Livingston v. State
| Citation | 219 So.3d 911 |
| Decision Date | 31 March 2017 |
| Docket Number | Case No. 2D13–4502 |
| Parties | Fredrick LIVINGSTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
Fredrick Livingston appeals his conviction after a jury trial for the offense of robbery, raising several issues that we have determined to be without merit. We affirm his conviction and sentence, but we write to address the trial court's admission into evidence of two out-of-court descriptions of the suspect received by deputies on the night of the offense.
At trial, the State presented the testimony of three witnesses: the victim and two sheriff's deputies. The victim first testified that at approximately 7:20 in the evening on December 21, 2012, he was walking to catch the bus to work in the Progress Village area of Hillsborough County. The victim testified that a group of five men began to follow him. He crossed over Allamanda Boulevard, and the men continued to follow him. Two men cut in front of him, and the other men surrounded him. One man began to ask him questions regarding his name and where he lived. The victim was very scared and nervous, but he got a good look at the man who was asking the questions because they were under a lamp post and that man was the one speaking to him. The victim described the man as African-American, with short, shoulder length dreads, between the ages of twenty and thirty, approximately 5'8‘ tall, and weighing between 140 and 150 pounds. The man wore a black jacket with two white stripes down his chest, a white undershirt, and dark jeans. The victim said that the man spoke to him for what "felt like two or three minutes." Then, the man punched the victim with a closed fist in the victim's jaw and upper lip, and another man pushed the victim from behind. They repeatedly hit the victim, and he felt them grab his phone and other items from his pockets. In court, the victim identified Livingston as the man who first hit him. After a few seconds, the men ran away down Allamanda. The victim rushed home and called 911 from his mother's cell phone.
After law enforcement responded, the victim was driven to where Livingston had been found. Livingston was standing underneath a light post. The victim testified that he was 100% sure that Livingston was the person who hit him and that he had no doubt in his mind. The victim stated that in the bright lighting of the courtroom, he could tell that Livingston had a dark mark on his face, but the victim explained that he did not see that mark on the night of the offense because it was darker that night.
During cross-examination, the victim admitted that he was dizzy after he was hit in the head numerous times and that he had a mini-panic attack that night. The victim did not remember seeing a tattoo or scar on the suspect's face, and the victim did not remember that the suspect had a mustache, a beard, a goatee, or peach fuzz on his face. The victim admitted that Livingston's tattoo was visible in the photograph taken on the night of his arrest, but the victim said that the flash on the camera lightened it up and that he could barely see the tattoo in the photograph. He also stated that the stripes on the jacket may have been gray but they appeared white to him that night.
Deputy Jonathan Rosa testified that he responded to the victim's 911 call that night. He interviewed the victim, who was shaken up and was "still under the stressor of being robbed." Deputy Rosa was able to obtain a description of the assailant. The following occurred during Deputy Rosa's direct examination:
The victim told Deputy Rosa that the following items were taken from him: a Verizon cell phone, a velcro wallet containing two Spoto High School IDs, a Visa debit card, and $6 in cash. Deputy Keron Lucius arrived, and the victim went with Deputy Lucius to search the neighborhood. Approximately three minutes later, Deputy Lucius informed Deputy Rosa that the victim had identified Livingston as the assailant.
Deputy Rosa responded to where they had found Livingston, and Deputy Rosa noticed that Livingston's height was 5'8‘, that he weighed approximately 150 pounds, that he wore a black hooded jacket with a white interior, and that he wore long blue jeans. He was a black male around twenty-eight years old. Deputy Rosa did not notice a tattoo on Livingston's face until he saw it in the photograph. He also thought that Livingston's undershirt was white until he noticed in the photograph that it looked gray.
On cross-examination, Deputy Rosa stated that the victim had reported that only three men were involved in the incident and that he never mentioned five or six. Deputy Rosa acknowledged that Livingston's jacket did not have any white on it, only light gray. He admitted that a cross tattoo on a person's face would normally stand out as unusual. He also stated that the victim never described the assailant as having a beard, a mustache, or a scar. None of the victim's items were found on Livingston when he was arrested. And there were approximately twenty to thirty people walking around where Livingston was arrested, but none were wearing the same clothes as Livingston.
On redirect examination, Deputy Rosa testified that nobody else matched the description given to him by the victim. The State then asked Deputy Rosa if Livingston matched the description "slightly or matched the description to a ‘T,’ " and Deputy Rosa responded that "it's a spot on of a description as you'll ever get in a career." The defense objected to the answer as being unresponsive and irrelevant, and the trial court overruled the objection. Then the State asked if Deputy Rosa had "ever had a description that detailed," the defense objected, and the trial court sustained the objection.
The second deputy, Deputy Lucius, was asked by the State what type of information he received in the BOLO.1 The defense objected on the basis of hearsay, but the trial court overruled the objection. The State then asked Deputy Lucius what specific information was relayed to him in the BOLO, and Deputy Lucius responded that he received information of "[a] black male wearing a[ ] black and white hooded jacket" with "dreadlocks" in his "mid-twenties." Deputy Lucius responded to the the victim's home, and the victim gave him the same description of the assailant. Deputy Lucius drove around with the victim, and within approximately three minutes, the victim identified Livingston as being the assailant. The victim said, "[t]hat's the person, he's 100% sure." Deputy Lucius did not initially notice a tattoo on Livingston's face.
On cross-examination, Deputy Lucius stated that in that neighborhood, it was not unusual to see black males in their twenties with dreads wearing black hoodies and blue jeans. There was high foot traffic that night in Progress Village. When the victim spotted Livingston, the victim offered that he was 100% sure, without being asked if he was sure. Deputy Lucius said that the victim initially reported that there were "three guys total."
The State also introduced photographs of the defendant and the victim's injuries taken on the night of the offense.
The jury found Livingston guilty as charged. The defense filed a motion for new trial, arguing that the State was improperly allowed, over objection, to elicit hearsay testimony regarding the victim's description of the man who punched him in the mouth and that the error was compounded by the cumulative nature of the testimony and the State's reference to it during closing arguments. The trial court denied the motion by written order, finding that "[w]hile the victim's description of his assailant is not an ‘identification’ under Florida Statute 90.801(2)(c) [,] ... it was admissible as an excited utterance." The trial court later sentenced Livingston to fifteen years in prison as a prison releasee reoffender.
On appeal, Livingston argues that it was error for the trial court to deny his motion for new trial because Deputy Rosa and Deputy Lucius were permitted to testify regarding descriptions of the suspect they had received on the night of the offense. Testimony concerning a victim's or a witness's out-of-court description of an assailant is classic hearsay and is generally not admissible into evidence unless it falls under a hearsay exception. See Puryear v. State , 810 So.2d 901, 906 (Fla. 2002) (); Swafford v. State , 533 So.2d 270, 276 (Fla. 1988) (); English v. State , 43 So.3d 871, 872–73 (Fla. 5th DCA 2010) (); Hendrieth v. State , 483 So.2d 768, 769 (Fla. 1st DCA 1986) (...
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