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**________________________________** Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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.** 

**I 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**c Unpublished opinion per curiam, issued August 30,**  **2002 (Docket Nos. 232225, 232274).** 2**783 (1986).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**  A **state 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 pa**  **id 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** A **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.**  @ 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).** 4**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** 

5**_______________________________ v**  **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,**  **Nos. 122430, 122431 D’ANDRE D. CALLOWAY,**  **Defendant-Appellant.**

**K ELLY**  **, J. (**  concurring in result only **)** . **Defendant was convicted of an assault, for being a felon in possession of a firearm**  **1 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**

2**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 (K ELLY**  **, 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** 

3**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** 4**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**

6**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).**  7