State v. Johnson

• Decision Date: 02 April 1980
• Docket Number: No. 79-2011,79-2011
• Citation: 382 So.2d 765
• Parties: STATE of Florida, Petitioner, v. Samuel JOHNSON, Respondent.
• Court: Florida District Court of Appeals

Page 765

382 So.2d 765

STATE of Florida, Petitioner, v. Samuel JOHNSON, Respondent.

No. 79-2011.

District Court of Appeal of Florida, Second District.

April 2, 1980.

James A. Gardner, State's Atty., and H. H. Hester, III, Asst. State's Atty., Bradenton, for petitioner.

Elliott C. Metcalfe, Jr., Public Defender, and Zollie S. Cowart, III, Asst. Public Defender, Bradenton, for respondent.

BOARDMAN, Acting Chief Judge.

The state by petition for common law certiorari asks this court to quash several pretrial, evidentiary rulings by the trial court. After consideration of each point raised, we conclude that only one of the trial court's rulings departed from the essential requirements of law; accordingly, we grant certiorari in part.

Robert W. Goolsby and respondent Samuel Johnson were charged with two counts of sexual battery and one count of burglary. ¹ During the course of the sexual battery, respondent allegedly struck the victim, causing Goolsby to say, "Don't hurt her, Sam." Respondent filed the motion in limine seeking to exclude the victim's testimony concerning Goolsby's statement from evidence. The trial court concluded that the statement was hearsay and granted the motion.

We do not necessarily agree that the statement constituted hearsay, but even if it was hearsay we hold that the trial court departed from the essential requirements of law in failing to find that this statement was admissible under the res gestae or excited utterance exception to the hearsay rule.

The new evidence code is not applicable here, its effective date being subsequent to the date of respondent's trial. However, a review of its pertinent provisions is enlightening. The former res gestae exception to the hearsay rule is not included in the new evidence code. Section 90.803(2), Florida Statutes (1979), however, provides for a newly designated "excited utterance" exception to the hearsay rule. This section defines an excited utterance as: "A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

Goolsby's statement clearly falls within the definition of an excited utterance. Therefore, the only question is whether Section 90.803(2) provides for a new exception to the hearsay rule in Florida, or merely renames an existing exception. The sponsor's note to this section states that the section does not change the law of evidence, but merely affects a...