ANDREW ALEXANDER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Andrew Alexander was convicted of unlawful heroin possession following a non-jury trial where the State marked heroin packets for identification but never actually introduced them into evidence. The Florida District Court of Appeal reversed, holding that the corpus delicti of drug possession must be proven by introducing the actual heroin into evidence, and that marking exhibits for identification without admission into evidence violates the defendant's right to confront witnesses.
A defendant cannot be constitutionally convicted of heroin possession without the State introducing the actual heroin into evidence as proof of the corpus delicti. Merely marking exhibits for identification without introducing them into evidence denies the defendant a meaningful opportunity to cross-examine witnesses and violates due process rights. This rule applies equally to non-jury and jury trials.
[1] A conviction for unlawful possession of a controlled substance cannot stand when the alleged contraband was marked for identification but never formally introduced into e…
[2] A defendant's constitutional right to confront witnesses is violated when exhibits, though marked for identification, are not admitted into evidence, thereby preventing e…
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Join FLexlaw to unlock all legal intelligence“The right of a defendant to cross-examine witnesses and his right to present evidence in opposition to or in explanation of adverse evidence are essential to a fair hearing and due process of law.”
Establishes the fundamental constitutional principle underlying the court's decision
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Join FLexlaw to unlock all legal intelligenceDuring a traffic stop for speeding, police found plastic bags allegedly containing heroin packets and money in Alexander's possession. At trial, the a…
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PER CURIAM.
Defendant-appellant was informed against, tried non-jury, convicted and sentenced to serve 360 days hard labor in the county jail plus four years probation for unlawful possession of heroin [Fla.Stat. § 398.03, F.S.A.].
At the trial the arresting officer testified that he saw the defendant speeding, arrested him for this violation, made a routine search as a result of which he found in defendant’s possession a plastic bag which the officer claimed contained packets of heroin and money. The several packets were placed before the trial court and marked for identification. However, they were never placed into evidence. Nevertheless, the trial judge overruled defense counsel’s objections as to the prosecution’s request that the exhibits be marked for identification. The second witness, a chemist from the Dade County Safety Department, testified concerning the chain of custody and the scientific experiments employed in determining that the packets contained heroin. Defense counsel rested his case without cross-examining the chemist and then moved for judgment of acquittal on the grounds that the prosecution never offered into evidence the heroin. This motion was denied. The trial court found defendant guilty and entered its conviction from which defendant appeals.
Defendant-appellant contends the court erred in finding defendant guilty where the state failed to prove the corpus delicti of the offense of possession of heroin by the best evidence available (i. e. introduction into evidence of the heroin packets), and defendant was deprived thereby of his constitutional right to confront witnesses. We concur. The right of a defendant to cross-examine witnesses and his right to present evidence in opposition to or in explanation of adverse evidence are essential to a fair hearing and due process of law. See Horton v. State, Fla.App.1964, 170 So. 2d 470 at 474.
After a careful examination of the record on appeal, we conclude that there was no indication of probable tampering with the packets of heroin and thus, these packets should have been introduced into evidence. See Bernard v. State, Fla.App.1973, 275 So. 2d 34 and cases cited therein. The packets in the case sub judice having been marked for identification, but not introduced into evidence, defendant was denied thereby of a real opportunity to cross-examine the witnesses of the prosecution. For a mere formal proffer of an opportunity to cross-examine, where the circumstances as in the case at bar are such that the accused cannot effectively avail himself of it, is not a sufficient observance of the right. 21 Am.Jur.2d Criminal Law § 333 (1965).
In addition, the mere fact that an exhibit has been marked for identification is not by itself sufficient. It should appear that it was actually offered and admitted into evidence. And when not properly used as evidence, the exhibits should be removed from the presence of the jury in a jury trial. See 13 Fla.Jur. Evidence § 285 (1957). The trial judge having allowed what purported to be the alleged heroin packets to be marked for identification and placed on exhibit, the prosecution should have followed up in introducing the exhibits into evidence. Cf. Williams v. State, Fla.App.1966, 188 So. 2d 320 at 334. This rule is applicable to jury trials and we hold that it is equally applicable in non-jury trials.
For the reasons cited hereinabove, we reverse the defendant’s conviction and remand the cause for a new trial.
Reversed and remanded.
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G. E. G. v. State, 417 So. 2d 975 (Fla. 1982)…the trial court for action consistent with our opinion. It is so ordered. ALDERMAN, C. J., and OVERTON and McDONALD, JJ., concur. BOYD, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs. . Alexander v. State, 288 So. 2d 538 (Fla. 3d DCA 1974). . We are mindful that in Roberts v. State, 164 So. 2d 817 (Fla.1964), the only case in which this Court has addressed a similar issue, we found no error in the failure of the state to introduce a test bullet into evidence. Rober…
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Smith v. State, 305 So. 2d 868 (Fla. 3d DCA 1975)…dence during the trial effectively deprived him of his right to confront the evidence against him, citing this court’s holdings in Johnson v. State, Fla.App.1971, 249 So. 2d 470 aff’d, Fla.1973, 280 So. 2d 673; and Alexander v. State, Fla.App. 1974, 288 So. 2d 538. The record affirmatively shows that instead of producing the saw the state introduced two photographs taken of the saw shortly after the theft as well as a bill of sale for purposes of establishing its value. At trial, the prosecutor informed the…
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Causey Harrell v. State, 405 So. 2d 480 (Fla. 3d DCA 1981)…(no reversible error in display of clothing and bedding which did not connect defendant with scene of crime, did not have gruesome quality or appearance, and did not tend to prove crime more serious than charged). We note that in Alexander v. State, 288 So. 2d 538 (Fla. 3d DCA 1974), the court based its opinion on the belief the defendant was deprived of a constitutional right to confront witnesses and that the Alexander opinion has not been followed, see G. E. G. v. State, 389 So. 2d 325, 326 (Fla. 5th DCA 1…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 188 So. 2d 320 (Fla. 2d DCA 1966)
- Steinc v. State, 275 So. 2d 34 (Fla. 2d DCA 1973)
- Horton v. State, 170 So. 2d 470 (Fla. 1st DCA 1964)