilton

brothers while they were fishing at a lake. Boylston was

carrying a gun, and Moore told the two brothers that they

had better start swimming out into the lake. Boylston then

recognized Johnny Hamilton from basketball games in the

neighborhood. This recognition prompted Boylston to

retreat, telling Moore that he did not want a problem with

the Hamiltons. According to Johnny Hamilton, after

Boylston declined to shoot the brothers, Moore attempted to

grab the gun from Boylston. During this time, Moore made

derogatory statements to Boylston to encourage him to shoot

the victims. He questioned Boylston’s sense of masculinity

and threatened that he would not associate with Boylston if

Boylston did not shoot the Hamiltons. After walking about

halfway up the hill, Boylston turned and fired, hitting

Jacky, who later died from the gunshot wounds.

3

 Following a jury trial, defendant Moore was convicted

of murder in the first degree,4 assault with intent to

murder,5 and felony-firearm6 on an aiding and abetting

theory.7 In an unpublished opinion, the Court of Appeals

affirmed Moore’s convictions on all counts.

B

The charges against defendant Erwin Harris stem from a

robbery that took place in Washtenaw County on September

28, 1998. Harris drove Eugene Mays to a gasoline station.

Mays had a sawed-off shotgun in the vehicle. Harris first

entered the store on the pretense of asking for directions.

After leaving the store, he reentered moments later

followed by Mays, who was wielding the shotgun. While Mays

pointed the gun at the clerk, Harris approached a customer

from behind and proceeded to remove the customer’s wallet

and other items from his pockets. The clerk refused to

give Mays any money and pushed a button that locked the

cash register. Although Harris repeatedly directed Mays to

“pop,” or shoot, the clerk after he locked the register,

the two men left the store without physically harming

either the clerk or the customer.

4
MCL 750.316.
5
MCL 750.83.
6
MCL 750.227b.
7
MCL 767.39.
4

 Defendant Harris was convicted by a jury on two counts

of armed robbery,8 two counts of felony-firearm9 on an

aiding and abetting theory,10 and one count of fleeing and

eluding the police.11 Harris appealed his convictions for

the armed robbery of the customer and for the two counts of

felony-firearm. In an unpublished, divided decision, the

Court of Appeals upheld Harris’s convictions.

C

Both Moore and Harris sought leave to appeal in this

Court. Each defendant argued that his conviction(s) for

felony-firearm under an aiding and abetting theory should

be reversed because he did not assist in either obtaining

or retaining possession of the firearm, citing this Court’s

decision in Johnson. This Court granted leave to appeal in

both cases and ordered that the cases be argued and

submitted to the Court together. In each of these cases,

the order granting leave to appeal limited the issues to

“whether there is sufficient evidence to convict the

defendant of violating MCL 750.227b and whether the

decision in People v Johnson, 411 Mich 50 (1981), should be

8
MCL 750.529.
9
MCL 750.227b.
10
MCL 767.39.
11
MCL 750.479a(3).
5
overruled or modified.” People v Harris, 467 Mich 896

(2002); People v Moore, 467 Mich 897 (2002).

II

Resolution of these cases requires interpretation of

the felony-firearm statute and the aiding and abetting

statute. Statutory interpretation is a question of law

that this Court reviews de novo. Robertson v

DaimlerChrysler Corp, 465 Mich 732, 739; 641 NW2d 567

(2002). If the statutory language is certain and

unambiguous, that language is given its ordinary and

generally accepted meaning. Piper v Pettibone Corp, 450

Mich 565; 542 NW2d 269 (1995).

A

The felony-firearm statute, MCL 750.227b(1), 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 . . . is guilty of a
felony, and shall be imprisoned for 2 years.

The felony-firearm statute applies whenever a person

carries or has a firearm in his possession when committing

or attempting to commit a felony. The evident purpose of

the statute is to enhance the penalty for the carrying or

possession of firearms during the commission of a felony

and thus to deter the use of guns. Wayne Co Prosecutor v

Recorder’s Court Judge, 406 Mich 374, 391; 280 NW2d 793

(1979), overruled in part on other grounds by People v

6

Robideau, 419 Mich 458; 355 NW2d 592 (1984). The important

rationale behind the felony-firearm statute is demonstrated

in its unique and severe punishment scheme. Conviction for

felony-firearm results in automatic imprisonment, which may

not be suspended. The guilty person is also ineligible for

probation or parole during the mandatory prison sentence.

The felony-firearm prison term must be served before and

consecutively to any term of imprisonment for the

underlying felony. A second conviction of felony-firearm

requires a flat five year sentence, while a third or

subsequent conviction requires a flat ten year sentence.

MCL 750.227b(1)-(3).

The aiding and abetting statute, MCL 767.39, states:

Every person concerned in the commission of
an offense, whether he directly commits the act
constituting the offense or procures, counsels,
aids, or abets in its commission may hereafter be
prosecuted, indicted, tried and on conviction
shall be punished as if he had directly committed
such offense.

The purpose of the aiding and abetting statute is “to

abolish the common law distinction between accessories

before the fact and principals so that one who counsels,

aids or abets in the commission of an offense may be tried

and convicted as if he had directly committed the offense.”

People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974),

citing People v Gould, 384 Mich 71, 77; 179 NW2d 617

7

(1970). The phrase “aids or abets” is used to describe any

type of assistance given to the perpetrator of a crime by

words or deeds that are intended to encourage, support, or

incite the commission of that crime. Palmer, p 378.

Aiding and abetting means to assist the
perpetrator of a crime. An aider and abettor is
one who is present at the crime scene and by word
or deed gives active encouragement to the
perpetrator of the crime, or by his conduct makes
clear that he is ready to assist the perpetrator
if such assistance is needed. [21 Am Jur 2d,
Criminal Law, § 206, p 273.]

Each defendant argues that his conviction(s) for

felony-firearm on an aiding and abetting theory should be

reversed because he did not assist in either obtaining or

retaining possession of the firearm, citing this Court’s

decision in Johnson.

In Johnson, this Court resolved a division in the

Court of Appeals over whether a person who does not

actually possess a firearm could be convicted under the

felony-firearm statute as an aider and abettor.12 Johnson

12
Contrast People v Tavolacci, 88 Mich App 470, 475;
276 NW2d 919 (1979), rev’d People v Johnson, supra, (“[O]ne
may be convicted as an aider and abettor to the felony-
firearm offense.”), with People v Bridges, 98 Mich App 436,
439; 296 NW2d 275 (1980), rev’d 411 Mich 969 (1981), (A
person who does not actually possess a firearm may not be
convicted under the statute as an aider and abettor.),
People v Powell, 90 Mich App 273, 275; 282 NW2d 803 (1979),
(“[T]he language of the felony-firearm statute clearly
contemplates ‘personal’ possession of a firearm by the
defendant. . . .”), and People v Johnson, 85 Mich App 654,
658; 272 NW2d 605 (1978), rev’d 411 Mich 50 (1981), (“We
8
consisted of two separate cases in which each defendant was

convicted of felony-firearm on a theory of aiding and

abetting. In the first case, defendant Johnson and an

accomplice robbed a bar in Detroit. The accomplice held

the gun while Johnson took money from the cash register.

They then split the money after leaving the bar. In the

second case, defendant Tavolacci brought the victim, an

undercover narcotics officer, to a pool hall under the

pretense of making a drug deal. The defendant’s two

accomplices then took the officer to a remote field and

attempted to shoot him. The defendant stayed at the pool

hall while the attempted murder took place. Johnson

resolved the division at the Court of Appeals by concluding

that a defendant may be guilty of felony-firearm even if

the defendant did not personally possess a firearm during

the commission of a felony if the defendant is shown to

have aided and abetted another who had such possession.

The Court remanded both cases to the respective trial

courts.

In remanding, the Court added the restriction that to

obtain a conviction for aiding and abetting the crime of

interpret the felony-firearm statute to require that a
defendant personally carry or have in his possession a
firearm in order to be guilty thereunder. Being an aider
or abetter in an armed robbery is not enough to subject a
defendant to the enhanced sentence of the felony-firearm
statute.” [emphasis in original].).
9
carrying or possessing a firearm during the commission of a

felony, it must be shown that the defendant assisted in

obtaining or retaining the possession of the firearm:

To convict one of aiding and abetting the
commission of a separately charged crime of
carrying or having a firearm in one’s possession
during the commission of a felony, it must be
established that the defendant procured,
counselled, aided, or abetted and so assisted in
obtaining the proscribed possession, or in
retaining such possession otherwise obtained.
See People v Doemer, 35 Mich App 149, 192 NW2d
330 (1971); People v Francis, 71 Cal 2d 66, 450
P2d 591, 75 Cal Rptr 199 (1969).
In neither of the instant cases does the
record show that the defendant assisted the
accomplice to obtain or retain possession of the
firearm which the accomplice possessed during the
commission of the felony. [People v Johnson,
supra, at 54 (emphasis added).]

B

Under the standard set forth in Johnson, each

defendant’s conviction would be reversed because neither

defendant specifically aided the principal in “obtaining”

or “retaining” the firearm for immediate or eventual

possession by the principal during the commission or

attempted commission of a felony.

Moore’s accomplice was carrying the gun during the

offense. There was no evidence introduced showing that

Moore assisted Boylston in either obtaining or retaining

possession of the gun. Similarly, Harris’s accomplice was

in possession of the weapon at all times, and there is no
10
indication in the record that Harris assisted Mays in

obtaining or retaining possession of the gun. The

reasoning of the dissent in Harris clearly applies to both

defendants:

There is no proof that Harris carried or
loaded the firearm for Mays, that he purchased
the firearm and gave it to Mays, or even that he
reminded Mays to bring the firearm into the store
with him. If Harris did help Mays obtain or
retain the firearm before he entered the store,
the record is simply silent on the matter.
[Unpublished dissenting opinion, issued July 27,
2001, p 4 (Docket No. 222468).]

Thus, under Johnson’s holding at 54 that “it must be

established that the defendant procured, counselled, aided,

or abetted and so assisted in obtaining the proscribed

possession, or in retaining such possession otherwise

obtained,” both defendants’ convictions of felony-firearm

under an aiding and abetting theory would be reversed.

C

A close examination of the Court’s decision in Johnson

reveals that this holding was overly narrow because it

unnecessarily restricted the scope of the class of persons

who can be convicted of felony-firearm on an aiding and

abetting theory. The Court relied on two drug possession

11

cases, People v Francis and People v Doemer,13 in reasoning

that to convict one of felony-firearm under an aiding and

abetting theory, “it must be established that the defendant

procured, counselled, aided, or abetted and so assisted in

obtaining the proscribed possession, or in retaining such

possession otherwise obtained.” Johnson at 54.

The Johnson Court’s holding takes the language of the

Francis opinion out of context. The Francis court

concluded that “[t]he record [did] not show that Francis

aided or encouraged [his accomplice] in obtaining or

retaining possession of marijuana.” Francis at 72. The

actual test that the Francis court articulated for aiding

and abetting is much broader than the test set forth in the

language quoted in Johnson. The Francis court stated that

“[i]n order to hold the accused as an aider and abettor the

test is whether the accused in any way, directly or

indirectly, aided the perpetrator by acts or encouraged him

by words or gestures.” Francis at 72, quoting People v

Villa, 156 Cal App 2d 128, 134; 318 P2d 828 (1957)

(emphasis added). Thus, the language relied on by the

Johnson Court is not the actual test set forth in Francis

for aiding and abetting possessory crimes.

13
In deciding Doemer, the Michigan Court of Appeals
simply relied on the same language as in Francis, a
California Supreme Court case.

12

 Nothing in the language of Michigan’s felony-firearm

statute supports Johnson’s narrow application of aiding and

abetting principles to the commission of felony-firearm.

In fact, the plain language of the statute suggests

otherwise.14 In People v Mitchell, 456 Mich 693, 698; 575

NW2d 283 (1998), this Court noted that the list of four

exceptions15 to the statute was exclusive and that the

Legislature intended “to 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.” The felony-

firearm statute makes no mention of a narrower standard or

an exception for those who aid and abet felony-firearm;

therefore, aiding and abetting felony-firearm should be no

different from aiding and abetting the commission of any

other offense.

14
The felony-firearm statute, MCL 750.227b(1), states
in part:

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.
15
The four enumerated exceptions are for violations
of MCL 750.223 (unlawful sale of a firearm), MCL 750.227
(carrying a concealed weapon), MCL 750.227a (unlawful
possession of a firearm by a licensee), and MCL 750.230
(alteration of identifying marks on a firearm).
13
 Similarly, nothing in the aiding and abetting statute

suggests that it should apply differently to a possessory

offense than to any other crime. The general rule is that,

to convict a defendant of aiding and abetting a crime, a

prosecutor must establish that “(1) the crime charged was

committed by the defendant or some other person; (2) the

defendant performed acts or gave encouragement that

assisted the commission of the crime; and (3) the defendant

intended the commission of the crime or had knowledge that

the principal intended its commission at the time that [the

defendant] gave aid and encouragement.” People v Carines,

460 Mich 750, 768; 597 NW2d 130 (1999). The aiding and

abetting statute neither expressly nor impliedly limits the

persons or crimes encompassed by its terms. The language

of the statute applies to “every person” who commits “an

offense.” Johnson’s holding, that to convict one of

felony-firearm under an aiding and abetting theory it must

be established that the defendant assisted in either

obtaining or retaining possession of the firearm, is not

based on the language of the aiding and abetting statute.

We do not disagree with Johnson’s holding that a

felony-firearm conviction is proper if a defendant aided

the principal in “obtaining” or “retaining” the firearm

while intending that the principal possess or carry the

firearm during the commission or attempted commission of a

14

felony, which possession or carrying by the principal

occurs. But a defendant also can assist in the commission

of a felony-firearm violation in other ways. All that is

required to prove aiding and abetting felony-firearm is

that the defendant aided and abetted another in carrying or

having in his possession a firearm while that other commits

or attempts to commit a felony.

Adherence to the Johnson standard has resulted in

numerous cases where the intent behind the statutes—to

deter the use of firearms during the commission of felonies

and to punish one who assists in the commission of an

offense as if he had directly committed such offense—has

not only been unrealized, but has been subverted.16 The

16
Various panels of the Court of Appeals have applied
the narrow Johnson test in felony-firearm aiding and
abetting cases, often producing results that are
incompatible with the statutes. In People v Buck, 197 Mich
App 404, 418; 496 NW2d 321 (1992), reversed in part by
People v Holcomb, 444 Mich 853; 508 NW2d 502 (1993), the
Court of Appeals held that there was insufficient evidence
to sustain the felony-firearm conviction of one of the
defendants because the prosecutor failed to show that he
aided or abetted the acquisition or retention of the weapon
at issue. Following the Johnson standard, the Court
reversed the conviction of a defendant who had dragged a
shooting victim back into reach after being shot so that
one of his codefendants could shoot the victim twice more,
finally killing him. In People v Eloby, 215 Mich App 472,
478; 547 NW2d 48 (1996), the defendant was convicted of
kidnapping, robbery, and sexual assault. Although he aided
and abetted the kidnapping, his conviction for felony-
firearm was reversed because he did not actually hold the
gun until after the victim was transported from the site of
the kidnapping to the house where she was later assaulted.
15
language of our statutes, the Johnson Court’s misreading of

Francis, and appellate cases following Johnson that are

incompatible with the statutes all command that this Court

overrule the narrow Johnson standard. For these reasons,

we overrule Johnson and hold that aiding and abetting the

commission of felony-firearm is no different from aiding

and abetting the commission of any other felony.17

III

Having overruled the narrow standard for aiding and

abetting set forth in Johnson, we now apply general aiding

and abetting principles to the facts of the cases before

us. Under the aiding and abetting statute, MCL 767.39, the

17
As we stated in People v Petit, 466 Mich 624, 633;
648 NW2d 193 (2002):

It is well established that overruling
precedent must be undertaken with caution. The
application of stare decisis is generally “’the
preferred course because it promotes the
evenhanded, predictable, and consistent
development of legal principles, fosters reliance
on judicial decisions, and contributes to the
actual and perceived integrity of the judicial
process.’” Robinson v Detroit, 462 Mich 439,
463; 613 NW2d 307 (2000), quoting Hohn v United
States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed
2d 242 (1998). “However, stare decisis is not to
be applied mechanically to forever prevent the
Court from overruling earlier erroneous decisions
. . . .” [462 Mich] 463.

Although under the doctrine of stare decisis we
hesitate to overrule a prior decision by the Court, we
may do so when we are certain that the case was
wrongly decided and that “less injury will result from
overruling than from following it.” McEvoy v Sault
Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904).
16
correct test for aiding and abetting felony-firearm in

Michigan is whether the defendant “procures, counsels,

aids, or abets in [another carrying or having possession of

a firearm during the commission or attempted commission of

a felony].”

The prosecutors must do more than demonstrate that

defendants aided the commission or attempted commission of

the underlying crimes (here murder and robbery). Rather,

the prosecutors must demonstrate that defendants

specifically aided the commission of felony-firearm.18

Establishing that a defendant has aided and abetted a

felony-firearm offense requires proof that a violation of

the felony-firearm statute was committed by the defendant

or some other person, that the defendant performed acts or

gave encouragement that assisted in the commission of the

felony-firearm violation, and that the defendant intended

18
Despite the concern expressed in Justice Taylor’s
dissent, our opinion does not make “an aider and abettor in
virtually any gun-related crime guilty of felony-firearm.”
Post at 1. As explained above, we specifically require the
prosecutor to do more than demonstrate that the defendants
aided the commission or attempted commission of the
underlying crimes. Nor are we suggesting that the fact
that the defendant incidentally benefited from the
principal’s possession of the firearm is sufficient to
convict the defendant of aiding and abetting felony-firearm
possession. Rather, to convict a defendant of felony-
firearm under an aiding and abetting theory, the prosecutor
must present evidence proving that the defendant
intentionally aided or abetted felony-firearm possession by
specific words or deeds.
17
the commission of the felony-firearm violation or had

knowledge that the principal intended its commission at the

time that the defendant gave aid and encouragement.

Carines, supra, at 768. In determining whether a defendant

assisted in the commission of the crime, the amount of

advice, aid, or encouragement is not material if it had the

effect of inducing the commission of the crime. People v

Smock, 399 Mich 282, 285; 249 NW2d 59 (1976). It must be

determined on a case-by-case basis whether the defendant

“'performed acts or gave encouragement that assisted,'”

Carines, supra at 768, quoting People v Turner, 213 Mich

App 558, 568; 540 NW2d 728 (1995), in the carrying or

possession of a firearm during the commission of a felony.

In each of the cases now before us, the prosecutor

established that a violation of the felony-firearm statute

was committed and that the defendant intentionally aided or

abetted that violation. The defendant in each case aided

or abetted felony-firearm by actively urging, inciting,

encouraging, or motivating the principal to use the weapon

that was in the principal’s possession. Implicit in the

use of a firearm is the possession of that firearm. Thus,

when a defendant specifically encourages another possessing

a gun during the commission of a felony to use that gun, he

aids and abets the carrying or possessing of that gun just

as surely as if he aided or abetted the principal in

18

obtaining or retaining the gun. Moreover, the defendant in

Harris encouraged and assisted the principal’s possession

of the firearm by specifically relying on that possession

to intimidate his own robbery victim and by specifically

ensuring that the principal would be able to successfully

enter and exit the scene of the crime while carrying the

firearm.

People v Moore

In this case, defendant Moore procured, counseled,

aided, or abetted the possession of a firearm during the

commission of a felony—the murder of Jacky Hamilton.

Although Moore did not “obtain or retain” the gun that

killed the victim, nor did he pull the trigger, his words

and actions incited Boylston to use the firearm that was in

his possession to do exactly that. Moore provoked Boylston

to shoot at the victims by attempting to grab the gun away

from him and by telling him to “give me the gun; I’ll do

it.”19 When Boylston first refused to shoot and turned to

walk away from the victims, Moore attacked his sense of

masculinity and threatened to dissociate himself from

19
Justice Cavanagh’s dissent argues that Moore’s
actions in attempting to take away the gun that Boylston
possessed “did not encourage his accomplice’s possession;
Moore was actually encouraging just the opposite.” Post at
5. But Moore’s words and actions, viewed in context, do
not evidence an intent to deprive Boylston of the gun, but
rather an intent to ensure that Boylston use the gun that
was in his possession.
19
Boylston if he did not shoot the two men. It is clear that

Moore’s words and deeds were intended to encourage Boylston

to use the gun against the two victims during the

commission of a felony. In so provoking and inciting a

hesitant Boylston to use the gun that he was carrying,

Moore necessarily induced Boylston to possess that gun.

Thus, applying the general aiding and abetting standard to

the facts of this case, we hold that there was sufficient

evidence in the record to establish that defendant

performed acts or gave encouragement that assisted in the

commission of the felony-firearm violation. Accordingly,

we affirm Moore’s felony-firearm conviction.

People v Harris

Defendant Harris drove his accomplice, Mays, to the

gasoline station. Harris first entered the store and

“cased” its interior on the pretense of asking for

directions. He left the store and then promptly reentered,

followed by Mays, who was carrying a gun. Although Mays

clearly had actual possession of the firearm at all times,

Harris specifically used his confederate’s possession of

that firearm to intimidate and rob a store customer.

Harris also encouraged Mays to “pop,” or shoot, the store

clerk when the clerk locked the register and refused to

hand over any money. When the attempt to rob the store

20

proved unsuccessful, defendant drove away with his

accomplice and the firearm.

Harris’s words and deeds, viewed in their entirety,

demonstrated his intent to procure, counsel, aid, or abet

the possession of a firearm during the commission of the

armed robberies. He first “cased” the store, thereby

ensuring that Mays could succeed in entering it while

carrying a gun. He then relied on May’s possession of the

firearm to facilitate his own robbery of the customer.

Finally, Harris expressly encouraged Mays to use the

firearm in his possession to shoot the clerk after the

clerk refused to give the men any money. Thus, Harris

specifically aided and abetted the commission of felony-

firearm. Accordingly, we affirm Harris’s felony-firearm

convictions.

IV

Because we have overruled Johnson’s narrow test for

aiding and abetting a felony-firearm in Michigan, we must

also note that the pertinent criminal jury instructions for

that crime are now invalid. The instructions for felony-

firearm under an aiding and abetting theory directly, CJI2d

11.35(6), and indirectly, CJI2d 11.36(6), currently state

“that the defendant intentionally helped the person who

possessed the firearm get or keep it.” The new

instructions should not include any of the limiting

21

language of Johnson. Just as our new test is no longer

limited to obtaining or retaining the firearm, our jury

instructions should likewise not be limited to the language

of getting or keeping that firearm.

Conclusion

There is no foundation in the language of either the

aiding and abetting statute or the felony-firearm statute

to support this Court’s narrow ruling in Johnson. To the

extent that Johnson required a defendant to assist in

either obtaining or retaining possession in order to be

convicted of felony-firearm under an aiding and abetting

theory, that decision is overruled. Following MCL 767.39,

the appropriate test for aiding and abetting felony-firearm

in Michigan is whether the defendant “procures, counsels,

aids, or abets in [the commission of a felony-firearm

offense].” Applying this standard, we hold that there was

sufficient evidence in each case to support the felony-

firearm convictions, and we affirm both defendants’

convictions.

Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

22

 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. 120543

CLARENCE D. MOORE,

Defendant-Appellant.
________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119862

ERWIN HARRIS,

Defendant-Appellant.
________________________________

CAVANAGH, J. (dissenting).

Today’s majority claims there are more ways to aid or

abet possession of a firearm during the commission of a

felony than those stated in People v Johnson, 411 Mich 50;

303 NW2d 442 (1981). Therefore, the majority sees fit to

overrule Johnson. This conclusory claim, however, is not

supported by a reasoned analysis grounded in the statutory
language of MCL 750.227b(1) and 767.39.1 Therefore, I must

respectfully dissent.

I. ANALYSIS

A fundamental flaw in the analysis offered by the

majority is that it does not distinguish between a

defendant’s actions in aiding or abetting the predicate

felony and aiding or abetting felony-firearm possession.

The majority correctly states that “the proper standard for

establishing felony-firearm under an aiding and abetting

theory is whether the defendant’s words or deeds

‘procure[d], counsel[ed], aid[ed], or abet[ted]’ another to

carry or have in his possession a firearm during the

1
MCL 750.227b(1) relates to the carrying or possessing
of a firearm when committing or attempting to commit a
felony, and states the following:

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
. . . .

MCL 767.39 relates to the abolition of the distinction
between an accessory and a principal, and states the
following:

Every person concerned in the commission of
an offense, whether he directly commits the act
constituting the offense or procures, counsels,
aids, or abets in its commission may hereafter be
prosecuted, indicted, tried and on conviction shall
be punished as if he had directly committed such
offense.

2

commission or attempted commission of a felony-firearm

offense.” Ante at 2. However, the majority then errs

because it does not use this standard in its analysis. The

majority finds there was sufficient evidence to convict

defendants of felony-firearm possession because they aided

or abetted in the commission of a crime. But it does not

matter that the defendant procured, counseled, aided, or

abetted the commission of a crime. What matters is that

the defendant, procured, counseled, aided, or abetted

felony-firearm possession. This analytical error permeates

the opinion and results in convictions that violate the

plain language, as well as the intent, of the statutes.

There is a difference between aiding or abetting the

use of a firearm and aiding or abetting the carrying or

possession of a firearm, yet the majority’s analysis is

devoid of this distinction. The majority admits that it

was not established at trial that defendants Harris and

Moore aided or abetted their respective accomplices in

obtaining or retaining a firearm. The majority explicitly

states, “Under the standard set forth in Johnson, each

defendant’s conviction would be reversed because neither

defendant specifically aided the principal in ‘obtaining’

or in ‘retaining’ the firearm for immediate or eventual

possession by the principal during the commission or

3

attempted commission of a felony.” Ante at 10. However,

the majority’s analysis does not describe what defendants

Harris and Moore did, other than encourage their respective

accomplice to use the firearm, to support convictions of

felony-firearm possession under an aiding or abetting

theory. The majority admits, “The defendant in each case

aided or abetted felony-firearm by actively urging,

inciting, encouraging, or motivating the principal to use

the weapon that was in the principal’s possession.” Ante

at 18 (emphasis added). Procuring, counseling, aiding, or

abetting the use of a firearm in a predicate felony is not

the same as procuring, counseling, aiding, or abetting the

carrying or possession of a firearm.

Regarding defendant Moore, the majority states that

Moore incited his accomplice to possess and use the firearm

by attempting to grab the gun away from him and attacking

the accomplice’s masculinity. “It is clear that Moore’s

words and deeds were intended to encourage Boylston [the

accomplice] to use the gun against the two victims during

the commission of a felony.” Ante at 20 (emphasis added).

I agree that defendant Moore’s attacks on the

accomplice’s masculinity encouraged the accomplice to use

the firearm. But the majority’s argument that Moore

encouraged possession by unsuccessfully trying to take the

4

firearm away is nonsensical. The accomplice already

possessed the firearm, and Moore tried to take it away.

Moore’s actions did not encourage his accomplice’s

possession; Moore was actually encouraging just the

opposite. Arguing that Moore’s actions, which sought to

divest his accomplice of possession of the firearm,

actually encouraged possession defies logic.

Regarding defendant Harris, the majority states,

“Harris expressly encouraged Mays [the accomplice] to use

the firearm in his possession to shoot the clerk after the

clerk refused to give the men any money.” Ante at 21

(emphasis added). The majority also states that Harris

“relied on May’s possession of the firearm to facilitate

his own robbery of the customer.” Ante at 21. As with

defendant Moore, the majority adequately explains how

defendant Harris encouraged the use of the firearm, yet

nowhere in the opinion is it explained how either defendant

aided or abetted the carrying or possession of the

firearms. In both of these cases what is really being

encouraged is the use of the firearm.

Contrary to the majority’s assertion, I am not

suggesting we treat a possessory offense differently from

any other crime. Nor am I suggesting that we treat aiding

or abetting felony-firearm possession differently from any

5

other crime. I am merely applying basic rules of statutory

construction and, once again, giving effect to the words

used by the Legislature. See Coleman v Gurwin, 443 Mich

59, 65; 503 NW2d 435 (1993). The difference between

possession and use is not a trivial one, and the fact that

the Legislature chose to state that MCL 750.227b(1) applies

only to a “person who carries or has in his or her

possession a firearm when he or she commits or attempts to

commit a felony” should not be ignored.

While a defendant can aid or abet felony-firearm

possession by physically assisting an accomplice in

obtaining or retaining a firearm, there are also other ways

to aid or abet an accomplice beyond physical assistance and

Johnson does not preclude convictions for nonphysical

assistance. A defendant can offer verbal encouragement to

an accomplice before the accomplice has possession of the

firearm or while the accomplice has possession of the

firearm. But to meet the statutory standards, the verbal

encouragement must relate to obtaining or retaining

possession, not just the use. And while a person must

indeed possess a firearm in order to use it, it does not

mean that a defendant who encourages the use of a firearm

that is already in the possession of an accomplice also

encourages possession. Interpreting the statutory language

6

in this manner would essentially make the felony-firearm

possession statute a strict liability statute for anyone

who commits or participates in a crime with an accomplice

who possesses a firearm. A fair reading of the statutory

language does not support the majority’s position.

II. THE REENACTMENT RULE

The majority also ignores the fact that the

Legislature reenacted the felony-firearm possession statute

after the Johnson decision, yet the Legislature did not

address the alleged “error” in Johnson. Under the

reenactment rule, “[i]f a legislature reenacts a statute

without modifying a high court’s practical construction of

that statute, that construction is implicitly adopted.”

People v Hawkins, 468 Mich 488, 519; 668 NW2d 602 (2003)

(Cavanagh, J., dissenting), citing 28 Singer, Statutes and

Statutory Construction (2000 rev), Contemporaneous

Construction, § 49.09, pp 103-112. The Legislature “is

presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that

interpretation when it [reenacts] a statute without change

. . . .” Lorillard, a Div of Loew’s Theatres, Inc v Pons,

434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978). “The

reenactment rule differs from the legislative-acquiescence

doctrine in that the former canon provides ‘prima facie

7

evidence of legislative intent’ by the adoption, without

modification, of a statutory provision that had already

received judicial interpretation.” Hawkins, supra at 488,

quoting Singer at 107. In overruling Johnson, the majority

reaches its desired result by ignoring the actions and

intent of our Legislature, as well as the plain language of

the statutes.

III. IMPROPERLY OVERRULING JOHNSON

Finally, I must address the majority’s stated

hesitancy to overrule Johnson, which was a unanimous

opinion of this Court. The majority’s zeal in overruling

Johnson cannot, under any definition, be considered

hesitancy. Its fervor results in an opinion that admits

that the defendants cannot be convicted without overruling

Johnson. The majority then offers a justification for

overruling Johnson that does not comport with the statutory

language used in MCL 750.227b(1) and 767.39. Further, the

majority provides no sound example of how a person can aid

or abet felony-firearm possession other than assisting in

obtaining or retaining the possession of the firearm.

While the majority has liberally peppered its opinion

with the word “possession,” merely claiming that defendants

aided or abetted the possession of a firearm does not make

it so. Besides the copious use of the word “possession,”

8

the majority only supports its decision to overrule Johnson

with conclusory statements that Johnson’s test was too

“narrow.” However, the statutory language and the actions

of our Legislature belie this erroneous conclusion.

IV. CONCLUSION

Accordingly, I respectfully dissent and would reverse

the defendants’ convictions for felony-firearm possession

because the convictions violate the statutory language of

MCL 750.227b(1) and MCL 767.39.

Michael F. Cavanagh
Marilyn Kelly

9

 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. 120543

CLARENCE D. MOORE,

Defendant-Appellant.

_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

V No. 119862

ERWIN HARRIS,

Defendant-Appellant.
_______________________________

TAYLOR, J. (dissenting).

I agree with part I of Justice Cavanagh’s dissent. I

write separately to emphasize my concern that the

majority’s opinion makes an aider and abettor in virtually

any gun-related crime guilty of felony-firearm. Yet, the

plain language of the statute only makes an aider and

abettor guilty of felony-firearm if his aiding and abetting
is directed toward the carrying or possession of the

firearm.1 That is the reading we should give the statute.

Under the Fourteenth Amendment to the United States

Constitution, it is required that no individual be forced

to speculate, at peril of indictment, whether his conduct

is prohibited. Dunn v United States, 442 US 100, 112; 99 S

Ct 2190; 60 L Ed 2d 743 (1979). This is an exercise of the

rule of lenity,2 which should control the resolution of this

case and cause us to conclude that all the felony-firearm

statute criminalizes is aiding and abetting the carrying or

possessing of a firearm, nothing more.3

Clifford W. Taylor

1
MCL 750.227b(1), the statute we are interpreting,
relates to the carrying or possessing a firearm when
committing or attempting to commit a felony, and states the
following:

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. . . .
2
The propriety of the rule of lenity was recently
reaffirmed by the Supreme Court in United States v
Granderson, 511 US 39, 54; 114 S Ct 1259; 127 L Ed 2d 611
(1994).
3
I recognize that MCL 750.2 provides that “The rule
that a penal statute is to be strictly construed shall not
apply to this act or any of the provisions thereof. . . .”
It is, of course, a fundamental axiom of American law,
rooted in our history as a people and requiring no
citations to authority, that the requirements of the
Constitution prevail over a statute in the event of a
conflict.
2