author: BOWEN, Presiding Judge. HUBERT TAYLOR, Judge

text:
    Mizell McMULLIN v. STATE.
    6 Div. 883.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-212.

      L. Dan Turberville, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Mizell McMullin, the appellant, was arrested while fleeing the scene of a burning residence. He was indicted and convicted for arson in the first degree. Alabama Code Section 13A-7-41 (1975). Since McMullin had two prior convictions for rape, he was sentenced as an habitual offender to life imprisonment. Four issues are raised on appeal.

I

McMullin alleged in his motion for new trial that the prosecutor knowingfully and willfully withheld the name of an eyewitness until after trial and thereby violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

McMullin’s pretrial motion to produce was granted. That motion contained a specific request for “(t)he names and addresses of all witnesses or prospective witnesses which the State of Alabama intends to call upon the trial of this case” and a general request for “(a)ll material or information which the State of Alabama has which tends to negate the guilt of the Defendant.”

Sometime before trial, the prosecutor telephoned Mrs. Lilly Wills who lived next door to the burned residence. The prosecutor testified at the motion for new trial that he learned Mrs. Wills’ name from a newspaper article which was stapled to the back of a report of the arresting officer which defense counsel “got to see.” He stated that Mrs. Wills told him that she did not see anyone set the fire and that she indicated she “could not identify anybody.” He also testified that he told defense counsel that there were “possibly witnesses next door, putting out the fire.”

Defense counsel stated that the reason he did not discover the existence of this witness before trial was because he “relied on the prosecutor all the way up to the trial that there were no witnesses.”

The trial judge held the hearing on the motion for new trial in abeyance for approximately three weeks so defense counsel could “produce something exculpatory that the State didn’t give you.” When the hearing reconvened, defense counsel testified that with some difficulty he had managed to contact Mrs. Wills. He stated that she told him that she saw two men in a car “casing the house” the night of the fire. She also saw someone “pouring some gas” then throwing something “which resembled a rolled up newspaper or something” onto the porch to start the fire. However, “she could not say absolutely that he (McMullin) was the same person that she saw near the porch” nor could she state that McMullin was one of the men she saw in the car. Mrs. Wills was not subpoenaed for the hearing.

“There is no general constitutional right to discovery in criminal cases, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). “A defendant has no constitutional or statutory right to compel the pretrial discovery of the State’s witnesses.” Peoples v. State, 418 So.2d 935, 937 (Ala.Cr.App.1982). “Prosecutors have no duty under Brady to disclose evidence that is inculpatory or available to the defense from another source ... or (to) produce duplicative information.” 71 Georgetown L.J. 449, 511 Twelfth Annual Review of Criminal Procedure: United States Supreme Court And Courts of Appeal 1981-1982 (1982).

The moral culpability, or the willfulness, of the prosecutor is not a factor in deciding the constitutional issue involved here. “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). The suppression of evidence “material either to guilt or to punishment” violates due process “irrespective of the good faith of the prosecutor.” Brady, 373 U.S. at 87, 83 S.Ct. at 1197.

Whether the withheld evidence is material is to be determined by applying the following standards: Where the accused has requested the specific information withheld or not produced, a new trial should be granted only if the nondisclosure “might have affected the outcome of the trial.” Agurs, 427 U.S. at 104, 96 S.Ct. at 2398; Brady, supra. In cases where there has been merely a general request for exculpatory matter, and in cases where there has been no request at all, the conviction should be reversed only if the undiscovered evidence would create “a reasonable doubt that did not otherwise exist.” Agurs, 427 U.S. at 109-12, 96 S.Ct. at 2400-02; United States v. Gaston, 608 F.2d 607, 612 (5th Cir.1979); Cannon v. Alabama, 558 F.2d 1211, 1215-16 (5th Cir.1977).

“(I)f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2402.

Project, 71 Geo.L.J. at 513, n. 1174 and 1175.

Here, the motion to produce specifically sought the names of those witnesses or prospective witnesses which the State “intends to call upon the trial of this case.” The prosecutor’s testimony at the hearing on the motion for new trial makes it clear that the State never intended to call Mrs. Wills as a trial witness. Consequently, we find, as did the trial judge employing this same reasoning, that the prosecutor did not violate the judge's order granting the motion to produce. Compare this request to the request in Wright v. State, 424 So.2d 684 (Ala.Cr.App.1982), for “(a) list of all witnesses interviewed by the State in connection with this prosecution and their residence and/or business addresses.”

It is also clear from the prosecutor’s testimony that his conversation with Mrs. Wills was a product of his own initiative and investigation. Defense counsel was given access to the police report containing the newspaper article that led the prosecutor to telephone Mrs. Wills -and was also told that the people next door put out the fire. “Truth, justice, and the American way do not ... require the (State) to discover and develop the defendant’s entire defense.” United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980).

“The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the (State’s) file which might conceivably assist him in the preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him.”
United States v. Ruggiero, 472 F.2d 599, 604 (2nd Cir.1973).

The information given to the prosecutor by Mrs. Wills is in no way exculpatory or favorable to the defendant. See Reed v. State, 407 So.2d 153 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 162 (Ala.1981). At best, her testimony could be characterized as neutral, for she could neither identify the defendant as the person who started the fire, nor state that he was not the person who started the fire. Hughes v. Hopper, 629 F.2d 1036 (5th Cir.1980); United States v. Rhodes, 569 F.2d 384 (5th Cir.), cert. denied, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978). Cf. United States v. DePalma, 461 F.2d 240, 241 (9th Cir.1972) (where the testimony of an eyewitness who observed a man dressed in clothing similar to that worn by the robber but could not identify the appellant as the man she saw was characterized as being of “such vague and uncertain quality that it cannot be said to fall within the suppression rule.”) See Annot. 34 A.L.R.3d 16, Section 26(a) (1970). This nondisclosed information would not even have been useful for impeachment purposes. United States v. Mesa, 660 F.2d 1070, 1076 (5th Cir.1981). On the contrary, it tends to corroborate the testimony of the State’s main witness. See Greenwood v. Massey, 469 F.Supp. 935 (S.D.Fla.1979).

Mrs. Wills’ testimony does not meet either of the materiality standards outlined above. Evaluated in the context of the entire record, the information she could have imparted at trial would certainly not create a “reasonable doubt that did not otherwise exist.” Agurs, 427 U.S. at 112, 96 S.Ct. at 2402.

Even if we consider McMullin’s request to be a specific request for the names of eyewitnesses, his conviction is due to be reversed only if the nondisclosure “might have affected the outcome of the trial.” Agurs, 427 U.S. at 104, 96 S.Ct. at 2398; Project: Criminal Procedure, 71 Geo.L.J. at 513, no. 1174. Because Mrs. Wills’ testimony was totally neutral as to the identity of the perpetrator of this offense and tended to substantiate the testimony of the State’s main witness, we are confident in concluding that nothing in that testimony would have affected the jury’s verdict and that the nondisclosure of her identity did not affect McMullin’s right to a fair trial.

II

McMullin argues that the trial judge improperly and prematurely excused a venireman “without sufficient voir dire to test the nature of the relationship and the ability of the prospective juror to be guided by the Court as to the consideration of evidence and the determination of guilt or innocence.”

In response to voir dire examination by the prosecutor, venireman McGill stated that he knew McMullin, that he went to school with him, that it would make him feel “somewhat uneasy” to sit on the jury, and that he felt he “might” be biased one way or the other because of his knowledge of McMullin in the past. When McGill stated that he would like to be excused from the jury, the trial judge excused him. To his excusal, defense counsel responded, “Note our exception.”

Later, after the jury had been selected and instructed by the trial judge, defense counsel stated his objection:

“I just wanted to preserve the record. I already moved and you noted an exception when the man McGill was excused. I would just like to state my grounds. I don’t believe that the proper predicate to excuse that juror was met. He did not say he would be unable to render a fair and impartial verdict based solely on the evidence.”

By failing to make a timely and proper objection the defendant cannot avail himself of any alleged error and has preserved nothing for review. Tate v. State, 417 So.2d 608 (Ala.Cr.App.1982). An “exception” is not equivalent to an “objection”. Garrett v. State, 33 Ala.App. 168, 31 So.2d 151 (1947); Horn v. State, 23 Ala.App. 273, 124 So. 125 (1929). Exceptions, like objections, must be specific. Whittle v. State, 205 Ala. 639, 89 So. 43 (1921); Graham v. State, 46 Ala.App. 608, 246 So.2d 675 (1971).

Here, we find no abuse in the judge’s discretion in excusing the prospective juror even though McGill’s answers indicated “reluctance and hesitation rather than definite inability to decide the case on the evidence alone.” Carter v. State, 420 So.2d 292, 295 (Ala.Cr.App.1982). Probable prejudice for any reason disqualifies a prospective juror. Alabama Power Co. v. Henderson, 342 So.2d 323 (Ala.1976). A juror should be impartial between the parties. Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942).

Ill

McMullin objected to the following comments of the prosecutor in closing argument:

“MR. CAHILL: Don’t you think the Nord’s are wondering what his motives are. Don’t you think in the same breath that they’re saying, the guy put a match to our house. Something should be done.
“MR. JAFFE (Defense Counsel): We object to that. They didn’t say that, Judge.
“THE COURT: Overruled.
“MR. CAHILL: Let there be no doubt in your mind where the District Attorney’s office stands, where the State of Alabama stands, where those people out there stand as far as this case is concerned.
“MR. JAFFE: We object to that statement, Judge.”

The argument that the defendant put a match to the house was a reasonable inference from the evidence. More than that, it was the basis of the State’s entire case and certainly a proper subject for comment in closing argument. Moreover, the prosecutor did not state that the victim actually made the statement. He was speculating: “Don’t you think that the Nord’s are wondering?” Since no motive for the arson was shown, we view this comment as coming within the considerable latitude allowed counsel in drawing deductions from the evidence. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960). Here, the prosecutor did not use any unfair tactic to create prejudice in the minds of the jurors. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Granberry v. State, 182 Ala. 4, 62 So. 52 (1913). We also view the prosecutor’s comments as a legitimate appeal for law enforcement. Cook v. State, 369 So.2d 1251 (Ala.1978); Richardson v. State, 354 So.2d 1193 (Ala.Cr.App.1978).

IV

McMullin alleged in his motion for new trial that the prosecutor “coached” two witnesses into “lying” and changing their testimony in order to strengthen the State’s case. At the hearing on this motion, defense counsel subpoenaed the arresting officer and the fire inspector who had testified as State’s witnesses at McMullin’s trial. He asserted that the day before trial the fire inspector and the arresting officer told him that no matches were found at the scene and that they were not even sure how the fire started. At trial, both witnesses testified that matches were found at the scene of the crime and near McMullin. A photograph of one match found on the porch of the residence was admitted into evidence at trial.

The trial judge refused to permit defense counsel to examine the subpoenaed witness, ruling that counsel had the opportunity to cross examine the witnesses at trial and that he would not allow counsel to “recross” the witnesses at the hearing on the motion for new trial: “I’m not going to use this Court on a motion for a new trial to recross a witness that you had on the stand and you could have cross examined him to your heart’s content.”

The record reflects that during the State’s direct examination of the arresting officer co-counsel for the defense requested the trial judge to allow defense counsel to exit the courtroom: “He (defense counsel) has just become a witness in this case based on what we would contend is a prior statement made to him from Mr. Mardis.” Yet, defense counsel never testified.

On cross examination of the arresting officer, defense counsel went into the facts that the officer’s personal arrest report made no mention of matches. The officer denied telling defense counsel that no matches were found at the scene. Counsel also cross examined the fire inspector about the matches found at the scene.

The contradictory statements of the fire inspector and the arresting officer do not constitute newly discovered evidence since defense counsel knew of their existence at the time of the trial. Although counsel argues that he wanted to prove prosecuto-rial misconduct by showing the testimony of these two witnesses before the grand jury, the witnesses could have been impeached and discredited at trial by showing contradictory testimony before the grand jury. Bryson v. State, 38 Ala.App. 517, 520, 84 So.2d 782 (1955), affirmed, 264 Ala. 111, 84 So.2d 785 (1956). Defense counsel could also have testified that the witnesses made contradictory statements. Yet, at trial, neither method of impeaching either witness was attempted. Whether the issue is framed in terms of misconduct of the prosecutor, the use of perjured testimony, or impeachment, the result is the same. Counsel could and should have taken advantage of his knowledge and information at trial.

We recognize that misconduct by the prosecuting attorney in procuring evidence against the accused by means of deception and fraud constitutes a proper ground for a motion for new trial. 24 C.J.S. Criminal Law Section 1442(b), n. 12 (1961). However, because defense counsel had the same information, knowledge, and witnesses available at trial as he did on the motion for new trial, we find that the trial judge properly denied the motion for new trial. The general rule is found in 24 C.J.S. Criminal Law Section 1428 (1961).

“Although courts have sometimes departed from this rule, generally, in analogy to the rule limiting the scope of review on appeal to questions raised below, a new trial will not be granted for matters pertaining to rulings, evidence, or occurrences at a trial, including erroneous conduct on the part of the court, counsel, or jury, unless timely and sufficient objections, requests, motions, or exceptions have been made and taken. Any grounds which might have been afforded by such matters are presumed to have been waived, except where such matters were unknown to applicant until after verdict and could not have been discovered by the exercise of reasonable diligence, and except in instances of fundamental errors which of themselves invalidate the trial.”

See also Jarrell v. State, 355 So.2d 747 (Ala.Cr.App.1978). “(T)he failure of the defendants to develop all the material evidence within the knowledge of the witness during his examination, though it be material, cannot be made the basis of a new trial.” Rains v. Ethridge-Atkins Motor Co., 221 Ala. 160, 162, 127 So. 905 (1930).

Because of the seriousness of this issue, this Court has carefully examined the grand jury notes of Fire Inspector R.M. Young, the arresting officer Patrick Mar-dis, and Craig Nord, the resident of the burned premises. These grand jury notes were reviewed by the trial judge, sealed, and sent to this Court. The testimony of those witnesses is very brief. Obviously, there was no attempt made by the assistant district attorney to present the entire State’s case to the grand jury. The grand jury testimony does not contradict the trial testimony. The testimony contains no reference to matches but both the fire inspector and the arresting officer indicate that they knew how the fire started. There is nothing in the grand jury notes to indicate that any witness changed his testimony. There is nothing in the record to indicate that the prosecutor is guilty of any misconduct.

The judgment of the circuit court is affirmed.

AFFIRMED.

TYSON and HARRIS, JJ., concur.

HUBERT TAYLOR, J., dissents with opinion.

SAM W. TAYLOR, J., joins in dissent.

HUBERT TAYLOR, Judge

(dissenting).

I respectfully dissent. While pretrial discovery in a criminal proceeding is not yet a recognized right of an accused, a court order requiring the State to give certain information should be obeyed in letter and spirit. Three elements of this case are clear: (1) the State was required to release any information which would tend “to negate the guilt of the defendant;” (2) the State was aware of the existence of an eyewitness to the crime; and (3) the State did not disclose that information.

I am aware of the long line of cases which hold that withheld information must be exculpatory or favorable to the accused. This particular eyewitness would have testified that she was not certain if the appellant was one of the men she observed burning the building. This information in the hands of the defense could have changed the entire climate of the trial. The defense could have called this witness and then made a forcible argument to the jury on the element of reasonable doubt. The strategy of the trial could have changed, especially if the defense was successful in planting seeds of doubt in the minds of jurors as to why the State had not called an eyewitness to the crime.

I believe this to be a proper setting for this court to erase all doubt with regard to the duty of the State to obey a pretrial discovery order in a criminal proceeding. The good or bad faith of the prosecutor should not be considered; those elements of the human mind are not easily discerned. What is clear is that the rights of an accused where personal liberty is at issue should embrace the right to know if an eyewitness to the crime could or could not identify him. On that knowledge may depend not only the strategy of the trial but the result.

      . The State’s main witness, Patrick Mardis, an off-duty UAB security guard, testified that he was driving down the street on which the victim lived when he observed two black males standing near a parked car. When Mardis turned around in a driveway and retraced his route, the two men jumped in the car and drove off. Mar-dis then saw another man standing in front of the victim’s house. This man made a tossing motion with his hands and immediately thereafter the victim’s front porch burst into flames. A black male ran across the street and Mardis gave chase. He apprehended the defendant, McMullin, a short distance away.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Paul Timothy ROBERTSON v. STATE.
    8 Div. 834.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-184.
    John R. Benn of Peck, Slusher & Bunch, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery in the first degree, a Class A felony, and a sentence to life imprisonment without parole pursuant to the Habitual Felony Offenders Act as now codified in Code of Alabama 1975, § 13A-5-9. The defendant had been previously convicted of three felonies. Subsection 13A-5-9(c)(3) provides:

“In all cases when it is shown that he has been convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:
“On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

No issue is presented by appellant as to the judgment of conviction. The only issues presented relate to the sentence. Appellant’s first issue is thus stated in his brief:

“Whether the absence of a sequential relation between Defendant’s three prior convictions precludes his sentencing under Section 13A-5-9(c) as a third tier habitual offender.”

Appellant’s first issue is substantially the same as an issue that was recently decided adversely to appellant in Summerhill v. State, 436 So.2d 2 (Ala.Cr.App.1983), which case certiorari was denied by the Alabama Supreme Court on August 5, 1983. In accordance with what was said and held in Summerhill, we conclude that appellant’s first issue is not well taken.

Appellant’s only other issue is as follows:

“Whether statutorily authorized sentence of life imprisonment without parole constitutes cruel and unusual punishment under Eighth Amendment.”

This issue has also been decided adversely to appellant. In Holley v. State, Ala.Cr.App., 397 So.2d 211, 216, per Judge DeCar-lo, writ denied, Ala., 397 So.2d 217 (1981), after a thorough examination and discussion of the question, it is concluded:

“Therefore, it is our judgment that the sentence meted out to Holley of life imprisonment without parole was not cruel or unusual punishment and not in conflict with the Eighth Amendment of the United States Constitution.”

Appellant endeavors to reinforce his argument as to this issue by what was held in Helm v. Solem, 684 F.2d 582, (8 Cir.1982) and Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). When weighed in the scales of both the United States Court of Appeals for the Eighth Circuit and the Supreme Court in that case, the instant case is “found wanting.” In that case, the sentence to life imprisonment, which, at the time under the law of the state in which the sentence was imposed, was the equivalent of a sentence to life imprisonment without parole, had been imposed for a conviction of the crime of uttering a “no account” check for $100. The six prior felony convictions included three convictions for third degree burglary, a conviction for driving while intoxicated, a conviction for grand larceny, and a conviction for obtaining money under false pretenses. See footnote 1, 684 F.2d 582. None of the convictions was for the commission of a crime of violence or a crime involving any danger to the person of another. The judgment of conviction from which the appeal herein was taken was for robbery in the first degree, the indictment charging, inter alia, that defendant “in the course of committing a theft of one (1) watch, two (2) rings, three (3) bracelets, one (1) handbag, and Four Hundred Fifty Dollars ($450.00) ... did use force against the person” of the alleged victim “with the intent to overcome her physical resistance or physical power of resistance while the said Paul Timothy Robertson was armed with a deadly weapon, to-wit, a pistol ...”

Code § 13A-5-9(c) provides:
“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such conviction has committed another felony, he must be punished as follows:
“(1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years.
“(2) On conviction of a Class B felony, he must be punished for life in the penitentiary;
“(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

By reason of the fact that two of the three previous felony convictions involved in the instant case were convictions in another state, Kansas, for statutory offenses, and without any knowledge as to the circumstances of those crimes, we cannot say with certainty that they should be treated as equally serious as, or as more or less serious than, the six previously committed crimes in Solem v. Helm.

In endeavoring to follow strictly, as we should, what the Supreme Court holds as to what constitutes cruel and unusual punishment, we are unable to conclude that Solem v. Helm, supra, either requires or authorizes a determination that the judgment sentencing this appellant to imprisonment for life without parole constitutes a violation of the Eighth Amendment to the Constitution of the United States. Although this appellant’s record of previous convictions is probably not as good as was the record of previous convictions of Helm, our study of the majority (five to four) opinion, as well as the strong minority opinion, in Solem v. Helm, convinces us that of paramount consideration by the Supreme Court was the qualitative analysis of the particular felony that resulted in the equivalent of a sentence to life imprisonment without parole. We do not look upon any felony as not constituting a serious crime, but the felony that resulted in the sentence to life imprisonment without parole of Helm was a mere peccadillo that pales almost into nothingness in the red glare of the felony of armed robbery which brought about the judgment of conviction and sentence in the instant case. Neither in the majority opinion nor in the minority opinion in Solem v. Helm, do we find language that would justify our holding that the judgment of conviction and sentence appealed from herein constitutes a violation of the Eighth Amendment. Not only in this case but also in all cases involving questions pertaining to the Constitution of the United States, we look to the Supreme Court for authority and for light. Solem v. Helm furnishes no authority for disturbing the sentence in this case; its light leads us in the opposite direction.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Roy Daniel MOORE v. STATE.
    8 Div. 840.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Bryce U. Graham, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was convicted of manslaughter and sentenced to five years’ imprisonment.

This case involved a collision between two automobiles on Thanksgiving night, 1982. Appellant, who had been drinking, was driving north in the southbound lane of Old Lexington Road when he struck a car being driven by Patsy Kay Byrd. The collision, which occurred at the crest of a' hill, was head-on, and Miss Byrd was killed instantly.

The single issue raised on appeal is whether the trial court committed reversible error in allowing the results of a photoelectric intoximeter test into evidence. Appellant contends that the proper predicate was never laid for such evidence; specifically that it was never proven that the test was performed according to the methods approved by the State Board of Health.

The officer who performed the test indicated that, an hour after the collision, appellant had a blood alcohol level of .14.

Section 32-5A-194 (Supp.), Code of Alabama 1975, which deals with admissibility of chemical test results, reads in part as follows:

“Upon the trial of any civil, criminal or quasi-criminal action on proceeding arising out of acts alleged to have been committed by any person while driving or in actual control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person’s blood at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:
“(1) Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state board of health. The state board of health shall not approve the permit required in this section for making tests for any law enforcement officer other than a member of the state highway patrol, sheriff or his deputies, a city policeman or laboratory personnel employed by the department of forensic sciences.”

In the case of McGough v. Slaughter, 395 So.2d 972 (Ala.1981), the Supreme Court construed § 32-5-193, Code of Alabama 1975, from which the above-quoted statute evolved with only minor changes. The court, speaking through Chief Justice Torbert, stated:

“The legislature has ... remedied many of the problems involved in laying a foundation for admission of intoxication test results, at least where the action arises from operation of a vehicle ... [A] party offering results from tests shown to be given in conformity with the statute is relieved of the burden of laying the extensive predicate necessary for admission of scientific test results.”

Thus, there are two methods by which the results of a photoelectric intox-imeter test can be placed into evidence. Either it must be shown that the test was administered in conformity with the statute', or the traditional evidentiary foundation used to admit results from scientific tests must be laid. McGough, supra. Whetstone v. State, 407 So.2d 854 (Ala.Cr.App.1981).

At trial, state trooper Elree Strickland, who performed the intoximeter test, testified about his qualifications as follows:

“Q: Now, have you had any training in the method to give a breathalyzer test?
“A: Yes, I have.
“Q: What kind of training have you had?
“A: Okay. It’s a 40 hour course, one week. I took the course in Montgomery given by the Alabama Department of Public Health and licensed by the Health Department of the State of Alabama on this test. I’ve had retraining almost yearly ever since that date, and I took this in 1971.
“Q: Are you licensed by the state?
“A: Yes, I am.
“Q: And that license qualified you to give the breathalyzer test?
“A: Yes, they do.
“Q: Is your license still in effect?
“A: Yes, it is.”

Nowhere in Trooper Strickland’s testimony was the foundation laid to indicate that he conducted the test according to methods approved by the State Board of Health. A copy of the board’s rules and regulations governing the administration of the test was never offered into evidence. Even though the witness was licensed to run the intoximeter,

“[tjhere is no rebuttable presumption that a duly licensed operator knew and used methods and techniques approved by the state board of health in administering the test. Commander v. State, 374 So.2d 910 [Ala.Cr.App.] (1978).”

The test was not shown to be performed in conformity with the requirements of the statute.

Did the state establish the traditional, non-statutory foundation required for the introduction of scientific test results? We find that the foundation was not laid.

In Ex Parte Dolvin, 391 So.2d 677 (Ala.1980), our Supreme Court outlined the factors which determine the admissibility of a scientific test. These include:

“Whether a test is readily assignable to any particular well-established and defined scientific discipline; whether the test is either applied by a mechanical device or purports to decipher specific data requiring scientific paraphernalia to produce; whether the test tends to trench very closely upon an ultimate issue in the case; whether the test is based on a syllogism that has a major premise or assertion that a fact of legal interest is or is not true, while that fact is only probably true; whether the test related to mental state as opposed to physical condition; and whether the test attempts a scientific diagnosis of testimony and its veracity by mechanical means.”

The Supreme Court has also stated that to insure the reliability of test results, they must be “from generally accepted tests conducted under conditions which do not impeach the reliability of the testing procedure.” McGough, supra.

To establish a predicate for admitting the test results, without reliance on the statute, there should be evidence that:

(1) the theory underlying the photoelectric intoximeter test is valid and generally accepted as such;

(2) the intoximeter is a reliable instrument and generally accepted as such;

(3) the intoximeter test was administered by a qualified individual who could properly conduct the test and interpret the results; and

(4) the instrument used in conducting the test was in good working condition and the test was conducted in such a manner as to secure accurate results.

See, E. Imwinkelried, Evidentiary Foundations, p. 92 (1980).

The record does not support a finding that the evidentiary foundation was laid for the admission of appellant’s intoximeter test results. This is not a case in which independent proof of intoxication was so overwhelming as to bring it into the ambit of Estes v. State, 358 So.2d 1050 (Ala.Cr.App.1977), cert. denied, 358 So.2d 1057 (Ala.1978). This cause is reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Cornelius STANFORD v. STATE.
    3 Div. 824.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-210.

      Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James Rebarchak, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Cornelius Stanford, the appellant, was indicted and convicted for the possession of a forged instrument in the second degree in violation of Alabama Code Section 13A-9-6 (1975). Sentence was three years’ imprisonment. Stanford argues that he was denied his Sixth Amendment right to effective assistance of counsel because counsel withdrew her motion to suppress without consulting Stanford and because she did not object to anything during the trial.

In this state, the standard for constitutionally effective assistance of counsel continues to be the “farce or mockery test.” Taylor v. State, 291 Ala. 756, 760, 287 So.2d 901 (1973); Bass v. State, 417 So.2d 582, 583 (Ala.Cr.App.), cert. denied, Ex parte Bass, 417 So.2d 588 (Ala.1982); McKinnis v. State, 392 So.2d 1266, 1269 (Ala.Cr.App.1980), cert. denied, Ex parte McKinnis, 392 So.2d 1270 (Ala.1981). “The standard remains that appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice.” Bass, 417 So.2d at 583. “In reviewing an effective assistance of counsel allegation, this Court examines the actual performance of defense counsel and does not blindly accept speculative claims, and determines on the basis of the totality of the circumstances and the entire record” whether constitutionally effective assistance of counsel was rendered. United States v. Phillips, 664 F.2d 971, 1041 (5th Cir.1981). The defendant bears the burden of proving that he was denied the effective assistance of counsel, Phillips, 664 F.2d at 1040, and that he was prejudiced by counsel’s ineffectiveness. Daniels v. Maggio, 669 F.2d 1075, 1078-84 (5th Cir.1982). A reviewing court will not second guess or question tactical decisions and the trial strategies of defense counsel. “In the absence of a clear showing of improper or inadequate representation, such matters must be left to the judgment of trial counsel.” Hall v. State, 421 So.2d 1334, 1338 (Ala.Cr.App.1982).

I

Prior to trial, Stanford’s appointed trial attorney filed a motion to suppress the pretrial identification procedures and the in-court identification. A hearing was held on this motion during which three witnesses, including Stanford, testified. Following this hearing, defense counsel “withdrew” her motion to suppress before the trial judge ruled on the motion.

We find that this withdrawal of her challenge to the identifications did not render counsel ineffective. In order to prevail on a motion to suppress the in-court identifications, Stanford would have had to convince the court that the procedures employed, evaluated in light of the totality of the surrounding circumstances, were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The hearing produced no basis on which to find that the pretrial identifications were suggestive or improper. Even the total failure to object to an in-court identification does not amount to less than reasonably effective assistance of counsel where counsel’s failure to move to suppress was “the product of deliberate and informed decision, not oversight or inadvertence.” United States v. Smith, 551 F.2d 348, 353 (D.C.Cir.1976); Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981); Bonner v. State, 389 So.2d 174, 176 (Ala.Cr.App.1980). Counsel’s failure to object to the identification testimony does not constitute ineffective assistance of counsel where there is “little likelihood” that the pretrial identification procedures were “suggestive enough to give rise to irreparable mistaken identifications”, Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980); Smith, 551 F.2d at 355-56; or where the pretrial identification is not suspect and “probably would not have been suppressed.” United States ex rel. Ortiz v. Sielaff, 542 F.2d 377, 380 (7th Cir.1976). “Counsel is not obliged to make every conceivable motion in the faint hope that one may succeed.” Smith, 551 F.2d at 354, n. 7. Counsel is not required to make futile or frivolous motions. United States v. Talavera, 668 F.2d 625, 632 (1st Cir.1982).

Defense counsel is not required to file a motion to suppress in every case in which a pretrial identification of the accused has been made. “On the contrary, counsel must exercise his best professional judgment in deciding whether there are sufficient grounds for filing a motion. Were this not so counsel would be required to file a motion to suppress in every case, to protect himself against a charge of incompetency.” United States v. Brown, 663 F.2d 229, 231 (D.C.Cir.1981) (involving a motion to suppress evidence obtained by a warrantless search).

II

It is true that defense counsel made no objection during the actual course of the trial. However, she did file a motion to produce and a motion to suppress, invoke the “rule”, make opening and closing arguments, cross examine witnesses, call witnesses in Stanford’s defense, and submit written requested charges.

Although “counsel is expected to perform as an advocate as opposed to ami-cus curiae”, J. Cook, Constitutional Rights Of The Accused: Trial Rights Section 45, at 147 (1974), the failure to object to the introduction of evidence does not automatically render counsel’s assistance ineffective. Trial Rights, Section 45, at 141 n. 60.

Generally, objections to testimony are clearly a matter of trial strategy. Trammell v. State, 276 Ala. 689, 691, 166 So.2d 417 (1964); Woodyard v. State, 428 So.2d 136, 138 (Ala.Cr.App.1982), affirmed, 428 So.2d 138 (Ala.1983). Counsel’s failure to object “does not of itself constitute inadequate representation. Rather, the attorney’s failure to act must cause the trial to be reduced to a farce, sham, or mockery of justice.” Woodyard, 428 So.2d at 138.

In his brief, Stanford argues that “(t)he State’s attorney led her witnesses, got hearsay in, offered physical evidence, statements, photos, asked questions not based on fact, and on the whole, ran the show, but at no time can this writer ascertain defense counsel objecting to or contesting any of the evidence.” Despite this statement, no specific instance of counsel’s failure to object is cited. Here, as in United States v. Gibson, 690 F.2d 697, 703-04 (9th Cir.1982), Stanford neither made nor attempted a showing that trial counsel’s alleged errors prejudiced the defense. Claims of ineffective counsel based upon objections that should have been made often constitute nothing more than “Monday morning quarterbacking.” United States v. Beckman, 662 F.2d 661, 663 (10th Cir.1981). “The fact that counsel was not on his feet objecting to every question put by the prosecutor doesn’t prove counsel’s incompetence.” Beckman, 662 F.2d at 663. The failure to object to admissible evidence does not constitute ineffective assistance of counsel. United States v. Costa, 691 F.2d 1358, 1363 (11th Cir.1982).

We have searched the record and have found nothing so egregious as to constitute plain error.

“To return to defendant’s complaint of ineffective assistance of counsel, when the claim is premised on failure to object to evidentiary rulings ... we are reluctant to find ineffective assistance when the rulings by the court do not rise to the level of plain error. To do so would allow a defendant to whipsaw the government, claiming inadequate representation for failure to note objections when not saved by plain error. This is not to say that the cumulative effect of counsel’s failure to object to a number of clearly erroneous rulings could not demonstrate ineffective assistance even though there was no plain error.” United States v. DeWolf, 696 F.2d 1, 4 (1st Cir.1982).

Neither does our review of the record convince us that the cumulative effect of counsel’s failure to object to several improper questions by the prosecutor and answers by the witnesses demonstrate that counsel’s incompetency reduced the trial to a sham or mockery of justice.

Since whether to allow or disallow leading questions is discretionary with the trial court, Jones v. State, 292 Ala. 126, 128, 290 So.2d 165 (1974), trial counsel’s failure to object to the leading questions of the prosecutor will, usually, not amount to incompetence of counsel. Costa, 691 F.2d at 1363. Neither does counsel’s failure to object to hearsay always render counsel ineffective. Nelson v. Estelle, 642 F.2d 903 (5th Cir.1981).

The totality of the circumstances in considering what counsel did and did not do does not demonstrate that Stanford was deprived of the effective assistance of counsel. The trial was brief and simple. The testimony consumes only 54 pages of the transcript. The State’s case was based on the testimony of the bank cashier who stated that Stanford presented the forged check for payment. In her identification of Stanford, the cashier noted that he had a “gold-edged” front tooth and an “eye that wanders.” Stanford testified in his defense that he did not cash the check and denied that he was even present at the bank at the particular time. Four other witnesses verified Stanford’s alibi.

The Sixth Amendment does not require errorless counsel and counsel should not be judged ineffective by hindsight. Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir.1977). The record simply does not demonstrate that Stanford’s trial was fundamentally unfair or that it was reduced to a sham, farce, or mockery of justice.

The judgment of the circuit court is affirmed.

AFFIRMED.

TYSON, SAM W. TAYLOR and HUBERT TAYLOR, JJ., concur.

HARRIS, J., not sitting.


author: PER CURIAM. ADKINS, Justice,

text:
    Eric Jim CHANDLER, Appellant, v. STATE of Florida, Appellee.
    No. 60790.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Jan. 16, 1984.
    Richard Joseph Saliba of Saliba & McDo-nough, Vero Beach, for appellant.
    Jim Smith, Atty. Gen. and Robert L. Bo-gen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Eric Jim Chandler appeals his convictions and sentences of death for first-degree murder. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions but vacate the death sentences and remand for resen-tencing.

An Indian River County grand jury returned an eight-count indictment charging Chandler with two counts of first-degree murder, two counts of robbery with a deadly weapon, three counts of trafficking in stolen property, and one count of aggravated assault. The charges arose from the robbery of an elderly couple and their death by bludgeoning. The victims, Harold and Rachel Steinberger, were found lying face down, Mr. Steinberger’s hands bound behind him, in a wooded area behind their residence. Each victim had also been stabbed numerous times in the back. The jury found Chandler guilty of all counts and recommended the death penalty. The trial court concurred with the jury’s advisory sentence. In addition, the defendant received three ten year sentences for trafficking in stolen property and a five year sentence for aggravated assault.

Chandler raises a number of issues in this appeal. Having examined and heard argument on each of them, we find only two of these issues merit extensive discussion.

The first issue we address relates to admission, pursuant to subsection 90.-404(2), Florida Statutes (1979), and our decision in Williams v. State, 110 So.2d 654 (Fla.1959), of evidence of Chandler’s previous conviction of crimes similar to those charged in the instant case. In an effort to establish identity, the state submitted evidence of Chandler’s conviction in Texas approximately seven years prior to his trial below. The victim in the Texas criminal episode had been abducted against his will, taken to a remote area, and, with his hands tied behind his back, beaten about the head with a blunt instrument, and robbed. Chandler argues that here, as in Drake v. State, 400 So.2d 1217 (Fla.1981), the coincidence of one or two details, such as the tying of the victims’ hands behind their backs, is not sufficiently relevant to the issue of identity to be admissible under subsection 90.404(2) and the Williams rule. In Drake, however, there were a number of significant dissimilarities between the collateral crime and the crime charged, including the fact that the previous crime involved only sexual assault while the crime charged later was murder with little, if any, evidence of sexual abuse. The dissimilarities pointed to here, such as time of day the crimes were committed and the specific blunt instrument used, suggest differences in the opportunities with which Chandler was faced rather than significant differences in modus operandi as in Drake.

The common points shared by Chandler’s Texas crime and the crime charged below may not be sufficiently unique or unusual, when considered individually, to establish a common modus operandi. We find, however, no error in the trial court’s determination that these points, considered one with another, establish a sufficiently unique pattern of criminal activity to justify admission of evidence of Chandler’s collateral crime as relevant to the issue of identity in the crime charged. In so concluding, we recognize that the passage of several years between the collateral crime and the crime charged has often been reckoned to destroy the relevance of the previous crime to the issue of identity. Where, as in this case, however, the defendant spent almost the entire time between the two offenses incarcerated for the first crime, the relevance of that collateral crime to the proof of a common modus operandi is preserved, if not enhanced. See Rossi v. State, 416 So.2d 1166 (Fla. 4th DCA 1982).

We turn now to the issue of whether the trial court, in dismissing certain jurors for cause over the defendant’s objection, violated the rule established by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The line of questioning employed during voir dire by the prosecutors below suggests that some confusion exists as to the precise standard set forth in Witherspoon. The last paragraph of note 21 of that opinion is unambiguous:

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).

Examination of the voir dire record before us indicates that at least two of the venire members for whom the state was granted cause challenges never came close to expressing the unyielding conviction and rigidity of opinion regarding the death penalty which would allow their excusal for cause under the Witherspoon standard set out above. Both these venirewomen stated unequivocally that their feelings toward capital punishment would not affect their ability to return a verdict of guilty, if such a verdict were warranted by the evidence. As for the penalty phase, it is not enough that a prospective juror “might go towards” life imprisonment rather than death. It is not enough that he or she “probably would lean towards life rather than death, if [the aggravating and mitigating circumstances] were equal.” The ex-cusal for cause of these two individuals clearly violates the guidelines of Wither-spoon.

The state urges, however, that any error in the granting of cause challenges was purely harmless. The argument is made that, since the state used a total of only eight of the eighteen peremptory challenges available to it, the challenged members of the venire would 'have been excused peremptorily had the trial court refused to grant cause challenges. We do not deny that this harmless error theory has a certain logical appeal. Nevertheless, our analysis of the case law, especially the decision in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), compels us to conclude that the dismissals for cause complained of by Chandler cannot be sanctioned as “harmless error,” regardless of whether the state, at trial, could have peremptorily challenged the same jurors.

In Davis the Supreme Court of Georgia acknowledged that one prospective juror had been excluded in violation of the With-erspoon standard. Nevertheless, the court affirmed the conviction and death sentence, reasoning that the exclusion of a single death-scrupled venireman did not deny the petitioner a jury representing a cross-section of the community. In reversing the state court decision the majority opinion of the United States Supreme Court stated flatly:

Unless a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,” he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.

Id. at 123, 97 S.Ct. at 400 (citations omitted, emphasis supplied). As noted in a dissenting opinion by Justices Blackman and Rehnquist and Chief Justice Burger, the plain language of the majority in Davis precludes application of a harmless-error test. Moreover, the Fifth Circuit Court of Appeals has addressed itself to the very situation faced in the case before us. In Burns v. Estelle, 592 F.2d 1297 (5th Cir.1979), the fifth circuit summarized Wither-spoon and its progeny, including Davis, as providing, inter alia:

2. No jury from which even one person has been excused on broader Wither-spoon -type grounds ... may impose a death penalty or sit in a case where it may be imposed, regardless of whether an available peremptory challenge might have reached him.

Id. at 1300. See also Moore v. Estelle, 670 F.2d 56 (5th Cir.1982).

Our understanding of these federal court decisions is confirmed by the decision of the Georgia Supreme Court in Blankenship v. State, 280 S.E.2d 623 (Ga.1981). In earlier decisions, including Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), cited by the state here, the Georgia high court had adopted the view that Witherspoon -type error could be harmless when the challenged juror(s) could have been reached by unused peremptory challenges. Upon reexamination of Davis and Burns, the court was forced to reverse its prior position:

[Having reexamined Davis and Burns,] we now hold that in cases where the death penalty is imposed, the improper exclusion from the initial panel of an otherwise qualified juror in violation of Witherspoon v. Illinois is harmful error regardless of whether the state utilized all of its peremptory strikes.

Blankenship, 280 S.E.2d at 623 (citations omitted).

Accordingly, we affirm the convictions, but, because of the erroneous exclusion for cause of the aforementioned two prospective jurors, we vacate the sentences of death imposed below and remand for resen-tencing. Such resentencing shall, of course, include an advisory verdict to be rendered by a jury chosen in compliance with the holding expressed herein.

It is so ordered.

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

ADKINS, J., concurs in part and dissents in part with an opinion.

ADKINS, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of guilt and dissent to the order vacating the sentence.

It is impossible for an appellate court to examine the cold words in a record and make an independent judgment that a juror is impartial. The trial judge is in a position to observe the demeanor of the juror during the interrogation and, from his observations, can form an opinion as to the attitude of the juror. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), it is stated that a juror may be excused for cause if he could not consider a penalty of death, or, if his attitude against the death penalty would be such as to interfere with the impartiality required to sit as a juror in the guilt phase of the trial.

In Christopher v. State, 407 So.2d 198, 200 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982), the following question was presented to us for consideration on appeal:

Did the trial court systematically exclude for cause prospective jurors who did not state they were irrevocably committed to vote against the death penalty, but voiced only general, indefinite reservations to capital punishment, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and article I, sections 9 and 16 of the Florida Constitution?

In disposing of this issue, we said:

As to the first issue, the law is settled that the competency of a challenged jur- or is a mixed question of law and fact and is to be determined by the trial judge in his discretion. Manifest error must be demonstrated before the judge’s decision will be disturbed. Singer v. State, 109 So.2d 7, 22 (Fla.1959); Ashley v. State, 370 So.2d 1191, 1194 (Fla. 3d DCA 1979). No such error has been demonstrated in the case sub judice.

407 So.2d at 200.

The trial judge, being in a position to study the demeanor of the jurors and hear their responses first-hand, made factual findings and no manifest error has been demonstrated in this regard. Challenges for cause are appropriate if a juror expresses such reservations about capital punishment as would prevent the juror from making an impartial decision on guilt or innocence. Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); 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).

In Williams v. State, 228 So.2d 377, 379 (Fla.1969), we said:

The Witherspoon case, however, makes it equally clear that the State is also entitled to a jury that is similarly impartial and neutral as to penalty. In essence then, Witherspoon recognizes that both the prosecution and the defense in a capital case are entitled to jurors who are impartial as to penalty. A prospective juror is considered impartial, even though he may have a natural bias against capital punishment, so long as his bias is not so strong as to preclude or prevent him from at least considering the issue of punishment. The decision leaves unaffected the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about the wisdom of the death sentence would prevent them from making an impartial decision as to defendant’s guilt.

There is nothing in the record to suggest that the jurors selected were not in every way competent, qualified, and unbiased. If a qualified prospective juror is improperly rejected by the trial court, the trial should not be reversed unless through rejecting the qualified person, the necessity of accepting an objectionable juror has been created. It should be enough if it appears that the case has been tried by an impartial jury. Leaptrot v. State, 51 Fla. 57, 40 So. 616 (1906).

Section 924.33, Florida Statutes (1981), provides that no judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.

The records disclose that the state exercised only eight peremptory challenges out of eighteen that the trial court gave each side. The state had ten peremptory challenges left. Had the trial court denied the prosecution’s challenge to any of the jurors in question for cause, the prosecution would have used those peremptory challenges it had remaining.

Even if the excusal of the jurors was error, it was harmless beyond a reasonable doubt. The United States Supreme Court has held that constitutional error may be harmless if the error is demonstrated to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

I would affirm the judgment and the sentence.

      . Chandler raised 22 issues on this appeal in addition to the 2 we discuss in the text of this opinion. The main points argued under at least 5 of these 22 issues have been conclusively dealt with by prior decisions of this Court. These issues, followed by the decisions in which they have previously been addressed, are:
      1) Whether the trial court erred by denying appellant’s motion for presentence investigation. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).
      2) Whether the trial court erred in denying appellant’s motion to dismiss the indictment and/or declare the Florida death penalty to be unconstitutional. Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Fleming v. State, 374 So.2d 954 (Fla.1979).
      3) Whether the trial court erred by refusing to order the state to elect its theory of prosecution between felony murder and premeditation. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Welty v. State, 402 So.2d 1159 (Fla.1981).
      4) Whether the trial court erred in denying appellant’s motion for a statement of particulars relative to aggravating circumstances. Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982).
      5) Whether § 925.036, Fla.Stat., is unconstitutional in that it lacks a rational basis for the purpose for which it was enacted. Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981).
      Three other issues in appellant’s brief are directed toward purported errors in instructions of in the refusal to give requested instructions. We find no merit to these issues. Similarly, we find no error in the trial court’s failure to grant a judgment of acquittal, nor in its findings in support of the death sentence. Substantial competent evidence exists in the record to support Chandler's convictions. Nor do we find, notwithstanding appellant’s arguments, reversible error by the trial court in any of the following:
      1) Denial of a Richardson inquiry relative to a purported change in the testimony of Dr. Cox, one of the pathologists called by the state;
      2) Limiting voir dire examination to one attorney for each side;
      3) Denial of a mistrial relative to the admission of certain allegedly inflammatory photographs of the bodies of the victims;
      4) Limiting the cross-examination of Lowell Wolfe, a state witness;
      5) A comment made by the court in sustaining an objection to a voir dire question posed by defense counsel;
      6) Admonishing defense counsel in the presence of the jury for personal remarks directed against the prosecutor;
      7) Refusal to grant funds to the appellant for various expert witnesses;
      8) Denial of motions for change of venue and for individual voir dire concerning publicity;
      9) Refusal to direct a "verdict" of life imprisonment following the state’s presentation of evidence during the sentencing phase;
      10) Denial of a motion for individual, sequestered voir dire.

      . The significant common features of Chandler’s previous crime and those charged here, as found by the trial court below, included:
      1) In each, a victim’s hands were bound behind him with an item belonging to the victim — in one case, a necktie, in the other, the victim’s dog leash;
      2) In each, the victims were first forcibly abducted to a relatively remote location;
      3) The victims of each crime were beaten repeatedly about the head with a blunt instrument;
      4) The victims in both instances were robbed;
      5) The defendant utilized, to some extent, both a knife and a blunt instrument. The apparent difference that the Steinbergers were stabbed repeatedly may be explained by the fact that Chandler’s previous victim, who was not stabbed, had survived the beating to testify against Chandler.

      . The voir dire responses of venirewomen Brin-son and Bittner clearly fail to provide any grounds, within the bounds of Witherspoon, for their excusal. A third prospective juror, Ms. Thomas, gave sharply conflicting responses to opposing counsel. Such ambiguity might lead us to conclude that Ms. Thomas had not shown unmistakably her inability to serve as an impartial juror in a capital felony case. Realizing, however, that the trial court was better able to observe Ms. Thomas’ depth of conviction regarding the death penalty, we defer to his estimation of her ability to serve impartially.

      . The following exchange between the state attorney and Mrs. Brinson took place during voir dire:
      Mr. Stone: Well, let me ask it to you this way: Do you feel like you would hesitate in any way to render a verdict of guilty if you thought that he could be sentenced to death? Mrs. Brinson: If it was proved to me beyond a reasonable doubt or whatever that he was guilty by the evidence, I would vote guilty, death or no—
      Mr. Stone: Now if you were in the advisory part of the sentence, is your feeling about the death penalty such that you would tend to be more inclined to vote life than you would death?
      Mrs. Brinson: I might go towards life sentence.

      . From voir dire examination of Miss Bittner by the assistant state attorney:
      Mr. Midelis: That’s your province. What we need to know is because of your beliefs, would you have a tendency to recommend life? That’s the basic question and the basic issue.
      Miss Bittner: If my opinion can be imposed on that, I would probably lean towards life rather than death, if they were equal, if the mitigating and the aggravating circumstances were weighed equally.


author: McDonald, justice.

text:
    Carlos CERVANTES, Petitioner, v. STATE of Florida, Respondent.
    No. 62350.
    Supreme Court of Florida.
    Oct. 6, 1983.
    Rehearing Denied Jan. 16, 1984.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.
   McDonald, justice.

We accepted Cervantes v. State, 415 So.2d 105 (Fla. 3d DCA 1982), for review because of conflict with Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and quash Cervantes.

Cervantes was tried without a jury and found guilty of two crimes. The court withheld adjudication of guilt. In a separate order, however, the court placed Cervantes on probation for fourteen months. That order did not describe which conviction, or whether both, constituted the predicate for the order.

Relying on Dorfman v. State, 351 So.2d 954 (Fla.1977), Cervantes claimed the probation order was invalid as a general sentence for two offenses. In Dorfman we precluded the use of one sentence for an accumulation of separate adjudications of guilt. In the instant case, on the other hand, the Third District Court of Appeal held that it is not improper to have one probation order predicated on two findings of guilt because a probation order is not a sentence and, therefore, Dorfman does not apply. The Fourth District Court of Appeal in Pearson, however, held that a general order of probation predicated upon more than one conviction of criminal activity cannot stand and that there must be a separate order of probation for each offense.

We refuse to involve ourselves with another esoteric discussion of whether an order of probation is a sentence. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). We hold that the policy reasons requiring separate sentences, as described in Dorfman, apply to orders of probation. We therefore approve Pearson and quash the opinion of the district court on this issue in this cause. The cause is remanded to the district court with directions to remand to the trial court for a corrected probation order.

It is so ordered.

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

       Not at issue and not disturbed is the affirmance of the denial to suppress.


author: EHRLICH, Justice. ALDERMAN, Chief Justice,

text:
    Nathaniel MILLER, Petitioner, v. Gerald TOLES, Respondent.
    No. 61665.
    Supreme Court of Florida.
    Oct. 13, 1983.
    Rehearing Denied Jan. 16, 1984.

      Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, and Earl H. Archer, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondent.
   EHRLICH, Justice.

Petitioner is before this Court appealing denial by the circuit court of a petition for writ of habeas corpus and the subsequent action of the district court of appeal affirming that denial. Miller v. Toles, 407 So.2d 1069 (Fla. 4th DCA 1981). The district court cited its own earlier decision, State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981) and acknowledged the conflict created with Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 634 (Fla.1980). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. For the reasons stated herein, we quash the decision of the court below.

Petitioner, a parolee, was arrested on drug charges. Approximately six weeks later, a warrant was issued charging violation of parole based on the conduct which triggered the arrest. Petitioner was arrested on April 20, 1981, but no hearing was held in the following ten days. Eleven days after the arrest, a preliminary revocation of probation hearing was held; probable cause was found and petitioner was bound over. Petitioner seeks habeas relief based on the provisions of sections 949.10 and 949.11, Florida Statutes (1979) which allows incarceration of a felon who has been placed on parole if he is arrested on a felony charge, but also requires a hearing to be held within ten days of the arrest. The conflict in the courts below focuses on the consequences of failure to provide that hearing within the stipulated time.

The First District Court of Appeal, addressing a similar petition in Carson v. Bishop, construed sections 949.10 and 949.-11 of the Florida Statutes (1979) as a specific exception to other statutory provisions for revocation of parole or probation. Focusing on the significant potential for abuse inherent in allowing the Florida Parole and Probation Commission to proceed under both statutes, the district court reasoned:

In a case such as this, when a parolee is arrested for a felony, he could simply be allowed to remain in jail for ten days without any attempt by the Commission to hold a hearing and then be released pursuant to Section 949.11, only to be imprisoned again under Section 949.22 for the same alleged parole violation while the Commission prepares to hold its hearing “as soon as practicable.”

378 So.2d at 883.

In State v. Sylvester, the Fourth District Court of Appeal, faced with similar facts, reasoned that failure to provide a hearing pursuant to section 949.11 triggered automatic release from the automatic temporary revocation of parole or probation authorized by section 949.10. Such a failure and subsequent release would not, however, prohibit application of the general parole revocation statutes at any later date. The lower court rejected the reasoning of the First District because it

would allow the ludicrous result of affording greater protection to a paroled felon who commits a subsequent felony than a parolee who commits a subsequent misdemeanor or a mere technical violation of parole, e.g. the failure to report a change of residence.

401 So.2d 1125.

We cannot agree with the Fourth District’s interpretation of these statutes. The constitutional ramifications of sections 949.10, 949.11 and 949.12 were thoroughly discussed by this Court in Bernhardt v. State, 288 So.2d 490 (Fla.1974). In upholding the constitutionality of these provisions, the Court particularly addressed (among others) claims that these procedures failed to meet the minimal due process requirements for parole or probation revocation announced by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Bernhardt argued that the automatic temporary revocation denied him the right to a preliminary hearing on probable cause. The Court responded:

The instant proceedings provided pursuant to Sections 949.10, 949.11, and 948.06 clearly accord with the mandates of Morrisey and Gagnon. As afore-stated, prior to arrest for felony, probable cause that a probationer has committed a felony must exist, and commission of a felony is clearly in violation of condition H of appellant’s probation. The sole purpose of the preliminary hearing is to determine whether there is probable cause to believe that a probationer or parolee has violated the terms of his probation or parole.

288 So.2d at 500. Thus, far from granting a parolee or probationer arrested for alleged commission of a felony greater protection than is afforded under chapters 947 and 948, section 949.10 denies the parolee or probationer arrested thereunder a preliminary probable cause hearing, an important element in the due process rights to be afforded all who face possible revocation of probation or parole. Gagnon v. Scarpelli; Morrisey v. Brewer.

Additionally, section 949.12 precludes consideration for release, with or without bail, a right guaranteed in most instances by article I, section 14 of the Florida Constitution and extended to those facing potential parole or probation revocation by sections 947.22 and 948.06, Florida Statutes (1979).

The Fourth District accurately enunciated the clear and compelling state interest underlying sections 949.10, 949.11 and 949.12, but the quid pro quo for affording a lesser measure of due process and for curtailing certain rights granted others who violate conditions of probation or parole is the expedited final hearing afforded by section 949.11. Without that provision, the statute would be subject to constitutional attack as imposing an automatic forfeit of liberty interests upon arrest, not conviction, for a felony.

To allow the Commission to proceed sequentially under both chapters 949 and 947 or 948 would, in effect, automatically impose a ten-day sentence on any parolee or probationer arrested on a felony charge simply for being arrested. Such an arbitrary taking of liberty is unarguably a violation of due process rights protected by the fourteenth amendment of the United States Constitution and article I, section 9 of the Florida Constitution. Having been granted the statutory short-cut of arresting a parolee without affording him a probable cause hearing, the Commission is bound to follow the procedures set forth in section 949.11. Failure to do so must waive further action pursuant to the arrest by the Commission, just as failure of the state to observe a defendant’s rights under the Speedy Trial Rule results in dismissal of all charges. In contrast, however, the consequences of the Commission’s failure to follow procedures set forth in section 949.11 are unlikely to be as final or as burdensome to society as the results of failure to observe the Speedy Trial Rule. Although the Commission is precluded from proceeding under chapters 947 or 948, the arrested individual is still committed to the jurisdiction of the court in which charges were filed, subject to the imposition of bail or incarceration pending trial on those charges. Conviction, as opposed to arrest, on the subsequent felony charges would give rise to further proceedings before the Commission.

Ultimately, the ten-day limit imposed by section 949.11 creates minimal danger for society and imposes little hardship on the Commission which, provided with the evidence supporting the arrest, should require little or no investigation to prepare for the hearing. If the ten-day limit prejudices anyone at all, it is the accused, who must, in effect, defend himself against criminal charges within ten days of arrest. In the balancing of interests which must be protected, we find that the interests of all concerned, society, the Commission and the accused, are best served by embracing the interpretation of the statute propounded by the First District.

Accordingly, the writ of habeas corpus is granted, and the decision of the Fourth District Court is quashed.

It is so ordered.

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

ALDERMAN, C.J., dissents with an opinion, in which McDONALD, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

Although we do have discretionary jurisdiction over this ease on the basis of conflict of decisions, in view of the fact the statutes which the majority opinion construes were repealed in 1982, I believe the Court should exercise its discretion and deny review rather than writing a decision which will have no jurisprudential value.

Moreover, I disagree with the majority’s resolution of this case on the merits. The District Court of Appeal, Fourth District, correctly affirmed the trial court’s order denying Miller’s petition for writ of habeas corpus, and its decision should be approved. The Fourth District relied on its recent decision in State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981), as authority for denial of Miller’s petition.

The Fourth District in Sylvester correctly interpreted sections 949.10, 949.11, and 949.12, Florida Statutes (1979), as read in conjunction with sections 947.22 and 947.-23. It explained that section 949.10 provides that when a parolee is arrested for the commission of a subsequent felony, he shall have his parole immediately revoked for a temporary period of ten days and found that this statute was designed to protect the public from the continued liberty of persons with a proclivity to commit crimes. This automatic, temporary revocation is limited by section 949.11 which requires that a hearing be held within ten days if the state wants to retain the parolee in custody under these statutory provisions. If the hearing is not held within the specified time, then the parolee must be released from incarceration resulting from the automatic, temporary revocation. The Fourth District concluded that this does not mean that he is forever discharged from revocation proceedings arising out of the commission of a felony. Rather, it merely means that he may no longer be retained without further formal action by the Parole and Probation Commission pursuant to sections 947.22 and 947.23. As the Fourth District pointed out in Sylvester, to interpret sections 949.10 and 949.11 as requiring a parolee’s discharge forever from revocation arising out of the commission of a subsequent felony, “would allow the ludicrous result of affording greater protection to a paroled felon who commits a subsequent felony than a parolee who commits a subsequent misdemeanor or a mere technical violation of parole, e.g. the failure to report a change of residence.” 401 So.2d at 1125. The district court continued:

Such an interpretation would mean that a paroled felon must be released from custody if no hearing is conducted within ten days of his arrest for the commission of a new felony; a mere technical parole violator, or a parolee who violates his parole by committing a misdemeanor, would be subject to continued incarceration until a hearing could be held “as soon as practicable,” even though incarceration exceeded ten days.

401 So.2d at 1125-26. The Fourth District concluded that it could not ascribe such an absurd intent to the legislature, nor should we.

Since the statutes in question have been repealed, I would deny review. Alternatively, I would approve the decision of the district court affirming the trial court’s order denying Miller’s petition for writ of habeas corpus.

McDONALD, J., concurs.

      . Florida law provides:
      949.10 Subsequent felony arrest of felony parolee or probationer prima facie evidence of violation. — The subsequent arrest on a felony charge, in this state, of any person who has been placed on parole or probation following a finding of guilt of any felony, or a plea of guilty or nolo contendere to any felony, shall be prima facie evidence of the violation of the terms and conditions of such parole or probation. Upon such arrest, the parole agreement or probation order shall immediately be temporarily revoked and such person shall remain in custody until a hearing by the Parole and Probation Commission or the court.
      949.11 Hearing — Any person whose parole or probation agreement is revoked pursuant to s. 949.10 shall be given a hearing pursuant to s. 947.23 or s. 948.06. The hearing shall be held within 10 days from the date of such arrest, the provisions of s. 947.23 or s. 948.06 notwithstanding. Failure of the commission or the court to hold the hearing within 10 days from the date of arrest shall cause the immediate release of such person from incarceration on the temporary revocation.
      These sections were repealed in 1982. Ch. 82-171, § 18, Laws of Fla.

      . The general provisions for revocation of parole and probation are found in chapters 947 and 948 of Florida Statutes. Relevant portions provide:
      947.23 Actions of commission upon arrest of parolee. — (1) As soon as practicable after the arrest of a person charged with violation of the terms and conditions of his parole, the parolee shall be afforded a prompt preliminary hearing, conducted by a member of the commission or its duly authorized representative, at or near the place of violation or arrest to determine if there is probable cause or reasonable grounds to believe that the parolee has committed a violation of the terms or conditions of his parole.
      948.06 Violation of probation; revocation; modification; continuance. — (1) Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation supervisor may arrest such probationer without warrant wherever found, and forthwith shall return him to the court granting such probation.... The court, upon the probationer being brought before it, shall advise him of such charge of violation .... If such violation of probation is not admitted by the probationer, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of probation violation. If such charge is not at said time admitted by the probationer and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer an opportunity to be fully heard on his behalf in person or by counsel.


author: OVERTON, Justice. ADKINS, Justice,

text:
    Carl T. TRAUGER, et al., Appellants, v. A.J. SPAGNOL LUMBER COMPANY, INC., Appellee.
    No. 63130.
    Supreme Court of Florida.
    Nov. 10, 1983.
    Rehearing Denied Jan. 16, 1984.
    Julian R. Benjamin of Therrel, Baisden, Stanton, Wood and Setlin, Miami Beach, for appellants.
    Robert B. Dunckel of Adler, Tolar & Adler, Fort Lauderdale, for appellee.
   OVERTON, Justice.

This is an appeal from the decision of the Fourth District Court of Appeal in A.J. Spagnol Lumber Co. v. Trauger, 423 So.2d 956 (Fla. 4th DCA 1982), which held that section 55.05, Florida Statutes (1977), violates the full faith and credit clause of the United States Constitution to the extent that it prohibits enforcement of a foreign confessed judgment. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the decision of the district court.

The facts reflect that appellee, Spagnol, furnished building supplies on credit to appellant, Trauger. Payment for these commercial transactions was secured by a series of promissory notes which, consistent with Pennsylvania law, Pa.Stat.Ann. tit. 12, § 739 (Purdon 1957), contained cognovit provisions authorizing confession of judgment in the event of default on the notes. Trauger defaulted, and Spagnol secured a final judgment against him in a Pennsylvania court. Trauger left Pennsylvania before the judgment could be enforced, going first to Puerto Rico and eventually coming to this state. When Spagnol located Trau-ger, it filed a Florida action to enforce the Pennsylvania judgment. Trauger answered and asserted as an affirmative defense that the Pennsylvania judgment was null and void under section 55.05 because it was based on a confession of judgment and, consequently, was secured without personal service.

The trial court found merit in Trauger’s affirmative defense and, in a judgment on the pleadings, held that the judgment sought to be enforced was void in this state. The district court reversed, concluding in a thorough opinion that the legislature intended section 55.05 to operate to forbid confessions of judgment in Florida and to prohibit Florida courts from enforcing foreign judgments based on confessions of judgment. The district court held that the portion of the statute applying to foreign judgments was unconstitutional under both Florida and federal ease law construing the full faith and credit clause of the United States Constitution. We agree.

The full faith and credit clause is part of an intricate constitutional scheme to weld the states of this country into a strong union. As expressed by the United States Supreme Court in Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-77, 56 S.Ct. 229, 234, 80 L.Ed. 220 (1935):

The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. That purpose ought not lightly to be set aside out of deference to a local policy which, if it exists, would seem to be too trivial to merit serious consideration when weighed against the policy of the constitutional provision and the interest of the state whose judgment is challenged.

The clause requires each state to recognize the judgments obtained in courts of sister states in order to prevent one state from selectively enforcing the laws of the others. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed, 488 (1947). The full faith and credit clause does not, however, protect a judgment which was entered by a court that did not have personal or subject matter jurisdiction in the action, Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940), or where the judgment has been paid, discharged, or procured by fraud. Milwaukee County.

Trauger contends that this judgment, which he concedes is proper under the laws of Pennsylvania and constitutional under the United States Constitution, should be denied full faith and credit because a judgment based on a confession of judgment is contrary to the public policy of the State of Florida, as expressed in section 55.05. An action to recover on a foreign judgment is completely independent from the original cause of action. It is the judgment from the other state which forms the basis for the cause of action, and the validity of the claim on which the foreign judgment was entered is not open to inquiry. Milliken. Although the Florida legislature has the power to prohibit Florida courts from recognizing confessions of judgment under the law of this state, it violates the full faith and credit clause by extending this prohibition to interfere with the laws of other states which allow the use of confessions of judgment. The courts of Florida cannot be empowered by the legislature to review the underlying cause of action when a person seeks to enforce a foreign judgment in this state.

Trauger’s counsel conceded in oral argument that Spagnol’s judgment was properly entered in Pennsylvania under the laws of that state, that the Pennsylvania court had jurisdiction of the original cause, that the judgment has not been satisfied or discharged, and that the judgment was not obtained by fraudulent means. The State of Florida, therefore, is obligated under the full faith and credit clause to provide a proper process to enforce this judgment. Section 55.05, to the extent it would declare this foreign judgment void in Florida, is unconstitutional, and we affirm the decision of the Fourth District Court of Appeal.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

specially concurring.

While I agree with the majority that section 55.05, Florida Statutes, is unconstitutional to the extent that it would prevent the Pennsylvania judgment from receiving full faith and credit, I must take exception with the broad statement that all foreign judgments rendered by a court with personal and subject matter jurisdiction which have not been paid, discharged, or procured by fraud must be given full faith and credit. The United States Supreme Court has long recognized that there may be exceptions to the requirement that a foreign judgment must be given full faith and credit when to do so would violate the policies of the forum state. See, e.g., Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 502, 59 S.Ct. 629, 633, 83 L.Ed. 940 (1939), and cases cited therein. The Milwaukee County decision cited by the majority recognized that exceptions to full faith and credit exist, 296 U.S. at 272-73, 56 S.Ct. at 231-32, and the decision did not stand for the proposition that all foreign judgments must receive full faith and credit so much as it held that, in particular circumstances presented, the policies of the forum state were not so strong as to justify an exception to full faith and credit.

While exceptions to full faith and credit do exist, they have met, however, with little approval from the Supreme Court. Williams v. North Carolina, 317 U.S. 287, 294-95, 63 S.Ct. 207, 210-212, 87 L.Ed. 279 (1942); see also Thomas v. Washington Gas Light Co., 448 U.S. 261, 295, 100 S.Ct. 2647, 2668, 65 L.Ed.2d 757 (1980) (Relinquish J., dissenting). In the interests of federal unity and respect for sister states, foreign judgments are to be accorded full faith and credit in almost every instance. In the case of a foreign money judgment upon a civil suit, such as the Pennsylvania judgment at issue here, the Supreme Court has indicated on several occasions that rarely, if ever, would an exception to full faith and credit be recognized. E.g., Morris v. Jones, 329 U.S. 545, 553, 67 S.Ct. 451, 457, 91 L.Ed. 488 (1947); Milwaukee County, 296 U.S. at 276, 56 S.Ct. at 233. The language of these decisions, when coupled with the fact that the judgment at issue was validly rendered under the laws of Pennsylvania and the United States, leads to the conclusion that the State of Florida’s policy against confessed judgments is not so strong as to warrant an exception to the requirement of full faith and credit. For these reasons, I concur in the result reached in the majority opinion.

      . Section 55.05 provides:
      All powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error, heretofore made or to be made hereafter by any person whatsoever within or without this state, before such action brought, shall be absolutely null and void.

      . Art. IV, § 1, United States Constitution.

      . See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972).