State v. Pickersgill

• Decision Date: 30 October 2019
• Docket Number: No. 4D18-3115,4D18-3115
• Citation: 284 So.3d 542
• Parties: STATE of Florida, Appellant, v. Jamaal PICKERSGILL, Appellee.
• Court: Florida District Court of Appeals

284 So.3d 542

STATE of Florida, Appellant,

v.Jamaal PICKERSGILL, Appellee.

No. 4D18-3115

District Court of Appeal of Florida, Fourth District.

[October 30, 2019]

Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee.

Forst, J.

The State appeals from a post-verdict judgment of acquittal. In response, Appellee Jamaal Pickersgill argues that this court lacks jurisdiction to consider the appeal. We disagree; we have jurisdiction. We further find the State presented competent substantial evidence to support the jury's verdict on all counts. Accordingly, we reverse.

Background

The State proceeded to trial against Pickersgill on charges of: (1) possession of tetrahydrocannabinols ("THC"); (2) possession of cannabis with intent to deliver/sell; and (3) resisting a police officer without violence. The trial evidence, taken in the light most favorable to the State, recounts the following events took place on the date of Pickersgill's arrest.

Coral Springs Police Officers Monzon and Gomez stopped the car in which Pickersgill was a passenger for making an abrupt U-turn in front of their vehicle (which caused Officer Monzon to slam on the brakes of the patrol car), and because the car's driver and front passenger (Pickersgill) were not wearing seatbelts. Pickersgill exited the passenger side of the car and, ignoring Officer Gomez's command to get back in the car, took off running. Officer Gomez chased Pickersgill for about forty yards until Pickersgill stopped. After taking Pickersgill into custody, the officers detected an odor of marijuana coming from the stopped car. Officer Monzon testified: "I wasn't even near the car and you could smell it. As soon as you open[ed] the door, it hit you like a ton of bricks."

The officers called for a K-9 unit, and the K-9 alerted to both rear doors of the vehicle and to the glove compartment. Seventy-two pre-rolled marijuana cigarettes ("blunts") and four bags of a green leafy substance were found in a backpack in the backseat, directly behind Pickersgill's seat. A wax substance was found in the glove compartment, directly in front of Pickersgill's seat.

The marijuana cigarettes were packaged in individual tubes and marked with a sticker that read, "RX package in compliance with state and local laws and regulations." One of these cigarettes field tested¹ positive for marijuana. A sample from each bag containing the green leafy substance was also field tested and all of the samples tested positive for marijuana. Later forensic tests confirmed that the wax substance recovered from the glove compartment contained THC.

Officer Monzon testified that Pickersgill voluntarily stated at the scene that the narcotics were his and, after being read his Miranda² rights, he then reiterated that "[e]verything in the vehicle" was his. Officer Gomez also testified that Pickersgill "was Mirandized on scene," waived his Miranda rights, and "took ownership" of the backpack, confessing that he was going to sell the marijuana. The officers did not obtain a written waiver of Miranda rights or record Pickersgill's statements at the scene.

Both officers testified that Pickersgill made further admissions after arriving at the police station. Officer Monzon noted that, while he was reminding Pickersgill of his Miranda rights, Pickersgill interjected before the officer could finish and again stated, "[e]verything in the car is mine." Officer Gomez also testified that, at the station, Pickersgill said "everything was his." According to Officer Monzon, the recording of Pickersgill's statements at the police station was erased before Monzon requested it. Monzon did not know that the recording would not be preserved.

Sean Grier, the driver of the car, was also taken into custody. He told police that he was helping Pickersgill "sell the narcotics in the vehicle." He was released at the time, having agreed to act as a confidential informant.

After the State rested its case, Pickersgill moved for a judgment of acquittal on all three counts. Pickersgill argued in part that there was "no direct evidence that [he] was in direct possession" of the narcotics. Specifically, he asserted that because the cannabis was found in a backpack in the back of the car, and the THC was found in the glove compartment, he did not have exclusive control over those items. And, absent a video of his statements or a written waiver of Miranda rights—there was "just an allegation by two officers" without corroboration.

In response, the State argued it proved both actual and constructive possession. The State pointed to Pickersgill's admissions to the officers that the drugs were his.³ The trial court remarked that Pickersgill "allegedly" made the admissions and the statements were not corroborated by anything other than the officers' testimony. Noting the absence of a written statement or recording, the judge commented, "there's inconsistency on the issue of whether he was Mirandized during these alleged admissions."

As arguments continued, the court again commented on the lack of corroboration of the officers' testimony: "There's no written document indicating a written admission.... He made these two confessions. All we have is the Detective[s] saying that he confessed." The State replied that the testimonial evidence sufficed and a written Miranda waiver is not required. Regarding the absence of a written waiver or video recording, the following discussion occurred:

THE COURT: And then we go back to the admission that it's not written. We have, according to your argument, two experienced officers that did not know that they had to request to preserve the tape of the -- where they did -- the holding cell, where they did the interrogation. Did not know that they had to preserve the tape. So, therefore, because I guess they didn't know whether the charges were going to be filed, no one did anything. The evidence wasn't preserved. From two experienced police officers .

[THE STATE]: But, Your Honor, the evidence that the State can use in proving its case beyond a reasonable doubt doesn't have to be video evidence only. Testimonial evidence alone, even ... is sufficient.

THE COURT: But here you have two partners that are corroborating and they said the same, but, other than that and the best evidence would have been in fact, the video . I mean when people interrogate, there's usually a video tape. I have never heard a police department say we don't preserve it unless we're asked to preserve it. To me that is unbelievable .... An experienced detective and sergeant that they did not know that ... you have to specifically request to preserve the video tape. If in fact there was a confession. So, when you say there's no doubt, there's no doubt that the statement was made; there's a lot of doubt .

(Emphasis added). In response to the trial court's comments, the State noted that witness credibility is for the finder of fact to determine.

The trial court ultimately deferred ruling on the motion for judgment of acquittal, and Pickersgill rested without presenting evidence. Pickersgill then renewed his motion for judgment of acquittal. The court stated that, if it disregarded Pickersgill's alleged admissions, there would be an issue as to whether the State had met its burden, as proximity to narcotics and flight alone are insufficient to prove constructive possession. In response, the State maintained that "the Court cannot put aside the defendant's admission at this point."

The trial court also expressed concern that only a field test was conducted on the cannabis. The State responded with case law holding that a positive field test and testimony from an officer experienced in recognizing marijuana is sufficient. (Mistakenly) noting the absence of testimony that Officer Gomez had specific narcotics training, the court remarked, "[t]he Judge is supposed to consider the credibility of the witness, the experience of the witness ." The State replied that Officer Gomez had testified to his narcotics training. Subsequently, the trial court denied the motion for judgment of acquittal on all counts.

The jury retired to deliberate. When the bailiff advised that the jury had reached a verdict, the jury was returned to the courtroom. After the court reviewed the verdict, the court directed the jury back to the jury room. Once the jury exited the courtroom, the court stated that it was "not going to accept the verdict of the jury," and that it was going to "reconsider [its] ruling ... and ... grant the defense motion for judgement of acquittal." The court clarified that it was reconsidering the second motion that was made at the conclusion of the defense case.

The court then recited the jury's verdict: guilty as charged on count 1 (possession of THC) and count 3 (resisting without violence), and guilty of the lesser included offense of possession of cannabis on count 2. The jury was polled, and the verdict was confirmed. Subsequently, the trial court entered a felony judgment of acquittal on all counts. This appeal followed.

Analysis

A. This Court's Jurisdiction

Pickersgill's sole argument in his answer brief is that this court lacks jurisdiction over the State's appeal. Pickersgill acknowledges that the State's ability to appeal is statutory, and the State may appeal "[a] ruling granting a motion for judgment of acquittal after a jury verdict ." § 924.07(1)(j), Fla. Stat. (2018) (emphasis added); see also Fla. R. App. P. 9.140(c)(1)(E). However, Pickersgill submits that because the trial court granted his motion for judgment of acquittal before, not after, the jury verdict was recorded, the order granting the motion is not reviewable on appeal. Pickersgill notes the absence of case law expressly defining what "after a jury verdict" means in the context of the statute, but submits that, "under the...