People v. Killian, Docket No. 58725

Decision Date01 September 1982
Docket NumberDocket No. 58725
Citation323 N.W.2d 660,117 Mich.App. 220
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry KILLIAN, Defendant-Appellant. 117 Mich.App. 220, 323 N.W.2d 660
CourtCourt 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.

PER CURIAM.

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:

"The evidence indicates * * * that the defendant was not objectionable about the use of drugs, but that he talked with Mr. Phelps about it in police school, and indicated to Mr. Phelps that he was involved to such an extent that Mr. Phelps felt justified in contacting him with respect to this matter, as he was requested to do by the state narcotics unit. When he did so, the defendant did manifest a willingness to go along with an actual sale of the cocaine, as well as marijuana.

"It is clear that the police witness here did try and obtain the sale of cocaine rather than marijuana, but defendant indicated, by his own conduct, that he was not motivated entirely by friendship, but rather by self-interest in profit. When he said that he did not profit by the deal, the testimony of the police officer is that the narcotics furnished in the first transaction was of inferior quality, and apparently not worth the money that was paid for it. Whether or not the defendant profited by it, the entire transaction on the part of both parties appeared to be motivated by profit, and the transaction was participated in freely by both parties.

"The Court cannot find that the defendant here was entrapped into selling this against his own usual practices, but that in fact he was instead developing a [117 MICHAPP 223] further course of business which could lead to greater profit to him * * *."

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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  • People v. Juillet
    • United States
    • Michigan Supreme Court
    • October 1, 1991
    ...furnishing of narcotics was for the purpose of trying to escalate the criminal culpability of defendants" (citing People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 [1982].9 This fact is another example of how the police conduct differed from that in Jamieson. "Further, it was not a fishi......
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    ...furnishing of narcotics was for the purpose of trying to escalate the criminal culpability of defendants. People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982). Finally, the trial judge expressed concern over the fact that there was insufficient police control over the entire operatio......
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