Tag Archives: Florida Law

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

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There is not a “logical sequence of events” exception to hearsay

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Contrary to what many prosecutors, and a few judges, believe, there is not an exception to the prohibition to the introduction of hearsay (an out-of-court statement entered into evidence for the truth of the matter asserted) when that hearsay statement is offered to prove a logical sequence of events. A common response to an objection to its introduction is that it is not offered for the truth of the matter asserted, i.e., it is offered to prove the effect on the listener. Or, in other words, it’s offered to explain why someone took a certain action.

However, when that’s the case and depending on the type of statement offered, it can be greatly more prejudicial than probative and, therefore, inadmissible under Fla. Stat. 90.403, or simply irrelevant and immaterial and, therefore, inadmissible under Fla. Stat. 90.401.

Case Law Support for Exclusion

Fortunately for trial lawyers like myself, we have some recent support from the 4th DCA that we can use to educate courts when arguing for the exclusion of this type of evidence. In Conyers v. State, 44 Fla. L. Weekly D1844b (Fla. 4th DCA 2019), the Court reversed Conyers’ conviction for trafficking by purchase of oxycodone for the improper introduction of such evidence. Here are the relevant facts from the case:

At trial, the undercover officer who conducted the drug buy testified that before the sting operation, a confidential informant told the officer that a six-foot-tall, heavy-set black male known as Angel, who drove a two-door red Ford F-150 pickup truck, was “interested in purchasing large quantities of prescription pills in the City of Hollywood.” The officer testified that the informant also gave him Angel’s phone number. With the description and phone number provided by the informant, the officer identified appellant as Angel and began his investigation.
Appellant objected to the officer’s testimony and moved for a mistrial. He argued that the officer’s testimony about the confidential informant’s comments about appellant was hearsay and improperly suggested that appellant had a propensity to purchase large amounts of opiates. The State argued that the statements were not hearsay because they were not offered for the truth of their content but were intended to show the effect on the listener, i.e., the police officer, who then opened an investigation.

As is clear from just these facts, the State doesn’t really want the jury to learn why the officer targeted Mr. Conyers, they want the jury to know that there is a person out there who wants to purchase drugs and that person is “Angel,” who is identified as Mr. Conyers. The statement is highly prejudicial and from someone whom the defense cannot cross-examine because he is not in court. Furthermore, it’s immaterial because why the officer targeted Mr. Conyers is irrelevant to the facts they must prove in order to garner a conviction. The better practice is for the testifying officer to simply say that he was acting on a tip or information received. State v. Baird, 572 So. 2d 904, 905 (Fla. 1990).

Fortunately for Mr. Conyers, the Fourth DCA followed Baird and vacated Mr. Conyers conviction and sentence (7 years Florida State Prison followed by three years of probation) and remanded his case for a new trial. The Court held:

In this case, the trial court erred in allowing the officer to give inherently prejudicial hearsay testimony regarding appellant’s alleged drug activity in the community. The State’s contention that this testimony was not hearsay is simply wrong. Even if the informant’s statements were not offered for their truth, they were irrelevant, because the police officer’s reason for investigating appellant was immaterial. See Baird, 572 So. 2d at 908. Moreover, the risk of unfair prejudice outweighed any probative value. The error was not harmless, see State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly, we reverse the judgment of conviction and remand for a new trial.

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Criminal Justice Legislative Update

Updates to Florida Criminal Justice Laws From 2019 Legislative Session

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

The 2019 Florida legislative session saw some significant changes to the criminal statutes. Some of these changes are significant (removing the requirement for a Youthful Offender sentence that a defendant be sentenced prior to their 21st birthday) while some make you wonder if it was really necessary (removing 1-year minimum mandatory for sale and distribution of horse meat).

Regardless, the reforms are mostly positive for those who practice in the world of criminal defense. I attempt to lay out most of the changes below.

Harm to Police Animals

SB 96: Increases the penalty from a third-degree felony to a second-degree felony for any person who intentionally and knowingly, without lawful cause or justification, causes great bodily harm, permanent disability, or death to, or uses a deadly weapon upon, a police canine dog, fire canine dog, SAR canine dog, or police horse.

Child-like Sex Dolls

SB 160: Makes it a third-degree felony to sell, distribute or possess with intent to sell or distribute a child-like sex doll. Makes possession of such a doll a first-degree misdemeanor.

Expansion of Eligibility for Veterans’ Court

SB 910: Adds individuals who are current or former United States Department of Defense contractors; and individuals who are current or former military members of a foreign allied country to those eligible Veterans’ Court Treatment Program

Texting and Driving

HB 107: Make texting and driving a primary offense, i.e., you can be pulled over for it. It also makes it offense to use a phone in any hand-held manner in a school or construction zone.

Many Changes in One Bill

HB 7125: An omnibus criminal justice bill that makes many changes. Some of the highlights are:

  • Reduces the driver’s license suspension for drug offense convictions from 1 year to 6 months. Suspension can be shortened upon drug abuse evaluation and completion of any recommended treatment. Additional, court “upon a finding of compelling circumstances,” may direct DHSMV to issue a business purpose only license.
  • A third conviction of Driving on a Suspended/Revoked License now will require at least 10 days in jail.
  • Removed minimum mandatory sentence of 1 year for offenses related to the sale and distribution of horse meat.
  • Raises the felony threshold for theft of food and lodging services from $300 to $1,000.
  • Removes driver’s license suspension penalty for offenses related to selling to and possession of alcohol by persons under 21 years of age.
  • Reduces possession of distilling materials from a felony to a misdemeanor.
  • Reduces penalties for possession of moonshine.
  • Increases the threshold for felony grand theft from $300 to $750.
  • Reduces from a felony to a misdemeanor the keeping of a gambling house.
  • Increases minimum mandatory weight thresholds for trafficking in hydrocodone
  • Allowing for expunction of charges dismissed due to lawful self-defense.
  • Allowing for automatic early termination of probation or conversion to administrative probation upon completion of at least half of term and all the special conditions of probation.
  • Creation of an alternative sanction program for first-time technical violators of probation provided certain eligibility requirements are met.
  • Creation of a community-based court program for certain misdemeanor offenses.
  • Allows persons to be sentenced as a youthful offender, so long as they otherwise qualify, so long as the crime was committed before they turned 21 years of age (prior requirement was to be sentenced before turning 21 years of age).
  • Deletes mandatory direct-file of certain juvenile offenders.

The Outer Limits of an Aggravated Assault Charge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

An “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. 784.011. Simple assault is a second-degree misdemeanor punishable by up to 60 days in county jail. As such, an assault is composed of three elements: (1) an intentional, unlawful threat by word or act; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that violence is imminent.

 

For a person to be convicted of an assault, there needs to be an intentional threat towards the victim. When considering this element, the focus is on the perpetrator’s intent and “not the reaction of the person perceiving the word or act.” Benitez v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005). J.S. v. State, 207 So.3d 903 (Fla. 4th DCA 2017). In J.S., the Court overturned the adjudication of delinquency because the defendant’s act of pulling out a pellet gun, while he was on the ground, was not intended as a threat to the victim, who was brandishing his firearm.

 

In February 2018, the First DCA decided Williams v. State, 43 Fla. L. Weekly D496a (Fla. 1st DCA 2018). Williams seems to stretch its logic in deciding the Williams threatened his two victims so that he committed an Aggravated Assault (he was using a firearm at the time of the alleged assaults). Here are the facts relevant to the assaults (Byrd and Dixon are the alleged victims of the assaults and Howard is the victim of an attempted murder):

 

The jury heard evidence that Williams told Howard he wanted to kill him “so bad” he could “taste it.” Around the same time, Williams said of Dixon and Byrd: “If those two motherfuckers want to stand right there I’ll kill your ass. I know them two bitches going to put me in prison.” Williams then started shooting in several directions — not just towards Howard — striking a fence, a gate, a chair, and a house. At some point, Byrd confronted Williams, trying to convince Williams to stop. Williams responded with a racial slur and a demand that Byrd “shut the hell up.” Byrd and Dixon both hid behind a vehicle until Williams rode away on his bicycle.

 

                From these facts, the Court decided that the statement “shut the hell up” coupled with the prior acts of firing the gun, was actually a threat to harm Byrd if he continued talking and not a mere request to be quiet. With regards to Dixon, the Court even admitted that they could not discern Williams’ intent with regards to Dixon, but nonetheless held that a reasonable jury could find that Williams threatened Dixon by stating that he would kill Howard and that Dixon and Byrd would put him in prison. I’m not certain how they got there, but they did.

 

                The take away for Williams is that if a defendant is firing rounds at one person and makes any statement to other people in the area, there’s a chance that he or she could be convicted of Aggravated Assault with regards to the people to whom he or she was talking. For Williams, it didn’t really matter as his aggravated assault sentences were concurrent to his 30-year sentence for the attempted murder of Howard, but the practitioner needs to be aware that bystanders to a crime have a chance to become victims as well under the logic of Williams.