McKinney v. State

640 So. 2d 1183, 1994 WL 390761
CourtDistrict Court of Appeal of Florida
DecidedJuly 27, 1994
Docket92-03399
StatusPublished
Cited by22 cases

This text of 640 So. 2d 1183 (McKinney 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
McKinney v. State, 640 So. 2d 1183, 1994 WL 390761 (Fla. Ct. App. 1994).

Opinion

640 So.2d 1183 (1994)

Horace McKINNEY, a/k/a Robert Johnson, a/k/a Glenn Albert Childs, Appellant,
v.
STATE of Florida, Appellee.

No. 92-03399.

District Court of Appeal of Florida, Second District.

July 27, 1994.

James Marion Moorman, Public Defender, and John S. Lynch, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.

ALTENBERND, Judge.

Horace McKinney appeals his convictions for sale and possession of cocaine within 1000 feet of a school and for tampering with evidence.[1] We agree with Mr. McKinney that his unsuccessful efforts to swallow a bag of cocaine at the scene of his arrest constitute no more than attempted tampering with the evidence. Although we conclude that the state proved a prima facie case of sale and possession of cocaine near a school, we reverse and remand the cause for a new trial on all three charges because the trial court committed an Allen charge error.

On November 13, 1991, an undercover officer was assigned to buy cocaine in an area near the Lakeland Christian School. Mr. McKinney allegedly approached the officer's vehicle. When the officer asked for a "twenty," Mr. McKinney pulled out a small plastic bag, broke off a piece of cocaine, and gave it to the officer in exchange for a twenty dollar bill. After the sale was completed, Mr. McKinney fled. He stopped near a dumpster when ordered to do so, but struggled with several additional police officers who *1184 approached to arrest him. In the struggle, he attempted to eat the bag of cocaine. One of the officers held his jaw to keep him from swallowing the bag. The bag was retrieved and later introduced into evidence. The marked twenty-dollar bill was found on the dumpster.[2]

I. JUDICIAL NOTICE OF THE SCHOOL

Mr. McKinney first argues the trial court erred in taking judicial notice that Lakeland Christian School is a school for purposes of section 893.13(1)(c), Florida Statutes (1991). Section 90.202(11) permits a court to take judicial notice of "facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court." Section 90.202(12) permits notice of "facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." We conclude these provisions authorize the trial court to take judicial notice of the legal status of Lakeland Christian School.

The trial court granted the motion to take judicial notice several months before the trial. At that hearing, defense counsel did not suggest any reason to believe there was a factual question concerning the status of Lakeland Christian School. No such question has been raised at any subsequent time. Indeed, this court has published at least one opinion in which Lakeland Christian School was the school relied upon for purposes of this statute. Stamps v. State, 620 So.2d 1033 (Fla. 2d DCA 1993).

We recognize that a judge cannot use sections 90.202(11) and (12) to take notice of matters known to the judge, as compared to matters known in the community. See Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1917); State v. Arroyo, 422 So.2d 50, 53 n. 2 (Fla. 3d DCA 1982); Charles W. Ehrhardt, Florida Evidence § 202.11, at 51-52 (1994 ed.); see also Forbes v. Bushnell Steel Constr. Co., 76 So.2d 268 (Fla. 1954) (personal knowledge of trial judge is not sufficient predicate for entry of final decree). Likewise, a judge should not take judicial notice of evidence relating to an important issue in a criminal case merely because such evidence is accurate from the judge's perspective. See McDaniels v. State, 388 So.2d 259 (Fla. 5th DCA 1980). In this case, however, the status of Lakeland Christian School is a mixed question of fact and law in which the legal issues predominate. Especially when the status of the school has been previously established in another case and is well known within the jurors' community, the trial judge should not be compelled to force the school's principal to spend his or her valuable time at the courthouse confirming a status that no one seriously contests. See Grand Lodge, Knights of Pythias, of North America, South America, Europe, Asia, Africa, and Australia, Jurisdiction of Florida v. Moore, 120 Fla. 761, 163 So. 108 (1935) (fact that organization was a fraternal benefit society could be judicially noticed); Graves v. State, 587 So.2d 633 (Fla. 3d DCA 1991) (court could take judicial notice of survey map in prosecution for selling drugs within 1000 feet of a school).

II. PROOF OF PROXIMITY TO THE SCHOOL

Although the trial court took judicial notice of the status of the school, it did not take judicial notice of the school's boundaries or of the distance between the school and where Mr. McKinney sold the cocaine. The state called a surveyor to establish these elements. Mr. McKinney maintains that the surveyor's testimony was insufficient to establish that the crime occurred within 1000 feet of the school. Although Stamps involved the same issue and the same school, the evidence from the surveyor is different in this case. This surveyor measured from the soccer field, instead of a remote parking lot, and determined the total distance to be approximately 500 feet. Thus, the jury had sufficient evidence to decide whether the events took place within 1000 feet of the school. Accordingly, we hold that the trial court properly submitted the two drug offenses to the jury.

*1185 III. TAMPERING WITH THE EVIDENCE

Chapter 918, Florida Statutes, governs the "Conduct of Trial." Despite the general subject matter of the chapter, section 918.13(1), Florida Statutes (1991), states:

No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or
(b) Make, present, or use any record, document, or thing, knowing it to be false.

Thus, this statute criminalizes conduct that occurs long before a trial.

In recent years, the state has begun to use section 918.13 to prosecute a person for concealing or destroying drugs during an arrest occurring on streets and in other public places. It is doubtful that the legislature considered this context when enacting the statute. The state's invocation of this crime in close cases has forced the judiciary to make some fine distinctions depending on the facts of each case. This case is probably another example of that trend.

In Boice v. State, 560 So.2d 1383 (Fla. 2d DCA 1990), this court held that a defendant who threw a bag of cocaine a short distance out the window of his stopped car, while surrounded by police, did not commit tampering when the bag was recovered. In Thomas v. State, 581 So.2d 993 (Fla. 2d DCA 1991), we extended Boice to an investigatory stop in a bar when the defendant threw a plastic bag on the floor and tried to run. The police were unable to locate the bag, which the defendant claimed was filled with "only marijuana." Id. at 994.

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Bluebook (online)
640 So. 2d 1183, 1994 WL 390761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinney-v-state-fladistctapp-1994.