Gorby v. State

• Decision Date: 11 April 2002
• Docket Number: No. SC95153, No. SC00-405.
• Citation: 819 So.2d 664
• Parties: Olen Clay GORBY, Appellant, v. STATE of Florida, Appellee. Olen Clay Gorby, Petitioner, v. Michael W. Moore, etc., Respondent.
• Court: Florida Supreme Court

819 So.2d 664

Olen Clay GORBY, Appellant, v. STATE of Florida, Appellee.

Olen Clay Gorby, Petitioner, v. Michael W. Moore, etc., Respondent.

Nos. SC95153, SC00-405.

Supreme Court of Florida.

April 11, 2002.

Rehearing Denied June 11, 2002.

Gregory C. Smith, Capital Collateral Representative, and Bret B. Strand, Assistant Capital Collateral Counsel, Northern Region, Tallahassee, FL, for Appellant/Petitioner.

Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Capital Appeals, Tallahassee, FL; and Richard B. Martell, Special Assistant Attorney General, Fort Lauderdale, FL, for Appellee/Respondent.

PER CURIAM.

Olen Clay Gorby appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Gorby also has petitioned this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. For the following reasons, we affirm the trial court's order denying Gorby's motion for postconviction relief. We also deny Gorby's petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The facts of this case were presented in Gorby v. State, 630 So.2d 544, 545-46 (Fla. 1993):

Gorby was paroled from a Texas prison on April 11, 1990. [n. 1] Later that month he met Robert Jackson, who offered him a ride to Tennessee. At trial Jackson testified that, after a couple of days in Tennessee, they drove to Panama City, Florida. The two men had a falling out, and Jackson went back to Tennessee. He returned to Panama City on Sunday, May 6, and checked into a homeless shelter. During a church service at the shelter that evening, Gorby came in and thanked everyone for the help they had given him and then left. The victim, who was crippled from polio, occasionally picked up people from the shelter to do odd jobs around his home. Two witnesses testified that they saw Gorby with the victim on May 6. The next day the victim's neighbor saw a note on the door of his house trailer. The note, saying he would return on Tuesday, aroused her suspicions, and, on entering the trailer, she found the victim dead of head injuries. A handwriting expert testified that Gorby, not the victim, wrote the note, and Gorby's fingerprint was found on a jar in the victim's kitchen. Receipts tracked the victim's credit cards through Louisiana and Texas.

[Note 1]. He had been serving a sentence for burglary of a dwelling. Gorby has an extensive criminal history dating back to 1968 with multiple convictions of, among other things, burglary, robbery, armed robbery, and attempted homicide. He committed these crimes in six states under at least a dozen different names.

On May 8, 1990, Gorby arrived at his friend Allan Brown's home in San Antonio, Texas, driving the victim's car. Brown and his wife saw Gorby replace the car's Florida license plate with Louisiana plates. Gorby told them that he had killed someone and stolen the car and some credit cards. Several days later Gorby sold the car to Cleo Callaway. A BOLO [n. 2] had been issued for the car because of its connection with a homicide, and on June 19 the police found the car and arrested Callaway. San Antonio police arrested Gorby several days later, and he was extradited to Florida. Gorby made a statement acknowledging that he knew the victim, but claiming that Jackson killed the victim and stole his car and credit cards.

[Note 2]. Be on the look out.

The state charged Gorby with first-degree murder, grand theft auto, burglary with a battery, and armed robbery. The jury convicted him as charged on the first three counts and of robbery on the fourth. At the penalty phase the jury recommended that Gorby be sentenced to death, which the trial court did.

The jury voted 9-3 to recommend a sentence of death. The trial court found four aggravating factors,¹ and no statutory mitigating factors. The trial court also found several nonstatutory mitigating factors,² but also determined that they did not outweigh the aggravating factors and, therefore, a sentence of death was appropriate. In October 1995, Gorby filed his first motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In May 1997, he filed an amended 3.850 motion with a total of thirty-two claims.³ After conducting a Huff hearing,⁴ the trial court granted an evidentiary hearing on all or part of seven claims,⁵ and summarily denied the remaining claims, finding them to be either procedurally barred, insufficiently pled, or lacking a basis on which relief could be granted. After the evidentiary hearing, the postconviction judge denied relief on all seven of the claims for which evidence was presented.⁶

3.850 APPEAL

Gorby raises five broad claims,⁷ with numerous subclaims, in his 3.850 appeal. Several of Gorby's claims are procedurally barred or lack merit, and require little further discussion.⁸

Gorby contends that his trial counsel was ineffective in the penalty phase for failing to properly investigate the existence of mitigation evidence and for failing to present that mitigation evidence to the jury. To establish a claim of ineffective assistance of counsel, two elements must be proven:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216, 219 (Fla.1998)

. Moreover, to establish prejudice:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Rutherford, 727 So.2d at 220. We determine that all of Gorby's assertions of ineffective assistance based on the failure to investigate and present mitigation evidence are unavailing.

Gorby contends that his trial counsel was ineffective for failing to interview his father, Ernie, and for interviewing his other family members in a group instead of individually. We reject both assertions. Trial counsel conducted a phone interview with Gorby's father and determined, as a reasonable tactical decision, that the father had very little, if any, interest in assisting with his son's case. An attorney's reasoned tactical decision not to present evidence of dubious mitigating value does not constitute ineffective assistance. See Porter v. State, 478 So.2d 33, 35 (Fla.1985)

. Furthermore, if Gorby's father had testified during the penalty phase, the majority of his testimony would have been cumulative to that of Dr. John Goff, Gorby's confidential mental health expert who testified during the guilt-innocence phase, as well to that of Gorby's other family members who testified during the penalty phase. Gorby also insists that his father's unique insight into Gorby's single visit to a psychiatrist when he was twelve years old would have provided significant mitigation evidence. We disagree. When testifying at the evidentiary hearing on Gorby's 3.850 motion, Dr. Goff stated that the new information provided to him by Gorby's collateral counsel served mainly to confirm his pre-trial diagnosis that Gorby suffered from organic personality syndrome and alcohol dependence. Dr. Goff testified at length concerning Gorby's mental condition during the litigation. There is no reasonable probability that had it been presented to the jury, information regarding Gorby's lone visit to a psychiatrist nearly thirty years before he committed the murder in question would have affected the outcome of the penalty phase.⁹

Gorby also asserts his trial counsel was ineffective for not providing Dr. Goff with evidence of Gorby's childhood drinking. He further argues that his trial counsel was ineffective for not calling Dr. Goff to testify during the penalty phase. The record refutes these assertions. Dr. Goff testified in detail during the guiltinnocence phase concerning the effects of alcohol dependence on Gorby's behavior, the impact of an organic personality syndrome, and the implications from head trauma Gorby suffered while he was a young boy, which occurred in a collision with a moving vehicle. Dr. Goff further stated that these factors could have made Gorby act impulsively, with a "hair trigger." Equally important, during the penalty phase Gorby's trial counsel summarized for the jury Dr. Goff's testimony from the guilt-innocence phase, and argued that it should be considered as evidence of statutory mental health mitigation.¹⁰ Furthermore, the trial judge found as nonstatutory mitigation that Gorby's drinking contributed not only to his having some inability to conform his conduct to the requirements of law but also to his having suffered some level of emotional disturbance. When the above facts are juxtaposed against the four strong aggravators found in Gorby's case we determine, as did the postconviction judge, that there is no reasonable probability of a different outcome during the penalty phase. Therefore, Gorby is not entitled to relief.¹¹

Gorby makes numerous miscellaneous contentions regarding his trial counsel's failure to present mitigating evidence. We determine that each is either wholly unsupported by evidence, was actually presented as mitigation evidence, or is related to nonstatutory mitigation found to exist by the trial judge.¹² Therefore, with regard to...