Puryear v. State

• Citation: 774 So.2d 846
• Decision Date: 27 December 2000
• Docket Number: No. 4D99-3580.,4D99-3580.
• Parties: Kevin PURYEAR, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

774 So.2d 846

Kevin PURYEAR, Appellant, v. STATE of Florida, Appellee.

No. 4D99-3580.

District Court of Appeal of Florida, Fourth District.

December 27, 2000.

Richard L. Jorandby, Public Defender, Margaret Good-Earnest, and Damon E. Amedeo, Assistant Public Defenders, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

GROSS, J.

A jury found Kevin Puryear guilty of robbery, as a lesser included offense of robbery with a weapon. We write to address one issue—whether the victim's out-of-court descriptions of her assailant shortly after the robbery were admissible as non-hearsay under section 90.801(2)(c), Florida Statutes (1999), as statements of "identification of a person," where the victim testified at trial and was subject to cross-examination.

Sixteen-year-old Amy Deese was the victim of the robbery. She testified that on April 27, 1999, between 3:00-4:00 p.m., she pulled into a stall at a do-it-yourself car wash. On her way to the change machine, she saw "a guy standing there by the fence" behind the car wash "[j]ust walking back and forth." No one else was around. Deese looked at the man for only "a couple of seconds. Just a glance." She "didn't pay any mind" to what he looked like. After getting change, Deese began to wash her car.

As she knelt to wash her tires, a man came up to her from the right. He put what she thought was a gun to her head. It felt hard and metallic. She saw out of the corner of her eye that it was black. The man told her something like, "give me your money." She hesitated, but without looking back, gave him six single dollar bills from her back pocket.

The man took off. Deese stood up and saw her assailant turn near the vacuum cleaners. He made a crude comment, and told her "you better be glad you're alive or thank God you're alive." When asked if she got a good look at him, she said "Not really. Just a side of his face." When asked if she got a good look at his face, Deese replied "No." Deese observed the man's clothing, height, and weight for only a matter of seconds.

Deese got in her car and drove home. She told her mother what had happened. Her mother advised her to make a police report and then left to look for the assailant.

Danny Cratsenberg, Deese's boyfriend, came over to the house. Deese told him about the robbery. The two of them went to look for the suspect, whom Deese had described. Not spotting the assailant, the victim and Cratsenberg went to the police station.

To a detective, Deese gave a description of the perpetrator as a black male wearing a burgundy or maroon shirt, white tennis shoes, and black faded jeans. She said he had body odor and was missing every other tooth. She estimated him to be age 30-35. Deese testified that she told the detective at the police station that the suspect had a mustache and missing teeth; she said she saw a mustache from glancing at his face as he stood by the vacuum cleaners after the robbery. But she said that she "just don't remember when I seen his teeth."

Deese and her boyfriend left the police station. On the drive home, near the car wash, Deese saw "the man crossing the street." He was the only black man in the area. Cratsenberg asked if the man was her assailant. Deese said she "hesitated because I wasn't really sure. Then I looked at him and I said yeah that's him." She was able to identify the robber based upon his clothes, height, and weight. She did not identify him by his face. Deese testified "I knew it's him by the clothes, and I also wanted it to be him because I knew the cops were looking for him."

The couple waved down a police officer, who stopped appellant. Without getting out of the car, from approximately twenty feet away, Deese identified appellant as he stood across the street from her. She was sure it was the person who robbed her based on "clothing and height, stuff like that."

In court, Deese was able to identify defendant as the person who robbed her.

During cross-examination, Deese conceded that when she first saw a man near the fence at the car wash, she only glanced at him and would not be able to recognize him again. She was not sure that the man by the fence was the same person she saw in the car wash or in police custody. The first time she saw her assailant's face was from a distance of about twenty feet as he was running away. He turned and paused, muttered obscenities at Deese, and continued on. Deese never got a full frontal view of his face. She was not sure when she saw his mouth with the missing teeth and admitted that her description of his teeth was "pretty much a guess." The victim testified that her in-court identification of defendant was based upon seeing him at the vacuum cleaners at the car wash. She said she was not good at estimating a person's height and weight. She noticed nothing unusual about the robber's teeth. When asked if she was positive, based on her observation of the assailant's face, clothing, height, and weight, that the man the police arrested was the same man who robbed her, Deese said she was not positive, only about seventy-five percent sure.

However, on re-direct examination, she said based on only the clothes, height, and weight, she was positive the man arrested was the assailant.

On the day of the robbery, Detective Wardlaw took a report from Deese at the police station. The state asked the detective, "What was the description that [the victim] gave you?" Over appellant's hearsay objection, Wardlaw testified that Deese described the robber as "a black male, approximately six foot in height, 140 pounds, between the ages of 30, 35. He had a burgundy t[ee]-shirt with prints on it and faded black blue jeans." Wardlaw said that the victim reported that the perpetrator's shoes were "white sneakers" and said that he had "every other tooth missing in his mouth," a moustache, and a "very strong body odor to him."

After the detective finished her report, she responded to the scene where appellant had been detained. She saw that appellant "[a]bsolutely" matched the description just given by the victim. The detective stood "very close" to appellant and noticed that he was "emitting a strong odor, body odor." Detective Wardlaw then went across the street and spoke to Deese, who identified appellant as her assailant. The detective testified that the victim took her time in making the identification.

During the direct examination of Cratsenberg, the state asked him to relate the description Deese had given him of her assailant. Defense counsel raised a hearsay objection, which the trial court overruled. Cratsenberg said that at Deese's house, right after the robbery, she told him that the robber was wearing a maroon shirt, faded black jeans, white sneakers, had "missing teeth" and a moustache; she said that the perpetrator was a black man and that he "stunk."

Officer Kazmierczak stated that she stopped appellant in the vicinity of the car wash because he wore a burgundy tee-shirt and black faded jeans. The officer found no weapon on appellant or in her search of the area. She found nothing on appellant that she could conclusively say belonged to the victim.

Puryear challenges the trial court's overruling of his hearsay objections, allowing both Detective Wardlaw and Cratsenberg to relate to the jury the details of the victim's description of the robber given on the day of the crime.

At issue is the proper application of section 90.801(2)(c), Florida Statutes (1999). That section provides:

(2) 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:

* * *

(c) One of identification of a person made after perceiving the person.

Id. Since the victim testified at trial and was subject to cross-examination, under section 90.801(2)(c) her out-of-court statements to her boyfriend and the detective would be non-hearsay if they qualify as ones of "identification of [Puryear] made after perceiving" him. Id.

Analysis is complicated by cases from the Florida Supreme Court and this court falling on opposite sides of the issue. The disagreement centers on whether a "statement ... of identification" under section 90.801(2)(c) is broad enough to include the details of the declarant's out-of-court description of a person, or whether that section is limited to the declarant's mere designation of a person as the one who committed the crime or other act at issue in the trial.

The supreme court construed section 90.801(2)(c) in a first degree murder case, Swafford v. State, 533 So.2d 270, 276 (Fla. 1988). The victim of the homicide was a clerk at a FINA gas station. See id. at 272. One state witness saw the victim there at 6:17 a.m. See id. at 276. Another state witness arrived at the station at 6:20 a.m. and found no attendant on duty. See id. at 272. A third witness said the defendant left her at about 6:00 a.m. and drove north on the highway on a course that would have taken him by the FINA station. See id. The defendant returned to his travelling companions at about 7:04 a.m. See id.

The defense in Swafford called "a person who had told the police that he had seen a man at the FINA station at 6:17 a.m. on the day of the crime, and the witness described from the stand the man he saw." Swafford, 533 So.2d at 276. The defense then sought to introduce a "police bulletin and the testimony of the officer who had prepared it, suggesting that the bulletin and testimony would provide a better description of the person seen than the witness'[] recollection over three years later." Id. The trial court excluded both the bulletin and the testimony on the ground of hearsay. See id.

The supreme court held that the police bulletin and the testimony of the officer who prepared it was hearsay because neither was a statement of identification under ...