FLEURIMOND v. State

10 So. 3d 1140, 2009 Fla. App. LEXIS 6236, 2009 WL 1456743
CourtDistrict Court of Appeal of Florida
DecidedMay 27, 2009
Docket3D07-2183
StatusPublished
Cited by15 cases

This text of 10 So. 3d 1140 (FLEURIMOND v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FLEURIMOND v. State, 10 So. 3d 1140, 2009 Fla. App. LEXIS 6236, 2009 WL 1456743 (Fla. Ct. App. 2009).

Opinion

RAMIREZ, J.

Augustin Fleurimond appeals his final judgment of conviction and sentence. We reverse because the State violated the order in limine and made improper closing arguments, thus the trial court erred in not sustaining Fleurimond’s objection to the police detective’s testimony and in denying his motion for mistrial. In addition, we also conclude that Fleurimond’s four convictions for possession and trafficking by possession of a single quantum of cocaine inside the house violated the protection afforded by the Double Jeopardy Clause.

I.

Fleurimond was charged by information with two counts of trafficking in cocaine and two counts of sale of cocaine within 1000 feet of a school. Co-defendant Gerald Lelieve was charged in the same information with one count of trafficking in cocaine. Fleurimond and Lelieve were tried together in a jury trial on June 2007.

Before trial, Fleurimond’s counsel made a motion in limine requesting that the State be prohibited from introducing evidence concerning prior drug activity at the house where the events in this case occurred. The State did not oppose the motion, and the trial court granted it.

During the trial, the State called its first witness, Detective Gayle, concerning her work as a member of the crime suppression unit. The trial judge sent the jury to the jury room and asked the prosecutor if she had instructed the law enforcement officers regarding the motion in limine which had been granted. The prosecutor told the judge that she had, in fact, instructed the witnesses, including Detective Gayle and Detective Fernandez, but that she could not state if she had instructed Detective Belfort.

The State called Detective Belfort to the stand after Detective Gayle finished testifying. Detective Belfort described the location where the events took place and then the prosecutor elicited the following testimony:

Q. He can sit down. Now, at about 7:00 o’clock p.m., what was it that happened?
A. We were set up at the location. We were doing a — had a surveillance at our location with — that we knew to be selling narcotics.

Defense counsel objected and moved for a mistrial based on Detective Belfort’s viola *1143 tion of the motion in limine. After the testimony was read back for the judge, counsel argued that it constituted improper “high crime area” testimony. The judge asked the prosecutor if she had obeyed the court’s prior order to instruct all officers to not give any such testimony. The prosecutor admitted that she had not complied with the court’s order. When asked why she had disobeyed the court’s order, the prosecutor responded, “Judge, I mean, I absolutely — the only — you are right.” The prosecutor then argued that the testimony was not improper because the testimony only explained why the detectives were at that particular house. The judge deferred ruling on the motion for mistrial and indicated that he was not sure that he disagreed with the State’s argument that the testimony was relevant to explain why the detectives were at the house. At the close of all the testimony, the court denied the motion for mistrial.

The evidence adduced at trial indicated that at approximately 7:00 p.m. on October 11, 2006, police detectives set up surveillance at the house in question. Detectives Gayle and Belfort parked a surveillance van on the side of the road in front of the house, ten to fifteen feet from the front door of the house. Detective Gayle testified at trial that both she and Detective Belfort watched the house from the back of the van where they were both lying on them stomach on a couch looking out the back window. Detective Belfort testified at trial that he first watched the house from the driver’s seat of the van and then moved to the back of the van. Detective Gayle testified that the detectives did not have binoculars inside the van. Detective Belfort testified that the detectives always had a pair of binoculars in the van and that he had used binoculars on that day.

After watching the house for a period of time, Detective Gayle observed a white male approach the front door of the house and knock on the door. A man opened the door, took money from the white male, and closed the door. At trial, Detective Gayle identified the man who opened the door and took the money as Fleurimond. Detective Gayle saw Fleurimond return to the door after a few seconds and hand a small item to the white male. The white male walked away from the house a short distance and then entered another house nearby. They did not approach the white male because it would have shut down the surveillance operation.

Detectives Gayle and Belfort next observed a burgundy van driven by a black male park across the street from the house. The black male got out of the van, walked across the street, and knocked on the front door of the house. A man opened the door and the black male gave him some money. Both detectives identified the man who opened the door as Fleurimond. The detectives testified that after Fleurimond took the money from the black male and moved away from the door, Fleurimond returned to the door and gave the black male a small item. The black male returned to his van and drove away. The detectives contacted other units on the scene by radio and advised them to stop the burgundy van. When the detectives stopped the van, they recovered cocaine and marijuana from the van.

Detectives Gayle and Belfort then observed a white van drive up and park across the street from the house. A black male wearing a red shirt and jeans got out of the white van and walked up to the front door of the house. At trial, both detectives identified Lelieve as the man who got out of the white van and walked up to the front door of the house. According to the detectives, Fleurimond opened the door, Lelieve gave him money, and Fleurimond moved away from the door. *1144 After a few seconds, Fleurimond returned to the door and handed Lelieve a plastic bag which Lelieve put in his waistband. Lelieve drove off in the white van and the detectives advised the other units what they had seen.

Detective Gonzalez responded to the call put out by the surveillance detectives and stopped a white van being driven by Le-lieve two minutes after he received the call. A few other passengers were inside the van. Gonzalez testified that it was “nighttime” and dark when he stopped the van. Gonzalez arrested Lelieve and impounded a plastic bag containing 49.9 grams of cocaine from his groin area.

After Lelieve was taken into custody, officers moved in on the house being watched by Detectives Gayle and Belfort. They entered the home and Detective Edward Joseph found Fleurimond inside the bathroom. No one else was inside the house. No contraband was found on Fleu-rimond. A drug detection dog found a white substance on the floor of a bedroom at the rear of the house. Inside a closet in that bedroom, on the top shelf, Morgan found a plastic bag containing a “cookie” which Morgan described as cocaine used to make crack cocaine. The weight of the cocaine found on the shelf in the closet was 36.2 grams. The officers also found a wooden box containing drug paraphernalia inside a cabinet in that same bedroom.

Fleurimond testified at trial that he did not live at the house where he was arrested.

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Cite This Page — Counsel Stack

Bluebook (online)
10 So. 3d 1140, 2009 Fla. App. LEXIS 6236, 2009 WL 1456743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleurimond-v-state-fladistctapp-2009.