*1 491 v Johnson PEOPLE v JOHNSON Argued April 9, (Calendar 4). July 9, Docket No. 118351. 2002 No. Decided 2002. Johnson, police city Pontiac, pleaded Jessie B. officer for the of guilty in the Oakland Circuit Court of two counts of 650, grams with intent to deliver more than but less than court, Gardner, J., imposed cocaine. The Samuel C. sentences agreement, people appealed. under terms of a sentence and the Appeals, Young, P.J., JJ., The Court of and O’Connell and Nykamp, resentencing App (1997). reversed and remanded for 223 170 Mich remand, pleas On the defendant withdrew his and moved to dis- charges police ground entrapment. court, miss the on the The Breck, J., granted motion, finding entrapment. E David Appeals, (Wilder, P.J., Court JJ. Holbrook, Jr., McDonald, dissenting), unpublished opinion per (Docket in affirmed an curiam 219499). appeals. No. The defendant opinion by Young, joined by In an Justice Chief Justice Corrigan, held,-. Supreme and Justices Taylor Court Markman, entrapped Michigan’s The defendant was not under current police engage test. The did not in conduct would law-abiding person
induce a to commit a crime similar circum- stances, reprehensible nor was the conduct in this case so as entrapment. to constitute Michigan, entrapped 1. In a defendant is considered if the impermissible engaged either conduct that would induce a law- person abiding to commit a crime in similar circumstances or in reprehensible conduct so that it cannot be tolerated. present nothing where law enforcement officials more than an opportunity crime, entrapment to commit the does not exist. examining governmental activity imper- 2. When whether would missibly conduct, induce criminal a court should consider whether appeals sympathy friend, there existed to the defendant’s as a defendant had been known to commit the crime with which he was any charged, lapses long investigation there were time between the arrest, any and the there existed inducements that would make the unusually hypothetical commission of a crime attractive to a law- abiding citizen, there were offers of excessive consideration or 466 Mich enticement, guarantee alleged other there was a that the acts as illegal, whether, extent, any govern- crimes were not and to what pressure existed, favors, ment whether there existed sexual there any arrest, any government proce- were threats of there existed *2 culpability dures that tended to escalate the criminal of the defen- dant, police any informant, there was control over and whether the investigation targeted. Appeals clearly regarding 3. The Court of erred each of the fac- persuaded police engaged tors that it to conclude that the in con- person law-abiding duct that would induce a to commit a crime in remaining similar circumstances. Because none of the factors are issue, by preponderance the defendant failed to establish a police engaged the evidence that the in conduct that would induce person law-abiding a to commit a crime in similar circumstances. finding The Court of also erred in that defendant by preponderance established of the evidence that the con- reprehensible entrapment. duct in this case was so as to constitute 4 Because defendant’s case fails to meet even the current more objective entrapment, question lenient modified test of whether adopt subjective entrapment the Court should the federal test for Corrigan need not be decided. as Chief Justice has raised questions regarding constitutionality any judicially serious entrapment Michigan, People Moffett, created test in v 464 Mich (2001) (Corrigan, C.J., dissenting), Legislature 878-899 should questions legislative consider these and determine whether a response is warranted. part Justice Weaver concurred all but m(c) opinion, judicially which hints that the created defense may question be unconstitutional and then refers that unanswered Legislature. to the Reversed and remanded. joined dissenting, that, Justice Justice stated Cavanagh, Kelly, although entrap did not the defendant into the second they
transaction, entrap did him into the first transaction. The majority’s mischaracterization of the defendant’s involvement directly Supreme duty give conflicts with the Court’s deference credibility light testimony sup- determinations in the of direct porting Moreover, credibility judgment them. it uses its own supersede that of the lower courts to conclude that the defendant duty knew about his to handle the before the first transaction. Granholm, Attorney M. General, Thomas Jennifer L. Casey, Solicitor General, Gorcyca, David G. Pros- v Johnson Opinion of the Court
ecuting Attorney, Joyce Appellate Todd, F. Chief, Divi- Prosecuting sion, and Robert C. Williams, Assistant Attorney, people. for the
Robyn defendant-appellee. B. Frankel for the Amici Curiae:
Joseph Duggan, K. Sheeran, President, E. Michael Prosecuting Attorney, Jeffrey Caminsky, Princi- pal Attorney, Appeals, Attorneys Prosecuting for the Michigan. Association Attorney M. Granholm, General, Thomas Jennifer Casey, Gorcyca, L. General, Solicitor David G. Pros- ecuting Attorney, and William E. Molner, Assistant Attorney Prosecuting Attorneys General, for the Appellate Service. entrap- J. This case involves the defense of
Young,
*3
ment. The circuit court found that defendant was
entrapped by
police
charges
and dismissed two
with intent to deliver more
225,
than
grams
but
less
than 650,
of cocaine. MCL
333.7401(2)(a)(ii).
Appeals
The Court of
affirmed in a
split decision.1 We conclude that the lower courts
finding
entrapped
erred in
that defendant was
Michigan’s
under
current
test.
v
(1991)
Juillet, 439
34, 56-57;
Mich
Opinion the Court proceedings con- remand to the trial court for further opinion. sistent with this
I. FACTS AND PROCEEDINGS police city was a officer in the of Pon- Defendant city in the of Pontiac that tiac. He also owned a house he rented out as a residence. subject of a criminal investi-
Defendant became the gation former turned after one of defendant’s tenants reported police depart- informant and to the Pontiac operating ment his that defendant was instrumental drug informant rented house as a den. The indicated that he sold crack cocaine from house defendant’s knowledge Further, with defendant’s full and consent. according arranged, over- informant, protected drug-selling operation. In saw, and exchange, portion defendant received a substantial profits from the sales. police
The Pontiac called in the state for investigation assistance in their of defendant. An police department, undercover officer from the state Sykes, by Lieutenant was introduced the informant to major drug defendant as dealer in Detroit and expand operations Mount Clemens who wished to his Sykes, into Pontiac. Defendant to meet with pursuant any police investigation but not he was conducting propositioned himself. Defendant was protection security “rip- to serve as from Sykes’ drug operations, offs” and raids for as identify potential well as to locations dens *4 compensated Pontiac. Defendant was to be for his participate only agreed services. Defendant to after Sykes he determined that was not an undercover People v Johnson Opinion of the Court officer known to defendant’s fellow Pontiac officers. attempt Sykes report Defendant made no to arrest or illegal investigation. his activities for further Sykes’ request, accompany At defendant Sykes February to a mall on 1992,to assist him in purchasing drugs supplier. supplier from a was in reality another undercover state officer. Sykes parking
Defendant and
arrived at the mall
lot
preliminary
in different vehicles. After some
discus-
Sykes
sions,
drove over to the undercover officer to
staged drug
make the
deal, while defendant walked.
gun
pocket,
Armed with a
in his
defendant stood one
lengths
passenger
and a half car
from the
side of the
second undercover officer’s vehicle. After the trans-
Sykes
began,
action
directed defendant to come to
the driver’s side of the undercover officer’s vehicle.
Sykes
package
drugs
then handed defendant the
supplier
staged drug
received from the
in the
deal.
package
Sykes’
Defendant took the
and returned to
Sykes.
vehicle and waited time,
At that
expressed
proce-
regarding
some confusion
the exact
stating
dures he was to follow,
that he needed to
Sykes
know what to do “from A Z.”
testified, and
audiotapes
February
7, 1992,
deal confirm,
Sykes
wanted defendant to take the
back
package
car,
to his
them,
check
ensure that the
notify any problems. Sykes
correct, and
duty
stated that in order for defendant to fulfill his
protect
against “rip-offs,” defendant would be
required
drugs purchased.
to hold and examine the
Sykes explained
supplier
that he could not watch the
package
and the
at the same time. After this conver-
Sykes weighed
sation, while defendant and
cocaine, defendant indicated that as a result of their
*5
Opinion Court understanding discussion he had a better of what Sykes express him do. wanted to Defendant did not perform explained by unwillingness his to the duties Sykes. Sykes paid $1,000 then defendant for his assistance. Sykes drug
Sometime after this first deal, asked participate defendant if he wished to in future okay longer deals and told him that it was if he no participate. wanted to Defendant indicated that he wanted to be included in future transactions. As a similarly staged drug result, second, a deal occurred immediately 4, 1992, on March after which defendant was arrested. charged posses-
Defendant was
with two counts of
sion with intent
deliver more
225,
to
than
but less
grams
initially
650,
than
of cocaine. Defendant
plea
visiting judge
a
entered Cobbs2
with a
for two
thirty years,
consecutive sentences of
five to
substantially
sentences that were
less than the
mandatory statutory
twenty years
minimum of
each offense. these sentences were
unsupported by
being
reversed as
substantial and
required
compelling
depart
reasons
from the
mandatory statutory
App
minimum. 223 Mich
(1997).
175;
2 People Cobbs,
276;
(1993).
v
443 Mich
Opinion the Court drug possession, entrapping thus of actual possessions. into the indicated, As Court affirmed split “[b]ecause decision. The wrote that many of the factors indicative of existed case, in this we met hold that defendant has his bur- proving den of that the conduct would have person law-abiding induced an otherwise similar in. circumstances as defendant charged.” commit offenses *6 Slip “Sykes’ op also at 3. It concluded reprehensible conduct in this case was so as to con- entrapment.” stitute Id. dissenting judge argued that defendant was not
entrapped participated willingly because “defendant proposed enterprise” police in the criminal nothing provide did opportunity more than defendant an op Slip
to commit the crime.
at 1. Fur-
majority’s
disagreed
ther, the dissenter
with the
alter-
Sykes’s
repre-
native conclusion that
conduct was so
entrapment.
hensible as to establish
initially
plaintiff’s application
This Court
held
in
abeyance
People
pending our consideration of
v Maf
(2001),
fett,
878;
464 Mich
633 NW2d339
in which we
ultimately
appeal.
granted
denied leave to
We then
appeal
parties
directing
in
case,
leave to
this
among
include
issues
be briefed whether this
adopt
subjective entrapment
Court should
the federal
briefing.
test, and invited amicus curiae
II. STANDARD OF REVIEW
entrapment
finding
A trial court’s
is reviewed for
supra
clear
at 80.
error
Jamieson,
error.
Clear
exists
498
m.
in
Michigan,
Under the current
test
if
entrapped
(1)
is considered
either
impermissible
in
conduct
that would
engaged
law-abiding person
induce a
to commit a crime
(2)
engaged
similar circumstances
or
reprehensible that it
conduct so
cannot be tolerated.
Juillet, supra; People Ealy,
App 508, 510;
v
Mich
A. CRIMINALCONDUCT INCLUDING activity When whether examining governmental impermissibly conduct, would induce criminal several factors are considered: whether existed (1) there appeals sympathy to the a friend, (2) defendant’s as been whether the defendant had known to commit the crime with which he was whether charged, (3) any lapses there were time between the investi- long any gation arrest, (4) and the whether there existed inducements that would make the commission of a unusually hypothetical crime attractive to a law- v Johnson
Opinion of the Court abiding (5) of ex- whether there were offers citizen, (6) enticement, or other consideration cessive alleged guarantee acts that the whether there was (7) illegal, what and to whether, were not as crimes any pressure (8) government whether existed, extent, (9) were there favors, sexual whether there existed any any (10) whether existed of there arrest, threats procedures government escalate the that tended to culpability (11) whether defendant, of the criminal any (12) informant, and was control over there supra targeted. investigation Juillet, was the whether at 56-57. entrapped, holding was the Court
In
that defendant
previously
Appeals
not
found that defendant had
of
possession
deliver
with intent
committed
procedures employed
charged,
offenses
government
to the
defendant’s conduct
escalated
charged
offer of
offense, and the
consideration
it held
factors,
of these
excessive. On the basis
three
many
indicative of
of the factors
“[b]ecause
burden
the defendant “met his
existed,”
proving
have
conduct would
of
law-abiding person in similar
an otherwise
induced
to commit the offenses
as defendant
circumstances
Slip
respectfully disagree.
op
charged.”
We
at 3.
defen-
while
noted that
First,
the Court
“merely
and that no
owned” a crack house
dant had
or
was a
dealer
existed that defendant
evidence
ample
presented
ignored
it
evidence
user,
even a
previously
in fact
committed
that defendant had
possession
To be
with intent to deliver.
offense
charge
with intent to
convicted
pos-
knowingly
must
deliver, the defendant
have
to deliver
substance, intended
a controlled
sessed
*8
500
466 Mich 491
Opinion of the Court
else,
that substance
someone
substance
possessed
actually
must have
been cocaine and
People
have known
defendant must
it was cocaine.
v
(1998).
Crawford,
376, 389;
458 Mich
NW2d
582
785
physical possession
unnecessary
Actual
is
for a con-
possession
deliver;
viction of
intent
construc-
possession
People
will
Konrad,
tive
suffice.
v
449
(1995).
263, 271;
Mich
provided protection operation for the and received a portion profits specifically sales, from quarter $200 for each ounce of sold from the house. suggests determining
The dissent that in that defen- engaged opinion dant had “strips activities, our credibility the deference that is due determina- tions made lower courts . . . .”Post at 514.The dis- previ- sent is Our mistaken. conclusion that defendant ously possessed cocaine is one we make as a matter of law. What the dissent concedes, that “the supports record the Court of conclusion that v Johnson Opinion Court *9 nothing house own a crack did more than defendant money keep possession. accept Post silent,” is dissent, we do not limit our Further, unlike the at 512. lower courts erred to of whether the review testimony, hearing rather review the entire but the testimony hearing arguably lends record. While the tapes admit- conclusions, different the audio itself to only the record do not. While the dissent ted into testimony regarding hearing corrobo- an officer’s cites recordings of defen- the undercover audio ration, undisputedly establish that defen- conversation dant’s operation: played in dant role the invest it or So I can take the hundred and [Informant]: what? man, you Alright, gonna give one more I’m
[Defendant]: shot. arrangement, Okay, dig, the two the same [Informant]: every quarter?
off Yeah. [Defendant]: past partici- of defendant’s
As far as corroboration taped telephone pation in this first activities, informant and defendant is conversation between the previously evidence that defendant received clear every by quarter $200 ounce of cocaine sold the for informant at the house and that defendant wished arrangement. to continue this alleged circumstances, it clear these
Under these is previous as defendant could serve the actions possession with intent for a conviction for foundation theory. possession under a constructive to deliver yet duty informant, not Defendant had a to arrest the only permit drugs, informant to sell he did he the opera- money provide protection accepted 466 Mich Opinion the Court of protection, tion. such not drugs Without would have been from the Accordingly, sold house. disposition controlled at the house he profits owned and shared in the doing. so For reasons, these we find error in clear the lower court’s deduction that there was insufficient evidence to surmise previously that defendant had not committed possession offense with intent to deliver Further, cocaine. we agree dissenting judge of Appeals the Court prior that defendant’s actions, very least, are sufficient to establish the charge with intent to deliver cocaine as an aider and abettor. See v Sammons, 191 Mich *10 App 371-372; 478 NW2d 901 (1991). contrary
Second, the Court of majority, we are the procedures employed not convinced that by police the escalated culpabil- defendant’s criminal ity. Appeals majority The Court of wrote: procedures employed by the escalated defen-
[T]he merely owning posses- drug dant’s conduct from a house to Sykes initially sion with intent to deliver cocaine. “hired” protect against defendant to arrest and theft and inform Sykes any potential drug staged raids. At the first buy, however, called defendant over and handed package only defendant the of cocaine. It was the after first transaction defendant was informed that he was expected drugs, them, to handle the check and ensure that package “right.” the This active involvement was not prior contemplated buy. Sykes’ actions, therefore, to the passive served to escalate defendant’s in the involvement enterprise participation beyond scope active what pressured defendant had to beforehand and defen- complying Sykes’ requests dant into with in order to remain part enterprise. [Slip op at 3.] People v Johnson
Opinion Court majority’s whether the esca- unclear It is somewhat analysis its assessment of defen- was based on lation activity prior drug his rental home or its con- dant’s expected role in the under- about defendant’s clusions operation. regardless of what the cover escalated, held was it erred. previous actions above, defendant’s As discussed operation concerning amounted to his house possession with intent to deliver. Both offenses operation charged were as a result of the undercover possession Therefore, with to deliver. no con- intent operation in undercover duct the state prior criminal could serve to escalate defendant’s provided activity. government simply Rather, opportunity defendant with an additional to commit a previously Presenting crime that he had committed. opportunity nothing more than an to commit the entrapment. equate Butler, crime does not activity supra. previous drug Because defendant’s deliver, amounted to with intent to activity nothing case did undercover at issue this present opportunity more than defendant with an Accordingly, to commit that crime. no escalation occurred.
Similarly, culpability defendant’s was not escalated regard to the at the scene of the first transaction *11 play drug agreed to in the undercover role defendant Appeals the Court of transaction. touchstone of drugs opinion regard placing the in this was that drug scene of the first the hands of defendant the agreed to a violation of what defendant had deal was record leads us to do. our review of the 466 Mich 491 Opinion the Court touching drugs conclude that the have should not surprise come as a to defendant.3 taped Although recording the of the first suggests pre- transaction that was unsure cisely beyond “protec- providing what was he to do tion,” that confusion not on was based defendant’s agreement disagree lack of to do more. We with the argument dissent’s that the defendant’s confusion day about his role the the on transaction first agreed-upon an absolute indication of defendant’s enterprise. Rather, role in the entire the record days many shows that defendant indicated willing before first transaction that he was han- to drugs. Sykes dle Indeed, defendant was hired protect against arrests, and secure raids, “rip-offs.” While the Court of construed “rip-off” narrowly possible by equating as as it with against “rip-off” protecting “theft,” would seem to ensuring drug packages include received at drugs quantity negotiated deals contain actual quality, requires necessarily taking a task that drugs properly inspect of the in order to audiotape A them. recorded of defendant and record. handle the handling ing. actual audio ample agreement ties would have to handle court’s characterization of the record or a failure to of the record. While the courts We note that A full review of the evidence that defendant credibility correctly was made drugs there was no evidence that defendant was informed that he recordings drugs. concluded that defendant could not have at the transactions determinations. the dissent’s Contrary regarding hearing transcript taped recordings, to the dissent’s on the all the audio investigation rationale fully Rather, is February understood that his role included based, again, our conclusion is based on the does indeed reflect that all as we tapes that were admitted into the allegation, concluding give 7th audio provide below, supplies introduced at the hear deference on its limited review this is not a mis tape, expected no such the trial lower par *12 People 505 v Johnson Opinion of the Court arrangement staged their before the first
discussing Sykes transaction demonstrates that informed he would have handle the drugs defendant that to on occasion: probably
Sykes: occasion, gonna I’m . . . -And on need expertise accompany pick up package your me or to to you just two, okay.... if, know, run’here, there, pick So run okay. basically up some, straight, That’s, and we’ll be that’s you do, got I’ll run the rest. all that to Okay.[4] Defendant: addition, participate
In
defendant’s
to
willingness
is
charged
crimes
evidenced
his
agreement
participate
partici-
in further
transactions
he
after
pated
transaction,
in the first
which
his
included
tak-
ing possession of the
We farther note that the
drugs.
second
transaction between defendant and the
exposes
undercover
officers
a consideration
appear
that the lower courts
to have overlooked dur-
their review. Initial
ing
entrapment does not immu-
liability
nize a defendant
subsequent
from criminal
readily
transactions
that he
and willingly undertook.
People Crawford,
See
v
establishes defendant’s [4] At the very least, this approval exchange constructively possess drugs. between and defendant clearly 466 Mich
Opinion op the Court apparent Sykes’ For these reasons, it is hand- ing inspection during to defendant for first transaction failed to escalate defendant’s crimi- culpability. nal As a result, the Court of concluding erred in otherwise. *13 Finally, Appeals majority clearly the Court of erred holding money in that the amount of offered for unusually defendant’s services was excessive and majority attractive. The held that defendant knew that up by participating he stood to earn to $50,000 in the enterprise. prosecutor suggests The that the record Sykes reflects that stated that stood to earn $50,000. about Our review of the record leads us to firmly conclude that the record does not establish interpretation. either However, we that, conclude given understanding defendant’s that he would compensation $1000 receive for each transaction, the unusually was neither excessive or attractive. Each approximately transaction involved ten ounces of cocaine, which had an estimated street value $75,000. A involving $1,000 fee for a transaction roughly percent almost $75,000, one of the street especially value, is not excessive. This is evident given previously profit, that defendant $200 earned a nearly thirty percent or of the street value, for the quarter sale of one ounce of cocaine at his crack house, which the record reflects had a street value of approximately $700. Thus, the Court of ascertaining erred in that defendant was impermissibly induced because the consideration for illegal unusually his services was excessive or attractive.
In sum, we have concluded that the Court of Appeals clearly regard erred to each of the three v Johnson Opinion of the Court persuaded to conclude that the
factors that Court police engaged in that would induce a law- conduct abiding person to commit a crime in similar circum- remaining Therefore, because none of the stances. issue, are at we hold that defendant Juillet factors by preponderance failed to establish a of the evidence police engaged that the in conduct that would induce law-abiding person to commit a crime similar circumstances.
B. REPREHENSIBLE CONDUCT Appeals alternatively The Court of held that the reprehensible that, conduct was so as a matter public policy, regardless it could not be tolerated relationship of its to the crime and therefore consti- entrapment. reasoning tuted based its primarily analysis, finding on its escalation *14 “Sykes buy staged drug waited until the scene of the expected to inform defendant that he was to handle drugs gave accept the and defendant no choice but to placed package that was in defendant’s hands Slip op disagree. . . . .” at 3. We pro- above, As we discussed defendant was hired to against “rip-offs.” light arrests, raids, tect In of his familiarity alleged drug operations, with defendant expected “rip-offs” ensuring against should have among things, examining include, would other drugs legitimacy drugs holding for their prevent a theft at the scene of the deal. More importantly, negotiations as above, indicated Sykes between defendant and before the first transac- 508 466 Mich 491 Opinion of the Court support understanding.5 tion this Given our conclu- previously sion that defendant had committed the offense of with intent to deliver and that provide protection against “rip-offs,” he handling which includes in order to inspect police nothing pro- them, the did more than opportunity vide defendant with an to commit a reprehensible crime. Such conduct was not and does entrapment. supra. not establish Butler, For these reasons, we conclude that the Court of Appeals clearly finding erred in that defendant estab- preponderance lished of the evidence that the reprehensible conduct in this case was so as to entrapment. constitute THE
C.
ENTRAPMENT TEST IN MICHIGAN
originally granted
appeal
We
leave to
in this case to
consider whether the current
test
Michigan,
objective
a modified
test,
is the most
appropriate
Accordingly,
parties
one.
we asked the
adopt
address whether this Court should
the federal
subjective
entrapment.
test for
Sorrells v United
(1932).
States, 435;
US
53 S
210;
Ct
IV. CONCLUSION Appeals finding The Court of erred in entrapped by government the defendant was Michigan’s entrapment under current test. The engage did not in conduct that would induce a law- person abiding to commit a crime in similar circum- stances; nor conduct in this case so reprehensible entrapment. as to constitute Indeed, the suggests already record that defendant had commit- charged. Accordingly, ted the crime for which he was we reverse the decision, Court of reverse the granting trial court’s order defendant’s motion to dis- charges, miss the and remand to the trial court for proceedings opinion. further with consistent this Corrigan, C.J., JJ., con- Taylor Markman, curred J. Young, part opin- J. I concur in all but m(c) Weaver, join hinting
ion. I do not with the Court in that the judicially entrapment may created defense be uncon- referring ques- stitutional, and then that unanswered Legislature. tion to the
Arguing cases, 98 Mich R L government’s burden (2000). proving readiness in *16 466 Mich 491
Dissenting Opinion by Cavanagh, J. (dissenting). majority’s J. I concur the Cavanagh, holding police entrap that the conduct did not defen- dant into the second transaction. I would police entrap conclude that the conduct did defen- respectfully dant into the transaction; first I therefore, dissent. majority’s
The conclusion that defendant construc- tively possessed cocaine and, therefore, was not entrapped committing into the crimes is repeated based on references to the informant’s claim “arranged, protected” that defendant oversaw, and drug sales at the home defendant owned. See ante at (“[defendant 494, 500 owned a home that he rented operated pro- to tenants who it as a house” and money drugs sold.) Upon tected and received entrapment hearing testimony, ques- review of the I support tion how the relies on this as for its testify conclusion. The informant did not entrapment hearing. Rather, the information that the relayed allegedly police informant to the came into through evidence officer the informant con- tacted about defendant. This officer testified as follows: Q. you Now did this tell how he [informant] [defendant]
was involved? A. Yes he did.
Q. you And would tell us what it was? running dope
A. He said he was a house.
Q. you say you he, When mean [defendant]? A. No. running was [The house informant] that—[defen- owned the house and selling dant] [the informant] crack out of the house with knowledge full [defendant’s] and consent and participation; more or less not in the sale, setting up actual protection but in it providing running operation. People v Johnson Opinion by Dissenting Cavanagh, J. majority’s portion focus on this testimony support repeated its assertion officer’s showing that there was sufficient evidence dis- was more involved than the Court part misplaced. The most crucial cussed is testimony, light which sheds on the Court of officer’s is omitted. Appeals reasoning, Q. you any independent Did ever run across corrobora- tion of word? informant’s] [the sorry?
A. I’m Q. any Independent meaning was there evi- corroboration *17 dence other than statements [the informant’s] [defen- proported dope had been involved in the-this dant] [sic] house? point,
A. At that no.
Q. any point? At
A. Yes.
Q. And what was that? pointed A. I checked records on the house that was out house; in and did fact own that to me that was [defendant] corroboration.
Q. .Well. . personally dope A. It it was—I knew to be a house. How- ever, prior point I to that did not know that [defendant] owned it.
Q. Okay. story guess asking I what I’m is [the informant’s] looking was that was—knew about it and was [defendant] way taking money, the other isn’t that it? A. That’s correct. initially
The
officer
stated that the informant
up, ran,
supervised
told him defendant set
the
when asked what information
house.
allegedly said,
corroborated what
the informant
the
the
pointed
only
officer
owned
fact
defendant
accepted money
way.
the home and
to look the other
want up to be that’s I said ride in the car way can, with something happens me. That man, I if I’m still stuck package. pitch the Goddamn That’s, I want to it ... . that’s what I want. Oh, you want [Defendant]: me to handle it. v Johnson Dissenting Opinion by Cavanagh, J. credibility Moreover, uses its own judgment supersede that of the lower courts to duty conclude that defendant knew about his to han- drugs major- dle the before the first transaction. The ity audiotape “A states, recorded of defendant and arrangement discussing [the officer] undercover their staged drug before the first transaction demonstrates [the that undercover officer] informed defendant that he would have to handle . on occasion . . .” Ante 504-505.When faced with the same evidence, attorneys the lower court and the themselves dis- with the witness and came to the con- trary conclusion:
A. I believe I told [Undercover Officer]: [defendant] we would—we met with I the individual which was to purchase from, drugs, make the he was to take the check them, package right, ensure that the let me know that right, it was and then we would leave.
Q. Now, Lieutenant, I don’t see that in [Defense Counsel]: transcript tapes of the audio that was made. Let me you maybe you hand this to and can me. show Mr. Martin Which transaction are [Assistant Prosecutor]: talking we about? [Undercover want, no, no, no, no, I, you’re I don’t but if Officer]: car, just pitch
in the
roll down the window. I
can
it
there. I ain’t
got,
holding nothing.
talking about,
I ain’t
That’s what I’m
see? But
you
way
standing
there,
got
it,
over
I
now
to hold it and hold
it,
you get
I, I,
package
hold
until
there because
I can’t check the
Alright.
my boy,
him
check
too.
That’s
but business is business.
thought you
protection,
I
wanted
that’s what I was
[Defendant]:
impression
you
under the
wanted me
[Emphasis
added.]
for.
place
transaction,
revealing
This conversation took
the first
thus
after
drugs,
only
that defendant did not know he was to “handle” the
but
thought
protect
he was to
the undercover
officer before the first
transaction.
*19
[*] [*] [*] you looking The Court: Are something? Szokolay: Yes, your
Mr. Honor. The witness told us that prior buy he had told to the that he would be [defendant] expected package, to hold the and I him asked to find us where he said that. you
The Court: Mr. Martin, maybe agree can that it’s not there? recording Mr. Martin: Your I believe the Honor, on Feb-
ruary prior 7th doesn’t indicate to the deal that he was that, page but on it indicates that he was informed of five after, job that it would be his to check the informed of package. [Emphasis added.] The Court: That would be from the next transaction. Appeals The Court of did not err in conclud- ing that on evidence, the basis of this the defendant was not informed before the first transaction that he drugs. parties would have to hold the Rather, all tape that there was no evidence on that audio suggesting defendant was informed he would have to drugs prior handle the to the first transaction. join only I cannot a decision that not mischaracter- strips izes the facts favor of a result, but also credibility deference is due determinations made way lower courts such a as the does today. Accordingly, part I would reverse in the deci- Appeals holding sion of the Court of defendant was entrapped into the second transaction and part affirm in the decision of the Court of holding entrapped defendant was into the first.
Kelly, J., Cavanagh, concurred J.