People v. Connolly

591 N.W.2d 340, 232 Mich. App. 425
CourtMichigan Court of Appeals
DecidedFebruary 3, 1999
DocketDocket 203967
StatusPublished
Cited by8 cases

This text of 591 N.W.2d 340 (People v. Connolly) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Connolly, 591 N.W.2d 340, 232 Mich. App. 425 (Mich. Ct. App. 1999).

Opinion

Kelly, J.

The prosecution appeals as of right from orders granting motions by defendants William Connolly and Ross W. Thibaudeau to dismiss the charges against them on the basis of a finding of entrapment. The charges had been conspiracy to possess with intent to deliver marijuana against both defendants. Connolly additionally had been charged with possession of a firearm during the commission of a felony. We reverse and remand.

BACKGROUND

In May of 1996, Officer Corey Williams of the Livonia Police Department arrested Walter Short and his wife. During a subsequent interview, Short informed Williams of certain persons involved in the trafficking of narcotics. Because Short agreed to cooperate with *427 Williams and give him the names of these persons, he was not charged with a crime. Approximately two weeks after the interview, Short contacted Williams and informed him that defendant Thibaudeau was interested in purchasing marijuana.

On June 19, 1996, Williams instructed Short to call Thibaudeau and inform him that Short knew someone who had marijuana to sell. Thibaudeau did not answer the phone. Short left a message that he should contact him about what they had previously talked about. On June 24, 1996, Williams again instructed Short to contact Thibaudeau by telephone. Short told Williams that he would use the word “machines” in place of marijuana during the conversation. Thibaudeau stated that he was interested and wanted to meet with Short to discuss the transaction. On June 26, 1996, Short called Thibaudeau again to confirm the meeting and told him that he would bring a sample of the forty-nine pounds of the marijuana so that Thibaudeau could “shop it around.”

On June 27, 1996, Short called Thibaudeau to tell him that he wanted to bring the sample to Thibaudeau’s home. He agreed, but was not there when Williams and Short arrived at the address. On July 9, 1996, Williams and Short went to Thibaudeau’s home to deliver the sample. Williams let Thibaudeau see the forty-nine pounds of marijuana and cut off a comer of the bale to let Thibaudeau shop it around to potential financiers of the deal. After this meeting, Williams began dealing directly with Thibaudeau.

On July 10, 1996, Thibaudeau paged Williams. Williams returned the page and was informed that *428 Thibaudeau had a friend, Bill, 1 who was interested in the entire forty-nine pounds of marijuana. Later that day, Williams and Thibaudeau met to discuss the terms of the sale. Thibaudeau stated that he needed another sample to show Bill because he had smoked the first sample. In the evening of the same day, Williams and Thibaudeau met at a local restaurant where Williams gave Thibaudeau another sample of the marijuana.

On July 11, 1996, Thibaudeau called Williams to inform him that Connolly was at his home with the money for the transaction. Williams called Short to inform him that he was going to Thibaudeau’s home. Short then went to Thibaudeau’s home to confirm that the money was there. Short called Williams to tell him the deal was in place. The defendants were then arrested by the Livonia police.

At the evidentiary hearing, the trial court concluded that the police conducted a “fishing expedition” with the forty-nine pounds of marijuana. The trial court found that the police manufactured the crime and “aggravated the illegal use of drugs” when Williams gave Thibaudeau two samples of marijuana without exercising control over the narcotics. As a result, the trial court ruled that defendants had been entrapped by reprehensible police conduct that society could not tolerate. The trial court granted defendants’ motions to dismiss.

*429 THE ISSUE OF ENTRAPMENT

The prosecution argues that the trial court erred in concluding that defendants were entrapped because the police conduct in this case was not so reprehensible as to constitute entrapment. We agree. This Court reviews a trial court’s finding concerning entrapment under the “clearly erroneous” standard. People v Williams, 196 Mich App 656, 661; 493 NW2d 507 (1992). The trial court’s findings are clearly erroneous if, after review of the record, this Court is left with a firm conviction that a mistake has been made. People v Launsburry, 217 Mich App 358, 362; 551 NW2d 460 (1996) .

Entrapment is analyzed according to a two-pronged test, with entrapment existing if either prong is met. People v Ealy, 222 Mich App 508, 510; 564 NW2d 168 (1997) . The trial court must consider whether (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. Id. Defendants concede that they were not entrapped under the first prong of the entrapment test, specifically arguing that they were entrapped under the second prong of the test because of reprehensible police conduct.

Under the second prong of the test, entrapment exists where “the police conduct is so reprehensible that we cannot tolerate the conduct and will bar prosecution on the basis of that conduct alone.” Williams, supra at 663. Entrapment could also occur under the second prong of the entrapment test if the furnishing *430 of the opportunity for a target to commit an offense “requires the police to commit certain criminal, dangerous, or immoral acts.” People v Jamieson, 436 Mich 61, 95-96; 461 NW2d 884 (1990) (Cavanagh, J., concurring).

The prosecution is correct in its assertion that undercover drug sales conducted by the police do not constitute entrapment per se. People v Butler, 444 Mich 965, 966 (1994). However, the trial court did not rely on the “reverse buy” situation alone in its findings. The prosecution is also correct in its assertion that People v Butler, 199 Mich App 474; 502 NW2d 333 (1993), was reversed by the Michigan Supreme Court. 444 Mich 965. Yet, the trial court did not state that it was relying on this Court’s decision in Butler, supra, but simply stated that, of the narcotics entrapment cases, the facts in Butler, supra, were the “most closely analogous.”

In the instant case, defendants were not immediately arrested after defendant Thibaudeau received marijuana from Officer Williams. Walter Short, Officer Williams’ informant, offered the sample in one of the telephone conversations between Short and defendant Thibaudeau. In addition, Officer Williams was persuaded to give defendant Thibaudeau a second sample to show to his buyer/money man, defendant Connolly, because defendant Thibaudeau said he had smoked the first one. Defendants alleged, and the trial court agreed, that this type of police conduct of placing controlled substances in the societal stream is highly reprehensible and cannot be tolerated. In Peo *431 pie v Forrest, 159 Mich App 329, 336; 406 NW2d 290 (1987), we noted that

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Bluebook (online)
591 N.W.2d 340, 232 Mich. App. 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-connolly-michctapp-1999.