Gore v. Dugger, s. 72202

• Decision Date: 18 August 1988
• Docket Number: 72300,Nos. 72202,s. 72202
• Citation: 13 Fla. L. Weekly 474,532 So.2d 1048
• Parties: 13 Fla. L. Weekly 474 David Alan GORE, Petitioner, v. Richard L. DUGGER, etc., Respondent. David Alan GORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1048

532 So.2d 1048

13 Fla. L. Weekly 474

David Alan GORE, Petitioner, v. Richard L. DUGGER, etc., Respondent.

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

Nos. 72202, 72300.

Supreme Court of Florida.

Aug. 18, 1988.

Rehearing Denied Nov. 23, 1988.

Larry Helm Spalding, Capital Collateral Representative and Billy H. Nolas and Judith J. Dougherty, Office of the Capital Collateral Representative, Tallahassee, and Jerome H. Nickerson, Wheaton, Md., for petitioner-appellant.

Robert A. Butterworth, Atty. Gen., and Robert S. Jaegers, Georgina Jimenez-Orosa and Carolyn V. McCann, Asst. Attys. Gen., West Palm Beach, for respondent-appellee.

PER CURIAM.

This is a petition of David Alan Gore for a writ of habeas corpus seeking to set aside his death sentence and an appeal from the denial of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, §§ 3(b)(1), (9), Fla. Const. In order to give adequate consideration to the issues involved, this Court stayed Gore's impending execution. We now conclude that Gore is entitled to no relief.

Gore was convicted of the first-degree murder of Lynn Elliott, the kidnapping of Elliott, the kidnapping of Regan Martin, and three counts of the sexual battery of Regan Martin. Following a jury recommendation of death, the trial judge imposed the death sentence for the murder of Elliott and life sentences for the other crimes. This Court affirmed in Gore v. State, 475 So.2d 1205 (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).

The crimes were described in our opinion as follows:

Gore and his cousin picked up fourteen-year-old Regan Martin and seventeen-year-old Lynn Elliott who were hitchhiking to the beach. After the glove compartment in the pickup truck fell open and a gun became visible, Gore took the gun and held it to Regan's head. He grabbed the two girls' wrists and held them together. Gore then said that they should take the girls to Gore's home. He told the girls that if they said or did anything, they would be killed. When they arrived at his home, the girls were handcuffed and taken into a bedroom. The girls then were separated, and Lynn was tied up while Regan was handcuffed. Gore cut Regan's clothes off of her and sexually assaulted her on three separate occasions. Regan testified that she heard noises in the other room after Gore had left her. She heard Gore tell Lynn to shut up or he would kill her. Gore also told Regan to be quiet or he would slit her throat and that he would do it anyway. Gore then put Regan in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put Regan in the attic where she stayed until rescued by a police officer.

Michael Rock, a fifteen-year-old boy, testified that on July 26, 1983, while riding his bicycle in the area of Gore's home, he heard screaming and observed a naked girl running down the driveway being chased by Gore who was also naked. He saw Gore catch up to her, drag her back to a palm tree, and shoot her twice in the head. Rock went home and told his mother, and she called the police. The police arrived and surrounded Gore's home. Lynn's body was found in the trunk of the car in the driveway. Her arms and legs had been tightly bound with rope. She had multiple abrasions on her body consistent with falling and being dragged. The gun used to kill her was found in Gore's home.

Id. at 1206.

Gore raises a number of points, but we only find it necessary to discuss one of them. In both his petition and his appeal, Gore claims that because of omissions of counsel, he was deprived of the opportunity of presenting pertinent nonstatutory mitigating evidence during the penalty phase of his trial.

At the charge conference which preceded the testimony at the penalty phase, Gore's counsel said that he planned to have Gore's brother-in-law testify that Gore was acting strangely the weekend before the killing and that after the crime he had found a half empty bottle of vodka and some pills in Gore's bedroom. He intended for this witness and Gore's mother and father to say that because of the way he was acting, they believed that he was drinking. The judge deemed this irrelevant because there was no evidence that Gore was drinking while the women were in his custody, and Martin testified that he did not appear drunk. At the postconviction hearing, Gore's father, uncle and brother-in-law testified that Gore was usually quiet, but when he drank his personality changed and he would become very talkative. The brother-in-law said that when he had had dinner with Gore the night before the murder, Gore was at first talkative but later became quiet and appeared nervous. He said that Gore did not take a drink in his presence. Gore's uncle said that Gore seemed to be acting strangely the night before the crime.

From an examination of the record, it appears that to the extent that evidence was available concerning the possibility of drinking, Gore's trial counsel sought to have it introduced. The trial judge sustained the state's objection based on relevancy. Hence, trial counsel cannot be faulted for failing to present the evidence. On appeal, Gore's appellate counsel asserted in point XVIII of the brief that the judge had erred in refusing to permit evidence concerning the possibility of drinking. While this issue is not specifically mentioned in the opinion, this Court denied all of Gore's assertions. Hence, it is evident that neither counsel was ineffective.

In the penalty phase of the trial, Gore's attorney also sought to have Gore's mother testify concerning the close relationship between her son and his cousin, Freddie Waterfield who accompanied Gore when they picked up Elliott and Martin on the highway. Gore's mother was prepared to say that they had been close friends most of their lives and that because of Waterfield's dominating personality, he had a strong influence on Gore's conduct. The trial judge sustained the state's objection to this testimony on grounds of relevancy. At the postconviction hearing, other relatives also testified of Waterfield's influence upon Gore.

It is likewise clear...