Eliakim v. State, 4D02-3393.

• Decision Date: 10 March 2004
• Docket Number: No. 4D02-3393.,4D02-3393.
• Citation: 884 So.2d 57
• Parties: Alberto ELIAKIM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 57

Alberto ELIAKIM, Appellant, v. STATE of Florida, Appellee.

No. 4D02-3393.

District Court of Appeal of Florida, Fourth District.

March 10, 2004.

Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Alberto Eliakim appeals his conviction for trafficking and possession of 3,4 methylenedioxymethamphetamine (MDMA). We affirm on all issues raised by appellant, but write to address his contention that the trial court erred in not allowing him to cross-examine the state's witness about her past drug dealing activities with the co-defendant and with persons arrested pursuant to her substantial assistance plea agreement.

According to the trial testimony, Detective Eddie Marill of the Sunrise Police Department learned through Officer Bruce Goldstein of the Coral Springs Police Department that an informant could purchase a large quantity of MDMA pills (Ecstasy) from Kelly Martelo, a resident of Sunrise. At the request of Sunrise police officers, the informant called Martelo to set up a controlled purchase of sample pills. Martelo left a sample Ecstasy pill for the informant under the front door mat of her residence. Soon after the informant obtained the sample, he and Martelo made arrangements for him to purchase one thousand pills from Martelo.

Detectives Marill and Goldstein obtained a search warrant for Martelo's apartment, and, on the day scheduled for the transaction, officers set up surveillance of Martelo and her residence to determine the source of the pills. Around 11:00 a.m., Martelo called the informant to advise him that she was going to pick up the pills and that they would be ready for him within an hour. Surveillance officers observed Martelo driving her gold Camry to co-defendant Ana Jorquera's residence in North Lauderdale. When she arrived, Martelo picked up Jorquera and drove her back to Martelo's house. Jorquera then left Martelo's house driving Martelo's car. She drove into the parking lot of an Albertson's shopping plaza. There, she made a phone call at a phone booth. A few minutes later, a blue BMW driven by appellant parked next to her vehicle. Appellant got into Jorquera's car. After a brief conversation with Jorquera, appellant went to the trunk of his BMW, retrieved a yellow envelope, and handed the envelope to Jorquera through the passenger side window. Appellant then returned to the BMW and followed Jorquera back to Martelo's apartment. Jorquera went inside Martelo's apartment, carrying the yellow envelope, while appellant parked in an adjacent complex. He exited his vehicle and began pacing up and down the street near Martelo's residence.

After Jorquera entered the residence, Officer Marill gave the signal to move in and execute the warrant. Appellant was detained at his car, handcuffed, and ordered to sit on the ground. After reading appellant his Miranda rights, an officer obtained appellant's consent to search the BMW. In the trunk, the officer discovered twenty Ecstasy pills that were later determined to have markings similar to those of the pills seized in Martelo's house. Appellant was arrested and transported to the Sunrise Police Station. He was charged with trafficking in amphetamine and possession of MDMA, along with Jorquera and Martelo.

Martelo entered into a substantial assistance plea agreement with the state and testified at the joint trial of appellant and co-defendant Jorquera. She testified that she was contacted by Jason Cannon, who said he wanted to buy a large quantity of Ecstasy pills. Fortuitously, around the same time, Martelo received a phone call from Jorquera, who said she had Ecstasy pills for sale. After advising Jorquera that she needed a sample, Martelo drove Jorquera to a Taco Bell in Sunrise, where appellant was waiting outside. Appellant provided the sample pill to Jorquera, who in turn handed it to Martelo. Martelo left the pill under her doormat for Cannon. Afterwards, Martelo and Cannon made arrangements to deliver 1000 pills to Cannon.

On the day scheduled for the sale, Martelo picked up Jorquera and the two went to Martelo's apartment. While Martelo remained at home, Jorquera took Martelo's car to pick up the pills. When Jorquera returned about twenty minutes later, Martelo observed someone following Jorquera in a blue BMW. She confronted Jorquera about this as Jorquera entered the apartment. After initially denying that anyone had followed her, Jorquera admitted that her boyfriend, appellant, had followed her. To ease Martelo's concerns, Jorquera telephoned appellant and told him to move his car.

Jorquera came inside the apartment carrying a yellow manila envelope, which contained several Ziplock baggies filled with Ecstasy pills. Moments later, police officers arrived and arrested Jorquera and Martelo.

After the state concluded its direct examination of Martelo, Jorquera's attorney moved for a severance, based on discussions he had with appellant's counsel concerning his plans for cross-examining Martelo. Appellant's counsel had advised him that he intended to cross-examine Martelo about her long history of drug dealing with Jorquera. The state objected to the severance motion and to any inquiry into Martelo's prior drug transactions with Jorquera. Before ruling on the motion, the court first questioned appellant's counsel regarding the relevancy of any prior drug transactions between the two women. Counsel explained that appellant's defense was mere presence and that he needed to cross-examine Martelo about her prior drug dealings with Jorquera to "establish that Ms. Jorquera is a drug dealer and my client is an innocent bystander."

Through proffered testimony, the court heard that Martelo had sold Ecstasy to Jorquera six or seven times in the past and had bought cocaine and Ecstasy from Jorquera over a period of three or four years. During that time, Martelo had seen appellant only twice: once at a funeral and later at Taco Bell during the Ecstasy sample exchange.

After hearing the proffered testimony, the court sustained the state's relevancy objection and denied the severance motion as moot. The court determined that any prior drug activities between Martelo and Jorquera were irrelevant. It further ruled that any prior drug activities between Martelo and Cannon were not proper subjects of cross-examination. Noting appellant's objection, the court stated:

The ability to cross-examine does not preclude the court's ability to determine what's relevant and what is not relevant. And the court does not find the evidence that you're trying to bring up by way of prior dealings to be relevant to the proceedings. What Mr. Eliakim is being accused of has nothing to do with the prior relationship of Ms. Jorquera and Ms. Martelo or Ms. Martelo and this gentlemen by the name of Jason.

A trial judge has broad discretion in determining limitations to be placed on cross-examination. Geralds v. State, 674 So.2d 96(Fla), (1996); Jones v. State, 580 So.2d 143 (Fla.1991). Although wide latitude is permitted on cross-examination in a criminal trial, a determination as to the scope of cross-examination lies within the sound discretion of the trial court. White v. State, 817 So.2d 799 (Fla.2002)(citing Ray v. State, 755 So.2d 604, 610 (Fla.2000) and Chandler v. State, 702 So.2d 186 (Fla.1997)). A decision to admit or exclude evidence will not be overturned absent a showing of an abuse of discretion. Traina v. State, 657 So.2d 1227 (Fla. 4th DCA 1995)(citing Rivera v. State, 561 So.2d 536, 540 (Fla.1990) and State v. Ayala, 604 So.2d 1275, 1276 (Fla. 4th DCA 1992)). "Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." Id. (citing Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000)).

Appellant argues that evidence of previous joint criminal activity between Martelo and Jorquera, which did not include him, would have supported his defense theory that the two women committed the present drug offense without him. Defense counsel asserted below that this evidence was admissible to "establish that Ms. Jorquera is a drug dealer and my client is an innocent bystander." The trial court properly rejected this argument. Evidence of the co-defendants' drug dealing history was inadmissible under sections 90.404(1) and (2), Florida Statutes. See Espinosa v. State, 589 So.2d 887 (Fla.1991)

(holding that in murder prosecution evidence of the co-defendant's violent history to place blame on him was inadmissible as both bad character or trait evidence and as similar fact evidence since it was offered solely to prove the co-defendant's bad character or propensity).

Generally, any evidence relevant to prove a material fact at issue is admissible unless precluded by a specific rule of exclusion. Section 90.404, Florida Statutes, is the evidentiary rule of exclusion pertinent to appellant's proffer. In this case, if appellant sought to introduce evidence that Jorquera was a drug dealer to prove that she, and not he, was Martelo's sole supplier, then this evidence was clearly inadmissible under section 90.404(1), Florida Statutes. That section states that "[e]vidence of a person's character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion." The exceptions listed in subsections (a), (b), and (c) do not apply here.

If appellant intended to present this evidence as similar fact evidence of other crimes, wrongs, or acts to prove that the two women followed their usual inclination to engage in drug exchanges together, then the evidence was inadmissible under section 90.404(2)(a), Florida Statutes, which codifies the Williams Rule.¹ This rule provides that:

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