DocketNumber： Docket 11329
Citation Numbers： 197 N.W.2d 290, 39 Mich. App. 84, 1972 Mich. App. LEXIS 1401
Judges： Fitzgerald, Burns, Holbrook
Filed Date： 2/29/1972
Status： Precedential
Modified Date： 10/19/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Calvin L. Bosman, Prosecuting Attorney, for the people.
Donald H. Hann, for defendant on appeal.
Before: FITZGERALD, P.J., and R.B. BURNS and HOLBROOK, JJ.
PER CURIAM.
The 19-year-old defendant was convicted by a jury of the illegal sale of heroin, MCLA 335.152; MSA 18.1122. He was sentenced to a term of 20 to 21 years in prison.
On appeal defendant argues that the trial court erred in ruling that as a matter of law jury argument and instructions on entrapment were precluded.
The evidence shows that about 2:30 p.m. on October 23, 1970, the defendant came to a certain gas station and asked the gas station attendant if he "would like to buy some heroin". They made a deal that the defendant would sell the attendant $30 worth for $20 because the defendant owed him $7. The defendant left right away but came back about 3 p.m. and said that he needed the money in order to make the buy. The attendant gave him the money and defendant left again, returning about 4 p.m. with the heroin. The attendant said that the defendant told him if he ever needed any more he would know who to get in touch with.
The gas station attendant testified that he was not a police officer, but that he was a contact man for the *86 State Police in the narcotics field. He used his own personal money but was reimbursed by the State Police. He testified that he did not tell people that he was interested in buying narcotics, but that he "let it be known". He said that he never at anytime asked the defendant to sell narcotics to him.
The defendant did not take the stand and the defense presented no evidence.
The trial court correctly ruled on this undisputed evidence that as a matter of law entrapment was not an issue. The Federal courts have repeatedly held that when a government agent or informer does nothing more than request that merchandise be sold to him, the defendant has not made a submissible case on the issue of entrapment. Kibby v United States, 372 F2d 598 (CA 8, 1967), and cases cited therein. This Court has said in People v Ovalle, 10 Mich. App. 540 (1968) that the mere fact that an opportunity was furnished to the defendant to commit a crime, absent reprehensible creative activity or persistent overexertion, does not constitute entrapment.
In the present case the undisputed testimony was that the defendant initiated the transaction by stopping at the station attendant's place of employment and asking him if he "would like to buy some heroin". The attendant did not even ask the defendant if he could purchase narcotics from him, as did the informer in the Kibby case, supra. On these facts, the trial court correctly ruled that as a matter of law jury argument and instructions on entrapment were precluded.
The defendant's other question involves the trial court's refusal to instruct the jury that possession of heroin was a lesser-included offense.
The written instruction that the defendant requested was misleading because it was strongly tied into the entrapment issue. Therefore the court *87 properly refused to give it. Further, there was no dispute in the testimony as to whether defendant merely possessed heroin or whether he sold it. The jury could either believe that the defendant sold heroin or that he did not. There was no testimony that he merely possessed it. Thus, the court correctly refused to give a charge on possession of heroin. People v Loncar, 4 Mich. App. 281 (1966); People v Membres, 34 Mich. App. 224 (1971).
Affirmed.