Hampton v. State, s. 95-907

• Decision Date: 04 September 1996
• Docket Number: 95-882 and 95-884,Nos. 95-907,s. 95-907
• Parties: 21 Fla. L. Weekly D1987, 21 Fla. L. Weekly D2226 James HAMPTON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 581

680 So.2d 581

21 Fla. L. Weekly D1987, 21 Fla. L. Weekly D2226

James HAMPTON, Appellant, v. The STATE of Florida, Appellee.

Nos. 95-907, 95-882 and 95-884.

District Court of Appeal of Florida,

Third District.

Sept. 4, 1996.

As Corrected on Grant of Clarification Oct. 16, 1996.

Roy D. Wasson, Miami, for appellant.

Robert A. Butterworth, Attorney General and Angelica Zayas, Assistant Attorney General, for appellee.

Before BARKDULL, LEVY and GREEN, JJ.

PER CURIAM.

On this consolidated appeal, James Hampton appeals his convictions and sentences entered in the following three cases: 94-7000B, 94-7638, and 94-30870. In case numbers 94-7000B and 94-7638, Hampton was convicted and sentenced pursuant to plea agreements. In case number 94-30870, Hampton was convicted of one count of possession of cocaine with the intent to sell after a jury trial and sentence pursuant thereto. We dismiss the appeal as to case numbers 94-7000B and 94-7638 for lack of jurisdiction and affirm Hampton's conviction and sentence imposed in 94-30870.

I. PLEA CASES

On this direct appeal, Hampton seeks to challenge his guilty pleas entered in case numbers 94-7000B and 94-7638 on the grounds that the court erroneously accepted his pleas without his expressed acknowledgment of guilt or acknowledgment that the pleas were in his best interests. As a result, Hampton argues that they must be set aside pursuant to Florida Rule of Criminal Procedure 3.172(d). The State correctly points out, however, that a defendant may not appeal from a judgment entered pursuant to a guilty or nolo contendere plea absent an express reservation of the right to appeal and which particularly identifies the particular point of law being reserved. § 924.06(3), Fla. Stat. (1993); Fla. R. App. P. 9.140(b)(1). The records before us do not reflect that Hampton reserved his right to attack his pleas entered in 94-7000B and 94-7638 on the ground being asserted on this appeal. Nor does it appear that Hampton's appeal qualifies as one of the narrow exceptions to Rule 9.140(b)(1) outlined in Robinson v. State, 373 So.2d 898, 902 (Fla.1979). Consequently, we have no jurisdiction to entertain direct review of these two cases. The appropriate avenue for Hampton to attack his pleas in these cases would be a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. For that reason we dismiss this direct appeal as to case numbers 94-7000B and 94-7638 without prejudice to Hampton to seek the appropriate relief by way of a 3.850 motion.

II. JURY TRIAL CASE

As to case number 94-30870, Hampton seeks a reversal of his conviction and sentence for possession with the intent to sell cocaine on four grounds. We have carefully considered each such ground and find that there is no basis for reversal.

This case began when Hampton's then girlfriend, Latonya Williams, who is now his wife, made a 911 telephone call to the police during the course of a heated argument with Hampton. Williams testified that she told the police during the 911 call that James had a gun "so the police would arrive faster." Upon the officers' arrival, they found Hampton loading personal belongings into the trunk of his car. The front driver's side door of the car was also open. Williams told one of the officers on the scene that Hampton had pointed a revolver at her and that the gun was in the trunk of Hampton's car. Hampton then told the officers to go ahead and search his car because they wouldn't find a gun. When the police searched Hampton's car, they found a clear bag containing 99 rocks of cocaine underneath the driver's seat. No weapon, however, was located.

At trial, Hampton defended on the basis that the cocaine was not his and he did not know that it was in his car. ¹ Williams was called as a witness both for the State and the defense. ² She testified that she had loaned the car to another man for several hours on the day of the arrest in order to make Hampton jealous. Williams testified that she did not see this other man put any drugs into the car and she also stated that the drugs were not hers.

The State's theory of the cause of the argument that resulted in the 911 telephone call was that Williams had stolen one of Hampton's cocaine rocks and that Hampton had discovered that it was missing. To this end, the State introduced, through another witness called after Williams, the tape of her 911 call to the police. The State argued that Hampton's voice could be heard clearly in the background screaming about the cocaine rock taken by Williams. The defense, on the other hand, argued that the tape was somewhat unintelligible except for the exchange of some vulgarities between Hampton and Williams.

After the State rested its case, and after Hampton's motion for judgment of acquittal was denied, the defense moved to recall Williams so that she could testify about the contents of the recorded 911 tape. The State objected and argued that the defense could have questioned her about the tape when she was on the witness stand even though the tape had not yet been introduced into evidence. ³ The trial court resolved this objection by obtaining an agreement from the State that if the State did not mention the tape in its closing arguments, the trial court would not allow the defense to recall Williams. The State, through the Assistant State Attorneys Michael Mansfield and Colleen Kay, acquiesced to the court's proposed resolution of this matter. Hampton affirmatively waived his right to testify in his own defense and the defense rested. The court then gave some preliminary instructions to the jury about closing arguments and the State began its closing. Almost immediately, Assistant State Attorney Michael Mansfield began discussing the 911 tape in violation of the State's agreement with the court and defense. The defense, however, interposed no objection. Indeed, the defense went on to respond to the State's argument about the tape in its closing statement.

As his first argument on appeal, Hampton argues that the trial erred in denying his motion for judgment of acquittal at the close of the State's case because the prosecution failed to present evidence from which the jury could find that Hampton had knowledge of the presence of cocaine in his car. Assuming without deciding that Hampton was in constructive rather than actual possession of the drugs, the trial court properly determined that the issue of Hampton's knowledge of the presence of the drugs in his car was one for the jury. Gartrell v. State, 626 So.2d 1364 (Fla.1993); Strachn v. State, 661 So.2d 1255 (Fla. 3d DCA 1995); Parker v. State, 641 So.2d 483 (Fla. 5th DCA 1994); State v. Dickerson, 634 So.2d 253 (Fla. 2d DCA 1994); Ferron v. State, 619 So.2d 506 (Fla. 3d DCA 1993); Green v. State, 602 So.2d 1306 (Fla. 4th DCA); review denied, 613 So.2d 4 (Fla.1992); State v. Duran, 550 So.2d 45 (Fla. 3d DCA 1989). Accordingly, the trial court properly denied Hampton's motion for judgment of acquittal.

Next, we find no merit to Hampton's second argument on appeal that the trial court erred in admitting the subject cocaine where the State did not properly establish the chain of custody. We note that although the defense initially interposed a chain of custody objection to the introduction of the drugs and the State responded thereto, the record then reflects that the defense explicitly acquiesced to the admissibility of the cocaine.

For his third argument, Hampton asserts that the trial court's failure to permit him to recall Williams to the stand to testify about the contents of the 911 tape constituted reversible error. We again disagree. The trial court's decision to permit parties to recall a witness to the stand after the witness has already testified is completely...