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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 Opinion 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. 

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 Unpublished opinion per curiam, issued August 30,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 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). 

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. 

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 

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 felonyfirearm 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 

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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 felonyfirearm 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 felonyfirearm 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