Antunes-Salgado v. State, 2D07-4876.
| Decision Date | 30 July 2008 |
| Docket Number | No. 2D07-4876.,2D07-4876. |
| Parties | Carlos ANTUNES-SALGADO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
v.
STATE of Florida, Appellee.
[987 So.2d 223]
James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
VILLANTI, Judge.
Carlos Antunes-Salgado appeals from his convictions for trafficking in cocaine (400 grams or more) and conspiracy to traffic in cocaine (400 grams or more). Because Antunes-Salgado's counsel was ineffective and because the ineffectiveness is apparent on the face of the record, we reverse and remand for a new trial. This resolution renders Antunes-Salgado's other issues moot.
In early October 2005, a confidential informant (CI) arranged with an individual named Ofelia Tranquilino for the purchase of a large quantity of cocaine. During the cell phone calls that led up to the transaction, Tranquilino told the CI that other people would be with her at the transaction, but she did not tell the CI who those people would be.
Tranquilino subsequently arrived at the transaction location in a pickup truck. Martin Salvidia-Serena was driving, Tranquilino was in the passenger seat, and Antunes-Salgado was in the back seat behind the driver. Rumaldo Varga, Javier Reynoso, and Victor Romero-Reynoso arrived in a separate vehicle. Tranquilino got out of the pickup truck and approached the CI. She and the CI then returned to the pickup truck, and shortly thereafter the CI gave a signal to the police that indicated that the drugs were in the truck. When the police stormed the truck, they found five kilograms of cocaine in a closed pink "Hello Kitty" backpack on the floorboards between Antunes-Salgado's feet. Postarrest and post-Miranda,1 Antunes-Salgado admitted that he knew the cocaine was in the backpack, but he told the officers that the cocaine belonged to Tranquilino and that his only involvement in the offense was to show the CI the cocaine in the backpack when he was told to do so by Tranquilino.
Antunes-Salgado was subsequently charged with both trafficking in cocaine and conspiracy to traffic in cocaine based on these events. None of Antunes-Salgado's codefendants was present at his trial.2 Instead, the State sought to prove the
existence of the conspiracy through the postarrest and post-Miranda statements of Antunes-Salgado's codefendants as related by the police officer who took their statements. According to the officer, Tranquilino told him that Antunes-Salgado offered to pay Tranquilino $500 to deliver the cocaine. She also told the officer that Antunes-Salgado gave her the telephone number for the CI and gave her the cocaine on the morning of the transaction. The officer testified that Salvidia-Serena told him that Antunes-Salgado had agreed to forgive a debt Salvidia-Serena owed him if Salvidia-Serena would agree to drive Antunes-Salgado to the transaction. The officer further testified that Javier Reynoso said that Antunes-Salgado had offered to pay him $500 if he would follow Antunes-Salgado to the transaction. The two remaining codefendants each told the officer that they were, in essence, just along for the ride. Each of these statements minimized the respective declarant's involvement in the offenses and shifted the bulk of the involvement to Antunes-Salgado.
Defense counsel did not object to the admission of the codefendants' statements to the officer. Instead, just before the start of trial, defense counsel volunteered that he believed that the codefendants' statements were admissible under section 90.803(18)(e), Florida Statutes (2005), and he sought to have the court give the cautionary instruction provided for by that statute. However, defense counsel also told the court that he had not researched the admissibility issue, saying, "I have case law. I've been trying to look at it and I'll be looking at it from time to time during the morning to see if I can give the Court a little more guidance on how to handle this. I haven't had the situation before. There are some cases that are very lengthy and I'm trying to get to the meat of them." (Emphasis added.) The court did not question defense counsel's concession of the admissibility of these statements, and it agreed to give the cautionary instruction as requested.
Based on defense counsel's concession, the State presented the hearsay statements of each of Antunes-Salgado's codefendants during its case-in-chief. The State presented no other evidence to establish that Antunes-Salgado and the codefendants had a specific agreement to commit the crimes. The jury subsequently convicted Antunes-Salgado of both trafficking and conspiracy, and the trial court sentenced Antunes-Salgado to twenty-five years in prison with a fifteen-year minimum mandatory term on each count.
In this appeal, Antunes-Salgado admits that the issue of the admissibility of his codefendants' statements was not preserved for appellate review. However, he argues that defense counsel was ineffective for conceding the admissibility of these statements, which were the sole evidence supporting the conspiracy charge. On the specific facts of this case, we agree.
Ineffective assistance of counsel is found when counsel's performance falls outside the range of reasonable professional assistance and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a general rule, claims of ineffective assistance of counsel may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So.2d 55, 63 (Fla.2001); Stewart v. State, 420 So.2d 862, 864 n. 4 (Fla.1982); Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, "appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is
indisputable, and a tactical explanation for the conduct is inconceivable." Corzo, 806 So.2d at 645. To obtain relief on the basis of ineffective assistance of counsel on direct appeal, the facts upon which the claim is based must be clearly evident in the record. Stewart, 420 So.2d at 864. Moreover, the ineffectiveness must be so clear that "it would be a waste of judicial resources to require the trial court to address the issue." Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); see also Ross v. State, 726 So.2d 317, 318 (Fla. 2d DCA 1998).
Here, the State charged Antunes-Salgado with conspiracy to traffic in cocaine pursuant to section 893.135(5), Florida Statutes (2005). This section provides that "[a]ny person who agrees, conspires, combines, or confederates with another person" to traffic in cocaine is guilty of conspiracy to traffic. In order to obtain a conviction for this offense, the State had to prove more than that Antunes-Salgado was present at the scene of the offense with knowledge of the offense. See, e.g., Chaparro v. State, 873 So.2d 631, 633 (Fla. 2d DCA 2004); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994); Baxter v. State, 586 So.2d 1196, 1199 (Fla. 2d DCA 1991); Jimenez v. State, 535 So.2d 343, 344 (Fla. 2d DCA 1988). The State also had to prove more than that Antunes-Salgado aided or abetted the crime. See, e.g., Baxter, 586 So.2d at 1199; Ramirez v. State, 371 So.2d 1063, 1065 (Fla. 3d DCA 1979). Instead, the State had to prove the existence of an express or implied agreement between Antunes-Salgado and at least one other person to commit the trafficking offense at issue. See Jimenez, 535 So.2d at 344.
To meet its burden to prove that Antunes-Salgado was involved in a conspiracy, the State relied on the postarrest statements made by his codefendants to police during formal, post-Miranda...
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