Chandler v. State, 60790

• Decision Date: 28 July 1983
• Docket Number: No. 60790,60790
• Parties: Eric Jim CHANDLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 171

442 So.2d 171

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 & McDonough, Vero Beach, for appellant.

Jim Smith, Atty. Gen. and Robert L. Bogen, 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 resentencing.

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. ¹

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. ² 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 ³ 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. ⁴ It is not enough that he or she "probably would lean towards life rather than death, if [the aggravating and mitigating circumstances] were equal." ⁵ The excusal for cause of these two individuals clearly violates the guidelines of Witherspoon.

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 Witherspoon 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 Witherspoon and its progeny, including Davis, as providing, inter alia:

2. No jury from which even one person has been excused on broader Witherspoon -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 resentencing. 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, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs...