Lelieve v. State
| Decision Date | 15 April 2009 |
| Docket Number | No. 3D07-2225.,3D07-2225. |
| Citation | 7 So.3d 624 |
| Court | Florida District Court of Appeals |
| Parties | Gerald LELIEVE, Appellant, v. The STATE of Florida, Appellee. |
Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
Gerald Lelieve appeals his conviction and sentence for trafficking in cocaine. Lelieve argues three rulings merit reversal: first, the trial court's denial of his request to discharge counsel and retain different private counsel; second, the trial court's denial of his motion for mistrial following testimony of a detective who, in violation of a pretrial order, identified the scene of the underlying event as a house which was known as a place where narcotics were sold; and third, the trial court's denial of a mistrial based on the cumulative prejudice of two prosecutorial comments made during closing argument. Because we find no reversible error has been demonstrated, we affirm the order under review.
Lelieve was charged with a single count of trafficking in cocaine and tried with co-defendant, Augustin Fleurimond, who was charged in the same information with two counts of trafficking in cocaine and two counts of sale of cocaine within 1,000 feet of a school. The day before jury selection was to begin, Lelieve's counsel advised the trial court that two days earlier he had learned that some witnesses to Lelieve's arrest, previously thought to be outside the jurisdiction, had returned (or were about to return) and might now be available to provide exculpatory information. Although Lelieve had filed a speedy trial demand just the week before, Lelieve asked the court to strike the speedy trial demand and continue the trial. The request was denied. Lelieve thereupon, following a short break in the proceedings, asked that he be allowed to hire new private counsel. The trial court, stating that it was conducting a Nelson inquiry,1 asked Lelieve to specify his reasons for wanting new counsel. After Lelieve explained that although he did not know the whereabouts of the witnesses his attorney had referred to earlier in the day, he wanted a new attorney because he had told his attorney about these witnesses at the start of the case, but the attorney had done nothing to talk to them. The motion was denied.
The next day, immediately before jury selection, co-defendant Fleurimond's counsel made an ore tenus motion to preclude the State from introducing evidence concerning prior drug sales from the house where the events in this case took place:
[COUNSEL FOR FLEURIMOND]: The only issue that I have is a Motion in Limine. I've noticed in going through some of the depositions that some of the officers said, in response to the question, why did you go to this location, there was [sic] sales years ago or a long time ago at this house.
Just ask the State to inform the witnesses that I don't think that's proper in this case, that there was [sic] any sales.
Counsel for Lelieve joined in this motion, which was granted without objection from the State.
Trial commenced the following day. During its short opening statement, the State advised the jury that this case involved police surveillance of a house being watched for drug activity:
[FOR THE STATE]: This is a case about drug-dealing. On October 11th, 2006, police officers were conducting surveillance. A team of police officers were [sic] watching a house, Mr. Fleurimond's house, for drug-dealing activity.
This statement drew no objection from either Fleurimond or Lelieve.
Following equally short opening statements2 from Fleurimond, who focused on inconsistencies in the State's case, and Lelieve, who focused on the fact that there was no fingerprint, DNA, photographic, videographic, or audiographic evidence to corroborate the testimony of the State's witnesses, the State began its case by calling Detective Gayle, one of two officers who conducted a surveillance of a house located at 59th Street and NW 1st Avenue in Miami.
Shortly after Detective Gayle began to testify, the trial court interrupted the prosecutor to inquire whether she had "instructed all of [her] officers as to the Motion in Limine." The prosecutor responded that she had so instructed only her first two witnesses, Detectives Gayle and Fernandez. She was reminded to advise all of the State's witnesses that there was to be no testimony about a "high crime area, [or] any previous contact with anybody." She agreed.
Following this warning, Detective Gayle testified that she was a member of a crime suppression unit which, on the day at issue, consisted of herself and Detective Belfort, who were the "eyeballs" watching a particular house, and a number of additional "takedown" units, comprised of officers who would effectuate the apprehensions and arrests resulting from the operation. According to Detective Gayle, she and Detective Belfort were located inside a van parked directly in front of the house involved, the front door of which was only ten to fifteen feet from their van. Detective Gayle further testified that within twenty minutes of their arrival, she saw a white man walk up to, and knock on, the front door of the house under surveillance. She then saw the door opened by a man she positively identified as co-defendant Fleurimond. Detective Gale then saw the white man hand money to Fleurimond, who briefly closed the door before quickly reopening it and handing a small item to the man at the door. The man then left the house being surveilled and entered a nearby home. The man was not arrested so as to avoid revealing the officers' presence.
Shortly after this transaction took place, Detective Gayle observed a second transaction during which a black man in a burgundy colored van drove up to the house being watched. This man also approached the house, knocked on the door and gave money to Fleurimond after Fleurimond opened the door. As before, Fleurimond moved away from the door and returned shortly, to hand a small item to the man at the door. After this man drove off, the nearby takedown teams were advised of the vehicle's description and direction of travel. The van was stopped and the occupant arrested.
Approximately fifteen minutes later, Gayle observed a third transaction. This time, a white van pulled up to the residence. The driver, a black man positively identified by Detective Gayle as Lelieve, exited the vehicle, approached the front door and knocked. As before, the door was opened by Fleurimond, who took money from Lelieve, went into the house and returned to hand something to Lelieve. Detective Gayle saw Lelieve place in his waistband this item, described as a clear plastic bag, and then leave in the white van. The takedown units were alerted and provided with a description of the vehicle that this man was driving; the vehicle was stopped a short distance away. Lelieve, who was driving the van when it was stopped, was searched and a package containing what subsequently turned out to be almost fifty grams of cocaine was found in Lelieve's groin area. Lelieve was arrested.
After observing this third transaction, Detective Gayle, in conjunction with another officer, ordered a takedown on the house. According to Detective Gayle, as the takedown officers approached the house, she saw Fleurimond come to the door. After the house was searched, Fleurimond was arrested.3
Detective Gayle's testimony about the details of the transactions that she observed, and Fleurimond's and Lelieve's part in those transactions, was corroborated by the testimony of Detective Belfort, the other "eyeball" and the second witness called to testify by the State. After initially being asked to point out on a visual aid the location of the house that he and Detective Gayle were watching and its proximity to a nearby elementary school and park, Detective Belfort was asked to detail where he and Detective Gayle were located while making their observations. Detective Belfort was then asked what happened during the surveillance. He responded, stating:
We were set up at the location. We were doing a—surveillance at our location with—that we knew to be selling narcotics.
Lelieve objected and the jury was sent to the jury room. Lelieve then moved for a mistrial "based on the impermissible testimony by this officer as to the previous criminal activity at the location in question" which counsel equated with "`high crime area' testimony that has previously been condemned." Lelieve also argued that the testimony violated the motion in limine granted before trial. The State responded, arguing that the testimony was only common sense testimony explaining why all of these officers were focused on this particular house. Out of the presence of the jury, the trial court agreed with the State's argument and, with a warning not to make it a feature of the case, deferred on the motion for mistrial which ultimately was denied:
THE COURT: Well, actually it's an interesting argument, and I'm going to defer on the motion for mistrial because I'm not sure that I disagree with the Statement. I mean, the testimony was that they were conducting a surveillance of this particular house, and a reasonable inference is that they—they didn't just wake up one morning and say, let me go to 59th Street and 22nd Avenue, wherever this particular place was, and let me watch it.
There had to be a basis. Now, I don't know what more is going to come. I don't know if there is going to be to be [sic] additional statements could create an issue, but right now my gut is to say that I'm going to deny the motion.
But instead of saying, that, because I don't know what else is coming, I'm going to defer on the Defense's Motion for Mistrial.
I will also note that the case law actually talks about a distinction between a...
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