Bricker v. State
| Decision Date | 15 January 1985 |
| Docket Number | No. 83-1524,83-1524 |
| Citation | 462 So.2d 556,10 Fla. L. Weekly 203 |
| Parties | 10 Fla. L. Weekly 203 Daniel BRICKER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
By this appeal, Daniel Bricker challenges his conviction of bribery [§ 838.015, Fla.Stat. (1981) ] and receiving unauthorized compensation for official behavior [§ 838.016(1), Fla.Stat. (1981) ].
Bricker was employed by the State of Florida Department of Professional Regulation (Department) as an inspector of beauty salons for licensing requirements and sanitation purposes. In the fall of 1982, the Department issued a delinquency list of beauty salons with expired licenses. One of these salons, Avant Garde, was inspected by Bricker who reported to his supervisor that he thought the owner was trying to bribe him. The supervisor advised Bricker that there was nothing Bricker could do unless somebody gave him something and he could document the transaction. Bricker prepared a memorandum of the incident, wrote up the salon for their violations of the licensing requirements and dropped the matter.
A week later, Bricker investigated another salon, La Coupe Pedrangel (La Coupe), whose owner, Torres, could not produce a salon or a personal beautician license. Several customers were in the salon on the day Bricker called on La Coupe. Bricker initially inquired of Torres where the licenses were, to which Torres replied that Bricker should contact his (Torres') lawyer. Bricker persisted in asking for proof of the licenses, to the point of disrupting business in the salon. As several of the customers were staring at the two men, it was suggested that the two men go into the back room of the shop. There, a discussion of licenses and possible fines ensued wherein each party suspected the other of possible bribery. Bricker told Torres that he could be fined up to $500. Torres replied that he could not afford to be out of the shop and asked Bricker, "if there was some way to take care of it, a couple of hundred dollars or something?" Bricker replied that "he was listening." Torres said that he didn't have sufficient money at that time and Bricker would have to return the following Monday. Bricker then wrote up an inspection report reciting the applicable violations and had Torres sign the report. After Bricker left La Coupe, Torres returned to his customers and told them what had transpired in the back room. Subsequently, Torres informed the state attorney's office that a possible bribery would occur on Monday. At the request of police officers, Torres agreed to be body-wired for the meeting. The officers provided him with an envelope containing five one hundred dollar bills. The investigators then set up a perimeter surveillance for that Monday.
Meanwhile, Bricker had asked an employee of the State of Florida Division of Licensing to run a corporate check on La Coupe. However, Bricker had left for La Coupe on the Monday in question before the results were known. Bricker entered the beauty salon, which was closed, and accompanied Torres to the back room. After much discussion, but without being requested to do so, Torres took out the envelope that the state attorney's office had provided and threw it on the table. Bricker examined the contents and exclaimed, and returned two of the five one hundred dollar bills. Bricker remained for another thirty minutes and gave Torres additional information regarding new licenses for the shop. Upon exiting the beauty salon, Bricker was arrested. He later met with his supervisors and explained that he had attempted to trap Torres; Bricker was thereafter fired.
At trial the state presented the tape of the body wire as evidence, in addition to testimony of the two customers who were in the La Coupe salon during the initial encounter. Additionally, over objection, the testimony of the owner of the Avant Garde salon was admitted into evidence. In the latter's testimony it was stated that Bricker had received from him a one hundred dollar bribe. Following trial, the jury found Bricker guilty as charged in the La Coupe incident, and he was sentenced to two concurrent four year terms of imprisonment.
Bricker raises two points in this appeal. First, he contends that it was error for the trial court to allow, over objection, evidence of a similar crime (the Avant Garde bribery), which he states only went to prove his criminal propensity, thereby depriving him of a fair trial. Second, he asserts that the trial court erred by admitting, over objection, hearsay testimony as to a crucial issue, thus additionally denying him a fair trial. We agree and reverse.
During opening argument, the state made references to the Avant Garde incident. Subsequently, the state was allowed to present two witnesses, the owners of the Avant Garde salon who testified that they gave Bricker one hundred dollars to not report the license violations. During closing argument, the state again made reference to the Avant Garde salon to show a common scheme by which Bricker received the bribes.
Section 90.404(2)(a), Florida Statutes (1981), provides that:
[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
The state codified the holding of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which stated that the test for admissibility is relevancy. Id. at 661.
The state urges that the similar criminal act was properly admitted to show a common scheme for Bricker's behavior in the two incidents. The state points to the common elements of both, to-wit: Bricker entered a busy salon and, in front of clients, made requests to...
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