Jennings v. State

• Decision Date: 14 November 2013
• Docket Number: No. 3D11–1200.,3D11–1200.
• Citation: 124 So.3d 257
• Parties: Carlos JENNINGS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

124 So.3d 257

Carlos JENNINGS, Appellant,

v.The STATE of Florida, Appellee.

No. 3D11–1200.

District Court of Appeal of Florida, Third District.

Sept. 11, 2013.

Rehearing Denied Nov. 14, 2013.

Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., and Benjamin S. Waxman, Miami, for appellant.

Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.

Before ROTHENBERG, EMAS, and LOGUE, JJ.

LOGUE, J.

Carlos Jennings appeals his conviction of attempted trafficking in cocaine. He raises two issues on appeal: (1) the State failed to prove he was in constructive possession of cocaine; and (2) the trial court abused its discretion when it issued a curative instruction, rather than granting a mistrial, after the prosecutor made improper remarks in closing argument. We are not persuaded by these arguments and affirm.

FACTS AND PROCEDURAL BACKGROUND

On September 20, 2010, an off-duty police officer conducted a traffic stop of a four-door Toyota Camry that had three occupants. Before the officer could exit his vehicle, Jennings, the driver, jumped from his rental car and walked to the officer's vehicle with his driver's license in hand. Jennings was “very, very nervous.” As the officer conversed with Jennings, the backseat passenger attempted to flee but was stopped by another officer who had responded to the scene. The officer who had effectuated the traffic stop escorted Jennings back to the car to retrieve the car's registration. The front seat passenger then tried to flee, but was apprehended.

Through the open door on the passenger's side, the officer observed a large gym bag lying open on the front passenger seat floorboard. Plainly visible within the unzipped bag was a large amount of cash that was stacked and bundled. The money exceeded thirty-thousand dollars. Also in full view within the open gym bag was a square package that appeared to the officer to contain cocaine. Among other things, under its cellophane wrapping, there was white, powdery residue visible “all over the package.” The officer found a second package in the gym bag. Each package contained over one kilogram of cocaine. The packages were dusted for fingerprints and swabbed for DNA. No fingerprints were found on the packages and the DNA test results were not obtained in time for trial.

During the traffic stop, the officer had kept close watch on the passengers in the car based on a concern for his safety. As soon as Jennings exited the car, the officer explained, he felt he might be confronted with a “flight or fight” situation by all of the passengers. He was ready to draw his weapon if he had observed the front seat passenger moving in the direction of the floorboard. According to his observations, the backseat passenger never tossed anything into the front seat and the front seat passenger did not engage in any movements in the direction of the floorboard.

Jennings was charged by information with trafficking in cocaine on October 13, 2010. He filed a notice of expiration of speedy trial time on March 22, 2011. ¹ The case was then set for trial on March 28, 2011.

At trial, the State did not present any DNA evidence. Defense counsel drew attention to this fact during the cross-examination of the arresting officer. When the officer testified that the laboratory testing had not been completed at the time of trial, defense counsel commented: “That is unbelievable.” His questions insinuated that the officer knew the results could exonerate Jennings.

At the close of the State's case, defense counsel moved for a judgment of acquittal, arguing the State failed to prove Jennings was in constructive possession of cocaine. The trial court denied the motion.

At one point in the State's initial closing argument, the prosecutor addressed the absence of the DNA results. The State explained that no one knew the outcome of the DNA tests because, as the officer testified, the laboratory testing had not been completed. The State also downplayed the significance of DNA evidence in this case, contending Jennings' DNA on the cocaine packages “would prove nothing” because skin particles and hair follicles of any of the three occupants could easily circulate in the car and land on the packages.

Defense counsel in his closing reviewed the various types of forensic evidence that were not presented at trial, including fingerprints and DNA. Regarding the lack of DNA evidence, defense counsel briefly discussed the arresting officer's testimony that the laboratory testing had not been completed at the time of trial. The officer's explanation, the defense argued, was “stupid,” “poppycock,” and “a lie.” The thrust of this part of the defense's argument was to encourage the jurors to speculate that the State was lying about the DNA because the test results could exonerate Jennings. The trial court denied the State's request for a curative instruction.

At one point on rebuttal, the State made the comments that have become an issue in this appeal. In response to the defense's contentions regarding the absence of DNA evidence, the prosecutor pointed out that it can take over a year to obtain DNA test results, as the officer had testified. Not content to stop there, the prosecutor argued that the defense, if anyone, was at fault for the lack of DNA evidence. After all, the State argued, Jennings exercised his right to a speedy trial before the laboratory results that “could possibly implicate him” were ready.

Defense counsel objected, requested a curative instruction, but then moved for a mistrial. Although the trial court denied the motion for mistrial, the court sustained defense counsel's objection to the prosecutor's remarks, struck the remarks, and offered a curative instruction:

The objection is sustained. Going to strike the last comment and statements made by the attorneys. Ladies and gentlemen, you are to rely on your own recollection of the facts in this case. The facts are that which you determine to be true and relying on the evidence [as] you have heard it by way of testimony of witnesses and the exhibits that have been legally introduced as evidence in this case.

At the conclusion of closing arguments, the trial court instructed the jury that reasonable doubt could be based upon a lack of evidence. At various points throughout closing argument, the jury was also reminded that arguments of counsel are not evidence and that they must rely on the evidence submitted at trial in determining whether the State met its burden of proof.

The jury found Jennings guilty of attempted trafficking in cocaine, a lesser included offense of trafficking in cocaine. Jennings moved for a new trial on the basis of the prosecutor's improper remarks, but his motion was denied. He was sentenced to ten years in prison. This appeal followed.

DISCUSSION

I. Denial of Motion for Judgment of Acquittal

In the first issue raised on appeal, Jennings contends the trial court erred in denying his motion for judgment of acquittal because the State failed to prove he was in constructive possession of cocaine. We reject this argument. The record contained evidence sufficient for the jury to conclude that the cocaine was within Jennings' view and under his control.

A. Standard of Review

“The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence.” Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). It is well-settled that “[i]n moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the [State] that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

In circumstantial evidence cases, such as this case, “a special standard of review applies whereby the trial court is tasked with reviewing the evidence to determine whether competent evidence exists ‘from which the jury could infer guilt to the exclusion of all other inferences.’ ” Giralt v. State, 935 So.2d 599, 601 (Fla. 3d DCA 2006) (quoting Boyd v. State, 910 So.2d 167, 180 (Fla.2005)). This standard does not require the State to conclusively rebut every possible variation of events that could be inferred from the evidence, but only “to introduce competent evidence which is inconsistent with the defendant's theory of events.” Id. “Once the State meets its threshold burden of creating an inconsistency with the defendant's theory, the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency.” Id. at 602.²

B. Constructive Possession

Because there was a passenger in the front passenger seat, Jennings did not have exclusive possession of cocaine in the gym bag on the front passenger seat floorboard. The evidence, however, was sufficient for the jury to conclude that Jennings was in constructive possession.

To prove constructive possession, the State must present competent, substantial evidence of the accused's knowledge of the presence of contraband and his or her ability to exercise dominion and control over it. Reynolds v. State, 983 So.2d 1192, 1194 (Fla. 3d DCA 2008); Links v. State, 927 So.2d 241, 243 (Fla. 2d DCA 2006). If the contraband is not located within the accused's exclusive possession, the jury cannot infer the accused's knowledge of and control over the contraband based upon proximity alone. Reynolds, 983 So.2d at 1194. Instead, the State must provide independent proof of these two elements. Blanchard v. State, 67 So.3d 309, 311 (Fla. 4th DCA 2011); State v. Cadore, 59 So.3d 1200, 1203 (Fla. 2d DCA 2011).

i. Knowledge

On the issue of knowledge, this matter is a straightforward plain view case. A person looking at the front passenger seat floorboard could see a large, unzipped gym bag with a visible square package that had the size and appearance typical of a packaged kilogram of cocaine....