VERNAL E. MALCOLM, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1982-06-29
No. 80-2298
Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
415 So. 2d 891 Florida District Court of Appeal, Third District (1982)

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Synopsis

Malcolm's convictions for marijuana sale and possession were reversed because the trial court erroneously admitted evidence of unrelated drug investigations and a prior similar sale at the same location. The admission of such 'collateral crimes' evidence violated the Williams rule and prejudiced the defendant, requiring reversal for a new trial.


Holding

The convictions are reversed for a new trial. The trial court erred in admitting evidence of collateral crimes under the Williams rule. Such evidence should be presumptively inadmissible unless the state affirmatively establishes its propriety. The error was not harmless, and only a new trial can remedy the prejudice created by allowing the jury to hear the clearly prejudicial evidence.


Headnotes

[1] Evidence of collateral crimes is presumptively inadmissible and must be excluded unless the state affirmatively establishes its propriety.

[2] A trial court errs by admitting evidence of collateral crimes when the state cannot establish its admissibility under the Williams rule.

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Key Quotes

“Evidence of "collateral crimes" should be considered presumptively inadmissible and excluded unless the state can affirmatively establish its propriety.”

Establishes the proper evidentiary standard: collateral crimes evidence must be presumptively excluded unless the state meets its burden of justification.

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Facts & Procedural History

Malcolm was charged with sale and possession of marijuana. At trial, evidence was admitted regarding Malcolm's involvement in another drug investigati…

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Opinion of the Court
SCHWARTZ, Judge.

SCHWARTZ, Judge.

Malcolm’s convictions for the sale and possession of marijuana are reversed for a new trial because the trial court erro neously admitted evidence of the defendant’s involvement in another drug investigation and a previous similarly unrelated sale at the premises where the one in question allegedly occurred. State v. Norris, 168 So. 2d 541 (Fla.1964); Dillman v. State, 411 So. 2d 964 (Fla. 3d DCA 1982), and cases cited; Beneby v. State, 354 So. 2d 98 (Fla. 4th DCA 1978), cert. denied, 359 So. 2d 1220 (Fla.1978); Roche v. State, 326 So. 2d 448 (Fla.2d DCA 1976); see Williams v. State, 110 So. 2d 654 (Fla.1959); Sec. 90.404(2), Fla. Stat. (1981).

There is no merit in the state’s position on appeal, which concedes error but claims that the issue was not preserved below. The record shows both that, prior to the taking of testimony, defense counsel timely moved to “strike” or exclude evidence of any criminal activity other than that charged in the information1 and that, at the end of the trial, he unsuccessfully moved for a mistrial on grounds which, while clumsily expressed, were sufficient, as the trial judge’s comments in denying the motion demonstrate, fairly to apprise the lower court of the Williams-rule violation which has been asserted on appeal. See, Williams v. State, 414 So. 2d 509 (Fla. Case no. 58,704, opinion filed, May 13,1982). Finally, we cannot find that the error was harmless.2

Reversed.

. The motion was denied as premature on the stated basis that such evidence might become admissible if the Williams criteria were later satisfied. This ruling was clearly erroneous. Evidence of “collateral crimes” should be considered presumptively inadmissible and excluded unless the state can affirmatively establish its propriety. See Sec. 90.404(2)(b), Fla.Stat. (1981). In this case, it admittedly could not do so. The adoption of the contrary procedure, as below, results in the jury’s hearing the clearly prejudicial evidence in question, subject to its being later “stricken” with only an accompanying instruction — of legendary ineffectiveness— that it should be disregarded. However (if, as here, the contention is appropriately preserved), only a new trial serves to remedy the situation which has been thus created.

The same observation applies to what occurred when three police officers testified below. In each case, the first reference to other offenses was met with an objection on Wil-I/ams-rule grounds; in each case, the court then reserved ruling; in each case, only after the offending testimony had been presented to the jury, the objection was sustained when, as was inevitable from the outset, the state failed to “connect it up.” It was wrong to proceed as if the court did not know what everyone in the courtroom must have realized — that the other crimes evidence could not have been permissible in this trial. Moreover, although we need not directly decide the point, since the practical effect of reserving ruling was under these circumstances the same as overruling the objections, it may be that reversible error was committed (and simultaneously preserved for appellate purposes) simply because the objections were not, as they should have been, immediately sustained.

. Apparently in order to convince us to the contrary, the state’s brief in this case contains the following impertinent statement:

Immediately prior to trial, defense counsel indicated the defendant’s willingness to plead guilty to the three pending charges. (T. 4-7). When the court indicated it was only prepared to accept the plea to the single case before it, the plea offer was withdrawn (T. 8) and the trial commenced. (T. 9).

We consider this reference both as an attempt improperly to influence the court and, in its unstated assumption that it might have that effect, as an insult either to our intelligence or our integrity. We have a right to and do expect more from any counsel who appears before us, particularly one who represents the state of Florida.


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