Clausell v. State

548 So. 2d 889, 14 Fla. L. Weekly 2190, 1989 Fla. App. LEXIS 5127, 1989 WL 106774
District Court of Appeal of Florida·Decided September 19, 1989·No. No. 87-2471·Published·Cited by 3 cases

Opinion

SCHWARTZ, Chief Judge.

Clausell appeals from his convictions after a jury trial of various crimes involved in the armed robbery of a jewelry salesman, Guillermo Gutierrez, which occurred at his apartment in Miami on January 30, 1987. For the most part we affirm, but we remand for a hearing on the limited issue of an alleged improper contact between the jury and the bailiff.

I

Of the substantive contentions raised by Clausell, we find that none have merit and only one — which claims that a yellow jacket worn by the defendant’s accomplice was the subject of an improper search and seizure from Clausell’s apartment and therefore was wrongly admitted into evidence— justifies discussion. The question arose in the following manner: The victim Gutierrez sold merchandise consigned to him by an establishment known as Mr. Money. Within a month prior to the offense, he had met and spoken to Clausell, who worked as a security guard at the store. At the time of the incident, Gutierrez answered a knock on his apartment door when he was met by two men. He unequivocally identified Clausell as one of them both shortly thereafter from a photo lineup and later at the trial. He also recalled that the other man, whom he did not know, was wearing a yellow jacket or windbreaker during the crime. According to the victim, Clausell demanded his jewelry case; the robbers took it and left the premises after gagging Gutierrez and tying his hands behind his back. About a week later on February 7, 1987, Clausell was arrested by Detective Alvarez of the Miami Police Department. Before taking the defendant to the station that same day, and with Clausell’s written consent — conditioned only by the requirement that he be present during the search — Alvarez and Clausell went to his apartment, which he shared with another individual, and searched his room. A yellow windbreaker was hanging in the closet. Alvarez, who was not the primary investigator on the case, looked carefully at the [890] jacket, searched its pockets, and then simply left it on Clausell’s bed.

After a few days, on Friday, February 11,1987, while discussing the case with the lead detective who had returned from vacation, Alvarez first realized that the jacket was of some evidentiary significance. Without a warrant, he went back to the apartment to secure it. He was met by a person identified only as “an old man” who said he had been permitted to use the apartment by Clausell’s roommate and who let Alvarez into the apartment and the defendant’s personal room. The jacket was still just where he had left it on the bed four days before. Alvarez took it with him. After a motion to suppress was denied, Gutierrez positively identified it at the trial as the one worn by the accomplice. Clausell now complains of the rulings denying suppression and admitting the jacket into evidence.

Without the necessity of directly so holding, we may assume, on the grounds that (a) Clausell’s specific consent to the initial entry did not extend to the second one made in violation of the condition of his presence, see Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); Leonard v. State, 481 So.2d 614 (Fla. 4th DCA 1983), and (b) the “old man” had no authority to consent to the search of Clausell’s room, see Riley v. Gray, 674 F.2d 522 (6th Cir.1982), cert. denied, 459 U.S. 948, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982); 3 W. LaFave § 8.5(e) (2d Ed. 1987), that the February 11 entry and seizure were constitutionally impermissible. Nevertheless, we affirm. We do so upon the holding that the refusal to suppress the jacket was — as is required to sustain such a conclusion when constitutional error is allegedly involved — harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We reach this conclusion, which necessarily reflects the determination that there is no reasonable possibility that the assumedly erroneous admission of this evidence affected the jury verdict, DiGuilio, 491 So.2d at 1139, upon two grounds.

(a) In the first place, the quantity and quality of the evidence against Clausell— primarily including his positive identification by a victim who had become acquainted with him in a situation in which the defendant obviously gained the information necessary to commit the crime— was no less than overwhelming. See Jones v. State, 332 So.2d 615, 619 (Fla.1976); Pericola v. State, 499 So.2d 864 (Fla. 1st DCA 1986), review denied, 509 So.2d 1118 (Fla.1987); Whitfield v. State, 479 So.2d 208 (Fla. 4th DCA 1985); Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984). On the other hand, Clausell’s sole defense was an alibi which, while elaborately constructed, was clearly revealed at the trial to be entirely spurious.1 In these circumstances, it is impossible to believe that even the outright exclusion of all evidence concerning the jacket — which we hold infra was not appropriate — would, could, or might have yielded a different verdict. Domberg v. State, 518 So.2d 1360, 1362 (Fla. 1st DCA 1988), review denied, 529 So.2d 693 (Fla.1988); Pericola v. State, 499 So.2d at 868; DiGuilio, 491 So.2d at 1129; Whitfield v. State, 479 So.2d at 218; see Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, — U.S. —, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). Hence, no reversible harm came to the defendant as a result of the trial court’s ruling on this issue.

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Clausell v. State, 548 So. 2d 889, 14 Fla. L. Weekly 2190, 1989 Fla. App. LEXIS 5127, 1989 WL 106774 (Fla. Ct. App. 1989).

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