Holiday v. State
| Decision Date | 24 February 2000 |
| Docket Number | No. SC95582.,SC95582. |
| Parties | Zackery HOLIDAY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender, and Michael A. Wasserman and Fred P. Bingham, II, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Respondent.
We have for review Holiday v. State, 730 So.2d 830 (Fla. 1st DCA 1999), which certified conflict with Miller v. State, 723 So.2d 353 (Fla. 4th DCA 1998), as to whether the trial court committed fundamental error by instructing the jury with the then-current standard instruction on entrapment when such instruction had not yet been modified—as it was later in Standard Jury Instructions In Criminal Cases (97-2), 723 So.2d 123, 123, 142-43 (Fla. 1998)
()—to accurately reflect this Court's prior analysis of the entrapment defense in Munoz v. State, 629 So.2d 90 (Fla.1993). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. As explained below, we approve the decision below and disapprove Miller.
The State of Florida (the State) charged Zachery Romero Holiday (Holiday) with sale or delivery of cocaine, with such offense occurring on June 14, 1997. Holiday's case proceeded to trial, which took place in October 1997. At trial, the State presented four witnesses in support of its case, and Holiday testified as the only witness for the defense.
The State's primary witnesses were two law enforcement officers who testified that on June 14, 1997, they were working undercover on a "buy/bust" drug-sting operation. While the officers were parked in an unmarked car in front of a food market, Holiday approached and inquired as to the reason for their presence. The officers responded that they were looking for crack cocaine. Neither officer promised to give Holiday any portion of the crack cocaine because it was contrary to policy to do so. Holiday offered assistance, walked over and spoke to a man standing nearby, and returned after being waived off. Holiday then entered the unmarked car and directed the officers to drive to a residential area.
After Holiday's source at this first location did not produce any crack cocaine, Holiday told the detectives that he would help them find crack from a different source. While at this second location, Holiday obtained $20 from the officers, disappeared for a few minutes, and returned to the back seat of the car, at which time he gave the officers a piece of crack cocaine. The "take down" signal was given to nearby law enforcement personnel, and Holiday was arrested immediately thereafter. The State established that (1) a crack pipe had been found on Holiday's person; and (2) the substance delivered by Holiday was cocaine.
At the close of the State's case, defense counsel requested the trial court to give the standard instruction on entrapment. The prosecutor responded that no evidence of entrapment had been presented and, until such evidence was presented, there could be no ruling as to whether the entrapment instruction should be given. The trial court agreed that no evidence of entrapment had been presented to that point but, if such evidence was presented, the court would entertain instructing the jury on an entrapment defense.
Subsequently, Holiday testified in his own defense. He was twenty-nine years old and had been addicted to crack for ten years. Further, Holiday had six prior felony convictions and one prior conviction for petit theft, with three of the felony convictions being for either sale or delivery of crack cocaine. As to the events that transpired on the day of his arrest, Holiday's testimony was generally consistent with the testimony of the officers, but it differed in several respects.
First, Holiday testified that prior to encountering the detectives, he had been using drugs at his stepfather's house. Second, he testified that when the officers asked about crack cocaine, Holiday said he would locate the substance if they would give him a piece of the drug. Holiday emphasized that he would not have entered the vehicle unless he had been promised a piece of crack from the purchase.
At the close of all the evidence, the trial court noted that the standard jury instruction on entrapment submitted by defense counsel was actually the instruction applicable to offenses that occurred prior to October 1, 1987, and indicated that it would instead give the then-current standard jury instruction on entrapment applicable in cases where the offense occurred on or after October 1, 1987. Defense counsel apologized for submitting the wrong instruction, and the prosecutor did not object to the plan. Later, during the charge conference, the trial court again indicated that it would give the standard instruction on entrapment applicable in cases where the offense at issue occurred on or after October 1, 1987, and neither defense counsel nor the prosecutor objected to the court giving that instruction. Accordingly, the trial court instructed the jury using the then-current standard jury instruction on entrapment, and the court shortly thereafter instructed the jury on the burdens of proof, with neither defense counsel nor the prosecutor objecting to the instructions as read. The jury returned a verdict finding Holiday guilty as charged; the trial court adjudicated him guilty and sentenced him as a habitual felony offender to fifteen years in prison. Holiday appealed.
review dismissed, 705 So.2d 902 (Fla.), cause dismissed, 718 So.2d 755 (Fla.1998), wherein the Fourth District found that before its recent modification, the standard instruction on entrapment did not "fairly and correctly present the current state of the law" on entrapment in light of this Court's decision in Munoz. See Holiday, 730 So.2d at 830. However, relying on this Court's decision in Sochor v. State, 619 So.2d 285, 290 (Fla.1993), the First District held, "Since the entrapment instruction pertains to a defense rather than to an essential element of the crime charged, no fundament error occurred." Holiday, 730 So.2d at 830. In so holding, the Holiday Court certified conflict with Miller. See id.
In October 1993, this Court issued its decision in Munoz. See 629 So.2d at 90. In that case, the Court analyzed Florida's entrapment statute, section 777.201, Florida Statutes, the current version1 of which provides:
§ 777.201, Fla. Stat. (1999). After tracing the development of the entrapment defense under both federal and Florida law, see 629 So.2d at 91-98, this Court found that the Florida Legislature, by enacting section 777.201, had "codified the subjective test [of entrapment] delineated by the United States Supreme Court as the means for determining the application of that defense." Id. at 99. This Court then explained the various burdens of proof involved in the subjective test for entrapment delineated by the United States Supreme Court:
As indicated under the federal cases discussed above, the application of the subjective test is the test articulated by Judge Hand in [United States v.] Sherman[, 200 F.2d 880, 882-83 (2d Cir. 1952)
], as further explained by the United States Supreme Court in [United States v.] Jacobson. Three principles arise under this test. The first two involve questions of fact and differing burdens of proof....
The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence. If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged; that is, whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense. On this second question, according to our decision in Herrera, the defendant initially has the burden to establish lack of predisposition. However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence...
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