Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 9, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118351
JESSIE B. JOHNSON,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
This case involves the defense of entrapment. The
circuit court found that defendant was entrapped by the police
and dismissed two charges of possession with intent to deliver
more than 225, but less than 650, grams of cocaine. MCL
333.7401(2)(a)(ii). The Court of Appeals affirmed in a split
decision.1 We conclude that the lower courts clearly erred in
1
Unpublished opinion per curiam, issued December 19, 2000
(Docket No. 219499).
finding that defendant was entrapped under Michigan’s current
entrapment test. People v Juillet, 439 Mich 34, 56-57; 475
NW2d 786 (1991) (opinion by BRICKLEY , J.); People v Jamieson,
436 Mich 61, 80; 461 NW2d 884 (1990) (opinion by BRICKLEY , J.).
Accordingly, we reverse the Court of Appeals decision, reverse
the trial court’s order granting defendant’s motion to dismiss
the charges, and remand to the trial court for further
proceedings consistent with this opinion.
I. Facts and Proceedings
Defendant was a police officer in the city of Pontiac.
He also owned a house in the city of Pontiac that he rented
out as a residence.
Defendant became the subject of a criminal investigation
after one of defendant’s former tenants turned informant and
reported to the Pontiac police department that defendant was
instrumental in operating his rented house as a drug den. The
informant indicated that he sold crack cocaine from
defendant’s house with defendant’s full knowledge and consent.
Further, according to the informant, defendant arranged,
oversaw, and protected the drug-selling operation. In
exchange, defendant received a substantial portion of the
profits from the drug sales.
The Pontiac police called in the state police for
assistance in their investigation of defendant. An undercover
officer from the state police department, Lieutenant Sykes,
2
was introduced by the informant to defendant as a major drug
dealer in Detroit and Mount Clemens who wished to expand his
operations into Pontiac. Defendant agreed to meet with Sykes,
but not pursuant to any police investigation he was conducting
himself. Defendant was propositioned by Sykes to serve as
protection and security from “rip-offs” and police raids for
Sykes’ drug operations, as well as to identify potential
locations for drug dens in Pontiac. Defendant was to be
compensated for his services. Defendant agreed to participate
only after he determined that Sykes was not an undercover
officer known to defendant’s fellow Pontiac officers.
Defendant made no attempt to arrest Sykes or report his
illegal activities for further investigation.
At Sykes’ request, defendant agreed to accompany Sykes to
a mall on February 7, 1992, to assist him in purchasing drugs
from a supplier. The supplier was in reality another
undercover state police officer.
Defendant and Sykes arrived at the mall parking lot in
different vehicles. After some preliminary discussions, Sykes
drove over to the undercover officer to make the staged drug
deal, while defendant walked. Armed with a gun in his pocket,
defendant stood one and a half car lengths from the passenger
side of the second undercover officer’s vehicle. After the
transaction began, Sykes directed defendant to come to the
driver’s side of the undercover officer’s vehicle. Sykes then
3
handed defendant the package of drugs received from the
supplier in the staged drug deal. Defendant took the package
and returned to Sykes’ vehicle and waited for Sykes. At that
time, defendant expressed some confusion regarding the exact
procedures he was to follow, stating that he needed to know
what to do “from A to Z.” Sykes testified, and audiotapes of
the February 7, 1992, drug deal confirm, that Sykes wanted
defendant to take the drugs back to his car, check them,
ensure that the package was correct, and notify Sykes of any
problems. Sykes stated that in order for defendant to
fulfill his duty to protect against “rip-offs,” defendant
would be required to hold and examine the drugs purchased.
Sykes explained that he could not watch the supplier and the
package at the same time. After this conversation, while
defendant and Sykes weighed the cocaine, defendant indicated
that as a result of their discussion he had a better
understanding of what Sykes wanted him to do. Defendant did
not express his unwillingness to perform the duties explained
by Sykes. Sykes then paid defendant $1,000 for his
assistance.
Sometime after this first drug deal, Sykes asked
defendant if he wished to participate in future drug deals and
told him that it was okay if he no longer wanted to
participate. Defendant indicated that he wanted to be
included in future transactions. As a result, a second,
4
similarly staged drug deal occurred on March 4, 1992,
immediately after which defendant was arrested.
Defendant was charged with two counts of possession with
intent to deliver more than 225, but less than 650, grams of
cocaine. Defendant initially entered a Cobbs2 plea with a
visiting judge for two consecutive sentences of five to thirty
years, sentences that were substantially less than the
mandatory statutory minimum of twenty years for each offense.
However, these sentences were reversed as being unsupported by
substantial and compelling reasons required to depart from the
mandatory statutory minimum. 223 Mich App 170, 175; 566 NW2d
28 (1997).
When the case returned to the trial court, defendant
withdrew his guilty pleas and moved to dismiss the charges on
the basis of an entrapment theory. The trial court granted
defendant’s motion to dismiss, reasoning that Sykes had
changed defendant’s duty during the first transaction from one
of protection to one of actual drug possession, thus
entrapping defendant into the drug possessions.
As indicated, the Court of Appeals affirmed in a split
decision. The majority wrote that “[b]ecause many of the
factors indicative of entrapment existed in this case, we hold
that defendant has met his burden of proving that the police
2
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
5
conduct would have induced an otherwise law-abiding person in
similar circumstances as defendant to commit the offenses
charged.” Slip op at 3. It also concluded that “Sykes’
conduct in this case was so reprehensible as to constitute
entrapment.” Id.
The dissenting judge argued that defendant was not
entrapped because “defendant willingly participated in the
proposed criminal enterprise” and the police did nothing more
than provide defendant with an opportunity to commit the
crime. Slip op at 1. Further, the dissenter disagreed with
the majority’s alternative conclusion that Sykes’s conduct was
so reprehensible as to establish entrapment.
This Court initially held plaintiff’s application in
abeyance pending our consideration of People v Maffett, 464
Mich 878; 633 NW2d 339 (2001), in which we ultimately denied
leave to appeal. We then granted leave to appeal in this
case, directing the parties to include among the issues to be
briefed whether this Court should adopt the federal subjective
entrapment test, and invited amicus curiae briefing. 465 Mich
911 (2001).
II. Standard of Review
A trial court’s finding of entrapment is reviewed for
clear error. Jamieson, supra at 80. Clear error exists if
the reviewing court is left with a definite and firm
conviction that a mistake has been made. People v Kurylczyk,
6
443 Mich 289, 303; 505 NW2d 528 (1993) (opinion by GRIFFIN,
J.). A defendant has the burden of establishing by a
preponderance of the evidence that he was entrapped. People
v D’Angelo, 401 Mich 167, 182; 257 NW2d 655 (1977).
III. Analysis
Under the current entrapment test in Michigan, a
defendant is considered entrapped if either (1) the police
engaged in impermissible conduct that would induce a law
abiding person to commit a crime in similar circumstances or
(2) the police engaged in conduct so reprehensible that it
cannot be tolerated. Juillet, supra; People v Ealy, 222 Mich
App 508, 510; 564 NW2d 168 (1997). However, where law
enforcement officials present nothing more than an opportunity
to commit the crime, entrapment does not exist. People v
Butler, 444 Mich 965, 966; 512 NW2d 583 (1994).
A. Inducing Criminal Conduct
When examining whether governmental activity would
impermissibly induce criminal conduct, several factors are
considered: (1) whether there existed appeals to the
defendant’s sympathy as a friend, (2) whether the defendant
had been known to commit the crime with which he was charged,
(3) whether there were any long time lapses between the
investigation and the arrest, (4) whether there existed any
inducements that would make the commission of a crime
unusually attractive to a hypothetical law-abiding citizen,
7
(5) whether there were offers of excessive consideration or
other enticement, (6) whether there was a guarantee that the
acts alleged as crimes were not illegal, (7) whether, and to
what extent, any government pressure existed, (8) whether
there existed sexual favors, (9) whether there were any
threats of arrest, (10) whether there existed any government
procedures that tended to escalate the criminal culpability of
the defendant, (11) whether there was police control over any
informant, and (12) whether the investigation was targeted.
Juillet, supra at 56-57.
In holding that defendant was entrapped, the Court of
Appeals found that defendant had not previously committed the
possession with intent to deliver offenses charged, the
procedures employed by the government escalated defendant’s
conduct to the charged offense, and the offer of consideration
was excessive. On the basis of these three factors, it held
that “[b]ecause many of the factors indicative of entrapment
existed,” the defendant “met his burden of proving that the
police conduct would have induced an otherwise law-abiding
person in similar circumstances as defendant to commit the
offenses charged.” Slip op at 3. We respectfully disagree.
First, while the Court of Appeals noted that defendant
had “merely owned” a crack house and that no evidence existed
that defendant was a drug dealer or even a drug user, it
ignored ample evidence presented that defendant had in fact
8
previously committed the offense of possession with intent to
deliver. To be convicted of the charge of possession with
intent to deliver, the defendant must have knowingly possessed
a controlled substance, intended to deliver that substance to
someone else, and the substance possessed must have actually
been cocaine and defendant must have known it was cocaine.
People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998).
Actual physical possession is unnecessary for a conviction of
possession with intent to deliver; constructive possession
will suffice. People v Konrad, 449 Mich 263, 271; 536 NW2d
517 (1995). Constructive possession exists when the totality
of the circumstances indicates a sufficient nexus between
defendant and the contraband. People v Wolfe, 440 Mich 508,
521; 489 NW2d 748 (1992). Possession is attributed not only
to those who physically possess the drugs, but also to those
who control its disposition. Konrad, supra at 271-272. In
addition, possession may be either joint or exclusive. People
v Hill, 433 Mich 464, 470; 446 NW2d 140 (1989).
Defendant owned a home that he rented to tenants who
operated it as a drug house. Despite being a police officer
in the jurisdiction in which the house was located, defendant
knew and consented to the house being used for drug sales.
Further, defendant provided protection for the operation and
received a portion of the profits from the drug sales,
specifically $200 for each quarter ounce of drugs sold from
9
the house.
The dissent suggests that in determining that defendant
had engaged in drug activities, our opinion “strips the
deference that is due credibility determinations made by lower
courts . . . .” Post at 7. The dissent is mistaken. Our
conclusion that defendant previously possessed cocaine is one
that we make as a matter of law. What the dissent concedes,
that “the record supports the Court of Appeals conclusion that
defendant did nothing more than own a crack house and accept
money to keep silent,” is possession. Post at 4. Further,
unlike the dissent, we do not limit our review of whether the
lower courts clearly erred to the hearing testimony, but
rather review the entire record. While the hearing testimony
arguably lends itself to different conclusions, the audio
tapes admitted into the record do not. While the dissent only
cites an officer’s hearing testimony regarding corroboration,
the undercover audio recordings of defendant’s conversation
undisputedly establish that defendant played a role in the
drug operation:
[Informant]: So I can take the hundred and
invest it or what?
[Defendant]: Alright, man, I’m gonna give you
one more shot.
[Informant]: Okay, dig, the same arrangement,
the two off every quarter?
[Defendant]: Yeah.
10
As far as corroboration of defendant’s past participation
in drug activities, this first taped telephone conversation
between the informant and defendant is clear evidence that
defendant previously received $200 for every quarter ounce of
cocaine sold by the informant at the house and that defendant
wished and agreed to continue this arrangement.
Under these circumstances, it is clear these alleged
previous actions by defendant could serve as the foundation
for a conviction for possession with intent to deliver under
a constructive possession theory. Defendant had a duty to
arrest the informant, yet not only did he permit the informant
to sell drugs, he accepted money to provide protection for the
operation. Without such protection, drugs would not have been
sold from the house. Accordingly, defendant controlled the
disposition of drugs at the house he owned and shared in the
profits in so doing. For these reasons, we find clear error
in the lower court’s deduction that there was insufficient
evidence to surmise that defendant had not previously
committed the offense of possession with intent to deliver
cocaine. Further, we agree with the dissenting judge in the
Court of Appeals that defendant’s prior actions, at the very
least, are sufficient to establish the charge of possession
with intent to deliver cocaine as an aider and abettor. See
People v Sammons, 191 Mich App 351, 371-372; 478 NW2d 901
(1991).
11
Second, contrary to the Court of Appeals majority, we are
not convinced that the procedures employed by the police
escalated defendant’s criminal culpability. The Court of
Appeals majority wrote:
[T]he procedures employed by the police
escalated defendant’s conduct from merely owning a
drug house to possession with intent to deliver
cocaine. Sykes initially “hired” defendant to
protect against arrest and theft and to inform
Sykes of any potential drug raids. At the first
staged drug buy, however, Sykes called defendant
over and handed defendant the package of cocaine.
It was only after the first transaction that
defendant was informed that he was expected to
handle the drugs, check them, and ensure that the
package was “right.” This active involvement was
not contemplated prior to the buy. Sykes’ actions,
therefore, served to escalate defendant’s passive
involvement in the enterprise to active
participation beyond the scope of what defendant
had agreed to beforehand and pressured defendant
into complying with Sykes’ requests in order to
remain a part of the enterprise. [Slip op at 3.]
It is somewhat unclear whether the majority’s escalation
analysis was based on its assessment of defendant’s prior drug
activity at his rental home or its conclusions about
defendant’s expected role in the undercover operation.
However, regardless of what the majority held was escalated,
it clearly erred.
As discussed above, defendant’s previous actions
concerning his drug house operation amounted to possession
with intent to deliver. Both offenses charged as a result of
the undercover operation were possession with intent to
deliver. Therefore, no conduct by the state police in the
12
undercover operation could serve to escalate defendant’s prior
criminal activity. Rather, the government simply provided
defendant with an additional opportunity to commit a crime
that he had previously committed. Presenting nothing more
than an opportunity to commit the crime does not equate with
entrapment. Butler, supra. Because defendant’s previous drug
activity amounted to possession with intent to deliver, the
undercover activity at issue in this case did nothing more
than present defendant with an opportunity to commit that
crime. Accordingly, no escalation occurred.
Similarly, defendant’s culpability was not escalated at
the scene of the first transaction in regard to the role
defendant agreed to play in the undercover drug transaction.
The touchstone of the Court of Appeals opinion in this regard
was that placing the drugs in the hands of defendant at the
scene of the first drug deal was a violation of what defendant
had agreed to do. However, our review of the record leads us
to conclude that touching the drugs should not have come as a
surprise to defendant.3
3
We note that the dissent’s rationale for concluding that
the lower courts correctly concluded that defendant could not
have expected to handle the drugs at the transactions is
based, again, on its limited review of the record. While the
hearing transcript does indeed reflect that all parties agreed
there was no evidence that defendant was informed that he
would have to handle drugs on the February 7th audio tape, no
such agreement was made regarding all the audio tapes
introduced at the hearing. A full review of the taped
recordings, as we provide below, supplies ample evidence that
13
Although the taped recording of the first drug
transaction suggests that defendant was unsure precisely what
he was to do beyond providing “protection,” that confusion was
not based on defendant’s lack of agreement to do more. We
disagree with the dissent’s argument that the defendant’s
confusion about his role on the day of the first transaction
was an absolute indication of defendant’s agreed-upon role in
the entire enterprise. Rather, the record clearly shows that
defendant indicated many days before the first transaction
that he was willing to handle the drugs. Indeed, defendant
was hired by Sykes to protect and secure against arrests,
police raids, and “rip-offs.” While the Court of Appeals
construed “rip-off” as narrowly as possible by equating it
with “theft,” protecting against a “rip-off” would seem to
include ensuring that drug packages received at drug deals
contain actual drugs in the negotiated quantity and quality,
a task that necessarily requires taking possession of the
drugs in order to properly inspect them. A recorded audiotape
of defendant and Sykes discussing their arrangement before the
first staged drug transaction demonstrates that Sykes informed
defendant that he would have to handle the drugs on occasion:
defendant fully understood that his role included handling the
drugs. Contrary to the dissent’s allegation, this is not a
mischaracterization of the record or a failure to give
deference to the trial court’s credibility determinations.
Rather, our conclusion is based on the actual audio recordings
of the investigation that were admitted into the record.
14
Sykes: . . . And probably on occasion, I’m
gonna need your expertise to accompany me to pick
up a package or two, okay. . . . So if, you know,
just run here, run there, pick up some, and we’ll
be straight, okay. That’s, that’s basically all
that you got to do, I’ll run the rest.
Defendant: Okay.4
In addition, defendant’s willingness to participate in
the crimes charged is evidenced by his agreement to
participate in further transactions after he participated in
the first transaction, which included his taking possession of
the drugs. We further note that the second drug transaction
between defendant and the undercover police officers exposes
a consideration that the lower courts appear to have
overlooked during their review. Initial entrapment does not
immunize a defendant from criminal liability for subsequent
transactions that he readily and willingly undertook. See
People v Crawford, 143 Mich App 348, 353; 372 NW2d 550 (1985);
People v Larcinese, 108 Mich App 511, 515; 310 NW2d 49 (1981).
Accordingly, even if the Court of Appeals had been correct in
concluding that defendant was entrapped during the first
transaction, his willingness to participate in the second
transaction, after his duties were more emphatically
explained, would prohibit dismissal of the second charge.
For these reasons, it is apparent that Sykes’ handing the
4
At the very least, this exchange between Sykes and
defendant clearly establishes defendant’s approval to
constructively possess drugs.
15
drugs to defendant for inspection during the first transaction
failed to escalate defendant’s criminal culpability. As a
result, the Court of Appeals clearly erred in concluding
otherwise.
Finally, the Court of Appeals majority clearly erred in
holding that the amount of money offered for defendant’s
services was excessive and unusually attractive. The majority
held that defendant knew that he stood to earn up to $50,000
by participating in the enterprise. The prosecutor suggests
that the record reflects that Sykes stated that Sykes stood to
earn about $50,000. Our review of the record leads us to
conclude that the record does not firmly establish either
interpretation. However, we conclude that, given defendant’s
understanding that he would receive $1000 for each
transaction, the compensation was neither excessive or
unusually attractive. Each transaction involved approximately
ten ounces of cocaine, which had an estimated street value of
$75,000. A $1,000 fee for a transaction involving almost
$75,000, roughly one percent of the street value, is not
excessive. This is especially evident given that defendant
previously earned a $200 profit, or nearly thirty percent of
the street value, for the sale of one quarter ounce of cocaine
at his crack house, which the record reflects had a street
value of approximately $700. Thus, the Court of Appeals
clearly erred in ascertaining that defendant was impermissibly
16
induced because the consideration for his illegal services was
excessive or unusually attractive.
In sum, we have concluded that the Court of Appeals
clearly erred in regard to each of the three factors that
persuaded that Court to conclude that the police engaged in
conduct that would induce a law-abiding person to commit a
crime in similar circumstances. Therefore, because none of
the remaining Juillet factors are at issue, we hold that
defendant failed to establish by a preponderance of the
evidence that the police engaged in conduct that would induce
a law-abiding person to commit a crime in similar
circumstances.
B. Reprehensible Conduct
The Court of Appeals alternatively held that the police
conduct was so reprehensible that, as a matter of public
policy, it could not be tolerated regardless of its
relationship to the crime and therefore constituted
entrapment. The majority based its reasoning primarily on its
escalation analysis, finding that “Sykes waited until the
scene of the staged drug buy to inform defendant that he was
expected to handle the drugs and gave defendant no choice but
to accept the package that was placed in defendant’s hands
. . . .” Slip op at 3. We disagree.
As we discussed above, defendant was hired to protect
against arrests, raids, and “rip-offs.” In light of his
17
alleged familiarity with drug operations, defendant should
have expected that ensuring against “rip-offs” would include,
among other things, examining the drugs for their legitimacy
and holding the drugs to prevent a theft at the scene of the
drug deal. More importantly, as indicated above, the
negotiations between defendant and Sykes before the first
transaction support this understanding.5 Given our conclusion
that defendant had previously committed the offense of
possession with intent to deliver and that he agreed to
provide protection against “rip-offs,” which clearly includes
handling the drugs in order to inspect them, the police did
nothing more than provide defendant with an opportunity to
commit a crime. Such conduct was not reprehensible and does
not establish entrapment. Butler, supra.
For these reasons, we conclude that the Court of Appeals
clearly erred in finding that defendant established by a
preponderance of the evidence that the police conduct in this
case was so reprehensible as to constitute entrapment.
C. The Entrapment Test in Michigan
We originally granted leave to appeal in this case to
5
Further, as the dissenting Court of Appeals judge points
out, defendant himself was a police officer and had a duty to
arrest Sykes. Instead, defendant willingly participated in
the criminal enterprise and even met with Sykes at the Pontiac
police department station before these drug deals in order to
determine whether Sykes was an undercover officer who would be
recognized by defendant’s fellow officers.
18
consider whether the current entrapment test in Michigan, a
modified objective test, is the most appropriate one.
Accordingly, we asked the parties to address whether this
Court should adopt the federal subjective test for entrapment.
Sorrells v United States, 287 US 435; 53 S Ct 210; 77 L Ed 413
(1932). However, because defendant’s case fails to meet even
the current more lenient modified objective test,6 we do not
need to reach that question.
Nevertheless, after review of our entrapment defense law,
we note that Chief Justice CORRIGAN has raised serious
questions regarding the constitutionality of any judicially
created entrapment test in Michigan. Maffett, supra at 878
899 (CORRIGAN , C.J., dissenting). Accordingly, we urge the
Legislature to consider these questions and determine whether
a legislative response is warranted.
IV. Conclusion
The Court of Appeals clearly erred in finding that the
defendant was entrapped by the government under Michigan’s
current entrapment test. The police did not engage in conduct
that would induce a law-abiding person to commit a crime in
similar circumstances; nor was the police conduct in this case
6
The objective test is generally considered to be more
favorable to defendants than the subjective test. See Tawil,
“Ready? Induce. Sting!”: Arguing for the government’s burden
of proving readiness in entrapment cases, 98 Mich L R 2371,
2378 (2000).
19
so reprehensible as to constitute entrapment. Indeed, the
record suggests that defendant had already committed the crime
for which he was charged. Accordingly, we reverse the Court
of Appeals decision, reverse the trial court’s order granting
defendant’s motion to dismiss the charges, and remand to the
trial court for further proceedings consistent with this
opinion.
CORRIGAN , C.J., and TAYLOR and MARKMAN , JJ., concurred with
YOUNG , J.
20
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118351
JESSIE B. JOHNSON,
Defendant-Appellee.
___________________________________
WEAVER, J. (concurring).
I concur in all but part III(C) of the opinion. I do not
join with the Court in hinting that the judicially created
entrapment defense may be unconstitutional, and then referring
that unanswered question to the Legislature.
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118351
JESSIE B. JOHNSON,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (dissenting).
I concur in the majority’s holding that the police
conduct did not entrap defendant into the second transaction.
However, I would conclude that the police conduct did entrap
defendant into the first transaction; therefore, I
respectfully dissent.
The majority’s conclusion that defendant constructively
possessed cocaine and, therefore, was not entrapped into
committing the possession crimes is based on repeated
references to the informant’s claim that defendant “arranged,
oversaw, and protected” the drug sales at the home defendant
owned. See slip op at 2, 9 (“[d]efendant owned a home that he
rented to tenants who operated it as a drug house” and
protected and received money for drugs sold.) Upon review of
the entrapment hearing testimony, I question how the majority
relies on this as support for its conclusion. The informant
did not testify at the entrapment hearing. Rather, the
information that the informant allegedly relayed to the police
came into evidence through the police officer the informant
contacted about defendant. This officer testified as follows:
Q. Now did this [informant] tell you how he
[defendant] was involved?
A. Yes he did.
Q. And would you tell us what it was?
A. He said he was running a dope house.
Q. When you say he, you mean [defendant]?
A. No. [The informant] was running a house
that–[defendant] owned the house and [the
informant] was selling crack out of the house with
[defendant’s] full knowledge and consent and more
or less participation; not in the actual sale, but
in setting it up and providing protection and in
running the operation.
The majority’s focus on this portion of the police
officer’s testimony to support its repeated assertion that
there was sufficient evidence showing defendant was more
involved than the Court of Appeals discussed is misplaced.
The most crucial part of the officer’s testimony, which sheds
light on the Court of Appeals reasoning, is omitted.
Q. Did you ever run across any independent
2
corroboration of [the informant’s] word?
A. I’m sorry?
Q. Independent corroboration meaning was
there any evidence other than [the informant’s]
statements that [defendant] had been involved in
the–this proported [sic] dope house?
A. At that point, no.
Q. At any point?
A. Yes.
Q. And what was that?
A. I checked records on the house that was
pointed out and [defendant] did in fact own that
house; to me that was corroboration.
Q. Well . . .
A. It was–I knew it personally to be a dope
house. However, prior to that point I did not know
that [defendant] owned it.
Q. Okay. I guess what I’m asking is [the
informant’s] story was that [defendant] was–knew
about it and was looking the other way and taking
money, isn’t that it?
A. That’s correct.
The police officer initially stated that the informant
told him defendant set up, ran, and supervised the drug house.
However, when asked what information corroborated what the
informant allegedly said, the officer pointed to only the fact
that defendant owned the home and accepted money to look the
other way. The trial court made its credibility determination
on this testimony that defendant had no other involvement
3
beyond owning the drug house and bribery. Contrary to the
picture the majority paints of defendant’s part in the drug
sales occurring in the home he owned, the record supports the
Court of Appeals conclusion that defendant did nothing more
than own a crack house and accept money to keep silent. Thus,
the majority’s mischaracterization of defendant’s involvement
directly conflicts with this Court’s duty to give deference to
credibility determinations in light of direct testimony
4
supporting them.1
1
The majority faults me for limiting my review to the
hearing testimony from the entrapment hearing instead of the
entire record, which, according to the majority, “supplies
ample evidence” that defendant knew that his role was to
“handle” the drugs. Ante at 14, n 3. Contrary to the
majority’s assertion, I did not limit my review, but extracted
evidence from the entire record that I believe supports the
conclusion that defendant was entrapped into possessing the
drugs in the first transaction (the only transaction for which
I would conclude defendant was entrapped). To satisfy the
majority’s concern, however, the following is an excerpt from
the body recordings of the undercover officer and defendant,
which again proves that the majority’s heavy reliance upon
ambiguous dialog between defendant and the undercover officer
before the February 7 audio tape is suspect. See ante at 15.
Even after the ambiguous discussion, which the majority
quoted, defendant clearly stated that he thought his
involvement was to protect.
[Undercover Officer]: Ah man, alright, alright
look, the reason, the reason I got you there is so
that you there not eight places away. If you eight
places away, you ain’t doing me no good.
[Defendant]: Two cars away.
[Undercover Officer]: That ain’t doing me no
good.
[Defendant]: I heard everything you said.
[Undercover Officer]: What?
[Defendant]: I could hear you talking.
[Undercover Officer]: No, no, I don’t want you
to hear me talk. I want you, I, you got to be
there, that’s why I said ride up in the car with
me. That way I can, if something happens man, I’m
still stuck with the Goddamn package. I want to
pitch it . . . . That’s, that’s what I want.
[Defendant]: Oh, you want me to handle it.
[Undercover Officer]: I don’t want, no, no,
no, no, I, but if you’re in the car, just roll down
(continued...)
5
Moreover, the majority uses its own credibility judgment
to supersede that of the lower courts to conclude that
defendant knew about his duty to handle the drugs before the
first transaction. The majority states, “A recorded audiotape
of defendant and [the undercover officer] discussing their
arrangement before the first staged drug transaction
demonstrates that [the undercover officer] informed defendant
that he would have to handle drugs on occasion . . . .” Slip
op at 14. When faced with the same evidence, the lower court
and the attorneys themselves disagreed with the police witness
and came to the contrary conclusion:
A. [Undercover Officer]: I believe I told
[defendant] that we would–we met with the
individual in which I was to make the purchase
from, he was to take the drugs, check them, ensure
that the package was right, let me know that it was
right, and then we would leave.
1
(...continued)
the window. I can pitch it in there. I ain’t got,
I ain’t holding nothing. That’s what I’m talking
about, see? But you standing way over there, now I
got to hold it and hold it, and hold it, until you
get there because I, I, I can’t check the package
and check him too. Alright. That’s my boy, but
business is business.
[Defendant]: I thought you wanted protection,
that’s what I was under the impression that you
wanted me for. [Emphasis added.]
This conversation took place after the first transaction,
thus revealing that defendant did not know he was to “handle”
the drugs, but only thought he was to protect the undercover
officer before the first transaction.
6
Q. [Defense Counsel]: Now, Lieutenant, I
don’t see that in the transcript of the audio tapes
that was made. Let me hand this to you and maybe
you can show me.
Mr. Martin [Assistant Prosecutor]: Which
transaction are we talking about?
Mr. Szokolay [Defense Counsel]: The transcript
of the recording, body recording made February 7,
1992 [the first transaction].
* * *
The Court: Are you looking for something?
Mr. Szokolay: Yes, your Honor. The witness
told us that he had told [defendant] prior to the
buy that he would be expected to hold the package,
and I asked him to find us where he said that.
The Court: Mr. Martin, can you agree that
maybe it’s not there?
Mr. Martin: Your Honor, I believe the
recording on February 7th doesn’t indicate prior to
the deal that he was informed of that, but on page
five it indicates that he was informed of that
after, that it would be his job to check the
package.
The Court: That would be from the next
transaction.
The Court of Appeals did not clearly err in concluding
that on the basis of this evidence, the defendant was not
informed before the first transaction that he would have to
hold the drugs. Rather, all parties agreed that there was no
evidence on that audio tape suggesting defendant was informed
he would have to handle the drugs prior to the first
transaction.
7
I cannot join a decision that not only mischaracterizes
the facts in favor of a result, but also strips the deference
that is due credibility determinations made by lower courts in
such a way as the majority does today. Accordingly, I would
reverse in part the decision of the Court of Appeals holding
defendant was entrapped into the second possession transaction
and affirm in part the decision of the Court of Appeals
holding defendant was entrapped into the first.
KELLY , J., concurred with CAVANAGH , J.
8
People v. Johnson
Court: Michigan Supreme Court
Date filed: 2002-07-09
Citations: 647 N.W.2d 480, 466 Mich. 491
Copy CitationsCombined Opinion