text:
    James Alex SPEIGNER v. STATE.
    4 Div. 577.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      G. M. Harrison, Jr., Dothan, Maury D. Smith, Charles S. Coody, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

The appellant was indicted for rape by the grand jury of Houston County. On arraignment, with his counsel present, he entered a plea of not guilty and not guilty by reason of insanity. The plea of not guilty by reason of insanity was subsequently withdrawn and no evidence on the appellant’s sanity was presented to the jury.

Following a jury trial, Speigner was found guilty and sentenced to life imprisonment.

A full recitation of the facts will not be necessary in this appeal since the issue of sufficiency of the evidence was not preserved for review.

Briefly, the facts are as follows:

The prosecutrix testified that on November 12, 1976 she went to bed around 10:45 or 11:00 P.M. She stated that the light in the aquarium in her bedroom was on and this light illuminated the bed.

She testified that around midnight she was awakened by the feeling of a sharp object in the middle of her back and noticed a man standing near the bed. The prosecu-trix recalled that when she realized someone was there, she “shot across the bed” toward the window. She said her assailant then pulled her by the feet to the bottom of the bed and turned her over. During the scuffle, according to the prosecutrix, the man hit her in the head and told her that he had a knife and would kill her if she did not cooperate.

The prosecutrix said the man took her clothes off, that he performed cunnilingus upon her, and then had sexual intercourse with her against her will. She stated that she was able to look at the man’s face approximately fourteen times during the fifteen minutes that he was there.

During the trial the prosecutrix made a positive in-court identification of the appellant as her assailant.

I

The appellant maintained that the trial court abused its discretion when it failed to grant his motion for a change of venue. He argues that the pre-trial publicity attending his case was exceptional, beginning on the day he was arrested, and continuing to the date of his trial on June 20, 1977. Further counsel claims that; “The guilt of James Speigner was established in the press and not in the court of law,” and that, “the actual trial occurred in newsstands and on television sets throughout Houston County.”

On June 16,1977, the trial court conducted a hearing on five defense motions, the first being the motion for a change of venue and continuance. Briefly, that testimony was as follows:

Jerry Yann, the news director at WTVY television in Dothan, Alabama, was called to testify and played a «video tape of the first news report he had concerning this case. Vann said the tape had been shown as the lead story on the 6:00 P.M. news on the day of the appellant’s arrest, and again as the fifth story on the night news at 10:00 o’clock. Vann explained that the tape was of a news conference held by the chief of police.

This video tape was played for the court and the taped interview with the chief of police is outlined in pertinent part as follows:

“We of the police department are pleased to announce that an arrest has been made in the series of assaults upon females occurring in the western section of the city for the past eight months. At 2:10 P.M. this afternoon, James Alex Speig-ner, a white male who gave his address as 904 West Newton Street, was charged with two counts of rape and one count of first degree burglary. The first degree burglary and one of the rapes occurred on November the 13th, 1976, in the two-hundred block of East Woodland Street and the other rape occurred on July the 7th, 1976, in the fifteen-hundred block of West Burdesaw Street. Our investigation is continuing at this time. Speigner has been booked and is being held on State warrants in the city jail without bond on orders of Judge White.”

In response to a question asked by the TV interviewer, the chief of police answered:

“Yes, sir, we are of the — convinced at this time that the subject is responsible for the series [of rapes] that have been occurring since July of 1976. . . . ”

Vann testified that on April 28th, six days later, the TV station ran a lead story concerning appellant’s bond being set at $300,000, and it was run on the 10:00 o’clock news that night. He stated that on May 6th, two other stories were run at 6:00 P.M., and the second at 10:00 P.M., concerning appellant’s being held without bond on two counts of rape and one count of burglary. Vann státed this was the last TV report concerning the appellant.

Vann also gave testimony concerning the number of households the TV station reached at different times, and the number and age of people that the TV broadcast had reached.

On cross-examination, Vann testified that he considered the coverage given to appellant to be fair and objective. Also, he did not believe that the coverage would in any way prevent the defendant from having a fair trial in Houston County.

John Givens, news director of station WDHN TV in Dothan, testified that his station had run two news spots concerning the appellant, one on May 6th and one on May the 18th. These spots related to the denial of bail for appellant.

During cross-examination, he said that these two news spots were not lead stories but were run as the ninth and thirteenth news items on the programs. Givens said he did not know how many households his station reached, but that it served the tristate area.

Vic Bubbit, city editor of the Dothan Eagle, testified that approximately twelve stories were run concerning appellant preceding his trial. Bubbit also identified several of the newspaper articles.

One of these articles, appearing on April 24, 1977, reported:

“Police Thursday night picked up Speig-ner for questioning but released him. Officers said that he agreed to come to the police headquarters voluntarily Friday for the lie detector tests. Officers said he failed one test and that his attorney, Clarence Slaughter, stopped the second test. . . .”

Further down in the same article, the police chief, Cater Williams, was quoted as saying:

“He is convinced that Speigner is the person responsible for the series of assaults on the young women.”

During cross-examination, Bubbit said these stories were routine reporting and he felt that the Dothan Eagle had reported the activities in the case on a fair and accurate basis. Further, he said he believed the appellant could get a fair trial in Houston County. One reason for so much publicity, according to Bubbit, was the fact that numerous motions for hearing were held pertaining to the ease.

Dennis Latham testified concerning the news coverage from WOOF AM-FM Radio pertaining to this case. He stated that numerous broadcasts were made concerning the case and acknowledged that approximately fourteen broadcasts were run in all. Latham said there had been a live broadcast from the city hall the day appellant was arrested and stated that the audio portion of the broadcast that he used was the same as that used on the video tape shown by WTVY television station. [Tape quoted above].

Latham testified that, according to surveys, WOOF reached approximately 63,150 people in a thirteen-county area for five minutes each week.

During cross-examination, Latham stated that he believed “WOOF” recorded these events fairly and accurately.

Leonard Gifford was the manager of a warehouse on Speigner Street in Dothan. He stated he had read most of the articles in the “Dothan Eagle” and felt that appellant could not get a fair trial. Further, that he had discussed the case with his “co-workers and compatriots” and; “the case seemed cut and dried to them — that he [appellant] did it.”

On cross-examination, Gifford admitted that appellant’s father was his landlord and that appellant’s father had asked Gifford to appear at the hearing.

Clarence W. Slaughter, a practicing attorney in Dothan, Alabama, testified that he was employed by Alex Speigner to represent his son (the appellant, James Speig-ner) in the case at bar. Slaughter testified that his representation of the appellant was reported in the Sunday paper and stated that he had received numerous telephone calls, concerning the case. Slaughter said that, during the two-day period, he had received approximately eighteen telephone calls from unidentified people, as well as people, he had known over a period of years. He stated that the essence of the calls was that; “I used to think that you were a guy of integrity, but I no longer do that because you are representing that rapist.” He said the parties went on to explain that it was in the newspaper and they had read it and that “stuff wouldn’t be in the paper unless it were true. And stuff in that general nature.”

Slaughter recalled that during the week he had many encounters with people in all walks of life, from “low to high,” and “it was the same situation, ‘you are representing that rapist, that person.’ ”

Slaughter acknowledged that it was his impression, from talking with these people, that they had concluded Mr. Speigner was guilty.

A motion for change of venue is within the sound discretion of the trial court, and absent a showing of abuse of that discretion, its ruling will not be disturbed. Johnson v. State, Ala.Cr.App., 335 So.2d 663; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79; Hurst v. State, 54 Ala. App. 254, 307 So.2d 62. Publicity alone, even if inordinate, is not sufficient to warrant a change of venue. Peoples v. State, Ala.Cr.App. 338 So.2d 515. The effect of that publicity on the venire must be established, and it is the burden of the appellant to show, to the reasonable satisfaction of the trial court, that an impartial trial and an unbiased verdict cannot be had in that county. Peoples, supra; Johnson, supra; Yoemans, supra; Rickett v. State, Ala.Cr. App., 337 So.2d 77.

In determining whether the defendant received a trial before a fair and impartial jury, the fundamental consideration is not the amount of publicity in a specific case but whether the defendant in that case received a fair and impartial trial. People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208.

In Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 8 L.Ed.2d 98 [change of venue denied on ground of prejudicial publicity], the Supreme Court observed:

“Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by impartial jury.”

The Supreme Court of the United States recognized in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589, that juror exposure to news accounts of the crime with which a defendant is charged does not alone, presumptively, deprive that defendant of due process. The court went on to say:

“To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.”

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, the Supreme Court laid down the following standards to be used in determining whether a defendant received a trial before a fair and impartial jury:

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
“This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

However, these standards were qualified by the Supreme Court in Murphy v. Florida, supra, when the Supreme Court held:

“[Jjuror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ”

Applying these standards, we now focus our inquiry on the basic question of whether the jurors, at the defendant’s trial, demonstrated that they were able to lay aside any impression or opinion that they might have had as a result of the publicity and render a verdict based on the evidence offered in court.

We have examined the voir dire examination of the prospective jurors conducted during the qualification procedures, and found the following:

“THE COURT: All right. Let me ask you now, are there any questions for the State of Alabama in this case Mr. Sorrells?
“MR. SORRELLS: No questions, Your Honor.
“THE COURT: All right. Any questions for the Defendant, Mr. Harrison?
“MR. HARRISON: Yes, sir, Your Honor, I have a few. Has any Juror within the past five years been the victim of an assault or other crime?
“JURORS: No response.
“MR. HARRISON: Has any member of your immediate family or close friends been a victim of a crime as far as you know or an assault in any manner?
“JURORS: No response.
“MR. HARRISON: Have any of you Jurors read any newspaper articles or heard any radio broadcast or television broadcast of the events in this case?
“JURORS: (Several Jurors raised their hands.)
“MR. HARRISON: If you will, let’s start on this end. If any of you Jurors respond to the affirmative — have you read or heard anything in the newspapers other than— what is your name?
“JURORS: Ballatine. Amberson. Baxley. Mrs. Brown. Byoer. Carpenter.
“MRS. CLARK: I have read the newspapers.
“MRS. DAVIS: Newspaper.
“WILBUR FLOYD: Newspaper.
“MRS. HARGROVE: I read the newspaper. “MR. HARRISON: And you?
“A JUROR: No.
“MR. HARRISON: And you?
“MR. HALL: Yes, sir. I have read the newspaper.
“MR. HARRISON: How about you, Mr. Johnston? Do you know anything about the facts in this case?
“MR. JOHNSTON: I have read the newspaper.
“MR. HARRISON: Any of you Jurors that responded to the affirmative that you read the newspaper article or TV or radio broadcast, do any of you Jurors feel that your awareness as to publicity by the News Media had influenced you or prejudiced your mind in any way, one way or the other about this case?
“THE COURT: If anybody feels it would please raise your hand.
“THE JURORS: No response.
“MR. HARRISON: Do you Jurors feel you could judge this case completely from the evidence from the witnesses and be uninfluenced by anything you have previously heard or read?
“JURORS: No response.
“MR. HARRISON: Thank you.
“THE COURT: Okay. Now if there are no further questions gentlemen, I hereby declare these Jurors qualified and you Ladies and Gentlemen may take seats back out in the Courtroom.
“(Thereupon, the above group of Jurors returned to their seats in the Courtroom and a new group was called up before the Bench and questioned by the Court as to their qualifications. At the end of the following proceedings were had, to-wit:)
“THE COURT: All right. Mr. Sorrells, any questions for the State?
“MR. SORRELLS: No questions, Your Honor.
“THE COURT: Any questions for the Defendant, Mr. Harrison?
“MR. HARRISON: Yes, sir, Your Honor. If it please the Court, has any member of this section of the Venire been a victim of a criminal assault within the last five years?
“JURORS: No response
“MR. HARRISON: Any members of your
immediate family or close friends?
“A JUROR: Yes. Mella Jo Parrish.
“MR. HARRISON: Any other Jurors? “JURORS: No response.
“MR. HARRISON: You Jurors heard the other questions relative to the knowledge of the facts in this case and have you through the newspaper, television or radio broadcasts that you have heard about any of it? If any of you have any knowledge would you please say so? I will read the numbers. No. 1. Lewis.
“MRS. LEWIS: Newspaper.
“MR. HARRISON: No. 2, McCord?
“MRS. McCORD: The newspaper.
“MR. HARRISON: No. 3?
“A JUROR: Newspaper.
“MR. HARRISON: No. 4?
“A JUROR: Newspaper.
“MR. HARRISON: No. 5, Mrs. Peterson? “MRS. PETERSON: Radio.
“MR. HARRISON: Mr. Smith?
“MR. SMITH: Newspaper.
“MR. HARRISON: Mr. Standifer?
“MR. STANDIFER: The newspaper.
“MR. HARRISON: Mr. Roy M. Ware? “MR. WARE: No.
“MR. HARRISON: Frank West?
“MR. WEST: Newspaper.
“MR. HARRISON: Mr. Jackson Ware? “MR. WARE: Newspaper.
“MR. HARRISON: Mr. Crowder?
“MR. CROWDER: Newspaper.
“MR. HARRISON: Mr. Kirkland?
“MR. KIRKLAND: Newspaper.
“MR. HARRISON: And you?
“A JUROR: Newspaper.
“MR. HARRISON: Mrs. Parrish?
“MRS. PARRISH: Newspaper.
“MR. HARRISON: Mr. McCall?
“MR. McCALL: Newspaper.
“MR. HARRISON: And you?
“MR. LEWIS: Newspaper.
“MR. HARRISON: And you?
“A JUROR: Newspaper.
“MR. HARRISON: And you, Mrs. Lewis? “MRS. LEWIS: No.
“MR. HARRISON: And you?
“MRS. KING: I work with the Dothan Eagle and saw the headlines.
“MR. HARRISON: Mr. Martin?
“MR. MARTIN: No.
“MR. HARRISON: Melba Addison?
“MRS. ADDISON: Newspaper.
“MR. HARRISON: And you?
“A JUROR: Newspaper.
“MR. HARRISON: Mr. Sawyer?
“MR. SAWYER: Newspaper.
“MR. HARRISON: Mrs. Lawson?
“MRS. LAWSON: Newspaper.
“MR. HARRISON: And you?
“MR. RESPRESS: Newspaper.
“MR. HARRISON: Do any of you Jurors feel any fact you might have gained out of advanced publicity through newspaper, television or radio about the facts of this case in any manner has influenced your mind in the event you are selected as a Juror in one way or the other?
“THE JURORS: (All Jurors shake their heads to the negative.)
“MR. HARRISON: Does any Juror feel that you will have any trouble at all through the advanced publicity, in judging this case solely from the evidence that comes from the Witness Stand?
“THE JURORS: No response.
“MR. HARRISON: That is all.
“THE COURT: If there are no further questions, I hereby declare all of you qualified and you may take seats out in the Courtroom.
“(Thereupon, the remainder of the Jury Venire returned to their seats in the Courtroom and the following proceedings were had, to-wit:)
“THE COURT: All right. Now Gentlemen, I am going to ask the Attorney for the State and Mr. Harrison both of you and the Defendant, to go with Mrs. Trant into the room right here at the end of the hall and strike your Jury.
“(Thereupon, the above named parties left the presence and hearing of the Courtroom in order to strike their Jury. Upon returning to the presence and hearing of the Courtroom, the Jury was struck, sworn by the Clerk and placed in the Witness Box

As can be seen from the voir dire of the prospective jurors in this case, the jurors acknowledged that the publicity by the “media” would not influence or prejudice them in any way. No hostility toward the appellant by the jurors who served in his trial was exhibited which might suggest “a partiality that could not be laid aside.” Murphy v. Florida, supra. There is no evidence in the entire record upon which the appellant can base a claim of juror partiality. Nowhere in the record does it show that any venireman was excused because he had formed an opinion as to the appellant’s guilt. On the contrary, the record seems to indicate that the defendant accepted all jurors and did not challenge any of them for cause.

“The indicia of impartiality” cannot be disregarded in this case. Murphy v. Florida, supra. The general atmosphere in the community and in the courtroom was not of the inflammatory nature requiring the setting aside of the juror’s assurances. See Redow v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.

Most of the alleged prejudicial publicity occurred at the time of appellant’s arrest on April 24, 1977, some two months before his trial. The alleged prejudicial effect of media coverage was diminished by the passage of time. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755.

As the date of trial approached, there were further news articles that, on the basis of the testimony given during the hearing on the motion for a change of venue, were merely factual accounts.

The crime here was somewhat of a sensational nature and it would follow that some of the publicity would be of the same character. We are satisfied, however, from a review of the exhibits, the video tape, and the voir dire examination of the prospective jurors, that the defendant received a trial at the hands of a fair and impartial jury in Houston County under the rules established in Irvin v. Dowd, supra. Further, it is our judgment that the circuit court did not err in denying the motion for a change of venue.

We have examined not only the questions raised in brief by the appellant, but also the entire record, to determine whether prej'u-dicial error occurred. We have found none, and it is our opinion that the judgment of conviction by the Houston Circuit Court must be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte James Alex SPEIGNER.
    78-246.
    Supreme Court of Alabama.
    March 2, 1979.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Harvey Eugene GILLEY v. STATE.
    4 Div. 654.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Cada M. Carter of Byrd, Carter & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twelve years imprisonment.

On the night of August 13, 1977, Deputy Sheriff James Hatcher of the Henry County Sheriff’s Department responded to a call to go to the cabin of the appellant’s former father-in-law, Joe Gissendanner, located in Henry County, Alabama. There he found bullet holes in the cabin made by a shotgun. As Hatcher stood in the road looking for spent shells, a red-maroon colored truck fitting Gissendanner’s description of the assailant’s vehicle drove by the cabin. Hatch-er shined a flashlight into the truck cab and observed appellant driving the vehicle. Mr. Gissendanner exclaimed that appellant was the assailant, and Hatcher and another officer, Deputy Smith, gave chase in their vehicle. A second sheriff’s car followed them as well. They rounded a curve and followed appellant into a peanut field. Hatcher stated he was in uniform and had the blue light flashing on the dashboard of his unmarked car. His headlights were shining directly on the appellant who was some seventy-five to ninety-five yards away. Hatcher stepped out of his vehicle and shouted for appellant to come out with his hands in the light where they could see them. Appellant replied, “come and get me, you son-of-a-bitch,” and opened fire with a shotgun on the officers. Officer Hatcher and other officers present at the scene returned the fire. Appellant then backed out of the field and escaped down a side road. He was later apprehended by State Troopers who stopped his truck and placed him under arrest.

Officer Smith, who rode with Hatcher, and Deputy Hancock, who was on the scene in another vehicle, corroborated Deputy Hatcher’s story.

Appellant testified that he could not see that Hatcher was a law enforcement officer when he passed him in the road because of a flashlight shining in his eyes. He alleged that Mr. Gissendanner screamed, “we got you now . . . you’re in a dead-end street and you have got to come back by us and we are going to kill you,” causing him to flee in fear of his life. He stated that unidentified cars followed him into the field, shining their lights directly into his eyes. He said he saw no blue light flashing and that nothing was said to him before they opened fire. He testified that he was fired upon twice and only then did he fire, aiming over the two vehicles. He said that at no time did he know they were law enforcement officers, but thought instead that they were just four men trying to kill him.

I

Appellant argues that the trial judge erred in denying his motion for new trial based upon newly discovered evidence. That evidence consisted of the testimony of an auxiliary law enforcement officer, Joel McFearson, who was present at the scene of the assault, but did not testify at trial.

On the first day of trial, counsel for appellant asked witness Hatcher if there was an auxiliary deputy present, and Hatcher answered that there was. On the second day of trial, Officer Horace Hancock testified in answer to a question as to what officers were present, “Deputy Hatcher, Deputy Smith, and myself and auxiliary Deputy McFearsoii, I believe is his name.” In addition, appellant himself testified that there were four men in the field.

Appellant argued that the presence and name of the fourth officer was newly discovered evidence requiring a new trial. As this court pointed out in Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975), newly discovered evidence requiring a new trial must be such that it could not have been discovered before trial with the exercise of due diligence. Clearly, such was not the case here. Appellant, himself, knew that there were four officers present. As well, Officer Hancock testified at trial that the auxiliary deputy had been present and even stated his name. An instanter subpoena could have been obtained for that witness at that time. We do not believe the fact of the officer’s presence at the scene, and hence the possible value of his testimony, was not discoverable prior to trial by appellant by an exercise of due diligence.

Further, for new evidence to mandate reversal, it must be such as will probably change the result if a new trial is granted. It must not be merely cumulative of previous testimony. Lewis v. State, Ala.Cr. App., 367 So.2d 542 (1978); Zuck, supra. A careful reading of Officer McFearson’s testimony at the hearing on the motion for new trial reveals it does nothing more in material substance than to corroborate the earlier testimony of the other officers. The motion was correctly denied.

II

Appellant’s other assignments of error are based on the contention that expert testimony by a defense witness was erroneously restricted by the trial judge. Clarence W. Slaughter, presented as a firearms expert by appellant, was not allowed to testify as to the results of certain tests he performed. The tests were conducted at a distance of fifty yards from a target with 00 buckshot with a 12 gauge Remington 1100 automatic shotgun of unknown barrel length. The evidence indicated the assault took place at a distance of seventy-five to ninety-five yards with a shotgun firing magnum buckshot. The test gun used was not shown to be the assault weapon. Mr. Slaughter was later allowed to testify, however, to the effective ranges of a 12 gauge Remington 1100 automatic shotgun shooting both an average load and a magnum load. He said the effective range would be forty to forty-five yards respectively.

There must be a similarity of condition to give an experiment probative value sufficient to warrant its admission at trial. Dissimilarity of essential particulars between the test and actual conditions require that such evidence be rejected. The decision as to the sufficiency or dissimilarity of particulars of such tests is vested in the sound discretion of the trial judge. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958). We cannot say the court erred in the exercise of its discretion in the immediate case. Moreover, the appellant was allowed to introduce the primary opinion for which the expert was called, i. e., the maximum effective range of such a shotgun. We find no error in the lower court’s rulings.

The evidence was in conflict which presented a jury question and which the jury resolved in favor of the State’s witnesses and against the testimony of the appellant. We have reviewed the grounds for reversal relied upon by appellant in light of the record and the briefs and find no prejudicial error to the substantial rights of appellant which would mandate a retrial of this cause.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Harvey Eugene GILLEY.
    78-251.
    Supreme Court of Alabama.
    March 2, 1979.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: ENGLAND, Chief Justice. HATCHETT, Justice,

text:
    Louis ZUPPARDI, Angelo Castello and Guy Zona, Appellants, v. STATE of Florida, Appellee.
    No. 51248.
    Supreme Court of Florida.
    Oct. 26, 1978.
    Rehearing Denied March 7, 1979.

      Loyd C. Mosley, Clearwater, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   ENGLAND, Chief Justice.

Appellants in this proceeding challenge the constitutionality of Florida’s “bookmaking” statute, Section 849.25(1), Florida Statutes (1975), on the ground that it violates due process because of vagueness and over-breadth.

The facts are not in controversy. While on assignment to uncover illicit gambling operations, three special investigators learned from confidential informants that appellant Zona was taking bets on football games from members of a country club in Pinellas County and was receiving “point spread” information over a pay telephone at the club. Another informant related that Zona gave club members his unlisted telephone number and the number of appellant Zuppardi for the purpose of placing bets in his absence. Callers to these numbers were instructed to ask for a “writer” identified only as “Tony.” One undercover agent personally monitored a call made by an informant during which the informant gave a code and in response heard a male voice identify himself as “Tony,” furnish the requested point spread information, and advise the informant that Zona was accepting bets at the club.

The undercover officers were unable to contact Zona directly at the club because only members were admitted and the informants refused to introduce them into the club for fear of reprisals if they were identified. To overcome this problem, the officers applied for and received orders authorizing a wiretap of Zuppardi’s and Zona’s telephones. When they later learned that Zona sought approval from appellant Cas-tello before accepting large wagers and that both Zona and Zuppardi reported each day’s betting transactions to Castello, another wiretap permit was acquired for Cas-tello’s telephone. Based on the totality of information obtained during the investigation, search warrants for the three resi-deuces were duly obtained and various gambling paraphernalia was seized. Infor-mations were subsequently filed, charging the appellants with bookmaking.

Appellants moved to dismiss the charges against them, alleging that the “bookmaking” statute is unconstitutionally vague and overbroad. They also moved to suppress the intercepted communications, on grounds of non-compliance with Section 934.09(l)(c), Florida Statutes (1975), and to compel disclosure of one confidential informant’s identity in order to establish whether the state had obtained consent to the first intercepted communication as required by Section 934.03(2)(c), Florida Statutes (1975). All motions were denied by the trial court, and after appellants changed their original not guilty pleas to no contest pleas, the trial court adjudged them guilty and imposed sentences.

1. The trial judge properly held that the bookmaking statute is neither vague nor overbroad. Section 849.25(1) provides:

As used in this section, the term “bookmaking” shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man, beast, fowl or motor vehicle.

Relying entirely on cases from other jurisdictions, appellants argue as to vagueness that the common and ordinary meaning of “bookmaking” connotes some writing or recording of bets in a book, so that the statute fails to give fair notice that criminal penalties may be imposed for “oral” as well as recorded bet-taking. Based on the same connotation of “recorded” bookmaking, they argue as to overbreadth that the statute outlaws conduct which is otherwise lawful, namely oral bet-taking.

We reject appellants’ view of Section 849.25(1). The statute is sufficiently clear in its terms, and adequately confined in its reach, to withstand due process scrutiny. The statute meets the controlling standards for overcoming vagueness which are set out in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), in that persons of ordinary intelligence in contemporary Florida could not reasonably conclude that unwritten bet-taking does not violate a law which prohibits “book”-making. Appellants’ overbreadth challenge, which rests on the premise that a writing or recording of wagers is indispensible, necessarily fails as well.

2. Appellants argue that the wiretap affidavit furnished by undercover officials did not include a “full and complete statement” that other investigative procedures had been tried or appeared unlikely to succeed, as required by Section 934.09(l)(c), Florida Statutes (1975). This challenge is focused on paragraph 7 of each affidavit, which states:

The normal investigation procedures have been tried by your Above named Affiants in that information has been gained from reliable and trustworthy Confidential Informants and other law enforcement agencies; surveillances have been repeadly [sic] attempted on the aforesaid participants without success because of their guile, organized manner of operation, fear of apprehension from illegal gambling and bookmaking activities, and the fact that the aforesaid GUY A. ZONA is known by your affiants to only conduct illegal gambling and bookmaking with club members of the Countryside Country Club and with no other person who your Affiants have been able to identify and interview. All of the listed confidential Informants have stated that they are unable to introduce a law enforcement officer into the operation of GUY A. ZONA because of ZONA’S method of dealing with only club members from the Countryside Country Club and the established use of codes when conducting gambling and bookmaking activity over the telephone. Further, contact with the above Confidential Informants indicate [sic] that use of law enforcement officers or other Confidential Informants might cause physical danger to the persons involved as well as prematurely disclosing the instant investigation so as to enable GUY A. ZONA, TONY LAST NAME UNKNOWN, and their confederates to elude apprehension and arrest for their illegal activities in violation of the laws of the state of Florida.

Appellants complain that this recitation sets out no factual predicate which would enable a court to determine why normal investigative procedures would be unsuccessful, except for general statements which characteristically apply in every bookmaking case. They also claim that the affidavit itself recognized an alternative investigative method which the state should have been required to pursue before it obtained a wiretap authorization — that is, acquisition of a club membership in order to deal directly with the suspected bookmakers.

As to the factual predicate for the affidavit, we agree with appellants that a statement of the underlying circumstances is essential and that a mere “boilerplate recitation of the difficulties of gathering usable evidence in bookmaking prosecutions is not a sufficient basis for granting a wiretap order.” The sufficiency of an affidavit must be tested by reference to the affidavit as a whole, however, and not merely “bits and pieces read in isolation.”

These affidavits go beyond a mere boilerplate recitation of investigatory difficulties; they explain that the suspects were known to deal exclusively with club members, that they communicated only through codes, and that all available informants were unable or unwilling to assist law enforcement personnel in establishing direct contact with the suspects due to fear of physical danger. These recitations constitute a sufficient factual predicate on which the magistrate could properly have concluded that the requirements of Section 934.-09(l)(c) were satisfied, and that normal investigative procedures were not reasonably likely to succeed.

As to the state’s alleged failure to pursue the alternative investigative technique of obtaining a membership to the club, paragraph 7 of the affidavit also adequately explains that this alternative was discarded to avoid endangering the physical safety of the persons involved. In addition, the affidavit reasonably suggests why that alternative might have prematurely disclosed to the appellants that an investigation was under way. Perhaps bare allegations of a concern for safety or for premature disclosure of an investigation might not suffice in all circumstances, but the totality of the allegations here are sufficient to justify the magistrate’s conclusion that the potential for harm was real and that, under Section 934.09(3)(c), alternate procedures “reasonably appear . . . to be too dangerous.”

Obviously, the interception of private communications should not be permitted as a routine method of criminal investigation where more conventional techniques may be successfully employed, but neither should law enforcement officials be compelled to endanger themselves and their informants before wiretaps are made available. The legislature has expressly recognized that

[t]he interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensible aid to law enforcement and the administration of justice.

Adherence to the strict statutory procedures prescribed in Section 934.09, as occurred here, accommodates both the needs of law enforcement officials and the legislature’s asserted objective simultaneously “to protect effectively the privacy of . communications.” Considering the totality of facts and circumstances embodied in the application and affidavits presented to the issuing magistrate, we cannot say that he acted unreasonably in authorizing the requested wiretaps.

3. Appellants cite Tollett v. State, 272 So.2d 490 (Fla.1973), to support their contention that the confidential informant who allegedly agreed to the state’s initial eavesdropping should have been identified and produced for cross-examination as to whether consent was freely given, as required by Section 934.03(2)(c), Florida Statutes (1975). That statute provides:

It is lawful under this chapter for a law enforcement officer ... to intercept a wire or oral communication when . one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

In Tollett, we held that for the purposes of introducing a wiretap recording into evidence at trial, in the absence of an authorization order, it “does not suffice . for an intercepting police officer alone to testify by hearsay that consent to intercept had been given him by one of the parties to the communication.”

It is manifest that Tollett is factually distinguishable from the present case in two respects — the intercepted communication here was not taped, and its contents were never offered into evidence at any trial. In effect, appellants urge us to extend the Tollett decision to require that the state prove consent even when the product of the eavesdropping is used solely in an affidavit to establish probable cause. We decline to so broaden the rule.

We have previously held that “information forming the basis for a search warrant is not to be measured by its admissibility as evidence in the trial of the case,” Treverrow v. State, 194 So.2d 250, 252 (Fla.1967), and we are persuaded that the more lenient standard is equally applicable to a wiretap authorization order. We now hold that when information acquired through the interception of communications under the procedure authorized by Section 934.03(2)(c) is used only to establish probable cause, the state need not establish consent through the direct testimony of the consenting party. It follows that the trial judge did not err in denying appellants’ motion to disclose the identity of the confidential informant and to produce him for cross-examination by the defense on the issue of consent.

In accordance with the foregoing analysis, the orders entered below upholding the constitutionality of the bookmaking statute and denying appellants’ motions are approved, and the convictions appealed from are in all respects affirmed. These cases are remanded to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG and ALDERMAN, JJ., concur.

HATCHETT, J., concurs in part and dissents in part with an opinion.

HATCHETT, Justice,

concurring in part, dissenting in part.

I agree with the majority that the bookmaking statute is constitutional. State v. Barnett, 366 So.2d 411 (Fla.1978). I would remand the case to the trial court for a finding by the trial judge as to whether consent was given by the informant as required by Florida Statute 934.03(2)(c), because any interception of a wire or oral communication is unlawful without the required consent.

      . Appellants pled no contest to charges brought against them in the circuit court and specifically reserved their right to appeal this constitutional issue, together with certain other rulings by the trial court, under State v. Ashby, 245 So.2d 225 (Fla.1971). Appeal was originally taken to the Second District Court of Appeal, which transferred the case here on motion of the state. See Art. V, §§ 2(a) and 3(b)(1), Fla.Const.; Fla.App.R. 2.1, subd. a(5)(d).

      . Zona and Castello were sentenced to concurrent terms of six months to three years imprisonment. Zuppardi received three years probation, conditioned on his serving 60 days in the county jail.

      . The principal cases cited by appellants are New York v. Bennett, 113 F. 515 (S.D.N.Y.1902); State v. Austin, 142 La. 384, 76 So. 809 (1917); State v. Morano, 134 N.J.L. 295, 47 A.2d 419 (1946); People ex rel. Lichtenstein v. Langan, 196 N.Y. 260, 89 N.E. 921 (1909); People ex rel. Jones v. Langan, 132 App.Div. 393, 116 N.Y.S. 718, aff'd, 196 N.Y. 551, 90 N.E. 1164 (1909).

      . There is no merit whatsoever in appellants’ general assertion that the absence of a writing requirement violates the principle of law which requires criminal statutes to be definite.

      . We note that all of the decisions on which appellants rely were rendered over sixty years ago, except for one thirty-year-old New Jersey decision. See note 3 above.

      . The taking of bets, whether written or oral, is by no means a constitutionally protected activity. See State v. Bales, 343 So.2d 9 (Fla.1977).

      . Appellants’ complaint on appeal that the state failed to file for the record the originals of the affidavits and wiretap orders is barred by their stipulation to the use of copies in the trial court and their failure to request the trial court to compel production of the originals.

      . “Each application for an order authorizing or approving the interception of a wire or oral communication . . . shall include . . .
      (c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

      . Although the supporting affidavits for the three wiretap orders did not contain identical language (for example, paragraph 7 of the third affidavit was substantially more detailed than the second, which in turn was more detailed than the first), they were sufficiently similar that a finding of adequacy as to the first (and least detailed) affidavit would necessarily mean that the others pass muster.

      . Paragraph 4 of the affidavit recited that the affiant had actually obtained from the club’s secretary an application form for admission to the club.

      . See, e. g., United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

      . United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir. 1975). It is noteworthy, however, that the court in Kerrigan went on to sustain the validity of the affidavit, adding that “the law does not require that a wiretap be used only as a last resort.” Id.

      . Rodriguez v. State, 297 So.2d 15, 17 (Fla.1974).

      .§ 934.09(3)(c), Fla.Stat. (1975). The affidavit alleged a significant financial operation, which would bolster safety concerns. It stated that a reliable informant “had observed Guy Zona accepting up to $15,000.00 in bets on football games from club members ... in one evening’s activity,” and had seen him “write at least $24,000 in football bets during one evening.”

      . § 934.01(3), Fla.Stat. (1975).

      . § 934.01(2), Fla.Stat. (1975).

      . 272 So.2d at 494.


author: PER CURIAM. ADKINS, Justice,

text:
    Mark MIKENAS, Appellant, v. STATE of Florida, Appellee.
    No. 49928.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied March 7, 1979.

      Ellen M. Condon, Temple Terrace, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We review this case to determine whether the appellant was convicted and sentenced to death for first-degree murder and second-degree felony-murder in accord with statutes and court decisions. We affirm the convictions, but we remand the case to the trial court for resentencing because of improper application of aggravating circumstances. Article V, Section 3(b)(1), Florida Constitution.

On November 3, 1975, the appellant, Mark Mikenas, his brother, Vito Mikenas, and a friend, Mark Rinaldi, robbed a convenience store in Tampa, Florida. During the robbery the appellant carried a .38 caliber revolver. There were no customers in the store during the robbery. Upon entering the store, the appellant and his co-felons forced the lone store clerk into a back room of the building. Unknown to the robbers, Gary Barker, an auxiliary deputy sheriff, observed the robbery from a hidden position in the store. When an automobile unexpectedly arrived at the front of the store, appellant and his co-felons tried to exit the store through a back door. Barker, with drawn pistol, stopped them and placed them under arrest.

Seconds later, Anthony Williams, an off-duty Tampa policeman in civilian attire, came into the store through the front door. Barker called to Williams for help and informed him that a robbery was underway. Immediately thereafter, appellant and Barker fired at each other with both missing. Barker later killed Vito and wounded the appellant as they ran towards the front of the store. As appellant was falling to the floor, he shot and killed Anthony Williams, the Tampa police officer. Ann Williams, the wife of Anthony Williams, herself a police officer in uniform, arrested appellant. Barker arrested Rinaldi.

The indictment charged the appellant and Rinaldi, in two counts, with first-degree murder of Anthony Williams and with second-degree murder of Vito Mikenas who “was killed by a person or persons other than the person or persons engaged in the perpetration or attempt to perpetrate said robbery . . .

The appellant pleaded guilty to murder in the first degree for the death of Anthony Williams and pleaded nolo contendere to the charge of second-degree murder of his brother, Vito. Appellant reserved the right to appeal the applicability of Section 782.-04(3), Florida Statutes (1975), the second-degree felony murder statute, to the facts of this case. The judge adjudged appellant guilty, and a jury selected for the sole purpose of recommending sentence, rendered a recommendation of death. The judge sentenced appellant to death.

The appellant contends that the trial judge committed reversible error by (1) abusing his discretion in allowing the deceased police officer’s wife to testify from a wheelchair and in refusing to recuse himself; (2) holding that Section 782.04(3), Florida Statutes (1975), the second-degree felony murder statute, applied to the facts of this case; and (3) misapplying the aggravating and mitigating circumstances listed in Section 921.141, Florida Statutes.

I

When Ann Williams, the police officer who arrested appellant and the wife of the deceased police officer, was called as a witness, appellant moved for a continuance because she was in a wheelchair. The motion for continuance was denied. The court did, however, give a cautionary instruction to the jury indicating that the physical condition of Ann Williams was in no way related to the homicide. The court stated during the course of that instruction that “her medical or physical condition is something foreign to and not related in any way to the incident.”

We find no error in the trial judge allowing this witness to testify from a wheelchair. The jury understood that the incident on trial was not the reason for her inability to stand. She had ample relevant evidence to present to the jury as to the “triggerman.” In the absence of a showing that the trial judge abused his discretion, the ruling will not be disturbed. Zide v. State, 212 So.2d 788 (Fla. 3d DCA 1968), cert. denied 394 U.S. 911, 89 S.Ct. 1026, 22 L.Ed.2d 223 (1969). The appellant has failed to make an adequate showing.

The appellant also alleges that the trial judge should have recused himself because prior to the penalty proceedings in this case, while addressing Rinaldi, the trial judge stated:

Fortunately for you, son, the only thing that probably saved you from a possible death sentence is the fact that when that officer told you to stop, you stopped, and, secondly, that you didn’t have the firearm.

These remarks took place while Rinaldi was being sentenced for murder in the second-degree. We find no merit in the appellant’s contention that these remarks, made to his co-defendant at sentencing, indicated a bias on the part of the trial judge regarding the sentence that appellant should receive. The jury, unaware of this remark, recommended death.

II

Section 782.04(3), Florida Statutes (1975), reads as follows:

When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. [Emphasis added.]

The appellant contends that Section 782.-04(3), Florida Statutes (1975) is inapplicable to the facts of his case. He, in effect, says that it is clear from the evidence that Barker, the auxiliary deputy sheriff, shot and killed Vito. If this is true, he says, and Vito is a co-perpetrator, no one can be charged with the murder of Vito. He argues that only “innocent” persons killed during the perpetration of a felony were intended by the Legislature to be included in the phrase “a person is killed.” From this posture, he asserts that his motion to dismiss should have been granted.

The language of Section 782.04(3) is not ambiguous or vague. It refers to “a person” and must mean “any person.” If the Legislature had intended something other than this, it could have inserted the word “innocent.”

We are mindful that State v. Williams, 254 So.2d 548 (Fla. 2nd DCA 1971), held that under Section 782.04(1), Florida Statutes, the first-degree felony-murder statute, only the death of innocent persons is sufficient to sustain a charge of first-degree felony-murder against a felony perpetrator. The Second District Court stated in that case:

The test we suggest is predicated upon the obvious ultimate purpose of the felony murder statute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. [At 550.]

Since we are here concerned with subsection (3) of 782.04, the second-degree felony murder statute, rather than subsection (1), the first-degree felony murder statute, we need not determine whether the reasoning and rationale in State v. Williams, supra, is correct. We reserve decision on that point until the question is squarely presented. It is sufficient here to hold that there is nothing in the clear language or history of Section 782.04(3) which limits its application to innocent persons killed by one perpetrating or attempting to perpetrate a felony.

Ill

In sentencing the appellant to death, the court made the following findings of fact in support of the death penalty:

“The Court having carefully considered and reviewed the plea of Guilty entered by the defendant MARK MIKENAS, in this cause to the charge of Murder in the First Degree, together with the presen-tence investigation, testimony, evidence and the jury’s recommendation of the death penalty in this case, and in consideration thereof makes the following findings of fact:
“AS TO AGGRAVATING CIRCUMSTANCES:
“(A) That the defendant, MARK MIKENAS, murdered Anthony Williams while engaged in the commission of a felony, to-wit: robbery.
“(B) That the defendant, MARK MIKENAS, committed the crime of murder while in the perpetration of the crime of robbery for pecuniary gain.
“(C) That the defendant, MARK MIKENAS, had been previously convicted of the offense of robbery in the State of New York for which he was sentenced to a prison term of four (4) years and at the time of the offenses committed in this case he was on parole on the New York sentence and there was outstanding against him a parole violation warrant.
“(D) That the defendant, MARK MIKENAS, in committing the crime for which he is to be sentenced, knowingly created a great risk of death to many persons.
“(E) That the crime for which the defendant, MARK MIKENAS, is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
“(F) That the defendant, MARK MIKENAS, has a substantial history of prior criminal activity.
“AS TO MITIGATING CIRCUMSTANCES:
“The age of the defendant, MARK MIKENAS, to-wit: age 22 years, would in the Court’s opinion be the only mitigating circumstance shown by the defendant, MARK MIKENAS, in this case.
“IN CONSIDERATION THEREOF, it is the opinion and determination of the Court, and the Court so finds, that the aggravating circumstances far outweigh the mitigating circumstances in this case and, therefore, the jury’s recommendation of the death penalty is appropriate in the case of the defendant, MARK MIKE-NAS, and it is so ordered.”

Section 921.141, Florida Statutes, requires the trial judge to logically consider the relationship between aggravating circumstances listed therein and mitigating circumstances and arrive at a sentence based upon reason. In State v. Dixon, 283 So.2d 1 (Fla.1973), we said:

The fourth step required by Florida Statute 921.141, F.S.A., is that the trial judge justifies his sentence of death in writing, to provide the opportunity for meaningful review by this court. Discrimination or capriciousness cannot stand where reason is required, and this is an important element added for the protection of the convicted defendant. Not only is the sentence then open to judicial review and correction, but the trial judge is required to view the issue of life or death within the framework of rules provided by the statute. [At 8.]

Among those matters listed as mitigating circumstances is subsection (6)(a) of 921.141, which provides: “The defendant has no significant history of prior criminal activity.” The Legislature intended absence from the criminal arena to be weighed favorably for a defendant in a capital case. When the trial judge entered under aggravating circumstances: “(F) that the defendant, MARK MIKENAS, has a substantial history of prior criminal activity,” he placed into the balance established by the statute, a nonstatutory aggravating factor. The inclusion of this non-statutory aggravating circumstance indicates that the weighing process dictated by statute was not followed. In Elledge v. State, 346 So.2d 998 (Fla.1977), we said:

Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case to the trial court for a new sentencing trial at which the factor of the Gaffney murder shall not be considered. . . . This result is dictated because, in order to satisfy the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be “guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” (Emphasis supplied.) Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).

In capital cases, it is this court’s responsibility to insure that the trial judge remains faithful to the dictates of Section 921.141, Florida Statutes in the sentencing process. It is not the function of this court to cull through what has been listed as aggravating and mitigating circumstances in the trial court’s order, determine which are proper for consideration and which are not, and then impose the proper sentence. In accordance with the statute, the culling process must be done by the trial court. It was not done in this case. A substantial history of prior criminal activity is not an aggravating circumstance under the statute. Since mitigating circumstances are present, Elledge, supra, dictates resentenc-ing.

We hold that the trial judge did not abuse his discretion in allowing the witness to testify from a wheelchair or in refusing to recuse himself. The second-degree felony murder statute applied to the facts of this case. The trial judge improperly considered a non-statutory aggravating factor. The convictions were proper.

Accordingly, the convictions are affirmed, and the case remanded to the trial court for resentencing without further deliberations by a jury.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., concurs in part and dissents in part with an opinion.

ADKINS, Justice,

concurring in part, dissenting in part.

I concur in that portion of the decision affirming the conviction.

I dissent in the next portion of the decision which sets aside the sentence and refers the case back to the trial judge for further consideration.

The fact that a capital crime was committed in the course of a robbery exemplifies the pecuniary motive at the time of the murder. This constitutes one factor which must be considered in the case. Provence v. State, 337 So.2d 783 (Fla.1976). In the Provence case, the pecuniary motive at the time of the murder was only one aggravating factor. The sentencing jury had recommended life imprisonment and the subsequent imposition of the death penalty by the trial judge was set aside under the principles announced in Tedder v. State, 322 So.2d 908 (Fla.1975).

In Knight v. State, 338 So.2d 201 (Fla.1976), the defendant kidnapped a man and his wife in an effort to extort money as a ransom. The imposition of the death penalty was warranted because the defendant was shown to have murdered two people in the course of the kidnapping and the robbery.

In the case sub judice, the trial judge found only one mitigating circumstance, to wit: Defendant was 22 years old at the time the crime was committed. In Songer v. State, 322 So.2d 481 (Fla.1975), the fact that defendant was 23 years of age was not a mitigating circumstance. In the Songer case, a trooper with the Florida Highway Patrol was shot as he approached the automobile in which defendant was sitting. The defendant had three prior felony convictions and was not so intoxicated at the time of the crime as to be unaware of what he was doing.

In Cooper v. State, 336 So.2d 1133 (Fla.1976), the defendant and his accomplice Ellis robbed a grocery store. As they were making their escape they were stopped by an officer. After being stopped, either defendant or his accomplice walked to the officer’s patrol car and fired two shots into his head. He was killed instantly. In Cooper, the defendant was previously convicted of armed robbery; the murder of the police officer was committed while the defendant was in the perpetration of a robbery and in flight after committing the robbery; the murder was committed for the purpose of avoiding or preventing the lawful arrest of the defendant; and there were no mitigating circumstances. The sentence of death in Cooper upon conviction of first degree murder was held to be warranted.

In the case sub judice, the homicide was committed while the defendant was engaged in or escaping from the commission of a robbery. The defendant was previously convicted of the offense of robbery. The defendant knowingly created great risk of death to many persons. See Alvord v. State, 322 So.2d 533 (Fla.1975). Also, the felony was committed for the purpose of avoiding or preventing a lawful arrest or for the purpose of effecting an escape from custody. Defendant admitted upon cross-examination that he had been convicted of a crime “six or seven” times.

Appellant says that in considering the aggravating factors listed in Section 921.-141, Florida Statutes (1975), the trial judge considered prior criminal activity when, in fact, the history of prior criminal activity should be considered only as a mitigating circumstance. Section 921.141(6)(a), Florida Statutes (1975). It is utterly illogical to say that the absence of a past history of criminal activity is a mitigating circumstance, but that the existence of such a past is not a relevant factor to be considered. In Knight v. State, supra, the trial judge listed as a finding under mitigating circumstances that “the defendant has a history of prior criminal activity,” 338 So.2d at 202. To say that the prior criminal activity must be listed under mitigating circumstances rather than aggravating circumstances is merely placing form over substance. In State v. Dixon, 283 So.2d 1 (Fla.1973), we said:

“The fourth step required by Fla.Stat. § 921.141, F.S.A., is that the trial judge justifies his sentence of death in writing, to provide the opportunity for meaningful review by this Court. Discrimination or capriciousness cannot stand where reason is required, and this is an important element added for the protection of the convicted defendant. Not only is the sentence then open to judicial review and correction, but the trial judge is required to view the issue of life or death within the framework of rules provided by the statute.
******
“As to what is significant criminal activity, an average man can easily look at a defendant’s record, weigh traffic offenses on the one hand and armed robberies on the other, and determine which represents significant prior criminal activity. Also, the less criminal activity on the defendant’s record, the more consideration should be afforded this mitigating circumstance.” At 8-9.

The fundamental purpose of the written findings is to guarantee the imposition of the death penalty becomes a matter of reasoned judgment rather than unbridled discretion. There is no requirement these findings of fact be in any particular form, as long as it appears the trial judge viewed the issue of life or death within the framework of the rules provided by statute.

Section 921.141(1), Florida Statutes (1975), in prescribing the manner in which the sentencing procedure should be conducted, provides in part:

“In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitutions of the United States or of the State of Florida.”

In Alvord v. State, supra, the Court allowed in evidence proof of the commission of a crime of which the appellant had previously been found not guilty by reason of insanity. This Court said:

“In the penalty proceedings certain types of evidence which may be inadmissible in a trial on guilt may be admissible and relevant to enable the jury to make an informed recommendation based on the aggravating and mitigating circumstances concerning the acts committed. In fact, one of the statutory mitigating circumstances is the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Fla.Stat. § 921.-141(6)(f), F.S.A. There should not be a narrow application or interpretation of the rules of evidence in the penalty hearing, whether in regard to relevance or to any other matter except illegally seized evidence. State v. Dixon, supra. See also Sullivan v. State, 303 So.2d 632 (Fla.1974), and Smith v. State, 303 So.2d 694 (Fla. 1st DCA 1974). This testimony was properly allowed into evidence.” 322 So.2d at 538-39.

In Dobbert v. State, 328 So.2d 433 (Fla.1976), the defendant was convicted of first degree murder, the victim being his child. Evidence of prior offenses and evidence of beatings which were never prosecuted were allowed in the evidence in determining the penalty. This Court affirmed the death penalty.

The majority holds that the trial judge may have improperly considered as one of the aggravating circumstances the fact that the defendant had “a substantial history of prior criminal activity.” The defendant admitted that he had been convicted of a crime “six or seven” times. The majority holds that the trial judge properly considered the prior convictions as set forth in the sentencing order, but improperly considered the “prior criminal activity” of the defendant. The question arises as to how you could consider prior convictions, without at the same time considering criminal activity. However, if the trial judge should consider prior criminal activity as being a part of the aggravating circumstances of prior convictions, then the matter must be returned to the trial judge for reconsideration and resentencing. This form of logic speaks for itself.

The sentence of death was properly imposed as a result of the reasoned judgment and not by counting and subtracting different factors.


author: ENGLAND, Chief Justice.

text:
    CASTLEWOOD INTERNATIONAL CORPORATION, etc., Appellant, v. William SIMON et al., Appellees.
    No. 53146.
    Supreme Court of Florida.
    Jan. 11, 1979.
    Rehearing Denied March 12, 1979.
    Tobias Simon, Jennifer Hurst and Theodore L. Tripp, Jr. of the Law Offices of Tobias Simon, Miami, for appellant.
    J. B. Eskenazi, U. S. Atty. and Lloyd G. Bates, Asst. U. S. Atty., Miami, and Ronald E. Williams, Office of Chief Counsel, Bureau of Alcohol, Tobacco and Firearms, Washington, D. C., for appellees.
    Cynthia S. Tunnicliff of Spector & Tunni-cliff, Tallahassee, for Distilled Spirits Wholesalers of Florida, Inc., amicus curiae.
    Wilbur E. Brewton and J. Riley Davis of Taylor, Brion, Buker & Greene, Tallahassee, for Wine Industry of Florida, Inc., amicus curiae.
   ENGLAND, Chief Justice.

This case comes to us by certification from the Fifth Circuit Court of Appeals, asking for an interpretation of the financial restrictions imposed by Florida law on transactions between wholesalers and retailers of alcoholic beverages. Critical to our answer are the history of Florida’s regulatory provisions on the subject and a comparison with comparable features of the federal regulatory scheme.

Pursuant to the authority reserved to the several states by the twenty-first amendment to the United States Constitution, Florida has adopted a comprehensive regulatory scheme to control the distribution and sale of intoxicating liquors within this state. A dominant feature of Florida’s regulatory scheme is the establishment of three independent tiers of private entities concerned with the distribution and sale of intoxicating liquors in the state — distillers, wholesalers, and retailers. Since 1935, when Florida enacted a counterpart of the federal Tied House Evil Statute, this state has prohibited distillers and wholesalers of intoxicating liquors from offering financial assistance to retailers.

Both the state Tied House Evil Law and a rule promulgated by the Treasury Department under the federal statute allow one form of inter-tier financial assistance— trade discounts from wholesalers to retailers “in the usual course of business.” Florida and federal law differ, however, as to what that terminology permits. At the present time, federal regulations allow discounts only to the extent that volume purchases bear a reasonable relationship to the savings in cost which accrue to the wholesaler, and they prohibit any transaction in which the discount would result in a sales price below the wholesaler’s “laid-in cost.” Florida’s statute authorizes trade discounts in cash, if given simultaneously at the time of sale to all retailers buying similar quantities, without any mention of a required relationship between discount and savings, or of a “floor” on discounts. This difference between Florida and federal law precipitated this lawsuit, raising the question of whether Florida’s liquor wholesalers must conform their price schedules to meet the requirements of the federal regulatory scheme.

Castlewood International Corporation is a retail vendor of alcoholic beverages in Florida, licensed under Chapter 561, Florida Statutes (1977). It brought an action in the United States District Court for the Southern District of Florida, seeking declaratory and injunctive relief against the enforcement in Florida of the federal regulations. Castlewood argued, essentially, that Florida is free to adopt a regulatory scheme for the control of intoxicating liquors which is different from the federal scheme; that the state has broad discretion to control or limit financial assistance between tiers in the liquor distribution chain; that the state may elect to place a “floor” on inter-tier discounts or require a cost-savings relationship, but it may also elect “equality among purchasers” as a mechanism of control; and that since 1963 Florida has elected the latter, allegedly more competitive, method for this state.

The federal district court rejected Castle-wood’s contentions and entered judgment for defendants, the Secretary of the Treasury and the Director of the Bureau of Alcohol, Tobacco and Firearms. On appeal, the United States Court of Appeals for the Fifth Circuit certified the following question to us pursuant to Florida Appellate Rule 4.61:

Whether, under Florida’s comprehensive regulatory scheme for the alcoholic beverage industry, prices charged by wholesalers to retailers must bear some relationship to, and be at least equal to, laid-in cost, or whether a wholesaler may sell to a retailer at any price, regardless of laid-in cost, provided only that all discounts are given at the time of sale and the same discount is available to all purchasers of similar quantities of alcoholic beverages.

We hold that under Florida law a wholesaler may sell to a retailer on the basis of a discount given at the time of sale and made available to all vendors buying similar quantities, regardless of laid-in cost or the savings attributable to quantity sales.

Before 1963, a “discount in the usual course of business” was defined by Section 561.01(13), Florida Statutes (1961), to mean

a cash discount given simultaneously at the time of sale, which shall not exceed the allowable discount fixed by the director [of the state beverage department].

In that year the authority of the director was replaced with a statutory prescription for unregulated equality among purchasers, the provision now found in Section 561.-01(10), Florida Statutes (1977).

In 1973, the Board of Business Regulation asked the Attorney General precisely the same question regarding the effect of the 1963 amendment which the Fifth Circuit has now certified to us. We cannot improve on the Attorney General’s answer, which has continuing vitality under the statute as it presently exists.

The terms of the amendment are unambiguous and the legislative intent is clear. The criterion based upon the size of the discount was removed from the definition and the concomitant authority of the director to adopt rules setting the size of the allowable discount was withdrawn. In lieu thereof, the legislature adopted a new, self-executing criterion. The size of the discount is no longer a factor. So long as it is a cash discount given simultaneously at the time of sale and so long as the same discount is offered to all vendors buying similar quantities, it is a discount in the usual course of business and thus exempted from § 561.42 by subsection (6). Under the amended section, it is a violation of “this section” rather than a rule which is considered an arrangement for financial assistance or gift. This change reflected an apparent legislative recognition that major discounts result in lower prices to the consumer, as well as a desire by the legislature to require equality in the treatment of retailers, as an alternative to price fixing by the division.

There is no other administrative or judicial interpretation of the statute in Florida, although there is a sentence in a 1971 decision of the First District Court of Appeal which, contrary to the Attorney General’s opinion, states that a reasonable relationship to cost savings is required under the amended discount statute. This statement in that opinion was obviously gratuitous, as the subject of the present controversy was neither argued nor briefed by the parties there and was irrelevant to the point of law involved in that proceeding. We now hold that the 1973 opinion of the Attorney General accurately reflects the intent of the legislature and the law of this state with respect to discounts offered by wholesalers of wines and liquors.

The appellees and amici argue forcefully that the interpretation we have now adopted will enable those retailers who are licensed to sell liquor at multiple locations to obtain a favorable competitive position over individual businesses, since as a practical matter the latter will be unable to take advantage of the discounts offered on large volume orders. They suggest that unless a cost-relationship requirement is incorporated into the statute, individual retailers will ultimately be driven out of business and wholesalers will be at the mercy of the large, multi-outlet vendors. To sustain this position, they urge that we look not only to the object and intent of the beverage law, but beyond to general state and federal legislation aimed at preventing unfair trade practices.

We have often said that the courts will not substitute what is perceived to be a more desirable or harmonious policy for a clear and unambiguous legislative directive. See, for example, Heredia v. Allstate Insurance Company, 358 So.2d 1353, 1355 (Fla.1978). That doctrine of judicial restraint is directly applicable here. Appellees’ concerns regarding monopolistic practices go not to the meaning, but to the wisdom of the provisions in question — a matter which is irrelevant to our inquiry.

For the reasons expressed, the question certified by the Fifth Circuit Court of Appeals is resolved in accordance with this opinion.

BOYD, OVERTON and HATCHETT, JJ., concur.

ADKINS, J., concurs in result only.

      . U.S.Const. amend. XXI, § 2 provides: “The transportation or importation into any State . . . for delivery or use therein of intoxi-eating liquors in violation of the laws thereof, is hereby prohibited.”

      . Title 32, Fla.Stat. (1977).

      . § 561.14, Fla.Stat. (1977). A fourth class-exporters — is strictly prohibited from engaging in any in-state liquor business, see Division of Beverage v. Bonanni Ship Supply, Inc., 356 So.2d 308 (Fla.1978), and therefore is unaffected by the present controversy.

      . See 27 U.S.C. § 205(b) (1976).

      . The present prohibition is found in § 561.-42(1), Fla.Stat. (1977), which provides:
      No licensed manufacturer or distributor of [alcoholic beverages] shall . . . assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever.

      . § 561.42(6), Fla.Stat. (1977); Rev.Rul. 161, 1954-1 C.B. 338.

      . See Bureau of Alcohol, Tobacco and Firearms Rulings 74-6 and 75-5.

      . § 561.01(10), Fla.Stat. (1977), defines a “discount in the usual course of business” to mean
      á cash discount given simultaneously at the time of sale. The same discounts shall be offered to all vendors buying similar quantities.

      . Castlewood International Corp. v. Simon, 404 F.Supp. 88 (S.D.Fla.1975).

      . This rule now appears as Florida Rule of Appellate Procedure 9.510 (1977). See also § 25.031, Fla.Stat. (1977).

      . Castlewood International Corp. v. Simon, 564 F.2d 695, 698 (5th Cir.1977).

      . Ch. 63-32, § 1, Laws of Fla.

      . 1973 Op.Att’y Gen. Fla. 073-196 (June 1, 1973). This construction of the statute has been accepted by the Department of Business Regulation, which in 1976 promulgated an administrative rule embodying the same limited test. See Fla.Admin.Code Rule 7A — 4.461.

        . Musleh v. Fulton Distributing Co., 254 So.2d 815, 818-19 (Fla. 1st DCA 1971).

      . Both the rule and statute which authorize our acceptance of certified questions from federal appellate courts specifically provide that we may only address issues for which “there are no clear controlling precedents in the decisions of the [Florida] Supreme Court.” This case proves the wisdom of that limitation. The Fifth Circuit recognized the significance of this condition, having declined to accept Musleh as controlling authority. 564 F.2d at 696 n. 1.

      . Distilled Spirits Wholesalers of Florida, Inc. and Wine Industry of Florida, Inc.

      . This may or may not occur. The Division of Beverage, undoubtedly in recognition of this potential inequity, has promulgated a rule establishing a method by which two or more licensed vendors may “pool” their purchases from a distributor in order to obtain the large volume discounts which might otherwise be available only to multi-outlet retailers. Fla.Admin.Code Rule 7A — 4.50.

      . In passing we note that the federal government did not place any limit on distributors’ discounts under the federal Tied House Evil Statute for the period between 1935 and 1974. The fact that the federal government has now altered its policy is not a persuasive reason to incorporate its current view into the comparable Florida statute.

      . E. g., Stern v. Miller, 348 So.2d 303, 307 (Fla.1977); State v. Reese, 222 So.2d 732, 736 (Fla.1969); Overstreet v. Bishop, 343 So.2d 958, 961 (Fla. 1st DCA 1977).