People v. Harding

• Decision Date: 28 October 1987
• Docket Number: 85938 and 86961,83055,Docket Nos. 81820
• Citation: 413 N.W.2d 777,163 Mich.App. 298
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brent HARDING, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Patrick REIDT, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander Kilgour HARRINGTON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Eugene DESORCY, a/k/a Frank Mossop, Defendant-Appellant. 163 Mich.App. 298, 413 N.W.2d 777
• Court: Court of Appeal of Michigan — District of US

Page 777

413 N.W.2d 777

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brent HARDING, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Patrick REIDT, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander Kilgour HARRINGTON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Eugene DESORCY, a/k/a Frank Mossop,

Defendant-Appellant.

Docket Nos. 81820, 83055, 85938 and 86961.

163 Mich.App. 298, 413 N.W.2d 777

Court of Appeals of Michigan.

Submitted Nov. 5, 1986.

Decided Sept. 22, 1987.

Released for Publication Oct. 28, 1987.

[163 MICHAPP 301] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Margaret G. Horenstein and Richard H. Browne, Asst. Pros. Attys., for people.

[163 MICHAPP 302] Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant.

Brent Harding, in pro. per.

Hertz & Schram, P.C. by Martin Reisig and Harriet Demetriou, Birmingham, for Douglas Reidt.

Carl Ziemba, Detroit, for Alexander Harrington.

James D. O'Connell, Highland Park, for David Desorcy.

Before HOLBROOK, P.J., and ALLEN and CLULO, ^* JJ.

PER CURIAM.

Defendants Brent Harding, Alexander Kilgour Harrington and David Eugene Desorcy were convicted of conspiracy to deliver over 650 grams of cocaine, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and delivery of a controlled substance, M.C.L. Sec. 333.7401, subds. (1) and (2)(a)(i); M.S.A. Sec. 14.15(7401) subds. (1) and (2)(a)(i), after a jury trial held in October of 1984 in Oakland Circuit Court. Defendant Douglas Patrick Reidt was convicted of conspiracy to deliver over 650 grams of cocaine, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and delivery of a controlled substance, M.C.L. Sec. 333.7401 subds. (1) and (2)(a)(i); M.S.A. Sec. 14.15(7401) subds. (1) and (2)(a)(i), after a bench trial held in December of 1984 in Oakland Circuit Court. All defendants were sentenced to two concurrent mandatory terms of life imprisonment and appeal from all of their convictions as of right. These cases were consolidated for appeal by order of this Court. As each defendant has presented different issues, each case will be discussed individually.

DEFENDANT HARDING

Prior to trial, defendant Harding moved for [163 MICHAPP 303] dismissal on the basis of entrapment and a hearing was held on that issue. The trial court, after hearing the testimony, denied defendant's motion to dismiss. We reverse as to defendant Harding and find that he was entrapped as a matter of law.

The nature of this defendant's appeal requires a detailed factual recitation. The facts which follow are largely uncontested except where indicated. Additional facts will be set out in the discussion of the entrapment issue.

Defendant Harding was convicted for trafficking in hashish in Gibralter in 1974. In 1978 he was convicted in Mexico for possession of one gram of cocaine. He served one year in prison in Mexico and was transferred to Canada where he served In early 1983, defendant Harding met defendant Douglas Reidt. Reidt, also a Canadian citizen, was a hairdresser and had previously owned a men's clothing store which failed, leaving him unemployed. The two men frequently saw each other to play cards, drink beer and "do" cocaine. Reidt sold small amounts of cocaine to friends, including defendant Harding, in order to pay for his own cocaine use. He had never been involved in large-scale drug transactions.

a second year before being paroled. By late 1983, defendant Harding, a Canadian citizen, was living in Kitchener, Ontario, with his wife and working as a welder.

In December, 1983, defendant Harding was contacted by Sue Ellen Clapper. She had been arrested in August, 1983, in possession of seven hundred grams of cocaine. After her arrest she agreed to cooperate with Jerry Myny, an undercover officer with the County of Macomb Enforcement Team (COMET). Clapper knew she faced mandatory life in prison and that she could help her [163 MICHAPP 304] own situation by helping COMET. Clapper's plea was held in abeyance pending her cooperation with the police. Under pressure to arrange a drug deal, Clapper chose to focus on defendant Harding. Two years prior, in late 1981, defendant Harding became involved with Clapper in bringing two hundred grams of cocaine from Colombia to the United States. Clapper believed she was free to use any scheme she wanted to make contact and arrange a meeting with defendant Harding. She devised a story that she was to be married and wanted defendant Harding to attend the wedding. Defendant Harding's phone number was unlisted so Clapper related her story to defendant Harding's mother and two brothers on several occasions in an effort to learn his phone number. Defendant Harding's relatives testified as to Clapper's persistence. Finally, one of defendant Harding's brothers gave Clapper his phone number. Clapper contacted defendant Harding and arranged a meeting so he could meet her "fiance" (Myny). None of Clapper's phone calls to Harding or his relatives were monitored by COMET nor did Clapper tell Myny what she had to do to reach Harding.

On December 14, 1983, Clapper, Myny (introduced as Clapper's fiance), Harding and his wife Cory, met for dinner at the Windsor Chop House in Windsor, Ontario. Clapper, Myny and Harding all testified that sometime during dinner Clapper told Harding of a drug deal in which she received almost a kilo of cocaine. Clapper told Harding that the cocaine had been stolen and that she owed the Colombian suppliers $30,000. Myny corrected her and said the amount was $51,000. Clapper and Myny sought defendant Harding's assistance in arranging a drug deal in order to raise money to pay back Clapper's fictitious supplier. Myny passed [163 MICHAPP 305] himself off as a corporate attorney who had access to large sums of money to pay for the drugs. Defendant Harding testified that because of his past experience with Colombian suppliers he believed Clapper was in a life-and-death situation. He and his wife testified that Clapper stressed the life-and-death situation but Clapper and Myny testified that Clapper never said that she feared for her life; however, Myny testified that defendant Harding expressed concern that Clapper could be in physical danger. Harding claims that he was negative throughout this meeting, suggesting that Clapper contact other people to arrange a deal. Clapper and Myny, however, thought defendant Harding was willing to cooperate with them. In any event, no deal was struck at that meeting.

The day after the December 14 meeting, defendant Harding visited defendant Reidt. Defendant Harding related Clapper's "predicament," his concern for her safety and how he was thinking of helping her.

A second meeting between defendant Harding and Myny was arranged for December 20, 1983, in London, Ontario. On that day, defendant Harding tried to contact Myny to cancel the meeting. He couldn't reach Myny so he called Clapper and told her that he was not interested in the deal and that the meeting was off. Clapper told Harding that she couldn't reach Myny so it was too late to cancel the Myny made a continuous effort to get Harding to participate in a drug deal. Harding's wife testified that Myny made fifty phone calls. Myny, however, testified that he made thirty-eight phone calls and Harding returned eighteen. Harding was reluctant to get involved and had become annoyed with Myny's persistent phone calls. On several occasions Harding's neighbor, roommate, and family members overheard Harding tell someone on the phone to leave him alone and quit calling. Harding was always visibly upset after receiving such calls. In an effort to cut off his relationship with Myny, Harding testified that he introduced Myny to people in Sarnia, Ontario, who allegedly could set up a drug deal. Harding's intent was to have Myny transact with the people while Harding "went on with his life."

                meeting.  Myny had instructed Clapper to assure Harding that the meeting would be held.  Harding went to the second meeting with his wife and told Myny that he didn't want anything to do with drugs.  Myny made appeals to Harding's friendship with Clapper but Harding remained opposed to the deal.  Myny left the meeting openly "agitated" and "upset" with Harding.  Myny then called Clapper and told her to call Harding and [163 MICHAPP 306] "ream him out."   Myny told Clapper that if a drug deal was not arranged through Harding, he would be forced to say Clapper had blown his cover.  Clapper called Harding and "chewed him out" and "more or less raised cain."   Harding testified that Clapper "ranted and raved" when she called, crying about how she would be killed if she didn't pay back the money she owed.  Myny acknowledged that he knew that Harding was concerned about the danger to Clapper's physical well-being
                

According to Myny's testimony, Harding arranged a drug deal to take place on January 8, 1984. The deal and a preliminary meeting fell through, but on January 14, 1984, Harding and Myny met at the Eaton Mall in Sarnia, Ontario. Two other individuals, presumably the sellers, were present at the meeting. A deal was arranged but a definite date was not set. On January 30 and 31, Myny called Harding about the deal. Myny offered to buy two kilos of cocaine that Harding said was in Canada. A meeting was scheduled for [163 MICHAPP 307] February 2, 1984, to discuss the details, but Harding never showed up. The meeting was rescheduled for February 3, 1984, but Myny testified that he was reluctant to set up the meeting until one of the two individuals who were present at the January 14 meeting was back in town. A meeting was scheduled for February 4, 1984, but Harding informed Myny that a drug bust has occurred in Buffalo, New York, and one of the individuals who was to supply Myny...