Russell v. State, 91-3043

• Decision Date: 18 February 1993
• Docket Number: No. 91-3043,91-3043
• Citation: 614 So.2d 605
• Parties: 18 Fla. L. Weekly D546 Orthenell Alfredo RUSSELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 605

614 So.2d 605

18 Fla. L. Weekly D546

Orthenell Alfredo RUSSELL, Appellant, v. STATE of Florida, Appellee.

No. 91-3043.

District Court of Appeal of Florida,

First District.

Feb. 18, 1993.

Jeffrey M. Leukel, Starke, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Russell appeals his conviction of sale of a counterfeit drug. He raises two alleged trial errors, only one of which requires extensive discussion. We reverse.

The prosecution of Russell arose out of an attempted controlled buy of narcotics conducted by Sheriff's Deputy Jett, which involved the use of confidential informants. Appellant himself had also worked for officer Jett as a confidential informant, and had been paid money for arrests made through his efforts. On the occasion in question, appellant allegedly sold fake crack cocaine to Arno Wright, a confidential informant who had been charged with an offense and was "working it off" by assisting officer Jett in making drug arrests. Although officer Jett was present at the alleged sale, he was concealed in an automobile, and did not personally observe the transaction between appellant and Wright. Later, however, according to officer Jett, appellant told him that he had "ripped off" Wright by selling him fake crack cocaine, and that appellant was laughing, that he thought it was funny and that he had not done anything wrong. Appellant testified at trial, asserting that he had talked to Wright in order to develop information regarding drug deals, because he thought that was what he was employed to do. He denied selling anything to Wright.

Prior to cross-examination of appellant, the state attorney advised the court and defense counsel that he intended to introduce a letter received from appellant the day before trial. The letter stated:

Dear Mr. Grimm,

If I could be sentenced under the regular offense and you agree to give me three years and all my county time I will take it and won't go to trial. If you agree to do this. I look forward to hearing from you soon.

The defense objected to the introduction of the letter. The prosecution contended the letter was an unsolicited and self-initiated communication by appellant, and was not privileged under the "plea discussion" rule. The prosecution cited to the trial court the case of Blake v. State, 332 So.2d 676 (Fla. 4th DCA1976), assuring the trial court that Blake was still "good law." After consideration of Blake, the trial court overruled the defense objection. The assistant state attorney questioned appellant about the letter, and required appellant to read the letter to the jury. Appellant testified that no one made him write the letter, and that he had written it on his own. He also denied that he had done anything wrong, but that he was willing to go to prison because the odds were against him. On redirect examination, appellant testified that he had had discussions with his counsel about what might happen to him at sentencing because of his felony record, and that it was this concern that caused him to write the letter to the prosecutor.

After the defense rested, appellant moved for a mistrial urging that this letter was nothing more than an offer to plead guilty inadmissible under section 90.410, Florida Statutes, and constituted plea negotiations made inadmissible by rule 3.172(h), Florida Rules of Criminal Procedure. The court reviewed the case law, including Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA1986), approved, 596 So.2d 957 (Fla.1992) and denied the motion. The court observed that the letter itself was not in evidence, and would not go to the jury. However, during closing argument the prosecutor read the letter to the jury and asked:

Are those the words of an innocent man? Absolutely not. The defendant knows he is guilty, and got on the stand and lied about his guilt, and when confronted with this he came up with some crazy excuse: Well, the odds were against me so I came up with this thing. This in and of itself clearly shows the defendant is guilty.

The jury returned a verdict finding appellant guilty as charged, and he was sentenced as an habitual violent felony offender to eight years incarceration with a mandatory five years.

Appellant urges on appeal that contrary to assertions by the state, the letter from appellant was not admissible as a unilateral communication unconnected with plea negotiations. Appellant points out that plea negotiations had been ongoing, noting that on the Monday before the trial on Thursday, the state had offered a five-year prison sentence in return for a plea of guilty. The state, on the other hand, contends that it did not solicit the pro se letter from appellant to Grimm; that appellant could not have reasonably believed that his gratuitous, unilateral letter, written one day before the scheduled trial date--after plea negotiations had broken off--mentioning a prison term two years less than that offered by the prosecutor, was made "in connection with plea negotiations." The state here continues to insist that the case of Blake v. State, supra, upon which the trial court partly relied in admitting evidence of the letter, is "factually indistinguishable" from the instant case. The state also urges that Stevens v. State, 419 So.2d 1058 (Fla.1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983) is applicable, pointing out that in Stevens, the supreme court noted that whether a defendant's subjective expectation of negotiating a plea is reasonable depends upon whether the state has indicated a willingness to plea bargain, and has in fact solicited the statement in question from the defendant. The state further contends that even if the court erred in allowing appellant's impeachment with the letter, the error was harmless.

Our examination of the applicable rules, the evidence code, and the cases cited, convinces us that the state's position in this case is erroneous, and that it was error to allow the state to introduce appellant's offer to plead guilty. At the outset, we observe that the state's reliance upon Blake v. State at trial, and here, is misplaced. In that case the trial court allowed the introduction of a letter from the defendant written to the state attorney stating the following:

Please, sir, I hope and pray you will find it in your heart to talk to Judge R. McIntosh to give me one more chance and put me on probation?

The Blake opinion cites as authority only one case, Ivey v. State, 132 Fla. 36, 180 So. 368 (1938). The Ivey opinion contains no facts or discussion relevant to the issue involved here. The Blake opinion recites further that the letter was not privileged as a plea discussion under rule 3.171, Florida Rules of Criminal Procedure. That rule, at the time of the Blake opinion, contained provisions encouraging the prosecuting attorney to engage in plea discussions with the defendant's counsel, or with the defendant, if unrepresented, and provided further:

(d) Discussion and Agreement Not Admissible. If the defendant pleads not guilty, no mention of any prior proceedings hereunder shall be admissible against him.

As it existed at the time of the Blake decision, the subparagraph dealing with inadmissibility concerned only discussions and agreements within the contemplation of the rule. Shortly thereafter, the rules regarding plea negotiations were expanded, and the subparagraph dealing with inadmissibility became rule 3.172(h), which provides as follows:

(h) Except as otherwise provided in this Rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

This amendment to the rules became effective July 1, 1977. Under the rule as it existed when Blake was decided, the court might well have been justified in requiring a stronger showing of ongoing plea negotiations before ruling that an incriminating communication made by the defendant should be held inadmissible. Unlike its predecessor, under the amended rule, subparagraph (h), evidence of "an offer" of a plea of guilty, later withdrawn, is inadmissible. Also, for the first time, the rule appeared to make some distinction between an "offer" to plead guilty, and "statements" made in connection with an offer or plea of guilty. As will be seen in the following discussion, this distinction may be one of considerable consequence in ruling upon the admissibility of a particular communication.

Perhaps more important in the evolution of the rule against admissibility of communications involved in plea negotiations was the enactment of section 90.410, Florida Evidence Code, in 1978:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under Chapter 837.

Under a literal reading of the statute, an "offer to plead guilty" is inadmissible. Also under the statute, evidence of "statements made" in connection with any pleas or offers is inadmissible. Defense counsel cited this statute and urged to the court below that appellant's offer to plead guilty was protected under the express wording of the statute. Defense counsel also argued below, as he does here, that under the circumstances, there having been plea discussions just a few days before trial, appellant's letter to the prosecuting attorney was a direct result and in furtherance of these negotiations and discussions, and as such fell within the protection of the rule holding inadmissible evidence of plea negotiations between the defense and the prosecution.

We tend to agree that under the...