Eugene ROBERSON, Appellant, v. STATE of Florida, Appellee, 258 So. 2d 257

PER CURIAM. Appellant, hereinafter referred to as defendant, was convicted of murder in the first degree without recommendation of mercy in the death of Henry W. Collins and was sentenced to death. The testimony adduced at the trial established that on October 11, 1969, defendant’s estranged wife was riding in the car with Collins when the defendant passed them, turned around and followed them. Collins drove to his brother’s home and the defendant stopped nearby. When Collins got out of his car, the defendant went over and shot Collins in the head with a shotgun.

Defendant had earlier made a statement in front of his daughter that he was planning to kill Collins. Shortly after the shooting, defendant was found leaving town with a shotgun in his car with one shell expended. Defendant pleaded not guilty to the charge of murder in the first degree. His first trial resulted in a verdict of guilty with recommendation of mercy. A life sentence was imposed in accordance with the Statute. Thereafter, defendant’s motion for a new trial, based upon the failure to submit written instructions to the jury, was granted and the cause was set for retrial.

Defendant objected to being retried, claiming that it placed him in double jeopardy contrary to North Carolina v. Pearce. The motion was denied and the cause proceeded to trial. The jury at the second trial returned a verdict of guilty but without recommendation of mercy. Prior to sentencing, defendant again raised the double jeopardy claim and added the further ground of a violation of due process under the Fifth and Fourteenth Amendments of the United States Constitution. His objections were overruled and he was given a death sentence.

On appeal to this Court defendant contends: (1) that the trial court committed reversible error by refusing to grant a mistrial on the grounds that reference was made, both in opening argument and on direct examination of the defendant's wife, to prior marital fights; (2) that the remarks of the prosecuting attorney constituted “comment on failure to testify”; and (3) that defendant’s right to due process of law under the Fifth and Fourteenth Amendments, United States Constitution, were violated by his retrial upon a first degree murder charge subjecting him to a death penalty when he had previously received a recommendation of mercy and life sentence and both trials were before a jury.

Defendant’s contention regarding point one, supra, is that evidence of prior fights between defendant and his wife had no relevance to the charge of murder of Henry Collins and should not have been admitted into evidence. Defendant asserts that the evidence was inadmissible because its sole purpose was to establish the character or propensity of the accused for violence. We disagree. Defendant’s relationship with his estranged wife was very much involved with the shooting.

Her fear of the defendant, resulting from their prior fights, caused her not to go with him as he had requested earlier on the evening of the shooting. This led to the chain of events which resulted in the death of Collins. Defendant’s second contention, supra, is based on the following statement made by the prosecution in closing argument : “I really hope not because it is only in this courtroom that a defendant, like Roberson, given all the rights that they are entitled to, that society on the other hand are given the same rights of the people who have to live together. We must abide by the rules.

So must you, Eugene Roberson, abide by the rules. The rules say when you kill from an unlawful or premeditated design, the law fixes the penalty for that. You are to determine as you sit there now, as you examine this, I think the only question you have from the evidence is to ask yourselves wherein lies the recommendation? Wherein lies the excuse for you to interfere with the penalty of the law.” Defendant states that the use of the word “excuse” in the foregoing statement to the jury constitutes an indirect comment on his failure to testify. We are unable to find any merit in this contention.

Nothing in the statement of counsel for the State constitutes a reference to defendant’s failure to testify. The third point raised by defendant in his appeal has merit. The imposition of the death sentence in this case conflicts with the principles announced in North Carolina v. Pearce. The Pearce case holds that if a court pronounces a more harsh sentence upon a defendant in a second trial than the one imposed at a first trial, some reason to justify the harsher sentence must appear in the court record.

Pearce does not prohibit imposition of a more severe sentence, even a death sentence, on second trial if the facts before the court warrant it. It takes no imagination to recognize that additional evidence produced at a second trial could dissolve the basis upon which a prior jury had recommended mercy.

Florida Statutes § 920.09, F.S.A., which was effective at the time of the first and second trials in these proceedings, provides as follows: “When a new trial is granted such new trial shall proceed in all respects as if no former trial had been had, but where an offense is divided into degrees and the defendant has been convicted of a lesser degree, he cannot thereafter be prosecuted for a higher degree of the same offense.” The relevant Rule of Criminal Procedure is 1.640(a), 33 F.S.A.: “When a new trial is granted, the new trial shall proceed in all respects as if no former trial had been had except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, he cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense than that of which he was convicted.” It is our duty here to reconcile the above Statute and Rule With the principles announced in the Pearce case.

It has been suggested that since the determination of mercy is made by two separate juries, the second jury could deny a mercy recommendation on the same facts as might have been used by the first jury to recommend mercy. It is urged that the second jury would have no reason to be arbitrary as the jurors would be strangers to the matter and thus without prejudice or resentment over the appellate directive for a new trial. That argument is without merit. The rule of North Carolina v. Pearce is not limited to new trials presided over by the same judge who originally sentenced defendant.

The second judge could likewise be a stranger to the case and free of vindictiveness. In Stonom v. Wainwright a more severe sentence imposed on defendant by a second judge after retrial, was set aside by the District Court stating: “We find nothing in the record relating to the motivation of the second trial judge in imposing a more severe sentence upon defendant than that imposed at his initial conviction.” Men on death row have little concern over whether a judge or a jury put them there.

A careful study of the Pearce case leads to the conclusion that regardless of the personalities involved in the proceedings at trials, unless the record in the second trial shows that defendant has done a more severe act against society or that evidence is more persuasive against defendant, than in the first trial, the punishment cannot exceed that meted out at the first trial. There is no way under Florida procedures whereby the second jury can make this determination.

Therefore, because of the above federal guidelines and despite restrictions imposed by Florida Statutes § 919.23(2), F.S.A. it is the duty of the trial court to evaluate the records of the first and second trials in all instances to assure that the severity of the sentence imposed at the second trial will not exceed the sentence of the first trial unless there are sufficient circumstances in the record to justify such increase in severity.

If the first jury has recommended mercy on a given set of circumstances and the second jury fails to make such recommendation, the court shall impose the death sentence unless the record in the second trial fails to show a basis for increased severity. If no such basis exists, the same sentence as previously imposed must be pronounced. Both the State and accused must be accorded appellate review on this question. A careful study of the records of both first and second trials show a very high degree of similarity. There is nothing to show why a second sentence should be more severe than the first.

This Court has authority under Florida Statutes § 59.34, F.S.A., to “give such . sentence ... as the court below should have given. . . . ” Accordingly, this cause is hereby remanded to the trial court with directions to vacate the death sentence and impose a sentence of life imprisonment. It is so ordered. BOYD and McCAIN, JJ., concur. DREW (Retired), J., concurs specially with opinion. ERVIN, J., concurs specially with opinion and concurs in per curiam opinion and with DREW, J. CARLTON, J., dissents with opinion. ROBERTS, C. J., dissents and agrees with CARLTON, J. DEKLE, J., dissents with opinion. .

Fla.Stat. § 919.23(2), F.S.A. . 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). . Ibid. . Repealed by § 180, Ch. 70-339, effective January 1, 1971, Fla.Stat.1970 Supplement. . 235 So.2d 545 (Fla.App.1st 1970). . Id. at 546. .

Fla.Stat. § 919.23(2), F.S.A.: “Whoever is convicted of a capital offense and recommended to the mercy of the court by a majority of the jury in their verdict, shall he sentenced to imprisonment for life; or if found by the judge of the court, where there is no jury, to be entitled to a recommendation to mercy, shall be sentenced to imprisonment for life, at the discretion of the court.” (e. s.)