Opinion
No. 353246
05-20-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ARTHUR JANUARY HATCHER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2019-272161-FH Before: TUKEL, P.J., and SERVITTO and RICK, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of one count of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 20 days to 20 years' imprisonment for his possession conviction and 2 years' imprisonment for his felony-firearm conviction. We affirm.
On July 22, 2019, erroneously thinking that he was contacting a female acquaintance, defendant sent a text message to Troy Police Department Detective Aaron Cooper. Cooper told defendant he was not who defendant thought he was. Cooper researched the number the text was sent to him and associated it with defendant, whom Cooper saw had many prior contacts with police concerning firearms and marijuana. Defendant again texted Cooper's number again on August 18, 2019, and offered to send pictures to remind the person he thought was his female acquaintance who defendant was. Defendant thereafter sent two photographs to Cooper, as well as a short video clip of himself, which showed a semiautomatic pistol on his waist. After discussing the situation with Troy Detective Chris O'Brian (who was assigned to the Oakland County Narcotics Enforcement Team), Cooper decided to respond and see where the conversation led. He, acting as though he were the female acquaintance, advised defendant he was planning a party in the suburbs and was looking for some cocaine for "her" and six of "her" female friends. Defendant responded that he could help. Cooper texted defendant twice on August 21, 2019, asking if he was still able to supply "her" and received no response. Defendant texted Cooper back on August 22, 2019, and said he was able to supply her, so they arranged to meet at Somerset Inn in Troy between 7:30 and 8:00 p.m. that evening. Upon defendant's inquiry about how much cocaine was needed, Cooper indicated a quarter ounce and they agreed on a price.
Cooper was at the Somerset Inn at the appointed time, but defendant did not appear. After waiting for two hours, Cooper texted defendant several times that it was done and "she" didn't want defendant to come anymore. Cooper and the other officers left the hotel. However, defendant replied that he was on his way and sent screenshots of his location. The officers thus returned to the hotel. At 10:20 p.m., defendant arrived. Cooper and three other officers arrested defendant, who was carrying a concealed loaded nine-millimeter pistol and seven baggies of cocaine on his person.
Defendant was charged with one count of possession with intent to deliver less than 50 grams of cocaine and one count of felony-firearm. On January 8, 2020, defense counsel moved for an entrapment hearing. The trial court denied defendant's motion, finding the contact between defendant and Cooper was initiated by defendant, the text messages were lawful up to the point of referencing cocaine, the text messages were few in number, and there were only two days between the initial contact and the end of the conversation. The jury found defendant guilty as charged, and this appeal followed.
Defendant argues that the trial court erred in denying defendant's motion to present the defense of entrapment. We disagree.
Whether entrapment occurred comprises a question of law that is reviewed by this Court de novo. People v Fyda, 288 Mich App 446, 456; 793 NW2d 712 (2010). We review a trial court's specific factual findings of whether police entrapped a defendant for clear error. People v Jamieson, 436 Mich 61, 80; 461 NW2d 884 (1990), citing People v D'Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Johnson, 466 Mich 491, 498; 647 NW2d 480 (2002), citing People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993).
The defense of entrapment disincentivizes the use of governmental authority to manufacture a crime by a person who would not otherwise have committed that crime. D'Angelo, 401 Mich at 179. The entrapment defense does not negate an element of the charged crime; it presents facts that can justify barring prosecution of the defendant. Id. Michigan has adopted an objective test for entrapment that "looks for and condemns those police methods that are more likely to result in the motivation of criminal activity without regard to whether the offender at hand was predisposed to criminal activity . . . ." Jamieson, 436 Mich at 78. It does not look at a defendant's past criminal actions, nor does it involve an assessment of guilt or innocence. D'Angelo, 401 Mich at 179, 182.
Entrapment occurs where either (1) the police engage in impermissible conduct which would induce an otherwise law-abiding person to commit the crime in similar circumstances or (2) the police engage in conduct so reprehensible that it cannot be tolerated. Johnson, 466 Mich at 498. There are, however, limits on the kinds of police conduct that could lead to entrapment. For instance, "where law enforcement officials present nothing more than an opportunity to commit the crime, entrapment does not exist." Id. at 498. "The mere fact of deceit will not defeat prosecution." Jamieson, 436 Mich at 68. "Only when the defendant can prove that the government agents engaged in activities that would impermissibly manufacture or instigate a crime will the defense of entrapment prevail." People v Juillet, 439 Mich 34, 61; 475 NW2d 786 (1991).
A defendant has the burden of establishing by a preponderance of the evidence that he was entrapped. D'Angelo, 401 Mich at 182. If the court finds that a defendant has met this burden, the charge must be dismissed. Id. at 183. "Only in narrow and specified situations is the remedy for police misconduct the overturning of a conviction otherwise lawfully obtained." Juillet, 439 Mich at 62 n 7.
Several factors are relevant to determining whether the government's conduct would impermissibly induce criminal conduct:
(1) whether there existed 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 government 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 was targeted. [Johnson, 466 Mich at 498-499]
In this matter, defendant asserts that at least six of the factors set forth in Johnson weigh in favor of finding the existence of entrapment. We will address each factor in turn.
Factor (1) weighs against a finding of entrapment, because defendant had no existing friendship with Cooper or the woman defendant thought he was texting at the time of their texting exchange. Factor (2) weighs against a finding of entrapment because after being contacted by defendant, Cooper utilized police resources and found that defendant had a lengthy history of police contact involving drugs and firearms. While defendant may not necessarily have been known to commit the specific crimes with which he was charged, based upon the history he did have, the police could reasonably attempt to see if he was willing to commit other drug and firearm related crimes.
Factor (3) weighs against a finding of entrapment because there were only four days between when defendant agreed to supply the cocaine and the day was arrested for actually doing so. This limited time and the limited amount of contacts between defendant and the police do not suggest that defendant required any convincing to supply the requested cocaine. Factor (4) could arguably, at first blush, weigh in favor of finding entrapment. Cooper's text messages suggested that the woman with whom defendant believed he was conversing was interested in pursuing a romantic or sexual relationship with him. Cooper indicated that "she" would "make it worth it," which, combined with the fact that a total of seven women would be at the hotel, communicated to defendant an unusually attractive prospect of a sexual encounter with seven women. However, Cooper's statement that there would be lots of opportunities for making money in the future suggests that monetary payment would "make it worth it." Moreover, entrapment involves an objective test, Juillet, 439 Mich at 54, such that defendant's subjective desires and proclivities are of no issue. Thus, this factor weighs against a finding of entrapment.
For the same reason, factor (5) also weighs against a finding of entrapment. In addition, defendant was told he would be paid for the cocaine and there is no indication that the agreed upon price was excessive. Factor (6) weighs against a finding of entrapment, given that Cooper did not tell defendant that delivering cocaine or carrying a gun while delivering cocaine was legal and defendant, presumably knew such conduct was illegal.
Factor (7) weighs against a finding of entrapment, for several reasons. First, defendant—not Cooper—initiated the contact, albeit erroneously. We have held that a finding of entrapment is not supported where contact was established by chance rather than by targeting through an undercover operation. People v Vansickle, 303 Mich App 111, 116; 842 NW2d 289 (2013). Second, while Cooper was the one who initially brought up the possibility of defendant obtaining drugs, he only did so after finding defendant's many police contacts for drug and weapons offenses. In addition, Detective Cooper did not go beyond merely presenting the opportunity to defendant, which our Supreme Court has held does not constitute entrapment. Johnson, 466 Mich at 498. Contrary to defendant's claim that Cooper repeatedly requested drugs, Cooper stated in a text message that "she" was looking to obtain some cocaine for "her" and her friends. Defendant offered to provide it in response to Cooper's open offer. He did not refuse the offer, nor did Cooper push him to accept. Unlike the officer in Juillet, who "incessantly" asked the defendant to procure drugs for him, Juillet, 439 Mich at 66, Cooper did not go beyond the presentation of an opportunity. Cooper only gave defendant an amount "she" was seeking after defendant had offered to provide—and confirmed that he could provide—the cocaine. Defendant's immediate, unhesitant response strongly suggests that he was "ready and willing to commit the offense." People v Fabiano, 192 Mich App 523, 531; 482 NW2d 467 (1992)
Finally, while Cooper told defendant that, if he provided cocaine, "she" would "make it worth it" and promised that there would be future opportunities to make money, such messages do not rise to the level of pressuring defendant to commit the crime at hand; they are the same kind of statements that any interested buyer would make in that situation. Even the messages Cooper sent when defendant was late to the rendezvous at Somerset Inn did not pressure him to commit the crime, particularly since defendant was already in the process of committing it. Cooper's calling off the transaction was not an attempt to get defendant to complete the transaction; it was a reasonable response given defendant's absence and that the police team had already departed from the hotel. Any frustration inherent in Cooper's messages to defendant do not constitute impermissible pressure, since the woman he was posing as would undoubtedly have been likewise perturbed had defendant kept her and her friends waiting for over two hours.
Defendant relies, in part, on our decision in People v Duis, 81 Mich App 698; 265 NW2d 794 (1978), to argue that Cooper exploited defendant and pressured him to commit a crime. Not only is that case not binding on this Court due to its date (MCR 7.215(J)(1)), Duis is distinguishable from this case because this case did not involve an informant, did not appeal to any of defendant's friendships, and did not repeatedly urge defendant to commit the crime over defendant's consistent refusals.
Moving on to factor (8), defendant could have reasonably understood that he would be receiving sexual favors for procuring the cocaine. However, as discussed in factor (4) Cooper made statements that there would be lots of opportunities for defendant to make money in the future if he came through with the cocaine for the party. Cooper also made a statement that "she" would not be "owned" and would "pay my way" with respect to the cocaine. Nevertheless, this favor would slightly weigh in favor of a finding of entrapment.
Factor (9) weighs against a finding of entrapment because there was no threat of arrest made. Factor (10) weighs against a finding of entrapment because neither Cooper nor the other officers escalated the culpability of defendant. Cooper initially told defendant that he had the wrong number and sought to end the interaction. When defendant texted again, Cooper did not encourage defendant to buy an excessively large amount of cocaine, nor did he goad defendant into agreeing to buy the cocaine over defendant's objections. In fact, when defendant failed to arrive at the hotel on time, the officers left the scene and returned to the police station, and Cooper told defendant "she" didn't want him to come anymore. Again, escalation does not occur where the police merely present the opportunity to commit a crime, Johnson, 466 Mich at 503.
Factor (11) weighs against a finding of entrapment because there was no informant involved in this case. Factor (12) also weighs against a finding of entrapment because no evidence suggests that Cooper targeted defendant. Defendant—not Cooper—initiated the contact. Defendant initiated contact a second time even after Cooper told defendant he was not who defendant thought he was. In sum, the vast majority of the Johnson factors weigh against a finding of entrapment. Therefore, the trial court did not err in denying defendant's motion regarding entrapment.
Defendant claims that Cooper pursued him because of his race, but no evidence supports that claim. None of Cooper's comments to defendant reflect any racial bias or animus. Cooper did use words and phrases like "sweet talking n[****]," but he did so as part of his representation as a woman and not as a racial slur aimed at denigrating defendant. This conclusion is supported by the fact that defendant did not respond to the use of such words and phrases with shock, surprise, or anger. --------
Defendant argues that questions about the entrapment defense submitted by some of the jurors suggest that the jury instinctively sensed that defendant had been entrapped. A jury's "instinctive sense" has no bearing on the legal determination to be made by the judge whether defendant established that entrapment occurred.
Defendant also argues that entrapment should be a question of fact for the jury to decide rather than a question of law for the judge to decide. Not only did defendant fail to preserve this issue by raising it before the trial court, People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007), well-established Michigan caselaw holds that entrapment is an issue for the judge to decide; it is not a "question of fact for the jury to resolve." People v Woods, 241 Mich App 545, 554; 616 NW2d 211 (2000). See also Juillet, 439 Mich at 61. This Court is bound to follow, as binding precedent, decisions of our Supreme Court and published decisions of this Court. Associated Builders & Contractors v City of Lansing, 499 Mich 177, 192-93; 880 NW2d 765 (2016); Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996); MCR 7.215(C)(2).
Affirmed.
/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ Michelle M. Rick