99-2420 VARAS V. STATE

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State: Florida

Court: Florida Third District Court

Docket No: 99-2420 VARAS V. STATE

Case Date: 12/05/2001

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001

RAFAEL VARAS, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** CASE NO. 3D99-2420 LOWER TRIBUNAL NO. 96-35831

Opinion filed December 5, 2001. An appeal from the Circuit Court for Miami-Dade County, Alex E. Ferrer, Judge. Valerie Jonas, for appellant. Robert A. Butterworth, Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.

Before COPE, GREEN, and SHEVIN, JJ.

GREEN, J. Appellant, Rafael Varas, was convicted of trafficking in cocaine after a jury trial. On this appeal, he argues, among other

things,

that

the

trial

court

abused

its

discretion

in

not

permitting him to cross-examine the Drug Enforcement Administration ("DEA") agent about certain testimony given at trial which the agent had omitted in prior sworn statements. The state responds

that such cross-examination would have been tantamount to noncritical, negative impeachment of the DEA agent. We disagree with the state and reverse for a new trial. The case against Varas began on November 7, 1996, when an acquaintance of Varas by the name of Rafael Alujas telephoned DEA Special Agent Luis Perez with a tip that Varas would be going to the home of Otoniel Ginard to pick up some cocaine. Agent Perez

relayed this information to DEA Special Agent Brett Scott who immediately set up a surveillance operation in front of Ginard's home. Shortly thereafter, agents observed Varas drive up to the

house and go inside, where he remained for seven to ten minutes. They also observed Varas leave the house carrying an opaque brown shopping bag. Varas did not attempt to conceal the bag, nor did he display any abnormal behavior. After he got back into his car and had driven one hundred yards, the DEA agents activated their police lights and stopped Varas. Agent Scott identified himself as a DEA agent and observed the brown shopping bag in the middle of the floorboard. within arm's reach of Varas' right leg. The bag was

Scott asked Varas'

permission to search the car, to which Varas replied "no problem." Scott asked Varas about the contents of the bag and Varas did not 2

respond.

Scott then asked Varas' permission again to search the

car and Varas again stated "no problem." Agent Scott deserved that crumpled floral type papers at the top of the opaque bag completely obscured its contents from view, until he manually widened the opening. Underneath the crumpled papers, Scott found a brick

comprised of 1003.3 grams of cocaine, wrapped in opaque tape. When this tape was dusted for prints by the police, they lifted a print matching Ginard, but found no evidence of a match to Varas. The

police discovered additional cocaine and money on Ginard's person, but none on Varas. Both Varas and Ginard were arrested, although the case against Ginard was later no-actioned by the state. Varas, who had no prior criminal record, defended this charge on the grounds that he was unaware of the fact that the bag contained cocaine. He testified at trial that he had agreed to

pick up the bag at the request of Alujas, a mutual friend of his and Ginard, and was under the belief that the bag contained a power drill. According to the defense theory, Alujas had set Varas up in order to procure a sentencing reduction in a pending federal criminal case. Alujas had been charged in a four-count federal Approximately seven

indictment for cocaine-related offenses.

months prior to Varas' arrest, Alujas entered into a cooperation agreement with the United States government. According to the

terms of the agreement, if Alujas pled guilty to Count I, conspiracy to possess with intent to distribute cocaine, and 3

provided

information

to

the

government

about

the

"criminal

wrongdoing of other persons," the government would dismiss the remaining three counts against him and recommend a downward departure from the federal sentencing guidelines. In the month following Varas' arrest in this case, Alujas was sentenced on Count I only, for possession with intent to distribute cocaine. This offense carried a minimum mandatory sentence of ten years or a maximum of life in prison and a fine of four million dollars. Alujas was sentenced to 108 months in prison and five Prior to Varas' arrest, Alujas had never

thousand dollars.

provided the government with any information which led to an arrest. In fact, the only information which Alujas provided

pursuant to his agreement with the government was that which led to Varas arrest in this case. At trial, Agent Scott testified that when Varas was twice asked whether his car could be searched by the police, Varas appeared nervous, but appeared more nervous when asked about the contents of the brown bag. According to Agent Scott, Varas' eyes gave the appearance that he was scared, his face was sweating and his eyebrows were twitching. On cross-examination, Agent Scott was asked by the defense why he had failed to mention Varas' scared

eyes and sweaty, twitching demeanor in his written arrest report; pre-trial deposition or during his testimony at the suppression hearing conducted on the day before trial. The state objected to this cross-examination on the grounds that it constituted "negative 4

impeachment."

The trial court sustained the objection.

At the close of the state's case in chief, the defense moved for a judgment of acquittal on the grounds that the state had failed to establish the element of Varas' knowledge of the cocaine in the bag. The trial court denied this motion based upon Agent

Scott's testimony as to Varas' sweaty, twitching demeanor as well as Varas' silence when asked about the bag's contents. During

closing argument, the state again alluded to Varas' nervous demeanor as circumstantial evidence of his knowledge of the contents of the bag. The jury convicted Varas as charged and the

instant appeal was taken. Varas asserts that the trial court erred in prohibiting the defense from impeaching Agent Scott on his failure to mention Varas' nervous demeanor when asked about the contents of the bag in three prior sworn statements: (1) DEA arrest report; (2) pretrial deposition and (3) the motion to suppress testimony given a day prior to trial. Through such cross-examination, the defense was

attempting to establish that the witness was fabricating details about Varas' demeanor for the purpose of establishing Varas' knowledge of the contents of the bag.1 Varas argues, and we agree, that the lower court erred in its determination that this proposed cross-examination amounted to non-critical negative impeachment of

Other than Agent Scott's testimony, there was no other evidence of Varas' knowledge of the contents of the bag and during the trial below, Varas denied that he was ever asked about the contents of the bag by the DEA agent. 5

1

the witness. It is well-settled that a witness may be impeached by a prior inconsistent statement, including an omission in a previous out-ofcourt statement about which the witness testifies at trial, if it is of a material, significant fact rather than mere details and would naturally have been mentioned. See State v. Smith, 573 So. 2d 306, 313 (Fla. 1990). This also includes omissions in police

reports provided such omissions are of material and critical facts which are in serious contention at trial. See State v. Johnson,

284 So. 2d 198 (Fla. 1973) (stating that: "[a]bsent some singular importance attaching to the point in question, which goes to a material and critical fact in serious contention in the trial, a negative basis is not the kind of use of a police report which justifies breaching the normally protected police reports and investigative notes, reports and files. . . . The inquiry must be upon a crucial point . . . and the point involved in vital focus so that it becomes critical to the defense."). Negative impeachment is more likely deemed to be permissible where a witness appears to be fabricating. 1997). The state does not challenge this well-settled law, but asserts that the DEA agent's trial testimony as to Varas' nervous demeanor while being questioned about the contents of the bag was mere non-critical details and for this reason, we must affirm Varas' conviction based upon our decision in Jimenez v. State, 554 6 See Morton v. State, 689 So. 2d 259, 264 (Fla.

So. 2d 15 (Fla. 3d DCA 1989). We do not agree that the DEA agent's omitted statements constituted immaterial or non-critical details and for this reason Jimenez does not control here. In order to

be convicted of the offense of trafficking in cocaine, four elements must be established beyond a reasonable doubt: a) that

the defendant knowingly purchased or possessed a certain substance, b) the substance was cocaine, c) the quantity was 28 grams or more, and d) the defendant knew the substance was cocaine.

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