White v. State

757 So. 2d 542, 2000 WL 368757
District Court of Appeal of Florida·Decided April 12, 2000·No. 4D99-0210·Published·Cited by 9 cases

Opinion

757 So.2d 542 (2000)

David WHITE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D99-0210.

District Court of Appeal of Florida, Fourth District.

April 12, 2000.

*543 Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and M. Rebecca Springer, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, David White, was convicted of trafficking in cocaine and sentenced to a mandatory term of fifteen years in prison. On appeal, he raises three issues: (1) that the evidence was insufficient to support his conviction because the proof did not establish knowledge of the nature of the contraband; (2) that the trial court erred in allowing the prosecutor to cross-examine him concerning his failure to call witnesses and to comment upon his failure to call witnesses during closing argument; and (3) that the prosecutor improperly commented upon his post-arrest silence during cross-examination and closing argument. We find merit only in appellant's claim that the trial court erred in permitting the prosecutor to comment upon appellant's failure to call witnesses during cross-examination and closing argument.

At trial, Detective Wolfkill testified that he and other members of the Hollywood Police Department's narcotics unit were conducting surveillance and drug interdiction at the Amtrak station on April 23, 1998. Detective Wolfkill observed the appellant seated in the passenger side of an older model American car. He watched appellant get out the car without making contact with the driver and noticed that appellant was carrying a black bag. As the appellant walked along the platform to the ticket office, he appeared to be scanning the parking lot as he looked from side to side and back and forth. When he entered the ticket office, Detective Wolfkill followed him and stood behind him in line. Appellant gave his reservation number to the clerk and purchased a one-way ticket to South Carolina with cash.

When the detectives approached appellant and displayed their identification badges, appellant was cooperative. He complied with Detective Wolfkill's request to see his ticket. Detective Wolfkill observed, however, that appellant's hand and body were shaking and that appellant would not make eye contact with him. The detective requested permission to search appellant's bag. Appellant responded, "Yeah, go ahead." Inside appellant's suitcase, the detectives found a rectangular-shaped item wrapped in duct tape underneath some clothing. Appellant stated, "That's not mine, I'm carrying it for someone."

Detective Wolfkill testified that, although the package was opaque and no cocaine residue appeared on its exterior, his training and experience led him to believe that the package was a kilogram of cocaine. Further investigation revealed that the package contained 999.8 grams of cocaine.

At the close of the state's case-in-chief, appellant moved for a judgment of acquittal, arguing that the state had not established appellant's knowledge that he possessed cocaine. The court denied the motion. Defense counsel then informed the court that appellant intended to testify and moved in limine to prevent the state from suggesting during cross-examination that there were other witnesses whom the defense could have called. The court denied the motion and ruled that, if the appellant chose to testify and assert a defense akin to an alibi, cross-examination *544 regarding missing witnesses would be proper.

Appellant took the stand. He testified that he lived in Andrews, South Carolina and that he traveled by bus to Hollywood, Florida to visit his cousin, Theron Peterson. He brought a suitcase of clothing with him and stayed with Theron for about a week. For his return home, he made train reservations, because travel by train would be faster. He made the reservations in his name.

The night before appellant's departure, a friend of Theron's stopped by his home for a visit. While there, the friend, introduced only as "Charles," asked appellant to take a package to his girlfriend, Sheila, in South Carolina. Charles explained that Sheila would pick up the package at appellant's house. The cousin's friend described Sheila as a tall, fair-skinned, woman with braids, but gave no other information about her. Appellant testified that he accepted the package for Sheila and was not promised or given any money in exchange. When he arrived in South Carolina, appellant was to get in touch with his cousin, who would then notify Charles.

Appellant denied that he was nervous at the train station. He explained that he may have appeared to be scanning the area because he looked around when he heard an ambulance siren and again when a train whistle blew. He did not check his bag because the station in South Carolina was unmanned. He said he agreed to the officer's request to search his bag because "he had nothing to hide." When the detective removed the package and asked, "What do we have here?" he told the detective that he was carrying the package for someone in South Carolina. At that point, one of the detectives pulled out a knife, cut the package, and informed appellant that he was in "serious trouble." Appellant testified that he told the officers that the package did not belong to him but acknowledged, on cross-examination, that he did not identify the owner of the package or mention Charles or Theron to the officer.

During cross-examination, the state questioned appellant about his failure to call his cousin Theron, Charles, or Sheila as witnesses. Appellant responded that he asked Theron to testify for him at trial but that he refused because he did not want to get involved. He further testified that he did not know how to contact Charles or Sheila, because he did not know their last names, addresses or telephone numbers, and that Theron would not help him locate them. The state also asked appellant if he told the police whom the package containing cocaine belonged to when, upon discovery of the package in his suitcase, he denied that it belonged to him.

At the close of all the evidence, the defense renewed its motion for judgment of acquittal, arguing that the state had not established the essential element of appellant's knowledge that he possessed cocaine. The court denied the motion, ruling that the jury should determine the issue of knowledge. The jury found the appellant guilty of trafficking in cocaine as charged. We find no error in the trial court's denial of the motions for judgment of acquittal and conclude that the state presented sufficient evidence to support appellant's conviction for trafficking in cocaine by possession. See Rubiano v. State, 528 So.2d 1262, 1263 (Fla. 4th DCA 1988)(defendant's knowledge of specific nature of contraband could be inferred from exclusive possession of it).

Appellant's second point on appeal is that the court committed reversible error in allowing the prosecutor to comment, during cross-examination and closing argument, on appellant's failure to call his cousin, Theron, and Charles as witnesses. At a sidebar conference held during the state's cross-examination of appellant, the prosecutor sought confirmation of the court's earlier ruling permitting her to question appellant about these witnesses' *545 failure to testify at trial. The court responded:

You may ask if they made any attempt to have Theron here.

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White v. State, 757 So. 2d 542, 2000 WL 368757 (Fla. Ct. App. 2000).

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