Florida District Courts of Appeal, 2004

Lara v. State

Florida District Courts of Appeal · Decided March 17, 2004 · Barkdull, Green, Schwartz, Thomas

868 So. 2d 1224; 2004 Fla. App. LEXIS 3295; 2004 WL 575711 (Southern Reporter, Second Series)

Concurring Opinion

SCHWARTZ, Chief Judge

(specially concurring).

I believe both that it was error to admit a prior written statement of the victim, which was inadmissible as an excited utterance, State v. Justice, 92 Ohio App.3d 740, 637 N.E.2d 85 (1994); State v. Dixon, 37 Wash.App. 867, 684 P.2d 725 (1984), or otherwise, see Coluntino v. State, 620 So,2d 244 (Fla. 3d DCA 1993); Reyes v. State, 580 So.2d 309 (Fla. 3d DCA 1991), and that portions1 of the prosecutor’s unobjected to final argument went well over the line. See Card v. State, 803 So.2d 613 (Fla. 2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 845 (2002); First v. State, 696 So.2d 1357 (Fla. 2d DCA 1997). Nevertheless I concur in af-firmance because I am convinced beyond a reasonable doubt by the record — which shows the defendant was apprehended by the investigating officers literally in the act of brutally beating his wife — -that neither issue made any difference in the ultimate outcome. See § 924.33, Fla. Stat. (2003); *1225Goodwin v. State, 751 So.2d 537 (Fla. 1999); State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); Justice, 92 Ohio App.3d at 740, 637 N.E.2d at 85; Dixon, 37 Wash.App. at 867, 684 P.2d at 725.

. For example:

There’s nothing up my sleeves. Nothing like that. Just the evidence and the truth. You're the truth-seekers. 'We who labor here, seek only truth.' We know what the truth is. You saw him on the stand, the guy's a- liar.

You have got to understand that he's lied to you. He barely looked you in the eye, because I can't say he lied right to your face, he’s a liar.

[[Image here]]

The Defendant lied. He lied on the stand. He lied to the police and he lied when he pled not guilty in this case, because he's guilty.

[[Image here]]

Oh, this is my favorite part. Let's talk about the Defendant testifying. Now, well it’s clear that the Defendant lies when it’s convenient.

Opinion of the Court

PER CURIAM.

Affirmed. See § 59.041, Fla. Stat. (2003); Bradley v. State, 787 So.2d 732, 743-44 (Fla. 2001); Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028-29 (Fla. 2000); State v. Jano, 524 So.2d 660, 661-62 (Fla. 1988); Bell v. State, 847 So.2d 558, 560-61 (Fla. 3d DCA 2003); Pino v. State, 776 So.2d 1081 (Fla. 3d DCA 2001).

GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge, concur.

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