author: EMBRY, Justice.

text:
    Ex parte Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased. In re Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased, v. Michael William HANDLEY, Joseph P. LoBianco, and LoBianco Trucking Company, Inc., a Corporation.
    79-791.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      M. A. Marsal and Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for petitioner.
    Richard W. Vollmer, Jr., and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Phillips & Killion, Mobile, for respondent Michael William Handley.
    Jasper P. Juliano and William J. McDaniel of McDaniel, Hall Parsons, Conerly, Scott & Lusk, Birmingham, for respondents Joseph P. LoBianco and LoBianco Trucking Co., Inc.
   EMBRY, Justice.

Petitioner, plaintiff below, Roger Rollins, in his action against Michael William Hand-ley, Joseph P. LoBianco, and LoBianco Trucking Company, Inc., a Corporation, for the wrongful death of his minor son Joseph Ray Rollins, obtained a verdict and judgment against Handley. Judgment was entered upon a verdict in favor of defendants, LoBianco and LoBianco Trucking Company. Petitioner’s motion for a new trial was denied and he took an appeal to the Court of Civil Appeals, 403 So.2d 914, which affirmed the judgment below.

We granted the writ of certiorari to review whether the trial court erred in refusing to give certain jury instructions as requested by petitioner and whether, as petitioner urges, we should overrule controlling Alabama cases, followed in the decision of the Court of Civil Appeals, which reject inadequacy of damages as a valid basis for granting a new trial in a wrongful death action.

Facts submitted by petitioner in his Rule 39(k), ARAP, statement on application for rehearing in the appellate court are of no aid in resolving the controlling issues before this court. Because of this we will not refer to those facts.

We adopt the following statement of facts from the opinion of the Court of Civil Appeals:

Joseph Ray Rollins, the fourteen-year-old son of plaintiff Roger Rollins, was killed in an automobile accident on June 21, 1977.
The accident occurred in Baldwin County, Alabama, at an intersection of U. S. Highway 31 and Alabama Highway 181. Both highways are non-limited access highways. Highway 181 is four-laned at the intersection while Highway 31 is two-laned with a turn lane. The intersection is controlled by stop signs on Highway 181.
The evidence showed that at the time of the accident the left lane of Highway 181 was blocked at the intersection by a disabled truck. The truck was loaded with pulpwood. Defendant Handley stated he approached the intersection and stopped behind the disabled truck and at least one other automobile. Upon determining that the traffic in the left lane was stalled, Handley moved into the right lane to proceed through the intersection. There was conflicting testimony as to whether Handley stopped at the stop sign before proceeding into the intersection, but it is uncontroverted that he had moved onto Highway 31 when his automobile was struck from the left by a tractor-trailer truck driven by the defendant LoBianco and owned by the defendant LoBianco Trucking Company, Inc.
The truck was deflected by the impact across Highway 31 and into an automobile which was parked at a roadside fruit stand. The automobile was pushed toward the fruit stand where it struck and killed the plaintiff’s son.

For a more detailed recitation of these facts see Rollins v. Handley, (MS. June 4, 1980) 403 So.2d 914 (Ala.Civ.App.1980).

Regarding the allegation that the trial court erred in refusing to give jury charges requested by petitioner, respondents initially contend that inadequacy of damages is the sole question that Rollins may raise on appeal because he obtained a favorable jury verdict below. DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973). While we recognize this rule to be correct with respect to respondent, Hand-ley, against whom the $5,000 verdict was rendered, we reject the assertion that it controls review of the verdict and judgment entered in behalf of LoBianco and LoBianco Trucking Company.

It is apparent the disputed jury charges concerned the LoBianco defendants. The trial court refused Rollins’ requested charge regarding the prima facie speed limit of fifteen miles per hour when approaching and traversing an intersection where the driver’s view is obstructed. According to Code 1975, § 32-5-91(b)(3), the statutory provision upon which Rollins based his requested charge, a driver’s view is deemed to be obstructed when “at any time during the last 50 feet of his approach to such intersections he does not have a clear and uninterrupted view to such approach to such intersections and of the traffic upon all of the highways entering such intersections for a distance of 200 feet from such intersections.”

The appellate court held that a vehicle stopped in a lane of traffic controlled by a stop sign does not comprise an obstruction of the driver’s view of all traffic approaching the intersection for a distance of 200 feet within the meaning of the statute. This interpretation, Rollins contests. We do not consider it necessary to determine whether the disabled pulpwood truck would technically qualify as an obstruction under the statute, because we, like the appellate court, find no evidence in the record to support the conclusion that LoBianco’s view of the approaches to the intersection was actually obstructed for a distance of 200 feet.

Rollins also alleges error in the trial court’s refusal to give his written requested instruction qualifying the given “sudden emergency” instruction of defendants. Their charge reads as follows:

If a person, without fault of his own, is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation, . . . but the standard of care required in an emergency situation is that care which a reasonably prudent person would have exercised under the same or similar circumstances.

In response to this “sudden emergency” instruction, Rollins requested the following charge:

The court charges the jury that the doctrine of sudden emergency does not apply to one who has wrongfully and voluntarily placed himself in such a dangerous position.

The trial court’s denial of Rollins’s requested explanatory instruction was not error. In Williams v. Worthington, 386 So.2d 408 (Ala. 1980), this court in considering the “sudden emergency” charge found that APJI Civil, 28.15, the same charge given by the trial court in this case, stated:

We note, and the parties agree, that the instruction given on the “sudden emergency” doctrine is a correct statement of the law.

Furthermore, the language of that instruction contains its own qualifying language, “without fault of his own,” effectively conveying the same idea contained in Rollins’s requested explanatory instruction.

We find no error in the trial court’s refusal of plaintiff’s requested jury instructions and affirm the judgment entered in favor of defendants Joseph P. LoBianco and LoBianco Trucking Company, Inc.

We now turn to Rollins’s contentions concerning Handley and the verdict of $5,000 in behalf of Rollins and against Handley. Rollins, dissatisfied with this verdict, filed a motion for new trial claiming the damages assessed were inadequate in light of the evidence presented.

The motion was denied and on appeal, the Court of Civil Appeals affirmed on the authority of Louisville & Nashville R.R. Co. v. Street, 164 Ala. 155, 51 So. 306 (1909), and Crenshaw v. Ala. Freight, Inc., 287 Ala. 372, 252 So.2d 33 (1971). Rollins acknowledges these decisions stand for the proposition that a new trial may not be granted in a wrongful death action where the sole ground asserted is inadequacy of the damages assessed. However, he contends that the principles followed in this state which disallow additur or new trial because of inadequate damages, especially in wrongful death actions, are archaic, anachronistic, inconsistent, and illogical.

Indeed, the foundations of the strained syllogisms employed by the courts, in this and in other states, seeking to justify a different treatment of remittitur and addi-tur on the basis the former preserves the right to trial by jury while the latter usurps that right, seem to crumble when subjected to logical scrutiny; leading many to the conclusion that the courts have simply drawn a distinction without a difference. The tenuous argument that remittitur leaves standing a part of the jury’s award whereas additur constitutes “a bald addition” to the verdict, was considered and rejected by Chief Justice Traynor who, in Jehl v. Southern Pacific Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988 (1967), stated:

In reaching the larger verdict involved in remittitur, the jury has rejected all smaller amounts just as they have rejected all larger amounts in reaching the smaller verdict involved in additur. Neither verdict is more that of the jury than the other. [Citations omitted.] Only ad-ditur retains all that was contained in the jury’s verdict, and in both additur and remittitur something is taken from the litigant who is relying on the verdict.

Policy reasons supporting the trend to recognize additur as a valid judicial device are evident in the following remarks of the Nevada Supreme Court in Drummond v. Mid-West Growers Cooperative Corp., 91 Nev. 698, 542 P.2d 198 (1975):

It should not be treated differently from other modern devices aimed at making the relationship between judge and jury as to damages as well as to other matters, one that preserves the right to jury trial without shackling modern procedure to outmoded precedents. Additur does not detract from the substance of the common law trial by jury. Like its fraternal twin remittitur, now over 100 years old in this state, it promotes economy and efficiency in judicial proceedings.

Of course, to recognize additur or new trial for inadequacy of damages and give it equal status with remittitur or new trial for excessive damages implies imposition of the same limitations on use of the former as now regulate utilization of the latter.

Resort by the court to remittitur or new trial for excessive damages is only proper within the guidelines prescribed by Justice Simpson in Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963):

. . . The verdict of a jury should not be interfered with merely because in the opinion of the court the jury gave too little or too much (Vest v. Gay [Ala. 154 So.2d 297] supra; Airheart v. Green, 267 Ala. 689, 104 So.2d 687; Alabama Great Southern Ry. Co. v. Baum, 249 Ala. 442, 31 So.2d 366); and the authority vested in the courts to disturb a verdict of the jury on the ground of excessiveness is one which should be exercised with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, as here, there is no set standard for the admeasurement of damages but the damages to be awarded are left to the sound discretion of the jury, a remittitur or a new trial should not be ordered on the ground of excessiveness of the jury’s verdict except in those cases where the court can clearly see that the verdict has been reached on account of bias, passion, prejudice, corruption, or other improper motive or cause. Airheart v. Green, supra; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447. And only where the damages allowed are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case should the court interfere and set the verdict aside (National Surety Co. v. Mabry, 139 Ala. 217, 35 So. 698); also, where the trial court refuses to grant a new trial because he does not believe the verdict is excessive the favorable presumption attending the jury’s verdict is thereby strengthened. International Union, etc. v. Palmer, 267 Ala. 683, 104 So.2d 691; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830.

In persuasively urging this court to blaze a new trail in Alabama law by permitting a new trial on the basis of inadequate damages in wrongful death actions, petitioner has failed to propound facts which would make application of the principle appropriate in this case. The only facts argued by Rollins supporting his contention that the verdict of $5,000 was grossly disproportionate to the conduct of defendant, Handley, is the testimony of several witnesses that traffic in the vicinity of the intersection was very congested, coupled with Handley’s testimony that he waited about 15 seconds after stopping at the intersection alongside the disabled pulpwood truck before pulling out into the intersection because, in his words:

I figured maybe something was coming because I couldn’t see ....

Only by stretch of imagination rather than by application of reason, could the facts of this case support the conclusion that the jury’s verdict was based on bias, passion, prejudice, corruption, or other improper motive or cause, as would be required before additur or new trial for inadequacy of damages, if recognized, could be applied according to those principles which now govern the order of a remittitur or new trial on account of the award of excessive damages.

We, therefore, today decline, on the facts of this case, to break new ground in the area of additur and new trial for inadequacy of damages in wrongful death actions.

The decision of the Court of Civil Appeals is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, ALMON, SHORES, and ADAMS, JJ., concur.

JONES and BEATTY, JJ., concur in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Robert D. and Ladonna A. GARRETT v. KEY FORD, INC.
    Civ. 2800.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    W. E. Garrett, Atmore, for appellants.
    Charles R. Godwin, Atmore, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The issue in this case is whether Key Ford, the defendant, had sufficient minimum contacts in Alabama to satisfy the due process clause so as to subject them to defend this civil action in the Alabama courts.

The plaintiffs sued Key Ford averring that the parties were negotiating the sale of a pickup truck by the defendant to them, that, in such negotiations, the defendant falsely represented to them that the truck’s mileage was 34,316, when the actual true mileage was 134,316, which false misrepresentation was believed by the plaintiffs, and that, in reliance thereon, the plaintiffs purchased the truck to their damage.

Key Ford’s motion to dismiss and/or quash service of process, together with their affidavit in support of their motion, alleged that Key Ford is and was a Florida corporation, that the vehicle was sold to the plaintiffs at defendant’s business location in Pensacola, Florida, where all aspects of the transaction giving rise to this case were conducted, none of the transaction having occurred in the State of Alabama, and that the defendant is not and was not then doing business within the State of Alabama.

The counter-affidavit of Mr. Garrett, one of the plaintiffs, was that he had watched a certain television program whereby Key Ford through its manager invited the people of Atmore, Alabama, and of surrounding Alabama counties, to come to Pensacola and to buy or trade automobiles with them. He further stated that, during the preceding four years, he had bought three vehicles from the defendant and has received numerous cards and letters directed both to his address and only to Box Holder to bring his cars to them for service or soliciting the purchase of vehicles from them. At the time that the truck was bought, the defendant informed him that, since he was a resident of Alabama, Key Ford would, and did, collect the Alabama sales tax on the vehicle and they assured him that they would prepare and forward the necessary papers in order to obtain an Alabama title for the truck, that all transactions securing that title were arranged by the defendant, that Key Ford had known for four years that he was a resident of Alabama, and that, when the truck was sold, they knew that he lived in Alabama and intended to use it in Es-cambia County, Alabama.

The learned trial judge granted the defendant’s motion, dismissing the cause and quashing service of process because of lack of jurisdiction.

No mechanical formula may determine this issue, but the answer, in each case, comes from the facts in that particular litigation. Mann v. Frank Hrubetz & Co., Inc., Ala., 361 So.2d 1021 (1978). However, certain legal guidelines have been enunciated by cases construing the federal due process clause.

ARCP rule 4.2 (a)(2)(A-I) codified existing statutory and case law concerning jurisdiction over nonresident defendants. The length of the “long arm” authorized by that rule is limited only by the permissible limits of due process. Semo Aviation v. Southeastern Airways Corp., Ala., 360 So.2d 936 (1978). The issue of jurisdiction pursuant to that rule “poses a federal question of whether subjection of a nonresident corporation to the jurisdiction of Alabama courts comports with federal due process.” DeSotacho, Inc. v. Valnit Industries, Inc., Ala., 350 So.2d 447, 449 (1977).

The latest United States Supreme Court case upon that question is World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), wherein the current law upon the issue is summarized as follows:

As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum State. International Shoe Co. v. Washington, supra [326 U.S. 310], at 316, 66 S.Ct. [154], at 158, [90 L.Ed. 95]. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
The protection against inconvenient litigation is typically described in terms of “reasonableness” or “fairness.” We have said that the defendant’s contacts with the forum State must be such that maintenance of the suit “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, supra, at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). The relationship between the defendant and the forum must be such that it is “reasonable ... to require the corporation to defend the particular suit which is brought there.” 326 U.S., at 317, 66 S.Ct., at 158....
. . . [T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. . . .
. .. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. Compare Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961).

100 S.Ct. at 564, 567.

“The ultimate test of in personam jurisdiction is ‘reasonableness’ and ‘fairness’ and ‘traditional notions of fair play and substantial justice.’ ” Oswalt v. Scripto, Inc., 616 F.2d 191, 200 (5th Cir.1980). That case merely restated the rule announced in the leading case of International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that an in personam judgment may be rendered against a nonresident if he has certain minimum contacts so that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” 326 U.S. at 316, 66 S.Ct. at 158.

This is a difficult case and reasonable minds may differ as to whether the requisite minimum contact exists.

It is perfectly legitimate, as well as being consistent with good business practice, for a local or regional seller of goods in its television advertisements to pointedly seek customers from a named city or locality in an adjoining state. When a seller so specifically advertises, when they also solicit purchasers of their product by especially addressed mail as well as that directed to box holders, when they sell a product to a nonresident neighbor with knowledge that it will be utilized in that person’s state of residence, and when, as here, the product happens to be a motor vehicle upon which they prepare and obtain the proper title instruments from the purchaser’s home state, the minimum contact requirements have been met. Under these circumstances, Key Ford could have reasonably anticipated being sued in Alabama for the alleged fraud or misrepresentation. The courts of either Florida or Alabama could conveniently, expeditiously and efficiently- dispose of the controversy. It does not appear that any appreciable inconvenience would be suffered by either party by a trial of this case in either state. Neither forum is distant as to either party. Had the defendant been sued in Florida, that state’s courts would have had jurisdiction, but the two states have concurrent jurisdiction, for it is not unreasonable to authorize the disposition of the case through Alabama’s courts. It is no longer true that the issue is sometimes determined by whether the defendant is “doing business” in Alabama or whether his action “accrued” here. Semo Aviation v. Southeastern Airways Corp., supra. Now, the focus is not on the defendant’s presence in Alabama, but upon whether, under these facts, it had such contact with Alabama as to make it reasonable to require Key Ford to defend this civil action in Alabama. International Shoe Co. v. State of Washington, supra.

The judgment of the trial court has no presumption of validity as argued by the defendant, for none of the evidence was heard orally, the only matters to be considered being in writing, that is, the complaint, the motion to dismiss and the affidavit filed by each party. 2A Ala. Digest, Appeal & Error key 1008.3.

We hold that Key Ford had the requisite minimum contacts to the extent that subjecting them to the jurisdiction of Alabama courts does not violate the due process clause. Therefore, the trial court erred in granting the motion of Key Ford, in dismissing the complaint and in quashing service upon the defendant. The judgment of the circuit court is reversed and this cause is remanded to that court.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    In re FLORIDA RULES OF CIVIL PROCEDURE.
    No. 55134.
    Supreme Court of Florida.
    June 21, 1979.
    Richard P. Brinker, Clerk, Circuit and County Courts in and for Dade County, Miami, for petitioner.
    Response by Bill Wagner, Chairman, Civil Procedure Rules Committee of The Florida Bar, Tampa.
   PER CURIAM.

On March 8, 1979, the Court proposed new rule 1.450(f) of the Florida Rules of Civil Procedure which would provide for the disposal of exhibits and depositions in civil matters. Absent further action by the Court, the proposed rule was to become effective July 2, 1979. The Court has carefully considered the responses received regarding proposed rule 1.450(f) and now feels that the July 2, 1979, effective date does not allow sufficient time for full reflection on matters raised in these responses. Therefore, the effective date for proposed rule 1.450(f) is, by this order, delayed until further order of the Court.

It is so ordered.

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


text:
    In re FLORIDA RULES OF CIVIL PROCEDURE and Florida Rules of Judicial Administration—Court Documents Disposal.
    No. 55134.
    Supreme Court of Florida.
    Sept. 10, 1981.
    Bill Wagner, Chairman, Tampa, for Supreme Court Committee For Study Of Court Documents Disposal.
   PER CURIAM.

In an effort to relieve the document storage burden now experienced by all segments of Florida’s court system while maintaining the integrity of court records, this Court, by administrative order filed October 6, 1980, established a committee for the study of court document disposal.

The committee submitted its report on January 30, 1981, recommending a disposal procedure for court files and records which would be implemented through amendment to the Rules of Civil Procedure and an additional Rule of Judicial Administration. We invited all interested parties to submit their objections after publication of the report. The committee has now considered the objections and comments received in light of its initial report and has made certain modifications to its proposals.

We have considered all comments and the committee’s final report. We approve the report and adopt the committee’s new Rule of Judicial Administration 2.075 and proposed amendments to the Rules of Civil Procedure 1.310, 1.320, 1.330, 1.340, 1.350, and 1.450.

Absent modification before January 1, 1982, the amendments to the Rules of Civil Procedure, as attached to this opinion, shall become effective at 12:01 a. m., January 1, 1982. Rule 2.075 of the Rules of Judicial Administration, also attached, shall become effective at 12:01 a. m., January 1, 1982.

In order to provide notice to the public that the clerk will no longer retain court files in perpetuity, the clerk shall give notice to the public at least six months before the first destruction of records under the provision of Rule 2.075 of the Rules of Judicial Administration of the clerk’s intent to destroy or dispose of records pursuant to the rule. Such notice may be given in any manner that the chief judge of the circuit prescribes and shall be given by publication at least three times in a newspaper published in the county and in a newspaper published in each major city of the county, or, if no newspaper is published in the county, such notice shall be given by publication in a newspaper determined by the chief judge to have wide circulation among the inhabitants of the county. The notice shall include at least the following information:

NOTICE CONCERNING DESTRUCTION OF COURT RECORDS
In accordance with rules adopted by the Supreme Court of Florida, the clerk of the court is no longer required to retain court records indefinitely. Certain court records presently in the custody of the Clerk of the Court of _ County may be destroyed in accordance with the provision of the Supreme Court rule after _No active court records will be destroyed. From time to time, after the above date, additional court records may be destroyed under the provisions of the Supreme Court rule. Interested persons may obtain a copy of the Supreme Court rule establishing a court records retention schedule and providing procedures governing the destruction of court records by contacting the clerk of the court.

We conclude with sincere thanks and special commendation to Chairman Bill Wagner, Esq., and the members of his committee who contributed valuable time and knowledge to solve the document disposal problem.

It is so ordered.

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

APPENDIX

Rule of Judicial Administration 2.075 is adopted as follows:

RULE 2.075 RETENTION OF COURT RECORDS

(a) Definitions. The following definitions apply to this rule:

(1) “Court records” mean the contents of the court file, depositions filed with the clerk, transcripts, exhibits in the custody of the clerk, and electronic, video tape and stenographic tapes of depositions or other proceedings.
(2) “After a judgment has become final” means:
(A) when a final order, final judgment, final docket entry, final dismissal or nolle prosequi has been entered as to all parties, no appeal has been taken and the time for appeal has expired; or
(B) when a final order, final judgment or final docket entry has been entered, and appeal has been taken, the appeal has been disposed of and the time for any further appellate proceedings has expired.

(b) Required Consent. Disposal of court records under this rule is subject to obtaining any consent required by law from the Division of Archives, History and Records Management.

(c) Microfilmed Records. Court records, except exhibits, that have been microfilmed in accordance with standards adopted by the Division of Archives, History and Records Management may be destroyed or otherwise disposed of by the clerk at any time after a judgment has become final.

(d) Records Not Microfilmed. No court records under this subdivision shall be destroyed or disposed of until the final order, final docket entry or final judgment is microfilmed for, or recorded, in the public records. The time periods shall not apply to any action in which the court orders the court records to be kept until the court orders otherwise. When an order is entered to that effect, the progress docket and the court file shall be marked by the clerk with a legend showing that the court records are not to be destroyed or disposed of without a further order of court. Any person may apply for an order suspending or prohibiting destruction or disposition of court records in any proceeding. Court records, except exhibits, that are not microfilmed may be destroyed or disposed of by the clerk at the times prescribed below after a judgment has become final:

(1) Sixty days — Parking tickets and non criminal traffic infractions after required audits have been completed.
(2) Two years — Proceedings under the Rules of Summary Procedure, Medical Mediation Proceedings.
(3) Five years — Misdemeanor actions, criminal traffic violations, ordinance violations, civil litigation proceedings in county court other than those under the Rules of Summary Procedure and civil proceedings in circuit court except marriage dissolutions and adoptions.
(4) Ten years — Probate, guardianship and mental health proceedings.
(5) Ten years — Felony cases in which no information or indictment was filed or in which all charges were dismissed, or in which the state announced a nolle prosequi, or in which the defendant was adjudicated not guilty.
(6) Seventy-five years — Juvenile proceedings containing an order permanently depriving a parent of custody of a child, and adoptions, and all felony cases not previously destroyed.
(7) Kept permanently — Progress dockets and their indices.
(8) Juvenile proceedings not otherwise provided for in this subdivision shall be kept for five years after the last entry or until the child reaches the age of majority, whichever is later.
(9)Marriage dissolutions — Ten years from the last record activity. The court may authorize destruction of those court records not involving alimony, support or custody of children five years from the last record activity.

(e) Court Reporters’ Notes. Court reporters or persons acting as court reporters for judicial or discovery proceedings shall retain the original notes or electronic records or the proceedings or depositions until the times specified below:

(1) Two years from the date of preparing the transcript — Judicial proceedings, arbitration hearings and discovery proceedings when an original transcript has been prepared.
(2) Ten years — Judicial proceedings in felony cases when a transcript has not been prepared.
(3) Five years — All other judicial proceedings, arbitration hearings and discovery proceedings when a transcript has not been prepared.

When an agreement has been made between the reporter and any other person and the person has paid the reasonable charges for storage and retention of the notes, the notes or records shall be kept for any longer time agreed on. All reporters’ notes shall be retained in a secure place in Florida.

(f) Exhibits.

(1) Exhibits in Criminal Proceedings. Exhibits in criminal proceedings shall be disposed of as provided by law.
(2) All other exhibits shall be retained by the clerk until ninety days after a judgment has become final. If an exhibit is not withdrawn pursuant to subdivision (h) within ninety days, the clerk may destroy or dispose of the exhibits after giving the parties or their attorneys of record thirty days notice of the clerk’s intention to do so. Exhibits shall be delivered to any party or attorney of record calling for them during the thirty-day time period.

(g) Disposition Other Than Destruction —Before destruction or disposition of court records under this rule, any person may apply to the court for an order requiring the clerk to deliver the court records that are to be destroyed or disposed of to the applicant. All parties and the Division of Archives, History and Records Management shall be given notice of the application by the applicant. The court shall dispose of that court record as appropriate.

(h) Release of Court Records. This rule does not limit the power of the court to release exhibits or other parts of court records that are the property of the person or party placing the items in the court records initially. The court may require copies to be substituted as a condition to releasing the court records under this subdivision.

(i) Right to Expunge Records. Nothing in this rule shall affect the power of the court to order records expunged.

(j) Sealed Records. No record which has been sealed from public examination by order of court shall be destroyed without hearing after such notice as the court shall require.

Rules of Civil Procedure 1.310, .320, .330, .340, .350, and .450 are amended as follows:

RULE 1.310 DEPOSITIONS UPON ORAL EXAMINATION

(e) Submission to Witness; Changes; Signing■- Review. When If the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him5 unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness desires wants to make shall be entered upon a separate correction page by the officer with a statement of the reasons given by the witness for making them the changes. The corrections shall be attached to the deposition. and ilt shall then be signed by the witness unless the parties by stipulation waived the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within a reasonable time after its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign with the reason, if any, given therefor* and The deposition may then be used as fully as though signed unless on a motion to suppress under Rule 1.330(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(f) Certification and Filing by Officer; Ex-hibí is; — Copies; Notice of Filing.

(1) If transcribed, the officer shall certify on each copy of the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Ho shall then securely seal the deposition in an — envelope endorsed with the title of the -action and marked “Deposition of (here insert name of witness)” and shall-promptly file it with the court in which the-action is pending or send it-by-registered or certified mail-fco the clerk for filing. Documents and things produced for inspection during the examination of the witness shall be marked for identification and annexed to and returned with the deposition upon the request of a party, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification if he affords to all parties fair opportunity to verify the copies by comparison with the originals* and ilf the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition.

(2) Upon payment of reasonable charges therefor the officer shall furnish a copy of the deposition to any party or to the deponent.

(3) T-he party taking the deposition shall give-prompt notice of its filing to all other parties unless it is waived; A copy of a deposition may be filed only:

CAI Bv a party or the witness when the contents of the deposition must be considered bv the court on any matter pending-before the court. Prompt notice of the filing of the deposition shall be given to all parties, unless notice is waived. A party filing the deposition shall not be required to furnish a copy of the deposition to other parties but shall furnish a copy of the deposition to any party or witness requesting it after payment of the reasonable cost of reproducing the copy bv the requesting party or witness.

(B) If the court determines that a deposition previously transcribed is necessary for the determination of a matter pending before the court, the court may order that a copy be filed bv any party.

RULE 1.320 DEPOSITIONS UPON WRITTEN QUESTIONS

(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the depositions to the officer designated in the notice who shall proceed promptly to take the testimony of the witness in the manner provided by Rule 1.310(c), (e) and (f) in response to the questions and to prepare, certify, and file or mail the deposition, attaching the copy of the notice and the questions received by him. The questions shall not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions before the questions are submitted to the witness.

(c) Notice of Filing. — When the-deposition was (sic) filed, the party taking-it shall promptly give notice of the -filing unless it is waived.

RULE 1.330 USE OF DEPOSITIONS IN COURT PROCEEDINGS

(d) Effect of Errors and Irregularities is Depositions.

(4) As to Completion and Return of Depositions. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, — sealed;—endorsed;—transmitted; filed or otherwise dealt with by the officer under Rules 1.310 and 1.320 are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained discovered.

RULE 1.340 INTERROGATORIES TO PARTIES

(e)Form. Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The original and a copy of the interrogatories shall be served on the party to whom the interrogatories are directed and copies on all other parties. A-certificato of service or-an attached — notice that the — interrogatories have been served, giving the-date of service, the number of interrogatories served and the name of the party-to whom they were directed shall bo filed. The completed interrogatories shall be filed and served by the answering party served upon the party originally propounding the interrogatories and a copy shall be served upon all other parties bv the answering party. The original or any copy of the answers to interrogatories may be filed bv any party when the court should consider the answers to interrogatories in determining any matter pending before the court. The court may order a copy of the answers to interrogatories filed at any time when the court determines that examination of the answers to interrogatories is necessary to determine any matter pending before the court.

RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

(d) Filing of Documents. Unless required bv the court, a party shall not file any of the documents or things produced with the response. Documents or things may be filed when they should be considered bv the court in determining a matter pending before the court.

RULE 1.450 EVIDENCE

(d) Disposal. — The clerk shall retain exhibits introduced — in evidence- or marked for identification until one year after a judgment bccomes-final. — The-eourt may-permit a party to-withdraw-any-exhibit--at any time. — If an exhibit is not withdrawn within the year, the-elerk, provided the written consent of the Division of Archives, History and — Records Management- of the -Department of State,--has been obtained in compliance with section 119.041, Florida Statutes, shall- destroy or dispose of the exhibits-after giving the — parties or their attorneys 10 days-’ notice of his intention to do so. — The notice may be given by — publication-in a newspaper qualified for legal advertising and notices-under section- 50.031, Florida Statutes. — Exhibits shall be delivered to the appropriate party or attorney calling for them during the 10 days. — Transcripts of testimony, other than depositions, are not subject to -this-subdivision-and shall not be destroyed.

       John A. Barley, Esq.; The Honorable William B. Blackwood, Jr.; The Honorable Richard P. Brinker; The Honorable Harold R. Clark; William Ford Duane, Esq.; E. McGruder Farris, Esq.; Robert L. Horey; David Lang; The Honorable Hugh MacMillan; Richard H. Masten; The Honorable Douglas M. Midgley; The Honorable Janet Reno; The Honorable Benjamin M. Tench; Henry P. Trawick, Jr., Esq.; Wilfred C. Yam, Esq.


author: ADKINS, Justice.

text:
    Arthur Frederick GOODE, III, Appellant, v. STATE of Florida, Appellee.
    No. 59453.
    Supreme Court of Florida.
    July 9, 1981.
    Rehearing Denied Oct. 9, 1981.

      W. C. McLain of Smith, Carta & Rings-muth, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

We have for review an order denying a motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. Appellant, Arthur Frederick Goode, III, was found guilty of first-degree murder and sentenced to death. This Court affirmed the trial court’s judgment and sentence. See Goode v. State, 365 So.2d 381 (Fla.1978). Appellant, pursuant to Florida Rule of Criminal Procedure 3.850, filed a motion to vacate judgment and sentence alleging several constitutional infirmities in the guilt and sentencing phases of the trial. The trial court denied said motion and a subsequent motion for rehearing filed by appellant. Appellant then filed a notice of appeal to this Court. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellant raises seven issues in support of his assertion that the trial court erred in denying his motions. Five of those raised are issues which either could have been or were raised on direct appeal. A motion to vacate judgment and sentence cannot be used as a substitute for an appeal, and where matters raised therein could have been or were raised on direct appeal, denial of the motion is proper. See Meeks v. State, 382 So.2d 673 (Fla.1980).

Specifically, appellant’s arguments that the trial court improperly considered nonstatutory aggravating circumstances, that the court found appellant’s mental condition to be a mitigating circumstance but failed to state such in the findings of fact, and that the court applied an incorrect burden of proof in determining aggravating and mitigating circumstances are matters which should have been raised on appeal. Nor, his assertions to the contrary notwithstanding, do we agree that appellant could not have raised the preceding issues on appeal. The record demonstrates that he should have, at the time, been aware of those matters.

Petitioner’s arguments regarding the validity of the findings that the murder was heinous, atrocious, and cruel, and that he was competent to stand trial are matters that he actually did raise on appeal to this Court. The trial court’s refusal to vacate judgment and sentence was proper as it related to the preceding matters which either could have been or were raised on direct appeal to this Court.

There remain two matters for our consideration. First, appellant asserts that he was denied effective assistance of court-appointed counsel by virtue of the co-counsel relationship which was imposed on him and the failure of his co-counsel to raise an insanity defense. Appellant acknowledges that one who represents himself cannot later complain of his own ineffective self representation, but emphasizes that he is complaining of ineffective assistance by co-counsel. He argues first that conflict and disagreement between his co-counsel and himself prevented a coherent approach to the case, and second, that in light of the serious questions regarding Goode’s mental condition, co-counsel should have raised an insanity defense. We, however, do not agree.

Appellant was the architect of his defense at trial. The record demonstrates that he knowingly waived his right to counsel, and was made fully aware of the perils of self-representation. The trial court appointed an attorney for the purpose of giving legal advice when needed, and appellant did not object to the arrangement. Clearly, appellant acted as his own attorney, and we do not believe that he may now complain that his “co-counsel,” provided for the purpose of giving him advice upon request, ineffectively “eo-represented” him and denied him a fair trial.

Finally we disagree with appellant’s assertion that the trial court order denying the motion to vacate was procedurally defective. We have reviewed the record, and are of the opinion that it supports the trial court’s determination that appellant is entitled to no relief, which must be shown to justify a dismissal without hearing. As for the trial court’s failure to attach to its order a copy of that portion of the files and record conclusively showing that appellant is entitled to no relief, the order refers to specific pages of the record, to which we referred in lieu of an attachment. Any error was harmless, and does not warrant reversal of the trial court’s order.

Having considered each of the points raised by appellant, and having found that none warrant reversal of the trial court’s order denying post-conviction relief, we hereby affirm said order.

It is so ordered.

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


author: PER CURIAM. BOYD, Justice,

text:
    Guy Ennis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 56005.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Oct. 15, 1981.

      Robert T. Adams, Jr., Marianna, for appellant.
    Jim Smith, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Guy Ennis Smith was convicted by a jury in Orange County, Florida, of murder in the first degree of Gracie Mae Crawford. The jury recommended that the judge impose a sentence of life imprisonment, but the trial judge rejected that recommendation and imposed the death sentence. Smith appeals both his conviction and sentence. We have jurisdiction.

Smith was a member, and was described as an “enforcer,” of the Outlaws, a motorcycle gang. On the night of Ms. Crawford’s death, he, other members of the Outlaws, and Ms. Crawford were at a nightclub where they all did a great deal of drinking. Ms. Crawford had arrived at the bar with another escort, but left with several members of the Outlaws to go to their clubhouse. At the clubhouse a heated discussion erupted between gang members and Ms. Crawford concerning her friendship with blacks. Following a statement by her that she “liked their money,” some of the group decided that the gang should “train her.” She was thereafter beaten by members of the gang.

There was testimony that Smith participated in this beating and that he more than once forced the victim’s face into a sink to wash off the blood. When the beating stopped, two members of the gang, William White and Richard DiMarino, placed her in a borrowed car, ostensibly to take her home.

Smith’s conviction is based primarily on what transpired next. DiMarino testified that Smith came up to the car and said, “I don’t want any witnesses. If you take care of business, don’t run a sloppy act.” DiMarino said that this statement by Smith meant the girl was to be murdered so that she could not be a witness. White and DiMarino sat the intoxicated Crawford between them in the front seat and drove off. She was found the next morning stabbed to death.

The only person who testified to the Smith “order” was DiMarino, who previously had been tried and convicted of third-degree murder for his part in this episode. At trial it was pointed out that, in consideration for DiMarino’s testimony, the state had dismissed two additional felony charges against him and had made arrangements for him to serve his prison sentence where there would be no members of the Outlaws gang around. Furthermore, the prosecutor pointed out that DiMarino had been convicted of “between five and ten felonies.”

Despite DiMarino’s discrediting characteristics, the jury apparently believed him and found that Smith did order Crawford’s execution. Although it is with little comfort that a conviction can stand on the testimony of one as disreputable as DiMari-no, DiMarino’s credibility was the peculiar responsibility of the jury. See, e. g., Chaudoin v. State, 362 So.2d 398 (Fla.2d DCA 1978) (weight and credibility solely within province of jury; appellate court’s only function to determine sufficiency as a matter of law); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976), cert. denied, 345 So.2d 420 (Fla.), cert. denied, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064 (1977) (conflicts in evidence and questions about witness’s credibility will not justify reversal when evidence is legally sufficient to support conviction). We cannot substitute our judgment for that of the jury simply because the testimony came from the mouth of a disreputable felon who had been granted favors by the state and who admitted he lied when it would “suit [his] fancy.” There is evidence, if believed, sufficient for the jury to conclude that Smith directed the execution of Crawford to eliminate her as a witness to her battery at the hands of the Outlaws. This makes him responsible for her murder. See § 777.011, Fla.Stat. (1977).

We find no infirmities in the conviction, and we affirm.

We now consider the sentence. The trial judge did not articulate any reason for rejecting the jury’s recommendation of a life sentence. The record does not show that he had any more information than the jury did; the trial judge did not demonstrate how reasonable men would not differ on the matter of sentencing. Whatever his rationale, we are unable to discern a basis which would be sufficient to reject the life-sentence recommendation.

It is the final responsibility of the trial judge to pass sentence, but his sentencing to death is restricted in the light of a jury’s recommendation of life.

In reviewing the propriety of a death sentence, this Court has previously held that it must weigh heavily the advisory opinion of life imprisonment by the sentencing jury. The facts justifying the death sentence must be clear and convincing in order to overrule the jury’s recommendation. It is our duty to examine the record in this cause and determine whether there are clear and convincing facts that warrant the imposition of the death penalty over a jury’s recommendation of life imprisonment.

Neary v. State, 384 So.2d 881, 885 (Fla.1980) (citations omitted).

The conviction is affirmed, but the sentence of death is vacated, and the cause is remanded to the trial judge with instructions to impose a sentence of life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

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

ALDERMAN, J., concurs in result only.

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

BOYD, J., dissents with an opinion in which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion in affirming the conviction of first degree murder, but I would also affirm the judgment of the trial court imposing the penalty of death. Based on a weighing of the prescribed statutory aggravating and mitigating circumstances, the trial judge rejected the jury’s recommendation as unreasonable. My review of the evidence convinces me that he was legally correct in doing so.

ADKINS, J., concurs.

      . Art. V, § 3(b)(1), Fla.Const.

      . DiMarino confessed to the killing and after trial was sentenced to 15 years in prison. White was convicted of the murder and received a death sentence; his appeal is pending before this Court, Case No. 55,878.

      . Other issues raised, but without merit, are:
      a. Whether the admission of certain photographs requires a new trial.
      b. Whether alleged discovery violations by the state require a new trial.
      c. Whether prosecutorial misconduct requires a new trial.
      d. Whether defendant was denied a fair trial by an overreaching judge.


text:
    Eddie ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 50575.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 15, 1981.

      J. Craig Williams and James 0. Brecher of Taylor & Brecher, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, Duval County. In a jury trial, appellant was convicted of murder in the first degree. The court imposed a sentence of death. This Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

Appellant presents several contentions of reversible trial error. For reasons to be discussed below, we find them to be without merit. Furthermore, the verdict is supported by the evidence. There being no reversible error going to the conviction of murder in the first degree, we affirm it. Finding that the state failed to establish any statutory aggravating circumstances, however, we hold that the sentencing court should have adopted the jury’s recommendation of life imprisonment. We vacate the sentence of death and order that appellant be sentenced to life imprisonment without eligibility for parole for twenty-five years.

I. FACTS

On January 27, 1976, Joe Richards went to Eddie Odom’s home and made threats to Nira Gail Odom, appellant’s wife. She called the police. Odom, who had been absent, came home and then police officers arrived. While the police were there, Richards telephoned Odom. The police officers listened on an extension phone as Richards claimed that appellant owed him money and threatened to kill him if he did not pay. That night, Odom, Robert Lewis, and Charles Jimmy Carter went to Richards’ home. Carter waited in a van while Odom and Lewis went to a bedroom window of the house and shot Richards, instantly causing his death. Two women were in the room with Richards. One of them sustained a minor shotgun wound.

Charles Jimmy Carter, originally arrested on a charge of first-degree murder, was given immunity and testified that he drove the van to Richards’ house with Odom and Lewis as his passengers. Odom and Lewis, he said, armed with a .30-.30 rifle and a shotgun respectively, went up to the house. Carter testified that he then heard gunshots, after which Odom and Lewis came running back to the van. They got in, and he drove to a bridge over the Trout River. He threw the rifle over the side of the bridge. Carter said that he participated in the killing because he, like Odom and Lewis, mortally feared Joe Richards.

Barbara Jones, sister of Nira Gail Odom, testified that she was at the Odom home on January 27 and heard Richards’ threats. She testified that that afternoon, Odom borrowed a .30-.30 rifle from her nephew, Michael Hilliard. She was also there at 10:00 p. m. that night when appellant came in saying, “It’s over. He’s dead.” Barbara Jones testified that Odom then talked in detail about the shooting.

Barbara Jones’ husband Gerald Jones testified that he, too, was present and heard appellant admit his participation in the murder. Gerald and Barbara Jones contacted the authorities, they said, because they felt they were in danger from Lewis and Carter on account of their knowledge of the crime. Subsequently Gerald Jones, in cooperation with police, wore a hidden transmitter and engaged Odom in a conversation in which he made incriminating statements which the police recorded. The recording was admitted in evidence and Jones testified about the contents of the recorded conversation.

Police recovered a .30-.30 rifle from the Trout River. Michael Hilliard identified it as the one he gave to Odom. Several months before the crime, the rifle had been fired in a wooded area. Police recovered a spent .30-.30 casing from the place where the rifle had been fired. Three casings were found at the scene of the murder One casing was found in the rifle recovered from the river. A ballistics expert testified that all five were fired by the same weapon. The expert stated further that because of corrosion he was unable to determine whether the rifle recovered from the river was that weapon.

We conclude from our review of the record that the verdict of guilt was supported by competent, substantial evidence.

II. ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

A.

Odom argues that the court should not have admitted into evidence the tape recording of his conversations with Gerald Jones. Although we rule that the tape was improper evidence, we do not reach this conclusion on any of the grounds argued by appellant. In support of his motion to suppress the tape, he argued that admission would violate his rights under the Fourth and Fifth Amendments to the United States Constitution. These contentions are without merit. When Jones visited Odom and engaged him in conversation, there was no compulsion used. Odom’s statements were purely voluntary. In order for the right against self-incrimination to be involved when statements are made, there must at least be some kind of compulsion. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), cited by appellant, it was held that there is compulsion inherent in custodial interrogation. Here there was no compulsion, so appellant’s Fifth Amendment rights were not violated. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Having heard the appellant voluntarily make statements of an incriminating nature concerning his participation in the crime, Jones clearly could have testified from memory about the content of the statements. The Fourth Amendment does not protect a person from the possibility that one in whom he confides will violate the confidence. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). If this is so, then there is no bar under the United States Constitution to the introduction of more reliable and perhaps more credible evidence — recordings made by the informer or agent to whom the statements are made. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Appellant also argues that the admission of the tape into evidence violated chapter 934, Florida Statutes (1975). Under the statute as written this argument is without merit. In enacting chapter 934, the legislature did not give article I, section 12, Florida Constitution, the interpretation we give it today. Thus the legislature did not intend to require a court order for the interception of wire or oral communications when one of the parties to the communication consents to the interception. § 934.-01(4), Fla.Stat. (1975). Chapter 934 declares that it is lawful

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

§ 934.03(2)(c) Fla.Stat. (1975). Since the tape in question was made by way of the cooperation of Mr. Jones acting under the direction of law enforcement officers, the interception did not violate chapter 934, and was admissible evidence as far as the statute is concerned. See § 934.06, Fla.Stat. (1975).

We find, however, that the admission of the tape into evidence was error under the constitutional rule excluding evidence obtained in violation of article I, section 12 of the Florida Constitution. That section of our Declaration of Rights provides:

SECTION 12. Searches and seizures. —The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

In State v. Sarmiento, 397 So.2d 643 (Fla.1981), we held that the warrantless electronic monitoring by state agents of a conversation between the accused and an undercover police officer was an unreasonable interception of a private communication in violation of article I, section 12. Based on this principle, we held that the trial court should have excluded the testimony of police officers who, without obtaining an interception warrant, listened to the conversation by means of an electronic transmitter concealed on the person of the undercover agent. Applying the same principle to the present case, we find that the war-rantless recording of the conversation between appellant and witness Jones was an unreasonable interception.

Evidence obtained in violation of article I, section 12 is inadmissible in Florida courts. Sing v. Wainwright, 148 So.2d 19 (Fla.1962); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927). This constitutional principle applies regardless of whether the evidence in question was obtained in violation of the Fourth Amendment, and regardless of the scope of the Fourth Amendment exclusionary rule. Taylor v. State, 355 So.2d 180 (Fla.3d DCA 1978).

The evidence, therefore, should have been excluded. The admission of the tape into evidence, however, does not require reversal of the judgment. There was othenevidence of appellant’s guilt sufficient to support the jury’s verdict. The improperly obtained evidence was merely cumulative. The error of allowing such evidence to go to the jury was harmless.

B.

Appellant also contends that the tape of the conversation was so inaudible and unintelligible that it should not have been admitted in evidence. We have already held the admission of the tape error, but harmless because of independent evidence. The partial inaudibility of the tape, which was merely cumulative evidence, did not prejudice the defendant.

The trial court ruled that the inaudible and unintelligible portions of the tape were not so substantial as to deprive the remainder of relevance. Partial inaudibility or unintelligibility is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible. Todisco v. United States, 298 F.2d 208 (5th Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962); Monroe v. United States, 234 F.2d 49 (D.C.Cir.), cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956); Brady v. State, 178 So.2d 121 (Fla.2d DCA 1965); Gomien v. State, 172 So.2d 511 (Fla.3d DCA 1965). Although the tape was improper under the interpretation of “unreasonable interception” that we provided in Sarmiento, it was not so viewed at the time of the trial. So, the trial court evaluated appellant’s inaudibility objection according to the above-stated standard. The question of whether the recordings were admissible under this standard was for the trial judge. Appellant has not shown that the court’s ruling on the inaudibility objection was error.

C.

Appellant next argues that the judge erred when he allowed the state crime laboratory’s ballistics expert to testify after learning of his conversation with a local officer. In this conversation the local officer, a friend of the witness, gave his opinion of the nature of the case and the character of defendant Eddie Odom. He expressed the hope that the jury would convict. He indicated his opinion that the victim was a dangerous criminal and that with a “good verdict” on appellant, there would be two bad characters “off the street.” The defense, after the court’s inquiry into the circumstances of this conversation, moved for a mistrial and moved to have the ballistics expert’s testimony excluded. The court ruled that if the expert’s testimony were confined to matters contained in his written report prepared before trial, there would be no possibility of bias coloring his testimony, and allowed the witness to testify with this condition. If the witness had colored his testimony, he could have been impeached by his own report.

The purpose of the rule of sequestration of witnesses “is to avoid the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand.” Spencer v. State, 133 So.2d 729, 731 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). Seen in this light, the incident in question was not even a violation of the rule. The harm that an event such as the incident in question might cause to the fairness of a trial would be just as readily caused by a witness who is prejudiced against the defendant but who has no contact with another witness or with anyone at all during the trial. The defendant’s remedy in such a case is to try to disqualify the witness for interest or to impeach his credibility. The appellant made no attempt to present the circumstances and content of the conversation to the jury. Perhaps defense counsel thought that to do so would have the effect of harming the defendant rather than impeaching the witness.

Assuming, however, that there was a violation of the rule, the question that then arose before the court below was how to remedy it. This was a matter for the court’s discretion. Rollins v. State, 256 So.2d 541 (Fla.4th DCA 1972). The court made an inquiry into the circumstances of the conversation and issued a ruling which we find to have been not only within the range of discretion, but eminently fair and reasonable.

D.

Appellant contends that the trial judge should have granted his motion for a mistrial after he learned that a juror had received a threatening telephone call and had told one of the alternate jurors about it. The juror told a bailiff about the call and the bailiff informed the court. The jurors were interviewed in chambers by the court and counsel for both parties. The juror who received the threatening phone call testified that the caller did not make clear to him what kind of result was desired. The juror did not know which way the threat went. Therefore he did not know what kind of action on his part would keep him free of the threatened harm. The juror said that although he was frightened by the call, he could still be a fair and impartial juror. The alternate juror knew only that the other juror had received some kind of threat. He did not learn the details of the call. He said he could still be a fair and impartial juror. Following the report of and inquiry into this incident, the court ordered the jury sequestered.

The motion for a mistrial was addressed to the sound discretion of the court and we are unable to conclude that the court’s response to the incident was an abuse of discretion.

E.

Appellant contends that the court erred in denying his post-trial motion for interviews of all the jurors based on his suggestion of jury misconduct. The motion, supported by the affidavit of Nira Gail Odom, appellant’s wife, was filed after the motion for new trial had already been heard and the notice of appeal filed. Nevertheless, the court made inquiry into the possibility that jurors had disregarded the court’s instructions and had been influenced by improper considerations. Mrs. Odom’s affidavit declared that she learned of the jury misconduct from a juror, the same juror who received the threatening telephone call. The judge called in the juror, who disputed the factual assertions of Mrs. Odom’s affidavit. Then the court denied the appellant’s request for interviews with the other jurors.

The court evaluated the conflicting evidence and determined that there was no basis for further inquiry. The motion was a matter for the sound discretion of the court and we see no basis for finding an abuse of that discretion. See also, Lamb v. State, 90 Fla. 844, 107 So. 530 (1925); Yates v. State, 26 Fla. 484, 7 So. 880 (1890).

III. SENTENCE

We come now to the question of sentencing. The trial judge found two aggravating circumstances — that in committing the capital felony the appellant had created a great risk of death to many persons, section 921.141(5)(c), Florida Statutes (1975), and that the murder was especially heinous, atrocious, or cruel. Id. § 921.141(5)(h).

The court based the finding of great risk of death to many persons on the fact that two women were present in the victim’s bedroom at the time of the shooting. The presence of two persons in immediate proximity to the victim of a murder by shooting is, as a matter of law, insufficient to establish this aggravating circumstance. Williams v. State, 386 So.2d 538 (Fla.1980); Lewis v. State, 377 So.2d 640 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979). Therefore this finding is erroneous.

The trial judge based his finding that the murder was especially heinous, atrocious, or cruel on the fact that the killing was accomplished through a “vicious onslaught” which shattered the victim’s skull. An instantaneous death caused by gunfire, however, is not ordinarily a heinous killing. Lewis v. State, 377 So.2d 640 (Fla.1979); 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 finding too was erroneous.

The trial judge’s written sentencing findings state that he considered appellant’s prior record, including numerous arrests and charges which did not culminate in criminal convictions. This court has held that aggravating considerations must be limited to those provided for by the statute, and information must relate to one of the statutory aggravating circumstances in order to be considered in aggravation. Evidence of past criminality, offered by the state for the purpose of aggravating the crime, is inadmissible unless it tends to establish one of the aggravating circumstances listed in section 921.-141(5). Therefore, consideration of mere arrests and accusations as aggravating circumstances is precluded. Perry v. State, 395 So.2d 170 (Fla.1980); 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).

The jury recommended a sentence of life imprisonment. Because it represents the judgment of the community as to whether the death penalty is appropriate, the jury’s recommendation is entitled to great weight. For the court to overrule the recommendation of the jury, the facts justifying the death sentence must be so clear that the jury can be said to have acted unreasonably. Neary v. State, 384 So.2d 881 (Fla.1980); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Tedder v. State, 322 So.2d 908 (Fla.1975).

Improper factors were relied upon to aggravate the crime, and no statutory aggravating circumstances were established. The jury recommended life. We therefore vacate the sentence of death and order that appellant be sentenced to life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

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

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