People v. LaClear

• Decision Date: 02 November 1992
• Docket Number: Docket No. 128291
• Citation: 494 N.W.2d 11,196 Mich.App. 537
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Monte Maurice LaCLEAR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 11

494 N.W.2d 11

196 Mich.App. 537

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Monte Maurice LaCLEAR, Defendant-Appellant.

Docket No. 128291.

Court of Appeals of Michigan.

Submitted Sept. 10, 1992, at Detroit.

Decided Nov. 2, 1992, at 9:15 a.m.

Released for Publication Jan. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., Richard Thompson, Pros.Atty., Michael J. Modelski, Chief, Appellate Div., and Janice A. Kabodian, Asst. Pros.Atty., for the People.

Ronald E. Kaplovitz, Sylvan Lake, for defendant on appeal.

Before HOOD, P.J., and CONNOR and TAYLOR, JJ.

HOOD, Presiding Judge.

Defendant pleaded guilty in the Oakland Circuit Court of charges of possession of more than 50, but less than 225, grams of cocaine with intent to deliver, M.C.L. Sec. 333.7401(2)(a)(iii);M.S.A. Sec. 14.15(7401)(2)(a)(iii), two counts of carrying a concealed weapon, M.C.L. Sec. 750.227;M.S.A. Sec. 28.424, driving with a suspended license, M.C.L. Sec. 257.904(1);M.S.A. Sec. 9.2604(1), and being a third-felony habitual offender, M.C.L. Sec. 769.11;M.S.A. Sec. 28.1083.He was sentenced to terms of five to twenty years, two to five years, and ninety days for the first three convictions, but these sentences were then vacated in favor of a sentence of five to forty years for the habitual offender conviction.

Defendant appeals as of right.We reverse and remand.This case is being decided without oral argument pursuant to MCR 7.214(A).

Defendant first argues that he was entrapped and that, therefore, the charges against him should have been dismissed.This issue was not waived by defendant's guilty plea.People v. White, 411 Mich 366, 401-402, 308 N.W.2d 128(1981)(opinion of Moody, J.);People v. Graczyk, 156 Mich.App. 632, 634, 402 N.W.2d 60(1986).

At defendant's entrapment hearing, the court focused solely on whether the informant was an agent of the police.The court did not inquire into what the informant's actions were vis-a-vis the defendant.It instead ended the hearing when it found that the informant was not an agent of the police because he was not being paid or compensated by the police and because the police did not control his activities.This finding is clearly erroneous in light of the undisputed evidence on the record.

" 'When persons who are not law-enforcement officials act with official encouragement or assistance, they should be treated as government agents for purposes of the entrapment defense.' "People v. Jones, 165 Mich.App. 670, 674, 419 N.W.2d 47(1988), quotingPeople v. Stanley, 68 Mich.App. 559, 564, 243 N.W.2d 684(1976).

As noted by the Jones panel, "[t]here is very little law in Michigan as to what degree of 'encouragement or assistance' is necessary for a finding that a person acted as a government agent."165 Mich.App. at 674, 419 N.W.2d 47.In Jones, important factors in favor of finding that the informant was an agent were his long-term ongoing relationship with the police and that the police exercised a lot of control over him.165 Mich.App. at 675, 419 N.W.2d 47.However, the fact that the informant set up the offense without police involvement did not defeat the finding that he acted with their "encouragement or assistance."165 Mich.App. at 675, 419 N.W.2d 47.

The testimony in this case showed that the informant called the arresting officer the previous evening to report a stolen car parked on the lawn of the home where defendant was staying.The following evening, the informant called the officer again and indicated that the defendant had called him and had stated that he was concerned because there were guns, drugs, and drug paraphernalia in the house and the police had been checking on the car parked outside.There were several telephone calls between the informant and the officer, some of them relayed by the police dispatcher because of faulty equipment, culminating in defendant's arrest.The substance of these conversations was not made clear at the hearing.

It is undisputed that the informant had an ongoing relationship with the police and had previously provided the officer with information leading to arrests.It is also undisputed that the informant asked the arresting officer how to proceed regarding defendant.Further, although the officer denied telling him what to do, the informant testified that the police dispatcher did give him information and "ideas of how to handle the situation as far as procedure."The informant also indicated that, after several telephone calls back and forth to the police and to the defendant, he"talked him into it," meaning that the informant talked the defendant into bringing the guns and drugs to the informant's apartment, apparently for safekeeping.Clearly, the informant acted with at least police encouragement and perhaps even with police assistance.

The trial court erroneously relied on lack of police control over the informant's precise actions to find that he was not a police agent.Despite some ambiguity in the past, a majority of our Supreme Court now holds that lack of control, rather than being a positive factor, militates in favor of finding entrapment.SeePeople v. Juillet, 439 Mich. 34, 57, 66, 79-80, 475 N.W.2d 786(1991)(Brickley, J., with Riley and Griffin, JJ., concurring, and Cavanagh, C.J., with Levin and Mallett, JJ., concurring);seealsoPeople v. Rowell, 153 Mich.App. 99, 104, 395 N.W.2d 253(1986);People v. Duis, 81 Mich.App. 698, 702, 265 N.W.2d 794(1978).This latest majority varies somewhat from People v. Jamieson, 436 Mich. 61, 90, 97, 461 N.W.2d 884(1990), in which Brickley, J., with Riley and Boyle, JJ., concurring, and Cavanagh, J., concurring separately, opined that lack of control showed that the police did not manufacture the crime.

We find that the rationale of Juillet mandates reversal.The purpose of the entrapment rule would be defeated if police were allowed to reap the benefits of their relationship with informants while allowing those informants free reign to select and ensnare their victims and at the same time disclaiming any responsibility for the informants' actions.The trial court...