STANLEY ALLAN TERWILLIGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stanley Terwilliger appeals his convictions for conspiracy to traffic in cannabis and related offenses. The Florida District Court of Appeal reversed and remanded, finding that the trial court erred by refusing to give an entrapment jury instruction and by allowing the state an improper additional closing argument, despite finding no error in denying the motion for judgment of acquittal.
The court found no error in denying the motion for judgment of acquittal, but reversed on the other two issues. The trial court erred in refusing to give an entrapment instruction because the evidence—Terwilliger's expressed reluctance to participate—was sufficient to warrant the instruction. The trial court also erred in allowing the state an additional closing argument when Terwilliger, who offered no evidence, was entitled to the concluding argument under Florida Rule of Criminal Procedure 3.250.
[1] A defendant is entitled to an entrapment instruction when evidence suggests the possibility of entrapment, regardless of whether the defendant denies an element of the of…
[2] A trial court errs by denying a requested entrapment instruction when the defendant presents evidence suggesting entrapment, such as statements of reluctance to participa…
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Join FLexlaw to unlock all legal intelligence“It is axiomatic that a defendant has the right to have the jury instructed on the law of entrapment when evidence is presented which tends to prove such defense.”
Establishes the fundamental principle that entrapment instructions must be given when evidence suggests the defense is possible.
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Join FLexlaw to unlock all legal intelligenceTerwilliger was charged with conspiracy to traffic in cannabis, aiding and abetting possession of cannabis, and conspiracy to possess cannabis. The st…
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ERVIN, Judge.
Appellant, Stanley Allan Terwilliger, appeals his convictions for conspiracy to traffic in cannabis, aiding and abetting in the possession of cannabis, and conspiracy to possess cannabis. Of the three issues raised on appeal, we find no error in the trial court’s denial of Terwilliger’s motion for judgment of acquittal; however, we agree with appellant that the trial court erred in denying the requested entrapment instruction and in allowing the state an additional closing argument. We therefore reverse and remand.
It is axiomatic that a defendant has the right to have the jury instructed on the law of entrapment when evidence is presented which tends to prove such defense. Kwasniewski v. State, 303 So. 2d 373 (Fla. 1st DCA 1974) (when evidence of entrapment is presented, it is the jury’s province to resolve the factual issue under proper instructions from the court), and Canty v. State, 471 So. 2d 676 (Fla. 1st DCA 1985) (defendant’s version of drug transaction warranted entrapment instruction). Once the defendant has shown some evidence which suggests the possibility of entrapment, the issue of entrapment must be submitted to the jury with the appropriate instruction. State v. Wheeler, 468 So. 2d 978 (Fla.1985) (after the defendant satisfies his initial burden of establishing a pri-ma facie case of entrapment, the issue must be submitted to the jury). It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented. Poye v. State, 458 So. 2d 327 (Fla. 1st DCA 1984), rev. denied, 462 So. 2d 1108 (1985) (trial court erred in failing to instruct the jury on the defense of voluntary intoxication in trial for attempted premeditated murder). Even a defendant who denies one of the elements of the offense for which he is charged is entitled to an entrapment instruction. See Mathews v. United States, 485 U.S.-, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (defendant who denied intent element of bribery offense was entitled to entrapment instruction).
In the case at bar, the state introduced into evidence a tape-recorded telephone conversation in which appellant had communicated to undercover agents his reluctance to participate in the drug transaction because he did not know the people involved and was uncomfortable with the situation. These statements were corroborated by state witness William Hughes who testified during cross-examination that appellant had advised him concerning an incident involving undercover agents contacting appellant a second time after he had earlier told them that he did not want to do the drug deal. Whether this evidence was sufficient to prove entrapment as a matter of law is not for this court or for the trial judge to decide. It was, nevertheless, sufficient to warrant an entrapment instruction, and the failure to so instruct constitutes reversible error. See Canty.
In regard to the issue of the trial court’s allowing the state an additional closing argument, we conclude that such action was violative of Florida Rule of Criminal Procedure 3.250, providing in part that a defendant who offers “no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.” A substantial body of case law recognizes that a statute or rule of procedure which confers upon the accused the right to conclude an argument is a substantial procedural right, the denial of which constitutes reversible error, notwithstanding that the state’s evidence may be more than adequate to support a verdict of guilty. See, e.g., Birge v. State, 92 So. 2d 819 (Fla.1957); Staples v. State, 298 So. 2d 545 (Fla. 2d DCA 1974); Raysor v. State, 272 So. 2d 867 (Fla. 4th DCA 1973). In the instant case, appellant neither testified nor offered any evidence in his behalf. He therefore was entitled to the last argument before the jury. Wright v. State, 87 So. 2d 104 (Fla.1956) (“concluding” means the last argument).
The record reveals that the lower court, in granting additional closing arguments, was influenced by its erroneous belief that the defense’s responsive arguments were beyond the scope of those made by the state. Although appellant’s counsel referred to the testimony of William Hughes in his opening argument, the state chose not to make specific comment regarding Mr. Hughes’ testimony during its responsive argument. In his summation, defense counsel again referred to Hughes’ testimony, and the state objected, contending that such comments exceeded the scope of the state’s closing argument. In overruling the objection, the court allowed the prosecutor to make a second closing statement, which was directed to discrediting Hughes’ testimony. The court also allowed the defense the opportunity to present a third closing statement, which it declined, and instead moved for mistrial. Under the circumstances, we agree with appellant that the court’s action constituted error. In so saying, we consider that the trial court’s ruling over-emphasized the fact that the defense's rebuttal argument expressly mentioned Hughes' testimony, which had not been alluded to by the state during its initial response. The court’s determination should instead have been directed to the purpose for which the defense focused upon the witness’s testimony in its final summation: to rebut the state’s argument that the appellant could appropriately be convicted of conspiracy to traffic in or possess cannabis, because the evidence did not reveal that he had withdrawn from the charged conspiracy. Cf. Denny v. State, 404 So. 2d 824 (Fla. 1st DCA 1981) (state’s responsive argument to defendant’s was not beyond the scope of the comments made by the defense because the state’s argument pertaining to certain admissions, not specifically mentioned by the defense during its closing argument, was directly related to the asserted defense that the defendant lacked the ability to form the intent to murder); Collins Fruit Co. v. Giglio, 184 So. 2d 447 (Fla. 2d DCA 1966) (trial court erred in disallowing plaintiff’s counsel, in response to the concluding arguments of defense counsel, from referring to the doctrine of last clear chance, because, although defense counsel had not specifically mentioned the defense of last clear chance, he had extensively argued the decedent’s contributory negligence).
Similarly, in the present case, because the state spoke at length during its initial closing argument regarding defendant's failure to withdraw from the charged conspiracies, defense counsel’s reference to Hughes in his summation clearly did not exceed the scope of the prosecutor’s arguments, in that such reference was relevant to the defense that he had in fact withdrawn from any such participation.1 Although the trial court possesses wide discretion in controlling the arguments presented, see Breedlove v. State, 413 So. 2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982) (improper remarks made by the prosecutor during closing argument did not prejudice defendant), there was nothing improper about the defense’s comments that would justify the trial court’s action permitting the state a second concluding argument.
REVERSED and REMANDED for new trial.
WENTWORTH and ZEHMER, JJ., concur. . Section 777.04(5)(a), Florida Statutes (Supp. 1986), specifically makes a renunciation defense available to one charged with the crime of conspiracy when circumstances reflect that he "[ajbandoned his attempt to commit the of-fense_"
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Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013)…la. 4th DCA 2010); Chavers v. State, 901 So. 2d 409, 410-11 (Fla. 1st DCA 2005). In deciding whether to give a requested instruction, the trial court cannot weigh the evidence; it is enough if any evidence supports the defense. Terwilliger v. State, 535 So. 2d 346, 347 (Fla. 1st DCA 1988). Contending that the standard instruction was inadequate under the evidence, defense counsel requested a special instruction. The Florida Supreme Court has articulated a corollary rule on this subject: In order to be entitl…
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Warfield Raymond Wike, Jr. v. State, 648 So. 2d 683 (Fla. 1994)…e error. Faulk; Morales v. State, 609 So. 2d 765 (Fla. 3d DCA 1992); Graddy v. State, 606 So. 2d 1242 (Fla. 2d DCA 1992); Lamar v. State, 583 So. 2d 771 (Fla. 4th DCA 1991); Crowley v. State, 558 So. 2d 529 (Fla. 4th DCA 1990); Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988); Gari v. State, 364 So. 2d 766 (Fla. 2d DCA 1978); Dampier v. State, 336 So. 2d 683 (Fla. 2d DCA 1976); Cagnina v. State, 175 So. 2d 577 (Fla. 3d DCA 1965). In fact, this is true even though in 1968 section 918.09 was incorporate…
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Morgan v. State, 112 So. 3d 122 (Fla. 5th DCA 2013)…ing argued, the defense must show some evidence which suggests the possibility of entrapment. Once this threshold is met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction. See Terwilliger v. State, 535 So. 2d 346, 347 (Fla. 1st DCA 1988) (“It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; i…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Mathews v. United States, 485 U.S. 58 (U.S. 1988)
- Tison v. Arizona (two cases), 459 U.S. 882 (U.S. 1982)
- Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So. 2d 1 (Fla. 1982)
- McArthur Breedlove v. State, 413 So. 2d 1 (Fla. 1982)
- Birge v. State, 92 So. 2d 819 (Fla. 1957)
- Pope v. State, 458 So. 2d 327 (Fla. 1st DCA 1984)
- Collins Fruit Co. v. Giglio, 184 So. 2d 447 (Fla. 2d DCA 1966)
- State v. Wheeler, 468 So. 2d 978 (Fla. 1985)
- Raysor v. State, 272 So. 2d 867 (Fla. 4th DCA 1973)
- Kwasniewski v. State, 303 So. 2d 373 (Fla. 1st DCA 1974)