State v. Hunter

• Decision Date: 29 August 1991
• Docket Number: No. 73230,73230
• Citation: 586 So.2d 319
• Parties: STATE of Florida, Petitioner, v. David William HUNTER and Kelly I. Conklin, Respondents. 586 So.2d 319, 16 Fla. L. Week. S588
• Court: Florida Supreme Court

Page 319

586 So.2d 319

STATE of Florida, Petitioner, v. David William HUNTER and Kelly I. Conklin, Respondents.

No. 73230.

586 So.2d 319, 16 Fla. L. Week. S588

Supreme Court of Florida.

Aug. 29, 1991.

Robert A. Butterworth, Atty. Gen., and John Tiedemann and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for petitioner.

Christopher A. Grillo, Fort Lauderdale, for respondent, David William Hunter.

Fred Haddad, Fort Lauderdale, for respondent, Kelly I. Conklin.

McDONALD, Justice.

We review Hunter v. State, 531 So.2d 239 (Fla. 4th DCA 1988), in which the district court certified two questions as being of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and quash Hunter.

The chief prosecution witness in the instant case, Ron Diamond, had been convicted of drug trafficking and sentenced to fifteen years in prison and a $250,000 fine. Diamond sought a sentence reduction under subsection 893.135(3), Florida Statutes (1985), which provided in pertinent part that a prosecutor can request that the sentencing court reduce or suspend a sentence for drug trafficking if the defendant "provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals." Based on this statute, the trial court agreed to release Diamond at various times both before and after his conviction so that he could assist the police.

Because Diamond could not produce any past accomplices the state offered him a "contract" if he assisted in identifying and arresting future accomplices. The major condition of the agreement was that Diamond's assistance had to result in the confiscation of at least four kilograms of cocaine within a certain period of time. Diamond subsequently assisted the police in "making" several new drug cases, but fell short of his cocaine quota by one kilogram. The trial court then permitted Diamond to remain at liberty if within sixty days he gave the police information that led to the confiscation of the remaining kilogram.

During the sixty-day period, Diamond noticed that another resident of his apartment complex, Kelly Conklin, openly smoked marijuana. Conklin, a twenty-one-year-old recent graduate of an art school, had no prior criminal record. He lived with his pregnant girlfriend and worked for an advertising firm run by David Hunter. Approaching Conklin, Diamond asked for assistance in obtaining drugs, but Conklin could not provide any sources for the drugs that Diamond wanted. Diamond became more insistent and began telephoning Conklin almost daily. Eventually Conklin turned to Hunter, who agreed to help find drugs to sell to Diamond. ¹ Hunter sought out a former employee who provided the drugs, but, in doing so, insisted that Hunter, not Conklin, complete the transaction. ² When Hunter attempted to close the transaction with the police undercover buyers, both he and Conklin were arrested. They were charged with trafficking and conspiracy and raised entrapment under Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), as a defense. The jury, however, convicted them as charged, and they received minimum mandatory sentences of fifteen years' imprisonment as well as $250,000 fines.

Hunter and Conklin raised several issues on appeal, including whether, under State v. Glosson, 462 So.2d 1082 (Fla.1985), Diamond's conduct violated their due process rights so that the charges against them should have been dismissed. The district court decided the appeal on the Glosson issue and did not address the other issues. After finding a due process violation, the court certified the following questions:

Does an agreement whereby a convicted drug trafficker will receive a substantially reduced sentence in exchange for setting up new drug deals and testifying for the state violate the holding in State v. Glosson?

Assuming the existence of a due process violation under Glosson, does Glosson 's holding extend to a codefendant who was not the direct target of the government's agent?

Hunter, 531 So.2d at 243. We find Glosson distinguishable from the instant case and hold that the district court should not have decided the case as it did. Therefore, we answer the certified questions in the negative as qualified and explained below.

In Glosson the state and an informant made a contingent-fee agreement under which the informant would receive ten percent of all civil forfeitures in exchange for his testimony and cooperation in the criminal prosecutions which produced the forfeitures. The informant "had to testify and cooperate in criminal prosecutions in order to receive his contingent fee from the connected civil forfeitures, and criminal convictions could not be obtained ... without his testimony." Glosson, 462 So.2d at 1085 (emphasis added). Under such circumstances, maintaining the integrity of a fair prosecution superseded prosecuting defendants who might have been guilty. Because this Court found the misconduct in Glosson so egregious, we stated and held:

We can imagine few situations with more potential for abuse of a defendant's due process right. The informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.

Accordingly, we hold that a trial court may properly dismiss criminal charges for constitutional due process violations in cases where an informant stands to gain a contingent fee conditioned on cooperation and testimony in the criminal prosecution when that testimony is critical to a successful prosecution.

Id. (emphasis added). We reiterate that an agreement giving someone a direct financial stake in a successful criminal prosecution and requiring the person to testify in order to produce a successful prosecution is so fraught with the danger of corrupting the criminal justice system through perjured testimony that it cannot be tolerated.

Gaining or preserving one's liberty could produce as great an interest in the outcome of a criminal prosecution as a financial interest, but that is not the case here. Glosson is very fact specific, and several facts distinguish the instant case from Glosson. Although Diamond testified against Conklin and Hunter, his agreement with the state did not require that he do so. Rather, Diamond had to produce a stated amount of cocaine. The reduction of his sentence depended upon reaching a quota, not upon his testifying or upon the state's obtaining convictions. In Glosson, on the other hand, the informant would be paid only if he testified and the state won a conviction. The possibility, perhaps even probability, of perjury present in Glosson was much greater than in the instant case. Thus, we conclude that Glosson does not control this case.

In Myers v. State, 494 So.2d 517 (Fla. 4th DCA 1986), the district court applied Cruz, on which Conklin and Hunter relied at trial, to facts very similar to those in the instant case. In fact, in his brief Conklin characterizes Myers as "the proverbial 'case on all fours' with the instant matter." We agree and hold that the district court should have decided this appeal on the entrapment issue rather than under Glosson.

In Cruz we stated that the state must "establish initially whether 'police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.' " 465 So.2d at 521 (quoting Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (1958), Frankfurter, J., concurring in result). To guide trial courts, we set out a threshold test for establishing entrapment: "Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity." Id. at 522 (emphasis added). By focusing on police conduct, this objective entrapment standard includes due process considerations.

Diamond had become the state's agent, and his acts must be construed as "police activity." His activities, however, meet neither part of the Cruz test, let alone both, because there was no "specific ongoing criminal activity" until Diamond created such activity in order to meet his quota. Therefore, as in Cruz, Conklin established entrapment as a matter of law, and the trial court erred in denying his motion for judgment of acquittal based on entrapment. Cf. Myers; Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1985), review denied, 488 So.2d 831 (Fla.1986).

Conklin's benefitting from the entrapment defense, however, does not mean that Hunter should too. Although Diamond's acts amounted to entrapment of Conklin, the middleman, he had minimal telephone contacts with Hunter. When a middleman, not a state agent, induces another person to engage in a crime, entrapment is not an available defense. State v. Garcia, 528 So.2d 76 (Fla. 2d DCA), review denied, 536 So.2d 244 (Fla.1988); Acosta v. State, 477 So.2d 9 (Fla. 3d DCA 1985); State v. Perez, 438 So.2d 436 (Fla. 3d DCA 1983). Conklin, not Diamond, brought Hunter into the scheme, and Hunter's involvement was wholly voluntary even though his motive may have been benevolent. Hunter, therefore, should not have been allowed to raise entrapment. Also, defendants cannot raise "due process violations allegedly suffered by third parties." United States v. Valdovinos-Valdovinos, 743 F.2d 1436, 1437 (9th Cir.1984), cert. denied, 469 U.S. 1114, 105 S.Ct. 799, 83 L.Ed.2d 791 (1985); accord United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); ...