People v. Plyler, Docket No. 47501
| Decision Date | 05 March 1981 |
| Docket Number | Docket No. 47501 |
| Citation | 104 Mich.App. 437,304 N.W.2d 859 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carole S. PLYLER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Gail Rodwan, Asst. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gary L. Walker, Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P. J., and BASHARA and CYNAR, JJ.
Defendant, Carole Plyler, was arrested on March 30, 1977, and charged with inciting first-degree murder, M.C.L. § 750.157b; M.S.A. § 28.354(2). The prosecutor's application for an interlocutory appeal to this Court was granted on December 22, 1977, and an opinion issued on November 1, 1978, reversing the trial court's suppression of tapes of telephone conversations between defendant and a police informant. On April 19, 1979, defendant pled guilty to the offense of inciting second-degree murder. On June 8, 1979, defendant was sentenced to a prison term of from two to 20 years. Defendant now appeals as of right.
At the preliminary examination, which commenced on April 13, 1977, prosecution witness Kenneth Epps, a former classmate of defendant at Northern Michigan University, testified that Ms. Plyler had telephoned him on March 14, 1977, to ask if he would be willing to cause a fatal accident to an unnamed person for $15,000. Epps informed the defendant that he would need time to think about it. Later that day, he reported the conversation to the Marquette City Police. On March 15, 1977, the defendant allegedly telephoned Kenneth Epps a second time. During their conversation, which lasted approximately five or six minutes, Epps advised defendant to forget about the matter they had discussed the previous day, and defendant said, "Okay". Epps reported the telephone call to the police.
After the March 15, 1977, telephone call, defendant never again called Kenneth Epps or initiated any contact with him. Epps testified that, as far as he was concerned, defendant had abandoned the matter. However, on March 27, 1977, Kenneth Epps, in the presence of and at the direction of the police, unsuccessfully attempted to telephone the defendant at her place of employment. On March 28, 1977, Epps did reach defendant by telephone. The call was again placed at the direction of and in the presence of Marquette City Police officers. During this conversation, which was tape-recorded by the police without defendant's knowledge, Epps informed defendant that he had changed his mind and was "willing to take care of this". She agreed to meet him at a local restaurant.
Following this telephone call, Detective Salvatore Sarvello sought and obtained the first of four search warrants issued in this case. The first warrant enabled the police to record the restaurant conversation of March 28. During that conversation, Epps requested advance payment. Epps told defendant that he would not commit the act himself but had another person "who was ready to move". He also asked if she were "for real" in this endeavor because she didn't act like it. Defendant was unwilling to make any payment or to reveal the name of the intended victim. However, she finally indicated that her husband, Gerald Plyler, was the person who was to have the fatal accident. Defendant indicated a reluctance to make advance payment since she said she had paid money on three prior occasions for such an accident and nothing happened. Kenneth Epps persisted in requesting that the defendant deliver money and inferred he would be in trouble if the money was not produced.
It should be noted that the police had information that some type of assault had been made on defendant Plyler's husband on February 27, 1977, by an unknown assailant at the nearby Air Force base where her husband was stationed. In spite of repeated requests by Kenneth Epps for a photograph of the intended victim, no photograph was provided by defendant.
On March 29, 1977, the court issued a second search warrant to record a telephone call Kenneth Epps intended to make to the defendant that day at the direction of the police. After the warrant was issued, Kenneth Epps called defendant, again requesting a down payment and more information about the intended victim.
On March 30, 1977, the court issued a third search warrant to permit the taping of a telephone call to be made by Kenneth Epps to the defendant at the direction of the police. During this conversation, Epps arranged to meet defendant and asked her to bring with her the down payment and all additional information that he had requested. Shortly thereafter, a fourth search warrant was issued to permit the filming and recording of the meeting which was scheduled for 1 p. m. on that date. The meeting with Kenneth Epps took place as arranged, and at 1:10 p. m. Ms. Plyler was placed under arrest.
At no time did Gerald Plyler suffer harm or threat of harm as a result of the discussions between defendant and Kenneth Epps.
Defendant remained incarcerated from the date of her arrest on March 30, 1977, until February 6, 1978, when the amount of her bond was reduced and the bond was posted by her husband, Gerald Plyler.
During the period of defendant's incarceration, numerous motions were filed and argued. Pursuant to its opinion on those motions, the court entered an order on September 21, 1977, denying the defendant's motion to remand for another preliminary examination and further rejected defendant's claim of entrapment. Additionally, in the aforesaid order, the trial court granted the defendant's motions to suppress defendant's in-custody inculpatory statements, five tape-recorded telephone conversations, and photographs and video tapes of whatever nature, whether secured by search warrants or otherwise.
As noted above, the prosecutor had filed an application in this Court for an interlocutory appeal, and that application was granted on December 22, 1977. An opinion was issued on November 1, 1978. It should be noted that the Court of Appeals opinion excluded defendant's inculpatory statements made while in police custody and reversed the suppression of tapes of telephone calls made between Epps and the defendant pursuant to the search warrants. People v. Plyler, 86 Mich.App. 272, 272 N.W.2d 623 (1978).
The information, as amended on April 19, 1979, reads as follows:
On April 19, 1979, the defendant was rearraigned and pled guilty to inciting the commission of an offense, second-degree murder. The following exchange took place between the judge and the defendant:
As alluded to above, an entrapment hearing had been held in this case on June 21, 1977. On August 12, 1977, the trial judge ruled that the defendant had not been entrapped. The trial judge reasoned that, since the defendant had pled not guilty, she was not entitled to raise the entrapment defense. Further, the court found that the defendant was not entrapped, since a hypothetical defendant one not ready and willing to commit the crime...
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...86] shortly after Detroit's 1967 riots, and expressed the Legislature's concern regarding "riot-like behavior". People v. Plyler, 104 Mich.App. 437, 445, 304 N.W.2d 859 (1981). In Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the United States Supreme Court h......
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People v. Salazar
...was unable to reach a consensus on whether the statute was intended to include nonriot behavior. However, in People v. Plyler, 104 Mich.App. 437, 445, 304 N.W.2d 859 (1981), this Court rejected the claim that Sec. 157b was concerned only with riot-type "Perhaps it might better be said that ......