People v. Van Riper, Docket No. 20880

• Decision Date: 27 October 1975
• Docket Number: Docket No. 20880
• Citation: 237 N.W.2d 262,65 Mich.App. 230
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie VAN RIPER, Defendant-Appellant. 65 Mich.App. 230, 237 N.W.2d 262
• Court: Court of Appeal of Michigan — District of US

Page 262

237 N.W.2d 262

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie VAN RIPER, Defendant-Appellant.

Docket No. 20880.

65 Mich.App. 230, 237 N.W.2d 262

Court of Appeals of Michigan.

Oct. 27, 1975.

Released for Publication Jan. 23, 1976.

[65 MICHAPP 231] James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and QUINN and KELLY, JJ.

KELLY, Judge.

Defendant was convicted by a jury of delivery of marijuana contrary to M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). He was sentenced to serve 30 months to four years in prison, and appeals.

The charge against defendant arose from the sale of marijuana to an undercover police officer, Terry Lee Brenay, on December 28, 1972. The [65 MICHAPP 232] officer testified that he was introduced to defendant a month before and that on three prior occasions he had purchased small quantities of marijuana from defendant.

Defendant admitted that he sold marijuana to Brenay on December 28, 1972, but denied the other three sales. Defendant also testified that he was not in the business of selling marijuana, although he grew some for personal use. He claimed that his reluctance to sell was overcome by persistent entreaties.

Defendant has made four assignments of error. Two of these alleged errors have not been properly preserved for appeal. First, defendant claims that the prosecutor failed to indorse and produce res gestae witnesses. However, this issue was not preserved for appeal as defendant did not move for a new trial in the court below as required by People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106 (1973). Second, defendant also claims that the trial court improperly permitted the introduction of prosecutorial rebuttal witnesses. It is urged that the testimony of these witnesses belonged in the prosecution's case-in-chief. Since no objection was made at trial and no manifest injustice appears, we decline to consider this claim.

We will address the two other allegations: that the trial court's instruction to the jury on entrapment was erroneous; and that the defendant was deprived of a fair trial by prosecutorial misconduct during final argument.

I

In People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973), the court rejected the subjective test and held that entrapment claims are to be weighed by [65 MICHAPP 233] the objective standard. In doing so, the Supreme Court relied on the dissenting opinion of Justice Stewart in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Turner, Justice Stewart's opinion was quoted at length, including this definition of the objective test:

"(W)hen the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then--regardless of the character or propensities of the particular person induced--I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice." 390 Mich. at 21, 210 N.W.2d at 342.

Justice Stewart explained his rationale for rejecting the subjective test which focused on the defendant's predisposition to commit the crime:

"Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor--all of which would be inadmissible in any other context--in order to prove the defendant's predisposition. It allows the prosecution, in offering such proof, to rely on the defendant's bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment, and to present the agent's suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant's [65 MICHAPP 234] predisposition, but of his guilt of the offense with which he stands charged." 390 Mich. at 20--21, 210 N.W.2d at 342.

In the case at bar, the trial court closely followed the language of Justice Stewart in instructing the jury. Thus it is clear that the trial court correctly stated the objective test of entrapment. The serious problem, and one not raised by either party, is that the entrapment issue went to the jury at all. The trial court should have decided the entrapment issue, not the jury.

In People v. Habel (On Rehearing), 53 Mich.App. 399, 220 N.W.2d 74 (1974), another panel of...