PEOPLE OF MI V JEFFREY BOUYERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 30, 1998
Oakland Circuit Court
LC Nos. 96-145613 FH; 96
145614 FH; 96-145615 FH;
Before: White, P.J., and Hood and Gage, JJ.
Following a bench trial, defendant was convicted of two counts of delivery of less than fifty
grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and two counts of delivery
of between 50 and 224 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii).
Defendant was sentenced as a second offender, MCL 333.7413(2); MSA 14.15(7413)(2), having
acknowledged a prior drug conviction. The court sentenced defendant to consecutive terms of one to
forty years on each count of delivery of less than 50 grams and ten to forty years on each count of
delivery of between 50 and 224 grams. Defendant appeals as of right from the convictions and
sentences. We affirm.
Defendant argues that the trial court erred when it found that he failed to establish entrapment.
We review a trial court’s finding regarding entrapment under the clearly erroneous standard.
People v James Williams, 196 Mich App 656, 661; 493 NW2d 507 (1992). A defendant has the
burden of proving entrapment by a preponderance of the evidence. People v Juillet, 439 Mich 34, 61;
475 NW2d 786 (1991). Entrapment occurs if the police either engage in conduct so reprehensible that
it cannot be tolerated by a civilized society or engage in impermissible conduct that would induce a law
abiding person situated similarly to the defendant to commit the crime. People v Fabiano, 192 Mich
App 523, 531-532; 482 NW2d 467 (1992), citing Juillet, supra at 56-57.
To determine whether the government activity would induce criminal conduct, we analyze the
following factors: 1) whether there existed any appeals to the defendant’s sympathy as a friend; 2)
whether the defendant had been known to commit the crime with which he was charged; 3) whether
there were any long time lapses between the investigation and the arrest; 4) whether there existed any
inducements that would make the commission of a crime unusually attractive to a hypothetical law
abiding citizen; 5) whether there were offers of excessive consideration or other enticement; 6) whether
there was a guarantee that the acts alleged as crimes were not illegal; 7) whether, and to what extent,
any governmental pressure existed; 8) whether there existed sexual favors; 9) whether there were any
threats of arrest; 10) whether there existed any government procedures that tended to escalate the
criminal culpability of the defendant; 11) whether there was police control over any informant; and 12)
whether the investigation is targeted. Williams, supra at 661-662.
The record supports defendant’s arguments that he was not known by the police to be a drug
dealer, and was not the target of an ongoing investigation; that the initial meeting between defendant and
Detective Moilenan was set up through the informant; and that the government escalated the amount of
cocaine purchased from defendant and went from buying crack cocaine to powder cocaine. Defendant
does not argue that the remaining eight factors apply, however.
Defendant argues that he was an “exploitable target” for the informant and police because he
was very poor and desperate for money and that he was induced to become involved with delivering
cocaine by the potential profit. Defendant received $460 a month in disability payments, due to a head
injury he had suffered eight years earlier, and food stamps. Defendant paid $300 or $350 a month in
rent, owned two older cars and earned additional money doing odd jobs. Defendant does not argue
that the government offered him excessive consideration and he testified that he made only fifty or one
hundred dollars from each sale. We are unable to conclude that a law-abiding citizen would be induced
under the same circumstances to commit the crimes with which defendant was charged. The trial court
did not err as a matter of law in concluding that no entrapment occurred under the first prong of the test.
Turning to the second prong, whether the police conduct was so reprehensible that it cannot be
tolerated by a civilized society, the record indicates that the informant merely described defendant’s car
and told the police where defendant would be selling drugs. After the initial sale, defendant dealt
directly with the undercover officer; defendant gave the undercover officer his pager and home phone
numbers and told him to contact him directly. Defendant did not hesitate in selling the officer increasing
amounts of cocaine, and the officer testified that the escalation was undertaken in an effort to learn the
identity of defendant’s supplier. There is no evidence that the police continued the purchases merely to
enhance defendant’s eventual sentence. People v Ealy, 222 Mich App 508, 511; 564 NW2d 168
(1997). Furnishing an opportunity to commit a crime does not constitute entrapment. Williams, supra
at 663. We cannot conclude under these circumstances that the police conduct was so reprehensible
that it cannot be tolerated in a civilized society.
We conclude that the trial court’s finding that there was no entrapment was not clearly
Defendant next argues that his minimum sentence of twenty-two years is disproportionate. We
We review sentencing determinations for abuse of discretion. People v Milbourn, 435 Mich
630; 461 NW2d 1 (1990). The trial court imposed the mandatory minimum sentences set forth in
MCL 333.7401(2)(a)(iii)-(iv); MSA 14.15(7401)(2)(a)(iii)-(iv). Legislatively mandated sentences are
presumptively proportionate. Ealy, supra at 512. A sentencing court may depart from a mandatory
minimum sentence where substantial and compelling reasons justify such a departure. Id.; MCL
333.7401(4); MSA 14.15(7401)(4). The substantial and compelling reasons must be objective and
verifiable. People v Catanzarite, 211 Mich App 573, 584; 536 NW2d 570 (1995). The factors to
be considered may include, but are not limited to, 1) the facts of the crime that mitigate the defendant’s
culpability; 2) the defendant’s prior record; 3) the defendant’s age; 4) the defendant’s work history; 5)
the defendant’s cooperation with police following arrest; and 6) the defendant’s criminal history. Id. at
Defense counsel argued at sentencing that the court should take into account the following
mitigating circumstances: defendant lived in a run-down house, had an old car, had a head injury for
which he received disability payments, and had certain learning disabilities.
Defendant had not argued diminished capacity and the issue of defendant having learning
disabilities was not developed in the record. Defendant had two prior felony convictions, one for
aggravated drug trafficking. Defendant did not argue that his age or behavior post-arrest justified a
departure from the mandatory minimum sentences. Under these circumstances, we conclude that
defendant did not present substantial and compelling reasons for the court to deviate from the
mandatory minimum sentences, and the court did not abuse its discretion in not deviating from them.
Ealy, supra at 512.
Defendant also argues that the consecutive nature of his sentences warrants a deviation from the
mandatory minimum sentences. We decline to so hold, under the circumstance that this Court, in
People v Warner, 190 Mich App 734; 476 NW2d 660 (1991), and the Supreme Court, in People v
Miles, 454 Mich 90, 94-95; 559 NW2d 299 (1997), have held that a sentencing court need not
consider the length of a consecutive or concurrent mandatory sentence when setting an indeterminate
sentence, and that the proportionality of consecutive sentences is judged by considering the sentences
separately, rather than in the aggregate. Thus, the trial court did not abuse its discretion when it did not
consider the impact of the mandatory minimum sentences and their cumulative effect.
Defendant last argues that his sentence of 22 to 160 years constituted cruel or unusual
In determining whether a given punishment is cruel or unusual, a court must compare the gravity
of the offense with the harshness of the penalty, the sentence imposed with sentences for other crimes
within the jurisdiction, and the sentence imposed with sentences imposed for the same crime in other
jurisdictions. People v Bullock, 440 Mich 15, 33-34; 485 NW2d 866 (1992). In People v Williams
(After Remand), 198 Mich App 537, 543; 499 NW2d 404 (1993), this Court found that a sentence
that included two terms of ten to twenty years’ imprisonment for each of two convictions of delivery of
more than 50 grams but less than 225 grams of cocaine did not constitute cruel or unusual punishment.
Const 1963, art 1, § 16. Defendant’s sentence does not violate the prohibition against cruel or unusual
In a supplemental brief filed in propria persona, defendant argues that he was denied effective
assistance of counsel because his trial attorney did not interview or subpoena the police informant,
Darryl Walker. Defendant argues that Walker might have provided exculpatory evidence.
In order to establish ineffective assistance of counsel, a defendant must show that counsel’s
performance was below an objective standard of reasonableness under prevailing professional norms,
and that there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994), citing
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984) and People v
Pickens, 446 Mich 298; 521 NW2d 797 (1994). A reasonable probability is a probability sufficient to
undermine the outcome. Pickens, supra at 314. Decisions regarding what evidence to present and
whether to call a witness are presumed to be matters of trial strategy. People v Mitchell, 454 Mich
145, 163; 560 NW2d 600 (1997). This Court will not second-guess a defense counsel’s strategy not
to present certain evidence or call a witness to testify. Id. at 166.
Defendant does not argue, nor does the record support, that he and the informant were close
friends. The record indicates that defendant only worked with the informant, and that the informant
asked defendant to sell drugs to the undercover police officer. Defendant testified that his motive for
doing this favor was to make money. Defendant did not testify that he was threatened or induced by
Walker, or offered excessive consideration. Moreover, as noted above, the informant was involved
only in arranging the initial sale between defendant and the undercover officer. After that, defendant
gave the undercover officer his home phone and pager numbers and asked the officer to deal directly
with him. Under these circumstances, defendant has not shown that but for defendant’s failure to
subpoena Walker, there is a reasonable probability that the result of the proceeding would have been
different. Stanaway, supra at 687-688.
/s/ Helene N. White
/s/ Harold Hood
/s/ Hilda R. Gage