Judd v. State

781 So. 2d 440, 2001 WL 195080
CourtDistrict Court of Appeal of Florida
DecidedFebruary 28, 2001
Docket4D99-2942
StatusPublished
Cited by5 cases

This text of 781 So. 2d 440 (Judd 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
Judd v. State, 781 So. 2d 440, 2001 WL 195080 (Fla. Ct. App. 2001).

Opinion

781 So.2d 440 (2001)

Caroline P. JUDD, Appellant,
v.
STATE of Florida, Appellee.

No. 4D99-2942.

District Court of Appeal of Florida, Fourth District.

February 28, 2001.
Rehearing Denied March 29, 2001.

*441 Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

*442 Robert A. Butterworth, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.

WARNER, C.J.

In contesting her conviction for possession of cocaine with intent to sell, appellant makes two claims of error which we conclude necessitate reversal for a new trial. First, the trial court erred in refusing to require an investigating detective to reveal the location from which he conducted surveillance of appellant. Because the record evidence fails to sustain the "personal safety" exception to the state's duty to disclose information a defendant needs to fully cross-examine a state witness, we reverse. Second, the trial court erred in excluding a nonsequestered surrebuttal witness without a Richardson[1] inquiry and without the inquiry regarding the potential harm and prejudice caused by the violation of the rule against sequestration as required under Dumas v. State, 350 So.2d 464 (Fla. 1977).

I. Facts

Conducting surveillance on a residence in West Palm Beach, Officer Weeks of the West Palm Beach Police Department spotted appellant walking out of her apartment and down the street. She looked around and then walked to a saw palmetto tree, placing an object from her right pocket into a palm frond of the tree. The officer suspected other people of putting drugs in that same tree. Appellant then sat down in front of her apartment. After witnessing appellant have a conversation with a man who had been raking leaves, the officer observed her return to the tree and walk back to the place where she had been sitting. She then handed the man an object which he placed in his mouth and then left.

About one-half hour later, a woman approached appellant and they conversed. Appellant went back to the palmetto again, returned, and the two women engaged in a hand to hand transaction. Soon after, another woman approached appellant and did the exact same thing. Appellant then left the area on a bicycle. Based upon his experience, the officer believed these were drug sales.

The officer instructed other officers to stop the last woman and appellant. However, no drugs were found on either one of them. Another officer searched the palmetto and found a container with cocaine rocks inside.

When the officer was cross-examined by the defense, he was asked his location while conducting the surveillance. The officer replied:

For the safety of the location, in which we have people that help the police department out, to protect their location and protect their property, we'd rather not give that location to the individuals who are actually selling drugs from those locations, for the simple fact that we're afraid that something might happen to that property.

Appellant objected because knowledge of the officer's location was necessary to cross-examine his ability to observe the events about which he testified. The court permitted appellant's counsel to inquire about the general ability of Weeks to observe the surrounding area, including the distance between him and the tree where the activity occurred and whether he was on the same level as appellant when observing her, but it refused to require the officer to disclose his specific location. During redirect, the officer testified that he was in a private residence at ground *443 level looking through an open window with an unobstructed view. He stated that he was approximately one hundred feet away.

Appellant testified in her defense and denied that the drugs found in the palmetto belonged to her. She drew a diagram of her lot for the jury and explained that her car was parked next to the tree on that day and that there was also a fence next to the tree and car. Next to the fence was her neighbor's house with windows right by the tree and fence.

On the day in question, appellant exited her house with her dog and had a conversation with the man raking the yard. She was eating some jelly beans she held in her hand and gave some to the man which he put in his mouth. Appellant then put the jelly beans in her pocket. Another woman approached, but appellant denied coming within five or ten feet of her. The third woman who came about had asked for money, and appellant eventually gave her some money.

Appellant testified that the police likely thought that she was going into the tree because the tree is next to the car, fence, and her neighbor's window. On that day, appellant spoke with her neighbor approximately three times through the window. Additionally, appellant stated that the tree (a saw palmetto) was very bushy, and if someone is behind the tree, no one can see what they are doing. She specifically testified that if someone was across the street they could not see anything but the back of the car.

The state recalled Officer Weeks in rebuttal, who testified that he was "almost positive" there was no car parked next to the tree on the day in question. He also stated that from where he was positioned he could see what was going on behind the tree, including what he observed appellant doing.

Appellant sought to call an unlisted witness, who had been listening to the trial. This witness would have testified that there was a car in front of the house on that day, contradicting the officer's testimony. The state pointed out that appellant's counsel had invoked the rule of sequestration at the commencement of the trial. Because of the invocation of the rule, the court refused to allow the witness to testify. The case then concluded, and the jury found appellant guilty of the charge, prompting this appeal.

II. Disclosure of Surveillance Location

Appellant's objection to the trial court's ruling preventing counsel from inquiring as to the officer's specific surveillance location is grounded on the defendant's right to cross-examination. Without knowing the officer's exact location, "[t]he trial court's ruling required defense counsel to trust—not test—Officer Weeks' testimony." (Initial Brief p. 13). While the officer claimed his view was unobstructed, appellant testified that the tree and the car would have obstructed any view from across the street, which is where the officer's testimony implied that he was.

The state argues that the officer was not required to disclose his location based upon the "surveillance location privilege," citing State v. Moss, 648 So.2d 206 (Fla. 3d DCA 1994). In contrast, Johnson v. State, 595 So.2d 132 (Fla. 1st DCA 1992), disapproved on other grounds, Heuss v. State, 687 So.2d 823 (Fla.1996), holds that there was no privilege to refuse to reveal an officer's location, either by constitutional right, statute, or rule. These two cases can be reconciled on their facts. In Johnson, the officer refused to reveal his location based upon his concern for his personal safety should he decide to use the same location again. There was no concern in that case for the protection of other persons *444 or property. In Moss, on the other hand, the officer was viewing the defendant's activities from inside a private residence, and the police had promised that the owner's identity would not be revealed.

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Cite This Page — Counsel Stack

Bluebook (online)
781 So. 2d 440, 2001 WL 195080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judd-v-state-fladistctapp-2001.