THE COURT: The objection is sustained as not a valid instruction to the law. Citing Poole v. State, 194 So.2d 903 (Fla. 1967), and Thomas v. State, 403 So.2d 371 (Fla. 1981), Gore argues that he was denied the opportunity to ascertain whether the jurors were prejudiced and was thereby denied his right to a fair and impartial jury. In Thomas v. State, we addressed the issue of whether a juror who admitted in voir dire that he could not recommend any mercy in any required sentencing phase under any circumstances should have been excused for cause at the defendant's request.

Davis did ask Mosier questions concerning mercy and Mosier stated that mercy was not something he would consider. Davis argues that Mosier should have been dismissed for cause, relying on this Court's opinions in Poole v. State, 194 So.2d 903 (Fla. 1967), and Thomas v. State, 403 So.2d 371 (Fla. 1981). We do not agree that Poole and Thomas control this decision.

Irving cites several cases in support of his reverse- Witherspoon argument — none of which are binding on this Court. Crawford v. Bounds, 395 F.2d 297 (4th Cir. 1968); Thomas v. State, 403 So.2d 371 (Fla. 1981); Poole v. State, 194 So.2d 903 (Fla. 1967); State v. Henry, 198 So. 910 (La. 1940); Patterson v. Commonwealth, 283 S.E.2d 212 (Va. 1981). While this issue may have arisen in this Court in briefs, there is no case in which it has appeared in the opinion.

We have previously held that it was error for a trial judge to refuse to allow defense counsel to propound any voir dire inquiry as to the issue of mercy, since "[s]uch inquiry . . . could conceivably be determinative of whether the defense should challenge a juror — either for cause or peremptorily." Poole v. State, 194 So.2d 903, 905 (Fla. 1967) (emphasis supplied). The admitted refusal of juror Roberts to weigh mitigating circumstances in the sentencing phase presents a clear case in which a challenge for cause should have been granted.

The earlier supreme court decisions on this point, and the more recent, seem to be in harmony with Ross. Intervening opinions, however, cast some doubt on this point. In Rollins v. State, 148 So.2d 274, 276 (Fla. 1963), overruled in part on other grounds, Poole v. State, 194 So.2d 903 (Fla. 1967), the court refused to reverse a conviction based on an erroneous ruling on a challenge for cause because "Rollins has not shown that he was thereby required to accept an objectionable or unqualified juror after he exhausted his peremptory challenges." The court then indicated that an "objectionable" juror is one that is legally objectionable or unqualified to serve:

Thus, the court, while granted discretion over the manner in which challenges are exercised, must exercise that discretion so as not to violate the litigant's right to have a fair opportunity to make an intelligent judgment as to exercise of peremptory challenges. See, e.g., Poole v. State, 194 So.2d 903 (Fla. 1967) (error for court to refuse to permit questioning regarding mercy recommendations); Barker v. Randolph, 239 So.2d 110 (error for court to refuse plaintiff to resume questioning once panel was tendered to defendant). Here, by whatever manner the initial peremptory challenges were exercised, once the number of prospective jurors who had been examined on voir dire was reduced to less than the six required for the trial of this case, additional prospective jurors should have been seated and subjected to voir dire, after which further opportunity for exercise of peremptory challenges should have been permitted, and the process continued until counsel either exhausted their respective peremptory challenges or, having challenges left, voluntarily relinquished them and accepted the jury.

Meaningful voir dire examination of prospective jurors, by the court and by counsel, is assured by Fla.R.Crim.P. 3.300(b). See also Barker v. Randolph, 239 So.2d 110 (Fla. 1st DCA 1970), cert. den., 242 So.2d 137; Poole v. State, 194 So.2d 903 (Fla. 1967). Subject to the trial court's control of unreasonably repetitious and argumentative voir dire questioning, counsel must have an opportunity to ascertain latent or concealed prejudgments by prospective jurors which will not yield to the law as charged by the court, or to the evidence.

Such inquiry, in the context of the instant case, could conceivably be determinative of whether the defendant should challenge a juror — either for cause or peremptorily." Poole v. State, 194 So.2d 903 (1967). Returning to the case before this Court, a review of the voir dire examination reflects defense counsel obeyed the Court's order and throughout the entire voir dire examination by the Court or respective counsel, there is not one question of any juror relating to the presumption of innocence, reasonable doubt or burden of proof; said transcript also reflects defense counsel having exhausted all his peremptory challenges and having suffered an adverse ruling on a challenge for cause.