Bauer v. State, 86-753

• Decision Date: 18 May 1988
• Docket Number: No. 86-753,86-753
• Citation: 528 So.2d 6,13 Fla. L. Weekly 1230
• Parties: 13 Fla. L. Weekly 1230 Kenneth John BAUER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 6

528 So.2d 6

13 Fla. L. Weekly 1230

Kenneth John BAUER, Appellant, v. STATE of Florida, Appellee.

No. 86-753.

District Court of Appeal of Florida,

Second District.

May 18, 1988.

Rehearing Denied July 5, 1988.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

SCHOONOVER, Judge.

Kenneth Bauer appeals the judgments and sentences imposed upon him after he was found guilty of seven counts of dealing in stolen property in violation of section 812.019, Florida Statutes (1983). We agree with the appellant's contention that the trial court erred in allowing a law enforcement officer to testify regarding information supplied to the officer by a confidential informant because the testimony was inadmissible hearsay. We, accordingly, reverse the appellant's convictions and remand for a new trial.

Kenneth Chouinard, a special agent with the Florida Department of Law Enforcement, was the state's key witness at the trial of the appellant and his codefendant, Tony Scaglione. During the cross-examination of Agent Chouinard, defense counsel posed certain questions designed to establish the defense of entrapment. On redirect examination of Agent Chouinard, the state attempted to rebut the asserted entrapment defense by presenting evidence of the appellant's predisposition to commit the charged offenses. During the colloquy which follows, Agent Chouinard was permitted to testify over defense counsel's objections about certain information he had obtained from an unnamed confidential informant:

Q. ... Why did you seek introduction to Mr. Scaglione and Mr. Bauer and start your undercover investigation to begin with in this case?

A. I was given information by a confidential source that there were activities going on in the particular restaurant involving Mr. Scaglione and Mr. Bauer to the fact that dealing and selling of stolen property was occurring within that particular establishment involving those two particular individuals, Mr. Scaglione and Mr. Bauer.

At the conclusion of the state's case, the defense moved to dismiss the charges on the grounds that the appellant and Scaglione had been entrapped as a matter of law. That motion was denied, and the question of subjective entrapment was submitted to the jury. The jury subsequently found the appellant guilty as charged. After the appellant's motion for new trial was denied, he timely filed a notice of appeal from the judgments and sentences imposed as a result of the jury verdicts.

Although the appellant has raised two points on appeal, we find merit only in his contention that Agent Chouinard's testimony regarding the information he had received from the confidential informant was inadmissible hearsay and its erroneous admission was not harmless under the circumstances of this case. We, accordingly, decline to address the other point raised by the appellant.

Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter contained in the statement. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); § 90.801(1)(c), Fla.Stat. (1983). Any reasonable interpretation of Agent Chouinard's testimony leads to the conclusion that it was introduced by the state to prove the truth of the words spoken by the confidential informant, i.e., that the appellant was dealing in and selling stolen property prior to Agent Chouinard's investigation. Although it has long been the law of this state that a law enforcement officer may testify as to what action he took pursuant to information received from a confidential informant, his testimony regarding the content of such information constitutes hearsay. Collins v. State, 65 So.2d 61 (Fla.1953); Haynes v. State, 502 So.2d 507 (Fla. 1st DCA 1987); Davis v. State, 493 So.2d 11 (Fla. 3d DCA 1986); Postell v. State, 398 So.2d 851 (Fla. 3d DCA), petition for review denied, 411 So.2d 384 (Fla.1981). Thus, Agent Chouinard's testimony sub judice was clearly hearsay, and absent a specific statutory exception to the contrary, it was inadmissible. See § 90.802, Fla.Stat. (1983). The rule against hearsay and the statutory exceptions thereto are not set aside by the raising of an entrapment defense.

The entrapment defense which focuses on the predisposition of the defendant is termed the subjective view of entrapment. See Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). When, as here, the defense of subjective entrapment is properly raised, the state has the burden of proving that the accused had the predisposition to commit the offense charged. See State v. Wheeler, 468 So.2d 978 (Fla.1985). The state may prove predisposition by showing that a defendant has prior convictions or a reputation for committing similar crimes, that law enforcement had a reasonable suspicion that the defendant was engaged in similar crimes, or the defendant showed ready acquiescence to commit the crime suggested by law enforcement. Wheeler; Cruz. See also, State v. Sokos, 426 So.2d 1044 (Fla. 2d DCA 1983).

In support of its use of Agent Chouinard's hearsay testimony, the state cites Story v. State, 355 So.2d 1213 (Fla. 4th DCA), cert. denied, 364 So.2d 893 (Fla.1978), for the proposition that an officer's reasonable suspicion of the defendant's involvement in similar crimes can be established through the tip of a confidential informant. Although Story contains language which provides some support for the state's argument, the facts in Story did not involve an informant's tip, nor did the court hold that the contents of a confidential informant's out of court statements to an officer are generally admissible notwithstanding the rule against hearsay. ¹ To the extent that Story can be interpreted to permit the presentation of inadmissible hearsay in order to rebut the defense of entrapment, we disagree with it.

This position is entirely consistent with our supreme court's holding in Morris v. State, 487 So.2d 291 (Fla.1986). In Morris, the defendant attempted to establish a defense of entrapment through the presentation of certain hearsay evidence, but the trial court excluded the evidence on the grounds that it was inadmissible hearsay. Our supreme court found that the evidence in question was admissible and, therefore, wrongfully excluded by the trial court. The court, however, did not hold that hearsay statements of a confidential informant are generally admissible, but held that under the facts of that case the statements in question were admissible pursuant to a statutory exception to the hearsay rule, section 90.803(3)(a)(2), Florida Statutes (1983). In fact, the court stated that although an accused should be afforded a reasonable latitude in presenting facts and circumstances concerning entrapment, such evidence must be presented "subject to the ordinary rules of admissibility." Morris at 294 quoting Spears v. State, 264 Ark. 83, 92, 568 S.W.2d 492, 499 (1978). We agree and, furthermore, find no reason to set aside the ordinary rules of admissibility when the state, rather than the defendant, offers the evidence.

At trial and in its appellate brief, the state relied on United States v. Robinson, 446 F.2d 562 (5th Cir.), cert. denied, 404 U.S. 959, 92 S.Ct. 323, 30 L.Ed.2d 277 (1971), Thompson v. United States, 403 F.2d 209 (5th Cir.1968), and Rocha v. State, 401 F.2d 529 (5th Cir.1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 796 (1969), to support its position that the hearsay testimony sub judice was admissible to rebut the defense of entrapment. Although these cases illustrate the fact that the Fifth Circuit had for some time permitted the government to introduce hearsay as proof of the defendant's predisposition, the line of cases permitting the admission of such evidence was specifically overruled in United States v. Webster, 649 F.2d 346 (5th Cir.1981) (en banc). In Webster, the court noted that statements made by an informant to a law enforcement officer about specific instances in which the defendant engaged in criminal activities when offered to prove predisposition of the defendant are "out-and-out hearsay." Webster at 349. The court went on to state that predisposition is a state of mind, and that:

Our creation of a rule that allows gross hearsay evidence to be used to prove predisposition has resulted in the very evils that the rule against hearsay was designed to prevent. The jury is free to believe the unsworn, unverified statements of government informants, sometimes unidentified, whose credibility is not subject to effective testing before the jury and whose motivations may be less than honorable. We are hard pressed to envision a situation where the disparity between the probative value and prejudicial effect of evidence is greater.

Webster at 350 (footnote omitted). The court concluded by holding that hearsay evidence is never admissible for the purpose of proving the defendant's predisposition and stated, "All prior decisions of this Court to the contrary are hereby overruled." Webster at 350.

We agree with the rationale of the Webster court. Furthermore, we are aware of no cases, including the cases cited in the dissent, where a Florida court has held that hearsay evidence can be used to prove or disprove subjective entrapment despite a proper objection that such evidence is not specifically described by a statutory exception to the rule against hearsay. To the contrary, our supreme court specifically stated in Morris that evidence pertaining to the facts and circumstances of entrapment must be presented according to the ordinary rules of admissibility. We, accordingly, hold that where an accused has raised the defense of entrapment, hearsay is only...