People v. Fabiano

• Decision Date: 21 January 1992
• Docket Number: Docket No. 134362
• Citation: 192 Mich.App. 523,482 N.W.2d 467
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark R. FABIANO, Defendant-Appellant. 192 Mich.App. 523, 482 N.W.2d 467
• Court: Court of Appeal of Michigan — District of US

Page 467

482 N.W.2d 467

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark R. FABIANO, Defendant-Appellant.

Docket No. 134362.

192 Mich.App. 523, 482 N.W.2d 467

Court of Appeals of Michigan.

Submitted Sept. 10, 1991, at Grand Rapids.

Decided Jan. 21, 1992, at 9:40 a.m.

Released for Publication April 13, 1992.

[192 MICHAPP 524] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

Larry C. Willey, Grand Rapids, for defendant-appellant.

Before SAWYER, P.J., and MURPHY and RICHARD ALLEN GRIFFIN, JJ.

SAWYER, Presiding Judge.

Defendant pleaded guilty to a charge of attempted delivery of cocaine in an amount less than fifty grams. M.C.L. Sec. 750.92; M.S.A. Sec. 28.287 and M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). He now appeals, and we remand.

Defendant's only argument on appeal is that the trial court erred in denying his motion for a dismissal based on entrapment. This case involves two sales of relatively small amounts of cocaine, one to a police informant and the other to an undercover police officer, as arranged by the informant. The police informant had been a childhood friend of defendant, though the two had lost track of each other in recent years. The events leading [192 MICHAPP 525] to defendant's arrest occurred after the informant and defendant met again in a chance encounter. The informant had other difficulties with the law and was seeking to cooperate with the police in order to obtain leniency in those other matters. After some persistence by the informant, defendant agreed to the sales involved and apparently made no profit from the sales.

In its opinion following an entrapment hearing, the trial court found that the police informant lied during his testimony and that defendant's version of the events was believable. The court, however, also found that defendant's version of the events did not establish entrapment. The trial court found that, while the police informant's conduct was reprehensible, it did not induce or instigate the commission of a crime and, therefore, entrapment did not occur. The trial court did note that it was a very close question and that had the informant gone "just a bit further," entrapment would have occurred.

We review the trial court's finding that the defendant was not entrapped under the clearly erroneous standard of review. People v. Jamieson, 436 Mich. 61, 93, 461 N.W.2d 884 (1990); see also People v. Juillet, 439 Mich. 34, 69, 475 N.W.2d 786 (1991) (opinion of Brickley, J.). In this case, the trial court issued a lengthy written opinion that was both well reasoned and well written. Were Jamieson the last word on entrapment, we would affirm the trial court's finding that defendant was not entrapped for the reasons set forth in the trial court's opinion.

However, the Supreme Court recently issued its decision in Juillet, supra. Despite the protestations of Justice Brickley and Chief Justice Cavanagh that Juillet does not change the entrapment test [192 MICHAPP 526] as adopted in Jamieson, ¹ we conclude that a careful reading of the justices' various opinions indicates that Juillet, while continuing to adhere to an objective test, does change the nature of that test. ² Specifically, we conclude that four justices would find entrapment if (1) the police engaged in impermissible conduct that would have induced a person similarly situated as the defendant, though otherwise law-abiding, to commit the crime, ³ OR (2) the police engaged in conduct so reprehensible that it cannot be tolerated by the Court.

A review of the opinions in Juillet is appropriate to explain our view of the current state of the law on entrapment. Turning first to the first prong, the government-instigation prong, we find that it is similar to the entrapment test as stated in prior decisions of the Supreme Court. The primary change involves the issue of causation, i.e., we must now determine whether the police conduct would have induced a person similarly situated as the defendant to commit the crime rather than whether it would have induced an average, law-abiding citizen to commit the offense. On this point, we believe that four justices reached agreement in Juillet.

[192 MICHAPP 527] First, there is the opinion of Justice Brickley, joined by Justices Riley and Griffin. This opinion adopts as the entrapment test the first prong we have outlined above. The Brickley plurality sets forth an entrapment test under which it must be "determine[d] whether the police conduct in question ha[d] as its 'probable and likely outcome the instigation rather than the detection of criminal activity.' " Juillet, supra at 53, 475 N.W.2d 786, quoting Jamieson, supra 436 Mich. at 77, 461 N.W.2d 884. Justice Brickley further explains this test by stating that "although the objective test is mainly concerned with the existence of reprehensible police conduct, consideration must be given to 'the willingness of the accused to commit the act weighed against how a normally law-abiding person would react in similar circumstances.' " Juillet, supra 439 Mich. at 54, 475 N.W.2d 786, quoting Jamieson, supra 436 Mich. at 74, 461 N.W.2d 884 (emphasis in Juillet ). Thus, according to Justice Brickley, "the court can review the circumstances of the defendant to determine whether the police conduct would induce a similarly situated person, with an otherwise law-abiding disposition, to commit the charged crime." Juillet, supra 439 Mich. at 55, 475 N.W.2d 786. Thus, the trial court may consider the circumstances of the particular defendant and consider the effects of the police conduct upon a normally law-abiding person in the circumstances presented to the defendant. Id.

In searching for a fourth vote in support of Justice Brickley's position, we look first to Chief Justice Cavanagh's concurring opinion. The Chief Justice agreed with Justice Brickley's formulation, except that the Chief Justice would not give consideration to the circumstances of the defendant, looking instead to the effect of the police conduct on "a hypothetical person who had not yet reached that level of criminal activity (even if he [192 MICHAPP 528] was not a spotlessly law-abiding person) to do so." Juillet, supra at 76, 475 N.W.2d 786.

Turning to Justice Boyle's opinion, she would find entrapment where government conduct instigates criminal conduct, but would allow full inquiry into "all evidence bearing on the question, including predisposition [of the defendant]." Id. at 98, 461 N.W.2d 884. Although Justice Boyle would go further than Justice Brickley in utilization of subjective consideration of the particular defendant and his circumstances in applying the government-instigation prong of the entrapment test, she nevertheless explicitly accepted Justice Brickley's formulation of this prong in order to arrive at a clear holding on this issue:

I have opted to align myself with the instigation analysis of the lead opinion because to leave the Court in its divided posture is to do, perhaps, greater damage to the Court and the jurisprudence than I fear from either of the new "objective" tests. [Juillet, supra at 109, 475 N.W.2d 786.]

Accordingly, we conclude that the formulation of the government-instigation prong of the entrapment test is as set out in Justice Brickley's opinion.

Turning to the second prong set out above, the reprehensible-conduct prong, there has been some disagreement in our Court over whether reprehensible conduct by the police is sufficient to establish entrapment or whether that conduct must also instigate the offense. In People v. Wisneski, 96 Mich.App. 299, 303, 292 N.W.2d 196 (1980), this Court, quoting People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), stated that the "real concern in entrapment cases is 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter [192 MICHAPP 529] of public policy, to permit a conviction to stand.' " However, in People v. Wilson, 166 Mich.App. 143, 419 N.W.2d 750 (1988), a panel of this Court said that the entrapment "defense is not, however, available any time the police do something which can be characterized as 'reprehensible.' " Id. at 145, 419 N.W.2d 750.

Regardless of whether the prior formulations of the entrapment test required causation in addition to reprehensible police conduct, we conclude that a majority of the justices in Juillet agree that reprehensible conduct alone can constitute entrapment. Looking first at Chief Justice Cavanagh's opinion, which was joined by Justices Levin and Mallett, the Chief Justice states:

I concluded in Jamieson that "affording a person an opportunity to commit an offense does not ordinarily constitute entrapment unless (1) the circumstances indicate that such an opportunity would not normally be presented or (2) the mere furnishing of the opportunity requires the police to commit certain criminal, dangerous, or immoral acts." 436 Mich. [at] 95-96 (emphasis in original). The first prong of this test largely corresponds to the causation prong at the heart of Justice Brickley's analysis. The second prong reflects what I believe to be the broader "reprehensible conduct" prong of the objective entrapment test. Thus, there may well be cases in which, even though entrapment may not be established under a strictly causation-oriented approach, I might still conclude that illegal entrapment has occurred. [Juillet, supra 439 Mich. at 77-78, 475 N.W.2d 786.]

Thus, three justices are clearly willing to find that entrapment can be found on the basis of reprehensible police conduct alone. See Juillet, supra at 72, 475 N.W.2d 786.

Turning to Justice Boyle's opinion, we see that she, too, would allow a finding of entrapment on the basis of reprehensible police conduct alone:

[192 MICHAPP 530] ... I would embrace a dual view of "entrapment" that...