People v. Mulkey

• Decision Date: 10 December 1986
• Docket Number: Docket No. 83768
• Citation: 396 N.W.2d 514,153 Mich.App. 737
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gary Lynn MULKEY, Defendant-Appellee. 153 Mich.App. 737, 396 N.W.2d 514
• Court: Court of Appeal of Michigan — District of US

Page 514

396 N.W.2d 514

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gary Lynn MULKEY, Defendant-Appellee.

Docket No. 83768.

153 Mich.App. 737, 396 N.W.2d 514

Court of Appeals of Michigan.

Submitted July 2, 1986.

Decided Aug. 4, 1986.

Released for Publication Dec. 10, 1986.

[153 MICHAPP 738] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.

Arthur S. Brand, Lincoln Park, and Rose Mary C. Robinson, Detroit, for defendant-appellee.

Before GRIBBS, P.J., and WALSH and BEASLEY, JJ.

BEASLEY, Judge.

Defendant, Gary Lynn Mulkey, was charged with receiving and concealing stolen property over $100, specifically, a front-end clip and cab section of a 1983 Chevrolet, in violation of M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. The prosecution appeals from a trial court order quashing the information on the ground that defendant was entrapped. The order was entered after an evidentiary hearing on defendant's motion.

On appeal, we reverse a trial court's decision on entrapment only where the court's findings of fact are clearly erroneous or where the court made an erroneous application of law. ¹ A defendant carries the burden of proof at an entrapment hearing.

Unlike the federal courts, Michigan courts apply an objective test for determining whether entrapment has occurred. ² Under this test, the focus is on the nature of the police conduct. When the police officers' or police agents' involvement in criminal activities goes beyond the mere offering of an opportunity to commit the crime and when their [153 MICHAPP 739] conduct is of a kind that could induce or instigate the commission of a crime by a person not ready and willing to commit it, then entrapment has occurred. If the actions of the police were so reprehensible under the circumstances, then, as a matter of public policy, we do not permit the conviction to stand.

The objective standard for entrapment in Michigan does not automatically preclude the use of undercover agents, but only precludes conduct so reprehensible that it should not be condoned. ³ Essentially, the character or propensities of a particular defendant are irrelevant to a determination of whether entrapment has occurred. ⁴ To find entrapment, there must be a causal connection between the reprehensible acts of the police and the criminal acts of defendant. ⁵

Entrapment has been found where a police officer exploited a childhood friendship, pretending that he was an addict to play on defendant's friendship and sympathy. ⁶ We have found entrapment where an undercover officer received a sham sentence to a county jail, during which time he gained defendant's trust and persuaded defendant to sell him drugs following their release. In such a case, the police did more than provide defendant an opportunity to commit a crime; rather, they manufactured it. ⁷ We have found entrapment where a police officer combined the exploitation of an earlier friendship with an offer of monetary gain. ⁸ In People v. White, ⁹ the officer sought out [153 MICHAPP 740] defendant and asked to purchase narcotics. When defendant did not show up, the officer again searched him out. When defendant said he had not obtained narcotics because he did not have a ride, the officer gave him one. Later, two officers gave defendant a ride from Oscoda to Detroit and back. We held that defendant was entrapped as a matter of law.

In the within case, the record supports the trial court's finding that defendant was entrapped by the police. First, Officers MacDiarmid and Joker both stated that a friendship developed between them and defendant. Officer MacDiarmid testified that he and defendant frequented restaurants and went to the gun range together. Furthermore, on several occasions, he met defendant's parents, met defendant at his home and had defendant repair his brother's car. Finally, he sold defendant a motorcycle on credit. Officer Joker, a Canton Township Police Lieutenant, had defendant repair his car several times, visited defendant at his home on several occasions and sold defendant two pieces of property.

Second, while defendant was acting as a police informant, no guidelines or procedures were set up to control or govern his conduct. Lt. Joker testified that Officer MacDiarmid, who worked under Joker, recruited defendant as an informant. Lt. Joker did not recall ever speaking to defendant or giving him instructions as to his role as an informant. Officer MacDiarmid testified that it was the customary practice of defendant to notify MacDiarmid once he received possession of stolen vehicles. Defendant helped Officer MacDiarmid recover between seventeen and twenty-five stolen vehicles. Michigan State Police Sgt. James Gavigan, who [153 MICHAPP 741] was in charge of this case, testified that he was assigned to the auto-squad section subsequent to Officer MacDiarmid's joining the squad. However, Sgt. Gavigan testified that he did not approve of the methods used by Officer MacDiarmid.

Third, Lt. Joker testified that he knew defendant was upset because defendant felt the police owed him money for funds he expended to obtain these various stolen vehicles. Defendant claimed that the police owed him approximately $6,000. Lt. Joker testified that defendant had requested reimbursement of him on several occasions. Officer MacDiarmid testified that defendant requested reimbursement about three times. Officer MacDiarmid also testified that he contacted an insurance company and told them that he had information that their vehicle was going to be "chopped." The insurance company wrote him a check for $500 which he in turn gave to defendant. On another occasion, defendant was paid $100 from the Michigan State Police Informant Fund. In February or March of 1983, defendant told Officer MacDiarmid that he had just purchased a 1983 pickup truck which was stolen from Marty Feldman Chevrolet and that he wanted to be reimbursed. Officer MacDiarmid contacted the dealership and Marty Feldman indicated to him that he would pay half...