RUDOLPH ROBERT CAPITOLI, ARTHUR MICHAEL NEWMAN, APPELLANTS,

v.

STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1965-05-12

No. 4745

WHITE, J., and ANDERSON, ALLEN C., Associate Judge, concur.

175 So. 2d 210 Florida District Court of Appeal, Second District (1965) Caution

Cited by 24 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellants Capitoli and Newman were convicted of breaking and entering with intent to commit grand larceny in a bench trial. They appealed challenging the admission of evidence allegedly obtained through unlawful search and seizure, but the appellate court affirmed because the trial judge explicitly stated he disregarded the challenged evidence and based his conviction solely on other admissible evidence.

Holding

The court affirmed the convictions, holding that any error in admitting the challenged evidence was harmless under the circumstances because the trial judge explicitly stated he disregarded the search and seizure evidence and based his findings exclusively on other evidence that amply supported the convictions.

Key Quotes

“I think the evidence is sufficient here, disregarding the search and seizure, although I feel, Mr. Varón, that the search and seizure was all right under the facts of this case — but just the fact of the boy pointing out the men to the officer and the officer chasing them and catching them, and the store had been broken into and the amount of goods stolen and so forth, to sustain the charge here.”
Trial judge's explicit statement that he based conviction on evidence independent of the allegedly unlawfully obtained evidence, establishing harmless error.

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Facts & Procedural History

Appellants were tried before a judge without a jury for breaking and entering with intent to commit grand larceny. A boy identified the men to an offi…

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Topics

Breaking And Entering With Intent To Commit Grand Larceny Intent To Commit Grand Larceny Presumption Of Prejudice Breaking And Entering

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Opinion of the Court

SMITH, Chief Judge.

Tried by the court without a jury the appellants were convicted of breaking and entering with intent to commit grand larceny. They seek reversal on the ground that the trial court erred in admitting over their objections certain evidence allegedly obtained by an unreasonable search and seizure. The record affirmatively discloses that the trial judge disregarded such evidence and based his findings exclusively upon other evidence which amply supports his findings. We affirm on the ground that the error, if any, in admitting the challenged evidence was harmless under the circumstances.

The record discloses that the appellants' motions to suppress, filed September 10, 1963, came on to be heard on January 2, 1964, before the Hon. Louis Weissing and that the trial itself commenced the next day before the same judge, sitting without a jury, immediately after the conclusion of the hearing on the appellants’ motions. The record further discloses that the trial court deferred ruling on the appellants’ motions until the conclusion of the trial at the request of the appellants’ counsel and contrary to a request by the state’s attorney that he rule on these motions prior to the commencement of the trial. Finally, at the conclusion of the trial, immediately prior to sentencing, the court made the following observations for the record:

“Gentlemen, I think the evidence is sufficient here, disregarding the search and seizure, although I feel, Mr. Var-ón, that the search and seizure was all right under the facts of this case — but just the fact of the boy pointing out the *212men to the officer and the officer chasing them and catching them, and the store had been broken into and the amount of goods stolen and so forth, to sustain the charge here. So I am finding both of them to be guilty and adjudging them to be guilty as charged in the information.

“In addition to that I would like to say I think the arrest was a lawful arrest, and in addition to that I think the search and seizure was also proper. Now, I might mention a couple of things for the purpose of the record. I think some of the State’s Exhibits, they may have come out of the trunk of the car, and stuff like that, and it does not impress me. I am not paying any attention to that. I am going strictly to the primary case. I don’t even know what these gadgets are laying there, but there are three exhibits on Mr. Moore’s desk. Now, that does not even enter into it. Just the fact of the identification, the store was broken into, the amount of goods that the owner testified were missing, I think that fully substantiates the charge here.”

Ignoring the items of evidence obtained by the challenged search and seizure and all testimony based on such items, the record contains evidence amply sufficient to sustain the convictions. Moreover, that evidence, taken by itself, leaves no doubt of the appellants’ guilt. Since the trial judge, sitting without a jury, stated that he based his findings exclusively upon such evidence and that he disregarded the challenged evidence, the error, if any, in the admission of such evidence was harmless. Section 54.23 1 and 924.33,2 Fla.Stats., F.S.A.; Butler v. United States, 7 Cir. 1943, 138 F.2d 977, 980 ;3 State v. Davis, 1945, 208 La. 954, 23 So.2d 801, 810 ;4 State v. Roach, 1927, 163 La. 329, 111 So. 775 ;5 State v. Lowery, 1926, 162 La. 465, 110 So. 721, 722 ;6 Jones v. State, 1908, 52 Tex.Cr.R. 519, 107 S.W. 849 ;7 Birmingham v. State, 1938, 228 Wis. 448, *213279 N.W. 15, 17-18, 116 A.L.R. 554, 558 ;8 Annotation: Reception of incompetent evidence in criminal case tried by court without jury as ground of reversal, 116 A.L.R. 558 (1938) at pages 561-562 (where trial court indicates evidence relied on) ; 24B C.J.S. Criminal Law § 1915(18) at notes 44 and 45.9 In view of the trial judge’s statement for the record we need not and do not decide what result would be reached if no such statement appeared.10

Affirmed.

WHITE, J., and ANDERSON, ALLEN C., Associate Judge, concur.

. See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (new trial awarded both defendants even though narcotics were admissible against second defendant since statement of first defendant relied upon by prosecution was not corroborated by evidence admissible against him and Court could not be certain from record that trial judge did not consider contents of first defendant’s statement as well as the narcotics as source of corroboration of second defendant’s admissions). But see State v. Garcia, 1964, 97 Ariz. 102, 397 P.2d 214 (admitting evidence of other crimes not reversible error in case tried by judge without jury where it did not clearly appear that findings would have been different if such evidence had not been admitted) ; Peterson v. State, 1953, 157 Neb. 618, 61 N.W.2d 263 (in action tried by court without a jury the erroneous admission of evidence is immaterial on appeal where the judgment below is sustained by sufficient competent evidence); Topolewski v. State, 1906, 130 Wis. 244, 109 N.W. 1037, 7 L.R.A.,N.S., 756 (in ease tried by court admission of improper evidence is regarded on appeal as harmless unless it clearly appears that, but therefore, the finding would probably have been different) ; Annot., 116 A.L.R. 558, 558-559 (1938): “There is a presumption, in the Federal courts, that where the court sits without a jury in a criminal prosecution, it acts only on the basis of the proper evidence * * * And this presumption also obtains in several state courts * * 5 C.J.S. Appeal and Error § 1564 (5); McCormick, Handbook of the Law of Evidence (19599 § 60; 4 Jones on Evidence (5th ed.) § 980.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (12 total)

Petion v. State, 48 So. 3d 726 (Fla. 2010)

…as here, as the fact-finder, erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So. 2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So. 2d 210 (Fla. 2d DCA 1965). Where, however, the record discloses that the trial judge relied upon the erroneous evidence, this presumption is overcome. Arroyo, 422 So. 2d at 51 (emphasis supplied) (federal citations omitted). After articulating this standa…

1 / 3
State v. Augustine Lasaro Arroyo, 422 So. 2d 50 (Fla. 3d DCA 1982)

…as here, as the fact-finder, erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So. 2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So. 2d 210 (Fla. 2d DCA 1965); United States v. Dillon, 436 F. 2d 1093 (5th Cir.1971); United States v. Menk, 406 F. 2d 124 (7th Cir.1969); United States v. Krol, 374 F. 2d 776 (7th Cir.1967); United States v. Mitchell, 297 F. 2d 407 (2d Cir.1962); Teate v. Un…
LaMARR v. Lang, 796 So. 2d 1208 (Fla. 5th DCA 2001)

…indicated a propensity to become enraged, (internal references omitted). Had the trial judge based his findings only upon properly admitted evidence, we might find the errors to be harmless. See Parks, 453 So. 2d at 437; see also Capitoli v. State, 175 So. 2d 210, 211 (Fla. 2d DCA 1965). But here, the trial court’s ruling was specifically founded on the improperly admitted evidence. Because this was a classic “he said, she said” case, the credibility of the parties was crucial. As a result, we cannot conclud…

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Authorities Cited

Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
Butler v. United States, 138 F.2d 977 (7th Cir. 1943)

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RUDOLPH ROBERT CAPITOLI, ARTHUR MICHAEL NEWMAN, APPELLANTS, v. STATE OF FLORIDA, APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (12 total)

Authorities Cited

RUDOLPH ROBERT CAPITOLI, ARTHUR MICHAEL NEWMAN, APPELLANTS,

v.

STATE OF FLORIDA, APPELLEE