People v. Soper

• Citation: 226 N.W.2d 691,57 Mich.App. 677
• Decision Date: 27 January 1975
• Docket Number: No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George James SOPER, Defendant-Appellant. Docket N. 17249
• Court: Court of Appeal of Michigan (US)

Page 691

226 N.W.2d 691

57 Mich.App. 677

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George James SOPER, Defendant-Appellant.

Docket N. 17249.

Court of Appeals of Michigan, Division No. 1.

Jan. 27, 1975.

Released for Publication March 19, 1975.

Rehearing Denied March 25, 1975.

Thomas A. Maher, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael O. Lang, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and O'HARA, ^* JJ.

BRONSON, Judge.

We have reviewed the facts as accurately set forth in Judge Danhof's opinion. We also agree with Judge Danhof's statement of the law of entrapment applicable to those facts. However, after careful consideration of the facts in light of the relevant legal principles, we conclude that defendant Soper was 'induced to commit' the crime of delivery of heroin, United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366, 375 (1973), because the police conduct in this case constituted entrapment as a matter of law.

The only reason the police officer investigated Soper was the latter's recent release from prison and previous addiction to narcotics. The officer exploited a childhood friendship with Soper to establish personal contact, and then activated his preconceived plan to induce Soper to obtain heroin for him. In order to convince Soper that he had a serious need for heroin, he falsely maintained that he was an addict, again playing on Soper's friendship and sympathy. At first Soper hesitated, indicating that he no longer had any 'connections' and probably could not find any heroin. Only after the officer again approached Soper with the same request was the heroin obtained. We find the tactics utilized in this case repugnant.

We hold that the 'processes of detection and enforcement' used here were 'abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them'. Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413, 420 (1932).

Defendant's conviction is reversed and he is discharged.

DANHOF, Presiding Judge (dissenting).

I am unable to accept my colleagues' conclusion that the defendant was entrapped as a matter of law under the facts of this case. Defendant was convicted by a jury on March 12, 1973 of delivery of heroin, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(a). He was sentenced to a term of from 5 to 20 years in prison, and he appeals, raising three issues involving his defense of entrapment.

At trial the defendant took the stand and admitted the offense, choosing to rely on a defense of entrapment. The defendant testified that he had been a drug addict and that he had three previous convictions for drug related offenses, but that he ended his drug habit while in prison. His testimony conformed in all significant particulars to that of the primary prosecution witness, an undercover police officer.

The officer testified that while in the Detroit Police Narcotics Bureau Office, he happened to notice the defendant's file which was active because the defendant had been released from Jackson Prison less than two months before. The officer recognized the defendant as an old boyhood friend. He went to the defendant's house, renewed his acquaintance and discussed their shared experiences as children. The officer then brought up the subject of drugs, told him he was an addict, and asked the defendant to obtain heroin for him. A future meeting was set up, and for $60 the defendant gave the officer a tinfoil packet which subsequent tests disclosed to contain heroin.

The first and second issues raised by the defendant in this appeal depend upon the application of the recent decision in People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), to the facts in this case. Defendant argues that the trial court erred by not finding entrapment as a matter of law under the test adopted in Turner. He also argues that the trial court's instruction to the jury on entrapment was erroneous because it set forth the subjective or 'creative activity' test for entrapment which was expressly rejected in Turner.

This Court has considered the question of retroactivity, holding that the effect of the decision in Turner is prospective only. People v. Gaines, 53 Mich.App. 443, 220 N.W.2d 76 (1974), People v. Tinskey, 53 Mich.App. 667, 220 N.W.2d 53 (1974), People v. Koehler, 54 Mich.App. 624, 221 N.W.2d 398 (1974). Therefore, the entrapment standard as it stood prior to Turner must be applied in this case. Under that standard, the trial court did not err in failing to find entrapment as a matter of law, or in its jury instruction concerning the subjective test.

Defendant's third and final issue presents the allegation that the trial court's instruction on the burden of proving entrapment was reversibly erroneous. That language to which the defendant objects is as follows:

'Now to go back to the defense of entrapment, the defendant has the burden of production of evidence in support of entrapment, having done so, he has the burden of persuading the jury, you people, the existence of facts constituting the defense by a preponderance of the evidence. He must convince you that he was entrapped by a preponderance of the evidence.'

The question of the burden of proving entrapment, and the quantum of proof necessary to do so, has previously been before our Court, but has not been decided. People v. Pugh, 48 Mich.App. 242, 210 N.W.2d 376 (1973), People v. Habel, 50 Mich.App. 630, 213 N.W.2d 822 (1973). It should be emphasized that the discussion and holding in the case presently before us is confined to the law of entrapment as it stood prior to the sweeping changes brought about by the decision in Turner. Following this decision, it appears that future jury instruction on entrapment will be unnecessary. People v. Habel (On Rehearing) 53 Mich.App. 399, 220 N.W.2d 74 (1974).

There exists a substantial divergence of opinion concerning the degree of proof sufficient to sustain a defense of entrapment. The leading authority on the burden of proof in this situation is a statement of Judge Learned Hand in United States v. Sherman, 200 F.2d 880, 882--883 (CA,2, 1952):

'Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.'

This bifurcated conceptualization of the burden of proof has led to some confusion in those jurisdictions, like Michigan before Turner, which apply the subjective test. Nevertheless, some insight can be achieved by tracting the roots of the entrapment doctrine as it has been developed in the Federal and state courts.

The defense of entrapment as recognized by the United States Supreme Court has its basis 'in a notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a prescribed offense, who was induced to commit them by the Government'. United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366, 375 (1974). The United States Supreme Court has consistently regarded entrapment as a device fashioned to give effect to the intent of Congress. 'Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.' Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958). 'We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.' Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413, 420 (1932).

Under the Federal 'implied exception' theory, an entrapped defendant cannot be convicted and punished because what he did was not a crime; that is, he did not violate any statute because he comes within an implied exception to that statute. From a procedural standpoint, once the defense of entrapment is raised, the prosecution must prove non-entrapment because it is only by so doing that the prosecution can prove that the defendant did not come within the implied exception and hence that he has committed a crime. Since application of the statute to the defendant is an essential element which must be proven to establish guilt, it follows in both logic and law that the standard of proof which must be satisfied on the issue of non-entrapment is the same as for any other essential element of the offense; proof beyond a reasonable doubt. Therefore, the 'Federal rule' provides that once the...