Wilson v. State, 85-1692

• Decision Date: 03 July 1986
• Docket Number: No. 85-1692,85-1692
• Citation: 11 Fla. L. Weekly 1487,490 So.2d 1062
• Parties: 11 Fla. L. Weekly 1487 James Edward WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1062

490 So.2d 1062

11 Fla. L. Weekly 1487

James Edward WILSON, Appellant, v. STATE of Florida, Appellee.

No. 85-1692.

District Court of Appeal of Florida Fifth District.

July 3, 1986.

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

The issue on this appeal is whether the trial court erred by allowing in Williams rule ¹ evidence concerning another offense. Appellant, James Edward Wilson (Wilson), was found guilty by a jury of delivery of cocaine and possession of cocaine arising from a sale of the substance on March 18, 1985.

During its opening statement at trial, the state mentioned to the jury that Williams rule evidence would be presented "in order for you to conclude the identity of the defendant, in order for you to conclude that the person that sold Officer Dyer cocaine is the same person that is in this courtroom today." The defense objected to this statement, claiming that such evidence would be presented to show bad character or propensity on the part of the defendant, and that there were not sufficient unique circumstances to render it of a character to be admissible under Williams. The court overruled the objection, stating that "the uniqueness of the collateral crime is the fact that it was the same substance sold in very much the same way, out of the same location."

Fred Dyer, of the Orlando Police Department, testified that he purchased two bags of cocaine from Wilson at 400 N. Parramore Street, Apartment No. 9, on March 18, 1985, for $20.00. Dyer testified he was in the apartment for about three to five minutes, that he could see Wilson clearly, and there was absolutely no doubt in his mind as to the identity of the seller.

The Williams rule testimony objected to on this appeal came during the testimony of Victor Thomas, of the Orange County Sheriff's Department, who testified he went to 400 N. Parramore Street, Apartment No. 2, on January 31, 1985, in an attempt to buy cocaine from one James Edwards. Thomas identified the defendant as "James Edwards," and stated that he purchased cocaine from him for $25.00. Thomas also testified that he was told by the people who later moved into Apartment No. 2 that Edwards had moved upstairs to Apartment No. 9 sometime between January 31 and March 18, 1985.

Appellant contends the trial court erred by allowing in this testimony as Williams rule evidence. The state counters that the evidence was properly presented to the jury as relevant to the issue of the defendant's identity and to his knowledge of the presence of a controlled substance in the items sold to the undercover officer.

The Williams rule has been codified in section 90.404, Florida Statutes (1985), which provides, in pertinent part:

(2) OTHER CRIMES, WRONGS, OR ACTS.--

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Similar fact evidence is admissible if relevant to a fact in issue, even though it also points to the commission of a separate crime. Such evidence is inadmissible, however, if its sole relevancy is to establish bad character on the part of the accused. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983). A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. In order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant. Peek v. State, 488 So.2d 52 (Fla.1986); Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). The admission of improper collateral crime evidence is "presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged." Peek, 488 So.2d at 55, quoting Straight v. State, 397 So.2d 903, 908 (Fla.1981).

In the instant case, the Williams rule evidence consisted of testimony of an undercover officer that he bought a quarter piece, or $25.00 worth of cocaine, in a foil packet from the defendant at 400 North Parramore Avenue, Apartment No. 2, on January 31, 1985. The case for which the defendant was being tried concerned an undercover buy from the defendant in Apartment No. 9 of the same address, for two foils of 1/10 gram each of cocaine, on March 18, 1985. No unusual circumstances or conditions were alleged or shown for either drug buy and, thus, the admission of the evidence for identity was error. See also Malcolm v. State, 415 So.2d 891 (Fla. 3d DCA 1982); Leonard v....