People v. Roy

• Decision Date: 23 January 1978
• Docket Number: Docket Nos. 29477,77-1079
• Citation: People v. Roy, 265 N.W.2d 20, 80 Mich.App. 714 (Mich. App. 1978)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James R. ROY, Jr., Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harrison BERRIER, Defendant-Appellee. 80 Mich.App. 714, 265 N.W.2d 20
• Court: Court of Appeal of Michigan

Page 20

265 N.W.2d 20

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.James R. ROY, Jr., Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Harrison BERRIER, Defendant-Appellee.

Docket Nos. 29477, 77-1079.

80 Mich.App. 714, 265 N.W.2d 20

Court of Appeals of Michigan.

Jan. 23, 1978.

Released for Publication April 26, 1978.

[80 MICHAPP 715]Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Robert C. Ward, Jr., Asst. Atty. Gen., for plaintiff-appellant.

Myron E. Sanderson, Jackson, for Roy.

Dennis J. Conant, Jackson, for Berrier.

Before WALSH, P. J., and QUINN and STAIR, ^* JJ.

STAIR, Judge.

DefendantsJames Roy, Jr. and Harrison Berrier were arrested and charged with four offenses: conspiracy to deliver heroin, M.C.L.A. § 750.157a;M.S.A. § 28.354(1),M.C.L.A. § 335.341(1);M.S.A. § 18.1070(41)(1), conspiracy to possess heroin, M.C.L.A. § 750.157a;M.S.A. § 28.354(1),M.C.L.A. § 335.341(4),M.S.A. § 18.1070(41)(4), attempted delivery of heroin, M.C.L.A. § 750.92;M.S.A. § 28.287,M.C.L.A. § 335.341(1);M.S.A. § 18.1070(41)(1), and attempted possession of heroin, M.C.L.A. § 750.92;M.S.A. § 28.287,M.C.L.A. § 335.341(4);M.S.A. § 18.1070(41)(4).Defendant Roy was also charged with wilful neglect of duty, M.C.L.A. § 750.478;M.S.A. § 28.746.

Prior to the scheduled trial date defendants filed a motion to quash the information, asserting that they had been entrapped.After oral arguments and a stipulation that the trial judge consider the preliminary examination transcript in lieu of an evidentiary hearing, the court ruled that defendants had been entrapped and ordered all evidence [80 MICHAPP 716] suppressed and the charges dismissed.The prosecution brings the present appeal.

The facts of the present case were detailed at the preliminary examination.Ronald Stardevant, an inmate of Jackson Prison, wrote a letter to the Michigan Attorney General's office seeking a personal interview.Special agent Charles Rettstadt, of the Attorney General's Organized Crime Division, met with Stardevant on October 21, 1975.Stardevant expressed a fear that California authorities were in some manner seeking to interfere with his chances of parole.Stardevant sought the agent's help in gaining parole.At one point of the conversation Stardevant mentioned the amount of drug traffic in Jackson Prison, but denied personal knowledge of the methods used.

At a second meeting Stardevant told Rettstadt that he had found out how drugs could be smuggled into the prison.The method was that an inmate who had a drug seller on the outside would pass on his seller's phone number to an inmate who had a contact with a prison employee.The employee would phone the seller, meet with him outside of the prison, and then transport the drugs into the prison.The employee would give the drugs to his inmate-contact, who would then deliver them to the buyer.The employee and the inmate-contact would be paid a service charge for their part of the transaction.After hearing of this method Rettstadt instructed Stardevant to find out specific names of inmates who would arrange this type of drug deal.

At their next meeting Stardevant told Rettstadt that he had talked to defendant Berrier, a fellow inmate, and that Berrier had told him that if he had a contact on the outside that drugs could get into the prison.Rettstadt gave Stardevant a phone number and code name to pass on to Berrier.

[80 MICHAPP 717] Stardevant informed Berrier of the phone number and code name.A few days later Rettstadt received a call from a man, later identified as Roy, at the special number.Roy asked for "Duke", the code name.Rettstadt arranged to meet with Roy at a shopping center parking lot.

At the meeting Rettstadt gave to Roy $100 in cash and a packet containing a facsimile of heroin that had been prepared by a state police chemist.Rettstadt told Roy that he would pay another $100 after he learned that his buyer (Stardevant) received the drugs.Roy at one point told Rettstadt that he was a prison employee, and another time said that he was a prison guard.In fact, Roy was a prison industries employee.

The next day Stardevant received a foil package containing a powdery substance from Berrier, which Berrier said had been brought into the prison from Stardevant's dealer.Berrier apparently suspected that the substance was not real heroin and took some of it to test.

Stardevant gave the package to a prison security guard who then transferred it to Rettstadt.The chemist analyzed the substance and found it to be the same facsimile heroin he had originally provided.

When Berrier asked Stardevant why the heroin was fake, Stardevant replied that his dealer had not trusted the arrangement and had sent through a test package to see if it would actually reach Stardevant.Stardevant told Berrier to have his contact call the phone number again to set up the real transaction.

The same day Rettstadt received another call from Roy.A new meeting was set up.At the second meeting Rettstadt gave Roy more money and another package of facsimile heroin.Roy was [80 MICHAPP 718] then arrested as he drove out of the parking lot.Berrier was arrested inside of the prison.

In People v. Turner, 390 Mich. 7, 210 N.W.2d 336(1973), the Michigan Supreme Court adopted for use in Michigan the "objective test" for entrapment.This test was originally set out by the dissenting opinion of Justice Stewart in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366(1973).In Russell, Justice Stewart stated the objective test as follows:

"(W)hen the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then regardless of the character or propensities of the particular person induced I think entrapment has occurred.For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice."United States v. Russell, supra, at 445, 93 S.Ct. at 1649.

The objective test thus focuses on the police conduct itself without regard to the predisposition ¹ of the particular defendant to have engaged in the crime.

Entrapment under the objective test is a legal question to be decided by the trial court.People v. Sheline, 64 Mich.App. 193, 235 N.W.2d 177(1975), lv. granted, 395 Mich. 817(1975).The legal decision focuses basically on public policy grounds, specifically on which police tactics involving the detection and prevention of crime are justifiable in a [80 MICHAPP 719] free society.In Turner, supra, the Court criticized the use of the subjective test because it:

"fails to focus on the real concern in these cases 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".People v. Turner, supra, 390 Mich. at 22, 210 N.W.2d at 342.

The present case involves a situation where the government agents were operating on both ends of a supposed drug transaction.The informant inside of Jackson...