People v. Juillet

• Decision Date: 01 October 1991
• Docket Number: 85344,Docket Nos. 76747
• Citation: 439 Mich. 34,475 N.W.2d 786
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny JUILLET, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Basil W. BROWN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 786

475 N.W.2d 786

439 Mich. 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny JUILLET, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Basil W. BROWN, Defendant-Appellant.

Docket Nos. 76747, 85344.

Supreme Court of Michigan.

Argued May 8, 1991.

Decided Sept. 30, 1991.

Released Oct. 1, 1991.

[439 Mich. 41] Zolton A. Ferency, Michigan State University School of Crim. Justice, East Lansing, for defendants-appellants.

Donald E. Martin, Ingham County Prosecutor, and Paula M. Zera, Chief, Crim. Div.; Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen. Counsel of Record, Joseph P. Kwiatkowski, Pros. Atty., William E. Molner, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys. Appellate Service, Lansing, and State Appellate Defender Office by F. Michael Schuck, Asst. Defender, Detroit, for the People.

OPINION

BEFORE THE ENTIRE BENCH.

BRICKLEY, Justice.

In these cases we are again faced with the troublesome question of entrapment. We granted leave to appeal, 436 Mich. 880, 461 N.W.2d 368, 485 (1990), after adhering to the objective test and applying it in the plurality opinion in People v. Jamieson, 436 Mich. 61, 461 N.W.2d 884 (1990). We continue to adhere to the principles expressed in Jamieson and apply the objective test in determining whether defendants Brown and Juillet were entrapped.

We find that defendant Basil Brown was not entrapped. Under the objective test of entrapment, we cannot say that the government's activities, although involving questionable conduct, would induce a normally law-abiding citizen, in Brown's circumstances, to commit the crimes with which he was charged. Therefore, we would affirm defendant Brown's conviction. We find that defendant Danny Juillet was entrapped. The police activity in this case did have the likely effect of inducing a normally law-abiding person, in Juillet's circumstances, to elevate his drug use to that of drug delivery. Additionally, the police conduct was reprehensible with regard to Juillet in that they manufactured the criminal conduct. Accordingly, we would reverse defendant Juillet's conviction.

I. FACTUAL BACKGROUND

A. People v. Brown ¹

This case arose when an unidentified informant told Nancy Kalder, a special agent for the Organized Crime and Public Corruption Unit of the Attorney General's office, that a prostitute, Kathryn B. Roberts, had received cocaine and marijuana from Brown.

In a night meeting on October 15, 1985, Kalder and Roberts reached an understanding that Roberts would go to Brown's apartment, as she normally had in the past, and would receive whatever narcotics Brown had available. The narcotics would then be brought back to Kalder as a sample and for possible use as evidence against Brown. The parties agreed that if Roberts completed her part of the bargain, she would be furnished with a place to stay, given some money, and put into a drug rehabilitation program. In fact, Roberts received payments for all her expenses, including a hotel stay, spending money, and rides for any purpose even if not related to the investigation. The Attorney General's office also enrolled Roberts in a rehabilitation program.

Roberts had been addicted to heroin since 1983 and had used cocaine since 1979. She earned money as a prostitute and previously had been charged at least twice for and had one charge of solicitation pending. After meeting Brown through another prostitute, Roberts was involved with him for over four years. She went to Brown's apartment at least fifty times as a prostitute and shared drugs with him on many occasions. The only times they did not share drugs were when none were available. Roberts and Brown also exchanged sex or cash for drugs; however, the record does not indicate how many times or how much Brown paid Roberts for her sexual services.

At the time of her first meeting with Kalder on October 15, 1985, Roberts had not contacted Brown during the previous thirty days, and Brown had not called Roberts within the last six months, apparently because he no longer had a phone number through which he could reach her. The reason for the thirty-day lapse was Roberts' failure to return $130 she received from Brown for the purpose of buying cocaine for him. However, during their four-year illicit relationship, it was not unusual for them not to contact each other for long periods of time. ² When they first met, Brown even told Roberts never to come to his apartment without calling first. Consequently, she always called Brown before going to his apartment, except for a brief time when she was living with her ex-husband and Brown called her. Sometimes Roberts made several telephone calls before Brown would tell her to come over to his apartment.

On October 17, 1985, Agent Kalder asked Roberts to call Brown and inform him that she had $50 as a partial payment for the money that she had stolen from him and would come to his apartment to repay the money. Roberts then called Brown, and he readily agreed to her suggested meeting. Special Agent Kalder gave $50 to Roberts to partially repay Brown for the $130 obligation. Kalder thought that this payment would ensure Roberts' entry into Brown's Lansing apartment.

Before she went to Brown's apartment, the investigators strip-searched Roberts to make sure that no drugs were taken into Brown's apartment, and strip-searched her again after she returned to ensure that she had not taken any drugs out of his apartment other than those that she handed over to Kalder. Roberts testified that when she entered Brown's apartment, he asked her if she wanted to roll them a joint, and that the marijuana was in his bedroom in a dish. She rolled a joint and both of them smoked it. Roberts and Brown also used some cocaine that Brown had in his apartment. She injected the cocaine with a syringe, going into the bathroom to do so because Brown allegedly did not like to watch her use the needle. ³ During this visit, as she had in the past, Roberts traded sex for the drugs given to her by Brown. Although they knew this type of conduct occurred frequently, the investigators allowed it to continue on this occasion because they wanted everything to appear as it always had during Roberts' long-standing illicit relationship with Brown. When she left Brown's apartment, he gave Roberts a small butt of marijuana to take with her to smoke at home. She gave that marijuana to Kalder.

Through a number of telephone calls, a second visit to Brown's apartment was arranged for October 29, 1985. Roberts made the telephone calls to Brown to set up meetings with him in the same manner that she had for the preceding four years. During one phone call, as with the other phone calls requested by the Attorney General's office, Roberts asked Brown if she "could stop by and smoke a joint with him." Brown agreed to see Roberts. Roberts was again strip-searched before she entered Brown's apartment. Brown asked her if she wanted some cocaine, she agreed, and he gave her cocaine to take into the bathroom to inject. Roberts injected some of the cocaine, but put the rest into her purse to give to Kalder.

Another trip to Brown's apartment was arranged for November 7, 1985. As before, the investigators strip-searched Roberts before she entered the apartment. She said that Brown was smoking when she arrived and asked her if she wanted to roll them a joint. She rolled one out of some marijuana that was on defendant's dresser and they both smoked it. Roberts and Brown also used some cocaine. Brown snorted the cocaine, and she went into the bathroom three times to inject it. In return for the drugs, Roberts again gave sexual favors to Brown. Roberts put some of the cocaine that Brown had given her into an envelope in her purse and carried it out with her when she left. Roberts gave the envelope to Special Agent Kalder.

On the basis of these contacts, a search warrant and an arrest warrant were signed by a magistrate on November 8, 1985, and Brown was charged in four lower court files.

On March 27, 1986, Brown filed a motion to quash the information in Ingham Circuit Court. The motion focused on the entrapment issue, but also contained several other matters not before us on appeal. Ingham Circuit Judge James T. Kallman heard the motion and denied it in an opinion and order dated June 4, 1986.

The Court of Appeals initially denied Brown's interlocutory appeal on December 19, 1986, but we remanded the case for consideration as on leave granted, 428 Mich. 851, 416 N.W.2d 694 (1987). The Court of Appeals affirmed Judge Kallman's findings. The Court said that some of the police conduct in this case was "merely distasteful." 163 Mich.App. 273, 275, 413 N.W.2d 766 (1987). However, it found other aspects of the investigation "truly reprehensible," including using a known drug addict, allowing her to commit sexual acts with the defendant, and allowing the informant to "engag[e] in a meretricious relationship with the defendant." Id. at 276, 413 N.W.2d 766. Nevertheless, the Court of Appeals found that although the police "caused" the informant's contact with the defendant in a broad sense of the term, Brown was not entrapped because the police activity did not instigate the crimes. Id. at 277, 413 N.W.2d 766. Judge Beasley concurred, noting that because Brown did not testify, the Court had to accept the testimony of Roberts regarding their past relationship. Id. at 295, 413 N.W.2d 766. On the basis of the evidence presented, Brown did not prove that the police had "instigated" the crimes charged, and he failed to meet his burden to prove entrapment. Id. at 295-296, 413 N.W.2d 766.

After an interlocutory appeal to this Court, which we denied, and a subsequent conditional plea to an October 17, 1985, delivery of marijuana, M.C.L. Sec. 333.7401(1), (2)(c); M.S.A. Sec. 14.15(7401)(1), (2)(c), and an October 29, 1985, delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(1), (2)(a)(i...