Carr v. StateCarr v. State
Alfred Leroy Carr appeals his conviction for possession of cocaine. Carr contends the trial court erred in admitting similar fact evidence for the sole purpose of showing that he had a propensity to possess сocaine. We reverse.
The evidence at trial revealed that while on patrol, a Columbia County deputy sheriff observed appellant talking with other persons in front of a Lake City home. The deputy sheriff called Carr over to the patrol car and asked permission to search Carr‘s person. After obtaining Carr‘s consent and conducting the search, the deputy ran a сomputer check which revealed an outstanding warrant for Carr‘s arrest for violation of probation. Carr was then handcuffеd and transported to the Columbia County Detention Center. At the detention center, a second search of Carr yielded two plastic baggies of cocaine, allegedly discovered in Carr‘s left shirt pocket.
At trial, defense witnesses testified that the streеt search of Carr was thorough, and that it exceeded the bounds of a pat-down.
Defense counsel objected to admission of the proposed testimony, arguing that the state had failed to provide the ten-day notice required under the Williams rule, and that the prejudicial effect of the evidence outweighed its probative value. The state responded that since the evidence was offered as impeachment and rebuttal to Carr‘s defense that the cocaine was planted on him, the ten-day notice was not required. The trial court ruled that the testimony would be admitted as relevant to the issue of knowledge, and that the probativе value of the evidence outweighed any prejudice. We disagree.
The statute applicable, section 90.404(2), Florida Statutes (1989), provides in part:
(2) 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 motive, opportunity, intent, preparation, plan, knowledge, identity, or absencе of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or proрensity.
(b) 1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), nо fewer than 10 days before trial, the state shall furnish to the accused a written statement of the acts or offenses it intends to offеr, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used fоr impeachment or on rebuttal.
Relevant evidence should be excluded if its probative value is substantially outweighed by the dangеr of unfair prejudice.
Admission of irrelevant similar fact evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Keen v. State, 504 So.2d 396, 401 (Fla. 1987), quoting Straight v. State, 397 So.2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Such error is not harmful, i.e., reversible, where the proof of guilt is clear and convincing, without consideration of the collateral evidence introduced in violation of the Williams rule. McKinney v. State, 462 So.2d 46, 47 (Fla. 1st DCA 1984). However, the sufficiency of properly admitted evidence to suppоrt guilt is not determinative of harmless error in the similar fact evidence context. In Keen, the court recognized that the properly admitted evidence was sufficient to support a jury verdict of guilt, but declined to find harmless error. The court observed that the evidenсe of Keen‘s guilt was not overwhelming, and the real jury issue centered on the respective credibility of the defendant Keen and the state witness who testified against him. 504 So.2d at 401.
In a similar vein, in Jackson v. State, 570 So.2d 1388 (Fla. 1st DCA 1990), this court reversed a conviction for possession of cocaine, because cash seized from Jackson at the time of his arrest was admitted into evidence. There was no suggestion that Jackson was engaged in the sale or purchase of cocaine, and the amount of cash seized was not relevant to prove any element of possession of cocaine. Because
In the instant case, the trial court admitted evidence of appellant‘s prior conviction for possession of cocaine for the purpose of showing knowledge of cocaine. Here, as in Keen and Jackson, the real jury issue was apрellant‘s credibility as opposed to that of the credibility of the state witness who testified against him. Evidence of appellant‘s prior conviction for possession of cocaine was not related to the charge being tried, and permitted the jury to infer guilt of the present charge on the basis of evidence which suggested appellant has a propensity to commit this kind of crime. This, together with an absence of overwhelming evidence of guilt, indicates the evidence should have been excludеd, because its probative value was outweighed by the danger of unfair prejudice.
Accordingly, we reverse Carr‘s conviction for possession of cocaine, and remand with directions to grant a new trial.
ERVIN and MINER, JJ., concur.