Gore v. State , 1987 Okla. Crim. App. LEXIS 344 ( 1987 )

PARKS, Judge,

Specially Concurring:

Although I concur with the majority’s opinion that this conviction must be affirmed because witness Cochran’s testimony was not hearsay, I write separately to express my disagreement with the majority’s assertion that “even if this testimony was hearsay ... these assertions are admissible as part of the entire transaction, formerly referred to as res gestae.... ” See, supra, at 578.

There is no longer a res gestae or “entire transaction” exception to the hearsay rule under the Oklahoma Evidence Code. See 12 O.S.1981, § 2803. As the Evidence Subcommittee’s Note to Section 2803 states:

In no instance in these rules is the term “res gestae” employed. The vagueness and imprecision in the term ‘‘res gestae” and the circumstances under which it should be employed to admit otherwise inadmissible hearsay evidence affords a convenient escape from the hearsay doctrine and under conditions much less appropriate than might be employed under the general exception of 803(24) of these rules. Accordingly, “res gestae” is specifically abandoned in these rules as an exception to the hearsay rule in favor of the more specific categories of exceptions recognized herein, (emphasis in original)

Accord Note, Criminal Law: The “Excited Utterance” Exception to the Hearsay Rule: An Analysis of Federal and Oklahoma Law in Light of Newbury v. State, 39 Okla.L.Rev. 84, 85 n. 16 (1986). Moreover, the cases cited by the majority are not on point. Dixon v. State, 560 P.2d 204 (Okl.Cr.1977), is a pre-Code opinion based on the common law res gestae exception to the hearsay rule; and, Beavers v. State, 709 P.2d 702 (Okl.Cr.1985), in which this writer filed a dissenting opinion, relates to the application of the excited utterance exception to the hearsay rule.