People v. Duke

• Decision Date: 08 December 1978
• Docket Number: Docket No. 77-5165
• Citation: People v. Duke, 274 N.W.2d 856, 87 Mich.App. 618 (Mich. App. 1978)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Herschel Denson DUKE, Defendant-Appellee. 87 Mich.App. 618, 274 N.W.2d 856
• Court: Court of Appeal of Michigan — District of US

Page 856

274 N.W.2d 856

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Herschel Denson DUKE, Defendant-Appellee.

Docket No. 77-5165.

87 Mich.App. 618, 274 N.W.2d 856

Court of Appeals of Michigan.

Dec. 8, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 619]James R. Neuhard, State App. Defender, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Edward J. Grant, Pros.Atty., John L. Wildeboer, Asst. Pros.Atty., for plaintiff-appellant.

Before DANHOF, C. J., and BASHARA and BYRNS, ^* JJ.

PER CURIAM.

The People appeal as of right from a December 23, 1977, order of Jackson County Circuit JudgeRussell A. Noble, dismissing an information against defendant on the ground of entrapment.

Defendant was arrested on August 14, 1977, and charged with the possession of heroin, a violation of M.S.A. § 335.341(4)(a);M.S.A. § 18.1070(41)(4)(a).On December 14, 1977, an entrapment hearing was held.At the hearing Detective Piziali of the Michigan[87 MICHAPP 620]State Police testified that he was contacted by the warden of the State Prison of Southern Michigan at Jackson.The wife of inmate Donald McAllister had informed the warden that other inmates, who believed McAllister had outside drug connections, were pressuring McAllister to smuggle drugs into the prison.These inmates, led by "Redbone" Brown, claimed to have the cooperation of a guard at the prison.They wanted McAllister's wife to deliver some drugs to the prison guard.The drugs would be brought into the prison by the guard and the heroin eventually delivered to McAllister, who in turn would turn the drugs over to Redbone Brown.McAllister was willing to cooperate with the state police in apprehending the guard involved in the scheme.

Subsequently, however, Mrs. McAllister left the state.Thus, Detective Piziali obtained the assistance of trooper Janece Vortman, who agreed to pose as McAllister's wife.In accordance with instructions relayed through McAllister, trooper Vortman obtained a hotel room at a local Holiday Inn.At the time, she was in possession of a packet of heroin provided by the state police laboratory.

On August 14, 1977, trooper Vortman received a call from a woman asking if she had a package.The caller, who said her husband was a prison guard, indicated that she would pick up the package.Vortman responded that she was instructed to deliver the package only to the guard.The caller then agreed to have her husband pick up the package.

Forty-five minutes later, defendant appeared at the hotel room and identified himself.He was given the heroin which was in a clear plastic packet.He was told it was fifty percent pure and that she didn't want it "stepped on".After examining[87 MICHAPP 621] the packet, defendant left the room.It was the intention of the police to arrest defendant after he returned to the prison.However, defendant did not go directly to the prison, but instead went toward his home.Fearing that the heroin might be lost, the police arrested defendant.

Defendant disclaimed any knowledge of a heroin smuggling operation.He testified that on the day of the exchange he was contacted by Dennis Hicks, an inmate at the prison.Hicks asked him to pick up a package for him at the Holiday Inn.Defendant claimed to know nothing about the contents of the package.He inferred from trooper Vortman's comments at the time of the exchange that the package contained brown sugar.

Redbone Brown also testified at the hearing.He claimed to have no knowledge of any smuggling activities involving a prison guard.He claimed that McAllister had at one time approached him about smuggling drugs into the prison, but that he had refused to participate in such a venture.

Michigan has adopted the "objective test" for determining if entrapment has occurred.People v. Turner, 390 Mich. 7, 210 N.W.2d 336(1973).That test, which was taken from Justice Stewart's dissenting opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366(1973), does not focus upon a defendant's predisposition to commit the crime charged.Rather, the focus is on:

"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."Turner, supra, 390 Mich. at 22, 210 N.W.2d at 342.

In setting forth the objective test for entrapment, the Court further relied upon language from Justice Stewart's dissent in Russell, supra, noting:

[87 MICHAPP 622]"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."Turner, supra, at 21, 210 N.W.2d at 342.

In ruling on a question of entrapment, the trial judge is required to make findings of fact, based upon the evidence presented at the hearing, People v. Cancino, 70 Mich.App. 90, 94, 245 N.W.2d 414(1976).The trial judge is required to consider the police conduct in relation to a hypothetical defendant, not one ready and willing to commit the crime.People v. Zeegers, 61 Mich.App. 546, 550, 233 N.W.2d 76(1975).Defendant has the burden of proving entrapment by a preponderance of the evidence.People v. D'Angelo, 401 Mich. 167, 183, 257 N.W.2d 655(1977).Typically, those cases where entrapment has been found involve situations where the police have pressured the defendant into committing the crime, People v. Duis, 81 Mich.App. 698, 703, 265 N.W.2d 794(1978), or where they have in some way played upon his sympathies.People v. Soper, 57 Mich.App. 677, 679, 226 N.W.2d 691(1975).

However, in the present case, the facts fail to establish any such conduct on the part of the police.Rather, defendant relies upon the fact that the heroin which provides the basis for the possession charge was supplied by the police.In support of this theory, defendant cites People v. Stanley,68 Mich.App. 559, 243 N.W.2d 684(1976).There, the [87 MICHAPP 623]Court held that the defense of entrapment is available where the prosecution is aimed at the sale of contraband originally obtained from a government agent.In addition, Stanley involved a situation where a state police detective feigned withdrawal sickness to bring about the sale.

The present case, however, involves neither an appeal to defendant's sympathies, nor a "take-back"...