entrapment defense in Florida

2018“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.” State v. Henderson, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007) (citation and internal quotation marks omitted). “[I]n the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution.” Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993).

2017“However, admission of evidence of predisposition is limited to the extent it demonstrates 2 Section 777.201 may not, by its express terms, limit its application to subjective entrapment, but the Florida Supreme Court held that it does not govern the objective entrapment defense: “in the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution.” Munoz, 629 So. 2d at 99 .

1984The subjective approach to the entrapment defense focuses upon the "intent or predisposition of the defendant *476 to commit the crime." [4] Russell, 411 U.S. at 429 , 93 S.Ct. at 1641 ; accord Hampton; Dickinson; State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982); State v. Brider, 386 So.2d 818 (Fla.2d DCA), review denied, 392 So.2d 1372 (Fla. 1980).

1983In Sokos , Associate Judge Spicola, speaking for this court, noted that: "The entrapment defense `focuses on the intent or predisposition of the defendant to commit a crime.' State v. Brider, 386 So.2d 818, 820 (Fla. 2d DCA 1980) (emphasis supplied)." He explained that predisposition could be shown by establishing (1) prior criminal activity by the defendant; or (2) reasonable suspicion of his involvement in such activity; or (3) his ready acquiescence *1310 in the commission of the crime.

2006State v. Glosson, 462 So.2d 1082, 1084, 1085 (Fla.1985) (determining that the trial court had sufficient undisputed facts before it to warrant dismissal as a matter of law); Munoz, 629 So.2d at 99 (noting that "in the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9 of the Florida Constitution as in Glosson "); Blanco, 896 So.2d at 901 ("[w]hen government conduct violates a defendant's due process rights, the remedy is dismissal"); Taylor, 784 So.2d at 1167 ("[i]f the actions of a law enforcement off

2005Before Munoz , the supreme court had already made clear that while the subjective test is ordinarily (but not exclusively, as I shall presently show) for the jury, the objective test is for the court alone: "The due process defense based upon governmental misconduct is an objective question of law for the trial court, as opposed to the subjective predisposition question submitted to the jury in the usual entrapment defense." [e.s.] State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985).

1992Scott, Jr., Substantive Criminal Law § 5.2(a) (1986). [4] The United States Supreme Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932).

1992Scott, Jr., Substantive Criminal Law § 5.2(a) (1986). [4] The United States Supreme Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932).

1993The Supreme Court next addressed the entrapment defense in Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), under the following undisputed facts.

1993The Supreme Court next addressed the entrapment defense in Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), under the following undisputed facts.

2014See Mathews v. United States, 485 U.S. 58, 62-63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (noting that “a valid entrapment defense has two related elements: government[al] inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct” and holding that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment”); Wilson, 577 So.2d at 1302 (“ ‘Asserting the entrapment defense is not necessarily inconsistent

2014See Mathews v. United States, 485 U.S. 58, 62-63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (noting that “a valid entrapment defense has two related elements: government[al] inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct” and holding that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment”); Wilson, 577 So.2d at 1302 (“ ‘Asserting the entrapment defense is not necessarily inconsistent

2003Herrera v. State, 594 So.2d 275, 277 (Fla.1992); see also § 777.201, Fla. Stat. (1991) (entrapment creates a substantial risk that a crime "will be committed by a person other than one who is ready to commit it").

1997In Herrera v. State, 594 So.2d 275 (Fla.1992), the court considered a certified question from this court as to whether section 777.201 unconstitutionally shifted the burden of proof to the defendant to prove entrapment. [4] The court held that the statute was not unconstitutional on that ground, explaining as follows: "Herrera argues that this Court's decisions on previous versions of the entrapment instruction, e.g., State v. Wheeler, 468 So.2d 978 (Fla.1985), demonstrate that the new instruction and subsection 777.201(2) violate the due process clauses of the United States and Florida Consti

2014Israel, Criminal Procedure § 5.3, at 154-55 (1985))); Medina v. State, 634 So.2d 1149, 1151 (Fla. 4th DCA 1994) (concluding Medina had the right to an instruction on entrapment when “he admitted that he committed the acts that resulted in the drug deal, even though he denied knowing that the deal was going down when it did”); Terwilliger, 535 So.2d at 347 (“Even a defendant who denies one of the elements of the offense for which he is charged is entitled to an entrapment instruction.”).

2013See Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988) (“It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented.”).

2012Contra Ortiz, 654 So.2d at 1003 (“Despite [the Defendant’s] past connection to the drug world, the jury still could have believed that [the Defendant] was not predisposed to commit this particular crime.”).

1999We conclude that the entrapment instruction given in this case did not adequately satisfy section 777.201 as construed in Munoz and was thus erroneous. 2 See Vazquez v. State, 700 So.2d 5, 14 (Fla. 4th DCA 1997), review granted, 705 So.2d 902 (Fla.1998) (holding that under new formulation announced in Munoz, “we agree that the standard jury instruction does not fairly and correctly present the current state of the law[.]”); see also Ortiz v. State, 654 So.2d 1002, 1003 (Fla. 4th DCA 1995) (holding that on remand, trial court is instructed to give the entrapment instruction mandated by Munoz ).

2011See Cabrera v. State, 766 So.2d 1131, 1134 (Fla. 2d DCA 2000) (holding that counsel was ineffective for failing to assert an entrapment defense that was legally available and where there was no other viable defense to present).

2009“An entrapment defense is available even though [a] defendant has previously been arrested for a similar crime.” Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000).

2008We stated that it is not unconstitutional to place the burden on a defendant to prove that he or she was entrapped and further noted that "the entrapment defense in this case was tenuous at best and the facts do not present a compelling demand for relief." Id. at 1270 n. 3; see also Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (holding that fundamental error did not occur when the trial court failed to instruct the jurors on the affirmative defense of involuntary intoxication because the instruction was unnecessary to prove an essential element of the crime).

2000However, relying on this Court's decision in Sochor v. State, 619 So.2d 285, 290 (Fla.1993), the First District held, "Since the entrapment instruction pertains to a defense rather than to an essential element of the crime charged, no fundament error occurred." Holiday, 730 So.2d at 830 .

1993Cruz, 465 So.2d at 521 . 1 The state asserts that the legislature abolished the separate defense of objective entrapment when it enacted, effective October 1, 1987, section 777.201, Florida Statutes (1991), which placed the burden of persuasion on the defendant to prove an entrapment defense.

1992The Supreme Court of Florida in Cruz v. State, 465 So.2d 516, 522 (Fla.), cert. denied, 473 U.S. 905 , 105 S.Ct. 3527 , 87 L.Ed.2d 652 (1985), stated: To guide the trial courts, we propound the following threshold test of an entrapment defense: 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.

1984The subjective approach to the entrapment defense focuses upon the "intent or predisposition of the defendant *476 to commit the crime." [4] Russell, 411 U.S. at 429 , 93 S.Ct. at 1641 ; accord Hampton; Dickinson; State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982); State v. Brider, 386 So.2d 818 (Fla.2d DCA), review denied, 392 So.2d 1372 (Fla. 1980).

1984The subjective approach to the entrapment defense focuses upon the "intent or predisposition of the defendant *476 to commit the crime." [4] Russell, 411 U.S. at 429 , 93 S.Ct. at 1641 ; accord Hampton; Dickinson; State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982); State v. Brider, 386 So.2d 818 (Fla.2d DCA), review denied, 392 So.2d 1372 (Fla. 1980).

2018“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.” State v. Henderson, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007) (citation and internal quotation marks omitted). “[I]n the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution.” Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993).

2013“Inducement” in the context of the entrapment defense has been defined as “persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.” State v. Henderson, 955 So.2d 1193, 1195 (Fla. 4th DCA 2007) (citations omitted).

1982Newman v. United States, 299 F. 128, 131 (4th Cir.1924); accord State v. Rouse, supra. Under the most current formulations of the United States Supreme Court, the entrapment defense "focuses on the intent or predisposition of the defendant to commit a crime." State v. Brider, 386 So.2d 818, 820 (Fla.2d DCA 1980); accord, United States v. Russell, supra; Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976).

1976See Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975); State v. Rouse, 239 So.2d 79 (Fla. 4th DCA 1970); State v. Liptak, supra. The only Florida case in which an entrapment defense was found to require a judgment of acquittal as a matter of law was Thomas v. State, 185 So.2d 745 (Fla. 3rd DCA 1966).

2016See § 777.201(2) (“The issue of entrapment shall be tried by the trier of fact.”); Smith v. State, 320 So.2d 420, 422 (Fla. 2d DCA 1975). (“[T]he issue of entrapment is a jury question, unless it is determined that the evidence is so clear and convincing that as a matter of law entrapment has been conclusively established.”).

1976See Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975); State v. Rouse, 239 So.2d 79 (Fla. 4th DCA 1970); State v. Liptak, supra. The only Florida case in which an entrapment defense was found to require a judgment of acquittal as a matter of law was Thomas v. State, 185 So.2d 745 (Fla. 3rd DCA 1966).

2006NOTES [1] Although Ariel Zeno and Cabrera were not tried together, they were alleged confederates in a drug enterprise. [2] The court in Davis held that the error in using the conjunction "or" between the defendants' names was harmless where Davis relied on an entrapment defense. 804 So.2d at 405 .

2006Davis was a case where Antoinette Davis and her codefendant/husband both relied on an entrapment defense to the charges of trafficking in cocaine and conspiracy. 804 So. 2d at 401 .

2014See Mathews v. United States, 485 U.S. 58, 62-63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (noting that “a valid entrapment defense has two related elements: government[al] inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct” and holding that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment”); Wilson, 577 So.2d at 1302 (“ ‘Asserting the entrapment defense is not necessarily inconsistent

2014See Mathews v. United States, 485 U.S. 58, 62-63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (noting that “a valid entrapment defense has two related elements: government[al] inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct” and holding that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment”); Wilson, 577 So.2d at 1302 (“ ‘Asserting the entrapment defense is not necessarily inconsistent

2008Upon our review of the complete record in this case, we conclude that the erroneous forcible-felony instruction did not deprive Martinez of a fair trial and, therefore, fundamental error did not occur. *456 See Smith, 521 So.2d at 108 . [5] We reach this conclusion based upon two particular aspects of the case.

2002See id. at 108 ; see also Holiday v. State, 753 So.2d 1264, 1269-70 (Fla.2000) (relying on Smith to support the conclusion that the giving of an erroneous standard jury instruction on the entrapment defense, which improperly explained the law with respect to the burden of proof in such cases, did not constitute fundamental error).

2008We stated that it is not unconstitutional to place the burden on a defendant to prove that he or she was entrapped and further noted that "the entrapment defense in this case was tenuous at best and the facts do not present a compelling demand for relief." Id. at 1270 n. 3; see also Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (holding that fundamental error did not occur when the trial court failed to instruct the jurors on the affirmative defense of involuntary intoxication because the instruction was unnecessary to prove an essential element of the crime).

2006Likewise, in Holiday v. State, 753 So.2d 1264 (Fla.2000), the instruction given regarding the defendant's entrapment defense was also faulty.

1987State v. Wheeler, 468 So.2d 978 (Fla. 1985); Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905 , 105 S.Ct. 3527 , 87 L.Ed.2d 652 (1985); State v. Dickinson, 370 So.2d 762 (Fla. 1979).

1985We adopted this view in State v. Dickinson, 370 So.2d 762 (Fla. 1979).

2001When addressing an entrapment defense, evidence of the government agent's state of mind is very relevant and cannot be considered harmless if there is "strong evidence of government involvement and persistence." Morris v. State, 487 So.2d 291, 294 (Fla.1986).

1986In order for the jury to consider predisposition, it must have all the facts relating to government inducement. (emphasis supplied) 487 So.2d at 293 .