DAVID HARGROVE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Hargrove appealed his cocaine delivery conviction, challenging prosecutorial questioning that suggested his statement 'I don't mess with the stuff' was a phrase commonly used by drug dealers to deflect suspicion. The Fourth District Court of Appeal affirmed the conviction but condemned the line of questioning as irrelevant and error, warning prosecutors to avoid such tactics in future cases.
The court found error in the prosecutor's line of questioning, as the implications drawn were irrelevant to the cocaine delivery charge. However, the court concluded the error was harmless in this particular case and affirmed the conviction, while cautioning that similar conduct could fatally prejudice convictions in other cases.
[1] A prosecutor's line of questioning that elicits testimony implying a defendant's statement is code for drug dealing, without direct evidence of such meaning, is irrelevan…
[2] Irrelevant and immaterial testimony, even if admitted in error, may be considered harmless error if the conviction is otherwise supported by sufficient evidence.
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Join FLexlaw to unlock all legal intelligence“The implications to be drawn from the exchange are obvious. They are equally irrelevant. In this case we find error but conclude, on balance, that it was harmless.”
Establishes the court's finding that the prosecutor's line of questioning was error but harmless in this case.
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Join FLexlaw to unlock all legal intelligenceAppellant Hargrove was charged with delivering cocaine. During trial, an undercover narcotics agent testified regarding Hargrove's statement 'I don't …
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PER CURIAM.
We affirm the conviction and sentence. For the guidance of counsel in subsequent cases, however, we briefly consider appellant’s second point on appeal.
Testimony was introduced that appellant, when asked about certain drugs, responded, in effect: “I don’t mess with the stuff.”
The following colloquy from the trial is excerpted from appellant’s brief. The prosecutor is engaged in direct examination of the undercover agent responsible for appellant’s arrest on charges of delivering cocaine.
Q. Did you ever hear the phrase prior to your investigation of Mr. Hargrove T don’t mess with the stuff?’ How many times have you heard that phrase, if any, during the course of narcotics deals? A. Many times. Defense Counsel: Objection, irrelevant and immaterial. Court: Overruled. Q. How many times? A. I have heard it many a time. Q. Who uses it? A. Drug Dealers. Q. By T don’t use the stuff’, what does that mean? (Defense counsel renews his objection to this line of questioning and moves to strike. The trial court overrules the objection and denies the motion; whereupon the prosecutor continues:) Q. What does that mean to you, Deputy Cacciatore, based on your experience and background as a law enforcement officer in the area of narcotics? A. Well, from my experience, it means the individual that is dealing drugs tries to throw suspicion off himself and show that, more or less, he is a little man. The implications to be drawn from the exchange are obvious. They are equally irrelevant. In this case we find error but conclude, on balance, that it was harmless. In another case an otherwise appropriate conviction might well be fatally prejudiced by a line of questioning of this nature. This is not the first time that similar testimony has been condemned. See, e.g., Beneby v. State, 354 So. 2d 98 (Fla. 4th DCA), cert. denied, 359 So. 2d 1220 (Fla.1978) (location known to be inhabited by drug dealers); Buckhann v. State, 356 So. 2d 1327 (Fla. 4th DCA 1978) (number of arrests made in complex where the defendant was arrested); Kellum v. State, 104 So. 2d 99 (Fla. 3d DCA 1958) (similar crimes of larceny were committed by other police officers); and Baffuto v. State, 187 So. 2d 79 (Fla. 3d DCA 1966) (heroin marks on defendant’s arms irrelevant to charge of forgery of a prescription).
The duty to prosecute does not transcend the duty to be fair. We assume the conduct complained of resulted from an honest error of judgment rather than from any sinister influences. Be that as it may, the prosecution’s motive is immaterial in the face of reversible error. Having thus pointed out the problem we assume that such lines of inquiry will be carefully avoided in the future.
AFFIRMED.
ANSTEAD, HERSEY and HURLEY, JJ., concur.
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Lowder v. State, 589 So. 2d 933 (Fla. 3d DCA 1991)…ences in front of the jury.” Id. at 1356. Accord Dawson v. State, 585 So. 2d 443 (Fla. 4th DCA 1991) (rejecting, as prejudicial, police officer’s statement that people on crack generally rob and steal to get money). Similarly, in Hargrove v. State, 431 So. 2d 732 (Fla. 4th DCA 1983), the court condemned, as irrelevant, the testimony of a police officer that, based on his experience, the post-arrest statement of the defendant that “I don’t mess with the stuff” is a phrase uttered frequently by drug dealers in…
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Dean v. State, 690 So. 2d 720 (Fla. 4th DCA 1997)…ee, e.g., Thomas v. State, 673 So. 2d 156 (Fla. 4th DCA 1996); Shelton v. State, 654 So. 2d 1295 (Fla. 4th DCA 1995); Dawson v. State, 585 [*723] So. 2d 443 (Fla. 4th DCA 1991); Osario v. State, 526 So. 2d 157 (Fla. 4th DCA 1988); Hargrove v. State, 431 So. 2d 732 (Fla. 4th DCA 1983). General criminal behavior testimony is not allowed as substantive proof of a defendant’s guilt because “every defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certa…
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Shelton v. State, 654 So. 2d 1295 (Fla. 4th DCA 1995)…ubstantive proof of a particular defendant’s guilt or innocence * * * [I]t was also error to allow a police officer to testify as an expert as to a relationship between possessing $1,290 in cash and dealing in narcotics. See also Hargrove v. State, 431 So. 2d 732 (Fla. 4th DCA 1983) (court condemned, as irrelevant, testimony of a police officer that based on his experience, the post-arrest statement that “I don’t mess with the stuff’ is a phrase uttered frequently by drug dealers to throw suspicion off thems…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beneby v. State, 354 So. 2d 98 (Fla. 4th DCA 1978)
- Kellum v. State, 104 So. 2d 99 (Fla. 3d DCA 1958)
- Buckhann v. State, 356 So. 2d 1327 (Fla. 4th DCA 1978)
- Baffuto v. State, 187 So. 2d 79 (Fla. 3d DCA 1966)