Davis v. State, 2010 Fla. App. LEXIS 19940

Davis was convicted of armed robbery with a firearm after a nighttime robbery where the victim identified two perpetrators but could not identify the third.
One perpetrator, Bellamy, testified and named Davis as the third man; a second perpetrator, Combs, claimed memory loss about the incident.
Combs previously confessed to police and implicated Davis three months after the crime; Investigator Troop recounted Combs's statements.
The trial court admitted Troop's testimony as nonhearsay under section 90.801(2)(c) based on identification after perceiving a person.
The admission was challenged as improper hearsay and improper impeachment; the defense argued the statements were accusatory, not identification.
The appellate court held the trial court erred, reversed the conviction, and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 90.801(2)(c) applies to admit Combs's statements	Davis argues the statements were not identifications made after perceiving Davis.	State argues the statements qualified as identification after perceiving the person.	No; statements were accusatory, not identifications, thus inadmissible.
Whether the officer's testimony could be used to impeach Combs	Davis contends the testimony improperly impeached a memory-impaired witness without a finding of fabrication.	State contends impeachment with memory lapses permitted where inconsistent with prior statements.	No; improper impeachment absent a finding of fabrication.
Whether the error was harmless beyond a reasonable doubt	Only accomplice testimony remained against Davis and weight given to officer testimony was substantial.	The evidence was not solely dependent on the tainted testimony; thus harmless.	Not harmless; denial of a new trial required.
Whether reversal and remand are appropriate for a new trial	N/A	N/A	Granted; reverse and remand for a new trial.

Ibar v. State, 938 So. 2d 451 (Fla. 2006) (identification after perceiving person not broadly applicable to this context)
Evans v. State, 838 So. 2d 1090 (Fla. 2002) (identification identification-time rule cited)
Ross v. State, 993 So. 2d 1026 (Fla. 2d DCA 2008) (section 90.801(2)(c) context authority)
Rutherford v. State, 902 So. 2d 211 (Fla. 4th DCA 2005) (identification and hearsay distinctions cited)
Liscinsky v. State, 700 So. 2d 171 (Fla. 4th DCA 1997) (impeachment and memory-related testimony considerations)
Stanford v. State, 576 So. 2d 737 (Fla. 4th DCA 1991) (hearsay and identification principles cited)
Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004) (identification-time rule not satisfied here)
Calhoun v. State, 502 So. 2d 1364 (Fla. 2d DCA 1987) (impeachment limitations described)
James v. State, 765 So. 2d 763 (Fla. 1st DCA 2000) (impeachment vs. memory testimony distinction)
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) (harmless error standard for appellate review)