People v. Tinskey

53 Mich. App. 667 (1974) 220 N.W.2d 53

PEOPLE
v.
TINSKEY
PEOPLE
v.
WILLIAMS

Docket No. 11582.

Michigan Court of Appeals.

Decided June 24, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, Donald A. Johnston, III, Chief Appellate Attorney, and Robert A. Marsac, Assistant Appellate Attorney, for the people.

Philip A. Gillis, for defendants on appeal.

Before: DANHOF, P.J., and McGREGOR and MILES,^[*] JJ.

ON REMAND

DANHOF, P.J.

This cause was remanded to our Court by order of the Supreme Court dated April 18, 1974, for reconsideration in light of People v Turner, 390 Mich. 7; 210 NW2d 336 (1973). The first decision by this Court is reported at 49 Mich. App. 497; 212 NW2d 263 (1973).

In Turner, our Supreme Court rejected the subjective test for entrapment and accepted Justice Stewart's dissenting opinion in United States v Russell, 411 U.S. 423; 93 S. Ct. 1637; 36 L. Ed. 2d 366 (1973).

This Court upon remand has reconsidered this cause in light of Turner and does hereby reaffirm its original opinion affirming defendants' convictions of conspiracy to commit abortion in violation of MCLA 750.14; MSA 28.204 and MCLA 750.157a; MSA 28.354(1). Defendants were convicted by a jury of this offense on February 10, 1971. The Turner case was decided in September of 1973, approximately 2-1/2 years later. In People v Gaines, 53 Mich. App. 443; 220 NW2d 76 (1974), a panel of this Court held that Turner was to be applied prospectively:

"We hold that until the Supreme Court clearly mandates that Turner is to be applied retroactively, we must approach this on the basis of the standards which were applicable prior to Turner. To do otherwise would have a highly detrimental effect on the administration of justice. This seriously disruptive effect predisposes a prospective application, in a fashion not dissimilar to the United States Supreme Court's refusal to apply Miranda and Escobedo retroactively."

In this cause, under the standards applicable prior to Turner, we cannot say as a matter of law that defendants were entrapped.

Affirmed.

McGREGOR, J., concurred.

MILES, J., did not participate.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

ON REMAND