Opinion
Docket No. 66345.
Decided August 2, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Timothy A. Baughman, Principal Attorney, Research, Training and Appeals, for the people.
Steven R. Sonenberg, for defendant Monroe.
Edmund W. Tropp, for defendant Morris.
Before: T.M. BURNS, P.J., and R.M. MAHER and CYNAR, JJ.
Defendants were charged with felonious assault, MCL 750.82; MSA 28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2). At a bench trial, defendants moved for a directed verdict on both counts. The trial court dismissed the felony-firearm charges but found defendants guilty of felonious assault. Defendant Morris was sentenced to six months and defendant Monroe was sentenced to one year in the county jail. The people appeal by leave granted.
At trial, the court granted defendants' motion for directed verdict on the felony-firearm charges on equal protection grounds. The court raised the issue of equal protection sua sponte. The court briefly discussed a case in which a Dearborn police officer had been charged with second-degree murder and felony-firearm. According to the trial court, the officer had pursued an individual into Detroit and bludgeoned the victim to death with his pistol. The felony-firearm count against the officer was dismissed, and the prosecutor failed to appeal the dismissal. The trial court decided that, in light of the Dearborn police officer case, defendants were not being equally treated and it was an abuse of prosecutorial discretion to charge defendants with felony-firearm. For this reason, the court dismissed the felony-firearm charges against defendants.
A circuit judge does not enjoy supervisory power over a prosecuting attorney. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115, 121; 215 N.W.2d 145 (1974). Whether to prosecute and what charge to file are decisions that generally rest in the prosecutor's discretion. United States v Batchelder, 442 U.S. 114, 124; 99 S Ct 2198; 60 L Ed 2d 755 (1979). Selectivity in enforcement is not in itself a constitutional violation. Selection must be based on an unjustifiable standard such as race, religion or other arbitrary classification in order to constitute a violation. Oyler v Boles, 368 U.S. 448, 456; 82 S Ct 501; 7 L Ed 2d 446 (1962). There must be a showing of clear and intentional discrimination. Snowden v Hughes, 321 U.S. 1, 8; 64 S Ct 397; 88 L Ed 497 (1943). The trial record does not show the existence of these elements of an equal protection argument. At most, the trial court found that defendants had been prosecuted despite the fact that the prosecution of a police officer on a similar charge had not been carried through to the appellate level. In fact, the general policy had been to bring and prosecute felony-firearm charges in all instances where a crime with a handgun had been committed.
There was no showing that the prosecutor had intentionally discriminated against defendants or that the prosecutor had discriminated on the basis of any suspect classification. Because the record does not reflect an equal protection violation, the trial court erroneously dismissed the felony-firearm count against each defendant.
We also direct the parties' attention to People v Glenn, 122 Mich. App. 675; 332 N.W.2d 404 (1982). The Court in Glenn held that, when a defendant has a firearm in his possession while committing a felony or when a defendant uses the firearm as a striking instrument to accomplish the felony, the defendant's conduct falls within the ambit of the statute which prohibits the possession of a firearm in the commission of a felony. See, also, People v Elowe, 85 Mich. App. 744; 272 N.W.2d 596 (1978).
Reversed and remanded for further proceedings consistent with this opinion.