Pickover v. State, 90-0089
| Decision Date | 22 May 1991 |
| Docket Number | No. 90-0089,90-0089 |
| Citation | 580 So.2d 287 |
| Parties | Richard M. PICKOVER, Appellant, v. STATE of Florida, Appellee. 580 So.2d 287, 16 Fla. L. Week. D1384 |
| Court | Florida District Court of Appeals |
Guy Seligman, Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.
Richard M. Pickover appeals his convictions and sentences for trafficking in cocaine and conspiracy to traffic in cocaine. He argues, among other things, that the trial court erred when it denied his motion for judgment of acquittal because the state failed to produce sufficient evidence to prove the charges asserted against him. We agree, find this issue dispositive and reverse.
As a result of a three-day undercover operation the Hollywood Police Department, assisted by a confidential informant, arranged to purchase two kilos of cocaine from Sherri Register ("Register"). Arrangements were made for the transaction to take place at Register's home at 10:00 A.M. on December 8, 1988. Shortly before 10:00 A.M., appellant arrived at the Register home. He parked his van in the driveway, left its doors open revealing the presence of tools, and entered the home carrying a large toolbox. He testified that approximately ten days earlier he had scheduled an appointment for that date to repair the sink in the Register home. Appellant also testified that he began working on the sink and found that the garbage disposal was clogged. He removed the disposal, made the necessary repairs and replaced it. He discovered that the wiring to the garbage disposal needed repair and while repairing it heard loud noises and screams from the other part of the house. As he attempted to remove himself from underneath the sink, police officers entered the room, placed a gun at his head and arrested him.
The state relies on the testimony of a police officer who stated that shortly before 10:00 A.M. he had contacted Register to confirm the drug transaction and that she informed him that the drugs were not there but would arrive within a short time. When the officer arrived at 10:00 A.M. he saw appellant's van and noticed the tools inside. When he entered the home, the officer heard the noise of dishes being moved about in another room. The officer testified that the following events then took place:
A. Like I said I was asking--Sherri was inquiring about the money and I was inquiring about the cocaine. So like I say I was more pushy, I got to see the cocaine first.
Q. What did she do?
A. She went into the kitchen area and there were whispers and then she came out, and as she came out right by the kitchen door in between the I guess it's the living room and dining area there is table or a wall, like a half wall, half table, she picked up a plastic bag off of that table, walked over to where I was standing and dropped it on the chair.
There was a chair in the middle of the room that I was standing by. She dropped it in the chair. As I went to open up the bag she said something to me like, no prints, don't touch it, no prints.
Q. What did you do or what did you say?
A. I said, oh, I would like to look inside, I would like to make sure there is more in there than just tape. Can't I just peel back a little bit of tape?
Q. And did she tell you that you can do that at that particular time?
A. No.
Q. What did she do?
A. She walked around the kitchen area again, she didn't go into the kitchen, she only took a few steps away and she said he wants to look at it, something to the effect he wants to take a look at it.
Q. And were you able to hear what the other person in the kitchen says?
Q. Was it a male voice or female voice in the kitchen that said it's okay?
A. It was a deeper voice. If I gave it much thought I probably would have said it was a male.
Q. And after the male voice states it's okay, what does the Defendant Register do?
A. She takes a couple of steps back over to me and she says knock yourself out or knock your socks off, I think was knock yourself out. I opened up the bag and I peeled back the tape and looked to see inside that it was cocaine.
(emphasis added). After a prearranged signal, officers entered the house, found appellant on the kitchen floor surrounded by tools, and arrested him. Neither the investigating officers nor the confidential informant had ever heard of or met appellant prior to his arrest.
Appellant argues that the state has failed to present any direct evidence connecting him with the drug transaction and that the state relied upon a "pyramiding" of inferences in order to establish its case. The state argues that the undercover officer's testimony, that a voice from the kitchen responded to Register's statement with words to the effect that "It's okay," or "No problem," constituted direct evidence of appellant's involvement in the drug transaction. The state also relies on inferences that may be drawn from the following circumstantial evidence: during the undercover operation, Register made a telephone call, out of the presence of the officers, to an unidentified number alleged by the state to be appellant's beeper; appellant arrived at the house shortly after the undercover agent's telephone conversation with Register wherein she stated the drugs had not arrived but would arrive shortly; and appellant's presence on the premises when the drug transaction took place. The record shows that the police failed to determine whether Register called appellant's beeper. Further, the above quoted testimony contradicts the state's assertion that Register brought the cocaine out from the kitchen. We also note Register's testimony that allegedly during the night before the transaction the confidential informant came to Register's home and left a package, later revealed to contain cocaine.
It is well settled that trafficking in cocaine requires evidence that the accused had knowledge of the nature of the substance. See Way v. State, 475 So.2d 239 (Fla.1985); Pennington v. State, 526 So.2d 87 (Fla. 4th DCA 1987), approved, 534 So.2d 393 (Fla.1988). Further, conspiracy to traffic, under section 893.135(5), Florida Statutes (1989), requires a showing of both an agreement and the intention to commit an offense. See King v. State, 104 So.2d 730 (Fla.1957); Voto v. State, 509 So.2d 1291 (Fla. 4th DCA 1987); Manner v. State, 387 So.2d 1014 (Fla. 4th DCA 1980); see also Lopez v. State, 535 So.2d 666 (Fla. 4th DCA 1988). The only evidence purporting to supply these essential elements is the alleged ambiguous conversation between Register and an unidentified, but probably male, voice emanating from the kitchen. This court has previously held that presence at the scene of a drug transaction alone will not supply the requisite elements to sustain trafficking and conspiracy convictions.
In Pennington, supra, an undercover narcotics investigation resulted in the defendant's arrest. The undercover officer's only contact with the defendant came on the day of the drug transaction which took place in a grocery store parking lot. The officer testified that a Dodge automobile arrived twice with codefendant Voto as a passenger. Both times Voto exited the vehicle to speak with Steffey, another codefendant and the one who organized the drug deal. The officer could not see to identify the driver of the Dodge. When the Dodge arrived for the third time, Pennington got out, approached the officer and said, in reference to a nearby Buick, "It's in the white...
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...a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Pickover v. State, 580 So.2d 287, 290 (Fla. 4th DCA 1991)(quoting State v. Law, 559 So.2d 187, 188-89 (Fla. 1989)). Furthermore, "[t]he question of whether the evidence fails t......
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