People v. Killian, Docket No. 58725
Decision Date | 01 September 1982 |
Docket Number | Docket No. 58725 |
Citation | 323 N.W.2d 660,117 Mich.App. 220 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry KILLIAN, Defendant-Appellant. 117 Mich.App. 220, 323 N.W.2d 660 |
Court | Court of Appeal of Michigan — District of US |
[117 MICHAPP 221] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Kyle H. Tarrant, Asst. Pros. Atty., for the People.
Terence R. Flanagan, Asst. State Appellate Defender, for defendant-appellant.
Before MAHER, P. J., and BRONSON and R. J. SNOW, * JJ.
Defendant pled guilty to a charge of delivery of cocaine. M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv) and M.C.L. Sec. 333.7214(a)(iv); M.S.A. Sec. 14.15(7214)(a)(iv). He was sentenced to a prison term of 4 to 20 years and appeals by right claiming entrapment, a claim not waived by his guilty plea. People v. White, 411 Mich. 366, 387, 308 N.W.2d 128 (1981).
The existence of the entrapment defense rests on the premise that the government should not be permitted to instigate the commission of a crime in order to prosecute someone for committing it. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). Michigan has adopted [117 MICHAPP 222] the objective test for determining when entrapment has occurred. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). Under the objective test, the question is whether agents of government have acted in a manner likely to instigate or create a criminal offense. United States v. Russell, 411 U.S. 423, 441, 93 S.Ct. 1637, 1647, 36 L.Ed.2d 366 (1973) (Stewart, J., dissenting). Our Supreme Court has rejected the use of the subjective test, which precludes the use of the entrapment defense by one predisposed to commit the crime. Turner, supra, 390 Mich. 21-22, 210 N.W.2d 336. The findings of the trial judge will not be reversed unless clearly erroneous. People v. D'Angelo, 401 Mich. 167, 183, 257 N.W.2d 655 (1977).
The trial judge held:
We commend the trial judge for his careful analysis of the facts and do not find clearly erroneous his findings or the inferences drawn therefrom. In his application of the objective test, however, inadequate weight was given to the conduct of the police agents in inducing the commission of the offense with which defendant was charged.
The most troubling aspect of the activities of the police in this case is the escalation of defendant's criminal culpability. The police knew that defendant used both marijuana and cocaine and that he had offered to sell marijuana to an acquaintance who was a police officer. Although there was testimony that defendant had given a very small amount of cocaine to a friend, the police had good reason to believe that defendant was not involved in cocaine sales. Police were not gathering evidence of crimes which they had any reason to suspect defendant had committed or would commit in the future. We do not imply here that police must have probable cause to use an undercover agent or informer to make a drug buy. See People v. Wright (On Remand), 99 Mich.App. 801, 817, 298 N.W.2d 857 (1980). We emphasize that police not only did not suspect defendant of involvement in cocaine sales; they had every reason to suspect that he was not involved. See People v. Turner, supra, 390 Mich. 23, 210 N.W.2d 336. See also Reynolds v. State, 155 Ind.App. 226, 292 N.E.2d 290 (1973). In part, the police activity here is entrapment because the sale of large quantities of cocaine is an offense of a different order than the use of cocaine or the sale of marijuana. See People v. Turner, 390 Mich. 7, 23-25, 210 N.W.2d 336 (1973) (Williams, J., concurring).
[117 MICHAPP 224] We do not view this case as one in which a close personal friendship was exploited or one in which the pattern of inducement...
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