People v. Brown

• Decision Date: 27 November 1987
• Docket Number: Docket No. 97840
• Citation: 413 N.W.2d 766,163 Mich.App. 273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Basil W. BROWN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 766

413 N.W.2d 766

163 Mich.App. 273

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Basil W. BROWN, Defendant-Appellant.

Docket No. 97840.

Court of Appeals of Michigan.

Submitted March 17, 1987.

Decided Sept. 21, 1987.

Released for Publication Oct. 28, 1987.

Leave to Appeal Denied Nov. 27, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Donald E. Martin, Pros. Atty., and Paula M. Zera, Chief, Crim. Div., for the People.

Dunnings & Frawley, P.C. by Stuart J. Dunnings, III and Stuart J.Dunnings, Jr., Lansing, for defendant-appellant.

Before MacKENZIE, P.J., and BEASLEY and QUINNELL, ^* JJ.

QUINNELL, Judge.

The facts of this case are set forth in the concurring opinion of Judge Beasley.

We agree with Judge Beasley's disposition of the delivery issue.

We also agree with his result as to the entrapment issue, but only reluctantly.

We agree that some of the police conduct is merely distasteful; after all, if the KGB can use sex to gain access to the American Embassy in Moscow, we suppose that the Organized Crime and Public Corruption Unit of the Department of Attorney General can use sex to gain access to the defendant's apartment in Lansing. We find other aspects of the police behavior to be truly reprehensible. Their confidential informant was a known prostitute, known heroin addict, and known user of other illicit drugs. She was otherwise vulnerable in that an additional prostitution charge was pending against her. They promised her a place to stay, food to eat, spending money, transportation to see her children, and the opportunity to enroll in a drug rehabilitation program if she would agree to work as an undercover agent for them with regard to this defendant and perhaps as many as three other investigations. ¹ The cooperation expected of her was that she would gain access to the defendant's apartment, have sex with him, smoke marijuana, and they expected her to take her own syringes so that she could inject herself with cocaine. Admittedly the agents informed the informant to avoid sex if she could, but that admonition ignores reality. All of this activity took place after the agent had professed to the informant at the beginning of their relationship that the police wanted to help the informant get off drugs and make sure she had a place to stay.

Both during the entrapment hearings at the trial court level and on appeal the police attempted to justify their actions by saying in effect, "We only expected her to do what she had been doing before." Of course, what the informant had been doing before was committing crimes involving the use of illicit drugs, and engaging in a meretricious relationship with the defendant. In our view, the fact that such acts had taken place in the past is not an excuse for the police to promote such activity.

However, this reprehensibility concerns the relationship between the police and the informant, not the relationship between the police/informant and the defendant. Starting with People v. Moore, 73 Mich.App. 514, 517, 252 N.W.2d 507 (1977), several panels of this Court have determined that the defense of entrapment consists of

"(1) intolerable police conduct that (2) induces or instigates the commission of a crime."

See also People v. Barker, 97 Mich.App. 253, 255, 293 N.W.2d 787 (1980), rev'd on other grounds 411 Mich. 866, 306 N.W.2d 100 (1981); People v. Larcinese, 108 Mich.App. 511, 310 N.W.2d 49 (1981); People v. Weatherford, 129 Mich.App. 359, 361, 341 N.W.2d 119 (1983); People v. Crawford, 143 Mich.App. 348, 372 N.W.2d 550 (1985), lv. gtd. on other grounds 424 Mich. 879 (1986); People v. Mulkey, 153 Mich.App. 737, 739, 396 N.W.2d 514 (1986).

The reprehensible police conduct here could be considered as a causative factor in the commission of the charged offenses only in the broadest meaning of the term "cause"--if the police had not dealt most unfairly with the informant, she probably would not have contacted the defendant, and therefore the charged offenses would not have occurred or (as to the possession counts) would not have been discovered. However, the police treatment of the informant did not induce or instigate the commission of the crimes, it merely provided an incentive for the informant to contact the defendant. Even the police approval of the informant's taking syringes into the defendant's apartment for shooting up with cocaine, reprehensible though such approval was, did not induce the defendant to commit the delivery of cocaine, since the informant could have used the cocaine without her own syringe, and in fact did so on at least one occasion.

Our research has not uncovered any Michigan Supreme Court decision which has specifically addressed the question whether reprehensible police conduct must have induced or instigated the crime. The policy considerations expressed by Justice Stewart's dissent in U.S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and by the Michigan Supreme Court in People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), suggest that there may be no need for the defendant to prove that the reprehensible police conduct induced or instigated the crime. However, given the facts of this case and the ten-year history of that requirement in the Court of Appeals, we cannot find the trial court's ruling that defendant had not proved entrapment to be clearly erroneous.

Both the trial judge and Judge Beasley mention defendant's failure to testify at the entrapment hearing. His decision to testify or not to testify is totally irrelevant to a determination of whether he sustained his burden of proving entrapment.

Judge Beasley also suggests that the social menace represented by the use of cocaine is so serious that some extraordinary police measures should be tolerated. We have searched in vain for a case that suggests that a balancing test should be used in entrapment cases to compare the reprehensibility of the police conduct and the reprehensibility of the offense charged. If there were authority for such a position, we would have no difficulty in finding that the conduct of the police was more reprehensible than the conduct of the defendant. The record indicates that although the initial relationship between defendant and the informant developed out of the informant's being a prostitute, that relationship developed into a friendship such that, in more recent times, the informant typically went to the defendant's apartment, the two engaged in sex, and shared whatever marijuana or cocaine the defendant happened to have. There is no suggestion that the defendant is in any sense a dealer; in fact, the hiatus that existed in the relationship between the informant and the defendant over the $130 apparently resulted from the informant's agreement to buy some drugs for the defendant, not from the defendant. The defendant's treatment of the informant was certainly not exemplary, but the police conduct in general, and the police treatment of the informant in particular, were worse.

Despite our misgivings and reservations, we must affirm.

Affirmed.

MacKENZIE, P.J., concurred.

BEASLEY, Judge (concurring).

The following opinion was promptly circulated as a proposed majority opinion. However, the majority join in an opinion which reaches the same result. Since I am not persuaded by the majority opinion, I submit my opinion, as originally circulated, as a concurring opinion.

Defendant, Basil W. Brown, appeals from an order of the Ingham Circuit Court denying his motion to dismiss on the grounds that he was entrapped and that the evidence was insufficient to support the bindover from the district court to the circuit court.

Defendant, a longtime state senator, was charged with two counts of delivery of marijuana, two counts of delivery of cocaine, one count of possession of cocaine, and one count of possession of marijuana. After preliminary examination, defendant was bound over for trial. In circuit court, defendant moved to quash the information, claiming that he had been entrapped and that there was insufficient evidence of delivery of cocaine and of marijuana. On June 4, 1986, his motion was denied. On August 15, 1986, his application for leave to appeal was denied by this Court. On June 10, 1986, defendant had filed a motion in the circuit court for reconsideration of the June 4, 1986, order. A hearing was held on September 25, 1986, on the motion for rehearing and, on October 20, 1986, an opinion and order were entered in the circuit court denying the motion for reconsideration and holding that defendant had not been entrapped. On December 16, 1986, in a 2-to-1 decision, this Court denied defendant's application for leave and for a stay of proceedings. Defendant then filed an application for leave to appeal in the Supreme Court. While that application in the Supreme Court was pending, defendant filed a further motion in the circuit court for a stay of proceedings and for a ruling that a search warrant was involved. On January 12, 1987, the circuit judge denied those motions. On January 14, 1987, the Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration as on leave granted, but denied the motion for a stay. 428 Mich. 851, 399 N.W.2d 25 (1987). On January 15, 1987, this court stayed the proceedings. We now hear this interlocutory appeal in accordance with the Supreme Court order of January 14, 1987.

The ruling in the circuit court from which defendant appeals was based on the evidence produced at the preliminary examination and at the September 25, 1986, hearing. Defendant did not choose to testify at either of those hearings. The Michigan law is clear ¹ that defendant could have testified at the entrapment evidentiary hearing without giving up his right to remain silent at trial on the merits if his entrapment motion failed. Thus, while defendant was, of course, entitled to remain silent, he cannot now on this...