964 So.2d 1257 (Fla. 2007), SC04-1458, Gore v. State

Docket Nº:SC04-1458, SC05-733.
Citation:964 So.2d 1257, 32 Fla. L. Weekly S 438
Opinion Judge:PER CURIAM.
Party Name:David Alan GORE, Appellant, v. STATE of Florida, Appellee. David Alan Gore, Petitioner, v. State of Florida, Respondent.
Attorney:Andrew A. Graham of Graham, Moletteire and Torpy, Melbourne, FL, and Russell L. Akins of Smith, Akins and Associates, P.A., Fort Pierce, FL, for Appellant/Petitioner., Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio and Leslie Campbell, Assistant Attorneys General, West Palm B...
Case Date:July 05, 2007
Court:Supreme Court of Florida
 
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Page 1257

964 So.2d 1257 (Fla. 2007)

32 Fla. L. Weekly S 438

David Alan GORE, Appellant,

v.

STATE of Florida, Appellee.

David Alan Gore, Petitioner,

v.

State of Florida , Respondent.

Nos. SC04-1458, SC05-733.

Florida Supreme Court

July 5, 2007

Rehearing Denied Sept. 10, 2007.

An Appeal from the Circuit Court in and for Indian River County, Dan L. Vaughn, Judge - Case No. 83-361-CF And an Original Proceeding - Habeas Corpus

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Andrew A. Graham of Graham, Moletteire and Torpy, Melbourne, FL, and Russell L. Akins of Smith, Akins and Associates, P.A., Fort Pierce, FL, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio and Leslie Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee/Respondent.

PER CURIAM.

David Alan Gore appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.1 Gore also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

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FACTUAL AND PROCEDURAL HISTORY

This Court concisely detailed the facts surrounding the murder and other crimes in the direct appeal of Gore's resentencing:2

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.

Gore v. State, 706 So.2d 1328, 1331 (Fla. 1997).

Gore was convicted of the first-degree murder of Lynn Elliot ("Elliot"), the kidnapping of Elliot and Regan Martin ("Martin"), and three counts of sexual battery upon Martin. See Gore v. State, 475 So.2d 1205, 1206 (Fla. 1985). The jury recommended the death penalty for the murder of Elliot. See id. The trial court imposed the death sentence for the murder, and life sentences were imposed for the five other counts. See id.

On the initial direct appeal, Gore asserted the following claims involving the guilt phase:3 (1) the trial court erred in not permitting inquiry of the jurors with regard to a mercy recommendation; (2) the trial court erred by denying Gore's motion to suppress his confession; (3) the trial court erred by admitting into evidence two prejudicial photographs (one showed Elliot in the trunk of Gore's mother's car and the other showed Elliot's hands bound behind her back); (4) the trial court should have granted Gore's request for a mistrial because of an epileptic juror's interruption of Gore's counsel during closing argument; (5) the trial court erred in disallowing a demonstration in downtown St. Petersburg; (6) the trial court erred in precluding certain testimony of Detective Pisani; (7) the trial court erred by denying a request for a mistrial that was made due to comments and conduct by the State; (8) the trial court erred by denying a request for a mistrial that was made due to the testimony of Detective Kheun; (8) the trial court erred in restricting Gore's voir dire of the jury with regard to Waterfield's involvement; and (9) the trial court erred by denying Gore's motion for judgment of acquittal or motion for new trial. See id. at 1206-09.

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This Court denied all of Gore's claims in affirming his conviction and death sentence. See id. at 1211.

Gore petitioned for a writ of habeas corpus in the United States District Court for the Middle District of Florida. See Gore v. Dugger, 763 F.Supp. 1110 (M.D. Fla. 1989). In granting the petition, the federal court concluded that Gore's death sentence violated both Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore, 763 F.Supp. at 1119. After a new penalty phase proceeding was held, the jury unanimously recommended a death sentence. See Gore, 706 So.2d at 1331. The trial judge found the following six aggravators: (1) the capital felony was committed by a person under sentence of imprisonment (Gore was on parole for the armed trespass of a conveyance); (2) Gore's previous conviction for a violent felony (either for the armed trespass conviction, or the contemporaneous convictions for kidnapping and sexual battery); (3) the murder was committed while Gore was committing the offenses of sexual battery and kidnapping; (4) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest (Elliot was killed to prevent her from identifying Gore); (5) the capital felony was especially heinous, atrocious, or cruel ("HAC") (Elliot was abducted at gunpoint, tightly bound, sexually assaulted, and dragged across a driveway); and (6) the murder was committed in a cold, calculated, and premeditated manner ("CCP") (Gore's detailed plan and his threat to kill Martin accompanied by his statement that he was "going to do it anyway"). See id. The trial court found no statutory mitigating circumstances and five nonstatutory mitigating circumstances. See id. at 1331-32.4 The trial court found that the mitigating circumstances were substantially outweighed by the aggravating circumstances, and sentenced Gore to death. See id. at 1332.

On direct appeal, this Court affirmed the death sentence that was imposed during resentencing. See id. at 1336. In that proceeding, Gore asserted the following claims: (1) the trial court erred during jury selection by denying challenges for cause to eight venire members; (2) the trial court erred by permitting the State to mislead the jury as to Gore's parole eligibility, which included responses that the trial court provided to two questions presented by the jury during deliberations; (3) the trial court erred in finding that the previous armed trespass conviction constituted a prior violent felony; (4) the trial court erred in giving jury instructions on the HAC and CCP aggravators because the instructions were unconstitutionally vague, the jury should have been instructed on the prohibition against the doubling of aggravators when they are based on the same circumstances, and the jury should have been instructed on specific nonstatutory mitigation; (5) the trial court erred in finding that the avoid arrest, CCP, and HAC aggravators had been established; (6) the State violated its agreements with the defense by utilizing particular testimony from witness Robert Stone ("Stone");5

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(7) the trial court erred by allowing a police officer to opine that Gore had lied to him; (8) it was improper for a county court judge, Judge Vaughn, to preside over this capital sentencing; and (9) Gore's resentencing violated his right to a speedy trial. See id. at 1332-36.6 This Court denied all of Gore's claims. See id. at 1336.

On September 28, 1999, Gore filed a rule 3.850 motion for postconviction relief. On January 7, 2002, Gore filed an amended motion. On October 24, 2002, a Huff7 hearing was held. The trial court ordered an evidentiary hearing on claims III(1)(a), III(1)(b), and III(1)(c), which addressed counsel's presentation of witnesses and the failure to object to juror Tobin for cause; on claim III(3), which addressed the failure of Gore's counsel to elicit testimony with regard to the fee charged by the State's mental health expert, Dr. Cheshire; and on claim III(4), which addressed the failure of Gore's counsel to present witnesses to demonstrate that Gore suffered from neurological disorders. An evidentiary hearing was held and on June 9, 2004, the trial court issued an order that denied postconviction relief on all of his claims. This appeal followed.

MOTION FOR POSTCONVICTION RELIEF

I. Presentation of Untruthful Parole Possibilities

Gore asserts that the State knowingly presented the false testimony of Stone that Gore could receive parole at "any time," because of the new evidence discovered at the evidentiary hearing that Stone only met with the State prior to the resentencing to discuss his testimony and the State has imputed knowledge of the correct parole possibilities. A Giglio8 violation exists when (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. See Guzman v. State, 941 So.2d 1045, 1050 (Fla. 2006). Once the first two prongs are established, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury's verdict. See id. at 1050. Gore also asserts that he was prevented from arguing the correct sentencing alternative of life imprisonment without eligibility for parole for fifty years as a mitigating...

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