People v. Crawford

• Decision Date: 29 August 1985
• Docket Number: Docket No. 73588
• Citation: 372 N.W.2d 550,143 Mich.App. 348
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee CRAWFORD, Defendant-Appellant.

Page 550

372 N.W.2d 550

143 Mich.App. 348

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee CRAWFORD, Defendant-Appellant.

Docket No. 73588.

Court of Appeals of Michigan.

Submitted Jan. 10, 1985.

Decided June 3, 1985.

Released for Publication Aug. 29, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Solicitor Gen., Joseph P. Kwiatkowski, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the people.

James R. Neuhard, State Appellate Defender by Stuart B. Lev, Detroit, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and MAHER and CHRZANOWSKI ^*, JJ.

CHRZANOWSKI, Judge.

After a nonjury trial, defendant was convicted of delivery of the controlled substance phencyclidine (PCP), M.C.L. Sec. 333.7401(2)(b); M.S.A. Sec. 14.15(7401)(2)(b). Defendant was placed on probation for five years, the first year of which was to be served in the county jail, and he appeals as of right.

I

This case is one of 11 cases before this panel which arose out of an undercover investigation in Cheboygan County. Defendant argues that the tactics employed by the police undercover agent involved in this investigation were so reprehensible that every case arising out of this investigation should be reversed on the ground of entrapment. Alternatively, defendant argues that the circumstances which led to the delivery of which defendant was convicted show that defendant himself was entrapped.

A claim of entrapment is resolved by a trial court at a separate evidentiary hearing at which the defendant bears the burden of proving entrapment by a preponderance of the evidence. The trial judge's decision is subject to appellate review under the "clearly erroneous" standard. People v. D'Angelo, 401 Mich. 167, 257 N.W.2d 655 (1977). As a matter of state constitutional law, Michigan follows the objective test of entrapment stated in the dissenting opinion of Justice Stewart in United States v. Russell, 411 U.S. 423, 445, 93 S.Ct. 1637, 1649, 36 L.Ed.2d 366 (1973):

"[G]overnment agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so.

* * *

* * *

"But when the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then--regardless of the character or propensities of the particular person induced--I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice." (Citations omitted.)

See People v. Turner, 390 Mich. 7, 21, 210 N.W.2d 336 (1973), and People v. D'Angelo, supra, 401 Mich. at pp. 172-173, fn. 4, 257 N.W.2d 655.

Defendant points to statements like the following from People v. Turner, supra, 390 Mich. at 22, 210 N.W.2d 336:

"[T]he real concern in these cases [is] whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand."

Such statements must be examined in the context of the opinions in which they occur. In Turner, for example, the Court was rejecting a test which turned on the subjective effect of the police conduct on the defendant and was explaining its preference for a test turning on the objective nature of the police conduct at issue. Turner and similar cases should not be read as indicating that a defense of entrapment is available any time the police or the agents do something which can be characterized as "reprehensible". Defense of entrapment presents a conflict between two significant state interests: the interest of the state in deterring police misconduct and the interest of the state in punishing criminals. The Turner Court resolved this conflict by striking a balance between the two conflicting interests. The balance struck is embodied in the test stated by Justice Stewart in his Russell dissent and previously quoted. Turner and subsequent cases show that the defense of entrapment is available only where the police or their agents manufactured the crime at issue by conduct likely, when objectively considered, to induce or instigate the commission of the crime by a person not ready and willing to commit it.

In People v. Larcinese, 108 Mich.App. 511, 515, 310 N.W.2d 49 (1981), the Court explained that misconduct by police or their agents will not necessarily taint all similar or related transactions. Instead, the facts and circumstances of each case must be examined to determine whether a defendant was entrapped. We acknowledge that the entire course of the investigation is relevant in applying the objective test of entrapment, but reprehensible conduct by police and their agents, even where the conduct involves the same defendant, will not support a finding of entrapment unless it induced or instigated the crime at issue.

Defendant's reliance on People v. Weatherford, 129 Mich.App. 359, 361, 341 N.W.2d 119 (1983), is misplaced. Weatherford contains merely an obscure statement that the trial court did not err by applying its findings as to entrapment to both defendants, because the charges against both defendants arose out of the same impermissible conduct on the part of the police and their agent. Nothing in the opinion suggests that it is authority for the broad proposition that reprehensible police conduct will taint an entire investigation without regard to its relation to the defendant or the crime at issue. Judicial opinions must be construed according to and in the context of the facts presented in the opinion as the basis for the decision. See Koschay v. Barnett Pontiac, Inc, 386 Mich. 223, 230, 191 N.W.2d 334 (1971). We therefore must decline defendant's suggestion that we supplement the Weatherford opinion by reference to the trial court record in that case.

We acknowledge that there is significant evidence in this record which would support criminal charges against the undercover agent, including evidence that the agent used and distributed drugs on a substantial scale, furnished liquor to minors, educated suspected dealers in more sophisticated techniques, and persuaded suspects to try new and arguably more dangerous drugs. We further acknowledge that the record raises serious questions as to whether this investigation was organized in a way which presented reasonable safeguards against such abuses and whether the decision to employ a professional informant of this background was sound. Nevertheless, the defense of entrapment was not intended to be the remedy for any and all misconduct or neglect by police and their agents. The defense is only a remedy for conduct likely, when objectively considered, to induce or instigate the commission of the crime by a person not ready and willing to commit it.

Defendant complains that, before his contact with the undercover agent at issue, the police had no knowledge, information, or suspicion that defendant was a drug dealer. In People v. Reynolds, 139 Mich.App. 471, 477-478, 362 N.W.2d 763 (1984), a case involving purchases of alcoholic liquor at various convenience stores by a minor undercover agent, this Court explained:

"Defendants and the lower courts also relied on the failure of the investigation to focus on any particular store and the absence before the purchases at issue of any reasonable suspicion or probable cause to believe that any of the stores involved were selling alcoholic liquor to minors. Other jurisdictions have rejected a requirement of probable cause or reasonable suspicion as a prerequisite to use of undercover agents. Kadis v United States, 373 F2d 370, 373 (CA 1, 1967); United States v Catanzaro, 407 F2d 998, 1001 (CA 3, 1969); United States v Swets, 563 F2d 989, 991 (CA 10, 1977); Hardin v State, 265 Ind 635; 358 NE2d 134 (1976); State v Burrow, 514 SW2d 585, 589 (Mo, 1974). Requirements of focus, probable cause, or reasonable suspicion cannot logically be derived from the objective test of entrapment, because such requirements have nothing to do with whether the police conduct was of a kind that could induce or instigate the commission of the crime by a person not ready and willing to commit it."

Cases on which defendant relies as authority for the contrary proposition are distinguishable. For example, in People v. Killian, 117 Mich.App. 220, 223, 323 N.W.2d 660 (1982), the Court explained:

"We do not imply here that police must have probable cause to use an undercover agent or informer to make a drug buy. See People v Wright (On Remand), 99 Mich App 801, 817; 298 NW2d 857 (1980). We emphasize that police not only did not suspect defendant of involvement in cocaine sales; they had every reason to suspect that he was not involved. See People v Turner, supra [390 Mich 7; 210 NW2d 336 (1973) ], 23. See also Reynolds v State, 155 Ind App 226; 292 NE2d 290 (1973)."

Undercover operations need not be focused on a particular suspect; what Killian forbids is an operation designed to induce the commission of the crime by a person the police have reason to believe is not ready and willing to commit it.

Evidence which the circuit court regarded as credible showed that this 20-year-old defendant met the undercover agent when he gave a friend a ride to the agent's apartment. The defendant entered the apartment with his friend, where the agent and several other people were present. Marijuana and beer supplied by the agent were shared by those present. After this meeting defendant and the agent were social acquaintances for about six weeks before the delivery at issue. Defendant visited the agent two or three times a week, and on most of these occasions shared marijuana provided by the agent.

The agent...