Lead Opinion
Gerald Petion seeks review of the decision of the Fourth District Court of Appeal in Petion v. State,
FACTS AND PROCEDURAL HISTORY
The facts from the decision below establish that following a non-jury trial, Gerald
The officers requested identification from Petion, and Petion produced a driver’s license that was not his own. Petion was arrested for providing false identification to a law enforcement officer, and he was searched. During the search of Petion, the officers discovered crack cocaine and twenty-six bags of powder cocaine. A search of the vehicle revealed twelve bags of marijuana, a number of clear plastic bags, and slips of paper inscribed with the initials “GP” and a phone number.
In addressing these facts, one of the officers was allowed to testify over defense objection that it was common for street-level narcotics dealers to distribute drug-related contact references on slips of paper similar to those recovered from the vehicle. The testimony disclosed:
[STATE]: Okay. Did you at any point later see pieces of the paper with the initials “GP” on it?
[OFFICER]: Yes, ma’am.
[STATE]: Where did you see those pieces of paper?
[OFFICER]: I believe there was a cup in the center console of the vehicle that had quite a few of those pieces of paper in the vehicle.
[STATE]: What did the pieces of paper say on them?
[OFFICER]: They all said the same thing. They said the initials “GP” with a telephone number.
[STATE]: Okay. Have you ever seen— based on your training and experience, have you ever seen anything like this before?
[DEFENSE]: Objection. Now we’re being really speculative. Pieces of paper with initials and a telephone number, and now he’s going to speculate what they are used for?
THE COURT: Based on his training and experience? Overruled.
[OFFICER]: It’s common for street level narcotics dealers to hand out contact reference for potential buyers to contact them, and that’s consistent with that.
The trial court found Petion guilty of the lesser included offense of possession of cocaine with intent to sell, possession of cannabis with intent to sell, and unlawful use of a false name. Petion was sentenced to concurrent terms of forty-six months imprisonment on the first two convictions and to time served on-the last. On appeal to the Fourth District, Petion contended that the trial court abused its discretion by permitting a police officer to testify that it was common for drug dealers to provide contact information to potential buyers. See Petion,
We find, however, that any error in admitting this testimony was harmless in this case, which was tried without a jury. When a trial judge, sitting as the trier of fact, erroneously admits evidence, the judge is 'presumed to have disregarded that evidence. See C.W. v. State,793 So.2d 74 (Fla. 4th DCA 2001). Although this presumption is rebuttable, nothing in the record suggests that the trial judge relied upon this inadmissible evidence.
Id. (emphasis supplied). Accordingly, the Fourth District affirmed Petion’s conviction for possession of cocaine with intent to sell.
Thereafter, Petion sought discretionary review in this Court based on conflict with J.D. v. State,
The Third District held that the trial court’s failure to respond to the objection implicitly overruled the objection and, therefore, the trial judge had considered the offending comment in reaching the judgment. See id. The district court applied a harmless error analysis but expressly declined to apply the presumption utilized in Petion. The court reasoned:
We understand the State’s position to be that, inasmuch as the trial which we review here was a non-jury trial, the trial judge certainly knew to disregard the comment and, accordingly, we can rest assured that he has done so. The standard which the State urges would, then, be nothing more than one which requires this court’s subjective interpretation of what the trial judge did or did not consider, inasmuch as the record presented for review is silent on this point. We respectfully decline the State’s invitation, and prefer, as indicated above, instead to hold to an objective interpretation of the evidence presented in the record on review. When the record is examined in this light, two facts are clear: first, the quoted comment was, in fact, made; and, second, this court cannot find beyond a reasonable doubt from the record, as [State v.] DiGuilio[,491 So.2d 1129 (Fla.1986),] requires, that the error complained of did not contribute to the adjudication of delinquency.
Based on the conflicting standards of review expressed in these decisions, this Court accepted review to resolve the conflict between Petion and J.D.
ANALYSIS
The initial presumption that a trial court has disregarded inadmissible evidence during a non-jury trial is well established in Florida. In a non-jury trial, the factual findings of the judge are entitled to the weight of a jury verdict. See, e.g., Spataro v. State,
To understand the application of this presumption, it is instructive to trace the evolution of the standard of review with regard to claims of evidentiary errors during a bench trial. This standard is derived from the deference given to the ability of a trial judge to segregate inadmissible evidence. In Harris v. Rivera,
Beginning with the precedent of this Court, the decision in Prince v. Aucilla River Naval Stores Co.,
Errors as to the admission and rejection of evidence have not been shown to have injuriously affected the rights of the complaining party, especially since the case was not tried before a jury, where irrelevant or immaterial testimony may sometimes be highly prejudicial to a fair consideration of the facts by untrained minds of jurors who might thereby be misled into rendering a verdict on testimony which should have little or no consideration as of evidentiary value.
Id. at 886 (emphasis supplied). The Prince decision recognized that trial court judges are deemed to have the training to disregard and not be improperly prejudiced by inadmissible evidence.
More than twenty years later, this Court again considered alleged errors in the admission of certain evidence and held that “in cases tried by the Judge without a jury the Judge is in a position to evaluate the testimony and discard that which is improper or which has little or no evidentiary value.” First Atlantic Nat’l Bank of Daytona Beach v. Cobbett,
Subsequently, in Jalbert v. State,
Two decades later, in Alford v. State,
In considering the imposition of the sentence, the trial judge’s discretion is guided and channeled by statute and case law. He may be “aware” of other factors, but he does not “consider” these factors in the exercise of his discretion. For example, the judge may be “aware” of inadmissible evidence after a proffer has been made, but this evidence is never “considered” by the judge.
Id. at 109. More recently, in Guzman v. State,
Here, the judge did not err, but appropriately excluded inadmissible evidence. Given these evidentiary rulings, the judge a fortiori may be presumed to have disregarded the inadmissible evidence. Therefore, assuming arguendo that the prosecutor’s attempts to introduce the evidence were improper, the attempts were harmless.
Id. at 511 (emphasis supplied). Guzman is distinguishable from Petion in that the trial court excluded, rather than expressly admitted, inadmissible and improper evidence. It is logical to presume that the trial court’s exposure to evidence that the court recognized as inadmissible would not be considered by the court in rendering its determination. In contrast, under the circumstances in Petion, it is'illogical to presume the court disregarded evidence when the court has expressly ruled it admissible and properly before the court for consideration.
A review of district court decisions also demonstrates application of the presumption. A decade after Jalbert expressly recognized the presumption, the Third District echoed the principle stated in First Atlantic without referring to any decisions of this Court on the issue. In Adjmi v. State,
[i]n a trial before a court, without a jury, as here, the law is well-settled; the credibility of witnesses and the weight of their testimony are questions for the determination of the judge, whose function it is to draw all reasonable deductions from the evidence. In such cases, the judge is in a position to evaluate the testimony and discard that which is improper or which has little or no evi-dentiary value.
Id. at 860 (emphasis supplied).
Several other decisions have emphasized that the standard of review is necessarily different when reviewing a judgment entered in a non-jury trial. In Brown v. State,
Fear has often been acknowledged that a lay jury is susceptible and amenable to ignoring established constitutional principles involving admissibility of confessions and exculpatory remarks. And it is a well established principle that a trial judge, sitting alone, and therefore in the capacity as trier of fact, will be less likely to be prejudicially influenced by this type of evidence than would be the untrained minds of the jurors. Finally, we take judicial notice of the fact that any confession or exculpatory statements, tendered by the state for admission into evidence, must be first reviewed, and then evaluated for admissibility by the trial judge. This necessarily involves the judge’s viewing every tendered piece of evidence before making an initial decision as to its constitutionality. When such evidence is rejected by a trial judge, he is deemed to have the training, experience, and discipline of faculties so as to avoid being influenced by any prejudicial effects therefrom.... To reverse this trial on the basis that the trial judge, in his capacity as trier of fact, was so prejudicially influenced by his encounter with the incriminating portions of the [co-defendants’] confessions] ..., would be to cast aspersions on the entire foundation of the judge’s role in any court proceeding.
Brown,
Thereafter, in Belcher Towing Co. v. Board of County Commissioners of Dade County,
We hold that under the circumstances of this case, where the cause was tried before the court without a jury and the court’s finding of fact and decision were in no way based upon the opinion in the prior case, that prejudicial error has not been shown. A more informal trial is permissible before a court than before a jury. The admission of the opinion which the court expressly ruled had no effect as res judicata or estoppel by judgment was not prejudicial error.
Id. at 457 (emphasis supplied) (citations omitted).
In the months following this Court’s decision in Alford, the Fourth District also acknowledged that the reviewing standard should be different for a judgment arising from a jury trial versus a non-jury trial. See In re M.E.G.,
[a] judge is in a position to weigh testimony, assess credibility and resolve conflicts, just like a jury, when he sits as a trier of the facts.... He also decides what testimony is' to be excluded as being violative of some evidentiary rule.*734 He sits in the unique position of admitting and excluding testimony and then weighing what he admits and disregarding what he excluded. In the recent case of Alford v. State,355 So.2d 108 (Fla.1977), ... it was recognized that a trial judge may be made aware of facts bearing on sentencing issues but that he was capable of disregarding the known facts in reaching his decision. Therefore, extending Alford to this case, we feel the trial judge is able to disregard the improper testimony in making his decision, thereby rendering the “error” harmless.
In these decisions, the district courts did not expressly state that they were a applying a “presumption,” despite the holding in Jalbert. However, it is clear that the courts were relying on the fundamental principles underlying the presumption (i.e., deference to the trial court’s training and discipline to segregate inadmissible evidence). A few years after the decision in M.E.G., the Second District Court of Appeal in M.A. v. State,
This presumption is rebutted where the record demonstrates that the trial court relied upon or expressly admitted the erroneous evidence over objection. Specifically, the Third District in State v. Arroyo,
Ordinarily, where a trial judge, sitting, 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,
However, we note that Arroyo frames the presumption in overly broad terms. The appellate court should not presume that the trial court disregarded all improperly admitted evidence where the record reflects that the evidence was admitted over objection. Hence, another method of rebutting the presumption is through a trial court’s express admission of the evidence over objection. In making the determination that the evidence is admissible, we would expect a trial court judge to believe that the evidence was properly before the trier of fact for consideration. It would be nonsensical to hold otherwise and insulting to the training and experience of the trial judge to presume that the evidence was disregarded when the court made a conscientious ruling that the evidence was admissible. In that circumstance, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume that the trial court disregarded evidence which was specifically admitted as proper.
The Second District correctly expressed the proper application of the presumption under circumstances where a trial court admits evidence over objection. In Parks v. Zitnik,
The appellee contends that any error committed by the trial court was harmless because the case was tried by the court rather than by a jury. Since the parties did not request a jury trial, the trial judge had to determine the credibility of the parties. Jalbert v. State,95 So.2d 589 (Fla.1957). Due to the nature of this case, the credibility of the parties was crucial and therefore we cannot hold the error was harmless. Had the trial judge stated that he based his findings only upon certain evidence and that he disregarded the challenged evidence, the error, if any, in the admission of such evidence could have been determined harmless. Capitoli v. State,175 So.2d 210 (Fla. 2d DCA 1965).
Where the proof of guilt is so convincing that a person would clearly have been found guilty even without collateral evidence introduced in violation of the evidence code, the violation of the code may be considered harmless. In the case sub judice, however, because of the importance of the credibility of the witnesses under the particular facts of this case, we cannot say the evidence in favor of the appellee was so clear and convincing that introduction of the challenged evidence was harmless. A trial judge is presumed to rest his judgment cm admissible evidence and to disregard inadmissible evidence, United States v. Masri,547 F.2d 932 (5th Cir.1977), but in view of the specific findings of admissibility in this case, we cannot hold the trial court disregarded inadmissible evidence.
Parks,
It is logical and practical that the presumption must be overcome where a trial court judge admits evidence over objection, because the judge would understandably believe that the evidence is properly before the court for consideration. For instance, in Liebeman v. Department of Professional Regulation,
[Wjhile ultimately the hearing officer indicated she would not rely on the polygraph testimony, she first invited its introduction and then refused to strike it. These mixed signals on a cold record before us, together with what we perceive to be an innate inability of the human mind to obliterate what it has heard and the fact that the findings against the doctor were totally dependent upon the hearing officer’s assessment of the witnesses’ credibility, require us to conclude that the error was not harmless.
Id. at 352. A trial court judge certainly possesses innately human characteristics, similar to any juror, which may include the inability to “obliterate what it has heard.” Id. Moreover, if a trial court judge expressly admits evidence over objection, it is reasonable to assume that the judge considers this evidence admissible and available for consideration. Accordingly, we must quash the decision below and remand for reconsideration under the correct standard of review, as articulated in this decision and as applied in Parks.
Following Arroyo, the Third District decided the conflict case J.D., which declined to adopt the presumption and did not refer to Arroyo. Petion asserts that J.D. implicitly overruled Arroyo and the other prior decisions of the Third District on this issue. However, in Daniels v. State,
The rule, as reiterated in State v. Arroyo,422 So.2d 50 , 51 (Fla. 3d DCA 1982),- is that where a trial judge sitting as a fact finder “erroneously admits evidence, he is presumed to have disregarded the [improperly admitted] evidence, and the error of its admission is deemed harmless.” This presumption is overcome only if the record discloses that the trial judge relied upon the erroneous evidence. Id.
In the instant case, the trial judge explained to the defendants that evidence of two of the four robberies referred to during opening statements was inadmissible under Williams v. State,68 So.2d 583 (Fla.195[3]), and then she gave the defendants the option of moving for mistrial and having the case heard by a jury or proceeding with her sitting as the trier of fact. The defendants chose to rely on the judge’s ability to disregard the inadmissible evidence. Moreover, because the trial judge expressly stated that she was excluding evidence of the non-charged crimes and that the evidence of guilt in the charged crimes was overwhelming without the excluded evidence, the defendants have failed to overcome the presumption that the court’s verdict was based solely upon*737 admissible evidence. See Arroyo,422 So.2d at 51 .
Id. at 190-91 (emphasis supplied); see also King v. State,
Accordingly, we must also disapprove the decision in J.D. to the extent it declined to apply the presumption on the basis that it would be “nothing more than one which requires this court’s subjective interpretation of what the trial judge did or did not consider, inasmuch as the record presented for review is silent on this point.” J.D.,
CONCLUSION
When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper. In addition, the appellate court still must
Accordingly, we quash the decision below and remand for reconsideration in light of the standard of review articulated in this opinion and as applied in Parks. We disapprove the decisions discussed in this opinion to the extent that they hold a presumption of disregard applies when a trial court, during a bench trial, admits evidence over objection and does not expressly state on the record that this evidence did not contribute to the final judgment or determination. Lastly, we disapprove J.D. to the extent it holds that there is no presumption of disregard for a trial court’s exposure to inadmissible or improper evidence during a bench trial.
It is so ordered.
Notes
. Although unrelated to the conflict issue presented, Petion also asserted that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he possessed the marijuana found inside the jointly occupied vehicle. The Fourth District reversed the conviction and sentence for possession of cannabis with in
. Miranda v. Arizona,
. Petion was released from incarceration on March 4, 2010. Notwithstanding Petion’s release, we exercise our discretion to retain jurisdiction in this case to address the conflict and resolve the uncertainty with regard to the presumption applied to bench trials. See State v. Matthews,
Concurrence Opinion
concurring in result.
I would reject the broadly framed presumption that a trial court does not consider inadmissible evidence because it is a presumption fraught with the potential to mislead. In Petion v. State,
To presume that a trial judge disregards evidence which that judge has ruled to be admissible is to presume that the trial judge acts in a way that is inconsistent with her own understanding of the law. The legal ruling of admissibility constitutes a determination that the evidence should be considered by the trier of fact. A judge as trier of fact should be presumed to act in accord with the legal rulings made by the judge.
To determine whether a judge as trier of fact has considered evidence, the first question to ask is thus whether the judge ruled the evidence to be admissible or inadmissible. Our own decision in Groover v. State,
Based on the sensible general presumption that a judge as trier of fact acts in
I agree with Justice Pariente that the decision of the Third District Court of Appeal in J.D. v. State,
In summary, I would quash the decision on review, reject the broadly framed presumption which has led to the Fourth District’s error in this case, and instead recognize the rebuttable presumption that a judge as trier of fact acts in accord with the legal rulings made by the judge.
Concurrence Opinion
concurring in result.
I agree with the result reached by the majority. I do not, however, fully concur because the presumption that a trial judge will disregard inadmissible evidence was never intended to apply in non-jury cases where the evidence is actually admitted and the judge either overrules an objection or makes an express finding of admissibility. Where improper evidence is admitted at a non-jury trial, there is no basis for applying a presumption — even a rebuttable one — that the judge would have disregarded that evidence as improper. In such circumstances, I would not apply any presumption at all. Rather, if the record affirmatively shows that the trial judge did not rely on the inadmissible evidence, that fact would be directly relevant to whether or not reversible error occurred.
The presumption is logical, however, when the trial judge, sitting as both the trier of fact and the arbiter of law, is required to consider the evidence in order to rule on its admissibility (e.g., a suppression hearing, a motion in limine, or a proffer). See
I also would not disapprove the Third District’s decision in J.D., where the Third District did not apply the presumption to inadmissible evidence that the trial judge allowed into evidence. However, I agree that we should quash the Fourth District’s decision in Petion because it erroneously relied on a presumption that the trial judge disregarded evidence that the trial judge expressly held was admissible. I further agree that on remand, the Fourth District should perform a harmless error analysis.
QUINCE, J., concurs.