People v. Jamieson

• Decision Date: 12 September 1990
• Docket Number: Docket No. 83446
• Citation: 436 Mich. 61,461 N.W.2d 884
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JAMIESON, William Moore, Vincent McFadden, Gregory Union and James Neely, Defendants-Appellees. 436 Mich. 61, 461 N.W.2d 884, 9 A.L.R.5th 1085
• Court: Michigan Supreme Court

Page 884

461 N.W.2d 884

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen JAMIESON, William Moore, Vincent McFadden, Gregory

Union and James Neely, Defendants-Appellees.

Docket No. 83446.

436 Mich. 61, 461 N.W.2d 884, 9 A.L.R.5th 1085

Supreme Court of Michigan.

Argued April 4, 1990.

Decided Sept. 12, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research, Criminal Div. Research, Training and Appeals, Jeffrey Caminsky, Asst. Pros. Atty., Detroit, for the people.

Felice V. Iafrate, Jerald R. Lovell, Mount Clemens, for Neely.

John R. Minock, Ann Arbor, for Gregory Union.

Nicholas Smith, P.C., Nicholas Smith, Birmingham, for appellee.

Steven Fishman, Detroit, for Moore.

Elizabeth L. Jacobs, for defendant McFadden.

Charles J. Booker, Asst. Defender, State Appellate Defender Office, Detroit, for amicus curiae Criminal Defense Attys. of Michigan.

Carl J. Marlinga, Mt. Clemens, for amicus curiae Prosecuting Attys. Ass'n of Michigan (PAAM).

BRICKLEY, Justice.

We granted leave in this case to consider "whether the trial court clearly erred in dismissing on the basis of entrapment the charges of unlawful delivery of controlled substances that were brought against defendants." 431 Mich. 906, 433 N.W.2d 75 (1988). We subsequently directed the parties to submit supplemental briefs with regard to whether we should abandon the objective entrapment test in preference to the subjective test. 433 Mich. 1226, 456 N.W.2d 390 (1989). We have concluded that there is not sufficient justification or need to change a well-settled principle of law in this state. On the basis of the objective test, we would reverse the decisions of the lower courts in this case and hold, as a matter of law, that defendants were not entrapped.

I

Defendants, all Wayne County Jail guards, were charged with delivery of cocaine ¹ following an undercover operation in which the delivery was made to an informant. The Wayne County Sheriff's Department was contacted by a juvenile inmate at Wayne County Jail, Quinton Varner, concerning deputy sheriffs smuggling narcotics to inmates. While the testimony suggests that Varner furnished the government with "a couple" of names, he did not provide information which would allow the Sheriff's Department to accumulate a list of specific targets.

Following discussions with the jail administrator and the Wayne County Prosecutor's Office, Sergeant Booth was allowed ten days "to work a scheme" that would unveil guards who were participating in the unlawful delivery of narcotics into the jail. After considering other alternatives, the operation was instituted. Varner offered to cooperate with the Sheriff's Department in exchange for a thirty-day reduction in his sentence.

Sergeant Booth obtained a supply of cocaine and money from the United States Government Drug Enforcement Administration. The drugs and money were delivered 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. ² When the transaction was completed the drugs and money were returned to Sergeant Booth. "The targets of the operation were to be chosen by inmate Varner and instructed by him when and where to meet the outside contact in order to obtain the cocaine."

The trial judge found that, as a matter of law, defendants were entrapped and accordingly dismissed the charges against defendants stating:

The entire operation which reposed in this kind of individual the unfettered power to select grist for the judicial mill, thereby subjecting individuals to twenty year prison terms, is the kind of reprehensible conduct contemplated by our Supreme Court in People v. Turner [390 Mich 7; 210 NW2d 336 (1973) ].

The Court of Appeals, citing its own precedent, stated that there is no prohibition per se against the use of such operations. Nonetheless, they affirmed the trial court's holding, concluding that it was not clearly erroneous. In support, the panel pointed to the trial court's finding that it was particularly reprehensible for the police to allow "a teenage convicted felon the unfettered power to orchestrate the entire operation" and to the trial court's finding that "the police not only supplied the drugs which gave rise to the crime, but also, through [Varner, the inmate], directed the entire operation." 168 Mich.App. 332, 338-339, 423 N.W.2d 655 (1988).

II

In order to reexamine the viability of the objective test for determining entrapment, we will first examine the development of the doctrine of entrapment and its evolution into two principal tests.

A

Although the doctrine of entrapment has a popular following, even extending, in the minds of speeders, to the motorcycle policeman hiding behind a billboard, the precise parameters of this defense and the standards for its application have not emerged without some struggle ³--a struggle that has manifested itself in the differences between the so-called objective and subjective tests.

Entrapment has been defined as the "conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persuasion, or fraud of the officer." Sorrells v. United States, 287 U.S. 435, 454, 53 S.Ct. 210, 217, 77 L.Ed. 413 (1932). To determine whether entrapment has been established, a distinction is made between a trap for the "unwary innocent" and a trap for the "unwary criminal." Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958). There is no entrapment if a policeman merely furnishes an opportunity for the commission of a crime by one ready and willing to commit the activity. The mere fact of deceit will not defeat prosecution. United States v. Head, 353 F.2d 566 (CA 6, 1965). The purpose of the defense of entrapment is to at least prevent unlawful government activity in instigating criminal activity. "The function of law enforcement is the prevention of crime and the apprehension of criminals.... [T]hat function does not include the manufacturing of crime." Sherman v. United States, supra 356 U.S. at 372, 78 S.Ct. at 820.

The United States Supreme Court's rationale for an entrapment defense is grounded in an implied exception to criminal statutes. ⁴ It is based on the assumption that Congress could not have intended that its statutes be enforced for criminal punishment of a defendant who has committed all the elements of a prescribed offense, but was tempted into violation of that statute by the government.

The United States Supreme Court first recognized and applied the defense of entrapment in Sorrells v. United States, supra. In Sorrells, the Court held that the defendant, who had sold a half-gallon of whiskey to a United States government probation officer, was entitled to a defense of entrapment because of the "repeated and persistent solicitation" by the agent. The Court noted that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises," but that government may not "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Id. 287 U.S. at 441-442, 53 S.Ct. at 212-213. The controlling question is "whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." Id. at 451, 53 S.Ct. at 216 (emphasis added).

Sherman v. United States, supra, involved the selling of narcotics to a government informer who was being treated for narcotics addiction. The informant gained the trust of Sherman by sharing mutual experiences and problems in their attempt to overcome the apparent drug addiction. Because the informant was not responding to treatment, he asked Sherman to supply him with narcotics. Sherman tried to avoid the issue, but after repeated requests and the presumed suffering by the informant Sherman agreed to supply him with narcotics. The United States Supreme Court concluded that entrapment was established as a matter of law.

The case at bar illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use.... Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. [Id. 356 U.S. at 376, 78 S.Ct. at 822.]

Again, the United States Supreme Court focused on the state of mind of the offender. " 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' " Id. at 372, 78 S.Ct. at 821 (citations omitted).

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the United States Ninth Circuit reversed the defendant's conviction because the actions of the law enforcement officers constituted an "intolerable degree of government participation in the criminal enterprise." 459 F.2d 671, 673 (CA 9, 1972). The United States Supreme Court reversed the circuit court decision, upheld the principles enunciated in Sorrells and Sherman, and reaffirmed that the crucial element in the defense of entrapment was the defendant's predisposition to commit the crime. The Russell Court stated that in "drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and limited participation in their unlawful present practices. Such infiltration is a recognized and a permissible means of...