Pollard v. State

807 So. 2d 735, 2002 Fla. App. LEXIS 1409, 2002 WL 215011

Opinion

PER CURIAM.

Joseph C. Pollard appeals his conviction for first degree murder and armed robbery.

First, the hearsay statement of witness Simmons was properly admitted into evidence. Defense counsel had successfully objected on earlier occasions that the State had failed to lay a proper predicate for demonstrating that Mr. Simmons’ statement qualified as an excited utterance. The State ultimately laid the proper predicate. See § 90.803(2), Fla. Stat. (1999); Stoll v. State, 762 So.2d 870, 873 (Fla.2000); Damren v. State, 696 So.2d 709, 713-14 (Fla.1997); Pope v. State, 679 So.2d 710, 713 (Fla.1996). Once the proper predicate was laid, defense counsel quite properly made no further objection, and the statement was admitted into evidence.

Second, defendant-appellant Pollard contends that an unobjected-to portion of the prosecutor’s closing argument amounted to fundamental error. We disagree. The comment that the defendant’s girlfriend had helped dispose of the murder weapon was a fair comment on the evidence, being based on the defendant’s own confession. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). The comment that the State intended to prosecute Ms. Wright if successful in locating her was irrelevant, but when considered in context was not unfairly prejudicial to the defendant and certainly did not amount to fundamental error. See McDonald v. State, 743 So.2d 501, 505 (Fla.1999).

Affirmed.