04-0927 ZULUAGA V. STATE

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State: Florida

Court: Florida Third District Court

Docket No: 04-0927 ZULUAGA V. STATE

Case Date: 12/21/2005

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2005

GIOVANNI ZULUAGA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 01-6117 CASE NO. 3D04-927

Opinion filed December 21, 2005. An Appeal from the Circuit Court for Miami-Dade County, Henry Leyte-Vidal, Judge. Bennett H. Brummer, Public Defender, Assistant Public Defender, for appellant. and Robert Kalter,

Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before FLETCHER, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, J. The defendant, Giovanni Zuluaga, appeals his conviction for trafficking in methylenedioxymethamphetamine (Ecstasy) following a jury trial. He claims that he is entitled to a new trial

based upon (1) the introduction of inadmissible hearsay, (2) the improper bolstering of the credibility of the informant who

testified at trial, and (3) an improper argument made during the State's closing argument. Noris Barcimento, a We affirm. paid informant, working for the

government for the past ten years, contacted DEA Agent Crispin whom she had been working with for the last five years, and informed him that a large shipment of Ecstasy had been smuggled into the Miami area from Colombia. Crispin that she had contacted the The informant told Agent co-defendant, who later

became known as Alejandro Sanclemente, and believed she could purchase a quantity of Ecstasy pills from him. met with the co-defendant, discussed the Ms. Barcimento of 15,000

purchase

Ecstasy pills, and was given a sample.

The following day, Ms.

Barcimento arranged a meeting with the co-defendant to make the purchase and, upon arriving at the ultimate location to conduct the transaction, was approached by the defendant, who placed a blue bag containing 15,000 Ecstasy pills in her car, wherein he was immediately seized by agents and placed under arrest. Agent Salameh, the arresting agent, testified that

immediately upon his seizure of the defendant, the defendant indicated that he wished to speak to him. He therefore read the

defendant his rights per Miranda, which the defendant waived. The defendant told Agent Salameh that he had approximately

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170,000 more pills, which he referred to as "Ecstasy," back at his residence. He explained that the pills came from Europe and

that he was paid $1,000 by a gentleman to store them and an additional $80 to deliver them. A search, conducted after a

signed consent to search form was obtained from the defendant, revealed two suitcases containing over 170,000 Ecstasy pills and a pill counter containing one Ecstasy pill. The defendant's defense at trial was that he did not know that the pills he possessed were illegal. The first argument raised on appeal by the defendant is that the trial the court to committed reversible over error when it

permitted

State

introduce,

objection,

hearsay

evidence that a large shipment of Ecstasy had been smuggled into the country from Colombia and was available in the Miami area. The defendant argues that the error was compounded when referred to by the State in its closing argument to jury. We review the trial court's ruling on an evidentiary See Cole

objection based upon an abuse of discretion standard.

v. State, 701 So. 2d 845 (Fla. 1997); O'Connell v. State, 480 So. 2d 1284, 1286 (Fla. 1985). The defendant asserts that when testimony of a non-

testifying witness is introduced which either directly or by inference furnishes evidence of the defendant's guilt, it is hearsay and violates the defendant's right of confrontation. As

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to this contention, we agree. that the evidence complained

The defendant additionally argues of requires a new trial. We,

therefore, review the evidence introduced in order to determine whether the statement is in fact hearsay and, if so, whether its introduction at trial requires reversal. Hearsay is an out-of-court statement by a non-testifying declarant, which is offered to prove the truth of the matter asserted.

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