text:
    Jessie Joseph TAFERO, Appellant, v. STATE of Florida, Appellee.
    No. 49535.
    Supreme Court of Florida.
    June 11, 1981.
    Rehearing Denied Sept. 29, 1981.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Richard B. Greene and Jack A. Goldberger, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Benedict P. Kuehne, Basil S. Diamond and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, and Michael J. Satz, State Atty., and Linda DeBene, Asst. State Atty., Fort Lauderdale, for appellee.
   PER CURIAM.

Tafero was convicted of two counts of first-degree murder and one count each of robbery and kidnapping and received two death sentences and two prison terms. He appeals these convictions and the attendant sentences. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm.

In the early morning of February 20, 1976, Trooper Phillip Black and Donald Irwin approached a Camaro parked at a rest stop on Interstate 95. Asleep in the driver’s seat sat Walter Rhodes; at his side was Jessie Tafero. In the back seat sat Sonia Jacobs and her two children. As Black looked into the car, he noticed a gun at Rhodes’ feet, ordered Rhodes out of the car, and ran a radio check on Rhodes and the gun. Eventually Black ordered Tafero out of the car, and, as Tafero exited through the driver’s door, he and Black began to scuffle.

Eyewitness accounts vary as to what occurred next. A truck driver who was stopped at the rest area testified that Rhodes stood with his hands in the air while Irwin grabbed Tafero and held him against the patrol car. The witness then heard a single shot and a cry from the trooper, “I’m shot.” Several rapid shots followed, and both the trooper and Irwin fell to the ground. The witness concluded that the shots came from the back seat of the Cama-ro.

A second eyewitness, another truck driver, also testified that Tafero and Black struggled, but added that Black pulled a gun on Tafero and Rhodes. While passing the Camaro on his way out of the rest area, the driver noticed Jacobs in the back seat. He then heard several shots and saw both Black and Irwin fall.

A third eyewitness was co-indictee Rhodes. Rhodes testified that when Black took the gun from the Camaro, Tafero passed another gun to Jacobs in the back seat. Black ordered everyone out of the car and, as Black assisted Tafero from the ear, the two began to scuffle. Rhodes, with his back to the scuffle, then heard two shots which sounded as if they were fired from different guns. He turned and saw Jacobs holding a gun which Tafero then grabbed and fired at Black and Irwin, who fell to the ground. All three eyewitnesses agree that Rhodes, Tafero, Jacobs, and Jacobs’ children fled in Black’s patrol car. Later, the group commandeered another car and took its owner hostage. They were finally apprehended at a police roadblock.

Tafero challenges the sufficiency of the evidence to convict him of murder, but the evidence against him is overwhelming. In addition to the eyewitness testimony, bullets removed from the victims match the gun in Tafero’s possession at his arrest. We do not accept Tafero’s contention that Rhodes’ testimony was unbelievable in that Rhodes actually did the shooting. Rhodes’ testimony is corroborated by both the physical evidence and the other eyewitnesses’ testimony. Additionally, both truck drivers noticed Rhodes’ hands in the air when the first shots were fired. The evidence shows beyond a reasonable doubt that Tafero is guilty of the premeditated murder of both Irwin and Black.

Similarly, we conclude from our review of the record that the state presented sufficient evidence to support Tafero’s kidnapping and robbery convictions.

We next consider alleged trial procedure violations. The appellant contends that he was deprived of a fair trial by what he describes as an inherently prejudicial atmosphere surrounding the proceedings. He claims that while in jail police officers taunted and physically assaulted him. The trial judge took action to correct any mistreatment, and there appears to be no way that such conduct, if it occurred, affected the trial itself.

Tafero also complains of widespread publicity of the deaths and the fact that nearly every juror had heard something of the incidents. The trial judge carefully inquired into the prospective jurors’ prior knowledge of the case and precisely instructed the jurors to avoid any outside influence. Although he did not sequester the jury, he admonished them not to discuss the case, not to listen to television or radio accounts, and not to read any newspaper articles about the trial.

The United States Supreme Court discussed the impact of pretrial publicity on a defendant’s constitutional right of fairness in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), where the Court stated:

The constitutional standard of fairness requires that a defendant have “a panel of impartial, ‘indifferent’ jurors.” Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“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.”
At the same time, the juror’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.”

Id. at 799-800, 95 S.Ct. at 2036 (citations omitted).

Neither the voir dire of the prospective jurors nor any other portion of the trial reflects that those selected to try this case were not impartial or unable to lay aside any impressions or opinions which may have resulted from pretrial publicity. The jurors vowed that they could and would decide the case on the merits from the evidence presented in open court. We are unable to discern that they violated this oath in any way.

Tafero contends that the general tenor of the proceedings precluded a fair trial. He complains of insufficient peremptory challenges, the flying of the courthouse flag at half-mast in memory of deceased police officers, and speeches made locally by the attorney general during the trial referring to the “turnpike murders.” These circumstances do not appear to have affected the trial and are far from inherently prejudicial. Utilizing the test espoused in Shepperd v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), we find no reasonable likelihood that the matters described affected this trial. No irregularity at trial affected or changed the facts, prevented any party from presenting facts, or prevented the jury from impartially considering the facts. Tafero has failed to prove the existence of any prejudicial influence, and under the circumstances there was no constitutional unfairness. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

We now turn to the testimony of Ellis Marlowe Haskew. Haskew is no stranger to the witness stands of this state. At the start of the trial, shortly after learning that Haskew could help the prosecution, the prosecutor supplied Haskew’s name to defense counsel. The trial court denied defense’s motion for continuance. Four days later, on the morning of Haskew’s testimony, defense counsel interviewed Haskew. The trial court denied a second motion for continuance which was' based on Tafero’s desire to further investigate the truthfulness of Haskew’s story.

Haskew’s testimony was brief. In essence, he stated that a few weeks prior to the shootings Tafero told him that he would never go back to prison. Haskew also said Tafero told him about a Taser gun and some armor-piercing ammunition that he had; such a gun and ammunition were used at the rest stop.

The trial judge permitted Haskew to testify only after a Richardson inquiry. He found no prejudicial violation for the late giving of this witness’s name. At most, any violation by the state was trivial, as was the testimony of Haskew. This is the significant difference between the instant case and Antone v. State, 355 So.2d 777 (Fla.1978), conviction aff’d. on later appeal, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980), in which a major thrust of the state’s case was based on Haskew’s testimony. Likewise, any alleged failure by the state to disclose that Haskew’s attorney’s fees were being paid by the Florida Department of Criminal Law Enforcement was harmless. Under the test in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), no new trial is required.

Tafero claims error in the admission of the fact he was on parole, the discussion of the Taser gun, and other items. He claims this evidence had no relevance to the charges against him, and, even if relevant, the volume of the evidence amounted to “prosecutorial overkill.” We disagree. Some of this evidence was relevant to show that Tafero had a reason to kill any police officer who stood in his way, some of it was relevant to show that he participated in the shooting, and this evidence did not become a feature of the trial. The primary test for admissibility is relevance. Ruffin v. State, 397 So.2d 277 (Fla.1981).

The appellant protests the state’s proceeding under the dual theory of felony murder and premeditated murder. Although this issue was settled in Knight v. State, 338 So.2d 201 (Fla.1976), the appellant attempts to distinguish that holding because here two other people were indicted for the same crimes. We fail to find this to be a valid distinction. Tafero had sufficient notice of the charges against him. Proceeding on a felony-murder theory might have been superfluous because the facts clearly demonstrated premeditation. Nevertheless, by the evidence the jury could have found that the homicides were committed for the purpose of forcefully taking the trooper’s car to make an escape. There was no error in proceeding under both theories.

Tafero also feels that the trial judge, an ex-highway patrolman, should have recused himself. He urges that the test for recusal is the accused’s fear of unfairness, not whether the judge is actually capable of conducting a fair trial. The test of the sufficiency of an affidavit for disqualification for prejudice is whether or not the sworn statement shows that the movant has a well-grounded fear of not receiving a fair trial at the hands of the presiding judge. State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (1938). The facts and reasons given in the sworn affidavit must tend to show personal bias or prejudice. This rule is not intended as a vehicle to oust a judge who has made adverse pretrial rulings. Suarez v. State, 95 Fla. 42, 115 So. 519 (1928).

No personal bias or prejudice had been demonstrated in this case. The mere fact that Judge Futch was, in the distant past, a highway patrol officer does not support a claim of bias or prejudice on the judge’s part. Tafero presented nothing to warrant the judge’s disqualification. See United States v. Archbold-Newball, 554 F.2d 665 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977).

Other claimed errors are an alleged abuse of discretion in denying the defense’s request to recall two state witnesses, the refusal of the defendant’s request to take a polygraph examination, and the exclusion of one venireman. Each of these claims has been examined, and, in the context in which each arose, the trial judge did not err.

Tafero claims that his conviction of robbery constitutes double jeopardy. The jury was charged that they could convict Tafero of murder by premeditation or under the felony-murder concept, the felony being the robbery of Trooper Black.

In State v. Pinder, 375 So.2d 836 (Fla.1979), this Court held that

where premeditated murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in section 782.-04(1), we hold that the defendant may not be convicted and punished for both the felony murder and the underlying felony.

Id. at 839. Pinder is not applicable because in this case there is clear evidence of premeditation, and it was not necessary to convict Tafero of robbery in order to support the murder conviction.

We now turn to the death sentence. Tafero first claims that the state failed to tell him, prior to trial, the specific aggravating circumstances it intended to prove. Such contention is not new and has been previously disposed of adversely to the appellant. See Menendez v. State, 368 So.2d 1278 (Fla.1979); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Similarly, his second contention is that the trial court had no jurisdiction to impose a death sentence because the indictment failed to allege any aggravating circumstances. This claim is likewise without merit.

Tafero contends that the trial judge should not have found the deaths to be heinous, atrocious, or cruel. Absent some circumstances over and above what happened in this instance, the facts do not justify this particular finding. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). See Kampff v. State, 371 So.2d 1007 (Fla.1979); Menendez v. State; Riley v. State, 366 So.2d 19 (Fla.1978); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).

The trial judge also found that Tafero created a great risk of death to many persons. The record does not support that finding. Under the facts of this case, attempting to run a roadblock and being stopped by police gunfire does not constitute “great risk” to “many persons” as we defined those terms in Kampff.

The trial judge found other aggravating factors, all of which are justified. They are:

1. Both murders were committed by the Defendant while he was on parole and while he was actually a fugitive from justice.
2. The Defendant does have a significant history of prior criminal activity involving the use or threat of violence to the person of another. The Defendant was convicted of the crime of Assault with Intent to Commit Rape on December 28th, 1967 in Dade County, Florida and was sentenced to five years in State Prison. The Defendant was convicted of the crime of Crime Against Nature in Case # 67-5285A in Dade County on December 28th, 1967 and was sentenced to five years imprisonment to be served consecutively with Case # 67-5284A. In Case # 67-5284A, the Defendant, JESSIE JOSEPH TAFERO, was found guilty of Breaking and Entering an Apartment Dwelling and Assaulting Persons Lawfully Therein, and he was sentenced to five years imprisonment on December 28th, 1967.
4. The Murders were committed by MR. TAFERO for the purpose of avoiding or preventing lawful arrest or effecting an escape from custody. Evidence presented to this Court indicated beyond any reasonable doubt that MR. TAFERO was on parole and he had indicated to his friends that he would never again go back to prison and that this desire to avoid any future imprisonment was one of the reasons that MR. TAFERO was personally armed with an automatic pistol on most occasions.
5. The Murders were committed to hinder the lawful enforcement of the laws of this State. The victims of these murders, two law enforcement officers, were attempting to enforce the laws of this State after discovering various firearms and various types of drugs and controlled substances in the automobile in which the Defendant was a passenger.

The trial judge also found no mitigating circumstances. The fact that Rhodes received life sentences upon his pleas to second-degree murder and kidnapping does not invalidate Tafero’s death sentences in this case in which Tafero did the shooting and probably was the leader of the group. Although the trial court erroneously found two aggravating factors, it properly found four aggravating factors. Because there were no mitigating circumstances, the sentence will not be disturbed. See Elledge v. State, 346 So.2d 998 (Fla.1977).

We find no error in the trial judge’s failure to inquire into Tafero’s waiving his right to present evidence at the sentencing phase of the trial. There is no indication that Tafero did not know or understand his right. Tafero claims the penalty assessed him was disproportionate to the offense. We believe otherwise. Further, we reiterate that the death statute provides a sufficient standard for weighing the aggravating and mitigating circumstances and that the statute is otherwise constitutional. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); State v. Dix on. The statute was not unconstitutionally applied in this case.

The convictions and sentences are affirmed.

We have also considered the appellant’s motion for leave to file an extraordinary motion for new trial in the nature of a petition for writ of error coram nobis. That motion is denied.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Chief Justice Burger would have reversed had the Court been exercising its supervisory power over the federal courts. He agreed with the majority, however, that the due process clause does not require reversal of that state prosecution. 421 U.S. at 803, 95 S.Ct. at 2037 (Burger, C.J., concurring).

      . See, e.g., United States v. Diecidue, 448 F.Supp. 1011 (M.D.Fla.1978); Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . §§ 90.402 and 90.403, Fla.Stat. (1979), not applicable to this trial, hold that all relevant evidence is admissible except as provided by law. It is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. The evidence challenged here passes that test.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, Petitioner, v. Robert T. MANN, etc., et al., Respondents.
    No. 57902.
    Supreme Court of Florida.
    June 18, 1981.
    Rehearing Denied Oct. 5, 1981.
    Talbot D’Alemberte, Donald M. Middle-brooks and Gerry S. Gibson of Steel, Hector & Davis, Miami, and Jerry Oxner of Oxner & Brown, West Palm Beach, for petitioner.
    Prentice P. Pruitt, Legal Director and Michael B. Twomey, Staff Counsel, Tallahassee, for respondents.
   BOYD, Justice.

This cause is before us to review Public Service Commission Order No. 8930 which granted Palm Beach County Utilities Company’s application for an extension of its water and sewer certificates into the territory of the Loxahatchee River Environmental Control District. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

This case began when Palm Beach County Utilities Company (PBCU) applied for an extension of its water and sewer certificates to service land owned and to be developed by companies owned by the same parent company, Bankers Life and Casualty Company, that owns PBCU. Since then the company has changed its name to Seacoast Utilities, Inc., but for uniformity’s sake we shall continue to refer to it as PBCU. A major portion of the proposed extension service area lay within the Loxahatchee River Environmental Control District and the town of Jupiter, both of which protested the application and participated at the hearing. In Order No. 8930 the Commission adopted the hearing examiner’s recommendation that the application be granted except for the territory lying within the town of Jupiter’s boundaries.

The Loxahatchee River Environmental Control District (ENCON), a special district created by special act, chapter 71-822, Laws of Florida, petitioned this Court to review that order. ENCON claims that the Commission lacks authority to permit a private utility to service an area within its boundaries without its consent. We agree.

The cause of this dispute is a conflict between two different laws passed in the same legislative session. In 1971 the legislature passed the Water and Sewer System Regulatory Law, Chapter 367, Florida Statutes, Chapter 71-278, Laws of Florida. Part of this law provided that

The Florida Public Service Commission shall have exclusive jurisdiction over each utility with respect to its authority, service rates, and issuance and sale of its securities maturing more than 12 months after date of issue, except as provided in this chapter.

§ 367.011(2), Fla.Stat. (1979). That same year the legislature created ENCON for the purpose of meeting the entire Loxahatchee River basin’s water and sewer needs at the lowest possible cost and with the least possible environmental damage. Ch. 71-822, § 2, Laws of Fla. One of the provisions of the act gave ENCON authority over the construction of any water or sewer system within its boundaries.

No water system, storm drainage system, sewer system, or other facility for the production, treatment of sewage, the collection and discharge of storm drainage shall be constructed within the district unless the board gives its consent thereto and approves the plans and specifications therefor. Said consent and approval shall not be given unless the location and design thereof and its equipment will permit it to be operated in unison with the district’s systems and other existing systems and is adequate to meet the minimum standards of such systems as provided by law and this act.

Ch. 71-822, § 12, Laws of Fla., as amended by Ch. 78-559, § 5, Laws of Fla. This provision necessarily interferes with the Commission’s exclusive jurisdiction because without ENCON’s consent no utility may operate within ENCON’s boundaries under the authority granted to it by the Commission.

Because these two laws were passed by the same legislature in the same session, we presume they are “imbued by the same spirit and actuated by the same policy. . . . ” State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68, 73 (Fla.1975), quoting Curry v. Lehman, 55 Fla. 847, 855, 47 So. 18, 21 (1908); see also § 1.04 Fla.Stat. (1979). One of the policies applicable to both of these laws is that a public body be responsible for regulating a utility’s financial structure. See § 367.081, Fla.Stat. (1979); Ch. 71-822, § 6, Laws of Fla., as amended by Ch. 76-429, § 1, Laws of. Fla. We therefore conclude that the legislature did not intend for a private utility servicing ENCON to be completely unregulated as to its rates, service, and issuance and sale of securities maturing after one year. Since there are no provisions authorizing ENCON to regulate these matters, such authority must lie with the Public Service Commission.

Another policy applicable to both of these laws is that services provided by different utilities should be complementary and not competitive. See § 367.051(3), Fla.Stat. (1979); Ch. 71-822, § 12, Laws of Fla., as amended by Ch. 78-559, § 5, Laws of Fla. To effectuate this policy there must be a single body making the decisions as to which area a utility may service within a given locale. If the Public Service Commission were allowed to authorize utilities to operate within the confines of ENCON, this policy would be thwarted since the Commission could not prevent ENCON from installing its own water and sewer system though it be duplicative. Cf. City of St. Petersburg v. Carter, 39 So.2d 804 (Fla.1949) (Railroad Commission could not assert jurisdiction over a transportation system operated by a municipality).

We believe the legislature intended for ENCON to be an agency responsible for deciding which private utilities may operate within its boundaries. This is apparent from the language found in chapter 71-822, section 12, Laws of Florida, which must be given primary consideration because of the general rule that a special act takes precedence over a general law dealing with the same subject matter. State ex rel. Johnson v. Vizzini, 227 So.2d 205 (Fla.1969). This general rule especially holds true when both laws are passed during the same legislative session. State ex rel. Luning v. Johnson, 71 Fla. 363, 72 So. 477 (1916). We therefore hold the Public Service Commission does not have jurisdiction to grant a private utility authority to operate within the Loxahatchee River Environmental Control District without the district’s consent.

Public Service Commission Order No. 8930 is quashed and the case is remanded to that body for further proceedings consistent with this opinion.

It is so ordered.

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

ALDERMAN and McDONALD, JJ., dissent.


author: ALDERMAN, Justice. SUNDBERG, Chief .Justice,

text:
    Rene PINILLOS, as Personal Representative for the Estate of Margarita Pinillos, Deceased, surviving spouse; Vanessa Margarita Pinillos, surviving child and the Estate of Margarita Pinillos, Appellants/Cross-appellees, v. CEDARS OF LEBANON HOSPITAL CORPORATION and the Florida Patients Compensation Fund, Appellees/Cross-appellants.
    No. 59021.
    Supreme Court of Florida.
    June 18, 1981.
    Rehearing Denied Sept. 29, 1981.

      Edward A. Perse of Horton, Perse & Ginsberg, and Ratiner & Glinn, Miami, for appellants/cross-appellees.
    Mel Lamelas of Lanza, Sevier & Womack, Coral Gables, for appellees/cross-appellants.
   ALDERMAN, Justice.

The final judgment in this medical malpractice wrongful death action is before us on direct appeal because the trial court held section 768.50, Florida Statutes (1979) (Collateral Sources of Indemnity), to be unconstitutional. This section requires that any judgment in a medical malpractice action be reduced by any amounts which the plaintiff has received from collateral sources.

Plaintiffs, the surviving spouse, the child, and the estate of the deceased, appeal the judgment on the basis that the trial court erred in overriding and recomputing the jury’s reduction of their damage awards to present value. Defendants, Cedars of Lebanon Hospital and the Florida Patients Compensation Fund, cross appeal the trial court’s ruling that section 768.50 is unconstitutional. Finding both claims to be meritorious, we reverse the trial court’s judgment on these issues. The Hospital also contends the trial court committed reversible error by denying its motion for a directed verdict. We find no merit in this claim and affirm the trial court’s judgment on this issue.

Margarita Pinillos was admitted to Cedars of Lebanon Hospital for the purpose of delivering a child after a full-term pregnancy. Her attending physician performed a nonemergency cesarean section which culminated in Vanessa Pinillos’ birth but which also resulted in Margarita’s death. Charging the Hospital and several named physicians with medical malpractice, Rene Pinillos, Margarita’s surviving spouse, brought this wrongful death action on behalf of himself, his daughter, and his wife’s estate. The jury returned verdicts for the plaintiffs against the Hospital and the Florida Patients Compensation Fund. The jury verdict stated the gross amount of future damages for each plaintiff and separately stated the amount of future damages reduced to present money value. The reduction was calculated pursuant to an erroneous formula given by the judge in his instructions to the jury.

At a post-trial hearing, the court took evidence on what benefits were received by plaintiffs from collateral sources, but then, on motion of the plaintiffs, it held section 768.50 unconstitutional and refused to set off any collateral source benefits against the amounts of damages assessed by the jury-

The primary question is whether section 768.50 violates the equal protection clauses of the Florida and federal constitutions. The plaintiffs argue that the distinction drawn between medical practitioners and other members of the public is arbitrary and unreasonable. Since no suspect class or fundamental right expressly or impliedly protected by the constitution is implicated by section 768.50, we find that the rational basis test rather than the strict scrutiny test should be employed in evaluating this statute against plaintiffs’ equal protection challenge. The rational basis test requires that a statute bear a reasonable relationship to a legitimate state interest, and the burden is on the challenger to prove that a statute does not rest on any reasonable basis or that it is arbitrary. In re Estate of Greenberg, 390 So.2d 40 (Fla.1980).

The legislature, in the preamble to the Medical Malpractice Reform Act, of which section 768.50 is a part, announced in detail the legitimate state interests involved in its enactment of this provision. The legislature determined that there was a professional liability insurance crisis in Florida. It found that professional liability insurance premiums were rising at a dramatic and exorbitant rate, that insurance companies were withdrawing from this type of insurance market making such insurance unavailable in the private sector, that the costs of medical specialists were extremely high, and that a certain amount of premium costs is passed on to the consuming public through higher costs for health care services. This insurance crisis, the legislature concluded, threatened the public health in Florida in that physicians were becoming increasingly wary of high-risk procedures and, accordingly, were downgrading their specialties to obtain relief from oppressive insurance rates and in that the number of available physicians in Florida was being diminished. The legislature expressed the concern that the tort law liability insurance system for medical malpractice would eventually break down and that the costs would continue to rise above acceptable levels.

The plaintiffs have failed to show that there is no rational basis for the distinction drawn by this statute for health care providers of professional services. We hold that the classification created by section 768.50 bears a reasonable relationship to the legitimate state interest of protecting the public health by ensuring the availability of adequate medical care for the citizens of this state. Carter v. Sparkman, 335 So.2d 802 (Fla.1976).

We have also considered plaintiffs’ challenges to this statute on the bases that it violates their right to access to the courts guaranteed by article I, section 21, Florida Constitution, and that it violates article II, section 3, Florida Constitution, and article V, section 2(a), in that it invades this Court’s rulemaking power. We find these claims to be without merit. Accordingly, we hold that section 768.50 is constitutional, and we reverse the trial judge’s ruling on this point.

We next address the issue raised by plaintiffs as to whether the trial court erred in basing its final judgment on expert testimony presented by defendants at a post-trial hearing rather than rendering judgment in accordance with the jury verdict or granting a new trial on the issue of damages only. At the post-trial hearing, the Hospital contended that the jury had employed an incorrect formula to arrive at the present money value of future damages stated in its verdict form. It was permitted to call an actuary as an expert witness who testified as to the proper reduction to present money value of the gross amounts found by the jury. The court accepted this testimony and entered judgment reflecting the figures testified to by the actuary rather than the erroneous present money value reductions made by the jury.

Although the parties could have stipulated that the judge do the reductions after the jury returned its verdict, the record does not reveal any such stipulation here. The plaintiffs expressly requested that the jury make the appropriate reductions and only agreed to the judge’s checking of the jury’s arithmetic. They did not agree to the use of a formula to which the jury was given no access and did not agree to the judge’s reduction of the gross verdict amounts contrary to section 768.48. Since the defendants failed to produce any evidence at trial on the method of reducing the future damages to present value, since it is conceded that the judge erroneously instructed the jury on the method of reduction, and since the jury, following the judge’s erroneous instruction, incorrectly calculated its reductions, we hold that the trial court erred in making the reductions predicated upon a formula established post trial. Rather, upon motion of counsel, it should have granted a new trial on damages.

Lastly, the Hospital argues that the trial court erred in denying its motion for a directed verdict on its vicarious liability for the alleged negligence of Dr. Haroldo Diaz. It contends that the evidence established that Dr. Diaz was neither an employee nor an agent of the Hospital. Plaintiffs respond that the jury could reasonably infer from the facts of this case that Dr. Diaz was the Hospital’s agent.

The evidence did not clearly establish whether Dr. Diaz was or was not an employee or agent of the Hospital’s. There was evidence to support either view. That being the case, the issue was properly submitted to the jury to make its factual determination. We, therefore, affirm the trial court’s denial of this motion.

Accordingly, the order of the trial court is affirmed in part and reversed in part, and this case is remanded for further proceedings.

It is so ordered.

OVERTON, ENGLAND and MCDONALD, JJ., concur.

SUNDBERG, C. J., dissents with an opinion in which ADKINS and BOYD, JJ., concur.

SUNDBERG, Chief .Justice,

dissenting.

If saying so could make it so, unquestioning acceptance of the legislative findings that a medical malpractice crisis did and does exist in Florida would be understandable, if not warranted. But this Court, in making its determination of constitutionality, is not bound by whatever preamble the legislature decides to attach to justify a statute:

Legislative findings and declarations of policy are presumed to be correct but are not binding upon the courts under all conditions.... “The general rule is that findings of fact made by the legislature are presumptively correct. However, it is well recognized that the findings of fact made by the legislature must actually be findings of fact. They are not entitled to the presumption of correctness if they are nothing more than recitations amounting only to conclusions and they are always subject to judicial inquiry.” (Emphasis added.)

Moore v. Thompson, 126 So.2d 543, 549 (Fla.1960) (quoting from Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235, 236 (Fla.1951)). This Court’s inquiry must be to determine whether such a crisis is extant, because even though the statute in question may have been valid when enacted, changes in conditions to which it applies may make a statute invalid. See Georgia Southern & Florida Railway v. Seven-Up Bottling Co., 175 So.2d 39, 40 (Fla.1965). When the factual basis of a statute is undermined by changing circumstances, the statute may not be considered automatically valid even though once valid. See Conner v. Cone, 235 So.2d 492, 498 (Fla.1970). Our duty to the citizens of this state is to scrutinize, not accommodate.

Section 768.50, Florida Statutes (1979), essentially abolishes the collateral source rule, but only with reference to the medical profession. This common law rule typically prevents reductions of the plaintiff’s tort recovery by any amounts of alternative compensation received from sources such as health insurance or disability benefits. The justifications for the rule are (1) to avoid penalizing the plaintiff who purchases insurance, (2) to avoid discouraging the purchase of insurance, and (3) to increase the deterrent effect of liability. The validity of these rationales has been debated, but commentators agree that if the collateral source rule is modified, there is no justification for confining changes to medical malpractice cases. See Abraham, Medical Malpractice Reform: A Preliminary Analysis, 36 Md.L.Rev. 489, 504-6 (1977); Comment, An Analysis of State Legislative Responses to the Medical Malpractice Crisis, 1975 Duke L.J. 1417, 1447-50. By the section in question, the legislature has chosen the medical profession alone upon which to confer the benefits of decreased liability. We must assess if such special treatment is justifiably bestowed.

Of the six cases from all jurisdictions which have dealt directly with equal protection challenges to abrogation of the collateral source rule in medical malpractice eases, three have agreed with the commentators and found the statutes invalid. The most recent of these cases applied the minimum scrutiny, rational relationship standard of McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), but nevertheless found abrogation of the collateral source rule for the medical profession violative of equal protection. In that case, Carson v. Maurer, 424 A.2d 825 (N.H., 1980), the New Hampshire Supreme Court noted that such an abrogation could lead to the anomalous result of an injured party’s insurance company alone being required to compensate the victim even though the negligent physician was fully insured. Furthermore, since the patient has paid for his collateral benefits, often through wage concessions, the statute merely provided the tortfeasor’s insurance company with a windfall at the victim’s expense.

A second case to hold such a statute invalid applied a somewhat modified rational basis test, as set out in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971): “A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” See Arneson v. Olson, 270 N.W.2d 125 (N.D.1978). This “means-oriented scrutiny” focuses on the relationship between the means and ends of the legislation, and examines the factual underpinnings of this connection. This slightly higher standard for equal protection review has often been employed by this Court. See, e. g., State v. Lee, 356 So.2d 276 (Fla.1978); Soverino v. State, 356 So.2d 269 (Fla.1978); In re Reed’s Estate, 354 So.2d 864 (Fla.1978). I believe that especially under this elevated standard the Court cannot possibly uphold the statute without a closer examination of whether a medical malpractice insurance crisis exists. But even under the bare rational relationship test which (I believe) the majority proposes, we are remiss in simply accepting legislative findings without question, because if no crisis exists, no statute could rationally relate to its alleviation as justification for special treatment of the medical malpractice case.

Unfortunately, the record does not come to us with sufficient information for us to fairly determine whether such a crisis exists. The trial judge took judicial notice of evidence negating a crisis, evidence which was presented in a prior unrelated case, but this is not properly part of the record. See Atlas Land Corp. v. Norman, 116 Fla. 800, 156 So. 885 (1934). This Court is left in a vacuum as the courts in Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977), and Oregon Medical Association v. Rawls, 276 Or. 1101, 557 P.2d 664 (1976), who were faced with an identical problem and were forced to remand for extensive findings of fact concerning the reality of a medical malpractice crisis. I believe we should follow the same course, and shoulder our obligation to carefully scrutinize this challenged legislation for its constitutionality. Patently, even a rational relationship standard cannot be met if a crisis does not in fact currently exist. I would therefore remand this cause to the trial court for detailed findings of fact to determine the existence vel non of a medical malpractice crisis.

I am not unmindful of our earlier implicit (if not express) acceptance of the legislative finding of a health care crisis resulting from escalating medical malpractice insurance premiums. Carter v. Sparkman, 335 So.2d 802, 805-06 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). However, the Carter decision is not controlling in the instant case for two reasons. First, the Court in Carter simply accepted the legislative findings contained in Chapter 75-9, Laws of Florida, without any real scrutiny of the underlying factual basis for the findings. Furthermore, later events have cast doubt upon the veracity of those findings. One cannot help but question the assertion that a “crisis,” which by its terms connotes a critical turning point of an ordeal, has been continuing for six years. Second, the state of affairs found by the legislature to exist in 1975 is of dubious relevancy in 1981, particularly in view of underwriting experience in the medical malpractice insurance field which has been made public since 1975. Hence, a remand to the trial court for proper findings on this critical issue is imperative before a reasoned judgment can be made in this case.

ADKINS and BOYD, JJ., concur.

      . This appeal was filed first in the Third District Court of Appeal and then transferred to this Court. We have jurisdiction under article V, section 3(b)(1), Florida Constitution (1972).

      . Prior to trial, plaintiffs settled with Glover and Glover and Associates, P. A., and they were voluntarily dismissed. Also, a motion to sever filed by Dr. Diaz, the anesthesiologist who allegedly deviated from the standard of care in the administration of anesthesia to Margarita Pinillos during the cesarean section, was granted.

      . The record does not reflect the source of this erroneous instruction.

      . Courts which have found abolition of the collateral source rule unconstitutional have used tests other than the reasonable relationship test. In Arneson v. Olson, 270 N.W.2d 125, 133 (N.D.1978), the court used a test requiring a “close correspondence between statutory classification and legislative goals,” a test it distinguished from the reasonable relationship standard and the strict scrutiny standard. In Graley v. Satayatham, 343 N.E.2d 832, 836 (C.P. Cuyahoga County 1976), the court struck down the Ohio statute abolishing the collateral source rule in medical malpractice cases because no showing of a “compelling governmental interest" was made.

      . Section 768.50 reads in pertinent part:
      (1) In any action for damages for personal injury or wrongful death, whether in tort or in contract, arising out of the rendition of professional services by a health care provider in which liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts paid to the claimant from all collateral sources which are available to him; however, there shall be no reduction for collateral sources for which a subrogation right exists.. ..
      (2) For purposes of this section:
      (a) “Collateral sources” means any payments made to the claimant, or on his behalf, by or pursuant to:
      1. The United States Social Security Act; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits.
      2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others.
      3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
      4. Any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.

      (4) Unless otherwise expressly provided by law, no insurer or any other party providing collateral source benefits as defined in subsection (2) shall be entitled to recover the amounts of any such benefits from the defendant or any other person or entity, and no right of subrogation or assignment of rights of recovery shall exist. All policies of insurance providing benefits described in this section shall be construed in accordance with this section after the effective date of this act.

      . The third case to strike down abrogation of the collateral source rule was Graley v. Satayatham, 74 Ohio Op.2d 316, 343 N.E.2d 832 (C.P.1976), but this case applied the inappropriate standard of “compelling governmental interest.” Three cases have upheld similar statutes against equal protection challenges, all applying a reasonable relationship standard. Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980); Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977). Rudolph relied upon and followed Eas-tin. Prendergast did not directly address the issue of abrogation of the collateral source rule, but upheld such an abrogation by implication when it upheld the entire Nebraska medical liability act.

      . Gunther, The Supreme Court, 1971 Term— Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 20-24 (1972).

      .One commentator in this state has claimed that the “crisis” was a creation of insurance interests, and that no actual threat of breakdown in health services delivery ever existed. Cunningham & Lane, Malpractice—The illusory Crisis, 54 Fla.Bar J. 114 (1980).

        . Carter v. Sparkman, 335 So.2d 802 (Fla.1976), is also today of little practical importance after our decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980), which diminished the stature of Carter quite considerably.

      .Cunningham & Lane, supra note 4.


author: PER CURIAM. ALDERMAN, Justice,

text:
    Daniel Morris THOMAS, Appellant, v. STATE of Florida, Respondent.
    No. 51927.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Oct. 2, 1981.

      Larry Mark Polsky, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Appellant, Daniel Morris Thomas, was convicted of seven felony charges based upon a single, although somewhat extended, criminal episode. One of the convictions is for murder in the first degree, for which crime the trial court sentenced appellant to death. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.

Appellant presents six points on appeal. We find that two of these points — the limitation on the number of peremptory challenges and the trial court’s refusal to excuse for cause a juror who admittedly could not follow the statutory capital sentencing requirements — require reversal of the convictions and a new trial.

The evidence, in brief, showed that appellant and another man broke into a house near DeLand while the occupants were out. Upon the return of the family, the two men shot and killed the husband, kidnapped and raped the wife, finally binding her wrists and ankles and throwing her into the St. Johns River from a bridge. Fortunately, the wife, although seriously injured, survived and testified at the highly publicized trial.

At a pretrial conference on May 18, 1977, the record indicates that defense counsel and the state stipulated to a total of sixty-six peremptory challenges for each side, which was a figure suggested by the state as the required number under the rules of criminal procedure. As a result of this stipulation, the appellant agreed not to move for severance of the consolidated offenses. The total number of peremptory challenges agreed to represented ten challenges for the capital felony and for each life felony and six for a second-degree felony. This number is not legally required by Florida Rule of Criminal Procedure 3.350, which provides that if the indictment contains two or more counts, the defendant is allowed the number of challenges permissible in a single case “but in the interest of justice the judge may use his judicial discretion ... to grant additional challenges . . . . ” See Johnson v. State, 222 So.2d 191 (Fla.1969). However, the stipulation was accepted by the then-presiding judge. The transcript of the pretrial conference shows the following exchange:

MR. POLSKY [defense attorney]: Very good, Your Honor.
Next, Your Honor, we’d bring up the matter of peremptory challenges for this trial.
I believe, Your Honor, that this cause would require, and the notoriety of this case, which Mr. Bevis himself characterizes as perhaps the most notorious ease in Volusia County history, and the pre-trial publicity, the magnitude of the pre-trial publicity, would require a greater than statutorily warranted amount of peremptory challenges in this case, Your Honor, and I would ask on behalf of the defendant, Daniel Thomas, that the defense be allowed 50 peremptory challenges.
THE COURT: How many?
MR. POLSKY: 50, Your Honor.
MR. BEVIS: Your Honor, if the cases are consolidated for trial, which it was earlier stipulated informally that they would be, by rule the defendant would have 66.
MR. POLSKY: I don’t believe — well, of course, 66 would be agreeable to the defense, Your Honor.
MR. BEVIS: There are five counts of life felony in 76-652 and one second degree felony. That would be ten for each felony punishable by life and six for the second degree, that would be 56, plus ten for the capital felony in the Indictment in 76-494, would be 66, and, of course, a like number would be for the State under the rule, Your Honor. So I think that should be certainly sufficient.
THE COURT: More than sufficient.
MR. POLSKY: Your Honor, both the defense and the State has 66 peremptory challenges apiece for the cases as they are consolidated in toto?
THE COURT: If your stipulation is still binding, then it will be 66.
MR. POLSKY: The stipulation is still binding.
MR. BEVIS: I have it prepared if you want to sign it with the Judge’s order right now.
MR. POLSKY: Your Honor, I am signing the stipulation to consolidate.
THE COURT: All right, sir.
MR. BEVIS: Your Honor, it contains an order down below for the Court’s consideration.
THE COURT: Fine. Thank you, gentlemen. That will solve a few time problems.

Transcript of Proceedings, Record on Appeal, vol. III, at 8-10 (emphasis ours).

At trial a different judge presided instead of the judge who had presided at the pre-trial conference. When the jury venire had been sworn and the selection of the jury was about to begin, the following exchange took place:

THE COURT: It has occurred to the Court that in a chamber’s conference the number of challenges was discussed, but we did not have it of record. As these are consolidated cases, the Court will allow ten for the capital offense and six for the multi-count information, for a total of sixteen challenges to both the State and the defendant.
MR. POLSKY: Your Honor, at this time I have a move for a mistrial or in the alternative, for a continuation, based upon the fact that at the pretrial conference at this cause on Wednesday, May 18th, 1977 at 1:30, before Judge Durden, I asked for fifty peremptory challenges due to the extensive pretrial publicity of this case and due to the fact that the Judge denied my motion for change of venue. At that time Mr. Bevis, State Attorney, stated that he believed that sixty-six was the correct number of peremptory challenges and Judge Durden said that sixty-six would be the amount of peremptory challenges I would have. This fact was later reiterated because I wanted it made clear by Judge Durden, for the record at the pretrial that I would have sixty-six peremptory challenges, and he so agreed.
In any event, due to the extensive pretrial publicity of this cause I believe sixteen is a highly unfair number of peremptory challenges for me to have and especially since venue change has been denied by Judge Durden.
THE COURT: Mr. Bevis?
MR. BEVIS: Nothing further to offer, Your Honor.
THE COURT: All right, we will stand at sixteen, unless something should arise through the course of the trial, but in a review of the record and file therein there is no court order to this effect and I am now ordering the sixteen.

Transcript of Proceedings, Record on Appeal, vol. V, at 12-13.

Sixteen peremptory challenges would have been proper if the state had not concluded that sixty-six was the correct number and stipulated to that number; the record indicates the appellant would have been satisfied with fifty. Moreover, the record is also clear that appellant stipulated to the consolidation of cases in return for the stipulated sixty-six challenges. It is irrelevant whether appellant would have succeeded in any attempt to oppose consolidation of cases. Under these circumstances, where the state induces a waiver of appellant’s right to oppose consolidation by agreeing to a specific number of additional peremptory challenges, the subsequent reduction of the number of challenges on this record was reversible error and clearly prejudicial.

The record establishes without question that the limitation of sixteen peremptory challenges actually prejudiced appellant, since he was unable to peremptorily challenge venireman Lionel Roberts, who was seated on the jury and became its foreman. Appellant moved four times to excuse Roberts for cause, and while three of the attempts stem from exchanges that merely show Roberts as a likely target for a peremptory challenge, the following exchange reveals error in not excusing for cause:

VOIR DIRE EXAMINATION
MR. POLSKY: Mr. Roberts?
PROSPECTIVE JUROR TWO: Yes.
MR. POLSKY: If the guilt of Daniel Thomas was proved to you beyond and to the exclusion of every reasonable doubt would you then feel it incumbent upon yourself to bring back a verdict calling for the death penalty?
PROSPECTIVE JUROR TWO: Yes.
MR. POLSKY: Could you, in any event, recommend mercy then?
PROSPECTIVE JUROR TWO: Not if I thought it was done, in my heart, that he was guilty of murder, I would say no.
MR. POLSKY: You could not recommend mercy; is that correct?
PROSPECTIVE JUROR TWO: No, sir.
MR. POLSKY: In any event?
PROSPECTIVE JUROR TWO: No, sir.
MR. POLSKY: I would ask that Mr. Roberts be excused for cause, Your Hon- or.
THE COURT: Mr. Bevis?
MR. BEVIS: A couple of voir dire questions, Your Honor.
THE COURT: Yes, sir.
THEREUPON
VOIR DIRE EXAMINATION
MR. BEVIS: Mr. Roberts, did you hear the Judge when he was explaining about the two parts of a murder trial?
PROSPECTIVE JUROR TWO: Not too well because I was sitting at the furthest end on the other side of the room.
MR. BEVIS: Well, basically in a murder trial which is a capital crime under the laws of this State there are two separate proceedings, one to determine guilt or innocence and then, in the event of a conviction, another separate hearing or trial to determine whether or not the jury should recommend mercy or the death penalty.
PROSPECTIVE JUROR TWO: Yes.
MR. BEVIS: If the jury recommends mercy then the defendant would be sentenced to life imprisonment.
The Judge was explaining to you that he will instruct you on several of what we call in the law, aggravating circumstances, that you may consider and several mitigating circumstances that you may consider in arriving at your conclusions as to whether or not the death penalty should be imposed.
Now, are you telling us here today that you would not consider this instruction of the law, that you would feel incumbent to impose the death penalty or would you follow the law and consider each of these criteria and make up your mind based on the evidence and the law?
PROSPECTIVE JUROR TWO: I would make up my mind based on the evidence of the law, but I still say if a person was found guilty I wouldn’t recommend any mercy.
MR. BEVIS: Under any circumstances?
PROSPECTIVE JUROR TWO: No, sir.
MR. BEVIS: The state objects to the challenge for cause.
THE COURT: I do not believe this is for cause. You may proceed further.
MR. POLSKY: Your Honor, I think I should make a legal argument for the sake of the record.
If the State can challenge a juror who cannot, under any circumstances—
THE COURT: I have ruled. I don’t need any argument.
I overruled the challenge for cause.
MR. POLSKY: Excuse me, Your Hon- or?
THE COURT: I don’t need any argument. I want you to continue your voir dire of the jury panel.
MR. POLSKY: Your Honor, I feel incumbent to make some type of record.
THE COURT: I don’t care to hear it, sir. I have ruled. The challenge for cause is not for cause.

Transcript of Proceedings, vol. VI, at 333-37.

We find that the trial court erred in denying the challenge for cause to juror Roberts, who had admitted in voir dire that he could not “recommend any mercy” in any required sentencing phase under any circumstances. Juror Roberts should have been excused because of a fundamental violation — the presence of bias against the defendant in the sentencing aspect of a capital case. This bias violated the express requirements in the sixth amendment to the United States Constitution and in article I, section 16, of the Florida Constitution, that an accused be tried by “an impartial jury.”

Federal courts have considered this precise question at least twice, and on both occasions have found that jurors with predispositions concerning sentencing in capital eases should have been excused. See Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), reh. denied, 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317 (1920); Crawford v. Bounds, 395 F.2d 297, 304 (4th Cir. 1968), cert. denied, 397 U.S. 936, 90 S.Ct. 941, 25 L.Ed.2d 117 (1970).

Although the jury’s role in the sentencing phase is an advisory one, it is significant to a defendant since a trial court may not impose the death penalty following a jury’s advisory sentence of life imprisonment unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). We have previously held that it was error for a trial judge to refuse to allow defense counsel to propound any voir dire inquiry as to the issue of mercy, since “[s]uch inquiry . . . could conceivably be determinative of whether the defense should challenge a juror — either for cause or peremptorily.” Poole v. State, 194 So.2d 903, 905 (Fla.1967) (emphasis supplied). The admitted refusal of juror Roberts to weigh mitigating circumstances in the sentencing phase presents a clear case in which a challenge for cause should have been granted.

Having determined that the trial court erred in not excusing juror Roberts, we reach the difficult question of whether this error permeates the convictions themselves, thus requiring a new trial, or affects simply the capital sentencing phase.

We conclude on this record that the combination of the two errors — (1) limiting appellant’s peremptory challenges to sixteen after entry of a stipulation with the state for sixty-six, and (2) refusing to excuse juror Roberts for cause — also prejudiced appellant in the trial phase. These two errors resulted in appellant’s multiple efforts to have juror Roberts excused, which in turn created a great risk of animosity against the appellant by juror Roberts and possibly by his fellow jurors. For these reasons we determine that the convictions must be reversed, and this cause is remanded for a new trial.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion, in which BOYD, J., concurs.

ADKINS, J., dissents.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree that the trial court erred in not excusing juror Roberts for cause. A defendant in a capital case is entitled to twelve impartial jurors, none of whom is unequivocably predisposed to returning a sentence of death as juror Roberts was in the present case. As the Supreme Court of the United States said in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968): “Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution.” 391 U.S. at 523, 88 S.Ct. at 1778.

The trial court’s failure to excuse juror Roberts for cause, however, requires only that the death sentence be vacated and the cause be remanded for a new sentencing hearing before a new jury. Juror Roberts made it plain that he would follow the law in deciding the guilt or innocence of the defendant. In Witherspoon, the Supreme Court stated that it was not announcing a per se rule requiring reversal of a conviction where the jury was organized to return a verdict of death because it could not conclude that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. It does not appear from the record in this case that the defendant’s multiple efforts to have juror Roberts excused created any animosity against him on the part of juror Roberts and the other members of the jury or in any way affected their verdict on the issue of guilt or innocence.

Accordingly, I concur with the majority’s reversal of the death sentence, but I dissent from the majority’s reversal of the defendant’s conviction. I would affirm the conviction, vacate the death sentence, and remand for a new sentencing hearing before a newly impaneled jury.

BOYD, J., concurs.


author:
PER CURIAM.
      BOYD, Justice,

text:
    Durham Eldon STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 55054.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Sept. 30, 1981.

      John F. Johnson, Jr., Bushnell, for appellant.
    Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

At the jury trial of Durham Eldon Stokes, overwhelming evidence was adduced to show that he participated fully, with other members of the Outlaws Motorcycle Gang, in the brutal and senseless, beating murders of two members of a rival motorcycle gang. For his role, Stokes was convicted of two first degree murders and, despite a jury recommendation of life imprisonment, was sentenced to death.

Stokes has challenged his convictions on dual grounds: a failure to prove premeditation, and the use at trial of an involuntary confession. Neither assertion is sustained by the record, however. As to the first, there was evidence beyond a reasonable doubt that the murders were premeditated, see, e. g., Tedder v. State, 322 So.2d 908, 910 (Fla.1975), and that they were committed in the course of a robbery and kidnapping, see, e. g., Knight v. State, 338 So.2d 201 (Fla.1976).

As to the second, the confession used at Stokes’ trial was the product of a knowing and voluntary waiver. There was no atmosphere of coercion surrounding his confession and no promises were expressly or implicitly offered. As Stokes’ counsel stated at oral argument, Stokes seems to have “jumped at a chance to talk” to police officers when the opportunity first arose. The fact that Stokes may have been motivated to confess because of his concern for the welfare of his family in the face of reprisal threats by the Outlaws Motorcycle Gang is an insufficient basis on which to predicate a motion to suppress. See Halliwell v. State, 323 So.2d 557 (Fla.1975); Coleman v. State, 245 So.2d 642 (Fla.1st DCA 1971). The record clearly discloses that Stokes had received proper Miranda warnings, and it sustains the state’s assertion that his waiver of his privilege against self incrimination and his right to counsel was both knowing and voluntary.

The sentence of death imposed by the trial judge overrode the jury’s recommendation of life imprisonment. Under the standard of Tedder v. State, supra, the trial judge acted improperly. Despite the heinous nature of these crimes and the fact that they occurred in the course of kidnappings—factors which would aggravate a sentence under sections 921.141(5)(d) and (h), Florida Statutes—mitigation was proved in the form of Stokes’ lack of any significant history of prior criminal activity. In addition, the jury apparently considered the fact that the dominant person in the Outlaws had received immunity from prosecution for his role in these deaths. Under these circumstances, the jury’s recommendation was reasonable.

The convictions are affirmed, but the sentences of death are vacated with instructions to resentence Stokes to life imprisonment without parole for twenty-five years on each count.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

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

ADKINS, J., concurs as to conviction, and dissents as to sentence.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion in affirming the trial court’s convictions of two counts of murder in the first degree, but I dissent to that portion of the opinion reducing punishment to life imprisonment for each conviction. Appellant’s conduct in executing two members of a competing motorcycle gang for purposes of revenge was a cruel, senseless destruction of human life and the only appropriate penalty under Florida law is death.

       “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” 322 So.2d 908, 910.