       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          DALIA A. DIPPOLITO,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-2486

                             [March 13, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Glenn     D.   Kelley,    Judge;   L.T.    Case    No.
502009CF009771AXXXMB.

    Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Gregory
C. Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm Beach,
for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Elba Caridad
Martin, Assistant Attorney General, Tampa, for appellee.

WARNER, J.

   Dalia Dippolito appeals her conviction for solicitation to commit first-
degree murder of her husband for which she was sentenced to sixteen
years in prison. She raises three issues: 1) whether the trial court erred
in allowing the State to present evidence of uncharged crimes; 2) whether
the conduct of law enforcement constituted objective entrapment, which
the court erred in refusing to submit to the jury; and 3) whether the court
erred in allowing the jury to consider unsubstantiated bad acts evidence.
As to the first issue, the presentation of the uncharged crime evidence
occurred after the defendant opened the door to the evidence; thus, the
court did not abuse its discretion in allowing the evidence. As to the
second issue, the issue of objective entrapment is a matter of law for the
court and not the jury, and the court did not err in denying the appellant’s
claim of objective entrapment. As to the third issue, the bad act evidence
was related to the appellant’s affirmative defense of subjective entrapment
in that it showed her predisposition to commit a crime. We thus affirm as
to all issues raised.

    This is an appeal of the second trial of appellant, because this court
reversed the first trial based upon an error in jury selection. See Dippolito
v. State, 143 So. 3d 1080 (Fla. 4th DCA 2014). As set forth in our former
opinion, the basic facts of the charge are as follows:

      In the late summer of 2009, appellant’s lover approached the
      Boynton Beach Police Department and reported that appellant
      was planning to kill her husband. An investigation ensued,
      during which police videotaped incriminating meetings
      between appellant and her lover, as well as between appellant
      and a purported hit man, who was in reality an undercover
      officer. The hit man agreed to shoot and kill appellant’s
      husband in their home and make the killing look like part of
      a burglary.

      Subsequently, police staged a fake crime scene at appellant’s
      home and informed her that her husband had been killed in
      the manner described by the hit man. Appellant’s reaction
      was videotaped by the police and by the television show
      “Cops,” which was then filming the Boynton Beach Police
      Department. Appellant was subsequently taken to the police
      station and interviewed. The police eventually told appellant
      that her husband was alive and revealed the hit man was an
      undercover officer. Appellant maintained her innocence.

      She was charged with solicitation to commit first degree
      murder with a firearm.

Id. at 1081.

   After the reversal of the first conviction in Dippolito, the defense filed a
motion to dismiss based on objective entrapment due to allegations of
BBPD’s misconduct in the investigation; claims of BBPD’s failure to
investigate her lover, who told the police of Dippolito’s murder plan; an
assertion that the lover did not wish to cooperate; and an allegation of
BBPD’s failure to supervise the lover. The trial court conducted an
evidentiary hearing and denied the motion to dismiss.

   Prior to the second trial, appellant moved in limine to prevent the State
from introducing evidence that Dippolito had previously unsuccessfully


                                      2
attempted to poison her husband with antifreeze. The State stipulated
that it would not admit evidence relating to the poisoning allegation. The
trial court agreed, although noting that the ruling could change depending
on the evidence presented at trial. At trial, the jury was deadlocked, and
a mistrial was declared.

   Prior to the third trial, appellant also moved the court for an order
precluding the State from introducing evidence of collateral bad acts. She
argued that the collateral bad acts were not “inextricably intertwined” with
the charged offense because the State was previously able to present its
case during the second trial without relying on the prior bad acts evidence.
The trial court denied the motions.

   At the third trial, the jury heard extensive evidence of appellant’s
conduct both before and after her lover approached the police to inform
them of her plans to kill her husband. Much of it involved police-recorded
conversations between appellant and her lover after the lover agreed to
become an informant. When appellant called the lover as a witness in her
case the State sought, on cross-examination, to question him about
appellant’s prior admission of attempting to poison her husband. The
court ruled the testimony was admissible for impeachment purposes of
the lover because the defense had opened the door when the lover testified
that he didn’t believe Dippolito actually wanted to have her husband killed.
The court allowed the State to ask the lover whether appellant had told
him that she had previously tried to poison her husband using antifreeze.
The lover responded that she had.

   At the conclusion, appellant requested a jury instruction on objective
entrapment, which required the jury to determine whether the police
conduct was so egregious that it offended notions of justice and fairness.
The court denied the instruction. The jury convicted her as charged, and
the court sentenced her to sixteen years in prison. She appeals her
conviction.

    In her first issue on appeal, Dippolito argues the court improperly
allowed the State to introduce evidence that she told her lover that she
had previously tried to poison her husband with antifreeze. Questions
about the admissibility of evidence are within the discretion of the trial
judge, as limited by the rules of evidence. Nardone v. State, 798 So. 2d
870 (Fla. 4th DCA 2001). While she contends that this court found the
testimony inadmissible in Dippolito I, we did not expressly decide that
issue. There, the defense argued that the jury venire had been tainted
because they had all heard one juror say that she had heard Dippolito had


                                     3
attempted to poison her husband. We ruled that the trial court erred by
failing to strike the jury panel after hearing the allegation. Dippolito, 143
So. 3d at 1085. We did not rule that the evidence could not be admitted
under any circumstances.

   When ruling on the pre-trial motion in limine regarding the poisoning,
the court notified the parties that the ruling was subject to change if
something occurred during the trial to cause the judge to rethink the
earlier ruling. Something did occur during trial to change the ruling—the
defense elicited testimony from the lover that he didn’t believe that
appellant actually wanted to kill her husband. Defense counsel thus
“opened the door” for impeachment of the lover with evidence that
appellant had told him of prior attempts to kill her husband. As the court
explained in Ramirez v. State, 739 So. 2d 568, 579 (Fla. 1999):

      As an evidentiary principle, the concept of “opening the door”
      allows the admission of otherwise inadmissible testimony to
      “qualify, explain, or limit” testimony or evidence previously
      admitted. Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986);
      see Huff v. State, 495 So. 2d 145, 150 (Fla. 1986); Blair v.
      State, 406 So. 2d 1103, 1106 (Fla. 1981).

      The concept of “opening the door” is “based on considerations
      of fairness and the truth-seeking function of a trial.”
      Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997).

Here, we conclude that the court did not abuse its discretion in admitting
the evidence of appellant’s earlier attempt to poison her husband. That
evidence was necessary to limit the lover’s testimony on direct. It also
explains why the lover initially approached the police—because he did
actually believe appellant was going to kill her husband.

   As to her second issue, appellant contends that the law enforcement’s
conduct in this case amounted to objective entrapment as a matter of law.
She argues that that law enforcement’s treatment of her lover was
outrageous conduct. She contends, as well, that the police participation
in the “Cops” television program constituted objective entrapment. The
review of the denial of a motion to dismiss founded on objective
entrapment is de novo. Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA
2010).

   In considering objective entrapment, courts look to the totality of the
circumstances, focusing on “whether the government conduct ‘so offends


                                     4
decency or a sense of justice that judicial power may not be exercised to
obtain a conviction.’” Hernandez v. State, 17 So. 3d 748, 751 (Fla. 5th
DCA 2009) (quoting State v. Blanco, 896 So. 2d 900, 901 (Fla. 4th DCA
2005)). The types of conduct which have led to a finding of objective
entrapment are relatively limited. The illegal manufacturing of crack
cocaine by police to be used in police-initiated sale transactions was found
to be objective entrapment in State v. Williams, 623 So. 2d 462 (Fla. 1993).
In State v. Glosson, 462 So. 2d 1082 (Fla. 1985), the Florida Supreme
Court found that the police tactic of using a contingent fee arrangement
for the testimony of an informant constituted a due process violation
because it manufactured, rather than detected, crime. In State v. Hunter,
586 So. 2d 319 (Fla. 1991), the supreme court found objective entrapment
where the informant’s contract with police required him to obtain at least
four kilograms of cocaine within a certain time period in order to reduce
his sentence, thus providing an incentive for the informant to target
otherwise innocent persons. In Dial v. State, 799 So. 2d 407, 410 (Fla. 4th
DCA 2001), we held that an “informant’s conduct . . ., targeting an
innocent person under her supervision and exploiting her weaknesses
without any efforts from law enforcement to avoid entrapment or monitor
the informant’s activities,” constituted objective entrapment.

    None of these circumstances appear in this case. Although appellant
asserts that the police threatened the lover to gain his cooperation, the
trial court found that he was not threatened by police. It was the lover
who first approached the police with his concern that appellant would kill
her husband, not the other way around. The lover was not attempting to
reduce his own exposure to a criminal sentence, nor was he being paid by
law enforcement. And during cross-examination, the lover admitted that
he was not actually threatened with prosecution.

   Appellant also asserts that the failure to supervise the lover, who then
exerted substantial pressure on appellant, constituted objective
entrapment. Failure to supervise a CI will not support dismissal unless
the lack of supervision results in unscrupulous conduct by the informant.
Bist, 35 So. 3d at 941. Without more, this failure does not rise to the level
of a due process violation. See State v. Figuereo, 761 So. 2d 1252, 1255
(Fla. 3d DCA 2000). The mere fact that the lover made repeated phone
calls to appellant without the police monitoring them is insufficient to
show entrapment.

   With respect to the “Cops” television filming, the police did not involve
the show in the surveillance or investigation of appellant until after
appellant had already taken all the steps to solicit the murder of her


                                     5
husband. It was only at the point that she was being arrested, after the
crime was complete, that the television program filmed the arrest. As the
crime of solicitation to commit murder was completed before “Cops” was
involved, the agreement between the police and the show with respect to
the filming did not constitute a due process violation.

   Relatedly, appellant contends that the court erred in refusing to submit
her objective entrapment defense to the jury. Objective entrapment,
however, is a matter of law for the court to decide. See Cruz v. State, 465
So. 2d 516, 521 (Fla. 1985). Appellant points to Delice v. State, 878 So.
2d 465 (Fla. 4th DCA 2004), for the proposition that the defense should be
submitted to the jury, but Delice does not go that far. In Delice, the
defendant claimed that a confidential informant raped her, causing her to
fear the CI and making her susceptible to the CI’s inducements. Id. at
467. The opinion states, “With respect to objective entrapment, we find
Delice’s allegation of rape to be unsubstantiated and believe this to be a
jury question.” Id. at 468. At the most, this would permit a trial court to
submit discrete factual disputes to the jury, but the ultimate decision of
whether the conduct of law enforcement constitutes objective entrapment
remains for the court, not a jury, to decide.

    We need not resolve in this case whether every factual dispute
underlying a determination of objective entrapment must be submitted to
a jury, because the jury instruction requested by appellant did not ask the
jury to determine discrete factual disputes. Instead, it asked the jury to
determine whether the police engaged in egregious conduct which offended
fairness and justice, the very question that the court must decide. The
court did not err in denying the jury instruction.

    Finally, appellant claims that the court allowed into evidence several
collateral crimes which were not inextricably intertwined with the
solicitation to commit murder. These included: 1) theft of money from her
husband which was allegedly earmarked for restitution in a criminal case
against the husband; 2) that she attempted to hire another individual to
kill her husband; 3) that she illegally planted drugs in her husband’s car
to cause him to violate probation; 4) an attempted theft of a gun from her
lover; 5) attempting to defraud her husband out of the title to his home;
and 6) her relationship with another lover and various texts between them,
some of which discuss her efforts to get rid of her husband.

   The court did not abuse its discretion in admitting this evidence.
Without reference to these other crimes, it would have been impossible to
give a complete or intelligent account of the criminal episode and how it


                                    6
developed over time. The text messages were entered into evidence to show
that appellant had an on-going plot, first to have her husband’s probation
revoked in order to obtain his assets. And later, when she failed to get his
probation revoked, she plotted to murder him. Additionally, these other
crimes were relevant to negate her claim of subjective entrapment. One
element of that defense is a lack of predisposition to commit the offense.
See Dial, 799 So. 2d at 409. The collection of the foregoing evidence
showed quite to the contrary that she was disposed to kill her husband.

   For the foregoing reasons, we affirm appellant’s conviction and
sentence.

CIKLIN and LEVINE, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     7
