Gore v. State, 80916

• Decision Date: 17 July 1997
• Docket Number: No. 80916,80916
• Parties: 22 Fla. L. Weekly S471, 23 Fla. L. Weekly S129 David Allen GORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1328

706 So.2d 1328

22 Fla. L. Weekly S471, 23 Fla. L. Weekly S129

David Allen GORE, Appellant, v. STATE of Florida, Appellee.

No. 80916.

Supreme Court of Florida.

July 17, 1997.

Rehearing Denied March 5, 1998.

Richard L. Jorandby, Public Defender; and Gary Caldwell and Richard B. Greene, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for Appellant.

Robert A. Butterworth, Attorney General and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

We have on appeal the sentence of the trial court imposing the death penalty upon David Allen Gore following resentencing. ¹ We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The circumstances of the murder are as follows. On July 26, 1983, Gore and his cousin Freddy Waterfield picked up teenagers Lynn Elliott and Regan Martin, who were hitchhiking. Soon after, Gore took a gun out of the glove compartment and handcuffed the two girls while Waterfield drove to Gore's parents' house. Once there, Gore bound each of the girls and placed them in separate bedrooms. Regan Martin testified that Gore cut off her clothes and forced her to perform oral sex on him while he threatened to kill her, and that Gore kept going back and forth between the two rooms. At one point when Gore was out of the room, Martin heard gunshots from outside. When Gore returned he placed her in a closet and then the attic and threatened to kill her if she tried anything. Soon after, Gore surrendered to the police and Martin was rescued. Elliott's nude body was found in the trunk of Gore's car.

Michael Rock, a teenager riding his bike by Gore's house on the day in question, testified that he saw Gore and a naked woman (Lynn Elliott) running up the driveway toward the road. Rock watched as Gore caught up with Elliott and dragged her back toward the house. He then saw Gore throw Elliott down and shoot her. Elliott had been shot twice, once in the back of the head and once in the jaw.

The jury recommended a sentence of death by a vote of twelve to zero. The trial court found the following six aggravators were established beyond a reasonable doubt:

(1) The capital felony was committed by a person under sentence of imprisonment. Gore was on parole after being convicted and sentenced for trespass of a conveyance while armed.

(2) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to a person. The trial court found that the facts of the aforementioned trespass conviction involved the threat of violence to a person. The court further found that Gore's contemporaneous convictions for kidnapping and sexual battery also satisfied this aggravator.

(3) The crime was committed while the defendant was engaged in the commission of a sexual battery and kidnapping.

(4) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. The trial court found that Elliott was in the process of escaping and was killed for the dominant or sole motive to prevent her from identifying Gore because that would lead to his arrest.

(5) The capital felony was especially heinous, atrocious, or cruel (HAC). The trial court relied on evidence that Elliott was abducted and handcuffed at gun point, brought to the Gores' residence, and then tightly bound before being sexually assaulted. The court also found that Elliott attempted to flee but Gore caught up with her and dragged her back as she fought to free herself before finally throwing her to the ground and shooting her.

(6) The murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The trial court relied on evidence that Gore participated in a detailed plan to kidnap a young girl using a gun, handcuffs, and rope, to transport her to his residence, commit sexual battery, terrorize and then murder her. He also threatened to kill Regan Martin and told her he was "going to do it anyway."

The trial court found no statutory mitigation. It found the following nonstatutory mitigating circumstances: (1) Gore's exemplary conduct while in prison, his past conduct as a model prisoner, his capacity to be one in the future, and his ability to live in prison without being a threat or danger to others; (2) Gore's impoverished childhood; (3) Gore's exemplary conduct during the resentencing proceeding; (4) Gore's depression at the time of the offense; and (5) Gore's love for his children and his separation from them. Finding that the mitigating circumstances were substantially outweighed by the aggravating circumstances, the trial court sentenced Gore to death.

Gore raises sixteen issues in this appeal. We find that nine merit consideration. We reject the remaining seven without discussion. ² First, he contends that the trial court erred during jury selection in denying his challenges for cause to eight members of the venire. Of those eight, three ultimately served on the jury. ³ A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror incompetency. Pentecost v. State, 545 So.2d 861 (Fla.1989). The decision to deny a challenge for cause will be upheld on appeal if there is support in the record for the decision. Johnson v. State, 660 So.2d 637, 644 (Fla.1995), cert. denied, 517 U.S. 1159, 116 S.Ct. 1550, 134 L.Ed.2d 653 (1996).

We conclude that the trial court did not abuse its discretion in declining to excuse the challenged venire members. ⁴ We have carefully examined the voir dire of each of these jurors. Although they expressed certain biases and prejudices, each of them also stated that they could set aside their personal views and follow the law in light of the evidence presented. Penn v. State, 574 So.2d 1079 (Fla.1991); Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). The trial court was in a better position to assess the credibility of these venire members. Consequently, we will not substitute our judgment for that of the trial court.

Gore's second argument is that the trial court through multiple errors permitted the State to mislead the jury as to his eligibility for parole. Specifically, Gore asserts that in light of his numerous other life sentences, ⁵ he could not have been considered for parole for at least fifty years if given a life sentence. According to Gore, the jury was misled into believing that Gore was subject to parole either immediately on some of these offenses or at most within fifteen years. As part of this argument, Gore contends that it was error to deny his request to omit possibility of parole after twenty-five years from the life sentence instruction. We disagree. The jury was correctly instructed that a life sentence for the murder of Lynn Elliott included eligibility for parole after twenty-five years. § 775.082(1), Fla. Stat. (1983). ⁶ It would have been error for the trial court to instruct the jury otherwise.

Also in connection with this argument, Gore posits that the trial court erred in its responses to two questions issued by the jury during deliberations. The first question asked whether, if given a life sentence, Gore would receive credit for the ten years he had already served, to which the court instructed the jury that he would. However, even defense counsel conceded this point at trial. The jury's second question asked if and when parole could occur on these other life sentences. The court instructed the jury to rely on their recollection of the evidence that had been presented. This was not error. The record shows that in its cross-examination of former prosecutor Robert Stone, ⁷ the State elicited testimony that none of Gore's life sentences contained a minimum mandatory sentence. ⁸ Defense counsel did not object to the line of questioning; thus any objection was waived. We also note that defense counsel was free to argue that as a practical matter Gore would spend his life in prison.

Because Gore points out that error can occur even where there is no actual misstatement of the law, we also note that this case is distinguishable from Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996). In Hitchcock, the State argued in a resentencing proceeding that the defendant would be eligible for parole after twenty-five years if given a life sentence. We held this argument to be improper and unfairly prejudicial because the resentencing occurred so close in time to the expiration of the twenty-five-year period. In contrast, the State in the present case did not make any such argument, nor was Gore close to meeting the expiration of the twenty-five-year minimum mandatory.

Gore's third argument is that the trial court erred in finding that his prior conviction for armed trespass of a conveyance constituted a felony involving the use or threat of violence under section 921.141(5)(b), Florida Statutes (1991). He argues that neither the facts of the offense nor its legal elements satisfied the requirements for finding this aggravating circumstance. In Johnson v. State, 465 So.2d 499 (Fla.1985), we held that the offense of burglary is not per se a crime involving violence or threat of violence. We continued:

[W]hether a previous conviction of burglary constitutes a felony involving violence under section 921.141(5)(b), Florida Statutes (1981), depends on the facts of the previous crime. Those facts may be established by documentary evidence, including the charging or conviction documents, or by testimony, or by a combination of both.

Id. at 505. The same can be said of armed trespass. ⁹ While the crime of armed trespass is not per se a crime involving the use or threat of violence, documentary evidence and/or testimony may be introduced to establish that the circumstances surrounding a defendant's prior crime of armed trespass satisfy the requirements of this aggravating factor.

In Johnson, we concluded that it was error...