Isom v. State

• Decision Date: 25 May 1993
• Docket Number: No. 90-2217,90-2217
• Citation: 619 So.2d 369
• Parties: 18 Fla. L. Weekly D1321 Douglas ISOM, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 369

619 So.2d 369

18 Fla. L. Weekly D1321

Douglas ISOM, Appellant, v. The STATE of Florida, Appellee.

No. 90-2217.

District Court of Appeal of Florida Third District.

May 25, 1993.

Hamar & Hamar and Richard Hamar, Playa Del Rey, CA, for appellant.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.

CORRECTED OPINION

COPE, Judge.

Douglas Isom appeals his convictions and sentences for one count of trafficking in cocaine and two counts of conspiracy to traffic in cocaine. We affirm in part and reverse in part.

Defendant first contends that there was insufficient evidence to convict him of count I, trafficking in one kilo of cocaine, and count II, conspiracy to traffic in the same kilo of cocaine.

Reading the record in the light most favorable to the State, the evidence established that defendant was directing drug transactions from his cell in the Dade County Jail. These were being carried out by defendant's wife and other individuals.

On March 9, 1988 one of defendant's confederates, Anthony Cutler, agreed to purchase a kilo of cocaine from persons who turned out to be undercover police officers with the Miami Beach Police Department. After Cutler was arrested, he agreed to provide assistance to the police. He agreed to have the police officers tape telephone conversations which Cutler placed. Cutler called Mrs. Isom, the defendant's wife. While the two were on the telephone, the defendant called Mrs. Isom from the County Jail. Mrs. Isom then connected the three parties so that there was a three-way conversation between defendant, Mrs. Isom, and Cutler.

In the conversation defendant stated his understanding that Cutler was to have obtained cocaine that day at a 3:00 o'clock meeting with persons who were not specifically identified. Cutler stated that he had purchased a kilo of cocaine and that he had used the defendant's car in the transaction. The transaction to which Cutler referred, of course, was the transaction in which Cutler (unbeknownst to defendant and Mrs. Isom) had been arrested. Other evidence in the case indicated that the defendant had directed Mrs. Isom to give Cutler the money for the transaction.

In the taped conversation Cutler also stated, however, that he had purchased the cocaine in what Cutler referred to as the "Beach deal." Defendant indicated that he did not know anything about a "Beach deal" and that the cocaine was to have been obtained at the 3:00 o'clock meeting. Defendant became very angry and demanded to know with whom Cutler and Mrs. Isom were dealing. He quizzed Cutler at length about the details of the transaction, told Cutler that the Beach deal sounded too good to be true, and warned Cutler that when a deal sounded too good to be true, there was a danger that undercover police officers would be involved. ¹ Defendant made clear that he was in charge and that he did not want Cutler and Mrs. Isom to engage in transactions with people he had not approved.

Eventually Cutler mollified Isom by telling him that he knew the persons with whom he was dealing and that he had seen them consume drugs. This apparently allayed defendant's fear that the sellers were undercover police officers. A discussion then ensued in which it was agreed that Cutler would be authorized to purchase an additional kilo of cocaine from the same sellers, and then two more kilos if the first transaction went smoothly. Defendant would provide the funds. When purchased, the cocaine would be brought to Mrs. Isom for testing and then for "cooking" before distribution.

The State charged defendant with three offenses. In count I, the State charged defendant with trafficking in the first kilo of cocaine, which was the kilo of cocaine Cutler had purchased from the undercover officers on March 9, resulting in Cutler's arrest. Count II charged defendant with conspiracy to traffic in cocaine, with respect to the same kilo. Count III charged defendant and Mrs. Isom (but not Cutler) with conspiracy to traffic in additional kilos of cocaine pursuant to the discussion at the end of the taped conversation.

As to counts I and II, defendant contends that the evidence is insufficient to support his conviction. He states that the only fair reading of the tape recorded conversation is that he knew nothing about the "Beach deal" until after it had occurred. Since defendant did not know about the Beach deal until it had already transpired, he argues that there is no way that he can be convicted of trafficking (count I), or conspiracy to traffic (count II) with respect to the first kilo of cocaine. We disagree.

Under the Florida Statutes, "Whoever commits any criminal offense against the state ... or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense." Sec. 777.011, Fla.Stat. (1991).

Here, the evidence indicated that defendant had provided the funds, and allowed his car to be used, for Cutler to purchase a kilo of cocaine on March 9, 1988. The defendant had understood that the cocaine was to be purchased in what defendant referred to as the 3:00 o'clock meeting. However, Cutler instead purchased a kilo of cocaine in the "Beach deal." In other words, defendant had financed the purchase of cocaine and Cutler had proceeded to purchase cocaine. Cutler had, however, purchased from a different source than the source agreed to by defendant.

The acts of defendant rendered him a principal within the meaning of the statute. The rule applicable here is that "[o]ne who incites the commission of a crime is guilty even if the perpetrator varies the method of perpetration, as where the counsel or command was to poison the victim and the perpetrator resorted to stabbing or shooting.... But he is not guilty of a crime committed by the perpetrator which is entirely other than the one incited and not an incidental result thereof, as where the incitement was to commit arson and the perpetrator committed robbery." Rollin M. Perkins & Ronald M. Boyce, Criminal Law 745 (3d ed. 1987) (footnotes omitted). Here, defendant counseled and procured the purchase of cocaine by Cutler, and provided his car and financing for the transaction. The fact that Cutler purchased the cocaine in the "Beach deal" rather than the 3:00 o'clock transaction contemplated by defendant is immaterial.

As to count II, the evidence established an agreement to commit the criminal offense and an intention to commit it. See, e.g., Orantes v. State, 452 So.2d 68, 70-71 (Fla. 1st DCA), review denied, 461 So.2d 115 (Fla.), review denied sub nom. Vastola v. State, 461 So.2d 116 (Fla.1984). The evidence on that count was sufficient as well.

Defendant next contends that the trial court erred by admitting into evidence Cutler's post-arrest statement that defendant had told Mrs. Isom to give Cutler the money with which to purchase the cocaine. We agree that Cutler's post-arrest statement was not in furtherance of the conspiracy and therefore was not admissible under the coconspirator hearsay exception. See Sec. 90.803(18)(e), Fla.Stat. (1991). However, the testimony had already come in without objection in two questions and answers prior to the time that the hearsay objection was made. In addition, the response may well have been invited, given that the witness' previous answers on cross-examination had made clear that the witness' answers were gleaned from the same post-arrest hearsay statement. Whether or not the testimony was invited, any error with respect to the hearsay objection was harmless where the same information had already been placed before the jury without objection.

Defendant next contends that the trial court erred in two respects in giving the jury instructions on count III, the conspiracy to traffic in several additional kilos of cocaine. Defendant urges that the trial court erred by denying him a special instruction based on the rule in King v. State, 104 So.2d 730 (Fla.1958). Defendant also contends that the instruction actually given by the trial court was an inaccurate statement of the law.

Count III in this case charged that the defendant had conspired with Mrs. Isom to traffic in cocaine. The count II conspiracy was the conspiracy to acquire the one kilo of cocaine which was purchased on March 9. Count III referred to the conspiracy which unfolded in the taped three-way telephone conversation between defendant, Mrs. Isom, and Cutler. As to the latter transaction, defendant and Mrs. Isom were charged with conspiring with each other, but not with Cutler. Cutler was presumably excluded from count III because he was acting as a police agent during the taped telephone conversation.

At the charge conference defendant requested a special instruction based on King v. State. The requested instruction stated essentially that defendant could not be guilty of conspiracy if the only other party to the conspiracy was a police officer or agent for a police officer. See 104 So.2d at 732. The instruction also stated "Where 2 or more persons conspire with another who is[,] unknown to them, a government agent, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy." See id. at 733.

Under the circumstances existing at the time of the charge conference, the requested special instruction was correctly denied. First, on count III the State did not charge the defendant with conspiracy with Cutler, who was, by the time of the count III conspiracy, a government agent. The only conspiracy charged was between defendant and Mrs. Isom. The jury was to be...