text:
    Beauford WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 54292.
    Supreme Court of Florida.
    March 20, 1981.
    Rehearing Denied Sept. 29, 1981.

      Leonard Frishman, Sp. Asst. Public Defender, Coral Gables, David Goodhart and Thomas G. Murray, Sp. Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz and Calvin Fox, Asst. Attys. Gen., Miami, for appellee.
   PER CURIAM.

Defendant Beauford White was convicted of six counts of first-degree murder, two counts of attempted first-degree murder, and four counts of robbery. The trial judge imposed the death sentence, thus vesting appellate jurisdiction in this Court pursuant to article V, section 3(b)(1), Florida Constitution.

The essential facts of this case are not in dispute. On July 27, 1977, at approximately 8:15 p. m., an adult black male, posing as an employee of the power company, requested permission from Margaret Wooden to enter her home and check the electrical system. After being allowed in and checking outlets in several rooms, the intruder drew a gun and proceeded to tie Ms. Wooden’s hands behind her back and blindfold her. The intruder, who identified himself to her as “Lucky” and was later identified as John Ferguson, asked Ms. Wooden for drugs, money and jewelry and began searching the premises. Ferguson’s cocon-spirators, defendant and Marvin Francois, soon entered the house. Both of these men were also armed and all three donned masks covering their faces from the nose down. The three ransacked the house looking for valuables until about an hour later when the owner of the house, Livingston Stocker, and five of his friends arrived. Upon their arrival, Stocker and his friends were forced to lie facedown on the floor while their hands were tied behind their backs. A short time later, Ms. Wooden’s boyfriend arrived at the house and he too was tied up. At gunpoint the victims were asked for money and drugs, and one by one were searched. At some point during the ordeal the mask of one of the intruders fell from his face and a discussion ensued as to the need for killing the victims. Following this discussion, Ms. Wooden and her boyfriend were moved back to the bedroom while the other six victims were held captive in the living room. Ferguson then shot Ms. Wooden and her boyfriend in the back of the head while Francois systematically shot the other six victims in the head. Miraculously, Ms. Wooden and a Johnnie H. Hall survived and testified at the trial of defendant. At trial, Hall was able to identify the defendant as one of the intruders, but both Hall and Ms. Wooden identified the other two intruders as the persons who did the actual shooting.

A fourth participant in these crimes, Adolphus Archie, testified on behalf of the state in return for being allowed to plead guilty to reduced charges. Archie, who served as the “wheelman” and never entered the house, identified the defendant as a participant in the criminal scheme. Archie testified that he and defendant had been requested to participate in the “ripoff of a dope man” but were instead duped into participating in what he said was a planned contract murder of Stocker and perhaps other persons for drug-related reasons. Following the slayings, Archie testified that he met the other three at defendant’s motel room where the proceeds of the robberies were divided among them. He testified that the defendant was upset and refused to participate in the disposal of the weapons.

The defendant was arrested on September 2, 1977 and confessed to his participation in the criminal episode. His detailed account of what had occurred was consistent with the trial testimony of the surviving victims. The defendant was also linked to the scene of the crimes by a single partial fingerprint which was lifted from the dust cover of a stereo set in the house. This fingerprint was identified by police as the fingerprint of the defendant.

Prior to trial the defendant moved to suppress his confession alleging that it was involuntarily induced by physical and mental abuse, threats and false promises of immunity. The trial court conducted a hearing into the matter and found that the defendant had made the statement voluntarily and with a full understanding of his constitutional rights. The case proceeded to trial, with‘the defendant being tried separately upon his motion for severance of trial. The jury returned guilty verdicts on all counts for first-degree murder, attempted first-degree murder and robbery. At the penalty phase of trial, the only mitigating evidence presented on behalf of defendant was the testimony of his mother who noted that her son suffered from epilepsy and ulcers. The twelve-member jury unanimously recommended that a sentence of life imprisonment be imposed. The court ordered a presentence investigation and upon receipt of the report sentenced the defendant to the death penalty.

The defendant raises nine points on his appeal. The issues have been well briefed by the parties and carefully considered by this Court. Only four of the points raised, however, warrant discussion in this opinion. The other points have been considered and are rejected as being without merit.

I

In Point V of his brief the defendant asserts that the trial court committed reversible error in failing to suppress witness Hall’s surprise identification of defendant at trial and in denying his motion for a mistrial. Counsel for defendant concedes that the state did not know that Hall would identify the defendant at trial but argues that had the state anticipated that an in-court identification would be possible at the last minute, a proffer outside the presence of the jury should have been made to provide defendant an opportunity to object and request a Richardson inquiry.

Through discovery, counsel for defendant had learned that Hall had not been able to make a pretrial identification of defendant. Hall said at a pretrial deposition, however, that “If I see him, it’s possible in the flesh I will be able to identify him.” When asked at trial whether he recognized anyone in the courtroom who was in the house at the time the shootings took place, Hall pointed to the defendant. Counsel for defendant objected and the jury was dismissed while a hearing was conducted to determine whether the state violated the rules of discovery. At this hearing testimony was received from Hall and Detective Robert Derringer, lead investigator of the case. Hall reiterated the testimony given at his deposition that he might be able to identify defendant if he saw him in person. Detective Derringer testified that he had shown Hall hundreds of photographs but, to the best of his knowledge, had never shown him any photographs of the defendant, who did not become a suspect in the murders until shortly before his arrest. At the conclusion of the hearing the trial court concluded that there had been no discovery violation and postponed further examination of Hall until counsel for defendant had an opportunity to examine his deposition and prepare for cross-examination.

We have reviewed the record and conclude -there is no merit to the argument that the state violated the rules of discovery. The state had not informed the defendant prior to trial that Hall would be unable to make an in-court identification of him, only that no pretrial identification had been made. The defendant was as privy to the possibility of an in-court identification as the state. The defendant had an opportunity to object when the prosecuting attorney asked Hall whether he recognized anyone in the courtroom, and immediately upon objection the trial court properly conducted a full Richardson inquiry into the circumstances surrounding the alleged discovery violation.

In connection with Point V, the defendant also argues that Hall’s in-court identification of defendant was, in essence, incompetent because he did not have an adequate opportunity to observe the defendant during the night of the slayings and was taking medication at the time of trial. The defendant points out that the intruders wore masks partially concealing their faces and that Hall admitted having taken drugs and consumed alcohol the night the crimes were committed. While these facts may go to the weight or credibility of Hall’s testimony, they do not, in our opinion, render Hall’s testimony so tenuous and speculative as to be incompetent.

Finally, the defendant’s argument in Point V focuses on the theory that Hall’s in-court identification of defendant was somehow tainted by pretrial events. Defendant cites Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and other United States Supreme Court and Florida decisions for the proposition that identification testimony must be suppressed unless the state can demonstrate that the in-court identification of the defendant rests upon an independent and untainted foundation. These cases, however, deal with situations where unconstitutionally suggestive pretrial identification procedures taint the in-court identification. In such situations due process requires the state to show that the witness’s in-eourt identification rests on his independent observation of the defendant at the scene of the crime rather than on the impermissibly suggestive pretrial procedures. But in the situation here there was no pretrial confrontation which might have impermissibly tainted his .in-court identification. Detective Derringer testified that he had never shown any photographs of the defendant to Hall and the defendant had refused to participate in a pretrial lineup upon the advice of his counsel. The line of cases cited by the defendant are, therefore, inapposite. We conclude that Point V of the defendant’s argument on appeal is without merit.

II

In Point VIII, the defendant contends that the Florida death penalty statute violates the eighth amendment prohibition against cruel and unusual punishment under the United States Constitution in that it permits the infliction of death upon a defendant who lacks a purpose to cause the death of his victim. Defendant cites as authority Justice White’s dissenting opinion in Lockett v. Ohio, 438 U.S. 586, 625, 98 S.Ct. 2954, 2973, 57 L.Ed.2d 973 (1978), wherein Justice White states: “The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated.” In a related argument, the defendant also contends that Florida’s death penalty statute violates the fourteenth amendment guarantee of equal protection of the laws because of unequal treatment of a person convicted of first-degree murder caused during the commission of certain dangerous felonies. In such a situation the individual enters the sentencing hearing with one aggravating circumstance already in existence, see section 921.-141(5)(d), Florida Statutes (1977), while in contrast the individual who has committed murder with a premeditated design to take the life of his victim has no such aggravating circumstance held against him. Thus, continues defendant’s argument, the state is irrationally required to prove the existence of at least one or more statutory aggravating circumstances to obtain a death sentence where the murder is committed with premeditation but not where it is committed without design during the commission of certain felonies. See State v. Dixon, 283 So.2d 1 (Fla.1973).

First, we note that we have already decided the reasonableness of taking into account as an aggravating circumstance the fact that the murder was committed during the commission of another serious felony. See State v. Dixon. Second, the defendant’s argument overlooks the plurality opinion in Lockett v. Ohio, which states that the Constitution neither forbids a state from enacting felony-murder statutes nor from making aiders and abettors equally responsible with principals. Id. at 602, 98 S.Ct. at 2963. In response to Justice White’s argument that a defendant must possess an intent to cause the death of the victim to impose the death penalty, Justice Rehnquist in a separate opinion stated that centuries of common law doctrine establishing felony murder and the relationship between aiders and abettors would have to be rejected to adopt this view. Id. at 635, 98 S.Ct. at 2976. A majority of the United States Supreme Court obviously has not adopted the view that the death penalty may not constitutionally be imposed under the circumstances existing in the instant case. To the contrary, in striking down Ohio’s death penalty statute because it limited consideration of relevant mitigating circumstances to those statutorily listed, the Court specifically distinguished Florida’s death penalty statute by noting that it permitted the sentencer to consider any aspect of the defendant’s character and record or any circumstance of his offense as an independently mitigating factor. Id. at 606-07, 98 S.Ct. at 2965-66. Thus, at least implicitly, the Court recognized the continuing vitality of Proffitt v. State, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), upholding the constitutionality of Florida’s death statute, in the context of a claim which was similar to the eighth amendment claim raised by the defendant in the instant case.

Furthermore, the fact that the mitigating circumstances listed in section 921.141(6), Florida Statutes (1977), are not exclusive removes much of the force of the defendant’s equal protection argument. A defendant remains free to argue as a mitigating circumstance that he did not intend to kill the victim or that he did not act as the triggerman. The mitigating factors listed in the death statute merely indicate the principal factors to be considered. Peek v. State, 395 So.2d 492 (Fla.1980); Songer v. State, 365 So.2d 696 (Fla.1978). Moreover, the mere existence of this aggravating circumstance does not mandate imposition of the death sentence. This Court has repeatedly emphasized that the death penalty statute does not contemplate a mere tabulation of x number of aggravating and y number of mitigating circumstances, but rather contemplates a reasoned weighing of those circumstances to determine whether the death sentence is appropriate. Hargrave v. State, 366 So.2d 1 (Fla.1978); State v. Dixon, supra.

III

The defendant asserts in Point VII of his brief that the evidence presented at trial was insufficient as a matter of law to sustain his convictions. We have carefully reviewed the record and hold that there is ample evidence to sustain defendant’s convictions.

IV

We now turn to the issues raised by defendant with respect to the imposition of the death penalty. We will first review the trial court’s findings on the existence of the aggravating and mitigating circumstances, and then determine the propriety of the trial court’s death sentence following the jury recommendation of life.

The trial judge found that all eight of the aggravating circumstances listed in section 921.141(5)(a)-(h), Florida Statutes (1977), applied to the defendant. The trial judge found that none of the mitigating circumstances listed in section 921.141(6)(a)-(g) applied and, in imposing the death sentence, concluded that no mitigating circumstances existed which could possibly outweigh the aggravating circumstances. The defendant contends that the trial judge erroneously applied certain of the aggravating circumstances to the facts of this case and failed to consider certain mitigating circumstances.

First, the defendant argues that he was not under a “sentence of imprisonment” at the time the capital felonies were committed within the meaning of section 921.141(5)(a), Florida Statutes (1977), because they were not committed while he was incarcerated or after he had escaped from incarceration. The defendant was, however, on parole at the time the crimes were committed. Parole does not terminate a sentence of imprisonment but rather is a continuation of the sentence. Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978); Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293 (1943). Therefore, we find that the trial judge properly applied this aggravating circumstance.

Second, the trial judge properly found that the defendant had been previously convicted of a felony involving the use or threat of violence to the person. § 921.141(5)(b), Fla.Stat. (1977) (assault with intent to commit rape). We reject the defendant’s contention that the trail judge relied on nonviolent drug-related convictions in making this finding.

Third, the defendant asserts that the trial judge improperly injected considerations not actually present in deciding that the defendant knowingly created a great risk of death to many persons under section 921.-141(5)(c). In finding that this aggravating circumstance was applicable the trial judge said:

What would have happened had additional neighbors, delivery people or other friends appeared at the home for a visit can only be the subject of conjecture. Suffice it to say, that a total of six people were killed and two seriously wounded during the perpetration of this robbery.

We agree with defendant’s assertion that a person may not be condemned for what might have occurred. The attempt to predict future conduct cannot be used as a basis to sustain an aggravating circumstance. Huckaby v. State, 343 So.2d 29 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977). Furthermore, we disagree with the trial court’s suggestion that this aggravating circumstance may be sustained based on what in fact occurred — the murder of six individuals. The murders were effected by a gunshot blast to the head. In each case the gun was discharged at close range and involved relatively little risk of injury to other persons in the room. There were six discrete homicides, each performed in an execution fashion. We therefore hold that subsection (5)(c) was improperly applied as an aggravating circumstance under the facts of this case. Cf. Lewis v. State, 377 So.2d 640 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979).

Fourth, the defendant concedes and we sustain the existence of the statutory aggravating circumstance that the capital felony was committed during the commission of a serious felony listed in section 921.141(5)(d), which in this case was a robbery. Nevertheless, we hold that this same circumstance cannot also constitute the basis for finding the existence of the aggravating circumstance listed in section 921.-141(5)(f) (capital felony committed for pecuniary gain), as was done by the trial judge here. In Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), we disapproved such a doubling up of aggravating circumstances based on the same aspect of a defendant’s criminal conduct. See also Hargrave v. State, supra.

Next, the defendant argues that the trial judge improperly applied section 921.141(5)(e) (capital felony committed to avoid or prevent a lawful arrest or effect an escape from custody) to him because he could not have been attempting to avoid arrest when he was not aware that his cohorts had planned all along to kill the victims. The trial judge in his findings recognized that the defendant was opposed to the killings but also pointed out that he, nonetheless, stood by armed and allowed the shootings to take place. In Riley v. State, 366 So.2d 19 (Fla.1978), we held that although this aggravating circumstance was concerned primarily with the killing of law enforcement officers, it could validly be applied when the victim was not a law enforcement officer if the dominant motive for murder was the elimination of witnesses. See also Menendez v. State, 368 So.2d 1278 (Fla.1979). Here there was evidence presented that a “contract” was placed for the murder of at least one of the victims. However, as noted by the trial court in its sentencing order, the presence of as many as seven of the victims was not anticipated. After the mask of one of the intruders fell from his face the three intruders discussed the need for killing the victims. Although the defendant was opposed to the killings, he had fully participated in the robberies and did nothing to prevent or otherwise disassociate himself from the murders which then took place. Following the murders, the defendant voluntarily returned to his motel room with his co-felons and accepted his share of the proceeds taken during the robberies. There one of the intruders informed the wheelman Archie that it was “the St. Valentine’s Day Massacre,” but told him not to worry because “not one of them [the victims] should live.” We conclude that there is sufficient evidence to sustain the trial judge’s finding that the capital felonies were committed in an effort to avoid arrest by eliminating witnesses to the crime. Again, however, we disapprove of the trial judge’s use of these same incidents as a basis for also finding that the capital felonies were committed for the purpose of hindering the lawful exercise or enforcement of the criminal laws of the state. See § 921.141(5)(g). As noted earlier, this doubling-up of aggravating circumstances violates the rule in Provence and we, therefore, hold that this aggravating factor must be stricken.

Finally, the defendant claims that the capital felonies were not “especially heinous, atrocious or cruel.” The defendant relies on 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), where a police officer was killed when two shots were fired into his head. In Cooper, we reiterated the standard set forth in State v. Dixon, supra, in applying this aggravating circumstance. There we stated that while all murders are heinous, this aggravating factor contemplates the conscienceless, pitiless or unnecessarily torturous crime which is accompanied by such additional acts as to set it apart from the norm of capital felonies. In Cooper the defendant shot his victim immediately upon confronting him. The victim died instantly and painlessly, without any additional acts which made the killing heinous within the meaning of the statute. See also Riley v. State, supra. In contrast, the victims in this case were required to submit to a protracted ordeal during which time they undoubtedly agonized over the prospect of being murdered. The trial judge stated with reference to this aggravating circumstance:

Miss, [sic] Wooden was the first of the victims to be tied, gagged and blindfolded and she, for many hours was subjected to the taunts of the conspir[a]tors. During this ordeal she had to remain across the bed, laid on the floor or led around the house so constrained. She was terrified that any moment her baby might have been brought home and her boy friend might return from work. She was required to listen while Mr. Stocker and his five friends were confronted, tied, gagged and blindfolded. She eventually faced the frustration of hearing her boy friend arrive home and knew he was being tied and gagged.
Ultimately, all eight victims were in one bedroom during which time this defendant continued to guard them and discuss with the other conspir[a]tors the searching of the house and captives, and the ultimate disposition of the bodies. The survivors testified as to their increased fright and anxiety when Miss, [sic] Wooden and her boy friend were placed in one room and Mr. Stocker and his five friends remained in Stocker’s bedroom. Cold bloodedly, all eight victims were shot, six of whom received fatal wounds. Victim Stocker was heard to have cried to God for his assistance in stopping what he anticipated was going to take place. His prayers were interrupted by a shotgun blast to the back of his head. While each of the six men in Stocker’s room were being shot, Miss, [sic] Wooden and her boyfriend were also being shot by another of the cocon-spir[a]tors in another room. Each of the victims was dispatched by a shot from either a shotgun or a pistol which was deliberately and callously discharged into the back of his head. Miraculously, one victim in each of the two groups survived to testify as to the ordeal. While these executions were carried out by individuals other than the instant defendant he, nevertheless, was present and did nothing whatsoever to stop the assaults, harass-ments and shootings.

We believe that the events surrounding the slayings in this case readily distinguish it from the slaying which occurred in Cooper and hold that the evidence sustains the trial judge’s finding that these capital felonies were especially heinous, atrocious or cruel. In reaching our conclusion we note that we are also influenced by the magnitude of the criminal conduct. The calculated slaughter of six individuals and attempted slaughter of two others constitutes an atrocity which sets the capital felonies apart from the “norm” of capital felonies. Even one of the co-felons characterized the episode as “the St. Valentine’s Day Massacre.”

Next, the defendant maintains that the trial judge overlooked the mitigating circumstances that “[t]he defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor” (section 921.141(6)(d)) and that “[t]he defendant acted under extreme duress or under the substantial domination of another person” (section 921.141(6)(e)). We find absolutely no evidence to support the assertion that defendant acted under coercion or the domination of another. We also do not find that the defendant played a minor role as an accomplice. He fully participated in the subduing and intimidation of the victims, in ransacking the house looking for valuables and stood by while the victims were shot one by one. It was his motel room which was used as a place to plan the crimes and to divide the loot after the crimes were completed. The trial judge properly rejected the applicability of these two mitigating circumstances.

In conclusion, we note that although three aggravating circumstances were improperly found to exist there were no mitigating circumstances. Therefore, a new sentencing trial is not mandated by our decision in Elledge v. State, 346 So.2d 998 (Fla.1977).

V

We next deal with the defendant’s argument that the trial judge imposed the death sentence after a jury recommendation of life imprisonment in violation of Tedder v. State, 322 So.2d 908 (Fla.1975). In Tedder we held that in order to sustain a sentence of death following a jury recommendation of life the facts suggesting a sentence of death must be so clear and convincing that virtually no reasonable person could differ.

In arriving at a conclusion contrary to the jury recommendation the trial judge noted that as a result of the presentence investigation and information presented at sentencing he was made aware of a number of factors which the jury did not have an opportunity to consider. Among these factors were the defendant’s prior conviction of a violent felony (attempted rape) and the fact he was still on parole at the time the offenses in this case were committed (aggravating circumstances (5)(a) and (5)(b) supra), which circumstances were not established before the jury but were established before the judge at the time he rendered sentence. The trial judge also found that the defense counsel’s vivid description to the jury on the effects of being electrocuted was calculated to influence a life sentence through emotional appeal. The court concluded that the death sentence was appropriate in light of the overwhelming aggravating circumstances which far outweighed any possible mitigating circumstances. After careful deliberation we conclude that the death sentence is warranted.

Although the advisory recommendation of the jury is to be accorded great weight, the ultimate decision on whether the death penalty should be imposed rests with the trial judge. Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978). Death is presumed to be the proper penalty when one or more aggravating circumstances are found unless they are outweighed by one or more mitigating circumstances. State v. Dixon, supra. In this case the trial court properly found five aggravating and no mitigating circumstances under the death statute. The only colorable mitigating circumstance was the nonstatu-tory consideration that the defendant was not the triggerman. We do not believe, however, that this factor alone outweighs the enormity of the aggravating facts, especially in light of the defendant’s full cooperation in the robberies and complete acquiescence in the cold-blooded systematic murder or attempted murder of eight individuals. We hold, therefore, that the trial judge imposed the death sentence consistently with Tedder. Cf. Dobbert v. State, 375 So.2d 1069 (Fla.1979); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Hoy v. State, supra; Sawyer v. State, 313 So.2d 680 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

Finally, the defendant urges this Court to overturn his death sentence based on our responsibility to review the cases to ensure that the death sentence is imposed consistently under similar circumstances. See State v. Dixon. The defendant focuses his argument, in particular, upon the fact that the wheelman, Archie, received only concurrent twenty-year sentences of imprisonment for his participation in the crimes. The defendant contends that his culpability is no greater than Archie’s and notes the fact that neither had acted as the trigger-man. The defendant refers us to Slater v. State, 316 So.2d 539 (Fla.1975), where we found it necessary to reduce the death sentence of an accomplice when the jury recommended life imprisonment and the trig-german, who was identified, had received a life sentence and the wheelman had received a sentence of five years imprisonment. In our recent decision in Malloy v. State, 382 So.2d 1190 (Fla.1979), we also found it necessary to reduce the death sentence of a defendant when his arguably equally culpable accomplices were permitted to plead guilty to lesser included offenses and there was conflicting evidence on who was the triggerman.

Our decisions in Slater and Malloy would perhaps warrant reversal of defendant’s death sentence if the two participants who did the actual shooting in this case received something less than a death sentence. However, this is not the case. We take judicial notice that the other two intruders, Francois and Ferguson, have both been sentenced to death. As to the disparate sentences imposed on Archie and the defendant, we find that they are justified under the circumstances. In contrast to the active role played by defendant throughout the robberies and murders, Archie served only as the wheelman whose role was limited to driving the defendant and the two other intruders to Stocker’s residence. He met with them again at the motel room after the entire episode was over. The defendant’s moral and legal culpability was, in our opinion, much greater than Archie’s. Hence, we cannot conclude based on our review of this case and other cases in which the death sentence was imposed, that the defendant has been treated differently upon substantially similar circumstances. We hold that the death sentence has been imposed on the defendant consistent with the equal administration of justice.

For the foregoing reasons, we affirm the conviction of the defendant on all counts as charged and affirm the imposition of the death sentence.

It is so ordered.

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

ADKINS, J., concurs in result only.

      . See Richardson v. State, 246 So.2d 771 (Fla.1971); Cumbie v. State, 345 So.2d 1061 (Fla.1977).

      . Thus this case is distinguishable from McClellan v. State, 359 So.2d 869 (Fla. 1st DCA 1978), which is relied on by defendant in support of his argument.

      . The defendant also asserts that the witness Hall had vision problems since 1955 as a result of an accident. Hall, however, testified that the accident did not affect his normal vision.

      . We note that Hall certainly had an extended opportunity to view the three intruders. A portion of Hall’s pretrial deposition was read at the Richardson inquiry hearing and Hall was quoted as saying with regard to the defendant that “all 1 did was look at him .... [f]or the whole time he was in the house.”

      . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Baxter v. State, 355 So.2d 1234 (Fla.2d DCA), cert. denied, 365 So.2d 709 (Fla.1978); Gibbs v. State, 344 So.2d 621 (Fla.3d DCA 1977); Hamilton v. State, 303 So.2d 656 (Fla.2d DCA 1974).

      . Subsequent to defendant’s trial, subsection (5)(i) has been added to the list of aggravating circumstances set forth in section 921.141, Florida Statutes (1979). Under this subsection it is an aggravating circumstance if:
      The capital felony was a homicide and was committed in a Cold, calculated, and premeditated manner without any pretense of moral or legal justification.

      . Indeed the death statute specifically lists as a mitigating circumstance the situation where the defendant played only a minor role as an accomplice in the commission of a capital felony. § 921.141(6)(d), Fla.Stat. (1977).

      . The trial court, however, specifically noted that it did not consider any information not known to defendant or his counsel. Thus we do not confront a possible Gardner violation. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Songer v. State, 365 So.2d 696 (Fla.1978).

      . Francois and Ferguson presently have appeals pending in this Court. Francois v. State, No. 54,461, and Ferguson v. State, No. 55,137.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles Dwight MESSER, Appellant, v. STATE of Florida, Appellee.
    No. 49780.
    Supreme Court of Florida.
    June 4, 1981.
    Rehearing Denied Oct. 1, 1981.

      Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal of a sentence of death imposed for the capital felony of murder in the first degree. This Court previously affirmed the conviction for first-degree murder and robbery, but vacated the sentence of death and remanded for a new sentencing proceeding before a jury. Messer v. State, 330 So.2d 137 (Fla.1976). A new jury was empaneled and a second sentencing proceeding was held. The trial court again sentenced appellant to death and this appeal followed.

On March 22, 1977, the Supreme Court of the United States decided Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), holding that due process is denied when the imposition of a sentence of death is based, even if only in part, on information which the defendant has no opportunity to deny or explain. Subsequently, on June 16, 1977, this Court entered an order in the instant case directing the sentencing judge to state whether he imposed the death sentence in consideration of any information not known to the appellant.

On September 26, 1977, the trial court filed a response. This Court’s consideration of the appeal then continued until April 26, 1979, when we issued an opinion announcing our decision to affirm the sentence of death. Messer v. State, No. 49780 (Fla., April 26, 1979) (opinion withdrawn). On motion of the appellant for rehearing, however, based on a discrepancy between the trial court’s response to our Gardner order and other documents of record, we withdrew the opinion of April 26, 1979, and, on November 8, 1979, remanded for a hearing on the question of a possible violation of the Gardner principle. Messer v. State, 384 So.2d 644 (Fla.1979).

The trial court held a hearing for the purpose of inquiring whether the sentence of death was imposed in consideration of any information not disclosed to appellant or any reports not furnished to him prior to sentencing. A lawyer from the office of the Public Defender for the First Judicial Circuit, which office had previously represented the appellant at trial, was present, but had moved to withdraw from representation due to conflict of interest. A lawyer from the office of the Public Defender for the Second Judicial Circuit, who was serving as appointed appellate counsel, notified of the hearing, but informed the court of his view that he was without authority to represent the appellant at trial-level proceedings or outside the second circuit. The judge then ruled that there was no need for appellant to be represented at the hearing and proceeded with the inquiry.

When the findings were received by this Court, we held that the proceeding was deficient in that appellant was entitled to be represented by counsel at the hearing. On June 5, 1980, we remanded for another hearing to inquire whether the sentence of death was imposed by a judge who considered information not disclosed or reports not furnished to appellant, and directed that his appellate counsel represent him at such hearing. Messer v. State, 384 So.2d at 645 (Fla.1980).

Another hearing on the question of a Gardner violation was held by the trial court, and we are in receipt of the transcript and the judge’s written findings. The findings are reported to us as follows:

THIS CAUSE is before this court on remand from the Supreme Court of the State of Florida, opinion filed June 5, 1980, 384 So.2d 644.
The purpose of remand was for this court to conduct a further hearing to determine whether the sentence of death of the appellant was imposed in consideration of any information not disclosed to the defendant or not furnished to him prior to sentencing.
At the hearing, appellant was personally present with counsel and the State of Florida was represented by the State Attorney’s Office of the First Judicial Circuit, all proceedings were duly reported. The trial judge in the case recused himself because he had been subpoened [sic] by appellant’s attorney as a material witness.
The hearing was heard by the undersigned circuit judge. The State of Florida called two witnesses, M. J. Livings, who is employed by the Florida Probation and Parole Office. He testified he had conducted a postsentence investigation on the defendant. The testimony reveals that he never furnished a copy of the postsentence investigation to the presiding judge and that such postsentence investigation was conducted after the first hearing but prior to the second sentencing hearing. That there were 5 copies, one went to the Executive Clemency Committee and he retained four copies; that he had never discussed the report with Judge Wells and he put a copy of the report in the file but it was not during any sentencing proceeding. He testified at the time of the original sentencing there was no presentence investigation or postsentenee investigation or reports. Honorable Clyde Wells, Circuit Judge, First Judicial Circuit, was called as a witness and testified that he sentenced the defendant on two occasions; that he did not order a presentence investigation and that he never saw any reports prior to sentencing or talked to any probation officer and he had no other information prior to sentencing. He further testified that the Supreme Court requested under State v. Gardner rule, if he had any other information at the first sentencing. He originally replied there was a presentence investigation, but the mandate had come to him in Walton County his residence and he had replied without checking and had made an erroneous statement that he had a presen-tence investigation when in fact he did not. He testified he had not had a pre-sentence investigation and he did not have the benefit of any other information; he never requested a presentence investigation because there was a tremendous amount of information involved in the trial of the case and he had found in many instances presentence investigations sometimes contain information that was not available to defendants. His testimony indicated if he had used a report it would have been made a part of the record. He testified that the postsen-tence was done before the second sentencing but he still has not used the post-sentencing report.
The Court points out the postsentence referred to is in the court file and the testimony was it was conducted for the Executive Clemency Board or Commission and not at the behest of or for the court.
Based on the above, it is the opinion of this court and this court finds that the sentence of death was imposed without consideration of any information not disclosed to the appellant or reports not furnished to him prior to the sentencing.
Respectfully submitted this 2nd day of October, 1980.

Having reviewed the transcript of the hearing, we find that the court’s findings are amply supported by the evidence. We also conclude that the court’s report has adequately disposed of the discrepancy we noted in our order on rehearing, dated November 8, 1979. Messer v. State, 384 So.2d at 644.

Having disposed of the Gardner problem, we are now in position to review the second sentencing proceeding and consider the propriety of the sentence of death.

The facts as stated in our earlier opinion, and based on Messer’s confession, were that appellant and Ronnie Brown stopped at an interstate highway rest area where they found Henry Fowler sleeping in a car. They entered the car and robbed him of his valuables, including a watch and $120.00. Then they drove the car, with the victim as their captive, to several locations. Ultimately Brown struck the victim, and appellant shot him in the head. Messer v. State, 330 So.2d 137, 139 (Fla.1976).

There were two procedural defects this Court found in the initial sentencing proceeding.

First, although there is evidence in the record of the plea-bargained second degree murder sentence received by appellant’s accomplice Brown, appellant was not permitted, during the sentencing portion of the trial, to submit this evidence to the jury. We believe the jury was entitled to know that the co-defendant, Ronnie Brown, negotiated a plea of guilty to second degree murder and was sentenced to 30 years imprisonment. See Slater v. State, 316 So.2d 539 (Fla.1975). Although the Slater case, supra, involved evidence that the “trigger man” was permitted to negotiate a plea for a sentence of life imprisonment, under the facts of this particular case we believe the reasoning of Slater applies with equal force. It was there stated, “Defendants should not be treated differently upon the same or similar facts.” In the instant case, although the appellant did fire the shot into the head of the victim, this shooting occurred after Brown took a wallet containing $120 and a watch from the victim, then struck him in the back of the head. There is little to separate out the joint conduct of the co-defendants which culminated in the death of the decedent. The sentence afforded to Brown certainly is not determinative of the sentence which appellant should receive; however, the jury should have had the benefit of the consequences suffered by the accomplice in arriving at its recommendation of the sentence to be visited upon the appellant.
Additionally, we believe counsel for the defendant was effectively deprived of establishing an important mitigating circumstance when he was not afforded the opportunity to present psychiatric testimony to the jury during the sentencing portion of the proceedings. Subsection 921.141(6)(b), Florida Statutes, provides as a mitigating circumstance that “[t]he capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Counsel for the appellant represented to the court that, if given the opportunity, he would come forward with evidence establishing such condition. The expression by the trial court that the verdict of the jury is merely advisory and that he could consider psychiatric reports at the time he performed the actual sentencing, in our opinion, violates the legislative intent which can be gleaned from Section 921.141, Florida Statutes. It is clear that the Legislature in the enactment of Section 921.141, Florida Statutes, sought to devise a scheme of checks and balances in which the input of the jury serves as an integral part. The validity of the jury’s recommendation is directly related to the information it receives to form a foundation for such recommendation. Subsection 921.141(1), Florida Statutes, 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) [sic] and (7) [sic] [of this section]. 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 . . . . ”
The quoted language indicates that the circuit judge should exercise the broadest latitude in admitting evidence during the sentencing portion of the jury’s deliberations.

Messer v. State, 330 So.2d at 141-42.

On remand, a special jury was empaneled for the purpose of making a sentencing recommendation. At a pre-trial conference, the defense moved that the jury be apprised of the facts and circumstances of the crime by having read to them the statement of facts found in this Court’s opinion filed when the previous appeal was decided. The state opposed the motion, arguing that in order for the jury to be fully apprised of the circumstances, the state should be permitted to present the evidence of the crime substantially as it had been presented at the first trial. The judge stated that he wished to avoid holding the entire trial over again, but that he also felt that to read a statement of facts from this Court’s opinion would be inadequate. Accordingly, the state was allowed to present evidence relating directly to the facts of the crime.

According to the testimony presented, the victim’s body was found by two hunters on the morning of November 27, 1973. The body was dressed in a pull-over karate jacket and green trousers. A pathologist testified that the cause of death was a bullet wound to the brain. There was also a laceration on the back of the head indicating that the victim had been struck with a metal instrument of some kind. An officer who inspected the body at the scene testified that the cut was vertical. The pathologist who performed the autopsy testified that the laceration was horizontal and was about two inches long. The cut, according to the pathologist’s testimony, went through the scalp and penetrated the muscle tissues under the scalp, but did not penetrate, nor did it fracture, the skull. This cut could have been inflicted by striking the victim with a pistol. The only part of a pistol that could have caused such a cut is the sight blade. To hold a pistol in such a way as to achieve the leverage to make such a cut, the expert said, would involve considerable awkwardness. The laceration could have been inflicted with a tire tool, as claimed in appellant’s confession, but a blow with a tire tool would more likely have fractured the skull.

Witness Richard Knapp testified that he last saw his friend Henry Fowler on November 26, 1973, at Knapp’s home in Semmes, Alabama, near Mobile. They had travelled together to Louisiana for the Thanksgiving holidays. After leaving Knapp at his home, Fowler was to drive on to Dothan. Knapp said that Fowler had a little over $100 on his person when he left. His car trunk contained a spare tire and some wrenches. Fowler was wearing a white karate jacket. When police recovered Fowler’s car, the spare tire and tools were gone.

The state introduced in evidence a .32 caliber pistol. Lewis Hancock testified that he owns a small grocery store in Esto, Florida, about twelve miles north of Bonifay. One day in late 1973, Messer came into the store saying that he had an emergency call and had to go to Birmingham. He wanted to borrow forty or forty-five dollars and to leave as security a .32 caliber pistol resembling the one in evidence. Hancock loaned him the money, but Messer never came back for the gun. Hancock later turned the weapon over to an officer of the Florida Department of Criminal Law Enforcement.

Shawn Ingram testified that he worked as a sales clerk at the Western Auto Store in Bonifay. He had known Ronnie Brown since grammar school. On November 24, 1973, he sold a pistol to Ronnie Brown. The state presented, and Ingram identified, a written record of the firearm sale. The serial number matched the one on the pistol in evidence. Under the law regulating sales of firearms, Ingram testified, he was required to ask Brown certain questions, including whether he had ever been convicted of a crime. Ronnie Brown answered this question in the negative and Ingram said he had no reason to disbelieve him. Ingram testified further that the appellant Messer was present when. Brown bought the gun.

The state and the defense stipulated that the bullet removed from the body of Henry Fowler was fired from the gun purchased by Ronnie Brown and introduced in evidence.

Curtis Golden, State Attorney for the First Judicial Circuit, was called as a witness for the state. He testified that on January 17, 1974, he went to Anniston, Alabama to interview Messer. Messer’s original stated reason for consenting to the interview was to clear his conscience because he had knowledge of a murder that had taken place along the interstate highway in Florida. He asked for immunity from prosecution. Golden refused, telling Messer he could not consider that until he knew what the information was.

Messer then indicated he would tell about the murder anyway. Golden advised him of his constitutional rights and proceeded with the interview. Golden asked Messer about his education level and Messer claimed he had completed two years of junior college. Golden’s subsequent investigation did not include any attempt to verify this information. The initial interview was recorded on tape.

In his first statement, Messer said that he, Ronnie Brown of Bonifay, and one Ray King of Bonifay were all together when King killed Fowler. Golden testified that he was dissatisfied with this statement because of certain inconsistencies between the factual details of it and certain facts already revealed by the investigation. For example, Messer said King robbed Fowler of some $8,000 in cash of small denominations, an amount impossible to carry in the pockets of a karate jacket. So, the next day, he interviewed Messer again. Messer changed his story in certain particulars, but still maintained that the murder was committed by the man named Ray King.

Lt. Jesse Cobb, a Santa Rosa County sheriff’s investigator, testified that on January 23, 1974, he was present along with Santa Rosa County Sheriff Enfinger, Sheriff Snead of Anniston, Alabama, and Mr. Ronnie Cornelius of the Florida Department of Criminal Law Enforcement, when Messer led them to the scene of the crime. This took place after Messer had already given two statements in which he said that Ray King had murdered Fowler. Messer also showed the officers the highway rest area where Fowler’s car was left after the murder.

Florida state crime investigator Ronnie Cornelius testified that he participated in the investigation and went to Anniston with Mr. Golden and Lt. Cobb on January 17, 1974. On January 21, 1974, Cornelius telephoned Ronnie Brown, who was in Arlington, Texas. Cornelius told Brown that he was investigating the sabotage of county equipment in Holmes County. Cornelius had reason to know that Brown would have some awareness of the existence of such an investigation. He told Brown that he needed to talk to him in order to get the investigation “cleared up.” He asked Brown whether, if the State of Florida would pay his air fare, he would be willing to return to Florida for questioning.

Brown came to Florida and was interviewed on the 21st and 22nd of January, 1974. Therefore when the investigators commenced their third interview with Mes-ser on January 23, they had the advantage of what they had learned from Brown. A fourth and final statement was taken from Messer on the afternoon of the 23rd, following which he was placed under arrest for first-degree murder and robbery. The tape-recorded statement was played for the jury.

As was stated in this Court’s opinion of March 31, 1976, Messer’s final statement was that

he and Brown had been traveling on the Interstate Highway, he had been drinking liquor and beer, and they stopped at a rest area to look for toilet facilities. When they stopped, they decided to rob the victim, who was asleep in a parked car in the rest area. The pair entered the victim’s car, held him up, drove him to several locations; ultimately Brown struck the victim, and appellant shot him once in the head. Brown had previously taken the victim’s wallet and watch, and the pair divided $120.00 and disposed of the victim’s wallet, personal effects, and car tag.

Messer v. State, 330 So.2d at 139. At the second sentencing hearing, however, the state’s witnesses testified that while Brown admitted participating in the robbery and murder, in none of his statements did he admit any participation in the actual perpetration of physical violence against Henry Fowler.

Over defense objection, the court allowed the state to elicit from Curtis Golden the reasons underlying his exercise of prosecu-torial discretion. It was his decision to seek the death penalty against Messer while accepting Brown’s plea of guilty to second-degree murder. This Court held that Messer should have been allowed to apprise the jury of this disparate treatment. On remand, the court below held that the state was entitled to present the reasons underlying the exercise of discretion that brought about this result.

Mr. Golden testified that he learned that Messer and Brown met when Messer was in jail in Bonifay, where Brown’s brother-in-law worked as a juvenile counselor. Golden took into consideration that Brown had not been involved in any criminal activity until he met Messer. Golden concluded that Messer was the leader, Brown the follower in the criminal episode that led to Henry Fowler’s death.

Golden testified that he believed both men participated in the abduction and robbery of Fowler, and that both were therefore equally guilty of murder in the first degree. He believed that he could have secured convictions of both men for such crime. He believed, however, that because of Brown’s lower intelligence and education, he would have been able to establish mitigating circumstances, under the capital felony sentencing law, based on his subordinate role and domination by Messer. Golden believed that on this basis Brown would likely be able to secure a jury recommendation of, and sentence to, life imprisonment. The maximum penalty for second-degree murder is life imprisonment, Golden reasoned, so he decided to allow Brown to plead guilty to second-degree murder in order to spare the state the expense of a trial. No particular sentence or sentence recommendation was promised Brown in exchange for his plea. Golden said he expected Brown to be sentenced to life imprisonment.

Brown actually received a sentence of thirty years imprisonment, and the jury was apprised of this fact. The jury was informed as well that when one convicted of first-degree murder is sentenced to life imprisonment, he is not eligible to seek parole for twenty-five years, while the parole eligibility of a person sentenced to thirty years is profoundly different.

Golden testified further that with regard to Messer’s case, he foresaw that the state would be able to establish several aggravating circumstances, and believed there were no mitigating circumstances. He also considered the fact that Brown admitted guilt before Messer did; Brown’s cooperation and statements assisted in the solving of the crime, while Messer attempted to implicate a third, totally innocent man.

Following the state attorney’s testimony about the reasons underlying his exercise of prosecutorial discretion, defense counsel moved that the court direct a verdict recommending life, and impose a life sentence. The defense based the motion on the ground that the state attorney’s testimony demonstrated that he had exercised his discretion arbitrarily. A proper application of the death penalty statute, defense counsel argued, requires consistency, not arbitrary distinctions in determining the relative culpability of joint perpetrators.

The sentencing judge asked defense counsel to explain why the state attorney’s exercise of discretion with regard to the case against Brown, whether it was proper or improper, had anything at all to do with the question of what sentence should be imposed upon Messer. After further argument, the court denied the motion.

The state presented the testimony of Dr. Anthony Semon, clinical psychologist. Dr. Semon examined Messer in December, 1974. He concluded that Messer was of average intelligence but that there were some indications of mental problems. His examination led him to the “hypothesis” that there may have been some impairment of the inhibitory functions of Messer’s brain, but since he performed only a cursory examination rather than a “complete neurological work-up,” this remained only a “hypothesis.”

Dr. Semon testified that he also examined Brown. His examination of Brown was more detailed and included intelligence, neuropsychological, and personality tests. The doctor concluded that Brown’s intelligence was substantially below normal and that he suffered from some possible brain damage. As to personality, Dr. Semon characterized Brown as “a follower,” a person who accommodates himself to the demands of others. Based on these conclusions, Dr. Semon gave his opinion that during the criminal episode Brown’s capacity to understand the character of his actions was probably impaired and he was probably acting under the domination of Messer.

The state introduced a certified record from the State of Alabama showing that on October 3, 1974, Messer was convicted of manslaughter pursuant to a plea of guilty, based upon a crime that occurred on January 14, 1974.

The defense presented the testimony of Dr. Elizabeth McMahon, clinical psychologist. She testified that on May 15, 1976, she examined Messer for eight and one-half hours. She administered intelligence, neu-ropsychological, and behavioral tests. She had access to previous evaluations performed on Messer in 1974, including the preliminary conclusion or “hypothesis” of Dr. Semon concerning possible problems of brain functioning.

Dr. McMahon concluded that Messer evidenced a very mild pattern of cerebral dys-functioning. What she found was indicative of a mild form of epilepsy, which, she said, is often caused by repeated trauma to the head. Dr. McMahon pointed out that this condition is not the grand mal form of epilepsy that is associated with severe seizures, but involves mild, “subclinical” seizures which cause a reduction in the efficiency of cerebral functioning.

The psychologist testified further that she concluded that Messer was an emotionally stunted person. That is, he has weak emotional controls that break down under stress. He has limited capacity to control his impulses. Dr. McMahon characterized Messer’s personality type as “passive-reactive,” and explained that this means he tends to react to, rather than act upon, his environment.

On cross-examination by the state, Dr. McMahon stated that Messer’s problems of mental dysfunction are mild, not extreme.

On rebuttal the state presented the testimony of Dr. Theodore Marshall, a psychiatrist. He testified that he examined Messer for ninety-five minutes on December 13, 1974. The examination was performed pursuant to court order for the purpose of determining Messer’s mental condition. Dr. Marshall testified that he found Messer to be coherent and that he manifested no dissociation of thinking.

After hearing the arguments of counsel, the jury deliberated and returned a verdict recommending that the court sentence Mes-ser to death. The sentencing judge made the following findings:

FINDINGS OF FACT
Pursuant to Section 921.141(3), the Court makes the following findings of fact which constitutes the justification for the imposition of the sentence herein administered:
a. That the crime of First Degree Murder was committed while the Defendant was in the process of committing the crime of robbery (for which he has likewise been convicted).
b. That the crime was committed for pecuniary gain in that the Deceased was robbed of $120.00, and other property at the time of the commission of this offense.
c. That the murder was committed in a manner the Court finds to be especially atrocious and cruel in that the victim was taken in his automobile at gun point to two different locations, was required to get into the trunk of his automobile where he was transported, repeatedly told the Defendant he had no intentions of resisting, and finally was hit over the head and shot and left to die in the woods.
d. That by the Defendant’s own statement his last 15 years were devoted to criminal behavior, but specifically finds that the Defendant was previously convicted of the crime of manslaughter.
e. That the Defendant was the leader of the two co-defendants, and that the sentence received by the Defendant, Brown, (which was not passed by this Court) is not a justification for this Defendant receiving a lesser sentence.
f. The Court has reviewed those mitigating circumstances contained in Section 921.141(6)(a) through (g), and finds that none of those mitigating circumstances are present. In making this finding, the Court has considered the testimony of the two clinical psychologists and the psychiatrist who testified, none of whom diagnosed the Defendant to have been suffering any extreme mental or emotional disturbance at the time of the commission of the offense.
Based on the above findings, the Court concludes that sufficient aggravating circumstances exist to require the sentence of death in the electric chair, and that no mitigating circumstances exist which would allow this Court to reduce that sentence to life imprisonment.

Appellant contends that the court erred in allowing State Attorney Golden to testify concerning his opinion of the relative culpability and characteristics of Messer and Brown; that the Alabama manslaughter conviction should not have been admitted into evidence; that the court erred in its evaluation of the aggravating and mitigating circumstances; and that application of the death penalty to Messer is unconstitutional because it is the result of arbitrary prosecutorial discretion.

In his initial appeal of his conviction and sentence, Messer successfully maintained that he should have been allowed to tell the jury that Brown had been allowed to plead guilty to second-degree murder and had received a thirty-year sentence. Messer v. State, 330 So.2d 137 (Fla.1976). We hold that it was within the discretion of the trial court to allow the state to explain to the jury, through the testimony of the state attorney, the reasons for the seemingly disparate treatment.

The Alabama manslaughter conviction was admissible as relevant to a statutory aggravating circumstances. See Elledge v. State, 346 So.2d 998 (Fla.1977).

The only error we find in the judge’s consideration of the circumstances of the crime is that the finding that the murder was committed in the course of a robbery and the finding that it was committed for pecuniary gain both relate to the same aspect of the crime. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). This error, however, was harmless. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Appellant’s contention that the exercise of prosecutorial discretion renders the capital felony sentencing law unconstitutional as applied to his case is without merit. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Having provided careful review of the sentencing trial and the court’s findings, we affirm the sentence of death.

It is so ordered.

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


author: OVERTON, Justice. BOYD, Justice,

text:
    Elton E. ENSOR, Petitioner, v. STATE of Florida, Respondent.
    No. 57817.
    Supreme Court of Florida.
    June 4, 1981.
    Rehearing Denied Sept. 25, 1981.

      Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Max Rud-mann, Asst. Atty. Gen, West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition for certiorari to review a decision of the Fourth District Court of Appeal, State v. Ensor, 375 So.2d 13 (Fla. 4th DCA 1979), which we find directly conflicts with Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975); and State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 748 (Fla.1975). We grant the petition for review. The issue to be determined is whether an object observed from a “pre-intrusive open view” and believed by a trained police officer to be a weapon can also simultaneously be a “concealed weapon” prohibited under section 790.01, Florida Statutes (1977). We answer the question in the affirmative, holding that what an officer observes in carrying out his duties and what the average person may see from “ordinary observation” are not necessarily the same. We affirm the result of the instant district court decision.

The facts are undisputed. On October 8, 1977, at about 2:35 a.m., two plainclothes policemen in an unmarked cruiser spotted a yellow Pinto exiting a parking lot following eight to ten motorcycles. The Pinto proceeded some ten blocks without its headlights turned on. Considering it a traffic hazard, the policemen sounded their siren and flashed their blue dash light to signal the Pinto to pull over. It proceeded another two blocks before stopping. The officers pulled in behind, identified themselves, and instructed the Pinto’s two occupants to step to their vehicle’s rear. Petitioner was the passenger. At about the same time, two other plainclothes policemen arrived at the scene to assist. While the first two officers questioned the Pinto’s driver and petitioner, the second two stepped forward to look into the vehicle with their flashlights for hidden passengers, weapons, or other contraband in accordance with normal police procedure. Peering through the front windshield, one officer spotted a portion of a white object protruding from under the left side of the passenger floormat. From squatting and looking into the already-opened passenger door, the officer determined the object to be a derringer pistol. At that point, the officer entered the vehicle and retrieved the weapon.

The state charged petitioner with carrying a concealed weapon in violation of section 790.01. During his subsequent prosecution, petitioner moved to suppress the gun as being illegally seized without a warrant. The state responded that the weapon was in “plain view” and therefore properly seized. Petitioner countered that if the derringer was in “plain view,” it could not be “concealed,” and moved for dismissal on that basis. The trial court granted the dismissal, but the Fourth District reversed holding that a “concealed weapon” and a “plain-view search” were not necessarily mutually exclusive.

The outcome of the suppression motion and the motion for dismissal is controlled by the legality of the search and the legal status of the firearm. This situation requires us to answer two distinct questions: (1) whether the officers’ search and seizure was a proper intrusion into petitioner’s automobile, and (2) whether the weapon seized was in fact “concealed” under section 790.001. The answers are to a certain degree interrelated.

Legality of Search (“Plain View” vs. “Open View”)

In addressing the first question, we note that the state initially justified its warrant-less search and seizure by arguing that the weapon was in “plain view.” The state has, however, confused the term “plain view” with what is properly termed “open view.” Petitioner and the trial and district courts have likewise confused the terms. The error is not uncommon. Judge Charles Moylan of the Maryland Special Court of Appeals has properly defined and distinguished the terms:

In this context, we studiously avoid the phraseology “in plain view” to avoid any implication that the so-called “plain view doctrine” is being invoked. That doctrine is not here applicable. Needless confusion is frequently engendered by the employment in many opinions of the same phrase — “in plain view” — to describe two visually similar but legally distinct situations. The “plain view doctrine,” as described in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, refers exclusively to the legal justification — the reasonableness — for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area. It has no applicability when the vantage point from which the “plain view” is made is not within a constitutionally protected area. It is, therefore literarily discreet to use for such latter situations some alternative phraseology such as [“open view,”] “clearly visible,” “readily observable,” “open to public gaze,” etc., rather than to employ the words “in plain view” in their purely descriptive capacity, lest the unwary reader read them in their other and talis-manic capacity as an invocation of the doctrine of the same name in nonintru-sive situations where it is not applicable.

Scales v. State, 13 Md.App. 474, 477, n.1, 284 A.2d 45, 47 n.1 (1971).

The term “plain view” has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted in confusion of the elements of the “plain view doctrine.” To eliminate this confusion, we believe it appropriate to distinguish the true “plain view doctrine” as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), from other situations where officers observe contraband.

The first factual situation we identify as a “prior valid intrusion.” In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the “plain view doctrine” in Coolidge and held that an officer could constitutionally seize the contraband in “plain view” from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.

We identify the second factual situation as a “non-intrusion.” This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in “plain view,” it should not be so labeled to prevent any confusion with the Coolidge “plain view doctrine.”

The third situation concerns a “pre-intrusion.” Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term “plain view” should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive “open view.”

We find that the instant facts fit properly into the third, pre-intrusion, category. The police officers had stopped the vehicle in which petitioner was a passenger pursuant to a valid traffic arrest. When one officer stepped forward to look into the vehicle, he stood outside the vehicle, a non-protected area, and looked inside, a constitutionally protected area. It is clear at this point that, on seeing the firearm in “open view” through the open car door, the officer had probable cause to believe that the felony of possessing a concealed firearm was being committed in his presence. He then needed a warrant or warrant exception before he could enter the vehicle and seize the firearm. Under the facts, the officer was legally justified in seizing the firearm without a warrant under the “automobile exception” to the warrant requirement, the basis for warrantless entry being the exigency of a “movable” vehicle. Albo v. State, 379 So.2d 648 (Fla.1980). See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (court stated that warrantless vehicle search is justified in part because of diminished expectation of privacy in automobile); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (same). The officer was additionally justified in retrieving the weapon for purposes of self-protection. Warren v. United States, 447 F.2d 259 (9th Cir. 1971); United States v. Thompson, 420 F.2d 536 (3d Cir. 1970). See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We hold therefore that the instant seizure was clearly reasonable.

Concealed Firearms

The second question which confronts us is: Under what circumstances is a firearm in fact “concealed”? Section 790.01, Florida Statutes (1977), reads in pertinent part:

(2) Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree....

Concealed firearm is defined by section 790.001(2), Florida Statutes (1977):

“Concealed firearm” means any firearm . .. when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person.

This Court has not previously addressed what constitutes a concealed weapon under these sections. The district court decisions are conflicting and irreconcilable.

The Third District Court of Appeal has held that a pistol in an automobile glove compartment comprises a concealed firearm. State v. Butler, 325 So.2d 55 (Fla. 3d DCA 1976). The First District, one day later, in Sutton v. State, 327 So.2d 234 (Fla. 1st DCA), cert. denied, 334 So.2d 608 (Fla.1976), said a firearm in a closed automobile glove compartment was not concealed within the meaning of chapter 790. The Third District has held that a firearm underneath a defendant’s automobile seat and totally obscure from view was concealed. Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971). The Second District, on the other hand, held that a revolver out of view under the defendant’s front seat but holstered with a leather strap snapped over the hammer, was concealed under section 790.01(2) but was excepted by section 790.25. State v. Hanigan, 312 So.2d 785 (Fla. 2d DCA 1975). The First and Third District Courts have stated that any time a weapon is open to an officer’s observation, it is not concealed. Specifically, the courts determined that a handgun was not concealed when it was protruding from under defendant’s automobile seat and partially visible from peering through the vehicle window. Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975); State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 748 (Fla.1975). Yet, the Fourth District Court in the instant case held that a pistol under the front seat and partially visible from the front windshield could qualify as a concealed weapon.

Other jurisdictions with concealed weapon statutes similar to Florida’s have considered the instant question: The majority of those jurisdictions have concluded that a weapon need not be totally hidden from view to constitute a “concealed weapon” for purposes of prosecution under the respective statutes. For example, in Mularkey v. State, 201 Wis. 429, 230 N.W. 76 (1930), the defendant reached into his automobile during an altercation and withdrew a .32 Colt automatic revolver from a small shelf behind the driver’s seat. In affirming defendant’s conviction for possessing a concealed firearm, the court said, “[i]f the weapon is hidden from ordinary observation, it is concealed. Absolute invisibility to other persons is not indispensable to concealment.” Id. at 432, 230 N.W. at 77.

Similarly, in People v. Williams, 39 Ill.App.3d 129, 350 N.E.2d 81 (1976), a police officer viewed a .38 caliber pistol lying on the rear floorboard of defendant’s automobile. The weapon could not be seen except from the side window view and was easily accessible to defendant. The Illinois appellate court affirmed defendant’s concealed weapon conviction and pointed out: “It is well settled in Illinois that a weapon is ‘concealed’ . . . even though there is some notice of its presence to an alert police officer who can see part of the gun when he approached [sic] the vehicle.” Id. at 131, 350 N.E.2d at 83.

The Alabama Supreme Court set forth its standard in the early case of Driggers v. State, 123 Ala. 46, 49, 26 So. 512, 514 (1899): “[I]f the pistol is carried on the person under such conditions that it is hidden from view from the observation of persons coming in contact with the person carrying it, casually observing his person, this is a concealment, and in violation of the statute.”

We agree with the majority view and find that absolute invisibility is not a necessary element to a finding of concealment under section 790.001. The operative language of that section establishes a twofold test. For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term “on or about the person” means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.

These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001. Similarly, a weapon’s location in some extreme part of the vehicle’s interior may be such that the trier of fact finds the weapon to be not “about the person,” and thus not concealed. In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.

In carrying out normal procedures in making an arrest, the officer in the instant case discovered the derringer pistol on the vehicle’s floorboard through a legally permissive “open view.” The undisputed facts reflect, however, that the officer could not identify the object until he looked through the open vehicle door and under the vehicle seat. The gun was on the floor, partially under the mat. We find that this weapon could qualify as hidden from the ordinary sight of the average person. It should be emphasized that the permissible and legal observations of a police officer in making an arrest and the observation of an average person making normal contact with an individual are clearly not the same. We hold that appellant’s prosecution for possession of a concealed firearm was permissible and that the firearm was wrongfully suppressed. The jury should determine whether this weapon was concealed under these facts.

In our decision, we have not considered the effect of Florida’s weapon licensing provisions or the effect of the exceptions thereto. See §§ 790.05, .06, .25, Fla.Stat. (1979).

The result of the instant decision of the Fourth District Court of Appeal is affirmed. The decisions in Sutton v. State, Porchay v. State, Christian v. State, and State v. Day are hereby disapproved to the extent that they conflict with the views expressed in this opinion.

It is so ordered.

ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J., concurs in the result only.

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

BOYD, Justice,

dissenting.

I agree with the trial court that since the weapon could be seen by anyone looking through the windows or doors of the automobile it was not a concealed weapon.

The majority opinion tries earnestly to define a vague statute and explains how several appellate courts have disagreed in construing the statute in almost identical circumstances. I think instead of trying to save the statute by stating our own views of what the law should provide we should firmly urge the legislature to define what acts and circumstances constitute carrying a concealed weapon.

What the public generally knows, courts can notice judicially. The rising increase of violent crimes in which pistols are used should demonstrate the urgent need for laws clearly stating who may carry weapons that are concealed, and under what circumstances, and what constitutes concealment.

Ambiguities in criminal laws must be construed against the state. Since Florida appellate courts would likely disagree on whether the petitioner’s possession of the derringer under his car seat was a violation of law I would reverse the district court and direct it to affirm the trial court’s dismissal of the criminal charge.

      . Art. V, § 3(b)(3), Fla. Const.

      . See, e. g., United States v. Rollerson, 491 F.2d 1209 (5th Cir. 1974); United States v. Story, 463 F.2d 326 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. West, 460 F.2d 374 (5th Cir. 1972); United States v. Drew, 451 F.2d 230 (5th Cir. 1971); McGraw v. State, 387 So.2d 444 (Fla. 1st DCA 1980); Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975); State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 748 (Fla.1975); People v. Gray, 37 Mich.App. 189, 194 N.W.2d 545 (1971).

      . See Driggers v. State, 123 Ala. 46, 26 So. 512 (1899) (pistol partially in defendant’s pocket and covered with hand); McKee v. State, 488 P.2d 1039 (Alaska 1971) (“mexican toothpick” knife partially in defendant’s pocket; jury question as to concealment); People v. May, 33 Cal.App.3d 888, 109 Cal.Rptr. 396 (1973) (Derringer in defendant’s rear pocket made bulge and had silver top slightly protruding); Marshall v. State, 129 Ga.App. 733, 200 S.E.2d 902 (1973) (handle of pistol tucked in defendant’s pants but visible to some extent through split in defendant’s shirt); State v. McNary, 100 Idaho 244, 596 P.2d 417 (1979); People v. Euctice, 371 Ill. 159, 20 N.E.2d 83 (1939) (pistol on rear floorboard of defendant’s vehicle); People v. Williams, 39 Ill.App.3d 129, 350 N.E.2d 81 (1976) (same); Prince v. Commonwealth, 277 S.W.2d 470 (Ky.1955) (automatic handgun in pocket with butt sticking out); Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966) (dirk protruding from under driver’s seat of defendant’s automobile); People v. Charron, 54 Mich.App. 26, 220 N.W.2d 216 (1974) (knife slightly protruding from defendant’s rear pocket); People v. Jones, 12 Mich.App. 293, 162 N.W.2d 847 (1968) (butt of gun “poking” out of defendant’s pocket and completely hidden from view when defendant seated in automobile); State v. Bordeaux, 337 S.W.2d 47 (Mo.1960); Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960); State v. Rabatin, 25 N.J.Super. 24, 95 A.2d 431 (1953); State v. Pettit, 20 Ohio App.2d 170, 252 N.E.2d 325 (1969) (knife with six-inch blade in sheath under passenger seat of defendant’s automobile nevertheless concealed); Mularkey v. State, 201 Wis. 429, 230 N.W. 76 (1930) (.32 Colt automatic revolver on shelf behind driver’s seat of defendant’s automobile).