Gordon v. State

• Decision Date: 18 December 2003
• Docket Number: No. SC02-1212.,SC02-1212.
• Citation: 863 So.2d 1215
• Parties: Robert GORDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

863 So.2d 1215

Robert GORDON, Appellant, v. STATE of Florida, Appellee.

No. SC02-1212.

Supreme Court of Florida.

December 18, 2003.

Baron W. Given, Capital Collateral Registry, Bradenton, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Kimerly Nolen Hopkins, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Robert Gordon, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rules of Criminal Procedure 3.850 and 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the denial of Gordon's postconviction motion.

FACTUAL AND PROCEDURAL BACKGROUND

Gordon was found guilty of first-degree murder and sentenced to death for his role in the 1994 murder of Dr. Louis Davidson. The facts are set forth in detail in this Court's opinion following Gordon's direct appeal. See Gordon v. State, 704 So.2d 107 (Fla.1997)

. We affirmed Gordon's conviction and sentence on direct appeal. Gordon subsequently filed a timely motion for postconviction relief, and the trial court granted a Huff hearing on August 9, 1999.¹ Following the Huff hearing, the court summarily denied a number of Gordon's claims,² but directed an evidentiary hearing on four claims.³ Following the evidentiary hearing, the trial court denied Gordon's motion for postconviction relief in its entirety.

CLAIMS SUMMARILY DENIED

Initially, Gordon challenges the trial court's summary denial of claims which he argues warranted an evidentiary hearing. "To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or the record must conclusively refute them." Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000) (citing Florida Rule of Criminal Procedure 3.850(d); Peede v. State, 748 So.2d 253 (Fla.1999); and Rivera v. State, 717 So.2d 477 (Fla.1998)). In LeCroy v. Dugger, 727 So.2d 236 (Fla.1998), we further explained:

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.

LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).

JURY VENIRE

Gordon argues that the trial court erred in summarily denying his claim that trial counsel was ineffective in not effectively challenging the all-white venire from which his jury was selected. The standard for establishing a prima facie violation of the Sixth Amendment's fair cross-section requirement is set forth in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979):

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364, 99 S.Ct. 664. Because Gordon has not initially established a prima facie showing in his motion that black people were systematically excluded from the jury selection process, his claim was properly summarily denied by the trial court. In other words, Gordon has not set out in his motion a proper claim on the merits on this issue that counsel could have advanced. See Robinson v. State, 707 So.2d 688, 699 (Fla.1998)

(holding that trial court did not err in summarily denying claim where the petitioner "made no showing at trial or in his postconviction motion that blacks are systematically excluded from venires in St. Johns County"). Accordingly, we deny Gordon relief on this claim.

TESTIMONY OF SUSAN SHORE

Next, Gordon argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to move to exclude the testimony of an alleged accomplice, Susan Shore. However, as noted by the trial court, there would not have been a valid basis on which to exclude Shore's testimony, as the State has the right to call witnesses, in particular an accomplice, to testify against a defendant. See Hunt v. State, 613 So.2d 893 (Fla. 1992)

. Further, the record reflects that Shore was cross-examined regarding the circumstances of her plea agreement, and trial counsel emphasized her obvious self-interest in avoiding more serious punishment. We find no error in the summary denial of this claim.

We also find Gordon's argument on appeal that the State engaged in continued and "malicious prosecution" of Susan Shore as procedurally barred. "Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court." Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982). As noted by the State, this claim was not raised in Gordon's motion for postconviction relief.

OPINION TESTIMONY

Next, Gordon argues that the trial court erred in denying an evidentiary hearing on his claim that counsel was ineffective for failing to object to or strike the expert opinion testimony of witnesses Mary Anderson and Detective Michael Celona.⁴ However, we find no error in the trial court's conclusion that the testimonies of Mary Anderson and Detective Celona did not constitute expert testimony. Under section 90.702, Florida Statutes (2003), expert testimony is defined as "scientific, technical, or other specialized knowledge." The record demonstrates that Mary Anderson simply factually explained the contents of phone records that linked Gordon to Davidson's murder, and Detective Celona factually compared the locations on the phone records to locations on the cell site maps. Further, as noted by the trial court, while it is possible that Mary Anderson's lengthy experience with Cellular One informed her testimony and was useful in assisting the jury to understand the phone records, counsel also could not be deemed ineffective because if challenged, her record qualifications demonstrate that she would have been qualified as an expert on the matters she addressed. Since counsel cannot be deemed ineffective for pursuing futile motions, trial counsel cannot be deemed to have performed deficiently in this regard.

PENALTY PHASE JURY

Gordon also challenges the trial court's summary denial of his claim that trial counsel was ineffective for failing to seek a separate penalty phase jury. Gordon's postconviction motion alleges the following conduct as examples of counsel's ineffectiveness in this regard: (1) failing to seek a new penalty phase jury for Gordon different from the one which determined his guilt, and (2) failing to seek a penalty phase jury for the case against Gordon separate from the case against codefendant McDonald. However, having reviewed both instances on the merits, we conclude that the trial court did not err in determining that neither assertion constitutes ineffective assistance of counsel.

At the time of Gordon's 1995 trial, Florida law provided for a new penalty phase jury only in limited circumstances:

If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the imposition of the penalty.

See § 921.141(1), Fla. Stat. (1995) (emphasis added). As the trial court noted here, there was no legal basis demonstrated by Gordon in his postconviction motion for a separate penalty phase jury. Indeed, we have previously stated: "This Court has rejected the argument that separate juries should be empaneled for the guilt and penalty phases of all capital trials. Jurors must be able to follow the law as given by the trial judge, which includes following the judge's instructions to weigh aggravating and mitigating factors." Melton v. State, 638 So.2d 927, 929 (Fla.1994) (citation omitted).

Furthermore, with respect to the claim of neglect in not seeking separate penalty phase juries for Gordon and codefendant McDonald, this Court has explained:

Where co-defendants are tried together on a capital charge, there being no ground for a severance of the guilt-or-innocence phase of the trial, it is proper for the court to proceed with a joint sentencing trial so that the same jury that heard all the guilt-phase evidence can consider and weigh the relative roles and culpability of the offenders.

Maxwell v. Wainwright, 490 So.2d 927, 933 (Fla.1986). Here, where Gordon has not demonstrated in his postconviction motion a valid claim for severance or a separate jury on the merits that counsel could have advanced, it was entirely appropriate that the trial court deny this claim.

PROSECUTORIAL MISCONDUCT

Gordon contends that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to object to prosecutorial misconduct during closing argument. Gordon cites one statement. In closing, the prosecutor said, "He [Gordon] knows where that murder weapon was, and he knows what it is.... Gordon came out from Dr. Davidson's apartment, but he was by himself." Because the aforementioned guilt phase prosecutorial comment is the only one raised in Gordon's postconviction motion, it is the only one properly before this Court.

The trial court concluded that the comment was made in response to defense counsel's comments in closing regarding the absence of the murder weapon.⁵ We conclude the prosecutor's comment merely...