People v. Douglas

• Decision Date: 06 May 1983
• Docket Number: Docket No. 62505
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. DOUGLAS, Defendant-Appellant. 122 Mich.App. 526, 332 N.W.2d 521
• Court: Court of Appeal of Michigan — District of US

Page 521

332 N.W.2d 521

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. DOUGLAS, Defendant-Appellant.

Docket No. 62505.

122 Mich.App. 526, 332 N.W.2d 521

Court of Appeals of Michigan.

Submitted Sept. 15, 1982.

Decided Jan. 19, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 527] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Harriet B. Rotter, P.C. by Harriet B. Rotter, Franklin, for defendant-appellant on appeal.

Before R.B. BURNS, P.J., and ALLEN and KELLY, JJ.

KELLY, Judge.

On the day initially scheduled for an entrapment hearing, defendant abandoned his entrapment defense and pled guilty to delivery of a controlled substance, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), and to being a third-offense habitual offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant was sentenced to a term of from 3 to 20 years in prison. He appeals as of right.

After defendant filed his claim of appeal, appellate counsel timely moved this Court to remand [122 MICHAPP 528] the cause for an evidentiary hearing on the issue of entrapment. Defendant correctly asserted that his claim of entrapment was not waived by his guilty plea, citing the Supreme Court's interpretation of People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), in People v. White, 411 Mich. 366, 387, 308 N.W.2d 128 (1981):

"A claim of entrapment does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all. In this respect, it is like a jurisdictional defect which is not waived by a plea of guilty."

Defendant asserted in his motion for remand a scenario predicated upon the assertions that a series of drug transactions were arranged for the defendant by undercover police agents who told defendant that he would be provided portions of any drugs that he could obtain for the officers from the targeted drug traffickers. It was alleged that defendant was a recovering addict and that those successful efforts overcame defendant's resistance, caused him to again become an addictive user, and impermissibly instigated the crimes for which defendant was charged. Defendant asserted similarities to factual situations occurring in the federal cases of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

On March 26, 1982, a panel of this Court, in an unpublished order, denied defendant's motion to remand for "lack of merit in the grounds presented". Defendant proceeded with his appeal but raised no new issues, alleging only entrapment and praying for reversal. At oral argument, however, appellate counsel alternatively prayed for [122 MICHAPP 529] remand. In any event, the thrust of the appeal is the defense of entrapment.

We hold that we are precluded from reviewing defendant's claim of entrapment by virtue of this Court's order of March 26, 1982, denying remand, because we hold that that order constitutes the law of the case.

A defendant has the burden of proving a claim of entrapment by a preponderance of the evidence. People v. D'Angelo, 401 Mich. 167, 183, 257 N.W.2d 655 (1977). The Court of Appeals is not to determine in the first instance, without the benefit of a contested lower court hearing, whether a defendant was entrapped. The issue must first be brought to the attention of the trial court before or during trial and decided by that court after an evidentiary hearing. See D'Angelo, supra, pp. 178-183, 257 N.W.2d 655. The trial court's finding may then be subject to appellate review under the "clearly erroneous" standard. D'Angelo, supra, p. 183, 257 N.W.2d 655; see GCR 1963, 517.1.

Since an evidentiary hearing on the issue of entrapment was never held in this case, we have no record evidence before us indicating whether defendant was entrapped. Without the benefit of an evidentiary hearing and the attendant record evidence, defendant's claim of entrapment cannot be decided on appeal.

It is beyond our power to remand this cause for an evidentiary hearing. The decision of a previous panel of this Court, finding a "lack of merit in the grounds presented" on...