The Defendant, Jerrold Jackson, was sentenced to fifteen years with a seven-year mandatory minimum on the cocaine charge and to time served on a misdemeanor possession of marijuana. Because the State failed to establish that the weight of the cocaine was 200 grams or more, the appeals court reverse with instructions that this conviction be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.
A police officer testified at the trial that execute a search warrant at the Defendant's home and incident to the search, found powder cocaine which a drug dog alerted to at several locations throughout the residence.
Here is where the state's case imploded. When the crime lab technician testified that she tested two items recovered from Defendant's residence and that: "One consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine."
The Defense moved for a judgment of acquittal, as would have a Clearwater Criminal Defense Lawyer, because the State failed to meet its burden as to possession of cocaine in an amount exceeding 200 grams because no evidence was presented that the other seven baggies contained cocaine, but he trial court denied the motion.Here is where the state's case imploded. When the crime lab technician testified that she tested two items recovered from Defendant's residence and that: "One consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine."
In reversing the decision of the trial Court and making a finding that the weight of cocaine had not been established by the State of Florida, the Florida Appeals Court also noted:
A visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of a vast variety of other white powdery chemical compounds not containing cocaine. Moreover, the fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.
In this case, the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder).
FDLE BETTER DO A LAB TEST ON ALL THE COCAINE IN THIS HOURGLASS
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| Temperance Bearing an Hourglass |
