PEOPLE OF MI V STEVEN C HOROWITZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 8, 2002
Plaintiff-Appellee,
v
No. 228109
Oakland Circuit Court
LC No. 92-118236-FC
STEVEN C. HOROWITZ,
Defendant-Appellant.
Before: Whitbeck, C.J., and Markey and K.F. Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession with intent to deliver 650 or
more grams of cocaine, MCL 333.7401(2)(a)(i), and possession of with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii). He was sentenced to life imprisonment for the cocaine
conviction and one-month probation for the marijuana conviction. He appeals as of right. We
affirm.
I. Basic Facts and Procedural History
Keith Kramer, a drug dealer, was arrested on March 3, 1992, after selling a kilogram of
cocaine to an undercover officer. He was charged with possession and conspiracy to deliver over
650 grams of cocaine, MCL 333.7401(2)(a)(i). Following his arrest, Kramer agreed to work
with law enforcement officials. To that end, Kramer entered into an agreement whereby he
could plead guilty to a reduced charge of possession with intent to deliver between 225 and 650
grams of cocaine, MCL 333.7401(2)(a)(ii) in exchange for his full cooperation and commitment
to truthfully testify at subsequent trials arising from the investigations.1
Before Kramer was arrested, he made arrangements to sell defendant two kilograms of
cocaine. Pursuant to the reduced plea agreement, Kramer contacted law enforcement officials
who determined that they would conduct a reverse-buy in which defendant would purchase two
1
In addition, if Kramer fully cooperated, officers agreed to testify at his sentencing and the
prosecution agreed not to appeal the sentence imposed. Following Kramer’s cooperation in
several investigations, law enforcement agents spoke at his sentencing and he received a
sentence of five years probation. In a separate and unrelated arrangement, he forfeited $334,000
in drug proceeds to law enforcement.
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kilograms of cocaine, supplied by the police, for $42,000. The police then taped a conversation
between Kramer and defendant, in which defendant stated: “I’m waiting to hear from you.
What’s going on.” Kramer set the sale for March 17, 1992. Fully expecting that the transaction
would proceed through completion, the officers obtained an anticipatory search warrant.
On the day of the sale, defendant and an undercover female officer2, went to defendant’s
home. She had a duffel bag containing two kilograms of cocaine. One kilogram was wrapped
with yellow plastic tape and the other was wrapped with silver duct tape. Upon arriving at the
home, defendant appeared to be expecting them and let them into his house. They went into the
master bedroom where the female officer handed defendant the duffle bag in an adjoining
bathroom. In the bathroom was a digital scale and plastic baggies. Defendant opened the duffel
bag, began to remove the cocaine and stated that the kilograms were different from before
because they did not have floaters3 on them. Defendant directed the undercover officer into the
bedroom where he proceeded to pull down a bed comforter revealing five piles of money.
Defendant had the money laid out in stacks of $5,000, except for one pile containing only
$4,700. Defendant told them that a man named Steve, whom he had met before, was coming to
pickup a “good chunk” of the cocaine and that Kramer would get the rest of the money later.
Kramer told defendant that part of the cocaine would be “fronted” to defendant. Defendant
started to weigh and cut the cocaine while the money was being counted. Kramer then put the
money in the duffel bag and he and the undercover officer left defendant’s home. After being
advised that the transaction was completed, the surveillance officers executed the search warrant.
The search team entered defendant’s house immediately. One NET officer was posted
outside of defendant’s house near a balcony. This officer heard members of NET announcing
themselves upon entry and saw defendant come onto the balcony. He focused his flashlight and
weapon at defendant and told him to “freeze.” Defendant, however, looked at the officer, threw
something off of the balcony, and walked back inside. In addition to the two kilograms of
cocaine, the police also confiscated separate baggies of marijuana from defendant’s refrigerator
and from defendant’s vehicle in quantities too great to signify mere personal use. Also recovered
in the search were an orange and white plastic container with snow seals of cocaine discovered
underneath the master bed along with a small baggie containing six snow seals of cocaine in the
pocket of a suit jacket found in the master bedroom. Additionally, police observed a small
plastic baggie containing paper folds of cocaine in one of defendant’s drawers in the bedroom
and a green dairying grinder4. Law enforcement officials also discovered a digital scale in the
bedroom. The officers later detained an individual by the name of Steve, who arrived at
defendant’s residence, carrying $8,000.
The undercover officer returned to defendant’s house approximately 45 minutes later, as
the search warrant was being executed. She observed that one kilogram of the cocaine was still
2
The undercover officer is a member of the Oakland County Narcotics Enforcement Team,
known as “NET.”
3
According to testimony at trial, floatation devices are placed in packages of cocaine for easier
retrieval if the packages have to be thrown into the ocean.
4
Used for the purpose of grinding cocaine and mixing in cutting agents.
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on the bathtub and had not been touched. She observed the wrapper for another one-half
kilogram which was also still in the bathroom. She testified that she saw one-half kilogram of
cocaine on the ground outside of the balcony, one-half kilogram scattered on the ground
surrounding the one-half kilogram and a plastic baggie and another one-quarter kilogram on the
floor wedged in the doorway leading to the balcony.
Defendant was arrested and while out on bond, absconded to Florida. In 1999, law
enforcement officials apprehended defendant and transported him back to Michigan. Defendant
moved to dismiss the charges arguing that he was entrapped and that he was also subjected to
sentence entrapment. After conducting an evidentiary hearing, the trial court denied the motion.
Following a jury trial, defendant was convicted of possession with intent to deliver more than
650 grams of cocaine and possession with intent to deliver marijuana. Defendant appeals as of
right. We affirm.
II. The Defense of Entrapment
A. Overview
Defendant first argues that the trial court erred in denying his entrapment defense. In
analyzing an entrapment defense, Michigan courts apply the objective test, which focuses on the
propriety of the government’s conduct rather than the defendant’s predisposition to commit the
offense. People v Juillet, 439 Mich 34, 53; 475 NW2d 786 (1991); People v Hampton, 237 Mich
App 143, 156; 603 NW2d 270 (1999). A two prong test governs the analysis where a defendant
argues entrapment with entrapment existing with the satisfaction of either prong. People v Ealy,
222 Mich App 508, 510; 564 NW2d 168 (1997). Entrapment occurs when: (1) the police engage
in impermissible conduct that would induce an otherwise law-abiding person to commit a crime
in similar circumstances, or (2) the police engage in conduct so reprehensible that it cannot be
tolerated. Id. The mere furnishing of an opportunity to commit a crime is not entrapment. Id.
In analyzing whether impermissible police conduct exists, the court should consider
actions which would induce criminal conduct, including: (1) appeals to the defendant’s sympathy
as a friend; (2) whether the defendant had been known to commit the crime charged; (3) whether
there was a long time lapse between the investigation and offense; (4) the existence of
inducements that would make the criminal activity unusually attractive to a law-abiding person;
(5) offers of excessive consideration or enticement; (6) guarantees that the acts were not illegal;
(7) the existence and extent of government pressure; (8) the existence of sexual favors; (9)
whether there were threats of arrest by the government agents; (10) the existence of government
procedures that tend to escalate the defendant’s criminal culpability; (11) police control over the
informant; and (12) whether the investigation is targeted or untargeted. People v Williams, 196
Mich App 656, 661-662; 493 NW2d 507 (1992).
As it relates to reprehensible police conduct, this Court explained in People v Fabiano,
192 Mich App 523, 532; 482 NW2d 467 (1992): “there is certain conduct by government that a
civilized society simply will not tolerate, and the basic fairness that due process requires
precludes continuation of the prosecution where the police have gone beyond the limit of
acceptable conduct in ensnaring the defendant, without regard to causation.” Moreover,
“[e]ntrapment could also occur under the second prong of the entrapment test if the furnishing of
the opportunity for a target to commit an offense ‘requires the police to commit certain criminal,
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dangerous, or immoral acts.’” People v Connolly, 232 Mich App 425, 429-430; 591 NW2d 340
(1998). (Citation omitted.)
B. Standard of Review
A trial court's decision on a motion to dismiss is reviewed for an abuse of discretion.
People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). A trial court's factual findings
concerning entrapment are reviewed under the “clearly erroneous” standard. Juillet, supra at 61;
Connolly, supra at 429. 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. Id.
C. Analysis
In the case at bar, we agree with the trial court's determination that the reverse-buy
operation conducted by law enforcement officials in this case did not constitute entrapment.
This Court has previously held that undercover drug sale operations conducted by government
officials are not indicative of entrapment per se. People v Jamieson, 436 Mich 61, 83; 461
NW2d 884 (1990).
Upon careful review of the record, we cannot discern anything in the government’s
conduct that reeks of entrapment. Indeed, the trial court properly rejected defendant’s claim that
he was entrapped because he was not a known drug trafficker and not the target of any
investigation. There was evidence presented at the evidentiary hearing that defendant had
purchased cocaine from the informant on several prior occasions and that defendant had
contacted the informant to purchase two kilograms of cocaine before the informant was arrested.
In fact, the informant testified that over the course of the parties’ two-year relationship, he had
sold defendant approximately fifteen kilograms of cocaine, primarily in one-kilogram quantities.
Defendant admitted that he had previously purchased cocaine from the informant, although he
maintained that the largest amount ever purchased was 500 grams, which he in turn sold in
smaller quantities. As such, there was an indication in the record that the police had knowledge
that defendant was involved in drug trafficking.
We also reject defendant’s claim that he was entrapped because the arranged deal of two
kilograms for the price of $42,000 was unusually attractive. A narcotics officer testified at the
hearing that $42,000 for two kilograms of cocaine was an average or reasonable price at the time
of the transaction. In addition, the informant indicated that he had previously sold defendant one
kilogram of cocaine for $21,000. Further, contrary to defendant’s claim, the fact that he paid
only $29,700 of the total price at the time of the transaction does not indicate that he was
entrapped. There was testimony that the “fronting” of drugs was normal in the drug trafficking
business.
Defendant also alleges that sentence entrapment occurred because even if he were
predisposed to commit a minor or lesser offense, he was entrapped into committing a greater
offense subject to greater punishment. See Early, supra at 510. However, there is no evidence
that the conduct of law enforcement officials was reprehensible or unlawful, or otherwise
induced or pressured defendant into purchasing the drugs. Law enforcement officials did
nothing more than present defendant with an opportunity to purchase the drugs. Moreover, a
narcotics officer testified that Kramer’s plea agreement was not contingent upon his arranging to
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sell defendant over 650 grams of cocaine but rather, turned on his cooperation with law
enforcement. We find no error in the trial court's conclusion that defendant was not entrapped
into committing a greater offense subject to a more severe punishment. In sum, the trial court
did not err in rejecting the defense of entrapment and thus, properly denied defendant’s motion to
dismiss.5
III. Jury Instruction
Next, defendant argues that the trial court erred by denying his request to instruct the jury
on attempt to possess over 650 grams of cocaine. Again, we disagree. This Court reviews jury
instructions in their entirety to determine whether the trial court committed error requiring
reversal. People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997).
Pursuant to MCL 768.32(2), as amended by 1978 PA 77, for a defendant charged with
certain drug offenses, i.e. MCL 333.7403(2)(a)(i) or (ii), a jury can be instructed on a lesserincluded offense only if the lesser included offense is a “major controlled substance offense.”
People v Gridiron (On Rehearing), 190 Mich App 366, 367-368; 475 NW2d 879 (1991),
amended 439 Mich 880 (1991). MCL 761.2 defines a “major controlled substance offense” as
being a violation of MCL 333.7401(2)(a), a violation of MCL 333.7403(2)(a)(i)-(iv), or
conspiracy to commit either offense. See People v Fetterley, 229 Mich App 511, 526-527; 583
NW2d 199 (1998).
In the instant case, because defendant was originally charged under MCL
333.7401(2)(a)(i), the above statutory provision is applicable and therefore, the trial court could
not properly instruct on attempt, MCL 750.92, because it is not a major controlled substance
offense. We further note that even if MCL 768.32(2) did not control this case, the trial court did
not err in denying defendant’s request for an attempt instruction.
Attempt is a cognate offense, People v Adams, 416 Mich 53, 57; 330 NW2d 634 (1982),
and is a separate, substantive offense punishable under its own statute. People v Johnson, 195
Mich App 571, 575; 491 NW2d 622 (1992). The trial court is required to give an instruction for
a cognate lesser included offense if the evidence presented would support a conviction of the
lesser offense. People v Moore, 189 Mich App 315, 319; 472 NW2d 1 (1991). MCL 750.92
specifies the punishment for the crime of attempt and provides:
Any person who shall attempt to commit an offense prohibited by law, and
in such attempt shall do any act towards the commission of such offense, but shall
fail in the perpetration, or shall be intercepted or prevented in the execution of
the same, when no express provision is made by law for the punishment of such
attempt, shall be punished as follows: . . . . (Emphasis added.)
The evidence here did not support an instruction for mere attempt to possess the cocaine.
Possession of a controlled substance occurs when a defendant knowingly has the power and
5
We also note that contrary to defendant’s suggestion, law enforcement’s immediate execution
of the search warrant and confiscation of the drugs was not improper, given their desire to ensure
that the cocaine was not placed into the mainstream. See Connelly, supra at 432.
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intention to exercise dominion or control over the drugs, either directly or through another
person. See People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995); People v Sammons,
191 Mich App 351, 371; 478 NW2d 901 (1991). Possession may be actual or constructive and
may be joint as well as exclusive. People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992). In this case, the evidence showed that when the
undercover officer and the informant entered defendant’s home, defendant was given the cocaine
and tendered $29,700 for it. Defendant immediately began cutting and weighing the cocaine.
When the transaction ended, the undercover officer and the informant vacated defendant’s
premises and left the cocaine with defendant. Law enforcement officers immediately executed
the search warrant. When the officers entered defendant’s home, defendant had already broken
down one kilogram of the cocaine. Defendant also threw a portion of the cocaine off of his
balcony. As such, there was no evidence that defendant merely attempted to possess the cocaine
but failed, or was prevented or unable to do so. Thus, even if MCL 768.32(2) did not apply,
defendant would still not have been entitled to an attempt instruction.
IV. Motion for Mistrial
Defendant’s final claim is that he was denied a fair trial because a prosecution police
witness improperly vouched for the informant’s credibility. We do not agree. During the trial,
Detective Reis testified that Kramer “put his life in peril” while working with police and that he
was satisfied with the sentence Kramer received. Reis testified that because of Kramer’s
cooperation and after he consulted with other agencies, including the FBI and DEA, regarding
Kramer’s cooperation with them, he spoke at Kramer’s sentencing. Defendant objected to this
testimony and subsequently moved for a mistrial which the trial court denied.
This Court reviews a lower court’s decision regarding a motion for a mistrial for an abuse
of discretion. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). “A mistrial
should be granted only for an irregularity that is prejudicial to the rights of the defendant and
impairs his ability to get a fair trial.” Id. (Citations omitted.)
Our review of the record reveals that defendant was not denied his right to a fair trial
because of the prosecutor’s question and the police witness’ response. A prosecutor may not
vouch for the credibility of a witness by conveying that he has some special knowledge that the
witness is testifying truthfully. People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995).
However, reading the challenged question and answer in context, they were responsive to issues
raised by defense counsel during voir dire and opening statement regarding the extent of the
consideration granted to the informant for his cooperation. See People v Duncan, 402 Mich 1,
16; 260 NW2d 58 (1977); People v Kennebrew, 220 Mich App 601, 608; 560 NW 2d 354
(1996). Accordingly, the trial court did not abuse its discretion in denying defendant’s motion
for a mistrial.
Affirmed.
/s/ William C. Whitbeck
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
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