People v. D'Angelo

• Decision Date: 26 September 1977
• Docket Number: 14,Nos. 13,s. 13
• Citation: 401 Mich. 167,257 N.W.2d 655
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dominic Paul D'ANGELO, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Shawn SHELINE, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 655

257 N.W.2d 655

401 Mich. 167

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dominic Paul D'ANGELO, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Shawn SHELINE, Defendant-Appellee.

Nos. 13, 14.

Supreme Court of Michigan.

Sept. 26, 1977.

Keller, Keller & Creager by George S. Keller, St. Joseph, for appellee.

John A. Smietanka, Pros. Atty., Berrien County by Sally M. Zack, Asst. Pros. Atty., Berrien County, Dennis M. Powers, Sp. Asst. Pros. Atty., Monroe County, Ann Arbor, on appellant's brief on appeal.

Robert W. Kehres, Asst. Pros. Atty., Monroe County, Monroe, on appellant's supplemental appendix.

Lander C. McLoyd, Asst. State App. Defender, Dawn Van Hoek, Research Asst., Detroit, on defendant-appellee's reply brief.

RYAN, Justice.

In separate and unrelated trials Dominic P. D'Angelo was convicted of Delivery of a Controlled Substance (LSD), ¹ and Timothy S. Sheline was convicted of Breaking and Entering with Intent to Commit Larceny. ²

Common to both trials were the defendants' claims of entrapment. In each case, after denying a Motion for Directed Verdict of Acquittal, the trial judge submitted the entrapment issue to the jury together with the issue of guilt or innocence. Both juries convicted.

In Sheline the Court of Appeals reversed ³ holding that, based upon our decision in People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), the issue of entrapment should have been decided by the trial court and not the jury.

In D'Angelo the trial court granted defendant's request for a new trial for the same reason.

The cases were consolidated for appeal and we granted leave in order to decide whether the entrapment question is to be decided by the trial court or the jury.

I

In Turner we adopted what has come to be known as the objective test of entrapment as defined in Mr. Justice Stewart's dissent in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), Mr. Justice Frankfurter's concurring opinion in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and the concurring opinion of Mr. Justice Roberts in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

As we noted in Turner, the modern American entrapment doctrine with the objective test appears to have its roots in the case of Saunders v. People, 38 Mich. 218 (1878), specifically the concurring opinion of Justices Marston and Campbell. The test focuses upon the propriety of the government conduct which resulted in the charges against the defendant instead of upon the defendant's alleged "predisposition" to commit the crime charged. ⁴

The purpose of the entrapment doctrine is to deter unlawful government activities and to preclude the implication of judicial approval of impermissible government conduct.

In Turner we did not directly address the issue whether entrapment is a question for the judge or the jury. Implicit in our holding, however, were not only the conclusions reached by Justices Stewart, Frankfurter and Roberts in their respective opinions, but the underlying rationale employed by them. In each of those opinions the author alluded, directly or indirectly, to the proposition that the objective test of entrapment is more properly applied by the trial court, but Mr. Justice Stewart, whom Justice Swainson quoted at length in Turner, put it most clearly:

"In the case before us, I think that the District Court erred in submitting the issue of entrapment to the jury, with instructions to acquit only if it had a reasonable doubt as to the respondent's predisposition to committing the crime. Since, under the objective test of entrapment, predisposition is irrelevant and the issue is to be decided by the trial judge, the Court of Appeals, I believe, would have been justified in reversing the conviction on this basis alone. But since the appellate court did not remand for consideration of the issue by the District Judge under an objective standard, but rather found entrapment as a matter of law and directed that the indictment be dismissed, we must reach the merits of the respondent's entrapment defense." 411 U.S. at 446, 93 S.Ct. at 1650. (Dissenting opinion)

The policy considerations which moved us to adopt the objective test of entrapment compel with equal force the conclusion that the judge and not the jury must determine its existence. The thesis is that law enforcement conduct which essentially manufactures crime is a corruptive use of governmental authority which, when used to obtain a conviction, taints the judiciary which tolerates its use. It is a practice which relies for its success upon judicial indifference, if not approval, and it must be deterred. Its deterrence is a duty which transcends the determination of guilt or innocence in a given case and stands ultimately as the responsibility of an incorruptible judiciary.

As Mr. Justice Roberts pointed out in Sorrells :

"The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law." 287 U.S. at 457 ⁵, 53 S.Ct. at 218. (Concurring opinion)

Aside from the forceful policy considerations which dictate judicial vigilance in guarding against and precluding the use of improper law enforcement tactics in the judicial process, there are pragmatic reasons why the duty should not be passed along to the jury.

A jury verdict of guilty provides no evaluation of the challenged police conduct in the case and gives no guidance by which to measure the propriety of future official conduct. Similarly, a verdict of not guilty fails to disclose whether the police conduct challenged in the case was found to be impermissible or that the prosecution simply failed to prove the defendant's guilt beyond a reasonable doubt.

Resolution of the entrapment issue by the court, on the other hand, will provide, through an accumulation of cases, a body of precedent which will stand as a point of reference both for law enforcement officials and the courts. Where jury determination thwarts the rationale of the defense, judicial determination results in the formulation of appropriate standards of conduct.

Moreover, the concern expressed by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and this Court in People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), that evidence pertaining to guilt is likely to infect a jury determination of the voluntariness of a confession has an equal and analogous application to jury determination of entrapment. ⁶

Just as in the determination of the voluntariness ⁷ of an alleged confession, determination by the trial court of the entrapment issue will insure that the jury's verdict is free from the taint of undue and unnecessary prejudice which might well be generated by the concomitant duty to decide voluntariness in the confession case or the propriety of police conduct in the entrapment case.

In sum, we share the view expressed by Judge O'Hara who, in the concurring portion of his separate opinion in the court below wrote:

"(I)t is beyond human mental limitations to allow a jury to hear evidence clearly establishing the corpus delicti of a given offense and at the same time charge that if entrapment occurred this evidence is to be disregarded by them." ⁸

A court determination of entrapment does not deprive the defendant of the Sixth Amendment right to trial by jury. The focus of the entrapment inquiry under the objective test is upon the nature of the police conduct. The guilt or innocence of the defendant is irrelevant to that determination. A decision whether entrapment has occurred will involve the court's evaluation of the government conduct which resulted in the charges against the defendant. Should the court determine that government did not engage in impermissible conduct, the guilt or innocence of the defendant will be decided by the jury.

We conclude therefore that under the objective test mandated by Turner the issue of entrapment is best decided by the trial court outside the presence of the jury. This procedure is necessary to effectuate the policy considerations which underlie the objective test and is more consonant with an efficacious and fair system of justice. ⁹ We agree with the Court of Appeals that a court determination of the entrapment issue is mandated by our decision in Turner. ¹⁰ Since the trials in both of these cases took place well after the Turner decision, we affirm the Court of Appeals conclusion that the trial courts erred in submitting the issue of entrapment to the respective juries.

II

When the defendant raises the issue of entrapment, whether before or during trial, the appropriate procedure will require the trial court to conduct an evidentiary hearing in the jury's absence, procedurally similar to what the bench and bar of this State have come to know as the "Walker hearing" ¹¹ in cases involving statements attributable to the defendant. Both the prosecution and the defendant will be free to present evidence. It is likely, of course, that the defendant himself will testify in the hearing in order to establish the claimed entrapment.

Since our test for entrapment does not look to the defendant's so-called predisposition to commit the crime charged but focuses instead upon the challenged governmental activity, the defendant will not be required to admit the criminal act in order to raise the entrapment issue. Any testimony the defendant gives at the entrapment hearing, including his possible admission of the crime charged or some aspect of it, will not be admissible against him in the case in chief for substantive purposes as an admission, but should the defendant give testimony before the jury in the case in chief on a material matter...