Lewis v. State, 4D00-1208.

• Decision Date: 14 February 2001
• Docket Number: No. 4D00-1208.,4D00-1208.
• Citation: 777 So.2d 452
• Parties: Eddie L. LEWIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

777 So.2d 452

Eddie L. LEWIS, Appellant, v. STATE of Florida, Appellee.

No. 4D00-1208.

District Court of Appeal of Florida, Fourth District.

February 14, 2001.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Eddie Lewis appeals his convictions for carjacking and driving while his license was suspended or revoked. We affirm, holding that the prosecutor's closing argument was proper.

At trial, the victim of the carjacking, cab driver Aniel Dameus, testified that he picked up a man at the Tri-Rail station in West Palm Beach, intending to take him to Boynton Beach for $25. Once they arrived in Boynton Beach, the passenger told the driver to stop the cab and asked him for a hand. Dameus gave the man his arm and helped him out of the cab. The man was "kind of putting his hand in his pocket." Then he pushed Dameus and hit him on the left side of the face. The man then got in the cab and took off.

Dameus called for help. A woman called the police for him. The police arrived at the scene within three to four minutes. The victim described the perpetrator to the police. He said the man was black, six feet tall, 300 pounds, and wearing dark blue. The police took Dameus to Delray Beach, where he again described the assailant to the police.

Officer Merkle responded to the scene of the carjacking and met with the victim, who told him "[t]hat a very large black male had just punched him and [taken] his cab." Dameus described the man as "a black male, approximately six foot tall, almost three hundred pounds, wearing dark clothes, possibly black [clothes] ... [with] a shirt and shorts." Officer Merkle put out a BOLO with this description. Approximately five to ten minutes later, dispatch advised Officer Merkle that the taxi had been found in Delray Beach.

The victim identified the taxi as the one taken from him. He told the police that the carjacker was "bigger than" Officer Weatherspoon and that he wore a black shirt and black short pants. Officer Weatherspoon was roughly 6 feet 3 inches tall and weighed about 260 to 270 pounds.

Less than twenty minutes after the victim identified his vehicle, Officer Weatherspoon noticed appellant Lewis, a black male, standing off the roadway about two blocks from where the police had found the taxi. Lewis was sweating profusely, which the officer thought unusual for that time of night. Although he said he was going home to a complex called Carver Estates, Lewis gave a street address which the officer knew was incorrect. Lewis wore a black shirt and black short pants. Officer Weatherspoon said that Lewis was "approximately six-three. He was a very tall, large gentleman, like myself, approximately two-thirty, two-forty pounds"

After he was taken to the location where Lewis had been stopped, Dameus identified Lewis as the carjacker.

At trial, however, Dameus was unable to make an in-court identification of Lewis as his assailant. Two police officers identified Lewis as the man Officer Weatherspoon had stopped on the night of the crime. Another police officer testified concerning the victim's out-of-court identification of Lewis as the carjacker at the arrest location. Lewis's point on appeal concerns the propriety of two portions of the prosecutor's closing argument. The prosecutor argued:

Mr. Dameus was asked on the stand as well, do you remember identifying this guy at the scene? Yes.

Are you positive, are you a hundred percent sure that's the guy you identified at the scene? He said, yes, at the time I was positive. When I saw the guy, I was positive.

Now, when something happens—first off, with time memory fades. The identification closer in time is more reliable—

Defense: Objection, there's no—facts not in evidence.

Court: Overruled.

State: An in-court identification is not required. The Defense will surely argue, well, he couldn't pick him out in court, you know....

Mr. Dameus is a taxi driver and he's probably driven hundreds of people in his taxi since that date. He's seen all kinds of faces. Is he supposed to remember exactly how this guy looks five months later? With time memory fades.

There won't be one single jury instruction that the judge will read you saying the State must have an in-court identification from the victim....

With time memory fades....

(Emphasis supplied).

Later, during closing, the state argued:

People change, people's appearances change.

Officer Weatherspoon was asked, does the Defendant look the same as he did that night to you? He said, well, he's not wearing a black shirt, he's not wearing the black shorts, he's not

...