Campbell v. State

• Decision Date: 14 December 1989
• Docket Number: No. 88-2599,88-2599
• Parties: 14 Fla. L. Weekly 2881 Stanley CAMPBELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 34

558 So.2d 34

14 Fla. L. Weekly 2881

Stanley CAMPBELL, Appellant, v. STATE of Florida, Appellee.

No. 88-2599.

District Court of Appeal of Florida,

First District.

Dec. 14, 1989.

Rehearing Denied April 3, 1990.

William J. Dorsey, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Stanley Campbell appeals his conviction and the thirty-year sentence imposed for armed trafficking in cocaine. Three issues are presented for review: (1) the trial court's failure to charge the jury that temporary control of cocaine in the presence of the owner, for verification purposes, does not constitute possession; (2) the trial court's failure to charge the jury and to include in the verdict form the lesser included offense of attempted trafficking; and (3) the trial court's alleged failure to provide valid reasons for imposing a sentence which exceeded the recommended guidelines sentence range. We affirm in part and reverse in part.

By amended information filed August 9, 1988, appellant was charged with actual or constructive possession of 400 grams or more of cocaine while in possession of a firearm, and with trafficking in cocaine while carrying a concealed firearm. Appellant was tried before a jury on September 7, 1988.

At trial, Detective Locey, a Fort Lauderdale undercover police officer, testified that appellant was introduced to him as someone who wanted to buy kilograms of cocaine. The introduction was provided by an informant engaged in assisting law enforcement officers in order to gain a reduction of sentence for his own drug related charges. ¹ Appellant, who lived in Georgia, initially refused to travel to Fort Lauderdale to conduct the drug transaction. It was agreed that the transaction would take place in Jacksonville, but Detective Locey insisted that appellant pay $5,000 up front as good faith and expense money, to show that he was serious about the cocaine purchase. Appellant promised to send the money the next day.

The following day, appellant called Detective Locey in Fort Lauderdale to advise of his concern about paying $5,000 without getting anything in return. In addition, appellant proposed to travel to Fort Lauderdale to complete the deal over the weekend. Detective Locey insisted on staying with the original schedule, but agreed to an advance payment of $3,000 rather than $5,000. On June 3, 1988, Detective Locey called appellant to advise that he was in receipt of the $3,000 appellant had wired. During that conversation, appellant told Detective Locey that he had a partner, and wanted to buy four kilograms of cocaine rather than two. This telephone conversation was recorded, as were two other telephone conversations between Detective Locey and appellant. The tapes were played for the jury.

On June 5, 1988, Detective Locey was in Jacksonville, but did not reveal that fact to appellant when he spoke to him by telephone. At 1:00 p.m. on June 6, 1988, Detective Locey again spoke to appellant and advised that he was ready to complete the deal. During this conversation, the two discussed the quality of the cocaine, and appellant said he planned to cook some of it, and the rest would be used for snorting. Detective Locey's next contact with appellant was at 7:50 p.m., at a pay telephone number given to the detective by appellant's family in Savannah. Although Detective Locey planned to complete the deal at a motel, appellant insisted that the transaction take place at a liquor store. Appellant told the detective that he would be waiting in a white Cadillac Seville.

When Detective Locey arrived at the liquor store, he observed appellant parked at an adjacent service station. The detective walked over to appellant's car, and told appellant that he was nervous about being in the area, and that "his guys" were across the street with the cocaine and they were going to do the deal there. Detective Locey told appellant that he wanted to see the money before they went any further, whereupon appellant took a green bank bag from the trunk of the Cadillac, got back in the car, and opened the bag to show the money to the detective. Detective Locey then walked across the street to McDonald's where other undercover officers were stationed. He directed appellant to a parking space next to the undercover car occupied by the detective's partners. Detective Locey was wearing a body "bug," and the tape of the transaction was played for the jury.

Detective Locey and appellant got in the back seat of the undercover police car. An undercover officer in the front seat handed Detective Locey a brown sack containing a kilo of cocaine weighing approximately 2.2 pounds. When Detective Locey handed the cocaine to appellant, appellant observed that it was too small for four kilos. The detective advised that this was only part of the cocaine, so that appellant could check the quality before they completed the deal. After a discussion about the cocaine's quality, appellant expressed himself as very satisfied with it. Appellant and Detective Locey then exited the undercover police car, leaving the kilo of cocaine on the back seat of the car. Once appellant emerged from the car, the arrest signal was given and he was taken into custody. Attendant upon the search following his arrest, a .38 caliber pistol was discovered concealed on appellant's person. Prior to the arrest, the officers were unaware that appellant had a weapon.

During the charge conference, defense counsel raised no objection to any of the jury instructions the trial court proposed to give. However, counsel requested the following special instruction taken from Garces v. State, 485 So.2d 847 (Fla. 3d DCA 1986):

Temporary control of contraband in the presence of an actual owner for the purpose of verifying that it is what it purports to be or to conduct the test for quantity prior to completion of the transaction, without more, does not constitute legal possession.

The prosecutor objected, noting that appellant had raised this issue in his motion for judgment of acquittal, and the court had ruled adversely to appellant at that time. The trial court denied the requested special instruction, finding the instant case factually distinguishable from Garces. Upon further query by the trial court, defense counsel again stated that he had no objection to any of the other proposed instructions. When the jury retired to deliberate, defense counsel reiterated his satisfaction with the instructions given.

The jury found appellant guilty of trafficking in 400 grams or more of cocaine while carrying a firearm, and not guilty of use of a firearm in commission of a felony. The trial court imposed a thirty year sentence, which included the fifteen year mandatory minimum sentence and $250,000.00 fine, pursuant to section 893.135, Florida Statutes.

The first issue raised in this appeal concerns the trial court's failure to give appellant's requested special instruction that temporary control of contraband in the presence of its actual owner, for verification purposes, does not constitute legal possession. The trial court found that the Florida Standard Jury Instructions (Criminal) on trafficking in cocaine, trafficking in cocaine with a firearm, and the lesser included offense of possession of cocaine sufficiently encompassed the facts in this case. The verdict form for count one listed trafficking in cocaine and possession of cocaine; the verdict form for count two listed only two options--guilty or not guilty of use of a firearm during commission of a felony.

The crime of trafficking in cocaine is committed by

[a]ny person who knowingly, sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of 28 grams or more of cocaine as described in s. 893.03(2)(a)4. or of any mixture containing cocaine ...

§ 893.135(1)(b), Fla.Stat. (1987). Actual possession is the dominion over and the ability to control the contraband in question. Carter v. State, 481 So.2d 1252, 1253 (Fla. 3d DCA 1986), review denied, 492 So.2d 1330 (Fla.1986). Constructive possession is established by showing that (1) the defendant had the ability to exercise dominion and control over the contraband; (2) the defendant knew the contraband was in his presence; and (3) the defendant knew of the illicit nature of the contraband. Brown v. State, 428 So.2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Elias v. State, 526 So.2d 1014, 1015 (Fla. 2d DCA 1988). See also State v. Brider, 386 So.2d 818, 819 (Fla. 2d DCA), review denied, 392 So.2d 1372 (Fla.1980) ("Possession is defined as having personal charge or exercising the right of ownership, management or control over the article in question.").

The factual circumstances of the instant case are analogous to the fact scenarios presented in Garces v. State, 485 So.2d 847 (Fla. 3d DCA 1986) and Roberts v. State, 505 So.2d 547 (Fla. 3d DCA 1987). In Garces, an arrest was effected while the defendant was examining the cocaine, and before any money changed hands. There, the court concluded that

[t]emporary control of the contraband in the presence of its actual owner, for the purpose of verifying that it is what it purports to be or to conduct a sensory test for quality, prior to consummation of the contemplated transaction, without more, does not constitute legal possession.

485 So.2d at 848. Finding that the facts in Garces would support a conviction for no more than attempted trafficking by possession, the court remanded with directions to reduce the conviction to the lesser offense, and to resentence the defendant.

Similarly, in Roberts, although money had been transferred, the arrest was effected before there had been an actual delivery of marijuana. In Roberts, the court found that

the contraband cannot be said to have come under the dominion and...