Flynn v. State

• Decision Date: 01 November 1977
• Docket Number: 76-482,Nos. 76-421,s. 76-421
• Citation: 351 So.2d 377
• Parties: Harry FLYNN, Appellant, v. STATE of Florida, Appellee. Frank STORY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 377

351 So.2d 377

Harry FLYNN, Appellant, v. STATE of Florida, Appellee.

Frank STORY, Appellant, v. STATE of Florida, Appellee.

Nos. 76-421, 76-482.

District Court of Appeal of Florida, Fourth District.

Nov. 1, 1977.

Stuart R. Mishkin, Miami, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.

DAUKSCH, Judge.

Appellants appeal their conviction and sentence for delivery of cannabis. Their trial was joint and their appeals have been consolidated. In their briefs they have raised eight matters for our consideration. We shall speak to each.

The first point involves the trial court's refusal to allow a defendant's testimony as to a discussion had between him and the police informant involved in the setting up of the delivery. Apparently the informant's father is a house painter and a reserve policeman. The painter and his son came to the Defendant's residence to discuss the drug transaction. At trial the Defendants asserted the entrapment defense alleging they did what they did only to help out a troubled friend the informant. To disallow the Defendants to testify about the conversations, as they recalled them, was to remove the heart of their defense. It matters not that the identity of the "confidential" informant was made known to the Defendants prior to trial because the error was not in disallowing the informant's testimony but in not permitting the Defendants 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 are not excluded from the requirements of Fla.R.Crim.P. 3.220. They must be included if they are among those "persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto." Fla.R.Crim.P. 3.220(a)(1)(i). There are various sanctions provided under Fla.R.Crim.P. 3.220(j) which the court has the discretion to impose. Or the court may impose no sanctions if it finds no prejudice to the defendant on account of the non-disclosure. Richardson v. State, 246 So.2d 771 (Fla.1971). But the court must make adequate inquiry into the circumstances surrounding the non-compliance to determine the lack of prejudice. Here the court failed to make inquiry. We reverse on that point as well and remand for retrial. See also Hardison v. State, 341 So.2d 270 (Fla. 2d DCA 1977) and Frazier v. State,336 So.2d 435 (Fla. 1st DCA 1976). Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970). Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977).

The Appellants next complain of the court's refusal to direct a judgment of acquittal alleging the State failed to overcome the defense of entrapment. Richert v. State, 338 So.2d 40 (Fla. 4th DCA 1976), holds ". . . when the undisputed testimony of a defendant is the sole basis for an entrapment defense, entrapment is not established as a matter of law but rather is an issue for the jury to decide." The facts in Richert, supra, are stronger for the defense. We reject Appellants' contention on this point based on the evidence in this record.

The next point concerns the prosecutor's questions and comments about a defendant's not having told "officially" (other than his lawyer) of his entrapment. A possible oblique reference to a prior invocation of the privilege to refuse to vocally incriminate oneself. Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). Prosecutors cannot do this and courts cannot allow it to be done.

The next point involves various alleged improper conduct by the prosecutor including laughing and alleged improper remarks. No trial is sterile and no lawyer can be expected to be a model, stone-faced throughout. Suffice it to say we, like the prosecutor, might have chuckled ourselves when defense counsel, after objection, changed his leading question to a doubly leading question. The remarks were not improper. Objections to them were sustained. No curative instructions were requested.

Next, the court said on voir dire of the jurors: "Guilty or not guilty, that's the question you answer." These remarks do not fall to the depths of error found in Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), so we decline the invitation to reverse on this point but note them as such to be avoided. An "Allen Charge" or any approach to it can only be made in limited circumstances. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Certainly not on voir dire. As this trial judge was urged in Kozakoff, supra, to consider the possibility...