03-3078 VAIL V. STATE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-3078 VAIL V. STATE

Case Date: 12/22/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2004 ERIC ALEXANDER VAIL, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** ** Opinion filed December 22, 2004. An Appeal from the Circuit Court for Miami-Dade County, Mary Barzee, Judge. Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee. Before GREEN, FLETCHER, and WELLS, JJ. PER CURIAM. LOWER TRIBUNAL NO. 03-3775 CASE NO. 3D03-3078

The defendant, Eric Vail, appeals from his conviction and sentence for drug possession charges. For the following

reasons, we affirm. Officer Allen Davis was dropping off Sergeant Rolando Davis and Officer Jason Ferguson when they observed a drug transaction involving observed Pedrosa the an and defendant of and a Rafael small of Pedrosa. from Sergeant the Davis to the

exchange then the

item

defendant to

exchange

money

from

Pedrosa

defendant. Sergeant

Pedrosa walked away from the defendant and toward who was dressed in civilian clothes. When

Davis,

Pedrosa was close to Sergeant Davis, the sergeant removed his badge and Pedrosa threw an item to the ground. arrested thereafter. The Davis defendant Pedrosa. observed As the interaction Davis between Sergeant the Pedrosa was

and

Sergeant

was

watching,

defendant turned his back and placed "something" into his waist area. The defendant then walked toward the front of a maroon Officer Ferguson saw pocket. He then

van and placed something inside the van. the defendant put baggies into his

front

arrested the defendant.

Officer Ferguson confiscated thirteen He also picked up The baggies

baggies and $35 dollars from the defendant.

the item that Pedrosa had thrown, another baggie. all contained individual rocks of cocaine.

2

Both

Sergeant

Davis

and

Officer

Ferguson

testified

that

after the defendant was arrested, Sergeant Davis stated that he had seen the defendant throw something in the van. Before

either officer retrieved anything from the van, the defendant stated, "the gun that's in the van don't belong to me."

Sergeant Davis then looked into the van and retrieved a gun. Initially, the defendant denied that he was involved in any untoward activity. asked Sergeant However, during his transport, the defendant not to charge him with a gun charge.

Davis

Sergeant Davis told the defendant to tell him everything, and the defendant admitted that he had been selling drugs. Prior to trial, the defendant moved in limine to exclude any mention of the gun that was found in the van. argued that evidence of the gun was irrelevant The defense to the drug

charges and highly prejudicial; that there was no nexus between the gun and the charges against the defendant; and that the gun was evidence of an uncharged collateral crime. the motion. After the state rested its case, the defendant moved for judgment of acquittal, which was denied. and renewed his motion for judgment The defendant rested, of acquittal and his The court denied

objections regarding the "gun evidence," were again denied. Jury instructions were given and the jury retired.

Approximately forty-five minutes later, the jury sent out two

3

notes

requesting

to

read

Officer

Ferguson's

testimony.

The

defense requested that the court instruct the jury to rely on their recollection of the in-court testimony. the jury a note which stated: a transcript of the testimony is not available at this time. You should rely on your collective recollection of the testimony. If you wish, the court reporter can read back the entire testimony for you, but I will not assume that is necessary unless I hear further from you. Shortly thereafter, the jury asked to have the court reporter read back Officer Ferguson's testimony. the testimony, the jury continued to After the reading of deliberate for an The judge gave

additional hour or so before going home for the night. The jury resumed deliberations the next day. Midmorning,

the jury submitted a note that read: "Your Honor, if we cannot come to a unanimous agreement on one of the charges what

happens?" jury's

The court read the instruction which explains the of separately charged crimes based upon the

review

evidence pertaining to each crime.1

The defense objected on

1

Specifically, the court read: A separate crime or offense is charged in each count of the information. Each charge and evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the offenses charged should not affect your verdict as to any other offenses charged. I caution you members of the jury that you're here to determine from the evidence in this case whether the defendant is guilty or not guilty. Okay. The 4

grounds that the jury was not informed that it was permissible to be deadlocked or "hung." Later in the day, out of the presence of the jury, the State moved for the court to give the jury an Allen charge, pointing out that the jury had been deliberating for ten hours on a case that only took three hours to try.2 objected to giving a sua sponte Allen charge The defense without an

indication from the jury that it was deadlocked. refused to give the requested charge.

The judge

Soon after, the State made a second motion for an Allen charge, which the court, again, denied. Instead, the judge

brought the jury out and informed them that they could stay and continue working or leave and return the next day to continue their deliberations. The jury retired to the jury room. The

State once again requested an Allen objected.

charge, and the defense

The defendant also renewed his previous objection to

the court's refusal to give the jury the option to be deadlocked if they could not reach a unanimous decision on one of the charges. charge to The State suggested that the court give the Allen alleviate the defense's concerns. The defendant

defendant is on trial on him [sic] for those specific offenses alleged in the information. 2 "An Allen charge is a supplemental instruction generally given when it appears the jury is having difficulty reaching a verdict." Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990). 5

vehemently objected to the giving of an Allen charge claiming that it would be coercive. constituted The a court waiver, stated and that denied the the

defendant's

objection

State's suggestion. At 5:20 p.m., the jury sent out its fifth note which read: "Your, Honor, We feel we are close to a unanimous decision and need to work until 6:00." Both sides agreed to let the jury Twenty minutes The

continue without any additional instructions.

later, the jury announced that it had reached a verdict.

jury found the defendant guilty of the lesser included offense of possession of cocaine on both counts. and they were all in agreement. The The jury was polled defendant renewed his

objection to the court's failure to advise the jury that it could "come back hung." A motion for new trial was filed on grounds that the

verdict was contrary to the law and the weight of the evidence. An amended motion was filed claiming that it was error to admit evidence of the collateral crime of the gun. The motion for new

trial was denied and the defendant was sentenced, in accordance with the sentencing guidelines, to five years imprisonment for count one and two years imprisonment for count two. The

sentences were to run consecutively. On appeal, the defendant claims that the trial court erred in, among other things, allowing the state to introduce evidence

6

of the gun found in the van, refusing to give the requested Allen charge when the jury sent out the note inquiring into what happened if they did not reach a unanimous decision, and

admitting Sergeant Davis' improper comment that the area where the defendant was arrested was known to have "crack houses". "A trial court has wide discretion concerning the

admissibility of evidence, and a ruling on admissibility will not be disturbed unless there has been an abuse of discretion." Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993). end, [E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charge, . . . . is admissible . . . because it is a relevant and inseparable part of the act which is in issue. It is necessary to admit the evidence to adequately describe the deed. Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994). In this To that

case, the evidence showed that Sergeant Davis saw the defendant place something in the maroon van, and that soon after the

defendant stated that there was a gun in the van that was not his. This evidence was inextricably intertwined with the

observations and investigation that the police held before and during the defendant's arrest. Moreover, the "gun" evidence was

also relevant to the defendant's admission after his arrest. The defendant admitted to Sergeant Davis that he had been

selling drugs in hopes of avoiding a gun possession charge.

7

Without the statements regarding the gun, the defendant's sudden turn around and admission of guilt would have been confusing to the jury. Accordingly, we find no error in the admission of See Henry v. State, 649 So. 2d 1366 (Fla. 1994)

this evidence.

(finding that evidence of collateral crime was "necessary to establish the context leading up of events to" the and to describe arrest the and

investigation

defendant's

subsequent confession). 262, 265 (Fla. 1st DCA

See also Austin v. State, 500 So. 2d 1986) (holding that to testimony arrest given so

regarding

circumstances

immediately

prior

was

"inextricably intertwined" that an intelligent account of the criminal episode could not have been given without it). Defendant also asserts that the court's failure to give an Allen charge constituted grounds for a new trial. merit to this complaint. We find no

Although it is recommended that a

court give an Allen charge when a jury is deadlocked, such a charge is not required. 978 n.7 (Fla. 1999). record before us See Thomas v. State, 748 So. 2d 970,

Moreover, there is no indication from the the jury in this case was, in fact,

that

deadlocked.

In addition, any error regarding the failure of the

court to give an Allen charge was waived by the defense when it objected to the giving of such charge at a later time in the deliberations.

8

Finding affirm.

no

merit

in

the

defendant's

other

argument,

we

9

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