People v. Labate

Decision Date06 May 1983
Docket Number61271,Docket Nos. 61270
Citation332 N.W.2d 555,122 Mich.App. 644
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nicholas LaBATE, Defendant-Appellant. 122 Mich.App. 644, 332 N.W.2d 555
CourtCourt of Appeal of Michigan — District of US

[122 MICHAPP 645] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Chief Appellate Asst. Pros. Atty., Appeals, and Nancy R. Alberts, Asst. Pros. Atty., for the People.

State Appellate Defender by Peter Jon VanHoek, Detroit, for defendant-appellant.

Before CAVANAGH, P.J., and RILEY and HOEHN, * JJ.

PER CURIAM.

Defendant appeals as of right from his conviction on four charges of delivery of cocaine in an amount less than 50 grams, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). On September 17th, 1980, defendant was convicted by a jury on one charge of delivery of cocaine. Thereafter, defendant pleaded guilty to the three other charges. Defendant was also convicted of felony firearm and sentenced to four concurrent terms of two to ten years for the delivery of cocaine.

Defendant appeals, claiming "entrapment".

At the outset of his trial on September 15, 1980, defendant asserted an entrapment defense to all of the charges. An evidentiary hearing was held, before the jury was called, in compliance with People v. Turner, 390 Mich. 7, 210 N.W.2d 336 [122 MICHAPP 646] (1973); People v. D'Angelo, 401 Mich. 167, 257 N.W.2d 655 (1977).

At the evidentiary hearing, the defendant admitted delivery of a substance on each of the occasions charged, but denied that the substance he delivered was cocaine.

The trial court ruled that the defendant could not claim entrapment in the face of his denial that the crime had been committed. The Court in People v. D'Angelo, supra, ruled that defendants do not have to admit criminal liability in order to claim entrapment.

The finding of the trial court in the present case is set out in full:

"THE COURT: First of all, the Court does not feel that, the Court does not feel that the Court could have ruled that there is a defense of entrapment for the reason that the defendant has denied delivery of any controlled substance which, taking the testimony, according to defendant, there was no crime for him to be entrapped in because he did not commit any crime, therefore, I do not think the defense of entrapment is even applicable in this case.

Secondly, assuming, however, that the defendant acknowledged that the packets contained cocaine, this Court does not believe that the conduct of the police officers, using the objective test, constitutes conduct so reprehensible that the defense of entrapment should be available to the defendant. The defendant met the individual he referred to named Mary. She asked him if he smoked marijuana. He said he did. She asked him if he had done any cocaine. He answered no but he would try it because he heard it wouldn't hurt you. They went to her car. She asked him--she said she would like some cocaine and asked if he could get it for her.

The fact that the defendant concluded that she was attractive, appealing to him and that motivated him to procure the cocaine is not the kind of conduct that this Court believes was intended to amount to conduct so [122 MICHAPP 647] reprehensible. There is no suggestion that she proposition [sic ] him, simply that she dressed in a way that was attractive to him.

The Court does not conclude any testimony given by the defendant would indicate that the police officer in this case engaged in conduct so reprehensible that this Court should interfere and conclude that there was entrapment and for those reasons, the Court does deny the defense request that the defense of entrapment applies."

GCR 1963, 517.1 requires that, in all actions tried upon the facts without a jury, the court shall find the facts specially and separately its conclusions of law thereon. People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973), extended GCR 1963, 517.1 to criminal cases. This Court is aware of the ruling in People v. Oliver, 63 Mich.App. 509, 522, 234 N.W.2d 679 (1975), however, we do not agree. The term "action" is defined in Bouvier's Law Dictionary (Students ed., 1928), p. 41, as:

"The formal demand of one's right from another person or party made and insisted on in a court of justice. In a quite common sense, action includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person or party of another in such court, including an adjudication upon the right and its enforcement or denial by the court."

Clearly, the term "actions" as used in GCR 1963, 517.1 contemplates a finding of fact and a statement of law in all contested matters where evidence is presented to the trial judge for his decision. The task of the appellate court is to determine whether the trial court was "clearly erroneous"...

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6 cases
  • People v. Steele
    • United States
    • Court of Appeal of Michigan — District of US
    • July 8, 1986
    ...the trial court's finding on the issue of entrapment was not clearly erroneous. Defendant's reliance on People v. LaBate, 122 [150 MICHAPP 737] Mich.App. 644, 332 N.W.2d 555 (1983) and People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982), lv. den. 414 Mich. 944 (1982), is Unlike the ......
  • People v. Nixten
    • United States
    • Court of Appeal of Michigan — District of US
    • July 8, 1987
    ...that the police, knowing that defendant was not a drug dealer, maneuvered him into participating in a sale, as in People v. LaBate, 122 Mich.App. 644, 332 N.W.2d 555 (1983), and People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982), lv. den. 414 Mich. 944 (1982), is contrary to the fa......
  • People v. Carter
    • United States
    • Michigan Supreme Court
    • June 23, 2009
    ...People v. White, 411 Mich. 366, 308 N.W.2d 128 (1981); People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982); People v. LaBate, 122 Mich.App. 644, 332 N.W.2d 555 (1983); People v. Asher, 67 Mich.App. 174, 240 N.W.2d 749 ...
  • People v. Shields
    • United States
    • Court of Appeal of Michigan — District of US
    • July 7, 1993
    ...do so by court rule. See People v. Oliver, 63 Mich.App. 509, 522-523, 234 N.W.2d 679 (1975). To the extent that People v. LaBate, 122 Mich.App. 644, 647, 332 N.W.2d 555 (1983), holds otherwise, we disagree with that decision. The Court in LaBate found that GCR 1963, 517.1 required that a tr......
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