*1 PEOPLE v SOPER Opinion of the Court Drugs Entrapment—Trickery—Subterfuge. 1. and Narcotics — entrapped delivery for of heroin as a A in a trial was police officer abused the allowable matter of law where a processes by exploiting a child- enforcement detection and preconceived feigning activating plan by friendship a hood making playing repeated requests the defend- addiction and sympathy friendship to induce the otherwise order ant’s to heroin for him. obtain innocent defendant by Danhof, Entrapment—Juries—Subjective Test —Persons 2. Criminal Law — Otherwise Innocent. entrapment properly as a matter there no A found that was court subjective properly under of law and instructed complaint entrapment in which in the case where test prior to a was Med defense was asserted ruling rejected subjective Supreme standards Court which only. prospective which has been held to be Entrapment—Quantum Im- 3. Criminal Law — of Proof —Federal plied Exception. proof prosecutor under the quantum must meet which a prove exception theory implied to non- Federal raised, beyond a entrapment, is once doubt. reasonable Entrapment—Defenses—Subjective Test —Bur- 4. Law — Criminal Preponderance Evidence. den Proof — jury, in where properly a case A court instructed the trial [1] [2-4] Entrapment 29 Am 25 Am Jur ALR2d 883. 21 Am Jur Jur 2d, 2d, Drugs, to commit offense References 2d, Evidence 156. Criminal Narcotics § Law §§ Points in with and Poisons 143-145. respect Headnotes §§ 43, 46, narcotics 47. law. Opinion of the Court complaint prior Supreme was filed ruling rejected subjective entrapment, test of that a defendant has prove the burden preponderance of evi- dence. *2 Appeal from Recorder’s Detroit, Court of John O’Brien, P. J. Submitted 11, Division 1 October January (Docket 1974, 17249.) at Detroit. No. Decided 27, Leave to appeal for. applied 1975.
George J. Soper was convicted unlawful deliv- ery of heroin. Defendant appeals. Reversed.
Frank J. Kelley, General, Robert A. Attorney Derengoski, General, Solicitor Cahalan, William L. Prosecuting Attorney, Carnovale, Dominick R. Chief, Appellate Department, and Michael O. Lang, Assistant Prosecuting Attorney, peo- for the ple. Maher,
Thomas A. for defendant appeal. on Danhof, Before: J.,P. Bronson, and and O’Hara,* JJ.
Bronson, J. We have reviewed the facts as accurately set forth in Judge Danhof opinion. s We agree also with Judge Danhofs statement law of entrapment applicable to those facts. How- ever, after careful consideration of the facts in light of the relevant legal principles, we conclude Soper was "induced to commit” the crime of heroin, United States Rus- delivery sell, 423, 1637, US 93 S Ct 36 L Ed 2d because the police conduct this case constituted as a matter of law. * Supreme Justice, sitting Former Appeals on the Court of
assignment pursuant to Const art 23 as § amended in 1968. Soper P. J. investigated police only officer reason prison Soper from latter’s recent release was the previous The officer addiction narcotics. and Soper friendship exploited with childhood personal contact, then activated his and establish preconceived plan Soper heroin
to induce obtain Soper that he had a In order to convince for him. falsely heroin, maintained that serious need Soper’s again playing addict, friend- he was an Soper ship sympathy. hesitated, indi- At first longer any cating that he no had "connections” Only probably after could not find heroin. again approached with the same the officer request find the the heroin We was obtained. repugnant. in this tactics utilized case "processes of detection We hold by the insti- used here were "abused enforcement” government gation by an act on the officials of *3 part persons to lure innocent order otherwise punish them”. its commission and to to them 435, 448; States, 53 S Ct 287 US Sorrells v United Ed 215; 77 L he conviction is reversed Defendant’s discharged.
O’Hara, J., concurred. (dissenting). J., I to ac- am unable P. Danhof, colleagues’ cept my that conclusion entrapped facts under the as a matter of law was jury by on Defendant was convicted of this case. delivery heroin, MCLA March 18.1070(41)(a). 335.341(l)(a); He sen- was MSA prison, years 5 to 20 to a term of from tenced involving appeals, raising his issues he three entrapment. and admit- the stand trial the defendant took At choosing rely offense, on a defense to ted by entrapment. The defendant testified that he had been a and that he drug addict had previous three drug offenses, convictions for related but that he drug ended his habit while in prison. His testi- mony in all significant conformed particulars witness, that of the primary prosecution an under- cover police officer.
The officer testified that while in the Detroit Office, Police Narcotics Bureau happened notice the defendant’s file which was active be- cause the defendant had been released from Jack- son Prison less than two months before. The officer recognized the defendant an boyhood as old friend. He house, went the defendant’s renewed his acquaintance and discussed their experi- shared ences as children. The brought officer then up the subject drugs, addict, told him he was an asked the defendant to obtain heroin for him. A meeting future up, was set and for the defend- $60 gave ant packet officer tinfoil which subse- quent tests disclosed to contain heroin.
The first and second issues raised the defend- appeal depend ant in this upon the application Turner, in the recent decision in this facts case. argues Defendant the trial court erred finding entrapment aas matter of law under in Turner. adopted test argues He also trial court’s instruction to the was erroneous forth subjective set or activity” "creative test in Turner. expressly rejected was *4 This question Court has considered the of retro- holding that of in activity, the effect the decision Gaines, Turner only. People v prospective 53 v (1974); People App Mich 76 NW2d (1974); Tinskey, App NW2d People v Koehler, 624; 221 NW2d People v App 54 Mich (1974). Therefore, as standard Turner must be in this applied prior it stood standard, did not the trial court Under that case. matter of find as a failing err the sub- law, concerning instruction in its jury or test. jective presents and final issue
Defendant’s third on the the trial court’s instruction allegation that reversibly erro- entrapment was proving of burden ob- language neous. That is as follows: jects entrapment, of go to the defense "Now to back production of of evidence has the burden so, having he has entrapment, done support of jury, people, the existence persuading you
burden preponderance of constituting by a the defense of facts entrap- you convince that he was He must the evidence. preponderance of the evidence.” ped by a entrap- proving of the burden question to do ment, necessary quantum proof and the Court, has but so, been before our previously People Pugh, v App 48 Mich decided. not been Habel, (1973); 210 NW2d (1973). em- It should be 630; 213 App holding in the discussion phasized to the law us is confined presently case before sweeping prior it stood as Turner. decision in about changes brought decision, future Following appears unnecessary. be entrapment will instruction on (On Rehearing) 53 Mich People Habel 220 NW2d divergence opinion substantial
There exists a to sustain sufficient concerning degree proof authority leading entrapment. The defense of is a statement in this situation the burden *5 Danhof, by Dissent P. J. of Judge Learned Hand in United States v Sher- man, (CA 880, 2,1952): 200 F2d 882-883 in questions "Therefore such cases two of fact arise: (1) agent did the induce the accused to commit (2) charged offence indictment; so, in the if was the ready willing accused persuasion without and was awaiting any propitious opportunity to commit question offence. On the first the accused has the bur- den; on prosecution the second the it.” has This conceptualization bifurcated of the burden has led to some juris- confusion in those Turner, dictions, like Michigan before which apply Nevertheless, the subjective insight test. some can tracing be achieved by the roots doctrine it as has been developed the Federal and state courts.
The defense recognized by as United Supreme States Court has its basis "in a notion that Congress could not have intended criminal punishment for a who has offense, committed all the elements a prescribed who was induced to govern commit them by the Russell, ment”. United States v 423, 435; 411 US 1637, (1974). 366, 93 S Ct 36 L Ed 2d United States Supreme Court consistently re garded entrapment as a to give device fashioned Congress. effect to the intent of "Congress could not have intended that its statutes were to be by enforced tempting innocent into persons viola States, tions.” Sherman v United 369, US 819, (1958). 78 S Ct L 2d Ed "We are unable conclude that was the intention of Congress enacting statute its processes detection and enforcement should be instigation by governmental abused officials of an act on the innocent part persons otherwise in order to lure them its and to commission
punish States, Sorrells United 287 US them.” 210, 215; Ct L Ed 53 S "implied exception” theory, Federal
Under the
entrapped defendant cannot be convicted and
an
punished
crime;
what he did was
*6
is,
he
did not violate
statute because
that
he
exception
implied
to that statute.
within an
comes
standpoint,
procedural
the defense of
a
once
From
prosecution
prove
raised,
is
the
must
doing
only by
non-entrapment
it is
so
that
because
prosecution
prove
did
can
that the defendant
the
implied exception and hence
not
within the
come
application
committed a
Since
has
crime.
to
an
is
essential
of
statute
guilt,
proven
it
must
establish
element which
be
to
logic
of
and law that
standard
follows
both
non-
must
satisfied
the issue of
be
any other
is the same as for
essential
proof beyond
offense;
a reasonable
element of
provides
Therefore,
rule”
doubt.
the "Federal
raised,
has been
the issue
once
way,
other
the defendant or
either
met
thereafter
has
his burden and
defendant
disprove entrap-
prosecution
on the
burden is
beyond
United
Notaro v
ment
reasonable doubt.
(CA
1966);
9,
v
States,
F2d
Martinez
169
(CA
1967);
10,
States,
Pratti v
v
373 F2d 810
United
(CA 1968); Whiting
9,
States, 389
F2d
United
(CA 1963);
States,
1,
United
F2d
United
(CA
1970);
9,
Martinez, 429 F2d 971
v
States
(CA 1958),
Landry,
257 F2d
States v
United
1969).
(CA
Henry,
417 F2d
States
United
entrap-
distinct
for the defense
Another
basis
recognized
frequently
state courts
in the
ment
opinions
minority
all
articulated in the
been
Su-
States
United
three of
aforementioned
subject.
dealing
preme
this
decisions
with
by States,
Sorrells v
supra,
United
457;
at
Thus,
public
rationale,
under
policy
estab-
lishment
the entrapment
affected
by proof
participation
fact,
in the
In
crime.
*7
defendant who denies the
usually
offense is
permitted
upon
to rely
entrapment.
the
of
defense
Bersine,
See,
People v
example,
48
App
Mich
(1973);
Most state courts which considered concluded that similarly issue have proving pre of has the burden State, 43 the evidence. Hawthorne v ponderance Moran, People v (1969); 85 168 Wis 2d NW2d v (1970); People 411; 463 763 Rptr 83 Cal P2d Valverde, 318; 54 Cal 528 App Rptr 246 Cal 2d State, (1966), (Del, 1972); 708 Crosby v 295 A2d v Laietta, 330 281 People NY2d NYS2d See also 1 Wharton’s Criminal NE2d Procedure, (1957, Supp 1974); La- Law and § Scott, Law, (1972); p Fave & Criminal §48 2.13(2) Code, (pro Entrapment ALI Model Penal § 1962). posed official draft long public policy Michigan accepted Michigan Supreme entrapment. theory Mitchell, 183-184; People in Court (1941), in lower found no error 298 NW that, against "It charge court’s for officers the law induce public policy in This criminal offenses”. commission of 559, 563; 171 Tucker, Tomita v Mich (1970), den, lv Mich 769 (1969); NW2d Mitchell stated, situa "In cited tions, precludes prosecution public policy Sinclair, recently, charge”. More 91, 119, 120; 194 Justice traced devel separate opinion in his Swainson Michigan the defense opment the entrapment "The concluded that basis are police used is that the methods *8 to be which are fair repugnant play justice” allow convictions refusing "to discouraged entrapment”. based Mich by
Therefore, I would hold that under the law of as it stood in Michigan prior decision in People v Turner, the trial court’s instruction the jury was not reversibly erroneous, and I would affirm.