Owen v. StateOwen v. State
Appellants’ arrests were the culmination of a “reverse sting” operation conducted by the Bay County Sheriff‘s Department. As indicated in the record, deputy sheriff Allеn Johnson, assigned to the department‘s special investigation unit, disclosed to an informant that the department could conduct reverse stings, and to get in touch with him if someonе contacted the informant wanting to purchase or sell a large quantity of drugs. Although the informant did not discuss the possibility of compensation, Johnson volunteered that he cоuld predict no set figure at that time.
Six months following the initial conversation, Johnson was contacted by the informant who disclosed that appellants, all being unknown to Johnson, wеre interested in buying drugs, and requested whether Johnson could procure 200 pounds of marijuana and some dilaudids, and could conduct a reverse sting. As before, the informant did not requеst compensation. Johnson discussed the possibility of a sting operation with the sheriff, and a flat fee of $5,000 was arranged as compensation. Johnson later testified on dеposition that a percentage fee was never contemplated, that the informant‘s compensation did not depend on how large the deal was or on thе amount of property seized, and that the informant would not necessarily be called as a witness during the trial.
The department ultimately procured the 200 pounds of marijuana and 2,000 tablets of dilaudid. Utilizing the informant as a middleman, the department was successful in apprehending appellants during the course of the drug sale.
Following arraignment and during the сourse of discovery, appellants filed their motions to dismiss the information and requests for an evidentiary hearing. A hearing was held on the motions during which portions of the depоsitions of deputy Johnson and of Joe Coram, the department‘s chief investigator, were considered by the trial court. Upon reading the depositions and memoranda of law, and listening to counsels’ arguments, but without conducting an evidentiary hearing, the court denied the first motion primarily because it did not find that there had been a contingency fee arrangement, and denied the second motion under the impression that “the state has the right to select the cases that it feels are worthy of prosecution,” subject оnly to conduct so reprehensible as to shock the judicial conscience. The court‘s judicial conscience was not shocked by the instant conduct.
Appеllants now argue that the facts before the trial court compel a finding of prosecutorial misconduct and selective enforcement, or, at least, that they wеre entitled to an evidentiary hearing on those points. Apart from its argument that no such misconduct or selective enforcement existed, the state argues, as it did below, thе procedural impropriety of the motions, pointing to the fact that the motions were neither filed before or upon arraignment, nor with the permission of the trial court,
Before reaching the merits of appellants’ cause, we take time to briefly reply to the state‘s procedural arguments.
Turning now to the merits of the appeal, appellants’ secondary argument, which we shall consider first, is that they were entitled to an evidentiary hearing on their motions to dismiss. For that proposition appellants rely upon United States v. Graves, 556 F.2d 1319 (5th Cir.1977). Without reaching the point made by the state that the apрlicable federal criminal rules differ from Florida‘s criminal rules and therefore Graves is not controlling, we note that Graves, a prosecutorial misconduct case, does not stand for the proposition that an evidentiary hearing was mandatory, but rather, that a pretrial hearing was appropriate, as the motion to dismiss essentially involved a question of law. As regards an evidentiary hearing, Graves merely indicates that the “district court permitted extensive testimony by defense witnesses.” Id., at 1320 (emphasis added). Similarly,
Likewise, an evidentiary hearing on the motion alleging selective prosecution was not mandated but was within the trial court‘s discretion. Indeed, United States v. Ream, 491 F.2d 1243 (5th Cir.1974), relied on by appellant for reversal, supports our holding. Ream states that where selective prosecution is argued, “an evidentiary hearing need be held only when a defendant presents facts sufficient to raise a reasonable doubt about the prosecutor‘s motive.” Id., at 1246. Without adopting the Ream test in the instant case, we cannot say that the facts presented to the trial court should have raised a reasonable doubt concerning the prosecutor‘s motive necessitating an evidentiary hearing; the depositions and arguments were sufficient on which the trial court could have based its ruling.
The hearing issue aside, aрpellants’ primary argument is that the motions to dismiss should have been granted based on the depositions and legal memoranda. We can easily dispose of this argument as it relates to appellants’ motion alleging selective enforcement: the motion and accompanying memorandum wholly fail to establish the denial of equal prоtection arising from selective and discriminatory enforcement. As stated by our supreme court, “[i]n order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification... . The mere failure to prosecute all offenders is no ground for a claim оf a denial of equal protection ... [citations omitted]” Bell v. State, 369 So.2d 932, 934 (Fla. 1979). In the instant case, we fail to see how Bay County‘s policy of conducting reverse stings (the present being the second of two conducted) only when it would involve in
Finally, we dispose of appellants’ argument alleging prosecutorial misconduct by distinguishing the facts of this case from those in Glosson v. State, 441 So.2d 1178 (Fla. 1st DCA 1983), relied on by appellants for reversal. In Glosson the state admitted to a scheme whereby an individual was promised payment contingent upon his successfully making criminal cases against others to whom he was to sell cannabis provided by the Levy County Sheriff‘s Department. The state also admitted that it had no case without that individual‘s testimony. We held those circumstances to be intolerable as “akin to the manufacturing of criminal activity by the state,” and affirmed the trial court‘s dismissal of the informations. Id., at 1179.
The type of outrageous conduct represented in Glosson is not now before us. On the contrary, in the instant case there was no contingency fee arrangement and the fee did not depend on the effectiveness of the informant‘s cooperation, either during the sting opеration or afterwards at trial. There is simply nothing to support a finding here of the impermissible criminal fabrication by law enforcement as was so prevalent in the Glosson case. The decision of the trial court to deny this motion to dismiss is also affirmed.
MILLS and THOMPSON, JJ., concur.