Dupree v. State

• Decision Date: 07 January 1998
• Docket Number: No. 96-0186,96-0186
• Citation: 705 So.2d 90
• Parties: 23 Fla. L. Weekly D142 Marvin DUPREE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 90

705 So.2d 90

23 Fla. L. Weekly D142

Marvin DUPREE, Appellant, v. STATE of Florida, Appellee.

No. 96-0186.

District Court of Appeal of Florida,

Fourth District.

Jan. 7, 1998.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

SHAHOOD, Judge.

Appellant, Marvin Dupree, seeks reversal of his conviction and sentence for three counts of possession of cocaine, three counts for the sale of cocaine, and one count of trafficking in cocaine. Because we find that each of the transactions of March 10, 1995, May 10, 1995, May 12, 1995, and June 1, 1995, were separate offenses, we find that the trial court erred in denying appellant's motion for severance. Thus, we reverse and remand for separate new trials on each of the offenses. Although rendered moot by this reversal, we find that the trial court did not err in denying appellant's motion for judgment of acquittal. We consider this case en banc in order to recede from this court's opinion in Williams v. State, 409 So.2d 253 (Fla. 4th DCA), rev. denied, 417 So.2d 331 (Fla.1982) to the extent that it conflicts with our decision here.

The following are the detailed relevant facts of this case.

At trial, Detective Gary Oliver of the Indian River Sheriff's Office testified that he participated in a series of controlled buys working with confidential informant, Jacob King. Sergeant Beverly Brame acted in an undercover capacity in the purchasing of crack cocaine. Prior to each of the controlled buys, King was searched by one of On March 10, 1995, the first controlled buy, Detective Oliver met with Sgt. Brame and King and gave them investigative funds to purchase crack cocaine from appellant. Sgt. Brame was given an electronic listening device. Sgt. Brame and King drove to the Shady Acres Motel where appellant resided. Sgt. Brame sat on a bench while King spoke with appellant at his apartment and then returned to the bench. Some time later, appellant joined them at the bench.

the officers to make sure that he had no money or contraband on his person.

Detective Oliver remained hidden nearby and attempted to monitor the conversation through the listening device; however, reception was poor. King and appellant walked around the corner of the motel out of Sgt. Brame's sight. King returned without appellant, who then rejoined them a short time later. King and Sgt. Brame then walked towards a laundry room located on the side of the building, and on the top of a laundry machine were two packets of clear plastic wrap which turned out to contain crack cocaine. Sgt. Brame gave the cocaine to Detective Oliver who field tested it and confirmed that it was cocaine.

King testified that twice he went with an undercover officer to purchase cocaine from appellant at the Shady Acres Motel. For the first controlled buy, King went with Sgt. Brame to the motel; he knocked on appellant's door and was given the signal to sit on a bench around the corner of the building near a laundry room. King informed appellant that he wanted to buy two fifty dollars worth of rock cocaine. King was instructed to wait by the laundry room where they found the cocaine. King then asked appellant if Sgt. Brame could purchase some cocaine. As appellant would not take the money directly from Sgt. Brame, she gave her money first to King, who then handed it to appellant. Appellant got the cocaine and then gave it to King. Appellant stated that before he would sell directly to Sgt. Brame he wanted her to come by and smoke with him.

On May 10, 1995, the second controlled buy, Detective Oliver again met with Sgt. Brame and King and issued money for the purchase of crack cocaine from appellant. Sgt. Brame was wearing a transmitter. Again, Sgt. Brame and King went to the Shady Acres Motel and sat on the bench. Appellant and King went around the corner by the laundry room. Sgt. Brame was then summoned to go around the corner. King bought fifty dollars worth of crack by passing the money to appellant through a window in the laundry room. King then waited in the car while Sgt. Brame spoke with appellant.

Appellant agreed to sell directly to Sgt. Brame and indicated that she could come back any time. Appellant gave Sgt. Brame designated locations in which to park during the day and at night. Sgt. Brame tried to hand appellant forty dollars but he would not take the money directly. Appellant told Sgt. Brame to place the money on the laundry machine. Appellant picked up the money and walked around to the back of the motel. A few minutes later, appellant returned, and reached inside the window to the laundry room, and placed two aluminum foil packets on the laundry machine. Upon reaching her car, King handed Sgt. Brame a clear plastic wrapped package that appeared to have cocaine rock in it. The packets were then handed to Detective Jones.

On May 12, 1995, the third controlled buy, Detective Oliver met with Detective Jones, Sgt. Hill and Sgt. Brame. Sgt. Brame was given a listening device and issued one hundred dollars. Sgt. Brame and another undercover officer went to the Shady Acres Motel to again purchase crack cocaine from appellant. Appellant would not sell to Sgt. Brame with the other detective present and was told to drop the detective off a few blocks away. Appellant asked how much the sergeant wanted and that he would have it for her when she came back. Sgt. Brame indicated she wanted one hundred dollars worth of rock cocaine. When she returned, Sgt. Brame laid the money on the laundry machine. Appellant took the money and again went to the rear of the motel. He then placed the clear plastic bags on the window. Following the transaction, Sgt. Brame gave the cocaine to Detective Jones.

On June 1, 1995, the fourth, attempted, controlled buy, Detective Oliver stated he had set up an operation to arrest appellant and find the location where appellant had been stashing his crack cocaine. Detective Oliver testified that dirt particles were on the packages of cocaine obtained from appellant on the previous buys. Two detectives were stationed in the woods to observe as close as possible where the crack cocaine was being kept. When Sgt. Brame arrived at the location, Detective Oliver was notified that the officers hiding in the woods had been spotted. As a result, for the safety of Sgt. Brame, Detective Oliver ordered that appellant be arrested. Detective Oliver and other officers searched the back of the motel and located a bag of crack cocaine buried in the ground. The crack cocaine was buried in an area along side the motel where the grass was dead.

Detective Jones testified that the plastic bags obtained from the May 10 and May 12 buys had particles of dirt in the packaging and in the items he tested. Likewise, Sgt. Brame testified that all of the cocaine bags with the exception of the aluminum foil packets had dirt on them.

Jacqueline Garcia, the manager of the Shady Acres Motel, testified that she stayed up one night to observe appellant and noticed people knock on his door and sit on the bench. Appellant would then sit with them briefly and then go behind the motel. Garcia did not know what he did behind the motel, but on occasion she saw appellant behind the motel with a flashlight. Appellant told Garcia that he liked to have the grass moved, because the dead grass was easy to "flip" up. Further, she observed appellant tell several people, including herself, not to go behind the motel.

MOTION FOR JUDGMENT OF ACQUITTAL

In denying appellant's motion for judgment of acquittal on the trafficking charge, the court reasoned as follows:

[F]irst let me say it's a very close legal question whether there's a prima facie case has been established for Count 7, the trafficking cocaine. There is, there's no question, there's no direct evidence that shows that the defendant had possession, either constructive or actual possession of the cocaine that was found buried, 40 odd some grams. There is circumstantial evidence from the prior sales of testimony by the undercover officer and detective and the CI on March 10th, May 10th, and May 12th that Mr. Dupree, the defendant, would go back out of sight in the back of the Shady Oaks Motel and returned with the cocaine. So, on those three dates there's evidence that the defendant had hidden cocaine in back of the motel....I think there's reasonable inferences that the defendant had hidden the cocaine in back of the motel. I am a little concerned about the date being June the 1st or some 19 days later after the last controlled buy on May the 12th....[B]ecause of the March 10th testimony by the undercover officer and the CI, the May 10th testimony by the same two persons, and then the May 12th testimony by the undercover officer alone, Bev Brame, indicates that the defendant had hidden cocaine in the back of the motel and because there was dirt found on some of the baggies indicates that it was hidden in the dirt. So, from all those reasons, I found there was enough circumstantial evidence and reasonable inferences for knowledge and control and the defendant had hidden or concealed it.

Generally, on a motion for judgment of acquittal, the court should not grant the motion unless, when viewed in a light most favorable to the state, the evidence does not establish the prima facie case of guilt. Proko v. State, 566 So.2d 918, 919 (Fla. 5th DCA 1990). "In moving for a judgment of acquittal, a defendant admits all the facts and evidence adduced at trial, as well as every conclusion favorable to the State that a jury might fairly and reasonably infer therefrom." Boyce v. State, 638 So.2d 98, 99 (Fla. 4th DCA 1994); see also Lynch v. State, 293 So.2d 44, 45 (Fla.1974). "The state is not required to 'rebut conclusively every possible variation' of events which could be...