People v. Tinskey, Docket No. 11582

• Decision Date: 24 June 1974
• Docket Number: No. 3,Docket No. 11582,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. TINSKEY and John W. Williams, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 53

220 N.W.2d 53

53 Mich.App. 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. TINSKEY and John W. Williams, Defendants-Appellants.

Docket No. 11582.

Court of Appeals of Michigan, Division No. 3.

June 24, 1974.

Released for Publication July 24, 1974.

Nicholas Smith, Smith, Bokos, Jones & Plakas, Detroit, Richard G. Leonard, Grand Rapids, Philip A. Gillis, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and MILES,* JJ.

ON REMAND

DANHOF, Presiding Judge.

This cause was remanded to our Court by order of the Supreme Court dated April 18, 1974, for reconsideration in light of People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The first decision by this Court is reported at 49 Mich.App. 497, 212 N.W.2d 263 (1973).

In Turner, our Supreme Court rejected the subjective test for entrapment and accepted Justice Stewart's dissenting opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637; 36 L.Ed.2d 366 (1973).

This Court upon remand has reconsidered this cause in light of Turner and does hereby reaffirm its original opinion affirming defendants' convictions of conspiracy to commit abortion in violation of M.C.L.A. § 750.14; M.S.A. § 28.204 and M.C.L.A. § 750.157a; M.S.A. § 28.354(1). Defendants were convicted by a jury of this offense on February 10, 1971. The Turner case was decided in September of 1973, approximately 2 1/2 years later. In People v. Gaines, 53 Mich.App. 443, 220 N.W.2d 76 (1974) a panel of this Court held that Turner was to be applied prospectively:

'We hold that until the Supreme Court clearly mandates that Turner is to be applied retroactively, we must approach this on the basis of the standards which were applicable prior to Turner. To do otherwise would have a highly detrimental effect on the administration of justice. This seriously disruptive effect predisposes a prospective application, in a fashion not dissimilar to the United States Supreme Court's refusal to apply Miranda and Escobedo retroactively.'

In this cause, under the standards applicable prior to Turner, we cannot say as a matter of law that defendants were entrapped.

Affirmed.

MILES, J., not participating.

* WENDELL A. MILES, Circuit Judge for the 20th judicial circuit, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, §...