DANNY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1990-06-20
No. 88-00239
RYDER, A.C.J., and HALL, J., concur.
562 So. 2d 443 Florida District Court of Appeal, Second District (1990)

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Synopsis

Danny Davis appealed his convictions for sale of cocaine and possession with intent to sell. The court affirmed the sale conviction but reversed the possession conviction under Carawan v. State, holding that charges arising from a single act allow conviction only for the sale offense.


Holding

The court upheld the sale conviction but reversed the possession conviction because both charges arose from a single act, under Carawan principles. The court found any error in the neighborhood characterization testimony was harmless beyond a reasonable doubt given its isolated nature and lack of prominence in the trial.


Headnotes

[1] A conviction for possession of cocaine with intent to sell cannot stand when it arises from the same single act as a conviction for sale of cocaine.

[2] Characterization of a neighborhood as a "drug supermarket" is generally not relevant to the state's case in a drug prosecution.

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Key Quotes

“Under Carawan, we can uphold only the conviction and sentence for sale.”

Establishes the controlling principle that when sale and possession with intent to sell arise from a single act, only one conviction can stand.

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Facts & Procedural History

On July 10, 1987, Davis sold a $20 piece of cocaine to an undercover police officer. Another officer, hiding in a refrigerator box in the back seat wi…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Mr. Davis appeals his convictions and sentences for sale of cocaine and possession of cocaine with intent to sell. We affirm the conviction and sentence for sale of cocaine, but reverse the conviction and sentence for possession under the principles announced in Carawan v. State, 515 So. 2d 161 (Fla.1987). On remand, resentencing will be unnecessary because the recommended sentence on the scoresheet is unaffected by the reversal of the second conviction. Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989), approved, 556 So. 2d 1103 (Fla.1990).

On July 10, 1987, Mr. Davis sold a $20 piece of cocaine to an undercover police officer who was driving an unmarked car. The sale was observed by another police officer, who concealed his identity by hiding in a refrigerator box in the back seat of the car. The box contained a small slit that allowed the officer to both see and hear Mr. Davis. The officer hid in the box because he had worked extensively in the neighborhood. He believed that Mr. Davis would recognize him. Mr. Davis was not arrested at the scene of the sale, but rather was arrested several days later. At the trial, the state and the defense primarily litigated the issue of identity. The officer testified that he recognized Mr. Davis and identified his voice from prior encounters.

On appeal Mr. Davis raises three issues, only two of which require discussion. First, he correctly observes that the charges of sale and possession with intent to sell arise from a single act. Under Carawan, we can uphold only the conviction and sentence for sale.

Second, Mr. Davis argues that his trial was tainted by the testimony of the officer in the refrigerator box. Over objection, that officer described the neighborhood where Mr. Davis sold drugs as a “drug supermarket.” Typically, such characterizations of a neighborhood in which a crime occurs are not relevant to the state’s case. See Johnson v. State, 559 So. 2d 729 (Fla. 4th DCA 1990). An improper characterization of a neighborhood, however, is not always reversible error. Jefferson v. State, 560 So. 2d 1374 (Fla. 5th DCA 1990).

Assuming it was error to introduce this testimony in this case, any error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The officer’s isolated characterization of the neighborhood was a brief comment and was not repeated in the remaining testimony or mentioned in the closing argument. The testimony was not a focal point of the trial. It certainly was not an attempt to suggest guilt by association because Mr. Davis’s primary defense was that he was at home with his wife when the drug transaction transpired. Cf. Wilkins v. State, 561 So. 2d 1339 (Fla. 2d DCA 1990) (similar testimony was harmful error where intent to sell, rather than identity, was the primary issue).

Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.

RYDER, A.C.J., and HALL, J., concur.


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