Gaines v. State

406 So. 2d 523
District Court of Appeal of Florida·Decided November 4, 1981·No. 79-2332·Published·Cited by 11 cases

Opinion

406 So.2d 523 (1981)

Dr. Gartrell GAINES, Appellant,
v.
The STATE of Florida, Appellee.

No. 79-2332.

District Court of Appeal of Florida, Fourth District.

November 4, 1981.
Rehearing Denied December 23, 1981.

*524 Rendell Brown of Brown & Weaver, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

DANIEL S. PEARSON, Associate Judge.

Gartrell Gaines appeals his convictions for (a) aiding and abetting the possession of hydromorphine, a controlled substance commonly known as Dilaudid, with intent to distribute and (b) aiding and abetting the possession of the same substance by misrepresentation, fraud, forgery, deception or subterfuge, violations of Section 893.13(1)(a) and 893.13(3)(a)1, Florida Statutes (1977). The evidence was sufficient to establish that Gaines on or about June 21, 1978, aided and abetted others in unlawfully acquiring Dilaudid by verifying to one Gene Farley, a pharmacist, that a prescription for Dilaudid made out to one Willie Kendricks was genuine, when in truth and fact, as Gaines well knew,[1] the drug had never been prescribed by Gaines for Kendricks, and Gaines had not signed his name on the prescription form which bore his printed name, address and phone number.[2]

Only two points raised by Gaines require discussion. The first is his contention that he was entitled to a judgment of acquittal because the State's proof which showed that the Kendricks prescription was actually filled on June 22, 1978, varied from the date in the information and statement of particulars; and his alternative contention that he was entitled to have the jury instructed that the State was required to prove beyond a reasonable doubt that the *525 crime was committed on June 21, 1978, not, as it was instructed, on a date reasonably near the date alleged in the information.[3]

The information alleged that Gaines committed the substantive offenses charged "on or about June 21, 1978." Gaines moved for a statement of particulars requesting, inter alia, the State to set forth the time and date of the alleged offenses. The State's written response was that the offenses occurred between "see the dates set forth in the Information." Thus, by reference, the statement of particulars was that the offenses were committed on or about June 21, 1978.

Gaines did not pursue the matter further, for example, by requesting better particulars or asking the court's aid in compelling a more exact answer. Later, the co-defendant, Fowler, requested the same particulars. During a hearing on Fowler's motion, the prosecutor, mistakenly referring to the date appearing on the prescription form, stated that the offenses occurred on June 21, 1978. Gaines moved for acquittal asserting that the prosecutor's response to Fowler should be considered a response to Gaines, and that therefore, there existed a variance between the date stated and the date proved. That motion denied, Gaines requested that the jury be instructed that the State be required to prove that the offenses occurred on June 21, 1978. During the argument before the trial court, Gaines acquiesced in the statement of Fowler's counsel, "We knew from the beginning of this case they had absolutely no evidence on June 21st, 1978. They had no evidence of these overt acts being committed on June 21st, 1978." Finally, there is nothing about the difference between June 21 and June 22 which in the circumstances of this case serves to prejudice Gaines' case in the slightest way.

The necessary premise to Gaines' argument in support of the variance or the requested instruction is that he was advised by a statement of particulars that the offense was committed on June 21, 1978. Since the premise is false, Gaines' argument fails at the threshold. The only particulars furnished to Gaines referred him back to the information, which in turn advised him that the offense was committed "on or about June 21, 1978." He did nothing further about this non-answer. He did nothing to make himself the beneficiary of the prosecutor's offhanded response to Fowler's motion for particulars. Fowler's coattail, itself threadbare, certainly will not support Gaines. But even if, arguendo, we regard the statement to Fowler that the offense was committed on June 21, 1978, as a further statement of particulars to Gaines, Gaines, although past the threshold, finds no comfort from the law within. It is now abundantly clear that even where the date of the offense contained in the information is later particularized, where a lack of prejudice to the defendant affirmatively appears in the record, as it so clearly does here, a statement of particulars is not binding on the State. Hoffman v. State, 397 So.2d 288 (Fla. 1981), approving this court's decision in Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979).[4] Since Gaines was not *526 misled or embarrassed or prejudiced in his defense in any way by relying on the inconsequential date of June 21, 1978, the trial court was correct in denying his motion for judgment of acquittal and denying his requested instruction. Compare R.C.B. v. State, 374 So.2d 1168 (Fla. 2d DCA 1979) (date of offense significant where burglaries of same premises occurred within three-week period); Jackson v. State, 350 So.2d 808 (Fla. 2d DCA 1977) (date of offense significant where alibi defense directed to specific date charged in information); Mitchell v. State, 333 So.2d 89 (Fla. 1st DCA 1976) (date of offense significant where alibi defense directed to specific date charged in information); Smith v. State, 253 So.2d 465 (Fla. 1st DCA 1971) (date of offense significant where act of bribery occurred after proceeding before and vote by public official under statute requiring act to precede proceeding or vote).

Gaines' other point on appeal is that the trial court erred in denying his motion to suppress certain testimony of a witness, Gene Farley. This testimony, according to Gaines, was procured through suggestive police procedures and irreparably led to a misidentification of Gaines.

Gene Farley was a pharmacist employed by Wallace Pharmacy in Belle Glade, Florida, from 1974 to 1979. He testified that on June 22, 1978, he filled a prescription for four milligrams of Dilaudid, a Schedule II narcotic, for a Willie Kendricks. Since he was not familiar with Kendricks, Farley called the office of the prescribing physician, Dr. Gaines, to obtain a verification before filling the prescription. A woman answered, and Farley asked to speak to Dr. Gaines. Farley's testimony continued:

"A When Doctor Gaines came on the phone, I identified myself as to who I was and where I was and told him that I had a prescription presented to me to be filled for Dilaudid, four milligrams, for Willie Kendricks and I asked him if it was one of his prescriptions and it was an authorized prescription by him.
"Q All right, now, did you then proceed to fill that prescription?
"A Yes, sir, after he confirmed it.
"Q Okay. Have you had an occasion to call the office of Doctor Gaines and speak to Doctor Gaines in the past?
"A Yes, sir.
"Q And approximately how many times, over what period of time?
"A Oh, I would say six times within two years, three years.
"Q And during that period of time, in conversations tha

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