People v. Johnson

• Decision Date: 09 July 2002
• Docket Number: Docket No. 118351, Calendar No. 4.
• Citation: 647 N.W.2d 480,466 Mich. 491
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jessie B. JOHNSON, Defendant-Appellee.
• Court: Michigan Supreme Court

647 N.W.2d 480

466 Mich. 491

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jessie B. JOHNSON, Defendant-Appellee.

Docket No. 118351, Calendar No. 4.

Supreme Court of Michigan.

Argued April 9, 2002.

Decided July 9, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David L. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, MI, for the people.

Robyn B. Frankel, Bloomfield Hills, MI, for the defendant-appellee.

Joseph K. Sheeran, President, Michael E. Duggan, Prosecuting Attorney, and Jeffrey Caminsky, Principal Attorney, Appeals, Detroit, MI, for the Prosecuting Attorneys Association of Michigan.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, Lansing, MI, for the Prosecuting Attorneys Appellate Service.

YOUNG, J.

This case involves the defense of entrapment. The circuit court found that defendant was entrapped by the police and dismissed two charges of possession with intent to deliver more than 225, but less than 650, grams of cocaine. MCL 333.7401(2)(a)(ii). The Court of Appeals affirmed in a split decision.¹ We conclude that the lower courts clearly erred in finding that defendant was entrapped under Michigan's current entrapment test. People v. Juillet, 439 Mich. 34, 56-57, 475 N.W.2d 786 (1991) (opinion by BRICKLEY, J.); People v. Jamieson, 436 Mich. 61, 80, 461 N.W.2d 884 (1990) (opinion by BRICKLEY, J.). Accordingly, we reverse the Court of Appeals decision, reverse the trial court's order granting defendant's motion to dismiss the charges, and remand to the trial court for further proceedings consistent with this opinion.

I. Facts and Proceedings

Defendant was a police officer in the city of Pontiac. He also owned a house in the city of Pontiac that he rented out as a residence.

Defendant became the subject of a criminal investigation after one of defendant's former tenants turned informant and reported to the Pontiac police department that defendant was instrumental in operating his rented house as a drug den. The informant indicated that he sold crack cocaine from defendant's house with defendant's full knowledge and consent. Further, according to the informant, defendant arranged, oversaw, and protected the drug-selling operation. In exchange, defendant received a substantial portion of the profits from the drug sales.

The Pontiac police called in the state police for assistance in their investigation of defendant. An undercover officer from the state police department, Lieutenant Sykes, was introduced by the informant to defendant as a major drug dealer in Detroit and Mount Clemens who wished to expand his operations into Pontiac. Defendant agreed to meet with Sykes, but not pursuant to any police investigation he was conducting himself. Defendant was propositioned by Sykes to serve as protection and security from "rip-offs" and police raids for Sykes' drug operations, as well as to identify potential locations for drug dens in Pontiac. Defendant was to be compensated for his services. Defendant agreed to participate only after he determined that Sykes was not an undercover officer known to defendant's fellow Pontiac officers. Defendant made no attempt to arrest Sykes or report his illegal activities for further investigation.

At Sykes' request, defendant agreed to accompany Sykes to a mall on February 7, 1992, to assist him in purchasing drugs from a supplier. The supplier was in reality another undercover state police officer.

Defendant and Sykes arrived at the mall parking lot in different vehicles. After some preliminary discussions, Sykes drove over to the undercover officer to make the staged drug deal, while defendant walked. Armed with a gun in his pocket, defendant stood one and a half car lengths from the passenger side of the second undercover officer's vehicle. After the transaction began, Sykes directed defendant to come to the driver's side of the undercover officer's vehicle. Sykes then handed defendant the package of drugs received from the supplier in the staged drug deal. Defendant took the package and returned to Sykes' vehicle and waited for Sykes. At that time, defendant expressed some confusion regarding the exact procedures he was to follow, stating that he needed to know what to do "from A to Z." Sykes testified, and audiotapes of the February 7, 1992, drug deal confirm, that Sykes wanted defendant to take the drugs back to his car, check them, ensure that the package was correct, and notify Sykes of any problems. Sykes stated that in order for defendant to fulfill his duty to protect against "rip-offs," defendant would be required to hold and examine the drugs purchased. Sykes explained that he could not watch the supplier and the package at the same time. After this conversation, while defendant and Sykes weighed the cocaine, defendant indicated that as a result of their discussion he had a better understanding of what Sykes wanted him to do. Defendant did not express his unwillingness to perform the duties explained by Sykes. Sykes then paid defendant $1,000 for his assistance.

Sometime after this first drug deal, Sykes asked defendant if he wished to participate in future drug deals and told him that it was okay if he no longer wanted to participate. Defendant indicated that he wanted to be included in future transactions. As a result, a second, similarly staged drug deal occurred on March 4, 1992, immediately after which defendant was arrested.

Defendant was charged with two counts of possession with intent to deliver more than 225, but less than 650, grams of cocaine. Defendant initially entered a Cobbs² plea with a visiting judge for two consecutive sentences of five to thirty years, sentences that were substantially less than the mandatory statutory minimum of twenty years for each offense. However, these sentences were reversed as being unsupported by substantial and compelling reasons required to depart from the mandatory statutory minimum. 223 Mich.App. 170, 175, 566 N.W.2d 28 (1997).

When the case returned to the trial court, defendant withdrew his guilty pleas and moved to dismiss the charges on the basis of an entrapment theory. The trial court granted defendant's motion to dismiss, reasoning that Sykes had changed defendant's duty during the first transaction from one of protection to one of actual drug possession, thus entrapping defendant into the drug possessions.

As indicated, the Court of Appeals affirmed in a split decision. The majority wrote that "[b]ecause many of the factors indicative of entrapment existed in this case, we hold that defendant has met his burden of proving that the police conduct would have induced an otherwise law-abiding person in similar circumstances as defendant to commit the offenses charged." Op. at 3. It also concluded that "Sykes' conduct in this case was so reprehensible as to constitute entrapment." Id.

The dissenting judge argued that defendant was not entrapped because "defendant willingly participated in the proposed criminal enterprise" and the police did nothing more than provide defendant with an opportunity to commit the crime. Op. at 1. Further, the dissenter disagreed with the majority's alternative conclusion that Sykes's conduct was so reprehensible as to establish entrapment.

This Court initially held plaintiff's application in abeyance pending our consideration of People v. Maffett, 464 Mich. 878, 633 N.W.2d 339 (2001), in which we ultimately denied leave to appeal. We then granted leave to appeal in this case, directing the parties to include among the issues to be briefed whether this Court should adopt the federal subjective entrapment test, and invited amicus curiae briefing. 465 Mich. 911, 638 N.W.2d 747 (2001).

II. Standard of Review

A trial court's finding of entrapment is reviewed for clear error. Jamieson, supra at 80, 461 N.W.2d 884. Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made. People v. Kurylczyk, 443 Mich. 289, 303, 505 N.W.2d 528 (1993) (opinion by GRIFFIN, J.). A defendant has the burden of establishing by a preponderance of the evidence that he was entrapped. People v. D'Angelo, 401 Mich. 167, 182, 257 N.W.2d 655 (1977).

III. Analysis

Under the current entrapment test in Michigan, a defendant is considered entrapped if either (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. Juillet, supra; People v. Ealy, 222 Mich.App. 508, 510, 564 N.W.2d 168 (1997). However, where law enforcement officials present nothing more than an opportunity to commit the crime, entrapment does not exist. People v. Butler, 444 Mich. 965, 966, 512 N.W.2d 583 (1994).

A. Inducing Criminal Conduct

When examining whether governmental activity would impermissibly induce criminal conduct, several factors are considered: (1) whether there existed appeals to the defendant's sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he was charged, (3) whether there were any long time lapses between the investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the...