Dorsett v. State

• Court: Florida District Court of Appeals
• Writing for the Court: Rothenberg
• Citation: Dorsett v. State, 944 So.2d 1207 (Fla. App. 2006)
• Decision Date: 20 December 2006
• Docket Number: No. 3D04-416.,3D04-416.
• Parties: Russell A. DORSETT, Appellant, v. The STATE of Florida, Appellee.

944 So.2d 1207

Russell A. DORSETT, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-416.

District Court of Appeal of Florida, Third District.

December 20, 2006.

Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Frederika Sands, Assistant Attorney General, for appellee.

Before COPE, C.J., and GERSTEN, GREEN, FLETCHER, RAMIREZ, WELLS, SHEPHERD, SUAREZ, CORTIñAS, and ROTHENBERG, JJ.

EN BANC

ROTHENBERG, Judge.

The defendant, Russell A. Dorsett, appeals his convictions for the sale of cocaine and marijuana, arguing that the introduction of a prior drug transaction, allegedly committed by the defendant, was error requiring a new trial. As we conclude that the prior drug transaction was properly admitted, or in the alternative, harmless error, we affirm.

The defendant was charged with sale of cocaine, sale of marijuana, and carrying a concealed firearm. These charges stem from a hand-to-hand drug transaction that was witnessed by Detective Daniel Fernandez, who was acting as the "eyeball" or surveillance officer during a drug surveillance of a liquor store parking lot. It is undisputed that the purchaser in this hand-to-hand transaction was Denise Edwards.

The evidence submitted is as follows. The Tactical Narcotics Team ("TNT") of the Miami-Dade Police Department was conducting an operation in which the target location was the parking lot of a liquor store. Detective Fernandez, who was acting as the "eyeball," testified that he was approximately 200 feet from the parking lot, he used binoculars during his surveillance, and had a fairly unobstructed view of the defendant and of the approximately ten other individuals in the parking lot. During his two-hour surveillance, Detective Fernandez, testified that he witnessed the defendant conduct two hand-to-hand transactions, one involving a "man" and the other involving Ms. Edwards, occurring approximately fifteen minutes apart. He described how in each transaction, the purchaser would approach the defendant. The defendant would then walk over to a garbage can, retrieve a plastic sandwich baggie from the garbage can, take an unknown item out of the sandwich baggie, walk back to where the person was waiting, and hand the item to the person in exchange for currency. As each purchaser approached the defendant, Detective Fernandez immediately provided a detailed description of the purchaser to a take-down unit stationed nearby, and these purchasers were then arrested by the take-down unit as they left the scene. After each transaction was completed, Detective Fernandez also provided a description of the seller. After Ms. Edwards made her purchase, she was arrested, searched, and found to be in possession of cocaine and marijuana.

Following the transaction involving Ms. Edwards, someone who was acting as a "lookout" yelled "jump out, shut the hole," to alert the seller to the presence of law enforcement. After receiving this warning, Detective Fernandez saw the defendant remove a revolver from his waistband, place it on the tire of a van, and walk towards another vehicle parked nearby. The defendant was arrested minutes later after Detective Fernandez identified him as the person who had conducted the hand-to-hand transactions he had observed.

Ms. Edwards, who was called as a defense witness, testified that, on the day in question, she drove up to the liquor store where six men were sitting under a tree. When she inquired about purchasing some drugs, three of the six men approached her. She testified that she bought three bags of marijuana from a man with braids in his hair and two bags of cocaine from the other two men. Ms. Edwards claimed she did not purchase any drugs from the defendant.

The jury found the defendant guilty of selling cocaine and marijuana to Ms. Edwards, and not guilty of possession of a concealed firearm. The defendant appeals the trial court's ruling permitting the State to introduce evidence of the prior hand-to-hand transaction without providing ten days notice pursuant to section 90.404(2)(c)1, Florida Statutes (2003).

Prior to trial, the defense moved in limine to preclude the State's introduction of evidence regarding four uncharged hand-to-hand transactions which occurred during the same surveillance of the parking lot. The five transactions (the charged transaction and four uncharged transactions) took place within a span of approximately an hour and a half to two hours, with the charged crime being the last of the five transactions. Defense counsel objected to the introduction of the uncharged drug transactions because the State failed to file the required ten-day notice of its intent to introduce Williams¹ rule evidence or evidence of other crimes.² § 90.404(2)(c)1, Fla. Stat. (2003). While the State conceded to committing an inadvertent discovery violation by failing to provide the defense with the names of the four other purchasers, it argued that no Williams rule notice was required as the uncharged crimes did not qualify as Williams rule evidence.

In support of the State's argument that no notice was required, the State relied upon D.M. v. State, 714 So.2d 1117 (Fla. 3d DCA 1998). The State argued that the four uncharged hand-to-hand transactions were admissible because they were inextricably intertwined with the charged offenses, and explained that it was not planning on calling the four other purchasers to testify at trial and did not intend to go into the specifics of the uncharged crimes. The State sought to introduce this evidence through Detective Fernandez to establish why he was observing the defendant for more than just a few minutes and to explain why no drugs were found in the garbage can or on the defendant.

Regarding the discovery violation, the State argued that, while the names of the four other purchasers had not been provided, the case numbers for each had been listed in the police offense incident report, which was provided to the defendant in discovery. The trial court found that the failure to provide the defense with the names and addresses of the four purchasers of the uncharged crimes was a substantial, but inadvertent, discovery violation. However, in an attempt to remedy the violation, the trial court offered to continue the trial, and to charge the continuance to the State. The State responded that it would immediately provide the defense with two of the four names and the other two names would be provided within five days. When the trial court announced it was granting a one week continuance, defense counsel requested an opportunity to talk to the defendant in order to obtain his position on the State-charged continuance. After consulting with the defendant, defense counsel stated, "I discussed the matter with Mr. Dorsett and he wants to go forward today. Even though we had this problem with the late discovery, of course if the prosecutor decides to call any of these people, I want an opportunity to talk to them before." Thereafter, the following colloquy was conducted:

THE COURT: Mr. Dorsett, do you understand I am willing to continue this case? I am willing to continue this case so that your attorney can depose—that means take statements under oath— from these four other people that allegedly participated in a sell with you. Do you understand that I will grant the continuance and I will be more than happy to do that? At the same time [defense counsel] tells me you have made the decision on your own to go ahead with the trial today, knowing that [defense counsel] will not have the opportunity to depose those people; is that also correct?

THE DEFENDANT: Yes, sir.

While the discovery violation was clearly resolved, the record is not as clear with respect to the trial court's pretrial ruling regarding the admissibility of the four uncharged transactions. Following jury selection, however, the issue was re-addressed. The State argued that, if the officer's observations during his hour and a half surveillance of the defendant were precluded, this would result in an incomplete picture of the State's case and would cause jury confusion. Specifically, the State argued:

Judge, I think you leave this jury with a misunderstanding of why the officers were there for an hour and a half in observing the defendant and the description given of the defendant, why they were just observing him, why they were focusing on him, if they just engaged in a quick hand-to-hand transaction. I think the detective for two hours saw the defendant and was focusing on the defendant because he was the one engaging in the hand-to-hand transaction[s]. There were numerous people on the scene, Judge, that it would lead the jury to the conclusion, hey, maybe he misidentified, why would he be focusing on the defendant and not focused on other people. . . .

. . .

. . . there has to be an explanation to the jury as to why this detective focused on the defendant as opposed to numerous [] other people on the scene for over an hour and a half, and watching his every move and not other people at the scene. Otherwise it looks like the jury can look at one hand-to-hand transaction, it happened in two seconds. That's it. They're going to be left wondering why was the detective focusing on the defendant and not the twenty other people on the scene.

Based upon the trial court's reading of our opinion in D.M. v. State, 714 So.2d 1117 (Fla. 3d DCA 1998), it initially ruled that only the third and fourth uncharged hand-to-hand transactions were admissible because they took place within fifteen minutes of the charged offense, thereby linking them in time and in circumstances. The trial court concluded that notice was not required pursuant to section 90.404(2)(c)1 as the uncharged crimes were not Williams rule evidence, but rather, relevant evidence inextricably intertwined with the charged offenses. Upon learning, however, that the third...