Ross v. State

664 So. 2d 1004, 1995 WL 608515
District Court of Appeal of Florida·Decided December 27, 1995·No. 93-3493·Published·Cited by 10 cases

Opinion

664 So.2d 1004 (1995)

Alan ROSS, Appellant,
v.
STATE of Florida, Appellee.

No. 93-3493.

District Court of Appeal of Florida, Fourth District.

October 18, 1995.
Order Denying Rehearing, and Rehearing, but Certifying Conflict December 27, 1995.

*1006 John R. Howes, Fort Lauderdale, Joseph S. Oteri and James W. Lawson of Oteri, Weinberg & Lawson, Kimberly Homan and Robert L. Sheketgoff of Sheketoff & Homan, Boston, MA, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, Melvina Racey Flaherty and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

Order Denying Rehearing, and Rehearing En Banc, but Certifying Conflict December 27, 1995.

WARNER, Judge.

Having been convicted and sentenced for conspiracy to traffic in cocaine and conspiracy to commit first degree murder, the appellant challenges these convictions on jurisdictional grounds and for improper joinder of the counts. He claims that the state failed to prove that the statewide grand jury which indicted him had jurisdiction to return the indictment under which he was charged, requiring his discharge. Alternatively, the appellant contends that a new trial is required because the court refused to sever the charges for trial. While we hold that there is no jurisdictional defect requiring discharge of the appellant, we agree that the court erred in not severing the charges for trial, necessitating a new trial.

The appellant, Alan Ross, was the leader of a Canadian gang called the West End Gang. The original leader of the gang was Dunie Ryan, who was shot to death in 1984 in Canada. According to the state's evidence and theory of the murder conspiracy, the appellant avenged Ryan's death and took over control of the West End Gang by killing Paul April and Eddie Phillips, persons responsible for Ryan's killing. Eddie Phillips was shot by a man on the back of a motorcycle. David Singer was the person suspected of driving the motorcycle. David Singer was also the murder victim in the instant case.

After Ross took over the West End Gang, he introduced John Quitoni, a drug smuggler who lived in Florida, to Jimmy Allardyce, an associate of Ross's, for the purpose of arranging the purchase of cocaine to be shipped to Canada. Quitoni was to pick up a car with hidden cash from Canada, purchase cocaine, hide the cocaine in the car, and then Allardyce would drive the car back to Canada. Quitoni was unable to obtain the cocaine himself, but he testified that Allardyce had obtained cocaine in Miami and brought it to Quitoni in Fort Lauderdale, where they hid it in the car. After three similar transactions occurring between November 1984 and February 1985, Ross told Quitoni that he had found a better source in the Bahamas, and the first series of drug transactions terminated.

In early May of 1985, Quitoni met Ross, Allardyce, David Singer, and a man named John (later identified as Trepanier) at a hotel in Fort Lauderdale. Ross asked Quitoni to assist John in relocating to the Fort Lauderdale area. Seven to ten days later John paged Quitoni and asked him to provide a gun for a cocaine transaction he was arranging. Quitoni went to a hotel where he gave the gun to John and another man (identified as DeFosse). Quitoni also obtained bullets for the gun. The next morning John called and told Quitoni that they had killed Singer "for Alan." Singer was shot so that he would not talk about the Phillips murder. John requested Quitoni's assistance in driving DeFosse to the West Palm Beach Airport where DeFosse would leave for Canada. It was necessary for John and DeFosse to split up because the police were undoubtedly looking for the pair, as they had shot and wounded a police officer while engaged in killing Singer. Quitoni complied, and a few days later he called Ross in Canada to ascertain whether *1007 the two had arrived in Canada. According to Quitoni, Ross thanked him for his assistance.

The state also produced evidence of other drug transactions involving the appellant and other individuals. Bert Gordon and Russell Brothers testified to a smuggling scheme to import cocaine from Colombia, through the Bahamas and Nashville, to Canada. Gordon testified that this second operation was planned at the home of William Blackledge in Fort Lauderdale. Brothers testified that he flew three trips for the appellant from May 1987 to September 1987. During each trip, he would file a flight plan indicating that he would land at Fort Pierce, Florida. Instead, he would rendezvous off the coast with another pilot, who would then land in Fort Pierce to clear customs while Brothers continued to Nashville.

The third operation involved smuggling from Colombia to Europe. The drugs were shipped aboard a sailboat, The Finesse, from Colombia to Spain where the appellant's associate was to sell the cocaine. The only connection to Florida as to this operation was that The Finesse's home port was Miami. The Finesse was seized in Portugal in 1988.

The appellant first claims that the state failed to prove that the statewide grand jury had jurisdiction to return an indictment charging the appellant with trafficking in cocaine and conspiracy to commit murder. Section 905.34, Florida Statutes (1993), limits the jurisdiction of the statewide grand jury to the enumerated crimes, "when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits." In McNamara v. State, 357 So.2d 410, 413-14 (Fla. 1978), the supreme court held that allegations of multi-county activity on the face of the indictments by the statewide grand jury is essential to determine whether the grand jury had subject matter jurisdiction to indict. In the instant case, each count alleged multi-county activity. Count I alleged that the appellant and others conspired to traffic in cocaine in Marion and Broward counties. Count III alleged that the appellant and others conspired to commit first degree murder in Palm Beach and Broward counties. Under McNamara, the indictments were facially sufficient to vest jurisdiction to indict in the statewide grand jury.

Despite the facial allegations of jurisdiction, the appellant contends that the state is obligated to prove the statewide grand jury's allegations beyond a reasonable doubt, citing Justice Adkins' special concurrence in State v. Ostergard, 360 So.2d 414 (Fla. 1978). That is not precisely what Justice Adkins wrote in his concurrence. Instead, he posited that the state must prove "multi-county activity" beyond a reasonable doubt.

The appellant claims that there is no evidence of activity concerning cocaine transactions in Marion County, and therefore that the allegation was not proved. Moreover, according to the appellant, the evidence did not show beyond a reasonable doubt the existence of multi-county activity. The first series of drug transactions involving Quitoni and Allardyce involved Broward and Dade counties (the Seventeenth and Eleventh Judicial Circuits), but the appellant notes that the testimony was uncorroborated and does not rise to the level of proof beyond a reasonable doubt. The second series of drug transactions involved shipments from the Bahamas to Nashville, and the only Florida contacts occurred in Fort Lauderdale where the drug smuggling operation was planned and in Fort Pierce when the decoy plane landed in the Nineteenth Judicial Circuit. In addition, the appellant argues that a conspiracy to import cocaine fro

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Ross v. State, 664 So. 2d 1004, 1995 WL 608515 (Fla. Ct. App. 1995).

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