Garrette v. State

• Decision Date: 10 February 1987
• Docket Number: No. BJ-254,BJ-254
• Citation: 12 Fla. L. Weekly 470,501 So.2d 1376
• Parties: 12 Fla. L. Weekly 470 Donald GARRETTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1376

501 So.2d 1376

12 Fla. L. Weekly 470

Donald GARRETTE, Appellant, v. STATE of Florida, Appellee.

No. BJ-254.

District Court of Appeal of Florida First District.

Feb. 10, 1987.

Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender and Pamela D. Presnell, Legal Intern, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

THOMPSON, Judge.

Garrette appeals his convictions for the crimes of sale of marijuana and possession of marijuana. His principal contention on appeal is that the trial court erred in allowing the State to introduce "William's Rule" ¹ evidence relating to his involvement in other marijuana offenses. We agree and reverse.

The State's direct evidence tending to prove that Garrette was the person who committed the instant offenses was limited to a small amount of marijuana which was packaged in a plastic bag from which no usable fingerprints could be obtained, plus the testimony of undercover police officer Davis that Garrette was the person who sold her the bag of marijuana for the sum of $20. Davis testified that she and her partner had been notified by a confidential informant that a person named Gerald Wade and a man known as "Sleepy" were selling marijuana, and that she thereafter accompanied the confidential informant to Wade's residence for the purpose of making a buy. She indicated that after she and the informant arrived at Wade's residence and told him what they wanted, he called "Sleepy" out of the house and that all four persons then repaired to a shed in the backyard of the residence. There, "Sleepy" pulled a bag of marijuana out of a paint can and sold it to her. At trial, Officer Davis positively identified Garrette as the person called "Sleepy" who sold her the marijuana. She also gave evidence concerning her investigative efforts leading to the discovery that the drug dealer who had been introduced to her as "Sleepy" was in fact the appellant Garrette, and she further testified that at the time she purchased the marijuana a green Lincoln Continental automobile was parked in the yard of Gerald Wade's residence. The testimony of Officer Davis' partner corroborated the fact that she had gone to Wade's residence and made a purchase of marijuana there, but because the partner parked his vehicle some distance away from Wade's house in order to remain out of sight during the transaction he was unable to give evidence as to the identity of the marijuana seller. Although on cross-examination of Officer Davis defense counsel was able to show that she did not have an absolutely crystal clear recollection of each and every detail of the marijuana purchase, her testimony identifying Garrette as the marijuana seller remained positive and unequivocal, and was substantially unimpeached.

Gerald Wade and the confidential informant involved in this case both testified on behalf of appellant. Both acknowledged that the marijuana sale had taken place more or less as Officer Davis described it, but both insisted that Garrette was not known by the street name "Sleepy" and was not the person who had sold the marijuana to Davis. Wade acknowledged that he was a friend of appellant's, and that appellant had occasionally been permitted to use the green Lincoln Continental which belonged to Wade's mother. The testimony of these defense witnesses, unlike the testimony of Officer Davis, was substantially impeached by prosecution evidence showing them both to be convicted felons and showing that both arguably had reason to be biased against the State.

The prosecutor sought to bolster his case by showing that on two other occasions, one occurring some seven months prior to the instant offense and one occurring some five months after, Garrette was found in possession of marijuana. The prior arrest of Garrette occurred when an informant (not shown to be the same informant involved in this case) tipped off police that Garrette could be found driving a green Lincoln Continental automobile in a certain neighborhood, and that he had marijuana either on his person or stored in the trunk of the car. The evidence concerning the subsequent arrest of appellant indicated that officers had stopped a green Lincoln Continental during their investigation of a disturbance call, and that upon stopping the car they found Garrette to be the driver and found plastic bags of marijuana on the front seat of the car next to the driver's seat. However, evidence of the subsequent arrest also showed that a passenger who was occupying the car with Garrette at the time it was stopped fled from the scene and was never identified.

The evidence of the subsequent collateral crime was admitted over defense counsel's vigorous objection that the collateral crimes were insufficiently similar to the crimes charged to have any relevance on the issue as to which the evidence was tendered, i.e., identity. The record before us fails to reflect whether appropriate objection was interposed upon the state's initial filing of notice of intent to introduce similar fact evidence, which notice apparently concerned only the prior offense. However, the state does not now argue that the objection was waived, but simply asserts that the admission of the evidence was not error, or was harmless. We reject the contention that the improper admission of collateral crime evidence can be deemed harmless in a case where the only evidence identifying the defendant as the perpetrator of the crime is the testimony of a single eyewitness, whether or not the eyewitness happens to be a police officer, see, Wilson v. State, 490 So.2d 1062 (Fla. 5th DCA 1986), and we conclude on the basis of the record as a...