Opinion
Docket No. 53094.
Decided October 26, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Monash Monash, P.C., for defendant.
Defendant was charged with the offenses of delivery of a controlled substance, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv) and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant withdrew his original plea of not guilty of delivery of a controlled substance and entered a plea of guilty to that charge. He waived trial by jury, was tried by the court in place of a jury, and was found guilty as charged on the felony-firearm count.
The court sentenced the defendant to serve the mandatory two years in prison on the felony-firearm count followed by a two-year period of probation and costs on the delivery of a controlled substance count. Defendant appeals as of right.
At the time that defendant was convicted, a split existed in the Court of Appeals on whether possession of the firearm used was necessary for a conviction under the felony-firearm statute. This split has since been resolved by the Supreme Court in People v Johnson, 411 Mich. 50; 303 N.W.2d 442 (1981). The Court ruled that, in order 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 or so assisted in obtaining or retaining such possession. People v Johnson, supra, 54.
Under this rule, defendant's conviction under the felony-firearm statute would be reversed because there was no evidence produced at trial that defendant had assisted in obtaining possession or had assisted in the retaining of possession of the paratrooper-type carbine held by a codefendant during the drug transaction.
Disposition of the instant appeal, then, hinges upon the question of whether Johnson is to be applied retroactively.
Complicating this determination is the fact that the Supreme Court gave no indication whether it intended Johnson to have retroactive or prospective application.
As a general principle, full retroactivity is the rule and prospectivity is the exception. People v Markham, 397 Mich. 530, 548; 245 N.W.2d 41 (1976), (LEVIN, J., dissenting), People v Bryant, 80 Mich. App. 428, 435; 264 N.W.2d 13 (1978), lv den 402 Mich. 942 (1978). However, retroactivity may be limited where a balancing of three factors so dictates. The three factors are: (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect on the administration of justice of the new rule. See, e.g., Linkletter v Walker, 381 U.S. 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971), People v Markham, supra, People v Kamin, 405 Mich. 482; 275 N.W.2d 777 (1979), People v Bryant, supra, People v Reese, 97 Mich. App. 785; 296 N.W.2d 172 (1980).
Applying the first factor of Hampton, we find the Court's purpose in Johnson to be to mend the split which developed within the Court of Appeals concerning application of the felony-firearm statute by providing criteria for determining guilt based on participation not involving actual possession or use of a firearm during the commission of a felony.
Relying on People v Kamin, supra, 494, this Court has indicated that a purpose of clarifying existing law is sufficient for the retroactive application of a rule of law. People v Slager, 105 Mich. App. 593; 307 N.W.2d 376 (1981). See, also, People v Szymanski, 102 Mich. App. 745, 747; 302 N.W.2d 316 (1981).
The second and third factors of Hampton can be considered together since the extent of reliance on the old rule often determines the effect upon the administration of justice. People v Hampton, supra, People v Taylor, 99 Mich. App. 613, 616; 299 N.W.2d 9 (1980).
Where there has been profound reliance on the old rule, the effect of retroactive application of the new rule on the administration of justice could be marked. People v Rich, 397 Mich. 399, 403; 245 N.W.2d 24 (1976). It cannot be said that there has been profound reliance on the old felony-firearm rule. In fact, the old rule consisted of two or more inconsistent applications which led to the Court of Appeals split. In addition, the statute, enacted on January 1, 1977, is a virtual legislative newborn and, as such, has not been the subject of profound reliance.
The Supreme Court in Markham, supra, 547, indicated that the third retroactivity factor focuses primarily on the impact on prosecutorial and judicial resources of requiring a large number of retrials. Retroactive application will not burden the courts with an excessive number of retrials. However, in order to insure that retrials remain at a reasonable level, we limit the retroactive application of the new rule to those cases pending on appeal on the date of the Johnson decision. Such application serves a two-fold purpose: it limits the number of felony-firearm cases to be retried, and it provides consistency in the application of the statute in those cases pending on appeal, insuring that this Court's cases will receive the same disposition that Supreme Court cases have in the past. People v Bryant, supra, 437.
The felony-firearm rule of Johnson, then, meets the three-factor test for retroactivity articulated in Hampton and may be applied only in cases which had raised the issue on appeal when Johnson was decided.
Applying the rule of Johnson in the instant case, defendant's conviction on the felony-firearm charge is reversed, and the case remanded to the trial court for an evidentiary hearing on the felony-firearm charge consistent with the rule of Johnson.
Reversed and remanded.
While I agree with the majority's conclusions regarding the retroactivity of People v Johnson, 411 Mich. 50; 303 N.W.2d 442 (1981), I must dissent from the ultimate disposition of this appeal and that of codefendant Derrick Louis Pounds (People v Pounds, Docket Nos. 53862-53863, decided October 27, 1981 [unreported]).
Under Johnson, supra, proof of aiding and abetting the crime of possession of a firearm during the commission of a felony requires that it be shown that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. Id., 54. In Johnson and in the subsequent disposition by order of other cases, the Supreme Court has revealed appropriate methods for disposing of cases where this standard has not been met.
In a guilty plea case, where the record lacks a sufficient factual basis to support the conviction, the matter is to be remanded to give the prosecutor the opportunity to establish the missing "possessory" element. If the prosecutor is successful and there is no contrary proof, the conviction is to be affirmed; if the prosecutor cannot establish the missing element, the conviction, of course, must be set aside. Finally, if contrary evidence is produced, the matter is to be treated as a motion to withdraw the tendered guilty plea, to be decided by the trial court in an exercise of discretion. Id., 54-55; see, also, Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975).
In cases tried before juries, the Supreme Court has remanded for new trial, since the essence of the trial error in such cases is that the instructions given were improper. People v Lankford, 411 Mich. 939 (1981). Since the original jury cannot be reassembled to again determine the defendant's guilt or innocence, retrial is the only practical solution.
See, also, People v Gibson, 411 Mich. 993 (1981), People v Louis MacKenzie, 411 Mich. 984 (1981), People v Gregory Taylor, 411 Mich. 984 (1981), People v Warren Moore, 411 Mich. 983 (1981), People v Williamson, 411 Mich. 948 (1981), People v Buckles, 411 Mich. 914 (1981).
For convictions by a court sitting without jury, the Supreme Court has indicated a different procedure for remand. In People v Zmijewski, 411 Mich. 931, 932 (1981), the Court remanded such a case back to the trial court
"with instructions that the trial judge review the trial transcript and make additional and further findings of fact regarding whether the prosecutor established that defendant aided or abetted in the commission of this crime. The court is to apply the standard announced in this Court's decision in People v Johnson and Tavolacci. If it determines that the crime was established, defendant's conviction stands affirmed. If it determines that the crime was not established, the court shall enter an order setting aside the conviction because the prosecutor failed to establish a necessary element of the crime of felony-firearm."
It is noteworthy that in this bench trial situation, the Court made no provision for the submission of additional proofs by the prosecution, but instead limited the trial court to review of the original trial transcript. Thus, there is no cause to remand the present matter back to the trial court for an "evidentiary hearing", as the majority proposes.
This limitation to the original trial proofs is mandated by the Double Jeopardy Clauses of the federal and state constitutions. If the evidence initially adduced at trial was insufficient to support a finding of guilt, the constitution forbids retrial to afford the prosecution the opportunity to supply additional evidence. Burks v United States, 437 U.S. 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978), Hudson v Louisiana, 450 U.S. 40; 101 S Ct 970; 67 L Ed 2d 30 (1981). In this respect, we distinguish appellate reversals for trial errors from those based on a failure of proof. Burks v United States, supra, 14-16. A reversal for a trial error is neutral with regard to the guilt or innocence of the defendant. Thus, retrial is appropriate since it satisfies both the interest of the accused in having a fair adjudication of guilt and that of the public in insuring that the guilty are punished. Id.
"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.[10] Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it has decided as a matter of law that the jury could not properly have returned a verdict of guilty.
"[10] In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. See American Tobacco Co v United States, 328 U.S. 781, 787, fn 4 [ 66 S Ct 1125; 90 L Ed 1575] (1946)."
437 U.S. 1, 16. (Emphasis in original.)
In other circumstances I would advocate a remand to allow the trial court to reconsider the trial transcript in light of People v Johnson, supra, as the Supreme Court did in Zmijewski. However, we have already determined, and I believe correctly so, that there was "no evidence produced at trial" to satisfy the requirements of Johnson. A remand to trial court in this situation would be a superfluous gesture, wasteful not only of the trial court's time but of the state resources expended by further prosecutorial effort. As in any other case where insufficient evidence has been presented to the trier of fact, the matter should be dismissed with prejudice.