Bennett v. State, No. 90-1608

CourtCourt of Appeal of Florida (US)
Writing for the CourtWOLF; BOOTH; KAHN; KAHN; WOLF
Citation593 So.2d 1069
Parties17 Fla. L. Weekly D230 Troy Clinton BENNETT, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 90-1608
Decision Date14 January 1992

Page 1069

593 So.2d 1069
17 Fla. L. Weekly D230
Troy Clinton BENNETT, Appellant,
v.
STATE of Florida, Appellee.
No. 90-1608.
District Court of Appeal of Florida,
First District.
Jan. 14, 1992.
Upon Motion for Certification Feb. 13, 1992.
Rehearing Denied Feb. 19, 1992.

Page 1070

Nancy A. Daniels, Public Defender, Nancy L. Showalter, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

WOLF, Judge.

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 relevant 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 section 775.084, Florida Statutes (Supp.1988), where the appellant's two prior convictions were not sequential. The habitual offender designation violated the rule requiring sequential convictions announced in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991), and the sentences must be vacated.

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.

Tolver 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 the following day, although no transaction occurred at that time.

Page 1071

The judge cautioned the jury that the collateral crime evidence was only being introduced for the purpose of identity and should only be considered for that purpose.

Evidence of collateral crimes committed by the defendant is inadmissible if its sole relevance is to establish bad character or propensity of the accused. 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).

Appellant 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 opportunity 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, less 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 undercover 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 as 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 crime 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

Page 1072

criminal transaction. In the present case, Officer Tolver claims to have bought cocaine from Bennett in the first transaction. Utilizing information obtained from the confidential informant, the police department prepared a photo lineup consisting of a book containing 60 to 80 photographs. When Tolver returned to the police station, he looked at this book...

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4 practice notes
  • Durousseau v. State , No. SC08–68.
    • United States
    • United States State Supreme Court of Florida
    • February 21, 2011
    ...outweighed by unfair prejudice, the court should consider the effectiveness of the cautionary instruction. Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA) (citing United States v. Clemons, 676 F.2d 122 (5th Cir.1982)), quashed on other grounds, 599 So.2d 997 (Fla.1992). In the instant case,......
  • Durousseau v. State Of Fla., No. SC08-68
    • United States
    • United States State Supreme Court of Florida
    • December 9, 2010
    ...outweighed by unfair prejudice, the court should consider the effectiveness of the cautionary instruction. Bennett v. State, 593 So. 2d 1069 (Fla. 1st DCA) (citing United States v. Clemons, 676 F.2d 122 (5th Cir. 1982)), quashed on other grounds, 599 So. 2d 997 (Fla. 1992). In the instant c......
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...the probative value is substantially outweighed by any prejudice. See Secs. 90.402, 90.403, and 90.404(2), Fla.Stat.; Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA1992). The standard of appellate review is whether the trial court abused its discretion in making these evidentiary determinat......
  • State v. Bennett, No. 79374
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1992
    ...Second Judicial Circuit, Tallahassee, for respondent. OVERTON, Justice. We quash the decision of the district court in Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA 1992), on the authority of State v. Barnes, 595 So.2d 22 (Fla.1992), and remand for further proceedings consistent with our d......
4 cases
  • Durousseau v. State , No. SC08–68.
    • United States
    • United States State Supreme Court of Florida
    • February 21, 2011
    ...outweighed by unfair prejudice, the court should consider the effectiveness of the cautionary instruction. Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA) (citing United States v. Clemons, 676 F.2d 122 (5th Cir.1982)), quashed on other grounds, 599 So.2d 997 (Fla.1992). In the instant case,......
  • Durousseau v. State Of Fla., No. SC08-68
    • United States
    • United States State Supreme Court of Florida
    • December 9, 2010
    ...outweighed by unfair prejudice, the court should consider the effectiveness of the cautionary instruction. Bennett v. State, 593 So. 2d 1069 (Fla. 1st DCA) (citing United States v. Clemons, 676 F.2d 122 (5th Cir. 1982)), quashed on other grounds, 599 So. 2d 997 (Fla. 1992). In the instant c......
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...the probative value is substantially outweighed by any prejudice. See Secs. 90.402, 90.403, and 90.404(2), Fla.Stat.; Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA1992). The standard of appellate review is whether the trial court abused its discretion in making these evidentiary determinat......
  • State v. Bennett, No. 79374
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1992
    ...Second Judicial Circuit, Tallahassee, for respondent. OVERTON, Justice. We quash the decision of the district court in Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA 1992), on the authority of State v. Barnes, 595 So.2d 22 (Fla.1992), and remand for further proceedings consistent with our d......

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