Osorio v. State
| Decision Date | 02 March 2016 |
| Docket Number | No. 4D13–4407.,4D13–4407. |
| Citation | 186 So.3d 601 |
| Parties | Kevin OSORIO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez–Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Kevin Osorio appeals his convictions for possession of cannabis under twenty (20) grams, possession of drug paraphernalia, and trafficking in gamma-butyrolactone ("GBL").1 We write to address three of the issues Osorio has raised on appeal.
First, Osorio claims that the trial court erred by ruling that testimony regarding conversations between Osorio and the State's confidential informant, and among detectives and the informant, was inadmissible hearsay evidence. He argues that because the informant acted as an agent of the State, the informant's statements were admissible as statements of a party-opponent under section 90.803(18)(d), Florida Statutes. Second, he asserts that the trial court abused its discretion by preventing him from mentioning during closing argument the State's decision not to call the informant as a witness. Third, he contends that the trial court erred when it declared a testifying forensic chemist to be an expert in the presence of the jury. We agree with Osorio on these points, and therefore reverse for a new trial.
Osorio found himself in possession of a large amount of the prescription drug Xyrem, a liquid medication used for narcolepsy, after his former roommate moved out and left the substance in the residence. Not knowing what the drug was, Osorio contacted a former co-worker to obtain more information. Osorio put a sample of the liquid into vials supplied by the co-worker so the co-worker could test it for verification purposes. Osorio later learned that the liquid was gamma-hydroxybutyric acid, otherwise known as "GHB," a chemical derivative of GBL.2
A few months later, the co-worker agreed to become a confidential informant after he was taken into custody for trafficking in cocaine. In exchange for his cooperation, he was told that any assistance he gave to law enforcement would be presented to the state attorney's office as a factor for consideration at the time of his sentencing. It was during the course of his participation in this substantial assistance program that he offered Osorio's name and agreed to help detectives build a case against him.
Shortly thereafter, the police recorded a series of phone calls wherein Osorio and the co-worker arranged a transaction to sell the GBL. When Osorio arrived at the location designated for the sale, he was arrested and found with two cell phones, marijuana, a scale, and several vials of GBL in his vehicle. Before Osorio's trial, the co-worker was sentenced to probation due to his substantial assistance to law enforcement, despite facing up to thirty years in prison and a minimum mandatory sentence for his charges.
During cross-examination, the trial court refused to allow one of the detectives to testify as to whether the co-worker told him that he had received a vial of liquid from Osorio in order to identify the substance. When Osorio testified, the trial court prevented him from recounting conversations with the co-worker, which included the co-worker's statements about what to do with the vials he gave to Osorio, and details concerning the potential drug transaction.
During closing argument, when Osorio's counsel tried to make a point about the State's decision not to call the informant as a witness in the trial, the trial judge held a sidebar conference sua sponte, and the following exchange ensued:
The trial court did not strike the comments regarding the State's choice not to call the co-worker as a witness, and did not give a curative instruction to the jury regarding these comments. Osorio was ultimately convicted of trafficking in GBL, possession of marijuana under twenty (20) grams, and possession of drug paraphernalia. This appeal followed.
In general, rulings on the admission or exclusion of evidence are reviewed for an abuse of discretion, "limited by the rules of evidence." Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (quoting Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009) ). "[W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Id. (alteration in original) (quoting Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006) ).
As Judge Learned Hand once wrote, "Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly." United States v. Dennis, 183 F.2d 201, 224 (2d Cir.1950). This case provides an opportunity to explain the relationship that exists between the State and those informants acting under substantial cooperation agreements.
Under section 914.28(2) :
§ 914.28(2)(a), Fla. Stat. (2011).
Generally, an agent is one who consents to act on behalf of some person, with that person's acknowledgment, and is subject to that person's control. Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990) (). When determining whether private citizen confidential informants have acted in a manner that makes them agents of the government, the court must apply a similar test when asking "whether [the informant], in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state...." Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This includes examining the purpose of the conduct in which the actor engaged.
Under certain situations, informants can be considered agents of the State, especially when acting in accordance with agreements made with authorities. See Davis v. State, 928 So.2d 1089, 1125 (Fla.2005) (). In other words, "[t]he government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before we deem the citizen to be an instrument of the state." Treadway v. State, 534 So.2d 825, 827 (Fla. 4th DCA 1988) (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981) ). The Second District has held:
The test for determining whether private individuals are agents of the government is whether, in consideration of the circumstances, the individuals acted as instruments of the state. To determine whether a private individual acts as an instrument of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends.
State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000) (citations omitted); see also Dufour v. State, 495 So.2d 154, 159 (Fla.1986) ().
Here, the police encouraged the co-worker's involvement in the investigation, which involved setting up a controlled buy with Osorio as a target offender.4 He agreed to arrange a drug purchase from Osorio in hopes of securing a favorable report from detectives and obtaining substantial assistance...
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