author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Billy PAYTON v. STATE.
    3 Div. 36.
    Court of Criminal Appeals of Alabama.
    Jan; 22, 1985.
    William F. Addison of Reese & Addison, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal of two cases (CC-84-128 and CC-84-129), in each of which cases this appellant was convicted under an indictment charging that he “did, unlawfully; wilfully and feloniously sell, furnish or give away MARIJUANA.” In the first of the two cases, a jury found the defendant guilty; in the second case, the judgment of conviction was based upon a plea of guilty. The only issue presented on appeal is whether the evidence was sufficient “to furnish a jury question as to Appellant’s guilt.” The parties are in apparent agreement that by reason of the similarity of the actual facts in both cases a correct determination of the issue presented in the case tried by jury should be the same as the case in which a plea of guilty was entered. The court sentenced the defendant to imprisonment for fifteen years in each case, with the sentences to run concurrently, which by reason of defendant’s previous felony convictions constituted the minimum sentence prescribed by statute.

According to the undisputed testimony in the case tried before a jury, the defendant participated in a transaction involving a sale of marijuana to Corporal James Ham-ner of the Montgomery Police Department, who at the time was acting in an undercover capacity. With Corporal Hamner at the time was Ms. Pat Morgan, a police informer. Each of them testified on the trial, Corporal Hamner on call of the State and Ms. Morgan on call of the defendant. We quote from the testimony of Corporal Ham-ner:

“A. Yes, sir. At approximately 6:00, myself and Pat Morgan went to pick up Billy Payton over on Madison Avenue around the McDonald’s area. We pulled up; he got in the back seat of the car, and he told us that he had some good marijuana he could pick up and told us which way to go, so he gave us directions. We went across town to Goode Street. And it’s a house that is approximately second or third house on the left. We pulled in the driveway and got out and met another subject there. His name was George Furr. Billy talked to him for just a minute, and he said he would be right back. He went across the street. There are some projects across the street. And he came back with a black male approximately five minutes later and said they had to run down the street to get some and then they’d be back shortly. So Billy asked me for the money and I gave him the money and went down to — and then he went up to the car. I was on the front porch. He walked up to the car, and then the subjects left. They came back about thirty to forty-five minutes later. We went back in the house and they handed Billy a plastic bag containing a green substance which appeared to be marijuana. At that point, he handed it — he looked at it and said it smelled good — I think that’s what he said — and then he handed it to me.
“Q. When you say you handed Payton some money, do you remember the denomination of that money?
“A. I can check and see. (Referring to file.) I handed him one twenty-dollar bill and one five-dollar bill, for a total of twenty-five dollars.
“Q. Okay. Did you ever have any contact with the other individuals there at Goode Street? Did you talk with the people that left then came back?
“A. We carried on, you know, just a conversation when we first met them. “Q. But is it your testimony, Investigator Hamner, that it was Billy Payton that you gave the money to and Billy Payton brought this marijuana back to you? “A. Yes, sir, that’s correct.
“Q. Did you have any further conversation that day with Billy regarding drugs? “A. At that point, we left and went back ;o the McDonald’s on Madison Avenue, in that area and dropped him back off and he told me if I ever needed—
“Q. Go ahead, Investigator Hamner.
“A. He said that if I ever needed any more, he’d get me some anytime I wanted it; just to let him know. Or he told me to let Pat know.
“Q. What did you do at that time?
“A. At that time, I went back to Pat
Morgan’s residence and got back in my vehicle and went back to the office.”

On cross-examination of Officer Hamner, he testified in part as follows:

“Q. On this particular occasion, you say that Billy Payton was known to Pat Morgan. How is it that you acquired his name from her? What specifically were you looking for? What did you ask for?
“A. Any drug dealer’s names that she knew of.
“Q. Any drug dealers or names she knew of?
“A. Yes.
“Q. And she told you, among others, I assume, Billy Payton?
“A. Yes, sir.
“Q. All right. Who called Billy Payton up to arrange this meeting between the three of you?
“A. She arranged it.”

On redirect examination of Officer Ham-ner, he testified in part as follows:

“Q. Investigator Hamner, let’s go back to Pat Morgan for just a minute. I believe you testified that you had dropped a charge of sale of cocaine — not you, but the Police Department in cooperation with the District Attorney’s office — had dropped a sale of cocaine against Pat Morgan in exchange for her providing you names of other drug dealers?
“A. That’s correct.
“Q. Going back to that house on Goode Street, now. You handed the money to Billy Payton; is that your testimony?
“A. That’s correct.
“Q. And you got the marijuana back from Billy Payton; is that the testimony?
“A. That’s correct.
“Q. Did you deal with anybody else?
“A. Other than talking to them, no, sir.”

The only witness who testified on call of the defendant was Patricia Morgan. She was called as an adverse witness by defendant. She testified in part as follows:

“Q. All right. How is it that you came to get together with Billy Payton? Did you call him up?
“A. I can’t remember. I may have called him and asked him if he knew where to buy some pot, and he said yes.
“Q. All right. And you and Officer Hamner were looking to buy the pot; is that correct?
“A. Well, he was looking to buy it; not me.
“Q. All right. Why is it that you were working with Officer Hamner?
“A. Because I had arrest records myself and I was trying to do away with those.
“Q. You were arrested for cocaine; is that correct?
“A. That’s right.
“Q. Has he ever asked you about getting Billy or keeping Billy out of trouble?
“A. I don’t know that he talked about him a whole lot. Billy seemed to keep getting himself involved. We were not necessarily looking to get any buys from him, is that what your question is?
“Q. You called him though, didn’t you?
“A. Yes.
“Q. As you can recall, you called him?
“A. Yes.
“Q. When you went over to the house— where was this house located?
“A. On the other side of town. It was off of Goode Street. I don’t know the area of the town; that’s not my kind of place.
“Q. Can you tell us what happened when you went over there?
“A. We met a great big guy that looked like a biker, and he was the one that was going to go see a friend of his, a black guy, and together they got in the car and they went to some other person’s house to pick it up, and brought it back to the biker guy’s house named George.
“Q. Brought it back to the biker guy’s house. Is the house on Goode Street?
“A. That’s right.
“Q. Did you ever see any money change hands?
“A. James gave Billy the money. Billy paid the money. We never got involved with the George guy; we didn’t know him.
“Q. All right. Billy took y’all over there is that correct?
“A. Well, I drove; he rode in the car.
“Q. All right, he went with y’all?
“A. Yes.
“Q. Did he vouch for your credibility?
“A. Yes, I guess.
“Q. Well, I mean, when y’all went over there, didn’t he say I know these people, or something?
“A. Oh, yes, I think we were all supposed to be real good friends.
“Q. All right, so he vouched for your credibility?
“A. Yes.
“Q. Did you see Billy give the money to these other two individuals?
“A. I don’t recall. I know the money was given to Billy. That’s the only way the pot was going to come back, was to pay for it ahead of time.
“Q. Did you ever see Billy walk out to the car?
“A. I don’t recall if the money exchanged hands on the porch or at the car; I don’t know.
“Q. But the money—
“A. It has been so long ago, I don’t remember that kind of detail.
“Q. Well, your best recollection. Did the money exchange hands?
“A. Oh, yes, there was money that exchanged hands.
“Q. From Billy to the other people?
“A. Yes.
“Q. All right. And these other people, George Furr and — was the other person a black person?
“A. Yes.
“Q. Did they bring the drugs back?
“A. Yes.
Q. All right. What happened when they brought it back?
“A. Well, we all had been sitting on the porch, and we all went back inside the house to receive the pot.
“Q. All right. And did you go back inside the house to receive the pot?
“A. We all went inside, except for the guy’s father who stayed out on the porch.
“Q. Tell us who had the pot when you went inside?
“A. I believe that the other men went to the table, and I sat down on the couch. I think Billy was just standing around the living room. And I don’t remember if the black guy got it out, and I don’t know that George was involved any more in it than that, or what, but they gave it back to Billy. I felt like they trusted him more, or something, but they gave it back to him.
“Q. And then what did he do?
“A. Then he gave it to James.
“Q. All right. And did you all leave after that?
“A. Yes. They had taken up about an hour or so of our time, and we were late for something else to do, so we took off.
“Q. Did you all go make any other buys on that night?
“A. Not that I recall.
“Q. Did you make any other buys on that date?
“A. I don’t recall.
“Q. All right. Do you know whether or not Officer Hamner had any other drugs on him on this particular occasion?
“A. He never brought them with him, if that’s what you mean, no.
“Q. You didn’t see any other drugs?
“A. No.”

During the cross-examination of Patricia Morgan, she testified:

“Q. Ms. Morgan, this great big guy over on Goode Street, the biker, you didn’t know him did you?
“A. No.
“Q. And you didn’t know the black guy, did you?
“A. No.
“Q. To the best of your knowledge, did Investigator Hamner know the big guy? “A. I think that they knew of him, but we didn’t know of him until we got there, and then he knew something about him, whether he had been in trouble before, or whether they knew he dealt drugs or what; I don’t know. But he was relatively a little bit familiar, I think. Being there or having known someone else who had been there, or something.
“Q. This buy on Goode Street, it wouldn’t have happened if Billy Payton hadn’t taken you over there, would it? “A. No, I didn’t know the people.
“Q. Had you been involved prior to this in the past in any drug deals with Billy Payton?
“A. Not frequent.
“Q. Prior to May 25, 1983, had Billy talked with you about drug buys?
“Q. And you remember the question, Ms. Morgan?
“A. Yes. The answer is yes, and that goes from both sides. He would get me something if I knew someone, and I would get him something if he knew someone. That would be prior to my arrest, also.
“Q. It’s a fact, is it not, that he was also making money from drug deals at this point in time?
“A. I don’t know if he had made any money, or not.”

Both of the parties on appeal, by their respective counsel, rely largely, for their respective opposing contentions, upon the lengthy opinion in Hill v. State, Ala.Cr. App., 348 So.2d 848, cert. denied, Ala., 348 So.2d 857 (1977), in which it was held that the evidence was insufficient to support a jury verdict and resultant judgment thereon that Hill was guilty of selling marijuana. In reaching such conclusion in Hill, this Court considered a large number of cases in other jurisdictions, some of them tending to support and others tending to refute the conclusion reached in Hill. Neither party in the instant case suggests that this Court now overrule Hill v. State; appellant contends that consistency with Hill v. State requires a reversal of the judgment of the trial court in the instant case; appellee’s contention is to the contrary. We agree with appellee.

There are numerous similarities between the facts in the instant case and the facts in Hill v. State and the cases relied upon therein for holding that the evidence was insufficient in Hill to present a jury issue as to his guilt of selling marijuana. However, there are distinguishing differences between the case now being decided and those cases, as shown by the testimony in this case as quoted above and the evidence in the other cases as set forth in the opinion in Hill v. State. In our opinion, the case cited in Hill v. State in which the facts are more like those in the case sub judice is Baker v. State, 52 Ala.App. 150, 290 So.2d 214 (1973), writ denied, 292 Ala. 708, 290 So.2d 217 (1974), as to which case it is stated in Hill v. State at 348 So.2d 855:

“We doubt not that a criminal linkage between a seller and one acting at the behest of a buyer of a controlled substance can be shown by circumstantial evidence. We so held in Baker v. State, 52 Ala.App. 150, 290 So.2d 214, writ denied, 292 Ala. 708, 290 So.2d 217. In Baker, the evidence for the State was that while the undercover agent and his informer discussed the subject of marijuana at defendant’s home, defendant went to ‘his Cadillac parked outside ... opened the front door of the parked vehicle ... appeared to be getting something off the seat of the automobile’ and thereafter had ‘what appeared to be Manila envelopes in his hand, of the same size of the envelopes containing the marijuana sold by another to the agent. Defendant, before returning to his home where the agent and informer were, went down the street and in a few minutes returned to his home without the envelopes and told the agent and the informer ... that a guy down the street had the stuff and we could go down there and get it.’ Defendant, the agent and the informer then went in the agent’s automobile in the direction defendant had walked with the Manila envelopes and purchased marijuana from a man by the name of Miller who came to the automobile and joined the other three therein. After buying the marijuana from Miller, the agent asked him if the agent could come back and get a larger quantity. Instead of Miller replying, the defendant said, according to the agent, ‘Come back anytime and get as much as you want.’ In his testimony defendant denied that he had possession of any Manila envelopes. The court concluded that irrespective of the question whether defendant had Manila envelopes in his possession, the trial court was not in error in overruling defendant’s motion for a new trial, nor in refusing defendant’s request for a general affirmative charge in his favor. The circumstances in Baker are to be contrasted rather than compared, with those in instant case [Hill v. State ].”

We conclude that the sole issue presented by appellant is not well taken and the judgments of the trial court should be affirmed.

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

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: PER CURIAM. ADKINS, Justice,

license: Public Domain

text:
    Tommy Lee RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. 54869.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Rehearing Denied Feb. 26, 1985.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Jon May and Michael A. Mello, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Robert L. Bogen and Marilyn J. Altman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilt of murder in the first degree and attempted robbery and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

This case involves the shooting death of Joseph Chesser, III, during the early morning hours of February 24, 1978. The state’s chief witness was Althea Glinton, a co-defendant, who was allowed to plead no contest to second-degree murder in exchange for her testimony. She was awaiting sentence at the time of trial.

Randolph was charged with, inter alia, first-degree murder, attempted robbery, and conspiracy to commit robbery. Glinton was Randolph’s girlfriend and a prostitute. She turned over the money which she made from her work to Randolph. On the night of the homicide, he wanted Glinton to turn one more trick before she went home. Glinton then saw the victim, one of her regular customers, and solicited him. She got into the victim’s truck and they pulled up in front of a rooming house. When Glinton and the victim had finished, and Glinton was leaving the truck, Randolph showed up and pushed Glinton away. Glin-ton then ran into a nearby boarding house because she was scared. She overheard Randolph tell the victim not to try anything and Randolph wouldn't shoot. Glinton then heard two gunshots.

Glinton testified that Randolph had a pistol which would occasionally get stuck when you tried to shoot it. Misfired twenty-five caliber cartridges were found in Randolph’s residence and also at the scene of the homicide. The bullet which resulted in the victim’s death was a twenty-five caliber bullet.

After the shooting, Randolph asked Glin-ton if the victim had any money. Receiving an affirmative reply, Randolph walked over to the victim’s truck (with the victim’s body lying inside) and looked in the window. Randolph got into the truck, and a witness testified that she saw him get something.

The state introduced evidence that, just a few days earlier, Ken Eller and Mike Hayes “picked up” Althea Glinton and another woman in the same general area. After finishing their activities, they were approached by Randolph and another individual upon leaving the rooming house. The girls disappeared and Eller and Hayes were robbed at gunpoint. Randolph had a twenty-five caliber gun and was overheard saying that he could have killed one of them because he didn’t have any money.

Randolph objected to this testimony on the grounds that it was not proper under the rule as announced in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). In that case the Court laid down the test of the admissibility of such evidence as being one of relevancy. Even if the evidence in question tends to reveal the commission of a collateral crime, it is admissible if found to be relevant for any purpose save that of showing bad character or propensity.

The Eller and Hayes incident was extremely similar to the incident which resulted in the murder of Chesser. The two incidents took place in the same general area within days of each other, the same participants were involved, the same type weapon was involved, the same modus op-erandi was involved, the same type of victim was involved, and the same type of offense was involved. Collateral crime evidence was clearly relevant and admissible as it related to a material fact in issue. This collateral crime evidence demonstrated Randolph’s motive, intent, and state of mind in approaching the victim’s truck and eventually killing the victim.

Where evidence of a collateral crime is relevant and admissible, the prosecution should not go too far in introducing evidence of other crimes. The state should not be allowed to go so far as to make the collateral crime a feature instead of an incident. Williams v. State, 117 So.2d 473 (Fla.1960). Collateral crime evidence was not a feature of this trial.

The state’s chief witness was a co-defendant who was a self-declared prostitute. It was important to the state’s case to show that the modus operandi had been followed by Randolph in this collateral offense. It certainly corroborated the testimony of Glinton. Testimony was geared toward proving a material issue of the case rather than demonstrating Randolph’s bad character. The evidence was admissible. Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

Randolph also argues that evidence of the collateral crime greatly prejudiced him on the question of an appropriate sentence. The fact that evidence might prejudice the defendant during the sentencing procedure is not a ground for excluding it during the guilt phase of the trial, as long as the evidence is relevant and admissible. During the sentencing proceedings, Randolph admitted that he had been previously convicted at least three times. This objection to the admissibility of the collateral crime evidence is also without merit.

Randolph argues that the court committed reversible error when it allowed the father of the deceased to testify. He contends, generally, that the testimony of a member of a victim’s family is inadmissible. While it is true that the court must guard against the possibility that sympathy will be injected in the trial, and that is why, normally, a family member should not be called to identify the victim, such evidence is admissible if other witnesses could not perform that function as well. If the family member has relevant testimony which is peculiarly within his knowledge, such testimony is always admissible. Randolph was charged, with first-degree murder, which charge could be proved by evidence of murder having been committed during the course of a robbery. Additionally, Randolph was charged with attempted robbery and conspiracy to commit robbery.

The father testified that the victim was a partner in business with him and, on the night the victim was murdered, the victim received $100 cash from his father as part of the victim’s paycheck. This testimony was relevant to demonstrate that just a few hours before his murder the victim had $100 in cash on him. Later, when the victim was found, only $20 was found hidden in a passenger door compartment to his truck. Testimony as to how much money the victim initially had on the evening in question, as compared to how much money was found on his body, was relevant to demonstrate the distinct probability that Randolph approached the victim on the evening in question to rob him, and, in fact, did rob him. Testimony of the father was properly introduced at the trial. See Lewis v. State 377 So.2d 640 (Fla.1979).

Randolph contends that his custodial statements to the police and the physical evidence seized pursuant to a consent to search were the fruit of an illegal arrest. The police arrested Randolph at his home but without an arrest warrant, so Randolph relies upon Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where the United States Supreme Court held that, absent exigent circumstances, a warrantless arrest at a person’s home is a violation of the fourth amendment.

Payton is not applicable. It appears that exigent circumstances were present so that the arrest in the case sub judice was an exception to the general rule requiring a warrant.

Edna Plain testified that she saw Althea Glinton and Randolph during and immediately following the commission of the murder. At the scene of the crime, she overheard Randolph ask Glinton if the victim had any money on him. Randolph and Glinton asked Plain to get into their car, but Plain refused because she was afraid.

The homicide occurred in the early morning hours. Officer Walker arrived on the scene shortly after seven o’clock a.m. Officer Walker had known Edna Plain for five or ten years and she had given him information in the past which had proven to be reliable. Plain explained to Officer Walker that she had been looking for him all night. She told the officer that she knew who was involved in the crime and that she wanted the officer to “hurry up and get those people, because she was afraid that someone — they would find out sooner or later that somebody had told them about this incident.” Officer Walker testified as follows with regard to his conversation with Plain:

After she told me to rush, get as fast as I could to 21st Street and pick this man up, because she was in fear of her life, she felt that this man would kill her, and told me that she wouldn’t be satisfied until this man was picked up and for me to notify her that this man was locked up in jail, then she would have peace of mind.
She told me that she really wanted me to catch — get Tommy Lee Randolph off the street, she was afraid for her life, she feels that this man would kill her because he knew that she was the onliest one that knew about the incident (sic).
In the conversation that we had, the time that we were together, she explained to me what had took place on 9th Street and what Beeper had said. She told me that she knew that this man had — Randolph had got involved in something bad and she knew about it and she wanted him off the streets, because she was afraid of her life. She was in danger from this man who knew that she knew about it and he would probably hurt her. And she wouldn’t have peace of mind until we got him off the streets.

The officer immediately went to Randolph’s house to look for him before Randolph was able to find Edna Plain. We must determine whether these are exigent circumstances.

In State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973), the court, speaking through Judge Mager, explained the “exigency” rule: “The criterion [of the exigency rule] is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact.” Id. at 52, quoting Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967). Officer Walker was on the scene a few hours after the homicide was committed. He knew Edna Plain and the parties involved. Edna Plain was legitimately concerned for her life and the officer acted prudently in attempting to locate Randolph before he was able to find Edna Plain and harm her, an important state witness. The officer was justified in attempting to apprehend Randolph as soon as possible pursuant to his belief that Edna Plain was in imminent peril of bodily harm. We have considered this question even though Randolph failed to properly preserve the point for appellate review. Fla.R.App.P. 9.110(h); Castor v. State, 365 So.2d 701 (Fla.1978); Kelly v. State, 202 So.2d 901 (Fla. 2d DCA 1967), appeal dismissed, 211 So.2d 209 (Fla.1968). Randolph claims that the statements to police were the fruits of an illegal arrest and, therefore, were inadmissible. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). We have held the arrest to be legal, so this argument is without merit. Likewise, we reject Randolph’s argument concerning the consent to search and the admissibility of the evidence seized pursuant to the search.

The rule of witness sequestration was invoked. The court granted the request of the state that detective Earl Skovsgard, the principal investigating officer in the case, be excepted from the sequestration rule. Randolph now argues that the trial court committed reversible error by excepting this state witness from the rule of witness sequestration and by failing to conduct a hearing after Randolph alleged that he would be prejudiced as a result of the court’s ruling.

The rule of witness sequestration is not an absolute rule which must be invoked at the mere request of counsel. The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule. The reason for the rule 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 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). The testimony of detective Skovsgard was limited to the fact that Randolph and Althea Glinton signed consent-to-search forms, which were admitted into evidence, and to the fact that Randolph gave the detective a taped statement. This is not a situation where the witness who was excluded from the sequestration rule was a principal actor in the crime, nor is this a case where the testimony of the witness was actually suggested by what he heard in the courtroom.

Subsequent to the trial in the case sub judiee, the decision in Thomas v. State, 372 So.2d 997 (Fla. 4th DCA 1979), was rendered, and the court held that a detective should not have been allowed in the courtroom, but that the presence of the detective in the courtroom did not lead to an improper conviction. In its opinion the court said:

While it may be helpful, even necessary in some complex cases, to have a police witness to remain in the courtroom during trial and thus be excluded from the witness rule we deem it proper to advise the trial court to make a finding no real prejudice would result from this procedure if the accused objects after invoking the rule. A hearing to determine if the police witness’ presence is necessary and indispensable and non-prejudicial would be the way to accomplish a proper finding.

372 So.2d at 999.

In our opinion a trial court should not, as a matter of course, permit a witness to remain in the courtroom during the trial when he or she is not on the stand, unless it is shown that it is necessary for the witness to assist counsel in trial and that no prejudice will result to the accused. A hearing to determine these matters should be conducted if the rule excluding and sequestering witnesses has been invoked.

We cannot say that the presence of detective Skosvgard in the courtroom led to an improper conviction. The action .of the trial court was improper, but does not warrant a reversal of Randolph’s convictions.

Randolph’s attack upon the sufficiency of the evidence is without merit, as the evidence is sufficient to sustain a conviction either upon the theory of premeditated design or on the theory of felony murder.

Randolph argues that during the sentencing procedure the prosecution elicited evidence before the jury that he had prior convictions for nonviolent felonies. The state attempted to introduce into evidence recorded adjudications for nonviolent felonies. The state attorney asked the witness if he could identify the various state exhibits. At no time were these exhibits identified before the jury for what they were, i.e., “adjudications.” Randolph made no objection to the admissibility of the evidence. The jury was told what the exhibits were. He is now estopped from claiming that this matter represents grounds for a reversal. See, e.g., Clark v. State, 363 So.2d 331 (Fla.1978).

Randolph testified during the sentencing procedure. The state properly questioned him as to how many times he had previously been convicted. Once he became a witness, he could be examined the same as other witnesses on matters which illuminate the quality of his testimony. Johnson v. State, 380 So.2d 1024 (Fla. 1979). As stated by this Court in Booker v. State, 397 So.2d 910, 918 (Fla.), cert, denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981):

When the defendant elects to testify during the sentencing proceedings, it is appropriate for the prosecutor to cross-examine him concerning previous criminal activity. Unless this mitigating factor is negated, there would be a presumption that defendant had not engaged in any previous criminal activity.

Randolph also says that the trial judge limited his consideration and the jury’s consideration of mitigating circumstances to those enumerated in the statute. The trial judge’s instruction to the jury in this regard tracked the statute. The instruction on mitigating circumstances, when read in conjunction with the express limitation and consideration of aggravating circumstances, advises the jury that the list of statutory mitigating factors is not exhaustive. His contention is without merit. Peek v. State, 395 So.2d 492 (Fla.1980), cert, denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981).

Randolph further argues that the trial judge committed error by giving undue weight to the jury’s advisory recommendation. He claims that this is apparent because the judge immediately sentenced him to death following the recommendation of the jury. It is true that the trial judge imposed the capital sentence directly following the jury’s recommendation. This does not create a presumption that the trial judge failed to apply the facts of the case to the statutory aggravating and mitigating circumstances. It does not appear that the judge made a summary decision. He is not barred from considering and deliberating the aggravating and mitigating circumstances while ■ the jury also deliberates. See King v. State, 390 So.2d 315 (Fla.1980), cert, denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981).

Randolph claims his double jeopardy rights were violated by his convictions for first-degree murder and attempted robbery. The first-degree murder conviction is supported either under the felony-murder theory or the premeditation theory. Both oi these theories were amply discussed during the course of the trial and considered by the jury. Inasmuch as the first-degree murder conviction is supportable under the premeditation theory, then Randolph’s judgment and sentence for attempted robbery do not violate his double jeopardy rights. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

We also reject Randolph’s contention that the capital sentencing statute is unconstitutional on its face and as applied. 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); Menendez v. State, 368 So.2d 1278 (Fla.1979).

The trial judge found death to be the appropriate sentence because any possible mitigating circumstances were outweighed by the aggravating circumstances that the murder was (1) committed while engaged in the commission of robbery, (2) committed for pecuniary gain, and (3) especially heinous, atrocious, or cruel. The finding listing the aggravating circumstance of murder while engaged in the crime of robbery and the finding which includes the aggravating circumstance of murder for pecuniary gain are overlapping and constitute only one aggravating factor. 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 finding that the murder was heinous, atrocious, or cruel as an aggravating circumstance cannot be supported by the evidence in this case. See, e.g., Fleming v. State, 374 So.2d 954, 958-59 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979); Lewis v. State, 377 So.2d 640, 646 (Fla.1980); Riley v. State, 366 So.2d 19, 21 (Fla.1978); Cooper v. State, 336 So.2d 1133, 1141 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). This leaves only one aggravating circumstance for consideration in imposing an appropriate sentence upon Randolph.

We conclude that Randolph is entitled to a reconsideration of his sentence in light of our determination that only one valid aggravating circumstance was present in this case rather than the aggravating circumstances found by the trial judge. One valid aggravating circumstance may be sufficient to support a death sentence in the absence of at least one overriding mitigating circumstance. State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Dixon, however, went on to stress that the capital sentencing procedure

is not a mere counting process of X number of aggravating circumstances and number of mitigating circumstances, but rather a reasoned judgment as to what, factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

Id. at 10.

In the present case the trial judge considered two statutory mitigating circumstances — Randolph’s age (24) and his possible impaired capacity to appreciate the criminality of his conduct due to his use of heroin on the evening of the murder. The trial judge went on to find that these possible mitigating circumstances were far outweighed by the aggravating circumstances and that death was the appropriate sentence. We cannot know whether this “reasoned judgment” would have been different if the trial judge had considered only one instead of three aggravating circumstances before imposing the death penalty. See Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979). Cf. Brown v. State, 381 So.2d 690, 696 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981) (imposition of death sentence not affected by the consideration of improper aggravating circumstances where at least two valid aggravating circumstances remain to be weighed against one “tenuous” mitigating circumstance).

This Court’s role in reviewing death cases is that of sentence review, not sentence imposition. Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). In Mikenas v. State, 367 So.2d 606 (Fla.1978), we discussed our role and that of the trial judge in capital sentencing as follows:

In capital cases, it is this court's responsibility to insure that the trial judge remains faithful to the dictates of Section 921.141, Florida Statutes in the sentencing process. It is not the function of this court to cull through what has been listed as aggravating and mitigating circumstances in the trial court’s order, determine which are proper for consideration and which are not, and then impose the proper sentence. In accordance with the statute, the culling process must be done by the trial court.

Id. at 610. This is not to say that this Court cannot and should not affirm a sentence of death after striking an aggravating factor. We have held many times that when there are no mitigating circumstances it is proper to affirm a death penalty even though aggravating factors were improperly found. E.g., Middleton v. State, 426 So.2d 548 (Fla.1982), cert. denied, — U.S.—, 103 S.Ct. 3573, 77 L.Ed.2d 1413 (1983). We have even found it proper to affirm when the only aggravating factor is robbery-murder. Armstrong v. State, 399 So.2d 953 (Fla.1981). In Armstrong, however, there were two homicides committed in the home of the victim, which is more egregious than this case. In any event in this case we are not so certain that with the elimination of the improperly found aggravating circumstances the penalty would be death.

Accordingly, we remand this case to the trial judge with instructions to resentence Randolph after considering the one valid aggravating circumstance and whatever statutory and nonstatutory mitigating circumstances that may exist. The judgments and sentences are otherwise affirmed.

It is so ordered.

oyerton, McDonald, ehrlioh and SHAW, JJ., concur.

ADKINS, J., concurs in the conviction, but dissents from the sentence with an opinion, in which BOYD, C.J. and ALDERMAN, J., concur.

ADKINS, Justice,

concurring and dissenting.

This Court previously rendered an opinion affirming the conviction and sentence in this case. The Court granted a rehearing and is now issueing a decision affirming the conviction but reversing the sentence. I concur in that portion of the opinion which affirms the conviction but dissent with the portion reversing the sentence.

In seeking a rehearing of the opinion relating to the sentence the petition, in effect, “reargued the merits of the Court’s order”. This is prohibited by Florida Rules of Appellate Procedure 9.330(A).

In this case the attorneys for the defendant used the petition for rehearing as a vehicle through which counsel could advise the Court that they disagree with its conclusion and wanted to reargue matters already discussed in previous briefs and oral arguments. Everything in the petition rehearing was necessarily considered by this Court in its original opinion. By granting this rehearing we have ignored the doctrine announced in State ex rel. Jaytex Realty Co. v. Green, 105 So.2d 817 (Fla. 1st DCA 1958), cert. discharged, 112 So.2d 571 (Fla.1959).

Our function in reviewing a death sentence is set forth in Hargrave v. State, 366 So.2d 1, 5 (Fla.1978):

[T]his Court's role is not and should not be to cast aside that careful deliberation which the matter of sentence has already received by the jury and the trial judge, unless there has been a material departure by either of them from their proper functions prescribed by Section 921.141, Florida Statutes (1975), or unless it appears that in view of other decisions concerning imposition of the death penalty the punishment is too great.

(Citation omitted.)

In our original opinion we said:
In the ease sub judice the jury recommended death. The trial judge erroneously considered certain circumstances as aggravating, but this error did not impair the process of weighing the aggravating against the mitigating circumstances because there were no mitigating circumstances to weigh. The killing took place in the course of a robbery. The trial court’s improper consideration of the two aggravating circumstances concerning pecuniary gain and heinous and atrocious does not render the sentence invalid. See Peek v. State, 395 So.2d 492 (Fla.1980), cert, denied, 451 U.S. 964 [101 S.Ct. 2036, 68 L.Ed.2d 342] (1981).
As stated in Armstrong v. State, 399 So.2d 953, 963 (Fla. 1981):
The jury here recommended death. The trial judge erroneously considered certain circumstances as aggravating. The error did not impair the process of weighing the aggravating against the mitigating circumstances because there were no mitigating circumstances to weigh. The killings took place in the course of a robbery. Death is the appropriate punishment. The sentences of death are affirmed.

The jury recommended the death sentence and the judge, in his findings of fact, said:

Turning now to any possible mitigating circumstances, the defendant is a relatively young man at age twenty-four. However, he reached his majority six years ago — long enough to mature and become a productive and respectable member of society rather than a pimp living off his woman.
The evidence did show that the defendant had at least one dose of heroin earlier in the evening of the night the victim was shot. This might possibly have impaired his capacity to appreciate the criminality of his conduct. Certainly the direct testimony concerning his conduct before and after the shooting belies this.
After having given full consideration to all evidence heard by the Court, and considering the advisory sentence rendered by the jury, the undersigned is of the firm opinion that the aggravating circumstances far outweigh any possible mitigating circumstances and that the death sentence imposed upon the defendant, Tommie L. Randolph is justified and required.

The matter of the sentence has already been weighed by the jury and the trial judge and there has been no material departure by either of them from their proper functions prescribed by section 921.141, Florida Statutes.

The majority seems to hold that persons should not be sentenced to death upon one aggravating circumstance. In Gardner v. State, 313 So.2d 675 (Fla.1975), it appeared that there were at least 100 bruises upon the head, eyes, nose, abdomen, arms, both breasts, chest, back, thighs and legs of the victim. Patches of healthy hair were pulled from her head. There was a massive hemorrhage of the pubic area, including the inner surfaces of the thighs and the inner labia of the vulva. There were large tears inside the vagina from the outside entrance all the way to the back as far as it could go, caused by a broomstick, bat or bottle. The only aggravating circumstance in Gardner was the heinous, atrocious, and cruel manner in which death was inflicted. Under the facts of that case, we properly held that the death sentence was appropriate, even though based upon one aggravating circumstance.

In view of other decisions concerning the imposition of the death penalty, the punishment of death in this case is not too great. The findings and support of the sentence of death contain the following:

The Defendant, Tommie L. Randolph, is a pimp and admitted user of heroin living off the earnings of his paramour, an admitted prostitute. She also is a heroin user and until she entered a plea of no contest to murder in the second degree, was a co-defendant with Tommie.
The evidence shows a sordid and ruthless scheme whereby when the prostitute, Althea, had finished with the victims, Tommie either alone or with a confederate, would be waiting in ambush to rob the victims of the rest of their money. This briefly gives an indication of the character of the Defendant, Tommie L. Randolph.

In Gibson v. State, 351 So.2d 948 (Fla.1977), Delores Walker and another young woman picked up two Brazilian seamen and invited them to their house to spend the night. This was at the suggestion of the defendant and another individual who planned to “roll” the seamen. Shortly after midnight the Brazilian seamen got into a car with the defendant and the two women. After they traveled a short distance Walker drove down a dark street and stopped the car. Gibson directed the two men to get out of the car and hand over their money. As one seaman got out of the car offering his money, Gibson shot him twice in the head. Gibson was twenty-eight years of age at the time of the crime. The trial court found that the murder was committed during the commission of an armed robbery, was committed for pecuniary gain, and was especially heinous, atrocious and cruel. This Court held that the trial judge improperly combined the armed robbery with the motive of pecuniary gain. Nevertheless the death sentence was upheld.

In Foster v. State, 369 So.2d 928 (Fla. 1979), two young girls met defendant and the victim at a bar. They knew defendant but the victim was a stranger. The defendant and the girls had planned for one of them to have sex with the victim and make some money. The vehicle was parked in a deserted area and after some conversation concerning compensation the victim and one of the girls began to disrobe. Defendant suddenly began hitting the victim and accusing him of taking advantage of his sister. Defendant then held a knife to the victim’s throat and cut his neck, causing it to bleed profusely. The victim was still breathing so defendant took a knife and cut the victim’s spine. The girls and defendant then drove off in the victim’s Wine-bago and found the victim’s wallet underneath a mattress. They split the money. The jury recommended a death sentence and the trial judge found that the murder was committed while defendant was engaged in the commission of a robbery and that the capital felony was especially heinous and atrocious. In our opinion we said:

Before imposing the death sentence, the trial judge considered three psychiatric reports (with which defendant’s attorney was familiar) and found that there were no mitigating circumstances sufficient to overcome the heinous nature of the homicide. The defendant committed the homicide in an effort to fulfill his intentions and complete his desire, i.e., “ripping the victim off.” An elderly gentleman had agreed to go out and have some fun, but the price of such activity was his life. Defendant showed no compassion when he cut the victim’s throat, beat him, dragged him into the woods, and cut his spine with a knife.

Foster v. State, 369 So.2d 928, 931

I would deny the petition for rehearing because it violates our Rules of Appellate Procedure. However, if we reconsider the sentence, other similar cases in which the death sentence was upheld would lead us to an affirmance of the reasoned judgment of judge and jury in the case before us.

BOYD, C.J., and ALDERMAN, J., concur.


author: BOYD, Chief Justice.

text:
    Robert Dale HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 63094.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Rehearing Denied Feb. 28, 1985.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for appellee.
   BOYD, Chief Justice.

This cause is before the Court on appeal of judgments of conviction on three counts of first-degree murder. Appellant Robert Dale Henderson was sentenced to death for each of the three capital offenses. Therefore, this Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const. Upon reviewing the record and considering appellant’s arguments on appeal, we find no reversible error and affirm the convictions and sentences of death.

Appellant’s murder convictions are based upon the deaths of three hitchhikers in Hernando County, Florida. Henderson turned himself in to the sheriff’s office in Charlotte County, Florida, on February 6, 1982. He confessed to murdering three hitchhikers in northern Florida and to several other unrelated murders. He then requested counsel and signed a “Notice of Defendant’s Invocation of the Right to Counsel.”

On February 10,1982, two Putnam County sheriff’s deputies took custody of Henderson for an unrelated murder and were transporting him to Putnam County by automobile when Henderson volunteered to show them where the bodies of the three hitchhikers were. They advised him of his rights, after which he signed a waiver of rights form and led them to the field where the bodies were discovered.

The following June, a Hernando County detective took custody of Henderson in Putnam County for the purpose of transporting him to Hernando County to be tried for the murders of the three hitchhikers. At first Henderson said he did not want to talk because he had already given his statement to the other deputies. Later during the ride Henderson changed his mind and, after executing a written waiver, talked about the details of the murders.

Henderson filed two pretrial motions to suppress the statements he made to the Putnam County deputies and to the Her-nando County detective. The motions alleged that the statements were elicited from him after he had invoked his right to remain silent by requesting an attorney. After holding an evidentiary hearing, the trial court denied the motions.

At trial a deputy sheriff of Charlotte County testified that he was responding to a call reporting an automobile burglary when Henderson motioned to him. When the officer approached, Henderson said he wanted to give himself up for murder and that he was wanted in several states. The officer testified that Henderson surrendered a bag containing a .22 caliber revolver which Henderson said was the murder weapon. After the officer arrested Henderson and advised him of his constitutional rights, Henderson said that he had killed three hitchhikers in north Florida.

Another Charlotte County deputy sheriff testified that he interviewed Henderson after advising him of his constitutional rights. According to this witness, Henderson said that he shot all three hitchhikers in the head and dumped their bodies in a remote area south of Perry, Florida.

One of the Putnam County sheriffs deputies testified about Henderson’s showing him the location of the bodies. The Her-nando County detective testified that when he was transferring Henderson from Putnam to Hernando County, Henderson agreed to talk and gave details of the murders. A transcript of Henderson’s confession was read to the jury. According to the transcript, Henderson said he picked up the hitchhikers, two male and one female, near Panama City and became concerned when he heard two of them talking about killing someone to get some money. Henderson was quoted as saying that he bound and gagged the three hitchhikers and shot them each in the head with a .22 caliber revolver.

There was substantial medical and scientific testimony corroborating Henderson’s confessions. The medical examiner testified that the victims, two male and one female, had each died of a gunshot wound to the head. A firearms expert testified that the bullet fragments found in the victims had the same rifling characteristics as did bullets shot from the .22 caliber revolver found in Henderson’s possession when he was arrested. Crime scene investigators testified that the victims’ bodies were found bound and gagged with tape in the manner described in Henderson’s statements.

The defense rested without presenting any evidence. The jury found Henderson guilty of three counts of first-degree murder.

At the penalty phase of the trial, the state presented evidence of Henderson’s prior convictions for two counts of first-degree murder. The state also called the Hernando County detective who testified that Henderson told him he had no regrets and that if he had his life to live over again, he would not change anything. The defense presented evidence that Henderson was abused as a child and that he showed the police the location of the victims’ bodies so they could be buried.

The jury recommended that Henderson be sentenced to death. The trial judge adopted the jury’s recommendation and found as aggravating circumstances that Henderson had previously been convicted of a violent felony; that the murders were especially heinous, atrocious, or cruel; and that they were committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. The judge found there was no evidence of any statutory mitigating circumstances and that the nonstatutory mitigating circumstances presented were of little if any weight.

Henderson’s first point on appeal claims error in the denial of his pretrial motions to suppress the statements he made to the Putnam County deputy and the Hernando County detective. Henderson claims that these statements were improperly elicited from him after he had requested the assistance of counsel. It is true that when an accused asks to see counsel, interrogation must cease. Edwards v. Arizona, 451 U.S. 477,101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, there is nothing to prevent an accused from changing his mind and volunteering further information. “The stricter standard for showing that an accused has knowingly and intelligently waived a previous request for counsel is met when the accused voluntarily executes a written waiver.” Cannady v. State, 427 So.2d 723, 729 (Fla.1983). In this case Henderson signed written waivers before making the statements in question. We therefore conclude that there is sufficient evidence to support the finding that he knowingly and intelligently waived his right to have counsel present when making these statements.

•Next Henderson argues that the trial judge erred in denying in part his motion in limine to exclude references to unrelated crimes committed in other jurisdictions. In response to Henderson’s motion, the state averred that the only evidence of collateral crimes it anticipated introducing was the statement Henderson made to the arresting officer that he was turning himself in for murder and that he was wanted in several states. The trial court ruled that this statement was admissible.

We agree with Henderson’s contention that the testimony concerning his admission to being wanted in other states bore no relevance to any material fact at issue in this case. Hence his motion to exclude all references to crimes committed in other jurisdictions should have been granted. However, we find that the error was harmless and could not possibly have affected the outcome of the case. The amount of evidence against Henderson is simply overwhelming. There were at least four confessions to four different police officers. There was also substantial circumstantial evidence linking him to the crime and corroborating his confessions. Given the magnitude of this evidence, we do not believe that the jury was unduly or improperly influenced by the evidence that Henderson admitted to being wanted in other states.

Next Henderson argues that the trial court erred by allowing into evidence gruesome photographs which he claims were irrelevant and repetitive. We find that the photographs, which were of the victims’ partially decomposed bodies, were relevant. Persons accused of crimes can generally expect that any relevant evidence against them will be presented in court. The test of admissibility is relevancy. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Those whose work products are murdered human beings should expect to be confronted by photographs of their accomplishments. The photographs were relevant to show the location of the victims’ bodies, the amount of time that had passed from when the victims were murdered to when their bodies were found, and the manner in which they were clothed, bound and gagged. It is not to be presumed that gruesome photographs will so inflame the jury that they will find the accused guilty in the absence of evidence of guilt. Rather, we presume that jurors are guided by logic and thus are aware that pictures of the murdered victims do not alone prove the guilt of the accused. We therefore conclude there was no error in allowing the photographs into evidence. Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978); Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Swan v. State, 322 So.2d 485 (Fla.1975).

Henderson argues that the trial judge erred when, in advising the jury of the probable duration of the trial, he suggested that there would be a second phase of the trial concerned with sentencing. Because a sentencing phase would only be required upon conviction of a capital offense, appellant argues that the statement indicated to the jury that the judge thought appellant would be found guilty of at least one of the charged first-degree murder counts. Upon the raising of an objection by the defense, the judge gave a curative instruction indicating that he only meant to estimate the maximum period of time to be set aside for the trial and had not made any judgment about what the evidence was likely to show. Defense counsel moved for a mistrial and now argues that the denial of the motion was reversible error. We find the argument to be completely without merit.

Henderson also argues that several of the provisions of section 40.013, Florida Statutes (1981), pertaining to permissible excusáis from jury service, operated to deny him the right to be tried by a jury drawn from a venire representing a “cross-section” of the community. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). He relies on Alachua County Court Executive v. Anthony, 418 So.2d 264 (Fla.1982). That decision held that the exemption for mothers with small children was faulty on equal protection grounds for not treating similarly situated fathers the same way. The sixth amendment was not involved in that case and we do not read it as announcing any right of defendants that would support appellant’s argument here. We find appellant’s challenge to be without merit. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982); McArthur v. State, 351 So.2d 972 (Fla.1977).

With respect to his sentence, Henderson argues that the trial judge erred in finding that the murders were especially heinous, atrocious or cruel. Henderson claims that the murders were not heinous, atrocious, or cruel because the victims died instantaneously from single gunshots to their heads. This argument overlooks the fact that the victims were previously bound and gagged. They could see what was happening and obviously experienced extreme fear and panic while anticipating their fate. We therefore conclude that this aggravating circumstance applies. White v. State, 403 So.2d 331 (Fla.1981), cert. denied, — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); Knight v. State, 338 So.2d 201 (Fla.1976).

Appellant also argues that the court erred in finding that the murders were committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. We hold that there was sufficient evidence to support the trial judge’s finding of this factor. Henderson rendered the victims helpless by binding their ankles with tape. He then coldly proceeded to shoot them one by one execution-style.

Finally Henderson argues that Florida’s death penalty law is unconstitutional. However, all his arguments have previously been refuted by this Court on a number of occasions and therefore do not merit any further discussion.

In conclusion, the properly established aggravating circumstances are:

1. Appellant had previously been convicted of two counts of first-degree murder.
2. The murders were all heinous, atrocious, and cruel.
3. The murders were all committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification.

The trial court properly found that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances found.

We therefore affirm the convictions on three counts of first-degree murder. Finding that the three sentences of death are appropriate under the law established in similar cases, we affirm them also.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: ADKINS, Justice.

text:
    Raymond KOON, Appellant, v. STATE of Florida, Appellee.
    No. 63322.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Rehearing Denied March 4, 1985.

      Thomas S. Biggs, Jr., Naples, for appellant.
    Jim Smith, Atty. Gen., Frank Lester Adams, III, and Katherine V. Blanco, Asst. Attys. Gen., Tampa, for appellee.
   ADKINS, Justice.

This case is before us on direct appeal from a circuit court judgment adjudicating Raymond Leon Koon guilty of first-degree murder. The sentence of death was imposed by the trial judge following a jury recommendation of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and reverse appellant’s conviction and remand for a new trial. We find that the trial court erred in requiring appellant’s wife to testify as to confidential communications between them.

On March 20, 1979, an agent for the United States Secret Service arrested Joseph Edward Dino on counterfeiting charges. Dino agreed to cooperate with the government and implicated Raymond Leon Koon [hereinafter appellant] as a co-counterfeiter and agreed to testify against appellant. On May 31, 1979, appellant was arrested and charged with possession, and delivery of counterfeit currency, and was subsequently indicted by a federal grand jury-

The government’s case against appellant never went to trial because informant Dino was murdered on November 21, 1979. The counterfeiting charges were dismissed; however, appellant eventually pled guilty to two federal counts including conspiracy to threaten a witness in a judicial proceeding resulting in the death of Joseph Dino. He was sentenced to seventy-five years on the primary count.

Appellant was thereafter indicted by a state grand jury in Collier County, Florida, for the murder of Dino. The facts presented at trial show that appellant and his nephew, J.L. Koon, lured Dino to a public parking lot in Hialeah, Florida, where appellant beat Dino and then, with the help of the nephew, forcibly placed Dino in the nephew’s car. They then drove into the Everglades west of Miami where appellant and Dino got out of the car and walked down into a rock pit, away from the nephew who had been ordered by appellant to stay in the car. Approximately eight minutes later, the nephew heard a shotgun blast, went to investigate, and found Dino dead in a lake in the rock pit.

Appellant argues that the state indictment and trial violated his rights against double jeopardy. Appellant’s contention is based upon the proposition that the Florida prosection was a “sham and a cover for a federal prosecution.” Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959).

Successive prosecutions in state and federal courts have long been held constitutionally permissible. Id. This Court confirmed the constitutionality of such successive prosecutions in federal and Florida courts in Booth v. State, 436 So.2d 36 (Fla. 1983). The result of our decision in that case was to “allow prosecutorial discretion by the state following a federal prosecution for the same offense.” Id. at 38. However, such prosecutional discretion does have its constitutional limitations. In Bartkus, the United States Supreme Court alluded to those limitations in finding that a state prosecution subsequent to a federal prosecution for the same offense may, under certain circumstances, be held to violate the prohibition against double jeopardy if the state prosecution is “merely a tool of the federal authorities.” Bartkus, 359 U.S. at 123, 79 S.Ct. at 678. Bartkus stands for the proposition that federal authorities are proscribed from using state processes to accomplish that which they cannot constitutionally do themselves under the fifth amendment. We agree, but further note that the burden of establishing that federal authorities are using and controlling the state processes is substantial; the appellant must show that the state authorities had little or no independent volition in the state court proceedings. United States v. Liddy, 542 F.2d 76, 79 (1976).

Appellant has not met that burden of proof in the instant case. The mere fact that an assistant United States attorney was appointed by the state to participate in prosecuting appellant on behalf of the state on the state charges and that the same investigator of the federal charges against appellant was involved in the state process does not alone turn the state trial into a sham. Law enforcement cooperation between state and federal authorities is a welcome and necessary innovation. Thus, we reject the contention that the federal prosecution and subsequent Florida prosecution violated appellant’s right against double jeopardy.

Appellant argues that the trial court erred in requiring appellant’s wife to testify to confidential communications between them.

At trial, Peggy Koon, the wife of appellant, was required to testify with respect to communications between her and appellant. Mrs. Koon testified to a conversation between her and appellant in a telephone call on the evening of November 21 and about communications between the two of them, later that night, wherein appellant was alleged to have admitted murdering Dino.

The husband-wife privilege is delineated in section 90.504, Florida Statutes (1981), which provides in pertinent part as follows:

(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse....

The state contends that the privilege had been waived by appellant pursuant to section 90.507, Florida Statutes, which states:

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if he, or his predecessor while holder of the privilege, voluntarily discloses or makes the communication when he does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.

In support of their contention, the state argues that the conversations between appellant and Lois Purvis, his mother-in-law, and he and his son, George Burton, constituted a waiver of the spousal privilege with respect to communications between appellant and his wife because appellant had also admitted killing Dino to Purvis and Burton. We find this argument to be unacceptable.

It is true that appellant’s conversations with Purvis and Burton were not confidential nor made with any reasonable expectation of privacy and therefore were not privileged. However, appellant and his wife did intend for their communications to be privileged and made the communications when they had a reasonable expectation of privacy. No other party was present at the time of the incriminating conversations between appellant and his wife. Furthermore, when Mrs. Koon was called as a witness to testify against appellant, appellant properly asserted the husband-wife privilege pursuant to section 90.504(2), Florida Statutes (1981). Thus, appellant’s wife should not have been permitted to testify as to their confidential communications.

The state further argues that even assuming that the communication between appellant and his wife was privileged, its admission at trial was harmless error because Mrs. Koon’s testimony was merely cumulative and there was other competent evidence in the record sufficient to sustain a verdict of guilt. We disagree. Mrs. Koon’s testimony was prejudicial.

Appellant, an alcoholic, during a time when he was drunk is alleged to have made a statement to Purvis saying that he had killed Dino. Purvis, an elderly woman, blind in her left eye, having hearing difficulties, and being under the influence of medications, apparently was not convinced that she had heard his statement and subsequently asked him if he had told her that, which he denied. Moreover, when appellant allegedly made the statement to Burton, he had been on a two-week alcoholic binge and was drinking heavily at the time. Appellant suffered blackouts and memory loss, secondary to alcohol abuse.

In light of the evidence contained in the record and the strong public policy in favor of the marital privilege and of the sanctity of the family, we find that the trial court committed reversible error in requiring Mrs. Koon to testify as to confidential communications between her and appellant.

We thus do not find it necessary to reach the merits of appellant’s other contentions and challenges to his sentence of death.

Accordingly, we reverse his conviction and remand for a new trial.

It is so ordered.

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


author: McDONALD, Justice. BOYD, Chief Justice,

text:
    Nelson WATTS, Petitioner, v. STATE of Florida, Respondent.
    No. 64613.
    Supreme Court of Florida.
    Jan. 24, 1985.
    Jerry Hill, Public Defender and L.S. Al-perstein, Asst. Public Defender, Tenth Judicial Circuit, Tampa, for petitioner.
    Jim Smith, Atty. Gen. and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for respondent.
   McDONALD, Justice.

This case is before us to review the district court decision in Watts v. State, 447 So.2d 271 (Fla. 2d DCA 1983), which expressly declared valid Florida’s loitering and prowling statute, section 856.021, Florida Statutes (1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

At Watts’ trial for loitering and prowling the state presented testimony that a police officer had observed Watts in the early evening hours of November 6, 1982 looking into cars in a restaurant parking lot. Watts walked away as the officer approached him. The officer returned to the parking lot a few minutes later and found Watts again engaged in peering into the parked cars. Watts then ran from the area and eluded a police search. When Watts testified at trial, he stated that he knew nothing about the incident related by the police officer. The county court found Watts guilty of violating section 856.021 and sentenced him to sixty days in the county jail.

On appeal the circuit court rejected Watts’ challenge to the facial constitutionality of section 856.021 based upon the United States Supreme Court decision in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), which held the California loitering statute unconstitutionally vague. The district court denied review after agreeing with the circuit court that section 856.021, as construed in State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), did not suffer from the vagueness problems found in the California loitering statute overturned in Kolender.

Watts now contends that the district court should have declared section 856.021 invalid. He argues that the statute fails to describe with sufficient particularity what a person must do in order to satisfy the statute and avoid arrest. Therefore, according to Watts, section 856.021 must be declared unconstitutional on its face in light of Kolender. We disagree with Watts and approve the district court’s holding that the result in Ecker remains constitutionally valid.

State laws forbidding loitering and other related crimes, such as vagrancy and disorderly conduct, have raised serious constitutional questions for many years. Litigants have successfully challenged several of these laws on vagueness and overbreadth grounds. See Kolender; Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). The city ordinance declared unconstitutional in Papachristou was patterned on the predecessor statute to section 856.021. The legislature enacted the present loitering and prowling statute to cure the previous law’s constitutional defects.

In Ecker this Court found that section 856.021 passed constitutional muster against challenges that it was vague and overbroad, required self-incrimination, and was subject to arbitrary enforcement. The Ecker majority found that the statute contained two elements which must be proven before conviction:

(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

311 So.2d at 106. Ecker discussed how a person’s production of credible and reliable identification can serve to dispel a police officer’s alarm or concern for public safety and thus help the person avoid arrest. The opinion went on, however, to point out that lack of proper or credible identification alone, without any circumstances alleged to otherwise constitute a threat to public safety, was not sufficient to support a conviction under section 856.021. Id. at 111.

In contrast the California loitering statute, section 647(e), had been construed in People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974), to require the following three elements for conviction: “(1) loitering on the streets, (2) refusal to identify and account on request, (3) in circumstances involving the public safety.” Id. at 432, 108 Cal.Rptr. at 868. The duty to identify element required a loitering suspect to provide the police officer with identification “carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself.” Id. at 438, 108 Cal.Rptr. at 873. Kolender found this identification requirement void for vagueness because a person stopped under the California statute has no way of knowing whether any particular identification will satisfy the requirement. The statute thus grants unbridled discretion to a police officer to decide whether a person may continue on his way or face arrest for loitering. The California loitering statute, as written and as construed by the state courts, stood vague on its face for encouraging arbitrary enforcement. Ko-lender.

We believe that Kolender does not affect the validity of section 856.021. The failure to identify is not an element of the crime here, as in the California loitering statute. Moreover, a person’s identification or refusal to identify is merely a circumstance to consider in deciding whether the public safety is threatened. The credible and reliable identification issue discussed in Ecker comes into play only after the two elements of section 856.021 have been established. We therefore reject Watts’ argument that Kolender renders section 856.021 constitutionally invalid.

Accordingly, we hold section 856.021 valid on its face and approve the district court decision under review.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

BOYD,- C.J., dissents with an opinion.

BOYD, Chief Justice,

dissenting.

Consistent with my position in State v. Ecker, 311 So.2d 104, 111-12 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), I must respectfully dissent and would find section 856.021, Florida Statutes (1981), unconstitutional due to vagueness and overbreadth. The vagueness consists in the lack of definition of such words, phrases, and clauses as “loiter,” “prowl,” “at a time or in a manner not usual for law-abiding individuals,” and “under circumstances that warrant a justifiable and reasonable alarm or immediate concern.” The overbreadth consists in the fact that the statute is susceptible of application to conduct that is protected by constitutional principles of personal liberty. A further infirmity inheres in the fact that the statute requires that a person confronted by a police officer must respond to police questioning. The statute thus is susceptible of being interpreted to penalize the exercise of the right to remain silent. These problems compel me to find that the statute is invalid.

As I said in dissent in State v. Williams, 315 So.2d 449, 449-50 (Fla.1975),

It is my firm belief that there are sufficient criminal statutes in existence at this time without the necessity of a catchall loitering statute such as Section 856.021, Florida Statutes. I feel that this statute is unconstitutional because it interferes with the freedom of movement of citizens in the same way as did the old vagrancy statutes which have been stricken down by the courts. No individual should be incarcerated simply because the nature of his conduct does not comport with a standard which a police officer considers proper unless there is actual evidence that a crime has been committed, is being committed or is about to be committed. It requires little imagination to contemplate many situations in which persons could easily be conducting themselves in a manner to arouse the suspicions of police officers without violating any statute or doing any harm to the public good.
For the above reasons, I must respectfully dissent.

This statute casts out a wide net, leaving it to police, prosecutors, and finally the courts to decide who should be detained and who set free. See B.A.A. v. State, 356 So.2d 304 (Fla.1978). It violates the constitution and should be struck down.

      . § 856.021 provides:
      (1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
      (2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
      (3)Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

      . Cal.Penal Code § 647(e) (Deering 1983) provides:
      Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor. (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable person that the public safety demands such identification.


text:
    Larry Joe JOHNSON, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Larry Joe JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 66445, 66458.
    Supreme Court of Florida.
    Jan. 28, 1985.

      Steven Seliger, Quincy, and Baya Harrison, III, Tallahassee, for petitioner/appellant.

      Jim Smith, Atty. Gen. and Raymond L. Marky and Mark C. Menser, Asst. Attys. Gen., Tallahassee, for respondent/appellee.
   BOYD, Chief Justice.

These two proceedings are before the Court upon (1) a petition for habeas corpus and (2) appeal of the denial in circuit court of a motion to set aside judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The petitioner-appellant, Larry Joe Johnson, is a state prisoner under sentence of death. This Court has jurisdiction of both of these proceedings. Art. V, § 3(b)(1) and (9), Fla. Const. In connection with these two proceedings, Johnson seeks a stay of the scheduled execution of his death sentence. Because we are able to resolve all issues on an expedited basis, we deny the motion for a stay. We deny the habeas petition and affirm the denial of the rule 3.850 motion.

Johnson was charged with the crimes of murder in the first degree and armed robbery. The accusations were tried by a jury and Johnson was convicted on both counts. Under section 921.141, Florida Statutes (1977), a separate sentencing proceeding was held and the jury thereafter recommended death as the appropriate sentence for the murder. The trial court followed the recommendation and sentenced Johnson to death. On appeal, this Court affirmed the convictions and the sentence of death. A discussion of the evidence and the legal issues raised on appeal is found in this Court’s opinion reported as Johnson v. State, 442 So.2d 185 (Fla.1983). Upon Johnson’s petition to the United States Supreme Court for certiorari, that Court declined to review the case. Johnson v. Florida, — U.S. —, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

Johnson seeks a writ of habeas corpus arguing that the lawyers who represented him on his previous appeal to this Court rendered him ineffective assistance of counsel depriving him of a full and meaningful appeal. Therefore, the argument continues, the judgment of conviction and sentence of death and this Court’s af-firmance of same are invalid unless Johnson be granted a renewed appeal in which to argue points which his previous lawyers, by reason of incompetence, neglected to argue.

A person convicted of a crime, whose conviction has been affirmed on appeal and who seeks relief from the conviction or sentence on the ground of ineffectiveness of counsel on appeal must show, first, that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance; and second, that the failure or deficiency caused prejudicial impact on the appellant by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision. Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 457 So.2d 1380 (Fla.1984).

Johnson argues that the lawyers who represented him on appeal were ineffective in that they failed to present on appeal the argument that the trial court had reversibly erred in allowing Johnson to be absent from the courtroom during the testimony of a witness at the sentencing phase. A second allegation of ineffectiveness, based on the lack of appellate argument that the trial court had reversibly erred in allowing challenges for cause to two prospective jurors who expressed reservations about capital punishment has now been withdrawn in view of the United States Supreme Court’s decision in Wainwright v. Witt, — U.S. —, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

As is indicated above, the issue before us is, first, whether the decision not to make the argument or the simple omission to do so constitutes a serious error or substantial deficiency and, second, whether the failure of counsel undermines confidence in the correctness of the outcome. Although the petition argues that relief should be granted because the omitted point of appeal, had it been argued, would have been found meritorious by this Court, the merits of that legal point is not before us. It is a matter cognizable only by means of specific objection at trial and presentation on appeal and we will not allow this habeas corpus proceeding to become a direct vehicle for belated appellate review. The question of the merits of the legal point petitioner says should have been argued on appeal is a mere abstraction here, the only concrete issues before us being those pertaining directly to the claim of ineffectiveness of counsel.

Petitioner says that at the sentencing hearing he was erroneously allowed to be absent from the courtroom during the testimony of a witness. The witness in question was a psychologist called to testify on the defendant’s behalf. It may be presumed that defense counsel presented the testimony for purposes of establishing mitigating circumstances or negating aggravating circumstances for the purpose of establishing the appropriateness of a sentence of life imprisonment as opposed to a sentence of death, as these are the only issues at a sentencing hearing under section 921.141. It was at the request of defense counsel that Johnson was allowed to be absent during the psychologist’s testimony for the defense, and defense counsel told the court that his request was pursuant to the wishes of the witness and, impliedly, the agreement of the defendant, “by prior arrangement.” The defendant himself voiced no objection to the procedure and the psychologist thereafter explained to the court that it would not be in the defendant’s best interest to hear her testimony about him.

Petitioner now argues that his appellate counsel should have challenged the trial court’s action on appeal. Even though there was no objection interposed at trial, petitioner says the matter could have and should have been raised because it was fundamental error. Moreover, even though the action of the trial court was based on defense counsel’s affirmative request and waiver of the defendant’s presence, petitioner says it should have been raised because either the presence of the accused at all phases of the trial is non-waivable or such waiver can be made only by the defendant himself, knowingly and intelligently, into which factors the trial court was obliged to inquire before granting the request, the defendant’s silence by itself, according to the argument, being insufficient as a waiver.

In arguing that there was error that should have been raised on appeal, petitioner relies upon Francis v. State, 413 So.2d 1175 (Fla.1982), along with numerous other decisions concerning the right of an accused person to be present in court at all critical stages of the proceedings against him, including the entire trial proper. In Francis the examination of prospective jurors began in the defendant’s absence at the instance of the court and the exercise of peremptory challenges took place in camera with the defendant excluded without his express consent. This Court applied the “knowing and intelligent waiver” standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in holding the involuntary exclusion of the defendant to be error.

The state very persuasively points out that what happened at petitioner’s trial is vastly different from Francis and other cases where the accused is excluded against his will from a part of the proceeding where his presence in the courtroom is important to fairness of the trial. The state argues that in this situation appellate counsel could not have successfully raised the matter on appeal after defense counsel had so explicitly waived the point at trial, citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1972), Castor v. State, 365 So.2d 701 (Fla.1978), and other cases.

The right of the accused to be present in the courtroom throughout his trial derives from and is an effectuation of, we believe, two constitutional rights of the accused under the sixth amendment to the United States Constitution: the right “to be confronted with the witnesses against him” and the right “to have the assistance of counsel for his defense.” The former guarantees the right of cross examination and guards against “conviction ... upon depositions or ex parte affidavits.” Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 55 L.Ed. 753 (1911). The latter pertains in this context to the presence of the accused when his presence is important to the fairness of the proceeding. Just as the accused has the right to the assistance of counsel, he also has the right to assist his counsel in conducting the defense. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Thus in Francis the defendant’s presence during the exercise of peremptories was deemed important because of the aid the accused could have given to his counsel. At petitioner’s trial, the witness who testified during his voluntary absence was testifying on the defendant’s behalf rather than against him. Moreover, as defense counsel represented to the court without objection by the defendant that his absence had been agreed upon “by prior arrangement,” it appears that consultation between the accused and his counsel about the presentation of the witness’s testimony had already taken place.

As was stated above, we will not reach the question of whether petitioner’s temporary absence from the courtroom was fundamental error or even simple legal error. We consider only whether appellate counsel’s omission to raise it on appeal was a serious deviation from professional norms and, if so, whether the defect undermines confidence in the outcome of the appellate process. Strickland v. Washington. If the answer to the second question can be clearly arrived at, we can dispense with the first one. Id.

Appellate counsel’s job is to review the record of the trial and to present to the reviewing court any arguments regarding errors of substance or procedure committed in the course of the proceedings which worked some detriment to the defendant or violated any of his substantive or procedural rights. The record of the trial in this case shows that appellant’s absence from the courtroom during the testimony of a defense witness at the sentencing phase took place at the request of defense counsel, that defense counsel represented to the court that the witness, a psychologist, had requested it and that it had been agreed upon “by prior arrangement,” and that the defendant himself expressed no objection but voluntarily removed himself from the courtroom. We have said many times that an appellant in a criminal case is not entitled to have his counsel press every conceivable claim upon appeal. It is not difficult to see how appellate counsel might well have decided not to argue this issue on appeal. That appellate counsel did not present the inventive and highly technical argument being brought before us now is not a basis for finding “a substantial and serious deficiency,” Knight v. State, 394 So.2d 997, 1001 (Fla.1981), “outside the wide range of professionally competent assistance.” Strickland v. Washington, — U.S.—, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Because defense counsel at trial not only explicitly waived the defendant’s presence on his behalf but also affirmatively requested that he be allowed to leave the courtroom, representing to the court that this was the defendant’s agreement and in his interest, appellate counsel could very reasonably have decided that the issue was not a promising one because of the waiver and the lack of prejudice to the defense.

We therefore find that the omission of appellate argument on the issue of petitioner’s voluntary and requested absence from a portion of his trial was not a serious and substantial deficiency. And even if it were conceded that the omission to raise the issue amounted to a deficiency, we find in this case that this omission did not deprive petitioner of a complete meaningful, and effective appellate process.

Having found no merit to petitioner’s contention, we deny the petition for habeas corpus.

Rule 3.850 Appeal

We now turn to Johnson’s appeal of the denial of his motion to vacate judgment and sentence filed under Florida Rule of Criminal Procedure 3.850. Appellant contends the trial court erred in refusing to grant him an evidentiary hearing on his claims. Because we find that the record of the prior trial conclusively established that Johnson was not entitled to relief from the . judgment or sentence, we hold the trial court’s denial of the rule 3.850 motion without evidentiary hearing was proper and we affirm.

On this appeal, Johnson argues that the trial court erred in denying his motion on the following grounds:

(1) that his absence from the courtroom during a portion of his trial violated his constitutional rights and a procedural rule;
(2) that such absence violated his rights to due process and fair procedure in sentencing;
(3) that peremptory challenges were improperly used to exclude black people from the jury;
(4) that the trial court’s prior evaluation of appellant’s mitigating evidence should be reconsidered;
(5) that the state’s presentation of the testimony of the psychiatrists appointed to evaluate appellant’s competency to stand trial as anticipatory rebuttal of defendant’s evidence of mitigation on mental and emotional grounds was improper;
(6) that the prosecutor at trial argued in an improper and inflammatory manner, commenting on the evidence, expressing personal beliefs, and arguing on matters outside the evidence so as to violate Johnson’s constitutional rights;
(7) that the process of jury selection tended to produce a jury biased in favor of finding guilt and recommending a death sentence and that the instructions and argument given to the jury at sentencing tended to denigrate its role and the importance of its function;
(8) that the trial court’s original refusal to find any mitigating circumstances from the evidence violated the eighth amendment’s requirement of individualized sentencing; and
(9) that two jurors had been improperly excluded from the trial jury on the ground of conscientious objection to capital punishment.

Points (1), (2), (3), (5), (6), (7), and (9) as set forth above are all matters that should have been and, if properly protested and preserved for appeal, could have been raised by the initial appeal and therefore are not proper grounds for relief by motion to vacate under rule 3.850. Booker v. State, 441 So.2d 148 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982). Indeed, point (6) is merely a reiteration and amplification of an argument that was decided adversely to appellant. The trial court’s summary denial of relief on all of the above grounds was therefore proper.

As for points (4) and (8) as set forth above, the latter seeks to relitigate the issue of the weight to be accorded to the mitigating evidence presented on appellant’s behalf at the sentencing phase of his trial. The sentencing court found no mitigating circumstances. This Court affirmed the sentence of death on appeal. The former (point 4) is based on the argument that cases and studies published since the time of appellant’s sentencing and his appeal have worked such a profound change in the science of psychology and the law of capital sentencing that the question of the legally appropriate sentence for appellant should be revisited. This argument is an attempt to reargue the legal correctness of the prior judgment and sentence previously affirmed by this Court. We find that the trial court was correct in ruling that neither issue was cognizable by rule 3.850. Both points ask for reconsideration of matters which must be considered final in view of this Court’s prior affirmance of the death sentence and they do not rise to the level of a claim based on suppressed or newly discovered evidence. Matters settled by the appeal are not proper grounds for collateral challenge. See Sullivan v. State, 441 So.2d 609 (Fla.1983); Messer v. State, 439 So.2d 875 (Fla.1983).

The denial of the motion for post-conviction relief is affirmed. The petition for writ of habeas corpus is denied. The petition for a stay of execution is denied.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

       Attached to the habeas petition is the affidavit of one of the lawyers who represented Johnson on appeal. The lawyer states that he did not omit the point in question for any tactical reason but simply "did not spot it.” We do not find the lawyer’s apparent willingness to confess incompetence on behalf of his former client, who faces execution, determinative or persuasive of the question of whether appellant received the effective assistance of counsel on appeal. Even though a lawyer who does not raise some possibly arguable matter on appeal does not consciously bypass or forego the issue, but simply is not struck with its possible arguability when reviewing the record, does not mean that the counsel was not functioning as legal counsel in a meaningful way. See Strickland v. Washington.