Dix v. State
| Decision Date | 27 July 2016 |
| Docket Number | No. 4D14–1556.,4D14–1556. |
| Citation | 196 So.3d 547 |
| Parties | Andrew Joseph DIX, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, Mara Catherine Herbert and Jonathan Dodson, Assistant Public Defenders, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
CORRECTED OPINION
The defendant appeals his conviction for trafficking 200 to 400 grams of cocaine, possession of less than twenty grams of marijuana, and possession of paraphernalia (use). He argues the trial court erred in excluding the co-defendant's statement, failing to sever the trial of his codefendant, and instructing the jury on willful blindness. We agree that the trial court erred in these three decisions. We reverse and remand for a new trial.
The State charged the defendant with: (1) trafficking in cocaine, 200 to 400 grams; (2) possession of oxycodone; (3) possession of schedule IV substance, Clonazepam; (4) possession of marijuana, less than twenty grams; (5) possession of paraphernalia (production); and (6) possession of paraphernalia (use). The case proceeded to a jury trial where the following evidence relevant to the issues on appeal was introduced.
A DEA agent testified he was conducting surveillance on a target's residence. The subject of the surveillance and his girlfriend lived at the location. Earlier that morning, they were being observed at a probation office.
Later that morning, the agent observed the defendant and co-defendant drive by in a pick-up truck at a high rate of speed and arrive at the target's residence. A deputy watched the defendant and co-defendant go into the residence. Soon after, they exited the residence with the co-defendant carrying a black and red backpack. They got back into the truck and left. The deputy followed them.
When the truck turned into a storage facility, the deputy was unable to follow, so he advised two other agents that the truck had committed traffic and equipment violations. The truck stopped in front of two storage units that the agents had been watching.
One of the agents approached the truck, and walked toward the driver's side. The defendant was standing outside near the back of the truck. The agent observed the defendant drop something and move toward the ground. He ordered the defendant to get on the ground and took him into custody.
Another agent approached the co-defendant passenger. He then saw the co-defendant turn his body away from him and put his hand into his pocket. He asked the co-defendant to show his hands, saw him pull a cell phone out of his pocket, and then placed him in handcuffs.
The agent smelled marijuana, looked in the truck, and saw a black and red backpack that was partially open with the top of a plastic bag poking out of it. Both agents saw a crack pipe, a black kitchen plate, a bag of marijuana, and an open container of alcohol in the truck. The defendant and co-defendant were read their Miranda rights.
The agent removed the backpack from the floor of the passenger side of the truck and found a bag containing around 237.96 grams of cocaine in the first zippered pocket. In another zippered pocket, he found a cigar box that contained $6,713 in cash. The box also contained prescription medication patches for Suboxone, loose marijuana, a “white rocklike substance,” and multiple pills.
The backpack also contained the defendant's business cards along with other legal documents that contained his name. A digital scale with white residue on it, unused sandwich bags, a plastic container with rubber bands, a green notebook, and a photograph of the defendant with other adults and children in it were also found in the backpack.
A senior forensic scientist confirmed the various drugs found and their amounts. No DNA or fingerprint testing was performed on the cocaine packaging. A duffel bag belonging to the target was found in the truck.
The storage units were searched and household items, a stolen vehicle, and some other drug paraphernalia were recovered. Neither storage unit was registered in the defendant's name. No one weighed the cocaine at the scene, but the DEA agent estimated the amount based on his observation. He testified that he may have said something to the defendant and/or co-defendant about its weight.
The defendant and co-defendant were placed in the back of a police vehicle driven by a transport officer. A taped video conversation made in the transport vehicle was introduced into evidence over objection. The following exchange took place in the transport vehicle.
The co-defendant stated that while the police kept pressing him to tell the truth, he could not answer them because he did not know anything.
The State also introduced jail calls of both the defendant and co-defendant. When speaking with a female, the defendant stated:
If this s--t is in my possession and you know it just happened to be in a bag that I was moving, you know and it was all legit.... We got stopped at the storage unit. The storage units are full of all his s--t. You know, they know what they were looking for that day. And this just happened to be in my possession at the time because I'm moving.... I'm moving the whole ... house. It wasn't like I just had that bag on me and all of the sudden that was it. You know, I just happened to be on the road. No. I'm actually at a storage unit with the bag in my car.
During the co-defendant's call to his father, he stated:
I get a phone call from his girlfriend telling me to go to the house to get everything, something's up. I go to the house. And I grabbed a few bags they tell me to grab. I don't know what's in them. Put them into the truck. We go to the storage unit. One of the storage units in my name. Make a long story short, the undercover—they go straight for me and then they find out what's in the bag.... And then I find out what's in the bag. And then now, I'm getting hit with all these charges.
On a call to his brother, the co-defendant explained that The co-defendant explained that the target's girlfriend told him that everybody was contained at the house, which was being raided. She told him to “get the rest of the bags out of the room.”
The jury found the defendant guilty of trafficking 200 to 400 grams of cocaine, possession of less than twenty grams of marijuana, and possession of paraphernalia (use). He was found not guilty of the remaining charges. The defendant moved for a new trial and for an arrest of judgment; the trial court denied the motions. From his conviction and sentence, the defendant now appeals.
During the defendant's case, defense counsel called a deputy to proffer a statement the co-defendant made to him on the date of the arrest, which the trial court had suppressed as to the co-defendant.1 The deputy testified that after the co-defendant was read his Miranda rights, he asked the co-defendant about the backpack. The co-defendant responded: “[E]verything found in the vehicle he would take responsibility for,” which included the backpack.
The State objected to the statement's admission, arguing it was inadmissible hearsay. Defense counsel argued that it was a statement against interest offered to exculpate the defendant and there were corroborating circumstances supporting its trustworthiness.
Defense counsel argued the co-defendant was unavailable to testify because he would invoke his Fifth Amendment privilege if called to testify. The trial court asked defense counsel if he was going to call the codefendant. Defense counsel responded that if the trial had been severed he would have called him as a witness.
Defense counsel then reiterated the trial should have been severed because he wanted to introduce exculpatory evidence that was inculpatory for the co-defendant. The trial court found the statement was neither trustworthy nor corroborated and denied the request to admit the statement.
We review evidentiary issues for an abuse of discretion, “limited by the rules of evidence.” Dort v. State, 175 So.3d 836, 840 (Fla. 4th DCA 2015) (quoting Alvarez v. State, 147 So.3d 537, 542 (Fla. 4th DCA 2014) ).
On appeal, the defendant argues the co-defendant's suppressed statement was admissible as a statement against interest because the codefendant was unavailable to testify; and the statement: (1) was relevant to the defense; (2) incriminated the co-defendant; (3) tended to exculpate the defendant; and (4) was corroborated by other evidence.
The State responds that the defendant failed to establish the co-defendant was unavailable because he was never called to the stand. The statement does not tend to exculpate the defendant. The trial court correctly concluded the statement was untrustworthy.
“Under Florida's rules of evidence, hearsay statements are generally inadmissible unless they fall within an exception to the hearsay rule.” Dort, 175 So.3d at 840. An exception exists when a statement is a statement against interest: “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.” § 90.804(2)(c), Fla. Stat. (2014).
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...his argument concerning the willful blindness instruction and reverse.The facts are detailed in the co-defendant's case, Dix v. State, 196 So.3d 547 (Fla. 4th DCA 2016). In short, law enforcement had been surveilling the residence of a target who was under investigation. Officers witnessed ......
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