People v. Ramon , 86 Mich. App. 113 ( 1978 )

86 Mich. App. 113 (1978) 272 N.W.2d 124

PEOPLE
v.
RAMON

Docket No. 31456.

Michigan Court of Appeals.

Decided August 9, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Theodore P. Hentchel, Assistant Prosecuting Attorney, for the people.

F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and W. VAN VALKENBURG,^[*] JJ.

PER CURIAM.

Following a bench trial on July 13 and 14, 1976, defendant was found guilty of delivery of heroin in violation of MCL 335.314(b), 335.341(1)(a); MSA 18.1070(14)(b), 18.1070(41)(1)(a). He was sentenced to three years probation with six months to be spent in the county jail. He appeals as of right.

According to the testimony, one Eric Colby, a cousin of defendant, working in conjunction with David Brewer, an undercover officer and deputy sheriff, began calling on defendant in January of 1975. Colby told defendant he had been arrested on a breaking and entering charge in another county and needed funds to engage an attorney. He also stated that certain blacks, who had purchased dope before, had been to his house and had demanded more. After being assured that Colby did not intend to use the heroin himself, defendant delivered a tinfoil packet to him containing 1/3 gram of a brown powdery substance which contained 10% heroin.

Three questions are raised on appeal; however, since the entrapment issue will be dispositive, it is the only issue discussed here.

It is now well established in Michigan by the holding of the Supreme Court in People v Turner, 390 Mich. 7, 19-21; 210 NW2d 336 (1973), that the so-called objective test is to be applied to the facts of a case in order to determine if in reality entrapment has ensued.

The situation presented in the case at bar is remarkably similar to the one in People v Cushman, 65 Mich. App. 161; 237 NW2d 228 (1975), except that the cousin there played on the sympathies of the defendant by saying that his brother-in-law had a friend who was sick and needed some dope.

A majority of the panel in Cushman, after a reference to Turner, stated:

"The Court relied heavily upon 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). Both opinions placed the determination of entrapment upon the evaluation of whether repugnant methods were used by the police rather than the defendant's predisposition to commit the offense."

* * *

"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." People v Cushman, supra at 164, 166.

In People v Fraker, 63 Mich. App. 29, 33; 233 NW2d 878 (1975), we find the following statement:

"If the police conduct was sufficiently provocative to induce the normal law abiding citizen to commit a crime, entrapment has occurred regardless of the predisposition of the defendant involved."

See also People v D'Angelo, 401 Mich. 167, 173; 257 NW2d 655 (1977); People v Duis, 81 Mich. App. 698; 265 NW2d 794 (1978); People v Stanley, 68 Mich. App. 559; 243 NW2d 684 (1976); People v Asher, 67 Mich. App. 174; 240 NW2d 749 (1976); People v Van Riper, 65 Mich. App. 230; 237 NW2d 262 (1975).

Application of the objective test, promulgated in the foregoing citations, to the facts in this case leads us to the conclusion that defendant was entrapped contrary to the finding of the trial court. Ramon was reluctant to make the sale and did so only after being convinced by Colby that he needed money and would not use the drug himself.

Plaintiff relies heavily on People v Irma Perry, 75 Mich. App. 121, 126; 254 NW2d 810 (1977). However, in that decision one judge disagreed in a strong dissent and the majority opinion contains two sentences which distinguish it from the present situation:

"The relationship between the informant and defendant was not created by the police, or by the informant for the purchase. There were no appeals made to defendant's sympathies."

The defense of entrapment is still available to a defendant following inducement to commit a crime even though the false statements or sympathies are made by a private person, if "encouragement or assistance" is given by law enforcement officials. Stanley, supra at 564.

This Court possesses the authority to decide the entrapment issue as a matter of law rather than remanding the case to the trial judge when the defendant's testimony is considered as true or the evidence is uncontroverted. Fraker, supra, People v Henley, 54 Mich. App. 463; 221 NW2d 218 (1974).

Following a careful review of the briefs and the facts as disclosed by the record we conclude as a matter of law that defendant was entrapped into committing the offense.

Reversed and defendant discharged.^[1]

NOTES

[*] Former circuit judge sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] On remand, the officers in Cushman were found guilty of entrapment and the defendant was discharged. File No. 4191, Shiawassee County Circuit Court records.