People v. Turner

• Decision Date: 18 September 1973
• Docket Number: No. 11,11
• Citation: 210 N.W.2d 336,390 Mich. 7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Patterson TURNER, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 336

210 N.W.2d 336

390 Mich. 7

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Patterson TURNER, Defendant-Appellant.

No. 11.

Supreme Court of Michigan.

Sept. 18, 1973.

Harvey Koselka, Pros. Atty., Adrian, for the People, Prosecuting Attorney's Appellate

Service of Michigan, Thomas R. Lewis, Director, James D. Hunter, Staff Attorney, Detroit, of counsel.

State Appellate Defender Office by David A. Goldstein, Asst. Defender, Detroit, Research Assistant Robin Mills, for defendant-appellant.

Before the Entire Bench.

SWAINSON, Justice.

Defendant Thomas Patterson Turner was bench tried and convicted of the sale ¹ and possession ² of heroin. He was sentenced to 20 to 30 years in prison for the sale of heroin and 4 to 10 years in prison for the possession 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. 776.

Defendant contends on appeal that he was entrapped into the possession of the heroin. In order to determine the validity of this assertion, we must look closely at the facts of this case. In 1967, Thomas Patterson Turner was introduced to undercover agent Melbourne Owen Partridge. At this time, Mr. Turner was employed at the Ford Motor Company, and also was an antique dealer. With the exception of one arrest as a juvenile, Mr. Turner did not have a criminal record. Mr. Partridge was a part-time sheriff's deputy and a truck driver employed by the Tecumseh Corrugated Box Company. Approximately six months after their initial introduction, Partridge complained to Turner of drowsiness while driving on long trips. Turner sold him some pills to help him stay awake. Partridge turned these pills, which he believed were narcotics, over to the county sheriff who apparently did not act on this information. More pills were obtained approximately four months later and Partridge flushed them down his toilet.

Partridge testified that Turner visited with him on a regular basis, averaging about once a month over a period of three years. Partridge believed that Turner considered him a friend but he testified that he did not consider Turner a friend. Partridge obtained pills about a dozen times over a period of two years. He swallowed them on two occasions and destroyed them the other times. Partridge testified that he considered filing a criminal complaint against defendant but failed to do so.

Partridge discussed the matter of Turner's actions with a Tecumseh police officer, Officer Don Rodehaver in the fall of 1969. Officer Rodehaver introduced Partridge to Trooper James Ewers. Partridge informed the trooper that he believed that Turner was selling narcotics and Partridge and Ewers planned to find out if Turner was dealing in narcotics and make a purchase from Turner if at all possible.

Partridge introduced Ewers to Turner as a co-truck driver. Ewers and Partridge visited Turner ar least six times in the fall of 1969 and bought stag movies and pills. Partridge testified that one purpose in going to defendant's house was to see if he could get any information on dope and buy dope if possible. On one occasion that the pills were tested, they were found to contain caffeine. The agents were unable to buy either narcotics or drugs from Turner and the case was closed prior to December, 1969.

In February, 1970, Ewers told Partridge that he wanted to investigate Mr. Turner further. He asked for Partridge's help and a new investigation was commenced. At the time, Turner had quit his job of 21 years at the Ford Motor Company in order to devote himself full time to the antique business. In order to gain Turner's confidence, Ewers feigned interest in the antiques and potential purchases from Turner. Partridge also inferred that he would haul some antiques for Turner from Pennsylvania to Michigan thus saving Turner the freight charges. He testified that he wanted to convey to Turner the impression that he would haul back the antiques. Turner testified that on one occasion Partridge had brought a girlfriend to the shop who had purchased some antiques from Turner.

Before February 22, 1970, Partridge had requested narcotics from Turner on at least one and probably several other occasions. Turner testified that when Partridge had asked him for narcotics he informed him that he didn't know anything about them and didn't want anything to do with them. On February 22, 1970, Ewers and Partridge visited Turner. Turner asked them if they wanted some pills and Partridge said yes and also asked him for some hard stuff. Partridge testified that Turner informed him of the harmful effects of heroin and that it was a bad idea to use either marijuana or heroin. Partridge told him that it was for his girlfriend in Monroe County who was an addict and very good looking and who would quit dating him if he didn't find some heroin for her. In fact, no such person existed and Partridge testified that he invented the story about the addict girlfriend so Turner would believe it. Turner agreed to help out his friend who he believed was 'in a little of a spot' and to obtain some heroin from a friend of his in Detroit who had become addicted to heroin.

The next morning Partridge gave Turner $20 with which to make the purchase. Early in the morning of February 24, 1970, Turner brought Partridge the requested pills, marijuana and heroin. He asked Partridge for an additional $17 since the heroin alone had cost $20.

Ewers had arrived at Partridge's house earlier to set up two tape recorders which recorded the ensuing conversations. He was present during the entire transaction. After Turner had left, Ewers and Partridge took the tape recorders and drove them to the state police post in Clinton. Turner was not arrested, apparently because the police were interested in his source of supply of the heroin.

Ewers and Partridge subsequently tried to obtain more heroin by using the girlfriend story. Turner did not have any heroin and was unwilling to obtain any, but he did agree to introduce them to a Mr. Cope in Detroit from whom he had obtained the heroin that he had given to Partridge.

On March 3, 1970, Turner drove Ewers and Partridge to Detroit where they purchased heroin from Cope. Ewers wore a concealed transmitter which relayed the conversations during the trip to the Detroit police.

On March 11, 1970, Turner was arrested and charged with sale and possession of heroin. Ewers, on this date, interrogated Turner and asked him to become an informer. He told Turner that if he cooperated, the prosecution would be notified.

On April 7, 1970, a preliminary examination was held in Adrian, Michigan. The court denied a defense motion to release Turner on the ground that he was entrapped as a matter of law. Turner was bench tried in late June and early July of 1970. The trial court denied defense counsel's motion to quash the information on the grounds of entrapment and misstatements of the examining magistrate. The trial court also denied a defense motion to sequester Ewers during Partridge's testimony or alternatively to reverse the order in which the two witnesses testified. Partridge was permitted to testify first while Ewers was present in the courtroom.

The defense of entrapment, now accepted throughout the United States, appears to have originated in an early Michigan case, Saunders v. People, 38 Mich. 218 (1878). ³ In People v. Sinclair, 387 Mich 91, 116--120, 194 N.W.2d 878 (1972). I discussed the defense of entrapment and the split of authority over whether an objective or subjective test should apply. In this time of growing concern over the illegal and immoral use of the power of the government to gain convictions, the warnings of our Supreme Court almost a century ago should not be forgotten. As was stated in the Sinclair case, supra, 116--120, 194 N.W.2d 888;

'Our Court has long recognized the defense of entrapment and the public policy behind this rule. In Saunders v. People, 38 Mich. 218 (1878), the Court reversed Saunders' conviction for breaking and entering by night a court room not connected with a dwelling and 'taking therefrom certain recognizances described as contracts in force and public records.' The Court held:

"Decoying, or conniving with persons suspected of criminal designs, for the purpose of arresting them in the commission of the offense, is denounced by the Supreme Court.' (syl. 1.)

'Justice Cooley, writing for the Court, reversed on the grounds that the testimony of a witness named Dunnebacke, should not have been excluded. Two of the Justices held that the conviction should be reversed because of impermissible police conduct. Justice Marston stated (pp. 221--222 (194 N.W.2d p. 888)):

"I cannot, however, silently permit the extraordinary course adopted by the police officers in this case to pass unnoticed and uncondemned. * * *

"The course pursued by the officers in this case was utterly indefensible. Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to render such assistance, and to take such steps as would be likely to prevent the commission of the offense, and tend to the elevation and improvement of the would-be criminal, rather than to his farther debasement. Some courts have gone a great way in giving encouragement to detectives, in some very questionable methods adopted by them to discover the guilt of criminals; but they have not yet gone so far, and I trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parties to commit crime, in order that they may arrest and have them punished for so doing. The mere fact that the person contemplating the commission of a crime is supposed to be an old offender can...