FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D23-1569

LT Case Nos. 2004-CF-001378

 2004-CF-001380

_____________________________

STATE OF FLORIDA,

Petitioner,

v.

TROY VICTORINO and JERONE 

HUNTER,

Respondents.

_____________________________

Petition for Certiorari Review of Order from the Circuit Court 

for Volusia County.

Randell H. Rowe, III, Judge.

Ashley Moody, Attorney General, Tallahassee, Christina Z. 

Pacheco, Senior Assistant Attorney General, Tampa, and Doris 

Meacham, Senior Assistant Attorney General, Daytona Beach, for 

Petitioner.

Ann E. Finnell and Gonzalo Andux, of Finnell, McGuinness, 

Nezami & Andux, P.A., Jacksonville, for Respondent Troy 

Victorino.

Garry Wood, Palatka, and Allison Ferber Miller, of Ripley 

Whisenhunt, PLLC, Pinellas Park, for Respondent Jerone Hunter.

September 22, 2023
2

JAY, J.

We previously granted the State’s emergency petition for 

writ of certiorari. This opinion explains that decision.

I.

In August 2004, Respondents bludgeoned six people to death 

in Deltona. The Supreme Court of Florida summarized the scene 

of the murders as follows:

On the morning of August 6, 2004, a 

coworker of two of the occupants of a 

residence on Telford Lane in Deltona, 

Florida, discovered the victims’ bodies. 

Belanger lived at the Telford residence 

with Ayo–Roman, Nathan, and Vega. 

Gonzalez and Gleason happened to be at 

the house the night of the murders. The 

six victims had been beaten to death with 

baseball bats and had sustained cuts to 

their throats, most of which were 

determined to have been inflicted 

postmortem. Belanger also sustained 

lacerations through her vagina up to the 

abdominal cavity of her body; the injuries 

were consistent with having been inflicted 

by a baseball bat. The medical examiner 

determined that some of the victims had 

defensive wounds. A dead Dachshund was 

also found in the house.

Following a call to 911, law enforcement

officers responded to the scene. The front 

door had been kicked in, breaking a 

deadbolt lock and leaving a thirteen-inch 

shoe-print impression on the door. The 

victims were found throughout the house 

and blood was everywhere.

Hunter v. State, 8 So. 3d 1052, 1057 (Fla. 2008); see also Victorino 
3

v. State, 23 So. 3d 87, 92–93 (Fla. 2009) (summarizing the same 

facts).

The jury found Respondents guilty in all six murder counts,

and by non-unanimous margins, recommended death sentences in 

four of the counts. The trial court followed those recommendations, 

and the Supreme Court of Florida affirmed. Victorino, 23 So. 3d at 

91; Hunter, 8 So. 3d at 1057. However, Respondents later received 

new penalty phases pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 

2016) (holding that a court may not constitutionally impose a 

death sentence unless the jury unanimously recommends it).1

On April 10, 2023, jury selection began in Respondents’ 

resentencing proceeding. On April 20, while jury selection 

continued, the Governor signed into law an amended version of

section 921.141, Florida Statutes. The amended statute went into 

effect immediately and provides that “[i]f at least eight jurors 

determine that the defendant should be sentenced to death, the 

jury’s recommendation to the court must be a sentence of death.” § 

921.141(2)(c), Fla. Stat. (2023). Reflecting the state of the law 

under Hurst, the statute previously provided that only a 

unanimous jury could make such a recommendation. See § 

921.141(2)(c), Fla. Stat. (2022).

The State moved to apply the amended statute to this case. 

The trial court ultimately denied the State’s motion, concluding 

that because jury selection had already commenced, using the 

amended statute would violate Respondents’ due process rights.

The State sought certiorari relief in this court. For the reasons 

explained below, we granted the State’s petition and directed the 

trial court to apply the current version of section 921.141.

2

1 The court later receded from that holding. State v. Poole, 297 

So. 3d 487 (Fla. 2020) (holding that even if a jury does not 

unanimously recommend it, a court may constitutionally impose a 

death sentence if the jury unanimously finds the existence of a

statutory aggravating circumstance beyond a reasonable doubt).

2 After our order granting the State’s petition, the trial court 

granted a mistrial. In a show cause order, we asked the parties if

the mistrial mooted any further proceedings in this court. Neither 
4

II.

At the outset, we address Respondents’ belief that because 

this is a death penalty case, the State should have filed its petition 

in the Supreme Court. Florida law says otherwise. Our 

constitution provides that the Supreme Court “[s]hall hear appeals 

from final judgments of trial courts imposing the death penalty.” 

Art. V, § 3(b)(1), Fla. Const. (emphasis added); see also Fla. R. App. 

P. 9.030(a)(1)(A)(i) (reflecting the constitutional mandate). Here, 

the trial court had not entered a final judgment imposing the death 

penalty, so the Supreme Court’s mandatory, exclusive jurisdiction 

did not attach. See State v. Matute-Chirinos, 713 So. 2d 1006, 1008 

(Fla. 1998) (“However, our jurisdiction does not include cases in 

which the death penalty is sought but not yet imposed . . . .” 

(quoting State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 

1997))); see also State v. Jackson, 306 So. 3d 936, 943 (Fla. 2020) 

(finding that as a result of the vacation of defendant’s death 

sentence, “Jackson analogously stands in the same position as any 

other defendant who has been convicted of first-degree murder but 

who has not yet been sentenced”).

Moreover, it has long been settled that district courts may 

lawfully consider challenges to interlocutory orders in death 

party thought that dismissal on mootness grounds was 

appropriate. We agree that because we already ruled on the State’s 

petition, the mistrial does not moot the issuance of this opinion.

See State Farm Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081, 1082 (Fla. 

1st DCA 2020) (“On appeal, a case is moot where, by a change of 

circumstances prior to the appellate court’s decision, the judiciary 

is unable to grant any effectual relief.” (emphasis added)); In re 

Guardianship of Schiavo, 932 So. 2d 264, 264 n.1 (Fla. 2d DCA 

2005) (“[W]e issued our per curiam decision at a time when this 

case was not moot and was of great public importance, stating, 

‘Affirmed; an opinion will follow.’ We do not believe that the 

doctrine of mootness allows us to avoid explaining a decision when 

it is issued in such an expedited fashion.”); see also Hassoun v. 

Searls, 976 F.3d 121, 130 (2d Cir. 2020) (“Because the court’s 

opinion explained its previous order—which addressed a live case 

or controversy—the opinion was not advisory.”).
5

penalty cases. See State v. Preston, 376 So. 2d 3, 4–5 (Fla. 1979) 

(“But the issues in these types of [pre-trial] motions are not unique 

to capital cases or to the death sentence itself. There is no 

compelling reason that they cannot be reviewed in the district 

courts like all other interlocutory matters in the course of a 

criminal proceeding.”); Gore v. State, 614 So. 2d 1111, 1113 (Fla. 

4th DCA 1992) (“Yet, a decision in this circumstance holding that 

only the supreme court is competent to pass on this discovery 

question would undoubtedly, and quite understandably, suggest 

that our supreme court should be the court of initial review on any 

number of interlocutory rulings of the trial court in a capital case. 

That result would embroil the supreme court in every potential 

death penalty case, before any death penalty has been 

imposed . . . . There is not a word in either the constitutional 

provision or the rule on death penalty jurisdiction that suggests 

that the drafters intended such a result.”). Indeed, district courts 

often do so. See, e.g., Barahona v. State, 172 So. 3d 470 (Fla. 3d 

DCA 2015); Tyson v. State, 114 So. 3d 443 (Fla. 5th DCA 2013).

Thus, we reject Respondents’ threshold argument that the 

State filed its petition in the wrong court, and now turn to the 

merits of the State’s petition.

A.

Certiorari relief requires three elements: “(1) a departure 

from the essential requirements of the law, (2) resulting in 

material injury for the remainder of the case (3) that cannot be 

corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of 

Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents 

v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). The last two 

elements—collectively referred to as “irreparable harm”—are 

jurisdictional in nature. Citizens Prop. Ins. Corp. v. San Perdido 

Ass’n, 104 So. 3d 344, 351 (Fla. 2012). As such, a court considers 

them before deciding whether the trial court departed from the 

essential requirements of the law. Id. (quoting Williams v. Oken, 

62 So. 3d 1129, 1132 (Fla. 2011)).

Here, the old statute required the State to convince all 

twelve jurors that death is the appropriate sentence, whereas the 

current statute mandates only eight. If applying the old statute
6

was indeed error, the irreparable harm to the State was obvious 

because apart from certiorari relief, the State would have no way 

to recover from the error. See Wright v. State, 586 So. 2d 1024, 1032 

(Fla. 1991) (“In the context of capital proceedings, the 

constitutional protection against double jeopardy provides that if 

a defendant has been in effect ‘acquitted’ of the death sentence, the 

defendant may not again be subjected to the death penalty for that 

offense if retried or resentenced for any reason.”); see also State v. 

Pettis, 520 So. 2d 250, 253 n.2 (Fla. 1988) (“The defendant does not 

suffer the same prejudice [as the State does from erroneous pretrial rulings] because he always has the right of appeal from a 

conviction in which he can attack any erroneous interlocutory 

orders.”).

Given the clear nature of the irreparable harm, we now 

explain why the trial court’s refusal to apply the current version of 

section 921.141 was a departure from the essential requirements 

of the law.

B.

We first address how an April 2023 statutory amendment 

can lawfully apply to a proceeding about events from August 2004.

The U.S. and Florida Constitutions forbid the use of ex post 

facto laws. See Art. I, § 9, cl. 3, U.S. Const.; Art. I, § 10, Fla. Const. 

In short, ex post facto laws criminalize or enhance the criminal 

penalty for conduct that has already occurred. Weaver v. Graham, 

450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 

325–26 (1866)). Thus, a law does not violate the ex post facto clause 

unless it is retrospective in its effect and alters the definition of a 

crime or increases the sentence by which the crime is punishable. 

Griffin v. State, 980 So. 2d 1035, 1036 (Fla. 2008) (quoting Gwong 

v. Singletary, 683 So. 2d 109, 112 (Fla. 1996)).

A procedural change—even one that works to a defendant’s 

disadvantage—is generally not an ex post facto law since it does 

not alter substantive personal rights. See Dobbert v. Florida, 432 

U.S. 282, 293 (1977); Shenfeld v. State, 44 So. 3d 96, 100 (Fla. 

2010); McLean v. State, 854 So. 2d 796, 803 (Fla. 2d DCA 2003); 

see also Harris v. State, 400 So. 2d 819, 820 (Fla. 5th DCA 1981) 
7

(observing that “procedural changes are to be applied to pending 

cases”). A law is procedural when it alters how a criminal case is 

adjudicated instead of addressing the substantive criminal law.

Collins v. Youngblood, 497 U.S. 37, 45 (1990); see also Procedural 

Law, Black’s Law Dictionary (11th ed. 2019) (“The rules that 

prescribe the steps for having a right or duty judicially enforced, 

as opposed to the law that defines the specific rights or duties 

themselves.”). Litigants generally have no vested rights in 

procedural regulations. Carmell v. Texas, 529 U.S. 513, 544 (2000) 

(quoting Thompson v. Missouri, 171 U.S. 380, 385 (1898)).

Here, the amendment to section 921.141 is a 

quintessentially procedural change that has no substantive effect. 

“The new statute simply alter[s] the methods employed in 

determining whether the death penalty [is] to be imposed; there

[is] no change in the quantum of punishment attached to the 

crime.” See Dobbert, 432 U.S. at 293–94. Because the change to 

section 921.141 “neither alters the definition of criminal conduct 

nor increases the penalty by which the crime of first-degree 

murder is punishable[,] . . . it does not constitute an ex post facto 

law.” See Victorino v. State, 241 So. 3d 48, 50 (Fla. 2018).

Furthermore, it is irrelevant that the current version of 

section 921.141 became law after jury selection started. Criminal 

jeopardy attaches when a jury—not a group of prospective jurors—

is sworn. Knight v. State, 211 So. 3d 1, 11 (Fla. 2016) (“This 

[jeopardy] principle does not refer to a venire panel being sworn in 

to prepare for voir dire, but to the jury of record, which has been 

selected to hear the case, being sworn in to prepare to hear 

testimony.”). Here, the court did not swear the selected jury until 

after the current version of section 921.141 became law. The fact 

that jury selection began on April 10 did not insulate these

proceedings from an amendment to a procedural law that took 

effect before the jury was sworn and heard any evidence.

C.

We now turn to the unusual facts of this case, which put to 

rest any lingering doubt about whether the application of the 

current version of the statute would have violated Respondents’ 

due process rights.
8

Respondents’ argument is essentially one of detrimental 

reliance. They maintain that they justifiably conducted jury 

selection under the assumption that the old version of the statute 

would apply. However, the record shows that the statutory 

amendment took no one by surprise.

In their response to the State’s motion to use the current 

version of section 921.141, Victorino’s lawyers acknowledged that 

by March 2023, “all parties were aware that a bill was pending in 

the Florida legislature seeking to change the death penalty 

sentencing procedures.” Jury selection began on April 10. 

Victorino’s lawyers further acknowledged that “[d]uring this entire 

process, the Court, State, and the attorneys for Mr. Victorino and 

Mr. Hunter were generally aware of the progress of the new bill 

through the Florida legislature.”

On April 17, a prospective juror asked about the looming 

change to section 921.141. The trial judge told the prospective 

jurors that “I’ll be instructing you on what the law is, and so 

whoever ends up on the jury, before you go deliberate I’ll be giving 

you a whole lot of instructions on the law, and certainly I’ll tell you 

what law applies as far as sentencing.” After two jurors indicated 

they heard about the possible change in the law through national 

news outlets, the trial judge reiterated that he would instruct the 

jury on the applicable law:

So, yeah, there is a debate in the 

legislature about a lot of laws changing 

things, but you really shouldn’t concern 

yourself with what they’re doing right 

now. 

As far as this case and what applies now, 

I promise, you know, when this goes to the 

jury, I’ll give you the law on what applies, 

and you really shouldn’t concern yourself 

about what’s being debated right now in 

Tallahassee.

Jury selection continued. Victorino’s lawyers did not conduct 
9

any voir dire of the prospective jurors. In their response to the 

State’s motion, the lawyers reported they took this approach 

because they wanted to select a jury to try the case as soon as 

possible—before the new law took effect.

The Governor then signed the amended statute into law on 

the morning of April 20. When jury selection resumed that day, the 

State requested a ruling on its motion to apply the new law. The 

court noted that “we all knew this was going to happen today.” The 

court indicated that jury selection would continue and that it

would later decide which version of section 921.141 applied. 

Hunter’s counsel agreed that the case should move forward.

After additional discussion, the State suggested conducting 

voir dire about the change in the law to ensure the prospective 

jurors could “still fairly impose life or death.” Counsel for Hunter 

dismissed this suggestion, contending that the current version of 

section 921.141 could not possibly apply to this case. The court 

indicated that additional voir dire would take too much time and 

that jury selection would move on to peremptory challenges.

Discussion ensued about when to swear the selected jury, 

with the State requesting a delay so that it could pursue appellate 

remedies related to its motion, and Respondents asking the court 

to swear the jury immediately. Respondents expressed concern 

that a delay would allow the State to back strike up to five selected 

jurors. To alleviate this worry, the State offered to waive all its 

remaining strikes. However, the court ultimately decided to 

commence with swearing the jury.

In sum, this record shows that the change to section 921.141 

was entirely foreseeable to all parties. The record suggests that 

both sides were cognizant of the impact the new law would have 

on this proceeding and tailored their litigation strategies—

including the scope and even the existence of voir dire—to 

maximize the chance that their preferred version of the statute 

would apply. It is not for us to comment on the reasonableness of 

those strategic choices made by experienced attorneys, especially 

given the inevitably distorting effect of hindsight. See Covington v. 

State, 348 So. 3d 456, 466 (Fla. 2022) (noting that when a court is 

called upon to evaluate a lawyer’s performance, the court must 
10

make “every effort” to “eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel’s challenged conduct, 

and to evaluate the conduct from counsel’s perspective at the 

time.” (quoting Hayward v. State, 183 So. 3d 286, 297 (Fla. 2015))). 

Instead, we only had to decide whether, under the circumstances 

presented here, there was any due process impediment to applying 

the current version of a procedural statute to that proceeding. We 

held there was not.

“The essence of due process is ‘reasonable notice and a 

reasonable opportunity to be heard.’” A.W. v. Humana Med. Plan, 

Inc., 270 So. 3d 400, 402 (Fla. 4th DCA 2019) (quoting Citizens of 

State v. Fla. Pub. Serv. Comm’n, 146 So. 3d 1143, 1154 (Fla. 2014)).

The record before us shows that Respondents received both. They 

were neither blindsided by the change in the law nor were they 

denied opportunities to argue why it should not apply to that 

proceeding or to question prospective jurors about their views on

the new law. Due process guaranteed them these rights, but it does 

not guarantee them success on the merits.

III.

“Trial courts have the ‘responsibility to determine and 

properly instruct the jury on the prevailing law.’” Allen v. State, 

324 So. 3d 920, 928 (Fla. 2021) (quoting Standard Jury 

Instructions in Crim. Cases (95-1), 657 So. 2d 1152, 1153 (Fla. 

1995)). To fulfill that role in this case, the trial court should have 

granted the State’s motion to apply the current version of section 

921.141.

Because the State showed a departure from the law’s 

essential requirements resulting in irreparable harm, it was

entitled to certiorari relief.

LAMBERT, J., concurs and concurs specially, with opinion.

HARRIS, J., concurs in part and dissents in part, with opinion.
11

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________
12

Case No. 5D23-1569

LT Case Nos. 2004-CF-001378

 2004-CF-001380

LAMBERT, J., concurring specially, with opinion. 

I fully concur with the majority opinion. In my view, the 

situation here could have been avoided by the asking of additional 

questions of the prospective jurors regarding this new statute and 

how, if at all, it would affect their ability to be fair and impartial.1

I write separately to address what I view to be a somewhat 

inconsistent position being taken by one of the respondents.

In 2006, when Victorino and Hunter were tried and convicted 

in this case of the six first-degree murders that they committed in 

2004, the law at the time permitted a jury to recommend the death 

penalty by a simple majority (7-5) vote. The jury recommended the 

death penalty for four of these murders, which the trial court 

imposed. In fact, one of Victorino’s death penalty sentences 

followed a 7-5 recommendation by the jury.

After the Florida Supreme Court’s decision in Hurst, 

discussed in the majority opinion, and the statute subsequently 

enacted by the Legislature in response to require unanimity from 

the jury before a death sentence could be imposed, Victorino filed 

a successive Florida Rule of Criminal Procedure 3.851 motion for 

postconviction relief to vacate his death sentences. The lower court 

vacated Victorino’s death sentences; and it ordered a new penalty 

phase trial, which awaits below.2 

1 I am not unsympathetic to the trial judge and the unusual 

predicament that he faced. Having presided over several death 

penalty trials when I was a circuit judge, I know that they can be 

difficult, stressful, and time-consuming, especially where, as here, 

a mistrial is subsequently declared by the judge and the entire trial 

process necessarily starts over.

2 Hunter also sought postconviction relief under Hurst and the 

lower court vacated his death sentences as well.
13

Victorino was not, however, entirely successful in his 

postconviction motion. He had also argued that because his first 

jury did not unanimously recommend the death penalty on any of 

the counts for which the death sentence was imposed, he was 

entitled to be resentenced to serve life in prison under section 

775.082(2), Florida Statutes, and the trial court erred by instead 

ordering the new sentencing phase trial. On appeal, Victorino 

pointedly asserted that to “apply the recent, post-Hurst case law 

retroactively to make [him] death-eligible would violate the 

constitutional prohibitions against ex post facto laws.” Victorino 

v. State, 241 So. 3d 48, 50 (Fla. 2018). 

The Florida Supreme Court flatly, and unanimously, 

rejected this argument, explaining:

For a criminal law to be ex post facto it 

must be retrospective, that is, it must 

apply to events that occurred before its 

enactment; and it must alter the definition 

of criminal conduct or increase the penalty 

by which a crime is punishable. Lynce v.

Mathis, 519 U.S. 433, 441, 117 S. Ct. 891,

137 L. Ed. 2d 63 (1997). Florida’s new 

capital sentencing scheme, which requires 

the jury to unanimously and expressly 

find all the aggravating factors that were 

proven beyond a reasonable doubt, 

unanimously find that sufficient 

aggravating factors exist to impose death, 

unanimously find that the aggravating 

factors outweigh the mitigating 

circumstances, and unanimously 

recommend a sentence of death before the 

trial judge may consider imposing a 

sentence of death, see § 921.141(2), Fla.

Stat. (2017), neither alters the definition 

of criminal conduct nor increases the 

penalty by which the crime of first-degree 

murder is punishable. Thus, it does not 

constitute an ex post facto law, and 

Victorino is therefore not entitled to relief.
14

Id. 

Now, five years after the supreme court’s opinion in his own 

case, Victorino has an entirely different view of the former statute 

that required the unanimous verdict for the death penalty. He no 

longer contends, as he did then, that it would be a violation of the 

constitutional prohibitions against ex post facto laws to apply this 

since-repealed statute in his upcoming sentencing phase retrial. 

Quite the contrary. Victorino instead argues that it would be an 

ex post facto violation if this former statute is not used. 

To provide further context pertinent to the issue here, the 

Florida Supreme Court’s opinion in Hurst, which, as previously

stated, directly led to the Florida Legislature’s enactment of the 

aforementioned unanimous verdict statute, was receded from by 

the court in Poole in 2020. 297 So. 3d at 491. The repealed 

“unanimous verdict” statute, which the respondents argue should

apply in their sentencing phase retrial, was enacted thirteen years 

after they committed their first-degree murders and eleven years 

after they were convicted. But for Hurst, which the Florida 

Supreme Court specifically determined in Poole was wrongly 

decided, 297 So. 3d at 506, the respondents would not be having 

the instant sentencing phase retrial. 

Moreover, the current statute requiring a jury vote of 8-4 

prior to the imposition of the death penalty, the use of which the 

respondents complain violates the constitutional prohibition 

against ex post facto laws, arguably makes it more difficult for the 

State to obtain a jury verdict recommending the death penalty 

than when the respondents were first convicted and sentenced in 

2006 when the “7-5” statute was in effect. Under these 

circumstances, and in light of the Florida Supreme Court’s opinion 

in Victorino cited above, the respondents’ position that they are 

constitutionally entitled to have their sentencing phase retrial 

under the former statute lacks merit. 
15

 Case No. 5D23-1569 

 LT Case Nos. 2004-CF-001378 

 2004-CF-001380

HARRIS, J., concurring in part, dissenting in part. 

I remain in full agreement with the majority’s legal analysis 

and conclusion that the trial court erred in refusing to apply the 

new version of section 921.141, Florida Statutes. However, 

erroneous rulings below combined with the questionable legal 

tactics of trial counsel created a legal quagmire for which I would 

find the remedy afforded by granting certiorari wholly 

inappropriate.

As the majority correctly points out, jury selection in this 

resentencing trial began two weeks before the new statute went 

into effect. During that time, approximately 200 potential jurors 

were questioned regarding, among other things, their feelings 

about the death penalty and whether they would be able to 

recommend a sentence of death under the appropriate 

circumstances. During this process, the prospective jurors were 

repeatedly advised by the trial judge that it would take the vote of 

all twelve jurors in order for the court to impose a death sentence. 

A panel of jurors was ultimately “death qualified,” selected, and 

sworn. However, when they expressed their ability and willingness 

to follow the law, they did so with the clear understanding that 

unanimity would be required before the Respondent could receive 

a death sentence. We do not know, partly because the trial court 

refused to allow additional questioning of the jurors, if their 

answers during voir dire would have been different had they 

known that only two-thirds of them would need to recommend a 

death sentence as opposed to all twelve. We do not know, for the 

same reason, whether any reservations, issues, or concerns they 

may have with the death penalty would have been affected if they 

were advised that only eight of them would be needed to make that 

recommendation. The problems created by application of the 

current law could have been remedied by simply allowing limited 

additional questioning of the jurors or by starting the selection 

process over. 
16

Because “death is different,” I cannot join that portion of the 

majority opinion that would have directed the trial court to proceed 

with this trial and this particular jury under materially different 

ground rules on such a critical issue.