People v. Stanley

• Decision Date: 26 April 1976
• Docket Number: Docket No. 22743
• Citation: 68 Mich.App. 559,243 N.W.2d 684
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marion STANLEY, Defendant-Appellant. 68 Mich.App. 559, 243 N.W.2d 684
• Court: Court of Appeal of Michigan — District of US

Page 684

243 N.W.2d 684

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marion STANLEY, Defendant-Appellant.

Docket No. 22743.

68 Mich.App. 559, 243 N.W.2d 684

Court of Appeals of Michigan.

April 26, 1976.

Released for Publication July 16, 1976.

[68 MICHAPP 560] Bennett, Vilella & Mitchell by H. Eugene Bennett, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and McGREGOR and MAHER, JJ.

MAHER, Judge.

A jury found defendant guilty of delivery of heroin, M.C.L.A. § 335.341(3)(a); M.S.A. § 18.1070(41)(3)(a). He received a 3 1/2 to 20 year sentence, and appeals of right.

Defendant admitted at trial that he delivered heroin to Richard Upton on March 13, 1974. His defense was entrapment, based upon his allegations that the drugs sold to Upton, a drug addict turned state police informant, had been purchased from Upton about two weeks earlier, and that [68 MICHAPP 561] Upton and Noreen Earhart, a state police detective, feigned withdrawal sickness to bring about the sale. The trial court, without stating whether it believed defendant's account of where he obtained the heroin, found no entrapment.

I.

The defense of entrapment is available where the prosecution is aimed at the sale of contraband originally obtained from a government agent. Although no Michigan case has considered the propriety of the government prosecuting the distribution of narcotics that it had supplied, cases from other jurisdictions strongly condemn this practice. In People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765 (1961), the Supreme Court of Illinois had this to say about police furnishing narcotics in their attempts to control narcotics traffic:

'While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the Sine qua non of the offense.' 21 Ill.2d at 325; 172 N.E.2d at 768.

Other state court decisions finding entrapment in narcotics cases when the government is the initial source of the drugs later delivered include: State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972), State v. Boccelli, 105 Ariz. 495, 467 P.2d 740 (1970), State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (N.M.App.1972), Jones v. State, 285 So.2d 152 [68 MICHAPP 562] (Miss., 1973), Striplin v. State, 499 P.2d 446 (Okl.Cr.App.1972).

The Federal courts have also applied the defense of entrapment to prosecutions for dealing in illegal narcotics that a government agent had supplied to a defendant. The leading Court of Appeals case, United States v. Bueno, 447 F.2d 903 (C.A. 5, 1971), was decided before United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Bueno, the Fifth Circuit found offensive the spectacle of 'the government buying heroin from itself, through an intermediary, the defendant, and then charging him with the crime'. 447 F.2d at 905.

The majority's choice in Russell, supra, of the 'subjective' test for entrapment that denies that defense to the 'unwary criminal', 411 U.S. at 436, 93 S.Ct. 1637, has led some Federal courts to refuse to hold entrapment applicable in every prosecution for the Return of drugs to the government. For example, in United States v. Hampton, 507 F.2d 832 (C.A. 8, 1974), Cert. granted, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975), two judges of the Eighth Circuit affirmed a conviction for narcotics distribution, finding no error, in light of Russell, in the trial court's refusal to instruct that if the government had provided defendant with the heroin he distributed, there should be no conviction. Judge Heaney in dissent wrote that he 'would have this Circuit adopt the Fifth Circuit rule that entrapment is established as a matter of law to a charge of possessing contraband or distributing contraband to a government agent, where such contraband was supplied to the defendant by a government agent, including a paid informer'. 507 F.2d at 836.

The Fifth Circit, as Judge Heaney's dissent indicates, has distinguished Russell from those [68 MICHAPP 563] cases where the government supplies contraband. In Russell, a government informant supplied a difficult to obtain, yet legal, ingredient used to manufacture an illegal drug. See, E.g. United States v. Oquendo, 490 F.2d 161 (C.A. 5, 1974), United States v. Gomez-Rojas, 507 F.2d 1213 (C.A. 5, 1975). The Third Circuit, like the Fifth, does not find that Russell precludes holding as a matter of law that there can be no conviction for the sale of narcotics which a government agent had supplied to a defendant. United States v. West, 511 F.2d 1083 (C.A. 3, 1975).

It is unnecessary for this Court to determine whether under the test approved by the majority in Russell a government-to-defendant-to-government transfer of drugs would not always constitute entrapment. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), adopted as the rule for this state the 'objective' test urged by Justice Stewart in his dissent in Russell, 411 U.S. at 439, 93 S.Ct. at 1646, 36 L.Ed.2d at 377. In deciding if there has been entrapment, Michigan courts do not look to the predisposition of a particular defendant, I.e., determine whether the police conduct was directed at a good or at a bad person; the inquiry concerns only police conduct and '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, 390 Mich. at 22, 210 N.W.2d at 342. In categorizing certain police actions as reprehensible, we find it significant that certain Federal courts, even though bound by the majority opinion in Russell, are so offended by 'take back sales' that they hold these transactions to automatically constitute entrapment. ¹

[68 MICHAPP 564] There can be no doubt that if defendant obtained heroin from Upton, a police informant, and later sold the same heroin back to Upton, his conviction for that sale would be invalid. It is difficult to conceive of a clearer instance of manufactured crime, of 'police conduct * * * (that) falls below standards, to which common feelings respond, for the proper use of governmental power'. Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (concurring opinion by Justice Frankfurter).

We attach no importance to the fact that defendant alleges that an informant, and not a police officer, was the source of the heroin he sold. The government, after utilizing an informant, cannot disown his actions. Sherman v. United States, 356 U.S. 369, 373--374, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Even if police officers working with an informant claim ignorance of the fact that the informant was the supplier of contraband, entrapment is still available as a defense, United States v. Gomez-Rojas, supra, 'When persons who are not law-enforcement officials act with official encouragement or assistance, they should be treated as government agents for purposes of the entrapment defense. Otherwise, its protection could be avoided by indirection.' Note, 73 Harv.L.Rev. 1333, 1341 (1960).

II.

During the trial below, a hearing out of the presence of the jury was held to determine if [68 MICHAPP 565] defendant had been entrapped. This Court has held that decision by the judge, rather than the jury, is the correct procedure when entrapment is raised. ² People v. Habel (On Rehearing), 53 Mich.App. 399, 220 N.W.2d 74 (1974), People v. Zeegers, 61 Mich.App. 546, 233 N.W.2d 76 (1975), People v. Fraker, 63 Mich.App. 29, 233 N.W.2d 878 (1975), People v. Sheline, 64 Mich.App. 193, 235 N.W.2d 177 (1975), Lv. granted, 395 Mich. 817 (1976), People v. Cushman, 65 Mich.App. 161, 237 N.W.2d 228 (1975). These decisions recognize that the entrapment test enunciated in Turner presents questions about the propriety of police conduct ill-suited for jury resolution. '(T)he 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.' United States v. Russell, supra, 411 U.S. at 441, 93 S.Ct. at 1647, 36 L.Ed.2d 379 (dissenting opinion by Justice Stewart).

At the hearing on entrapment, only defendant and Noreen Earhart, a state police detective, gave testimony. Defendant testified that Upton, whom he had met some years earlier at a methadone clinic, sold him a quantity of heroin approximately two weeks before Upton and Earhart arrived at defendant's home on March 13, 1974, looking for heroin. Defendant's description of the amount of heroin he purchased from Upton varied. Defendant was out with his wife when Upton and Earhart arrived on the night of March 13, but a babysitter told them how defendant could be reached. Defendant claims it took two telephone [68 MICHAPP 566] calls from Upton to persuade him to return home. When defendant arrived, Upton told him he was experiencing withdrawal sickness and needed heroin. Defendant then left and returned with what he alleges was part of the heroin Upton had earlier sold him. Defendant testified that although he was still using heroin when he made the purchase from Upton, he was trying to quit and had left the heroin at a friend's house to prevent ready access to it.

Earhart testified on the separate record that she could not dispute defendant's allegation that Upton was the source of the heroin sold on March 13, 1974. Upton was not called to testify at the separate hearing. He had earlier, under cross-examination before the jury, given...