Boyd v. State

• Decision Date: 19 March 1980
• Docket Number: No. 79-101,79-101
• Citation: 389 So.2d 642
• Parties: John D. BOYD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 642

389 So.2d 642

John D. BOYD, Appellant, v. STATE of Florida, Appellee.

No. 79-101.

District Court of Appeal of Florida, Second District.

March 19, 1980.

As Modified On Denial of Rehearing May 14, 1980.

William M. Moran, George D. Gold, and Sheryl Joyce Lowenthal of Moran & Gold, Miami, and Ronald K. Cacciatore, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

What jury instructions on the subject of conspiracy are required in a criminal trial when the crime of conspiracy is not charged but proof of a conspiracy is relied upon to establish the defendant's responsibility for the crime charged and hearsay statements of co-conspirators are admitted as evidence of the conspiracy? We address this question for the first time and find error in the instructions given in this case. Therefore, we reverse appellant's conviction and remand for a new trial.

Appellant was charged in a three-count information with (1) bringing a controlled substance into Florida, (2) possession of cannabis over 5 grams, and (3) possession of cannabis with intent to deliver. All three charges stemmed from the off-loading of a quantity of marijuana from a small aircraft which landed in a wooded area of Glades County. Appellant was not present on that occasion but the state charged him with importation and possession on the theory that those present were co-conspirators of appellant in a scheme to import marijuana from South America. A jury found appellant guilty as charged on all three counts.

Cautionary Instructions Regarding Co-Conspirators' Hearsay Statements

The trial judge permitted witnesses to testify as to out-of-court declarations and acts of appellant's alleged co-conspirators under the co-conspirator exception to the hearsay rule. That rule has its genesis in the basic principle that when a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each. Brown v. State, 128 Fla. 762, 175 So. 515 (1937), clarified, 130 Fla. 479, 178 So. 153 (1938). Accordingly, a hearsay (out-of-court) statement of a defendant's alleged co-conspirator is admissible against the defendant if the statement was made during the pendency of the conspiracy and in furtherance of its objectives, provided that there is evidence of the conspiracy independent of the hearsay testimony. The requirement of independent evidence is a condition of admissibility. Briklod v. State, 365 So.2d 1023 (Fla.1978); Resnick v. State, 287 So.2d 24 (Fla.1973).

The admissibility of an out-of-court declaration of a co-conspirator is not affected by the fact that the defendant is not charged with the crime of conspiracy. People v. Wallace, 13 Cal.App.3d 608, 91 Cal.Rptr. 643 (Ct.App.1970). However, in cases where conspiracy is not charged but the existence of a conspiracy must be established in order for the jury to find the defendant guilty, as well as in cases where the crime of conspiracy is charged, the condition of admissibility of a co-conspirator's hearsay statement the existence of independent evidence of the conspiracy coincides with an ultimate fact which the jury must find. This raises the question whether the condition of admissibility is for the judge to determine, for the jury to determine, or for both.

In the present case, at that point in the trial when the hearsay statements of appellant's alleged co-conspirators were first offered in evidence, appellant requested the trial judge to give the jury an instruction which he describes as the cautionary instruction called an Apollo instruction held to be required in such situations by the court in United States v. Apollo, 476 F.2d 156 (5th Cir. 1973). The trial judge declined and appellant argues that his refusal to give the instruction was error.

We reject appellant's argument for two reasons. In the first place, the instruction requested by appellant was not the Apollo instruction. The Apollo case involved fourteen defendants charged with a conspiracy to import marijuana, four of whom were also charged with the substantive offense of importing a specific amount of marijuana. In that context that is, a conspiracy case involving multiple defendants the Apollo court held that when extrajudicial statements of alleged co-conspirators are proffered, the trial judge must give a cautionary instruction on the limited uses of such hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant's participation in it must be established by independent, nonhearsay evidence.

In this case, appellant requested that the following instruction be given:

Any admissions or statements made or acts done outside of court by one person may not be considered as evidence against any person who was not present and did not hear the statement made or see the act done. Therefore, statements of any alleged conspirator which are not made in furtherance of a conspiracy or made before its existence or after its termination may be considered as evidence only against the person making that. However, (if) it ever is established beyond a reasonable doubt from the evidence that a conspiracy existed and from independent evidence of his own conduct, it is established beyond a reasonable doubt that the defendant was one of its members, then the statements thereof knowingly made, the actions thereof, knowingly done, by any person likewise found to be a member, may be considered as evidence in the case as to any defendant found from the evidence, beyond a reasonable doubt to (be) a member of the conspiracy.

A very similar instruction was disapproved in United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). The comments on the point in that opinion by Judge Learned Hand are particularly apposite and have been quoted many times by courts following his reasoning:

It is difficult to see what value the declarations could have as proof of the conspiracy, if before using them the jury had to be satisfied that the declarant and the accused were engaged in the conspiracy charged; for upon that hypothesis the declarations would merely serve to confirm what the jury had already decided. In strict logic these instructions in effect altogether withdrew the declarations from the jury, and it was idle to put them in at all. The law is indeed not wholly clear as to who must decide whether such a declaration may be used; but we think that the better doctrine is that the judge is always to decide, as concededly he generally must, any issues of fact on which the competence of evidence depends, and that, if he decides it to be competent, he is to leave it to the jury to use like any other evidence, without instructing them to consider it as proof only after they too have decided a preliminary issue which alone makes it competent. Indeed, it is a practical impossibility for laymen, and for that matter for most judges, to keep their minds in the isolated compartments that this requires.

Judge Hand's analysis has been adopted and followed in both federal and state courts. E. g., Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1265, 12 L.Ed.2d 498, cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498, cert. denied, 377 U.S. 953, 84 S.Ct. 1627, 12 L.Ed.2d 498; People v. Halpin, App.Div., 418 N.Y.S.2d 929 (App.Div.1979). Finding no error in the trial judge's refusal to give an instruction similar to that requested by appellant in this case, the court in Carbo pointed out that such an instruction would have the trial judge in effect say to the jury "you may not consider this evidence unless you first find the defendant guilty."

But even if the instruction requested by appellant in this case had been the correct Apollo instruction, we nevertheless would find no error in the trial judge's refusal to give that instruction. Appellant was the only defendant in this case and he does not claim that there was insufficient independent evidence of a conspiracy. Under either circumstance, no prejudice results from the failure to give a cautionary Apollo instruction; that instruction in such a case is meaningless and useless. United States v. Buschman, 527 F.2d 1082 (7th Cir. 1976); United States v. Moore, 505 F.2d 620 (5th Cir. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975).

We note parenthetically that the court which rendered the Apollo decision recently overruled it. United States v. James, 590 F.2d 575 (5th Cir. 1979), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The James court held that the preliminary determination of the admissibility of a co-conspirator's hearsay statement is to be made pursuant to Federal Rule of Evidence 104(a), and that rule requires the trial judge alone to make the determination. The court explained that the Apollo instruction reflected the thought that both the trial judge and the jury played a part in the determination of admissibility. The Federal Rules of Evidence became effective July 1, 1975, two years after the decision in Apollo.

But the Apollo rule lives on in Florida. The Florida Evidence Code (Chapter 90, Florida Statutes, 1979) is similar to the Federal Rules of Evidence in many respects; Section 90.105 of the Code is a counterpart of Federal Rule of Evidence 104. The co-conspirator exception to the Hearsay rule is almost identically stated in Federal Rules of Evidence 801(d)(2)(E) and in Section 90.803(18)(e) of the Florida Evidence Code. Unlike the federal rules, however, Section 90.803(18)(e) adopts the Apollo instruction by providing that "upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member's participation in it must be...