Lara v. State

¶1(specially concurring).

¶2I 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.