Livingston v. State
219 So. 3d 911
| Fla. Dist. Ct. App. | 2017Background
- Victim was robbed and beaten on Dec. 21, 2012; he returned home, called 911, and gave a detailed description of his assailant.
- Deputies Rosa and Lucius testified at trial about the victim’s out-of-court description: Rosa relayed the victim’s immediate description; Lucius testified about a BOLO that repeated a similar description.
- Victim identified Fredrick Livingston at the scene and in court with "100%" certainty; photographs of defendant and injuries were introduced.
- Defense objected at trial to deputies’ testimony as hearsay; trial court overruled and later, in denying a new-trial motion, concluded the victim’s description was admissible as an excited utterance.
- Livingston was convicted of robbery and sentenced to 15 years as a prison-releasee reoffender; he appealed arguing improper admission of out‑of‑court descriptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of victim’s out‑of‑court description to Deputy Rosa (hearsay) | State: Description was admissible as an excited utterance | Livingston: Testimony was inadmissible hearsay and not an identification under Puryear | Court: Affirmed — trial court’s posttrial finding that the statement was an excited utterance is supported by the record (issue waived on appeal because defense did not challenge excited‑utterance ruling) |
| Admissibility of BOLO description to Deputy Lucius (double hearsay) | State: BOLO evidence relevant to apprehension | Livingston: Double hearsay; BOLO not admissible | Court: Testimony was double hearsay and not clearly within exception, but any error was harmless given strong in‑court ID and other properly admitted evidence |
| Sufficiency of predicate/foundation for excited utterance finding | Livingston: Trial court never conducted predicate hearing or made express findings; State didn’t invoke excited utterance at trial | State: Trial record supports stress/fear, prompt statement, and lack of time to fabricate | Held: Majority says record supports implicit predicate findings; concurrence criticizes using posttrial ruling and majority’s fact‑finding—issue waived on appeal so affirmed |
| Harmless error / prejudice from hearsay testimony | Livingston: Admission of deputy testimony bolstered ID and prejudiced jury | State: Properly admitted excited utterance and other evidence made any error harmless | Held: Majority finds any error in BOLO testimony harmless; concurrence disagrees but joins affirmance due to waiver |
Key Cases Cited
- Puryear v. State, 810 So.2d 901 (Fla. 2002) (description is not an "identification" under hearsay‑identification rule)
- Swafford v. State, 538 So.2d 270 (Fla. 1988) (police bulletin containing victim’s description may be inadmissible hearsay)
- English v. State, 43 So.3d 871 (Fla. 5th DCA 2010) (error in admitting deputy’s BOLO description)
- Hendrieth v. State, 483 So.2d 768 (Fla. 1st DCA 1986) (excluding officer testimony recounting victim’s description when no hearsay exception applies)
- Williams v. State, 967 So.2d 735 (Fla. 2007) (trial court may rely on alternate legal basis not suggested by parties for an evidentiary ruling made during trial)
- Power v. State, 605 So.2d 856 (Fla. 1992) (victim’s shaken condition can support admission under excited‑utterance exception)
- Stephens v. State, 787 So.2d 747 (Fla. 2001) (abuse of discretion standard for new‑trial rulings)
- Ventura v. State, 29 So.3d 1086 (Fla. 2010) (harmless‑error/DiGuilio framework)
- DiGuilio v. State, 491 So.2d 1129 (Fla. 1986) (harmless error standard in criminal cases)
- State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla. 2002) (explaining the "tipsy coachman" doctrine for affirmance on alternative grounds)