Opinion
Case No. 4D02-4155.
Opinion filed May 19, 2004.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Victor Tobin, Judge, L.T. Case No. 00-9095 CF10B.
Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
This appeal arises out of a jury conviction for trafficking and conspiracy to traffic cocaine. The Appellant, Gena Delice, was charged by information for the events that culminated on May 19, 2000. We reverse and remand for the reasons that follow.
Delice and her son-in-law, Patrick Joseph, were involved in an undercover sting operation involving two detectives and a confidential informant (C.I.). The C.I. received information that Delice had people interested in purchasing a large quantity of cocaine. Over the course of several recorded telephone conversations, Delice set up the transaction. Delice discussed price and revealed her incentive to complete the deal, to show the C.I. that she could move the cocaine. When Delice indicated that she was ready to proceed with the transaction and that her buyer was interested in two kilos but would take one and try it out first, a location for the exchange was set. When the actual transaction finally took place, Delice approached the undercover vehicle. Upon entering the vehicle, Delice asked to see the package and proceeded to sample it to test its purity or quality. Delice then exited the vehicle to retrieve the money and returned to complete the deal. After the exchange was made, Delice mentioned something about setting up another transaction at a later date. After the deal was completed, the arrests were effectuated.
At trial, the State introduced the recorded telephone conversations between Delice and the police as well as a videotape of the actual transaction. Additionally, the State introduced the testimony of the two detectives. The C.I., however, did not testify due to his unknown whereabouts. After the State rested, Delice moved for judgment of acquittal on the basis that the State failed to prove the charges beyond every reasonable doubt, and specifically that the State failed to prove that Delice knew that the substance was cocaine. This motion was denied.
Thereafter, Delice presented her defense. Delice testified in her own defense that when she met the C.I. she explained to him that she suffered from depression and was unhappily married, for which she sees a psychiatrist. Delice claimed that the C.I. promised to take care of her and her family if she could help him sell the cocaine. At some point, Delice and the C.I. were allegedly in a hotel room whereupon Delice claimed she was raped. Delice's defense at trial was that she feared the C.I. as a result of the rape and further that she was particularly susceptible to his inducement to do a drug transaction as a result of her depression. Delice also wished to have her psychiatrist testify in support of her entrapment defense. The trial court, however, was concerned that the proffered testimony really addressed diminished capacity and ultimately ruled the testimony was irrelevant, as well as inadmissible.
Delice rested and renewed her motion for judgment of acquittal on the basis that the State did not prove that Delice knew that the package's contents contained cocaine. The trial court again denied this motion. The jury instructions stated that the State had to prove four elements beyond a reasonable doubt: (1) Delice knowingly purchased a substance; (2) the substance was cocaine; (3) the quantity of cocaine was 28 grams or more; and (4) Delice knew the substance was cocaine. The trial court also instructed the jury on the defense of entrapment. The jury ultimately found Delice guilty as charged on both counts and she was sentenced to fifteen years on each count to run concurrently.
We first address the trial court's jury instructions. "The offense of possession of a controlled substance include[s] not only knowledge that the substance was in the defendant's possession, but also knowledge of the illicit nature of the substance." Blunt v. State, 831 So.2d 770, 771 (Fla. 4th DCA 2002). Even when an instruction regarding guilty knowledge of the illicit nature of the substance is not requested, it is error if the trial court fails to give such an instruction. Id; see Scott v. State, 808 So.2d 166 (Fla. 2002); Chicone v. State, 684 So.2d 736 (Fla. 1996). The trial court instructed the jury, in relevant part, that the State must prove that Delice Aknew the substance was cocaine or a mixture containing cocaine. The State contends that this above instruction was inclusive of the guilty knowledge of the illicit nature element. We disagree. Delice's defense did not deny knowledge of the transaction involving a white powdery substance. Such does not concede, however, that Delice knew the substance was cocaine. Moreover, even if Delice had knowledge that she was purchasing cocaine, that knowledge still does not necessarily equate to a knowledge that the cocaine she wished to purchase was an illicit substance. Consequently, the trial court did err by failing to give a jury instruction regarding knowledge of the illicit nature of the cocaine. However, because there was no contemporaneous objection, this error can only be reviewed if it is deemed to be fundamental error. See Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).
Section 893.101(b), Florida Statutes, which provides that knowledge of the illicit nature of a controlled substance is not an element of any offense but rather an affirmative defense, is inapplicable because its effective date is May 13, 2002, and it does not apply retroactively.
Blunt held that Ato rise to the level of fundamental error, the element omitted from the instructions to the jury must be in dispute. See State v. Delva, 575 So.2d 643, 645 (Fla. 1991);Thompson v. State, 814 So.2d 1103, 1104 (Fla. 4th DCA 2002) (holding trial court's failure to instruct jury on essential element of crime charged is fundamental error where omission involved disputed element). Delice disputed her knowledge of the contents of the package in her motions for judgment of acquittal and in opening and closing argument. Therefore, we find it to be fundamental error to fail to instruct the jury that the State had to prove that Delice had knowledge of the illicit nature of the cocaine. Accordingly, the final judgment of guilt is reversed and remanded for a new trial.
Delice also challenges the trial court's exclusion of her expert witness, Dr. Joe Poitia, who proffered testimony that Delice exercised poor judgment and was easily induced. Specifically, Poitia opined that Delice suffered from depression and that her psychotic features would result in an abnormal reaction to being raped, leaving her susceptible and easily influenced. Additionally, Poitia believed that Delice was sensitive to environmental and relationship stresses. Delice contends that the purpose of this testimony was not to address diminished capacity but rather to show that she was vulnerable to inducement, thereby supporting her primary defense of entrapment. We find the exclusion of this testimony to be in error. See Boyer v. State, 825 So.2d 418 (Fla. 1st DCA 2002). At the new trial, this testimony should be admitted with a limiting instruction that this testimony does not tend to prove diminished capacity, nor is diminished capacity a defense in Florida, but rather is relevant to establish a vulnerability to subjective entrapment, assuming Delice is not otherwise predisposed.
Delice's final issue on appeal is that the trial court erred by denying her motion for judgment of acquittal because she was both objectively and subjectively entrapped. With respect to objective entrapment, we find Delice's allegation of rape to be unsubstantiated and therefore the judge could properly reject her contention there was objective entrapment as a matter of law. With respect to subjective entrapment, we see evidence of predisposition, yet hold that this too is a question for the jury. Therefore, we find no error with the trial court's denial of the motion for judgment of acquittal. However, on remand, Delice is free to again reassert these arguments. As to Delice's remaining issues, we find them to be unpersuasive and decline to address them individually.
REVERSED and REMANDED.
HAZOURI and MAY, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.