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Livingston v. State

Florida Court of Appeals, Second District

March 31, 2017

FREDRICK LIVINGSTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         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 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.
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 ...

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