Fernando Garlobo v. the State of Florida

• Court: District Court of Appeal of Florida
• Decided: January 2, 2025
• Docket: 3D2022-1174
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 2, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1174 Lower Tribunal No. F18-12209 ________________

Fernando Garlobo, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de la O, Judge.

Carlos J. Martinez, Public Defender and John Eddy Morrison, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General and Ivy R. Ginsberg, Senior Assistant Attorney General, for appellee.

Before LOGUE, C.J., and LINDSEY and GORDO, JJ.

GORDO, J. Fernando Garlobo (“Garlobo”) appeals from a final judgment of

conviction and sentence for trespass, attempted second degree murder and

attempted manslaughter. We have jurisdiction. Fla. R. App. P.

9.030(b)(1)(A); 9.140(b)(1)(A). We affirm. 1

On appeal, Garlobo argues the trial court erred in admitting, over his

objections, several photographs with accompanying written statements.

During their investigation, police officers asked witnesses to the crime

to identify Garlobo from a photograph. The photographs were admitted into

evidence along with statements, written on each photograph, identifying

Garlobo as the offender and describing the incident. While Garlobo

concedes those portions of the written statements identifying him are

admissible as statements of identification, he argues the following

statements are inadmissible hearsay statements containing descriptions or

accusatory narratives: (1) “He came into my brother’s home without

permission with a firearm”; (2) “Today he came into my house without

permission with a firearm and a yellow pullover”; and (3) “Today he came

into my house without permission. He had to have—he had to have jumped

1 Garlobo raises three issues on appeal. We affirm the first and second issues without further discussion and write solely to address the third issue.

2 the fence. The automatic fence. Once I saw him with a firearm [illegible

writing].”

“Hearsay is generally inadmissible for three reasons: (1) the declarant

does not testify under oath; (2) the trier of fact cannot observe the declarant’s

demeanor; and (3) the declarant is not subject to cross-examination.” Banks

v. State, 790 So. 2d 1094, 1097 (Fla. 2001). “However, merely because a

statement is not admissible for one purpose does not mean that it is

inadmissible for another.” Id. Section 90.801(2)(c) provides a hearsay

exception for statements of identification: “A statement is not hearsay if the

declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement and the statement is . . . [o]ne of identification of a

person made after perceiving the person.” § 90.801(2)(c). “Florida courts

have limited the scope of section 90.801(2)(c) to exclude statements

containing descriptions or accusatory narratives.” Ellison v. State, 271 So.

3d 1045, 1049 (Fla. 4th DCA 2019) (quotation omitted); see also Puryear v.

State, 810 So. 2d 901, 903 (Fla. 2002) (stating “a description is not an

identification”); Smith v. State, 880 So. 2d 730, 740 (Fla. 2d DCA 2004)

(“[A]ccusatory statements in the form of a narrative are not admissible into

evidence pursuant to section 90.801(2)(c).”).

3 We agree with Garlobo that the trial court erroneously admitted the

challenged statements as they are clearly accusatory, narrative and

descriptive, going beyond that of identification. We find, however, the error

was harmless beyond a reasonable doubt because the statements were

merely cumulative of the witnesses’ properly admitted testimony at trial.

Each witness testified to the events that occurred on the night in question

and was subject to cross-examination. Their written statements are

corroborative of such testimony. Accordingly, we are compelled to affirm.

See Erickson v. State, 565 So. 2d 328, 334-35 (Fla. 4th DCA 1990) (“It is

well settled that even incorrectly admitted evidence is deemed harmless and

may not be grounds for reversal when it is essentially the same as or merely

corroborative of other properly considered testimony at trial. An error

resulting from the admission of evidence at trial is harmless if, upon review

of the record, it can be concluded beyond a reasonable doubt that there is

no reasonable possibility that the erroneous admission of evidence affected

the verdict.”); Torres-Arboledo v. State, 524 So. 2d 403, 408 (Fla. 1988)

(holding the improper admission of hearsay statements was harmless error

where the statements were cumulative of other properly admitted testimony).

Affirmed.