People v. Larcinese

• Decision Date: 06 August 1981
• Docket Number: Docket No. 46410
• Citation: 310 N.W.2d 49,108 Mich.App. 511
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Francis LARCINESE, Defendant-Appellant. 108 Mich.App. 511, 310 N.W.2d 49
• Court: Court of Appeal of Michigan — District of US

Page 49

310 N.W.2d 49

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Francis LARCINESE, Defendant-Appellant.

Docket No. 46410.

108 Mich.App. 511, 310 N.W.2d 49

Court of Appeals of Michigan.

Aug. 6, 1981.

[108 MICHAPP 512] Andrea L. Solak, Detroit, for People of Michigan.

Hugh M. Davis, Jr., Detroit, for Albert Francis Larcinese.

Before KELLY, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.

PER CURIAM.

Defendant was charged in two informations with receiving and concealing stolen property, M.C.L. § 750.535; M.S.A. § 28.803. After an evidentiary hearing, the trial court entered an opinion and order quashing the information in case number 78-07370 and denying a motion to quash in case number 78-07369. Defendant was tried and found guilty in a bench trial (Case No. 78-07369) before Recorder's Court Judge Robert L. Evans on May 15, 1979. Defendant was sentenced on May 31, 1979, to a term of five years probation. Defendant appeals as of right.

The two informations against defendant arose out of two separate transactions between defendant,[108 MICHAPP 513] a Mr. Kendricks and F.B.I. agent John Insogna.

Defendant was first contacted by Insogna in mid-1977. Insogna indicated to defendant that he wanted stolen cars. Insogna contacted defendant approximately every two weeks thereafter until August, 1978. Defendant always told Insogna that he "didn't have anything".

On September 1, 1978, defendant delivered to Insogna a stolen car that Kendricks had given him. Defendant testified that he did not know the car was stolen. Defendant received $200 from Insogna. While in Insogna's office, Insogna opened a drawer and lifted out bundles of money. He told defendant that the money could all be his if he delivered more goods.

On September 8, 1978, Kendricks again delivered a stolen car to defendant claiming that the owner needed insurance money. Defendant stated that he did not believe the car was stolen. Defendant delivered the car to Insogna and received $50. The defendant indicated to Insogna at that time that he would be willing to deliver five cars daily to Insogna.

The trial court conducted an entrapment hearing on the two charges. The court determined that the repeated solicitation by an undercover officer constituted entrapment. The court quashed the information relating to the September 1 transaction.

The court concluded, however, that the second transaction was not the "product of police creativity". Defendant is now appealing his conviction from the September 8 transaction.

Defendant contends in effect that a new rule of law should be adopted by this Court. Specifically, defendant argues that once an initial transaction [108 MICHAPP 514] has been "tainted" by police misconduct constituting entrapment all subsequent similar transactions are necessarily "tainted" by entrapment.

Michigan has adopted an objective test for determining whether entrapment existed. This test focuses upon the police conduct involved rather than the predisposition of the defendant. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973).

As recently summarized in People v. Alford, 405 Mich. 570, 589-590, 275 N.W.2d 484 (1979):

"This Court in People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), adopted the objective test for entrapment articulated by Justice Stewart's dissenting opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). This test focuses on 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.' 390 Mich. 7, 22 (210 N.W.2d 336)."

In People v. D'Angelo, 401 Mich. 167, 183, 257 N.W.2d 655 (1977), the Court determined the standard of review to be applied when reviewing a finding of entrapment:

"To burden the defendant with proving his affirmative defense of entrapment by a preponderance of the evidence is certainly not offensive to the Due Process Clause. Patterson v. New York, (432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281) supra; Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976); Leland v. Oregon, (343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302) supra.

"We hold therefore that the defendant shall have the burden of proving the claim of entrapment by a preponderance of the evidence.

"In deciding the entrapment question the trial court should make specific findings of fact. Should the trial court find the claim of entrapment to be proved, the related charge will be dismissed. If the court finds the [108 MICHAPP 515] claimed entrapment not proved, the prosecution will proceed.

"The trial...