Florida Case Law
DORSETT v. STATE, 3D04-416 (Fla. 12-20-2006) RUSSELL A.
DORSETT, Appellant, v. THE STATE OF FLORIDA, Appellee. Case
No. 3D04-416, 02-13071B. District Court of Appeal of
Florida, Third District. Opinion filed December 20, 2006.
An Appeal from the Circuit Court, Miami-Dade County, Scott
Silverman, Judge.
Bennett H. Brummer, Public Defender, and Robert Kalter and
Beth Weitzner, Assistant Public Defenders, for appellant.
Charles J. Crist, Jr., Attorney General, and Frederika
Sands, Assistant Attorney General, for appellee.
Before COPE, C.J., and GERSTEN, GREEN, FLETCHER, RAMIREZ,
WELLS, SHEPHERD, SUAREZ, CORTINAS, and ROTHENBERG, JJ.
EN BANC
ROTHENBERG, JUDGE.
The defendant, Russell A. Dorsett, appeals his convictions
for the sale of cocaine and marijuana, arguing that the
introduction of a prior drug transaction, allegedly
committed by the defendant, was error requiring a new
trial. As we conclude that the prior drug transaction was
properly admitted, or in the alternative, harmless error, we
affirm.
The defendant was charged with sale of cocaine, sale of
marijuana, and carrying a concealed firearm. These charges
stem from a hand-to-hand drug transaction that was
witnessed by Detective Daniel Fernandez, who was acting as
the “eyeball” or surveillance officer during a drug
surveillance of a liquor store parking lot. It is undisputed
that the purchaser in this hand-to-hand transaction was
Denise Edwards.
The evidence submitted is as follows. The Tactical
Narcotics Team (“TNT”) of the Miami-Dade Police Department
was conducting an operation in which the target location
was the parking lot of a liquor store. Detective Fernandez,
who was acting as the “eyeball,” testified that he was
approximately 200 feet from the parking lot, he used
binoculars during his surveillance, and had a fairly
unobstructed view of the defendant and of the approximately
ten other individuals in the parking lot. During his
two-hour surveillance, Detective Fernandez, testified that
he witnessed the defendant conduct two hand-to-hand
transactions, one involving a “man” and the other involving
Ms. Edwards, occurring approximately fifteen minutes apart.
He described how in each transaction, the purchaser would
approach the defendant. The defendant would then walk over
to a garbage can, retrieve a plastic sandwich baggie from
the garbage can, take an unknown item out of the sandwich
baggie, walk back to where the person was waiting, and hand
the item to the person in exchange for currency. As each
purchaser approached the defendant, Detective Fernandez
immediately provided a detailed description of the
purchaser to a take-down unit stationed nearby, and these
purchasers were then arrested by the take-down unit as they
left the scene. After each transaction was completed,
Detective Fernandez also provided a description of the
seller. After Ms. Edwards made her purchase, she was
arrested, searched, and found to be in possession of
cocaine and marijuana.
Following the transaction involving Ms. Edwards, someone
who was acting as a “lookout” yelled “jump out, shut the
hole,” to alert the seller to the presence of law
enforcement. After receiving this warning, Detective
Fernandez saw the defendant remove a revolver from his
waistband, place it on the tire of a van, and walk towards
another vehicle parked nearby. The defendant was arrested
minutes later after Detective Fernandez identified him as
the person who had conducted the hand-to-hand transactions
he had observed.
Ms. Edwards, who was called as a defense witness, testified
that, on the day in question, she drove up to the liquor
store where six men were sitting under a tree. When she
inquired about purchasing some drugs, three of the six men
approached her. She testified that she bought three bags of
marijuana from a man with braids in his hair and two bags
of cocaine from the other two men. Ms. Edwards claimed she
did not purchase any drugs from the defendant.
The jury found the defendant guilty of selling cocaine and
marijuana to Ms. Edwards, and not guilty of possession of a
concealed firearm. The defendant appeals the trial court’s
ruling permitting the State to introduce evidence of the
prior hand-to-hand transaction without providing ten days
notice pursuant to section 90.404(2)(c)1, Florida Statutes
(2003).
Prior to trial, the defense moved in limine to preclude the
State’s introduction of evidence regarding four uncharged
hand-to-hand transactions which occurred during the same
surveillance of the parking lot. The five transactions (the
charged transaction and four uncharged transactions) took
place within a span of approximately an hour and a half to
two hours, with the charged crime being the last of the
five transactions. Defense counsel objected to the
introduction of the uncharged drug transactions because the
State failed to file the required ten-day notice of its
intent to introduce Williams[fn1] rule evidence or evidence
of other crimes.[fn2] § 90.404(2)(c)1, Fla. Stat.
(2003). While the State conceded to committing an
inadvertent discovery violation by failing to provide the
defense with the names of the four other purchasers, it
argued that no Williams rule notice was required as the
uncharged crimes did not qualify as Williams rule evidence.
In support of the State’s argument that no notice was
required, the State relied upon D.M. v. State, 714 So. 2d
1117 (Fla. 3d DCA 1998). The State argued that the four
uncharged hand-to-hand transactions were admissible because
they were inextricably intertwined with the charged
offenses, and explained that it was not planning on calling
the four other purchasers to testify at trial and did not
intend to go into the specifics of the uncharged crimes.
The State sought to introduce this evidence through
Detective Fernandez to establish why he was observing the
defendant for more than just a few minutes and to explain
why no drugs were found in the garbage can or on the
defendant.
Regarding the discovery violation, the State argued that,
while the names of the four other purchasers had not been
provided, the case numbers for each had been listed in the
police offense incident report, which was provided to the
defendant in discovery. The trial court found that the
failure to provide the defense with the names and addresses
of the four purchasers of the uncharged crimes was a
substantial, but inadvertent, discovery violation. However,
in an attempt to remedy the violation, the trial court
offered to continue the trial, and to charge the
continuance to the State. The State responded that it would
immediately provide the defense with two of the four names
and the other two names would be provided within five days.
When the trial court announced it was granting a one week
continuance, defense counsel requested an opportunity to
talk to the defendant in order to obtain his position on
the State-charged continuance. After consulting with the
defendant, defense counsel stated, “I discussed the matter
with Mr. Dorsett and he wants to go forward today. Even
though we had this problem with the late discovery, of
course if the prosecutor decides to call any of these
people, I want an opportunity to talk to them before.”
Thereafter, the following colloquy was conducted:
THE COURT: Mr. Dorsett, do you understand I am willing to
continue this case? I am willing to continue this case so
that your attorney can depose — that means take
statements under oath — from these four other
people that allegedly participated in a sell with you. Do
you understand that I will grant the continuance and I
will be more than happy to do that? At the same time
[defense counsel] tells me you have made the decision on
your own to go ahead with the trial today, knowing that
[defense counsel] will not have the opportunity to depose
those people; is that also correct?
THE DEFENDANT: Yes, sir.
While the discovery violation was clearly resolved, the
record is not as clear with respect to the trial court’s
pretrial ruling regarding the admissibility of the four
uncharged transactions. Following jury selection, however,
the issue was re-addressed. The State argued that, if the
officer’s observations during his hour and a half
surveillance of the defendant were precluded, this would
result in an incomplete picture of the State’s case and
would cause jury confusion. Specifically, the State argued:
Judge, I think you leave this jury with a
misunderstanding of why the officers were there for an
hour and a half in observing the defendant and the
description given of the defendant, why they were just
observing him, why they were focusing on him, if they just
engaged in a quick hand-to-hand transaction. I think the
detective for two hours saw the defendant and was
focusing on the defendant because he was the one engaging
in the hand-to-hand transaction[s]. There were numerous
people on the scene, Judge, that it would lead the jury to
the conclusion, hey, maybe he misidentified, why would he
be focusing on the defendant and not focused on other
people. . . .
. . .
. . . there has to be an explanation to the jury as to
why this detective focused on the defendant as opposed to
numerous [] other people on the scene for over an hour and
a half, and watching his every move and not other people
at the scene. Otherwise it looks like the jury can look at
one hand-to-hand transaction, it happened in two
seconds. That’s it. They’re going to be left wondering why
was the detective focusing on the defendant and not the
twenty other people on the scene.
Based upon the trial court’s reading of our opinion in D.M.
v. State, 714 So. 2d 1117 (Fla. 3d DCA 1998), it initially
ruled that only the third and fourth uncharged hand-to-hand
transactions were admissible because they took place within
fifteen minutes of the charged offense, thereby linking
them in time and in circumstances. The trial court
concluded that notice was not required pursuant to section
90.404(2)(c)1 as the uncharged crimes were not Williams
rule evidence, but rather, relevant evidence inextricably
intertwined with the charged offenses. Upon learning,
however, that the third transaction took place more than
fifteen minutes before the charged offense involving Ms.
Edwards, the trial court further limited the evidence to
the fourth uncharged crime, stating:
I am going to allow the one prior sell to be admitted.
Not because the Court believes it’s considered to be other
criminal offense, rather it is part of the entire context
of why the officer was there. The other sells [sic] being
outside of fifteen minutes, the Court finds to be
irrelevant and out[weighed] by the unfair [prejudice to]
the defendant.
When the State offered the evidence of the fourth
hand-to-hand transaction at trial, defense counsel renewed
his objection which was overruled by the trial court:
The Court once again finds that the evidence of the other
event, the other sell [sic], shows the general context in
which the alleging [sic] criminal action in this matter,
this case before the Court occurred and it’s just part of
the entire context and limited in time and it’s part of
the factual context in which the case that is charged is
being tried. It is being admitted because it is relevant
and not under the Williams Rule.
D.M. v. STATE
The procedural posture of the instant case and subsequent
appeal is somewhat unusual. After the initial oral
argument, this court set the case for hearing en banc and
allowed the parties to file supplemental briefs addressing
whether this court erred when it found that the collateral
crimes evidence was properly admitted in D.M., because the
offenses were committed during a single criminal episode.
The defendant in D.M. was charged with one hand-to-hand
sale of cocaine. At trial, the State introduced three prior
uncharged hand-to-hand drug transactions by D.M., made
within fifteen minutes of the charged offense. This court
concluded that the evidence was properly admitted as
collateral crimes evidence under two distinct theories: (1)
that the uncharged hand-to-hand transactions were properly
admitted as relevant evidence pursuant to section 90.402
because they were committed in a single criminal episode;
and (2) that they were properly admitted as relevant
evidence pursuant to section 90.402 because the evidence
was inextricably intertwined with the crime charged. Under
either theory, since the evidence was admitted as relevant
evidence pursuant to section 90.402, rather than as “other
criminal offenses” pursuant to section 90.404, the ten-day
notice requirement did not apply.[fn3] It is this first
finding, that the offenses were admitted during a single
criminal episode, to which this court encouraged argument
and reconsideration in our en banc consideration in the
instant case. After reviewing the matter en banc, this
court declined to recede from that portion of D.M. wherein
we held that the collateral crimes evidence was admissible
because committed in a single criminal episode. Our failure
to recede from the portion of D.M. under review, however,
is of no importance since we conclude that the
complained-of evidence in the instant case was properly
admitted as (1) relevant evidence that was inextricably
intertwined pursuant to section 90.402, and/or (2) evidence
relevant to a material issue at trial.
THE LAW IN GENERAL
Generally, all relevant evidence is admissible, unless
precluded by law. See § 90.402, Fla. Stat. (2003).
Relevant evidence is defined as “evidence tending to prove
or disprove a material fact.” § 90.401, Fla. Stat.
(2003). Relevant evidence, however, “is inadmissible if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of issues, misleading the jury,
or needless presentation of cumulative evidence.” §
90.403, Fla. Stat. (2003). Thus, the prerequisite to
admissibility is relevancy.
Evidence of bad acts not included in the charged offenses
is generally referred to as “collateral crimes evidence.”
Collateral crimes evidence includes (1) similar fact
evidence, which is governed by section 90.404, and is
commonly referred to as “Williams rule evidence,”[fn4] and
(2) all other relevant evidence, admissible pursuant to
section 90.402. Similar fact evidence under section 90.404
is evidence totally unrelated to the charged offenses (and
is referred to in the federal system as “extrinsic
evidence”) and is admissible to prove a material fact in
issue, such as motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Because 90.404
evidence is extrinsic (unrelated to the charged offense),
the State is required to provide the defendant with notice
of its intent to rely on this evidence at trial. Notice
provides the defendant with an opportunity to challenge the
admissibility of the evidence and to prepare a defense,
which may include additional discovery. See Charles W.
Ehrhardt, Florida Evidence § 404.9 (2006); see also
Robertson v. State, 829 So. 2d 901, 907-08 (Fla. 2002). All
other relevant evidence falls under section 90.402.
Some of the evidence that generally falls into the category
of relevant evidence under section 90.402, is evidence that
is inextricably intertwined with the charges being
prosecuted.[fn5] Evidence is inextricably intertwined if
the evidence is necessary to (1) “adequately describe the
deed,” Smith v. State, 866 So. 2d 51, 62 (Fla. 2004)
(emphasis added); Gray v. State, 873 So. 2d 374 (Fla. 2d DCA
2004); Canion v. State, 793 So. 2d 80, 81 (Fla. 4th DCA
2001); (2) provide an intelligent account of the crime(s)
charged, Vail v. State, 890 So. 2d 373, 376 (Fla. 3d DCA
2004); Burgos v. State, 865 So. 2d 622, 624 (Fla. 3d DCA
2004); Austin v. State, 500 So. 2d 262, 265 (Fla. 1st DCA
1986); (3) establish the entire context out of which the
charged crime(s) arose, Hunter v. State, 660 So. 2d 244,
251 (Fla. 1995)(“Among the purposes for which a collateral
crime may be admitted is establishment of the entire
context out of which the criminal action occurred.”);
Foster v. State, 679 So. 2d 747, 753 (Fla. 1996); Griffin v.
State, 639 So. 2d 966, 970 (Fla. 1994); Ruffin v. State,
397 So. 2d 277, 280 (Fla. 1981), receded from on other
grounds, Scull v. State, 533 So. 2d 1137 (Fla. 1988); Vail,
890 So. 2d at 376; or (4) adequately describe the events
leading up to the charged crime(s), Griffin, 639 So. 2d at
970; Vail, 890 So. 2d at 376.
Relevant evidence admitted under section 90.402 does not
require notice. See Hunter, 660 So. 2d at 251 (“Inseparable
crime evidence is admitted not under 90.404(2)(a) as
similar fact evidence but under section 90.402 because it
is relevant.”); Griffin, 639 So. 2d at 968 (holding that
“evidence which is inextricably intertwined with the crime
charged, is not Williams rule evidence,” and concluding that
the evidence was admissible under section 90.402 because
the evidence was relevant); Kelly v. State, 552 So. 2d
1140, 1141 (Fla. 5th DCA 1989) (holding that evidence of
aggravated assault committed the evening before the crime
charged is admissible as inseparable crime evidence,
therefore, the notice requirement of section 90.404 is
inapplicable); Tumulty v. State, 489 So. 2d 150 (Fla. 4th
DCA 1986) (holding that “inseparable crime evidence is
admissible under Section 90.402 because it is relevant”
and, “[t]herefore, there is no need to comply with the
ten-day notice provision”).
Thus, relevant evidence is generally admissible except
where prohibited by law, unless the probative value is
outweighed by the prejudicial effect. Similar fact evidence
of other crimes requires notice pursuant to section
90.404(2)(c)1, while all other relevant evidence, even if
it relates to uncharged criminal acts, does not require
notice. The issue is relevancy.
THE EVIDENCE WAS PROPERLY ADMITTED AS COLLATERAL CRIMES
EVIDENCE
We conclude that evidence of the prior uncharged
hand-to-hand transaction was properly admitted pursuant to
section 90.402 as relevant evidence, evidence which was
inextricably intertwined with the crime charged and offered
to establish the entire context of events leading up to the
charged offense, the reliability of Detective Fernandez’s
identification of the defendant as the seller, and to
establish the absence of mistake. Thus, no notice was
required. Because the evidence tended to prove a material
fact in dispute and the trial court limited the State to
the introduction of only one of the prior four
transactions, the prejudicial effect of the evidence was
substantially outweighed by its probative value.
The prior hand-to-hand transaction was inextricably
intertwined with the charged offense because the
reliability of Detective Fernandez’s identification of the
defendant as the seller was a material issue in dispute.
The defendant argued that there were several individuals in
the parking lot at the time the transaction took place, the
detective was 200 feet away using binoculars, and he was,
therefore, mistaken. In support of his defense, the
defendant asked the jury to consider the fact that no drugs
were found on his person and Ms. Edwards had testified that
the defendant was not the person who sold her the drugs.
The prior hand-to-hand transaction was, therefore, necessary
to establish the identity of the seller. The collateral
crimes evidence explained why Detective Fernandez was
focusing his attention on the defendant when there were
many other individuals in the parking lot, why no drugs
were found on the defendant’s person, and why the detective
was not mistaken. Had the prior hand-to-hand transaction
not been introduced, the jury would have been left with the
mistaken impression that the detective, who had been
surveilling the entire area and all of the individuals for
two hours and who witnessed what he believed was a drug
transaction between the defendant and Ms. Edwards, was only
surveilling the area for a short period of time. The ability
of the detective to explain why he had directed his
surveillance on the defendant and the degree of his focus
was critical to the State’s case and was necessary to
establish the reliability of the detective’s identification
of the defendant as the seller.
Our finding that the collateral crimes evidence was
inextricably intertwined with the charged offenses is
supported by prior case law and precedent throughout the
state. In D.M., with facts strikingly similar to the facts
in the instant case, we concluded that the hand-to-hand
transactions were properly admitted as they were relevant to
a material issue in dispute and were inextricably
intertwined with the charged offenses.
In D.M., D.M. and A.E. were arrested and charged with sale
of cocaine and possession with intent to sell an
“inventory” of packaged-for-sale cocaine rocks which were
recovered from a nearby utility room. At trial, the State
was permitted to introduce evidence of three additional
uncharged hand-to-hand transactions which occurred within
fifteen minutes prior to the charged offenses. An officer
testified at trial that he observed four separate
individuals (“purchaser”) approach D.M. and A.E., hand
money to A.E., who then passed the money to D.M. Each
purchaser would wait on the sidewalk while A.E. went to a
utility room. After A.E. returned from the utility room,
the officer testified that he saw A.E. hand an object to
each purchaser, who left immediately thereafter. After
witnessing the fourth transaction, the officer relayed a
take-down signal and the person involved in the fourth
transaction was arrested, searched, and found to be in
possession of a rock of cocaine.
In D.M., this court held:
[U]nder the facts of this case, the testimony about the
first three transactions was inseparable crimes evidence,
that is, “evidence which is inextricably intertwined with
the crime charged. . . .” Griffin v. State, 639 So. 2d
966, 968 (Fla. 1994). “It is admissible under section
90.402 because ‘it is a relevant and inseparable part of
the act which is in issue. . . . [I]t is necessary to
admit the evidence to adequately describe the deed.'” Id.
(quoting Charles W. Ehrhardt, Florida Evidence §
404.17 (1993 ed.)) (other citations omitted). . . .
Here, both respondents were charged with possession of
the drug inventory which was inside the utility room. In
order to prove this offense, the State was required to
show dominion and control by the respondents over the
drugs in the utility room. During the fifteen-minute
surveillance, the officer observed four transactions and
four trips to retrieve objects from the utility room. The
evidence of the trips to and from the utility room was
inextricably intertwined with the evidence of the
sidewalk transactions. The evidence was properly admitted.
D.M., 714 So. 2d at 1119-20. Neither the dissent nor the
defendant dispute the admissibility of the uncharged
hand-to-hand transactions in D.M. as inextricably
intertwined with evidence of the charged offense. The
defendant and the dissent, however, attempt to distinguish
the instant case from D.M. arguing that the evidence of the
uncharged hand-to-hand transactions in D.M. were
inextricably intertwined as it was necessary to establish
D.M.’s dominion and control over the drugs found in the
utility room. We find that the collateral crimes evidence
in the instant case was equally necessary to establish the
detective’s degree of focus on the defendant, to explain
why no drugs were found on the defendant, and to establish
the reliability of his observations and identification of
the defendant.
The officer testified that he observed the charged
transaction from 150 to 200 feet away through binoculars,
there were approximately ten individuals in the immediate
vicinity, and the defense in this case was that the officer
was mistaken as to the identity of the seller. An
identification made by an officer, who was specifically
watching the defendant because of his behavior, is
certainly more reliable than the sanitized version the
defendant and the dissent claim should have been presented
to the jury: that after an hour and a half and after
observing ten individuals, the officer witnessed, with the
assistance of binoculars, a brief hand-to-hand transaction
by the defendant who was 150 to 200 feet away. Given these
facts, without being able to explain the entire context and
circumstances leading to the charged transaction, the jury
would not have been presented with a true understanding
regarding the officer’s focus and attention on the
defendant. The collateral crimes evidence was, therefore,
inextricably intertwined and relevant to the only material
issue in dispute — whether the officer was mistaken
as to the identity of the seller. The evidence that, in
conducting each transaction, the defendant appeared to be
retrieving the drugs from a nearby garbage can was also
relevant to explain why, if the defendant was the seller,
no drugs were found on him. Thus, we conclude, as this
court concluded in D.M., that the evidence was properly
admitted as inextricably intertwined and as relevant
evidence pursuant to section 90.402.
In Randle v. State, 820 So. 2d 418 (Fla. 3d DCA 2002), this
court also concluded that the arresting officer’s
testimony, that he had observed the defendant engage in a
drug transaction a week prior to the charged offense, was
properly admitted as inseparable crimes evidence because
without the inclusion of the collateral crimes evidence, the
officer’s actions would have made no sense. Id. at 419.
Likewise, in Austin v. State, 500 So. 2d 262 (Fla. 5th DCA
1986), the Fifth District held that the collateral crimes
evidence was properly admitted as inextricably intertwined.
The court explained that the evidence helped “cast light on
the character of the crimes for which Austin was
prosecuted,” because it was relevant as to Austin’s motive
for committing the crimes and because the witness'”testimony
would have been greatly diminished if he had been prevented
from testifying as to why he and Austin were together when
they discovered the victim in this case.” Id. at 265; see
also Vail v. State, 890 So. 2d 373, 376 (Fla. 3d DCA 2004).
Similarly, in the instant case, had the collateral crimes
evidence not been admitted, Detective Fernandez’s testimony
would have been greatly diminished as he would not have
been able to explain that the focus of his investigation
had coalesced upon the defendant and why.
In Vail, the defendant appealed the denial of his motion in
limine to exclude any mention of a gun found in the
defendant’s van during the defendant’s trial for possession
of drugs. This court found the collateral crimes evidence
was properly admitted as inextricably intertwined because
without its introduction, the defendant’s statements and
admission of guilt as to the charged offense would have
been confusing to the jury.
The collateral crimes evidence in each of these cases was
admissible as inextricably intertwined because the evidence
was relevant to a material fact or issue at trial as it
cast light on the character of the crime(s) being
prosecuted.
The uncharged hand-to-hand transaction admitted in the
instant case was equally admissible as inseparable or
inextricably intertwined evidence and relevant to explain
the entire context of events including: why the
surveillance officer watched the defendant for such a
lengthy period of time, why his focus was on the defendant,
why no drugs were found on the defendant’s person, and why
the officer was not mistaken regarding the identity of the
seller.
THE EVIDENCE WAS ALSO ADMISSIBLE BECAUSE IT WAS RELEVANT TO
A MATERIAL FACT AT ISSUE
To be admissible under section 90.402, there is no
requirement that the evidence be inextricably intertwined.
The only prerequisite is that the evidence be relevant to a
material fact at issue. For example, in Foster v. State,
679 So. 2d 747 (Fla. 1996), the Florida Supreme Court held
that “[e]vidence of other crimes or acts is admissible if it
is found to be relevant for any purpose, save that of
showing bad character or propensity.” Foster, 679 So. 2d at
753. In determining that the collateral crimes evidence was
properly admitted in Foster, the Court concluded that the
collateral crimes evidence was relevant because it “showed
a continuing chain of chronological events” and
“[a]dditionally, this evidence is relevant to show Foster’s
motive and, ultimately, his intent.” Id.
In Valdes v. State, 930 So. 2d 682 (Fla. 3d DCA 2006), this
court concluded that, in the prosecution of Valdes for
sexual battery on a minor and other related offenses, the
trial court did not abuse its discretion in admitting
evidence concerning prior domestic violence in the home
because the evidence was relevant to explain why the
children did not disclose the abuse for approximately five
years.
Likewise, in Minick v. State, 560 So. 2d 386, 387 (Fla. 3d
DCA 1990), the State argued that testimony regarding the
defendant’s prior purchase of drugs from the eyewitnesses
to the murder was properly admitted because it was relevant
to demonstrate the defendant’s knowledge of the area and to
establish his motive for the murder. This court, in
affirming the conviction, noted that “[t]he test for
admissibility of evidence of collateral crimes is
relevancy,” Id. at 387 (citing Heiney v. State, 447 So. 2d
210 (Fla. 1984)), and “[e]vidence of other crimes is
relevant if it casts light on the character of the crime
for which the accused is being prosecuted, such as when it
shows either motive, intent, absence of mistake, or
identity.” Minick, 560 So. 2d at 387 (citing Ruffin v.
State, 397 So. 2d 277 (Fla. 1981), cert. denied, 454 U.S.
882 (1981) (citing Williams v. State, 110 So. 2d 654 (Fla.
1959)).
In Williamson v. State, 681 So. 2d 688 (Fla. 1996), the
defendant was charged with first degree murder, armed
burglary, extortion, three counts of attempted murder, five
counts of armed kidnapping, and four counts of armed
robbery. During the prosecution of these offenses, a
witness testified that the defendant had previously killed
a four-year-old child with a baseball bat. The Florida
Supreme Court found that this collateral crimes evidence
was properly admitted because it was relevant to the issue
of the witness’ credibility, which was a material issue
upon which the State’s case depended, because it explained
why the witness had concealed the defendant’s identity for
approximately three years. The witness testified that he was
afraid of the defendant because he was aware the defendant
had killed a baby. Id. at 695-96; see also Miller v. State,
667 So. 2d 325, 328 (Fla. 1st DCA 1995)(“Evidence of other
crimes, whether factually similar or dissimilar to the
charged crime, is admissible if the evidence is relevant to
prove a matter of consequence other than bad character or
propensity.”) (quoting Williams v. State, 621 So. 2d 413,
414 (Fla. 1993)). The Miller court additionally stated:
Such evidence may be admissible to disprove a defendant’s
theory of defense or to disprove a defendant’s attempt to
explain the intent of the defendant. In Williams, supra,
collateral crime evidence was relevant to rebut evidence
that the victim had consensual sex with the defendant in
exchange for drugs. In Wuornos v. State, 644 So. 2d 1000
(Fla. 1994), the collateral crime evidence was relevant to
rebut the defendant’s claim of self defense in a homicide
action.
Miller, 667 So. 2d at 328. In Damren v. State, 696 So. 2d
709 (Fla. 1997), the Florida Supreme Court also concluded
that a theft committed by the defendant earlier that day
was admissible under section 90.402 as it was relevant to
whether the defendant was too intoxicated to form the
requisite specific intent to commit the charged burglary.
Id. at 711.
As the evidence was offered to prove a material fact in
dispute, and because it provided the trier of fact with a
complete picture of the events in question, we conclude the
evidence was properly introduced as relevant evidence under
section 90.402, Florida Statutes (2003). See Williamson,
681 So. 2d at 695 (holding section 90.404(2)(a)
inapplicable where evidence was not admitted to show the
defendant had a propensity to commit the crime charged
based on the fact he had committed a similar crime; rather
evidence was relevant to establish the credibility of a
material witness and to provide the jury with the full
context of the criminal episode). Here, as in Williamson,
Detective Fernandez’s credibility was in dispute. The
collateral crimes evidence was admitted to establish the
reason why he was not mistaken in identifying the defendant
as the seller. See United States v. McLean, 138 F.3d 1398,
1403 (11th Cir. 1998) (holding that evidence of criminal
activity other than the charged offenses is not 404(b)
evidence “if it is (1) an uncharged offense which arose out
of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the
crime, or (3) inextricably intertwined with the evidence
regarding the charged offense”) (emphasis added); United
States v. Kloock, 652 F.2d 492, 495 (5th Cir. 1981)
(holding that introduction of a false driver’s license found
in the defendant’s possession at the time of his arrest for
importation of cocaine and possession of cocaine with
intent to distribute was proper as the license was relevant
to complete the story of the charged crime); Hall v. State,
403 So. 2d 1321 (Fla. 1981) (holding that evidence of a
second murder was admissible to prove identity and to show
the general context in which the criminal action occurred).
THE TRIAL COURT’S EXCLUSION OF ADDITIONAL HAND-TO-HAND
TRANSACTIONS
While there were four uncharged hand-to-hand transactions
in the instant case, the trial court only allowed the last
of the four uncharged transactions to be introduced,
misinterpreting our holding in D.M. as limiting the
admissibility of collateral crimes evidence to a fifteen
minute time interval. We, however, never intended to set an
arbitrary time limit. We, therefore, clarify our holding in
D.M. as limiting the admissibility of relevant evidence
pursuant to section 90.402, based upon a section 90.403
analysis, which requires that the probative value of such
evidence not be outweighed by its prejudicial effect. The
timing of the events is simply one of the factors the trial
court may consider in weighing the probative value against
its prejudicial effect.
CONCLUSION
As the trial court concluded that the evidence of a prior
drug transaction was relevant in the prosecution of
Dorsett’s charged drug transaction, and there is certainly
sufficient evidence to support the trial court’s finding,
we cannot find, as we would be required to find before
reversing the jury’s verdict, that the trial court abused
its discretion in permitting its introduction at trial. See
Heath v. State, 648 So. 2d 660, 664 (Fla. 1994) (confirming
that a “trial court has broad discretion in determining the
relevance of evidence and such determination will not be
disturbed absent an abuse of discretion”) (citing on
Hardwick v. State, 521 So. 2d 1071, 1073 (Fla.), cert.
denied, 488 U.S. 871 (1988)); Irving v. State, 627 So. 2d
92, 94 (Fla. 3d DCA 1993)(“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.”).
Affirmed.
GERSTEN, WELLS, SHEPHERD, SUAREZ and CORTINAS, JJ., concur.
COPE, C.J. (dissenting).
Respectfully, the evidence of the prior uncharged
hand-to-hand drug transaction was not admissible as
inseparable crimes evidence, nor was it admissible as
Williams rule evidence[fn6] under paragraph 90.404(2)(a),
Florida Statutes (2003).
The evidence does not qualify as inseparable crimes
evidence because it is possible to give a perfectly
adequate account of the crime to the jury without making
reference to the earlier uncharged hand-to-hand drug sale.
It is not proper Williams rule evidence because, under the
circumstances present here, the prior hand-to-hand drug sale
is not relevant to any material fact in issue in this case.
I.
Defendant-appellant Russell A. Dorsett was convicted of
selling cocaine and marijuana to Denise Edwards in a
hand-to-hand transaction.[fn7] The defense at trial was
mistaken identity. Police Detective Fernandez, who was the
surveillance officer, testified that the defendant was the
seller. Ms. Edwards was called as a witness by the defense
and testified that the defendant was not the seller.[fn8]
Prior to trial, the defense became aware that the State
intended to elicit evidence from Detective Fernandez, the
surveillance officer, that the defendant had engaged in
four uncharged hand-to-hand drug transactions during the
two hours prior to the sale charged in this case. The State
relied on this court’s decision in D.M. v. State, 714 So.
2d 1117 (Fla. 3d DCA 1998), as authority for offering this
evidence. By motion in limine the defense maintained that
the evidence should be excluded. The defense argued that
D.M. was factually distinguishable and inapplicable to the
present case. Relying on D.M., the court ruled that the
surveillance officer could testify about one uncharged
hand-to-hand transaction which occurred fifteen minutes
before the charged hand-to-hand sale in this case.[fn9]
The case proceeded to trial. The officer explained the
surveillance procedure he employed. He testified about the
one prior uncharged hand-to-hand transaction which the
trial court permitted. The officer identified the defendant
as the seller in both transactions.
The defense called Ms. Edwards as a witness, who testified
that the defendant was not the one who sold the drugs to
her. The defendant was convicted and appealed to this
court.
In the defendant’s initial brief, the defendant argued that
the trial court erred by allowing evidence of the uncharged
prior sale. The defense contended that D.M. should be
viewed as applying only to evidence of an uncharged crime
which is inextricably intertwined with a charged crime.
After the panel heard oral argument, this court granted
rehearing en banc to consider the question whether the
decision in D.M. should be receded from in part.
The majority opinion in this case holds that the prior
uncharged drug sale was admissible as inseparable crimes
evidence, and to explain the entire context of events
leading up to the charged offense. Majority opinion at 14.
The majority opinion also concludes that evidence of the
uncharged drug sale was admissible to establish the
reliability of the surveillance officer’s identification of
the defendant as the seller in the charged drug sale, and
to establish that the surveillance officer was not mistaken
in his identification of the defendant. Id. The majority
opinion adheres to the D.M. decision but clarifies that
D.M. does not limit the admissibility of collateral crimes
evidence to a fifteen minute time interval. Id. at 25.
In my view, the majority opinion misapprehends the
controlling case law on point.
II.
When evidence of prior crimes is wrongly admitted, “it is
‘presumed harmful error because of the danger that a jury
will take the bad character or propensity to crime thus
demonstrated as evidence of guilt of the crime charged.'”
Keen v. State, 504 So. 2d 396, 401 (Fla. 1987) (citation
omitted). Evidence of uncharged prior crimes can only be
admitted if it satisfies certain specifically defined
criteria.
The evidence in this case does not qualify as inseparable
crimes evidence, also known as inextricably intertwined
evidence. Professor Ehrhardt has summarized the law of
inseparable crimes as follows:
Occasionally when proving that an act, deed, or crime
occurred, the act will be so linked together in time and
circumstance with the happening of another crime that the
one cannot be shown without proving the other. For
example, if a defendant is charged with a sexual battery
which occurred after a violent struggle with the victim,
evidence of the struggle would be admissible even though
it shows the commission of a battery. Evidence that the
defendant forcibly removed jewelry from the victim during
the struggle and took it from the victim’s home would be
admissible even though it showed the commission of a
larceny. There is general agreement that this evidence is
admissible.
Charles W. Ehrhardt, Florida Evidence § 404.17, at
261 (2006) (footnotes omitted).
Professor Ehrhardt goes on to say:
The Florida courts have reasoned that the evidence of an
inseparable crime should be admitted when it is
“inextricably intertwined” with the underlying crime and
“where it is impossible to give a complete or intelligent
account of the crime charged without reference to the
other crime.”
Id. at 261-63 (footnotes omitted; emphasis added).
Turning now to the principle applicable to this case,
Professor Ehrhardt tells us what evidence does not qualify:
When there is a clear break between the prior conduct and
the charged conduct or it is not necessary to describe the
charged conduct by describing the prior conduct, evidence
of the prior conduct is not admissible on this theory.
Id. at 263 (footnote omitted; emphasis added).
The sentence just quoted is dispositive here, and is fatal
to the State’s position. In the first place, there was a
clear break between the two transactions. The detective
stated that he saw the defendant sell drugs to a man
fifteen minutes before he sold drugs to Ms. Edwards. Since
there was a clear break, the two drug sales do not qualify
as inseparable crimes.
In the second place, it is perfectly possible to describe
the crime with which the defendant was charged — the
sale to Ms. Edwards — without describing the earlier
sale. When this matter was pending before the trial court,
the judge asked the prosecutor whether the charged sale
could be proved without reference to the uncharged sale.
The prosecutor’s answer was yes. With that concession, the
State necessarily acknowledged that the prior sale at issue
in this case was not inseparable crime or inextricably
intertwined evidence. See Charles W. Ehrhardt, Florida
Evidence, § 404.17 at 263-64 & n. 5 (citing Thomas
v. State, 885 So. 2d 968, 975 (Fla. 4th DCA 2004); Gray v.
State, 873 So. 2d 374, 377 (Fla. 2d DCA 2004); Burgos v.
State, 865 So. 2d 622, 624 (Fla. 3d DCA 2004)); see also
Canion v. State, 793 So. 2d 80 (Fla. 4th DCA 2001); Griner
v. State, 662 So. 2d 758 (Fla. 4th DCA 1995).
III.
The majority opinion states that the uncharged sale was
relevant “to establish the entire context of events leading
up to the charged offense . . . .” Majority opinion at 14.
Regarding “context,” Professor Ehrhardt has explained:
The Florida Supreme Court has admitted evidence of other
crimes “to show the general context in which the criminal
action occurred.” Although it is not clear when the court
was suggesting that evidence is admissible to prove the
“general context,” it seems likely the court was
referring to evidence of inseparable crimes as discussed
in this section. If the concept is given much broader
interpretation, it could well swallow the rule.
Charles W. Ehrhardt, Florida Evidence § 404.17, at
264 (footnotes omitted).
Professor Ehrhardt’s observation is correct. Every
criminal prosecution has a context which must be
established for the jury. If in establishing that general
context it is routinely permissible to introduce evidence
of uncharged crimes, then the rule would be one of general
admissibility of uncharged crimes, rather than a rule of
restricted admissibility.
As suggested by Professor Ehrhardt, the correct rule is
that for uncharged crimes evidence to be admissible to
explain the general context, the evidence must satisfy the
test for inseparable crimes evidence. See Griffin v. State,
639 So. 2d 966, 968-69 (Fla. 1994) (“The manner in which
the car keys were taken was inextricably intertwined with
the theft of the automobile, one of the charges before the
jury. The testimony was necessary to establish the entire
context out of which the crime arose.”) That test was not
met here.
IV.
For the reasons already explained, this court should
clarify, or recede in part from, D.M. v. State, 714 So. 2d
1117 (Fla. 3d DCA 1998). Although I wrote D.M., I am now
convinced that part of its reasoning is incorrect.
D.M. and a codefendant, A.E., were charged with a
hand-to-hand sale of a cocaine rock to a customer. They
were also charged with possession with intent to sell an
inventory of packaged-for-sale cocaine rocks found in a
nearby utility room.
At trial, the surveillance officer testified about the sale
of the single cocaine rock. The officer also testified
about three uncharged sales which had occurred in the
preceding fifteen minutes.
This court upheld the introduction of the evidence of the
uncharged sales. The D.M. panel did so for two separate
reasons.
1. The correct part of the analysis is that the uncharged
sales were relevant to demonstrate the respondent’s
dominion and control over the drug inventory in the utility
room.
During the fifteen-minute surveillance, the officer
observed four transactions and four trips to retrieve
objects from the utility room. The evidence of the trips
to and from the utility room was inextricably intertwined
with the evidence of the sidewalk transactions.
Id. at 1119-20. That analysis remains correct.
2. However, the D.M. decision also contains another
independent (and incorrect) analysis for treating the
evidence as admissible. The problematic portion of the D.M.
decision ruled that when there is a series of hand-to-hand
drug sales to different customers, those sales are
inseparable crimes — even though there is a clear
break in time between the sales. The D.M. opinion states in
part:
Customers one through three had not been arrested, and so
D.M. and A.E. were charged only with sale to customer
four. D.M. contends that the testimony regarding customers
one through three was testimony of other crimes, and
should have been excluded for lack of the ten-day
notice. The trial court overruled the objection.
We conclude that the objection was correctly overruled.
Analyzing Federal Rule of Evidence 404(b), one court has
said:
The extrinsic acts rule is based on the fear that the
jury will use evidence that the defendant has, at other
times, committed bad acts to convict him of the charged
offense. In the usual case, the “other acts” occurred at
different times and under different circumstances from the
crime charged. The policies underlying the rule are
simply inapplicable when some offenses committed in a
single criminal episode become “other acts” because the
defendant is indicted for less than all of his actions.
United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979)
(citation omitted). Here, the surveillance officer
observed a fifteen-minute episode of hand-to-hand street
drug sales, after which D.M. was arrested. We do not think
that the first three sales qualify as “other criminal
offenses,” § 90.404(2)(a), Fla. Stat., for which
the ten-day notice must be given.
714 So. 2d at 1119 (emphasis added; some citations omitted).
Here is where the analytical mistake occurred. The D.M.
opinion incorrectly assumed that the test for an
inseparable crime was whether the uncharged crime occurred
during a single criminal episode. But “criminal episode” is
not the accepted test for an inseparable crime. Instead,
the accepted test is whether the uncharged crime is
inextricably intertwined with the charged crime, that is,
“where it is impossible to give a complete or intelligent
account of the crime charged without reference to the other
crime.” Charles W. Ehrhardt, Florida Evidence §
404.17, at 262-63 (citation omitted).
The D.M. decision quoted the federal Aleman decision, see
D.M., 714 So. 2d at 1119, but misapprehended what sort of
“criminal episode” the Aleman opinion was talking about.
Aleman was indicted for heroin possession and conspiracy to
import and distribute heroin. An undercover agent testified
that during a meeting with Aleman to discuss a cocaine
purchase, Aleman made numerous admissions connecting him to
a heroin trafficking venture in which several of the
heroin co-conspirators had already been arrested. Aleman,
592 F.2d at 883. Aleman was indicted for the heroin charges
but not the cocaine charges. The “single criminal episode”
was the single meeting to discuss a cocaine transaction in
which Aleman made statements incriminating himself in
heroin smuggling.
The Fifth Circuit concluded that the uncharged crime
— the proposed cocaine transaction — was
“inextricably intertwined” with the admissions regarding
the heroin smuggling. Id. at 885. The evidence was
admissible “if the uncharged offense is ‘so linked together
in point of time and circumstances with the crime charged
that one cannot be fully shown without proving the other.'”
Id. at 885 (citation and some internal quotation marks
omitted). The reference in Aleman to “single criminal
episode,” id. at 885, was an explanation why under the given
facts — a single meeting to discuss a cocaine
transaction — the evidence regarding cocaine and
heroin was inextricably intertwined.
Turning now to D.M., there were four hand-to-hand drug
sales to separate buyers, with a break in time between each
sale. These do not qualify as inseparable crimes, for
crimes do not qualify as being inseparable “[w]hen there is
a clear break between the prior conduct and the charged
conduct or it is not necessary to describe the charged
conduct by describing the prior conduct. . . .” Charles W.
Ehrhardt, Florida Evidence § 404.17, at 263
(footnote omitted; emphasis added); see section II supra.
The four unconnected drug sales in D.M. do not (without
more) qualify as inseparable crimes.[fn10]
None of the cases cited in the D.M. opinion involved a
simple hand-to-hand drug sale like that present here, and
all relied on the traditional tests for other crimes
evidence. See United States v. Muscatell, 42 F.3d 627,
630-31 (11th Cir. 1995) (scheme to repeatedly sell
apartment units to phony buyers so as to fraudulently
inflate the value; evidence of similar prior and subsequent
uncharged offenses admissible to show the existence of a
continuing scheme to defraud by showing the necessary
criminal intent and guilty knowledge); United States v.
Montes-Cardenas, 746 F.2d 771, 780 (11th Cir. 1984)
(witness testified that the defendant had said he was in
the cocaine business, including smuggling of cocaine;
evidence was admissible on the issue of intent, even though
the defendant’s admission was broader than the specific
cocaine-related charges that were pending); United States
v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983) (defendant was
charged with assaulting a federal officer; Weeks accused
the undercover officer of being a federal agent and beat
him. The trial court allowed the agent to testify that he
was investigating stolen car operations, even though no
such charges were pending in the defendant’s trial for
assaulting the officer. Evidence of the purpose of the
visit to Weeks was inextricably intertwined with evidence
of the charged offense and was necessary to give a complete
story of the crime); Foster v. State, 679 So. 2d 747, 753
(Fla. 1996); (evidence admitted that the defendant stole
money, drugs, and a pick-up truck from drug dealers in
crime number one and used the same guns and pick-up truck
in later murder and attempted murder; use of the same guns
and stolen truck constituted inseparable crimes evidence
needed to present a complete picture of the charged crimes,
and was also admissible on the issue of the defendant’s
motive and criminal intent); Austin v. State, 500 So. 2d
262, 265 (Fla. 1st DCA 1986) (similar).
In sum, these authorities stand for the proposition that
evidence of other uncharged crimes is admissible only if
the evidence qualifies as inseparable crimes evidence, or
alternatively, if the evidence falls into one of the
categories specified in paragraph 90.404(2)(a), Florida
Statutes, as Williams rule evidence.[fn11]
V.
The majority opinion maintains that the evidence of the
prior drug transaction was independently admissible as
Williams rule evidence. I do not believe that is so.
The majority opinion says that the prior drug transaction
was admissible to explain “why the surveillance officer
watched the defendant for such a lengthy period of time,
why his focus was on the defendant, why no drugs were found
on the defendant’s person, and why the officer was not
mistaken regarding the identity of the seller.” Majority
opinion at 20-21. None of these reasons withstands analysis.
The surveillance officer testified that his team conducts
surveillance of areas where it has been reported that
narcotics are being sold. He stated that he arrived at his
place of concealment at around 4:45 in the afternoon, from
which he could observe the parking lot outside the liquor
store. He testified that he observed the defendant and
others in the parking lot, and had the defendant in his
view at all times except when the defendant went into the
liquor store. The officer observed the defendant for about
two hours until the defendant was arrested at around 7:00
p.m. after the sale to Ms. Edwards.
The officer did not make an assertion that he was paying
attention to the defendant because the defendant made four
prior uncharged drug sales during a two-hour period. The
officer could not give such testimony because the order in
limine only allowed the officer to testify about one
uncharged hand-to-hand drug sale fifteen minutes prior to
the charged sale. He testified about the one uncharged
prior sale.
As matters transpired at trial, the officer gave a rational
and understandable account that he had the entire area,
including the defendant, under surveillance for two hours.
If the defense had opened the door on cross-examination by
asking the officer, for example, why he paid particular
attention to the defendant as opposed to other persons,
then the officer could have testified about all of the prior
drug transactions. However, the defense kept the door
firmly shut in this case.
The majority opinion also indicates that the uncharged
crime was admissible to explain why no drugs were found on
the defendant’s person. That, too, is unpersuasive. The
defendant was charged with sale of drugs to Ms. Edwards.
After those drugs passed into the hands of Ms. Edwards,
obviously the defendant no longer had them. No further
explanation was needed or relevant.
VI.
For the stated reasons, the evidence of the prior
uncharged hand-to-hand drug transaction should not have
been admitted at the defendant’s trial. The trial court
cannot be faulted for having done so, because the trial
court relied on this court’s decision in D.M. which, as
already explained, is wrongly decided on the issue here
involved.
The erroneous admission of uncharged crimes evidence is
presumptively harmful. See Keen v. State, 504 So. 2d at
401. In this case, the defendant presented the testimony of
Ms. Edwards, who testified that the defendant was not the
one who sold the drugs to her. It cannot be said that the
error was harmless beyond a reasonable doubt. See State v.
DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly there
should be a new trial.
GREEN, FLETCHER and RAMIREZ, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DISPOSED OF.
[fn1] Williams v. State, 110 So. 2d 654 (Fla.), cert.
denied, 361 U.S. 847 (1959).
[fn2] The Williams rule is codified in section 90.404(2)(a),
Florida Statutes (2003).
[fn3] Section 90.404(2)(b)1, Florida Statutes (1997),
dealing with the ten-day notice, has since been renumbered
as section 90.404(2)(c)1, Florida Statutes (2003).
[fn4] Similar fact evidence is referred to as Williams rule
evidence, and as codified provides:
Section 90.404(2)(a):
(2) OTHER CRIMES, WRONGS, OR ACTS. —
(a) Similar fact evidence of other crimes, wrongs, or
acts is admissible when relevant to prove a material fact
in issue, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, but it is
inadmissible when the evidence is relevant solely to prove
bad character or propensity.
Section 90.404(2)(c)1 provides:
When the state in a criminal action intends to offer
evidence of other criminal offenses under paragraph (a) .
. . , no fewer than 10 days before trial, the state shall
furnish to the defendant or to the defendant’s counsel a
written statement of the acts or offenses it intends to
offer, describing them with the particularity required of
an indictment or information. No notice is required for
evidence of offenses used for impeachment or on rebuttal.
[fn5] The terms “inseparable crimes evidence” and
“inextricably intertwined evidence” are used
interchangeably and refer to the same legal theory.
[fn6] Williams v. State, 110 So. 2d 654 (Fla. 1959), now
codified as ? 90.404(2)(a), Fla. Stat.
[fn7] The defendant was also charged with carrying a
concealed firearm, but was acquitted of that charge.
[fn8] The State originally intended to call Ms. Edwards as a
witness but when she informed the prosecutor that the
defendant was not the seller, the defense called her
instead.
[fn9] As explained in the majority opinion, defense counsel
also objected that the State had not filed a Williams rule
notice but withdrew the lack-of-notice objection after the
defendant chose to proceed to trial that day rather than
take a continuance the court had offered.
[fn10] D.M. may have also been incorrect in saying that a
series of hand-to-hand drug sales to different buyers,
separated in time, constitutes a single criminal episode.
For present purposes it is unnecessary to explore that
point.
[fn11] The majority opinion cites several other cases but
none involved a simple hand-to-hand drug transaction like
this case. Further, when the cases are examined, in each
instance the “context” evidence satisfies the traditional
tests for inseparable crimes evidence or Williams rule
evidence. See Williamson v. State, 681 So. 2d 688, 695-96
(Fla. 1996) (evidence of prior homicide was admissible to
explain why state witness believed the defendant was
capable of carrying out his threats and consequently why he
cooperated with the defendant during the charged criminal
episode); Hall v. State, 403 So. 2d 1321 (Fla. 1981)
(evidence of uncharged prior homicide was admissible to
prove identity because same weapon used in uncharged and
charged crime); Vail v. State, 890 So. 2d 373, 376 (Fla. 3d
DCA 2004) (evidence of defendant’s statements about gun at
time of arrest was inextricably intertwined with evidence
regarding drug sales for which defendant was arrested); see
also United States v. McLean, 138 F.3d 1398, 1403-04 (11th
Cir. 1998) (evidence regarding defendant’s participation in
prior drug transactions admissible because inextricably
intertwined with the charged offense); United States v.
Kloock, 652 F.2d 492, 494-96 (5th Cir. 1981) (fact that
defendant was using false driver’s license during charged
drug transactions was admissible even though having such a
license was a crime; license was highly probative on intent
and defendant’s attempt to conceal his identity).
The cited cases support Professor Ehrhardt’s position that
“context” evidence must meet the test for inseparable
crimes evidence or otherwise qualify as Williams rule
evidence. See Charles W. Ehrhardt, Florida Evidence 404.17,
at 264.