Fruetel v. State

638 So. 2d 966, 1994 WL 203006
CourtDistrict Court of Appeal of Florida
DecidedJuly 6, 1994
Docket90-2970
StatusPublished
Cited by5 cases

This text of 638 So. 2d 966 (Fruetel v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fruetel v. State, 638 So. 2d 966, 1994 WL 203006 (Fla. Ct. App. 1994).

Opinion

638 So.2d 966 (1994)

Patricia FRUETEL, Appellant,
v.
STATE of Florida, Appellee.

No. 90-2970.

District Court of Appeal of Florida, Fourth District.

May 25, 1994.
Order Denying Rehearing July 6, 1994.

*967 Anthony C. Musto, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.

UPON MANDATE OF THE SUPREME COURT

DELL, Chief Judge.

In Fruetel v. State, 609 So.2d 697 (Fla. 4th DCA 1993), we held appellant was entitled to a judgment of acquittal on charges of trafficking and conspiracy to traffic in cocaine because the evidence established objective entrapment as a matter of law. Pursuant to the Supreme Court of Florida's mandate, we now reconsider our earlier opinion in light of *968 the supreme court's subsequent decision in Munoz v. State, 629 So.2d 90 (Fla. 1993).

In Munoz, the supreme court said:

Given the history of the entrapment defense, we find that the legislature, in establishing a legislatively created entrapment defense through section 777.201, codified the subjective test delineated by the United States Supreme Court as the means for determining the application of that defense... . Three principles arise under this test. The first two involve questions of fact and differing burdens of proof, and the third addresses whether the issue of entrapment must be submitted to the jury or whether the issue can be decided by the judge as a matter of law.
The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged. On this issue the accused has the burden of proof and pursuant to section 777.201, must establish this factor by a preponderance of the evidence. If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged; that is whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense. On this second question ... the defendant initially has the burden to establish lack of predisposition. However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt. In rebutting the defendant's evidence of lack of predisposition, the prosecution may make "an appropriate and searching inquiry" into the conduct of the accused... . However, admission of evidence of predisposition is limited to the extent it demonstrates predisposition on the part of the accused both prior to and independent of the government acts. Further, care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement.

Id. at 99 (emphasis added).

Appellant claimed the evidence established entrapment as a matter of law because a confidential informant participating in a substantial assistance program induced her to commit a crime which she was not predisposed to commit. At her trial, she offered the following explanation of the events surrounding her arrest.

While on vacation in Florida in 1989, appellant and Vaden Williams, her codefendant and with whom she was having an extramarital affair, became friends with Anibal Duarte and his girlfriend. In February, 1990, she loaned Duarte $750 to repair his car and pay his girlfriend's medical bills. Appellant called Duarte the following month to inquire about her money. He suggested they work something out. Unknown to appellant at this time, Duarte had been convicted on federal drug charges and had agreed to provide substantial assistance to federal authorities in exchange for leniency at his sentencing. Appellant felt a trip to Florida might revive her troubled relationship with Williams and provide an opportunity to collect her money from Duarte. Williams agreed to make the trip and the couple chartered a plane from Virginia to Fort Lauderdale, flown by Mitchell Britt on April 3, 1990. Duarte met appellant at her hotel that same day and told her he would sell his gold watch, he already had a buyer for the watch and would repay her from the anticipated proceeds. He needed, however, $2,000 to reclaim his watch from a pawn shop and asked her to provide the money. Despite Duarte's existing indebtedness to appellant, she agreed to loan him an additional $2,000. Appellant and Duarte drove to the pawn shop later that evening. The pawn shop was closed and Duarte suggested he pick up the watch in the morning and drop by her hotel to repay her after selling the watch. Appellant insisted she keep Duarte's car overnight as collateral and drive him to the pawn shop in the morning.

The following morning, when appellant arrived at Duarte's residence, Duarte confessed he had never pawned a watch and had used appellant's $2,000 as a partial payment in a cocaine drug transaction. He told her she was "in trouble"; he had informed the seller that appellant would buy the cocaine and provide the balance of the money. He *969 warned her "don't f this up" because they both could get hurt or even killed. Duarte promised appellant he would return her $2,750 after she delivered the cocaine. Duarte introduced appellant later that day to DEA Special Agent Cabanillas, who pretended to be a drug dealer. The three met at a restaurant to finalize the drug deal. After this meeting, Duarte coached appellant on how to behave when buying the cocaine. According to appellant, he again warned her that if she did not go through with the drug deal, they, and possibly her boyfriend, might get hurt. She testified that when she and Duarte returned to her hotel that afternoon, Duarte took money from the trunk of his car and placed it into an overnight bag which he then placed in the trunk of her car.

Appellant, Williams and Britt drove to a Howard Johnson's hotel where the drug deal was to take place. Appellant claimed she went to the trunk alone, retrieved the bag containing the money and carried it to the lobby where she met Cabanillas. One of the police officers involved in the surveillance operation at the hotel, however, testified he observed appellant and Williams go to the back of the car together and go through several items in the trunk. The officer observed Williams place something in the pocket or waistband of his trousers. Appellant and Cabanillas joined undercover Detective Hendrick in one of the rooms to conduct the drug transaction. The police made a tape recording of the drug transaction and arrested appellant after she placed two kilograms of cocaine in her bag. Although appellant claimed Williams and Britt knew nothing about the drug deal, the police arrested both men in the hotel parking lot.

The state challenged appellant's entrapment defense by introducing evidence of her predisposition to commit these crimes. Specifically, the state elicited testimony from agent Cabanillas that when he first met appellant, he told her he wanted to sell at least five kilograms of cocaine, but appellant said she wanted only two kilograms because she was "ouncing it out" and had no desire to expand her business. Furthermore, Cabanillas testified that appellant cut into one of the cocaine bags and tested the substance in such a way as to indicate her familiarity with the drug. According to Cabanillas, appellant complained that one of the bags appeared too yellow in color. She indicated her uncertainty as to whether it would mix well, but agreed to accept a discount on a future deal.

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Bluebook (online)
638 So. 2d 966, 1994 WL 203006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fruetel-v-state-fladistctapp-1994.