Fleurimond v. State

• Decision Date: 27 May 2009
• Docket Number: No. 3D07-2183.,3D07-2183.
• Citation: 10 So.3d 1140
• Parties: Augustin FLEURIMOND, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

10 So.3d 1140

Augustin FLEURIMOND, Appellant, v. The STATE of Florida, Appellee.

No. 3D07-2183.

District Court of Appeal of Florida, Third District.

May 27, 2009.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ, and SALTER, JJ.

RAMIREZ, J.

Augustin Fleurimond appeals his final judgment of conviction and sentence. We reverse because the State violated the order in limine and made improper closing arguments, thus the trial court erred in not sustaining Fleurimond's objection to the police detective's testimony and in denying his motion for mistrial. In addition, we also conclude that Fleurimond's four convictions for possession and trafficking by possession of a single quantum of cocaine inside the house violated the protection afforded by the Double Jeopardy Clause.

I.

Fleurimond was charged by information with two counts of trafficking in cocaine and two counts of sale of cocaine within 1000 feet of a school. Co-defendant Gerald Lelieve was charged in the same information with one count of trafficking in cocaine. Fleurimond and Lelieve were tried together in a jury trial on June 2007.

Before trial, Fleurimond's counsel made a motion in limine requesting that the State be prohibited from introducing evidence concerning prior drug activity at the house where the events in this case occurred. The State did not oppose the motion, and the trial court granted it.

During the trial, the State called its first witness, Detective Gayle, concerning her work as a member of the crime suppression unit. The trial judge sent the jury to the jury room and asked the prosecutor if she had instructed the law enforcement officers regarding the motion in limine which had been granted. The prosecutor told the judge that she had, in fact, instructed the witnesses, including Detective Gayle and Detective Fernandez, but that she could not state if she had instructed Detective Belfort.

The State called Detective Belfort to the stand after Detective Gayle finished testifying. Detective Belfort described the location where the events took place and then the prosecutor elicited the following testimony:

Q. He can sit down. Now, at about 7:00 o'clock p.m., what was it that happened?

A. We were set up at the location. We were doing a—had a surveillance at our location with—that we knew to be selling narcotics.

Defense counsel objected and moved for a mistrial based on Detective Belfort's violation of the motion in limine. After the testimony was read back for the judge, counsel argued that it constituted improper "high crime area" testimony. The judge asked the prosecutor if she had obeyed the court's prior order to instruct all officers to not give any such testimony. The prosecutor admitted that she had not complied with the court's order. When asked why she had disobeyed the court's order, the prosecutor responded, "Judge, I mean, I absolutely—the only—you are right." The prosecutor then argued that the testimony was not improper because the testimony only explained why the detectives were at that particular house. The judge deferred ruling on the motion for mistrial and indicated that he was not sure that he disagreed with the State's argument that the testimony was relevant to explain why the detectives were at the house. At the close of all the testimony, the court denied the motion for mistrial.

The evidence adduced at trial indicated that at approximately 7:00 p.m. on October 11, 2006, police detectives set up surveillance at the house in question. Detectives Gayle and Belfort parked a surveillance van on the side of the road in front of the house, ten to fifteen feet from the front door of the house. Detective Gayle testified at trial that both she and Detective Belfort watched the house from the back of the van where they were both lying on their stomach on a couch looking out the back window. Detective Belfort testified at trial that he first watched the house from the driver's seat of the van and then moved to the back of the van. Detective Gayle testified that the detectives did not have binoculars inside the van. Detective Belfort testified that the detectives always had a pair of binoculars in the van and that he had used binoculars on that day.

After watching the house for a period of time, Detective Gayle observed a white male approach the front door of the house and knock on the door. A man opened the door, took money from the white male, and closed the door. At trial, Detective Gayle identified the man who opened the door and took the money as Fleurimond. Detective Gayle saw Fleurimond return to the door after a few seconds and hand a small item to the white male. The white male walked away from the house a short distance and then entered another house nearby. They did not approach the white male because it would have shut down the surveillance operation.

Detectives Gayle and Belfort next observed a burgundy van driven by a black male park across the street from the house. The black male got out of the van, walked across the street, and knocked on the front door of the house. A man opened the door and the black male gave him some money. Both detectives identified the man who opened the door as Fleurimond. The detectives testified that after Fleurimond took the money from the black male and moved away from the door, Fleurimond returned to the door and gave the black male a small item. The black male returned to his van and drove away. The detectives contacted other units on the scene by radio and advised them to stop the burgundy van. When the detectives stopped the van, they recovered cocaine and marijuana from the van.

Detectives Gayle and Belfort then observed a white van drive up and park across the street from the house. A black male wearing a red shirt and jeans got out of the white van and walked up to the front door of the house. At trial, both detectives identified Lelieve as the man who got out of the white van and walked up to the front door of the house. According to the detectives, Fleurimond opened the door, Lelieve gave him money, and Fleurimond moved away from the door. After a few seconds, Fleurimond returned to the door and handed Lelieve a plastic bag which Lelieve put in his waistband. Lelieve drove off in the white van and the detectives advised the other units what they had seen.

Detective Gonzalez responded to the call put out by the surveillance detectives and stopped a white van being driven by Lelieve two minutes after he received the call. A few other passengers were inside the van. Gonzalez testified that it was "nighttime" and dark when he stopped the van. Gonzalez arrested Lelieve and impounded a plastic bag containing 49.9 grams of cocaine from his groin area.

After Lelieve was taken into custody, officers moved in on the house being watched by Detectives Gayle and Belfort. They entered the home and Detective Edward Joseph found Fleurimond inside the bathroom. No one else was inside the house. No contraband was found on Fleurimond. A drug detection dog found a white substance on the floor of a bedroom at the rear of the house. Inside a closet in that bedroom, on the top shelf, Morgan found a plastic bag containing a "cookie" which Morgan described as cocaine used to make crack cocaine. The weight of the cocaine found on the shelf in the closet was 36.2 grams. The officers also found a wooden box containing drug paraphernalia inside a cabinet in that same bedroom.

Fleurimond testified at trial that he did not live at the house where he was arrested. He lived in a house nearby, and he worked at a nearby car wash. On the day in question, he got off work at 7:00 p.m. He didn't have any running water at his house so he decided to take a shower at the house being watched by the detectives. Fleurimond testified that he knew the lady who owned that house and she had lived in the neighborhood for the past twelve or thirteen years. He walked up to the house and spoke to the landlady who was outside the house with her daughter. He also saw a man doing yard work outside the house.

Fleurimond testified that he was given permission to use the bathroom in the house to take a shower. He entered the house and walked straight to the bathroom. He was wearing a pair of blue shorts and he had a towel. He had removed his shoes after entering the bathroom. He was inside the bathroom for two or three minutes when he heard a commotion outside the bathroom. As he was standing with his back to the bathroom, police officers rushed into the bathroom and slammed him down into the bathtub. The officers searched him and did not find anything. Fleurimond testified that he did not sell any drugs on that day.

At the conclusion of all the testimony at trial, the court reduced the two counts of sale within 1000 feet of a school to two counts of possession of cocaine with intent to sell. During the charge conference, the trial judge expressed concern over whether Fleurimond could be convicted of two counts of trafficking in cocaine based on a single criminal episode. Defense counsel argued that because both quantities of cocaine had come from a single source, Fleurimond could not be convicted of two counts of trafficking in cocaine. The State argued that Fleurimond could be convicted of one count of trafficking based on the quantity of cocaine sold to Lelieve, and another count of trafficking based on the quantity of contraband found in the house. The judge initially ruled that Fleurimond could only be convicted of one count of trafficking, but then immediately reversed himself and allowed the State to seek convictions for two counts of trafficking. The jury was subsequently instructed on two counts of trafficking in cocaine based on Fleurimond's possession of cocaine in excess of 28 grams but less than 200 grams.

During the State...