PEOPLE v ASHER
Docket No. 20898
Michigan Court of Appeals
February 9, 1976
67 MICH APP 174
Submitted October 8, 1975, at Detroit.
1. CRIMINAL LAW—ENTRAPMENT—OBJECTIVE TEST—POLICE CONDUCT—PREDISPOSITION OF DEFENDANT.
The objective test of entrapment focuses on the conduct of the police; entrapment exists if the police act in such a way as to instigate or manufacture the crime, regardless of the defendant‘s predisposition to commit the offense.
2. CRIMINAL LAW—ENTRAPMENT—TRIAL COURT.
Entrapment is a question to be determined by the trial court.
DISSENT BY J. H. GILLIS, P. J.
3. CRIMINAL LAW—ENTRAPMENT—OBJECTIVE TEST—REASONABLE PERSON STANDARD—POLICE CONDUCT—CASE-BY-CASE DETERMINATION.
The objective test of entrapment focuses on police conduct which is measured against a reasonable person, one “not ready and willing to commit” the crime, and entrapment exists only where police conduct is such that it could induce a reasonable person to commit the crime; it must be determined in each case whether the police offer is one of a reasonable quid pro quo for performance or one that is too attractive to refuse.
4. CRIMINAL LAW—ENTRAPMENT—NEED FOR GUIDELINES—CHARACTER WEAKNESSES—POLICE CONDUCT.
Clarification by the Michigan Supreme Court is needed to provide standards for applying the objective test of entrapment to cases involving persons with character weaknesses and police action which may prevail upon those weaknesses.
Appeal from Wayne, Victor J. Baum, J.
REFERENCE FOR POINTS IN HEADNOTES
[1-4] 21 Am Jur 2d, Criminal Law §§ 143-145.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Milmet, Vecchio, Kennedy and Carnago, P. C. (by David P. Phillips), for defendant.
Before: J. H. GILLIS, P. J., and BRONSON and T. M. BURNS, JJ.
T. M. BURNS, J. Defendant was charged with delivery of a controlled substance (cocaine) contrary to
At the hearing, Mark Parin, an undercover narcotics officer assigned to the Michigan State Police, testified that on October 17, 1973, he was instructed to attempt to purchase cocaine from defendant. Officer Parin contacted a Kevin Wyatt, an acquaintance of defendant‘s, and Wyatt directed Parin to defendant‘s residence. Parin informed defendant that he desired to purchase $60 worth of cocaine. Parin then drove defendant and Wyatt to the City of Westland. Parin gave defendant $60, defendant left the automobile, walked out of sight of Parin and returned a few minutes later, handing Parin a newspaper packet containing a white powdery substance.
On October 24, 1973, Parin again contacted defendant, requesting that defendant obtain cocaine for him, this time asking for a quarter of an ounce of the substance. Defendant agreed, told Parin he would need $350, and directed the officer to pick him up. Parin met defendant and drove him to a street address in the City of Wayne. Parin waited in the car while defendant entered the house. Defendant returned a few minutes later, and directed Parin to follow him into the house, where defendant took the $350, walked out of sight of the officer, and returned shortly with a newspaper packet containing a white powdery substance.
Subsequently, Parin attempted several times to contact defendant. In November of 1973, Parin telephoned defendant and requested another quarter ounce of cocaine. Defendant advised the officer that he would check with his contact. Defendant called Parin back and informed him that his contact was making a drug purchase that afternoon and that they would be able to make a purchase after that. That afternoon, Parin went to defendant‘s house and defendant informed him that his contact was unable to sell the narcotics at that time. Defendant then indicated that they could make the purchase from another friend who lived in Detroit. Parin declined.
At the evidentiary hearing, Kevin Wyatt testified that at one time he had lived in the same apartment complex as defendant. Wyatt was arrested by the City of Wayne police in October of
Both Wyatt and a social worker who had worked with defendant testified that defendant was a heavy alcohol drinker and user of Valium.
Defendant testified that when approached by Wyatt about obtaining cocaine for Parin, he at first declined but when Wyatt offered to give defendant some Valium, he agreed. Defendant also testified that he did not obtain narcotics for anyone else during the period involved in this case and that he did not profit from the drug sales, doing it only for the Valium.
Based upon these facts, the trial court ruled that, under the objective test of entrapment, defendant as a matter of law had been entrapped into procuring the cocaine for the police officer. Properly examining the conduct of the police in instigating the offense rather than defendant‘s predisposition to commit it, the court‘s basis for the decision was:
- That the government induced Wyatt, who was incarcerated and facing trial on an armed robbery charge, to cooperate with the police in obtaining cocaine from defendant.
- That the defendant was initially unwilling to assist in obtaining the narcotic.
- That defendant‘s resistance was weakened in part by the prospect of obtaining Valium from Wyatt.
- That such inducement was improper and attributable to the police because of Wyatt‘s assistance.
- That the offense was accomplished by defendant‘s being driven long distances by a police agent.
In applying the objective test of entrapment, the focus is on the conduct of the police. Regardless of the predisposition of the defendant to commit the offense, if the police acted in such a way as to instigate or manufacture the offense, entrapment exists. People v Henley, 54 Mich App 463; 221 NW2d 218 (1974), People v Turner, 390 Mich 7; 210 NW2d 336 (1973). This was the test applied by the trial court in the instant case. The trial judge heard the testimony of the witnesses and applied the proper test of entrapment. We find no error. Entrapment is a question for the trial court to decide. People v Habel, 53 Mich App 399; 220 NW2d 74 (1974).
Affirmed.
BRONSON, J., concurred.
J. H. GILLIS, P. J. (dissenting). A thoughtful and careful attempt to measure the facts of the instant case against the objective test of entrapment announced in People v Turner, 390 Mich 7; 210 NW2d 336 (1973), reveals the insufficient development of that test. Because my brothers’ opinion does not discuss the problems with the Turner, supra, statement of the objective test and their effect on the case at bar, I cannot join in it.
Turner, supra, eliminated the subjective test‘s emphasis on the defendant‘s predisposition to commit crime but retained its focus on police conduct. The Turner Court, quoting from Justice Stewart‘s dissenting opinion in United States v Russell, 411
“But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then—regardless of the character or propensities of the particular person induced—I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.”
That description suggests that the propensities and character of each individual defendant are not considered under the Turner, supra, objective test. Instead, police conduct is measured against a reasonable person—one “not ready and willing to commit” the crime. Thus, under the Turner test, entrapment apparently exists only where the police conduct is of such a nature that it could induce a reasonable person to commit crime. The Michigan Court of Appeals has followed that interpretation of Turner, supra. People v Zeegers, 61 Mich App 546; 233 NW2d 76 (1975).
A strict reading of that interpretation might lead to anomalous results. We realize that people do not often perform gratuitous acts for others. They usually expect compensation for their efforts. Consequently, we permit police to offer compensation as an enticement to performance of illegal acts. Nevertheless, we do not condone all offers of compensation. Some are so attractive that they cannot be refused, and where such an offer weakens an individual‘s resistance to the point that he accepts the offer, entrapment has occurred. Thus,
That presents no difficulty in a case such as Turner, supra, where the police played on defendant‘s desire to aid a friend. That desire is an attribute common to reasonable people. Consequently, in such a case, the individual defendant, for purposes of decision of the entrapment issue, fits into the reasonable person mold. Because that type of defendant and the reasonable person have the same resistance level and are therefore affected in the same way by any offer, the reasonable person standard works no unfairness on the defendant who is, in fact, a reasonable person.
The problem arises where the particular defendant is not a reasonable person, but, instead, has some character weakness that makes him more susceptible than the reasonable person to having his resistance to commission of crime weakened by certain police offers. For example, if the defendant is physically addicted to heroin and the police offer him heroin in order to entice him into procuring
Because the framers of the objective test were not confronted with a defendant suffering from a character weakness, we cannot know for sure whether they intended that the reasonable person standard be applied to all defendants. Nevertheless, realistically, I must assume that the framers of that test did not intend that individuals with character weaknesses in all cases be judged under the reasonable person standard. Yet, until the Michigan Supreme Court clarifies this matter, we are left with no standards for applying the objective test to individuals having character weaknesses. Thus we do not know what types of weaknesses lend themselves to successful invocation of the entrapment defense. For example, is a defendant entrapped only where he has a physical need for a drug, or is it sufficient that he has a psychological need? In addition, we do not know whether a defendant‘s ability to satisfy his need without police aid is relevant to the entrapment defense. Furthermore, we do not know whether knowledge by the police of a defendant‘s weakness is necessary for entrapment to exist. Because we have no method for answering those questions, they must be answered on an ad hoc basis, with each person
The instant case presents that very problem. The trial judge‘s conclusion that defendant had been entrapped was based on the following findings:
- That the government induced Wyatt, who was incarcerated and facing trial on an armed robbery charge, to cooperate with the police in obtaining cocaine from defendant.
- That the defendant was initially unwilling to assist in obtaining the narcotic.
- That defendant‘s resistance was weakened in part by the prospect of obtaining Valium from Wyatt.
- That such inducement was improper and attributable to the police because of Wyatt‘s assistance.
- That the offense was accomplished by defendant‘s being driven long distances by a police agent.
My brothers find no error in the trial court‘s conclusions. From their decision, I can only conclude that they believe a showing that defendant used Valium, the police agent apparently knew of that use and consequently offered the drug to entice defendant into procuring cocaine, and defendant accepted because his resistance was weakened by the offer, is sufficient to constitute entrapment.