FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Steven Scott
K. Marshall of Law Office of Deana K. Marshall, P.A.,
Riverview, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for Appellee.
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.
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.
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.
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.
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.
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 ...