Morris v. State

• Decision Date: 06 March 1986
• Docket Number: No. 66120,66120
• Citation: 11 Fla. L. Weekly 83,487 So.2d 291
• Parties: 11 Fla. L. Weekly 83 Eugene Edward MORRIS, a/k/a Mercury Morris, a/k/a Eugene Morris, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 291

487 So.2d 291

11 Fla. L. Weekly 83

Eugene Edward MORRIS, a/k/a Mercury Morris, a/k/a Eugene Morris, Petitioner, v. STATE of Florida, Respondent.

No. 66120.

Supreme Court of Florida.

March 6, 1986.

Rehearing Denied May 20, 1986.

Bennett H. Brummer, Public Defender, Miami, Philip Glatzer and Ronald I. Strauss, Sp. Asst. Public Defenders of Highsmith, Strauss & Glatzer, Coconut Grove, N. Joseph Durant, Sp. Asst. Public Defender of Gelber, Glass, Durant, Canal and Pineiro, Miami, and Robert Augustus Harper, Jr., Co-counsel, Tallahassee, for petitioner.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Anthony C. Musto, Asst. State Atty., Miami, for respondent.

PER CURIAM.

This cause, Morris v. State, 456 So.2d 471 (3d DCA 1984), is before us due to express and direct conflict with decisions of several district courts of appeal. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Asserting the affirmative defense of entrapment, Eugene Edward "Mercury" Morris pleaded not guilty to charges of conspiracy to traffic in cocaine, trafficking in cocaine, two counts of sale or delivery of cocaine, and two counts of possession of cocaine. The jury acquitted him of the two counts of sale or delivery of cocaine, but found him guilty of the remaining counts. He was sentenced to twenty years' imprisonment with a mandatory fifteen year period pursuant to section 893.135(1)(b)(3), Florida Statutes (1981); the district court affirmed.

Evidence introduced at trial disclosed that in the summer of 1982 Morris hired a friend, Fred Donaldson, to do some gardening. Donaldson, on probation for aggravated battery and under order to pay restitution, believed Morris intentionally failed to pay him for the work in order to have him sent back to jail.

Donaldson called the police on August 6 regarding Morris's alleged involvement in using and selling cocaine. Chief Investigator Havens investigated Morris and found no record of cocaine use or sale in any local, state or federal law enforcement agency. An investigation of Donaldson revealed a criminal background, and Havens considered him to be unreliable.

Donaldson called again on August 10 to say that Morris was expecting a shipment soon and on August 13 to say Morris had received a shipment. At some point Havens told Donaldson to go to Morris's house, which he did on August 15.

Donaldson called Havens again on August 16, and Havens arranged for Donaldson to make a recorded call from the state attorney's office to Morris to verify Donaldson's story. During the call a meeting was arranged between Morris and Joe Brinson, an undercover agent posing as Donaldson's drug dealing friend. Joe offered to buy two kilos of cocaine and showed Morris $120,000 at the meeting that afternoon. Upon Donaldson's request, Morris gave Brinson a small sample of cocaine. ^* There were four more meetings that day during which Morris produced no cocaine. During one of the meetings, Morris suggested that they go the the nearby residence of a woman who was one of his user sources in order to obtain cocaine. Havens had instructed Brinson to deal only with Morris, so Brinson rejected the suggestion. Brinson told Havens, at the end of the day, that he did not believe Morris had any cocaine. Havens instructed Brinson to continue to solicit and encourage Morris.

Donaldson placed a recorded call on August 17 to Morris to arrange another parking lot meeting, at 3 p.m. Although Morris agreed to the meeting, he did not arrive. He later said he would not deal at a parking lot and that Brinson would have to go to his house for a sample. The evidence is somewhat confusing as to meetings later that day at Morris's house, but apparently there were two during one of which Brinson got a one-ounce sample of cocaine from Morris for purposes of quality analysis. There was a final meeting that day at 9:30 p.m. Morris appeared without cocaine and left after about twenty seconds, telling Brinson he wanted him to come to his house. Brinson and Donaldson tried to call Morris at home, but were unable to reach him. Brinson testified that although he had intended to continue the investigation until Morris sold him two kilos of cocaine, by August 17 he was ready to buy anything Morris had.

Donaldson and Brinson called Morris again on the morning of August 18 and set up a meeting at Morris's house for that afternoon at 3 p.m. During that meeting Morris's user source, Vincent Cord, finally came through and brought nearly one-half kilo of cocaine, which Morris delivered to Brinson.

Informant Donaldson did not testify at trial, but Morris, testifying in support of his entrapment defense, admitted to being a cocaine user. According to Morris's testimony, Donaldson told him in early August that he was going to get even with him for not paying for the gardening. Donaldson urged him, at the August 15 visit, to meet with his friend from New York (actually undercover agent Joe Brinson) for the purpose of introducing the friend to Morris's cocaine source. Donaldson told Morris that it was Morris's fault that he (Donaldson) was in trouble for arrearages owed to the state, but that if Morris agreed to help it would be a way for them to be "square" with the money. He said he would go to jail if Morris did not pay him and it would be Morris's fault. Morris said he would see what he could do, but he did not think it could be done. Donaldson gave Morris a small sample of cocaine to give his "New York friend" the next day.

Morris testified that he would not have gotten involved but for Donaldson. Morris sought unsuccessfully to introduce the testimony of one Eugene Gotbaum, who, according to his sworn affidavit and the proffer of defense counsel, would have testified that Donaldson told him at some point prior to Morris's arrest that he intended to set up Morris in some sort of drug deal.

The jury was entitled to disbelieve Morris's testimony or give it little weight. However, in evaluating Morris's testimony, the jury was not permitted by the trial court to consider Gotbaum's testimony, which would have been corroborative of Morris's and therefore highly valuable to the defense. The trial court excluded the proffered testimony as inadmissible hearsay. The district court found the state-of-mind exception to the hearsay rule, section 90.803(3)(a) 1 and 2, Florida Statutes (1981), inapplicable because it found Morris's, not Donaldson's, state of mind to be at issue as it was undisputed that Donaldson informed the police of Morris's activities. Our consideration of this issue necessitates a brief overview of the law of entrapment in Florida.

In Cruz v. State, 465 So.2d 516 (1985), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), we expanded the previous entrapment law which focused primarily on the subjective view of the defendant to determine whether he was predisposed to commit the crime charged, a jury question. We held that before the issue is given to the jury, the trial court must determine whether the police conduct was permissible. The latter inquiry is known as the objective test and involves a two-part inquiry: 1) Does the police activity have as its end the interruption of a specific ongoing criminal activity, or, would no crime...