People v. Asher

240 N.W.2d 749, 67 Mich. App. 174, 1976 Mich. App. LEXIS 1167

• Court: Michigan Court of Appeals
• Decided: February 9, 1976
• Docket: Docket 20898
• Status: Published

Opinions

T. M. Burns, J.

Defendant was charged with delivery of a controlled substance (cocaine) contrary to MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). At an evidentiary hearing, the trial court found that defendant had been entrapped into committing the offense and dismissed the case.

At the hearing, Mark Parin, an undercover narcotics officer assigned to the Michigan State Police, testified that on October 17, 1973, he was instructed to attempt to purchase cocaine from defendant. Officer Parin contacted a Kevin Wyatt, an acquaintance of defendant’s, and Wyatt directed Parin to defendant’s residence. Parin informed defendant that he desired to purchase $60 worth of cocaine. Parin then drove defendant and Wyatt to the City of Westland. Parin gave defendant $60, defendant left the automobile, walked out of sight of Parin and returned a few minutes later, handing Parin a newspaper packet containing a white powdery substance.

On October 22, 1973, Parin telephoned defendant and asked him to purchase more cocaine for him. Defendant called Parin back a few minutes later and told him he could not help him because his "contact” was not at home.

On October 24, 1973, Parin again contacted defendant, requesting that defendant obtain cocaine for him, this time asking for a quarter of an ounce of the substance. Defendant agreed, told Parin he would need $350, and directed the officer to pick him up. Parin met defendant and drove him to a street address in the City of Wayne. Parin waited in the car while defendant entered the house. Defendant returned a few minutes later, and directed Parin to follow him into the house, where defendant took the $350, walked out of sight of the officer, and returned shortly with a newspaper packet containing a white powdery substance.

Subsequently, Parin attempted several times to contact defendant. In November of 1973, Parin telephoned defendant and requested another quarter ounce of cocaine. Defendant advised the officer that he would check with his contact. Defendant called Parin back and informed him that his contact was making a drug purchase that afternoon and that they would be able to make a purchase after that. That afternoon, Parin went to defendant’s house and defendant informed him that his contact was unable to sell the narcotics at that time. Defendant then indicated that they could make the purchase from another friend who lived in Detroit. Parin declined.

At the evidentiary hearing, Kevin Wyatt testified that at one time he had lived in the same apartment complex as defendant. Wyatt was arrested by the City of Wayne police in October of 1973, for armed robbery. The police at that time indicated to Wyatt that they wanted to get information against the defendant and that they (the police) might be able to help Wyatt if he cooperated. Wyatt agreed to set up the meeting between defendant and officer Parin.

Both Wyatt and a social worker who had worked with defendant testified that defendant was a heavy alcohol drinker and user of Valium.

Defendant testified that when approached by Wyatt about obtaining cocaine for Parin, he at first declined but when Wyatt offered to give defendant some Valium, he agreed. Defendant also testified that he did not obtain narcotics for anyone else during the period involved in this case- and that he did not profit from the drug sales, doing it only for the Valium.

Based upon these facts, the trial court ruled that, under the objective test of entrapment, defendant as a matter of law had been entrapped into procuring the cocaine for the police officer. Properly examining the conduct of the police in instigating the offense rather than defendant’s predisposition to commit it, the court’s basis for the decision was:

1. That the government induced Wyatt, who was incarcerated and facing trial on an armed robbery charge, to cooperate with the police in obtaining cocaine from defendant.

2. That the defendant was initially unwilling to assist in obtaining the narcotic.

3. That defendant’s resistance was weakened in part by the prospect of obtaining Valium from Wyatt.

4. That such inducement was improper and attributable to the police because of Wyatt’s assistance.

5. That the offense was accomplished by defendant’s being driven long distances by a police agent.

The trial court concluded, albeit reluctantly, that these facts, when applied to the objective test of entrapment, amounted to improper police conduct in instigating or creating the offense with which defendant was charged.

In applying the objective test of entrapment, the focus is on the conduct of the police. Regardless of the predisposition of the defendant to commit the offense, if the police acted in such a way as to instigate or manufacture the offense, entrapment exists. People v Henley, 54 Mich App 463; 221 NW2d 218 (1974), People v Turner, 390 Mich 7; 210 NW2d 336 (1973). This was the test applied by the trial court in the instant case. The trial judge heard the testimony of the witnesses and applied the proper test of entrapment. We find no error. Entrapment is a question for the trial court to decide. People v Habel, 53 Mich App 399; 220 NW2d 74 (1974).

Affirmed.

Bronson, J., concurred.