People v. LaClear, 95258

• Decision Date: 19 March 1993
• Docket Number: No. 128291,No. 95258,95258,128291
• Citation: 442 Mich. 867,497 N.W.2d 490
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Monte Maurice LaCLEAR, Defendant-Appellee. COA
• Court: Michigan Supreme Court

Page 490

497 N.W.2d 490

442 Mich. 867

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

No. 95258.

COA No. 128291.

Supreme Court of Michigan.

March 19, 1993.

ORDER

On order of the Court, the application for leave to appeal is considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals for the reasons stated by the dissenting judge.We REMAND the case to the Court of Appeals for consideration of the issue raised by the defendant that the court did not reach in its earlier decision.The motion for bond is DENIED.

LEVIN, J., dissents as follows:

I would deny leave to appeal, and dissent from entry of the order of peremptory reversal of the Court of Appeals.

I

The Court of Appeals¹ ruled that the trial court clearly erred in finding that an informant was not an agent of the police and remanded for a determination whether the defendant, Monte M. LaClear, was entrapped.

LaClear was convicted of possession of more than fifty, but less than two hundred twenty-five, grams of cocaine with intent to deliver, and of other offenses.

At LaClear's entrapment hearing, the focus was solely on whether the informant was an agent of the police.When the judge found that he was not, the inquiry ended without the taking of further evidence on the issue whether LaClear had actually been entrapped.

The informant testified that he telephoned an officer with whom he had become acquainted in the course of his earlier encounters with the law to report a stolen vehicle parked on the lawn of the house where LaClear was staying.The next day he telephoned the officer again and said that LaClear had telephoned him to express his concern, because there were guns, drugs, and drug paraphernalia in the house, that the police had been checking on the vehicle parked outside.There were a number of other telephone calls between the informant and the officer, but the substance of those conversations was not made clear at the hearing.

LaClear, on earlier occasions, had provided the police with information leading to arrests.After the telephone calls to the police, and with the apparent approval of the police, the informant persuaded LaClear to transport the guns and drugs to the informant's apartment for safekeeping, resulting in LaClear's arrest.

The informant's conduct might, indeed, not have constituted entrapment of LaClear.The hearing did not, again, focus on whether factually there was entrapment.But I think it clear that there was a substantial basis for the conclusion of the Court of Appeals that, in encouraging LaClear to transport the guns and drugs to the informant's apartment, the informant was acting with at least the tacit approval of the police.The informant, because of prior involvement in criminal activity, was clearly vulnerable in conversing with LaClear about guns and drugs, and was not subject to criminal responsibility for encouraging LaClear to transport the guns and drugs from one place to another only because he was acting on the authority of the police in a manner that otherwise would have constituted abetting a number of criminal offenses.

It is understandable, in the circumstances, that the Court of Appeals concluded that it was clear error for the trial judge to have found that the informant was not an agent of the police simply because he was not being paid or compensated by the police and the police did not control his activities.The Court of Appeals said:

"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."²

II

The disagreement between the majority and the dissent in the Court of Appeals, whether, where the police do not directly control the conduct of the informant, People v. Juillet, 439 Mich. 34, 475 N.W.2d 786(1991), correctly read, "militates in favor of finding entrapment,"³ or "always militates toward a finding of entrapment,"⁴ was directed to the trial judge's finding that the informant was not an agent of the police because, as one of two reasons, the police did not control his activities.As earlier stated, although the police may not have directly controlled the informant's activities, it is clear that the informant did more than simply report that he had observed the possible commission of a crime.⁵

The informant arranged for LaClear to transport the guns and drugs to the informant's apartment where LaClear was arrested.While the record does not establish that the police told or directed the informant to engage in particular conduct, the informant fully reported the possible opportunity to encourage LaClear to so transport the guns and drugs, and did not encourage LaClear to do so until he obtained at least the tacit approval of the police.

III

While some may prefer the assessments of the dissenting judge in the Court of Appeals and of the trial judge, the determination of the majority of the Court of Appeals is not so devoid of reason as to justify peremptory reversal.The majority's decision to peremptorily reverse the Court of Appeals belittles its efforts, in the disposition of this case, as reflected in the carefully written opinion of the majority, chosen to be officially reported, and deprives LaClear and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.

Today's peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs.A justice who may have missed a significant point of law or fact on a perusal of the briefs might be enlightened and persuaded in the course of oral argument.

Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument, and further conference discussion after an opinion has been prepared and circulated.

IV

Peremptory disposition, without plenary consideration, full briefing, oral argument and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required.⁶In the instant case, as indicated in the majority opinion, factual and legal assessment is required.Peremptory disposition is not appropriate.

This Court should deny leave to appeal this interlocutory application.

1196 Mich.App. 537, 494 N.W.2d 11(1992).

2Id. p. 540, 494 N.W.2d 11.

3Id. at p. 541, 494 N.W.2d 11.

4Id. at p. 543, 494 N.W.2d 11.

5This Court reverses the judgment of the Court of Appeals"for the reasons stated by the...