Jackson v. State, 498 So. 2d 906 (Fla. 1986). · Go Syfert
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Jackson v. State, 498 So. 2d 906 (Fla. 1986). Cases Citing This Book View Copy Cite
“the combined prejudicial effect of these errors effectively denied appellant his constitutionally guaranteed right to a fair trial”
59 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: Jackson v. State (fla, 1991-01-18) · Strongest negative: Cooper v. State (fladistctapp, 1987-05-12)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 28 distinct citers.
cited Cited "but see" Cooper v. State
Fla. Dist. Ct. App. · 1987 · signal: but cf. · confidence high
But cf. Jackson v. State, 498 So.2d 906 (Fla.1986); Parnell v. State, 500 So.2d 558 (Fla. 4th DCA 1986).
discussed Cited as authority (verbatim quote) Jackson v. State
Fla. · 1991 · quote attribution · 1 verbatim quote · confidence high
the combined prejudicial effect of these errors effectively denied appellant his constitutionally guaranteed right to a fair trial
discussed Cited as authority (rule) Carter v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
However, “[t]he exception [allowing a prior consistent statement as non-hearsay] involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.”’ Jackson v. State, 498 So.2d 906, 910 (Fla.1986) (quoting McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982)); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974).
cited Cited as authority (rule) Turner v. State
Fla. · 2010 · confidence medium
Jackson v. State, 498 So.2d 906, 911 (Fla.1986); Hardwick v. State, 461 So.2d 79, 81 (Fla.1984).
examined Cited as authority (rule) Taylor v. State (3×) also: Cited "see"
Fla. · 2003 · confidence medium
See, e.g., Bradley v. State, 787 So.2d 732, 743 (Fla.2001); Chandler v. State, 702 So.2d 186, 197 (Fla.1997); Jackson v. State, 498 So.2d 906, 910 (Fla.1986); Van Gallon v. State, 50 So.2d 882 (Fla.1951).
discussed Cited as authority (rule) White v. State
Fla. · 2002 · confidence medium
See Steverson, 695 So.2d at 689 ; see also Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992) (credibility of any witness may be attacked by evidence of prior felony conviction, and such inquiry is generally restricted to existence of prior convictions and number of such convictions); Jackson v. State, 498 So.2d 906, 909 (Fla.1986).
discussed Cited as authority (rule) Johnson v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
Defense brought out the nature of the charges which had then been pending, as well as her previous criminal record. § 90.403; Jackson v. State, 498 So.2d 906, 909 (Fla.1986)(if witness answers questions regarding convictions correctly, questioning must cease; underlying specifics of crimes may not be presented to jury); Hunter v. State, 660 So.2d 244, 251 (Fla.1995)(evidence of other crimes admissible only if it is probative of a material issue other than the bad character or propensity of witness).
discussed Cited as authority (rule) Pomeranz v. State
Fla. · 1997 · confidence medium
NOTES [1] The remaining ten issues posed by Pomeranz, which we find to be without merit, are as follows: (1) that the trial court erred in restricting cross-examination of Officer Ronald Cucchiara concerning the benefits Kinser received as a police informant; (2) that the trial court erred in excluding evidence of Kinser's bad reputation for truthfulness; (3) that the trial court erred in restricting cross-examination of Kinser concerning his prior criminal record; (4) that the trial court erred in allowing the State to use Stephan Drake's cross-examination testimony to bolster the credibility…
discussed Cited as authority (rule) Chandler v. State
Fla. · 1997 · confidence medium
We have long held that prior consistent statements "are generally inadmissible to corroborate or bolster a witness' trial testimony." Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992); Jackson v. State, 498 So.2d 906, 909 (Fla.1986); Parker v. State, 476 So.2d 134, 137 (Fla.1985); Van Gallon v. State, 50 So.2d 882 (Fla.1951).
cited Cited as authority (rule) Geralds v. State
Fla. · 1992 · confidence medium
Jackson v. State, 498 So.2d 906, 911 (Fla. 1986); Hardwick v. State, 461 So.2d 79, 81 (Fla. 1984), cert. denied, 471 U.S. 1120 , 105 S.Ct. 2369 , 86 L.Ed.2d 267 (1985).
cited Cited as authority (rule) Sheffield v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
Jackson v. State, 498 So.2d 906, 909 (Fla. 1986); Fulton v. State, 335 So.2d 280, 284 (Fla. 1976).
discussed Cited as authority (rule) Shere v. State
Fla. · 1991 · confidence medium
Jackson, 498 So.2d at 909 (Fla. 1986) (emphasis supplied); see also Dudley, 545 So.2d at 857 (error to call non-eyewitness as court witness to introduce prior inconsistent statements about what he overheard); Brumbley, 453 So.2d at 384 (no error calling as court witness a participant/eyewitness to the criminal transaction); Olive, 131 Fla. at 548 , 179 So. at 811 (no error calling eyewitness as a court witness); Morris, 100 Fla. at 850 , 130 So. at 582 (same); Brown, 91 Fla. at 682, 108 So. at 842 (same).
discussed Cited as authority (rule) Wolcoff v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
The state then cross-examined the son about his prior statements which incriminated appellant. “[Cjounsel may not get in through the back door that which he could not have gotten through the front door.” Jackson v. State, 498 So.2d 906, 909 (Fla.1986).
discussed Cited as authority (rule) Anderson v. State
Fla. · 1991 · confidence medium
Jackson v. State, 498 So.2d 906, 909-910 (Fla. 1986); Dufour v. State, 495 So.2d 154, 160 (Fla. 1986), cert. denied, 479 U.S. 1101 , 107 S.Ct. 1332 , 94 L.Ed.2d 183 (1987); Gardner v. State, 480 So.2d 91, 93 (Fla. 1985); Quiles v. State, 523 So.2d 1261, 1263 (Fla. 2d DCA 1988).
cited Cited as authority (rule) State v. Smith
Fla. · 1990 · confidence medium
Jackson v. State, 498 So.2d 906, 909 (Fla. 1986).
discussed Cited as authority (rule) LeFleur v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1990 · confidence medium
Jackson v. State, 498 So.2d 906, 910 (Fla. 1986).
discussed Cited as authority (rule) Anderson v. State (2×)
Fla. Dist. Ct. App. · 1989 · confidence medium
Jackson v. State, 498 So.2d 906, 909 (Fla. 1986); Botte v. Pomeroy, 497 So.2d 1275, 1280 (Fla. 4th DCA 1986), review denied, 508 So.2d 15 (Fla. 1987).
discussed Cited as authority (rule) London v. State
Fla. Dist. Ct. App. · 1989 · confidence medium
In Jackson v. State, 498 So.2d 906, 908 (Fla.1986), the Florida Supreme Court clari fied the above by stating that “[i]mplicit in being considered harmful to the interest of the impeaching party is that the testimony of the witness is relevant, material and necessary to the factual question in issue.” The Jackson court indicated it is error for a court to abandon its position of neutrality by calling as a witness of its own anyone other than an eyewitness to the crime whose veracity or integrity is reasonably doubted.
cited Cited as authority (rule) Martin v. State
Fla. Dist. Ct. App. · 1987 · confidence medium
Jackson v. State, 498 So.2d 906, 909 (Fla.1986); Williams v. State, 511 So.2d 1017, 1019 (Fla. 2d DCA 1987).
cited Cited "see" Wright v. State
Fla. · 2009 · signal: see · confidence high
See Geralds v. State, 601 So.2d 1157, 1163 (Fla.1992) (citing Jackson v. State, 498 So.2d 906, 911 (Fla.1986); Hardwick v. State, 461 So.2d 79, 81 (Fla.1984)).
discussed Cited "see" Penalver v. State
Fla. · 2006 · signal: see · confidence high
See Jackson v. State, 498 So.2d 906, 910 (Fla.1986) (finding that "combined prejudicial effect" of three evidentiary errors denied defendant fair trial and required reversal of his conviction; evidentiary errors included calling defendant's mother as court witness in order to admit otherwise inadmissible testimony of police officer under the guise of impeachment, allowing the State to impeach a defense witness by discussing details of the witness's previous conviction, and admitting the prior consistent statements of a prosecution witness in order to buttress the witness's credibility).
discussed Cited "see" Arias v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Reyes v. State, 580 So.2d 309 (Fla. 3d DCA 1991). "[A] witness' prior consistent statements are generally inadmissible to corroborate that witness's testimony." Jackson v. State, 498 So.2d 906, 909 (Fla. 1986); see also Reyes; Lazarowicz v. State, 561 So.2d 392, 395 (Fla. 3d DCA 1990); Holliday v. State, 389 So.2d 679, 680-81 (Fla. 3d DCA 1980).
discussed Cited "see" Gore v. State
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Jackson v. State, 498 So.2d 906 (Fla. 1986); Williams v. State, 511 So.2d 1017 (Fla. 2d DCA), rev. denied, 519 So.2d 988 (Fla. 1987); Johnson v. State, 361 So.2d 767 (Fla. 3d DCA 1978), cert. denied, 382 So.2d 693 (Fla. 1980).
discussed Cited "see" Wise v. State (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Jackson v. State, 498 So.2d 906, 909 (Fla. 1986).
cited Cited "see" Davis v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Jackson v. State, 498 So.2d 906 (Fla.1986).
discussed Cited "see, e.g." Rodriguez v. State
Fla. · 1992 · signal: see, e.g. · confidence medium
See, e.g., Jackson v. State, 498 So.2d 906, 909 (Fla. 1986); Parker v. State, 476 So.2d 134, 137 (Fla. 1985); Van Gallon v. State, 50 So.2d 882 (Fla. 1951); Carroll v. State, 497 So.2d 253, 256 (Fla. 3d DCA 1985), review denied, 511 So.2d 297 (1987); Perez v. State, 371 So.2d 714, 716-17 (Fla. 2d DCA 1979); Allison v. *500 State, 162 So.2d 922, 924 (Fla. 1st DCA 1964); see also Charles W.
discussed Cited "see, e.g." Lazarowicz v. State
Fla. Dist. Ct. App. · 1990 · signal: see also · confidence low
See Bianchi v. State, 528 So.2d 1309 (Fla. 2d DCA 1988); Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); see also Jackson v. State, 498 So.2d 906 (Fla.1986); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977).
discussed Cited "see, e.g." Lazarowicz v. State
Fla. Dist. Ct. App. · 1990 · signal: see also · confidence low
However, section 90.801(2)(b) permits the admission of only prior consistent statements made before the existence of the facts said to indicate an improper influence. *394 See Bianchi v. State, 528 So.2d 1309 (Fla. 2d DCA 1988); Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); see also Jackson v. State, 498 So.2d 906 (Fla. 1986); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977).
Clinton Lamar JACKSON, Appellant,
v.
STATE of Florida, Appellee.
66510.
Supreme Court of Florida.
Nov 26, 1986.
498 So. 2d 906
Barkett.
Cited by 42 opinions  |  Published

[*907] James Marion Moorman, Public Defender, Tenth Judicial Circuit and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Bartow, for appellant.

Jim Smith, Atty. Gen., and James H. Dysart and Frank Migliore, Jr., Asst. Attys. Gen., Tampa, for appellee.

BARKETT, Justice.

This is an appeal from convictions for robbery and first-degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse and remand for a new trial.

Appellant was charged with the robbery of a hardware store and the murder of its owner. The evidence indicated that when the store owner grappled with appellant's brother in an effort to keep the last five dollars remaining in the cash register, appellant shot and killed him. Only one shot was fired. Appellant challenges his convictions on three separate grounds and his sentence on several others.

Appellant's first allegation of error concerns the trial court's decision, pursuant to the state's motion, to call appellant's mother as a court witness. After she had been sworn, she testified, in response to the prosecutor's question, that her son had not admitted to her that he had robbed the hardware store and killed its owner. The state anticipated this very testimony as it was consistent with her earlier sworn deposition testimony. The sole purpose of the state's motion to have appellant's mother called as a court witness was to provide the state the opportunity to place before the jury (under the guise of impeachment) the subsequent testimony of a police officer who said that the mother had told him that[*908] her son had admitted his guilt. There is no question that, standing alone, the officer's testimony would be inadmissible. The introduction of the officer's testimony under the guise of "impeachment" under these convoluted circumstances makes his testimony no more admissible.

We are cognizant of the general rule which permits the trial court to call a witness as a court witness if his or her expected testimony conflicts with prior statements.[1]See Delanie v. State, 362 So.2d 689, 690 (Fla. 2d DCA 1978). See also McCloud v. State, 335 So.2d 257, 260 (Fla. 1976). That general rule, however, has been clarified by this Court's recent opinion in Brumbley v. State, 453 So.2d 381 (Fla. 1984). In Brumbley, we held that a party may not impeach a court's witness with prior inconsistent statements unless that witness's in-court testimony proves adverse, i.e., "actually harmful," to the impeaching party. Id. at 384. We explained that the "purpose of allowing evidence of prior inconsistent statements is to counteract the effect of testimony harmful to the interest of the impeaching party." Id. at 385. See also Hernandez v. State, 156 Fla. 356, 366-67, 22 So.2d 781, 785-86 (1945) (on rehearing). Implicit in being considered harmful to the interest of the impeaching party is that the testimony of the witness is relevant, material, and necessary to the factual question in issue. Indeed, in practically every Florida case where a witness has been called as a court witness, that witness has been an eyewitness and therefore able to provide direct, firsthand knowledge of the facts pertaining to the transaction in question. Brumbley, 453 So.2d at 383-84 (participant and eyewitness to the murder); McCloud, 335 So.2d at 259-60 (eyewitness to the crime); Daugherty v. State, 154 Fla. 308, 308, 17 So.2d 290, 290 (1944) (eyewitness); Olive v. State, 131 Fla. 548, 549, 179 So. 811, 812 (1938) (eyewitness); Morris v. State, 100 Fla. 850, 852, 130 So. 582, 584 (1930) (eyewitness); Brown v. State, 91 Fla. 682, 688-90, 108 So. 842, 844-45 (1926) (eyewitness); Delanie, 362 So.2d at 690 (victim and eyewitness of the crime); Chapman v. State, 302 So.2d 136, 137-38 (Fla. 2d DCA 1974) (accomplice and eyewitness to the crime). But see Williams v. State, 353 So.2d 956 (Fla. 1st DCA 1978) (not an eyewitness). See also Buchanan v. State, 95 Fla. 301, 116 So. 275 (1928) (unclear if eyewitness); Matera v. State, 218 So.2d 180 (Fla. 3d DCA) (unclear if court witness was eyewitness), cert. denied, 225 So.2d 529 (Fla.), cert. denied, 396 U.S. 955, 90 S.Ct. 424, 24 L.Ed.2d 420 (1969).

In the case at bar, appellant's mother had no firsthand knowledge of the commission of the crime. She was not present and was not involved. In short, she had no information that would impact upon the state's case regarding the commission of the crime. The sum and substance of her testimony at trial was simply that her son had not told her that he had committed the crime. We fail to see how that testimony is relevant much less adverse to the state's case. The sleight of hand used to admit otherwise inadmissible evidence is clearly exposed when one examines the mother's testimony separately from that of the police officer. Neither side would be permitted to place a witness on the stand merely to say that they knew nothing of the event in question. The testimony of the mother to the effect that her son did not admit his guilt to her cannot be considered relevant to the issue of guilt or adverse to any aspect of the case having been presented by the state. We note that she did not provide an alibi or say that appellant told her that he did not commit the crimes. She merely testified that her son had never told her that he was guilty; she did not affirmatively testify to the defendant's innocence. Accordingly, regardless of who called her, the mother's testimony was inadmissible.

[*909] Moreover, we agree with our sister courts in New Jersey and Illinois which held under very similar circumstances that the concept of impeachment cannot be used in this manner to admit the police officer's otherwise inadmissible testimony. People v. Johnson, 333 Ill. 469, 165 N.E. 235 (1929); State v. Ross, 80 N.J. 239, 403 A.2d 457 (1979). Our holding in this regard is also consistent with the well-established evidentiary principle that counsel may not "get in through the back door that which he could not have gotten in through the front door." See Perry v. State, 356 So.2d 342, 344 (Fla. 1st DCA), cert. denied, 364 So.2d 889 (Fla. 1978). The officer's recitation of the statement purportedly made by appellant's mother was hearsay and, therefore, inadmissible as substantive evidence. Counsel's introduction of that testimony under the guise of impeachment was little more than a thinly veiled artifice to place before the jury that which would be otherwise inadmissible. See generally Foremost Dairies, Inc. v. Cutler, 212 So.2d 37, 40 (Fla. 4th DCA 1968). We have held that such sham impeachment of a non-adverse witness by introduction of that witness's prior statements "as substantive evidence through the mouth of another witness" is "nothing more than the veriest hearsay, and is inadmissible." Jackson v. State, 451 So.2d 458, 462 (Fla. 1984) (quoting Adams v. State, 34 Fla. 185, 195-96, 15 So. 905, 908 (1894)). We agree with appellant's contention that the trial court erred in allowing the state to introduce the police officer's testimony regarding the mother's prior unsworn statement.

However, the erroneous admission of both the mother's and policeman's testimony was preceded by the initial error in permitting the mother to be called as a court witness. Permitting a court to abandon its position of neutrality by calling a witness as its own was intended to prevent the manifest injustice which might occur if the testimony of an eyewitness to a crime was not placed before the jury because of the inability of either party to vouch for that witness. We believe that court witnesses should be limited to those situations where there is an eyewitness to the crime whose veracity or integrity is reasonably doubted.

Appellant next complains that the trial court erroneously permitted the state to impeach a key defense witness, David Shorey, by discussing the details of a murder committed by that witness. During cross-examination of Shorey, the prosecutor asked: "You're living [in state prison], because you pled guilty to first degree murder, because you were charged with beating an old man with a pipe?" Over defense counsel's immediate objection, the trial court allowed the prosecutor to continue questioning Shorey concerning the details of the prior homicide. Appellant contends that the trial court erred by permitting this questioning. We agree.

Preliminarily, neither party disputes that a witness may be impeached by reference to a prior conviction. See § 90.610, Fla. Stat. (1985). The underlying specifics of the crime, however, may not be presented to the jury. See Fulton v. State, 335 So.2d 280, 284 (Fla. 1976); McArthur v. Cook, 99 So.2d 565, 567 (Fla. 1957); Sneed v. State, 397 So.2d 931, 933 (Fla. 5th DCA 1981). Because the prosecutor in the instant action highlighted the details of the witness's crime, the questioning was improper and should not have been admitted.

Appellant's third allegation of error concerns the improper admission of a prosecution witness's prior consistent statements in an effort to buttress that witness's credibility. State witness Freddie Williams, a co-prisoner with appellant, testified at trial that he overheard appellant admit to robbing the store and killing the owner. A Detective Kappel was subsequently permitted to testify about his pre-trial conversation with Williams wherein Williams told him that which Williams testified to at trial.

Appellant argues that Kappel's recitation of Williams' prior consistent statements was improper. Again, we agree. It is well settled that a witness's prior consistent statements are generally inadmissible to corroborate that witness's testimony.[*910] See, e.g., Van Gallon v. State, 50 So.2d 882 (Fla. 1951); Hendrieth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986); McRae v. State, 383 So.2d 289, 292 (Fla. 2d DCA 1980). An exception to the rule is recognized, however, when such statements are "introduced to rebut an express or implied charge against the witness of improper influence, motive, or recent fabrication." Gardner v. State, 480 So.2d 91, 93 (Fla. 1985). The state argues that Williams' prior consistent statements were in fact introduced to rebut defense counsel's suggestion that Williams' testimony stemmed from an improper motive — namely, to curry favor with the state regarding his own imminent prosecution.

We find the exception noted in Gardner to be inapplicable to the facts of this case. As noted in McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982), "[t]he exception involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made `prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.'" Accord Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974). See also Parker v. State, 476 So.2d 134, 137 (Fla. 1985). Here, the record indicates that defense counsel intimated, while cross-examining Williams, that the witness had an improper motive for falsifying the facts from the very moment he learned of the hardware store robbery. Thus, his prior consistent statements were made after, not before, the alleged motive to falsify had arisen. The exception discussed in Gardner is therefore inapplicable to the case at bar. The witness's prior consistent statements were erroneously admitted.

We conclude that the combined prejudicial effect of these errors effectively denied appellant his constitutionally guaranteed right to a fair trial. Accordingly, we reverse his conviction and remand for a new trial.

Because we are reversing appellant's convictions, it is not necessary for us to address his arguments concerning his sentencing. We choose to do so, however, for the benefit of the trial court should appellant be reconvicted.

First, appellant contends that the trial court incorrectly found that the homicide was especially heinous, atrocious, or cruel.[2] We agree. In State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), we held that "[w]hat is intended to be included [under the especially heinous, atrocious or cruel factor] are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies... ." See also Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982) (interpreting Florida law), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983); Blanco v. State, 452 So.2d 520 (Fla. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). In the case at bar, there were no additional acts indicative of such cruelty. The victim was killed by a single bullet in his side. Although the murder was certainly reprehensible, it does not rise to the level of heightened cruelty required for application of the aggravating circumstance in question.

Moreover, the trial court justified its finding that the murder was especially cruel by reference to a plurality of patently improper factors. These factors included the fact that the victim was married; ran the store alone; had led an honest and good life; would be missed by the community; was an immigrant who had made a good life; and was a kind and likeable man. The trial court erred by considering these factors. The lifestyle, character traits, and community standing of the victim are not relevant to the determination of whether a given homicide was especially heinous, atrocious, or cruel. In light of the facts revealed in the record on appeal, we conclude that there is no evidentiary basis for a finding that the murder was especially heinous, atrocious, or cruel.

We further agree that the trial judge incorrectly found that the homicide[*911] was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.[3] The record is void of the kind of evidence indicative of the heightened premeditation necessary for application of the aggravating circumstance at issue. The trial court justified its finding on the grounds that appellant had planned the robbery and had shot the victim. In Hardwick v. State, 461 So.2d 79, 81 (Fla. 1984), cert. denied, 471 U.S. 1120, 105 S.Ct. 2369, 86 L.Ed.2d 267 (1985), we held that an intent to rob is not indicative of heightened premeditation: "The premeditation of a felony cannot be transferred to a murder which occurs in the course of that felony for purposes of this aggravating factor." In addition, it is well established that the heightened degree of premeditation required by this aggravating factor exceeds that necessary to support a finding of premeditated murder. See Preston v. State, 444 So.2d 939, 946 (Fla. 1984).

Appellant's convictions are reversed, and the matter remanded for new trial.

It is so ordered.

ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.

McDONALD, C.J., and BOYD, J., dissent.

1 In 1976, this general rule permitting court witnesses was codified and can now be found in the Florida Evidence Code, section 90.615, Florida Statutes, to wit:

90.615 Calling witnesses by the court

(1) The court may call witnesses whom all parties may cross-examine.

2 See § 921.141(5)(h), Fla. Stat. (1985).
3 See § 921.141(5)(i), Fla. Stat. (1985).