VAIL V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2004 ERIC ALEXANDER VAIL, Appellant, vs. ** ** ** THE STATE OF FLORIDA, Appellee. CASE NO. 3D03-3078 ** ** LOWER TRIBUNAL NO. 03-3775 ** Opinion filed December 22, 2004. An Appeal from the Circuit Court for Miami-Dade County, Mary Barzee, Judge. Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee. Before GREEN, FLETCHER, and WELLS, JJ. PER CURIAM. The defendant, Eric Vail, appeals from his conviction and sentence for drug possession charges. For the following reasons, we affirm. Officer Allen Davis was dropping off Sergeant Rolando Davis and Officer Jason Ferguson when they observed a drug transaction involving the observed an Pedrosa and defendant. Sergeant defendant exchange then the and of a Rafael small exchange Pedrosa. item of from money Sergeant the from Davis defendant Pedrosa to to the Pedrosa walked away from the defendant and toward Davis, who was dressed in civilian clothes. When Pedrosa was close to Sergeant Davis, the sergeant removed his badge and Pedrosa threw an item to the ground. Pedrosa was arrested thereafter. The Davis defendant and observed Pedrosa. As the interaction Sergeant Davis between was Sergeant watching, the defendant turned his back and placed something into his waist area. The defendant then walked toward the front of a maroon van and placed something inside the van. the defendant put baggies arrested the defendant. into his Officer Ferguson saw front pocket. He then Officer Ferguson confiscated thirteen baggies and $35 dollars from the defendant. He also picked up the item that Pedrosa had thrown, another baggie. all contained individual rocks of cocaine. 2 The baggies Both Sergeant Davis and Officer Ferguson testified that after the defendant was arrested, Sergeant Davis stated that he had seen the defendant throw something in the van. Before either officer retrieved anything from the van, the defendant stated, the gun that s in the van don t belong to me. Sergeant Davis then looked into the van and retrieved a gun. Initially, the defendant denied that he was involved in any untoward activity. asked Sergeant However, during his transport, the defendant Davis not to charge him with a gun charge. Sergeant Davis told the defendant to tell him everything, and the defendant admitted that he had been selling drugs. Prior to trial, the defendant moved in limine to exclude any mention of the gun that was found in the van. argued that evidence of the gun was irrelevant The defense to the drug charges and highly prejudicial; that there was no nexus between the gun and the charges against the defendant; and that the gun was evidence of an uncharged collateral crime. The court denied the motion. After the state rested its case, the defendant moved for judgment of acquittal, which was denied. and renewed his motion for judgment The defendant rested, of acquittal and his objections regarding the gun evidence, were again denied. Jury instructions were given and the jury retired. Approximately forty-five minutes later, the jury sent out two 3 notes requesting to read Officer Ferguson s testimony. The defense requested that the court instruct the jury to rely on their recollection of the in-court testimony. The judge gave the jury a note which stated: a transcript of the testimony is not available at this time. You should rely on your collective recollection of the testimony. If you wish, the court reporter can read back the entire testimony for you, but I will not assume that is necessary unless I hear further from you. Shortly thereafter, the jury asked to have the court reporter read back Officer Ferguson s testimony. the testimony, the jury continued After the reading of to deliberate for an additional hour or so before going home for the night. The jury resumed deliberations the next day. Midmorning, the jury submitted a note that read: Your Honor, if we cannot come to a happens? jury s unanimous agreement on of the charges what The court read the instruction which explains the review of separately charged evidence pertaining to each crime.1 1 one crimes based upon The defense objected on Specifically, the court read: A separate crime or offense is charged in each count of the information. Each charge and evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the offenses charged should not affect your verdict as to any other offenses charged. I caution you members of the jury that you re here to determine from the evidence in this case whether the defendant is guilty or not guilty. Okay. The 4 the grounds that the jury was not informed that it was permissible to be deadlocked or hung. Later in the day, out of the presence of the jury, the State moved for the court to give the jury an Allen charge, pointing out that the jury had been deliberating for ten hours on a case that only took three hours to try.2 The defense objected without to giving a sua sponte Allen charge indication from the jury that it was deadlocked. an The judge refused to give the requested charge. Soon after, the State made a second motion for an Allen charge, which the court, again, denied. Instead, the judge brought the jury out and informed them that they could stay and continue working or leave and return the next day to continue their deliberations. The jury retired to the jury room. State once again requested an Allen objected. The charge, and the defense The defendant also renewed his previous objection to the court s refusal to give the jury the option to be deadlocked if they could not reach a unanimous decision on one of the charges. The State suggested that the court give the Allen charge alleviate to the defense s concerns. The defendant defendant is on trial on him [sic] for those specific offenses alleged in the information. 2 An Allen charge is a supplemental instruction generally given when it appears the jury is having difficulty reaching a verdict. Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990). 5 vehemently objected to the giving of an Allen charge claiming that it would defendant s be coercive. objection The constituted a court stated waiver, and that the denied the State s suggestion. At 5:20 p.m., the jury sent out its fifth note which read: Your, Honor, We feel we are close to a unanimous decision and need to work until 6:00. Both sides agreed to let the jury continue without any additional instructions. Twenty minutes later, the jury announced that it had reached a verdict. The jury found the defendant guilty of the lesser included offense of possession of cocaine on both counts. and they were all in agreement. The The jury was polled defendant renewed his objection to the court s failure to advise the jury that it could come back hung. A motion for new trial was filed on grounds that the verdict was contrary to the law and the weight of the evidence. An amended motion was filed claiming that it was error to admit evidence of the collateral crime of the gun. The motion for new trial was denied and the defendant was sentenced, in accordance with the sentencing guidelines, to five years imprisonment for count one and two years imprisonment for count two. The sentences were to run consecutively. On appeal, the defendant claims that the trial court erred in, among other things, allowing the state to introduce evidence 6 of the gun found in the van, refusing to give the requested Allen charge when the jury sent out the note inquiring into what happened if they did not reach a unanimous decision, and admitting Sergeant Davis improper comment that the area where the defendant was arrested was known to have crack houses . 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. Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993). To that end, [E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charge, . . . . is admissible . . . because it is a relevant and inseparable part of the act which is in issue. It is necessary to admit the evidence to adequately describe the deed. Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994). In this case, the evidence showed that Sergeant Davis saw the defendant place something in the maroon van, and that soon after the defendant stated that there was a gun in the van that was not his. This evidence was inextricably intertwined with the observations and investigation that the police held before and during the defendant s arrest. Moreover, the gun evidence was also relevant to the defendant s admission after his arrest. The defendant admitted to Sergeant Davis that he had been selling drugs in hopes of avoiding a gun possession charge. 7 Without the statements regarding the gun, the defendant s sudden turn around and admission of guilt would have been confusing to the jury. Accordingly, we find no error in the admission of See Henry v. State, 649 So. 2d 1366 (Fla. 1994) this evidence. (finding that evidence of collateral crime was necessary to establish the investigation context leading of up subsequent confession). 262, 265 (Fla. regarding 1st events to the and to describe the arrest and defendant s See also Austin v. State, 500 So. 2d DCA 1986) circumstances (holding immediately that prior to testimony arrest given was so inextricably intertwined that an intelligent account of the criminal episode could not have been given without it). Defendant also asserts that the court s failure to give an Allen charge constituted grounds for a new trial. merit to this complaint. We find no Although it is recommended that a court give an Allen charge when a jury is deadlocked, such a charge is not required. 978 n.7 (Fla. 1999). record before deadlocked. us See Thomas v. State, 748 So. 2d 970, Moreover, there is no indication from the that the jury in this case was, in fact, In addition, any error regarding the failure of the court to give an Allen charge was waived by the defense when it objected to the giving of such charge at a later time in the deliberations. 8 Finding no merit in the defendant s affirm. 9 other argument, we
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