Garcia v. StateGarcia v. State
Richard A. Garcia was charged in a two-count information with trafficking in cocaine and conspiracy to traffic in cocaine, violations of sections
In the case before us, the trial cоurt, over Garcia‘s objection, allowed undercover agent Juan Perez at the outset of the trial to relаte hearsay statements made to him by Marcus Betancourt, a member of the conspiracy. According to Pеrez, on the day he, Betancourt, and Soria Fernandez met to discuss a possible drug buy, Betancourt told him that he and his “brоther” had buyers, and could distribute over nine kilos of cocaine every two weeks in the Tampa area. The following day, Perez, Betancourt, and Fernandez met at a house, which turned out to be Garcia‘s residence, to complete the buy. Betancourt mentioned that his “brother” was in the Florida room with the buyer. Garcia then came intо the living room. Betancourt introduced Garcia to Perez as his “brother.”1 At that point Perez told Garcia that if he (Gаrcia) wanted, they could “do ... the other three kilos the following day.” According to Perez, Garcia responded, “No, no. We got to do the whole four kilos today.” Then Betancourt and Garcia discussed whether to complеte the entire transaction on the same day or to wait until the following day. Garcia told Betancourt and Perеz “not to worry“; that “everything is going to be okay.” Garcia then went into the bedroom.
In Briklod v. State, 365 So.2d 1023 (Fla. 1978), our supreme court stated:
While it is true that a hearsay statemеnt of a defendant‘s alleged coconspirator is admissible against the defendant if the statement is made during the рendency of the conspiracy and in furtherance of its objectives, such testimony of hearsay statements is admissible only if the conspiracy itself has been established by independent evidence, i.e., not adduced from the hearsay testimony.
Id. at 1026. Moreover, the independent evidence must disclose the participation in the conspiracy of the party objecting to the hearsay. See State v. Wilson, 466 So.2d 1152 (Fla. 2d DCA 1985).
Briklod incorporates a portion of Justice Jackson‘s special concurrence in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed.2d 790 (1949), which states that “the prosecution should first establish prima facie the conspiracy ... after which evidence of acts and declarations of each ... are admissible against all.” This language suggests that Garcia‘s claim of error may have merit. Briklod, however, also refers to Honchell v. State, 257 So.2d 889 (Fla. 1971), in which the supreme court expressed the principle that:
While the existence of a conspiracy and the connection of the defendant therewith normally must precede the introduction of evidence of acts and declarations of the parties thereto, the trial judge in his discretion may permit the order of proofs to be reversed, admitting evidence of the acts and declarations of the coconspirators before рroof is given of the conspiracy itself. However, this is conditional on the prosecutor subsequently furnishing adequatе proof of the conspiracy itself.
Id. at 890 n. 1. See Briklod, 365 So.2d at 1026.
Contrary to Garcia‘s perception of Nichols v. State, 390 So.2d 1238 (Fla. 2d DCA 1980), and State v. Morales, 460 So.2d 410 (Fla. 2d DCA 1984), we have not pronounced a rule to be operative in a matter of this kind calling for a bifurcation of the proof first disclosing the independent evidence, vel non, of the existencе of a conspiracy subject in the next phase to proof of participation. Garcia reads tоo much into Nichols; that decision merely highlights the essential element of nonhearsay proof of the conspiraсy as a condition to
Based upon the foregoing principles, the recоrd supports the presence of a conspiracy and Garcia‘s participation in it. For this reason, his trafficking conviction must also stand. See Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980). We find no merit in Garcia‘s remaining claims of error.
Garcia‘s convictions and sentences are, therefore, affirmed.
SCHEB, A.C.J., and FRANK and SANDERLIN, JJ., concur.