People v. Jamieson

• Decision Date: 08 June 1988
• Docket Number: Docket No. 92614
• Citation: 168 Mich.App. 332,423 N.W.2d 655
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JAMIESON, William Moore, Vincent McFadden, Gregory Union and James Neely, Defendants-Appellees. 168 Mich.App. 332, 423 N.W.2d 655
• Court: Court of Appeal of Michigan — District of US

Page 655

423 N.W.2d 655

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JAMIESON, William Moore, Vincent McFadden, Gregory Union and James Neely, Defendants-Appellees.

Docket No. 92614.

168 Mich.App. 332, 423 N.W.2d 655

Court of Appeals of Michigan.

Submitted Oct. 7, 1987.

Decided May 2, 1988.

Released for Publication June 8, 1988.

[168 MICHAPP 333] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Jamil Akhtar, Southfield, for Stephen Jamieson.

John R. Minock, Detroit, for Gregory Union.

Steven Fishman, Detroit, for William Moore.

Felice V. Iafrate, East Detroit, for James Neely.

Benjamin Roth, Detroit, for Vincent McFadden.

Before HOLBROOK, P.J., and SHEPHERD and SULLIVAN, ^* JJ.

PER CURIAM.

The prosecutor appeals from an order of Detroit Recorder's Court Judge Michael Sapala dismissing the drug charges against defendants, based on a finding of entrapment. We affirm.

Defendants, all Wayne County Jail guards, were charged with unlawful delivery of less than fifty grams of a controlled substance, a violation of M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). After a consolidated pretrial evidentiary hearing on defendants' claims of entrapment, Judge Sapala dismissed the charges against the defendants, finding each had been entrapped.

The following facts were established at the entrapment hearing. Some time in September, 1985, Sergeant Kent Booth of the Wayne County Sheriff's Department was contacted by a juvenile inmate at the Wayne County Jail. The juvenile provided information to Sergeant Booth concerning corrections officers bringing narcotics to inmates of the facility. No specific officers or guards were implicated. Sergeant Booth conferred with the jail administrator and representatives of the Wayne County Prosecutor's Office at which time Sergeant Booth was given "ten days" to devise a plan to apprehend the guards participating in these activities. The juvenile agreed to participate in the operation for a thirty-day reduction in his sentence.

After discussing some alternative plans, a "reverse sting" or "take back" sale operation was chosen. Sergeant Booth went to the DEA task force and obtained a quantity of cocaine and money. The juvenile was to approach a guard and request that he bring narcotics into the jail. Sergeant Booth would deliver the drugs and money to an undercover police officer who would deliver these items to the particular guard who would in turn deliver the items to the juvenile inside the jail. The juvenile would then return the drugs and money to Sergeant Booth. Sergeant Booth did not instruct the juvenile as to a particular guard to approach. The juvenile was allowed to approach [168 MICHAPP 335] the guards at his discretion. As a result of these operations, the defendants were arrested and charged with delivery of cocaine.

The prosecution argues that the lower court erred in finding entrapment under the facts of this case. We disagree.

"Michigan has been at the forefront in protecting persons from being convicted of a crime which was instigated, induced or manufactured by a government agent." People v. White, 411 Mich. 366, 387, 308 N.W.2d 128 (1981). Our Supreme Court has renounced the subjective view of entrapment followed by the United States Supreme Court and adopted the objective test defined in Justice Stewart's dissent in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The objective test focuses not upon the particular defendant's predisposition to commit the crime charged, but, rather, 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." People v. Turner, 390 Mich. 7, 22, 210 N.W.2d 336 (1973). The purpose of the entrapment defense is to deter unlawful police activities and preclude judicial approval of impermissible government conduct. People v. D'Angelo, 401 Mich. 167, 172-173, 257 N.W.2d 655 (1977).

Justice Stewart defined the objective test as follows:

"[W]hen 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 [168 MICHAPP 336] 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." United States v. Russell, supra 411 U.S. at 445, 93 S.Ct. at 1649.

The first Michigan case to deal with the propriety of the government's prosecuting the distribution of narcotics it has supplied was People v. Stanley, 68 Mich.App. 559, 243 N.W.2d 684 (1976). In Stanley, this Court found entrapment as a matter of law where a defendant was charged as a result of a government "take-back" sale.

"There can be no doubt that if defendant obtained heroin from Upton, a police informant, and later sold the same heroin back to Upton, his conviction for that sale would be invalid. It is difficult to conceive of a clearer instance of manufactured crime, of 'police conduct ... [that] falls below standards, to which common feelings respond, for the proper use of governmental power'. Sherman v United States, 356 US 369, 382; 78 S Ct 819 ; 2 L Ed 2d 848 (1958) (concurring opinion by Justice Frankfurter)." Stanley, supra 68 Mich.App. at 564, 243 N.W.2d 684.

However, other panels of this Court considering the issue after Stanley have refused to follow a per se rule in cases involving government "take-back" sales. See People v. Roy, 80 Mich.App. 714, 265 N.W.2d 20 (1978); People v. Duke, 87 Mich.App. 618, 274 N.W.2d 856 (1978); People v. Forrest, 159 Mich.App. 329, 406 N.W.2d 290 (1987). In Roy and Duke, both involving deliveries of narcotics by prison employees to inmates, this Court held that entrapment had not occurred.

In Roy, a Jackson prison inmate turned informant told an agent of the Michigan Attorney General's Office that drugs were being smuggled [168 MICHAPP 337] into the prison via another identified inmate who had a contact with an unidentified prison employee. An inmate who had a drug seller outside of the prison would pass on the seller's phone...