GARY DODD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary Dodd appealed his cocaine trafficking conviction, challenging the trial court's denial of his motion for acquittal based on entrapment and the admission of cocaine lacking proper chain of custody. The court affirmed the trial court's rejection of the entrapment defense but reversed the conviction because the state failed to establish an adequate chain of custody for the cocaine evidence.
The entrapment defense had no merit under the objective test in Cruz v. State. However, the trial court erred in admitting the cocaine into evidence because the state failed to establish a sufficient chain of custody; the significant discrepancies in weight and conflicting descriptions of the evidence's packaging indicated probable tampering, and the absence of testimony from the special agent who transported the evidence prevented the court from determining whether the cocaine at trial was the same cocaine seized from Dodd.
[1] Entrapment has not occurred as a matter of law where police activity has as its end the interruption of a specific ongoing criminal activity and utilizes means reasonably…
[2] The state must establish a proper chain of custody for physical evidence to be admissible.
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Join FLexlaw to unlock all legal intelligence“[entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.”
States the objective test for entrapment under Cruz v. State that the court applied to reject Dodd's entrapment defense
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Join FLexlaw to unlock all legal intelligenceDodd was arrested for trafficking and conspiracy to traffic in cocaine. An officer seized plastic bags of cocaine from Dodd, initially weighing 317.5 …
The full statement of facts, procedural history, and disposition for this case are member content.
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JORGENSON, Judge.
Gary Dodd appeals from his conviction and sentence for trafficking and conspiracy to traffic in cocaine. He asserts error in the trial court’s refusal to grant his motion for a judgment of acquittal based upon entrapment and the state’s failure to show actual possession or proper chain of custody. For the following reasons, we reverse.
Dodd’s first contention, that he was entrapped, is wholly without merit. According to the threshold objective entrapment test set forth in Cruz v. State, 465 So. 2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), “[entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.” Cruz, 465 So. 2d at 522. Under the facts of this case, both prongs of the Cruz test have been satisfied.
Dodd’s second point on appeal, however, does have merit. The trial court erred in admitting into evidence the cocaine seized from Dodd where the state failed to establish a proper chain of custody. As a general rule, the state is not required to elicit testimony from every custodian in the chain. Relevant physical evidence is admissible unless there is some indication of probable tampering with the evidence. Peek v. State, 395 So. 2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981); Stunson v. State, 228 So. 2d 294 (Fla. 3d DCA 1969), cert. denied 237 So. 2d 179 (Fla.1970).
The officer who seized the cocaine testified at trial that he placed the plastic bags of cocaine into a container. When weighed on a postal scale, the container and its contents registered a combined weight of 317.5 grams. The same officer transported the container to the FDLE office in Miami, where a contraband scale registered a combined weight of 249.5 grams. According to his testimony, the officer then put the bags inside a single plastic bag, heat-sealed the bag, and marked the date and his initials on the outside of the bag. The officer used a secure evidence locker to store the contraband until such time as he removed the bag and turned it over to a special agent who was to hand deliver it to the crime lab in Orlando. A chemist from the crime lab testified that a heat-sealed plastic bag was delivered to the lab by the special agent. According to the chemist, the bag showed no markings whatsoever. The contraband, minus its packaging, registered a net weight of 220 grams on the lab scale. The state did not call the special agent to testify, nor was he listed as a potential witness in the state’s pretrial catalog. In the course of three redirects, the officer who first seized and secured the contraband managed to explain some, but not all, of the discrepancies in weight and packaging. Notwithstanding the testimony on redirect, a mere reasonable possibility of tampering is sufficient to require proof of the chain of custody.
Applying the test set forth in Stunson, the conflicting descriptions of the bag and the gross discrepancies in the recorded weights and packaging details indicate probable tampering. It is plain that the contraband received by the crime lab was not in the same condition as was testified to by the officer who seized the contraband. On this record we cannot tell whether the cocaine Dodd sold and the cocaine introduced at trial are one and the same. Thus, it was error for the trial court to admit the cocaine into evidence without first receiving testimony from the special agent that would explain the changes in the condition of the evidence between the time of seizure and the time of trial. Lacking the testimony of the special agent, the state could not establish a sufficient chain of custody for the cocaine to be admitted in evidence against Dodd.
The conviction and sentence under review are reversed, and the cause is remanded for a new trial.
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Citator
Cited By (17 total)
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Overton v. State, 976 So. 2d 536 (Fla. 2007)…ontrary to Overton’s argument, this Court has not held that a broken chain of custody alone is enough by itself to establish probable tampering. See Taplis v. State, 703 So. 2d 453, 454 (Fla.1997) (acknowledging that a fair reading of Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988), is that the “State’s failure to account for a gap in the chain of custody which, when considered together with the other evidence of tampering, supports] a conclusion of probable tampering”) (emphasis added). Here, there was no e…
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Lancelot Uriley Armstrong v. State, 73 So. 3d 155 (Fla. 2011)…that the trial court abused its discretion in admitting the evidence because Murray met his burden of demonstrating probable evidence tampering and the State failed to meet its burden of proving that such tampering did not occur) and Dodd v. State, 537 So. 2d 626, 627 (Fla. 3d DCA 1988) (concluding that the State failed to establish a sufficient chain of custody to meet its burden of proving that tampering did not occur). Nevertheless, a sufficient showing of the chain of custody is made where the object has…
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Murray v. State, 838 So. 2d 1073 (Fla. 2002)…n part. In reviewing these claims, we start with the basic legal principle that “[rjelevant physical evidence is admissible unless there is an indication of probable tampering.” Peek v. State, 395 So. 2d 492, 495 (Fla.1980); see also Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988). In seeking to exclude certain evidence, Murray bears the initial burden of demonstrating the probability of tampering.8 Once this burden has been met, the burden shifts to the proponent of the evidence to submit evidence that tam…1 / 2
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cruz v. State, 465 So. 2d 516 (Fla. 1985)
- Peek v. State, 395 So. 2d 492 (Fla. 1980)
- Wilson v. Florida, 473 U.S. 905 (U.S. 1985)
- Christoffersen et ux. v. United States, 473 U.S. 905 (U.S. 1985)
- Schiller v. United States, 451 U.S. 964 (U.S. 1981)
- Pickens v. Arkansas, 451 U.S. 964 (U.S. 1981)
- Stunson v. State, 228 So. 2d 294 (Fla. 3d DCA 1969)
- State v. Lietch, 237 So. 2d 179 (Fla. 1970)
- State v. Darnell, 237 So. 2d 179 (Fla. 1970)