People v. Pugh

• Decision Date: 28 June 1973
• Docket Number: No. 2,Docket Nos. 15068,15139,2
• Citation: 48 Mich.App. 242,210 N.W.2d 376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald K. PUGH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lawrence HOGAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 376

210 N.W.2d 376

48 Mich.App. 242

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald K. PUGH, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lawrence HOGAN, Defendant-Appellant.

Docket Nos. 15068, 15139.

Court of Appeals of Michigan, Division No. 2.

June 28, 1973.

Released for Publication Sept. 20, 1973.

Dennis C. Karas, Grand Blanc, for Pugh.

Roger W. Kittendorf, Hayes & Kittendorf, Flint, for Hogan.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and QUINN and O'HARA ^*, JJ.

O'HARA, Judge.

These are appeals of right from convictions of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797.

As to defendant Pugh we find no basis for a full opinion. He went into an office armed and took some $700 at gunpoint. His only assignment of error is the disallowance of his request for a separate trial. The issue is controlled by People v. Schram, 378 Mcih.145, 142 N.W.2d 662 (1966). After quoting the applicable statute and discussing prior holdings thereunder that severance is a matter of judicial discretion. Justice Otis Smith speaking for the majority held:

'We would add to this holding that, in the absence of a showing of prejudice to substantial rights of the accused, reversal is not indicated.' People v. Schram, Supra, p. 156, 142 N.W.2d p. 667.

We find no showing of any prejudice to defendant Pugh. His conviction is affirmed.

Now as to defendant Hogan two assignments of error are raised.

First he claims he was denied a fair trial because the trial court excluded an exculpatory statement which was consistent with his theory of defense. The statement was sought to be elicited from a police officer who was testifying before defendant Hogan took the stand. The issue has been settled.

'The record discloses that such prior consistent statements were offered before the defendant had testified and before there had been any impeachment of the defendant's testimony. The general rule is that prior consistent statements are not admissible into evidence where there has not been an impeachment of the defendant's testimony.' People v. Greene, 42 Mich.App. 154, 155, 201 N.W.2d 664, 665 (1972), lv. den., 388 Mich. 783 (1972).

This claimed error is without merit.

We turn now to the question of merit in his appeal. First we recite the factual background. It was Hogan's contention that he did not in fact participate in the holdup, rather that he was acting as a police agent. It is admitted he had so acted previously. The police claimed this arrangement had been terminated. Hogan says it was not and that he feigned complicity in return for the promise of a 'break' in certain other charges pending against him.

Hogan claimed 'entrapment' and submitted a request to charge in relation thereto. The trial judge refused to give it but gave an alternative version as to which error is claimed. The reason we cannot pass upon the precise question which defendant has posed is that a fundamental mistake took place when the trial judge accepted defense counsel's premise that defendant had offered the defense of 'entrapment'.

The testimony in this case by no stretch of definition could be said to raise an entrapment issue. Entrapment as a defense was not known as the common law. It is defined generally as the action of law enforcement officers inducing persons to violate the law when they would not otherwise have done so. See 21 Am.Jur.2d, Criminal Law, § 143, p. 211. It is a seamy business at best. It has been used by over-zealous officers who deliberately lead one into the commission of an offense and then arrest him for it. The Federal circuit courts and state jurisdictions are split on the question, where entrapment has been claimed and testimony has been adduced to support it, where the burden of proof lies to establish it. This is where the error claimed by defendant arose in the case at bar. The trial judge charged:

'Defendant Hogan has * * * offered what is known as an affirmative defense of entrapment, and I'll charge you as follows: A person is not guilty of crime when he commits an act or engages in conduct, otherwise criminal, when the idea to commit the crime did not originate in the mind of the defendant but originated in the mind of another and was suggested to the defendant for the purpose of inducing him to commit the crime in order to entrap him and cause his arrest.

'And, on the burden of proof, the defendant has the burden of proving by a preponderance of the evidence that he was entrapped into the commission of the crime. Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.'

The whole reference to the entrapment defense was unfortunate. It was not sustained by the testimony relating thereto. The direct testimony of the defendant absolutely precluded it. We quote the trial transcript:

'Q. (defense counsel): Did you intend to--Mr. Hogan, did you intend to participate in the robbery at the Baxter Loan Company?

'A. No. I most certainly didn't.'

The defense of...