Holland v. State, 85-1717

• Decision Date: 15 June 1988
• Docket Number: No. 85-1717,85-1717
• Citation: 13 Fla. L. Weekly 1414,528 So.2d 36
• Parties: 13 Fla. L. Weekly 1414 Shirley Edmond HOLLAND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 36

528 So.2d 36

13 Fla. L. Weekly 1414

Shirley Edmond HOLLAND, Appellant, v. STATE of Florida, Appellee.

No. 85-1717.

District Court of Appeal of Florida Fourth District.

June 15, 1988.

Rehearing and Clarification Denied July 27, 1988.

Stuart Markman and D. Frank Winkles of Winkles, Trombley & Kynes, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for appellee.

KLEIN, HERBERT M., Associate Judge.

Appellant, Shirley Holland, was charged by information with trafficking in cocaine, convicted by a jury, and now appeals. Appellant argues that the trial court erred by not ruling that there was entrapment as a matter of law, and also contends that he was coerced into withdrawing an alleged exculpatory tape recording from introduction into evidence. We reject appellant's claims and affirm his conviction.

The record in this case establishes that appellant, identifying himself as Gene Barfield, contacted confidential informant John Bordas. Bordas and appellant first met in December of 1983 and discussed the buying and selling of drugs, and committing burglaries. Bordas put appellant in contact with undercover Detective Tom Tiderington, and advised Tiderington that appellant was "dealing in large quantities of narcotics" and was interested "in purchasing a quantity from us." Appellant and Tiderington initially met on June 5, 1984 at a Holiday Inn in Hollywood, Florida. At this meeting Tiderington advised appellant that he had access to large quantities of marijuana and cocaine and could supply appellant with drugs. Appellant told Tiderington that he was interested in purchasing marijuana since appellant had just lost a large load of cocaine "in the Fort Myers area on a boat that had been confiscated by the police." At appellant's request, they went outside to Tiderington's undercover vehicle where appellant was given a sample of marijuana which he inspected. The conversation outside the Holiday Inn at the undercover vehicle was taped.

Thereafter, there was a series of telephone conversations and personal meetings between Tiderington and appellant, many of which were recorded. On June 26, 1984, appellant, who is a real estate broker, advised Tiderington that he wished to exchange certain commercial property in Port St. Charlotte for five (5) units of cocaine. Appellant met with Tiderington in Port St. Charlotte on July 3, 1984. On that date, at a McDonald's restaurant, appellant revealed his true identity to Tiderington. Appellant explained to Tiderington that whenever he did transactions for marijuana or cocaine he wanted to refer to them as "gemstones." The exchange of cocaine for property was consummated at a Marriot Hotel room in Ft. Lauderdale on July 5, 1984. Appellant was arrested driving out of the parking lot in possession of the cocaine. The entire conversation between appellant and Tiderington, during which the exchange took place, was recorded and played into evidence.

Appellant testified at his trial that he was "posing" as a drug dealer to solve the murder of an acquaintance, since the murder was thought to be drug related. Appellant admitted sticking his head into a bag containing white powder and talking about future transactions. Appellant's theory of defense was that he did not intend to purchase narcotics but really wanted to exchange real property for gemstones. Appellant testified at the trial as to his version of the July 5th meeting at the Holiday Inn, stating that he thought the bag he carried out of the Marriott was gemstones and that it was a part of his undercover investigation. Other witnesses also testified for the defense concerning appellant's good character.

On the second day of trial, appellant produced a purported tape of the conversation of July 5th. On appellant's tape only appellant's voice was completely audible, unlike the tape authenticated by Detective Tiderington, in which both voices were audible. The appellant's tape was also at complete variance to Tiderington's tape. After consulting with his client, defense counsel informed the court that appellant's tape was made inside the Holiday Inn July 5, 1984, before Tiderington turned on his recording device. The state argued that there had been a discovery violation; that the tape was not authentic and had been manufactured by the appellant; and further requested that it have an opportunity to have the tape analyzed by an FBI expert in Virginia.

The trial court began a Richardson ¹ inquiry and initially determined that it could not find a lack of good faith on the part of the defense counsel who stated that he was aware of the tapes existence two months before the trial and thought he had listed the tape on his exhibit list but thought that the tape had been lost. The trial judge ruled that while he could suppress the tape for a discovery violation, because of prejudice to the State, he would delay the proceedings for the purpose of allowing the State to have the tape technically analyzed. The question then arose as to whether the tape could be authenticated by appellant, that is, that the tape was what it purported to be, namely, a conversation between Tiderington and appellant (in order for a recorded conversation to be admissible, authentication as to the identity of the speakers must be established and that the operator of the recording equipment was competent, the equipment functioned accurately, and the tape had not been materially altered).

Appellant argues that through threats and coercion he was not permitted to testify as to the authenticity of the tape. This is so, appellant claims, because defense counsel advised the court that Detective Tiderington, after listening to the tape, had indicated that in his opinion "it was a third degree felony violation of the law" (see section 934.03, Florida Statutes, dealing with interception of communication) and that this was made even more coercive by both the court and the state attorney advising appellant of his right against self-incrimination. This contention is negated by the record.

The statement by Detective Tiderington as to a possible criminal violation, as well as the cautionary statements made by the court to the appellant were made only after the defense counsel stated to the court t...