PEOPLE OF MI V D'ANDRE D CALLOWAY
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Opinion
Chief Justice
Maura D. Corrigan
Justices
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
commission of a felony).a
of
a
firearm
during
the
He argues that these convictions
violate the federal and state prohibitions against double
jeopardy.b
jeopardy
The Court of Appeals rejected defendant=s double
claim,
holding
that
its
decision
a
in
People
v
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.
593, 599; 628 NW2d 528 (2001).
of
the
United
against
States
governmental
and
People v Herron, 464 Mich
The double jeopardy clauses
Michigan
abuses
constitutions
for
both
(1)
protect
multiple
prosecutions for the same offense after a conviction or
acquittal
offense.
and
(2)
multiple
punishments
for
the
same
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
against
Court
multiple
discussed
the
punishments
in
constitutional
Mitchell,
protections
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Unpublished opinion per curiam, issued August 30,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
imprisonment imposed for the violation.
terms
of
(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
additional
Legislature=s
felony
charge
intent
and
Ato
sentence
provide
whenever
for
a
an
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
defendant
could
in
the
statute,
constitutionally
it
be
is
clear
given
that
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
S T A T E
M I C H I G A N
O F
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
firearm while committing a felony (felony-firearm).2
a
He
claims that the two latter convictions for the same act,
possessing a single firearm on a single occasion, violate
the
double
jeopardy
clauses
Michigan Constitutions.
analysis,
I
concur
in
of
the
United
States
and
While I disagree with the Court’s
the
result
it
reaches.
I
write
separately to reiterate what I believe to be the proper
analysis
under
the
1
MCL 750.224f.
2
MCL 750.227b.
controlling
precedent
of
the
United
States Supreme Court and this Court.
The
multiple
bar
against
punishments
double
for
the
jeopardy
same
protects
offense.
against
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).
intent in clear terms.
To do so, it must express this
Mitchell, p 696, citing People v
Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984).
of
lenity
requires
that
the
courts
presume
The rule
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.
devised
to
protect
substantial
2
The analysis has been
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
of
punishments
court
could
infer
the
intent
multiple
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
felony-firearm
social
firearm
and
norms.
predecessor
The
are
dissenting).
of
is
to
with
a
statutes
assault
statute
preserve
intended
firearms.
This
assault
assault
meant
statute
possession
serious
to
the
protect
and
deter
p
common-law
The
the
700
inference
The
different
its
order.
Mitchell,
supports
firearm.
felonyunlawful
(KELLY,
J.,
that
the
Legislature intended to provide additional punishment of a
person who commits an assault while in possession of a
3
firearm.
The
assaulted
by
a
rationale
person
was,
having
presumably,
ready
access
that
to
someone
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
commit a felony with a firearm in their possession.
who
Id.
Similarly, the felon-in-possession statute is intended to
deter
the
possession
of
firearms
previously committed a felony.
by
those
who
have
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
statute do not undercut this analysis.
firearm,
unlawful
concealed
weapon
possession
(CCW),
and
by
a
the
felony-firearm
Unlawful sale of a
licensee,
altering
the
carrying
markings
firearm,4 do not result in a felony-firearm violation.
majority
determined
that
this
list
was
exclusive
of
a
a
The
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.
analysis,
it
becomes
When one applies the social norm
apparent
that
the
felony-firearm
statute and its four exceptions protect diverse interests.
The
unlawful
facilitate
unlawful
deadly
they
sale
the
regulation
possession
weapons
might
different
used
from,
and
of
statute
from
be
felony-firearm
statute
and
being
the
firearms.
and
the
available
imprudently.
more
statute,
markings
narrowly
which
The
statute
licensee’s
CCW
statute
in
situations
These
where
interests
tailored
protects
prevent
than,
against
are
the
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.
conclusive
It should have done so, given that no
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
underlying
held
felony
that
for
felon-in-possession
felony-firearm.
This
can
be
per
the
curiam
opinion affirms that holding in a case in which an assault
conviction
could
provide
felony-firearm conviction.
the
underlying
felony
for
the
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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
