TERRY THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry Thomas was convicted of attempted armed robbery based partially on hearsay testimony from a deceased informant who had warned police of the robbery plan in advance. The court reversed and remanded for a new trial, finding the informant's statements inadmissible hearsay that could not prove Thomas's specific intent to commit robbery, and identifying additional trial errors including exclusion of entrapment defense evidence and improper prosecutorial argument regarding a prior conviction.
The informant's statements were inadmissible hearsay that could not competently evidence the purpose or specific intent of the accused survivors. While the conspiracy and use of force were evident from admissible evidence, the hearsay could not prove the specific intent required for armed robbery as opposed to other violent crimes. Thomas's entrapment defense testimony should have been admitted on retrial, and the prosecutor's argument regarding the prior conviction was improper.
[1] Statements made by a deceased informant to law enforcement prior to an offense are inadmissible hearsay when offered to prove the intent of co-conspirators, absent circum…
[2] A defendant's testimony regarding conversations with an informant that tend to support an entrapment defense should be admitted.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the informant's narration to the deputies was not a res gestae statement, made spontaneously in circumstances excluding the idea of design or deliberation in the statement”
Establishes that the informant's statements to police were not admissible as spontaneous res gestae declarations but rather were deliberate narrations made to expose the conspiracy.
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Join FLexlaw to unlock all legal intelligenceOn January 28, 1976, Thomas and two armed, masked confederates entered a Pensacola residence. Thomas, unmasked, rang the doorbell; when opened, the tw…
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SMITH, Judge.
Thomas appeals from a judgment of conviction for attempted armed robbery, entered on a jury verdict. He urges the inadmissibility of a police officer’s testimony that a participant in the offense confidentially advised the officer in advance that a robbery would take place; the insufficiency of the evidence other than the hearsay to prove a specific intent to commit robbery; the admissibility of Thomas’ testimony concerning conversations with the informant supporting his entrapment defense; and the impropriety of the prosecutor’s jury argument concerning Thomas’ prior conviction of the crime. On January 28, 1976, Thomas and two armed, masked confederates gained entry to a Pensacola residence. Thomas, who was not masked, rang the doorbell. When the occupant opened the door, the two masked men rushed in brandishing shotguns. They were intercepted by waiting sheriff’s deputies. One of the masked intruders was shot dead. It was he who, two days before, met with sheriff’s deputies and advised them in detail that the three intended to commit a robbery in the manner in which the episode unfolded on the night of the 28th.
The State argues that the statements made by the deceased informant to deputies on the 26th, and before that in a telephone conversation, were admissible as part of the res gestae to show the intent or state of mind of the declarant.
Thus the State argues the declarations evidence the informant’s intent to take part in a robbery and may be considered as showing also the intent of his co-conspirators.
We conclude, on the contrary, that the informant’s statements were inadmissible hearsay. There is no difficulty in finding from the admissible evidence that the three intruders were engaged in a conspiracy to effect some offense at the residence on the night of the 28th and that the conspiracy preceded the acts .done to effectuate it.- But the informant’s narration to the deputies was not a res gestae statement, made spontaneously in circumstances excluding the idea of design or deliberation in the statement. State v. Williams, 198 So. 2d 21 (Fla.1967); State v. Snowden, 345 So. 2d 856 (Fla. 1st DCA 1977).
Nor was the informant’s recitation made by a co-conspirator to further the conspiracy and effectuate its objects. On the contrary, the informant’s purpose was to expose the conspiracy, and that purpose may not be attributed to others on principles of agency. See, generally, Strickland v. State, 122 Fla. 384, 165 So. 289 (1936); contrast Mercer v. State, 40 Fla. 216, 24 So. 154 (1898).
Although the informant’s recitation amply and, as it turned out, accurately depicted the criminal plan, the deputy’s testimony of the recitation was hearsay which could not competently evidence the purpose of the accused survivors of the invasion. That Thomas and his confederates intended to force entry by means of weapons, and to commit some violent offense on the premises, cannot be doubted; but the dead informant’s prior accusation is not competent proof that the survivors intended robbery rather than murder, rape, or some other vicious assault. Although there was no other evidence of the specific intent required for the offense charged, the ends of justice require a new trial rather than discharge.
On the prosecutor’s objection, the trial court excluded Thomas’ testimony in support of his entrapment defense of a conversation Thomas had with the informant. On the necessary retrial, evidence of conversations between Thomas and the informant tending to support the entrapment defense should be admitted. Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974).
We find also that the prosecutor improperly argued to the jury concerning Thomas’ prior conviction of a crime:
“Did someone entrap him into the commission of the other crime? Will you tell me, some jury was inclined to disbelieve it.”
There was no evidence, nor could there have been, that Thomas was previously convicted notwithstanding an entrapment defense. Plainly, the argument invited improper speculation on a nonexistent issue.
REVERSED and REMANDED for a new trial.
MILLS, Acting C. J., and ERVIN, J., concur.
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Grant v. State, 138 So. 3d 1079 (Fla. 4th DCA 2014)…ng specific firearms used in crimes; identifying firearms that have been lost or stolen; and assisting in the prosecution of firearm offenses. United States v. Harris, 720 F. 3d 499, 502-03 (4th Cir.2013). . Grant also relies upon Thomas v. State, 349 So. 2d 743 (Fla. 1st DCA 1977), but that case is of little help. Thomas was reversed for a new trial because hearsay was admitted to prove the crime the defendant intended upon entering a residence. Thomas is not a case that evaluated whether the quantum of ev…
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Antunes-Salgado v. State, 987 So. 2d 222 (Fla. 2d DCA 2008)…der section 90.803(18)(e)); Isom v. State, 619 So. 2d 369, 372 (Fla. 3d DCA 1993) (holding that coconspirator’s postarrest statements were not in furtherance of the conspiracy and so were not admissible under section 90.803(18)(e)); Thomas v. State, 349 So. 2d 743, 744 (Fla. 1st DCA 1977) (holding that eoconspirator’s statement to police during the course of the conspiracy was intended to expose the conspiracy rather than further it and -so was not admissible under section 90.803(18)(e)). Here, there is no q…
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Davis v. State, 539 So. 2d 555 (Fla. 4th DCA 1989)…(Fla. 1st DCA 1988). Further, there is no merit in the state’s argument that the statements were the statements of a co-conspirator. See Nelson v. State, 490 So. 2d 32 (Fla.1986); Moore v. State, 503 So. 2d 923 (Fla. 5th DCA 1987); Thomas v. State, 349 So. 2d 743 (Fla. 1st DCA), cert. denied, 354 So. 2d 987 (Fla.1977). It was also error to admit the details of the prior conviction and sentence of the witness. Parker v. State, 458 So. 2d 750 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. State, 40 Fla. 216 (Fla. 1898)
- State v. Williams, 198 So. 2d 21 (Fla. 1967)
- Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974)
- State v. Snowden, 345 So. 2d 856 (Fla. 1st DCA 1977)
- Coy Strickland v. State, 122 Fla. 384 (Fla. 1936)