State v. Laing

• Decision Date: 06 January 2016
• Docket Number: No. 4D14–1705.,4D14–1705.
• Citation: 182 So.3d 812
• Parties: STATE of Florida, Appellant, v. Jamal Rashad LAING, Appellee.
• Court: Florida District Court of Appeals

182 So.3d 812

STATE of Florida, Appellant,

v.Jamal Rashad LAING, Appellee.

No. 4D14–1705.

District Court of Appeal of Florida, Fourth District.

Jan. 6, 2016.

Pamela Jo Bondi, Attorney General, Tallahassee, Monique Rolla and Georgina Jimenez–Orosa, Assistant Attorneys General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.

KLINGENSMITH, J.

The State of Florida (the "State") appeals an order granting Jamal Rashad Laing's ("appellee") motion to dismiss the charges of traveling to meet a minor for unlawful sexual activity ("count I") and lewd computer solicitation of a child ("count II"). We find that the trial court erred in granting appellee's motion to dismiss the charges under both the subjective and objective standards of entrapment, and reverse.

On October 9, 2013, a school resource officer observed appellee inside a parked car in a local park with a minor female ("S.G."). According to the resource officer, appellee was on top of S.G., kissing her.

At the time, appellee was nineteen years old and S.G. was fifteen. After the officer intervened and spoke with S.G., she told him that during the consensual encounter appellee attempted to touch her hip, breast, and groin areas.¹ The officer released appellee without arresting him after a warrant check came back clean.

The resource officer then transported S.G. back to school to interview her. During the interview, she told him that she and appellee had multiple conversations after meeting on Facebook, and that appellee had picked her up that day after school. It was also revealed that appellee and S.G. had exchanged nude pictures of themselves in those Facebook conversations. S.G. showed the resource officer her phone containing numerous text messages between herself and appellee, and in one message appellee specifically stated that he wanted S.G. to perform oral sex on him.

The case then was turned over to a detective with the Indian River County Sheriff's Office for further investigation, who discovered that appellee had no criminal history. Appellee did not call, text, or otherwise try to contact S.G. during the week following their encounter.

Using S.G.'s phone, the detective initiated contact with appellee on October 16 by texting him the word "hey." Appellee responded by asking if S.G. had gotten in trouble for the incident. After some innocent conversation between appellee and the detective posing as S.G., appellee asked S.G. if she thought they would have had sex if they had not been interrupted. The detective responded "maybe," and inquired whether or not the fact that she was only fifteen would have been a problem for appellee. When questioned as to why she was asking him that question, the detective responded (as S.G.) that it was to make sure appellee was comfortable with her age, and that it was not a problem with her if it was not a problem with him. Appellee stated that he did not care about her age.

Appellee then texted that he had been ready to have sex with S.G. during the first encounter, to which the detective responded, "too bad that cop showed up." Appellee replied that he knew they should not have gone to the park, and that they should have gone to a different location. In response, the detective told appellee, "I no [sic] a place where nobody would see us." Arrangements then were made to have appellee meet S.G. at a restaurant the following day.

Appellee confirmed he would meet S.G., and stated that he wanted her to perform oral sex on him. He also stated that he would show up only if she would give him some gas money. Appellee was arrested upon his arrival at the restaurant.

After being read his Miranda rights, appellee confessed that he had been texting S.G. and that he had gone to the restaurant to see her. He admitted that he knew S.G. was fifteen, and although he originally intended to have sex with S.G., his aunt dissuaded him from doing so because he could get in trouble.² During the drive to jail, appellee also stated that he would have had sex with S.G. if not interrupted, although it is unclear whether he meant that he would have done so on the day of his arrest or in the park a week earlier.

Appellee moved to dismiss his charges based on objective and subjective entrapment by law enforcement. After an evidentiary hearing, the court granted appellee's motion, finding that he was entrapped as a matter of law under the objective standard of entrapment because his due process rights were violated. The trial court also found that appellee was entrapped under the subjective standard because of active inducement by the detective, and because there was no evidence of predisposition on the part of appellee. The State now appeals from that order of dismissal.

The Entrapment Defense

In Florida, the defense of entrapment is bifurcated into objective and subjective variants:

There are two different theories of entrapment. "Objective entrapment analysis focuses on the conduct of law enforcement" and "operates as a bar to prosecution in those instances where the government's conduct ‘so offends decency or a sense of justice’ that it amounts to a denial of due process." Davis v. State, 937 So.2d 300, 302 (Fla. 4th DCA 2006) (quoting State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005) ). Subjective entrapment, on the other hand, "is applied in the absence of egregious law enforcement conduct and focuses on inducement of the accused based on an apparent lack of predisposition to commit the offense." Id.

State v. Henderson, 955 So.2d 1193, 1194 (Fla. 4th DCA 2007).

Section 777.201, Florida Statutes, provides:

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

§ 777.201, Fla. Stat. (2013) (emphasis added).

We have defined inducement as "government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship." Farley v. State, 848 So.2d 393, 395 (Fla. 4th DCA 2003) (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994) ).

Objective Due Process Standard

Entrapment under the objective due process standard requires "conduct of law enforcement agents [that] is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Tercero v. State, 963 So.2d 878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985) ).

In considering objective entrapment, courts must look to the totality of the circumstances, focusing on "whether the government conduct ‘so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction.’ " Hernandez v. State, 17 So.3d 748, 751 (Fla. 5th DCA 2009) (quoting State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005) ). "It is a balancing test; the court must weigh the rights of the defendant against the government's need to combat crime." Bist v. State, 35 So.3d 936, 939 (Fla. 5th DCA 2010). The justification lies in stunting prosecutions premised upon "methods offending one's sense of justice." Munoz v. State, 629 So.2d 90, 98 (Fla.1993).

"Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent," Bist, 35 So.3d at 940, that "entices or facilitates the commission of the crime." Schwartz v. State, 125 So.3d 946, 951 (Fla. 4th DCA 2013).

When evaluating this standard, the trial court must, however, "limit its consideration to the conduct of law enforcement." Blanco, 896 So.2d at 902. "[T]he effect of the officer's conduct on the defendant, the defendant's subjective perception of the situation, and [the defendant's] apparent lack of predisposition to commit the offense" are all factors that are irrelevant to a claim of entrapment on due process grounds.³ Id.

For example, the Florida Supreme Court has found objective entrapment in cases where law enforcement officers provide informants with a financial stake in procuring convictions, or require informants to effectuate arrests within a defined timeframe, because both scenarios greatly incentivize the informant "not only to make criminal cases, but also to color ... testimony or even commit perjury." Glosson, 462 So.2d at 1085 (barring law enforcement from using contingency fees, wherein informants would receive ten percent of all civil forfeitures in exchange for convictions); see also State v. Hunter, 586 So.2d 319, 320, 322 (Fla.1991) (citation omitted) (finding objective entrapment where the informant's "contract" required in part that he obtain "at least four kilograms of cocaine within a certain period of time").⁴

Objective entrapment also exists where law enforcement otherwise employs impermissible tactics to create the offense. See, e.g., State v. Williams, 623 So.2d 462, 463 (Fla.1993) (holding that law enforcement violated the due process clause of the Florida Constitution by manufacturing crack cocaine to be used in reverse-sting operation); Madera v. State, 943 So.2d 960, 961–62 (Fla. 4th DCA 2006) (holding that law...