Cummings v. State, 4-86-2008

• Citation: 12 Fla. L. Weekly 2492,514 So.2d 406
• Decision Date: 28 October 1987
• Docket Number: No. 4-86-2008,4-86-2008
• Parties: 12 Fla. L. Weekly 2492 Robert Neil CUMMINGS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 406

514 So.2d 406

12 Fla. L. Weekly 2492

Robert Neil CUMMINGS, Appellant, v. STATE of Florida, Appellee.

No. 4-86-2008.

District Court of Appeal of Florida,

Fourth District.

Oct. 28, 1987.

Douglas J. Glaid, Asst. Sp. Public Defender, Fort Lauderdale, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

Robert Neil Cummings, together with two other persons, was charged by information with conspiracy to traffic in cannabis. The other two were charged in the same information additionally with trafficking in cannabis. Defendant at the appropriate time moved for judgment of acquittal, but his motion was denied. The jury found appellant guilty, and the court subsequently sentenced him to a term of four and one-half years' imprisonment, including a minimum mandatory drug trafficking sentence of three years. Appellant's motion for new trial was denied. We affirm.

Appellant and codefendant Joseph "Buddy" Howard met undercover detective Joseph Martel at Denny's Restaurant on August 24, 1984. The meeting was arranged by a confidential informant. Martel represented himself to be a drug smuggler and it was Martel's understanding that the people he was meeting were interested in buying some marijuana. Howard said he had some people down from New York who wanted to buy a large amount of marijuana. There was a general discussion of weight and prices. The discussion continued outside the restaurant. Howard proposed that Martel supply a sample of the marijuana he would be selling them. Martel demurred, but offered to give a sample to Howard's "money men." Howard left briefly to consult with his New York money men by telephone. While Howard was away, appellant started talking about the possibility of buying cocaine. When Howard returned he said the "money men" would not agree to Martel's proposal. Howard insisted on a sample. The participants agreed to discuss the matter further a week later. This entire conversation was recorded by Detective Futch, but because of technical difficulties one side of the tape was practically unintelligible. This tape was admitted into evidence over appellant's objection.

In a telephone conversation with Howard on August 29, 1984, Martel was told that Howard's people wanted a sample before entering a transaction. Howard wanted the transaction to take place at his house, but Martel refused this request. Originally Howard proposed to buy 300 pounds of marijuana at $290 per pound. Later he said his New York people had already acquired some of their needed supply, and were interested in only 100 pounds. To open a channel, they desired only $100 worth. Martel and Howard agreed to meet that afternoon at a Hollywood Howard Johnson, where Martel would give Howard a sample. This was done.

Martel and Howard talked on the telephone again on the following day. Howard said he had not heard from his New York person, but another buyer named Ken wanted to see some of the sample and was interested in buying 200 pounds. Subsequently, the negotiations ceased, because Howard said he had heard neither from his New York person nor from Ken. Detective Martel said on cross examination he had no contact with appellant from the initial meeting on August 24, 1984 until January 28, 1985.

Codefendant Howard contacted Martel on December 1, 1984, stating he had a buyer coming to Miami to purchase 200 pounds of marijuana. They agreed on a price of $275 per pound for 200 pounds. They spoke again the following day, confirming a total price of $55,000. There were periodic further contacts between Howard and Martel during December, but no transaction was concluded.

On January 25 and 27, 1985, appellant had several telephone conversations with Detective Glenn Parker, during which appellant said he had a deal set up for 200 pounds of marijuana at $280 per pound, via his New York person. Appellant suggested that Martel call Howard. Martel talked with appellant and then with Howard, who confirmed the availability of the purchaser of the amount and at the price mentioned by appellant. Martel then talked again with appellant, who said he and Howard were partners.

There were subsequent contacts between Howard and Martel. Howard told Martel his man was flying in to Fort Lauderdale on January 28. That afternoon, Howard told Martel the man came in with only $50,000, and Martel said he could give Howard 188 pounds for that amount. Martel asked Howard whether he could come up with $50,000, and Martel heard Howard ask someone else in the room, "Macch, can we make fifty-one?"

Howard asked whether appellant could take part in the transaction, and Martel said he preferred that appellant not participate. Howard said this was all right with him; that he and appellant were partners, and appellant would understand, albeit he and appellant were partners, and appellant wanted to be present. Later that day, Martel again spoke with appellant, who said he understood he was not coming into the deal, and that he wanted to speak to Martel about possible future deals.

Later the same day, the transaction was consummated between Martel and Parker as sellers and Howard and Macchirole as buyers at Denny's, and these two codefendants were arrested by police backup units. The...