Lopez v. State
| Decision Date | 31 December 1997 |
| Docket Number | No. 96-01090,96-01090 |
| Citation | 711 So.2d 563 |
| Parties | 23 Fla. L. Weekly D117 Humberto LOPEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Corcoran, Assistant Attorney General, Tampa, for Appellee.
Humberto Lopez challenges his conviction and sentence for trafficking in cocaine. We reject Lopez's first two arguments, but we agree that the trial court should have granted his motion for judgment of acquittal as to cocaine found in his home.
Working with a confidential informant, Hillsborough County Sheriff's officers arrested Lopez after they detained him in a parking lot and found an envelope containing 64 grams of cocaine in the glove compartment of his car. The officers later went to Lopez's home, where his wife permitted them to search. The officers found another 415 grams of cocaine in a bedroom closet. Lopez was charged with cocaine trafficking, tried before a jury, and convicted.
Lopez first contends that during his trial the court failed to conduct an adequate hearing on the State's failure to produce a certified copy of Lopez's vehicle registration application during pretrial discovery. See Richardson v. State, 246 So.2d 771 (Fla.1971). Over Lopez's objection, the State introduced this document as part of its proof of Lopez's constructive possession of the cocaine found in the car. A discovery violation can be deemed harmless error even where the trial court has failed to conduct an adequate Richardson hearing. See State v. Schopp, 653 So.2d 1016 (Fla.1995). The record in this case reflects that during testimony at a pretrial hearing on Lopez's motion to suppress, Lopez and his counsel were apprised that the State had proof of Lopez's registered ownership of the vehicle in question. We conclude that there is no reasonable possibility that Lopez's trial preparation or strategy would have been materially different had the discovery violation not occurred. Therefore, any inadequacy in the trial court's Richardson inquiry was harmless error. Schopp, 653 So.2d at 1020-21.
We also affirm the trial court's order overruling Lopez's objection to a detective's testimony about the actions of the confidential informant. Lopez objected on hearsay grounds and on the ground that the detective's comment that the informant was reliable unfairly bolstered the informant's credibility. But the informant did not testify, and neither the detective nor any other witness related any information that had been furnished by the informant. The detective merely recounted what he had instructed the informant to do, and then described what he had observed the informant do thereafter. That simply was not hearsay.
As to the other ground for Lopez's objection, the informant's credibility vel non played no role in the conviction. The State based its case on evidence of Lopez's constructive possession of the cocaine found in the vehicle and the bedroom closet; it did not rely on testimony by the informant or on any information furnished by him. See State v. Baird, 572 So.2d 904 (Fla.1990). Further, the detective's testimony about the informant was not a feature of the trial and was not again brought to the jury's attention. Any error in this regard was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
We conclude, however, that the trial court should have granted Lopez's motion for judgment of acquittal as to the cocaine found in his home. The officers discovered the cocaine and several other items within a closed sports bag on a shelf in a bedroom closet. Lopez and his wife shared the closet; each had clothing in it. None of the items found in the bag linked Lopez to it. The State presented no evidence that Lopez's fingerprints had been found on the bag or on any of its contents. Several pieces of Lopez's identification were located on the shelf near the sports bag, but they were in a separate plastic storage box which also held identification belonging to Lopez's wife and children.
"Constructive possession exists where the accused, without physical possession of the controlled substance, knows of its presence on or about the premises and has the ability to maintain control over the controlled substance." See Agee v. State, 522 So.2d 1044, 1045-46 (Fla. 2d DCA 1988). "To establish constructive possession, the state must show that...
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State v. Williams, 98-2055.
...without more, is legally insufficient to prove possession. Chicone, 684 So.2d at 740; Dupree, 705 So.2d at 94; Lopez v. State, 711 So.2d 563 (Fla. 2d DCA 1997). Having carefully considered the evidence in a light most favorable to the State, we find that the State made a prima facie case of......
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DMC v. State, 2D03-11.
...of only proximity to the drugs in a public area was insufficient to convict under a constructive possession theory); Lopez v. State, 711 So.2d 563 (Fla. 2d DCA 1997) (holding that evidence of drugs found in the defendant's and his wife's jointly occupied closet was insufficient to prove con......
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Lewis v. State
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