Puryear v. State

810 So. 2d 901, 2002 WL 188359
CourtSupreme Court of Florida
DecidedFebruary 7, 2002
DocketSC01-183
StatusPublished
Cited by121 cases

This text of 810 So. 2d 901 (Puryear v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Puryear v. State, 810 So. 2d 901, 2002 WL 188359 (Fla. 2002).

Opinion

810 So.2d 901 (2002)

Kevin PURYEAR, Petitioner,
v.
STATE of Florida, Respondent.

No. SC01-183.

Supreme Court of Florida.

February 7, 2002.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Robert A. Butterworth, Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Respondent.

WELLS, C.J.

We have for review Puryear v. State, 774 So.2d 846, 852-53 (Fla. 4th DCA 2000) (en banc), in which the Fourth District Court of Appeal certified the following question to be of great public importance:

HAS SWAFFORD V. STATE, 533 So.2d 270 (Fla.1988) BEEN OVERRULED BY POWER V. STATE, 605 So.2d 856 (Fla.1992)?

We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., answer the certified question in the negative, and quash the Fourth District's decision in this case.

The victim, sixteen-year-old Amy Deese, was robbed on the afternoon of April 27, 1999, at a self-service car wash. Her assailant came from her back right side while she was kneeling and placed a hard *902 metallic object against her head, which Deese thought to be a gun. The assailant demanded Deese's money, and Deese gave the assailant six one-dollar bills from her back pocket. As Deese's assailant was running away, Deese stood up and looked at her assailant. Deese never directly viewed her assailant's face, but did observe the assailant's profile, clothing, height, and weight for a few seconds.

After being robbed, Deese drove home and told her mother of the occurrence and, soon thereafter, her boyfriend, Danny Cratsenberg. Deese described her assailant to Cratsenberg. Cratsenberg drove Deese to the police station, where Deese reported the incident to Detective Rhonda Wardlaw and provided Detective Wardlaw with a description of her assailant. Deese and Cratsenberg then departed the police station to drive to Deese's home. Near the crime scene, Deese and Cratsenberg saw an individual Deese believed to be her assailant and flagged down a police officer, who arrested Kevin Puryear.

At trial, Deese testified that her assailant was a black male who wore a burgundy shirt, black faded jeans, and white tennis shoes, was missing every other tooth, was between the ages of thirty and thirty-five, and had body odor. Deese did not remember when she saw her assailant's teeth and on cross-examination admitted that the testimony regarding the teeth was a guess on her part. She also testified that she first identified Puryear on the basis of his "clothing and height, stuff like that" but was positive that she correctly identified Puryear as her assailant at the time of his arrest.[1] On cross-examination, Deese conceded that she was only seventy-five percent sure that the person the police arrested was the same person who robbed her. Deese identified Puryear as her assailant in court.

The State attempted in its case-in-chief to elicit from both Detective Wardlaw and Cratsenberg the descriptions of the assailant Deese had given to them on the day she was robbed. Over Puryear's hearsay objection, Detective Wardlaw testified that Deese described the assailant as a black male, approximately six feet tall, weighing 140 pounds, between the ages of thirty and thirty-five, wearing a burgundy T-shirt with faded black blue jeans and white sneakers, missing every other tooth, having a mustache and having very strong body odor.[2] Over Puryear's hearsay objection, Cratsenberg testified that Deese told him that her assailant was a black male who was wearing a maroon shirt, faded black jeans, and white sneakers, had missing teeth, had a mustache, and "stunk." Officer Janet Kazmierczak, who participated in Puryear's arrest, testified that Puryear was wearing a burgundy T-shirt, faded black jeans, and white sneakers at the time of his arrest. The jury found Puryear guilty of robbery, as a lesser included offense of robbery with a weapon.[3]

Based upon section 90.801(2)(c), Florida Statutes (1999), the Fourth District affirmed *903 en banc the trial court's rulings allowing Cratsenberg and Detective Wardlaw to testify to the description Deese gave of her assailant. See id. at 852. The court also affirmed Puryear's robbery conviction. See id. at 853. In an attempt to discern the proper interpretation of section 90.801(2)(c), the Fourth District reviewed Swafford v. State, 533 So.2d 270, 275-76 (Fla.1988), and Power v. State, 605 So.2d 856, 862 (Fla.1992), and concluded that these two opinions irreconcilably conflicted regarding the proper interpretation of section 90.801(2)(c). See Puryear, 774 So.2d at 850. The Fourth District determined that Power overruled Swafford sub silentio, id. at 851, and the court held "that because the victim testified at trial and was extensively cross-examined, the trial court did not err in admitting the victim's out-of-court statements to the detective and her boyfriend." Id. at 852.

Concurring specially, Judge Taylor maintained that the court was bound by this Court's most recent section 90.801(2)(c) pronouncement in Power, but she argued that Swafford was the correct interpretation of section 90.801(2)(c). See id. at 853 (Taylor, J., concurring specially). Judge Farmer dissented and argued that the section 90.801(2)(c) statement in Power was dicta and, therefore, Swafford was binding precedent. See id. at 854 (Farmer, J., dissenting). We align ourselves with Judge Farmer's conclusion and hold that Swafford remains controlling precedent on the correct interpretation of section 90.801(2)(c).

Puryear argues that this Court decided the issue in Swafford and that the discussion in Power regarding section 90.801(2)(c) was dicta. The State maintains that this Court is not necessarily bound by our prior opinions. In any event, according to the State, Swafford is factually distinguishable because the declarant in Swafford, unlike in this case, never made an out-of-court identification. We do not believe that this factual difference is relevant to the issue of whether a third party may testify to the out-of-court description statements made by the declarant.

The certified question requires us to examine whether the trial court erred by allowing Cratsenberg and Detective Wardlaw to testify regarding Deese's descriptions of her assailant. The conclusion turns on the discrete issue of whether, pursuant to the nonhearsay exception of section 90.801(2)(c), Florida Statutes (1999), a third party may testify to a declarant's out-of-court description of an assailant where the declarant testifies at trial and is subject to cross-examination.[4] More generally, this case presents the issue of whether a description is a statement of identification.

We previously addressed this precise issue in Swafford and expressly held that a description is not an identification. See Swafford, 533 So.2d at 276. At issue in Swafford was a defense claim that the trial court improperly excluded a police officer's testimony about description statements made to the officer by a witness of a possible suspect. 533 So.2d at 275-76. On appeal, Swafford argued that the description testimony was not hearsay under section 90.801(2)(c), Florida Statutes (1985). See id. at 276.[5] In rejecting this *904

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Bluebook (online)
810 So. 2d 901, 2002 WL 188359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/puryear-v-state-fla-2002.