RICHARD BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Brown's conviction for delivery of heroin because the trial court erroneously excluded his testimony about conversations with a confidential informant, which were relevant to his entrapment defense and admissible as non-hearsay evidence of his state of mind.
The trial court erred in excluding the testimony. The conversations were admissible as non-hearsay evidence offered to show the defendant's state of mind and the inducement employed by the confidential informant, not to prove the truth of the statements. The defendant was improperly deprived of presenting facts essential to his entrapment defense.
[1] A defendant may present evidence of conversations with a confidential informant to support an entrapment defense, even if those conversations might otherwise be considere…
[2] The hearsay rule does not apply when an extrajudicial utterance is offered to show a party's state of mind or intent, rather than to prove the truth of the matter asserte…
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Join FLexlaw to unlock all legal intelligence“one who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he otherwise had no intention of committing may avail himself of the defense of entrapment”
Establishes the legal standard for the entrapment defense
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Join FLexlaw to unlock all legal intelligenceBrown was charged with two counts of delivery of heroin. A police officer and confidential informant Charles Jackson (Brown's lifelong friend) were in…
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WALDEN, Judge.
We reverse appellant’s conviction upon two counts of delivery of heroin.
A police officer, accompanied by a confidential informant, was involved in the deliveries. It was appellant’s position that he had been illegally entrapped by the confidential informant, one Charles Jackson, a lifelong friend of the appellant. However ,(and this is the point of this appeal), appellant was not permitted to testify as to the conversations he had with the confidential informant prior to the time of the deliveries because the court ruled that same were hearsay. While a portion of the conversations may have filtered out in testimony, the state’s objections were uniformly sustained, the conversations were stricken and the jury told to disregard them. Further, appellant was prevented from proffering same for the record.
The confidential informant was not at the trial and his whereabouts was not known.
Clearly, the conversations were relevant to the defense of entrapment. It is indeed basic that “one who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he otherwise had no intention of committing may avail himself of the' defense of entrapment; . . . ” and further, “the question whether entrapment has been resorted to, which will be a defense to a criminal prosecution, depends upon whether the criminal’s design originates with the officials of the government and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute, or whether artifice and strategem is employed to catch those engaged in a criminal enterprise. In the former there is entrapment; in the latter there is not.” See 9 Fla.Jur., Criminal Law § 409 (1972). See also 13 Fla.Jur., Evidence § 274 (1957); Darty v. State, 161 So. 2d 864 (2d D.C.A.Fla.1964); Thomas v. State, 152 Fla. 756, 13 So. 2d 148 (1943), as concerns verbal act evidence to show the mental attitude or intent of a defendant at the time the crime was committed.
As to hearsay the statements of the confidential informant were offered, not to prove the truth of the matter asserted, but rather to show the appellant’s state of mind and the inducement of the confidential informant.
“If, ... an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply.” 6, Wigmore on Evidence, § 1766 (1940)
Without laboring the matter further, the defendant was incorrectly deprived of his opportunity to present before the jury the facts going to make up his defense of entrapment. Thus, the judgment and sentence are reversed and the cause remanded for a new trial.
Reversed and remanded.
OWEN, ,C. J-, and CROSS, J., concur.
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Cited By (11 total)
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E.B. v. State, 531 So. 2d 1053 (Fla. 3d DCA 1988)…rly relevant. See Breedlove v. State, 413 So. 2d 1, 7 (Fla.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Nelson v. State, 388 So. 2d 1276, 1278 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1379 (Fla.1981); Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974), cert. denied, 310 So. 2d 740 (Fla.1975). See also Koon v. State, 513 So. 2d 1253 (Fla.1987) (out-of-court statement is admissible to show [*1055] knowledge on the part of the listener that the statement was made if this knowledg…
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Flynn v. State, 351 So. 2d 377 (Fla. 4th DCA 1977)…ants to explain their motives and states of mind at the time of the alleged inducement. The testimony offered was not offered to prove the truth of the informant’s statements but to attempt to show the state of the Defendants’ minds. Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974). We reverse and remand for a new trial because of this error. In rebuttal the State called a co-defendant who had previously pleaded guilty. His name was not furnished to the Defendants on discovery although rebuttal witnesses a…
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Richert v. State, 338 So. 2d 40 (Fla. 4th DCA 1976)…on on the basis of the hearsay rule as to a conversation which allegedly took place between the defendant and the man known as A.J. several weeks after defendant’s arrest. The trial court correctly sustained the hearsay objection. In Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974) we held that the trial court erred in excluding defendant’s testimony concerning conversations [*44] that he allegedly had with a police informant. However in Brown the statement of the police informant was offered, not to prove…
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
- Darty v. State, 161 So. 2d 864 (Fla. 2d DCA 1964)
- Manear v. Hathaway, 152 Fla. 756 (Fla. 1943)