THE STATE OF FLORIDA, APPELLANT,
v.
PEDRO ANDRES, APPELLEE
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The State appeals from a pretrial suppression order excluding co-conspirators' statements from a retrial on trafficking charges. The court reverses, holding that an acquittal on conspiracy does not preclude admission of co-conspirators' hearsay statements at trial on the trafficking charge, as long as independent evidence establishes the conspiracy by a preponderance of the evidence.
An acquittal on conspiracy does not per se preclude admission of co-conspirators' statements at trial on trafficking charges. The admissibility of such hearsay is a rule of evidence independent of whether a conspiracy count exists. Where independent evidence establishes by a preponderance that a conspiracy existed and the defendant participated in it, the statements are admissible. The trial court erred in excluding the evidence under the balancing test of section 90.403, as the tape recordings were highly probative of trafficking guilt and did not constitute unfair prejudice.
[1] An acquittal on a conspiracy charge does not preclude the use of co-conspirator statements at a subsequent trial for a related offense.
[2] The admissibility of hearsay statements of co-conspirators is a rule of evidence and is not dependent upon the existence of a count charging conspiracy.
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Join FLexlaw to unlock all legal intelligence“Andres' acquittal on the conspiracy charge was not a determination, for all purposes, that a conspiracy was nonexistent. All that was decided by the verdict in the first trial is that the State proved that Andres trafficked in cocaine without proving, beyond a reasonable doubt, that he conspired with others to commit the offense.”
Establishes that an acquittal on conspiracy does not preclude later use of conspiracy evidence under a lower preponderance standard
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Join FLexlaw to unlock all legal intelligencePedro Andres was charged with trafficking by sale and delivery of cocaine and conspiracy to traffic in cocaine. He was acquitted on the conspiracy cou…
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PER CURIAM.
Pedro Andres was charged with trafficking by sale and delivery of cocaine and conspiracy to traffic in cocaine. He was acquitted on the conspiracy count and convicted on the trafficking count. We reversed the trafficking conviction and remanded the case for a new trial. Andres v. State, 468 So. 2d 1084 (Fla. 3d DCA 1985). Prior to the new trial, the defendant was heard on a motion in limine seeking to exclude statements made by the alleged co-conspirators, contending that after the acquittal on the conspiracy charge any evidence of a conspiracy became irrelevant or, alternatively, that the admission of any evidence of a conspiracy would be unfairly prejudicial to him at a retrial on the trafficking charge. This appeal is brought from the pretrial order excluding the evidence of a conspiracy. We treat the order of exclusion as a suppression order, State v. Palmore, 495 So. 2d 1170 (Fla.1986), exercise jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), and reverse.
The evidence excluded is a lengthy tape recording of negotiations leading up to the sale and delivery of a kilo of cocaine, which includes several self-incriminating statements of Andres.
Andres’ acquittal on the conspiracy charge was not a determination, for all purposes, that a conspiracy was nonexistent. All that was decided by the ver- diet in the first trial is that the State proved that Andres trafficked in cocaine without proving, beyond a reasonable doubt, that he conspired with others to commit the offense. In passing on the admissibility of the conspirators' statements at the new trial, the court must decide only whether there is independent proof, by a lesser preponderance of the evidence standard, of the existence of the conspiracy and the defendant’s participation in it. Romani v. State, 542 So. 2d 984 (Fla.1989).
The acquittal on the conspiracy to traffic in cocaine charge does not, per se, preclude the use of the co-conspirators’ statements at the trial on the trafficking charge. See State v. Brea, 545 So. 2d 954 (Fla. 3d DCA 1989) (the admissibility of hearsay statements of co-conspirators is merely a rule of evidence and is not dependent upon the existence of a count charging conspiracy). There was sufficient independent proof, apart from the hearsay, to establish by a preponderance of the evidence, a conspiracy and the defendant’s participation in the conspiracy. The testimony of the undercover officer described Andres’ role in the preliminary planning and negotiations, which was corroborated by Andres’ actions and his recorded statements. That evidence more than adequately satisfied the State’s burden. See Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988).
We disagree with the trial court’s alternative ruling in reliance on section 90.-403, Florida Statutes (1987), that the probative value of the statements was substantially outweighed by the danger of unfair prejudice. The negotiations leading up to the sale and delivery of the kilo of cocaine were highly probative of the defendant’s guilt on the charge of trafficking by sale and delivery. Although the statements were detrimental to the defendant’s case, they did not prejudice him unfairly. Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters. Brown v. Sims, 538 So. 2d 901 (Fla. 3d DCA 1989), (citing United States v. Roark, 753 F. 2d 991 (11th Cir.1985)), rev. granted, 547 So. 2d 635 (Fla.1989). Tape recordings of undercover sting operations are admissible and do not unfairly prejudice a defendant where they are audible. Springer v. State, 429 So. 2d 808 (Fla. 4th DCA 1983).
Because the statements are relevant to the issue of guilt, and are not excluded by any other rule of law, they are admissible evidence. § 90.402, Fla.Stat. (1987).
The order is reversed and the cause remanded for trial.
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State v. Mahmoud GAD, 27 So. 3d 768 (Fla. 2d DCA 2010)…evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.’ ” State v. Blackwell, 787 So. 2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres, 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989)). “ ‘Section 90.403 ... is directed at evidence which inflames the jury or appeals improperly to the jur[ors’] emotions.’ ” Steverson v. State, 695 So. 2d 687, 689-90 (Fla.1997) (quoting C. Ehrhardt, Florida Evidence, § 403.…
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State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002)…n similar to the research on alcohol. If the inability to quantify the degree of impairment was a basis for disallowing- evidence of cocaine impairment, such evidence would necessarily be suppressed in every case. Id. at 59. . See State v. Andres, 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989) ("Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters”). See also U.S. v. Baller, 519 F. 2d 463 (4th Cir.),…
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State v. Martin, 277 So. 3d 265 (Fla. 3d DCA 2019)…tin’s statement, and the unredacted version is prejudicial to Martin because it shows an additional victim. However, just because evidence is detrimental to a defendant's case does not mean that the defendant is unfairly prejudiced. State v. Andres, 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989) (holding that the trial court abused its discretion in granting a pretrial motion to exclude a tape recording of an undercover drug deal because “although the statements were detrimental to the defendant's case, they did not…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)
- State v. Rickie Lee Palmore, 495 So. 2d 1170 (Fla. 1986)
- Olga Romani, M.D. v. State, 542 So. 2d 984 (Fla. 1989)
- Brown v. M. David Sims, M.D., 538 So. 2d 901 (Fla. 3d DCA 1989)
- United States v. Roark, 753 F.2d 991 (11th Cir. 1985)
- Springer v. State, 429 So. 2d 808 (Fla. 4th DCA 1983)
- State v. Cesareo Brea, 545 So. 2d 954 (Fla. 3d DCA 1989)
- Andres v. State, 468 So. 2d 1084 (Fla. 3d DCA 1985)