Moore v. State, 85-1918
| Decision Date | 12 February 1987 |
| Docket Number | No. 85-1918,85-1918 |
| Citation | 503 So.2d 923,12 Fla. L. Weekly 499 |
| Parties | 12 Fla. L. Weekly 499 Clarence MOORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis Ossinsky, Jr., of Ossinsky, Krol and Hess, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant below, Clarence Moore, appeals his conviction for (1) trafficking in morphine in excess of 28 grams and (2) conspiracy to traffic in morphine. The principal issue on appeal is whether the trial court erred in admitting tape recorded conversations involving hearsay statements of coconspirators. Two of these conversations occurred between a codefendant (Laney) and a police informant (Stansell) on dates prior to the date of arrest, November 29, 1985; one occurred between Moore, Laney and a codefendant, Elva Cooper, immediately after their arrests on November 29, 1985.
Section 90.803(18)(e), Florida Statutes (1985), provides for the admissibility of a statement by a coconspirator "during the course, and in furtherance, of the conspiracy." This statute further provides that "the conspiracy itself and each member's participation in it must be established by independent evidence" prior to the introduction of such statements.
In the instant case the state established by independent evidence Moore's presence at the scene of the drug transaction on November 29 and his participation in it. This was not enough. We recognize that a conspiracy may be proved by circumstantial evidence, Resnick v. State, 287 So.2d 24 (Fla.1973). And, in this case, we consider the circumstantial evidence of Moore's activities at the scene of the incident and his subsequent admission against interest immediately after arrest ("We rushed and made a mistake") sufficient to implicate him as a participant in the offense of trafficking and, marginally, party to the plan at some prior time. Nevertheless, there was no proof--independent or otherwise--that Moore was a party to a conspiracy to traffic at the time of the previously recorded conversations (i.e., those prior to November 29) between Laney and Stansell. As we read the statute, such proof was an essential predicate to the admission of the hearsay statements. Moreover, the statements made by coconspirators after completion of the crime, hence after the conspiracy, do not meet the statutory requirement that such statements, to be admissible, must be made "during the course, and in furtherance, of the conspiracy." See Wells v. State, 492 So.2d 712, 719 (Fla. 1st DCA 1986); see also Krulewitch v. U.S., 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).
We find that the convictions herein were tainted by the erroneous admission of the previously recorded conversations between Laney and Stansell, and the recorded conversations of Laney and Cooper. The conviction on trafficking below was dependent on the conspiracy conviction, inasmuch as the quantity of morphine involved in the conspiracy was constructively imputed to Moore in regard to the trafficking count. Accordingly, we reverse and remand for a new trial on both counts.
REVERSED and REMANDED.
DAUKSCH J., concurs.
SHARP, J., concurs specially with opinion.
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