text:
    Robert Earl OLIVER v. STATE.
    8 Div. 434.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Randall 0. Gladden, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Jones, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was thirty years’ imprisonment.

I

Initially the defendant contends that the prosecution failed to prove a prima facie case because it failed to prove (1) the ownership of the stolen property, (2) who had possession and control of the property before it was stolen, and (3) that the property was taken from the person of Roger Terry, or from his presence, (4) by violence to his person or by putting him in such fear as unwilling to part with the property.

Roger Terry was an employee of Trailways Bus Station in Huntsville. On October 6, 1979, the defendant came to the ticket counter in the bus station, where Terry was working, and inquired about the arrival of a bus from Chattanooga as he had done several times earlier that day. Terry was answering the defendant’s questions when he heard a “shuffle in the back” and turned around. He was confronted by a man with a shotgun demanding “Give me your money.” Terry thought it was a joke and argued with the robber. The man with the shotgun said, “We want your money, don’t we?” and the defendant said, “Yes, he’s not kidding, give him your money.” When the man with the shotgun pumped it, Terry “tore off” and ran into the manager’s office where the manager called the police. When Terry came out both the man with the shotgun and the defendant were gone. The only thing missing from the bus station was a bank bag.

A man was seen running near the bus station carrying a white bag and a shotgun. He got in a white over green Ford which was occupied by two other men and the car sped away from the scene of the crime. When Huntsville Police Officer Joe K. Hastings stopped the Ford within a short time after the robbery and within a short distance from the bus station, the Ford was occupied by Leonard Parker only. Mr. Terry identified Parker as the man with the shotgun. A shotgun and a money bag lay on the back floorboard of the car.

Parker, who was not immediately arrested, was taken in for questioning and told the police that he did not commit the robbery and that he had let the defendant borrow his car. Subsequently, Parker and one Lee Andrew Jackson pled guilty to the robbery.

Mrs. Velma Hughes knew the defendant, Parker and Lee. Her house was approximately one block from the bus station. Her testimony reveals that shortly before the robbery these three men were together in the green and white Ford. Later that afternoon the three men returned to her apartment. This time the defendant had a shotgun. In response to her questions one of the men said “something about they had robbed Trailway.” Mrs. Hughes then put all three men out of her apartment.

Parker and Lee left in the Ford and the defendant, without the shotgun, went around the back of the house. Mrs. Hughes saw the police apprehend Parker in the Ford.

This evidence presented a jury question of the defendant’s guilt and the motion to exclude the State’s evidence was therefore properly denied. The jury could infer from the evidence that the defendant was a willing and active participant in the robbery and, hence, it is immaterial that he was not the leader of the group, Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977), or that he did not personally take the property. Lee v. State, 346 So.2d 31 (Ala.Cr.App. 1977).

The evidence showing that Terry “tore off” and ran into the manager’s office after one robber pumped the shotgun constituted substantial evidence of Terry’s fear generated by the action of the robbers. Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975).

The fact that no one saw either of the robbers actually take the money does not entitle the defendant to an acquittal. Gibson v. State, 347 So.2d 576 (Ala.Cr.App. 1976). The victim need not be physically and actually present when the property is taken. It is sufficient if the property is taken from his presence or personal protection within the technical and legal meaning of those terms. DeFranze v. State, 46 Ala. App. 283, 285, 241 So.2d 125 (1970). See also Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962). “A thing is in the presence of a person with respect to robbery, which is so within his reach, inspection, observation, or control that he could, if not overcome by violence or prevented by fear, retain his possession of it.” 77 C.J.S. Robbery, Section 9 (1952).

With regard to the issue of the ownership of property the record shows:

“Q. What, if anything, was missing from the bus station?
“A. The only thing I show missing was a bank bag.”
******
“Q. And is this the bag that was removed from the Trailways bus station on the 6th day of October, 1979.
“A. Yes, sir.”

Terry described the bag as a red cloth type, zip-up bank bag with Henderson National Bank on one side. The indictment charged that the bank bag was the personal property of Trailways, Inc.

The element of robbery may be proven by facts and circumstances as well as by direct and positive evidence. Garrison v. State, 372 So.2d 55 (Ala.Cr.App.1979). Here there was just barely enough evidence from which the jury could reasonably infer that the stolen property was in the possession and control of Trailways, Inc. Additionally, we note that the defendant moved to exclude the State’s evidence on the grounds that the State “failed to prove either force or fear on the part of anyone much less Robert Earl Oliver.” On this ground the defendant argued that a prima facie case of robbery had not been established. No additional grounds were assigned. There was no motion for a new trial. The motion was not sufficiently specific to permit review with regard to the issue now raised. Mitchell v. State, 50 Ala.App. 121, 277 So.2d 395, cert. denied, 291 Ala. 794, 277 So.2d 404 (1973).

In conclusion we find that the question of the guilt or innocence of the defendant was properly submitted to the jury and that the evidence was sufficient to support their verdict. Dolvin v. State, 391 So.2d 133 (Ala. 1980).

II

We find that the chain of custody of the bank bag was sufficiently established to allow its introduction. The evidence established a “reasonable certainty that there has been no substitution, alteration, or tampering” with the bag. Lynn v. State, 380 So.2d 366, 367 (Ala.Cr.App.1980), and eases cited therein.

III

The evidence presented by the defendant at trial tended to prove alibi. The defendant did not testify. After the defense rested, the State, on rebuttal, introduced a confession given by the defendant to the police after his arrest.

Madison County Sheriff’s Investigator A1 Duffey interviewed the defendant in the county jail on the 28th of November, 1979. Duffey testified that the defendant “sent down for us to come up and talk to him.” Duffey did not warn the defendant of his “Miranda” rights; he “had no reason to” because he did not know what the defendant was going to talk about.

At the conclusion of this conversation, Duffey asked the defendant if he would “mind giving me a statement of the facts he was talking about.” The defendant agreed and Duffey told him he would return the next day.

On the 29th, Duffey returned and advised the defendant of his Miranda rights. The defendant then wrote his own statement on paper which had a printed waiver of rights on it. After finishing, the defendant signed the statement.

The defendant contended and testified that his statement was not true and that he gave it to “get” Leonard Parker put in jail. The defendant stated that he gave the statement because “he wanted Leonard Parker in jail because he was not going to do the time with Leonard Parker walking the streets laughing at him.” The defendant further testified that on the 28th Duf-fey told him that the statement would not be used against him. Duffey denied this and stated that to the best of his knowledge he did not make any such promise to the defendant.

“A. I don’t remember making that statement. It’s possible. If it’s in the tape, I did.
“Q. Do you still have that tape?
“A. Yes, sir.
“Q. Could you have told him that without it being on the tape?
“A. No, sir, not to my knowledge. I don’t think I would have told him that. It’s possible, but I don’t think I did.”

County Jail Assistant Correctional Officer Billy Bass was present on both occasions the defendant gave statements to Investigator Duffey. The defense called Bass in rebuttal to the evidence the State presented in its rebuttal. Bass testified that he did not tell the defendant that the statement would not be used against him and that he did not remember Duffey making such a statement.

At this point, defense counsel made the following statement:

“Your Honor, at this time I feel we are entitled to listen to the tape of that conversation that was taken the day before (November 29th) .. . . ”

The trial judge overruled this request.

The trial judge admitted only the written statement which was given on November 29th, ruling that “anything prior to those (Miranda) warnings would not be admissible.” The tape recorded conversations of the 28th was suppressed and never heard by the court or the jury.

After considering the particular facts and circumstances of this case, we find that the trial judge did not abuse his discretion in determining the voluntariness and admissibility of the written statement of the defendant and in overruling the defendant’s request for the tape recording of the conversation held on November 28th.

We particularly note that only after the State began laying a predicate for the admission of the defendant’s written statement, did defense counsel request a ruling on his pretrial motion to suppress the confession and produce the taped conversation of November 28, 1979. Contained in that motion is the essence of the defendant’s assignment of error.

“4. That on November 28, 1979, the defendant did freely give the confession heretofore mentioned upon the promise that it would not be used against him, that it would not be turned over to the office of the District Attorney, and it would be used only to provide a means of arrest for those persons who actually committed the act.
“5. That the Office of the District Attorney has turned over to the attorney for the defendant a copy of what purports to be a transcription of the taped interview of the confession of the defendant of November 28, 1979.
“6. That said transcription appears to be an incomplete transcription of said tape in that the copy begins with an answer by the defendant with no question preceding. Defendant also contends that said promises heretofore mentioned were recorded on this tape at the same time.”

At trial the defendant objected to the admission of the written statement of November 29th “due to the fact that the Miranda warnings were not properly read and waived.”

Officer Duffey testified that the defendant did not reply to his question “Do you understand each of the rights just stated to you?” Duffey stated that the defendant did say that he understood in response to the question, “Do you understand that we are not threatening you nor promising you anything in order to secure a statement from you?” The defendant also said, “Yes, sir” to the question, “With those rights in mind, do you wish to talk to us?” At the end of his written statement the defendant wrote, “I make this statement on my own. I’m not asking the State for anything and no one has offered me anything. I asked to see and talk with them on my own.”

Although the evidence is conflicting as to whether or not the defendant was told that his statement would not be used against him, this was an issue which the trial judge had to determine. When such a conflict occurs, great weight must be given his judgment. His finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977).

The fact that the defendant’s statement was motivated by his feelings of revenge and induced by his desire to see another prosecuted for the robbery does not render that statement involuntary.

“(T)he term ‘voluntary’ means that the confession must be the product of the defendant’s own judgment and the operation of his own mind, uninfluenced by methods and devices which are denounced by law or by any extraneous disturbing cause which deprives him of his free will and volition. Correlatively, an improper inducement which will exclude a confession must be external — that is, the motive of hope or fear must be directly applied by a third person, and must not arise merely from the operations of the accused’s mind.”
29 Am.Jur.2d, Evidence, Section 542 (1967).

See also Eakes v. State, 387 So.2d 855, 860 (Ala.Cr.App. 1978).

We also find that the trial judge did not abuse his discretion in denying the defendant’s request for the tape recorded statement of November 28th. Only the written statement of November 29th was admitted into evidence before the jury. Granted, the defendant had a right to introduce evidence that this statement was obtained by improper inducements. C. Gamble, McElroy’s Alabama Evidence, Section 200.02(8) (3rd ed. 1977). However, here, both law enforcement officers who were present when the defendant gave his statements denied or stated that they did not remember offering the defendant any promises that his statement would not be used against him. Under these circumstances, it was within the discretion of the trial judge to order the State to produce a tape recording which might or might not have impeached the testimony of these two officers, one of whom was called as a witness by the defendant. It matters not that we might not have made the same decision as did the trial judge. The question on review is whether he abused his discretion. Finding no abuse, we must affirm his decision.

No objection was made at trial and none is raised on appeal that the lack of a proper Miranda warning before the first in-custody statement necessarily rendered inadmissible the later statement made after a proper warning. See McElroy, Section 201.08. We are not faced with this issue on appeal since specific grounds of objection waive all grounds not specified. Waters v. State, 360 So.2d 358, 363 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978).

We have searched the record and, finding no error prejudicial to the substantial rights of the defendant, affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    George EDWARDS v. STATE.
    8 Div. 442.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Jerrilee P. Sutherlin of Harrison, Bur-well, Smith & Sutherlin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of burglary in the third degree as defined by § 13A-7-7 of the Alabama Criminal Code, effective January 1, 1980, now codified as Title 13 of Code of Alabama 1975. After acceptance of the verdict, notice was given by the State that it would then proceed against defendant under the Habitual Felony Offenders Act, Code 1975, § 13A — 5-9, and the court set a sentencing hearing within a reasonable time thereafter, at which defendant appeared and was attended by his attorney. Evidence was presented of previous felony convictions of defendant, and the court sentenced him to imprisonment for twenty-five years.

The evidence on the trial is summarized in appellant’s brief as follows:

“The State’s witness, Robert F. Joyce, an officer of the Huntsville Police Department, testified that on February 17,1980, at about 9:30 p.m. he arrived at the Circle J Western Store on North Memorial Parkway. Officer Joyce was accompanied by Officer Mark Shahan also of the Huntsville Police Department. The manager of the store, Gerald Stevens, opened the door and Officer Joyce and Mr. Stevens went into the store. A man, whom Officer Joyce and Mr. Stevens identified as the defendant jumped up from behind the counter and ran towards the back of the store. After a struggle at which time Mr. Stevens kicked the defendant, the defendant was arrested. Certain belt buckles had been displaced within the store. There was a hole in the wall of the store building outside of which were located twelve to thirteen pairs of blue jeans.
“Mr. Stevens testified that he was the owner of Circle J Western World, the same being a corporation in which he owned all of the stock. He further testified that he had locked the store when he left at approximately 9:00 p.m. and that he had not given the defendant permission to go into the store.
“The defendant testified on his own behalf, admitting his presence in the store but asserting that he had run other persons off the premises and gone into the store after running them off.”

There is no contention that the evidence was not sufficient to support the finding of the jury that defendant was guilty of burglary, and our review of the transcript convinces us that there is no reasonable basis for such a contention. However, appellant contends that the evidence did not show that the building alleged to have been burglarized was “a building of Circle J Western World, Inc., a corporation,” as alleged in the indictment. He expresses the first issue presented by him as follows:

“The trial court erred in convicting the defendant of burglary where the State failed to prove the existence of the corporate victim alleged in the indictment and where the defendant on motion for new trial affirmatively showed that said corporate victim did not exist.”

In connection with the quoted issue, appellant challenges the constitutionality of Code 1975, § 12-21-201, which provides:

“In the trial of criminal cases it shall not be necessary for the state to prove the incorporation of any corporation mentioned in the indictment, complaint or information unless the defendant, within 30 days after indictment if the defendant is under bond or within 30 days after arrest on capias, denied the existence of such corporation by a sworn plea.”

Appellant recognizes that § 12-21-201, as codified in every code since Code 1907, has been uniformly held to be constitutional, beginning with West v. State, 168 Ala. 1, 53 So. 277 (1910). It was recently upheld against the attack made upon it in Pace v. State, Ala.Cr.App., 369 So.2d 1281 (1979).

Appellant purports to advance argument not made in cases that have upheld § 12-21-201 as constitutional by arguing that it shifts the burden of proof to the defendant as to the averment that the building burglarized was the property of a corporation. He relies largely upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), in which it was held that the “instruction given” by the trial court to the jury was “unconstitutional.” The “instruction given” in a prosecution for “purposely or knowingly” committing homicide stated, “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” However valid some contention not previously made and considered by the appellate courts of Alabama challenging the constitutionality of § 12-21-201 may be, which we should not attempt to determine at this time, there is nothing in the particular section of the Code to cause a shifting of the burden of proof or persuasion from the State to the defendant. It renders immaterial the particular allegations in the circumstance stated, with no effect upon the burden of proof as to the material allegations. By the language of the section, the burden is on the State “to prove the incorporation of any corporation mentioned in the indictment” if the defendant timely files a verified plea denying the existence of the corporation.

No question was raised before or during the trial as to the constitutionality of § 12-21-201, and no reference was made to it until defendant filed his motion for a new trial. Appellant recognizes that ordinarily the unconstitutionality of a statute is required to be raised on or before the trial. Hollis v. State, Ala.Cr.App., 380 So.2d 409 (1980). We are unable to agree with his contention that the constitutional question “goes to the jurisdiction of the Court.” Neither James v. State, 21 Ala.App. 295, 107 So. 727 (1926), which permitted defendant to raise for the first time on appeal an attack upon the constitutionality of a statute creating the court in which defendant was tried, nor Cook v. State, 32 Ala.App. 54, 21 So.2d 446 (1945), in which it was held that the trial court had no jurisdiction because the indictment therein was void, is in point. Here the trial court is a court of general jurisdiction, and the validity of the indictment is not subject to serious question.

Aside from any question as to the constitutionality of § 12-21-201, we must conclude that, notwithstanding official certificates attached to defendant’s motion for a new trial to the effect that no record of the incorporation of Circle J Western World was in the appropriate office therefor in Madison County or in the office of the Secretary of State at Montgomery, the transcript in this case shows by the testimony of a witness who should have known that the named entity was a corporation. This is to be observed from appellant’s summary of the evidence as quoted in the first part of this opinion wherein he said, “Mr. Stevens testified that he was the owner of Circle J Western World, the same being a corporation in which he owned all of the stock.” Furthermore, on cross-examination of the witness, we find:

“Q. Mr. Stephens, are you the sole owner of Circle J Western World?
“A. Circle J now is incorporated. I own all the stock in it, so I guess I would be the sole owner.
“Q. You own all the stock in Circle J Western World?
“A. Yes, ma’am.
“Q. So there are no other stockholders in that corporation?
“A. No, ma’am. There was at the time we incorporated, then they sold all of the stock back to me.
“Q. And it’s Circle J Western World, Incorporated?
“A. Yes, ma’am.”

Appellant urges that the Habitual Felony Offenders Act is in deprivation of a defendant’s due process right in that it does not require notice to defendant prior to his conviction that he would be sentenced as an habitual offender. He also urges that “the application of the Habitual Offender Act to him constituted cruel and unusual punishment violative of the Eighth Amendment to the United States Constitution because the court sentencing the defendant could not consider the nature of the underlying felonies or defendant’s prior treatment and response to a particular treatment subsequent to those convictions since sentencing under the Habitual Offender Act is mandatory once the requisite number of felonies have been proven.” Both contentions have been decided adversely to appellant, particularly and recently in Holley v. State, Ala.Cr.App., 397 So.2d 211 (1981).

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    John Paul DEJNOZKA v. STATE.
    8 Div. 456.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Bruce E. Williams, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

In another case involving the “Southwest Molester”, the defendant was indicted and convicted for burglary in the first degree. Sentence was 150 years’ imprisonment.

The two questions raised on appeal concern the propriety and constitutionality of the pretrial identification procedure. The defendant was well represented at trial by an attorney experienced in criminal law. The record before this Court contains no objection to the matters counsel attempts to now raise. There was no motion to suppress the pretrial identification procedure. There was no objection to the in-court identification of the defendant by the prosecu-trix. There was no motion for new trial. In short, there was absolutely no objection of any type made to the manner in which the prosecutrix identified the defendant. Under these circumstances nothing is presented for review. Helton v. State, 372 So.2d 390 (Ala.Cr.App.1979); Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, Ex parte Rhine, 360 So.2d 1060 (Ala. 1978); Glover v. State, 347 So.2d 592 (Ala. Cr.App.1977); McGuff v. State, 49 Ala.App. 88, 268 So.2d 868, cert. denied, 289 Ala. 746, 268 So.2d 877 (1972); McCary v. State, 47 Ala.App. 630, 259 So.2d 683 (1972); Allen v. State, 47 Ala.App. 566, 258 So.2d 909 (1972).

We have searched the record and found no error. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: McDONALD, Justice.

text:
    THE FLORIDA BAR. In re AMENDMENT TO the INTEGRATION RULE — PROCEDURE FOR INVESTIGATION OF UNAUTHORIZED PRACTICE OF LAW.
    No. 59126.
    Supreme Court of Florida.
    Jan. 29, 1981.
    N. David Korones, Chairman of the Integration Rule and Bylaws Committee, Clear-water, Ronald R. Richmond, Chairman of the Standing Committee on Unauthorized Practice of Law, New Port Richey, and H. Glenn Boggs, Asst. Staff Counsel UPL, Tallahassee, for petitioner.
   McDONALD, Justice.

The Florida Bar has petitioned this Court to amend Article XVI, Part II, of the Integration Rule which deals with the unauthorized practice of law. In support of its petition, The Florida Bar urges that the revision will add more clarity and specificity to the duties of those charged with investigating and preventing the unauthorized practice of law and that the revision will result in less delay in preventing unauthorized practice of law.

We are ever mindful that it is the public’s interest and not the personal interests of the members of the legal profession which is paramount. There is a potential for harm to the public whenever unqualified persons attempt to practice law and, because of this potential, the prevention of unauthorized practice should be promptly and carefully effected. The proposed changes improve the mechanics to achieve this goal, and the public’s interest is furthered by the changes.

Effective with the filing of this opinion, Article XVI, Part II of the Integration Rule of The Florida Bar is amended as follows:

II. Investigation

A. The Florida Bar, as an official arm of this Court, is charged with the duty of considering, investigating, and seeking the prohibition of matters pertaining to the unauthorized practice of law and the prosecution of alleged offenders. The Board of Governors of The Florida Bar shall establish not less than one (1) Unauthorized Practice of Law Committee in each judicial circuit. The Board of Governors of The Florida Bar shall establish a Standing Committee on Unauthorized Practice of Law of The Florida Bar, which shall supervise and be responsible for each of-the circuit committees consisting of not less than fifteen (151 members which shall include not less than three (3) lav persons. The Standing Committee shall be responsible for each of the circuit committees. The circuit-committees shall receive complaints and conduct investigations of reported unauthorized practice-of — lawr

1. The circuit committees shall conduct investigations of unauthorized practice of law.

2. L Each circuit committee shall be appointed by the Board of Governors and shall consist of not less than three members of The Florida Bar.

3. 2. The terms of the members of circuit committees shall begin on the first day of July and shall end on the next succeeding thirtieth day of June or until such time as their successors are appointed and qualified. The expiration of the term of any member shall not disqualify such member from concluding any investigations pending before him.

4. 3t There shall be a chairman designated by the Board of Governors and a vice chairman and secretary designated by the chairman of each circuit committee.

5. 4 Any member may be removed from his office by the Board of Governors.

6. 5= A majority of a circuit committee; but not less than three members; shall constitute a quorum. All matters requiring- a vote of a circuit committee shall be derided by an affirmative vote of a majority of a quorum-of-the committee.

7. It shall be the duty of each circuit committee to investigate, with dispatch, all reports of unauthorized practice of law and to make prompt written report of its investigation and findings to the Standing Committee on Unauthorized Practice of Law.

B. It shall be the duty-of each circuit committee to investigate, with dispatch, all reports of unauthorized practice of law, and to make-prompt written report of its investigation and findings to the-Standing-Gem-mittee on Unauthorized Practice of Law. It shall be the duty of the Standing Committee to receive and evaluate circuit committee reports and make its findings and recommendations to the Board of Governors. The Board of Governors shall act upon said reports, findings and recommendations and determine whether or not litigation should be instituted against any alleged offender. The Board of Governors may approve civil injunctive proceedings, indirect criminal contempt proceedings, or a combination of both pursuant to the provisions of this article, and such other relief as mav be appropriate.

1. The duties of the Standing Committee shall include, but not be limited to. the following:

a. The consideration and investigation of activities which may, or do. constitute the unauthorized practice of law:

b. The supervision of the several circuit committees on unauthorized practice of law which shall include, but not be limited to:

(i) Prescribe rules of procedure for circuit committees:

Ini Assign reports of unauthorized practice of law for investigation;

(in) Reassign, or withdraw, matters previously assigned and exercise final authority to close cases:

(iv) Join with a circuit committee in a particular investigation:

(v) Assign staff investigators and staff counsel to conduct investigations on behalf of or in concert with the circuit committees: and

(vi)Suspend circuit committee members and chairmen for cause, and appoint a temporary circuit committee chairman where there has been a suspension, resignation or removal, pending the appointment of a permanent chairman by the Board of Governors.

c. The reporting of recommendations to the Board of Governors when litigation should be instituted in order to prevent the unauthorized practice of law:

d. The initiation and supervision of litigation authorized by the Board of Governors. including the power to delegate re-sponsibilitv to staff counsel or an assistant staff counsel to prosecute such litigation:

e. The issuance of advisory opinions, including informal advisory opinions bv authorized staff counsel, as to whether a particular activity constitutes the unauthorized practice of law as provided in Article XI of the Integration Rule: and

f. The giving of advice regarding unauthorized practice of law policy to the officers. Board of Governors, staff, sections, or committees of The Florida Bar as requested.

2. U Upon receiving a written application of the president of The Florida Bar, or the chairman of the Standing Committee on Unauthorized Practice of Law, or of a circuit unauthorized practice committee alleging facts indicating that a person, firm or corporation or entity is or may be unlawfully practicing law and that the issuance of a subpoena is necessary for the investigation of such unauthorized practice, the clerk of the circuit court in which the committee is located or the clerk of the Supreme Court of Florida shall issue subpoenas in the name, respectively, or the chief judge of the circuit or the Chief Justice for the attendance of any person and production of books and records before the investigating circuit committee or any member thereof designated in such application at the time and place within its circuit designated by the investigating circuit committee. Such subpoenas shall be returnable to the circuit court of the residence or place of business of the person subpoenaed. A like subpoena shall issue upon application by any personr4imi or-corporatien or entity under investigation.

3. 2r. Failure to comply with any subpoena shall constitute a contempt of court the Supreme Court of Florida and may be punished by the Supreme Court it or by the circuit court of the circuit to which the subpoena is returnable or where the con-temner may be found. The circuit court courts to which the subpoena is subpoenas are returnable shall have power to enter such protective orders as may be necessary for the enforcement of the subpoena said subpoenas.

4. 3r Each circuit committee or member thereof conducting investigations is empowered to take and have transcribed the testimony and evidence of witnesses who may be sworn by any person authorized by law to administer oaths.

5. The Board of Governors shall employ one or more assistant staff counsel and other necessary employees including investigators to assist the Standing Committee on Unauthorized Practice of Law to carry out the responsibilities of the Standing Committee as prescribed herein.

C. All unauthorized practice of law investigation matters including files, correspondence. preliminary investigation reports. interoffice memoranda, and records of investigations are under the supervision of the Supreme Court and are subject to such public inspection as the Court shall direct.

It is so ordered.

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

      . Parts I and III of Article XVI are unchanged.


author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    Sampson ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 48516.
    Supreme Court of Florida.
    March 26, 1981.
    As Corrected on Denial of Rehearing June 15, 1981.

      Robert E. Pyle, Lake Alfred, for appellant.
    Jim Smith, Atty. Gen., and George R. Georgieff and Donald K. Rudser, and Lawrence A. Kaden, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction on two counts of murder in the first degree and one count of robbery. The Circuit Court of the Tenth Judicial Circuit, in and for Har-dee County, sentenced appellant Sampson Armstrong to death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The appellant and co-defendant Earl En-mund were tried together and convicted of the first-degree murders and robbery of Thomas and Eunice Kersey. After returning verdicts of guilt the trial jury heard evidence on the issue of sentence pursuant to section 921.141, Florida Statutes (1975), and recommended the death penalty for both defendants. The trial court imposed sentences of death on Armstrong for the two counts of first-degree murder and a sentence of life imprisonment for the crime of robbery. We affirm his convictions and sentences of death.

I. Facts

On April 1,1975, at about eight o’clock, a. m., the bodies of Thomas and Eunice Ker-sey were discovered by their daughter in their rural Hardee County home, located on state highway 62 between Fort Green to the west and Wauchula to the east. Mr. and Mrs. Kersey, aged eighty-six and seventy-four respectively, had been shot to death.

Some of the evidence constituting the state’s case in the trial court consisted of physical items recovered at the scene and examined in the course of investigation. The bodies were found on the kitchen floor, near the back door of the home. There was a quantity of blood on the floor, some five feet away from where the bodies were lying, that prompted the authorities to investigate the possibility that one of the perpetrators was wounded during the attack. Later that morning, police found Jeanette Armstrong, the wife of appellant Sampson Armstrong, being treated for a gunshot wound in a hospital in nearby Avon Park, in Highlands County. The blood recovered at the scene proved to be of a different type from either of the Kerseys’ blood, and to match the blood type of Jeanette Armstrong.

On the ground outside the house, investigators found a plastic jug filled with water.

There were four firearm projectiles found at the scene. One was on the ground outside the house, one in the door jamb of the back door, one in the water heater in the kitchen of the house, and one on the floor, under the body of Mrs. Kersey. Mrs. Ker-sey was shot six times in all, with three of the wounds being superficial so that three of the bullets exited the body. Three bullets remained in her body and were recovered. The three bullets found in the body all entered the body in the right side and passed downward.

Mr. Kersey was shot twice. One bullet entered his right arm and passed on through his heart to the left side of his body. The other entered his chest from directly in front. Both bullets were recovered. The bullet that entered from the right side had a slight downward angle. The one that entered the front of the chest was almost straight in its path from front to back. According to expert firearms identification testimony, one of the bullets recovered was a .38 caliber and the other was a .22 caliber. The .38 caliber bullet from the body of Mr. Kersey, a .38 caliber bullet from the body of Mrs. Kersey, and the .38 caliber bullet found in the kitchen door jamb, were all fired from the same weapon. The .22 caliber bullet found in the body of Mr. Kersey and a .22 caliber bullet from Mrs. Kersey were both fired from the same gun.

The pathologist who testified at trial told the court and the jury that when a bullet enters the body, it can be deflected in numerous ways, so that it is difficult to tell of the angle of fire from the path of the bullet. With regard to the specific question of reconstructing the position of Mrs. Ker-sey when she was shot, based on the paths of the bullets, the pathologist testified, “Well, there are all sorts of possibilities .... There is really no way that I could determine what position her body was in when she was shot... . [S]he was shot from below, above, and behind.” None of the entrance wounds on either of the bodies was inflicted from a range of closer than several feet away.

The state presented the testimony of a witness who drove by the Kersey home between 7:30 and 7:40 a. m. on the day the bodies were found. When she passed the Kersey home, she saw on the side of the road a large, cream-colored car with a license tag bearing the prefix number 18. There was a black man in the car. Another witness for the state drove by the house at 7:35 that morning and saw a car parked beside the road about two hundred yards west of the house. It was a large, yellow car with a dark colored top. There was one person in the ear.

The state’s evidence also included the testimony of two of the Kerseys’ neighbors. One testified that on April 1st he was at work on his own land only two or three hundred yards from the Kerseys’ house when, at about 7:45 a. m., he heard from six to fifteen shots of gun fire and some high-pitched screaming. The other neighbor said that he lived only two hundred yards west of the Kerseys, and that between 7:30 and 8:00 o’clock that morning he heard about seven loud sounds. He would have thought that they were caused by Mr. Kersey hammering to separate some scrap metal, except for their irregular sequence. From the sounds he remembered, he concluded that they also could have been gunfire.

A neighbor of the appellant also testified for the state. He said he lived about three-fourths of a mile from Enmund’s home, and that they both lived on a road that runs off of New York Avenue south of the town of Wauchula. This witness testified that on the morning of April 1st, at about 6:30 he was standing out beside the road, New York Avenue, that goes into Wauchula to the north. He was waiting for a ride that was to take him to another town on personal business. The person who was to meet him there did not come that morning, but he was still standing there waiting for him after 8:00 o’clock. The witness said that at approximately 6:30 or 6:45, he saw co-defendant Earl Enmund and his former common-law wife Ida Jean Shaw in their yellow Buick with a vinyl top. Ida Jean Shaw was driving. There were two others in the back seat, one male and one female. The car traveled north toward town (the town of Wauchula). At about 8:00 o’clock, the car came back, travelling “pretty fast” in a southerly direction on New York Avenue, with the appellant driving, Ida Jean Shaw in the front seat, and one of the other two people in the car lying down across the back seat.

The husband of the Kerseys’ granddaughter testified that Mr. Kersey usually kept large amounts of money on his person. He generally kept the cash in the form of one-hundred-dollar bills. It was not unusual for him to have from ten to twenty of these on his person at any given time. He kept the money in his wallet, and the wallet was in his hip pocket at all times. He normally slept in his regular work clothing and kept the wallet in his pocket even as he slept.

Mr. Kersey, the witness testified, liked to show his money to people he dealt with, and he did so frequently and indiscriminately. He tended to save his money rather than to spend it, and he was proudly vocal about having it. He was a large, strong man who felt that he could protect his wallet.

Another witness testified that two weeks prior to the murders, he saw that Mr. Ker-sey had from twelve to fifteen hundred dollars on his person.

A few weeks prior to the murders, Earl Enmund and a friend jointly purchased a calf from Mr. Kersey. They paid him in cash and when Mr. Kersey took out his wallet to put away the money he showed them its contents. Enmund said, “Look at the money this man’s got.” Mr. Kersey responded, “That ain’t no money. I can dig up $15,000, $16,000 any time I want to.” Enmund’s friend told Mr. Kersey that he shouldn’t be showing his money around like that. Mr. Kersey said, “I know you, Jim.” The other man responded, “Yeah, you know me but you don’t know the rest of them.” After the killings, Mr. Kersey’s wallet was not found on his person or anywhere in the house.

J. B. Neal testified that at about noon on April 1, 1975, he saw Sampson Armstrong in Lake Placid, in Highlands County. Armstrong told Neal that he and his wife Jeanette had done a robbery that morning at a ranch house outside of Wauchula and that Jeanette had been shot. Armstrong told the witness that they had gone to the back door of the house of an elderly man and woman, saying that they needed water for an overheated car. When Mr. Kersey came out of the house, Armstrong grabbed him, held his gun on him, and told Jeanette to get the money out of his pocket. Then, the old man cried out to his wife, and through the window Armstrong saw Mrs. Kersey coming out the front door and around the house with a gun. Mrs. Kersey shot Jeanette Armstrong. Then Armstrong knocked the old man down and shot Mrs. Kersey. Mr. Kersey got back up and Armstrong shot him in the chest. After the shooting, they put the old people in the house, took the money and left.

Jeanette Armstrong is the daughter of Ida Jean Shaw. In April of 1975, Ida Jean Shaw and Earl Enmund were living together as husband and wife, and had been doing so for about twelve years.

There was testimony that the investigating authorities, based on witnesses’ descriptions of the car seen near the Kersey home the morning of the murders, began to search for a large, yellow or cream-colored car with a dark top and having a number 18 license tag prefix. They found a car meeting this general description in the possession of Ida Jean Shaw.

At Walker Memorial Hospital in Avon Park on the morning of the murders, police questioned Ida Jean Shaw concerning Jeanette Armstrong’s gunshot wound. She told them that she and Jeanette had been travelling that morning from Wauchula to Avon Park when Jeanette entered an orange grove to urinate and was shot. In the subsequent course of the investigation of the Kersey murders, Ida Jean Shaw gave a statement to the state attorney implicating Earl Enmund and Sampson Armstrong in the crimes. Subsequent to that initial statement, she gave two statements, one of them a formal deposition, in which she repudiated the original statement. In these statements she said that Jeanette Armstrong left her house on March 31, 1975 with two men referred to as Luke and Willie. According to this story, Jeanette said that they were going to Fort Myers to a nightclub. On the following morning, Luke and Willie brought Jeanette home wounded. Jeanette, Luke and Willie then told Ms. Shaw to tell anyone who asked that Jeanette had been shot while trespassing in a citrus grove. The import of the story told in the depositions was to implicate “Luke and Willie” in the Kersey murders and to exculpate the defendants. In one of her depositions, Ida Jean Shaw stated that her earlier statement implicating the defendants in the crimes was false and was fabricated by agreement with Jeanette Armstrong and calculated to put Enmund and Armstrong in jail and thus be free of the strictures of married life.

Ida Jean Shaw, over the objections of the defendants, was called to testify at trial as a court’s witness. The court examined her and then the state and counsel for each of the defendants cross-examined her.

Ms. Shaw testified at trial as follows. At and around the time of the crimes, she and Enmund lived together in a house on Revell Road in Wauchula, and that they had held themselves out to friends and neighbors and in business transactions as husband and wife for twelve years. Her daughter Jeanette was married to Sampson Armstrong and lived in Lake Placid. On the weekend preceding Tuesday, April 1st, Ms. Shaw celebrated a birthday. On Friday night, Jeanette came to her home. On Sunday, she and Jeanette went to Lake Placid and brought Sampson Armstrong back. On Monday night, March 31, Jeanette Armstrong, Enmund, and the appellant were all there at the house in Wauchula. On Tuesday, April 1st, when she awoke at about 7:45 a. m., none of the three was there. Neither was her brown and yellow 1969 Buick.

Ms. Shaw got up and went to the neighborhood wash house. About ten minutes later, either Enmund or Sampson Armstrong came into the wash house and told her that Jeanette had been shot. Ida Jean Shaw went back to the house. Jeanette was in Earl Enmund’s red Plymouth automobile. The appellant was with her and Enmund was in the house. Ms. Shaw then took Jeanette up to the local store corner and called an ambulance. Then Enmund came to the corner where they were awaiting the ambulance and asked her what had happened to Jeanette. Ida Jean Shaw told Enmund that Jeanette had been shot in an orange grove. Then the ambulance came and Ida Jean accompanied Jeanette on the ride to the hospital. Ida Jean learned from Jeanette how she was shot. Earl followed in a separate car. Sampson Armstrong also went to the hospital that day.

After spending Tuesday morning at the hospital, Ms. Shaw left there with Earl and Sampson. They went to Wauchula to get the children and then went on to Lake Placid. On the way to Wauchula, Ida Jean Shaw asked Enmund “why he did it.” He replied that he had seen Mr. Kersey’s money and therefore decided to rob him. Sampson Armstrong said that he made sure the people were dead.

Ida Jean Shaw testified further that on Wednesday, April 2, 1975, she, Earl, Sampson, and some of her children were in a car on their way home from the hospital when Sampson gave her $200. By passing written notes in the car, she asked him how much money he got out of the robbery and he responded that he had $600 left. She took the $200 and made a loan payment on an account of Earl Enmund’s that was in arrears. There was corroborating testimony of this, and that the bill was paid with two one-hundred-dollar bills.

Ms. Shaw testified that prior to the events of April 1st, she kept a .22 caliber pistol in the glove compartment of her car. On April 2, she removed the gun from the loft at her house on Earl Enmund’s directions. He and Sampson told her to get rid of the gun and also a .38 caliber pistol that was at the house, because, Sampson said, they had been used to kill some people. She put the guns in the bottom of a bucket of greens and gave the bucket to a friend, Jeanette’s paternal uncle. This person testified that the bucket was a large and heavy metal one and that the greens spoiled in the trunk of his car. He said he threw them away, bucket and all, and didn’t know about the guns. The murder weapons were never recovered.

At trial Ms. Shaw testified that the story about Luke and Willie was a complete fabrication, and that she made up the story and related it at the request of the defendants. Earl Enmund, she said, instructed her on this matter in letters smuggled out of the jail.

The state’s counsel moved that Ida Jean Shaw be called as a court’s witness on the ground that due to the inconsistencies in her pretrial statements, the state was not certain how she would testify and would not vouch for her credibility. Through her examination by the court, cross-examination by the state, and cross-examination by counsel for each of the defendants, the following matters pertaining to her credibility were brought out for consideration by the jury. Ms. Shaw was granted immunity from prosecution for any role she might have played in the murders and robbery. As related above, she gave several inconsistent statements during the investigation and prosecution of the crimes. One of her statements was in a deposition under oath, and at trial she conceded that she had lied in that statement. Prior to the trial, she was charged with perjury. She was arrested and held in jail for thirteen days. The prosecutors advised her of the maximum penalty for the crime of which she stood accused. Then they promised her that she would not be prosecuted for perjury if she would testify at the murder and robbery trial and tell the truth.

II. Issues on Appeal of the Judgment of Conviction

The appellant raises several points which he contends require the reversal of his convictions.

The appellant argues that the trial court erred in admitting the testimony of Ida Jean Shaw. He asserts that her inconsistent pretrial statements, which resulted in a charge of perjury, rendered her so unreliable as to be an incompetent witness. He also contends that the pendency of her perjury prosecution, which she was promised would be discontinued if she would testify truthfully, created an unacceptably high risk that her testimony would be the product of coercion.

With regard to the unreliability argument, the trial court informed the jury that Ms. Shaw was being called as a court’s witness because the state could not vouch for her credibility. The jury was instructed to consider her testimony and to accord it whatever credibility they thought it deserved. It is within the discretion of the trial judge to call an uncooperative witness as a court’s witness to allow the state to ask leading questions. McCloud v. State, 335 So.2d 257 (Fla.1976).

With regard to the issue of coercion, the appellant cites Davis v. State, 334 So.2d 823 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977), and Lee v. State, 324 So.2d 694, 695 (Fla. 1st DCA 1976). The Lee case quoted this Court’s statement in Mathews v. State, 44 So.2d 664, 669 (Fla.1950), that

in interviews with witnesses before trial, the examiner “must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses.”

Lee v. State, 324 So.2d at 698.

In Davis, the prosecuting attorney asked the trial court to delay the swearing of the jury because one of the witnesses he intended to call had become uncooperative. The witness, a close friend of the defendant, had made a statement in a deposition which linked the defendant to the crime but immediately before trial gave a different account of what she knew. The prosecutor conferred with her and told her that she had three choices: refuse to testify and be held in contempt of court and jailed; give an account that differed from her deposition statement and be charged with perjury and possibly imprisoned for fifteen years; or testify to “the truth” in which event nothing would happen to her. The circumstances of the prosecutor’s conference with the witness were revealed to the jury. On appeal, the district court reversed and remanded for a new trial, citing as authority Lee v. State. Applying the Lee principle to the facts before it, the court in Davis concluded:

While it is true that the assistant state attorneys admonished the witness to tell the truth, it must have been obvious to the witness that the “truth” was that which she had testified to at an earlier deposition. Rules of evidence and procedure exist which are designed to assist prosecution and defense alike in eliciting the truth from balky witnesses. Coercion and threats are not among these rules.

Davis v. State, 334 So.2d at 826.

The appellant contends that when the prosecution told Ida Jean Shaw that she could be released from jail and have the perjury charges dropped if she would tell “the truth”, there is an unacceptably high probability that she understood that the “truth” the prosecution wanted was testimony linking the appellant to the crimes. We disagree. In Lee v. State, the error was not in allowing the witness to testify but in keeping from the jury information regarding the arrangement by which the state gained the cooperation of the witness. In Davis, the prosecutor indicated to the witness that she should testify consistently with what she said before. Thus he “injected” information. In the case sub judice, the prosecution did not suggest to Ms. Shaw what they wanted her to say, but simply advised her to tell the truth. We hold that the court did not abuse its discretion in allowing into evidence the testimony of Ida Jean Shaw.

The appellant contends that a new trial is required because the jury was not fully informed of the understanding between the state and Ida Jean Shaw. It is true, as appellant points out, that it is a denial of due process if the jury is misled as to facts bearing on the credibility of a witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). If a failure to fully inform the jury of the interest of a witness could in any reasonable likelihood have affected the decision of the jury, a new trial is required. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Wolfe v. State, 190 So.2d 394 (Fla. 1st DCA 1966). Our review of the record reveals that the jury in the present case was fully informed of Ms. Shaw’s immunity transaction and her pending perjury prosecution.

Having given careful consideration to appellant’s arguments, and having reviewed the record to determine the sufficiency of the evidence, we affirm the judgment of conviction.

III. Sentence

We come now to the consideration of the sentences of death imposed on the appellant pursuant to section 921.141, Florida Statutes (1975).

Appellant contends that the trial judge’s factual findings on which he based the decision to impose death were derived in part from information not disclosed to the appellant and which he therefore had no opportunity to rebut, explain, or deny. A death sentence based on such nondis-closed information would violate the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). During the pendency of this appeal, we directed the judge who imposed the sentences in this case to state whether he did so based on any such nondisclosed information. We are satisfied from his response that there was no due process violation under Gardner.

The appellant advises us that Jeanette Armstrong, originally a co-defendant with him, was tried separately, convicted of two counts of second-degree murder and one count of robbery, and sentenced to three consecutive life sentences. He argues that his death sentences must be vacated because the jury was not advised of the ultimate disposition of the charges against Jeanette Armstrong.

In Messer v. State, 330 So.2d 137 (Fla.1976), we vacated the sentence of death, partly on the ground that the court erred in refusing to permit the defendant to submit to the jury evidence of the plea-bargained conviction and sentence of the appellant’s accomplice. Any evidence reasonably related to a valid mitigating consideration should, when proffered by the defendant, be admitted into evidence at the sentencing phase of a capital felony trial. See, e. g., Miller v. State, 332 So.2d 65 (Fla.1976). Appellant did not proffer the evidence in question Therefore, even assuming the information had some valid mitigating value, we can find no trial court error under the Messer rule.

After the sentencing hearing was held and sentencing arguments presented to the jury, the jury recommended a sentence of death. The trial judge sentenced appellant to death and subsequently put his findings and considerations in writing as follows:

In accordance with the mandate of the Florida Supreme Court the Court makes the following findings of fact:
1. As an aggravated circumstance, the capital felony, that is, the murders of Thomas Henry Kersey, aged 86 years and his wife Eunice Maye Kersey, aged 74, were committed while the defendant Armstrong was engaged, or was an accomplice, in the commission of or an attempt to commit an armed robbery. FS 921.141(5)(d).
2. As a further aggravating circumstance, the Court findings that the capital felony was committed for pecuniary gain. FS 921.141(5)(f). The evidence is abundantly clear that the armed robbery was committed for pecuniary gain and that the co-defendant Earl Enmund was previously aware that Mr. Kersey had a reputation for keeping large sums of money on his person. The co-defendant Enmund actually saw Mr. Kersey with money, and the testimony amply indicates that the armed robbery of April 1, 1975, was planned ahead of time by the co-defendant Enmund and that the defendant Armstrong participated in the planning and preparation.
3. As a further aggravating circumstance, the Court finds that the capital felony was especially heinous, atrocious, or cruel. FS 921.141(5)(h). The evidence amply supports a finding that the killing of Mr. Kersey aged 86, and Mrs. Kersey aged 74, was not a spontaneous matter. A reasonable person must conclude that the killings were done for no other purpose than to eliminate Mr. and Mrs. Ker-sey as witnesses to the armed robbery. The killings were premeditated in that Mr. Kersey was shot two (2) times and Mrs. Kersey was shot six (6) times. Two (2) bullets were subsequently recovered from the house, one (1) in the water heater and one (1) in the doorjamb. The medical examiner testified that in his opinion the bodies had to have been shot while in a prone position (his alternative explanation was that someone could have stood on a roof and shot down, or else tied the Kerseys’ by their feet, hoisted them up and shot them from below). The entry of the bullets indicates that Mr. and Mrs. Kersey were in a prone position, that is, helpless to resist. The evidence indicates that Mrs. Kersey was shot first in the left side and that these wounds were not fatal, and that thereafter someone stood back and fired upon her prone body and then fired the bullets into the heater and the wall. Further, two (2) different weapons, that is, a .22 caliber weapon and a .38 weapon were fired at and into Mr. and Mrs. Kersey.
Three individuals were charged with these crimes. The co-defendant Enmund and the defendant Sampson Armstrong were tried together and the defendant Jeanette Armstrong was tried separately. The Court knows from this trial and from the trial of Jeanette Armstrong that she was shot at the scene and sustained serious wounds. Since the defendant Jeanette Armstrong was seriously wounded and since both Mr. and Mrs. Kersey were each shot with bullets from two (2) different caliber guns, and since the evidence establishes that Mr. and Mrs. Ker-sey were each shot while in the prone position, it is only reasonable to conclude, and the Court so finds, that the co-defendant Enmund and the defendant Sampson Armstrong, each fired into the bodies of Mr. and Mrs. Kersey.
4.The other aggravating circumstances to-wit: FS 921.141(5)(a); 921.-141(5)(b); 921.141(5)(c); 921.141(5)(e); and 921.141(5)(g), are inapplicable in this case.
As to mitigating circumstances involving the defendant Sampson Armstrong, the Court makes the following findings:
1. The Court has considered FS 921.-141(6)(a), and finds that the defendant has previously been convicted of, and was on parole for, a felony at the time of the instant offenses, to-wit: Breaking and Entering.
2. As to FS 921.141(6)(b), the defendant Armstrong attempted to establish that he was under the dominance of the co-defendant Enmund and the co-defendant Jeanette Armstrong, his wife, however, this attempt failed and there is no believable evidence that the capital felony was committed while the defendant Armstrong was under the influence of extreme mental or emotional disturbance.
3. As to FS 921.141(6)(c), there is absolutely no evidence that the victims were a participant in the defendant’s conduct or consented to the act.
4. As to FS 921.141(6)(d), the evidence clearly indicates that the defendant was an active accomplice to the capital felony and that his participation in the capital felony was major. As stated in paragraph 3 of the aggravating circumstances, the evidence leads to the reasonable conclusion that the defendant Armstrong fired into the prone bodies of Mr. and Mrs. Kersey.
5. As to FS 921.141(6)(e), there is no believable evidence that defendant acted under extreme duress or under the substantial domination ■ of another person. (See paragraph 2 above)
6. As to FS 921.141(6)(f), there is absolutely no evidence that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
7. As to FS 921.141(6)(g), the defendant was 23 years of age at the time of this offense and this constitutes the only possible mitigating circumstance as to the defendant Armstrong.
Therefore, in consideration of the evidence presented at trial and at the sentencing hearing as to the defendant Sampson Armstrong, the Court finds that the aggravating circumstances, and upon consideration thereof, the Court was of the opinion at the time of sentencing and is now, some months later, that the sentence of death is justified and appropriate as to each Count of Murder in the First Degree.

The trial court found three aggravating circumstances: that the murders were committed in the course of a robbery; that they were committed for pecuniary gain; and that they were especially heinous, atrocious and cruel. The court also stated that appellant’s age of 23 years at the time of the crime “constitutes the only possible mitigating circumstance.” On review of the sentencing findings, evidence, and record we conclude that this statement does not constitute a finding of a mitigating factor based on youth. The court found that there were no mitigating circumstances and the factor of age was given no consideration.

The court’s findings that the capital felonies were committed in the course of robbery and that the capital felonies were motivated by pecuniary gain both “refer to the same aspect of the defendant’s crime.” Provence v. State, 337 So.2d 783, 786 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). The robbery circumstance and the pecuniary motive constitute “only one factor which we must consider in this case.” Id. at 786. Where such double consideration of one factor appears to have impaired the process of weighing the aggravating circumstances against the mitigating circumstances, the sentence of death must be vacated. See Elledge v. State, 346 So.2d 998 (Fla.1977). The “mere recitation of both circumstances,” however, “does not in all cases call for a condemnation of the sentencing hearing and judgment.” Hargrave v. State, 366 So.2d 1, 5 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). The fact that the murders took place in the course of a robbery and that the criminal episode was motivated by pecuniary gain constitute one valid aggravating circumstance, amply established by the evidence.

The finding that the murders were especially heinous, atrocious, and cruel cannot be sustained. The language of this statutory aggravating circumstance was expounded upon in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The majority opinion in that case said:

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Id. at 9. Based on that interpretation, the Court stated in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2220, 53 L.Ed.2d 239 (1977), that a murder by shooting that causes instantaneous death is simply not in the “heinous, atrocious, or cruel” category.

In support of his finding that the killings were especially heinous, atrocious, or cruel, the trial judge made reference to the ages of the victims and stated that the killings were “not a spontaneous matter.” The testimony at trial revealed, however, that the murders were only at the scene of the crime for a very brief period. The shots were heard at 7:45; the victims were found dead at 8:00 o’ clock. The only direct account of what transpired is from the testimony of J. B. Neal about Armstrong’s statement to him. By that account, the shootings were indeed spontaneous and were precipitated by the armed resistance of Mrs. Kersey. The judge also found support for the finding of this factor in the fact that the murders were premeditated. Nothing in section 921.141, as it stood at the time of the crimes and the trial of this case, nor in the decisions of this Court construing it, supports the proposition that the factor, heinous, atrocious, or cruel is established by the existence of premeditation.

Discussing further the basis for his finding, the judge said, “A reasonable person must conclude that the killings were done for no other purpose than to eliminate Mr. and Mrs. Kersey as witnesses to the armed robbery.” A purpose to eliminate witnesses has been said to support the finding that a capital felony “was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” § 921.141(5)(e), Fla.Stat. (1975); Riley v. State, 366 So.2d 19 (Fla.1978). In order for such witness-elimination motive to support a finding of the avoidance of arrest circumstance when the victim is not a law enforcement officer, “[p]roof of the requisite intent to avoid arrest and detection must be very strong.... ” Riley v. State, 366 So.2d at 22.

It has been said that execution-type slayings, evincing a cold, calculated design to kill, fall into the category of heinous, atrocious, or cruel. Magill v. State, 386 So.2d 1188 (Fla.1980); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). In order to invoke such a basis for a heinousness finding, however, the same standard of proof as is required to establish a purpose to eliminate witnesses should be applied. It simply cannot be said that there was proof that the robbers killed in order to assure that there would be no witnesses against them.

The trial judge based his conclusion on the testimony of the pathologist. The judge found the testimony to show that the victims, after the initial shooting, were laid out prone and then “finished off.” The testimony of the pathologist makes clear, however, that his conclusions as to the direction of fire and the positions of the victims when shot were equivocal at best. Thus it was insufficient to prove that the motivation was witness elimination. It is possible to infer that the robbers used their guns in order to increase their chances of departing the Kersey ranch with their lives.

The jury recommended death. The trial judge erroneously considered certain circumstances as aggravating. The error did not impair the process of weighing the aggravating against the mitigating circumstances because there were no mitigating circumstances to weigh. The killings took place in the course of a robbery. Death is the appropriate punishment. The sentences of death are affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON and ENGLAND, JJ., concur.

SUNDBERG, Chief Justice,

concurs as to conviction, and dissents as to sentences:

Due to substantial errors in the aggravating findings, I dissent from affirming the death sentences and would remand for re-sentencing by the trial judge only.


author: ADKINS, Justice.

text:
    Henry Perry SIRECI, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 50905.
    Supreme Court of Florida.
    April 9, 1981.
    As Corrected on Denial of Rehearing June 10, 1981.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Robert L. Bo-gen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death. We have jurisdiction.

The defendant, Sireci, went to a used car lot, entered the office, and discussed buying a car with the victim Poteet, the owner of a car lot. Defendant argues that the purpose of his visit was to take some keys from the rack so that he could come back later and steal an automobile. The state argues that defendant went to the used car lot for the purpose of robbing the owner at that time.

The defendant was armed with a wrench and a knife. A struggle ensued. The victim suffered multiple stab wounds, lacerations, and abrasions. An external examination of the body revealed a total of fifty-five stab and incisive wounds, all located on the chest, back, head, and extremities. The stab wounds evoked massive external and internal hemorrhages which were the cause of death. The neck was slit.

The defendant told his girlfriend, Barbara Perkins, that he was talking to the victim about a car, then he hit the victim in the head with the wrench. When the man turned around, the defendant asked where the money was, but the man wouldn’t tell the defendant, so he stabbed the man. The defendant told Perkins that he killed Po-teet. He admitted taking the wallet from the victim.

Harvey Woodall, defendant’s cellmate when he was arrested in Illinois, testified that the defendant had described the manner in which he killed the victim. According to Woodall’s testimony, the defendant hit the victim with a wrench, then a fight ensued in which the windows were broken, and the defendant stabbed the man over sixty times. The defendant stated that he wasn’t going to leave any witnesses to testify against him and that he knew the man was dead when he left. The defendant told Woodall he got around $150.00 plus credit cards.

The defendant also described the crime to Bonnie Arnold. According to Arnold, the defendant stated that the car lot owner and he were talking about selling the defendant a car, when the defendant hit the victim with a tire tool. A fight began and the defendant stabbed the victim. The defendant told Arnold that he was going in to steal some car keys and then come back later to steal a car.

The defendant told David Wilson, his brother-in-law, that he killed the victim with a five or six-inch knife and took credit cards from the victim.

The defendant contends that the killing was a spur-of-the-moment act occurring after a fight had begun and that he entered the used car lot without any intent to rob or harm the victim. His only intent was to take keys from the office in order to return, after the office was closed, for a car. Defendant says this negates the element of premeditation.

Premeditation can be shown by circumstantial evidence. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues. Weaver v. State, 220 So.2d 53 (Fla. 2d DCA), cert. denied, 225 So.2d 913 (1969). Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act. Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA) cert. denied, 277 So.2d 287 (1973). Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned. Larry v. State, 104 So.2d 352 (Fla.1958). Weighing the evidence in light of these standards it is clear that the premeditation of the defendant has been proved beyond a reasonable doubt.

The defendant stated to witness Perkins, in recounting the incident, that he hit the victim with the lug wrench, and demanded from the victim the location of the victim’s money. The victim would not tell him, so the defendant stabbed him. The defendant told witness Perkins that he had looked all over for the money, but couldn’t find any, so he took the man’s wallet. The evidence shows that the defendant needed money, since he was not working and was preparing to go on a trip. The evidence was also sufficient to sustain a finding by the jury that defendant was guilty of felony murder. There was clearly sufficient, competent evidence by virtue of the circumstances, the physical evidence, and the defendant’s own statements, to support the jury’s verdict of guilty of murder in the first degree. Every reasonable hypothesis of innocence was excluded.

The defendant questions the admissibility of testimony from his former cellmate, Holtzinger, regarding an alleged attempt by the defendant to have his brother-in-law, Wilson, killed. The defendant says this was an improper reference to a collateral offense. Wilson testified as to various statements made by the defendant which fully implicated him in the crime charged. He also testified that the defendant gave details about the knife and where the homicide took place. The defendant told Wilson where the knife was located and Wilson retrieved the knife at that location and turned it over to the authorities. The defendant told Holtzinger that the purpose of eliminating Wilson and preventing him from testifying was to discredit the testimony of witness Perkins, thereby avoiding a conviction. Evidence that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post facto indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions. Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960). A defendant’s attempt to intimidate a state witness is relevant and admissible. Vaccaro v. State, 152 Fla. 123, 11 So.2d 186 (Fla. 1942); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898).

It is axiomatic that evidence of another crime is admissible if it casts light on the character of the act under investigation by showing either motive, intent, absence of mistake, common scheme, identity, or a system or general pattern of criminality, so that the evidence of such other crime would have a relevant or material bearing upon some essential aspect of the offense being tried. Ashley v. State, 265 So.2d 685 (Fla.1972); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 103, 4 L.Ed.2d 86 (1959). The test for determining whether a defendant’s prior crimes are admissible is relevancy, and, as long as the evidence of other crimes is relevant for any purpose, the fact that it is prejudicial does not make it inadmissible. Ashley v. State, supra.

The defendant contends that he was unduly prejudiced by the state’s failure to include the name of Donald Holtzinger on a written witness list until the day of the trial. He argues that the trial court erred in refusing to strike Holtzinger's testimony. The defendant moved to continue the trial on the grounds that he had been given an additional list of five witnesses shortly before the trial and the state had failed to comply with the requirements of Florida Rule of Criminal Procedure 3.220. Compliance with this rule, i. e., furnishing a list of witnesses, does not necessarily have to be in writing.

The state was aware of the existence of this witness approximately four months prior to trial. Within two weeks after the state became aware of the witness, the detective who had the witness’s name and the contents of his relevant information was deposed by the defendant’s first attorney. The detective, at this deposition, informed the defendant’s attorney of the witness Holtzinger, and that Holtzinger had been talking with the defendant about the incident in question. The initial witness list supplied to the defense concluded with the statement, “together with any other persons named in any investigative or laboratory reports or other documents furnished in compliance.” Furthermore, Holtzinger’s name was number 28 on the praecipe for witness subpoena, which was filed twelve days prior to trial. Additionally, defendant’s counsel was made aware of the witness Holtzinger by prior defense counsel one week before trial. Finally, written notice was given to defense counsel two days before Holtzinger’s testimony. A comprehensive inquiry, as contemplated by Richardson v. State, 246 So.2d 771 (Fla.1971), was made by the trial court. It is axiomatic that a motion for continuance is addressed to the sound discretion of the trial judge. Raulerson v. State, 102 So.2d 281 (Fla.1958). The defendant has failed to show that there was an abuse of the trial judge’s discretion and has further failed to show that any prejudice resulted by the failure to include Holtzinger’s name in an earlier written witness list.

In Mobley v. State, 327 So.2d 900 (Fla. 3d DCA), cert. denied, 341 So.2d 292 (Fla.1976), the court held that even though the state failed to provide the defendant with the name of a witness pursuant to a defense request for a typical discovery, the trial court did not abuse its discretion in denying defendant’s motions to exclude the witness and in denying defendant’s motion for continuance, where the defendant was given an opportunity to speak with the witness and where the name of the witness was listed in at least three places on defendant’s arrest report. In 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), this Court held that the defendant had not been unfairly surprised by the fact that a ballistics expert had been left off the list of witnesses, where defense counsel reasonably should have been aware of the state’s proposed proof by reason of information already known to the defendant. See also Floyd v. State, 361 So.2d 802 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979); Cooper v. State, 356 So.2d 911 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1364 (Fla. 1979).

During the cross-examination of state witness Perkins the defense attempted to impeach her by use of the fact that during a deposition she had refused to answer questions on the advice of her attorney and pursuant to her attorney’s objection on the grounds that she may be incriminated. Perkins admitted that this was the content of her deposition. Apparently defendant had information that public defender Bowen had worked out a deal in her behalf so that she would acquire immunity in exchange for her testimony. The defendant says that reversible error was committed because he was restricted in his cross examination of Perkins, so that he could not make inquiry as to the existence of an immunity contract.

However, the record discloses that defendant’s counsel questioned her fully and in detail regarding any agreement which was made or promises which were received in return for her testimony. Perkins testified there was no agreement not to prosecute in exchange for her testimony. She was not charged with the commission of any offense in connection with the incident. She stated that she had not been led to believe, or assured, that she could not be prosecuted. On cross-examination she testified that she had not entered into any agreement with the prosecutor in connection with any offense in exchange for her testimony in the case. She knew of no deal worked out in her behalf by public defender Bowen in exchange for her testimony. The trial court clearly indicated defense counsel could attempt to impeach the witness’s testimony regarding the fact that there had been no arrangement between her and the state for her testimony at the trial. However, no impeachment testimony was offered.

Wide latitude is permitted on cross-examination in a criminal proceeding, the scope and limitation of which lies within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion. Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978). The defendant has failed to show any abuse of discretion on the part of the trial court.

Detective Nazurchuk testified concerning the interrogation of the defendant shortly after he was arrested. He stated that he read defendant his rights and that “he requested his attorney.” The detective stated that the interview was then terminated. The defendant says he was denied due process of law by the introduction of this testimony which was a direct comment upon his exercise of his constitutional right to remain silent. The defendant made incriminating statements to many people, including a confession to his brother-in-law.

Section 40.01(1), Florida Statutes (1977), provides that any expectant mother or mother of a child under fifteen, years of age may be exempted from jury duty upon request. The defendant’s contention that this statute denies his right to a fair cross-section of the community on his jury is without merit. McArthur v. State, 351 So.2d 972 (Fla.1977).

The defendant claims that he was denied due process of law by the state’s failure to notify him prior to trial of the aggravating circumstances the state intended to prove in the case. This argument is without merit. 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). Section 921.141(5), Florida Statutes (1977), defines the aggravating circumstances that may be considered by both the judge and the jury. This clearly rebuts the defendant’s argument that he had no notice of the aggravating circumstances on which the state would rely.

The statutes in some other states specifically require that notice of the aggravating circumstances be given to the defendant prior to trial. The defendant’s reliance upon cases from these jurisdictions is misplaced for it is irrelevant what other state statutes require in this regard. Even in the absence of such a provision, the Florida statute is constitutional and has been so held. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Menendez, supra; Spinkellink, supra; State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

The defendant argues that in order for the trial court to have the requisite jurisdiction to impose the death sentence, a listing of the aggravating circumstances which the state intends to rely upon must be contained in the indictment. This argument is also without merit. When one is charged with murder in the first degree, he is well aware of the fact that it is a capital felony punishable by a maximum sentence of death, as provided in section 775.082 and 921.141, Florida Statutes (1977). The indictment charged all the elements of murder in the first degree and the defendant had notice of the aggravating circumstances.

In support of his position defendant has cited Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977), which seems to indicate that, before the trial court can impose a mandatory minimum three-year sentence pursuant to section 775.087(2), Florida Statutes (1977), the allegation that defendant carried a fireman must be contained in the indictment. The mandatory minimum three-year sentence pursuant to the above statute is a separate sentence enhancement, which is not contained and for which notice is not provided in the particular statute with which a defendant is charged. Defendant in the case sub judice, being charged with murder in the first degree, is immediately placed on notice that he is charged with a capital felony punishable as provided by statute. Defendant also cites cases regarding the burglary and robbery statutes, arguing that the different degrees of burglary and robbery constitute the application of varying aggravating circumstances, analogous to the aggravating circumstances in a capital felony. This argument is also without merit. Sections 810.02 and 812.13, Florida Statutes (1977), do not charge burglary and robbery with varying sentences depending upon the applicability of certain “aggravating circumstances.” These statutes charge burglary and robbery in different degrees, each degree carrying different sentences. A defendant would not be on notice of which degree of burglary or robbery was charged unless the necessary allegations bringing the particular charge into a certain section of the burglary or robbery statute were contained in the information. See Growden v. State, 372 So.2d 930 (Fla.1979).

Defendant contends that the death sentence was imposed upon defendant on the basis of aggravating circumstances that were not proved beyond a reasonable doubt and were improperly applied. He also says that the trial court improperly failed to consider certain mitigating factors. Findings of a judge are factual matters which should not be disturbed unless there is an absence or lack of substantial competent evidence to support those findings. 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); Lucas v. State, 376 So.2d 1149 (Fla.1979).

Defendant argues that the trial judge improperly doubled the aggravating circumstances of robbery and pecuniary gain. He relies upon 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), where this Court said that pecuniary gain cannot be doubled up with robbery in such a manner that two factors are considered as separate aggravating circumstances. In his findings of fact, the trial judge indicated that he was aware that in evaluating aggravating and mitigating circumstances he must not engage in a mere counting process of “x” number of aggravating circumstances and “x” number of mitigating circumstances, but rather a reasoned judgment. The mere recitation of these two factors does not condemn the death sentence. Hargrave v. State, 366 So.2d 1 (Fla.1978); Fleming v. State, 374 So.2d 954 (Fla.1979).

As other aggravating factors, the Court found that defendant’s intent in murdering the victim was for the purpose of avoiding arrest; that, at the time he committed the murder, the defendant had been previously convicted of a felony involving violence or threat of violence (robbery); and that the murder was especially heinous, atrocious, and cruel. The trial court found no mitigating circumstances. Even if the trial court improperly considered one or more aggravating factors, such is harmless in view of the fact that there were no mitigating factors and there were present at least one or more aggravating factors which are listed in the statute. Elledge v. State, 346 So.2d 998 (Fla.1977).

Defendant counters with a contention that there were mitigating factors. He says that the trial court failed to give proper weight to evidence of the defendant’s mental or emotional problems. It appears from the evidence that any psychological or emotional disorders of the defendant were, at most, personality disorders. Personality disorders were described as the least serious of all disorders. Defendant is attempting to argue the applicability of the psychological mitigating circumstances merely by virtue of the fact that he discovered that his father was not his real father, and he had problems with his family as a result. Nothing has been presented which would have the effect of requiring this Court to disturb the findings of the judge. See Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978).

The defendant further argues that the state presented evidence to the jury of a non-statutory aggravating factor: the defendant’s lack of remorse. The trial judge did not find “lack of remorse” as an aggravating factor. While lack of remorse cannot constitute an aggravating circumstance, it can be offered to the jury and judge as a factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel. In Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976), the fact that the defendant allegedly stated “I don’t feel no different," constituted part of the equation which went into the finding of “heinous, atrocious, and cruel.” Similarly, in Hargrave v. State, 366 So.2d 1 (Fla.1978), the statements of the defendant that he had killed before and it would not bother him to kill again were considered as applicable to a consideration of whether or not the aggravating factor of “heinous, atrocious, and cruel” was present beyond a reasonable doubt. In both of these cases the death sentence was upheld. In the case sub judi-ce the trial court clearly did not consider “lack of remorse” as a separate aggravating factor.

Defendant contends that the Florida statute unconstitutionally limits the consideration of mitigating factors, relying upon Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett indicates that the sentencer cannot be precluded from considering, as mitigating factors, any aspect of defendant’s character or record or any circumstances of the offense that the defendant may proffer as a basis for a sentence of less than death. However, the United States Supreme Court also clearly indicated that the trial court may exclude, as irrelevant, any evidence not bearing upon the defendant’s character or record, or circumstances of the offense. Florida’s death penalty statute comports with Lockett, supra, and has been so interpreted. 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). Defendant, however, says that he was restricted in the presentation of evidence during the sentencing phase. The evidence which he attempted to introduce allegedly would have pointed to his innocence. This argument is without merit. The same jury heard all the evidence of guilt or innocence during the first phase of defendant’s trial. A further repetition of evidence pointing to guilt or innocence in the case sub judice would have been repetitive and pointless in the sentencing phase. The trial judge clearly recognized his duty to consider evidence in mitigation when he said that “all evidence of mitigating circumstances may be considered by the judge or jury.” He also recognized his duty to assess, by a process of reasoned judgment, what factual situations required the imposition of death and which could be satisfied by life imprisonment in light of the totality of the circumstances present. The trial judge found no mitigating circumstances to be present. This is not a situation where the judge refused to hear certain evidence of mitigating circumstances.

We have carefully reviewed the record and find no merit in the points raised by defendant for reversal of his conviction or reduction of his sentence.

Finding no reversible error, the judgment and sentence are affirmed.

It is so ordered.

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

      . The incriminating statements made by defendant to his cellmates were not the result of any initiation of law enforcement. The cellmates came to the police after the statements were made. As a result, United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Malone v. State, 390 So.2d 338 (Fla. 1980) are not applicable.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. James Ronald CONSTANTINI, Paul Earnest Kersten, Samuel R. Mathes, and William Lloyd Tobin, Appellees.
    No. 58112.
    Supreme Court of Florida.
    April 30, 1981.
    Rehearing Denied July 9, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Anthony T. Young, Asst. State Atty., Okeechobee, Steve Kackley, Sebring, Michael Bloom, Miami, and H. Stephen Rash of Rash, Katzen, Kay & Pintado, South Miami, for appellees.
   PER CURIAM.

The order of the Circuit Court of the Nineteenth Judicial Circuit granting appel-lees’ motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause remanded for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla. 1981).

It is so ordered.

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