Melvin TROTTER, Appellant, v. STATE of Florida, Appellee, 576 So. 2d 691

SHAW, Chief Justice. Melvin Trotter appeals his conviction for first-degree murder and sentence of death, imposed in accordance with the jury’s recommendation. We affirm the conviction, reverse the sentence, and remand for re-sentencing. On June 16, 1986, a truck driver went into Langford’s grocery in Palmetto, Florida, and found the seventy-year-old owner, Virgie Langford, bleeding on the floor in the back of the store. She had suffered a large abdominal wound which resulted in disembowelment; there were a total of seven stab wounds. She told the driver that she had been stabbed and robbed.

Several hours after the surgery for her wounds, the victim went into cardiac arrest and died. The jury found Trotter guilty of robbery with a deadly weapon and first-degree murder, and recommended the death penalty by a nine-to-three vote. The trial court found four aggravating circumstances and four mitigating circumstances. Finding the aggravating circumstances outweighing the mitigating circumstances, the court sentenced Trotter to death. Trotter raises eight points on appeal.

He first contends that the trial court erred in refusing to excuse four prospective jurors for cause, thus forcing the defense to expend peremptory challenges in removing them. He argues that because he eventually exhausted his peremptory challenges and was denied an additional one, reversal is required under state and federal law. We disagree. Under federal law, the defendant must show that a biased juror was seated. Boss v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2278, 101 L.Ed.2d 80 (1988). Trotter has made no such claim.

Under Florida law, “[t]o show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted.” Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989). By this we mean the following. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily.

This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted. The defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial. In the present case, after exhausting his peremptory challenges, Trotter failed to object to any venireperson who ultimately was seated. He thus has failed to establish this claim.

The next point raised by appellant is the trial court’s failure to investigate alleged extraneous influences upon the jury. After sentencing, affidavits were presented in which it was asserted that the jury deliberated in a room which had law books and a telephone. Juror Morris testified that three people used the phone before deliberation began, but only to inform their families that they would be coming home late. Morris testified that at no time were law books used.

In the instant case, the jury’s deliberation in a less than ideal environment (in a judge’s hearing room) was occasioned by the fact that available jury rooms could not accommodate twelve jurors comfortably. Russ v. State, 95 So.2d 594 (Fla. 1957), is inapplicable because there the jury was improperly influenced — a juror stated, in the presence of the other jurors, that he could never accept a recommendation of mercy because he had personal knowledge that the defendant had severely beaten and threatened to kill the victim on numerous occasions and described beatings and threats in great detail.

Similarly, reliance on Johnson v. State, 27 Fla. 245, 9 So. 208 (1891), is misplaced. In Johnson the jurors received their instructions from their own perusal of law books, rather than exclusively from the trial judge. In the absence of evidence that the jury was improperly influenced, we find no error in the court’s denial of appellant’s motion for a new trial. Appellant raises as error the court’s refusal to disqualify the prosecutor who seven years earlier had represented appellant on an unrelated matter.

While we think it would have been better if the prosecutor had not participated in this case, see Havens v. Indiana, 793 F.2d 143 (7th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 411/93 L.Ed.2d 363 (1986), on the facts we see no error. The prosecutor stated that he had no recollection of appellant and the trial court found that no special knowledge or information was obtained in the prior representation that could be useful in the present prosecution. State v.

Fitzpatrick, 464 So.2d 1185 (Fla.1985), is distinguishable from the instant case in that it involved a state attorney who, as a result of prior representation, had knowledge relating to the current charge. The fourth point appellant raises as error is the removal of juror Burse for cause. The standard for review of this alleged error is set forth in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). It is the duty of a party seeking exclusion to demonstrate, through questioning, that a potential juror lacks impartiality.

The trial judge must then determine whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. On appeal the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record. We believe that the trial court’s finding that Burse’s views would have substantially impaired his performance as a juror is adequately supported by the record.

While being examined relative to his fitness to serve as a juror, Burse answered, “I don’t know” or otherwise equivocated ten times in response to questions concerning his views of the case and the death penalty. The fact that he ultimately responded affirmatively to a question regarding his ability to follow the law as instructed does not eliminate the necessity to consider the record as a whole. When the entire Burse colloquy is considered, we conclude that the trial judge did not abuse his discretion in removing Burse for cause.

As his fifth point, appellant asserts that it was error to consider his violation of community control as an aggravating factor in sentencing. We agree. Subsection 948.10(1), Florida Statutes (1985), provides that community control is “an alternative, community-based method to punish an offender in lieu of incarceration.” Moreover, we have held that violation of probation is not an aggravating circumstance — probation is not equivalent to being under sentence of imprisonment, for the appellant was not incarcerated. Bolen-der v.

State, 422 So.2d 833 (Fla.1982), cert, denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983); Ferguson v. State, 417 So.2d 631 (Fla.1982); Peek v. State, 395 So.2d 492 (Fla.1980), cert, denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Penal statutes must be strictly construed in favor of the one against whom a penalty is to be imposed. Reino v. State, 352 So.2d 853 (Fla.1977), receded from on other grounds, Perez v. State, 545 So.2d 1357 (Fla.1989).

Because the trial judge erroneously treated violation of community control as an aggravating factor in sentencing, and because there were four aggravating and four mitigating circumstances, we remand to a jury for resentencing. We do not agree with appellant’s sixth assertion of error, that reversal is required because the trial court refused to admit appellant’s drawings into evidence in mitigation. If any error occurred here, it was cured when the judge permitted the artwork to go to the jury during deliberation.

Moreover, the trial judge had the opportunity to view the artwork at every stage of the proceedings, and to hear argument before he announced his decision. Appellant’s argument, that the instruction regarding the aggravating circumstance as heinous, atrocious, or cruel is vague, is without merit. Smalley v. State, 546 So.2d 720 (Fla.1989). Finally, we agree with the trial court that the murder here was heinous, atrocious, or cruel. The testimony indicated that the seventy-year-old victim was stabbed at least seven times, one wound resulting in disembowelment. These facts support this aggravating factor.

Hols-worth v. State, 522 So.2d 348 (Fla.1988); Nibert v. State, 508 So.2d 1 (Fla.1987); Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Accordingly, the conviction is affirmed and the case is remanded for resentencing consistent with this opinion. It is so ordered. OVERTON, EHRLICH, BARKETT and KOGAN, JJ., concur. McDONALD, J., concurs in part and dissents in part with an opinion, in which GRIMES, J., concurs. . Our jurisdiction is mandatory. Art. V, § 3(b)(1), Fla. Const. .

The crime was committed while under sentence of imprisonment; the defendant had previously been convicted of a felony involving use or threat of violence; the crime was committed while engaged in the commission of a robbery; and the crime was especially wicked, evil, atrocious, and cruel. . Defendant was under the influence of extreme mental and emotional disturbance; the capacity of the defendant was substantially impaired; the defendant has a below average I.Q. and a history of family and developmentaUproblems; and remorse. .

Alternatively, the defendant can show that state law governing peremptory challenges was not followed. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). . See Hamilton v. State, 547 So.2d 630 (Fla. 1989) (reversible error where request for additional peremptory challenge to backstrike specific juror denied); Rollins v. State, 148 So.2d 274 (Fla.1963) (no reversible error where per-emptories exhausted and remaining juror to be selected was not challenged for cause). . In Moore v. State, 525 So.2d 870 (Fla.1988), and Hill v.

State, 477 So.2d 553 (Fla.1985), this Court held that reversible error was committed when a challenge for cause was improperly denied, the defendant exhausted his peremptory challenges in removing the challenged juror, and the judge denied his motion for additional peremptory challenges. Neither of these opinions discussed the issue of whether it was necessary to object to a particular juror remaining on the panel in order to preserve the question of whether the judge erred in denying the earlier challenge for cause. .

Trotter’s request for an additional peremptory challenge was not made in connection with a particular venireperson; it was a general request for a challenge that could be exercised in the future. . The matter was a technical violation of probation, which was resolved without a contested hearing. . Subsection 921.141(5), Florida Statutes (1985), provides in pertinent part:

(5) AGGRAVATING CIRCUMSTANCES.— Aggravating circumstances shall be limited to the following: (

a) The capital felony was committed by a person under sentence of imprisonment.