People v. Schwartz, Docket No. 18615
| Court | Court of Appeal of Michigan (US) |
| Citation | 233 N.W.2d 517,62 Mich.App. 188 |
| Docket Number | No. 1,Docket No. 18615,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John J. SCHWARTZ, Defendant-Appellant |
| Decision Date | 23 June 1975 |
Page 517
v.
John J. SCHWARTZ, Defendant-Appellant.
Released for Publication Oct. 6, 1975.
Page 518
[62 Mich.App. 189] Theodore B. Sallen, Detroit (Alvin C. Sallen, Detroit, of counsel), for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., John C. Mouradian, Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and KELLY and O'HARA, * JJ.
[62 Mich.App. 190] KELLY, Judge.
Defendant was charged with and convicted of delivering heroin, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He was sentenced to a prison term of 4 to 20 years and appeals.
Michigan State Police Officer Gerald Kotajarvi was the only witness to the transaction that testified. He said that on September 19, 1972, he went to defendant's home in the City of Detroit. He was accompanied and introduced by Don Cager, an informant who had arranged the meeting. Prior to this date, Officer Kotajarvi and defendant were not acquainted with each other.
Defendant asked the officer what he wanted. The officer said 'a spoon' (a quantity of narcotics). Defendant said he didn't have any at his home. The three men thereupon left in Kotajarvi's car for the area of Theodore and St. Aubin in Detroit. Defendant entered a building and returned, saying he needed $25. He then went back in the building and eventually gave Mr. Kotajarvi six 'nickel' ($5) bags of a substance that contained 1 to 1 1/2 percent heroin.
Defendant did not testify on his own behalf. He interposed the defense of entrapment.
On appeal, defendant claims that the trial court erred by instructing the jury on the subjective test of entrapment. It is claimed that the judge should have given defendant's requested instruction setting forth the objective test of entrapment.
The jury verdict was returned on May 3, 1973. On September 18, 1973, the Michigan Supreme Court decided People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). Turner adopted the objective test of entrapment for courts of this state. The question thus presented is whether Turner is to be applied retroactively. That precise question was faced in People v. Auer, 393 Mich. 667, 227 N.W.2d [62 Mich.App. 191] 528 (1975), where the court held that the objective standard of entrapment applied only to police conduct arising after the decisional date of Turner. Trial defense counsel is to be commended for his
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foresight in requesting an instruction that complied with what, four months later, became the law of this state. Nonetheless, the trial court correctly instructed the jury on the prevailing rule of law.Defendant also claims that the trial court erred in excusing the nonproduction of Don Cager. The people admit that Mr. Cager was a res gestae witness who was indorsed and who the prosecutor attempted to produce. This Court said in the factually similar case of People v. Koehler, 54 Mich.App. 624, 639, 221 N.W.2d 398, 406 (1974):
'If ever there were a case where the prosecution's failure to produce a res gestae witness at trial court result in a 'possible miscarriage of justice', this is it. Because defendant admitted delivery of heroin and LSD to Officer Huston, his only hope for acquittal rested on the defense of entrapment. Concerning that defense, what witness could be more vital than the informant who served as the liaison between police and the defendant? Certainly Mrs. Stevens' testimony would have been crucial and perhaps decisive during the jury's deliberations with respect to the question of entrapment.'
The people claim that they were excused from producing the witness because they made an adequate showing of due diligence in attempting to produce the witness. This state has long recognized that the prosecutor's duty has been discharged upon a showing of due diligence. People v. Gibson, 253 Mich. 476, ...
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People v. Pearson, Docket Nos. 57147
...(good faith versus due diligence) and that the prosecution did not exercise sufficient diligence in its attempts to produce Cager. 62 Mich.App. 188, 233 N.W.2d 517 (1975). We It is clear that the standard is one of due diligence and not good faith. 3 We also believe that the standard of due......
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People v. McPherson, Docket No. 30151
...the prosecution's efforts to obtain the witness's presence at trial are diligent. Id. at 365, 210 N.W.2d at 511, People v. Schwartz, 62 Mich.App. 188, 191, 233 N.W.2d 517, 519 (1975), Lv. granted, 395 Mich. 794 (1975). The diligence required of the prosecution is "devoted and painstaking ap......
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People v. Khan, Docket No. 28122
...66 Mich.App. 333, 239 N.W.2d 604 (1976), and People v. Carpenter, 69 Mich.App. 81, 244 N.W.2d 338 (1976). But see, People v. Schwartz, 62 Mich.App. 188, 233 N.W.2d 517 (1975), People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975), People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975), ......
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People v. Allen, Docket No. 28909
...be denied, the judge shall state his reasons." People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106, 109 (1973). 2 People v. Schwartz, 62 Mich.App. 188, 193-194, 233 N.W.2d 517 (1975); People v. Wynn, 60 Mich.App. 636, 640-641, 231 N.W.2d 269 (1975); People v. Jones, 65 Mich.App. 619, 237......
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People v. Pearson, Docket Nos. 57147
...faith versus due diligence) and that the prosecution did not exercise sufficient diligence in its attempts to produce Cager. 62 Mich.App. 188, 233 N.W.2d 517 (1975). We It is clear that the standard is one of due diligence and not good faith. 3 We also believe that the standard of due dilig......
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People v. McPherson, Docket No. 30151
...prosecution's efforts to obtain the witness's presence at trial are diligent. Id. at 365, 210 N.W.2d at 511, People v. Schwartz, 62 Mich.App. 188, 191, 233 N.W.2d 517, 519 (1975), Lv. granted, 395 Mich. 794 (1975). The diligence required of the prosecution is "devoted and painstaking applic......
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People v. Khan, Docket No. 28122
...66 Mich.App. 333, 239 N.W.2d 604 (1976), and People v. Carpenter, 69 Mich.App. 81, 244 N.W.2d 338 (1976). But see, People v. Schwartz, 62 Mich.App. 188, 233 N.W.2d 517 (1975), People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975), People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975), ......
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People v. Allen, Docket No. 28909
...the judge shall state his reasons." People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106, 109 (1973).2 People v. Schwartz, 62 Mich.App. 188, 193-194, 233 N.W.2d 517 (1975); People v. Wynn, 60 Mich.App. 636, 640-641, 231 N.W.2d 269 (1975); People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 ...