author: PER CURIAM. JONES and SHORES, Justices EMBRY, Justice BEATTY, Justice

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. WARWICK DEVELOPMENT COMPANY, INC. WARWICK DEVELOPMENT COMPANY, INC. v. Jerry G. ADAMS and Nancy B. Adams. Jerry G. ADAMS and Nancy B. Adams v. WARWICK DEVELOPMENT COMPANY, INC.
    81-686, 81-697 and 81-707.
    Supreme Court of Alabama.
    Feb. 10, 1984.

      Foster Etheredge and J. Mark Hart of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellants.
    W.L. Longshore, Jr., of Longshore & Longshore, Birmingham, for appel-lee/cross-appellant Warwick Development Co., Inc.
    Nancy B. Adams and Jerry G. Adams, pro se.
   ON REHEARING EX MERO MOTU

PER CURIAM.

The original opinion in this case, dated October 7, 1983, is withdrawn, and the following opinion is substituted .therefor:

These appeals are the result of the trial court’s award of money damages to the plaintiffs, and the trial court’s finding that United States Fidelity & Guaranty Company (USF & G) was bound under the policy of insurance to Warwick Development Company, Inc. (Warwick). We affirm in part, reverse in part, and render.

FACTS

The plaintiffs, Jerry G. Adams and Nancy B. Adams (Adamses), were purchasers of a home in Grayson Valley Estates, Highland Sector, in Jefferson County. The contract for purchase was signed on or about March 17,1980, and the sale closed on June 24, 1980. The Adamses alleged defects throughout the structure of the residence and some nineteen are listed in the complaint. The Adamses filed suit against Warwick, the contractor/seller, and National Mortgage Company (National), the holder of the first mortgage, alleging unwork-manlike construction and misrepresentations of material facts by Warwick. Plaintiffs brought this action in the Equity Division of the Circuit Court of Jefferson County seeking rescission and cancellation of the sale and mortgage, and money damages. Defendant, Warwick, filed a third-party complaint against USF & G and Northern Assurance Company of America (Northern Assurance), claiming both were liable under comprehensive general liability policies (CGL) issued to Warwick. Both companies had refused to defend Warwick in this action and denied coverage under the policies. Warwick sought recovery from the insurance companies for any sums adjudged against Warwick in favor of the Adamses, plus reasonable attorney’s fees.

On the day of the trial, National, the holder of the mortgage, was dismissed upon stipulation of the parties, and Northern Assurance’s motion for summary judgment was granted, resulting in its dismissal. USF & G’s motion for summary judgment was denied, based on Cotton States Mutual Ins. Co. v. Norrell Heating & Air Conditioning Co., Inc., 370 So.2d 270 (Ala.1979).

The trial proceeded and at the close of the evidence the Adamses, pursuant to a former ruling by the trial judge, elected the remedy of rescission rather than damages for breach of contract. The trial court expressly found that under the evidence presented the Adamses were not entitled to rescission of the contract. Notwithstanding the election of remedies by plaintiffs, the trial court found within the complaint a prayer for damages and a prayer for general relief. Citing the Alabama Rules of Civil Procedure, Rule 15(b) and (e), and Tilley’s Alabama Equity Pleading and Practice, Section 168, the trial court awarded the Adamses $4,600.00 based on the following principle:

“ ‘If, under the averments, Complainant is entitled to relief of the character prayed, the Court under the general prayer will mold the relief to meet the equities as they appear.’ (See Dees v. Dees, [285 Ala. 597], 235 So.2d [236] at page 237 [1970]; Wood v. Cantrell, [224 Ala. 294], 140 So. 345 [1932]; Cox v. Cox, [267 Ala. 372], 102 So.2d 23 [1958]; Crawford v. Crawford, 349 So.2d 65 [Ala.Civ.App.1977]).”

With regard to the third-party complaint of Warwick against USF & G, the trial court found that USF & G was bound under its policy of insurance to Warwick and awarded Warwick the amount of the judgment ($4,600.00), plus a reasonable attorney’s fee of $6,500.00.

USF & G appeals from the denial of its motion for summary judgment and from the judgment entered for Warwick on the third-party complaint. Additionally, Warwick cross-appeals from the money judgment in favor of the Adamses and the Adamses cross-appeal from the judgment. Three issues were presented for review which will be addressed separately.

I.

The first issue is whether USF & G’s policy provided coverage for alleged faulty workmanship and noncomplying materials in the construction of plaintiff’s residence when the alleged damage was confined to the residence itself. USF & G contends that the policy affords no coverage because (1) no insurable loss occurred within the policy period and (2) damages to the work of the insured attributable to faulty workmanship are expressly excluded from coverage. After a review of the record and the policy involved, we conclude that the trial court incorrectly held that USF & G was bound, under its policy of insurance to Warwick. In our view, there was no “occurrence” within the definition of “occurrence” found in the pertinent policy provisions. The policy clearly states that the company will pay damages for: “A. bodily injury or B. property damage to which this insurance applies caused by an occurrence.” The USF & G policy defines “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.” For a contrary holding under circumstances amounting to “an occurrence,” see Moss v. Champion Ins. Co., 442 So.2d 26 (Ala.1983).

We cannot agree with the argument set forth by the Adamses that “a reliance upon the misrepresentations” made by Warwick constitutes an occurrence within the language of the policy. Further, we agree with USF & G that if a misrepresentation were an “occurrence” within the definition of the policy then “any misrepresentations in this case would not be an ‘occurrence’ which caused ‘property damage’ as required to support liability under the policy.” “Property damage” is defined in the policy as follows:

“(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or
“(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.”

There was no evidence in this case that a misrepresentation by Warwick caused physical injury to or destruction of tangible property. For property damage to come under the coverage of USF & G, there must have been an “occurrence” within the definition of the policy. A majority of courts have held that in order to have liability under the terms of such a policy the “occurrence” must arise during the policy period, for it is the insurance that is in force at the time of the property damage that is applicable rather than insurance that was in force when the work was performed. See, e.g., Deodato v. Hartford Ins. Co., 143 N.J.Super. 396, 363 A.2d 361 (1976); Singsaas v. Diederich, 307 Minn. 153, 238 N.W.2d 878 (1976); Oceanonics, Inc. v. Petroleum Distributing Co., 280 So.2d 874 (La.Ct.App.1973), aff'd, 292 So.2d 190 (La.1974). USF & G also asserts, and we agree, that “as a general rule the time of an ‘occurrence’ of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time the complaining party was actually damaged.” Muller Fuel Oil Co. v. Insurance Company of North America, 95 N.J.Super. 564, 232 A.2d 168 (1967), quoted in Deodato v. Hartford Ins. Co., 363 A.2d at 365. See also Annot., 57 A.L.R.2d 1385. By adopting this view, we necessarily overrule Wixom Brothers Co. v. Truck Insurance Exchange, 435 So.2d 1231 (Ala.1983).

The trial court denied USF & G’s motion for summary judgment on the basis of Cotton States, supra. Warwick argued and reiterates on appeal that under Cotton States certain exclusions found within the policy provisions were ambiguous when read in light of each other, and that the ambiguity should be resolved in favor of the insured. Because we find that the damages claimed were not within the USF & G policy coverage, we need not reach the question of ambiguity as to the policy exclusions.

II.

The next issue presented is whether the plaintiff’s “election” of the relief of rescission at the close of the evidence barred the trial court’s award of money damages. While it is true, as urged by Warwick, that a plaintiff may not both rescind a contract and receive money damages, this argument overlooks the fact that the Adamses were not requesting both forms of recovery, but rather were pleading and pursuing their claims for relief in the alternative, as expressly allowed by the Alabama Rules of Civil Procedure. ARCP 8(a).

Rule 8 is identical in relevant aspects to the corresponding Federal Rule of Civil Procedure. The federal courts have consistently upheld the right of a plaintiff to try his case on alternate theories of relief and the “plaintiff cannot be required to elect upon which theory to proceed.” Breeding v. Massey, 378 F.2d 171, 178 (8th Cir.1967); Campbell v. Barnett, 351 F.2d 342, 344 (10th Cir.1965); Pulliam v. Gulf Lumber Co., 312 F.2d 505, 507 (5th Cir.1963); Herlihy Mid-Continent Co. v. Bay City, 293 F.2d 383, 385 (6th Cir.1961).

Breeding v. Massey, supra, involved an appeal by the Defendant/Appellant, asserting that the claims of negligent entrustment and respondeat superior were alternative grounds for liability, and that recovery for the former could only be made when respondeat superior -liability did not exist. The court found such a position unsupported by authority or logic, stating, “A party may ... state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds.” 378 F.2d at 178.

Where the plaintiff was required to elect between two inconsistent causes of action prior to submitting his case to the jury, the Third Circuit found reversible error. German v. Carnegie-Illinois Steel Corporation, 156 F.2d 977, 979 (3rd Cir.1946). In reversing the trial court, the panel determined that the plaintiff was entitled to have the jury pass on both causes of action and if his proof sustained either, or both, he could recover damages. Id.

The Ninth Circuit, in E.H. Boly & Son, Inc. v. Schneider, 525 F.2d 20 (9th Cir.1975), affirmed the trial court’s determination that while damages and restitution cannot be requested concurrently in a complaint, a plaintiff may claim these remedies as alternatives, leaving the ultimate election for the court. 525 F.2d 20, 23, n. 3; Bernstein v. United States, 256 F.2d 697, 706 (10th Cir.1958), cert. dismissed, 358 U.S. 924, 79 S.Ct. 296, 3 L.Ed.2d 298 (1959).

At the beginning of trial in the instant case, the trial judge in effect granted the Defendant’s motion to require election, by saying to Plaintiffs’ lawyer:

“You do have to elect, but that election need not be made until all the evidence is before the Court.... But the election must be made before the case rests.”

The trial judge was in error in requiring the Adamses to elect under which theory they would proceed. The case had been completely tried, except for closing arguments, at the time of the “election.” Warwick was not prejudiced by the Plaintiffs’ presentation of evidence in support of either, or both, theories. See Senter v. B.F. Goodrich Company, 127 F.Supp. 705 (D.Colo.1954).

Had the judge found in favor of Warwick on the basis that he was not convinced by the evidence of the breach of the contract, he would have mooted his error. Having found breach of contract, however, he was then faced with the task of awarding the appropriate relief. Because he was of the opinion that rescission was inappropriate under the circumstances, he corrected his own error, and, correctly in our opinion, found evidence to support an award of damages. “If an actionable wrong has taken place, recovery is to be granted regardless of theory and relief must not be denied through the vehicle of a forced election.” Senter, supra, at 708.

We need not rely solely on federal cases. In National Security Fire and Casualty Co. v. Vintson, 414 So.2d 49 (Ala.1982), this Court held:

“[WJhere the plaintiff claims misrepresentation in the inception of the contract, the plaintiff has the right to present his case to the jury under either a breach of contract theory or the tort of misrepresentation or both because the same facts could support a finding that the contract did exist....”
“The plaintiff may then elect to submit either theory, or both, to the factfinder, ARCP 8(a), with the proper instructions by the court to the jury that it must determine whether one, or both, of these theories are supported by the evidence, if at all. If the jury returns a verdict for the plaintiff, it may only award damages under one of the theories, not both. However, the choice rests with the jury. See, USF & G v. McKinnon, 356 So.2d 600 (Ala.1978).” (Emphasis supplied.) 414 So.2d at 51.

See Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975), for an example of multiple claims where the claimant may be entitled to concurrent recoveries. See, also, Alabama Football, Inc. v. Stabler, 295 Ala. 551, 319 So.2d 678 (1975). For a case dealing with certain procedural aspects and review standards in a multi-claim suit, see Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981).

Our recent cases interpreting ARCP 8(a) clearly evidence an erosion of the former practice of requiring the plaintiff’s lawyer to elect as between alternative remedies or theories of recovery. While these Plaintiffs were not entitled to concurrent recoveries on inconsistent theories (rescission and damages for the breach), we find no reason in logic or precedent to persuade us to reverse the trial court for rejecting rescission and awarding damages.

III.

Finally, we consider the Adamses’ contention that the court’s award of money damages should be increased. We have carefully reviewed the record in this case; and, while the evidence proffered by the Adamses would support a considerably higher award, essentially all of this evidence of defective materials and substandard workmanship was sharply contradicted. We are not inclined, under our review of the evidence of record, to revise the award upward.

As to the appeal by USF & G (Case No. 81-686), the judgment is reversed and the cause is rendered. As to the appeal by Warwick (Case No. 81-697), the judgment is affirmed. As to the appeal by the Ad-amses (Case No. 81-707), the judgment is affirmed.

OPINION SUBSTITUTED ON REHEARING EX MERO MOTU; AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, J., concur as to Part I; dissent as to Part III; and dissent as to Part II, joining separate opinion of BEATTY, J., as to Part II.

JONES, J., concurs as to Parts II and III; and concurs specially as to Part I, with a separate opinion.

SHORES, J., concurs as to Part III; concurs in the result as to Part II; and concurs specially as to Part I, with a separate opinion.

EMBRY, J., concurs as to Part III; concurs specially as to Part I, joining JONES and SHORES, JJ., in their separate opinion; and concurs specially as to Part II, with separate opinion.

BEATTY, J., dissents as to Part III; and, with separate opinion, concurs specially as to Part I and dissents as to Part II.

JONES and SHORES, Justices

(concurring specially).

Because the Court in Part I of this opinion overrules Wixom Brothers Company v. Truck Ins. Exchange, 435 So.2d 1231 (Ala.1983), and returns to the view expressed in Utica Mutual Insurance Co. v. Tuscaloosa Motor Co., Inc., 295 Ala. 309, 329 So.2d 82 (1976), we write separately, since Wixom purported to adopt the position which we stated in a special opinion in Utica.

The facts of the instant case do not present the problem which concerned us in Utica. At the time of the alleged act or omission of the insured, USF & G’s liability policy was in effect, but it had expired at the time of the accrual of the cause of action, i.e., at the time, the damage occurred. In Utica and Wixom, the inquiry was whose coverage applies where there are successive policies with different carri ers and the alleged act or omission occur during the policy period with one insurer and the cause of action accrues during the policy period of a successor insurer. In this case, the question arises in the context of a single insurer whose coverage expired between these two dates. In any event, the question is the same: Will the courts give effect to the literal and unambiguous wording of the policy definition of “occurrence”?

Our dissent in Utica, which formed the basis for Wixom, expressed our apprehension concerning the unregulated discretion of the insurer to alter this definition at will and thus manipulate a hiatus in coverage without a corresponding hiatus in premium obligation. In other words, we were concerned that successive policies, by varying definitions of “occurrence,” could leave an insured, who thought he had continuing coverage, without protection under either policy.

In retrospect and in view of the consistency of the policy definitions of “occur-renee,” we now realize that we should have concurred in the result of Utica (rather than dissenting), pointing out the public policy consideration that would be invoked only where the coverage issue is presented in the context of inconsistent definitions. Thus, the erroneous result in Wixom would have been avoided. At any rate, absent a showing of conflicting definitions, by its unanimous vote as to Part I in the instant case, the Court is of one mind in the view that a policy restricting coverage to bodily injury or property damage occurring during the policy period will be given effect according to its plain and unambiguous language.

EMBRY, J., concurs.

EMBRY, Justice

(concurring in Parts I and III, and concurring specially in Part II):

Because the record reveals that the plaintiffs exercised the election in favor of rescission pursuant to an adverse ruling of the trial court, rather than voluntarily, I agree that, under the circumstances of this ease, the plaintiffs should not have been required to elect as between alternative theories of recovery, and that the trial court properly exercised its factfinding prerogative in awarding damages for breach of contract. United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978). Furthermore, it is worthy of note that, under appropriate circumstances, a claimant may be entitled to concurrent recoveries for breach of contract and for the tort of fraud. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

BEATTY, Justice

(concurring specially in Part I and dissenting in Part II):

I concur specially in that part of the majority’s opinion dealing with the policy coverage and dissent as to that part dealing with election of remedies.

I. POLICY COVERAGE.

The majority in Part I overrules Wixom Brothers Co. v. Truck Ins. Exchange, 435 So.2d 1231 (Ala.1983), because the Court now perceives that the interpretation of the policy situation was not as I understood it in Wixom. I agree with the majority in this case that USF & G was not liable under its policy of insurance to Warwick because the “reliance upon misrepresentations” claimed by the Adamses did not constitute an “occurrence” within the definition of the policy, nor did any misrepresentations cause “property damage” which would have supported liability under the policy. It was entirely possible for the result in USF & G to have been determined without reaching the issue presented in Wixom. Having gone into it, however, a majority of the Court now takes the position that the difficulty apprehended in Wixom does not exist. Because of this, it is helpful to juxtapose Wixom and Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So.2d 82 (1976). Wixom revisited Utica, and the dissent in Utica was the basis for the majority opinion in Wix-om.

Those two eases can be outlined as follows:

UTICA
(1) A declaratory judgment action was filed to determine if the prior insurance carrier, Utica, was required to defend a pending claim.
(2) The Utica policy was in effect at the time the alleged “negligent repairs” in question were performed, but the bodily injury or property damage occurred after the expiration of that policy and during the period of coverage of a subsequent policy.
WIXOM
(1) A declaratory judgment action was brought to determine if Truck Insurance Exchange was required to defend a pending action.
(2) The policy issued by Truck Insurance Exchange was in effect when the “negligent or wrongful act was performed” but the bodily injury or property damage occurred after the expiration of that policy and during the period of coverage of a subsequent policy.
(3) The insuring clause in that policy reads:
“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“G. bodily injury or
“H. property damage
“to which this insurance applies, caused by an occurrence and arising out of garage operations.... ”
An “occurrence” was defined in the policy as:
“... .an accident ... which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured;”
(4) This Court held that:
“The clear meaning of the policy language is that coverage is afforded only when bodily injury, or damage to or loss of property is suffered during the policy period irrespective of when the negligent act was performed which later resulted in such bodily injury, or damage to or loss of property. ... The determinative factor is not when the ‘accident’ (negligent act) took place, rather it is whether or not the bodily injury, or damage to or loss of property happened during the policy period.”
(3) The insurer, in the insuring clause in that policy, agreed:
“to pay all damages which the insured becomes legally obligated to pay because of
“(C) Bodily injury to any person, and
“to which this insurance applies, caused by an occurrence.”
An “occurrence” was defined in the policy as:
“... an event, or series of events ... proximately caused by an act or omission of the insured, regardless of the number of persons, vehicles or objects affected by such act or omission which results, during the policy period, in bodily injury ... neither expected nor intended from the standpoint of the insured.”
(4) This Court held that:
“[T]he public interest in this state would be injuriously affected in such a substantial manner by the enforcement of the coverage restriction exemplified by this insurance policy; the private right to contract in that manner, therefore, must yield to the public interest opposing such a restriction. ...”

The dissenting view in Utica and the basis for the majority holding in Wixom expressed the concern that insurers could “create a hiatus of coverage with no breach in premium obligations” by restricting language contained in the policies and by varying the definition of the term “occurrence” in successive policies. The dissent stated and the majority recognized in Utica that public policy favors contracts of insurance which fix the coverage concurrent with the time of the insured’s culpable conduct —making the insured’s and the insurer’s legal obligations coextensive.

The public policy concern recognized in Utica was adopted in Wixom. A majority of the Court in Wixom agreed that the language restricting coverage to bodily injury “which results during the policy period” was not proper, but the Court divided on whether to immediately disapprove or prospectively disapprove coverage. The dissent in Wixom did not address itself to the issue of whether or not Truck Insurance Exchange was responsible for coverage under the language of the policy, but rather focused on the fact that the policy involved in Wixom was written prior to the Utica decision, and the dissenters stated that “if the policy had been written after Utica, and after the Commissioner of Insurance had had an opportunity to act, then a different result could and should be reached.” 435 So.2d at 1235.

The present case confronts the following:

(1) A third-party complaint was filed by defendant Warwick against USF & G and Northern Assurance claiming both insurers were liable under policies issued to Warwick for any sums adjudged against Warwick. Both insurers had refused to defend the claim against Warwick and denied coverage. Northern Assurance was dismissed from the action and the trial court held that USF & G was liable under its. policy to Warwick. (See Part I of the majority opinion for the insuring clause.)

(2) This Court reverses the trial court, and I agree that there was no coverage afforded in this case within the definition of the policy. The majority goes further, overruling Wixom, and holds that “in order to have liability under the terms of such a policy the ‘occurrence’ must arise during the policy period” and that “the time of an ‘occurrence’ of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time the complaining party was actually damaged.”

Wixom is not directly applicable to the case at hand, and I do not think it should be overruled. In addition, the majority in USF & G, by now reaffirming Utica and overruling Wixom, fails to take into consideration the public policy concern which was recognized in Utica and addressed in Wix-om. As it now stands, as long as the restrictive language in the insuring clause is clear and unambiguous it will be upheld. Through the policy language and the private right to contract, an insurer can absolve itself of liability which falls beyond the specified policy period. In other words, the insurer can write its policy and limit its liability to a definable time limit unrelated to the length of exposure which the law places on the insured. As a result, the concern expressed in Utica that insurers could “create a hiatus of coverage” and leave a plaintiff without the protection which he sought to provide by obtaining an insurance contract, remains.

II. ELECTION OF REMEDIES.

From a reading of the majority opinion, it is clear that the majority in Part II does not follow its own statement of the legal principle to be applied under these facts with regard to the election of remedies.

The record clearly shows that the lawyers who tried this case, and the trial judge himself, recognized that this was a situation in which plaintiffs would be required to ultimately elect their remedy; that is, after all the evidence was presented. The case was tried on that basis.

Plaintiffs sought to recover for a breach of warranty allegedly contained in their contract of purchase of a residence and for rescission of their contract as well. They did not claim fraud in the inception, which would have nullified the contract, National Security Fire & Casualty Co. v. Vintson, 414 So.2d 49 (Ala.1982), but they adhered to the contract by insisting on the warranty. The trial court held that they could not recover under both theories, but, interestingly enough, also held that since plaintiffs had failed to prove a case for rescission the court would award damages under the contract AFTER THE PLAINTIFFS HAD EXPRESSLY STATED THEY WANTED RESCISSION AND THUS HAD MADE THEIR ELECTION BETWEEN THESE INCONSISTENT REMEDIES.

The majority places much of its reliance upon Rule 8(a), Alabama Rules of Civil Procedure. I cannot agree that Rule 8(a) solves the problem. This rule clearly refers to alternative remedies pleaded and not to recovery under inconsistent theories as we have here. This bootstrapping also includes reliance upon Vintson, supra, and Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975). Even a casual reading of these cases clearly shows that they were not meant to eradicate the necessity for an election between inconsistent remedies. The opinion in Vintson should be viewed only in the limited sense as spelled out by the author and only applies to the narrow situation presented by the facts of that case. Further, in citing Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980), which clearly states “the plaintiff must make an election at the latest before the case goes to the jury as to which of its inconsistent theories it elects to proceed on,” this Court in Vint-son pointed out that we were not departing from the well-established principle requiring an election of inconsistent theories of recovery.

According to the majority opinion, I suppose the law now is that Rule 8(a) allows inconsistent recoveries. It is at least infer-able that the restrictions of Spriggs and Vintson have been annulled.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerry WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 62144.
    Supreme Court of Florida.
    Jan. 19, 1984.
    Rehearing Denied April 11, 1984.

      Charles A. Tabscott, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This cause is before us on direct appeal from convictions of first-degree murder and armed robbery, and from a sentence of death imposed in accordance with the jury’s recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Around 11:00 on the morning of March 8, 1981, appellant was seen in a small grocery store in Taft, Florida, by a customer, Judith Rayburn. Mrs. Rayburn bought a few items from the proprietor of the store, Alexander H. Alexander, and observed that there was money in the cash register and another customer in the store, James Mel-son. Shortly after Mrs. Rayburn left the store she heard three shots which were also heard by Frankie Allen Walker and Johnny Glenn Walker, brothers who were in a garage behind the store.

Mr. Henry Tehani and his daughter came into the store shortly after 11:15 a.m. They saw no one besides appellant, who ordered them at gunpoint to get into a freezer. When they refused to comply, appellant pulled the trigger twice. The gun misfired, and the Tehanis fled. Mr. Tehani saw appellant run out the back, and reported the incident to a deputy sheriff. The Walker brothers also saw appellant running away from the store. Frankie Walker looked in the back door of the store and saw Alexander lying on the floor. Frankie told his brother to get an ambulance, and he pursued appellant, who escaped in a car. The deputy sheriff who subsequently arrived at the scene found only some change and food stamps in the cash register, but no currency. Melson was dead with a bullet wound in the back of his head. Alexander had bullet wounds in the back of his head and in his arm and was paralyzed from the neck down.

Appellant testified that he went into the grocery store to buy a beer and change several hundred-dollar bills. He became angry when Alexander shortchanged him, and he displayed a gun which, according to appellant, Melson grabbed. They scuffled with the gun and it fired, wounding appellant in the lower body. Appellant asserts that Alexander then took the gun and, in attempting to shoot appellant, accidentally shot Melson. Appellant claims that Alexander then said he was going to kill him and that he took the gun in self defense. According to appellant the gun went off twice, causing Alexander’s wounds. Appellant claims that he then collected his change for the hundred-dollar bills and was about to leave through the front door when the Tehanis entered. When they left, appellant departed through the back door, escaped by car, and disposed of the gun. Shortly thereafter the car malfunctioned and was abandoned. Appellant removed some clothing from a traveling case and walked down a dirt side road. After changing and throwing the bloody clothing into the bushes, appellant, weakened from loss of blood, lay down. He was found by the sheriffs department with a large amount of cash nearby on the ground.

An indictment was filed on April 7, 1981, charging appellant with the first-degree murder of James Melson and armed robbery. He was found guilty as charged and the jury recommended death. After finding four aggravating and no mitigating factors, the judge sentenced appellant to death for murder and life imprisonment for robbery.

TRIAL PHASE

Appellant first contends that there is no authority under which a county court judge can be assigned to preside over a circuit court criminal trial. This issue was waived by failure to object below. Moreover, appellant’s position is erroneous on the merits. A county judge who is qualified to serve as a circuit judge may be assigned as a temporary circuit judge to perform any judicial service a circuit judge can perform. See, e.g., State ex rel. Treadwell v. Hall, 274 So.2d 537 (Fla.1973); State v. Herrera, 407 So.2d 637 (Fla. 3d DCA 1981); Rodgers v. State, 325 So.2d 48 (Fla. 2d DCA 1975), cert. dismissed, 342 So.2d 1103 (Fla.1977).

Appellant argues for the first time that the trial court erred in allowing the jury to hear details of Alexander’s injuries. The state concedes that this information was irrelevant. However, we do not find this error to be of the magnitude that would have prevented the jury from reaching a fair and impartial verdict so as to render the error fundamental. In the absence of fundamental error, we will not consider .an issue raised for the first time on appeal. Steinhorst v. State, 412 So.2d 332 (Fla.1982).

Appellant contends that there was insufficient evidence to support the convictions of first-degree murder and armed robbery, and that his story offered a reasonable hypothesis of innocence. We find that the evidence in the record supports the jury’s finding. A judgment rendered in accordance with a jury verdict supported by substantial, competent evidence will not be reversed by this Court. Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, — U.S. —, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

Appellant next argues that the court erred in failing to grant his motion to suppress a statement made while he was hospitalized for bullet wounds. The first night he was hospitalized, in response to a detective’s question, “Do you know why we’re here?” appellant made a statement inconsistent with his later testimony at trial. The state introduced evidence of the previous statement on cross-examination to impeach appellant’s trial testimony. We find no error. A prior inconsistent statement may be admitted to impeach a defendant who testifies at his trial. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Before admitting the statement, the court must determine that it was made voluntarily. Nowlin v. State, 346 So.2d 1020 (Fla.1977). Upon appellant’s objection, the court excused the jury and held a hearing on the motion. The issue before the court was whether the statement was voluntary. Although the court in ruling on the motion did not again use the specific word “voluntary,” the evidence supports a finding that the defendant was alert at the time and that the statement was voluntarily given. See Antone v. State, 382 So.2d 1205, 1212-13 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

Appellant argues that the court erred in failing to instruct the jury on the lesser-included offenses of attempted first-degree murder and third-degree murder, robbery with a weapon, and strong-arm robbery. Appellant did not request such instructions or object to their omission. We find there was no fundamental error.

Appellant also argues that the court erred in refusing to instruct the jury on circumstantial evidence. This omission was not error, since the jury was given an instruction on reasonable doubt. In re Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).

Appellant contends it was error to exclude potential jurors because they expressed objections to the death penalty. He did not preserve this point by objecting below. Moreover, the argument is merit-less. The excused jurors stated that they could not vote for the death penalty. Two of them indicated their opposition to the death sentence might influence their choice of verdict. Prospective jurors may be excused for cause if their opposition to the death penalty might interfere with their ability to decide guilt or innocence or would render them unable to consider the death penalty if a finding of guilt were reached. Steinhorst v. State, 412 So.2d at 335. Appellant also protests that to which he specifically agreed at trial: allowing the prosecutor to withdraw a challenge to a prospective juror, put her on the panel, and remove another juror from the panel to serve as an alternate. This irregular procedure does not constitute fundamental error, especially when, as in this instance, it is agreed to by the defendant.

Appellant complains of several prosecutorial comments to which he did not object below. A contemporaneous objection is required to preserve the issue for appellate review and none was made. Maggard v. State, 399 So.2d 973, 975 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). Here again, we find no error.

Appellant contends that the trial court should have dismissed the indictment which added the charge of first-degree murder without amending the information. Having failed to object at trial, appellant cannot now have this issue reviewed.

Appellant finally complains that many of the exhibits introduced into evidence were duplicitous and irrelevant. He does not specify which or how many exhibits belong in this category, and he did not object at trial. The record affords no basis for reversal.

Finding no reversible error in the guilt phase of the trial, we affirm appellant’s convictions of first-degree murder and armed robbery.

SENTENCING PHASE

Appellant raises nine issues, four of which were not preserved for appeal by contemporaneous objections. The prosecutor used a chart on which he checked off aggravating and mitigating factors. With the agreement of defense counsel, this chart was allowed to go into the jury room. Appellant’s argument that such a chart was an improper item for submission to the jury during its deliberation under Florida Rule of Criminal Procedure 3.400 is correct. However, appellant cannot at trial create the very situation of which he now complains and expect this Court to remand for resentencing on that basis. McCrae v. State, 395 So.2d 1145, 1152 (Fla.1980), cert. denied, 454 U.S. 1037, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). The other three issues not preserved are: whether the court gave improper jury instructions, whether the court allowed the improper admission of exhibits, and whether the prosecutor made improper comments. Absent fundamental error, an appellate court will not consider these kinds of issues for the first time on appeal. See, Steinhorst v. State; Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); Ross v. State, 386 So.2d 1191, 1195 (Fla.1980). We find no fundamental error.

Appellant argues that the death penalty is unconstitutional. This point has been decided adversely to him. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); 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).

Appellant contends that the trial court found nonstatutory aggravating factors. We do not agree. In his Findings of Fact and Sentencing Order the judge first listed the statutory aggravating factors not found. He then listed the factors he did find. After addressing the aggravating factors, he considered the statutory mitigating factors; finding none, he stated:

The advisory jury is entitled to consider any other mitigating circumstance found in the evidence or the defendant’s character. The court has also searched the record and found that none exist. The Defendant is single with no children to support. He has a limited employment background and, in fact, admitted to the sale or delivery of controlled substances shortly before the murder. He has shown no remorse for his actions.

We find that in context these statements were considered not as aggravating factors, but rather as observations in connection with a search of the record for possible nonstatutory mitigating factors.

Appellant also contends that the court either ignored or forgot certain mitigating factors: intoxication at the time, a deprived upbringing without a father, and a heart condition which required medication. The record reflects that the court expressly considered the evidence that appellant had been drinking alcoholic beverages before the crime. Furthermore, the court expressly stated that it “carefully considered the evidence presented at both phases of the trial ... weighed and applied the total evidence to the legislatively mandated criteria of aggravating and mitigating circumstances,” and that it searched the record and found no other mitigating circumstance to exist. It is within the trial court’s discretion to determine whether sufficient evidence exists of a particular mitigating circumstance and, if so, the weight to be given it. Daugherty v. State, 419 So.2d 1067, 1071 (Fla.1982), cert. de nied, — U.S. --, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983).

Appellant correctly asserts that the trial court erroneously doubled two aggravating factors by finding that appellant committed the murder both while in the commission of a robbery and for pecuniary gain. Francois v. State, 407 So.2d 885, 891 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). The finding embraces but one aggravating factor.

The trial court also found that the killing was cold, calculated, and premeditated. We do not find evidence in the record before us to support a finding beyond a reasonable doubt that there was the kind of heightened premeditation and cold calculation that would permit this factor to be part of the weighing process. Cf. Cannady v. State, 427 So.2d 723 (Fla.1983) (defendant stole money from Ramada Inn, kidnapped a night auditor, drove him to a wooded area and shot him; defendant said he had not meant to shoot the victim — factor not found); Middleton v. State, 426 So.2d 548 (Fla.1982) (defendant confessed that he sat with a shotgun in his hands for an hour looking at the victim as she slept and thinking about killing her — factor found); Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (defendant held the victims at gunpoint and ordered them to strip, then beat and tortured them during the evening before killing them — factor found); Mann v. State, 420 So.2d 578 (Fla.1982) (ten-year-old girl abducted and suffered several cuts and stab wounds and a fractured skull — factor not found); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982) (defendant beat woman, transported her in a car trunk to a house where four men raped her, put her back in the trunk and took her to a game preserve where the defendant and another poured gasoline on her and set her on fire while alive — factor blended into one with the heinous, atrocious, and cruel factor); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982) (defendant first sold cocaine to the victims, then, saying he was leading them to a party, led them instead to a wooded area and held a gun on them, demanded the cocaine, and then shot them — factor found).

The court found another aggravating circumstance which appellant does not contest: that the defendant was previously convicted of a felony involving the use or threat of violence to the person. The record supports this finding as well as the finding that the defendant was engaged in the commission of a robbery when he murdered Melson. When there are one or more valid aggravating factors which support a death sentence, in the absence of any mitigating factor(s) which might override the aggravating factors, death is presumed to be the appropriate penalty. White v. State, 403 So.2d 331 (Fla.1981), cert. denied, — U.S. -, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); 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).

Finally, appellant argues that he should not have been sentenced for the robbery count. This argument presupposes that the sole basis for his conviction was felony murder. However, sufficient evidence existed to support a jury finding of premeditation, so that the separate sentence for robbery was not error. McCampbell v. State, 421 So.2d 1072 (Fla.1982); Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Appellant having failed to demonstrate, and our careful search of the record having failed to reveal, reversible error, we affirm appellant’s sentence of death.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ„ concur.


author: PER CURIAM. ALDERMAN, Chief OVERTON, Justice,

text:
    Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee.
    No. 59146.
    Supreme Court of Florida.
    Jan. 26, 1984.
    Rehearing Denied April 10, 1984.

      Michael E. Allen, Public Defender, Michael M. Corin and Nancy A. Daniels, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of the Circuit Court of Bradford County imposing the death penalty. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm both the conviction and sentence.

At the Thanksgiving Day noon meal in the Florida State Prison cafeteria on November 23, 1978, Bobby Earl Lusk fatally stabbed inmate Michael Hall. Lusk was serving three consecutive life terms for two convictions of armed robbery with a pistol and a simultaneous conviction of first-degree murder. The victim, Hall, was serving a 30-year sentence for the second-degree stabbing murder of an inmate at Sumter Correctional Institution. Lusk initially made a statement to prison officials that Hall and two other inmates had robbed him in his cell on the morning of the murder, stabbed his mattress several times and threatened him if he reported the incident. He then said he would not take it anymore and resolved to kill one of the men. According to Lusk, he took his homemade knife to the dining hall at lunchtime and stabbed Hall in the back two or three times. (The body had three stab wounds in the back.) He concluded the statement by saying that Hall had been sitting when he stabbed him and Hall had thrown a tray at him after the stabbing. Lusk moved to suppress the confession as being involuntary but this was denied; the actual tape recording was not used at trial but only portions of a transcript of the tape. At trial, Lusk testified and offered self-defense as an explanation for the crime, stating that Hall threatened to “take him out” and that Hall attacked him first with a knife of his own. The jury returned a verdict of guilty as charged, and at the sentencing phase the jury recommended a sentence of life imprisonment. The judge disagreed and pronounced a sentence of death.

Lusk raises six issues on this appeal: 1.) denial of request for a thirty-day continuance; 2.) denial of a challenge for cause; 3.) prejudicial statement by the court; 4.) double jeopardy; 5.) jury override; and 6.) Gardner violation. Each of these has been carefully considered by the Court and found to be without merit.

Lusk argues first that the trial court erred in refusing to grant his motion for a thirty-day continuance of trial. Initially, Lusk had been represented by Shon Saxon of the Public Defender’s Office but because Lusk filed a section 1983 suit against Saxon, Saxon moved to withdraw as Lusk’s attorney. On October 9, 1979, the trial court granted the motion to withdraw and appointed another lawyer, Mack Futch, to represent Lusk. Trial date was set for December 3. On November 14, Futch filed for a thirty-day continuance alleging problems in getting depositions transcribed and in getting prison witnesses interviewed. The trial court entered an order on November 19 directing immediate transcription of the deposition material but denied the motion for continuance. On November 28, Futch filed an amended motion for continuance, and this too was denied.

The granting or denial of a motion for continuance is within a court’s discretion and will not be overturned absent a palpable abuse of discretion. Jent v. State, 408 So.2d 1024 (Fla.), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1981); Ziegler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). No abuse of discretion appears clearly and affirmatively on the record and we therefore refuse to say that the trial court committed error.

For his second issue, Lusk argues that the trial court erred in denying his challenge for cause of a prospective juror who was a prison correctional officer and who had heard conversations about the offense. Prior to trial, Lusk made an oral motion in chambers to disqualify present and past prison employees and their relatives from the venire. The court denied the motion, ruling that the offense did not involve acts against prison personnel. Lusk later challenged for cause prospective juror Williams, an employee at Union Correctional Institution (U.C.I.). The court overruled the challenge and Lusk then excused the juror with a peremptory challenge.

We recently addressed the same issue in Morgan v. State, 415 So.2d 6 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). In that case, Morgan was tried for the stabbing murder of a fellow inmate at U.C.I. He moved to exclude employees of the state prison system from the jury, basing his argument on section 40.07(2), Florida Statutes (1977) [now section 40.013(2) ], which disqualified sheriffs, deputies and municipal police officers from jury service. We declined in that case to include all correctional officers within the classes of persons disqualified from jury service. Lusk argues that section 40.013(2) should disqualify correctional officers since a law enforcement position inherently creates a disability to serve as a fair and impartial juror. We disagree and reaffirm our holding in Morgan that state prison employees are not automatically disqualified from jury service.

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court. Singer v. State, 109 So.2d 7 (Fla.1959). Lusk has presented no evidence that prospective juror Williams would not have rendered his verdict solely upon the evidence presented. This Court has reviewed the transcript of jury selection and we are satisfied that Williams was not subject to challenge for cause because of any bias or prejudice.

In any event, Williams was peremptorily challenged and excused from the venire. Lusk argues that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) stand for the rule that it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges. We need not reach this issue since Lusk’s counsel agreed at oral argument before this Court that, although the record is somewhat unclear, Lusk indeed had not exhausted his peremptory challenges. See Young v. State, 85 Fla. 348, 96 So. 381 (1923). Furthermore, a review of the jury selection transcript discloses no sitting juror who appears unqualified and who should have been excused. No proof has been submitted by Lusk that casts any doubt on the conclusion that Lusk was convicted by a fair and impartial jury.

The third issue raised by Lusk is that the trial court erred when it instructed the jury that other prejudicial evidence was available for use against the defendant. Prior to the introduction of Lusk’s confession, the court instructed the jury that the actual tape of the statement was not going to be introduced, only certain portions of the tape transcript. During that instruction, the court said:

The Court wishes to advise the jury that while the tape of this interview is available, there are some portions of the tape involving statements attributed to the defendant that do not relate to these proceedings and their use during the course of this trial before the jury may be prejudicial to the defendant. The Court does not wish such prejudicial matters to be presented to and considered during the course of this trial by the jury, and for that reason the tape will not be admitted into evidence nor used during the course of these proceedings. But, the transcript itself will be and is now declared to be admissible and you may proceed.

Lusk argues that the above remarks were a comment on the evidence which fundamentally destroyed his right to a fair trial.

Defense counsel, however, did not object to the above remarks. Had there been an objection, the jury could have been given curative instructions to disregard any inferences that could be drawn from said remarks. Because of a lack of an objection we must hold that the issue was not preserved for appeal and thus is not properly before this Court. Collins v. Farley, 147 So.2d 593 (Fla. 3d DCA 1962). Even if this issue were properly preserved, the trial court’s remarks do not constitute grounds for reversal. Viewed in relationship to the totality of circumstances, the above comments clearly appear incidental within the scheme of the overall record. In addition, the comments were couched in qualifying terms. Also, if taken to its logical conclusion, the remarks certainly imply that the statements that were going to be presented to the jury were not prejudicial to Lusk. We hold, then, that the above comments by the trial court were not harmful error.

The fourth issue that Lusk raises is that the double jeopardy clause of the United States Constitution bars imposition of the death penalty by a trial court where the jury has made a life recommendation. Lusk bases his argument on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). But the Missouri statute at issue in that case is not identical to Florida’s death penalty statute, the major and crucial difference being the binding nature of the jury sentence in that state. As we recently said in Dobbert v. State, 409 So.2d 1053, 1058 (Fla.1982), “[bjecause of the substantial differences between the sentencing procedures of Florida and Missouri, Bullington is clearly distinguishable.”

Lusk raises as his fifth issue that the trial judge found improper aggravating circumstances, improperly doubled other aggravating circumstances, and failed to consider mitigating circumstances. In its findings of fact, the trial court found four aggravating circumstances. It found that the murder was committed by Lusk while under sentence of imprisonment, since Lusk was serving three consecutive life sentences for a previous first-degree murder and two offenses of robbery. It found that Lusk had previously been convicted of another capital felony and of a felony involving the use or threat of violence, since Lusk’s three life sentences were for convictions for murder or of offenses involving firearms and a knife. It found that Lusk knowingly created a great risk of death to many persons, since “this stabbing could have resulted in a prison riot in which many persons, inmates and custodial personnel, could have been killed.” Lastly, it found that the murder was especially heinous, atrocious or cruel, since the premeditated stabbing caused the victim to bleed to death with a high degree of pain. Finally, the trial court found that none of the evidence presented by the defense rose to the level of either a statutory or nonstatutory mitigating circumstance.

Lusk initially argues that the factor of knowingly creating a great risk of death to many persons is not supported by the facts. With this we agree. The trial court erred in basing this finding on mere supposition as to what could have happened. A person may not be condemned for , what might have occurred; what is required is not a mere possibility .of occurrence but a likelihood or high probability. Kampff v. State, 371 So.2d 1007 (Fla.1979).

We disagree, however, with Lusk’s remaining contentions concerning aggravating and mitigating factors. We affirm the trial court’s holding that the stabbing was especially heinous, atrocious, or cruel. See Morgan v. State. We find, also, that the trial court properly found both a capital felony committed by a person under sentence of imprisonment and a previous conviction of another capital felony. There was no improper doubling of these factors. Id. Lastly, a review of the record shows that the trial court did not ignore evidence presented by Lusk in mitigation. It is clear that the trial judge did not believe that said evidence in its totality rose to the level of mitigation in Lusk’s case. We conclude that the trial court did not err in its finding that no statutory or nonstatu-tory mitigating circumstances existed. See Daugherty v. State, 419 So.2d 1067 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983); Riley v. State, 413 So.2d 1173 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 985 (1982).

We are left, then, with three aggravating circumstances and nothing in mitigation. A remand for new sentencing by the trial judge is not necessary in this case in light of the express conclusion of the trial court that even if the aggravating factors of great risk of death and heinous, atrocious or cruel were found by this Court to be in error, “the undisputed and multiple findings under sections 921.141(5)(A) and (B) [under sentence of imprisonment and previous convictions], alone, far outweigh any mitigating circumstances.”

In Tedder v. State, 322 So.2d 908, 910 (Fla.1975) we said:

A jury recommendation under our trifur-cated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

After having reviewed the record and in light of the totality of the circumstances, we hold that the jury override in this case is proper since the facts suggesting the death sentence are so clear and convincing that no reasonable person could differ. This is especially so given the fact that, as aggravation, the instant murder was committed by Lusk while he was serving three consecutive life sentences imposed in 1977 for a prior first-degree murder and two armed robberies with a pistol. Additionally, we conclude that the jury’s recommendation of life was not based on any valid mitigating factor discernible from the record and therefore it was proper for the trial judge to decline to follow their recommendation.

The sixth and final issue raised by Lusk merits but brief discussion. Lusk argues fundamental error in that he was sentenced to death without personally reviewing the contents of a presentenee investigation report (PSI) in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). This issue was answered contrary to Lusk’s position in Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978) wherein we held that Gardner was satisfied by the PSI being available to defense counsel. In the present case, the record discloses that a copy of the PSI was furnished to Lusk’s counsel.

It is the judgment of this Court that the issues raised by Lusk are without merit. We therefore affirm his conviction for first-degree murder and his sentence of death.

It is so ordered.

CONVICTION:

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

SENTENCE:

1. Imposition of death sentence:

EHRLICH and SHAW, JJ., concur.

ALDERMAN, C.J., concurs with an opinion in which ADKINS and BOYD, JJ., concur.

OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.

2. Trial court’s improper finding as aggravating circumstance of knowingly creating great risk of death to many persons:

EHRLICH and SHAW, JJ., concur.

OVERTON, J., concurs with an opinion in which McDONALD, J., concurs.

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

ALDERMAN, Chief

Justice, concurring in affirmance of conviction, concurring specially as to sentence.

Although I concur completely with the affirmance of Lusk’s conviction and concur that the death sentence was properly imposed in this case, I disagree with the majority’s finding that the trial court improperly found, as an aggravating circumstance, that Lusk knowingly created a great risk of death to many persons. I believe that this aggravating circumstance is supported by the facts of this case.

In reaching its conclusion, the majority relies on Kampff v. State, 371 So.2d 1007 (Fla.1979), stating that great risk means not a mere possibility but a likelihood or high probability. In Kampff we held that the trial court had erroneously applied this factor where defendant fired five shots at close range and where there were only two persons besides defendant and the victim present in the store at the shooting.

Since Kampff, however, this Court has modified Kampff’s test of likelihood or high probability to a test of reasonable foreseeability. In King v. State, 390 So.2d 315 (Fla.1980), we held that the trial court correctly found the existence of this aggravating factor where defendant had intentionally set fire to the house of his murder victim. We stated:

Appellant contends that the statutory aggravating circumstance of knowingly creating a great risk of death to many persons, based upon the arson offense, was not justified because no person other than the murder victim was in the house at the time of the arson. We reject this contention and find that when the appellant intentionally set fire to the house, he should have reasonably foreseen that the blaze would pose a great risk to the neighbors, as well as the firefighters and the police who responded to the call.

390 So.2d at 320 (emphasis supplied).

This Court again applied the test of reasonable foreseeability to determine the correctness of the trial court’s finding that defendant had knowingly created a great risk of death in Welty v. State, 402 So.2d 1159 (Fla.1981). In Welty, we agreed with the trial court that defendant created a great risk of death to many by setting fire to the victim’s bed and reasoned:

There were six elderly people asleep in the building in which the victim’s condominium was located. This can be classified as many persons. Cf. Kampff v. State, 371 So.2d 1007 (Fla.1979). In King v. State, 390 So.2d 315 (Fla.1980), we held that by setting fire to the house in which the murder victim resided and in which no other person was present, the defendant had knowingly created a great risk of death to many persons because he should have reasonably foreseen that the blaze would pose a great risk to the neighbors as well as the firefighters and the police who responded to the call. In the present case, the fire posed a direct threat of death to those six elderly persons residing in the building as well as the neighbors, firefighters, and police responding to the call.

402 So.2d at 1164 (emphasis supplied).

Employing this test of reasonable foreseeability, I would find that the trial court correctly decided that Lusk knowingly created a great risk of death to many persons. In finding this factor, the trial court explained:

The court, however, cannot overlook the fact that Florida State Prison houses convicted felons who are generally the most dangerous persons in the custody of the Department of Corrections and that violence too frequently occurs there involving the use of hand made weapons and knives such as that used in this murder. The selection by defendant of the food service hall then occupied by numerous inmates during their Thanksgiving Day noon meal for the time and place of the murder and the subsequent waving of his knife and loud threats made by him after this stabbing could have resulted in a prison riot in which many persons, inmates and custodial personnel, could have been killed, and they were all certainly exposed to that threat and danger.

Lusk could reasonably foresee these consequences resulting from his conduct. The fact that there was not a prison riot or that no other persons were killed does not mean that there was not a great risk of death to many persons at the time and place selected by Lusk to commit this murder.

I agree that the death sentence should be affirmed.

ADKINS and BOYD, JJ., concur.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur in the majority’s affirmance of the conviction and the finding that the trial court improperly found as an aggravating circumstance that Lusk knowingly created a great risk of death to many persons. I dissent, however, from the majority’s conclusion that the principles of Tedder v. State, 322 So.2d 908 (Fla.1975), and McCaskill v. State, 344 So.2d 1276 (Fla.1977), do not apply in this case. The jury could have, reasonably believed the appellant’s testimony that he had been threatened by the victim and feared for his life. The record does not support a finding that appellant’s testimony is totally unbelievable. Given this conclusion, I find that there was a reasonable basis for the jury’s recommendation of a life sentence under Tedder and McCaskill.

McDONALD, J., concurs.


author: McDonald, justice.

text:
    Ruel A. GALBREATH, Petitioner, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, et al., Respondents.
    No. 63203.
    Supreme Court of Florida.
    Jan. 26, 1984.
    Rehearing Denied April 5, 1984.

      Harold D. Smith, Hollywood, for petitioner.
    Gordon Dean Rogers of Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, Miami, for respondent, The School Bd. of Broward County, Florida.
    Richard H. Frank, Mark F. Kelly and Richard T. Donelan, of Frank & Kelly, Tampa, for respondent, The Broward County Classroom Teachers Ass’n, Inc.
    Phillip P. Quaschnick, Deputy Asst. Gen. Counsel, Tallahassee, for respondent, Public Employees Relations Com’n.
   McDonald, justice.

This case is before us to review a district court decision, Galbreath v. School Board of Broward County, 424 So.2d 837 (Fla. 4th DCA 1982), which certified the following question as being of great public importance:

Where the certified bargaining agent retains contractual control over the arbitral step of the grievance procedure and it declines to process a grievance to arbitration because it believes the grievance to be without merit, is the public employer still obligated to arbitrate the dispute if the grievant submits it to arbitration because the certified bargaining agent has declined to “represent the grievant?

Id. at 838. This Court has jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We answer the certified question in the negative and approve the decision under review.

Ruel Galbreath is a public school teacher in Broward County. His employer, the School Board of Broward County, and the Broward County Classroom Teachers Association are parties to a collective bargaining agreement. This agreement covers all teachers including those who, like Gal-breath, are not members of the Classroom Teachers Association. Galbreath filed a grievance under the collective bargaining agreement in an attempt to secure payment for certain overtime work. The Classroom Teachers Association represented Gal-breath through the first two steps of the three-step grievance procedure but refused to further process his grievance through the final arbitration step. The Classroom Teachers Association based this decision not on Galbreath’s non-union status but rather on the lack of merit in his grievance. The school board then rejected Galbreath’s demand for arbitration because the collective bargaining agreement gave control over the arbitration step to the Classroom Teachers Association. Galbreath subsequently brought unfair labor practices charges with the Public Employees Relations Commission against both the school board and the Classroom Teachers Association. The Public Employees Relations Commission summarily dismissed these charges and Galbreath appealed.

The district court affirmed the dismissal, holding that Galbreath could be foreclosed from individual arbitration under section 447.401, Florida Statutes (1979). In affirming, the district court adopted the majority opinion of the Public Employees Relations Commission in Heath v. School Board of Orange County, 5 FPER 10074 (1979), and the “Declaratory Statement” portion of In re Leon County School Board, 7 FPER 12286 (1981). We agree with the district court and approve the following portions of In re Leon County School Board, set out in the appendix of the opinion under review, as dispositive of the issues presented in the certified question.

A union’s right to exclusivity over the administration of a collective bargaining agreement includes not only the right to settle a grievance short of arbitration, but also the right to decline to process a grievance when it believes the grievance lacks merit. In either case, the union is deemed to have represented the grievant even though the grievance was not pursued to the final stage of the procedure, binding arbitration. Once the bargaining agent chooses to represent a grievant, regardless of the grievant’s union membership status, the manner with which it handles the grievance, including a decision not to process the grievance for lack of merit, is subject to the statutory duty of fair representation. See Heath v. School Board of Orange County, 5 FPER ¶ 10074 (1979); Gow v. AFSCME, Local 1316, 4 FPER ¶ 4168 (1978).
However, unlike other jurisdictions, Florida law permits a certified bargaining agent to refuse to represent a griev-ant who is not a member of the certified organization. Section 447.401, Florida Statutes (1979), provides, in pertinent part:
All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. (Emphasis added)
The Commission has concluded that this provision does not serve as a limitation upon the certified bargaining agent’s exclusive right of representation. Heath v. School Board of Orange County, 5 FPER ¶ 10074 at 92. Rather, the proviso simply affords the organization the right to determine whether it desires to exercise its right of exclusive representation on behalf of nonmembers.
When a certified bargaining agent declines to represent a grievant because he or she is not a member of the certified organization, the grievant is entitled to pursue the grievance to arbitration, and the public employer is under a concomitant obligation to process the grievance in accordance with the terms set forth in the agreement. See generally, Blanchett v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979); Manatee County Municipal Employees Local 1584 v. Manatee County School Board, 6 FPER ¶ 11188 (1980). Therefore, the grievant’s right to a fair and equitable grievance procedure mandated by Section 447.401 is protected by allowing the grievant to either represent himself or to seek outside representation, for the purpose of pursuing the grievance in accordance with the procedures set forth in the collective bargaining agreement.
... Our rejection of the proposition that Section 447.301(4) guarantees an individual unfettered access to the arbitral process is supported by the substantial weight of authority in other jurisdictions interpreting statutory provisions which are identical in all material respects to Section 447.301(4) in both language and policy. Heath v. School Board of Orange County, 5 FPER ¶ 10074 at 91-93; Maggs v. PLRB, 11 PPER ¶ 11103 (Pa.Comm.Ct.1980)_ [W]e find it patently illogical that the Legislature would have adopted practically verbatim the language of a long standing federal statute but have intended an interpretation which is exactly the opposite of the interpretation given the federal statute as long ago as 1944. As we have previously noted, the policy considerations which underlie the interpretation of the federal statute apply with equal force to the Florida public sector collective bargaining scheme.
It is inconsistent to require, on the one hand, an exclusive bargaining agent to fairly represent all bargaining unit employees in collective bargaining negotiations and administration of a collective bargaining agreement and, on the other hand, to allow individual employees to advance grievances which may assert an interpretation of that agreement contrary to that of the bargaining agent and possibly the employer. Under such a scheme, the bargaining agent’s status as exclusive representative in the determination of wages, hours and terms and conditions of employment is emasculated because the employer would be required to process through arbitration every individual grievance upon request, regardless of merit. Such individual grievance processing is in effect individual negotiations between the employer and the employee regarding the subject matter of the grievance. The Florida courts have long recognized the inherently destructive effect that individual negotiations between employer and employees have upon the right to collectively bargain. Pasco County School Board v. PERC, 353 So.2d 108, 4 FPER ¶ 4033 (Fla. 1st DCA 1977). Such individual negotiations are no less destructive simply because they occur during the grievance process rather than at the negotiating table.
There are also important practical reasons for limiting access to the arbitration machinery of contractual grievance procedures. Unlimited individual access would allow every employee, regardless of motive, to compel arbitration proceedings where the parties who negotiated the collective bargaining agreement deemed such proceedings unwarranted. The potential for harassment of the union and the employer, to the detriment of all concerned, from disgruntled individuals is very real. See e.g., Black-Clawson Co., Inc. v. International Association of Machinist, Lodge 355, 313 F.2d 179, 196 (5th Cir.1962). Furthermore, one need not be very experienced in labor relations to realize the attractiveness to a rival or a minority union of being able to compete with the incumbent union for [members] by indirectly processing grievances, regardless of merit, through an individual member. See McGuire Public Employee Collective Bargaining In Florida—Past, Present and Future, Fla.State L.Rev. 26, 101-02 (1973).
Finally, the policy we have adopted protects the taxpayer from the compulsory but unnecessary expenditure of public funds, a policy consideration not present in the private sector. If individual employees may, at their whim, compel arbitration of all grievances regardless of merit and contrary to the desires of the employer and the bargaining agent, significant public funds will be spent on expensive arbitration proceedings which would otherwise not be expended. The parties to the collective bargaining agreement would therefore have less funds available for truely [sic] meritorious grievances and the employer might be compelled to settle non-meritorious grievances contrary to a reasonable interpretation of the collective bargaining agreement to avoid expense, thereby establishing an erroneous precedent applicable to subsequent grievances. The interference with the statutory goal of promoting harmonious and cooperative relationships between the government and its employees who have chose to bargain collectively ... is accurately summarized by the following language from Vaca v. Sipes, 386 U.S. [171] at 191-92, 87 S.Ct. [903] at 917-18 [17 L.Ed.2d 842]:
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.
... the Commission’s decision in Heath does not stand for the proposition that an individual has the unfettered right to advance a grievance through the contractual grievance procedure once the certified bargaining agent has exercised jts exclusive right to discontinue processing the grievance based upon its good faith determination that the grievance lacks merit. As the above discussion demonstrates, such a conclusion is the antithesis of the concept of exclusiv[it]y embraced by our decision in Heath. 5 FPER ¶ 10074 at 92. Accordingly, where the parties[’] collective bargaining agreement reserves to the certified bargaining agent the exclusive right to submit grievances to arbitration, a public employer is not obligated to process an individual’s grievance to arbitration if the certified bargaining agent has declined to advance the grievance because of its belief that the grievance lacks merit. Indeed, if the public employer does process such a grievance to arbitration at the individual’s request it might well violate Section 447.501(l)(a), (c), Florida Statutes (1979). Such action could constitute circumvention of the bargaining agent and a unilateral alteration of the contractual grievance procedure. Leon County CTA v. Leon County School Board, 6 FPER ¶ 11001 at 4.

424 So.2d at 841-43 (footnotes omitted, emphasis added by fourth district).

We therefore answer the certified question in the negative. We also find Galbreath’s constitutional attack on section 447.401, Florida Statutes (1979), to be without merit. Accordingly, we approve the decision under review.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.