Johnson v. State
| Decision Date | 12 June 1975 |
| Docket Number | No. U--394,U--394 |
| Citation | 314 So.2d 248 |
| Parties | Willie JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis O. Frost, Jr., Public Defender, and James O. Brechner, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
Appellant, defendant below, was charged with and convicted of second degree murder and was sentenced to life imprisonment. He now challenges by direct appeal that judgment and sentence.
The pertinent facts are as follows: In the early evening of July 28, 1973, at approximately 6:45 p.m., a quarrel developed between the appellant and the victim at the appellant's second story room in Jacksonville. According to the appellant who is the only surviving witness to the incident, the victim came at him with a knife and cut him on the leg before the appellant was able to break the blade off the knife; whereupon, he claims, he stabbed the victim several times with the knife blade. The victim, who was alive at this point, somehow managed to fall out of the window and come to rest in an alley. As the appellant went down the stairs to get into the alley, he told one of his friends to call the police. When the police arrived approximately 10 minutes later at 7:15 p.m.), they found the appellant, with the cut on his leg, seated at the top of the stairs in his wheelchair. As the appellant was telling the police that the victim had stabbed him first, the victim, who was lying on the floor in the next room, exclaimed, She was taken to a hospital where she died the next day as a result of the stab wounds.
At trial, the trial court allowed the investigating officer to testify as to the statements of the victim made at the scene of the killing. The State also introduced, inter alia, a photograph of the appellant's leg wounds which, although of admittedly poor quality, was not objected to by the appellant. After looking at the photograph for 10 minues, the State's medical expert stated, 'to a medical certainty', that the wounds on appellant's leg had been self-inflicted. At the conclusion of the evidence and after arguments by both counsel, the trial court gave its instructions to the jury. Although requested by boht counsel to do so, the trial court did not instruct the jury on murder in the third degree.
Appellant raises three points which he contends require reversal. First, he urges that the trial court erred in refusing to instruct the jury on third degree murder. The State does not question that the trial court erred in this regard. The clear language of Rule 3.490, RCrP requires that the court instruct the jury on the lesser degrees of an offense. In this situation, 'it is immaterial whether the indictment specifically charges the lesser degrees or whether there is any evidence of a crime of such degree.' (Brown v. State, Sup.Ct.Fla.1968, 206 So.2d 377)
In seeking a way around this rule of law, the State presents two arguments. The State first asserts that the appellant should be estopped from objecting to the error of the lower court concerning this issue because appellant's trial counsel encouraged the trial court in its decision not to instruct the jury on third degree murder. Our reading of the record reveals that, although defense counsel expressed some doubt as to whether the instructions should be given, he, as well as the assistant state attorney, requested the trial court to give the third degree murder charge. Under these facts, it can hardly be argued that appellant should be precluded from raising the trial court's failure to give the requested charge.
The state next argues that the harmless error rule applies. (F.S. 924.33) Several decisions may be cited which apply the harmless error rule to the failure to the trial court to instruct on lesser included offenses. (See State v. Wilson, Sup.Ct.Fla.1973, 276 So.2d 45; Cowart v. State, Fla.App.1st 1973, 277 So.2d 821) We have been unable to discover a case where the harmless error rule was applied in a case where the trial court failed to instruct the jury as to lesser Degrees of the offense charged. Inasmuch as we have found that reversal is required under another issue, we find it unnecessary to determine whether the harmless error statute is applicable. We merely note that at the appellant's new trial, the trial court must instruct the jury as to all lesser degrees of the offense charged. (Brown v. State, supra)
Appellant's second point on appeal is that the trial court erred in allowing testimony as to the statements made by the victim shortly after (within 30 minutes) the struggle. We first note that the statements are obviously hearsay and will not be considered admissible unless they can be found to fall under one of the exceptions to the hearsay rule. According to the State, the statements are admissible as spontaneous exclamations or res gestae statements. The rationale for permitting testimony relating to spontaneous exclamations is that 'such utterances spring spontaneously and instinctively from the stress or pain or excitement caused by the act of violence and are made so soon after the act as to preclude the idea of deliberation, fabrication or design.' (4 ALR 3rd 149, 154) The applicable Florida decisions appear to adhere to the foregoing rationale and call for the admission of spontaneous exclamations where the declarations were the natural emanations or outgrowths of the act or occurrence in litigation were made closely in time with the act, were voluntary and spontaneous, illustrated and explained the act, and were made under such circumstances as necessarily to exclude the idea of design or deliberation. (Washington v. State, Sup.Ct.Fla.1923, 86 Fla. 533, 98 So. 605) The Florida Supreme Court has recognized that the admission of statements as spontaneous exclamations depends upon the circumstances of the individual case. (State v. Williams, Sup.Ct.Fla.1967, 198 So.2d 21)
Applying the above-mentioned factors to the case sub judice, we arrive at the conclusion that the statements were properly admissible as spontaneous exclamations. First, the declarations of the victim, particularly the statement wherein she requested hospitalization for her numerous stab wounds, logically appear as 'the natural emanations or outgrowths of the act or occurrence in litigation.' Second, the statements were approximately contemporaneous with the act of violence. The record reveals that the statements were made at least within 30 minutes of the incident and most probably closer to 15 minutes from the time the victim was stabbed. We here note that statements made as long as two hours after the act of violence have been admitted as spontaneous exclamations. (Appell v. State, Fla.App.4th 1971, 250 So.2d 318) Third, the statements were made voluntarily and spontaneously. They were made not as the result of direct questioning of the victim, but were made only after the victim apparently overheard appellant state that the victim had stabbed first. By implication, the victim's statement that the appellant was lying tended to illustrate and explain the event. Finally, the circumstances of the case belie the assertion that the statements were uttered with design or premeditation. It does not comport with logic that a person lying on the floor and bleeding from the 13 knife wounds in her body would fabricate...
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