PEOPLE
v.
VAN RIPER
Docket No. 20880.
Michigan Court of Appeals.
Decided October 27, 1975.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Rostash, Prosecuting Attorney, Prosecuting Attorneys Appellate Service (by Edward R. Wilson, Director, and Dennis M. Powers, Special Assistant Attorney General), for the people.
James R. Jenkins, Assistant State Appellate Defender, for defendant on appeal.
Before: T.M. BURNS, P.J., and QUINN and M.J. KELLY, JJ.
Leave to appeal applied for.
M.J. KELLY, J.
Defendant was convicted by a jury of delivery of marijuana contrary to MCLA 335.341(1)(c); MSA 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 *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 NW2d 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 NW2d 336 (1973), the court rejected the subjective test and held that entrapment claims are to be weighed by *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.
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 *234 predisposition, but of his guilt of the offense with which he stands charged.'" 390 Mich at 20-21.
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 NW2d 74 (1974), another panel of this Court ruled that entrapment is an issue to be determined by the trial judge, and not by the jury. The court reasoned that, although Turner, supra, did not address the question of whether the judge or jury determined entrapment, the Supreme Court in adopting the objective test in Turner was persuaded by the dissenting opinion of Justice Stewart in Russell. Therefore it was logical to conclude that our Supreme Court intended the opinion of Justice Stewart to prevail on the judge-jury issue as well. Justice Stewart said that the determination of entrapment "must be made as it is on all questions involving the legality of law enforcement methods by the trial judge, not the jury". United States v Russell, 411 U.S. 423, 441.
This case must be reversed and remanded for a new trial, with the issue of entrapment to be decided by the trial judge.
II
At trial both the prosecutor and the defense counsel were apparently confused by the Turner approach. Both addressed the question of defendant's predisposition. Under the objective test, of *235 course, predisposition is irrelevant. We do not condone the prosecutor's misstatements of the law. However, we assume that such misstatements will not be repeated upon retrial, simply because the issue of entrapment will be decided by the judge, not the jury.
In considering defendant's other allegations of improper argument, it should be noted that no objection was made to these arguments in the trial court. The proper standard of review in such cases is set forth in People v Blassingame, 59 Mich. App. 327, 335; 229 NW2d 438 (1975):
"`The rule is that this Court will reverse a conviction based upon a prejudicial remark made during closing argument, only when the prejudice could not have been rectified by a curative instruction on the part of the trial judge, where the prejudicial remark was not objected to at the trial below.'" [Citations omitted.]
In the light of this rule, we do not believe that there was any remark made by the prosecutor below, which was so prejudicial that it could not have been cured by an instruction.
Finally, we should note that retrial will not always be required where the issue of entrapment has been improperly left to the jury, see, e.g., People v Fraker, 63 Mich. App. 29; 233 NW2d 878 (1975), where the evidence was uncontroverted and another panel of this Court decided there was no entrapment as a matter of law. This Court decided the question instead of remanding for the trial court's decision.
In the case at bar, however, there was conflicting testimony. Therefore we cannot determine the issue of entrapment on the record before us.
Furthermore, both the prosecutor and defense counsel argued predisposition to the jury. We cannot *236 say that the determination that defendant willingly sold marijuana to the undercover officer was not affected by the lengthy discussions of defendant's predisposition.
Reversed and remanded for a new trial.