Parker v. State, 93-1441
| Decision Date | 19 August 1994 |
| Docket Number | No. 93-1441,93-1441 |
| Citation | 641 So.2d 483 |
| Parties | 19 Fla. L. Weekly D1759, 19 Fla. L. Weekly D1893 Don Q. PARKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David S. Glicken, of Law Office of David S. Glicken, P.A., Orlando, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara Arlene Fink, Asst. Atty. Gen., Daytona Beach, for appellee.
Don Q. Parker was convicted of trafficking in cocaine found under the passenger seat of a vehicle which was in his sole possession. He was the driver and only occupant. He raises three points on appeal: pretextual stop and invalid consent; inadequate proof of knowing possession; and prosecutorial misconduct. We affirm.
The officer testified that he stopped the vehicle because it had an obscured license tag and was being driven erratically. Parker claims he was stopped merely because he was a black man driving north in Brevard County. This was a factual dispute decided adversely to Parker. See Esteen v. State, 503 So.2d 356 (Fla. 5th DCA 1987); Spann v. State, 512 So.2d 1106 (Fla. 5th DCA 1987). Once stopped, Parker does not contest that he consented to the search. He urges, however, that he was coerced into giving his consent because he was detained in cold weather (he was wearing a short-sleeved shirt) for nearly an hour before he consented. But the officer testified that the consent was given within five or ten minutes of the stop. Again, that is a factual dispute determined by the finder of fact adversely to Parker.
Next, Parker urges that since he testified that earlier in the day his nephew had possession of his vehicle, there was an inadequate showing that he knew the cocaine was in his vehicle. But when a motorist is in the exclusive possession of a vehicle, his knowledge of cocaine found therein may be inferred. Cordero v. State, 589 So.2d 407 (Fla. 5th DCA 1991). Further, the jury is free to believe or disbelieve the defendant. The jury apparently did not believe that Parker's nephew had possession of his vehicle or, if he had such possession, that he left the cocaine behind. The question of exclusive possession is properly determined by the jury. Jordan v. State, 548 So.2d 737 (Fla. 4th DCA 1989).
Finally, Parker objects to the prosecutor's presentation of certain rebuttal testimony and to his comments made during closing argument. Parker took the stand and, after testifying that his nephew must have put the cocaine in his vehicle, claimed that he was "surprised" that the officer found cocaine in his vehicle. The following rebuttal took place [THE STATE]: When you found the cocaine in Mr. Parker's car did you show it to him?
Parker's surprise (or lack of surprise) was put in issue by Parker. As Professor Ehrhardt explains:
A witness may "open-the-door" during his testimony to impeachment concerning matters that would not otherwise be permissible. Under this concept, the adverse party may be able to introduce extrinsic evidence to contradict a specific factual assertion made during the testimony of the witness, even if it pertains to an otherwise collateral matter.
Ehrhardt, Florida Evidence Sec. 608.1 (2d Ed.1984). See also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (). In the instant case, Parker's affirmative answer that he was surprised when the cocaine was discovered opened the door for the State to impeach him on this point by rebuttal testimony to the effect that Parker's demeanor and actions did not indicate surprise. Further, once the defendant has taken the stand, the prosecution may prove his pre arrest and pre Miranda silence if such silence is inconsistent with his "at trial" testimony. See Rodriquez v. State, 619 So.2d 1031 (Fla. 3d DCA), rev. denied, 629 So.2d 135 (Fla.1993).
During closing argument, the prosecutor stated:
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