5D03-1816 Oscar Diaz v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1816

Case Date: 01/10/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

OSCAR DIAZ, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 14, 2005. Appeal from the Circuit Court for Orange County, John H. Adams, Judge. Roger Scott, Jr., Orlando, for Appellant. Charlie J. Crist, Jr., Attorney General, Tallahassee, and La Maya Henry, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D03-1816

THOMPSON, J.

Oscar Diaz appeals his conviction for delivery of heroin. We reverse. First, Diaz contends that he was denied effective assistance of counsel because of the peculiar procedure employed at trial. Diaz was charged in this case with delivery of a controlled substance and in another case with malicious mischief and assault on a law enforcement officer. Diaz allegedly sold heroin to an undercover officer through an intermediary. Diaz drove away, and when other officers moved in to arrest him, Diaz

allegedly assaulted them by driving his car into their vehicle. Diaz had an attorney for each case, and without moving to consolidate the cases, they asked the court, with the concurrence of Diaz, to try both cases to the same jury at the same time. Because the cases were not consolidated, the court allowed the defense attorneys to try their cases as though there were two separate trials. The attorney handling the heroin charge cross-examined the witnesses to the drug transaction, and the attorney handling the assault case cross-examined the witnesses to that transaction. One witness had

knowledge of both transactions and was cross-examined by both defense attorneys. Both attorneys gave closing arguments. We agree with the prosecutor, who argued that if a case is consolidated, it should be consolidated for all purposes. We find no

prejudice to Diaz, however, because he had able counsel "double-teaming" the prosecutor. We reverse the conviction, however, because the court allowed one of the undercover officers to summarize conversations he had with the alleged intermediary, Kenneth Treveso. Agent Spall testified that he and two undercover officers went to a day labor pool where they engaged in conversation with Treveso. Agent Spall testified that the conversation "led to him [Treveso] calling the defendant in order for . . . me to be able to purchase heroin." This testimony imparted to the jury that Treveso had said that Diaz was a drug dealer and is hearsay notwithstanding that Agent Spall did not directly quote Treveso. Agent Spall was also allowed to testify that Treveso was a middleman who was to receive part of the heroin, thus telling the jury that Diaz was a drug dealer and explaining Treveso's motive for being the intermediary.

2

Hearsay is an out-of-court statement testified to by a person other than the declarant which is offered for the truth of the matter asserted. Hutchinson v. State , 882 So. 2d 943 (Fla. 2004) (citing

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