Kent v. State, 96-3337

• Decision Date: 15 October 1997
• Docket Number: No. 96-3337,96-3337
• Citation: 704 So.2d 121
• Parties: 22 Fla. L. Weekly D2418 John KENT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 121

704 So.2d 121

22 Fla. L. Weekly D2418

John KENT, Appellant, v. STATE of Florida, Appellee.

No. 96-3337.

District Court of Appeal of Florida,

First District.

Oct. 15, 1997.

Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Timothy A. Freeland, Assistant Attorney General, Tallahassee, for Appellee.

PADOVANO, Judge.

The defendant, John Kent, appeals his conviction for possession of cocaine. Two arguments are presented for reversal: (1) the trial court erred in allowing the state to use a subsequent drug transaction as evidence of the defendant's predisposition to sell cocaine; and (2) the court erred in excluding as hearsay the testimony of several witnesses who had overheard previous conversations between the defendant and the undercover officers who purchased the cocaine. We conclude that the trial court properly admitted the evidence of the subsequent offense and therefore reject the defendant's argument on that point. However, we agree that the court erred in excluding as hearsay the previous conversations between the defendant and the undercover officers. On that ground we reverse for a new trial.

I.

The state alleged in Count I of the information that the defendant sold cocaine on December 7, 1995, and in Count II that he sold cocaine on December 12, 1995. These two charges were severed and the parties proceeded to trial on the earlier offense alleged in Count I. At trial, Detectives Samuel Koivisto and Robert Beers of the Jacksonville Sheriff's Office testified that they had purchased cocaine from the defendant in what they referred to as a "camera buy." The detectives were in an unmarked police vehicle with a hidden video camera when they encountered the defendant on the street and asked him whether he could get them some cocaine. The defendant agreed, got into the car, and directed them to the location where he would make the purchase for them from an undisclosed third party. When they arrived, the defendant got out of the car and came back with thirty dollars' worth of cocaine, which the officers purchased. As a part of the plan, the officers then left with the cocaine and the videotape of their encounter with the defendant.

The defendant testified on his own behalf and asserted the defense of entrapment. He said that the officers tried to get him to buy cocaine for them on ten to twelve occasions during a period of several months before the December 7 sale but that he had refused each time. On cross-examination, and again in its rebuttal case, the state countered this defense with evidence that the defendant had sold cocaine five days after the offense in question. This was the evidence in support of the charge made in Count II of the information.

Over an objection by the defense, Officer Scott Clifton related the facts of the subsequent offense. He said that on December 12, 1995, he was driving approximately one block from the defendant's house when he saw the defendant exchange money for a substance later identified as a rock of cocaine. Officer Clifton was unaware of the investigation against the defendant involving the December 7 sale. After the defendant left, Officer Clifton apprehended the man who had purchased the drugs. At the officer's request, the man then agreed to buy drugs from the defendant again in the officer's presence. Another sale with the defendant ensued within a few minutes, and, upon completion of the sale, undercover officers standing by arrested the defendant.

The trial court ruled that the evidence of the subsequent crime was admissible to prove the defendant's predisposition to commit the charged offense. This ruling was based on the similarity of the two acts, their proximity in time, and their proximity in location. The defendant contends that the trial court erred in admitting the evidence of these later transactions. Noting that the state had offered the evidence as proof of his predisposition to sell drugs, the defendant argues that only prior, not subsequent, acts are admissible to show predisposition.

Also during trial, the defense attempted to introduce the testimony of three witnesses who had overheard conversations between the defendant and the undercover officers at various times before the offense. Each of these witnesses said that the undercover officers had previously asked the defendant to purchase drugs and that he had refused. The trial court excluded all of this testimony on the ground that it was hearsay. Defense counsel argued that, because the defendant was relying on the entrapment defense, the hearsay exception for state of mind, section 90.803(3), Florida Statutes, applied and rendered the testimony admissible to show the defendant's state of mind. The court disagreed, ruling that statements by anyone other than the defendant could not show the defendant's state of mind under the exception.

At the conclusion of the trial, the jury found the defendant guilty of the lesser included offense of possession of cocaine. Following an unsuccessful motion for new trial, the defendant was adjudicated guilty and sentenced to a term of incarceration in the Department of Corrections. By this appeal he seeks review of his conviction.

II.

We find no error in the trial court's decision to admit evidence of the December 12 cocaine sales to show the defendant's predisposition to sell the drug on December 7. The defendant argues that any act occurring after a charged offense cannot, by definition, prove predisposition to commit the prior charged offense. In our view, this argument places too high a premium on the time of the collateral offense. A subsequent offense could reveal a criminal intent formed earlier. Depending on the circumstances, a subsequent offense might also complete a pattern of criminal activity that refutes a claim of police inducement. In the present case, the state's proof that the defendant sold drugs to a private individual shortly after selling drugs to the police tends to refute the defendant's claim that he had sold the drugs to the police only because of their inducement.

Federal courts have held that evidence of similar crimes or activities may be relevant to show that a defendant has a proclivity to commit the crime charged, whether the collateral activity occurs before or after the offense. For example, in United States v. Mack, 643 F.2d 1119 (5th Cir.1981), the Fifth Circuit held that evidence of a drug transaction occurring a few weeks after the charged drug offense was admissible to show predisposition where the defendant relied on the entrapment defense. Citing United States v. Boyd, 595 F.2d 120 (3rd Cir.1978), United States v. Warren, 453 F.2d 738 (2nd Cir.1972), and United States v. Rodriguez, 474 F.2d 587 (5th Cir.1973), the court explained that subsequent acts may be introduced to counter an assertion of entrapment.

The court in Mack took particular note of the Rodriguez case, in which the "government offered evidence showing that Rodriguez had sold cocaine twenty days after the commission of the offenses with which he was charged." In Rodriguez, the Fifth Circuit approved the admission of subsequent-act evidence and held that "prior or subsequent incidents may be introduced to establish that a defendant possessed a requisite knowledge or that there is a consistent pattern, scheme of operations, or similarity of method."

The court concluded in Mack that the subsequent-act evidence in the case before it fairly rebutted the defendant's claim that he lacked any predisposition to commit the charged crimes. To support this conclusion, the court offered the following reasoning:

the evidence of the [later] sale of cocaine also showed a specific propensity to commit the particular crime of the sale of drugs. Despite Mack's protest to the contrary, the evidence showing that he had engaged in the [later] drug sale, even though that sale occurred after the incidents for which he was tried, did have a tendency to make it more probable that he was predisposed to commit the original offense charged....

Mack, at 1122.

Likewise, in United States v. Posner, 865 F.2d 654 (5th Cir.1989), the Fifth Circuit held evidence of subsequent activities admissible to prove predisposition and thus to rebut the defendant's entrapment defense. The court found that evidence of the defendant's involvement in an attempted marijuana sale three and one-half months after the charged cocaine conspiracy had allegedly ended was admissible under Mack. The court also explained why the evidence, although post hoc, tended to prove the defendant's propensity to commit the charged crime, noting that it showed his "familiarity with the drug world, his contacts in that world and his sophisticated skills and expertise in drug dealing, all independent of what may be attributable to dealing with a government agent."

The relevance of subsequent collateral offenses to show predisposition was also addressed in United States v. Moschiano, 695 F.2d 236 (7th Cir.1982). There, the Seventh Circuit adopted the reasoning in Mack and Rodriguez and held that, in the trial of the defendants on charges of distribution of heroin and conspiracy to distribute heroin, evidence of one defendant's attempt to make an illegal purchase of the drug preludin some three months after the charged offense was...