Opinion
No. 76-2135.
February 21, 1978. Rehearing Denied April 4, 1978.
Appeal from the Circuit Court, Palm Beach County, Emery J. Newell, J.
Curtis L. Witters of Glickman and Witters, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellate, accompanied by his son, Robert, and another man arrived at 11:00 P.M. at a VFW Post bar where they were denied drinks. A fight began between appellant and a man named Lyons who had refused to identify appellant as a member of the Post. A second fight began between the son, Robert, the bartender and a Mr. Conner. At some point, Robert, made the statement to the occupants of the bar that "you better watch out, my dad's a killer."
Robert withdrew from the fray and appellant continued the fight with the bar patrons until he ended the matter by producing a gun and shooting William C. Lyons and Hugh M. Murphy.
Convicted of aggravated battery upon two men, attempted aggravated battery upon a third and carrying a concealed firearm, appellant appeals asserting error in admitting the son's statement as inadmissible hearsay and irrelevant.
Irrelevant it may have been to prove the victim's apprehensive state of mind but that factor was proven when appellant pulled his gun and subsequently shot two of the men. Admissible it was under a res gestae or excited utterance theory. In any event, in light of the testimony, it was harmless to the appellant's case.
Appellant now challenges the prosecutor's closing argument in part, but no such objection was made at the time of trial. There is no suggestion that the questioned statement reaches the status of fundamental error.
The judgment of the trial court is
AFFIRMED.
ANSTEAD and DAUKSCH, JJ., concur.