Rodney Wayne MALLOY, Appellant, v. STATE of Florida, Appellee, 382 So. 2d 1190

PER CURIAM. This is a direct appeal from the imposition of a death sentence. Appellant was convicted of two counts of murder in the first degree, two counts of kidnapping, and one count of robbery. The trial judge, after receiving a jury recommendation for life sentences for the murder convictions, imposed a sentence of death for each of the murders and consecutive life sentences for the other crimes. We have jurisdiction. For the reasons expressed, we affirm the convictions and reduce the sentence to life imprisonment in accordance with the recommendation of the jury.

The record in this case reveals that on the night of November 8, 1975, the appellant was in attendance at a party at the Surrett residence where appellant rented a room which he shared with the Surretts’ minor children. Also present at the party were Ricky Robinson and Ricky Houston, both of whom were charged along with the appellant for the murder in the first degree of Leo Eggering and Ronald Cole. The appellant and his codefendants consumed a combination of alcohol and drugs that evening, appellant acknowledging that he had ingested “windowpane acid” (LSD), Psilocy-bin (mushroom tea), and alcohol.

Houston and Robinson, after negotiating pleas, testified for the prosecution. They related that they and the appellant, accompanied by a friend, left the Surrett party about midnight and drove to a lounge in Lakeland. When they arrived at the parking lot of the lounge, the group noticed that two persons were arguing and the appellant assertedly told them to “shut up.” When they did not, the appellant allegedly got out of the car and began to pull out a rifle which was on the front seat. Subsequent to this incident, they dropped off their friend and proceeded to a restaurant to eat breakfast.

While there, the three formulated a plan to steal some stereo equipment from the victims, Leo Eggering and Ronald Cole. The appellant and his companions went to the apartment of the victims, arriving there at approximately 2:30 a. m. They gained entrance through a subterfuge, and Houston at rifle point forced the victims to stand in the bathtub. The three men took turns holding the rifle, which belonged to Houston, on the victims while the others carried various items out to the car.

After the group had taken what they wanted, the appellant placed heavy tape over the eyes and mouths of the victims and then covered their heads with pillowcases. The two victims were led to the car and put in the back seat. With Houston driving, the trio transported their victims to the Piper aircraft plant. Houston and Robinson testified that they tried for twenty minutes to dissuade the appellant from murdering the victims.

They testified that the appellant stated that one of the victims knew him and had to be killed and said: “Dead men tell no tales.” According to the testimony of Houston and Robinson, the appellant led the victims away from the car and shot each victim one time in the head. At approximately 5:30 a. m. the appellant, accompanied by Robinson and Houston, returned to the Surrett residence and carried the victims' stereo equipment into his room. Appellant testified in his own behalf. His version of the events differed from that of his accomplices in that he claimed that he did not shoot the victims.

According to the appellant, Robinson led the victims away from the car and while he and Houston were discussing the stolen goods two shots were heard. The appellant stated that Robinson then reappeared and admitted shooting the victims. Approximately two weeks after the incident a deputy sheriff was advised that merchandise from a burglary of a market was in the Surrett residence. Deputies went to the residence, knocked on the door, and were admitted into the living room. In plain view they saw many cartons of cigarettes and large quantities of beer.

Large amounts of cigarettes and beer had been reported stolen from the market. They arrested the appellant, Houston, and Robinson, and charged each with the burglary of the market. After calling for additional officers, they asked Mrs. Surrett for permission to search the house, and she signed a consent form. In the search which followed, they found the stereo and other articles which belonged to the victims Eggering and Cole in a bedroom shared jointly by appellant and Mrs. Surrett’s minor sons.

Prior to trial Houston and Robinson negotiated with the State and were allowed to plead nolo contendere to two counts of the lesser charge of accessory after the fact to first degree murder, two kidnapping charges, robbery, burglary, and grand larceny. They received five- to ten-year concurrent sentences on all offenses except the burglary and larceny offenses for which they received five-year concurrent sentences.

Part I The appellant asserts that his convictions should be reversed because (1) it was error for the trial court to deny appellant’s motion to suppress the stereo equipment and other articles belonging to the victims which were seized during a search of his shared bedroom in the Surrett house; (2) it was error to allow the State to call the father of one of the victims as an identification witness; (3) it was error to allow testimony regarding the incident involving the rifle at the lounge; and (4) it was error for the trial court to instruct the jury on the penalty for second degree murder.

In answer to the appellant’s assertion that the search was illegal and evidence discovered during the search should have been excluded, it is our view that the motion to suppress was properly denied. The police had obtained the consent of the owner of the home before making their search. The consent was found by the trial judge to be voluntary and proper under the circumstances of this case, and we agree. The appellant, in his second contention, claims that the admission of the identification testimony by the father of one of the victims was error.

We have previously held, however, that even the admission of testimony from a member of the victim’s family is not fundamental error. Rankin v. State, 143 So.2d 193, 196-97 (Fla. 1962). The testimony of the father was admitted without objection, so that on this record the admissibility of the testimony is not a proper issue for our consideration. State v. Barber, 301 So.2d 7, 9 (Fla. 1974); State v. Jones, 204 So.2d 515, 519 (Fla. 1967). Appellant’s third contention is without merit. In our view, the testimony regarding the incident at the lounge was properly admitted.

It was one incident in a chain of chronological events which began with the termination of the party at the Surrett residence at approximately 12:30 a. m. and concluded with the delivery of the victims’ property to the appellant’s bedroom at 5:30 a. m. back at the Surrett premises. In addition, the circumstances of the lounge incident do not establish all the elements of a crime and, consequently, the question of the admissibility of prior criminal acts is not present. Finally, the trial court’s inclusion in its instructions of the penalty for second degree murder was proper. See Dorminey v.

State, 314 So.2d 134 (Fla. 1975); Fla.R. Crim.P. 3.390(a). We find no error in the instructions. We conclude that the convictions of the appellant of two counts of murder in the first degree, two counts of kidnapping, and one count of robbery are fully supported by the evidence, and we affirm.

Part II The sentence review function of this Court in the instant case is particularly difficult. The jury recommended that the appellant receive life sentences. The trial judge overruled the jury’s recommendation and imposed two sentences of death. Much of the testimony in this case is without conflict, and it established without question that each of the three participating individuals was guilty of two execution-type murders, which ordinarily should result in the imposition of the death penalty.

We find, however, that the recommendation of life imprisonment made by the jury has a reasonable basis under the circumstances of this cause. We have repeatedly stated that in reviewing the propriety of a death sentence, this Court must weigh heavily the advisory opinion of life imprisonment by the sentencing jury. The facts justifying the death sentence must be clear and convincing in order to overrule the jury’s recommendation. McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977); Dobbert v. State, 328 So.2d 433 (Fla. 1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Tedder v.

State, 322 So.2d 908, 910 (Fla. 1975). Therefore, we must examine this record to determine whether there are clear and convincing facts that warranted the imposition of the death penalty, and, in doing so, we must determine if there was a reasonable basis for the jury’s recommendation. We find that the jury’s action was reasonable because of the conflict in the testimony as to who was actually the trig-german and because of the plea bargains between the accomplices and the State.

From the evidence presented, the jury could have believed the appellant’s story that he was not the triggerman and still have convicted him of first degree murder. § 777.011, Fla. St at. (1977). The jury also could have based its life sentence recommendation on the fact that Robinson, who appellant claimed fired the shots, and Houston, who owned the gun, were each allowed to plead guilty to a lesser charge and receive only a five- to ten-year sentence. All three participants were parties to this execution slaying. The issue of the identity of the triggerman may not have been totally controlling.

Under the circumstances of this case it was reasonable to conclude that all participants were equally culpable since there was no reason to bind, gag, and blindfold the victims and take them miles away to an unrelated building unless there was an agreement between the three to murder the victims. It is also reasonable to conclude that the jury may have reached its recommendation because of the relatively equal complicity of the other participants and the plea bargains made with them by the state.

Because of the jury’s recommendation of a life sentence and the fact that there is a reasonable basis for its recommendation, we must agree that to impose the death sentence on the appellant would not be consistent with other sentences imposed in similar circumstances in accordance with the principles laid down by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Our ruling does not mean that the imposition of the death sentence is always dependent upon the sentences of accomplices.

It is a factor, however, that may be considered along with evidence of complicity. Each case will depend on its own facts and circumstances. See Witt v. State, 342 So.2d 497 (Fla. 1977). For the foregoing reasons, we affirm the appellant’s convictions but reverse the sentences of death and remand with directions to enter an order sentencing the appellant to two life imprisonments, each without the possibility of parole for twenty-five years. It is so ordered. ENGLAND, C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., concurring in part and dissenting in part with an opinion, with which ADKINS, J., concurs. . Art. V, § 3(b)(1), Fla.Const.