State v. Brea
| Decision Date | 27 June 1989 |
| Docket Number | No. 86-3210,86-3210 |
| Citation | 545 So.2d 954,14 Fla. L. Weekly 1563 |
| Parties | 14 Fla. L. Weekly 1563 The STATE of Florida, Appellant, v. Cesareo BREA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and John H. Lipinski, Spec. Asst. Public Defender, for appellee.
Before JORGENSON, COPE and LEVY, JJ.
The State of Florida appeals from an order of the trial court suppressing inculpatory statements made by appellee Cesareo Brea's alleged coconspirator. We reverse.
Brea was charged by information with trafficking in cocaine and conspiracy to traffic in cocaine. During the first trial of this cause, a codefendant, Perez, was acquitted of the same two charges upon the finding that his testimony established entrapment as a matter of law. The trial court, in an abundance of caution, granted Brea's motion for mistrial.
In preparation for the new trial, Brea filed a motion in limine arguing that since Perez was acquitted, he was no longer a coconspirator and his tape recorded statements would no longer be admissible under section 90.803(18)(e), Florida Statutes (1985), the coconspirator exception to the hearsay rule. The trial court granted the motion and this appeal ensued. 1
Appellee argues, in substance, that the acquittal of the coconspirator should preclude the use of the coconspirator's statements against appellee; that the effect of the entrapment defense is to eliminate an essential element of the substantive crime of conspiracy, that of intent; and that the State should not be allowed to benefit from its wrongdoing vis-a-vis the coconspirator by proceeding against appellee. We disagree.
Brea's initial error is in equating the coconspirator hearsay exception, an evidentiary principle, with conspiracy, a substantive crime. Conspiracy as a crime requires a finding of criminal intent and an agreement with one or more persons to cause a crime to be committed. § 777.04(3), Fla.Stat. (1985). There is no requirement that the crime actually be committed. Intent and agreement are sufficient to charge a defendant with the crime of conspiracy. State v. Mena, 471 So.2d 1297 (Fla. 3d DCA 1985).
As noted in United States v. Trowery, 542 F.2d 623 (3d Cir.1976):
The coconspirator exception to the hearsay rule is ... merely a rule of evidence founded, to some extent, on concepts of agency law. It may be applied in both civil and criminal cases.... Its rationale is the common sense appreciation that a person who has authorized another to speak or to act to some joint end will be held responsible for what is later said or done by his agent, whether in his presence or not.
Id. at 626; United States v. Gil, 604 F.2d 546, 549 (7th Cir.1979).
This court has stated:
The admissibility of hearsay statements of coconspirators is not dependent upon the existence of a count charging conspiracy.... The admissibility of these statements depends, instead, on the rule of evidence which excepts such statements from the general rule which makes hearsay inadmissible.... Thus, whether or not a conspiracy is charged, the threshold condition of admissibility of a coconspirator's hearsay statement--proof independent of the statement that the defendant against whom the statement is sought to be introduced and the declarant participated together in a conspiracy--remains the same.
Tresvant v. State, 396 So.2d 733, 736-737 (Fla. 3d DCA), review denied, 408 So.2d 1096 (Fla.1981) (citations and footnote omitted); accord Romani v. State, 542 So.2d 984 (Fla.1989). In Tresvant the conspiracy count was found to be insufficiently pleaded and was dismissed. This court concluded that there was ample independent evidence of conspiracy so that the coconspirator hearsay statements were properly admitted with respect to the remaining substantive counts of the indictment. Id. at 736-41.
Appellee urges, however, that since the coconspirator was acquitted by reason of entrapment, this destroyed the foundation of the conspiracy, leaving appellee as the conspiracy's...
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Plante v. Department of Business and Professional Regulation, Div. of Pari-Mutuel Wagering
...of the substance beyond normal levels. Conspiracy does not require proof that the offense was successfully completed. State v. Brea, 545 So.2d 954 (Fla. 3d DCA 1989). While we affirm the agency's finding of a statutory violation and the constitutionality of section 550.235(2), we reverse th......
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State v. Andres, 88-2346
...charge does not, per se, preclude the use of the co-conspirators' statements at the trial on the trafficking charge. See State v. Brea, 545 So.2d 954 (Fla. 3d DCA 1989) (the admissibility of hearsay statements of co-conspirators is merely a rule of evidence and is not dependent upon the exi......