596 So. 2d 1150 | Fla. Dist. Ct. App. | 1992
.Dewey Futch [Futch] appeals his conviction and thirty-year prison sentence for a $20 purchase of two cocaine rocks within 1,000 feet of a school. He claims that the trial court should have granted his motion for judgment of acquittal because the police entrapped him as a matter of law. We agree and reverse. Because we also remand with directions to the trial court to discharge appellant we need not address any of the remaining issues.
Nancy Mary Cook [Cook], a narcotics detective with the Davie Police Department, testified that at about 2 o’clock in the morning she met Futch in a bar.
Futch testified that he purchased the cocaine rocks because Cook told him if he “was to buy her a rock, she’d stay and party.” Futch’s credibility suffered when he admitted to twenty-three convictions for forging checks for which he twice served time in prison.
Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), established a threshold two prong objective test to determine whether entrapment has occurred as a matter of law. The supreme court stated:
[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. [Emphasis added.]
Id. at 522. Conversely, entrapment exists as a matter of law if the police activity fails to satisfy either prong. If both prongs are met, then a subjective test comes into play which creates a jury question as to whether the defendant has proven that he or she was entrapped. See § 777.201, Fla.Stat. (1989).
We hold that as a matter of law the Davie police entrapped Futch into the purchase of the cocaine rocks. The state failed to establish that Cook’s activity had as its end the interruption of a specific ongoing criminal activity. Thus, the state did not establish the first prong of the Cruz test. To the contrary, the evidence established that at the time Cook interjected “drug talk” into her conversation with Futch he was not engaged in any specific ongoing criminal activity. Cook knew nothing about Futch before she met him and the state never proved that he had a prior history of drug involvement. Any conversation that Futch had about drugs only occurred after Cook cast her “fishing expedition” to bait, hook, net, and land him for the purchase of illegal drugs. As this court stated in Lusby v. State, 507 So.2d 611, 612-13 (Fla. 4th DCA), review denied, 518 So.2d 1276 (Fla.1987):
We do not condone general forays into the population at large by government agents to question at random the citizenry of this country to test their law abiding nature, i.e., virtue testing.
REVERSED AND REMANDED WITH DIRECTIONS TO DISCHARGE APPELLANT.
. A defendant who moves for a judgment of acquittal admits not only the facts stated in the state's case, but also admits every conclusion favorable to the state that the jury might fairly and reasonably infer from the state’s evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). Also, an appellate court must view the facts in a light most favorable to the state. Id.