People v. Cancino

• Decision Date: 19 July 1976
• Docket Number: Docket No. 22499
• Citation: 245 N.W.2d 414,70 Mich.App. 90
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman O. CANCINO, Defendant-Appellant. 70 Mich.App. 90, 245 N.W.2d 414
• Court: Court of Appeal of Michigan — District of US

Page 414

245 N.W.2d 414

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman O. CANCINO, Defendant-Appellant.

Docket No. 22499.

70 Mich.App. 90, 245 N.W.2d 414

Court of Appeals of Michigan.

July 19, 1976.

Released for Publication Sept. 15, 1976.

[70 MICHAPP 92] Reid & Reid by Joseph D. Reid, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P.J., and HOLBROOK and T. M. BURNS, JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

Defendant was convicted by a jury of delivery of heroin. M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He received a sentence of three years probation, the last six months to be spent in the county jail. Defendant appeals as of right.

At both the preliminary examination and the trial the prosecution's principal witness was the state police undercover narcotics officer who purchased the heroin from the defendant. The substance of the officer's testimony at both hearings was that while he was on undercover duty in a bar he was approached by the defendant; he asked the defendant if he knew where the officer could obtain some heroin; and the defendant informed him that the defendant knew where heroin could be obtained. Subsequently, the officer drove the defendant to the address where the defendant said the heroin could be purchased. At that point the officer testified that he gave the defendant $50 to purchase a quantity of heroin for him. When the [70 MICHAPP 93] defendant demanded some of the heroin in return, the officer offered him an additional $10 instead. The officer's testimony continued that the defendant took the $60 and returned a short time later with the heroin.

At trial the defendant took the witness stand and the substance of his testimony was that the transaction occurred generally as described by the officer. The major point of difference between the two witnesses' testimony was that the defendant stated that during the transaction the officer had 'feigned' symptoms of heroin withdrawal that aroused the defendant's sympathies and caused him to make the purchase for the officer.

Prior to the commencement of the trial defense counsel made a motion to quash the information because the defendant had been entrapped by the undercover police officer into making the delivery. At the hearing on the motion the transcript of the defendant's preliminary examination was introduced in support of the motion to quash the information. ¹ After hearing counsels' arguments and reviewing the transcript the trial court denied the defendant's motion to quash the information and the case proceeded to trial.

On appeal defendant contends that the procedure utilized by the trial court constitutes reversible error. The defendant argues that before the trial court can render a decision on the issue of entrapment, it must first hold an evidentiary hearing. Cf., people v. Habel (On Rehearing), 53 Mich.App. 399, 400--401, 220 N.W.2d 74 (1974). Such an evidentiary hearing would provide the defendant [70 MICHAPP 94] with an opportunity to present his evidence on the issue of entrapment while preserving his right not to take the witness stand before the jury. People v. Sheline, 64 Mich.App. 193, 199--200, n. 5, 235 N.W.2d 177 (1975), Lv. granted, 395 Mich. 817 (1975), see People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965).

To properly determine if the criminal conduct was instigated by government agents, it is necessary for the trial court to consider all the evidence presented to it bearing on the government agents' conduct. Accord, People v. Fraker, 63 Mich.App. 29, 34, 233 N.W.2d 878 (1975), see also Sorrells v. United States, 287 U.S. 435, 454, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (Roberts, J., concurring). If there is conflicting testimony on any point, the trial court should carefully weigh the evidence and then make the necessary findings of fact and conclusion of law. Accord, People v. Fraker,supra, cf., People v. Olson, 66 Mich.App. 197, 201, 238 N.W.2d 579 (1975), People v. Bennett, 3 Mich.App. 326, 329, 142 N.W.2d 455 (1966).

Our review of the record in the present case convinces us that the trial court evaluated all the evidence presented to it. At the hearing on the motion to quash the only evidence introduced was the testimony of the undercover police officer at the preliminary examination. ². During the hearing on this motion, defense counsel made numerous references to the transcript and argued that this evidence, in and of itself, showed that the criminal conduct was instigated by the undercover officer. The record reveals no request by defense counsel for an opportunity to present any other evidence on the issue.

[70 MICHAPP 95] While it is better practice for the trial court to hold an evidentiary hearing, the failure to conduct an evidentiary hearing is not reversible error. See People v. Shipp, 21 Mich.App. 415, 419, 175 N.W.2d 529 (1970). It is not the responsibility of the trial court to order Sua sponte an evidentiary hearing on the matter. The function of the trial court is to properly dispose of the issues before it on the evidence presented by the parties. It is the function of respective counsel to present the evidence upon which the trial court is to base its decision.

Further, a thorough review of the record reveals that while defendant counsel renewed his motions at the conclusion of the people's proofs he failed to do so upon conclusion of defendant's proofs after defendant had testified. The trial court then submitted the issue of entrapment to the jury in the language of the objective test. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The dissenting opinion Sua sponte holds that the trial court committed reversible error in so doing. We agree that the trial court erred in submitting the issue to the jury, People v. Habel, supra, but we find that the error is harmless in this case.

The trial court decided the issue adversely to the defendant each time it was requested based on the evidence before it. The error, therefore, that occurred inured to the benefit of the defendant since it permitted the jury to render a decision on the issue after the trial court had twice adversely ruled thereon. This distinguishes the present case from People v. Sheline, supra, and People v. Van Riper, 65 Mich.App. 230, 237 N.W.2d 262 (1975), where the trial court never decided the issue. Cf., People v. Fraker, supra 63 Mich.App. at 33, 233 N.W.2d 878.

The next assignment of error we will consider relates to questions propounded to the defendant [70 MICHAPP 96] on cross-examination which he claims were asked to show his predisposition to commit the charged offense. Under the 'objective' test of entrapment only the actions of the officer are relevant, the predisposition of the defendant to commit the crime is irrelevant. ³ People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973); United States v. Russell,411 U.S. 423, 439, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (Stewart, J., dissenting); Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring); Sorrells v. United States,supra. While the questions elicited matter concerning the defendant's predisposition to commit the crime, the prosecutor seeks to justify the questions on other grounds.

The trial court ruled that the challenged questions related to the defendant's credibility as a witness. In matters pertaining to the scope of cross examination the trial court has been granted wide discretion. People v. Layman, 299 Mich. 141, 148, 299 N.W. 840 (1941). Similarly, the trial court enjoys broad discretion in determining what evidence is relevant and material. ⁴ M.C.L.A. § 768.29; M.S.A. § 28.1052, People v. Bunker, 22 Mich.App. 396, 408, 177 N.W.2d 644 (1970).

The challenged questions relate to how the defendant knew that the undercover officer was 'suffering' from symptoms of heroin withdrawal. They also related to why the defendant had first requested some of the heroin for making the purchase.[70 MICHAPP 97] The testimony by the defendant that he had previously used heroin is relevant to explaining the questions raised by the defendant's previous testimony both on direct and cross examination. Cf., People v. Michell, 61 Mich.App. 153, 166, 232 N.W.2d 340 (1975). Furthermore, the trial court without a recorded request gave a cautionary instruction to the jury that the testimony was only to be used in measuring the defendant's credibility.

Finally, the defendant argues that the trial court improperly denied his motion for a directed verdict of acquittal because of the 'procuring agent' defense. That defense was initially recognized in Michigan in this Court's opinion in People v. Turner, 38 Mich.App. 479, 196 N.W.2d 799 (1972), Rev'd on other grounds, 390 Mich. 7, 210 N.W.2d 336 (1973).

However, this Court has held that with the passage of the Controlled Substances Act of 1971 ⁵ the defense of 'procuring agent' is no longer available to a defendant in a drug delivery case. People v. Collins, 63 Mich.App. 376, 382--383, 234 N.,.2d 531 (1975). People v. Williams, 54 Mich.App. 448, 450, 221 N.W.2d 204 (1974). The Supreme Court's announcement in People v. Auer, 393 Mich. 667, 678, n. 4, 227 N.W.2d 528 (1975), that the question of whether this defense is valid is still 'open' is of no assistance to the defendant in this case. In People v. Auer, the defendant was tried under the prior drug law which referred to a sale and not a delivery. Compare M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1) with M.C.L.A. § 335.152; M.S.A. § 18.1122 (repealed by 1971 P.A. 196, § 66), see also People v. Williams, supra.

Affirmed.

[70 MICHAPP 98] T. M. BURNS, Judge (dissenting).

Prior to trial, defendant made a motion to quash the information raising the...