People v. Forrest

• Decision Date: 05 June 1987
• Docket Number: Docket No. 83557
• Citation: People v. Forrest, 406 N.W.2d 290, 159 Mich.App. 329 (Mich. App. 1987)
• Court: Court of Appeal of Michigan
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Virginia Lynne FORREST, Defendant-Appellee. 159 Mich.App. 329, 406 N.W.2d 290

Page 290

406 N.W.2d 290

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Virginia Lynne FORREST, Defendant-Appellee.

Docket No. 83557.

159 Mich.App. 329, 406 N.W.2d 290

Court of Appeals of Michigan.

Submitted March 11, 1986.

Decided April 20, 1987.

Released for Publication June 5, 1987.

[159 MICHAPP 331]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., John D. O'Hair, Pros.Atty Timothy A. Baughman, Deputy Chief, Civil and Appeals, and A. George Best II, Asst. Pros.Atty., for the People.

Stephen T. Rabaut, St. Clair Shores, for defendant-appellee.

Before BRONSON, P.J., and R.B. BURNS and TOWNSEND, ^* JJ.

PER CURIAM.

In this appeal, the prosecutor appeals as of right from an order of the Detroit Recorder's Court suppressing the evidence against the defendant and dismissing the charge, based on a finding of entrapment.We reverse.

Defendant, Virginia Lynne Forrest, and codefendants Joanne Cook and Cecilia Swistak were originally charged with one count of possession of marijuana with the intent to deliver and one count of conspiracy to possess marijuana with the intent to deliver.Following a preliminary examination, defendant Forrest and Joanne Cook were bound over for trial only on the conspiracy charge.Codefendant Swistak was bound over for trial for possession of cocaine and possession of a firearm during the commission of a felony, but the conspiracy charge was dismissed based on a finding of entrapment.Prior to trial, defendant and Cook gave notice of their intention to raise the defense of entrapment.An evidentiary hearing was held [159 MICHAPP 332] on the issue at which the trial court found that defendant had been entrapped.It is from that ruling that the prosecutor appeals.

The alleged improper police conduct in this case involved a reverse-buy transaction, where the police furnished the marijuana that served as the basis of the charges against the defendant and codefendants.At the evidentiary hearing, Detroit police officer William Bowman testified that he had previously purchased cocaine from Swistak as part of an ongoing investigation.At one point, intending to withdraw from the investigation, Bowman informed Swistak that he was leaving to go to Florida to find a new marijuana source.A couple of weeks later, Bowman was asked to reestablish contact with Swistak because the other officers had been unable to contact her.During a telephone conversation, Swistak asked Bowman if he had returned with any marijuana and indicated that she could sell it for him.Bowman stated that he had obtained two hundred pounds of marijuana which he would sell for $70,000.Officer Bowman further testified that he was very surprised when Swistak indicated an interest in the marijuana because he had called her solely to arrange the purchase of more cocaine and had not intended to initiate a sale with her for the marijuana.

After several more telephone conversations, Bowman agreed to meet with Swistak and her connections to arrange the sale.At that point, Bowman did not know the identity of Swistak's connections.When Bowman arrived at the agreed-upon location, he was introduced to defendant Forrest.Forrest told him that the connection was hers and that the lady who would be buying the marijuana would not deal with Swistak unless she, Forrest, was also present.Defendant further indicated to Bowman that she was making some [159 MICHAPP 333] money on the deal but did not intend to do any further deals.Ultimately, defendant's connection arrived and the sale was made, after which all the participants were arrested.

Initially, the prosecutor asserts that the trial court erred in finding that defendant had standing to argue the defense of entrapment.We disagree.

This Court has held that a defendant lacks standing to raise the defense of entrapment where an informant's activities were directed only at a codefendant and were not within the knowledge of the defendant.People v. Soltis, 104 Mich.App. 53, 55, 304 N.W.2d 811(1981), lv. den.411 Mich. 1037(1981).However, where charges against a defendant and codefendant arose from the same allegedly impermissible police conduct, it is proper for a trial court to apply its entrapment findings to both defendants.People v. Matthews, 143 Mich.App. 45, 54, 371 N.W.2d 887(1985).

Here, we disagree with the prosecutor's argument that Swistak was the only defendant who had standing to raise the entrapment defense.Defendant first learned about the two hundred pounds of marijuana through Swistak, who had Bowman's permission to try to set up a transaction.Thereafter, defendant met with Bowman personally on one occasion before the transaction was actually carried out.During that meeting, defendant indicated her involvement in the sale and Bowman expressed his intention of selling to the defendant's buyer.Thus, under Soltis, the allegedly improper furnishing of marijuana was with the knowledge of defendant.Also, because the charges against both Swistak and defendant arose out of the reverse-buy transaction, it was proper for the trial court to allow the defendant to assert entrapment.

The trial court also found that Officer Bowman's[159 MICHAPP 334] conduct in the reverse-buy transaction was reprehensible and therefore constituted entrapment of the defendant.The prosecutor argues that the court erred in finding entrapment under the facts of this case.We agree with the prosecutor.

In People v. Matthews, supra, at p. 54, 371 N.W.2d 887, this Court summarized the defense of entrapment as follows:

"Michigan has adopted the objective test for entrapment, focusing on whether the actions of the police were so reprehensible under the circumstances that public policy will not permit defendant's conviction to stand.People v Turner, 390 Mich 7, 22; 210 NW2d 336(1973).The purpose of the entrapment doctrine is to deter unlawful police activities and preclude judicial approval of impermissible government conduct.People v D'Angelo, 401 Mich 167, 172-173; 257 NW2d 655(1977).The defendant's guilt or innocence is irrelevant.Id., [at] p 179 .The defendant has the burden of showing by a preponderance of the evidence that he was entrapped, and the lower court's findings will not be disturbed unless clearly erroneous.Id., [at] pp 180-183 ."

Defendant cites a plethora of authority from many jurisdictions to support her position that the police department's providing of the marijuana which was sold to her constitutes entrapment.However, we believe that the instant case is similar to and controlled by People v. Duke, 87 Mich.App. 618, 274 N.W.2d 856(1978).In Duke, the defendant was charged with possession of heroin.The State Police had received information that a prison guard was smuggling drugs into the prison.A female officer, posing as the wife of a prisoner, obtained some heroin and a deal was arranged where the defendant would pick up the heroin.After leaving with the heroin, defendant was arrested.At the entrapment hearing, defendant argued,[159 MICHAPP 335] as does the present defendant, that he was entrapped because the police supplied the substance which provided the basis of the possession charge.

In reversing the trial court's...