Wheeler v. State, 96-1199

• Decision Date: 02 April 1997
• Docket Number: No. 96-1199,96-1199
• Citation: 690 So.2d 1369
• Parties: 22 Fla. L. Weekly D840 Odell WHEELER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1369

690 So.2d 1369

22 Fla. L. Weekly D840

Odell WHEELER, Appellant, v. STATE of Florida, Appellee.

No. 96-1199.

District Court of Appeal of Florida,

Fourth District.

April 2, 1997.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant was convicted of sale and possession of a substance in lieu of cocaine and possession of drug paraphernalia. We reverse for a new trial because of improper police testimony concerning the cocaine-selling reputation of the area in which defendant was arrested and because of improper testimony about general behavior patterns of drug dealers.

Defendant was arrested as the result of a buy/bust operation wherein Detective Huffman posed as a cab driver and Detective Miller as his passenger. The defense at trial was that defendant had sold the detective two concrete rocks; he had never agreed to sell cocaine nor had he represented the rocks as such. See § 817.563, Fla.Stat. (1995); State v. Bussey, 463 So.2d 1141 (Fla.1985). Over defense objection, the trial court allowed Detective Miller to testify that the area where defendant was arrested had been selected for the undercover operation because it was known for crack cocaine sales:

The lead detective had given us a briefing and during that briefing he had told us that there were certain locations around Avenue D that were known to them for the sale of crack cocaine and based on prior operations that I had done with the Fort Pierce Police Department, I had personally bought crack cocaine from the area of avenue D 44 times. So I knew about where it would be.

In Beneby v. State, 354 So.2d 98 (Fla. 4th DCA), cert. denied, 359 So.2d 1220 (Fla.1978), this court reversed a conviction for possession of cocaine because of improper testimony that the neighborhood in which the defendant was arrested had a "reputation for narcotics" and was known to be inhabited by drug dealers. In Beneby, an officer explained why he had been in the area at the time of the defendant's arrest by stating:

Well, there had been several narcotic arrests made in that area; and the bar at 22nd and Sims has quite a reputation for narcotics in that area. That was the reason we went up there in that alley.

Id. at 99.

In Johnson v. State, 559 So.2d 729 (Fla. 4th DCA 1990), approved, 575 So.2d 1292 (Fla.1991), our court reversed a conviction where at trial the two arresting officers testified about their experience in narcotics arrests and that the location of the arrest had a reputation as a high-crime area. Illustrative of the testimony was the description of the neighborhood as "very well known for high school narcotics, prostitution to robberies and burglaries." Id. at 729. We held that characterizing a neighborhood as well known for narcotics is the "type of guilt by association trial tactic [that] has been universally condemned as constituting reversible error." Id.

Although the supreme court approved our decision in Johnson, the blanket condemnation of "bad neighborhood" testimony in Johnson and Beneby was limited in Gillion v. State, 573 So.2d 810 (Fla.1991). The supreme court held in Gillion that the mere identification of a location as a high-crime area does not result in undue prejudice to a defendant and a per se reversal in all cases.

In Gillion, the police officer testified only to what he had observed on the evening in question. This testimony, the supreme court observed, did not label the area as high-crime. Id. at 811. The supreme court distinguished the testimony concerning the officer's direct observations on the night in question from the impermissible testimony in Beneby, which had been based on past events and the general reputation of the neighborhood. ¹ The supreme court further distinguished Beneby by noting that the impropriety in Beneby had been compounded by the prosecutor's references to the reputation of the neighborhood in both the opening statement and closing argument. "Whether or not undue prejudice exists depends on the facts of each case." Id. at 812.

Following Gillion, our court reversed a conviction in Sherrod v. State, 582 So.2d 814 (Fla. 4th DCA 1991), where the police officer had referred to the area of arrest as a "high crime, high prostitution area." The improper testimony was highlighted in closing argument where the prosecutor alluded to the criminal character of the neighborhood. Id. at 815. Similarly, testimony that the arrest scene was known for drug activity was the basis for reversing a conviction for possession and sale of cocaine in Dorsey v. State, 639 So.2d 158 (Fla. 1st DCA 1994).

In Dorsey, as in this case, a plainclothes officer drove an unmarked car and attempted to purchase illegal drugs as part of a police bust/buy operation. At trial, the officer did not merely report his actual observations on the night in question, as in Gillion, but rather impermissibly characterized the area as one known for drug activity. Id. at 159. The first district correctly observed that subsequent to Gillion, case law has distinguished between "an officer's observations of presently occurring criminal activity and testimony simply characterizing an arrest area as a high crime area." Id. at 158.

In Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991), dismissed, 598 So.2d 78 (Fla.1992), the third district held that characterizing a location as a narcotics area went far beyond the mere reporting of observations made at or near the time of the arrest. "Evidence of this type, impugning the area's reputation, is introduced only to show bad character or propensity, and may unduly prejudice the jury." Id. at 935 (citing Beneby, 354 So.2d at 99).

In this case, the testimony was not based on the officer's observations on the night in question. To the contrary, the testimony concerned the officer's prior experience with cocaine purchases in the area and a briefing that had described the area as being known for the sale of crack cocaine. In closing argument, the prosecutor compounded the prejudicial effect by referring to the area as a known drug area:

And I submit to you that your common sense tells you that if an undercover officer is going to go into a known drug area and attempt to successfully buy drugs from someone who is selling drugs, that in order to be successful, he has to look act, walk, talk and behave like someone who is there to buy drugs.

Later on in the same argument, the prosecutor reiterated:

This is an area known for drug transactions.

Returning to this theme, the prosecutor stated:

And I would suggest to you that your common sense would tell you that the Defendant, who is obviously a user, and knows, you know, that he's in an area where drugs are bought and sold, I mean he's there trying to make the money to buy more for himself.

The argument to the jury was that because...