final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Barry M. Cohen, Senior Judge; L.T. Case
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Joseph D. Coronato,
Jr., Assistant Attorney General, West Palm Beach, for
Dawson ("Defendant") appeals his conviction and
sentence for one count of trafficking in oxycodone in an
amount greater than 25 grams but less than 100 grams and one
count of possession of cocaine. Finding merit in
Defendant's argument that the multiple references to
collateral crimes evidence deprived him of a fair trial, we
reverse and remand for a new trial.
date of Defendant's arrest, police were conducting
surveillance of a house in Boynton Beach as they waited to
execute a search warrant on the house. Defendant resided at
the house. Officers observed Defendant park his gold Buick in
the driveway of the house next door to the target house.
Shortly thereafter, a male ("the passenger") pulled
up into the same driveway and entered the passenger side of
Defendant's vehicle. The passenger did not appear to have
any items in his hands as he entered the vehicle.
seconds of the passenger entering the vehicle, several
officers converged upon the vehicle. One of the officers
observed Defendant sitting in the driver's seat with a
yellow prescription pill bottle on his lap. A search of the
vehicle revealed a baggy containing crack cocaine, cash, two
cell phones, and prescription pill bottles and baggies
containing oxycodone pills. In total, officers recovered from
Defendant's vehicle approximately 250 oxycodone pills
with a net weight of 33.766 grams. None of the items
retrieved from the vehicle were tested for fingerprints or
denied having any knowledge about the contraband, cash, or
cell phones found inside the vehicle and further denied
having a pill bottle on his lap when officers converged on
the vehicle. Defendant explained that although he owned the
vehicle, he often allowed other people to use the vehicle.
The passenger, in turn, insisted that he never observed a
prescription pill bottle on Defendant's lap when officers
converged on the vehicle.
trial, the prosecutor and three of the State's witnesses
referred to the fact that Defendant's house was under
surveillance, that a search warrant related to narcotics had
been issued, and that Defendant was the target. In each
instance, defense counsel objected and moved for mistrial on
the basis that the references were irrelevant and improperly
inferred Defendant had previously engaged in illegal drug
activity. Although the court sustained each objection, it
denied the motions for mistrial and twice provided curative
first reference occurred when the prosecutor asked one of the
narcotics officers whether "an investigation [was]
commenced which ultimately led to a lawful search of Mr.
Dawson's residence?" Defense counsel objected before
the officer could answer the question. The officer was
permitted to testify, however, that a lawful search was
ultimately conducted. The second reference occurred when a
different officer testified that he was dispatched on the day
in question to assist in the execution of a narcotics search
warrant. The third reference occurred when a SWAT officer
testified that he and his team were waiting nearby to execute
the search warrant and "got the signal to move in when
the defendant had arrived [and] we proceeded to the
jury deliberations, the jury submitted the following
question: "What was the warrant for and what address was
the warrant to be executed at?" The court responded by
telling the jury that the answer to the question must be
found in the evidence presented at trial. The jury ultimately
found Defendant guilty of trafficking in oxycodone and
possession of cocaine as charged.
thereafter moved for new trial, arguing that the court erred
in denying his motions for mistrial based upon the improper
references to the search warrant. Defendant maintained that
the cumulative references to the search warrant insinuated
that Defendant had previously engaged in illegal drug
activity which led to the issuance of a warrant to search his
house. Moreover, although the court twice provided curative
instructions, the instructions were clearly insufficient in
light of the jury's question. Despite acknowledging that
Defendant had "a very good appellate point," the
court denied the motion. This appeal follows.
well established "that mistrial is a drastic remedy to
be granted only when an error is so prejudicial as to vitiate
the entire trial, and only when necessary to ensure the
defendant receives a fair trial." Jones v.
State, 128 So.3d 199, 201 (Fla. 1st DCA 2013). One way
in which a criminal defendant is prejudiced to the extent of
necessitating a mistrial is when irrelevant collateral crimes
evidence is erroneously admitted at trial. Id. The
reason being that "the erroneous admission of irrelevant
collateral crimes evidence is presumed harmful error because
of the danger that a jury will take the bad character or
propensity to crime thus ...