People v. Sheline
235 N.W.2d 177
Mich. Ct. App.
1975
Check Treatment

*1 1975] v Sheline v SHELINE PEOPLE Entrapment. 1. Criminal Law — objective adopted test for Michigan has The governmental agents entrapment: whether the defense of instigate likely way or create a acted in such a have offense, predisposition regardless to crime of the criminal involved. Judge Jury Entrapment—Trial 2. Criminal Law — — Question— Prejudice. Entrapment trial in all cases resolved issues must be adoption subsequent test for to the 18, September of an defense to submission error, whether or not is reversible after date prejudice is shown. Miscarriage 3. Criminal Law —Prosecutor’s of Justice. Remarks — grounds allegedly prejudicial prosecutor’s remarks are' not for A objection no conviction where -reversal of a defendant’s prejudicial as to consti- comments were not so raised and the miscarriage justice. tute a 4. Jurisdiction. Courts —Criminal Courts —District jurisdiction defendants to bind over criminal District courts have to the circuit court. Jury Conflicting 5. — Instruc- Law —Instructions Criminal Presumptions. tions — given incorrect and a correct has been both an A which [1] [2] [3, [4] [5] [7] 21 Am 21 Am Jur 75 Am 20 Am No 75 Am Jur Am Jur 58 Am Jur reference. Jur Jur Jur Trial 192. 2d, 2d, 2d, 2d, 2d, 2d, References 2d, Criminal Trial 727. Courts Criminal Trial §§ New § § § Trial 57. Law 376-382. 12 et Law 143. 920. § §§ Points seq. § in Headnotes , 64 presumed statement of the law is to have followed the erro- portion. neous by O’Hara, Partial *2 Concurrence Drugs 6. Criminal and Law —Prosecutor’s Remarks — Narcotics. prosecutor’s argument scope permissible A was well within the comment where the was directed to whether the testimony should believe defendant’s in view of his unstable life style, stand, drugs, his demeanor on the use admitted magnitude problem, drug persons and the fact drugs necessarily with are not the most stable or involved persons. reliable Appeal Opinions—Reversed 7. Courts — and Error — and Remanded —New Trial —Criminal Law. phrase trial”, Use of the "reversed and remanded for a new courts, appellate appeals should be discontinued in criminal prosecutor because after a it is the reversal decision of the proceed again whether to with a new information. Appeal Kelley, Monroe, from Jr., James J. J. (Docket Lansing. 11, 1975, Submitted June at No. 20696.) September ap- 10, Decided 1975. Leave to peal granted, 395 Mich 817.

Timothy breaking S. Sheline was convicted of entering building and with intent to commit larceny. appeals. Defendant Reversed and re- manded. Kelley, Attorney

Frank J. General, Robert A. Derengoski, General, Solicitor and James J. Ros- Prosecuting Attorney (Prosecuting Attorneys tash, Appellate Service, Wilson, Director, Edward R. Special and Marderosian, Howard C. Assistant counsel), Attorney people. General, for the Cooper, Appellate R. Jessica Assistant State De- fender, for defendant. v Sheline

Before: Allen, J.,P. D. and F. Walsh JJ. O’Hara,* P. 21, 1974, On March defendant was

Allen, convicted by breaking and entering a build ing with intent to commit larceny. MCLA 750.110; MSA He was sentenced to a 6-1/2 to 10- 28.305. year prison term, appeals of right. One of several assignments of error* raised by defendant * Justice, sitting Former Appeals the Court of assignment pursuant 6, to Const art 23§ as amended in 1968. following Defendant maintains that prose- statements during closing argument cutor constitute reversible error: one, "And jury, now a fourth members of the he comes here before you 'Yes, says, right, there, under oath and he that’s I was and I did helped more than I told carry stuff, Detective I Fiedler. them but my Heck, just up it wasn’t fault. I shot heroin.’ greatest purge country now, right "What’s the has members of jury? Drugs. the kind can we And here is a man who has used several different *3 by you. his own admission under credibility oath to What kind of give person to a like this? us, it, yes, "And then he comes and he my tells I did but it’s not fault, up because I shot doing heroin and didn’t know what I was making type Fisher was from and testimony coming me. Can we this believe of type person, says living of playing pool who he makes his golf, May through longer and since October or hasn’t worked at get money all? Where get money, did he his and how did he jury? ways probably members of the I think by one of the was shown ability easily get place his person. to so into this and steal from another respect property. No consideration or for his fellow man’s He last, using comes here and now and I won’t describe Iwhat think of type using, blaming Blaming the somebody defense he’s it on Fisher. it on Blaming somebody Fisher, else. it on else who—if it wasn’t blaming somebody he’d be it on else. else, "Sure David Fisher would rather be somewhere rather than sitting that Sheline exposing drug on that witness stand himself to the element belonged perhaps placing jeopardy, to and his life in got go among people. because he’s back Toledo and live these very "I don’t think the him. In Defendant seemed scared there when I fact, cross-examining I noted on numerous occasions a smile, or, might accurately smirk, what be more termed a on his face. jittery. He relaxed. pretty didn’t seem to be nervous or He seemed to be Every gave good pretty time that he an answer that sounded him, somebody it showed on his face. He didn’t look like who was 193 Mich Opinion the Court question, dispositive requires The reversal. for the need detailed foregoes nature of which facts, the trial of the is whether recitation trials must determine the issue Turner, v in People held after the decision (1973). 7; 210 NW2d 336 Turner, adopted supra, our as enunciated objective test in United States v dissent Stewart in his Justice Russell, 1637; L 36 Ed 2d 423; 93 S Ct 411 US dispenses with the The standard predispo- criminal concerning defendant’s element of the involved sition, the conduct and focuses on gone beyond have their acts police —whether to commit crime. Un- offering of a chance simple moreover, entrap- the defense of this theory, der judge: to be decided ment is an issue question is whether —re- way, the "Phrased another of the gardless predisposition to crime admitting they up His a crime as would have us think. scared there testimony was not like Wiser’s.” separates least, straddling prosecutor the fence At the advocacy however. which below, objection was raised to the from error. No Further, may jury that the trial court instructed the "[Y]ou lawyers, arguments, but statements and remarks consider the not as disregard anything evidence or opine miscarriage (1975). being or the law in this case. You should either the evidence lawyer supported by which is not said experience.” general knowledge by your We own prejudicial were not so as to constitute that the comments Auer, justice. 393 Mich 227 NW2d applies reasonably effective assist- No matter which test one —the States, Beasley v United 491 F2d of counsel standard set forth ance (CA 6, 1974), People Degraffen- or the sham or farce standard *4 (1969) 702, 710; reid, App 317 is that Mich 173 NW2d evident —it to show he was denied the effective assistance defendant failed counsel, although especially superlative, most counsel was far from obtaining process against respect a defense witness. with jurisdiction to that the district courts lack Defendant’s contention rejected the defendants to circuit court was bind over criminal Milton, 234; People Supreme (1974). 393 Mich NW2d People v Sheline governmental agents involved —the have acted in likely instigate such a way as is or create a criminal approach, offense. Under the determina- tion of lawfulness of the Government’s conduct must be questions made —as it involving is all legality of law enforcement the trial methods — judge, Russell, not jury.” supra, at 441 Numerous panels of this Court paid have homage procedure to the requiring that resolve question of entrapment. People v Fraker, 29; App (1975), Mich 233 NW2d 878 People v Zeegers, 546; 61 Mich App 233 NW2d 76 (On (1975), People Habel, Rehearing), 53 Mich (1974). 220 NW2d 74 case, the instant the trial court submitted the question of entrapment to the jury: "In your deliberation on you this matter may con that, provided sider they entrap person, do not law enforcement agents officers or their in their work are justified stealth, in using strategy, deception and under cover activity, and in merely affording opportunities or facilities for Thus, the commission of crime. law officers or agents their may engage in likely, conduct considered, when objectively person to afford ready and willing crime, to commit the an opportunity to do so. But when their involvement in criminal activities goes beyond offering the mere opportunity, such an and when their conduct is of such a kind that could instigate induce or commission of a crime one not ready willing it, to commit regardless then propensities character or person induced, entrapment has occurred.”2 2It is doubtful the above instruction would withstand the Turner standard even if one assumed that submission question appropriate. to the The introduction of the issue of predisposition, despite charge, phrases the disclaimer in the last of the above improper. Where an instruction includes both an incor- law, rect presumed and a correct statement of the will be portion. Johnson, have followed the erroneous v Gilbert App 560; 218 NW2d 65 *5 193 64 Mich Opinion op the Court indicative of the fact

The are earlier cited cases submitting ques in the the that trial court erred jury. entrapment Nonetheless, the of the tion people recognizing argue decision that the initial People procedural requirement, Habel, v su pra, the instant defend was until after not decided proposition Hence, announced in trial.3 the ant’s controlling, progeny are not because Habel its the The misses Habel is not retroactive.4 retroactivity mark, Habel of vel non of since the in does not stand no moment. The decision Habel merely principle; any newly it artic announced implicit in Turner ulates and follows the mandate judge, jury, the must decide the the not question entrapment: of Turner, supra,

"Although Supreme our Court dissenting opinion of Justice Stewart persuaded by the adopting theory entrapment, it did the question provide procedural the not an answer entrapment. or determines whether Michigan Supreme "The Court of has determined of this state are to be bound the test courts dissenting opinion forth in a set Supreme only logical The conclu- United States Court. panel Supreme sion to which this can come is that our language of Justice Court must have intended that Stewart, quoted, prevail the issue above should also added.) Habel, (Emphasis judge-jury matter.” supra, at 400-401. precisely Court

That this is what 29, 1974; May Habel was decided on defendant’s trial commenced 18, September 1974. Turner decided on 1973. on March question None of the cases decided since Habel involved Zeegers, presently grounds, other In reversed on before the Court. retrial, upon question noted that Fraker, judge. trial In the defendant’s should be decided came after the decision in Habel. Sheline intended is evident from the recent decision in Auer, People NW2d 528 that Turner holding be is to accorded prospec- *6 application, Court, through tive J. W. Fitzger- J., speaks question: to judge-jury ald, "The entrapment existence of was submitted to the jury people’s principal witness, under instructions. The Dinsmore, gave testimony, Pamela was the thrust of which to indicate that the criminal intent sell mari- juana originated in the mind of the defendant. While account, defendant and his the contradicted this witnesses question jury-decided adversely defendant. a entrapment law, There was no of matter question properly being applicable for the under added.) Auer, pre-Turner (Emphasis supra, law.” at 677-678.

Turner pre-dated instant trial by ap- defendant’s six months. Even absent proximately guiding Court, hand of the Habel this Court concludes that (under post-burner issues are required Turner) judge. to be resolved It would existence, Habel’s be incredible to hold which what Turner man- think correctly interprets we dates, affording may serve to bar relief. The people maintain that even if Turner stands for the view must determine the issue entrapment, of defendant’s conviction should not reversed, a showing be absent of prejudice. We disagree.5

Reversed and remanded for new trial. showing prejudice necessary, Even if a were we it believe trial, in existed admitted his involvement the instant case. Defendant took at the stand charged in the offense. Under the tradi pre- guilt standard of tional deemed is Turner —admission — prerequisite raising entrapment. People defense Bersine, 295, 299; App 48 Mich 210 NW2d 501 Since the standard, however, apparently adoption of the a defendant presence take in will not have to the witness stand appear guilt. hearing, It admit his would that a similar to a 64 Mich O’Hara, Partial concurrence J. Walsh,

D. F. J., concurred. O’Hara, (concurring in part; dissenting in part). I am writing separately this case because I can find no precise decisional authority Michi- gan establishing precedential what authority established by a Appellate footnote. judges and justices vary greatly in their use and their con- tent. The limited case authority on this subject from other jurisdictions apparently recognizes that footnotes should given be legal the same effect as material in the text opinion. 2d, 20 Am Jur Courts, 189, p 525, CJS, Courts, p § 407. §

.1 agree with Judge Allen that since the release Turner, 210 NW2d 336 (1973), the defense of entrapment is not jury sub- missible in Michigan.

Turner itself does not, it, as I read lay out the *7 manner in which controverted contentions of the accused and alleged entrapping officer or police agent are to be made of record.

It is my personal view that Mr. Justice Stewart in substance used the rationale of Jackson Denno, 368; 378 US 1774; S Ct 12 L Ed 2d 908 (1964),1 by analogy in recognizing that it is beyond human mental limitations to allow a jury to hear evidence clearly establishing the corpus delicti of a given offense and at the same time charge that if hearing, jury’s Walker will be held in the absence. If defendant entrapment defense, successful in his he will be entitled to a dis- against defendant, missal. If the court rules proceed the trial will jury being apprised without the cannot testimony during proceedings should testify. he choose not to Because the Court say for certain that instant defendant would have waived his privilege against self-incrimination and would have taken the witness (and guilt) proper stand admitted hearing his had a on the determina- held, tion of been we showing think that sufficient prejudice does exist. dissenting opinion See Justice Stewart’s in United States v Rus- sell, 423; 1637; 411 US 93 S Ct 36 L Ed 2d 366 Sheline O’Hara, Partial concurrence occurred this evidence is to be disre- garded by them. I am moved to state that I sympa- thize with the trial in this case and in similar cases where a new rule is announced with- spelling out procedure out to be followed as (On was done in People v Walker Rehearing), (1965), NW2d which spawned the "Walker” so-called hearing.

Nonetheless Turner had been released and was published law at the time this case was tried. Whether the defendant here prejudiced was issue, submission Judge Allen holds, I’m I don’t In sure know. any event he had right to have the entrapment ruling made by the trial judge, prejudice or no prejudice. I think it would be dangerous very law to append this re- Turner, quirement to the rule of thus leaving the decision on point reviewing appellate court.

Be all the foregoing as it Imay feel I am bound to concur in reversal for the reason I have stated.

Now as to the I footnotes. am in disagree- total ment with my colleague’s in holding footnote 1 the prosecuting attorney guilty of miscon- duct or that he "straddling the fence”. The thrust prosecutor’s com- ments went to the issue of defendant’s credibility and whether or not should find the ac- cused’s testimony inter of, worthy belief view alia, his unstable life style, demeanor on the stand and admitted use of drugs. I see nothing wrong with magni- the reference to the *8 drug tude of the problem and the persons fact that involved in the use controlled substances are not necessarily most stable persons or reliable in our society. Thus the prosecutor was well scope within the of permissible comment. by O’Hara, Partial concurrence

I also the time has come for believe me to express held even long personal opinion, though I have been guilty signing opinions which use phrase "Reversed for tri- and remanded new al”.

It is the appellate function of courts to affirm or reverse a conviction.

The status of the defendant is then exactly the same as it was before the verdict or court jury. Given the fact he was bound over for court, trial prosecutor circuit whether de- to proceed again cides with new information is business, reviewing not court which has no knowledge of what witnesses are available and influencing other variables the decision which the prosecuting attorney should be allowed to make. It enough is that we determine whether the convic- tion was or not reversibly erroneous. it my

Thus phrase view that "Reversed trial”, and remanded new which if literally directs read the prosecuting attorney to proceed trial, with a new should be discontinued.

It is sufficient say "Reversed and remanded trial court for such proceedings further may properly ensue” or simply "Reversed and re- manded”.

Hence I in part concur part, dissent vote with Judge reverse. Allen