Gore v. State

Decision Date01 October 1998
Docket NumberNo. 86249,86249
Citation719 So.2d 1197
Parties23 Fla. L. Weekly S518 Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

John H. Lipinski and Maria Brea Lipinski, Miami, and Anthony Genova, Miami, for Appellant.

Robert A. Butterworth, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.


We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Marshall Lee Gore. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We reverse for a new trial based on the cumulative effect of the prosecutor's improper cross-examination of Gore and improper closing argument. 1


Gore was tried in 1995 for the murder of Robyn Novick, last seen alive on March 11, 1988, in the company of a white male resembling Gore. In the early morning hours of March 12, Gore was seen driving Novick's automobile, which he later wrecked and abandoned.

Four days later, on March 16, police found Novick's nude body beside the road in a rural area of Dade County used for dumping trash. She had been stabbed and strangled. The trial court allowed the State to introduce evidence of Gore's similar crimes against two victims--Susan Roark and Tina Corolis 2--for the limited purpose of establishing Gore's identity as Novick's murderer.

Gore took the stand on his own behalf. He admitted that he knew Novick and that he had been with her on the night she disappeared. He claimed that Novick loaned her automobile to him. He admitted wrecking and abandoning the automobile, but denied killing Novick.

The jury found Gore guilty of first-degree murder and armed robbery of Novick. The trial court imposed the death penalty following a unanimous jury recommendation. At the time of the Novick conviction, Gore was under sentence of death for the murder of Roark and was serving a life sentence for the rape, robbery and attempted murder of Corolis. Both sentences were affirmed on appeal. See Gore v. State, 599 So.2d 978 (Fla.1992); Gore v. State, 573 So.2d 87 (Fla. 3d DCA 1991).

On appeal in this case, Gore raises six issues regarding the guilt phase of his trial and two issues regarding the penalty phase. Because we find it dispositive in this appeal, we address only one of the guilt phase issues: Whether the prosecutor committed reversible error during the cross-examination of Gore and during closing argument.

A. Child Abuse

Prior to trial, the State filed a notice of intent to introduce Williams 3-rule evidence, pursuant to section 90.404(2)(b)1, Florida Statutes (1995), concerning Gore's similar crimes against Corolis and Roark. The State argued that the evidence was admissible to demonstrate a unique modus operandi establishing Gore's identity as Novick's murderer. In permitting the State to introduce evidence of those two crimes, the trial court explicitly precluded the State from introducing the details of what occurred after Gore left Tina Corolis for dead. Specifically, these details included the fact that Gore took Corolis's automobile with Corolis's two-year-old son inside and then drove the child to Georgia, where he left the child naked and locked in the pantry of a burned and abandoned house in freezing temperatures. In its pretrial ruling, the trial court found that reference to details concerning the child "would be prejudicial and outweigh[ ] any probative value."

During defense counsel's direct examination, Gore testified that he was the biological father of the child. The prosecutor, on cross-examination, questioned Gore about this assertion. Without first seeking the trial court's permission, the prosecutor proceeded to ask the following inflammatory questions:

Q. Now, let's talk about your son Jimmy for a moment, who you say is your son?

A. Yes. Tina says it too.

Q. By the way, would you tell the Ladies and Gentlemen of the Jury why on the 16th of March of 1988, after leaving Tina on the side of the road, you left two-year-old, who you say is your son, Jimmy, locked in an abandoned house in Georgia, naked in 30 degree weather?

Defense counsel lodged a timely objection, which the trial court overruled. 4 During closing argument, the prosecutor again referred to the kidnapping and abandonment of the child as one of the reasons the jury should disbelieve Gore's testimony.

We begin our analysis with the basic proposition that in order to be admissible, evidence must be relevant. See § 90.402, Fla. Stat. (1995). Relevant evidence is defined as evidence "tending to prove or disprove a material fact." Id. § 90.401. However, the admission of relevant evidence is restricted by the mandate of section 90.403, Florida Statutes (1995), which provides that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice." Section 90.403 compels the trial court to engage in this balancing test. See Steverson v. State, 695 So.2d 687, 688 (Fla.1997).

In its pretrial ruling, the trial court properly precluded the State from introducing evidence concerning Gore's kidnapping and abandonment of Corolis's son. We are initially concerned with the State's blatant disregard of the trial court's specific pretrial ruling. "The foundation of our legal system depends on fidelity to rules." Halsell v. State, 672 So.2d 869, 870 (Fla. 3d DCA 1996). If, as the State urges here, the prosecutor genuinely believed that Gore had opened the door to this inquiry by his testimony on direct examination, see generally Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997), the proper method of proceeding would have been to first inquire of the trial court whether it would modify its earlier ruling, thus giving defense counsel an opportunity to respond fully. In this case, the "cat" was already "out of the bag," and the damaging statement made, before defense counsel could interpose the objection.

The State maintains that its cross-examination on this subject was nonetheless proper for two reasons: (1) to impeach Gore's credibility; and (2) because the inquiry was within the scope of Gore's testimony on direct. Even if the cross-examination constituted potential impeachment or was within the scope of direct, the evidence must still pass the balancing test of section 90.403 to be admissible. In this case, the prosecution was permitted to introduce evidence of Gore's attempted murder of Corolis only for the limited purpose of establishing Gore's identity as Novick's murderer, and then only with a cautionary instruction to the jury limiting the scope of its consideration of this evidence. 5 Neither the issue of Gore's paternity of the child nor Gore's conduct toward the child after attacking Corolis was relevant to establish the similarity of the collateral crime involving the attempted murder of Tina Corolis. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990); Witherspoon v. State, 645 So.2d 146, 147 (Fla. 3d DCA 1994).

The improper admission of collateral crimes evidence is "presumed harmful" because the jury might consider the bad character thus demonstrated as evidence of guilt of the crime charged. Czubak, 570 So.2d at 928. Undoubtedly, this questioning of Gore was highly prejudicial in that it involved Gore's reprehensible action of leaving a two-year-old child naked in a burned and abandoned house in thirty-degree weather. Assuming that the State's intent was to impeach Gore's statement that he was the child's father, Gore's conduct towards the child does not necessarily disprove paternity, and there were other less prejudicial means to contradict Gore's representation that he was the child's father. It is likely that the jury considered this evidence to establish Gore's bad character, and not solely as impeachment of his statement concerning the child's paternity. Any probative value of this inquiry was marginal and clearly outweighed by the tremendous prejudice resulting from the jury hearing of these despicable actions. See Sexton v. State, 697 So.2d 833, 837-38 (Fla.1997).

B. Other Collateral Crimes

On three separate occasions during cross-examination, the prosecutor questioned Gore as to whether he had sex with a thirteen-year-old girl. However, the State failed to file a notice of intent to introduce any collateral crimes evidence involving the thirteen-year-old, nor otherwise sought the trail court's permission to question Gore regarding this crime. Nonetheless, the trial court overruled defense counsel's timely objections to these questions. These questions had no relevance in this trial other than to prove that Gore was a morally reprehensible individual. Because the sole relevance of this evidence could only be to demonstrate Gore's bad character, it was inadmissible. See Czubak, 570 So.2d at 928.

In addition, during Gore's cross-examination the prosecutor asked questions about another female, Maria Dominguez. While the State argues that the questions asked concerning Dominguez were themselves innocuous, the State makes no pretense of explaining why the questions were asked in the first place. These questions could only serve to suggest to the jury Gore's involvement in yet another collateral crime against a female victim, close in time to the crime charged. This aspect of the State's cross-examination impermissibly placed before the jury presumptively prejudicial collateral crime evidence without an appropriate predicate for its admissibility having been established. Like the questioning concerning the collateral crime of sex with a thirteen-year-old girl, this questioning could only demonstrate Gore's bad character or propensity to commit crime, and was thus improper. See id.


In addition to the improprieties concerning collateral crime evidence, the prosecutor twice exhorted the jurors during closing argument to convict Gore if they disbelieved his testimony:

You see, when I...

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