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Docket Number

Docket No. 78-2997.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people. Pitts, Mann Prewitt, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: PEOPLE v EDWARDS (Michigan Court of Appeals, June 18, 1981)

Factual and Procedural Background

Defendant was convicted by a jury of delivery of marijuana (MCL 335.341(1)(c); MSA 18.1070(41)(1)(c) [now MCL 333.7401; MSA 14.15(7401)]) and possession of a firearm in the commission of or attempt to commit a felony (MCL 750.227b; MSA 28.424(2)). The convictions arose after undercover police contact in which Officer Edward Barksdale testified he telephoned defendant (whose number was found in the phone book of an arrested narcotics suspect), asked to buy heroin, was told defendant could obtain marijuana, and agreed to purchase five "bricks" of marijuana for $675. Defendant testified he was contacted by telephone five to seven times, that the officer spoke with defendant's wife, and that the officer promised considerable financial rewards; defendant claimed these facts supported an entrapment defense.

At trial the court rejected the entrapment defense but made no detailed findings of fact on that issue. Defendant appealed, raising (1) that the trial court failed to make findings required by GCR 1963, 517.1 and therefore a remand was required, (2) that the court's entrapment ruling was clearly erroneous, and (3) that there was insufficient evidence of an actual delivery of marijuana. The Michigan Court of Appeals, in a per curiam opinion, considered these claims and affirmed the convictions. Leave to appeal was applied for.

Legal Issues Presented

Whether the trial court's failure to make express findings of fact under GCR 1963, 517.1 required remand for further factfinding.
Whether the trial court clearly erred in rejecting the entrapment defense under Michigan's objective entrapment test (People v Turner).
Whether there was sufficient evidence of an actual delivery of marijuana to support the conviction.

Arguments of the Parties

Appellant's Arguments

Remand was necessary because the trial court failed to make the findings of fact required by GCR 1963, 517.1 when it rejected the entrapment defense.
The entrapment defense should have been accepted because undercover officer conduct included numerous telephone contacts (five to seven calls), contact with defendant's wife, offers to pay a very high price and promises of substantial financial rewards, and suggestions of ongoing weekly dealings—conduct that induced defendant to commit the offense.
There was insufficient evidence that an actual delivery of marijuana occurred.

Appellee's (People's) Arguments

Undercover police work is often necessary in narcotics investigations and the police conduct in this case did not justify entrapment.
Officer Barksdale's testimony that defendant handed him the bag of marijuana constituted sufficient evidence of delivery.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Jackson, 390 Mich. 621; 212 N.W.2d 918 (1973)	GCR 1963, 517.1 applies to criminal proceedings; where trial court fails to comply remand for further factfinding is appropriate, but with a limitation that remand is unnecessary where it is manifest the judge was aware of and resolved the factual issue and further explication would not aid review (e.g., identification).	The court held remand unnecessary under the Jackson limitation because the trial judge stated he had listened to all testimony, passed on credibility, and applied the entrapment test, indicating awareness and resolution of the factual issue.
People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973)	Michigan applies the objective test for entrapment, focusing on police conduct; the key question is whether police conduct would induce or instigate the commission of a crime by one not ready and willing to commit it.	The court applied the Turner objective test to the facts (including defendant's account of repeated calls and promises) and concluded that, even accepting defendant's version, the police conduct did not constitute entrapment.

Court's Reasoning and Analysis

The court first addressed the claim that remand was required under GCR 1963, 517.1 because the trial court did not make explicit findings of fact when rejecting entrapment. Relying on People v Jackson, the court explained that remand is not required where it is manifest the trial judge was aware of and resolved the factual issue and further explication would not facilitate appellate review. The trial judge had stated he decided the matter "after listening to all the testimony and passing upon the credibility of all of the witnesses" and described the relevant test for entrapment (police conduct). Under these statements, the Court of Appeals found the Jackson limitation applicable and remand unnecessary.

On the entrapment issue, the court applied Michigan's objective test as set out in People v Turner (focusing on police conduct and whether it would induce a person not ready and willing to commit the crime). The court recited the facts: the undercover officer obtained defendant's number from an associate's phone book, called asking for heroin, defendant offered marijuana, and an agreement for five "bricks" for $675 was reached. Defendant's testimony described repeated telephone contacts, the officer's communications with defendant's wife, and promises of financial reward. The court concluded that, even accepting defendant's version of events, the police conduct did not meet the Turner standard for entrapment; therefore the trial court did not err in rejecting the defense.

Regarding sufficiency of the evidence of delivery, the court relied on Officer Barksdale's testimony that defendant handed him the bag of marijuana and held that this testimony provided sufficient proof of actual delivery to support the conviction.

Holding and Implications

Affirmed.

Direct effect: The defendant's convictions for delivery of marijuana and for possession of a firearm during the commission of a felony were affirmed by the Michigan Court of Appeals. The court declined to remand for additional findings under GCR 1963, 517.1 and rejected the entrapment defense under the Turner objective test, and found the evidence of delivery sufficient.

No broader legal implications or a new precedent are discussed in the opinion; the decision resolves the parties' claims by affirming the convictions without establishing a new rule beyond applying existing precedent.

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PEOPLE v EDWARDS

PER CURIAM.

Defendant appeals as of right from his convictions by a jury of delivery of marijuana, MCL 335.341(1)(c); MSA 18.1070(41)(1)(c) [now MCL 333.7401; MSA 14.15(7401)], and possession of a firearm in the commission of or attempt to commit a felony, MCL 750.227b; MSA 28.424(2).

Two of the three issues raised in this appeal stem from the trial court's refusal to accept defendant's claim of entrapment. Defendant first argues that the case should be remanded to the trial court for further findings of fact on the entrapment question because the court failed to make any findings of fact, GCR 1963, 517.1. In making its ruling, the court stated that undercover police work is often necessary in narcotics investigations and concluded that the police conduct in the present case did not justify the defense of entrapment. Defense counsel had argued that entrapment was evidenced by testimony that a police officer had telephoned defendant on numerous occasions offering to purchase marijuana despite defendant's original refusal to deal, that the officer offered to pay a very high price, and that defendant was sick and the officer suggested weekly dealings to help him out. The court made no mention of this testimony in rejecting the entrapment defense.

In People v Jackson, 390 Mich. 621; 212 N.W.2d 918 (1973), the Court held that GCR 1963, 517.1 is applicable to criminal proceedings and that where the trial court fails to comply with the rule the appropriate remedy is to remand for further factfinding. However, the following limitation was stated:

"A judge's failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification." Id., 627, fn 3.

Here, the judge indicated that his decision was made "after listening to all the testimony and passing upon the credibility of all of the witnesses", and he stated that the test for entrapment concerns police conduct and whether the actions of the police were so reprehensible that the court should refuse to permit a conviction to stand. Under these circumstances, we find remand unnecessary under the Jackson limitation.

Defendant contends that the trial court's ruling that there was no entrapment was clearly erroneous. The objective test for entrapment is applied in Michigan; it focuses on the conduct of the police, and the key question is whether the police conduct is of the kind which would induce or instigate the commission of a crime by one not ready and willing to commit it. People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973).

The police found defendant's name and telephone number in the phone book of a man they had arrested for a narcotics violation. Undercover police officer Edward Barksdale testified that he telephoned defendant and asked to buy heroin. Defendant responded that he could not get heroin but could obtain marijuana. An agreement was then made for the sale of five "bricks" of marijuana by defendant to the officer for $675.

Defendant testified that he was persuaded to sell marijuana to the officer only after he was contacted by telephone from five to seven times and the officer talked with defendant's wife. Defendant claimed that the officer promised considerable financial rewards.

Even if defendant's version of the facts were true, we cannot say that there was entrapment under the Turner standard. The trial court properly rejected the entrapment defense.

Defendant's final contention is that there was insufficient evidence that an actual delivery of the marijuana occurred. This argument must fail in light of Officer Barksdale's testimony that defendant handed him the bag of marijuana.

Affirmed.

PEOPLE v. EDWARDS