Jean v. State, 93-1541

• Decision Date: 15 June 1994
• Docket Number: No. 93-1541,93-1541
• Citation: 638 So.2d 995
• Parties: 19 Fla. L. Weekly D1302 Karmann JEAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 995

638 So.2d 995

19 Fla. L. Weekly D1302

Karmann JEAN, Appellant, v. STATE of Florida, Appellee.

No. 93-1541.

District Court of Appeal of Florida,

Fourth District.

June 15, 1994.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Karmann Jean appeals his conviction for attempted possession of cocaine. He argues that his motion for judgment of acquittal should have been granted. He also complains that at trial one of the state's witnesses improperly commented on his right to remain silent. We affirm.

Several officers from the Palm Beach County Sheriff's office executed a search warrant at a duplex apartment in West Palm Beach. There had been no prior surveillance, therefore the officers did not know who was in the apartment or how long they had been there. The officers entered approximately two minutes after a team from the Palm Beach County Tactical Unit broke in through the front entrance; a process that took between 30 and 60 seconds. The front entrance consisted of an outer door and a large grated metal door that was bolted to the wall inside. There was a large padlock on the outer door which was locked when the officers attempted to gain entry. All of the windows of the apartment were barred from the inside.

The officers who testified at trial indicated that it appeared that no one lived in the apartment. There was a TV, a cable box, a telephone, two couches, a chair and a coffee table. But there were no eating utensils in the kitchen, no stove or oven, no food except remnants of fast food, and no personal toiletry items. There were a few pieces of random clothing in one closet but no beds other than an old bed frame (one officer called it a boxspring). There were no photographs or other personal items in the apartment.

The officers who followed the Tactical Unit into the apartment found appellant and his three codefendants lying on the floor among approximately 200 cocaine rocks strewn all over the room.

One officer testified that as he entered the apartment he saw plates flying to the floor near the couch on the west wall and that appellant had been sitting on that couch. There was cocaine residue on some of the plates found on the floor. No fingerprints were taken from the ceramic plates or from plastic bags also found in the apartment.

Appellant was arrested, along with his three codefendants, and charged with trafficking in cocaine. Appellant explained that he was merely a visitor to the apartment.

There is no evidence as to who owned or rented the apartment and of course no one came forward to assert an ownership or other interest in the cocaine rocks.

The issue is whether, under these somewhat unusual circumstances, there is sufficient evidence to avoid a motion for judgment of acquittal.

We discussed the general law applicable to such circumstances in Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). There we explained:

[A]ctual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession. Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. Willis v. State, 320 So.2d 823 (Fla.App.1975). See also Medlin v. State, 279 So.2d 41 (Fla.App.1973); Griffin v. State, 276 So.2d 191 (Fla.App.1973).

If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused's ability to maintain control over it, may be inferred. If the premises on which the controlled substance is found is not in the exclusive but only in the joint possession of the accused, knowledge of the presence of said controlled substance on the premises and the accused's ability to maintain control over it will not be inferred but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the controlled substance on the premises, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the controlled substance on the premises. Willis v. State, supra; Smith v. State, 279 So.2d 27 (Fla.1973); Frank v. State, 199 So.2d 117 (Fla.App.1967).

Id. at 129.

The difficulty with this analysis is that it does not separate the issue of the accused's ability to maintain control over the substance from the issue of the accused's knowledge of the presence of the controlled substance on the premises. It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it. On our facts it is abundantly clear that appellant was aware of the presence of the cocaine rocks on the floor around him. The question is whether he had the...