People v. Wisneski

V. J. Brennan, P.J.

Defendant was charged with the unlawful delivery on April 28, 1979, of a controlled substance, Preludin, in violation of MCL 333.7401(1); MSA 14.15(7401)(1). Following a Turner1 hearing, the trial court denied defendant’s motion for a determination of entrapment, finding *302no 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 *303the 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 NW2d 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 NW2d 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, 22.

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 NW2d 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:

"Patient wants 'speed’ to sell — told her no way. Discouraged return for any type of prescription needs in future. She has made appointment to see Dr. Dickson in our building for today. Made offer of $50 for 15 speed.”

*304At 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 NW2d 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, 22. 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, 166, 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 involve*305ment, People v Duis, 81 Mich App 698; 265 NW2d 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 Irma Perry, 75 Mich App 121; 254 NW2d 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 NW2d 218 (1974), People v Ramon, 86 Mich App 113; 272 NW2d 124 (1978).

Reversed and defendant discharged.

Beasley, J. concurred.

People v Turner, 390 Mich 7; 210 NW2d 336 (1973).