People v. Sheline, Docket No. 20696

• Decision Date: 10 September 1975
• Docket Number: Docket No. 20696
• Citation: 64 Mich.App. 193,235 N.W.2d 177
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Shawn SHELINE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 177

235 N.W.2d 177

64 Mich.App. 193

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Shawn SHELINE, Defendant-Appellant.

Docket No. 20696.

Court of Appeals of Michigan.

Sept. 10, 1975.

Released for Publication Nov. 18, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and WALSH and O'HARA, ^* JJ.

ALLEN, Presiding Judge.

On March 21, 1974, defendant was convicted by jury of breaking and entering a building with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. He was sentenced to a 6 1/2 to 10-year prison term, and appeals of right. One of several assignments of error ¹ raised by defendant requires reversal. The dispositive question, the nature of which foregoes the need for detailed recitation of the facts, is whether the trial judge must determine the issue of entrapment in trials held after the decision in People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973).

In Turner, supra, our Supreme Court adopted the objective test for entrapment as enunciated by Justice Stewart in his dissent in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The objective standard dispenses with the element concerning defendant's criminal predisposition, and focuses on the conduct of the involved police--whether their acts have gone beyond the simple offering of a chance to commit crime. Under this theory, moreover, the defense of entrapment is an issue to be decided by the trial judge:

'Phrased another way, the question is whether--regardless of the predisposition to crime of the particular defendant involved--the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government's conduct must be made--as it is on all questions involving the legality of law enforcement methods--by the trial judge, not the jury.' Russell, supra, 411 U.S. at 441, 93 S.Ct. at 1647.

Numerous panels of this Court have paid homage to the procedure of requiring that the trial judge resolve the question of entrapment. People v. Fraker, 63 Mich.App. 29, 233 N.W.2d 878 (1975); People v. Zeegers, 61 Mich.App. 546, 233 N.W.2d 76 (1975); People v. Habel (On Rehearing), 53 Mich.App. 399, 220 N.W.2d 74 (1974).

In the instant case, the trial court submitted the question of entrapment to the jury:

'In your deliberation on this matter you may consider that, provided they do not entrap a person, law enforcement officers or their agents in their work are justified in using stealth, strategy, deception and undercover activity, and in merely affording opportunities or facilities for the commission of crime. Thus, law officers or their agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime, an opportunity to do so. But when their involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of such 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, entrapment has occurred.' ²

The earlier cited cases are indicative of the fact that the trial court erred in submitting the question of entrapment to the jury. Nonetheless, the people argue that the initial decision recognizing this procedural requirement, People v. Habel, supra, was not decided until after the instant defendant's trial. ³ Hence, the proposition announced in Habel and its progeny are not controlling, because Habel is not retroactive. ⁴ The argument misses the mark, since the retroactivity Vel non of Habel is of no moment. The decision in Habel does not stand for any newly announced principle; it merely articulates and follows the mandate implicit in Turner that the judge, not the jury, must decide the question of entrapment:

'Although our Supreme Court in Turner, supra, was persuaded by the dissenting opinion of Justice Stewart in adopting the objective theory of entrapment, it did not provide an answer to the procedural question of whether the judge or jury determines entrapment. * * *

'The Supreme Court of Michigan has determined that the courts of this state are to be bound by the test of entrapment set forth in a dissenting opinion of the United States Supreme Court. The only logical conclusion to which this panel can come is that Our Supreme Court must have intended that the language of Justice Stewart, above quoted, Should also prevail on the issue of the judge-jury matter.' (Emphasis added.) Habel, supra, at 400--401, 220 N.W.2d at 75.

That this is precisely what the Supreme Court intended is evident from the recent decision in People v. Auer, 393 Mich. 667, 227 N.W.2d 528 (1975). In holding that Turner is to be accorded prospective application, the Court, through J. W. Fitzgerald, J., speaks to the judge-jury question:

'The existence of entrapment was submitted to the jury under instructions. The people's principal witness, Pamela Dinsmore, gave testimony, the thrust of which was to indicate that the criminal intent to sell marijuana originated in the mind of the defendant. While defendant and his witnesses contradicted this account, the question was jury-decided adversely to defendant. There was no entrapment as a matter of law, the question properly being for the jury under applicable pre-Turner law.' (Emphasis added.) Auer, supra, at 677--678, 227 N.W.2d at 533.

Turner pre-dated instant defendant's trial by approximately six months. Even absent the guiding hand of the Habel Court, this Court concludes that Post-Turner entrapment issues are required (under Turner) to be resolved by the trial judge. It would be incredible to hold that Habel's existence, which we think correctly interprets what Turner mandates, may serve to bar affording defendant relief.

The people maintain that even if Turner stands for the view that a judge must determine the issue of entrapment, defendant's conviction should not be reversed, absent a showing of prejudice. We disagree. ⁵

Reversed and remanded for new trial.

O'HARA, Judge (concurring in part; dissenting in part).

I am writing separately in this case because I can find no precise decisional authority in Michigan establishing what precedential authority is established by a footnote. Appellate judges and justices vary greatly in their use and their content. The limited case authority on this subject from other jurisdictions apparently recognizes that footnotes should be given the same legal effect as material in the text of the opinion. 20 Am.Jur.2d, Courts, § 189, p. 525, 21 C.J.S. Courts § 221, p. 407.

I agree with Judge Allen that since the release of People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), the defense of entrapment is not jury submissible in Michigan.

Turner itself does not, as I read it, lay out the manner in which controverted contentions of the accused and the alleged entrapping officer or police agent are to be made of record.

It is my personal view that Mr. Justice Stewart in substance used the rationale of Jackson v. Denno, 378 U.S. 368, 84 S.Ct 1774, 12 L.Ed.2d 908 (1964), ¹ by analogy in recognizing that it is beyond human mental limitations to allow a jury to hear evidence clearly establishing the corpus delicti of a given offense and at the same time charge that if entrapment occurred this evidence is to be disregarded by them. I am moved to state that I sympathize with the trial judge in this case and in similar cases where a new rule is announced without spelling out the procedure to be followed as was done in People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), which spawned the so-called 'Walker' hearing.

Nonetheless Turner had been released and was the published law at the time this case was tried. Whether the defendant here was prejudiced by jury submission of the issue, as Judge Allen holds, I'm sure I don't know. In any event he had the right to have the entrapment ruling made by the trial judge, prejudice or no prejudice. I think it would be very dangerous law to append this requirement to the rule of Turner, thus leaving the decision on that point to a reviewing appellate court.

Be all the foregoing as it may I feel I am bound to concur in reversal for the reason I have stated.

Now as to the footnotes. I am in total disagreement with my colleague's holding in footnote one that the prosecuting attorney was guilty of misconduct in his argument or that he was 'stradding the fence'. The thrust of the prosecutor's comments went to the issue of defendant's credibility and whether or not the jury should find the accused's testimony worthy of belief in view of, Inter alia, his unstable life style, demeanor on the stand and admitted use of drugs. In particular I see nothing wrong with the reference to the magnitude of the drug problem and the fact that persons involved in the use of controlled substances are not necessarily the most stable or reliable persons in our society. Thus the prosecutor was well within the scope of permissible comment.

I also believe the time has come for me to express a long held personal opinion, even though I have been guilty of signing opinions which use the phrase 'REVERSED and remanded for new trial'.

It is the function of appellate courts to affirm or reverse a conviction.

The status of the defendant is then exactly the same as it was before the verdict by the court or jury. Given the fact that he was bound over for trial in circuit...