LaPolla v. State

• Decision Date: 01 April 1987
• Docket Number: No. 4-86-0509,4-86-0509
• Citation: 504 So.2d 1353,12 Fla. L. Weekly 909
• Parties: 12 Fla. L. Weekly 909 James Robert LaPOLLA and Robert Anderson, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1353

504 So.2d 1353

12 Fla. L. Weekly 909

James Robert LaPOLLA and Robert Anderson, Appellants, v. STATE of Florida, Appellee.

No. 4-86-0509.

District Court of Appeal of Florida,

Fourth District.

April 1, 1987.

Rehearing Denied April 29, 1987.

Mark King Leban of Law Offices of Mark King Leban, P.A., Miami, and Harry Gulkin, Fort Lauderdale, for appellants.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

The defendants appeal their judgment and sentence. We affirm.

Appellants, Robert Anderson and James Robert LaPolla, (and a third man, Thomas Luck, not an appellant) were charged by information with a single count of conspiracy to traffic in cocaine and possess cannabis. The information charged that the objects of the conspiracy were to deliver to Dennis Gavalier [a narcotics investigator] 400 or more grams of cocaine or a mixture containing cocaine, and for Anderson to achieve possession of more than 100 but less than 2,000 pounds of cannabis. Conspiratorial acts were alleged to include certain telephone calls, and meetings at stated places, during which negotiations about the transaction occurred. A subsequent amended complaint was silent about the cannabis.

Anderson and LaPolla moved to dismiss. LaPolla moved to dismiss or sever.

Defendants moved to exclude coconspirators' testimony, and a James hearing was held prior to trial. (The reference is to United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). James does not require a pretrial hearing, but merely that the trial court apply the following to determine the admissibility of coconspirator statements: coconspirator statements are admissible if the court finds that the prosecution has shown, by substantial, independent evidence, the existence of a conspiracy to which both defendant and declarant were parties, and that the statements were made in the course of and in furtherance of the conspiracy. Id. at 581.) The court found the statements admissible.

The three defendants were tried to a jury, which found all three guilty. All defendants moved unsuccessfully for judgments of acquittal for insufficient evidence and lack of proof of intent (and on other grounds) both at the close of the state's case and at the close of all of the evidence. Appellants' motions for new trial were heard and denied. Judgment was entered and sentence imposed, each getting a prison term of fifteen years. This appeal followed.

The pertinent facts are as follows. Gary Williams, facing a charge of trafficking in cocaine, and faced with a fifteen year mandatory minimum prison term, agreed to assist the authorities in apprehending traffickers in exchange for mitigation of sentence. Working with agents Gavalier and Cacciatore, Williams arranged for a meeting at a bar and restaurant, the Pierce Street Annex, on March 28, 1983, between Gavalier and himself and LaPolla and Luck. Gavalier testified that the conversation turned to cocaine; that LaPolla asked him how many kilos he was looking for; that he replied two for now, but he would like to get into a steady business relationship under which he would buy about six kilos a week, the cocaine being for his brother in Ohio; that Luck was present during this conversation, (Williams said LaPolla and Gavalier were separated from him and Luck during the negotiations); that LaPolla told Gavalier he could handle up to two hundred kilos a week any time; that there was discussion of price, quantity and quality; that the transaction had to be definite before his brother would come down; that Luck said he would pay the brother's travel expenses if the deal fell through; and that the original quote was $58,000 per kilo, but they ultimately agreed, after Luck left with a woman, to sale/purchase of two kilos at $57,000 each.

When Luck returned, there was discussion about whether Gavalier had a connection for marijuana. It was agreed to meet again the next day. LaPolla went to make a phone call and returned to say he could make the transaction. It was set to occur the next day.

The next day at 12:25 p.m. Gavalier received a phone call from LaPolla. Gavalier recorded this call. Gavalier said he needed to talk with LaPolla and would bring some "cake (money)." They agreed to meet in the parking lot of a Denny's Restaurant in half an hour. Shortly after the LaPolla phone call, Gavalier received a phone call from Gary Williams. Williams said LaPolla could not come to the meeting and would be in touch. At 1:23 p.m. LaPolla again called. Gavalier taped this call also. It was agreed to meet at the K-Mart on Oakland Park Boulevard. The two of them met there. LaPolla said Gavalier would have to give him the money before the cocaine was delivered, as his people didn't want to meet anybody. Gavalier said he would not "front" the money.

At 4:30 p.m. LaPolla called again. Gavalier taped this conversation. LaPolla offered Gavalier his friend's 1978 Excalibur automobile as security for the money. Gavalier said he could not risk fronting the money because if the cocaine was not produced in exchange he was dead. This was in conversation with Anderson, who had gotten on the phone. Anderson thought Gavalier ought to be willing to trust Gary Williams, whom Anderson had helped in the past, and whom Gavalier had said he had known for ten years. Anderson said he could leave one of his people with Gavalier while waiting for the cocaine delivery; and that Gavalier could hold the title to Anderson's Excalibur during the transaction; assuring Gavalier he was not in the business of ripping off customer's money, but wanted to establish long-term business. He said one package would be brought to Gavalier and then the other; that Gavalier would have to give $45,000 to Gary Williams, who would be the courier, and Anderson would supply the rest of the money for the first kilo; and that he understood Gavalier was looking to buy six kilos a month, and then that he forgot what he had been told. Gavalier said he had discussed six kilos a week, but would pass on the transaction.

The next day at 6:40 p.m. Gavalier received a page. He went to a pay phone and called the number, which was a pay phone at Dina's Tree House. He tape recorded the ensuing telephone conversation, which was with Anderson. In essence the conversation again concerned leaving the Excalibur and its title with Gavalier as security for the $45,000. If Gavalier liked the cocaine he would return the car and title.

According to Gavalier he decided later that evening not to proceed with the transaction, because he did not want to advance the money. Easter weekend ensued. When Gavalier returned after the weekend, Williams informed him LaPolla was still interested in carrying out the deal.

At 10:20 a.m. April 4, 1983, Gavalier called LaPolla. The conversation was taped. They agreed to meet at McDonald's Restaurant.

The meeting there took place at 10:45 a.m. LaPolla said he wanted to work things out, but still in the same way. They agreed to carry out the transaction that afternoon.

In a 12:22 p.m. telephone call to Gavalier that Gavalier also taped, LaPolla said he had just talked to Gary Williams, the price was $57,000, and Gavalier was to bring $45,000. In a later recorded call from LaPolla to Gavalier, it was agreed to meet at Denny's. LaPolla would give Gavalier the Excalibur and someone would wait with Gavalier. Gavalier would turn over the $45,000. There was a further call at 1:30, in which LaPolla said he'd meet Gavalier at Denny's in ten minutes.

At 1:52 p.m. Gavalier was already at Denny's, when he saw LaPolla drive up in the Excalibur and park near him. Luck drove up in a Hornet and parked a little distance off. Gavalier showed LaPolla the money and LaPolla gave Gavalier the auto title. Gavalier gave Luck the money. LaPolla and Luck were then arrested. Anderson was arrested in another part of the parking lot.

According to Gary Williams' testimony, LaPolla and Luck had told him they had a good connection for cocaine. When he first talked with Anderson and LaPolla they told him they had cocaine to sell.

There are two issues:

I. Whether the trial court erred in denying the appellants' motions for judgment of acquittal at the close of the state's case, inasmuch as the state failed to produce any evidence of an agreement between the appellants to deliver cocaine, or that any defendant ever intended to deliver cocaine. We conclude it did not. Evidence of a conspiratorial agreement or of intent to commit a crime may be circumstantial, and if a prima facie case has been made out such motions should not be granted.

II. Whether the trial court erred in denying the appellants' motions for judgment of acquittal, inasmuch as the circumstantial evidence introduced by the state failed to exclude a reasonable hypothesis of innocence of the crime charged. We conclude it did not. So long as there was enough evidence to send the case to the jury, it is for the jury to determine whether reasonable hypotheses of innocence have been ruled out.

Appellants' two issues will be treated together, inasmuch as direct evidence of a conspiratorial agreement and of intent to commit a crime is not a requirement; and circumstantial evidence is a sufficient basis for a jury verdict under circumstances that will be described below.

"In order to be guilty of conspiring to violate ... [a criminal] statute it must be proved that appellant agreed with another to commit a criminal offense while intending to commit the offense." Bragg v. State, 487 So.2d 424, 426 (Fla. 5th DCA 1986); see also § 777.04(3), Fla.Stat. (1983). The state must prove the acts contemplated in the conspiracy would constitute an offense under a Florida statute. There is no requirement that there be an overt act in furtherance of the conspiracy. Beke v. State, 423 So.2d 417, 419 (Fla. 2d DCA 1982).

Her...