
    Aubrey Arthur LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4-86-1426.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1987.
    Rehearing Denied Sept. 30, 1987.
    
      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment and sentence. The trial court did not err in denying appellant’s request for additional peremptory challenges. See Knight v. State, 338 So.2d 201, 203 (Fla.1976). Nor did it err in disallowing appellant’s challenge to the husband of a former secretary in the state attorney’s office, after he had run our of peremptory challenges. See Christopher v. State, 407 So.2d 198 (Fla.1981). Finally, its admission of color photographs of the victim’s charred bodies was proper. See Henderson v. State, 463 So.2d 196, 200 (Fla.1985).

DOWNEY, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

WALDEN, J., concurs in part; dissents in part with opinion.

GLICKSTEIN, Judge,

concurring Specially-

Having authored the majority per curiam opinion, I write by way of special concurrence to address the dissent. It recites, quite appropriately, all of those factual matters upon which it relies, as well as the authority which it applies to the facts. It is equally appropriate to recite the facts not mentioned in the dissent and to observe that it is this court’s function to review discretionary judgments of a trial judge, not to make those judgments as though serving as the trial judge.

The crimes with which appellant was charged occurred on March 1, 1981; the trial commenced on September 9, 1985, over four and one-half years later. Most of the publicity respecting the crimes for which appellant was being tried had been disseminated shortly after the crimes had been committed. There was no showing that any of the publicity had been inflammatory or inaccurate. By and large, the jurors either thought they might have heard of the case before but were not sure, or had some vague recollection of past publicity, or did not recall the case at all. As to defense counsel’s stated dilemma about needing four strikes and being faced with a police officer’s wife if he struck any of those four, appellee points out that at that point the court, while denying any extra peremptory challenges, observed that the defense still had two strikes which could be exercised, one at a juror and one at an alternate. The strikes appellant had wished to make were of people who only vaguely thought they might have heard or read of the case. Appellant did in fact strike the woman who was married to a police officer, among others. Further, the trial court did not hesitate to excuse for cause four veniremen because of conflict with religious holidays. It is not necessary that the jury be made up of persons who are entirely ignorant of the facts and issues of the case, and it is not fatal that they may have formed some prior impressions on the merits. See, e.g., Knight v. State, 338 So.2d 201, 203 (Fla.1976).

The dissent relies upon two cases as its legal predicate. As for one, it starts quoting in the middle of the court’s discussion in Johnson v. State, 222 So.2d 191 (Fla. 1969). The entire discussion deals with consolidated cases; thus the issue was not the issue presented here, as the reader can plainly determine by reading the entire discussion:

In Meade v. State, supra, which discussed F.S. § 913.08 the court considering consolidated cases held, “ * * the number of challenges * * * would be the same as the total number assured by the statute if separate trials should be conducted.” In view of the conflict of opinions involving the question of limiting a defendant’s number of peremptory challenges we must decide whether in consolidated cases the charges are to be treated as separate counts of the same bill and therefore entitled to the six challenges allowed by statute in single cases or whether the number of peremptory challenges shall be multiplied by the number of cases consolidated for trial. We have carefully examined Meade v. State, [85 So.2d 618 (Fla.1956)] supra, in which the major holding was that it was error for the trial court to consolidate the cases. We have examined Blackwelder v. State, (Fla.App.) 1958, 100 So.2d 834, which held that where the basis for infor-mations arose out of a single incident, the evidence was secured simultaneously, and the witnesses were identical, the defendant was not entitled, upon consolidation of cases, to accumulate the number of peremptory challenges that would have been allowable if the cases had been tried separately. We have also reviewed Costantino v. State, Fla.App., 203 So.2d 647, cases from other jurisdictions, texts involving the same point of law, and must conclude that inasmuch as the object or purpose of consolidation of cases is to save time and expense to persons accused and time to the court and expense to the public, this purpose would be thwarted should the defendant be allowed as a matter of right the same number of challenges assured by the statute, as if separate trials were conducted. However, we feel as did the lowers [sic] courts that the trial judge in the interest of justice should be able in the exercise of his judicial discretion to grant additional challenges to the accumulative maximum based on the number of cases' consolidated where it appears that there is a possibility that the defendant may be prejudiced. The crux of this decision is, of course, based upon the proper consolidation of cases. Where cases are similar and no valid objections are made to consolidation then there should be no valid objections to limiting the peremptory challenges to the number permissible as if the case were single, providing however the presiding judge has the authority to use his judicial discretion in the extenuating circumstances.

Id. at 192 (emphasis in original).

The second case relied upon by the dissent is Meade v. State, 85 So.2d 613 (Fla. 1956), mentioned above in Johnson. Neither the defense nor the prosecution cited Meade, perhaps because it, too, concerned the number of challenges allowed in a consolidation, rather the issue that is before us.

The dissenter has every right to feel as strongly about this case as he expressly does. I doubt that the people of this district want judges without conviction. I do not, however, feel he has shown by fact or law that the trial court abused its discretion.

WALDEN, Judge,

concurring in part; dissenting in part.

In my opinion the trial court abused its discretion and thereby committed reversible error when it refused to allow defendant, Aubrey Arthur Livingston, additional peremptory challenges.

There were five victims, three adults and two small children, who were abducted and killed.

Livingston, in a single trial, was charged with and convicted of five counts of first degree murder and six counts of kidnapping. During jury selection, Livingston was limited to ten (10) peremptory challenges despite his request for additional challenges and despite the fact that had he been tried separately on each count, he would have been entitled to 110 such challenges.

Florida Rule of Criminal Procedure 3.350 governs:

Each party shall be allowed the following number of peremptory challenges:
(a) Ten, if the offense charged is punishable by death or imprisonment for life;
(e) If an indictment or information contains two or more counts or if two or more indictments or informations are consolidated for trial, the defendant shall be allowed the number of peremptory challenges which would be permissible in a single case, but in the interest of justice the judge may use his judicial discretion in extenuating circumstances to grant additional challenges to the accumulate maximum based on the number of charges or cases included when it appears that there is a possibility that the State or the defendant may be prejudiced. The State and the defendant shall be allowed an equal number of challenges, [emphasis supplied]

In Meade v. State, 85 So.2d 613 (Fla. 1956), a defendant was charged in two indictments for murder in the first degree where there were two victims. The cases were consolidated. It was determined to be error to restrict the defendant to only ten peremptory challenges. These comments by the Court are instructional:

Of course, the purpose of peremptory challenges is the effectuation of the constitutional guaranty of trial by an impartial jury by the exercise of the right to reject a certain number of jurors whom the defendant for reasons best known to himself does not wish to pass upon his guilt or innocence. In this manner he may eliminate from service jurors who may be objectionable but who may not be shown so prejudiced as to be successfully challenged for cause. Carroll v. State, 139 Fla. 233, 190 So. 437.
What we are deciding is that in a situation like this we cannot approve the procedure followed because miscarriage of justice would too likely result, and the consequence of such a miscarriage in a prosecution culminating in electrocution is horrible to contemplate. There is much evidence in our statutes and decisions that greater care must be taken in a prosecution of such moment than in other criminal prosecutions. As we have already noted more peremptory challenges are allowed than in other criminal prosecutions. A jury of twelve, twice the number required in other criminal cases, is provided in Sec. 913.10, Florida Statutes 1953, and F.S.A. Although a jury may be waived in criminal prosecutions generally, such a waiver may not be made “Where a sentence of death may be imposed”. Sec. 912.01, Florida Statutes 1953, and F.S.A. The charges to the jury shall be in writing. Sec. 918.10(2), Florida Statutes 1953, and F.S.A. Counsel for an insolvent defendant in a capital case is required. Sec. 909.21, Florida Statutes 1953, and F.S.A. Capital cases may be tried only on an indictment by a grand jury while other cases may generally be tried on information. Sec. 904.01, Florida Statutes 1953, and F.S.A. And when a case in which the extreme penalty has been imposed reaches this court for review the court is obligated to examine the evidence “to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.” Sec. 924.32(2), Florida Statutes 1953, and F.S.A.
All these safeguards are thrown about the one accused of a crime which may result in his being put to death. The care with which he should be tried corresponds with the awful responsibility of taking human life to atone for crime.

85 So.2d at 615-616.

In Johnson v. State, 222 So.2d 191, 192 (Fla.1969), the Supreme Court of Florida reviewed the several prior cases dealing with additional peremptory challenges and said:

However, we feel as did the lowers [sic] courts that the trial judge in the interest of justice should be able in the exercise of his judicial discretion to grant additional challenges to the accumulative maximum based on the number of cases consolidated where it appears that there is a possibility that the defendant may be prejudiced, [emphasis supplied]

Thus, it appears that the key words in this case, as in Florida Rule of Criminal Procedure 3.350, are that additional challenges may be granted when it appears that there is a possibility that the state or the defendant may be prejudiced. See also, Thomas v. State, 403 So.2d 371 (Fla.1981); and 5 A.L.R. 4th 533 (539).

The five unarmed victims were kidnapped from their home at gun point, tied and taken by camper truck to a remote area. They were placed inside an old apparently abandoned car on the side of the road. One of the adult victims was heard to beg for his life. There were gun shots and á loud boom apparently caused by an inflammable liquid being thrown in the car and ignited. The burning car was later found by the police. Inside the car, the adults were found shot to death and the children were on the floor in the rear of the car, dead by smoke inhalation.

Counsel for Livingston exhausted his ten peremptory challenges and said:

I have four people that I want to strike and if I strike any of those I come up with a worse situation. I have a police officer’s wife that’s going to be on the jury-

Counsel then asked for and was denied additional challenges. Additional challenges should have been allowed because,

1. The prosecution had received substantial publicity throughout the South Florida area. At least nine prospective jurors admitted to knowing something about the case. The state counters that the defense did not move for a change of venue. However, this argument overlooks the very nature of peremptory challenges. It is designed to cover situations where, for instance, the publicity is not sufficient to merit a change in trial location but it is sufficient, at least in the eyes of the accused and his counsel, to prevent a given juror from being impartial.
2. The facts in this case were particularly gruesome and especially the cruel deaths of the two young children. Most of the potential jurors had children, many of them as young as the two young victims.
3. Almost all the prospective jurors had been either the victims or knew the victims of crimes or they knew someone who had been prosecuted for a crime.
4.Defense counsel, having no more peremptory challenges, was unable to challenge the next prospective juror, even though she was married to someone who had just worked in the state attorney’s office for two years. Even though I agree that this juror was not subject to being challenged for cause as contended by Livingston, this is a classic example which the peremptory challenge is designed to handle and where Livingston was prejudiced by the limitation on his challenges.

Considering the above matters along with the gravity and number of charges, I cannot reach any other conclusion but that there existed a manifest “possibility” that Livingston would be prejudiced by being limited to ten peremptory challenges. Surely the Supreme Court of Florida in enacting rule 3.350 felt that there would be cases and situations where additional challenges would be warranted and where it would be an abuse of discretion not to allow same. Otherwise, and if there was no limit upon the trial court’s discretion, there would be no point in adopting the rule. And so, as I see it, if ever there were a case where additional challenges should have been granted, this is it.

Finally, it should be kept in focus that granting additional challenges does not tilt the scales one way or the other as many rulings tend to do. The only impact in allowing additional challenges is in the direction of impaneling an impartial jury, and the state and the defendant receive an equal number. Neither the state nor the defendant is left with more or less advantage. Surely then, the discretion involved in case of any doubt should be resolved in favor of additional challenges. The only disadvantage that I can discern in granting more challenges is that it may take longer to seat a jury. Surely that consideration is altogether insignificant when compared to the concerns enumerated by the late Mr. Justice Thomas in Meade.

In conclusion, with reference to the points on appeal, I do therefore dissent as concerns the first part of Point I. I say that, in my judgment, the trial court erred in refusing to grant appellant additional peremptory challenges. Because of this, his convictions should be reversed and the case remanded for a new trial. As to the second part of Point I, I concur that it was not error to refuse to excuse juror Lennon for cause.

As to Point II, I concur that the admission of certain gruesome photographs into evidence was not error.  