Lowry v. State

963 So. 2d 321, 2007 WL 2330322
CourtDistrict Court of Appeal of Florida
DecidedAugust 17, 2007
Docket5D05-1808
StatusPublished
Cited by5 cases

This text of 963 So. 2d 321 (Lowry 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
Lowry v. State, 963 So. 2d 321, 2007 WL 2330322 (Fla. Ct. App. 2007).

Opinion

963 So.2d 321 (2007)

Donald Stanford LOWRY, Appellant,
v.
STATE of Florida, Appellee.

No. 5D05-1808.

District Court of Appeal of Florida, Fifth District.

August 17, 2007.

*322 Mary Elizabeth Fitzgibbons of Quinones, Fitzgibbons, Pfister & Oliver, P.L., Kissimmee, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, J.

Donald Stanford Lowry requested rehearing on the basis that counsel did not understand the reason for our per curiam affirmance. To assist counsel's understanding and reiterate the standard for filing a motion for rehearing, we withdraw our previous opinion and enter this extended opinion that affirms Lowry's conviction and sentence.

Lowry was convicted for trafficking in 28 grams or more of heroin. On appeal, he claimed the court erred by: (1) admitting testimony about a drug deal that never occurred; (2) admitting into evidence tapes and translations of two phone calls between Lowry and an informant; (3) dismissing a juror who expressed doubt about police credibility based on her knowledge of the scene; (4) not dismissing a juror based on his knowledge of Spanish; (5) *323 permitting the State to strike "nearly all"—that is, two—jurors who may have been Hispanic without determining the State's motive; and (6) permitting the State to offer opinion in closing and to mischaracterize evidence. We outline the facts, then fully address seriatim the six grounds for relief raised in Lowry's appeal.

FACTS

Summary of crime.

Agent George Duke, Officer Edwin Santos, and a confidential informant ("informant") testified about the heroin deal for which Lowry was convicted. The informant made two monitored, recorded telephone calls on 14 August 2003 in which the informant and Lowry set up a drug deal. That night, the informant and Santos drove to a parking lot and met Lowry. The informant exited Santos' car, received 30 grams of heroin from Lowry, and reentered Santos' car. Santos retrieved $3,000 from his trunk and gave it to the informant, who returned to Lowry's car, gave Lowry the money, and returned to Santos' car. The informant was searched before and after the deal. The police did not immediately arrest Lowry because they were trying to set up a future transaction to net other co-conspirators. The deal did not occur, and the police arrested Lowry in September 2003. Lowry conceded at trial that he spoke with the informant on 14 August 2003, and met him in a parking lot where the informant twice entered and exited his vehicle, but denied that a drug deal occurred.

The future drug deal.

Before trial, Lowry moved to exclude evidence that the police tried to set up a future deal. The State wished to introduce testimony about the reason the police did not immediately arrest Lowry, but allowed him to leave with the $3,000 from the deal. The court ruled their intent to set up another deal for the following week was relevant to their failure to arrest Lowry immediately. Accordingly, Duke testified he did not stop Lowry because that was the first of two heroin purchases that the police attempted to make; the second was going to be for 60 grams of heroin. This was a "buy/walk," where the police make a controlled purchase of narcotics and allow the individual to leave to further develop the investigation and possibly identify other co-conspirators. The jury heard that Lowry was not arrested the first night, but no other deal occurred; rather, he was arrested on 4 September 2003.

Tapes and transcripts.

Before trial, Lowry requested that, when the State presented any translation, they also play the taped conversations. At first, counsel did not admit the transcripts were accurate, but expressly did not object to them: "I am not . . . stipulating that those transcripts are accurate. What I am doing is not objecting to them presenting them to the jury, because I think—while I see things that I may think are a mistake . . . I'm not gonna object to it." The State offered to have the translator testify, but defense counsel specifically stated that was unnecessary. Counsel requested that the tapes be presented in addition to the transcripts. He clarified to the court he did not dispute their accuracy: "Actually, I'm gonna argue that they're accurate, the way they're written."

Agent Duke testified about the monitored phone calls between the informant and Lowry. Agent Duke dialed the number, recorded the conversations, and created the tapes, that accurately depicted the calls. One of the taped voices was the informant's. Lowry objected that the tapes were not relevant because the other *324 voice was unknown, but the court admitted the tapes, subject to being "tied up" by other witnesses. The informant testified the other voice was Lowry's. With that predicate, Lowry did not object to the tapes and twice stated he had no objection to the translations. The court announced its intention that, because both sides agreed the transcripts should go to the jury, the court would admit them into evidence; Lowry did not object. After the tapes were played for the jury, the informant testified about the conversations and the meaning of various phrases within them.

In his opening statement, defense counsel suggested that neither of the recorded voices was Lowry's. On cross-examination, Lowry first avoided conceding his voice was on the tape, but remembered "some of what [the tapes] were talking about." He conceded that the portion of the voicemail message heard on the tapes was his. He later admitted the voice "could have been" his and, later still, believed that it was his voice after all.

There was little discussion of any inaccuracies in the translations and transcripts and none concerning any inaudible portions. There was some confusion regarding whether the informant was the first or second voice in the second transcript. Lowry argued that, where one transcript said the name "Rene" had been used, he actually thought the tape had said "Danny."[1] Also, the transcript erroneously translated "after" to mean "if."

One juror's dismissal.

Santos testified that the grocery store where the deal occurred faced north. After the first day of testimony, one juror raised an issue heard outside the rest of the jury's presence. She lived near the store and thought the officer said it faced south, which led her to distrust the officer. She said it would be difficult to put aside her independent knowledge and decide the case only on the testimony and said she could no longer be fair and impartial. The court noted that both sides previously agreed to challenge for cause.[2] It discussed several cases concerning jurors' independent knowledge and concluded it had a reasonable doubt about her ability to disregard her personal knowledge and follow the court's instructions. Accordingly, over Lowry's objection, the court dismissed the juror and seated the alternate juror in her place.

A Hispanic juror's retention.

After the court decided to dismiss the previous juror, defense counsel moved to dismiss a Hispanic juror who, because he spoke Spanish, also had "independent knowledge"; Lowry said "the same argument" that applied to the previous juror applied to him. The court pointed out that Lowry asked the jury in his opening statement to use their knowledge of Spanish, but said it would caution the Hispanic juror not to share his own translation with the other jurors or use it in deliberation.

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Cite This Page — Counsel Stack

Bluebook (online)
963 So. 2d 321, 2007 WL 2330322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-v-state-fladistctapp-2007.