Hutchinson v. State, 90-1630

• Decision Date: 13 May 1991
• Docket Number: No. 90-1630,90-1630
• Parties: 16 Fla. L. Weekly D1363 John A. HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 257

580 So.2d 257

16 Fla. L. Weekly D1363

John A. HUTCHINSON, Appellant, v. STATE of Florida, Appellee.

No. 90-1630.

District Court of Appeal of Florida,

First District.

May 13, 1991.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

John Hutchinson appeals his conviction of the sale or delivery of cocaine. Finding error on two of the four points challenging certain rulings during trial, we reverse and remand for a new trial.

The state charged Hutchinson with one count of having sold or delivered a certain amount of cocaine on December 27, 1989, in violation of section 893.13(1)(a)1, Florida Statutes (1989). The following portions of the trial proceedings are relevant to the issues on appeal.

During her opening statement to the jury, the prosecutor made the following remarks:

And I believe that they [the officers] will testify that on that particular evening, December 27th, they went on out on one of their, typical word for it I think they use is, buy bust operation. They go in an, you know, undercover vehicle, in plain clothes, they're not obviously in their police uniform. And they hit the high areas that are the hot known drug areas of town.

Defense counsel objected to the prosecutor's characterization of the area in which Hutchinson lived as a "known drug area" and moved for a mistrial. The prosecutor responded that:

Your Honor, I made absolutely no mention of the fact that he lives in that area. The fact is these officers are familiar with the area, that's where they go and I think their testimony would establish that they make--they've made prior drug arrests in this particular area and that's why they go to this area.

Their testimony is going to come out this is where they made the sale and I don't think the fact that it's a high drug area prejudice his client one way or the other.

After the prosecutor assured the court that she could stay away from that subject, the court denied the motion for mistrial and granted the request for a curative instruction. The court then instructed the jury to disregard the prosecutor's comment that "the officers went to an area of high incidents of drug usage or drug traffic" in considering their verdict.

During the prosecutor's direct examination of Detective Grady, one of the undercover officers involved in the transaction with Hutchinson, the prosecutor asked him to describe his duties, and the detective responded:

Well, my duties are that I work on the street crime. I'm part of the street crime unit. And we go in certain areas, normally drug areas.

Defense counsel objected to this testimony as irrelevant and prejudicial, requested a curative instruction, and moved for a mistrial. The trial court denied the motion for mistrial and the request for curative instruction. The detective was then allowed to testify at length concerning the manner and method of conducting an undercover operation similar to the one that he was involved in on the evening of Hutchinson's arrest. Among other things, he stated that normally the officers would drive an undercover vehicle into a high crime area or drug area and attempt to purchase drugs. Defense counsel objected again, moved to strike that testimony, and requested a curative instruction, and the circuit court denied the requests. The detective continued to testify that in the undercover operations they would attempt to purchase drugs from the "street level dealers." The prosecutor asked the detective whether they were engaged in one of those operations on the evening of Hutchinson's arrest, and the detective responded, "Yes, I was." The detective described the undercover operation that he was involved in as a "drug buyer" that evening, and described the events that led to Hutchinson's arrest.

Detective Grady also testified that each evening before they went out on undercover operations, including the evening of Hutchinson's arrest, the money to be used in the operation would be copied and the serial numbers recorded. The money would then be marked with an ink pen and everyone within the units would be advised as to the markings. The markings would be changed every evening so that the officers would be able to identify the money when the offender is apprehended and so that the dealers would be unaware of the markings. On cross-examination, Grady could not recall the markings that were made on the money allegedly given to Hutchinson. However, when the prosecutor showed him the photocopy of the money on redirect examination, Grady stated that he recognized the photocopy of the money that was used that night in the buy-bust operation "[d]ue to the fact that the five dollar bill in which was used and the twenty dollar bill in which was used both have circles around it to identify with this case."

During the transaction in which Hutchinson was apprehended, he dropped the money to his feet and it was recovered by Detective Hughes, who then gave it to Grady. The money so recovered from Hutchinson was not put into any formal custody arrangement to preserve it for evidentiary purposes in the case against Hutchinson, but was used again in other undercover operations. Because the original money given to Hutchinson was not available, the court received the photocopy of the money in evidence over Hutchinson's objection that the admission of the photocopy violated the best evidence rule.

During the jury charge conference, defense counsel requested an instruction on the lesser-included offense of possession of cocaine, arguing that under the facts of this case, it was alleged and proved that Hutchinson physically possessed some cocaine before handing it to the undercover officer. The trial judge denied the request on the ground that possession of cocaine was not charged in the information. The jury found Hutchinson guilty as charged, and the court entered judgment on the verdict and sentenced him as a habitual felony offender to a twenty-year term of imprisonment.

Hutchinson first contends that the circuit court erred in refusing to give a jury instruction on the lesser-included offense of possession of cocaine because the charge of "delivery" in the information implies that he physically possessed the cocaine and because there was uncontroverted evidence at trial that he possessed the cocaine before he allegedly sold or delivered it to the undercover police officers. We reject this argument because it is inconsistent with the recent decision of the Florida Supreme Court in McCloud v. State, 577 So.2d 939 (Fla.1991). In McCloud, the court held that pursuant to the 1988 amendment to section 775.021(4), Florida Statutes, possession of cocaine is not a lesser-included offense of sale of the same quantum of the drug, and that a defendant can be convicted of both possession and sale or delivery of the same quantum of drug where the crimes occurred after July 1, 1988, the effective date of section 775.021(4), Florida Statutes (1988 Supp.). Referring to its previous opinion in State v. Smith, 547 So.2d 613 (Fla.1989), the supreme court stated that "under a 1988 statutory amendment, the legislature intended that sale or delivery of a controlled substance and possession of that substance constitute separate offenses subject to separate convictions and separate punishments." 577 So.2d at 940. In State v. Daophin, 533 So.2d 761 (Fla.1988), the court held that in order for a defendant to be entitled to a jury instruction on a category two (permissive) lesser included offense, such as possession where the charged offense is trafficking by delivery, both the accusatory pleading and the evidence must support the commission of the lesser offense. See also Munroe v. State, 514 So.2d 397, 401 (Fla. 1st DCA 1987), cert. denied, 519 So.2d 987 (Fla.1988) ("A jury instruction encompassing a permissible lesser included offense, in contrast to a necessarily included offense, must be given only when the pleadings and evidence demonstrate that the lesser offenses is included in the charged offense."). The import of these decisions is that the state must elect to prosecute or not to prosecute a person for possession of cocaine when charging sale or delivery of cocaine, and that possession cannot be treated as a lesser included offense unless the element of possession is necessarily part of the charge filed. ¹

In this case, the information charged Hutchinson only with sale or delivery of cocaine, and not with possession of cocaine. Therefore, he was not entitled to an instruction on possession of cocaine as a permissive lesser included offense even though there was evidence at trial that he possessed the cocaine before he allegedly sold it to the undercover officers.

Hutchinson next contends that the circuit court reversibly erred in allowing the prosecutors to make comments and elicit evidence, on several occasions, that he was arrested in a high drug or high crime area. We agree that this point has merit. In Gillion v. State, 573 So.2d 810 (Fla.1991), the supreme court addressed whether the characterization or identification of a specific location as a high crime area unduly prejudices a defendant who is arrested there. In Gillion, the prosecutor elicited information from an officer that on the evening of the defendant's arrest, the officer observed several cocaine transactions take place in the area in which the defendant was arrested. The supreme court affirmed the district court's decision that the officer's testimony did not rise to the level of reversible error, stating that:

When [the officer] made the objected-to statement, the state was not attempting to characterize the area as one of high crime but was asking him what he saw when driving through it. If [the officer] actually saw criminal activity, testimony concerning what he saw is a factual matter, not a...