People v. Turner
| Decision Date | 23 February 1972 |
| Docket Number | Docket No. 10652,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Patterson TURNER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Charles W. Jameson, Jameson, Crudder & Bearinger, Adrian, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and McGREGOR and QUINN, JJ.
Defendant Thomas Patterson Turner was convicted by a judge sitting as trier of fact of both the sale and possession of heroin. M.C.L.A. § 335.152; M.S.A. § 18.1122; M.C.L.A. § 335.153; M.S.A. § 18.1123. He appeals as of right.
The facts of this case established that Melbourne Partridge, a truck driver and acquaintance of the defendant, had collaborated with State Trooper James Ewers in an attempt to determine if the defendant sold narcotics. After feigning friendship with the defendant for several months, Partridge and Ewers met defendant on February 22, 1970, whereupon Partridge asked for some heroin for his girlfriend. Partridge then gave the defendant $20 for the heroin. The defendant subsequently bought the heroin from a third party and gave it to Partridge. At that time the defendant informed Partridge that the heroin had cost more than the $20 he had previously supplied. Partridge then gave the defendant an additional $17 to pay the added cost of the heroin.
The defendant's major contention at trial was that he had been entrapped into committing the offenses charged. The trial court ruled that there was no entrapment.
In Sherman v. United States, 356 U.S. 369, 372--373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958), the United States Supreme Court attempted to distinguish between permissible police conduct and ehtrapment:
'However, the fact the government agents 'merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the Creative activity' of law-enforcement officials. (Emphasis supplied.) See (Sorrells v. United States), 287 U.S. at (435) pages 441, 451, 53 S.Ct. (210) at pages 212, 216 (77 L.Ed. 413). To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. The principles by which the courts are to make this determination were outlined in Sorrells. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an 'appropriate and searching inquiry into his own conduct and predisposition' as bearing on his claim of innocence. See 287 U.S. at page 451, 53 S.Ct. at page 216.
In People v. Smith, 296 Mich. 176, 182, 295 N.W. 605, 607 (1941), the Michigan Supreme Court stated:
'Where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution.'
In the case at bar, a review of the facts convinces this Court that the defendant was not entrapped into committing these offenses. While it is true that Partridge and Trooper Ewers became friends with the defendant in an attempt to determine if he dealt in narcotics, we are of the opinion that their conduct was limited to providing an opportunity for the commission of the offenses. Defendant's criminal activity was not the product of the creative activity of the law enforcement officials but resulted from the defendant's own willingness to commit the offenses charged. The record reveals that defendant exhibited no reluctance or hesitation in his desire to meet the request for narcotics.
As this Court stated in People v. Ovalle, 10 Mich.App. 540, 544, 159 N.W.2d 847, 848 (1968):
'The mere fact that an opportunity was furnished defendant to commit a crime, absent reprehensible creative activity or persistent overexertion, is no defense to subsequent prosecution.'
Defendant thereupon contends that even if this Court should find that the evidence fails to establish entrapment as a defense, it was nevertheless insufficient to warrant the verdict of guilty beyond a reasonable doubt of the sale of heroin. The record reveals that the defendant purchased heroin from a third party for Partridge, at his request, and with funds supplied by him. Defendant maintains that his actions were therefore those of a procuring agent for Partridge, and that consequently there was no sale of heroin but merely a transfer from agent to principal.
In United States v. Barcella, 432 F.2d 570, 572 (CA 1, 1970), the United States Court of Appeals for the First Circuit recognized that the procuring agent defense to the sale of narcotics is often a handmaiden to the entrapment defense.
The procuring agent defense to the charge of the sale of narcotic has been recognized by almost all of the Federal circuits and by the States of New York and Massachusetts. It first appeared in United States v. Sawyer, 210 F.2d 169, 170 (CA 3, 1954). Defendant Sawyer was asked by a police agent to get him some heroin. Sawyer, knowing where heroin could be purchased, took $20 as then proffered, purchased some heroin for $20 and brought it back and gave it to the agent. Sawyer was charged and convicted of the sale of a narcotic under 26 U.S.C.A. § 4705(a).* In reversing Sawyer's conviction, the Court stated:
'In these circumstances, we think the court should at least have pointed out to the jury that if they believed that the federal agent asked the defendant to get some heroin for him and thereupon the defendant undertook to act in the prospective purchaser's behalf rather than his own, and in so doing purchased the drug from a third person with whom he was not associated in selling, and thereafter delivered it to the buyer, the defendant would not be a seller and could not be convicted under this indictment.'
In Adams v. United States, 220 F.2d 297, 299 (CA 5, 1955), the Court reversed defendant's conviction for sale of narcotics and directed that a verdict of acquittal be entered on the ground that the facts established only that defendant was a procuring agent and as such, a sale was not possible:
In United States v. Winfield, 341 F.2d 70, 71 (CA 2, 1965), the Court, while affirming the defendant's conviction for the sale of narcotics, nevertheless recognized the legitimacy of the procuring agent defense:
'Careful scrutiny of the totality of facts in each case is required to determine whether a defendant, charged with violating Section 4705(a), acted as a seller or as a procuring agent. * * *
In the case at bar, there was no showing that the defendant had ever dealt in the sale of heroin prior to the solicitation by his supposed friend Partridge, nor was there a showing that defendant in any way profited from the transaction. As we have noted, defendant's willingness to obtain the drugs for Partridge obviated any entrapment defense in spite of the fact that the heroin was obtained with funds provided by Partridge, at his request, from a third party whom defendant had not been shown to have previously been associated with in the sale of narcotics. Nonetheless, these same facts are sufficient to raise the issue of a valid procuring agent defense to the charge of sale of heroin.
The term 'sale' as used in M.C.L.A. § 335.152; M.S.A....
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People v. Turner
...of heroin. The Court of Appeals reversed his conviction on the count of sale and affirmed as to the count of possession. 38 Mich.App. 479, 196 N.W.2d 799. We granted leave to appeal. 387 Mich. Defendant contends on appeal that he was entrapped into the possession of the heroin. In order to ......
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...of the 'procuring agent' defense. That defense was initially recognized in Michigan in this Court's opinion in People v. Turner, 38 Mich.App. 479, 196 N.W.2d 799 (1972), Rev'd on other grounds, 390 Mich. 7, 210 N.W.2d 336 However, this Court has held that with the passage of the Controlled ......
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