Herrera v. State
| Decision Date | 06 February 1992 |
| Docket Number | No. 78290,78290 |
| Citation | 594 So.2d 275 |
| Parties | Orlando HERRERA, Petitioner, v. STATE of Florida, Respondent. 594 So.2d 275, 17 Fla. L. Week. S84 |
| Court | Florida Supreme Court |
Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., Joan Fowler, Bureau Chief, Sr. Asst. Atty. Gen. and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for respondent.
In Herrera v. State, 580 So.2d 653, 654 (Fla. 4th DCA 1991), the district court certified the following question as being of great public importance:
Do Instruction 3.04(c)(2), Florida Standard Jury Instructions in Criminal Cases, and Section 777.201(2), Florida Statutes (1989), both applicable to offenses after 1987, unconstitutionally shift the burden to the defense to prove entrapment?
We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, answer the question in the negative, and approve Herrera.
The State charged Herrera with trafficking in cocaine, conspiracy to traffic in cocaine, and obstructing an officer without violence. These charges resulted from a sting operation initiated by a confidential informant, and Herrera raised entrapment as an affirmative defense. Herrera asked the trial court to give the jury the former standard instruction on entrapment, the last paragraph of which stated: "On the issue of entrapment, the State must convince you beyond a reasonable doubt that the defendant was not entrapped." Instead, the court gave the jury the current standard instruction on entrapment, the final paragraph of which reads: "On the issue of entrapment, the defendant must prove to you by a preponderance of the evidence that his criminal conduct occurred as the result of entrapment." The jury convicted Herrera of the trafficking and obstruction charges, for which the trial court imposed consecutive fifteen- and one-year sentences, respectively. The district court affirmed the convictions, but remanded for resentencing, and certified the question set out above.
The new paragraph in the entrapment instruction is based on section 777.201, Florida Statutes (1989), which reads as follows:
(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.
This section is derived from chapter 87-243, section 42, Laws of Florida, and codifies, for the first time, a general entrapment defense. 1 This Court approved the new instruction for use in Florida's trial courts, but noted the instructions committee's concern over the constitutionality of the legislation and this Court's refusal to consider such an issue in nonadversarial proceedings. In re Standard Jury Instructions in Criminal Cases, 543 So.2d 1205 (Fla.1989). The instant case squarely presents the issue for our resolution.
Herrera argues that this Court's decisions on previous versions of the entrapment instruction, e.g., State v. Wheeler, 468 So.2d 978 (Fla.1985), demonstrate that the new instruction and subsection 777.201(2) violate the due process clauses of the United States and Florida Constitutions. The State, on the other hand, contends that the instruction and statute are constitutional because they shift only the burden of persuasion of an affirmative defense, not the burden of proving the elements of the crime charged and the defendant's guilt. The two district courts that have considered this issue have agreed with the State. E.g., Krajewski v. State, 587 So.2d 1175 (Fla. 4th DCA 1991); 2 Gonzalez v. State, 571 So.2d 1346 (Fla. 3d DCA 1990), review denied, 584 So.2d 998 (Fla.1991). We do likewise.
Entrapment is a judicially created 3 affirmative defense designed to prevent the government from contending a defendant "is guilty of a crime where the government officials are the instigators of his conduct." Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932). 4 To this end, "[t]he predisposition and criminal design of the defendant are relevant." Id. at 451, 53 S.Ct. at 216. If the defendant "is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.... common justice requires that the accused be permitted to prove it." Id. Thus, we have defined the "essential element of the defense of entrapment" as "the absence of a predisposition of the defendant to commit the offense." State v. Dickinson, 370 So.2d 762, 763 (Fla.1979). Subsection 777.201(1) now provides that lack of predisposition is an element of the defense.
Over the years Florida courts have gone back and forth on which side must produce evidence regarding the defendant's having been entrapped. 5 Some cases hold that defendants must show entrapment by proving their lack of predisposition toward criminal activity. E.g., Priestly v. State, 450 So.2d 289 (Fla. 4th DCA 1984); Evenson v. State, 277 So.2d 587 (Fla. 4th DCA 1973); Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965). Other cases have held that the State must disprove entrapment by showing the defendant's predisposition to commit the offense. E.g., Wheeler; Moody v. State, 359 So.2d 557 (Fla. 4th DCA 1978). Subsection 777.201(2) evidences the legislature's intent that the defendant should prove entrapment instead of requiring the State to disprove it.
Entrapment is an affirmative defense and, as such, is in the nature of an avoidance of the charges. 6 Evenson. As this Court has previously stated: "An 'affirmative defense' is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question." State v. Cohen, 568 So.2d 49, 51 (Fla.1990). In considering affirmative defenses the United States Supreme Court has held that "it is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) (citations omitted). The burden of proving the elements of a crime cannot be shifted to a defendant. E.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). If "a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged," however, "a defendant's constitutional rights are not violated." Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511 (1990). Earlier Florida cases recognized the principles set out in these more recent Supreme Court cases. E.g., Koptyra, 172 So.2d at 632 ()
For the first time the State, through the legislature, has decided that the burden is on defendants claiming entrapment to prove that they were entrapped. Sec. 777.201(2). We hold that allocating this burden to a defendant is not unconstitutional. Cf. Patterson, 432 U.S. at 210, 97 S.Ct. at 2327 ()
As stated earlier, the lack of predisposition to commit the crime charged is an essential element of the defense of entrapment. The predisposition to commit a crime, however, is not the same as the intent to commit that crime. As explained by the New Jersey Supreme Court in its consideration of this issue, State v. Rockholt, 96 N.J. 570, 476 A.2d 1236, 1242 (1984). Requiring a defendant to show lack of predisposition does not relieve the State of its burden to prove that the defendant committed the crime charged. The standard instructions require the State to prove beyond a reasonable doubt all the elements of the crime, and we find no violation of due process in requiring defendants to bear the burden of persuading their juries that they were entrapped.
Therefore, we answer the certified question in the negative and approve the district court's decision in Herrera. 7
It is so ordered.
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