People v. Turner

M. S. Coleman, J.

(dissenting).

FACTS:

The issue which was accepted by this Court for resolution was whether such contact as the defendant had with heroin within the following factual situation warranted a conviction for possession. This Court, however, has undertaken an analysis of thé doctrine of entrapment, and it is to this analysis that the following dissent is directed.

Defendant was convicted on July 9, 1970 in a non-jury trial for possession and sale of narcotics. He was sentenced to á term of 4 to 10 years in prison on the former and 20 to 30 years on the latter. The Court of Appeals affirmed as to possession and reversed as to sale. Leave was granted to review the conviction of possession of heroin.

The evidence indicates that defendant and Melbourne Partridge became acquainted in 1967. De*33fendant was then employed by Ford and Partridge was a truck driver. Over the course of two years defendant offered and sold to Partridge some prescription pills of different colors. (Partridge had complained of drowsiness during long trips.) The ingredient of the pills analyzed on one occasion was found to be caffeine. On other occasions, Partridge flushed them down the toilet.

In 1969 Partridge became acquainted with State Police Trooper James Ewers and introduced Ewers to defendant calling him a fellow truck driver. Partridge and Ewers sought to determine if the defendant was dealing in narcotics,. They were unable so to determine and the investigation was closed.

A few months later, in February 1970, a new investigation was commenced at Ewers’ request. Partridge and Ewers claimed an interest in antiques. Defendant had left his position at Ford to devote his full time to that business.

During the course of the second investigation, Partridge told defendant that he had a girl friend who was a heroin addict and having problems supplying her habit. As Ewers related the conversation on direct-examination:

"A. He [Turner] said, 'Well, the two semi drivers,’ and—and Mr. Partridge said, 'Hi, Tom, how are you?’ And he said, 'What do you need, Mick, more pills?’ And Mr. Partridge said, 'Yes,’ and he said, 'Well, what do you want?’ And at that time Mr. Partridge told him.
”Q. Told him what?
'A. He told him that he would like some pills; also some heroin for a girl friend that he had or that he was going out with in Monroe.
”Q. You recall the exact conversation?
'A. Word for word, no; I remember basically what was said.
*34”Q. Was there any statement about, 'Anything I can get,’ or anything of this, sort?
"A. Yeah, he said—Mr. Turner said, 'What do you want?’ And Mr. Partridge said, 'I’ll take anything I can get,’ and he said, 'I would like some pills, some—some heroin for this girl friend in Monroe, and also some marijuana.’
"Q. All right; did he use the name—use the word heroin?
'A. Yes.
”Q. Did he use the word marijuana?
"A. Yes, he may have said grass or something to this effect, but he implied marijuana, and I do believe he said it.
”Q. And then what happened?
”A. Mr. Turner said that heroin was bad stuff, and he said but it?s easier to get than bennies and that he would have—
"Q. What else did he say at this particular time on this particular first phrase in this regard?
’A. I’m sorry, I don’t quite follow.
"Q. I’m interested in his exact words now as near as you can recall his exact words. He said, 'It was bad stuff, but it’s easier to get.’?
’A. Yes, sir; after Mr. Partridge told him he wanted heroin, he said, 'That’s bad stuff, but it’s easier to get than bennies,’ and he said, 'I’ll have no trouble getting it.’
”Q. And then what was said?
'A. There was a—there was a short conversation there about money—excuse me.
"Q. Prior to the conversation about money, was there any more said about heroin being bad for you other than what you have just mentioned?
'A. If there was, I don’t remember it. I do remember that he said, 'That’s bad stuff, but it’s easier to get than bennies,’ and he said he would have no trouble getting it.
”Q. All right; and then what was the next thing that was said? You said something about money?
”A. Yeah, there was a conversation there about *35money. As to who brought it up first, I don’t know. I do remember Mr. Turner saying something to the effect that he did not have enough, and that he would need some, and I’m sorry, I do remember Mr. Turner did ask Mr. Partridge how many heroin he wanted, and at that time Mr. Partridge said three shots, and an amount of twenty dollars was agreed upon. Mr. Partridge said that he did not have it at that time, but that if he would stop at his house on the way to Detroit in the morning, Mr. Partridge would give it to him. He then pulled a small plastic pillbox out of his pocket, held it in his hand. He showed it to us, and he said, 'This is all I have got left. I’m going to Detroit to get some more for myself tomorrow,’ and that’s when they agreed to meet at Mr. Partridge’s home where the transaction of money—
"Q. What part did you play in this particular conversation?
"A. In the conversation itself, I did not play any part as far as doing any speaking or anything to this effect, at least not that I can recall right now. I conversed with Mr. Turner casually to say hello and—and I’m certain I said other things to him. What they were, I don’t know. I was with—I was there mainly because I was the officer in charge of this case, but I was also there to witness what Mr. Partridge had said to Mr. Turner and what Mr. Turner had said in reply or vice versa.”

The transcript indicates that the transaction was very low keyed, with no urging, begging or pleading on the part of Partridge. In fact, there had been no plan at all as they approached Turner. They were just "playing it by ear”. There was just Turner’s question, "What do you need, Mick, more pills?” and Partridge’s reply as to pills, heroin and marijuana followed by Turner’s ready compliance. The purchase occurred on February 24th when Turner was going to Detroit in any event to buy some pills for himself. Partridge asked for 100 pills to sell. Turner stated that he bought the approxi*36mately 100 Benzedrine pills from his brother, the heroin from an addict he knew and the marijuana from a bartender. (A tape recording revealed Turner as saying that his brother had about 5,000 bennies.)

Subsequently, Partridge and Ewers again used the "girl friend” story to ask defendant to make a heroin purchase. Defendant refused but did drive them to Detroit so they could make contact through him with the pusher. Partridge and Ewers did make a purchase.

The bench trial lasted six days. The central issue of entrapment was presented in defendant’s motion for a directed verdict made at the close of the prosecution’s case. Defense counsel said defendant "was entrapped by their subtleties and their devices and their methods over a period of months to a point where he felt indebted perhaps or felt somewhat committed to assist a friend at a timé when he felt that friend was in a time of need.” He said Partridge and Ewers used "a whole system of fantasy, of lies, of inducements, or persuasions” to ensnare defendant. The prosecution responded saying that "Gaining someone’s confidence, perhaps even making the request, is not entrapment.” The court took the motion under advisement.

In the findings of fact the court referred to a conversation between defendant, Partridge and Ewers which was recorded on tape when defendant returned from Detroit with the heroin. The court said:

"[Tjhrough this whole conversation, the Defendant was the expert on it. He was the one who knew his way around. In fact, Mr. Partridge in that conversation didn’t sound too bright at all. The Defendant knew how and where to get anything. He knew how to dry the *37grass and how to use the heroin and how to make a profit on the sale of drugs.”

The court was "convinced the Defendant would sell to anyone he knew and he felt it was safe to sell to.” The court had serious doubts about defendant’s veracity and did not "believe the Defendant was persuaded or induced by any trickery or promises or anything else to do something he wouldn’t have done if he had felt it was safe.” The court concluded by saying "there was no entrapment as we know entrapment under the law.”

The Court of Appeals affirmed part of the conviction. Its review of the evidence disclosed no entrapment. It felt the conduct of Partridge and Ewers merely provided an opportunity for the commission of the offense and defendant himself was willing to so act.

However, the Court did recognize the defense of a procuring agent for the sale of narcotics. The theory apparently rests on the assumption defendant acted on the purchaser’s behalf rather than on his own and perhaps did not profit from the transaction. (The judge stated that he could not find whether or not there was a profit to Turner.) Our Court of Appeals was

"convinced that a procuring agent who buys from a third party with funds provided by his principal and at the principal’s request is far different from the employee of a narcotics peddler. It is only the latter individual who can in any sense be considered to be a seller of narcotics.” 38 Mich App 479, 487; 196 NW2d 799 (1972).

Despite reversing the conviction for sale, the Court felt "a conviction for 'possession’ during the time when the procuring agent acted as a conduit for the illegal drug transfer is valid.” (p 488.) The *38Court noted defendant had. total control of the narcotics which was sufficient to sustain a finding of possession. Defendant appeals from that finding.

The people did not seek leave to appeal, reversal of the conviction for sale, so the conviction in question is as to possession only.

It may be true, as Justice Swainson indicates, that this Court is not bound by those decisions of the United States Supreme Court which deal with entrapment. However, it cannot be denied that they merit our most careful consideration, especially since our majority opinion adopts what has consistently been a minority position in that Court.

In the first place, the case before our Court does not contain the hazards of persuasion of the jury by use of prior record or "propensities”. Much of the argument of Justice Stewart’s dissent in Russell (pp 19-21), therefore, is irrelevant to this factual situation.

Also irrelevant is the statement on p 23 of the majority opinion to the effect that Mr. Turner was sentenced to 20 years in prison (for sale of heroin). He has been acquitted of the charge of sale and the decision has not been appealed. The sole offense before this Court and the sole remaining charge is possession of heroin (sentence 4-10 years).

The importance of the prevailing opinion lies in the fact that it raises a new barrier to the conviction of those participating in criminal activity. A short review of the prevailing United States Supreme Court cases is appropriate to this dissent.

The first Supreme Court case to recognize the defense of entrapment was Sorrells v United States, 287 US 435; 53 S Ct 210; 77 L Ed 413 (1932). The only question was "whether the evi*39dence was sufficient to go to the jury upon the issue of entrapment.” (p 439.) The Court reversed defendant’s conviction for possessing and selling whiskey because the trial judge had refused to submit the question to the jury.

In the course of the opinion, Chief Justice Hughes said the defendant, "otherwise innocent,” had been "lured” into commission of the crime by the "repeated and persistent solicitation” of the agent, (p 441.) He then went on to say at 441-442:

"It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.”

The doctrine of entrapment was reexamined in Sherman v United States, 356 US 369; 78 S Ct 819; 2 L Ed 2d 848 (1958). Defendant was befriended by a government informer while both were being treated for addiction. Indicating that he was undergoing great suffering, the informer repeatedly asked defendant to purchase narcotics for him. Apparently the informer also induced the defendant to resume his habit. Once these results were reached, the informer told the government officers. He was supplied with government money to make additional purchases from defendant. These purchases were witnessed by the officers.

Five members joined in an opinion written by Chief Justice Warren which concluded there was entrapment as a matter of law. The Justices reaffirmed Sorrells. They said at 372-373 that "the fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment.” They *40said the case "illustrates an evil which the defense of an entrapment is designed to overcome.” (p 376.) I agree.

The theories in Sorrells and Sherman have been repeated in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). A Federal undercover agent was investigating the illicit manufacturing of methamphetamine. The agent supplied the defendant with a legally available but difficult to obtain ingredient. In return, he received one-half of the drug produced.

Defendant was convicted in a Federal district court for the unlawful manufacturing, processing and sale of methamphetamine. The Federal Circuit Court of Appeals reversed saying "a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” 459 F2d 671, 673 (CA 9, 1972). The Supreme Court reversed the. Federal Circuit Court of Appeals.

Justice Rehnquist writing for the majority said that while there may be situations "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction * * * the instant case is distinctly not of that breed.” (pp 431-432.) The tactics used by the agent were not deemed violative of fundamental fairness, (p 432.)

The majority specifically refused to overrule Sorrells and Sherman (p 433) and thought the decision of the Federal District Court of Appeals in this case quite unnecessarily introduced "an unmanageably subjective standard.” (p 435.) In words applicable to the instant case, Justice Rehnquist wrote at pp 435-436:

*41"Sorrells and Sherman both recognize 'that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution’ 287 US, 441; 356 US; at 372. Nor will the mere fact of deceit defeat a prosecution, see, e.g., Lewis v United States 385 US 206, 208-209 [87 S Ct 424; 17 L Ed 2d 312] (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes in to play.”

The Court concluded that defendant was an unwary criminal not an unwary innocent and thus not entrapped.

In the instant case as in Russell, the law enforcement agent was investigating illegal drug related activity. In Russell it was the manufacture and sale of "speed”. In the present case, it was the possession and sale of narcotics.

As stated in the opinion of Justice T. E. Brennan, "[u]nlawful sales are rarely, if ever, intentionally made to persons known to be law enforcement officers. Unlawful sales are rarely, if ever, made except when the confidence of a seller has been gained by the purchaser.”1 Surely, the procedure used by the officer here "is a recognized and permissible means of apprehension”. Russell, p 432. These tactics do not violate long established legal standards. Nor do I see Mr. Turner (after a detailed reading of the transcript) as a "nice guy” betrayed and undeserving of a conviction of possession.

The broad interpretation of the entrapment defense as proposed by the majority opinion could block or interfere further with the efforts of police *42to apprehend and convict persons involved in the narcotics and dangerous drugs traffic.

I cannot condone the one-eyed view which looks only at the police officer. I encourage the use of both eyes, the better to see and judge the total transaction.

Defendant was caught but defendant was not entrapped.

See opinion of Justice Brennan, p 31.