Morris v. State

• Decision Date: 05 June 1984
• Docket Number: No. 83-198,83-198
• Citation: 456 So.2d 471
• Parties: Eugene Edward MORRIS a/k/a Mercury Morris a/k/a Gene Morris, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 471

456 So.2d 471

Eugene Edward MORRIS a/k/a Mercury Morris a/k/a Gene Morris, Appellant, v. The STATE of Florida, Appellee.

No. 83-198.

District Court of Appeal of Florida Third District.

June 5, 1984.

Rehearing Denied Oct. 9, 1984.

Bennett H. Brummer, Public Defender, and Highsmith, Strauss & Glatzer and Philip E. Glatzer and Ronald I. Strauss; Gelber, Glass, Durant, Canal & Pineiro and N. Joseph Durant, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen., and Carolyn Snurkowski, Asst. Atty. Gen., Janet Reno, State Atty., and Ira N. Loewy and Gregory Victor, Asst. State Attys., for appellee.

Before BARKDULL, BASKIN and FERGUSON, JJ.

BASKIN, Judge.

Defendant Eugene Edward ("Mercury") Morris was convicted of conspiracy to traffic in cocaine, trafficking in cocaine, and two counts of possession of cocaine in violation of sections 777.04, 893.135, and 893.13(1), Florida Statutes (1981). He was sentenced to a term of twenty years imprisonment with a mandatory fifteen year period of incarceration pursuant to section 893.135(1)(b)(3). Finding no reversible error raised by the points on appeal, we affirm.

The events leading to this appeal began to unfold in the summer of 1982 when Fred Donaldson, a friend who turned confidential informant, did some gardening for Morris at his home. At that time Donaldson was on probation for the commission of aggravated battery and had been ordered to pay restitution in the amount of $2,500. In an alleged effort to make the restitution, Donaldson tried unsuccessfully to collect the money Morris owed him for gardening services. Believing that Morris intentionally failed to pay his debt in order to have Donaldson sent back to jail, Donaldson called the police to report that he had information concerning Morris's involvement with the use and sale of cocaine. After Donaldson's first call, chief investigator Havens conducted a preliminary investigation of Morris. The investigation disclosed no record of cocaine use or sale in any local, state or federal law enforcement agency. A few days later, Donaldson contacted Havens again to advise him that Morris was expecting a shipment of cocaine and that Morris was willing to meet Donaldson's friend "Joe" to "set up a deal." In two subsequent telephone calls, Donaldson told Havens that Morris had received a large quantity of cocaine.

To verify this information, Havens arranged to have Donaldson make a recorded "controlled call" from the state attorney's office to Morris at his home on August 16, 1982. In this first recorded telephone conversation, admitted into evidence at trial, Morris demonstrated a willingness to enter into a drug deal with Donaldson's purported friend Joe. ¹ They arranged to meet at Dadeland Mall parking lot. During several ensuing meetings, Donaldson introduced undercover agent Joe Brinson to Morris as Donaldson's drug dealer friend Joe from New York, and Brinson negotiated with Morris to purchase a quantity of cocaine. The monitored conversations of these meetings, transmitted through a body bug worn by agent Brinson, were admitted into evidence at trial. The tapes of these encounters reveal that Brinson and Morris negotiated the price, quantity and manner of delivery of the cocaine, and on one occasion, Morris gave Brinson a small quantity of cocaine as a sample. Negotiations between Brinson and Morris continued the following day and evening of August 17, during which time Brinson and Morris spoke together both in person and over the telephone. Three of these conversations were monitored and tape recorded, but the tapes of only two telephone conversations were admitted into evidence. The trial court suppressed the third tape recording of a face-to-face conversation between Morris and Brinson because it was made illegally inside Morris's home. A final monitored and tape recorded conversation between Morris and Brinson took place the morning of August 18. During this conversation admitted into evidence at trial, Morris and Brinson agreed to meet at Morris's house later that day. This conversation served as the basis for the issuance of a warrant to search Morris's home and for a court order authorizing the agent to monitor and record conversations inside Morris's home in accordance with State v. Sarmiento, 397 So.2d 643 (Fla.1981). Although the Sarmiento order specifically provided that the body bug which would record the conversations inside Morris's home was to be placed on agent Brinson, the monitoring device was placed on Donaldson. As a result, these recorded conversations were suppressed by the trial court. The court ruled that the police acted improperly in transferring the body bug to Donaldson.

The search produced a scale which was introduced at trial. The half-kilogram of cocaine, which formed the basis for the trafficking charge, was delivered to Morris's home by dealer and co-defendant Vincent Cord. In the scenario culminating in Morris's arrest, Cord arrived at Morris's home and gave Morris a package of cocaine. Morris then weighed the contents and handed the cocaine to agent Brinson, who carried the bag outside and placed it in the trunk of his own car. When Morris heard police sirens, he retrieved the package from Brinson's car and threw it into the canal behind his house. Agent Havens subsequently recovered the cocaine from the water, and Morris and co-defendants Vincent Cord and Edgar Kulins were placed under arrest.

Co-defendant Cord pled guilty prior to trial. The case proceeded to trial against Morris and Kulins. Kulins pled guilty during trial, leaving only the case against Morris. Morris pled not guilty to all charges: conspiracy to traffic in cocaine, trafficking in cocaine, two counts of sale or delivery of cocaine, and two counts of possession of cocaine. He asserted the affirmative defense of entrapment. The jury acquitted Morris of sale or delivery of cocaine, but found him guilty of the remaining counts. This appeal ensued.

In the several points raised on appeal, Morris argues as grounds for reversal: (1) the court's refusal to suppress evidence and statements obtained by unlawful electronic surveillance; (2) legally inconsistent verdicts; (3) the exclusion of a defense witness who would have testified that a police agent intended to set Morris up; (4) inflammatory remarks by the prosecutor during closing argument; and (5) the imposition of a mandatory sentence. Although we conclude that none of the asserted grounds warrants reversal, we address the major contentions raised by Morris.

We first focus our attention on the excluded testimony. Morris contends that the trial court committed reversible error in excluding the testimony of defense witness Eugene Gotbaum who, according to the proffer, would have stated that he had known informant Fred Donaldson for many years and that several months prior to Morris's arrest, Donaldson told Gotbaum that he (Donaldson) intended to set up Morris. ² Although it was Donaldson who initially advised the police that Morris was engaged in illicit activities involving drugs, the state did not call Donaldson to testify at trial. When defense counsel sought to present Gene Gotbaum's representation of the absent Donaldson's motives, the court excluded Gotbaum's testimony on the ground that the proffered remarks constituted inadmissible hearsay. Morris contends that Gotbaum's testimony was admissible through the so-called state-of-mind exception to the hearsay rule to inform the jury of Donaldson's stated intent to induce or entice Morris to commit the criminal acts charged. Morris maintains that Donaldson's statement was relevant to his entrapment defense and that he should have been permitted to present Donaldson's comments through Gotbaum's testimony, even though Donaldson was not called as a witness. ³

The state-of-mind exception is contained in section 90.803(3)(a)(1) and (2), Florida Statutes (1981):

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

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(3) Then existing mental, emotional, or physical condition.--

(a) A statement of the declarant's then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the declarant. (emphasis supplied)

The state-of-mind exception to the hearsay rule permits the admission of extrajudicial statements to show the declarant's state of mind at the time the statement is made when it is an issue in the case. See United States v. Brown, 490 F.2d 758 (D.C.Cir.1974); Kennedy v. State, 385 So.2d 1020 (Fla. 5th DCA 1980); Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979). In addition, the state-of-mind exception allows the introduction of the declarant's statement of future intent to perform an act, if the occurrence or performance of that act is at issue. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892); United States v. Brown; Clark v. United States, 412 A.2d 21 (D.C.1980); Kennedy; Van Zant. Donaldson's declaration of intent to "set up" Morris does not fall within the ambit of the hearsay exception provided by section 90.803 because Donaldson's state of mind is not at issue and because it was not disputed, his subsequent conduct requires neither proof nor explanation. Under the subjective test for entrapment adopted by the United States Supreme Court and followed in Florida, two issues arise: (1) whether the defendant was predisposed to commit the type of crime charged and (2) whether the defendant was induced by a government agent...