Bennett v. StateBennett v. State
Bennett appeals from separate final judgments and sentences, one for possession of cocaine and one for sale of cocaine. Appellant raises two issues on appeal. He first asserts that the trial court erred in admitting evidence of a collateral crime where there was an insufficient showing of similarity between the two offenses. We find that evidence of subsequent contact between the undercover officer and appellant within three hours of the charged offense was relеvant to the issue of identity and was properly admitted. The second point raised is whether the trial court erred in sentencing appellant as a habitual offender pursuant to
On June 27, 1989, Officer Steven Tolver was working with Sergeant Pitts of the Panama City Police Department in an undercover drug operation. At approximately 9:30 p.m., Tolver went to the area of the Safari Lounge with a confidential informant. As they approached the parking lot of the lounge in Tolver‘s car, they saw eight to ten black males standing against a wall at the corner of the building. The confidential informant asked them “what is happening,” at which time one of the black males approached the car on the passenger side. Tolver was in the driver‘s seat. Tolver told the black male that he wanted to buy a “20,” which Tolver testified is slang for a $20 piece of crack cocaine. The man reached into his pocket and removed one rock-like substance and handed it to Tolver, who in turn handed him $20. The entire transaction lasted 10 to 15 seconds.
Tolvеr placed the cocaine in an envelope and returned to the police station. The informant told Sergeant Pitts the seller‘s identity. Tolver did not know the seller prior to this time. He was shown a book containing 60 to 80 photographs and identified appellant as the seller.
At trial, the state introduced, over appellant‘s objection, evidence of a subsequent contact on the night in question between Officer Tolver and appellant. The appellant objected on the basis that the two crimes were not sufficiently similar to allow introduction of the collateral crime, and that the defense had not specifically challenged identity.1
Officer Tolver testified that approximately three hours after the charged offense occurred, he and the confidential informant went to an area two blocks away from the original sale and observed six or seven people on the side of the street. They came upon a black male who asked, “Whatcha looking for?” Tolver responded that he was looking for a $20 piece of crack cocaine. The seller then dropped a white rock-like substance into Tolver‘s hand. Tolver stated that he could not see the rock “that well” and believed it was unusually heavy for crack cocaine. In fact, the substance was later determined not to be cocaine. Tolver testified that he recognized appellant as the same person involved in the earlier transaction at the Safari Lounge. He was dressed in the same manner as he had been earlier. Tolver also saw this seller on the street thе following day, although no transaction occurred at that time.
Evidence of collateral crimes committed by the defendant is inadmissible if its sole relevance is to establish bad character or propensity of the aсcused. Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Such evidence is admissible, however, if it is relevant or material to some aspect of the offense being tried. Jackson v. State, 522 So.2d 802, 805 (Fla. 1988). In determining admissibility, the court must determine whether the probative value is outweighed by any improper prejudice. Jackson, supra at 806; United States v. King, 703 F.2d 119 (5th Cir.1983), cert. denied, 464 U.S. 837, 104 S.Ct. 127, 78 L.Ed.2d 123 (1983). A cautionary jury instruction, such as the one given in the instant case, will help ensure that the probative value of the evidence was not outweighed by any unfair prejudice. See United States v. Clemons, 676 F.2d 122 (5th Cir.1982).
Aрpellant argues that the evidence of the collateral crime is not relevant because it was not sufficiently similar to the charged offense. We reject appellant‘s contention that admissibility must be based on similarity of crimes.
Collateral crime evidence may be relevant for a number of purposes notwithstanding the similarity or lack of similarity of the offenses. Jackson, supra. For instance, the oppоrtunity to observe the defendant during or subsequent to the commission of a crime is relevant to the ability of a witness to make an accurate identification. United States v. King, supra; Williams v. State, 545 So.2d 302 (Fla. 3d DCA 1989). Temporal and geographic proximity are all factors to be considered in determining the probative value of the evidence offered. Cf. Spivey v. State, 533 So.2d 306 (Fla. 1st DCA 1988). The opportunity to see the appellant in the same clothes, two blocks away, lеss than three and one-half hours after the first transaction is clearly relevant to the credibility of the officer‘s identification testimony. The trial court did not abuse its discretion in permitting this evidence to be heard by the jury.
We also reject appellant‘s argument that evidence must be excluded because identity had not specifically been raised as a defense. In the case of an undercovеr buy of drugs, clearly one of the main issues that the state must prove is the identity of the seller. We, therefore, find that the trial judge did not abuse his discretion in admitting the evidence and affirm the convictions. The sentences, however, are vacated and the cases are remanded for resentencing.
BOOTH, J., concurs.
KAHN, J., concurs in part and dissents in part with written opinion.
KAHN, Judge, concurring in part and dissenting in part.
I concur in the court‘s judgment reversing Bennett‘s sentence, but must dissent аs to that part of the court‘s opinion upholding Bennett‘s conviction for sale of cocaine. The trial court erroneously admitted evidence implicating Bennett in a later, unrelated transaction.
The majority opinion concedes that the two transactions did not have the similarity heretofore required in cases utilizing collateral crime evidence on the issue of identity. The court proceeds, however, to carve out a niche for cases in which eyewitness testimony of identity is bolstered by additional testimony that the same eyewitness observed the defendant commit another, yet unrelated, criminal act, within close temporal and geographical proximity to the act for which the defendant is on trial. The court‘s rationale is that the testimony of the collateral crimе is “clearly relevant to the credibility of the officer‘s identification testimony.”
The position adopted by the majority would erase any definable limitation on the admissibility of similar crime evidence where the defense as much as questions the reliability of the sole eyewitness to a
THE COURT: Okay, then I‘m going to defer ruling on this motion until after you have rested, at which time I may present, I may permit the state to come back and offer similar, similar fact evidence in rebuttal.
.....
THE COURT: It would appear to me that it is going to be admissible for the purpose of identity, if nothing else. What is wrong with reserving this until rebuttal, Mr. Basford (prosecutor)?
MR. BASFORD: Because, Judge, he may not put on any evidence whatsoever, as he, as Mr. Dusseault has —
THE COURT: Then, then —
MR. BASFORD: — correctly informed the Jury —
THE COURT: Then, then there‘s no, then there‘s no challenge to identity —
MR. BASFORD: Well —
THE COURT: — except to argue, right?
MR. BASFORD: As Mr. Dusseault has correctly informed the Jury, the State has thе burden of proving each and every element in this case beyond a reasonable doubt, and, you know, he may think it‘s in his best interest or his client‘s best interest for him not to take the stand, yet he can still get up and argue the State has not proven identity, all you have is a sale that occurred, that took 15 to 20 second [sic], and the guy could‘ve made a mistake, and that‘s not the facts here, Judge, because not only did hе see him on that occasion, he also saw him within three hours, and he made another buy from the same man.
MR. DUSSEAULT: Judge, none of that‘s come into evidence, and —
THE COURT: I‘m going to permit it, if you want a cautionary instruction, Mr. Dusseault, draft one. Are you offering it solely for the purpose of identity?
MR. BASFORD: Yes sir, Your Honor.
Upon this background, the trial court erred in allowing similar fact evidence for the purpose of proving identity. The majority, in affirming the сonviction, has as much as stated that since identity is always an issue in an “undercover buy of drugs,” the state has virtually free reign to introduce collateral crime evidence, as long as the witness who claims to have seen the defendant commit the collateral crime is the same witness upon whom the state relies to prove commission of the crime actually charged. The court‘s citation of Spivey v. State, 533 So.2d 306 (Fla. 1st DCA 1988), does not, in my view, support a conclusion that the temporal and geographic proximity between the two events are sufficient to lend probative value to the collateral transaction. In Spivey, the defendant was actually charged with both offenses, two distinct victims were involved, and the sole issue decided was whether the trial court abused its discretion in denying the defendant‘s motion for severancе.
Other crimes, wrongs, or acts —
(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of ... identity ..., but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
The evidence of Bennett‘s participation in a “similar” drug transaction three hours later did not tend to prove Bennett‘s identity as the person who sold the first $20 rock of crack. Instead, the evidence served merely to bootstrap the undercover officer‘s credibility, in a case where credibility was obviously the key issue, and further suggested appellant‘s propensity as a drug dealer. I would respectfully suggest that this sort of “identity” evidence is not contemplated by
If there is no fact ‘in issue’ there is no relevancy and the collateral evidence should not be admitted. See 13 Fla.Jur., Evidence, § 113. Evidence is admissible if it is relevant to prove identity, to show a common scheme or design, to show guilty knowledge, to prove intent, motive, or pattern, to show absence of mistake, to show a system of general pattern of criminality, to disprove an alibi, to disprove unlawful entrapment, or as part of the res gestae. If none of these elements are ‘in issue’ relevancy disappears and such evidence is inadmissible. Obviously, if a person‘s identity is not in issue, e.g. eyewitness testimony clearly identifying the accused, how is it relevant to introduce evidence that the defendant was ‘identified’ as having participated in another criminal act. And if identity is in issue, the mere fact that a defendant was identified as being involved in another crime does not render such collateral evidence admissible without some similarity in the operation аnd scheme of both crimes; there is clearly an interrelationship between method of operation, common scheme or design and identity.
287 So.2d at 422 (emphasis in original).
Since, in the present case, Officer Tolver provided a clear and unequivocal eyewitness identification, it is very difficult to understand the admission of collateral crime evidence during the state‘s case in chief.
As implicitly conceded by the majority, the two transactions, one of which did not even involve a drug sale, do not meet the supreme court‘s test of sufficient similarity. Collateral crime evidence is not relevant and therefore admissible merely because it involves the same type of crime. Peek v. State, 488 So.2d 52 (Fla. 1986). As the court stated in Drake v. State, 400 So.2d 1217, 1219 (Fla. 1981):
A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations ... [I]n order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.
This court has clearly recognized an interplay between
Recently, this court has had occasion to further examine, and reaffirm, the relationship between
The issue under discussion is governed by the pertinent provisions in the Florida Evidence Code. Section 90.401 states, ‘Relevant evidence is evidence tending to prove or disprove a material fact.’ Section 90.402 states, ‘All relevant evidence is admissible, except as provided by law.’ Section 90.403 states, ‘Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidencе.’ The sponsor note to this section explains that ‘nothing that fails to meet the tests of §§ 90.401 and 90.403 may be admitted.’ Accordingly, section 90.404(2)(a) recognizes the interplay of section 90.401 and 90.403 by specifying that ‘similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue.’ Since similar fact evidence of other crimes is inherently prejudicial to a criminal defendant‘s right to a fair trial, such evidence is admissible under section 90.404(2)(a) only to prove a material fact in issue, that is, a material fact that is genuinely in dispute. (emphasis in original)
1992 WL 83071 at *3, 17 FLW at 1124.
Recognizing that our supreme court still applies the “strikingly similar” standard to collateral crime evidence, the Thomas court noted the following language from Heuring v. State, 513 So.2d 122, 124 (Fla. 1987):
Similar fact evidence that the defendant committed a collateral offense is inherently prejudicial. Introduction of such evidence creates the risk that a conviction will be based on the defendant‘s bad character or propensity to commit crimes, rather than on proof that he committed the charged offense [citations omitted]. Such evidence is, therefore, inadmissible if solely relevant to bad character or propensity to commit the crime [citations omitted]. To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristics which sets them apart from other offenses. (emphasis in original)
1992 WL 83071 at *3, 17 FLW at D1124, quoting Heuring v. State, 513 So.2d at 124.
The case law leads to the inescapable conclusion that
The rule requiring more than a mere general similarity is quite easily explained when one considers, even for a moment, the relationship between
To summarize, Officer Tolver was the only eyewitness tо the alleged sale of cocaine. Tolver testified he had a very clear view of Bennett, and had no doubt about identity. The second transaction took place in a different locale, under different circumstances, and did not even involve the actual sale of drugs. In reaching its conclusion, the majority expressly abrogates the similarity rule (“We reject appellant‘s contention that admissibility must be based on similarity of crimes“), in favor of a rule that looks simply at the witness’ ability to make an accurate identification based on the “opportunity to observe the defendant during or subsequent to the commission of a crime,” regardless of whether such observation involves a collateral, uncharged, crime.
I would reverse the conviction and remand for a new trial.
UPON MOTION FOR CERTIFICATION
WOLF, Judge.
Upon rehearing, we grant the appellee‘s request to certify the same question that was certified in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991).
BOOTH and KAHN, JJ., concur.