IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA , Case No.: SC12-2212Petitioner,

v.

CHAD DAVIS,Respondent.

/

ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

RESPONDENT’S MERITS BRIEF

Frances Martinez, EsquireEscobar & Associates, P.A.Florida Bar No: 00362002917 W. Kennedy Blvd., Suite 100Tampa, Florida 33609Office: (813) 875-5100Facsimile: (813)Email: fmartinez@escobarlaw.com

Filing # 13297477 Electronically Filed 05/05/2014 08:16:10 PM

RECEIVED, 5/5/2014 20:19:03, John A. Tomasino, Clerk, Supreme Court

TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The District Court correctly held that the evidence was insufficient tosupport Davis’ conviction for conspiracy to traffic in cocaine.[restated]... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i

TABLE OF AUTHORITIES

Cases

Borden v. East–European Ins. Co., 921 So.2d 587 (Fla. 2006) . . . . . . . . . . . . . . 11

Daniels v. Fla. Dep’t of Health, 898 So.2d 61(Fla.2005).. . . . . . . . . . . . . . . . . . . 11

Kasischke v. State, 991 So.2d 803 (Fla. 2008). . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Hampton v. State, 39 Fla. L. Weekly D556b (Fla. 5th DCA March 14, 2014). . . 15

Haynes v. Moore, 777 So.2d 1135 (Fla. 4th DCA 2001). . . . . . . . . . . . . . . . . . . . 13

LaPolla v. State, 504 So.2d 1353 (Fla. 4th DCA 1987). . . . . . . . . . . . . . . . . . 11, 12

Leigh v. State, 967 So.2d 1102 (Fla. 4th DCA 2007). . . . . . . . . . . . . . . . . . . . . . . 13

Macchione v. State, 12 So.3d 114 (Fla. 5th DCA 2013). . . . . . . . . . . . . . . . . . . . 16

Pagan v. State, 830 So.2d 792 (Fla. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pallin v. State, 965 So.2d 1226 (Fla. 1st DCA 2007).. . . . . . . . . . . . . . . . . . . . . . 15

Pino v. State, 573 So.2d 151 (Fla. 3d DCA 1991). . . . . . . . . . . . . . . . . . . 11, 13, 15

Schlicher v. State, 13 So.3d 515 (Fla. 4th DCA 2009). . . . . . . . . . . . . . . . . . . . . . 12

Wallace v. State, 860 So.2d 494, 497-98 (Fla. 4th DCA 2003). . . . . . . . . . . . . . . 16

Other Authorities

775.021(1), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

777.04(3), Fla. Stat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

893.135(1)(b)1, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

ii

893.135(5), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

iii

STATEMENT OF THE CASE AND FACTS

Both parties seek discretionary review of the Fifth District Court of

Appeal’s decision in Davis v. State, 95 So.3d 340 (Fla. 5th DCA 2012). Davis

challenges the jurisdiction of the Office of Statewide Prosecution to prosecute his

charges and the State challenges the finding that there was insufficient evidence to

support Davis’ conspiracy charge.

On November 17, 2009, the Office of Statewide Prosecution filed an

Amended Information, charging Chad Davis with Trafficking in Cocaine (400

grams or more) (counts 1 and 4), Conspiracy to Traffic in Cocaine (count 2), and

Transporting the Proceeds of Unlawful Activity (count 3). [R. 29 - 31] The

Amended Information stated the following:

and said offenses occurred in two or more judicial circuits in the Stateof Florida as part of a related transaction or said offenses wereconnected with an organized criminal conspiracy affecting two or morejudicial circuits in the State of Florida.

[R. 31]

As to the conspiracy, the Information alleged that Davis agreed, conspired,

combined or confederated with Robert Adams and/or Samuel Johnson and/or other

persons, known or unknown with the intent that the offense of trafficking in cocaine,

400 grams or more, would be committed. [R. 30]

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The charges stem from a two-year wire-tap investigation conducted by the

Florida Department of Law Enforcement into Robert Adams’ drug trafficking. [T.

37 - 40]

On August 5, 2008, Robert Adams was arrested and, shortly thereafter,

became a cooperating witness for the State in an attempt to mitigate his charges.

[T. 137, 139, 296] At trial, Adams testified that he had been selling cocaine for

five years. [T. 169] He testified that he had entered into a plea agreement wherein,

in exchange of his testimony, he would receive a sentence in the range of 12 to 22

years imprisonment. [T. 189]

Adams explained that he was having a hard time obtaining cocaine from his

usual suppliers because the market was “dry.” [T. 187] Adams asked Major

Moten, whom he regularly supplied with marijuana and cocaine, if he knew Chad

Davis. [T. 175 - 76] Moten explained that, although he had known Davis since

elementary school, he did not have his number. [T. 325, 329] Sometime after

Adams asked for the number, Moten got Davis’ number and gave it to Adams on

July 31, 2008. [T. 338]

The State introduced recorded telephone calls between Adams and a man

named “Chad” on July 31, 2008, wherein, according to Adams’ testimony, Adams

arranged to purchase one kilogram of cocaine from Chad Davis for $26,500 at a

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Winn Dixie in Flagler County. [T. 194 - 96; 198 - 200] Adams testified that, after

he got the cocaine from Davis, he took it to his stash house in Flagler County, cut

it, and divided it into ounces, which were sold in Flagler County. [T. 210-12]

Law enforcement surveilled the encounter at Winn Dixie. [T. 50] According

to Richard Brendal, who led the Adams’ investigation as a special agent for FDLE,

a black man exited a teal Toyota Camry and entered Adams’ gold Cadillac. [T. 31,

50] Although Brendal identified Chad Davis in court as the man that got out of the

Camry, the identity of that man was unknown at the time of the transaction. [T. 50]

Notably, there were no arrests made immediately after this transaction and Brendal

conceded that he did not see the black man carrying anything to or from Adams’

car. [T. 99] The jury ultimately acquitted Davis of any charges stemming from

July 31, 2008. [R. 97]

The State also introduced telephone calls between Adams and “Chad” on

August 1, 2008, wherein, according to Adams, Adams again arranged to purchase

another kilogram of cocaine from Chad Davis. [T. 217 - 20; 230 - 32]

Law enforcement set up surveillance at the Chevron gas station, where the

transaction was supposed to take place. [T. 54] The presumed seller arrived in a

gray Nissan truck. [T. 57] St. John’s County Sheriff’s Officer David Causey, who

was working in an undercover capacity, testified that he saw that the then still

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unidentified black male had a package tucked into his shirt before he entered

Adams’ vehicle. [T. 379, 381, 387] Both he and Brendal identified Chad Davis at

trial as the then-unidentified seller. [T. 387, 67]

Adams was not immediately arrested. He testified that, instead, he took the

cocaine to his stash house, where he confirmed that the “brick” weighed 1000

grams. [T. 235-36] Adams also testified that, although he usually bought cocaine

from Samuel Johnson, he sold the cocaine he had bought from Davis on August 1,

2008 to Johnson in Orlando. [T. 236-37]

Law enforcement followed the gray Nissan truck to a home in Volusia

County. [T. 59 - 60] Officer Causey, the first to arrive at the home, testified that,

when he arrived at the house, the seller was standing in the driveway, talking to

several other people. The seller – still unidentified at this point – took off on foot,

leaving the truck in the driveway. [T. 64] Brendal testified that he saw a white

plastic shopping bag wedged under the front passenger seat of the truck. [T. 68]

The vehicle was searched on August 4, 2008, pursuant to a search warrant,

wherein law enforcement found $26,400 in cash in the plastic bag. [T. 79]

Brendal testified that the black male left behind a white sneaker while

running from police. [T. 64] Although this piece of evidence was never listed in

any police report nor logged into evidence, Brendal claimed that he had kept it in

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his possession and it was subsequently introduced. [T. 66-67]

Deputy Adam Clausen of the Volusia County Sheriff’s Office testified that

he and his K9 officer responded to the residence after the black male had fled. [T.

240] He began searching for a black male wearing plaid shorts, a white shirt, and

one white shoe. [T. 244 - 45] Deputy Clausen testified that he encountered a man

fitting that description. [T. 245] He was eventually seized and booked into the

Volusia County Jail as John Doe for battery on a law enforcement officer. He

bonded out shortly thereafter and was identified from fingerprints as Chad Davis.

On January 6, 2010, Davis filed a Motion to Dismiss Information for Lack

of Jurisdiction, wherein he argued that, because the allegations failed to contain

“clear proof of an actual impact in other judicial circuits,” the statutory

requirement of “two or more circuits” was not satisfied. [R. 34 - 36] On January 7,

2010, the Office of Statewide Prosecution filed a Response, wherein it alleged

that, in order invoke its jurisdiction, only an enabling paragraph is required. [R. 37

- 40]

The case proceed to trial. No drugs were recovered from either transaction

and no cocaine was introduced at trial. Instead, the State relied on Adams’

“expert” testimony to establish that the substance at issue was cocaine and that it

weighed more than 400 grams. [T. 210, 235 - 36] After the State rested, Davis

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unsuccessfully moved for judgment of acquittal, arguing 1) that the State had

failed to establish a conspiracy; 2) that the State had failed to establish both the

identity and the weight of the cocaine at issue; and 3) again raising the issue of

jurisdiction. [T. 472 - 475]

On January 27, 2011, the jury acquitted Davis of count 4 - the transaction

alleged to have occurred on July 31, 2008 and found him guilty of counts 1 and 2

stemming from the August 1, 2008 transaction. [R. 95 - 97] The State nolle

prossed count 3. [T. 482]

On February 22, 2011, Davis challenged the Office of Statewide

Prosecution’s jurisdiction a third time, this time by filing a motion for arrest of

judgment. [R. 104 - 07] The trial court denied the argument. [R. 111-12]

On March 25, 20011, the trial court sentenced Davis as a habitual felony

offender to 45 years imprisonment on count one, to be followed by 15 years

probation on count 2. [R. 132 - 137]

Davis timely appealed his convictions. The Fifth District Court of Appeal

reversed Davis’ conspiracy conviction finding that

Here, the State’s evidence was insufficient to establish conspiracybecause it did not show an agreement between the defendant and anyperson to commit the same act of selling, purchasing, delivering, orpossessing cocaine. Instead, the evidence simply established the

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planning and execution of a buy-sell transaction between the defendantand Adams.

The Fifth District affirmed Davis’ trafficking conviction. Davis filed a

Motion for Rehearing, arguing that his claim that the Office of Statewide

Prosecution – the prosecuting authority in this case – lacked jurisdiction was

strengthened by the court’s opinion vacating his conspiracy conviction and

warranted reversal. The Fifth District denied the Motion for Rehearing without

opinion.

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SUMMARY OF THE ARGUMENT

There was insufficient evidence to support Davis’ conspiracy to traffic in

cocaine conviction. The plain language of the conspiracy and trafficking statutes

prohibit an agreement with another person to sell, purchase, manufacture, deliver,

bring into the state or possess a trafficking amount of cocaine. It only follows that

the parties must agree to commit the same act.

The evidence showed that Davis participated in a simple “buy-sell”

transaction with Adams and there was no evidence that any third party was

involved. Where there has been a single buy-sell transaction, there is not an

agreement to commit the same offense and no conspiracy can exist.

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ARGUMENT

ISSUE: The District Court correctly held that the evidence wasinsufficient to support Davis’ conviction for conspiracy totraffic in cocaine. [restated]

Standard of Review

The standard of review of the sufficiency of the evidence is de novo. Pagan

v. State, 830 So.2d 792, 803 (Fla. 2002). To uphold the trial court's denial of

Davis’ motion for judgment of acquittal, this Court must find that “after reviewing

the evidence in the light most favorable to the State, a rational trier of fact could

find the existence of the elements of the crime beyond a reasonable doubt.” Id.

Analysis

Mr. Davis was charged with conspiracy to traffic in cocaine. Specifically,

the Information alleged that Mr. Davis agreed, conspired, combined or

confederated with Robert Adams and/or Samuel Johnson and/or other persons,

known or unknown with the intent that the offense of trafficking in cocaine, 400

grams or more, would be committed. [R. 30]

A person traffics in cocaine when he “knowingly sells, purchases, . . .

delivers, . . . or is knowingly in actual or constructive possession of 28 grams or

more of cocaine.” § 893.135(1)(b)1, Fla. Stat (2008). Conspiracy to traffic in

cocaine occurs when a person “agrees, conspires, combines, or confederates with

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another person to commit any act prohibited by” the offense. § 893.135(5).

Mr. Davis challenged the sufficiency of the evidence at trial in his motion

for judgment of acquittal. He argued

The evidence has been that the agreement that existed to Mr. Adams,was that Mr. Davis was to sell and Mr. Adams was to buy cocaine, andthat as a result of that, Judge, both parties have to agree to commit thesame offense. And the buying of a drug and the selling of a drug, thatis not a conspiracy between those two people.

If Mr. Davis and Mr. Adams were selling – or agreed to seel drugs to athird party, then, yes, they would have a conspiracy. But based upon thetestimony that’s been presented, Judge, the – there was no conspiracybetween Mr. Adams and Mr. Davis.

[R. 473]

The Fifth District Court of Appeal agreed, finding that the evidence was

insufficient to establish conspiracy because it did not show an agreement between

Davis and any person to commit the same act of selling, purchasing, delivering, or

possessing cocaine. Instead, the evidence simply established the planning and

execution of a buy-sell transaction between Davis and someone else.

The State challenges that holding, arguing that the evidence is sufficient to

establish a conviction. The State argues that the plain language of the relevant

statutes provides that any “agreement with others to commit the offense of

trafficking is a conspiracy to traffic.”

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To the contrary, the plain language of 893.135(5), punishes the agreement to

commit any of the acts prohibited by 893.135 - selling, purchasing, manufacturing,

delivering, bringing into the state or possessing a trafficking amount of the

delineated controlled substance. The conspiracy statute, therefore, is inapplicable

to a buy-sell transaction because the parties do not agree to commit the same

“prohibited act.”

When construing a statute, courts strive to effectuate the Legislature’s

intent. Kasischke v. State, 991 So.2d 803, 807 (Fla. 2008). To determine that

intent, courts look first to the statute’s plain meaning. Borden v. East–European

Ins. Co., 921 So.2d 587, 595 (Fla. 2006) (“[W]hen the statute is clear and

unambiguous, courts will not look behind the statute’s plain language for

legislative intent or resort to rules of statutory construction to ascertain intent.”

(quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)).

The crime of conspiracy is comprised of the mere express or implied

agreement of two or more persons to commit a criminal offense; both the

agreement and an intention to commit an offense are essential elements. See Pino

v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991); LaPolla v. State, 504 So.2d

1353, 1357 (Fla. 4th DCA 1987); see also § 777.04(3), Fla. Stat. However,

“[l]ogic demands that the agreement that constitutes the conspiracy must be an

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agreement to commit the same criminal offense.” Schlicher v. State, 13 So.3d 515,

517 (Fla. 4th DCA 2009)(emphasis in original).

In Schlicher, the defendant was charged with purchasing cocaine from the

head of a cocaine trafficking organization, Jose, who law enforcement was

investigating. The State introduced recorded conversations between Schlicher and

Jose. 13 So.3d at 517. The Fourth District held that the evidence failed to

establish that the Schlicher and Jose had an express or implied agreement to

purchase cocaine, or that both had the shared the common intent to purchase

cocaine. Id. Rather, the State’s evidence established that the alleged

co-conspirators had different criminal intents - one to purchase and one to sell.

When such occurs, there can be no conspiracy. Id.

The State erroneously relies on LaPolla, 504 So.2d 1353 for the proposition

that a jury could infer that Davis and Adams had a common purpose to violate the

“drug trafficking laws”, irrespective of any intent to commit a specific act. In

LaPolla, however, three defendants were charged with conspiring with each other

to deliver cocaine to an undercover officer. In this case, on the other hand, Davis

was charged with conspiring with Robert Adams and/or Samuel Johnson, both of

whom would have been on the opposite side of the buy-sell transaction.

Likewise, in Haynes v. Moore, 777 So.2d 1135 (Fla. 4th DCA 2001), upon

12

which the State also relies, the Fourth District upheld Haynes’ conspiracy

conviction because the State presented circumstantial evidence of his agreement to

traffic in cocaine with his codefendant, Miller including: Haynes handed Miller a

bag containing money, he accompanied Miller to the undercover vehicle; Haynes

went into the undercover vehicle and while there received packages of cocaine, he

tested and approved of the cocaine; he exited the undercover vehicle and walked

away carrying two kilos of cocaine. Notably, the agreement was with someone

who was charged as a co-defendant and was on the same side of the transaction as

the appellant

Similarly, in Leigh v. State, 967 So.2d 1102 (Fla. 4th DCA 2007), the

conspiracy conviction was upheld because the evidence showed that two or more

defendants were engaged in the sale or purchase of drugs from a third party. The

defendants were convicted based on their conspiracies with each other, all of

whom were on the same side of the transaction. The Fourth District reasoned that,

in order to carry out either the joint purchase or the joint sale of drugs, there must

have been a prior agreement among the defendants to achieve that sale, or else the

sale would not have occurred. Id. at 1105 (citing Pino, 573 So.2d at 152).

However, no such similar evidence exists in this case. Instead, the evidence

showed that Davis participated in a simple “buy-sell” transaction with Adams.

13

Taken in the light most favorable to the State, the evidence showed that Adams

contacted Davis, negotiated a price, and then bought a trafficking quantity of

cocaine. There was no evidence that any third party was involved. The State

argues that Davis’ reference to “they” in his recorded conversation with Adams

about the price indicates that a third party was involved. However, there was no

evidence that “they” actually existed or that Davis conspired with “them.” As

such, the Fifth District properly found that Davis’ reference to supposed

anonymous third persons was not sufficient to support a conspiracy conviction.

The fact that Adams may have then sold that cocaine to Johnson is

inapposite. There was no evidence to suggest that Davis knew of Adams’ intent,

let alone that he too intended for the additional sale. Like in Schilicher, the State

did not produce any evidence that Davis knew of Adams’ relationship with

Johnson, nor did the State argue such a theory during trial. Additionally, it cannot

be overstated that the jury acquitted Davis of the trafficking alleged to have

occurred on July 31, 2008 in count four of the Amended Information. As such,

there is only one sale from which to make an inferences.

The State properly concedes that the view advocated by Davis – that no

conspiracy exists when the participants are on the same sides of the transaction –

has been acknowledged by all of the federal circuits.

14

Appellant acknowledges that the Fifth District receded from Davis in

Hampton v. State, 39 Fla. L. Weekly D556b (Fla. 5th DCA March 14, 2014).

However, Appellant submits that the court did so erroneously in light of the

arguments presented above.

Moreover, a conspiracy is not based on only one buy-sell transaction

between two people. Florida courts have generally affirmed convictions for

conspiracies to buy or sell drugs where the “defendants are involved in a series of

meetings, arrangements and negotiations to sell or buy illegal drugs that lead to

such sale or purchase.” Pino, 573 So.2d at 152. (emphasis added); Pallin v. State,

965 So.2d 1226 (Fla. 1st DCA 2007)(evidence sustained conviction for conspiracy

where there were multiple sales of resale quantity). However, the State grossly

mischaracterizes Davis as “a middleman between buyers and sellers who were able

to handle at least a kilo of cocaine a day” and as the “seller of a large quantity of

cocaine on successive days.” Neither is supported by the record. The jury

acquitted Davis of the trafficking alleged to have occurred on July 31, 2008 in

count four of the Amended Information. As such, there is only one sale.

Finally, in the event this Court finds that the plain meaning is neither clear

nor unambiguous, then the Court must resort to the rules of statutory construction.

Kasischke v. State, 991 So. 2d at 811. In such an event, the Court would be

15

required to apply the rule of lenity – a “deeply-rooted common law principle of

statutory construction requiring strict interpretation of ambiguous criminal statutes

in favor of the accused..” Macchione v. State, 12 So.3d 114 (Fla. 5th DCA 2013);

see also § 775.021(1), Fla. Stat. (2014)(“The provisions of this code and offenses

defined by other statutes shall be strictly constructed; when the language is

susceptible of differing constructions, it shall be construed most favorably to the

accused.” In other words, “if there is a reasonable construction of a penal statute

favorable to the accused, the court must employ that construction.” Wallace v.

State, 860 So.2d 494, 497-98 (Fla. 4th DCA 2003). Such an analysis dictates that

Davis’ conspiracy conviction be overturned.

Because the State failed to establish sufficient evidence to sustain a

conviction for conspiracy to traffic in cocaine, the Fifth District properly reversed

the trial court’s denial of Davis’s motion for judgment of acquittal as to count two.

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CONCLUSION

For the reasons argued herein, Respondent respectfully requests that this

Honorable Court deny this appeal and affirm the Fifth District Court of Appeals’

reversal of the trial court’s denial of Davis’ motion for judgment of acquittal.

Respectfully submitted,

/s/ Frances E. MartinezFrances Martinez, Esquire Escobar & Associates, P.A.2917 W. Kennedy Boulevard, Suite 100Tampa, Florida 33609Tel: (813) 875-5100Fax: (813) 877-6590Florida Bar No. 0036200fmartinez@escobarlaw.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by e-service to the Office of the Attorney General and the Office of the

State Attorney, this 5 day of MAY, 2014.th

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Initial Brief of Appellant satisfies

the font requirements of Florida Rules of Appellate Procedure 9.100(l) and

9.210(a)(2).

/s/ Frances E. Martinez Frances Martinez, Esquire Escobar & Associates, P.A.2917 W. Kennedy Boulevard, Suite 100Tampa, Florida 33609Tel: (813) 875-5100Fax: (813) 877-6590Florida Bar No. 0036200fmartinez@escobarlaw.com

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