Puryear v. State

• Decision Date: 07 February 2002
• Docket Number: No. SC01-183.,SC01-183.
• Citation: 810 So.2d 901
• Parties: Kevin PURYEAR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

810 So.2d 901

Kevin PURYEAR, Petitioner, v. STATE of Florida, Respondent.

No. SC01-183.

Supreme Court of Florida.

February 7, 2002.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Robert A. Butterworth, Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Respondent.

WELLS, C.J.

We have for review Puryear v. State, 774 So.2d 846, 852-53 (Fla. 4th DCA 2000) (en banc), in which the Fourth District Court of Appeal certified the following question to be of great public importance:

HAS SWAFFORD V. STATE, 533 So.2d 270 (Fla.1988) BEEN OVERRULED BY POWER V. STATE, 605 So.2d 856 (Fla.1992)?

We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., answer the certified question in the negative, and quash the Fourth District's decision in this case.

The victim, sixteen-year-old Amy Deese, was robbed on the afternoon of April 27, 1999, at a self-service car wash. Her assailant came from her back right side while she was kneeling and placed a hard metallic object against her head, which Deese thought to be a gun. The assailant demanded Deese's money, and Deese gave the assailant six one-dollar bills from her back pocket. As Deese's assailant was running away, Deese stood up and looked at her assailant. Deese never directly viewed her assailant's face, but did observe the assailant's profile, clothing, height, and weight for a few seconds.

After being robbed, Deese drove home and told her mother of the occurrence and, soon thereafter, her boyfriend, Danny Cratsenberg. Deese described her assailant to Cratsenberg. Cratsenberg drove Deese to the police station, where Deese reported the incident to Detective Rhonda Wardlaw and provided Detective Wardlaw with a description of her assailant. Deese and Cratsenberg then departed the police station to drive to Deese's home. Near the crime scene, Deese and Cratsenberg saw an individual Deese believed to be her assailant and flagged down a police officer, who arrested Kevin Puryear.

At trial, Deese testified that her assailant was a black male who wore a burgundy shirt, black faded jeans, and white tennis shoes, was missing every other tooth, was between the ages of thirty and thirty-five, and had body odor. Deese did not remember when she saw her assailant's teeth and on cross-examination admitted that the testimony regarding the teeth was a guess on her part. She also testified that she first identified Puryear on the basis of his "clothing and height, stuff like that" but was positive that she correctly identified Puryear as her assailant at the time of his arrest.¹ On cross-examination, Deese conceded that she was only seventy-five percent sure that the person the police arrested was the same person who robbed her. Deese identified Puryear as her assailant in court.

The State attempted in its case-in-chief to elicit from both Detective Wardlaw and Cratsenberg the descriptions of the assailant Deese had given to them on the day she was robbed. Over Puryear's hearsay objection, Detective Wardlaw testified that Deese described the assailant as a black male, approximately six feet tall, weighing 140 pounds, between the ages of thirty and thirty-five, wearing a burgundy T-shirt with faded black blue jeans and white sneakers, missing every other tooth, having a mustache and having very strong body odor.² Over Puryear's hearsay objection, Cratsenberg testified that Deese told him that her assailant was a black male who was wearing a maroon shirt, faded black jeans, and white sneakers, had missing teeth, had a mustache, and "stunk." Officer Janet Kazmierczak, who participated in Puryear's arrest, testified that Puryear was wearing a burgundy T-shirt, faded black jeans, and white sneakers at the time of his arrest. The jury found Puryear guilty of robbery, as a lesser included offense of robbery with a weapon.³

Based upon section 90.801(2)(c), Florida Statutes (1999), the Fourth District affirmed en banc the trial court's rulings allowing Cratsenberg and Detective Wardlaw to testify to the description Deese gave of her assailant. See id. at 852. The court also affirmed Puryear's robbery conviction. See id. at 853. In an attempt to discern the proper interpretation of section 90.801(2)(c), the Fourth District reviewed Swafford v. State, 533 So.2d 270, 275-76 (Fla.1988), and Power v. State, 605 So.2d 856, 862 (Fla.1992), and concluded that these two opinions irreconcilably conflicted regarding the proper interpretation of section 90.801(2)(c). See Puryear, 774 So.2d at 850

. The Fourth District determined that Power overruled Swafford sub silentio, id. at 851, and the court held "that because the victim testified at trial and was extensively cross-examined, the trial court did not err in admitting the victim's out-of-court statements to the detective and her boyfriend." Id. at 852.

Concurring specially, Judge Taylor maintained that the court was bound by this Court's most recent section 90.801(2)(c) pronouncement in Power, but she argued that Swafford was the correct interpretation of section 90.801(2)(c). See id. at 853 (Taylor, J., concurring specially). Judge Farmer dissented and argued that the section 90.801(2)(c) statement in Power was dicta and, therefore, Swafford was binding precedent. See id. at 854 (Farmer, J., dissenting). We align ourselves with Judge Farmer's conclusion and hold that Swafford remains controlling precedent on the correct interpretation of section 90.801(2)(c).

Puryear argues that this Court decided the issue in Swafford and that the discussion in Power regarding section 90.801(2)(c) was dicta. The State maintains that this Court is not necessarily bound by our prior opinions. In any event, according to the State, Swafford is factually distinguishable because the declarant in Swafford, unlike in this case, never made an out-of-court identification. We do not believe that this factual difference is relevant to the issue of whether a third party may testify to the out-of-court description statements made by the declarant.

The certified question requires us to examine whether the trial court erred by allowing Cratsenberg and Detective Wardlaw to testify regarding Deese's descriptions of her assailant. The conclusion turns on the discrete issue of whether, pursuant to the nonhearsay exception of section 90.801(2)(c), Florida Statutes (1999), a third party may testify to a declarant's out-of-court description of an assailant where the declarant testifies at trial and is subject to cross-examination.⁴ More generally, this case presents the issue of whether a description is a statement of identification.

We previously addressed this precise issue in Swafford and expressly held that a description is not an identification. See Swafford, 533 So.2d at 276

. At issue in Swafford was a defense claim that the trial court improperly excluded a police officer's testimony about description statements made to the officer by a witness of a possible suspect. 533 So.2d at 275-76. On appeal, Swafford argued that the description testimony was not hearsay under section 90.801(2)(c), Florida Statutes (1985). See id. at 276.⁵ In rejecting this argument, we focused on the distinction between "description" and "identification." See id. This Court explained:

[A] description is not an identification. An "identification of a person after perceiving him," subsection 90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived. The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of "identification" as used in subsection 90.801(2)(c).

Id. (citation omitted).

Subsequent to our 1988 decision in Swafford, in 1992, we decided Power which also contained a discussion of section 90.801(2)(c). At issue in Power was the trial court's admission of two statements that witness Frank Miller made to Deputy Welty as testified to by Deputy Welty over the defendant's hearsay objection. See Power, 605 So.2d at 862

. The two statements Miller made that Deputy Welty testified to were: (1) that Miller and his daughter usually picked the murder victim up for school at 9 a.m. at the Bare's residence; and (2) that the suspect was a white male with reddish-colored hair. See Power, 605 So.2d at 862. This Court affirmed the trial court's admission of the two statements. See id. at 862. In doing so, this Court found that "these statements were probably admissible under the `excited utterance' exception to the hearsay rule." Id. (emphasis added). This Court based this conclusion on Deputy Welty's observations of Miller's appearance, which was consistent with someone in an excited state. See id. (Deputy Welty testified that Miller "appeared to be a person that had just witnessed an unusual or serious crime, and very shaken."). This Court, however, further stated: "Additionally, the statement regarding the reddish hair was admissible nonhearsay as one of identification of a person made after perceiving him. See § 90.801(2)(c). Frank Miller testified at trial and was clearly subject to cross-examination." Power, 605 So.2d at 862.

Without question, this Court's discussion in Swafford concerning section 90.801(2)(c) was essential to its holding. We drew a clear distinction between a description and a statement of identification in Swafford and held that description "testimony does not meet the definition of `identification' as used in subsection 90.801(2)(c)." 533 So.2d at 276. This Court's discussion in Power concerning section 90.801(2)(c), however, was not essential to the holding in Power. Moreover, Power contains no analysis as to whether there was an error in legal analysis in Swaf...