Daniels v. State

• Decision Date: 01 February 1979
• Docket Number: Nos. FF-474,FF-451,s. FF-474
• Citation: 381 So.2d 707
• Parties: Otis DANIELS, a/k/a "Junkyard Slim", and Lula Bell Phillips, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 707

381 So.2d 707

Otis DANIELS, a/k/a "Junkyard Slim", and Lula Bell Phillips, Appellants, v. STATE of Florida, Appellee.

Nos. FF-474, FF-451.

District Court of Appeal of Florida, First District.

Feb. 1, 1979.

Rehearing Denied Aug. 30, 1979.

Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellants.

Robert L. Shevin and Jim Smith, Attys. Gen., Richard W. Prospect, Raymond L. Marky and Patti Englander, Asst. Attys. Gen., for appellee.

BOYER, Acting Chief Judge.

These consolidated cases have their genesis in the same factual setting or episode as do several other cases lately pending or now pending in this court. Some of the other cases which are factually similar, though in some instances involving different points of law or different arguments regarding the same points of law, have already been decided. Those which are relevant to the issues involved sub judice will be referred to and cited in subsequent portions of this opinion.

Appellant Daniels was charged in a three count information with the crimes of conspiracy to commit a felony. The information was twice amended and Daniels was ultimately tried and convicted on all three counts.

Phillips was charged only in the first count of the information with the offense of conspiracy to sell cocaine. She entered a plea of nolo contendere, specifically reserving her right to appeal the court's denial of a motion to suppress certain tape recordings which motion had been theretofore heard by the trial judge and denied. Daniels' motion for new trial was denied. He was sentenced to a term of ten years and ordered to pay a fine of $5,000.00. Phillips was sentenced to a term of three years with the provision that after she had served one year in prison she would serve the other two years on probation.

Both appellants filed timely notices of appeal. Upon appropriate motion the two cases were consolidated.

The basic facts are not in dispute. ¹ In June of 1975, Investigator George Howell of the Vice Squad of the Jacksonville Sheriff's Office was given an order authorizing the interception of wire communications from the residence of one Eddie Lee Rosemond Ten tapes of different phone conversations were admitted into evidence. ² Daniels' voice was identified by several police officers.

in Jacksonville. Pursuant to that order, police officers attached equipment to the phone line to intercept incoming and outgoing calls from that residence.

Nathaniel McClain, a vice squad officer, was tendered by the State as an expert in the jargon that is customarily used by traffickers and dealers in illegal heroin and cocaine. He was allowed to interpret the calls and give his opinion as to the interpretation of what the parties meant in their taped conversations. ³

Appellants urge four points for our consideration. As phrased in appellants' brief, they are as follows:

I.

"Whether an Assistant State Attorney can authorize an application for a wiretap.

II.

"Whether the affidavit in support of the order authorizing interceptions sufficiently alleged that reasonable investigative techniques had been tried but had failed.

III.

"Whether the Court erred in qualifying Investigator McClain as an expert in the language and jargon used by traffickers, dealers, and users of illegal drugs.

IV.

"Whether the trial court erred in allowing Investigator McClain to testify as to his interpretation of the phone conversations."

The points will be considered in the order of convenience rather than the order in which they are argued in the briefs.

Under his third point appellant Daniels ⁴ complains of certain language employed by the trial judge wherein he instructed the jury relative to the testimony of Investigator McClain, as follows:

"Now, ladies and gentlemen of the jury, in your absence the Court has accepted Mr. McClain, who is now on the witness stand, as an expert in the jargon or language used by traffickers, dealers, or users of heroin and cocaine, and the Court accepts Mr. McClain's qualifications as an expert in that jargon."

Prior to that statement being made to the jury, and now on appeal, appellants' counsel argues that the statement was extremely prejudicial. His objection is directed to the words "an expert in the jargon or language used by traffickers, dealers, or users of heroin and cocaine", contending that the only inference to be drawn from those words is that anyone using the language as described by Mr. McClain was a dealer, trafficker or user of heroin or cocaine.

Our examination of the record, however, convinces us that in the light of the totality of the circumstances no error was committed. The trial judge also instructed the jury:

"An expert witness is one who by education, training or experience has become an expert in any art, science, profession, business or calling. An expert witness is permitted to give his opinion as to the matters in which he is an expert and may also state the reasons for his opinion. You should consider each expert opinion received in evidence and give it the weight you think it deserves and you may reject it entirely if you find that the alleged facts upon which it is based have not been proved or that the reasons given in support of the opinion are not sound."

The question of whether a person is qualified to testify as an expert on a particular subject is a question of law. ⁵ Officer McClain was found by the trial judge to be an expert in a certain specified area. His statement to the jury was obviously so that they would be aware of the purpose of Officer McClain's testimony. The jury was also properly advised regarding their function in assessing the testimony. ⁶

Appellant Daniels' fourth point ⁷ has been resolved contrary to his contentions by this court's opinion in Slater v. State, 356 So.2d 69 (Fla. 1st DCA 1978) wherein we stated:

" * * * (A)ppellant contends that the trial judge committed reversible error when permitting a police officer, over the objection of the defendant, to be qualified as an expert witness regarding street language in the drug culture and permitting the officer to explain to the jury his interpretation of words used by the alleged conspirators in intercepted conversations, the tapes of which were played to the jury. During those conversations the speakers used the terms 'C'; 'white girl'; 'lady'; 'snow'; 'party pack'; 'rock and roll'; 'boy'; 'white boy'; 'doogee'; 'kattie'; and the expression 'three, but I know a duece smoking.' The words were used in contexts wherein their normal lexicographical meanings would be illogical and meaningless. They would make no sense at all to the average juror. We find no error. (See United States v. Cirillo, 499 F.2d 872 (2d Cir. 1974); United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir. 1972); State v. Grayton, 163 Conn. 104, 302 A.2d 246 (1972), cert. den. 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495 (1972); and Llerandi v. Blackburn, 97 So.2d 247 (Fla.1957))" (356 So.2d at page 71)

Turning now to appellants' second point, ⁸ they contend that the trial judge erred in finding that other investigative techniques were tried and failed or reasonably appeared to be unlikely to succeed if tried.

F.S. 934.09 sets forth the procedure for interception of wire or oral communications in Florida. That statute provides, in material part, as follows:

"(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:

"(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

"(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception or wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting if the judge determines on the basis of the facts submitted by the applicant that:

"Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; * * * " ⁹

In the sworn application for the order authorizing the interceptions Deputy Sheriff Howell stated "6. Although a Drug Enforcement Administration agent has succeeded in purchasing heroin from Eddie Lee Rosemond, under controlled conditions, as evidenced by the affidavit of Anthony W. Hickson, investigators are presently unable to determine where Eddie Lee Rosemond secretes the heroin and who his supplier might be. Although normal investigative procedures have yielded the information that Eddie Lee Rosemond is, in fact, a dealer in heroin, traditional investigative techniques, such as physical surveillance and use of the search warrant process, are not likely to reveal the ultimate source of the heroin in which Eddie Lee Rosemond deals. I know of no practical way, other than the use of the electronic intercept being applied for, to determine where Eddie Lee Rosemond secretes his supply of heroin. Furthermore, I know of no other practical way to determine the distribution areas, financiers and dealers in heroin centering around the Eddie Lee Rosemond organization."

In discussing the statutory requirement relative to exhaustion of normal investigative procedures it was stated in United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) that:

"The statutory requirement that 'normal investigative procedures' be first exhausted, must be reviewed in a 'practical and common sense fashion':

" 'Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and have failed or why these are unlikely to succeed if tried, or to be too dangerous . . . . The judgment would...