State v. Baker, 82-688

• Decision Date: 03 November 1983
• Docket Number: No. 82-688,82-688
• Citation: 441 So.2d 1102
• Parties: STATE of Florida, Appellant, v. William Henry BAKER, Appellee.
• Court: Florida District Court of Appeals

Page 1102

441 So.2d 1102

STATE of Florida, Appellant, v. William Henry BAKER, Appellee.

No. 82-688.

District Court of Appeal of Florida Fifth District.

Nov. 3, 1983.

Rehearing Denied Nov. 30, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.

Russell W. Layton, Cocoa Beach, for appellee.

COWART, Judge.

This case involves the admissibility of similar fact evidence.

William Henry Baker was accused of being the man who got out of a certain pickup truck and shot at Doctor Austin. A witness at trial, Kenneth Bowen, testified that he was driving down Boggy Creek Road when he heard shots, saw a man get into the pickup truck and proceed ahead of him up Boggy Creek Road. Bowen said the truck stopped at a stop sign and that he saw Baker get out of the truck and that Bowen passed Baker and the truck. When Bowen was asked if Baker's truck fell in behind him after he passed it, Bowen replied, "after he shot at me, yes." At the time of this answer defense counsel made no objection or motion but at the close of the State's case moved for a mistrial on the ground that Bowen had improperly testified to an unrelated crime committed by Baker. The trial court denied the motion for mistrial and, in his case, Baker testified he did not shoot at Doctor Austin or Bowen and did not have a gun at the time in question. After Baker was found guilty by the jury the trial court granted his motion for a new trial based on Bowen's answer being inadmissible and prejudicial and the State appeals. We reverse the order granting a new trial.

Evidence of a defendant's commission of crimes, wrongs, or bad acts, other than that for which he is being tried, is admissible if the evidence is relevant to prove any material fact in issue in the trial and is not offered merely to show the bad character or propensity of the defendant to commit the crime charged. Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), rev. den., 413 So.2d 877 (Fla.1982); § 90.404(2)(a), Fla.Stat. (1981). It is true that here the similar fact evidence got before the jury not because the State intended to offer it but because the witness volunteered it. It is also true that Bowen's answer was unresponsive in that he could have answered that Baker followed him without saying that Baker first shot at him. Nevertheless the volunteered testimony was...