Burch v. State

• Decision Date: 11 July 1978
• Docket Number: No. 77-395,77-395
• Citation: 360 So.2d 462
• Parties: Annie BURCH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 462

360 So.2d 462

Annie BURCH, Appellant, v. The STATE of Florida, Appellee.

No. 77-395.

District Court of Appeal of Florida, Third District.

July 11, 1978.

Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., Ronald A. Dion, Asst. Atty. Gen. and Edwin D. Davis, Legal Intern, for appellee.

Before HENDRY, J., HELIO GOMEZ, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

By information the appellant was charged with second degree murder and of the other crime mentioned below. At trial, a jury found her guilty of the lesser degree crime of third degree murder and of the crime of unlawful display of a firearm during the commission of a felony. The court adjudged the defendant guilty. On the firearm offense, sentence was suspended. On the third degree murder conviction, the defendant was sentenced to a three year prison term to be followed by three years probation.

On appeal, the defendant presents one question which was stated in appellant's brief as follows:

"Whether the trial court erred in excluding a defense witness' testimony concerning a statement made by the defendant where that statement was made contemporaneously with other statements of the defendant which had been admitted into evidence by the prosecution, and where the omitted statement was highly relevant to the defendant's theory of self-defense."

The appellant had killed her husband, by shooting him with a hand gun. Four bullets had struck him. In the formal statement made by the defendant to the police, which was revealed in evidence, after describing how the husband had beaten and kicked her before entering their house, the statement made by the defendant included the following:

"So, I laid down and David, he stay in 55, he came down and help me and then the lady stay around the corner, I don't know what apartment, her name is Feenie Mae, she came around and helped David carry me back in the house, and then she got the baby. The baby was still hollering, so my husband, he went in and laid the gun on the dresser and I told him, 'I'm gonna get you Burch, cause you kicked me and stomped me and called me like I was a dog' and he said, 'You worse than a dog, and if it weren't for my baby I woulda done killed you.'

"So he went back in the back room and sit on the bed and I got the gun and went to shooting him. I was standing right there between the bedroom and the bathroom and the kitchen, and he went to crawl to me and I kept on shooting and he was hollering, 'Oh, oh, oh.' "Then he turned around and crawled back in the bedroom and I couldn't shoot no more cause it was empty. I carried the gun out there and just throwed it and went to hollering. I said, 'I done killed him, I done killed him,' so then everybody come running, so then Evelyn Burn or David, they called the ambulance and they came and I was still hollering."

A witness for the defense, Finnie May Rogers, testified that following the shooting, while she was present at the scene, when the police were there talking with defendant, "She told the police that she and Burch were struggling over the gun." The prosecutor objected on the ground that the statement was self-serving, hearsay evidence. The court sustained the objection and instructed the jury to disregard it. The State here concedes...