NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FREDRICK LIVINGSTON, )
)
Appellant, )
)
v. ) Case No. 2D13-4502
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 31, 2017.
Appeal from the Circuit Court for
Hillsborough County; Steven Scott
Stephens, Judge.
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.
MORRIS, Judge.
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
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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:
Q. And was [the victim] able to give you a description of the
person he believed committed this robbery?
A. Yes. He actually gave a very detailed description.
Q. What did he--what did he describe for you.
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Overruled.
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DEPUTY ROSA: He described a black male with short
dreads, just above the shoulder, five-eight, about 145
pounds, between 27 and 29 years old, with a black jacket
with a hoodie. It was black and white and when he said
white, he motioned that it was like towards the inside of the
jacket, with long blue jeans.
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.
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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
1
"Be on the lookout."
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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) (holding that
testimony by two witnesses regarding the victim's out-of-court description of the
assailant was not admissible as statements of identification under section 90.801(2)(c),
Florida Statutes (1999), because a description is not an identification); Swafford v.
State, 533 So. 2d 270, 276 (Fla. 1988) (holding that trial court properly excluded as
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hearsay police bulletin that contained victim's description of assailant); English v. State,
43 So. 3d 871, 872-73 (Fla. 5th DCA 2010) (holding that the trial court erred by
admitting deputy's description of the suspect that was sent out in BOLO); Hendrieth v.
State, 483 So. 2d 768, 769 (Fla. 1st DCA 1986) (holding that trial court erred in allowing
police officer to testify regarding the victim's description of the perpetrators because
such testimony did not fall within any hearsay exception). Thus, it is clear that both
Deputy Rosa's description of the suspect as given to him by the victim and Deputy
Lucius's description of the suspect as relayed in the BOLO generally constituted
hearsay.
But we cannot say that the trial court erred in admitting the evidence on
this basis because in its order denying Livingston's motion for new trial, the trial court
agreed that the victim's description of his assailant was not admissible under the
"identification" exception to hearsay, citing Puryear, 810 So. 2d 901. The trial court
went on to conclude that the victim's description was admissible as an excited
utterance. Even though neither party argued the issue of excited utterance to the trial
court, the trial court was free to "base [its] evidentiary ruling on an alternate basis that
was not suggested by the parties." Williams v. State, 967 So. 2d 735, 750 (Fla. 2007).
On appeal, Livingston challenges the admission of the evidence as "identification"
testimony under Puryear, but he does not argue that the specific ruling on excited
utterance was erroneous. It is axiomatic that the appellant "bears the burden of
demonstrating that an error occurred in the trial court." Goodwin v. State, 751 So. 2d
537, 544 (Fla. 1999); see also Stone v. Stone, 873 So. 2d 628, 630 (Fla. 2d DCA 2004)
("The burden of proof on appeal lies with the appellant to demonstrate that the trial court
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erred."); D'Agostino v. State, 334 So. 2d 99, 99 (Fla. 3d DCA 1976) ("An appellant, on
an appeal in a criminal case, has the burden of showing that the trial proceedings were
so infected with prejudicial error as to compel a reversal of the judgment. Such error
must be clearly demonstrated by the appellant."). By failing to challenge the admission
of the evidence as an excited utterance, Livingston has failed to satisfy his burden on
appeal of demonstrating that the trial court erred in its ruling, and we affirm for this
reason.
However, even if Livingston had challenged on appeal the excited
utterance ruling, we are not convinced that the trial court reversibly erred in admitting
the victim's description of the suspect to Deputy Rosa as an excited utterance. An
excited utterance is "[a] statement or excited utterance relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition." § 90.803(2), Fla. Stat. (2012).
[I]n order for an excited utterance to be admissible, the
following requirements must be met: (1) there must have
been an event startling enough to cause nervous
excitement; (2) the statement must have been made before
there was time to contrive or misrepresent; and (3) the
statement must have been made while the person was
under the stress of excitement caused by the startling event.
Stoll v. State, 762 So. 2d 870, 873 (Fla. 2000). "[T]he party seeking to qualify a
statement as an excited utterance must lay a proper foundation for its admission."
Thomas v. State, 125 So. 3d 928, 930 (Fla. 4th DCA 2013) (citing Mariano v. State, 933
So. 2d 111, 115 (Fla. 4th DCA 2006)). The foundation may be laid by testimony
establishing all three requirements. See id.
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Here, by ruling that the evidence constituted an excited utterance, the trial
court implicitly found that the State had laid the necessary foundation, and the record
supports that implicit finding. The victim testified that it took him two or three minutes to
get home after the robbery. He immediately called 911. During cross-examination, the
victim admitted that when the incident was going on, he felt like he was having a panic
attack and that the EMTs suggested that he go to the hospital. Deputy Rosa testified
that when he arrived at the victim's house, the victim was "still shaken up from the
incident." Deputy Rosa agreed that the victim "was still under the stressor of being
robbed." Accordingly, had the issue been properly raised on appeal, we could not say
that the trial court abused its discretion in denying Livingston's motion for new trial and
in ruling that the victim's description to Deputy Rosa constituted an excited utterance.2
See Stephens v. State, 787 So. 2d 747, 754 (Fla. 2001) ("A trial court's denial of a
motion for new trial is reviewed under an abuse of discretion standard."); Power v.
State, 605 So. 2d 856, 862 (Fla. 1992) (agreeing with the State that two hearsay
statements made to a deputy by a witness "were probably admissible under the 'excited
utterance' exception to the hearsay rule" because the deputy "testified that when [the
witness] flagged him down, '[h]e appeared to be a person that had just witnessed an
unusual or serious crime, and very shaken' ") (second alteration in original); see also
2
By observing that the trial court did not err in its excited utterance ruling,
we are not invoking the tipsy coachman doctrine. That doctrine allows an appellate
court to affirm a lower court decision when the lower court has reached the right result
for the wrong reason. State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla.
2002). Rather, we are saying that the trial court reached the right result for the right
reason.
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Puryear, 810 So. 2d at 904 (clarifying that the Power holding rested on the excited
utterance hearsay exception).
The same could not be said for Deputy Lucius's testimony regarding the
description he received in the BOLO because that information constituted double
hearsay. See Henderson v. State, 135 So. 3d 472, 476 (Fla. 2d DCA 2014) ("[E]ach
hearsay statement must fall under an exception for [double hearsay] statements to be
admissible." (alterations in original) (quoting Gosciminski v. State, 994 So. 2d 1018,
1026 (Fla. 2008))). But a close examination of the evidence would lead to the
conclusion that any error in the admission of Deputy Lucius's limited testimony
regarding the BOLO description was harmless. The victim gave a detailed in-court
description of the person who robbed him, and the victim identified Livingston in court
as that person with 100% certainty. The victim's detailed description of the suspect to
Deputy Rosa immediately after the offense, which was properly admitted as an excited
utterance, supported the victim's testimony. The evidence also showed that when he
was arrested, Livingston matched the victim's description of the suspect and that the
victim identified Livingston with 100% certainty that night. Accordingly, even if the
correct issue had been presented on appeal and this court were to determine that
Deputy Lucius's testimony was improperly admitted, it would follow that there was no
reasonable possibility that Deputy Lucius's limited BOLO testimony contributed to the
verdict. See Ventura v. State, 29 So. 3d 1086, 1090-91 (Fla. 2010) (reiterating the
harmless error test set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)).
Affirmed.
BLACK, J., Concurs.
WALLACE, J., Concurs with opinion.
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WALLACE, Judge, concurring.
I concur in the affirmance of Livingston's judgment and sentence for
robbery. However, I reach this result by a different path from the one taken by my
colleagues in the majority. I agree with the majority that the issues raised by Livingston
that the majority does not discuss are without merit. But I disagree with the majority's
analysis about the propriety of using the excited utterance exception to the hearsay rule
as a basis for affirming Livingston's conviction. I also disagree with the majority's
analysis of the question of harmless error.3
As the majority notes, the trial court conceded in its order denying the
motion for new trial that the evidence regarding the victim's identification of his assailant
was not properly admissible in evidence. Nevertheless, the trial court went on to deny
the motion for new trial on a new theory that the challenged evidence could have been
properly admitted at trial under the excited utterance exception to the hearsay rule. For
the reasons I will explain below, I think that this latter ruling was erroneous.
At trial, the State did not assert the excited utterance exception as a basis
for the admission of the challenged testimony. Thus, the trial court did not conduct a
hearing or make the required predicate findings before admitting the evidence. See §
90.105(1), Fla. Stat. (2013); Morrison v. State, 161 So. 3d 564, 565 (Fla. 2d DCA 2014);
3
On a separate point not addressed by the majority, I observe that
Livingston's appellate counsel has framed her argument on the admissibility of the
evidence concerning the victim's description of his assailant and another issue as a
challenge to the trial court's order denying Livingston's motion for new trial. Although
the matter seems to be well settled, it may be worth noting that a defendant in a criminal
case may not appeal from an order denying a motion for new trial. The appeal is from
the judgment and sentence. See Fla. R. App. P. 9.140(b); Griffith v. State, 171 So. 2d
597, 598 (Fla. 3d DCA 1965); see also State v. Smith, 201 So. 2d 828, 830 (Fla. 2d
DCA 1967) (quoting Griffith with approval).
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Tucker v. State, 884 So. 2d 168, 173 (Fla. 2d DCA 2004); Mariano v. State, 933 So. 2d
111, 115-16 (Fla. 4th DCA 2006). Indeed, the testimony was not admitted as an excited
utterance. The first mention of this alternative legal theory for the admission of the
evidence was in the trial court's order denying the motion for new trial.4 Thus,
Livingston never had an opportunity to address the admissibility of the evidence under
the excited utterance exception to the hearsay rule in the context of the trial.
In the order denying Livingston's motion for new trial, the trial court
effectively applied a version of the "tipsy coachman" doctrine to its own evidentiary
rulings at trial as a basis for denying the motion. My colleagues in the majority approve
the trial court's unique application of a right-for-the-wrong-reason analysis in the order
denying a new trial as a basis for salvaging the trial court's erroneous evidentiary rulings
made during the trial. "[T]he 'tipsy coachman' doctrine . . . permits a reviewing court to
affirm a decision from a lower tribunal that reaches the right result for the wrong reasons
so long as 'there is any basis which would support the judgment in the record.' " State
Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002) (quoting Dade Cty.
Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)). But "the key to
applying the tipsy coachman doctrine is that the record before the trial court must
support the alternative theory or principle of law." Id. (emphasis added) (citing
Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)).
In this case, the trial court's reliance on the excited utterance exception in
the order denying the motion for new trial was inappropriate because the State never
4
The State did not file a response to Livingston's motion for new trial. At
the hearing on the motion, the State did not raise the excited utterance exception as a
basis for denying the motion for new trial.
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asserted that exception to the hearsay rule at trial as a basis for the admission of the
challenged evidence. Thus, the trial court failed to conduct the necessary hearing or to
make the required predicate findings before admitting the evidence. The majority
asserts that "[h]ere, by ruling that the evidence constituted an excited utterance, the trial
court implicitly found that the State had laid the necessary foundation, and the record
supports that implicit finding." They then proceed to summarize the evidence on this
point, supplying the missing findings from their own reading of the record.
In my view, the majority's fact-finding exercise on this subject is beyond
the proper scope of this court's review of Livingston's judgment and sentence. Section
90.105(1) "imposes the responsibility of determining preliminary questions as to the
admissibility of evidence upon the trial judge." Saavedra v. State, 421 So. 2d 725, 727
(Fla. 4th DCA 1982). This court's function is not to make its own findings of fact
regarding whether the State has laid a predicate at trial for the admission of certain
evidence. Nor may we reweigh the evidence. Instead, we are to review the record for
the purpose of determining whether the findings of fact made by the trial court are
supported by competent evidence. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976);
Fla. Detroit Diesel v. Nathai, 28 So. 3d 182, 185 (Fla. 1st DCA 2010) (quoting Shaw,
334 So. 2d at 16). Here, the trial court was never called upon at trial to make the critical
findings of fact concerning whether the challenged evidence was admissible as an
excited utterance, and there is nothing for this court to review. This court cannot cure
the trial court's omission to make the required predicate findings—as the majority has
done—by culling the record and supplying the missing findings.
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The trial court's posttrial application of a right-for-the-wrong-reason
analysis to its own ruling made during the course of the trial is inappropriate in this case
because the State never asserted the excited utterance exception to the hearsay rule at
trial as a basis for the admission of the challenged testimony. The State's failure to
make this argument at trial had two results critical to a correct analysis. First, the trial
court failed to conduct the required hearing or to make the predicate findings before
admitting the evidence. Second, Livingston never had an opportunity to be heard on
the question of whether the evidence in question was properly admissible as an excited
utterance. Thus, there is no basis in the record for approving the admission of the
evidence as an excited utterance. It follows that a right-for-the-wrong-reason analysis
cannot be made, and the admission of the evidence constituted error. Cf. Robertson,
829 So. 2d 906-11 (an appellate court's consideration of the propriety of using the "tipsy
coachman" doctrine to affirm a trial court ruling); May v. HCA Health Servs. of Fla., Inc.,
166 So. 3d 850, 854 (Fla. 2d DCA 2015) (same); Fitzsimmons v. State, 935 So. 2d 125,
128 (Fla. 2d DCA 2006) (same); State v. Lena, 819 So. 2d 919, 921 (Fla. 3d DCA 2002)
(same). For these reasons, I conclude that the excited utterance exception to the
hearsay rule does not constitute a valid basis for the denial of Livingston's motion for
new trial or for the affirmance of the judgment and sentence.
In support of the trial court's reliance on the excited utterance exception in
the order denying Livingston's motion for new trial, the majority quotes from Williams v.
State, 967 So. 2d 735, 750 (Fla. 2007), for the proposition that "the trial court was free
to 'base [its] evidentiary ruling on an alternate basis that was not suggested by the
parties.' " This proposition from Williams is not contrary to the analysis that I make
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here. The supreme court made the quoted statement about an evidentiary ruling that
the trial court in that case made during the course of a trial, not—as in this case—in a
posttrial ruling. The difference in the timing of the evidentiary ruling is critical. With
regard to an evidentiary ruling made during the course of a trial, the parties have an
opportunity to present evidence on the preliminary questions pertinent to the
admissibility of the evidence in question. Moreover, the parties have an opportunity to
be heard and make appropriate submissions on the admissibility of evidence on any
alternate basis proposed by the trial court before the evidence is received. Neither of
these opportunities are available where, as in this case, a trial court makes a posttrial
evidentiary ruling on its own initiative on a basis not suggested by either of the parties.
In this case, unlike in Williams, the trial court made its evidentiary ruling on
an alternate basis not suggested by either of the parties after the trial when the
procedural safeguards in play during the trial were not available to Livingston. It follows
that the proposition stated in Williams does not support the trial court's posttrial ruling
denying Livingston's motion for new trial.
Nevertheless, Livingston's appellate counsel has not addressed the
propriety of the trial court's ruling on the excited utterance issue in the order denying the
motion for new trial. Therefore, as the majority correctly observes, the point has been
waived. See City of Miami v. Steckloff, 111 So. 2d 446, 447-48 (Fla. 1959); Kenyon v.
Kenyon, 496 So. 2d 839, 840 (Fla. 2d DCA 1986); Anheuser-Busch Cos., Inc. v.
Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013); Polyglycoat Corp. v. Hirsch Distribs.,
Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983). Indeed, both parties have either
overlooked or intentionally ignored the trial court's ruling on the excited utterance
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exception in the order denying the motion for new trial. It is surprising—to say the
least—that the State did not argue the trial court's ruling on the excited utterance issue
in its answer brief as a basis for affirmance. My colleagues in the majority have
developed this ground for affirmance independently.
I turn now to the question of harmless error. The facts of this case were
simple—a strong-arm robbery followed by the prompt apprehension and arrest of a
suspect. Notably, Livingston was apprehended within a few minutes of the commission
of the offense, but he did not have in his possession any of the proceeds of the robbery
upon his arrest. Thus the State did not have the benefit of the presumption of
Livingston's guilt of the robbery that would otherwise have arisen from his unexplained
possession of the victim's recently stolen property. Cf. T.S.R. v. State, 596 So. 2d 766,
767 (Fla. 5th DCA 1992) (stating that the unexplained possession of recently stolen
property is sufficient to support a conviction for theft). It follows that Livingston had a
viable defense to the robbery charge based on a claim of mistaken identification.
At trial, the State used the challenged identification testimony to bolster its
case against Livingston. Indeed, this testimony became a feature of the trial. For
example, the prosecutor asked Deputy Rosa, "And would you say [Livingston] matched
that description [given by the victim] slightly or matched the description to a 'T' "?
Deputy Rosa responded, "It's a spot on of a description as you'll ever get in a career."
In closing argument, the prosecutor repeatedly emphasized the close correspondence
of the description given by the victim of his assailant to Livingston's physical
characteristics and clothing as proof of Livingston's guilt. In light of these factors, I
cannot conclude that there is no reasonable possibility that the error in admitting the
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challenged testimony contributed to Livingston's convictions. See State v. DiGuilio, 491
So. 2d 1129, 1138 (Fla. 1986).
Despite my conclusions about the evidentiary matters and the question of
harmless error, the issue of using the excited utterance exception to deny Livingston a
new trial has been waived. Therefore, I must join the majority in voting to affirm
Livingston's judgment and sentence.
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