PEOPLE OF MI V WILLIAM C MCGEE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 31, 2001
9:20 a.m.
Plaintiff-Appellee,
v
No. 215576
Oakland Circuit Court
LC No. 98-159206-FH
98-159207-FH
98-159213-FH
98-159214-FH
Updated Copy
November 9, 2001
WILLIAM C. MCGEE,
Defendant-Appellant.
Before: Doctoroff, P.J., and Holbrook, Jr., and Hoekstra, JJ.
DOCTOROFF, P.J.
Defendant appeals as of right his convictions on two counts of delivery of less than fifty
grams of cocaine, MCL 333.7401(2)(a)(iv), one count of delivery of an imitation controlled
substance, MCL 333.7341(3), and one count of delivery of fifty grams or more but less than 225
grams of cocaine, MCL 333.7401(2)(a)(iii). Defendant claims that, among other assertions of
error, the trial court erred in deciding to reinstate the jury's verdict after declaring sua sponte a
mistrial. We agree and reverse and remand for proceedings consistent with this opinion.
I
In March 1998, the Pontiac police arrested defendant following four incidents in which
defendant allegedly sold cocaine or an imitation controlled substance to undercover police
officers. Defendant was tried before a jury on September 29 and October 1, 1998. After reading
the jury instructions, the court randomly selected one of the remaining thirteen jurors1 to become
the alternate and excused that juror. After the jury returned with a verdict and the foreperson
read the verdict in court, defense counsel asked that the jury be polled. During the polling, the
trial court realized that there were thirteen jurors present and, upon questioning, discovered that
the juror who was excused had been in the jury room during deliberations. When asked why she
1
When the trial began, there were fourteen jurors. One juror was excused for medical reasons on
the second day of trial.
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entered the jury room, the excused juror replied "I was not instructed to do anything different."
The court did not further question the juror.
The court and the parties then engaged in an off-the-record conference at the bench.
Immediately following this bench conference, the court dismissed the jury and declared a
mistrial, stating:
I just knew this wasn't going to be a good day. We have a mistrial.
Mr. McGee, there were thirteen jurors who voted for your guilt, as
opposed to twelve, and that is why we have a mistrial, because someone couldn't
count when they were sending the jury into the jury room. But that's okay. We'll
try this again, starting tomorrow.
At this point, defendant did not object to either the court's declaration of a mistrial sua sponte or
its decision that the case would be retried.
When the parties returned on October 2, 1998, the court announced that it did not believe
the case would need to be retried and that, instead, the jurors could be brought back in and
repolled and the verdict could be reinstated. The court noted that the bench conference
conducted after discovery of the thirteenth juror was not on the record and asked the parties what
their recollection was of the discussion. Both the prosecutor and defense counsel stated that they
believed that they did not respond either affirmatively or negatively to the court's indication that
it would declare a mistrial. 2
2
The pertinent section of the record was as follows:
The Court. Do you recall what you said? Do you recall what [defense
counsel] said?
Prosecutor. I don't believe that we responded, Judge.
* * *
Prosecutor. I was shocked, and to be honest, Judge, I wasn't sure of the
law on it, so I didn't know. I trusted the Court's rulings. I didn't object nor did I
affirm.
The Court. And [defense counsel]?
Defense counsel. That's my recollection. I know I didn't affirm respond
affirmatively. When the Court said we have a mistrial, I think I did this, a slight
nod, acquiescing in the Court's statement.
(continued…)
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The court then informed the parties that on the basis of its research, it believed that a
mistrial was not necessary where there is an extra juror and that it should either recall the jurors
to complete the polling and reinstate the verdict or proceed to a retrial. Defendant argued that
reinstating the verdict was not possible because the declaration of a mistrial rendered nugatory all
trial proceedings, citing People v Hamm, 100 Mich App 429; 298 NW2d 896 (1980). The court
concluded that because the verdict was rendered, this case was distinguishable from Hamm.
When defendant countered that no verdict was rendered because the polling was not completed,
the court stated that "[t]he verdict was rendered when (a) we have a marked verdict sheet and (b)
when the . . . foreman indicates that that is the verdict of the jury. The polling is simply a
verification." Defendant also moved for a dismissal of the charges, arguing that a retrial after a
mistrial is possible only where the mistrial was a manifest necessity, and no such manifest
necessity existed in this case. However, the court found that defendant acquiesced in the mistrial
and, even if no manifest necessity existed, double jeopardy would not be a problem here where
no retrial would take place.
On October 9, 1998, the court recalled the jurors by subpoena to complete the polling.
Before starting the polling, the court noted that "[w]e do have in the court file, the signature of
the foreman on the guilty verdict form which he handed to us on the day . . . the jury rendered
their verdict." During the polling, the court verified that the signature on the verdict form was
that of the jury foreman and that he signed it at the time the verdict was rendered. The court also
questioned the excused juror regarding her involvement in the jury's deliberations:
Q. [Juror 13], you went into the jury room. Did you participate?
A. No
Q. Did you speak?
A. I asked for water and coffee, and I made coffee.
(…continued)
The Court. There was a nod? You didn't protest?
Defense counsel. No, I did not.
The Court. All right. That's accurate so that we now have that on the
record?
Defense counsel. To the best of my recollection.
Prosecutor. Right.
The Court. That's the best of your recollection?
Prosecutor. Yes, Judge.
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Q. You asked for coffee and water. Did you participate at all in the deliberations?
A. No.
Q. All you did was listen quietly?
A. Um hum.
Q. Didn't vote, didn't talk, just sat and made coffee?
A. I made coffee, yes.
During this hearing, defendant renewed his motion for dismissal on the ground of double
jeopardy. In denying defendant's motion for dismissal, the court stated:
Again, in a discussion at the bench, we made a subsequent record
indicating that there was, the shock of the moment of seeing 13 jurors which in
my career I have never seen, and I've been a judge for 20 years.
We did not complete the polling process. But, the foreman had in fact
signed the Jury Verdict form and handed it to my clerk. [T]he foreman did in fact
render the verdict of the jury.
And we have now completed or will complete the polling process . . . .
And the 13th juror who did make a record today indicated that she did not take
part in any discussion. So that there was no mistrial.
And the court speaks through its written orders. There is no written Order
of mistrial. Therefore, the verdict would in fact be reinstated, and any record
would of course then go up to the Court of Appeals. So, the question of jeopardy
is not before this court because I don't believe that we have a mistrial.
There was no written Order of mistrial. And the verdict will be reinstated
based upon the fact that all of this was done prior to that. The cases, I believe that
[defense counsel] cite[s] . . . refer to mistrial during that [sic] occurred during the
proceedings and not after a jury has rendered their verdict.
And second of all, I believe that the acquiescence would in fact [sic] that
was sort of a joint decision at the bench off the top of our heads which has been
recalled prior to the entry of a formal Judgment. And therefore since there was no
written Judgment of mistrial, this court is free to reinstate and we are taking our
poll. And there is a verdict of guilty. So the question of jeopardy is irrelevant at
this time.
After completing the polling, the court accepted the verdict and noted that the jury found
defendant guilty on all four counts.
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II
Defendant asserts several errors that he claims warrant reversal of his convictions;
however, the key question appears to be whether the trial court abused its discretion by first
declaring a mistrial and then revoking the declaration of a mistrial and reinstating the jury's
verdict. To facilitate our review of this alleged erroneous sequence of events, we analyze
individually the trial court's four primary decisions in this regard: (a) the declaration of a mistrial
sua sponte, (b) the revocation of the declaration of the mistrial, (c) the recalling and repolling of
the jurors, and (d) the reinstatement of the verdict.
A
We first address whether the trial court erred in declaring a mistrial. A trial court should
refrain from declaring a mistrial unless "'a scrupulous exercise of judicial discretion leads to the
conclusion that the ends of public justice would not be served by a continuation of the
proceedings.'" People v Hicks, 447 Mich 819, 829; 528 NW2d 136 (1994), quoting United States
v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971). Therefore, we review the trial
court's determination on this issue for an abuse of discretion. People v Blackburn, 94 Mich App
711, 714; 290 NW2d 61 (1980).
It appears that the trial court in this case concluded that defendant consented to, or at least
acquiesced in, the court's declaration of a mistrial. This conclusion apparently was based on
defense counsel's response to the court's inquiry regarding what was said during the bench
conference that followed the discovery of the thirteenth juror. According to defense counsel's
recollection of the discussion, which was confirmed by the prosecutor, he neither objected to nor
agreed with the court's conclusion that a mistrial was warranted. Contrary to the trial court's
conclusion, a criminal defendant's silence in the face of the court's declaration of a mistrial
cannot be construed as consent. People v Johnson, 396 Mich 424, 432-433; 240 NW2d 729
(1976), repudiated on other grounds in People v New, 427 Mich 482, 488-490; 398 NW2d 358
(1986). Here, there was no evidence on the record that defendant or his counsel explicitly
indicated consent to the mistrial, and we will not presume consent in the absence of an
affirmative showing. Johnson, supra at 433.
Because defendant did not consent to the declaration of a mistrial, the court's decision to
declare a mistrial may be justified only by a finding of manifest necessity. Manifest necessity
may be found where there are sufficiently compelling circumstances that would deprive the
defendant of a fair trial or make its completion impossible. People v Echavarria, 233 Mich App
356, 363; 592 NW2d 737 (1999). Whether manifest necessity exists depends on the facts of each
particular case and requires the trial court to balance the justification for the mistrial against the
defendant's interest in completing the trial in a single proceeding before a particular tribunal.
Hicks, supra at 829. Before declaring a mistrial, a trial court should conduct a hearing on the
record and make explicit findings that no reasonable alternative exists. People v Little, 180 Mich
App 19, 29; 446 NW2d 566 (1989); Hicks, supra at 841. "Any doubts concerning the existence
of manifest necessity should be resolved in favor of the defendant." Id. at 830.
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In this case, it is apparent that at the time the court learned of the thirteenth juror, no
manifest necessity existed that would require the trial court to declare a mistrial. The mere
presence of the alternate juror during deliberations was not, in and of itself, a compelling
circumstance that would deprive the defendant of a fair trial. United States v Olano, 507 US 725,
737; 113 S Ct 1770; 123 L Ed 2d 508 (1993). Had the verdict been rendered by thirteen jurors, it
is possible that the trial court would have been able to find manifest necessity justifying a
mistrial. See People v Sizemore, 69 Mich App 672, 679; 245 NW2d 159 (1976). However, the
court failed to conduct a hearing to determine whether the alternate juror participated in the
deliberations, or to even enter findings on the record that no reasonable alternative existed and
the circumstances warranted the declaration of a mistrial. Further, it is evident from the alternate
juror's subsequent account of her role, or lack thereof, in the jury deliberations that a hearing
would not have indicated the presence of manifest necessity.
Because the discovery of a thirteenth juror without a specific showing of prejudice to
defendant did not constitute manifest necessity sufficient to justify a mistrial, the court's initial
decision to declare a mistrial was an abuse of discretion.
B
Although the trial court abused its discretion in declaring a mistrial, the court attempted
to correct this apparent error by reconsidering the matter and reversing its decision on the
following day. However, this raises the question whether the trial court was acting within its
discretion and authority when it revoked the declaration of a mistrial. Apparently, this is an issue
of first impression for this Court. As stated previously, the authority to declare a mistrial is
within the trial court's discretion. Blackburn, supra at 714. Presumably, the revocation of a
declaration of a mistrial would also be a discretionary decision; however, there is no authority
confirming this conclusion. We find that the court rules provide guidance on this issue.
Regarding substantive mistakes in criminal cases, a trial court may "reconsider and modify,
correct, or rescind any order it concludes was erroneous" provided that it has not yet entered a
judgment. MCR 6.435(B); People v Jones, 203 Mich App 74, 80; 512 NW2d 26 (1993).
Pursuant to the permissive language of this court rule, we conclude that a trial court's decision to
reverse its previous declaration of a mistrial should be reviewed for an abuse of discretion.
Here, we find no abuse of discretion in the court's determination that the mistrial was
erroneously declared and its subsequent revocation of the mistrial because the decision was
neither "so grossly violative of fact and logic that it evidence[d] perversity of will, defiance of
judgment, [or] the exercise of passion or bias," nor was the decision without justification. People
v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). As we stated above, the initial
decision to declare a mistrial was error. Therefore, the trial court properly exercised its
discretion to correct this error when it vacated its declaration of a mistrial. Further, because no
judgment had been entered in the case, the trial court was within its discretion to rescind the
erroneous ruling. MCR 6.435(B).
We note that we have held that the declaration of a mistrial renders nugatory all trial
proceedings with the same result as if there had been no trial. Hamm, supra at 435. This holding
would seem to dictate that once the trial court declared a mistrial, the court no longer had
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jurisdiction to vacate the order declaring a mistrial. However, the issue in Hamm was whether
the defendant's waiver of a jury trial in the first proceeding where the court declared a mistrial
would operate to prevent the defendant from demanding a jury in the retrial. Id. at 433. In
essence, in Hamm we were considering the effect of the declaration of a mistrial on the
proceedings that occurred before the declaration of a mistrial, whereas in this case, we are
considering whether the declaration of a mistrial precludes the trial court from subsequently
reconsidering and vacating that decision. Clearly, the holding in Hamm does not contradict our
conclusion that the trial court was authorized by MCR 6.435(B) to revisit its decision to declare a
mistrial.
Although Michigan courts have yet to determine whether a trial court can revoke a
declaration of a mistrial, other jurisdictions have addressed this issue, holding that after the
declaration of a mistrial a trial court retains the authority to withdraw or rescind the order
declaring the mistrial and to correct or modify its orders. See Rodriguez v State, 852 SW2d 516,
519-520 (Tex Crim App, 1993); People v Dawkins, 82 NY2d 226, 230-231; 624 NE2d 162
(1993). We find these cases persuasive and supportive of our determination that the revocation
of the mistrial in this case was justified. Therefore, we conclude that the trial court was not
prevented from correcting an erroneous declaration of a mistrial, and, in fact, was well within its
discretion to do so.
C
The trial court was acting within its discretion in revoking its declaration of a mistrial;
however, we do not agree that the court had the authority to recall the jury and continue the
polling. Once a jury is discharged, it is error to recall it in order to alter, amend, or impeach a
verdict in a criminal case. People v Rushin, 37 Mich App 391, 398; 194 NW2d 718 (1971). In
Rushin, we explained the policy reasons that prevent a trial court from recalling discharged
jurors:
As soon as it departs from the courtroom, the jury's legal duties cease to
exist; it no longer functions as a unit charged to perform a solemn task but rather
as 12 unsworn members of the community; its relationship to the case has
terminated. The Court cannot ascertain the influence to which the jury has been
subjected after it has left the courtroom, be it for two minutes or two days. Thus,
the jurors are proscribed from deliberating further in the case.
To rule that a jury could be recalled after being discharged and leaving the
courtroom would not only offend the policies underlying the double jeopardy
clause, but would also serve as an invitation to tamper with the jury after it had
completed its deliberations. [Id. at 398-399.]
Here, the court discharged the jury immediately after declaring the mistrial and before the
polling was completed. Once it dismissed the jury, the court was without discretion or authority
to recall the jury to complete the polling process. Although the argument could be made in this
case that the court was not attempting to alter, amend, or impeach the verdict, any one of those
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results was certainly possible in this case because the polling had not been completed and the
jurors were free to recant the verdict during the polling. See Wayne Co Prosecuting Attorney v
Detroit Recorder's Court Judge, 64 Mich App 408, 410; 235 NW2d 799 (1975); People v Fleish,
306 Mich 8, 14; 9 NW2d 905 (1943). It is apparent that the dismissal of the jury, even after the
verdict has been announced by the foreperson, serves to extinguish the jury's sworn duty in the
case and precludes the court from revisiting the jury's verdict. We conclude that, as a matter of
law and public policy, the trial court erred in recalling the jurors to complete the polling process.
D
Finally, we consider whether the trial court erred in "reinstating" the jury's verdict. After
careful consideration of the facts of this case and the controlling law, we conclude that this
decision was also in error because there was no valid verdict to reinstate.
MCR 6.420 establishes the procedure for acceptance of verdicts in criminal cases. The
rule first requires that the jury return the verdict in open court. MCR 6.420(A). It appears that
occurred here when the foreman stated the jury's verdict on the record. However, before the jury
is discharged, the court is also required to poll the jury if a party requests the polling. MCR
6.420(C). In this case, the defendant requested that the jury be polled, thereby obligating the
court to poll the jurors before discharging them. A verdict is not final until it is announced in
open court, assented to by the jury, and accepted by the trial court. 75b Am Jur 2d, Trial, § 1761.
See also People v Sanders, 58 Mich App 512, 516-517; 228 NW2d 439 (1975).
Because the trial court in this case did not complete the polling process, the verdict was
not assented to by the jury, the court did not comply with the proper verdict procedure, and the
verdict cannot be considered final. As we stated in People v McNary, 43 Mich App 134; 203
NW2d 919 (1972), rev'd in part on other grounds 388 Mich 799 (1972):
A jury verdict is not merely the first sentence uttered by the foreman when
asked for the verdict. Often the verdict will have to be clarified and interpreted by
either the judge or the jury until it specifically identifies a known crime. The
judge has a right to clarify the form of the verdict if the jury has not been
discharged; and the jury can always change the form and the substance of the
verdict to coincide with its intention, before it is discharged. [Id. at 142-143.]
Here, it is apparent that the verdict was not final at the time that the trial court declared
the mistrial and discharged the jury. Therefore, there was no valid, final verdict that could be
reinstated by the trial court. Further, as we concluded above, the court did not have the authority
to recall the jury and complete the polling process. Even though the jurors did assent to the
verdict during the court's subsequent polling of the recalled jury, we cannot reach the conclusion
that this erroneous polling somehow operated to finalize or validate the verdict. Therefore, the
court erred in attempting to reinstate the verdict announced by the jury foreperson.
In summation, we conclude that the trial court (a) abused its discretion in declaring a
mistrial because defendant did not consent to the mistrial and the mere presence of the alternate
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juror during the deliberations did not constitute manifest necessity, (b) did not abuse its
discretion in reconsidering and vacating its decision to declare a mistrial because the decision
was in error and the court had the discretion to reconsider its decisions before entry of a
judgment, (c) erred as a matter of law in deciding to recall the jurors and poll them because the
jury could not be recalled after it was discharged, and (d) erred as a matter of law in determining
that it could reinstate the jury verdict because there was no valid, final verdict to reinstate. On
the basis of these conclusions, we are compelled to reverse defendant's convictions.
III
Because we have determined that the trial court erred in recalling the jury and reinstating
the jury verdict and are reversing the convictions on these grounds, we must now determine
whether defendant can be retried in this case without offending the constitutional prohibition
against double jeopardy. It is well established that the state may not twice place a person in
jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15. Because jeopardy
attaches at the time the jury is sworn, the discharge of a jury before reaching a verdict without the
defendant's consent or legal justification operates as a dismissal of the charges. People v Dry
Land Marina, Inc, 175 Mich App 322, 325; 437 NW2d 391 (1989). "If the trial is concluded
prematurely, a retrial for that offense is prohibited unless the defendant consented to the
interruption or a mistrial was declared because of manifest necessity." People v Mehall, 454
Mich 1, 4; 557 NW2d 110 (1997). It is clear in this case that defendant did not consent to the
declaration of a mistrial, and, therefore, a retrial is possible only if manifest necessity justified the
premature conclusion of the trial.
The concept of manifest necessity is not precisely defined, and whether manifest
necessity exists depends in large part on the facts of a particular case. Echavarria, supra at 363.
However, in general terms, manifest necessity can be found where (1) compelling circumstances
would deprive the defendant of a fair trial or make completion of the trial impossible, (2) an
impartial verdict cannot be reached, or (3) a conviction would be reversed on appeal because of
an obvious procedural error. Id.
We already concluded that the fact that the alternate juror was allowed to enter the jury
room during deliberations did not constitute manifest necessity, and that the trial court's initial
declaration of a mistrial was error. However, manifest necessity justifying a retrial can also exist
where a conviction would be reversed on appeal because of "'an obvious procedural error in the
trial.'" Id. at 363, quoting Illinois v Somerville, 410 US 458, 464; 93 S Ct 1066; 35 L Ed 2d 425
(1973). In this case, it is apparent that we have two obvious procedural errors mandating
reversal: the repolling of a discharged jury and the reinstatement of an invalid verdict. Although
the trial court correctly concluded that the presence of the thirteenth juror was not manifest
necessity, the court's subsequent attempts to correct its erroneous declaration of a mistrial did
amount to manifest necessity that would allow the retrial of this case.
Our decision in Wayne Co Prosecuting
In that case, the prosecuting attorney sought
requesting that we vacate a Recorder's Court
mistrial. In the underlying criminal case,
Attorney, supra, provides guidance on this issue.
a writ of superintending control in this Court,
judgment and order the trial court to declare a
the trial court polled the jury following the
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announcement of a verdict of not guilty by reason of insanity and learned that one juror did not
agree with the verdict. After the court further determined that the juror in question had voted for
the verdict of not guilty by reason of insanity, it accepted the verdict over the prosecutor's
objection and excused the jury. We determined that the trial court's decision to accept a clearly
nonunanimous verdict was error and that the court should have either instructed the jury to
deliberate further or determined that the jury was unable to reach a verdict. Id. at 410. We then
sua sponte declared a mistrial under the authority of GCR 1963, 820.1(7)3 and reversed and
remanded the case to the trial court for a retrial. Id.
This Court reached a similar result in People v Booker (After Remand), 208 Mich App
163; 527 NW2d 42 (1994), where we held that a trial court's acceptance of a guilty verdict after
two jurors expressed doubt about the verdict during jury polling was error. Id. at 169. In
reliance on Wayne Co Prosecuting Attorney, supra, we declared a mistrial and reversed in part
and remanded for a new trial. Id. at 174.
Although the facts of Wayne Co Prosecuting Attorney and Booker are not analogous to
the facts of the present case, our holdings in those two cases indicate the proper resolution of this
matter. It is clear that this Court has the discretion to declare a mistrial and reverse and remand
for a retrial where the record indicates the existence of manifest necessity. MCR 7.216(A)(7)4;
Wayne Co Prosecuting Attorney, supra at 410; Booker, supra at 174. Here, manifest necessity
justifying a retrial occurred when the trial court repolled the jury and reinstated the verdict,
thereby creating procedural errors subject to reversal. In exercising our discretion pursuant to the
court rules, we sua sponte declare a mistrial and reverse and remand for a new trial.
IV
Because we conclude that defendant's convictions should be reversed and the case should
be remanded for a retrial, we need not address defendant's other assertions of error regarding the
conduct and outcome of the first trial.5 However, because our declaration of a mistrial has the
affect of voiding all rulings and orders issued by the trial court, Hamm, supra at 435, we will
address two remaining allegations that are subject to repetition in the second trial.
3
GCR 1963, 820.1(7), a predecessor of our current court rule, MCR 7.216, allowed this Court
the discretion to "[g]ive any judgment and make any order which ought to have been given or
made, and make such other and further orders and grant such relief, as the case may require. . . ."
Wayne Co Prosecuting Attorney, supra at 410.
4
MCR 7.216(A) states, in pertinent part:
(A) Relief Obtainable. The Court of Appeals may, at any time, in addition to its general
powers, in its discretion, and on the terms it deems just:
* * *
(7) enter any judgment or order or grant further or different relief as the case may require.
5
Defendant alleged that during the first trial (1) he was denied effective assistance of counsel, (2)
the prosecutor engaged in misconduct, and (3) the trial court erred in sentencing him.
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First, defendant argues that the trial court erred in finding that defendant was not
entrapped. We disagree. Whether entrapment occurred must be determined by considering the
facts of each case and is a question of law for the court to decide. People v Patrick, 178 Mich
App 152, 154; 443 NW2d 499 (1989). The trial court must make specific findings regarding
entrapment, and we review its findings under the clearly erroneous standard. People v Juillet,
439 Mich 34, 61; 475 NW2d 786 (1991); People v Connolly, 232 Mich App 425, 428; 591
NW2d 340 (1998). The findings are clearly erroneous if this Court is left with a firm conviction
that a mistake was made. Id. at 429.
Michigan courts apply the objective test of entrapment by focusing on the propriety of the
government's conduct that resulted in the charges against the defendant rather than on the
defendant's predisposition to commit the crime. Juillet, supra at 53; People v Hampton, 237
Mich App 143, 156; 603 NW2d 270 (1999). 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 by the court. People v Ealy, 222 Mich App 508, 510; 564 NW2d 168 (1997).
Entrapment will not be found where the police did nothing more than present the defendant with
the opportunity to commit the crime of which he was convicted. Id.
Here, defendant claims that the police engaged in "entrapment by escalation" by
purchasing increasing amounts of cocaine from him in order to obtain a conviction for the greater
offense of delivery of fifty or more but less than 225 grams of cocaine. Contrary to defendant's
argument, the escalation in the amount of cocaine purchased did not constitute entrapment in this
case. As the trial court properly observed, the conduct of the undercover officer was not
reprehensible and did not induce defendant to sell drugs. Rather, as the officer testified, larger
amounts of cocaine were purchased from defendant in order to identify his source. Further, the
undercover officer did not engage in unlawful or criminal behavior, but merely afforded
defendant an opportunity to sell drugs to him. Id. at 510. We find no error in the trial court's
conclusion that defendant was not entrapped into committing a greater offense subject to more
severe punishment.
Defendant also argues that the police engaged in misconduct that denied him due process.
Because this issue was not raised in the trial court, defendant is not entitled to relief unless he can
show plain error that affected his substantial rights. People v Carines, 460 Mich 750, 764-765;
597 NW2d 130 (1999).
We first reject defendant's argument that he was denied a fair trial because of the police
officer's insistence that defendant purchase larger quantities of cocaine to sell to the officer.
Because we concluded that the trial court properly found that the police conduct in this case did
not amount to entrapment, defendant's argument fails. Ealy, supra at 510.
Defendant also claims that he was denied due process because the police delayed
arresting him. This argument is without merit. As we set forth in People v Anderson, 88 Mich
App 513, 515; 276 NW2d 924 (1979),
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[m]ere delay between the time of the commission of an offense and arrest is not a
denial of due process. There is no constitutional right to be arrested. Rather, the
guideline is whether the record presents evidence of prejudice resulting from the
delay which violates a defendant's right to procedural due process. . . .
. . . If the prosecutor is able to explain the delay, show that it was not done
deliberately to prejudice the defendant, and establish that no undue prejudice
resulted from the delay, then a conviction may still be upheld. [Citations
omitted.]
In Anderson, we found that no undue prejudice resulted from the delay in arresting the defendant
where "[t]he prosecution justified the delay on the ground that an earlier arrest would have
impaired the undercover agent's ability to conduct an ongoing narcotics investigation" and
"[t]here was no showing that the delay was deliberate." Id. at 516.
Likewise, no undue prejudice resulted from the delay in arresting defendant in the instant
case. Although the undercover officer testified that defendant had outstanding warrants that
could have been executed before March 30, 1998, and he knew where to find defendant, he
believed that "the easiest way to make an arrest without getting into any problems is to have him
come to you." The officer further testified that he arranged the March 30, 1998, transaction
because he wanted to gain information about defendant's supplier. Considering that the delay
was not done deliberately to prejudice defendant, but to obtain information about his supplier and
to facilitate his arrest at the same time, defendant failed to demonstrate a plain error affecting his
substantial rights. Carines, supra.
Finally, we disagree with defendant's assertion that he was denied a fair trial when the
trial court admitted evidence of the cocaine purchased from defendant. Defendant claims that the
undercover officer committed misconduct by allegedly breaking the chain of custody when he
waited four months before turning the cocaine over to the state police lab. We find no error in
the admission of the drug evidence because defendant's argument is relevant only to the weight
of the evidence, not its admissibility. People v Kremko, 52 Mich App 565, 573; 218 NW2d 112
(1974).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Martin M. Doctoroff
/s/ Donald E. Holbrook, Jr.
/s/ Joel P. Hoekstra
-12-
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