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Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, May 16, 2013

This is a Knife: Florida Court Finds Statement About Knife Qualified as an Excited Utterance

Similar to its federal counterpartSection 90.803(2) of the Florida Statutes provides an exception to the rule against hearsay for

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.

You don't much more of a textbook example of an excited utterance than the one found in the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Thomas v. State, 2013 WL 1980256 (Fla.App. 4 Dist. 2013).

In Thomas, Willie Thomas appealed his convictions for armed burglary of a dwelling, aggravated battery with a deadly weapon, and possession of cocaine. One of the ground for Thomas' appeal was that the trial court improperly allowed an eyewitness to testify concerning a hearsay statement by the alleged victim. Specifically, the eyewitness testified that he heard the victim yell out, "he has a knife, he has a knife" during an altercation with Thomas.

The appellate court was easily able to turn this argument aside, citing the language of Section 90.803(2) and concluding that

Here, the witness testified that she heard a loud noise coming from the patio late at night. She rushed outside to find a stranger fighting with the victim and she joined the struggle. During the altercation, the victim exclaimed, "He has a knife, he has a knife." This testimony establishes that all three requirements were met, since a home invasion constitutes a startling event, the statement was made at the time the struggle was in progress, and the person who made the statement was being attacked by a stranger holding a knife. On the testimony presented by the eyewitness, the trial court correctly ruled that the excited utterance exception applied to the eyewitness's statement.

I agree with the court's conclusion and also note that the statement likely qualified as a present sense impression, "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it."

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/05/this-is-a-knife-florida-court-finds-statement-about-knife-qualified-as-an-excited-utterance.html

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