People v. Wisneski
Decision Date | 18 March 1980 |
Docket Number | Docket No. 46214 |
Citation | 96 Mich.App. 299,292 N.W.2d 196 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome J. WISNESKI, M. D., Defendant-Appellant. 96 Mich.App. 299, 292 N.W.2d 196 |
Court | Court of Appeal of Michigan — District of US |
[96 MICHAPP 301] David A. Dodge, Grand Rapids, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., Kristine D. Botsford, Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P. J., and BEASLEY and BOWLES, * JJ.
Defendant was charged with the unlawful delivery on April 28, 1979, of a controlled substance, Preludin, in violation of M.C.L. § 333.7401(1); M.S.A. § 14.15(7401)(1). Following a Turner 1 hearing the trial court denied defendant's motion for a determination of entrapment, finding [96 MICHAPP 302] no basis for an entrapment defense. We granted defendant emergency leave to appeal this decision and stayed further proceedings in the trial court.
The sole contention raised on appeal is that the trial court erred in finding no entrapment. The testimony can be summarized as follows: Betty Jean Phillips, a patient of defendant Dr. Jerome Wisneski, first contacted the Grand Rapids Police Department when she sought help to "kick" a drug habit. Questioned by Officers Goethal and Ellenbaas of the vice squad, she named Dr. Wisneski as one of her sources. At the officers' request, Phillips went to the doctor's office on April 27, 1979 to try and get a prescription for drugs. Dr. Wisneski refused to write the requested prescription and Phillips left. She returned the next day in the company of the two officers and was instructed "not to go in and do that (oral sexual contact) unless that's what she had to do". Before entering the doctor's office, she was outfitted with a tape recorder and transmitter.
The transcript of this encounter indicates that Dr. Wisneski asked her to leave and offered to bodily evict her. Although Phillips explained that she was there to pay her medical bill, she later admitted she had no money on her at the time. After making several ambiguous sexual overtures, the import of which the doctor seemed to miss, Phillips apparently made a visual gesture which he did comprehend. Thereupon, she performed oral sex on him. Only immediately after this act did she ask that the doctor write a prescription for 30 Preludin in her maiden name.
Officer Goethal testified that he instructed Phillips to do only what she would normally do when she went to the defendant's office. At a previous administrative hearing, the officer testified that [96 MICHAPP 303] the instructions were "not to go in and do that (oral sexual contact) unless that's what she had to do".
Michigan has adopted the objective test for entrapment which focuses on police conduct rather than the individual defendant's predisposition to commit the offense. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The character or propensities of a particular defendant are totally irrelevant to the entrapment determination. People v. Cushman, 65 Mich.App. 161, 237 N.W.2d 228 (1975). If the methods used by the police are repugnant to fair play and justice, the courts, in an attempt to discourage the practice and to uphold confidence in the fair and honorable administration of justice, will refuse to permit prosecution. The real concern in entrapment cases is "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, supra, 390 Mich. 22, 210 N.W.2d 342.
For the court to determine whether the police conduct was of such a nature that it would induce the commission of a crime by an otherwise unwilling or unready person, the facts of each case must be examined. People v. Fraker, 63 Mich.App. 29, 233 N.W.2d 878 (1975).
Phillips testified that Dr. Wisneski refused to fill her request for a prescription on April 27, 1979. His refusal is emphasized by the doctor's patient information memorandum of that date which states:
[96 MICHAPP 304] At the officers' request, Phillips returned the next day. The recording of her subsequent encounter with Dr. Wisneski indicates a very unwilling defendant. Surprised by Phillips' visit, Dr. Wisneski variously told her to, "get out of here", "I'm a busy man," and "I may have to (bodily throw you out)". In the face of this resistance, Phillips then performed fellatio upon the doctor in order to "soften him up". Only after the doctor was so seduced did she repeat her request of the previous day for a prescription. He acceded.
There is no question that Phillips was a police agent, People v. Stanley, 68 Mich.App. 559, 243 N.W.2d 684 (1976), and thus her conduct in conjunction with that of the police must be examined to see if it was "REPREHENSIBLE UNDER THE CIRCUMSTANCES". People v. turner, supra, 390 mich. 22, 210 N.W.2d 336. We find it was.
When officers Goethal and Ellenbaas told her "not to go in and do that (engage in fellatio) unless that's what she had to do", they were tacitly encouraging her to induce the doctor to write the illegal prescription.
As a majority of the panel in People v. Cushman, supra, 65 Mich.App. 166, 237 N.W.2d 231, stated:
"The court's attention should be focused on the conduct of the police and whether that conduct has in a reprehensible manner instigated the commission of a crime by one not ready and willing to commit it regardless of the propensities of the particular person induced."
Police encouragement of an agent's use of sex to induce one who is unwilling and unready to commit a crime constitutes entrapment. Although the relationship between Phillips and Dr. Wisneski was created independent of any police involvement,[96 MICHAPP 305] People v. Duis, 81 Mich.App. 698, 265 N.W.2d 794 (1978), it was at the direction of the police that this friendship was "kept alive solely for the purpose of inducing defendant to sell drugs". The instant case is distinguishable from People v. Perry, 75 Mich.App. 121, 254 N.W.2d 810 (1977), which most closely deals with the use of sex in entrapment. Unlike Perry, however, Dr. Wisneski initially resisted Phillips' request for an illegal prescription. And more importantly, the sexual activity here was not incidental to, but rather the inducement to the criminal transaction.
We note that the doctor's path is difficult enough without subjecting him to police conduct of this kind.
This Court possesses the authority to decide the entrapment issue as a matter of law rather than remanding the case to a trial judge when the defendant's testimony is considered as true or the evidence is uncontroverted. People v. Fraker, supra, People v. Henley, 54 Mich.App. 463, 221 N.W.2d 218 (1974); People v. Ramon, 86 Mich.App. 113, 272 N.W.2d 124 (1978).
Reversed and defendant discharged.
Defendant had been the physician of Betty Jean Phillips, the chief prosecution witness, for four years. Since 1976 he had prescribed drugs for her and treated her during a hospitalization for a drug overdose. She testified that defendant was one of her drug sources and that she had received drugs from him in exchange for sexual favors.
Ms. Phillips contacted the vice squad of the Grand Rapids Police Department on April 26, 1979, because she wanted to kick her addiction to [96 MICHAPP 306] Preludin and speed. The officers took Ms. Phillips to defendant's office and told her to "go up there and to do what you would normally do" and "not to do anything out of the ordinary". Defendant did not see her on April 27th, a Friday, but told her to return on Saturday, April 28th when his receptionist would not be working. Ms. Phillips returned to defendant's office on April 28, 1979, equipped with a recording device. At the outset the two played what Ms. Phillips called their usual "silly game", defendant asking her why she was there and telling her to leave because he was too busy to see her. She said she was there to pay her bill and offered to pay in money. After a suggestive gesture by Ms. Phillips, she participated in an act of fellatio with defendant and, at the conclusion, asked the defendant for another prescription for Preludin. Defendant wrote her a prescription for 30 pills. The prescription was written after Ms. Phillips told him that she could sell them all.
The majority relies in part on defendant's notations on Ms. Phillips' patient records in reaching its decision....
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