Stripling v. State

• Decision Date: 12 July 1977
• Docket Number: Nos. 75-1820 and 75-1821,s. 75-1820 and 75-1821
• Citation: 349 So.2d 187
• Parties: William H. STRIPLING, Appellant, v. The STATE of Florida, Appellee. Fred B. SPIEGEL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 187

349 So.2d 187

William H. STRIPLING, Appellant, v. The STATE of Florida, Appellee.

Fred B. SPIEGEL, Appellant, v. The STATE of Florida, Appellee.

Nos. 75-1820 and 75-1821.

District Court of Appeal of Florida, Third District.

July 12, 1977.

Rehearing Denied Sept. 15, 1977.

Gerald Kogan, Miami, for Stripling.

Richard M. Gale, Bierman, Sonnett, Beiley, Shohat & Osman, Miami, for Spiegel.

Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

HAVERFIELD, Judge.

In these appeals defendants, Fred B. Spiegel and William H. Stripling, seek reversal of their respective convictions for bribery and conspiracy to commit bribery.

On March 30, 1974 defendant William Stripling was arrested by a Virginia Gardens police officer, Robert Weiss, and charged with driving under the influence. Stripling retained the defendant, Fred B. Spiegel, Esq., to represent him. At the commencement of the trial on May 1, Spiegel requested and was granted a continuance. Immediately thereafter, Officer Weiss joined Spiegel in the courthouse cafeteria for coffee at which time Weiss contended that Spiegel during their conversation offered him money if he would not appear to testify at Stripling's trial which had been reset for May 29. Weiss reported this alleged conversation to the state attorney's office and cooperated in the ensuing investigation conducted by that office. At the behest of the state attorney, Weiss made several telephone calls ¹ and arranged to meet with Spiegel on various occasions. On the order of the state attorney Weiss failed to appear on the May 29 trial date and the case was again continued until June 26. Spiegel subpoenaed Weiss to take his deposition on June 24, at which time Weiss appeared and was deposed. On the following day Weiss went to Spiegel's office and after discussing a personal legal problem with Spiegel, raised the matter of the Stripling trial scheduled for the next day and then wrote on a pad which he handed Spiegel, would Stripling "go $200". Spiegel wrote back a note to the effect that he would speak to Weiss when the thing was over and that he (Spiegel) had seven years of education at stake. After the meeting the two went out for a beer and upon returning to Spiegel's office, Weiss announced that he was not going to show up at the trial. Spiegel replied that Weiss should do whatever he wanted. Weiss, as instructed by the state attorney, did not appear at the trial (on June 26) and the case against Stripling was dismissed. Later that day, upon returning to his office, Spiegel found Stripling and Weiss waiting to see him. At the insistence of Weiss, Spiegel accompanied him and Stripling to a nearby restaurant where Spiegel excused himself and went into the restroom at which time Stripling handed Weiss $200. Upon returning from the restroom, Spiegel and Stripling were arrested. The two were charged with bribery and conspiracy to commit bribery and tried jointly. At the trial Spiegel defended on the ground that Weiss, not he, had initiated all conversations with respect to the bribes over his (Spiegel's) protests and objections, and Weiss was attempting to "shake him down". The jury found Spiegel and Stripling guilty of the bribery and conspiracy charges. They separately appealed their convictions and these appeals were consolidated for the purpose of the use of a single record. Stripling, in addition to the points raised in his brief, has adopted the arguments raised by Spiegel and we will dispose of both appeals in this consolidated opinion.

For his first point on appeal, Spiegel contends the trial court erred by including in its instruction on entrapment to the jury that the defense of entrapment is not available to a defendant who denies that he committed the alleged crimes.

The judge rendered to the jury the following entrapment instruction to which defendant objected:

"The burden is on the Government to prove beyond a reasonable doubt that the inducement was not the cause or creator of the crime or that the accused was ready and willing to commit the offense charged whenever the opportunity was offered. The burden is upon the Government to satisfy the jury beyond a reasonable doubt that the Defendant was not entrapped into committing the offense, the allegation, which absent entrapment, constituted the offense.

"And in connection with that, the Court would also reiterate to the jury that entrapment predisposes the commission of a crime. The defense of entrapment is available when an officer acts in good faith to discover or detect crime in both commissions of one that had prerequisite criminal intent.

"The defense of entrapment is not available to a Defendant that denies that he committed the acts charged.

"The Court would further advise that the first duties of the officers of the law to prevent, not to punish crime, it is not their duty to incite or create crime for the sole purpose of prosecuting and punishing. It is unconscionable to the punishment of a man for commission of the offense of the like which he has never been guilty and evidently would never have been guilty of if the officer of the law had not inspired and lured him to attempt to commit it. It is well settled that decoys may be used to entrap criminals and to present opportunity to one intending or willing to commit a crime or decoys are not permissible to ensnare the innocent and law abiding into the commission of a crime." (Emphasis Supplied)

Shortly after the jury retired to deliberate, it requested a copy of the law of entrapment. Instead, the judge again rendered the jurors an instruction similar to the above and concluded his instruction as follows:

"Entrapment predisposes the commission of a crime. The defense of entrapment is not available where an officer acted in good faith to discover or detect crime and merely furnished an opportunity for a commission thereof by one who had prerequisite criminal intent. The defense of entrapment is not available to a defendant who denies that he committed the acts charged." (Emphasis Supplied)

We hold that these two instructions were erroneous.

The instructions are confusing by virtue of the fact that when an instruction on entrapment was rendered, the court found that Spiegel had presented sufficient evidence with respect thereto to warrant such a charge. As a result of the court further instructing that the defense was unavailable to an accused who denies commission of the acts charged, the jurors, even if they believed Spiegel was entrapped, could not then give him the benefit of his entrapment defense because he denied the charges. Indeed, the confusion to the jury is apparent from the record which reflects that shortly after they retired to deliberate, the jurors requested a copy of the law of entrapment. Instead, the jury received another similarly ambiguous entrapment instruction.

Furthermore, Florida Standard Jury Instructions 2.11(e), below, on entrapment contains no such statement as to the unavailability of the defense:

"(e) ENTRAPMENT

"One of the defenses asserted in this case is that the defendant was a victim of what is known as entrapment.

"One who, for the purpose of prosecution, is persuaded, induced or lured by an officer of the law or someone acting for him, into the commission of a crime which he had otherwise no intention to commit, may avail himself of the defense of entrapment and should not be convicted. However, that defense is not available if the officer acted in good faith for the purpose of detecting crime and merely furnished an opportunity for commission thereof by one who already had the intent to commit the crime.

"It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that he was decoyed or solicited by persons seeking to expose the criminal, or that law enforcement officers pretending participation in the act were present and apparently assisting in its commission.

"The state must prove beyond a reasonable doubt that the defendant was not the victim of entrapment by law enforcement officers, and unless it has done so you should find the defendant not guilty."

Nevertheless, the prosecution argues that this challenged instruction is in accord with the holdings in Ivory v. State, 173 So.2d 759 (Fla.3d DCA 1965) and Pearson v. State, 221 So.2d 760 (Fla.2d DCA 1969) that the defense of entrapment is not available to a defendant who denies he committed the offense charged on the theory that entrapment presupposes the act charged was committed and, therefore, a denial of the commission of the offense is inconsistent with the defense of entrapment. While these holdings reflect the general rule, there is a qualification in cases involving a charge of conspiracy. A defendant could deny being a party to a conspiracy and yet raise the issue that any overt acts done by him or her were done because of entrapment; the rationale being that inconsistencies in defenses in criminal cases are allowable so long as the proof of one does not necessarily disprove the other. McCarty v. U. S., 379 F.2d 285, 286-287 (5th Cir. 1967); U. S. v. Newcomb, 488 F.2d 190 (5th Cir. 1974). In the instant case the proof that Spiegel was not a member of a conspiracy would not have necessarily disproved that he was entrapped into committing a particular overt act. Cf. Henderson v. U. S., 237 F.2d 169 (5th Cir. 1956); Sears v. U. S., 343 F.2d 139 (5th Cir. 1965). We, therefore, find that the court committed reversible error in rendering the objected to instructions to the jury.

Spiegel next urges as reversible error the court's denial of his right to cross-examine Weiss, the prosecution's key witness, as to whether he, as a police officer, was under investigation by the state attorney's office.

Spiegel's counsel outside of the presence of the jury informed the judge that he had reason to believe that Officer Weiss for over one...