Spataro v. State, 5742

• Decision Date: 02 November 1965
• Docket Number: No. 5742,5742
• Citation: 179 So.2d 873
• Parties: Rosalie Jean SPATARO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 873

179 So.2d 873

Rosalie Jean SPATARO, Appellant, v. STATE of Florida, Appellee.

No. 5742.

District Court of Appeal of Florida, Second District.

Nov. 2, 1965.

George Schwartz, Miami Beach, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Arden M. Siegendorf and James Carlisle, Ass. Attys. Gen., Miami, for appellee.

ANDREWS, Judge.

The defendant, Rosalie Spataro, has appealed a judgment and sentenced entered against her for the unlawful possession of narcotic drugs in violation of § 398.03, Florida Statutes, F.S.A.

On December 18, 1963 an informer, whose name was not disclosed, advised a Broward County Deputy Sheriff that marijuana cigarettes were being smoked and stored in a house occupied by Constance Doles, located in the City of Miramar, Florida, The house was owned by Dles' brother. The deputy sheriff and the informer went to Doles' house together. After arriving there, the officer searched the informant and found no marijuana cigarettes on his person. He then gave the informant a dollar bill and instructed him to go to the house and at tempt to purchase a marijuana cigarette. While the officer watched, the informant went into the house, remained inside for about five minutes and returned directly to where the officer was waiting. Upon searching the informant, the deputy sheriff found a marijuana cigarette in the informant's coat pocket. The informant told the deputy that he purchased the marijuana cigarette from a 'female' inside for the sum of one dollar.

Eight days later a search warrant was issued on the basis of an affidavit signed by the deputy sheriff which set forth the above facts. The informant did not appear before the judge who issued the warrant. Pursuant to the warrant, a search of the house was conducted and marijuana was found in the second drawer of a dresser located in the master bedroom and in a suitcase beside the dresser. More was found in the clothes closet in the same room. Doles was present during the search of the premises, but the defendant Spataro was not. The defendant Spataro testified that she came to Florida in early December 1963, and was living temporarily with Doles and and latter's minor children. Doles and the defendant shared the master bedroom where the narcotics were found.

Doles was arrested for the unlawful possession of narcotic drugs and taken to the county jail. During the search, the defendant called Doles on the telephone. Through a mutual friend the defendant had been advised that the police were at the house, and that Doles wanted the defendant to contact her. According to the defendant, Doles told her that she was being arrested, and that the police were looking for her. The defendant testified that she later called the county jail and was asked to come in for questioning; that she voluntarily went to the county jail; and that upon arriving there was charged with unlawfully possessing narcotics. The defendant and Doles were charged as co-defendants. Sometime thereafter the State obtained a severance, and the defendant was tried separately.

At the defendant's trial Doles testified as a witness for the State. She testified that the first, third and fourth drawers of the dresser were used by her, and that the emptied the second drawer and allocated it to the defendant. The closet was shared by both women. She further testified that the narcotics did not belong to her, and that she had never seen any of it prior to the discovery of it during the search. The defendant testified that 'everyone had access to the room,' and that Doles 'was in and out of [her] drawers .' She also denied ever having seen the marijuana and claimed that it did not belong to her.

After the defense rested, the State reopened its case and put Doles back on the stand. Doles stated that when the defendant called her on the telephone during the search of the house, she told the defendant that the police were there and that they were searching the premises, to which the defendant replied, 'Did they find the stuff in the gold purse?' The witness stated that the purse belonged to her, but that the defendant had borrowed it two nights prior to the search. A gold purse was later found, but nothing was found inside of it. A police officer who was present during the search testified that he listened in to the conversation related by Doles. Since the officer could not identify the voice as that of the defendant, his testimony was admitted only to show that a call was received and was not allowed to establish the truth or falsity of what was said.

There was testimony to the effect that a policeman, while dressed in plain clothes, visited Doles at her home on December 18, 1963 for about thirty minutes. The defendant intimated that the said policeman, who had known Doles for about a year and a half, was the informer. The prosecutor, however, while arguing on the defendant's motion for a directed verdict, stated that the policeman was not the informer referred to in the affidavit.

The trial judge denied the defendant's motion for a directed verdict and, the defendant having waived a jury trial found her guilty of the crime of unlawfully possessing narcotic drugs. The defendant was sentenced to a term of six months to five years imprisonment.

On appeal, the defendant contends that (1) the court erred in denying her motion to suppress the evidence; (2) in sustaining an objection interposed by the State when the defendant asked the deputy sheriff for the informer's name; and (3) in denying her motions for a directed verdict grounded on the insufficiency of the evidence.

We hold that the trial court did not commit error in failing to grant the defendant's motions for a directed verdict. Where a case is tried by a judge, a jury trial having been waived by the defendant, the factual findings of the judge are entitled to the weight of a jury verdict. See 2 Fla.Jur., Appeals § 346, and cases cited therein. Furthermore, this court must assume that the jury, in this case the trial judge, believed the credible testimony most damaging to the defendant, and drew from the facts established those reasonable conclusions most unfavorable to her. Parrish v. State, Fla.App.1957, 97 So.2d 356. It is apparent from the verdict that the trial judge chose to believe the testimony of Doles over that of the defendant. Doles, the only person (aside from this children) other than the defendant who had access to, or control of, the room where the drugs were found, denied knowledge of its presence and ownership thereof. The trial judge as the factfinder was entitled to accept her disclaimer, the result of which was to leave the defendant as the only reasonably person who could have placed the narcotics where they were found. Evans v. United States, 9 Cir. 1958, 257 F.2d 121. The defendant's knowledge of the presence of the narcotics could be inferred from her statement to Doles over the telephone.

The precise question which we must decide is whether or not such facts support the finding that the defendant unlawfully 'possessed' a narcotic drug within the meaning of § 398.03, Fla.Stat., F.S.A. This statute is a section of the Uniform Narcotic Drug Law, § 398.01, Fla.Stat., F.S.A., which has been adopted by 46 states, the District of Columbia and Puerto Rico. What constitutes 'possession' of a narcotic drug within the meaning of the Uniform Narcotic Drug Act is the subject of an extensive annotation in 91 A.L.R.2d, beginning at page 810. At this date, the Florida courts have not been called upon to define the word 'possess' as it is used in § 398.03, Fla.Stat., F.S.A. The Florida Supreme Court, however construed the word 'possession' in a case dealing with the unlawful possession of intoxicating liquor in Reynolds v. State, 1927, 92 Fla. 1038, 111 So. 285. The definition that the Supreme Court gave to the word 'possession' in the Reynolds case is basically the same as that given by the state courts from other jurisdictions in interpreting the Uniform Narcotic Drug Act. The Reynolds case and the cases referred to in the annotation, supra, require the state to prove that the defendant had physical or constructive possession of the object or thing possessed, coupled with his knowledge of its presence.

The accused has 'constructive possession' of a chattel where he has knowledge of its presence coupled with the ability to maintain control over it or reduce it to his physical possession, even though he does not have actual personal dominion. People v. Fox, 1962, 24 Ill.2d 581, 182 N.E.2d 692. The courts have not encountered difficulty where the accused has had actual physical possession. Nor have they had difficulty where the accused has had 'exclusive' control or access to the property where the chattel was found. This has not been true, however, in those cases where several people have had access to the property, and the defendant had only constructive possession. It should be noted that possession need not be 'exclusive,' but may be joint with one or more persons. Bourg v. United States, 5 Cir.1960, 286 F.2d 124. Evans v. United States, supra, is quite similar to the case presently before this court. That court, in finding the evidence sufficient to support the verdict, stated:

'Where one has exclusive possession of a home or apartment in which narcotics are found, it may be inferred * * * that such person knew of the presence of the narcotic and had control of them.

'* * * But [where the accused has not been] in exclusive possession of the premises, it may not be inferred that he knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.' 257 F.2d 121, 128.

Compare Guevara v. United States, 5 Cir.1957, 242 F.2d 745, and People v. Antista, 1954, 129 Cal.App.2d 47, 276 P.2d 177, with People v. Roberts, 1964, 228 Cal.App.2d 722, 39 Cal.Rptr. 843, and Evans v. United States, supra.

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