Every opinion on this page is about one afternoon, July 26, 1983. Lynn Elliott, seventeen, and a fourteen-year-old friend were hitchhiking to the beach when David Alan Gore and his cousin stopped a pickup for them. By the court’s account the glove compartment fell open on a gun, Gore held it to the younger girl’s head, and the two were handcuffed and taken to his parents’ house in Vero Beach, where Elliott was tied up in one bedroom and her friend was raped three times in another. Elliott got loose and ran down the driveway naked, her hands still bound. A fifteen-year-old boy riding past on his bicycle watched Gore catch her, drag her back toward a palm tree and shoot her twice in the head, then pedaled home and told his mother. The police who surrounded the house found Elliott’s body in the trunk of a car in the driveway and her friend alive in the attic.
Gore was tried in St. Petersburg and convicted in March 1984 of Elliott’s murder, both kidnappings and three counts of sexual battery. The judge who refused to suppress his confession remarked that he had been an auxiliary police officer and knew how arrests worked. The Florida Supreme Court affirmed the death sentence in 1985 and, in 1988, turned down his first post-conviction challenge, holding that it made no difference that his mother had been barred from telling the jury how much his cousin, Fred Waterfield, dominated him. The federal courts disagreed. A district judge found in 1989 that the sentencing jury had been kept from nonstatutory mitigating evidence, and the Eleventh Circuit, in the short 1991 ruling printed here, held that the error could not be called harmless. A second jury recommended death, and he was resentenced in December 1992; the Florida Supreme Court’s 1997 affirmance of that sentence is cited throughout the later opinions but is not among them. The 2007 opinion rejects a long list of complaints against the lawyers at the resentencing, and the last ruling, dated April 9, 2012, affirms the summary denial of five claims he raised after Governor Rick Scott signed his death warrant.
Most of what made Gore notorious is not in these pages. Elliott was the last of six women and girls killed in Indian River County between 1981 and 1983, and the only one for whom he was sentenced to die. The others, whose remains were found after his arrest, were Hsiang Huang Ling, forty-eight, and her daughter Ying Hua Ling, seventeen; Judith Kay Daley, thirty-five; and Barbara Ann Byer and Angelica LaVallee, both fourteen. He received life sentences for their deaths, though the press accounts published at his execution disagree over whether those terms covered all five killings or three. None of those cases reached an appellate court in a published opinion, and none of those names appears below. Waterfield appears only as the cousin who drove, and as the basis of an argument that a man the State called equally guilty had been spared death. Gore was executed at Florida State Prison on April 12, 2012, three days after the last opinion here, and was pronounced dead at 6:19 p.m. His final statement, as corrections officials recorded it, apologized to Elliott’s parents and said, “I wish above all else my death could bring her back.”
The girl who survived that afternoon was fourteen, and she is the victim of the three sexual batteries in the judgment. When the Florida Supreme Court quoted its own 1985 account of the facts in 2012, it printed her as [R.M.], and we have followed it through the earlier opinions, where her name appears in full more than thirty times. The boy on the bicycle, fifteen when he testified, is M.R. The juror whose epileptic attack interrupted the defense closing, and who was excused and replaced by an alternate, is Mr. B. Lynn Elliott keeps her name, as do Gore, Waterfield, the detectives, the mental health experts, the lawyers and the judges.
These are appellate opinions, and an appellate court does not find facts. The account of July 26, 1983, that opens the 1985 opinion is the evidence as the jury was entitled to believe it, written by judges asking whether the trial had been fair, and it recurs almost word for word in 1988 and 2012 because each later court simply quoted it. The fights in these pages are about other things: the confession, two photographs of Elliott’s body, the juror’s collapse, the testimony about Waterfield that the first jury never heard, and the lawyers at the second sentencing, who argued that Gore had been drunk that day and were met by the surviving girl’s testimony that he did not smell of alcohol and three officers who saw no sign of it. The 1991 federal ruling is the only decision here that went his way, and it won him a new sentencing hearing, not a new trial.
The opinions are published law of Florida and of the United States, and nobody owns them: they may be read, quoted and reproduced in full. The text comes from the official reporters as digitized by the Caselaw Access Project at Harvard Law School, and it was typeset rather than scanned, so there was nothing to repair and we have not corrected a word. The one change is to the line breaks. Sixty-three words that the printed columns split in two, among them Wa-terfield, Peters-burg and resentenc-ing, have been closed up where the same word appears whole elsewhere in the file; a few that never appear whole, such as Molet-teire in a law firm’s name and evi-denee, are left as the page broke them. The 2012 opinion dates the guilty verdict March 15, 1984, while execution summaries compiled in 2012 give March 16, which may be the day of sentencing; the opinions do not settle it. The rulings run in date order, and the footnotes of the 1991, 2007 and 2012 decisions follow each one under its own heading.
David Alan GORE, Appellant, v. STATE of Florida, Appellee.
No. 65201.
Supreme Court of Florida.
Aug. 22, 1985.
Rehearing Denied Oct. 21, 1985.
Richard Salibá of Saliba & McDonough, Vero Beach, for appellant.
Jim Smith, Atty. Gen., Gregory C. Smith and Robert S. Jaegers, Asst. Attys. Gen., West Palm Beach, for appellee.
[OPINION BY ALDERMAN, Justice. type=majority]
ALDERMAN, Justice.
David Alan Gore appeals his convictions for murder in the first degree, two counts of kidnapping, and three counts of sexual battery, and his sentence of death. Finding no reversible error, we affirm his convictions and his death sentence.
Gore and his cousin picked up fourteen-year-old R.M. 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 R.M.’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 R.M. was handcuffed. Gore cut R.M.’s clothes off of her and sexually assaulted her on three separate occasions. R.M. 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 R.M. to be quiet or he would slit her throat and that he would do it anyway. Gore then put R.M. in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put R.M. in the attic where she stayed until rescued by a police officer.
M.R., 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. M.R. 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.
Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of R.M., and for three counts of sexual battery of R.M. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.
Gore challenges his convictions on a multitude of grounds. He initially contends that the court reversibly erred in not permitting him to inquire of the various jurors as to their feelings, attitudes, or prejudices regarding a recommendation of mercy. The trial court sustained the state’s objection to the following question posed by defense counsel during voir dire: “Concerning the death penalty, is there someone here that feels so strongly in favor of the death penalty that you would never under any circumstances be able to recommend mercy in a case in which the defendant was convicted of first-degree murder? ” After the state’s objection that there is nothing in the statute that says anything about mercy, the following colloquy between counsel and the trial court transpired:
THE COURT: Of course, what we’re doing here, gentlemen, with all due respect, we’re getting into the lawyers making comments on what the law is. As I understand it, the jury, their function, first of all, is to determine innocence or guilt as to the first count....
MR. STONE: It bothers me, the word. That’s under the old statute, whether you recommend mercy. It has nothing to do with this case.
MR. LONG: Your Honor, a juror can recommend—
THE COURT: I’ll permit you — I’m going to permit you to ask this jury would they under no circumstances because they’ve got such a conviction of the death penalty, they cannot render an advisory opinion back to this Court with reference to life imprisonment not to exceed twenty-five years.
MR. STONE: But the' use of the word mercy, that no longer exists. That has nothing to do with the statute whatsoever.
THE COURT: If they’re so strong in their belief at this point. Mercy is not involved.
THE COURT: The objection is sustained as not a valid instruction to the law.
Citing Poole v. State, 194 So.2d 903 (Fla.1967), and Thomas v. State, 403 So.2d 371 (Fla.1981), Gore argues that he was denied the opportunity to ascertain whether the jurors were prejudiced and was thereby denied his right to a fair and impartial jury. In Thomas v. State, we addressed the issue of whether a juror who admitted in voir dire that he could not recommend any mercy in any required sentencing phase under any circumstances should have been excused for cause at the defendant’s request.
We held that the juror should have been excused for cause because of a fundamental violation which was the actual presence of expressed bias against the defendant in the sentencing phase of his capital trial. In Thomas, reiterating what we had formerly said in Poole, we held:
Although the jury’s role in the sentencing phase is an advisory one, it is significant to a defendant since a trial court may not impose the death penalty following a jury’s advisory sentence of life imprisonment unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). We have previously held that it was error for a trial judge to refuse to allow defense counsel to propound any voir dire inquiry as to the issue of mercy, since “[s]uch inquiry ... could conceivably be determinative of whether the defense should challenge a juror — either for cause or peremptorily.” Poole v. State, 194 So.2d 903, 905 (Fla.1967) (emphasis supplied). The admitted refusal of juror Roberts to weigh mitigating circumstances in the sentencing phase presents a clear case in which a challenge for cause should have been granted.
403 So.2d at 376.
In the present case, however, unlike Thomas, juror bias and prejudice do not appear from the record before us. Although the trial court should have allowed Gore to propound questions to the jury as to their bias or prejudice in recommending a life sentence, we hold that the voir dire of the jurors read in its entirety evidences that this error does not amount to reversible error, but rather was harmless error beyond a reasonable doubt. The jury was thoroughly questioned in regard to their attitudes toward the death penalty and whether they felt it should be automatically imposed or whether they would follow the court’s instructions and make sure the circumstances were, proved to support it before they would consider it. Gore has not shown that his jury was made up of one or more persons unalterably in favor of the death penalty or that any of the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. In our recent decision of Fitzpatrick v. State, 437 So.2d 1072 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), we found that Fitzpatrick was unlike Thomas because
none of the four veniremen ever indicated that he was unalterably opposed to recommending life sentences for convicted murderers. Their statements only indicated a tendency toward being in favor of the death penalty. “A man who opposes the death penalty, no less than the one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” ... A judge need not excuse such a person unless he or she is irrevocably committed to voting for the death penalty if the defendant is found guilty of murder and is therefore unable to follow the judge’s instructions to weigh the aggravating circumstances against the mitigating circumstances.
437 So.2d at 1075-76. We hold that the trial court did not reversibly err in sustaining the state’s objection.
We find no merit to Gore’s claim that the trial court erred in denying his motion to suppress his confession. The record supports the trial court’s specific ruling that Gore intelligently and voluntarily waived his right to counsel and expressed his wish to proceed without counsel to give the subject confession. In denying this motion, the trial court explained:
And the evidence is that he was an auxiliary police officer. That he had education, experience with reference to arrest et cetera. Whether or not he made an intelligent waiver of his right to counsel during his statement, in the court’s opinion he was given Miranda at the Indian River County Jail, and he stated that he did wish to proceed without a lawyer and did proceed and did intelligently answer the questions. And it was only after some more incriminating statements were beginning to be asked that he at that time asked for counsel and stated I believe he did not want to proceed further without counsel and the interrogation did, of course, cease. So, the motion to suppress the statement will be denied, and it’d be admitted during the course of the trial.
Then after more discussion regarding the trial court’s ruling, the court, to make its finding perfectly clear, stated: “Well, let me make my ruling specific so there’d be no misunderstanding of what I'm doing. I’m stating that there was an intelligent waiver of the right of counsel, intelligently done at the Indian River County Jail wherein Mr. Gore specifically stated after Miranda that he wished to proceed without counsel.” Gore’s statement that he wanted to get something off his chest and then he wanted to see a lawyer was not confusing and in need of further clarification. See Cannady v. State, 427 So.2d 723 (Fla.1983). He indicated unequivocally that he wanted to talk to the police authorities and that after getting something off his chest, he then wanted to speak to a lawyer.
We reject Gore’s contention that the trial court reversibly erred in allowing into evidence two prejudicial photographs, one depicting the victim in the trunk of Gore’s mother’s car and the other showing the hands of the victim behind her back. The test of admissibility of photographs such as these objected to by Gore is relevancy and not necessity. These photographs met the test of relevancy and were not so shocking in nature as to defeat their relevancy. Bush v. State, 461 So.2d 936 (Fla.1984); State v. Wright, 265 So.2d 361 (Fla.1972). These photographs placed the victim in Gore’s mother's car, showed the condition of the body when first discovered by the police, and showed the considerable pain inflicted by Gore in binding the victim.
Gore also argues that the trial court should' have granted his request for a mistrial due to an epileptic juror’s interruption of defense counsel during closing argument. Defense counsel told the court that he had heard this juror who suffered a slight attack during trial say two or three times, “goddamn you, (laughing).” After the seizure, the jury was immediately taken from the courtroom, and the juror was given medical attention. The trial court denied Gore’s motion for mistrial, substituted an alternate juror in place of the excused epileptic juror, and gave the following explanation and curative instruction to the jury:
THE COURT: Ladies and gentlemen of the jury, we are concerned about Mr. B.’s health. Under the circumstances I am excusing Mr. B. so that he can go about his own personal affairs and I believe we do have someone in attendance with him.
Ladies and gentlemen, any outburst that Mr. B. made or may not have made — I did not hear — but I want to state to you, as I’ve stated to you from the very beginning; this case must be tried solely on the evidence and on the law and nothing else.
Can each of you assure me that you will make your decision in this case solely on the law and nothing else?
Is there anything that Mr. B. has stated that would in any way influence this jury and carry any comments he may or may not have said into the jury room?
All right. We’re sorry for the interruption of the defense’s argument. Mr. Phillips, you may proceed.
We find that the trial court’s curative instruction was adequate. Whether substantial justice requires the granting of a mistrial is a determination within the sound discretion of the trial court, and the dealing with the conduct of jurors is also left to the discretion of the trial court. Doyle v. State, 460 So.2d 353 (Fla.1984). In the present case, we find no abuse of discretion.
We further reject Gore’s contention that the court reversibly erred in disallowing Gore’s request for a demonstration in downtown St. Petersburg of the distance of 356 feet, erred in precluding certain testimony of Detective Pisani, erred in denying a mistrial due to certain comments and conduct of the prosecutor, erred in denying a mistrial upon Gore’s motion relating to Detective Kheun’s testimony, erred in restricting his voir dire of the jury relating to his cousin’s involvement, and erred in denying his motion for judgment of acquittal or motion for new trial. We also reject as without merit Gore’s challenge to the jury selection process. See Lara v. State, 464 So.2d 1173 (Fla.1985); Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981).
In addition to reviewing the record in light of the errors asserted by Gore, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. Finding no reversible error, we affirm his conviction.
Gore also challenges his sentence of death on a multitude of grounds. The jury recommended the death sentence, and the trial court entered the death sentence, finding as aggravating circumstances that the miirder was committed while Gore was under sentence of imprisonment because he was on parole; that the murder was committed while Gore was engaged in the commission of two kidnappings and three sexual batteries; that the murder was committed for the purpose of avoiding or preventing a lawful arrest; that this murder was especially wicked, evil, atrocious, or cruel; and that this murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial court found none of the statutory mitigating circumstances to be applicable. It also considered “any other. aspect of Gore’s character or record” or any circumstances of the offense and found that no circumstance of the offense could in any way act in mitigation. Insofar as concerns “any other aspect of Gore’s character or record,” the trial court found that Gore was affectionate and considerate to his family members; that a minister testified that he was a “born again” Christian since his arrest for murder; that he was not a deprived child and was not rejected by his family; that, on the contrary, he was given all the love and attention any parent could give a child; and that, based on all the evidence, the mitigating circumstance relative to “any aspect of Gore's character or record” does apply. The court concluded that sufficient aggravating circumstances exist to warrant imposition of the death penalty upon Gore and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
Constitutional challenges to Florida’s death penalty statute identical to those now being made by Gore have been previously rejected by this Court.
Gore’s argument that he is entitled to a statement of aggravating circumstances prior to trial is without merit. We have repeatedly rejected this claim. In Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982), we explained that the death penalty statute sets out the aggravating factors to be considered in determining whether the death sentence should be imposed and that this statute limits consideration to the statutory factors listed. Therefore, we concluded, there is no reason to require the state to notify defendants of the aggravating factors that the state intends to prove.
The trial court did not err in instructing the jury during the penalty phase. It did not erroneously restrict Gore’s closing argument during the penalty phase. Gore’s arguments that the court erred in not directing a verdict of life and that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), applies and precludes the imposition of the death penalty in this case are also completely without merit.
He also contends that the aggravating circumstances that the murder was committed to prevent a lawful arrest and that the murder was heinous, atrocious, or cruel were not proven beyond a reasonable doubt. We disagree and hold that these
circumstances were established by the evidence beyond a reasonable doubt. With regard to its finding of the existence of these circumstances, the trial court accurately explained:
The crime for which the Defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. This aggravating circumstance does apply in this case and therefore was considered by the Court regarding imposition of sentence because the evidence shows conclusively that the dominant or only motive for the Defendant murdering one of the victims who was in the process of escaping was to prevent her identification of him as the perpetrator of the kidnapping and to thereby avoid or prevent the Defendant’s arrest.
The crime for which the Defendant is to be sentenced was especially wicked, evil, atrocious or cruel. This aggravating circumstance does apply in this case and therefore was considered by the Court regarding imposition of sentence based upon the following evidence: The homicide victim was a seventeen year old girl who was hitchhiking along with her younger friend, another schoolgirl. After the Defendant and his cousin offered the two girls a ride, the Defendant pulled a gun on them and repeatedly threatened to' kill the homicide victim when she started crying. The homicide victim and her friend were subsequently handcuffed together while enroute to the Defendant’s residence. Upon arrival at the residence, the handcuffs were removed from the girls and the homicide victim was hogtied so tightly that a welt formed on one of her limbs. While the homicide victim was inside the residence, the Defendant committed a sexual battery upon her between the intervals he committed three sexual batteries upon her friend. When the homicide victim managed to escape from the residence, the Defendant pursued her, firing his gun. After she fell on the ground, the Defendant grabbed her and began pulling her back towards the residence. The Defendant then shot her twice in the head, killing her. The horror and terror experienced by the homicide victim and the torture and pain inflicted upon her prior to her death places this murder case outside the norm of first-degree murder cases.
We also reject Gore’s claim that the evidence does not support the trial court’s finding that this murder was cold, calculated, and premeditated without any pretense of moral or legal justification. The facts of this case are sufficient to show the heightened premeditation required for the application of this aggravating circumstance. We find no merit to Gore’s other challenges to his death sentence.
Accordingly, finding no reversible error and that the death penalty is proportionately warranted under the circumstances, we affirm Gore’s convictions and the imposition of the death sentence.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.
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. Ñolas 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-Oro-sa and Carolyn V. McCann, Asst. Attys. Gen., West Palm Beach, for respondent-ap-pellee.
[OPINION BY PER CURIAM. type=majority]
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 R.M., and three counts of the sexual battery of R.M. 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 R.M. 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 R.M.’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 R.M. was handcuffed. Gore cut R.M.’s clothes off of her and sexually assaulted her on three separate occasions. R.M. 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 R.M. to be quiet or he would slit her throat and that he would do it anyway. Gore then put R.M. in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put R.M. in the attic where she stayed until rescued by a police officer.
M.R., 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. M.R. 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 R.M. 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 R.M. 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 that Gore’s trial counsel tried to introduce evidence on the subject of Waterfield’s dominance during the penalty phase but was prevented from doing so by the ruling of the trial court. Under these circumstances, there was nothing more that trial counsel could do. The state suggests that appellate counsel also asserted this ruling as error in the appeal. While it is true that there is an oblique reference to the subject in Gore’s appellate brief, it cannot be fairly said that this issue was squarely raised on appeal. Hence, it is necessary to further consider the claim of ineffectiveness directed toward appellate counsel on this issue.
It is evident that the reason the trial judge would not permit testimony concerning the influence of Waterfield upon Gore was because there was no evidence that Waterfield had anything to do with Gore’s killing of Elliott. According to the testimony of the surviving victim, R.M., it was Gore who took the gun out of the glove compartment of the truck, put it to her head and then grabbed her wrist along with Elliott’s wrist and held them together. R.M. further testified that it was Gore who suggested that Waterfield drive them home “to have a little fun with them,” that Gore threatened to kill them, handcuffed their wrists together, and did all the talking and gave the orders. Gore was the only person she ever saw holding the gun and the one who sexually assaulted her. She said she was pretty sure that Waterfield had left when they were brought to the house. She did not see Waterfield or anyone else besides Gore in the house and only heard Gore’s voice after they were brought inside. M.R., the eyewitness to the shooting, said that the man who chased Elliott and killed her was Gore. Thus, even if it were shown that Waterfield had the ability to influence Gore, the evidence would not have supported the statutory mitigating circumstance of substantial domination of another person. See Hill v. State, 515 So.2d 176 (Fla.1987), cert. denied, — U.S. -, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).
Gore argues, however, that the testimony was admissible as nonstatutory mitigating evidence pertaining to an aspect of his character. Thus, in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court held that “the sentencer ... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2964-65 (emphasis in original) (footnote omitted). While the evidence in question had minimal relevance to the offense, we cannot say that it was totally unrelated to his character. Gore should have been permitted to introduce such evidence for whatever weight it might be given. Therefore, it becomes necessary to evaluate the claim of ineffectiveness of counsel by applying the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In this respect, we find it unnecessary to decide whether appellate counsel was ineffective for not making the argument on appeal because we are convinced that Gore has failed to show the requisite prejudice resulting from the alleged substandard performance. In evaluating the ineffectiveness of counsel as it relates to an attack on a death sentence, the United States Supreme Court in Strickland said:
When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence— would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been ... affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
466 U.S. at 695-96, 104 S.Ct. at 2068-69.
Measured by this criteria, we cannot say that if the witnesses had been permitted to testify of Waterfield’s influence over Gore that there is a reasonable probability that he would have received a life sentence rather than death. Recognizing that Waterfield played no part in this brutal killing and that there were five aggravating circumstances and no mitigating circumstances, the omission of this evidence would not have affected the outcome of this case.
We affirm the order denying postconviction relief, and we deny the petition for habeas corpus. We also vacate the stay of execution, although the prior death warrant has now expired.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, shaw, barkett, GRIMES and KOGAN, JJ., concur.
David Alan GORE, Petitioner-Appellant-Cross-Appellee, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee-Cross-Appellant.
No. 89-4026.
United States Court of Appeals, Eleventh Circuit.
May 29, 1991.
Billy Ñolas, Julie D. Naylor, Tallahassee, Fla., for petitioner-appellant, cross-appel-lee.
Ralph Barreira, Asst. Atty. Gen., Miami, Fla., for respondent-appellee, cross-appellant.
Before TJOFLAT, Chief Judge, and FAY and JOHNSON, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
The district court granted partial relief in this petition filed pursuant to 28 U.S.C. § 2254. The state appeals the granting of relief. The petitioner cross-appeals the denial of relief as to those claims found to be without merit. We affirm.
Petitioner was convicted of first degree murder, two counts of kidnapping, and three counts of sexual battery. He was sentenced to death for the first degree murder count. Sentences of life imprisonment were imposed on the kidnapping and sexual battery counts. These convictions and sentences were affirmed on appeal, and petitioner’s postconviction remedies under state law have been exhausted.
On consideration of Gore’s habeas corpus petition, the district court conducted a detailed analysis of each of the seventeen claims presented and entered a comprehensive and scholarly Memorandum Opinion published at 763 F.Supp. 1110 (M.D.Fla. 1989). We agree with the findings and conclusions of the district court as set forth in its opinion.
We clarify our ruling, however, in one regard. Gore claimed that his rights under the sixth, eighth, and fourteenth amendments were violated when the state trial court precluded him from presenting certain mitigating evidence to the sentencing jury in violation of 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) (plurality opinion). The district court agreed. However, it then went on to recognize that under the law of our circuit such a violation is subject to the harmless error doctrine. See Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989). The district court discussed and analyzed all of the recent opinions of our court, and drew certain conclusions about the scope of this harmless error doctrine when applied in Lockett/Hitchcock situations.
It seems apparent from the number of various opinions, special concurrences, and dissents written by the judges of our court that some disagreement remains with respect to the issue of the scope of the harmless error doctrine in such situations. However, in this matter, we need not wrestle with such larger questions. This panel unanimously agrees that under the circumstances of this particular trial, the omission of the nonstatutory mitigating evidence in violation of the Lockett/Hitchcock principle cannot be found to be harmless. We therefore AFFIRM the judgment of the district court, but decline to adopt its conclusions regarding the scope of the harmless error doctrine when applied in Lockett/Hitchcock situations.
Under Hitchcock and Lockett, the eighth amendment requires that a capital sentencing jury “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record that the defendant proffers as a basis for a sentence less than death.” Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989) (emphasis in original) (citations omitted).
David Alan GORE, Appellant, v. STATE of Florida, Appellee. David Alan Gore, Petitioner, v. State of Florida, Respondent.
Nos. SC04-1458, SC05-733.
Supreme Court of Florida.
July 5, 2007.
Rehearing Denied Sept. 10, 2007.
Andrew A. Graham of Graham, Molet-teire 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.
[OPINION BY PER CURIAM. type=majority]
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. Gore also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
FACTUAL AND PROCEDURAL HISTORY
This Court concisely detailed the facts surrounding the murder and other crimes in the direct appeal of Gore’s resentencing:
On July 26, 1983, Gore and his cousin Freddy Waterfield picked up teenagers Lynn Elliott and R.M., 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. R.M. 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, R.M. 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 R.M. was rescued. Elliott’s nude body was found in the trunk of Gore’s car.
M.R., 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. M.R. 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 R.M., and three counts of sexual battery upon R.M. 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: (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. 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 R.M. 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. 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”); (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. 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 Huff hearing was held. The trial court ordered an evidentiary hearing on claims III(l)(a), III(l)(b), and III(l)(c), which addressed counsel’s presentation of witnesses and the failure to object to juror Tobin for cause; on claim 111(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 111(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 Giglio 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 circumstance, because the trial court incorrectly instructed the jury that the alternative to the death penalty was life imprisonment without eligibility for parole for twenty-five years.
This general claim involving the alleged untruth with regard to Gore’s parole possibilities was previously litigated on direct appeal. In Gore, 706 So.2d 1328, this Court’s conclusions included the following: (1) a jury instruction that stated the life sentence for Elliot’s murder included eligibility for parole after twenty-five years was correct; (2) the trial court’s response to the second jury question asking when Gore could receive parole on the other life sentences was correct; and (3) any alleged error with regard to Stone’s testimony that none of Gore’s life sentences had a minimum mandatory sentence was not preserved for appellate review because defense counsel failed to object. See id. at 1332-33. Gore cannot bring a second appeal on the parole possibilities that were presented to the jury. See Maharaj v. State, 684 So.2d 726, 728 (Fla.1996) (“It is inappropriate to use a collateral attack to relitigate an issue previously raised on appeal.”). Despite couching his challenge in terms of a Giglio violation, Gore is making the same general argument that he made on direct appeal: that the parole possibilities presented to the jury were incorrect and, therefore, a resentencing is warranted. Gore is procedurally barred from making the same challenge in a postconviction proceeding. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (concluding that it is “not appropriate to use a different argument to relitigate the same issue”).
As previously described, this Court on direct appeal has already specifically addressed (and concluded that it was without merit) Gore’s current claim that the jury instruction which stated that Gore would be eligible for parole after twenty-five years for Elliot’s murder was error. The one claim that was not specifically litigated on direct appeal addressed Stone’s response to the question about Gore’s kidnapping and sexual battery offenses, when Stone testified that Gore could receive parole at “any time.” On direct appeal, this Court held that Gore could not argue error with Stone’s testimony about minimum mandatory sentences because it was procedurally barred due to the failure of Gore’s counsel to object to it. See Gore, 706 So.2d at 1333. To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). In the instant postconviction matter, the Giglio claim involving Stone’s “any time” testimony is without merit.
Even without the earlier procedural bar, we conclude that the requirements of Giglio are not met. Under the first prong of Giglio, the testimony of Stone with regard to when parole could occur was technically not false. Even Gore acknowledges that when Stone stated that he could receive parole at “any time,” Stone was being questioned with regard to the noncapital felonies of kidnapping and sexual battery. For first-time offenders, convictions for kidnapping and sexual battery offenses committed prior to October 1, 1988, do not require minimum mandatory sentences in Florida. See § 775.082(3)(a)(l), Fla. Stat. (2005). Gore could technically receive parole at “any time” for each of these particular offenses in isolation. There was no inquiry specifically about the practical or combined effect of all of Gore’s sentences on his parole possibilities. Therefore, without a clear and more fully developed context, the first prong for a Giglio violation is unsatisfied as the State did not necessarily present false testimony through witness Stone.
II. Improper Ex Parte Communications
Gore asserts that a letter sent by the State to the resentencing court on December 4, 1992, and a motion filed by the State on February 17, 1992, were improper ex parte communications. Gore also asserts that it was error for the trial court judge at resentencing to deny the motion to disqualify himself, because this judge was a material witness to the ex parte communications. In Rose v. State, 601 So.2d 1181 (Fla.1992), this Court discussed the negative effect of ex parte communications:
Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant....
... Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all other interested parties....
... The guaranty of a fair and impartial trial can mean nothing less than this.
... [W]e understand that this would not include strictly administrative matters not dealing in any way with the merits of the case.
Id. at 1183 (quoting In re Clayton, 504 So.2d 394, 395 (Fla.1987) and State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939)). Unlike Rose and other cases in which this Court has ordered a resentencing, such as Reese v. State, 728 So.2d 727, 728 (Fla.1999), or ordered an evidentiary hearing on the improper ex parte communication issue, both parties in the instant matter were given an opportunity to make their arguments to the judge at the resentencing prior to the issuance of the sentencing order. After the jury returned its death recommendation, Gore responded negatively to the court’s question as to whether there was anything additional that needed to be addressed. Subsequently, a notice of hearing, which was to occur on December 8, 1992, was sent to all parties on November 28, 1992. Gore was provided with the opportunity to make an argument as to the proposed mitigators and aggravators after December 4, 1992, which was the date the State’s letter was filed with the trial court. Therefore, this letter from the State is not the type of ex parte communication with which this Court had concerns in Rose, which is a communication that risks the judge “being unduly swayed by unrebutted remarks” and destroys the “appearance of the impartiality of the tribunal.” 601 So.2d at 1183.
Also, even though portions of the trial court’s findings do closely resemble the language in material submitted by the State, the two are not identical. Instead, the trial court made additional findings that were not proposed by the State. For example, the trial court found that the CCP aggravator was supported by the fact that Gore concealed Elliot’s body in the trunk of a vehicle and attempted to divert the police by making phony 911 calls. These arguments were not made by the State, demonstrating that the State did not effectively write the resentencing order through the material submitted. See Jones v. State, 845 So.2d 55, 64 (Fla.2003) (holding that the defendant failed to offer competent evidence that the resentencing court failed to engage in an independent weighing of aggravators and mitigators, because the version of the order drafted by the prosecutor was not identical to the final order entered by the trial judge). Therefore, during the Huff hearing, the trial court did not err in finding that the resentencing court independently weighed the aggravators and mitigators, rather than solely relying on the State’s letter.
Additionally, Gore’s claim that the letter constituted an improper ex parte communication is based on speculation. See Jones, 845 So.2d at 64 (rejecting defendant’s request for postconviction relief for an alleged improper ex parte contact, because the defendant’s assertions were based on speculation and “[pjostconviction relief cannot be based on speculative assertions”). Speculation just as easily supports the scenario that Gore’s counsel was provided a copy of the State’s letter, consistent with the letter’s “cc” notation that indicated such, and that Gore’s counsel may have misplaced the copy. At the Huff hearing, Gore withdrew his assertion that the trial court had requested that the State provide this letter, because there were “no facts to back up that allegation.” Accordingly, there is no support for Gore’s argument that another resentencing is necessary due to an ex parte communication.
The claim involving the motion filed by the State also fails on the merits. The State’s motion requested action that was strictly administrative and had nothing to do with the merits of the case. See Arbelaez v. State, 775 So.2d 909, 916 (Fla.2000) (holding that an ex parte communication that involved the judge setting a time period for when a response to a 3.850 motion could be filed was strictly administrative under Rose). The results of motion subject to this claim were as follows: (1) a hearing date was set; (2) defense counsel was appointed; and (3) a determination was made that Gore should be transported. These are not merit-related issues. Accordingly, this ex parte communication involving the State’s motion is also not improper.
If an argument that the ex parte communications were improper is “conclusively refuted” by the record, the trial court’s denial of an evidentiary hearing should be affirmed. See Waterhouse v. State, 792 So.2d 1176, 1189 (Fla.2001) (affirming the trial court’s denial of an evidentiary hearing on the ineffective assistance claim involving the failure of defendant’s counsel to impeach a State witness, because the claim was conclusively refuted by the record). Based upon our prior analysis determining that a resentencing is not warranted, we conclude that an evidentiary hearing on these alleged ex parte communications is also not needed because the record conclusively refutes Gore’s argument that they were improper.
Gore also claims it was error for the trial judge to deny the motion to disqualify, because this judge was a material witness to the allegedly improper ex parte communication. A motion to disqualify is governed substantively by section 38.10, Florida Statutes (2005), and procedurally by Florida Rule of Judicial Administration 2.330. The rule provides that a motion to disqualify shall show that “the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge”; or that the judge is either an interested party to the matter, related to an interested party, related to counsel, or “is a material witness for or against one of the parties to the cause.” Fla. R. Jud. Admin. 2.330(d). The standard of review of a trial judge’s determination on a motion to disqualify is de novo. See Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004), cert. denied, 544 U.S. 930, 125 S.Ct. 1669, 161 L.Ed.2d 495 (2005). Whether the motion is legally sufficient is a question of law. See Barnhill v. State, 834 So.2d 836, 843 (Fla.2002). The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Fla. R. Jud. Admin. 2.330(d)(1). In the instant matter, there was no error in the trial court’s denial of the motion to disqualify due to legal insufficiency, because the alleged ex parte communications with the trial judge, as noted above, were not improper. Compare Hodges v. State, 885 So.2d 338, 354 (Fla.2004) (holding that the trial court did not err in rejecting defendant’s motion to disqualify because the only basis supporting a well-grounded fear that he would not receive a fair trial was that the ex parte communications were improper, and this claim was rejected), with Roberts v. State, 840 So.2d 962, 968 (Fla.2002) (holding that the motion to disqualify was legally sufficient, because the judge had asked the State to draft the sentencing order and had failed to independently weigh the aggravators and mitigators).
III. Ineffective Assistance of Counsel During the Resentencing
Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that successful ineffective assistance of counsel claims satisfy the following two requirements:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048.
A. Decisions Involving Witness Stone
Gore argues that counsel was ineffective in deciding to call witness Stone during resentencing. This claim fails on the merits. Gore never produced lead counsel Nickerson at the evidentiary hearing, which would have provided insight into his decisions with regard to witness Stone, so the available testimony is relegated to that of co-counsel Udell. Despite Udell’s description of Nickerson’s decision to call Stone as “surprising,” we conclude that the decision could have been considered “sound trial strategy” from the perspective of Nickerson at the time. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The decision to call Stone was made solely by Nickerson. At the evidentiary hearing, Udell testified, “I think it’s quite clear that we all kn[e]w that Mr. Stone was not going to be friendly to David Alan Gore in his testimony....” Despite this predicted unfriendliness, Stone was seemingly called for a strategic reason that both Udell and this Court recognized on direct appeal: to elicit testimony that Waterfield was not sentenced to death and, because the State had argued that both Gore and Waterfield were equally culpable, proportionality necessitated that Gore also not receive the death penalty. See Gore, 706 So.2d at 1335. Other possible strategic reasons for calling Stone include the presentation of testimony that Gore had received life sentences for the kidnapping and sexual battery crimes perpetrated on Elliot and R.M. (illustrating that Gore would likely never be released from prison), and to elicit testimony demonstrating the inconsistent statements that the State made with regard to the culpability of Gore and Waterfield. With three viable strategies, Nickerson’s decision to call Stone does not qualify as deficient performance. Gore has not met his burden in overcoming the presumption of “sound trial strategy.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Indeed, it appears that Gore’s counsel should have located and presented evidence from Nickerson, as his testimony would have directly revealed his strategies in calling Stone.
Gore also argues that counsel was ineffective for the failure to interview or depose Stone between the time he was subpoenaed and the time he testified. At the evidentiary hearing, Stone testified that after he was subpoenaed by Gore’s counsel, he had no contact with either Nickerson or Udell, but he did discuss what his testimony on cross-examination might be as to parole possibilities with the State. Udell speculated that Nickerson’s reason for not speaking with or deposing Stone was that perhaps Nickerson already knew the testimony Stone would deliver. Again, Gore’s claim is hindered by Nickerson not testifying at the evidentiary hearing. Speculation by co-counsel Udell as to why Nickerson did not speak to Stone prior to the hearing is insufficient to meet Gore’s weighty burden on this ineffective assistance claim. Gore presented no evidence at the hearing that this failure to contact Stone prior to the hearing fell below “prevailing professional standards.” Maxwell, 490 So.2d at 932. Moreover, even if Nickerson’s performance was deficient, there was no prejudice. It still would have been reasonable to call Stone due to the aforementioned strategic reasons.
Gore also argues that counsel was ineffective for the failure to object to Stone’s testimony that Gore could receive parole at “any time,” which led to a waiver of this issue for direct appeal. We conclude that Gore’s counsel at resentencing was not deficient for failing to object. As previously described, this questioning occurred in the narrow context of the kidnapping and sexual battery charges, rendering the “any time” response to be arguably technically correct. Thus, the decision to not object can be considered within “sound trial strategy” at the time. Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see Wright v. State, 581 So.2d 882, 883 (Fla.1991) (holding that the ineffective assistance claim with regard to the failure to object had no merit, because this error was “strategic in nature and this Court will not second guess trial strategy employed by trial counsel”). Again, because lead counsel Nickerson did not testify at the evidentiary hearing, Gore has not met his weighty burden. To satisfy the deficient performance requirement, evidence was needed but lacking that alternative courses were not considered in deciding upon this trial strategy of not objecting to Stone’s “any time” testimony. See Occhicone, 768 So.2d at 1048. Additionally, there was also no prejudice. As described above, if the “any time” testimony was error it was nothing more than harmless error due to the record and overwhelming evidence supporting the trial court’s finding of the six aggravators at resentencing. Accordingly, the failure to object does not undermine our confidence in the outcome.
Gore also argues that counsel was ineffective for the failure to present additional witnesses to illustrate that Gore could not receive parole for fifty years. We disagree. At the evidentiary hearing, Udell testified that he remembered testimony from Stone that Gore received life sentences for the kidnapping and sexual batteries involving Elliot and R.M., so it was unlikely that Gore would ever be released from prison. The likely combined or practical effect of Gore’s various sentences was already illustrated to the jury, so Gore’s counsel did not need to present another witness. See Whitfield v. State, 923 So.2d 375, 380 (Fla.2005) (holding that the failure to call certain witnesses was not ineffective assistance, because witnesses had already presented similar evidence and “counsel is not required to present cumulative evidence”). Additionally, the significance of the testimony that the combined or practical effect of Gore’s sentences was that he would not receive parole for fifty years would have been immediately negated through damaging cross-examination that could potentially reveal that Gore could technically receive parole after twenty-five years for Elliot’s murder in isolation. See Jones v. State, 928 So.2d 1178, 1185 (Fla.2006) (citing Johnson v. State, 921 So.2d 490, 501 (Fla.2005)) (“Counsel cannot be deemed ineffective for failing to present evidence that would open the door to damaging cross-examination and rebuttal evidence that would counter any value that might be gained from the evidence.”). Even if deficient performance was found, the prejudice requirement has not been met. On direct appeal, this Court held that the jury instruction indicating that Gore would be eligible for parole after twenty-five years was not error. See Gore, 706 So.2d at 1332. With the jury being instructed on the possibility of parole after twenty-five years, it is highly unlikely that a witness who testified that Gore, for all practical purposes, could not receive parole for fifty years would have changed the outcome at the resentencing. Additionally, the trial court at resentencing found six aggravating circumstances and no statutory mitigating circumstances. See id. at 1331-32. Accordingly, we conclude that the failure of Gore’s counsel to offer a witness on this subject did not so “affect[ ] the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell, 490 So.2d at 932.
B. Failure to Impeach Dr. Cheshire with Financial Bias
Gore argues that counsel was ineffective at the resentencing for the failure to question Dr. Cheshire about his fee and how often he testified for the State. Gore’s counsel was not deficient in this regard. As with other aspects of the resentencing, lead counsel Nickerson was responsible for the strategy utilized with Dr. Cheshire on cross-examination. At the evidentiary hearing, Udell testified that he did not know why Cheshire was not questioned by Nickerson on financial bias. Again, Gore has not met his burden on this ineffective assistance claim because Udell cannot provide evidence about what Nickerson may have been thinking in his decisions, and Nickerson was not produced as a postconviction witness. Udell did testify, however, that he believed questions as to financial bias are overrated as “jurors know these people are getting paid.” Therefore, Nickerson’s decision to not impeach through questions targeted at financial bias can certainly be viewed as “sound trial strategy.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The record on resentencing demonstrates that Nickerson extensively cross-examined Cheshire on his substantive conclusions, which, unlike financial bias questions, directly attacked his conclusions. Gore’s expert at resentencing stipulated that there is no absolute rule or checklist for financial bias questions that must be asked of expert witnesses under all circumstances.
Also, even if the deficiency prong was satisfied, there was no prejudice. Dr. Cheshire testified that Gore was not an alcoholic, did not have a dependent personality disorder, and did not have an extreme mental or emotional disturbance; but was instead suffering from adult antisocial behavior without mental illness. He also testified that it was impossible for Gore to ingest the amount of alcohol he claimed and show no signs of impairment. The testimony of Cheshire contradicted some of the mitigators that Gore claimed, but other evidence presented was sufficient to refute those mitigators even without the testimony of Cheshire. For example, Gore’s argument that he was intoxicated by alcohol at the time of the incident was refuted by numerous other individuals, rather than just Cheshire. At the resentencing, R.M. testified that Gore did not smell of alcohol, did not slur his words, did not have bloodshot eyes, and was in complete control. Eyewitness M.R. testified that Gore did not stagger in the driveway when he ran after Elliot. Detective Redstone, Captain Dubois, and Officer Raymond all testified that Gore had no signs of alcohol impairment at the time of arrest. Therefore, Cheshire’s testimony was not essential to the trial court finding the existence of no statutory mitigators on resentencing.
Even if one or more mitigators could have been found by the trial court had Cheshire been impeached with financial bias, a death sentence would have likely still resulted due to the strength of the six aggravators that were independently found. First, Gore was under a sentence of imprisonment at the time of Elliot’s murder, because he was on parole for the armed trespass conviction. Second, the armed trespass conviction was a prior violent felony due to the discovery of a handgun and police scanner in the victim’s car with Gore, and the discovery of handcuffs and rope in Gore’s car nearby at the time of this offense. Third, the Elliot murder was clearly committed while Gore was engaged in the crimes of kidnapping and sexual battery, because Gore was convicted of kidnapping Elliot and the testimony at resentencing established that Gore had committed sexual batteries on Elliot. Fourth, the avoid arrest aggravator was supported by the murder occurring when Elliot tried to escape and only after she struggled during Gore’s attempts to return her to the house. Fifth, the HAC aggravator is supported by the following: (1) Gore “hogtied” Elliot so tightly prior to her murder that a welt formed; (2) Gore sexually battered Elliot prior to her murder; and (3) Gore dragged Elliot, who was nude, along the ground back toward the house immediately prior to shooting her. Sixth, the following “overwhelming” evidence helped establish the CCP aggravator: (1) Gore said to the girls at the house, “Don’t try anything or I’ll come back and kill you”; (2) Gore told R.M., while she was performing oral sex on him, to “suck harder” or else he was “going to slice [her] throat”; (3) Gore said to R.M., in reference to slicing her throat, that he was “going to do it anyway”; (4) Gore used a police scanner to monitor threats of detection by the police; (5) Gore concealed Elliot’s body in a car trunk; and (6) Gore placed phony 911 calls in an attempt to divert police from his residence. See Gore, 706 So.2d at 1334 (discussing that the evi-denee in support of the CCP aggravator in the instant matter was “overwhelming”); Fotopoulos v. State, 608 So.2d 784, 792-93 (Fla.1992) (holding that the murder was committed in a cold, calculated, and premeditated manner due to the heightened premeditation illustrated by how the defendant carefully planned and prearranged the murder). Accordingly, the failure to impeach Cheshire with financial bias does not undermine our confidence in the outcome.
C. Co-Counsel Udell’s Deference to Lead Counsel Nickerson
Gore argues that co-counsel Udell was ineffective due to his total deference to lead counsel Nickerson. We conclude that this decision by Udell to defer to Nickerson could have been considered “sound trial strategy” at the time, because of Udell’s reasonable beliefs that Nickerson had superior qualifications to take the lead in the case. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. At the evidentiary hearing, Udell testified that he deferred to Nickerson because Nickerson was intelligent and had better experience with capital eases and Gore had a lot of personal confidence in him. We conclude that Udell made a strategic decision to defer to Nickerson, and such was arguably “reasonable under the norms of professional conduct.” Occhicone, 768 So.2d at 1048. When Udell finally discovered at the evidentiary hearing that Nickerson had only practiced law for approximately three years at the time of the 1992 resentencing, Udell stated that he was “surprised” by this information. Any mistaken belief that Udell had as to Nickerson’s experience was reasonable, because according to Udell, Nickerson appeared to know everybody and was completely “immersed” in the area of capital litigation. Additionally, Udell was never aware that there was a bar grievance pending against Nickerson during preparation for and the actual resentencing. Finally, contrary to Gore’s argument, we conclude that Udell did not totally defer to Nickerson but, rather, assumed an active role by providing input on trial strategy. For example, Udell discussed possible nonstatutory mitigators with Nickerson. Therefore, Udell’s strategic decision to defer on a limited basis to the apparent abilities of Nickerson did not constitute deficient performance.
D. Failure to Discover and Present Additional Mitigators Relating to Alleged Neurological Disorders
Gore argues that his counsel was ineffective due to the failure to investigate his past involvement with toxic citrus groves that allegedly caused neurological disorders, which could have then been offered as mitigating evidence. Gore has not established that the performance of his counsel was deficient. The general rule is “[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Ventura v. State, 794 So.2d 553, 570 (Fla.2001) (quoting Rose v. State, 675 So.2d 567, 571 (Fla.1996)). Although Nickerson apparently did not ask Gore’s mother any specific questions about agricultural chemicals or the citrus groves, Nickerson did ask her about Gore’s health as is demonstrated by her resentencing testimony that ant bites had given Gore convulsions when he was seventeen months old. Additionally, Gore’s counsel asked her whether Gore was an alcoholic. Udell’s testimony that Nickerson “got very close to David and David’s mom and dad” indicates that there was a good and open relationship with essential persons to assist with the investigation as Nickerson was analyzing Gore’s past. Finally, Udell testified that he was present during conversations that Nickerson had with Gore’s family with regard to Gore’s life and a search and investigation into Gore’s past did occur. Cf. Ragsdale v. State, 798 So.2d 713, 719 (Fla.2001) (holding that counsel was ineffective due to an inadequate investigation and failure to present particular mitigators when “counsel’s entire investigation consisted of a few calls made by his wife to Ragsdale’s family members”); Heiney v. State, 620 So.2d 171, 172 (Fla.1993) (holding that there was ineffective assistance when counsel “totally failfed] to investigate potential mitigating factors”).
The decision by Gore’s counsel not to pursue a theory that pesticide exposure from the citrus groves may have led to neurological disorders without proper supporting evidence, and then present this as a mitigator, was within the range of “sound trial strategy” at the time this decision was made. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. At the evidentiary hearing, Udell stated that it is dangerous to make tenuous arguments that sound only like “lawyer talk,” because the jury might punish that party for making a seemingly senseless argument. Nickerson could have engaged in that thought process when he determined that he would not pursue this argument, but again, this was not confirmed because Nickerson did not testify at the evidentiary hearing. Additionally, those directly and personally involved with Gore’s life were also apparently of the same view that this was a weak theory as Udell testified that he did not believe the issue of pesticides from the citrus groves was ever raised by Gore or his family. Gore’s failure to inform counsel about the alleged exposure to the pesticides precludes Gore from arguing that counsel was ineffective for failing to offer this potential mitigating evidence. See Stewart v. State, 801 So.2d 59, 67 (Fla.2001) (holding that the failure to communicate instances of childhood abuse to defense counsel or the defense psychiatrist precludes an ineffective assistance claim for failing to pursue such mitigation). Also, the testimony of two entomologists at the evidentiary hearing demonstrated that the theory that Gore suffered neurological disorders from pesticide exposure was extremely tenuous, at best. Dr. Nigg testified that it is uncertain how the agricultural chemicals, to which Gore was supposedly exposed by working and living near the citrus groves, affect humans on a long-term basis. In analyzing a test done on Gore’s blood, he said some of his chemical composition levels, such as with mercury and cadmium, were troublesome because they were too low. Also, Gore’s lead level of 20 ug/dL was considered a “normal lead blood level.” This testimony contradicts Gore’s assertion that he was overexposed to high levels of agricultural chemicals. Similarly, Dr. Napp testified that he had no knowledge of anyone developing health problems from lead arsenic, and he opined that there are no long-term effects associated with exposure to organo-phosphates and there has never been a case of overexposure to Calthane or Eth-ion in Florida. These are all agricultural chemicals to which Gore was allegedly exposed. Finally, there was no direct evidence, such as a medical diagnosis, that Gore actually suffered from any neurological disorders, which he now argues resulted from exposure to agricultural chemicals. Instead, only evidence that Gore suffered from totally different health problems, such as high fevers and convulsions, was presented.
Instead, Gore’s counsel focused on other theories and presented extensive mitigating evidence related to those theories at the resentencing. Gore’s counsel called approximately ten witnesses, including Michael Maher and Peter Maculuso, who were both mental health experts. In preparing for his testimony, Dr. Maher reviewed a medical history of Gore, which was provided by Gore’s counsel, and questioned Gore about his background. The mitigation that was presented included the following: (1) Gore was the son of hardworking parents; (2) Gore was shy and introverted in comparison to Waterfield; (3) Gore’s divorce and separation from his children had negatively affected him; (4) Gore used alcohol around the time of the murder; and (5) Gore was an alcoholic. Moreover, Udell testified that all mitigation that “seemed consistent with [Gore’s] best interests” was presented at the resentencing. This evidence establishes that Gore’s counsel was not deficient.
Even if Gore’s counsel was deficient, we conclude that there was no prejudice. As previously described, extensive mitigation was already presented at the resentencing. Even if the trial court at resentencing had found this one additional mitigating factor involving neurological disorders from citrus grove pesticide exposure, which is a tenuous theory at best, this would not have overcome the trial court’s finding of six aggravating factors which, as previously described, are supported by strong evidence. Therefore, we conclude that counsel’s failure to present the mitigating evidence with regard to the citrus grove pesticide exposure is not of such a nature that “confidence in the outcome is undermined” due to the failure to present this evidence. Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
E. Failure to Challenge Juror Tobin for Cause
Gore argues that his counsel was ineffective for the failure to present a challenge for cause with regard to juror Tobin at the resentencing, after Tobin stated during voir dire that an impoverished background may not be a proper mitigating circumstance. Nickerson’s failure to challenge this juror for cause was not deficient performance. We have reviewed the record and conclude that Tobin did not give unequivocal answers that would render him subject to removal for cause. See Spencer v. State, 842 So.2d 52, 68 (Fla.2003) (“It is sufficient if the juror can lay aside his or her opinion or impression and render a verdict based on the evidence presented in court.” (citing Castro v. State, 644 So.2d 987, 990 (Fla.1994))). Instead, Tobin also stated “that he would be fair and impartial and would follow the law as instructed by the court.” There was also arguably no prejudice as the trial court likely would not have excused Tobin for cause had this challenge been made. See Dufour v. State, 905 So.2d 42, 54 (Fla.2005) (holding that the ineffective assistance claim for failing to strike a juror was without merit, because the juror was “properly permitted to serve because she clearly indicated an ability to follow the trial court’s instructions and weigh the aggravating and mitigating factors” through later responses, despite the initial statement of bias by the juror).
F. Failure to Propose an Expanded CCP Jury Instruction
Gore argues that his counsel was ineffective for the failure to propose an expanded CCP jury instruction. Gore’s counsel was not deficient in this regard. The resentencing of Gore occurred prior to Jackson v. State, 648 So.2d 85 (Fla.1994), in which this Court held that the standard CCP jury instruction was unconstitutionally vague. See id. at 87. Gore’s counsel was not deficient for the failure to offer an alternative CCP instruction, because Gore’s counsel was not even required to initially object to the standard CCP jury instruction as this jury instruction was considered proper at that time. See Downs v. State, 740 So.2d 506, 518 (Fla.1999) (holding that because the CCP instruction given at the. resentencing was approved by this Court as the proper standard jury instruction, defense counsel was not ineffective for failing to object). Additionally, there was no prejudice. On direct appeal, this Court previously determined that regardless of the type of CCP instruction given to the jury, the jury, would have returned a finding of CCP due to the overwhelming evidence of this aggravator. See Gore, 706 So.2d at 1334. Accordingly, any error with regard to the CCP jury instruction was harmless. See id.
■ IV. Death Row is Cruel and Unusual Punishment
Gore argues that his twenty-three years served on death row is cruel and unusual punishment, and violates both the Eighth and Fourteenth Amendments of the United States Constitution. This Court has consistently rejected the argument that serving time on death row is cruel and unusual punishment, regardless of the time served. See Lucas v. State, 841 So.2d 380, 389 (Fla.2003) (holding that over twenty-five years on death row is not cruel and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (holding that twenty-three years on death row is not cruel and unusual punishment). Gore’s exercise of his constitutional rights through the appeal and postconviction process has prevented his death sentence from being executed, so he may not claim a constitutional violation due to his length of time on death row. See Knight v. State, 746 So.2d 423, 437 (Fla.1998) (“[N]o federal or state courts have accepted [the] argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.”). Therefore, Gore’s claim is without merit.
V. Furman Violation with Death Penalty Statute
Gore argues that the death penalty is unconstitutional under the Eighth Amendment of the United States Constitution. This claim is procedurally barred, because Gore failed to make this argument in his direct appeal of the resentencing. See Gore, 706 So.2d 1328; Maharaj, 684 So.2d at 728. Additionally, there is nothing in the record that indicates Gore properly preserved this argument for appellate review during the resentencing. See Fotopoulos, 608 So.2d at 794 & n. 7 (holding that the argument that “Florida law unconstitutionally creates a presumption of death” was not properly preserved at the trial level). Even without this procedural bar, this Court has repeatedly summarily denied this claim due to its lack of merit, regardless of the circumstances. See Atwater v. State, 788 So.2d 223, 228 (Fla.2001); Hunter v. State, 660 So.2d 244, 252-53 (Fla.1995); Fotopoulos, 608 So.2d at 794.
PETITION FOR WRIT OF HABEAS CORPUS
I. Apprendi and Ring Violation with Death Penalty Statute
Gore asserts that his sentence of death must be vacated because according to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Florida’s capital sentencing scheme violates his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process under the United States Constitution. The claim is without merit. This Court addressed the contention that Florida’s capital sentencing scheme violates the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring, in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. See also Jones, 845 So.2d at 74. We conclude that Gore is likewise not entitled to relief on this claim. Furthermore, one of the aggravating circumstances found by the trial court in this matter was Gore’s prior conviction of a violent felony, “a factor which under Apprendi and Ring need not be found by the jury.” Jones v. State, 855 So.2d 611, 619 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (rejecting the Ring claim where one of the aggravating circumstances found by the trial judge was the defendant’s prior conviction for a violent felony), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). Finally, this Court has previously held that Ring and Apprendi cannot receive retroactive application. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (holding that Ring does not apply retroactively in Florida in postconviction proceedings to cases that were final on direct review at the time of the Ring decision); Hughes v. State, 901 So.2d 837, 840 (Fla.2005) (holding that Apprendi does not apply retroactively in Florida in postconviction proceedings to cases that were final on direct review at the time of the Apprendi decision). Here, the claim is proeedurally barred as Gore’s direct appeal to this Court occurred prior to the decisions in both Ring and Apprendi. Accordingly, we reject this claim.
II. Ineffective Assistance of Counsel During the Appellate Process
Gore asserts that counsel was ineffective for the failure to challenge the constitutionality of Florida’s death penalty statute under Ring and Apprendi. As a general rule, claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). As described above, we conclude that there is no merit to Gore’s claim that Florida’s death penalty statute is unconstitutional under Ring and Apprendi. Therefore, we conclude that appellate counsel was not ineffective for failing to bring this meritless claim.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Gore’s rule 3.850 motion and deny Gore’s petition for writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
Gore’s postconviction motion was filed under Florida Rule of Criminal Procedure 3.850 on September 28, 1999, and his amended 3.850 postconviction motion was filed on January 7, 2002. The current version of the rule, Florida Rule of Criminal Procedure 3.851, “appl[ies] to all postconviction motions filed on or after October 1, 2001.” Fla. R.Crim. P. 3.851(a).
The resentencing occurred after a federal court overturned Gore's death sentence. See Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989), aff'd, 933 F.2d 904 (11th Cir.1991).
Gore also asserted claims involving the penalty phase, but we have omitted these claims due to the later resentencing (and the subsequent direct appeal) that occurred.
The trial court found the following nonstatutory mitigating circumstances: (1) Gore’s past conduct and probable future conduct in prison; (2) Gore’s impoverished childhood; (3) Gore’s exemplary conduct at the resentencing; (4) Gore’s mental depression at the time he committed the murder; and (5) Gore’s affection for his children and his separation from them. See Gore, 706 So.2d at 1332-33.
In separate trials, Stone personally prosecuted both Waterfield (who was Gore’s accomplice) and Gore for their roles in the crimes surrounding the instant matter.
Seven other issues that were raised by Gore were rejected by this Court without discussion due to their lack of merit.
Huff v. State, 622 So.2d 982 (Fla.1993).
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
The trial court’s response was that the jury should rely on their "own recollection of the evidence” that had been presented, which included the testimony of Stone that none of Gore’s life sentences contained a minimum mandatory sentence. See Gore, 706 So.2d at 1333. The effect of no minimum mandatory sentences, according to Stone, was Gore could receivd parole at "any time” on the sexual battery and kidnapping offenses.
This Court summarized the argument by Gore that was procedurally barred as "[o]n cross-examination, Stone testified that Gore’s five life sentences boiled down to the equivalent of two consecutive life sentences, and that none of his sentences contain any minimum mandatory sentence.” Gore, 706 So.2d at 1333 n. 8.
Gore incorrectly asserts that the claim could not be brought on direct appeal, because evidence of this violation was not discovered until the 2003 evidentiary hearing. This new evidence was that the State met with Stone after he was subpoenaed, and discovered the substance of his testimony to be presented at the resentencing, including testimony that Gore could receive parole at “any time.” Gore's argument that this claim could not be brought on direct appeal is inconsistent with his argument that the State has imputed knowledge of the true parole possibilities. This imputed knowledge theory is based on both the Parole Commission and the prosecutor in the instant matter working for the government of the State of Florida. Gore alleged that the State presented untruthful parole possibilities through the testimony of Stone, and failed to correct this false information despite the State’s imputed knowledge at that time of the true parole possibilities. Even without the "new” evidence, which was discovered in 2003, Gore could have challenged Stone’s testimony in the direct appeal of the resentencing in 1997, because Stone had already testified and the State had imputed knowledge at the time of his testimony. .Even if this testimony could be deemed false, the lack of a broader context surrounding Stone’s "any time” statement would prevent a conclusion, under the second prong of Giglio, that the State knowingly presented false testimony. Only if Gore’s counsel had established that Stone was testifying to the combined or practical effect of Gore's various sentences could the State’s presentation of Stone’s testimony that Gore could receive parole at “any time” possibly meet the second prong under Giglio. Additionally, we conclude that the materiality prong of Giglio is not met because of the overwhelming evidence supporting the trial court's finding of the six aggravators at resentencing. See Ponticelli v. State, 941 So.2d 1073, 1088 (Fla.2006) (discussing that the third prong of Giglio "requires the State to prove that the presentation of false testimony was 'harmless beyond a reasonable doubt' or ... that 'there is no reasonable possibility that the error contributed to the conviction.' ”).
The State provided a "letter” to the trial court that was actually a cover letter and a memorandum of law, which extensively detailed findings on aggravating and mitigating circumstances. The State initially argued that the trial court requested this letter, but later withdrew this argument. The letter had a "cc” notation indicating that a copy was sent to Gore’s counsel.
The State’s motion was entitled "Ex Parte Motion to Appoint Counsel, Transport the Defendant and Set Case for Pre-Sentencing and Sentencing Hearing,” and it presented arguments on these various issues.
Contrary to Gore's argument, the significance of these issues does not factor into the Rose test. It is entirely possible for an ex parte communication to involve a matter that is extremely significant but also strictly administrative, so it is not improper under Rose.
After the evidentiary hearing, the trial ' court found that Gore gave no explanation as to why Nickerson could not testify at the hearing or what efforts were made to secure his attendance.
We note that testimony from Gore’s alleged expert that Nickerson's cross-examination of Cheshire did not meet the local community's standard of care for lawyers is weakened by the following, which demonstrate his lack of expertise on criminal capital matters: (1) he is a civil trial lawyer who only handles personal injury and legal malpractice cases; (2) he admitted that he is unqualified to handle a capital case; and (3) this was the first time that he had testified as an expert on the subject.
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
David Alan GORE, Appellant, v. STATE of Florida, Appellee.
No. SC12-537.
Supreme Court of Florida.
April 9, 2012.
Martin J. McClain, Linda McDermott and John Paul Abatecola of McClain and McDermott, P.A., Estero, FL, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
David Alan Gore, a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On February 28, 2012, the Governor signed a death warrant for Gore, with the execution scheduled for April 12, 2012. Gore subsequently sought postconviction relief in the circuit court, presenting five claims. On March 15, 2012, the circuit court entered an order that summarily denied relief on all claims. For the reasons discussed below, we affirm the order of the circuit court. We hold that the recent decision from the United States Supreme Court in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), does not provide Gore with any basis for relief in this Court.
FACTS AND PROCEDURAL HISTORY
On March 15, 1984, a jury found David Alan Gore guilty of the first-degree murder of Lynn Elliott. The facts of the murder were stated in the opinion of this Court affirming the judgment and sentence of death on Gore’s initial direct appeal:
Gore and his cousin picked up fourteen-year-old [R.M.] 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 [R.M.’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 [R.M.] was handcuffed. Gore cut [R.M.’s] clothes off of her and sexually assaulted her on three separate occasions. [R.M.] 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 [R.M.] to be quiet or he would slit her throat and that he would do it anyway. Gore then put [R.M.] in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put [R.M.] in the attic where she stayed until rescued by a police officer.
M.R., 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. M.R. 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.
Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of [R.M.], and for three counts of sexual battery of [R.M.]. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.
Gore v. State, 475 So.2d 1205, 1206 (Fla. 1985) (Gore I), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).
On direct appeal, this Court affirmed the convictions and death sentence. See id. The Court subsequently affirmed the denial of- Gore’s initial rule 3.850 motion for postconviction relief and denied his petition for writ of habeas corpus. See Gore v. Dugger, 532 So.2d 1048, 1051 (Fla.1988) (Gore II). However, the United States District Court for the Middle District of Florida granted Gore’s federal petition for writ of habeas corpus and vacated his death sentence becaúse the trial court had precluded Gore from presenting nonstatutory mitigating evidence in violation of 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 v. Dugger, 763 F.Supp. 1110, 1114, 1116 (M.D.Fla.1989) (Gore III), aff'd, 933 F.2d 904, 905 (11th Cir.1991) (Gore IV), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). After a resentencing proceeding, a jury unanimously recommended death, and the trial court followed that recommendation.. On appeal, this Court affirmed the sentence. See Gore v. State, 706 So.2d 1328, 1336 (Fla.1997) (Gore V), cert. denied, 525 U.S. 892, 119 S.Ct. 212, 142 L.Ed.2d 174 (1998). This Court subsequently affirmed a postconvietion court order that denied Gore relief under Florida Rule of Criminal Procedure 3.850 and also denied a petition for writ of habeas corpus filed by Gore. See Gore v. State, 964 So.2d 1257, 1277-78 (Fla.2007) (Gore VI), cert. denied, 552 U.S. 1197, 128 S.Ct. 1250, 170 L.Ed.2d 89 (2008). On April 11, 2008, the United States District Court for the Southern District of Florida denied a second federal habeas petition filed by Gore. See Gore v. McDonough, No. 07-22637-CIV-LENARD/TORRES (S.D. Fla. order filed Apr. 11, 2008). The United States Court of Appeals for the Eleventh Judicial Circuit subsequently denied Gore a “certificate of appealability,” see Gore v. Secretary, Department of Corrections, No. 08-14060-P (11th Cir. order filed Sept. 9, 2008), and the United States Supreme Court denied certiorari review, see Gore v. McNeil, — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).
Gore raised the following claims in his successive postconviction motion filed after issuance' of the warrant:
1. The clemency “update” process in this case was applied in an arbitrary and capricious manner in violation of the Eighth and Fourteenth Amendments and corresponding provisions of the Florida Constitution.
2. Florida’s capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because of the arbitrary and standardless power given to the Governor to sign death warrants.
3. Newly discovered evidence establishes that Gore was denied the effective assistance of counsel during his resentencing proceedings.
4. Gore was denied the effective assistance of counsel during his postconviction proceedings.
5. Given the inordinate length of time that Gore has spent on death row, adding his execution to that punishment would constitute cruel and unusual punishment.
With regard to the first claim, Gore stated that his clemency “update” process was applied in an arbitrary and capricious manner in violation of the United States and Florida Constitutions. Although Gore first received a clemency proceeding in 1987, the clemency proceeding to which Gore’s claim is directed occurred in 2012. Subsequent to the 1987 proceeding, Gore’s death sentence was overturned due to the refusal of the trial court to allow the presentation of mitigation evidence. Gore contends that the clemency board’s 1987 investigation was “hardly accurate” because it was devoid of mitigating evidence presented during his 1992 resentencing proceeding. Gore stated that he learned of the 2012 clemency proceedings only after his death warrant was signed and, therefore, was unable to present information on his own behalf. Gore contends that the clemency process was one-sided because it included input from only the State, the victims, and the media, and therein denied his right to due process.
In his second claim, Gore alleged that the Governor of Florida wields an arbitrary and standardless power to sign death warrants, thereby rendering the Florida capital sentencing scheme unconstitutional. Gore notes that there are at least forty-two other death row inmates who are currently eligible for a death warrant, and the only reason he was selected was because a newspaper editorial board expressed an interest in the execution of Gore.
In his third claim, Gore alleges that newly discovered evidence establishes that he was denied the effective assistance of counsel during his resentencing. Following the Eleventh Circuit Court of Appeals’ affirmance in May 1991 of the federal district court order granting Gore relief from his death sentence, Robert Udell was appointed to represent Gore during his resentencing proceedings, which ultimately resulted in a unanimous jury recommendation of death. During subsequent postconviction proceedings, Gore alleged that his resentencing counsel were ineffective. During the 2003 evidentiary hearing, Udell testified with regard to his representation of Gore, which included a discussion of why certain decisions were made. Thereafter, this Court affirmed the denial of postconviction relief and concluded that penalty phase counsel were not deficient.
Gore asserted that, unknown to postconviction counsel, the postconviction court, and this Court, Udell was not a credible witness. In October 2009, Udell was disbarred from the practice of law by this Court. Among other admissions, Udell admitted to submitting several affidavits and filing several motions for fees that contained false information about services performed for clients between 2005 and 2008. According to Gore, Udell’s disbarment and his failure to be truthful indicate he is unable to be honest, even under oath. Resentencing co-counsel Jerome “Jay” Nickerson, who did not testify during the postconviction proceedings, informed current defense counsel that during the resentencing, Udell was responsible for preparing all mitigation other than mental health mitigation and rebuttal to the evidence in aggravation presented by the State. However, when Nickerson arrived just before the penalty phase, he discovered that Udell had done nothing to prepare for the resentencing. Udell had not spoken to, or met with, the mitigation witnesses, and he had not prepared for any of the evidence that the State intended to present. Gore contended that because this Court relied so heavily on testimony from Udell during the postconviction evidentiary hearing, the prejudice analysis that this Court conducted with regard to Gore’s ineffectiveness claims was flawed. Gore requested an evidentiary hearing so he could establish that Udell’s penalty phase representation was deficient.
Fourth, Gore alleged that he was denied the effective assistance of counsel during his postconviction proceedings. Resentencing co-counsel Nickerson did not testify during the evidentiary hearing because collateral counsel claimed that he was unable to locate Nickerson. This Court stated that Gore’s failure to produce Nickerson at the hearing contributed to the failure of Gore to satisfy the legal burden of an ineffective assistance of counsel claim. In his successive motion, Gore contended that the failure of postconviction counsel to produce Nickerson during the collateral proceedings constituted deficient performance that prejudiced Gore. Because Gore’s first opportunity to obtain review of resentencing counsel’s effectiveness was during his postconviction proceeding, Gore asserted that collateral counsel owed him the duty of effective representation.
In his final claim, Gore contended that, given the length of time he has already spent on death row, adding execution to that punishment would constitute cruel and unusual punishment in violation of the United States Constitution and binding norms of international law.
The circuit court held a hearing on the successive motion on March 13, 2012. After hearing legal arguments, and considering the motion and the State’s response, the circuit court entered an order on March 15, 2012, summarily denying the successive motion. On March 26, 2012, Gore filed his initial brief with this Court raising the same issues that were raised in his successive motion.
ANALYSIS
Standard of Review
In Walton v. State, 3 So.3d 1000 (Fla.2009), this Court articulated the standard of review of a summarily denied postconviction claim:
A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is entitled to no relief. See Fla. R.Crim. P. 3.851(f)(5)(B). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.
Id. at 1005. Because the circuit court summarily denied each of Gore’s claims, the parameters articulated in Walton are applicable to each issue presented by Gore.
Newly Discovered Evidence
Gore contends that the 2009 disbarment of his penalty phase counsel, Robert Udell, constitutes newly discovered evidence, and that the circuit court erred when it denied this claim without an evidentiary hearing. We disagree.
To obtain relief on the basis of newly discovered evidence, a defendant must satisfy a two-prong test:
First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” [Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II) ]. Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Marek v. State, 14 So.3d 985, 990 (Fla. 2009) (citing Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I)).
Johnston v. State, 27 So.3d 11, 18-19 (Fla. 2010). We conclude that regardless of whether Gore can establish due diligence in discovering the disbarment of Udell, he cannot establish that the disbarment “would probably yield a less severe sentence.” Id.
As a preliminary matter, Gore fails to demonstrate how the disbarment of Udell in 2009 for conduct that occurred from 2005 through 2008 establishes that he was ineffective during the resentencing trial in 1992. The asserted attorney misconduct that occurred more than a decade after a resentencing proceeding, and had no relation whatsoever to a particular defendant, is not relevant to the representation of this defendant more than a decade before. Therefore, we conclude that Udell’s 2009 disbarment, which occurred seventeen years after the resentencing proceeding, is not the type of evidence that, if considered by a jury on retrial, would probably “yield a less severe sentence.” Id.; see also Wyatt v. State, 71 So.3d 86, 100 n. 14 (Fla.2011) (noting that not all new evidence “is the equivalent of newly discovered evidence for the purposes of establishing a postconviction claim”).
Furthermore, this Court has previously rejected a claim that Udell’s disbarment constitutes newly discovered evidence for purposes of impeaching his postconviction evidentiary hearing testimony. In Kearse v. State, No. SC11-244 (Fla. Oct. 21, 2011) (75 So.3d 1244) (table report), a capital defendant Sled a successive rule 3.851 motion. Kearse argued that his initial postconviction motion alleging ineffective assistance of penalty phase counsel should be reexamined in light of newly discovered evidence that his trial counsel, Robert Udell, submitted false fee affidavits during the period of 2005 through 2008 and was disbarred for this conduct in October 2009. The circuit court summarily denied Kearse’s successive motion.
On appeal, this Court unanimously affirmed the trial court’s denial in a brief order that provided:
Billy Leon Kearse filed a second successive postconviction motion in which he asserted that his prior claim of ineffective assistance of counsel should be reexamined in light of newly discovered evidence about his trial counsel. The postconviction court summarily denied the motion. We hereby affirm the postconviction court’s summary denial. Because Kearse did not present any evidence that would probably result in a finding that trial counsel was ineffective, the postconviction court properly denied his newly discovered evidence claim as legally insufficient.
Kearse v. State, No. SC11-244, order at 1. We similarly conclude that the use of Udell’s disbarment to impeach his credibility during Gore’s initial postconviction proceeding after resentencing would not produce a different result with regard to the claim that penalty phase counsel were ineffective. This Court, in affirming the denial of the rule 3.850 motion in Gore VI, held that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), had not been satisfied.
In his appeal from the circuit court’s denial of his initial motion for postconviction relief after resentencing, Gore asserted that his penalty phase counsel were ineffective for: (1) calling witness Robert Stone, who testified with regard to parole possibilities; (2) failing to provide an expanded instruction on the cold, calculated, and premeditated aggravating factor (CCP); (3) failing to discover and expose to the jury on cross-examination that the State’s mental health expert charged more than $27,000 for his testimony; and (4) failing to discover and present witnesses who could testify to the mitigating circumstance that Gore suffered from neurologic disorders due to exposure to toxic chemicals used in citrus agriculture. In our decision affirming the denial of relief, this Court found that co-counsel Nickerson— not Udell — served as lead counsel during the resentencing and made the majority of strategic decisions. Most of the conclusions reached by this Coui't addressed conduct by Nickerson, and Udell’s testimony during the evidentiary hearing with regard to the decisions of Nickerson was tangential at best.
For example, with regard to the calling of witness Stone, we noted in Gore VI that the decision to do so was “made solely by Nickerson,” and this Court held that Nickerson had a strategic reason for his actions, despite Udell’s testimony to the contrary that “we all kn[e]w that Mr. Stone was not going to be friendly to David Alan Gore in his testimony.” 964 So.2d at 1269. Further, we concluded that even if Nickerson was deficient, “there was no prejudice.” Id. at 1270. The testimony of Udell played little to no role in our determination of this issue. With regard to this claim, we stated “it appears that Gore’s counsel should have located and presented evidence from Nickerson, as his testimony would have directly revealed his strategies in calling Stone.” Id. (emphasis supplied).
With regard to the failure to propose an expanded CCP instruction, we concluded that penalty phase counsel were not deficient because “Gore’s counsel was not even required to initially object to this standard CCP instruction as this jury instruction was considered proper [at the time of Gore’s resentencing proceedings].” Id. at 1275. We then held that Gore had failed to establish prejudice, concluding that “the jury would have returned a finding of CCP due to the overwhelming evidence of this aggravator.” Id. at 1276.
With regard to the failure to expose the State mental health expert’s fee on cross-examination, we concluded that Gore had not met his burden of establishing ineffectiveness because “Udell cannot provide evidence about what Nickerson may have been thinking in his decisions, and Nickerson was not produced as a postconviction witness.” Id. at 1271. We then concluded that “Nickerson’s decision to not impeach through questions targeted at financial bias can certainly be viewed as ‘sound trial strategy.’ ” Id. We also held that even if deficiency was established, Gore failed to demonstrate prejudice because the expert’s “testimony was not essential to the trial court finding the existence of no statutory mitigators on resentencing.” Id. at 1272. The opinion provided:
For example, Gore’s argument that he was intoxicated by alcohol at the time of the incident was refuted by numerous other individuals, rather than just [the State expert]. At the resentencing, [R.M.] testified that Gore did not smell of alcohol, did not slur his words, did not have bloodshot eyes, and was in complete control. Eyewitness M.R. testified that Gore did not stagger in the driveway when he ran after Elliott. Detective Redstone, Captain Dubois, and Officer Raymond all testified that Gore had no signs of alcohol impairment at the time of arrest.
Id. Moreover, we concluded that even if the State expert had been impeached with financial bias, “a death sentence would have likely still resulted due to the strength of the six aggravators that were independently found.” Id.
Finally, with regard to the failure to present evidence of exposure to toxic chemicals, we held that the failure of penalty phase counsel to pursue this theory was not deficient:
At the evidentiary hearing, Udell stated that it is dangerous to make tenuous arguments that sound only like “lawyer talk,” because the jury might punish that party for making a seemingly senseless argument. Nickerson could have engaged in that thought process when he determined that he would not pursue this argument, but again, this was not confirmed because Nickerson did not testify at the evidentiary hearing.
Id. at 1274 (emphasis supplied). We also concluded that Gore had not shown prejudice because
extensive mitigation was already presented at the resentencing. Even if the trial court at resentencing had found this one additional mitigating factor involving neurological disorders from citrus grove pesticide exposure, which is a tenuous theory at best, this would not have overcome the trial court’s finding of six aggravating factors which, as previously described, are supported by strong evidence.
Id. at 1275.
Thus, our 2007 decision in Gore VI demonstrates that, as in Kearse, even if evidence of Udell’s disbarment was introduced to impeach his testimony during the evidentiary hearing, this evidence is not of such a nature that it would probably produce a less severe sentence, or even a conclusion that penalty phase counsel were ineffective. Such a conclusion is even stronger than it was in Kearse. Here, this Court evaluated the ineffective assistance claims based upon attorney Nickerson’s performance. Accordingly, to the extent that Udell did testify, it contributed little to our ultimate determination as to Nickerson’s actions during Gore’s resentencing proceedings. This is in contrast to Kearse, where Udell was the only attorney who represented Kearse and, therefore, testified during the evidentiary hearing to his own strategic decisions during Kearse’s trial.
The record conclusively demonstrates that Gore is not entitled to relief based upon a claim of newly discovered evidence, and we affirm the summary denial of this claim by the circuit court.
Ineffective Assistance of Postconviction Counsel
Gore next contends that during the initial collateral review proceedings, his postconviction counsel was ineffective for failure to locate penalty phase co-counsel Nickerson and present his testimony. Gore asserts that the recent decision of the United States Supreme Court in Martinez, 132 S.Ct. 1309, creates a new and independent cause of action for ineffective assistance of collateral counsel in our state courts system. While the decision in Martinez does contain expansive language, a proper analysis reveals that the Supreme Court specifically declined to address the issue of whether a constitutional right to effective assistance of collateral counsel exists:
While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.
Id. at 1313. Even Justice Scalia in his dissent acknowledged that the majority chose to evade this issue. See id. at 1326 (Scalia, J., dissenting) (noting that the re-framing of the issue “avoid[ed] the Court’s need to confront the established rule that there is no right to counsel in collateral proceedings”). It appears that Martinez is directed toward federal habeas proceedings and is designed and intended to address issues that arise in that context.
Here, Gore previously received full consideration of his ineffective assistance of penalty phase counsel claims in the postconviction court and a comprehensive review of those claims during his appeal before this Court. Gore has received a full collateral review to which he is entitled in the Florida state courts system. We hold that under the facts and circumstances of this case, Martinez provides Gore with no basis for relief in this Court.
Even if the United States Supreme Court in Martinez had chosen to alter decades of precedent and hold that a claim of ineffective assistance of collateral counsel is now an independent, cognizable claim — which we conclude that it did not— Gore still could not establish that he is entitled to relief under Strickland due to the failure of collateral counsel to locate Nickerson. As previously discussed, this Court and the trial court found that Gore failed to establish prejudice on his claims of ineffective assistance of penalty phase counsel. Thus, even if collateral counsel had been deficient for a failure to locate and present Nickerson as a witness during the evidentiary hearing, Gore cannot demonstrate that confidence in the outcome of the postconvietion proceedings would have been undermined if Nickerson had testified. Therefore, his claim of ineffective assistance of collateral counsel would not succeed.
Gore’s challenges to the effectiveness of his collateral counsel fail. We affirm the summary denial of this claim.
Clemency Process
In his third challenge, Gore contends that the 2012 clemency proceeding that occurred in this case was applied in an arbitrary and capricious manner in violation of United States and Florida Constitutions. Gore asserts that although numerous individuals were informed of their right to participate in this crucial stage of the criminal proceedings, he was not. Gore also contends that although the Governor may have considered the 2012 proceedings at issue to be an “update” to the prior clemency proceeding in 1987, that characterization ignores that Gore’s 1984 death sentence was overturned subsequent to the 1987 proceedings. According to Gore, the only arguably constitutionally valid penalty phase proceeding in this case occurred in 1992, but a full clemency proceeding did not follow this phase. Gore contends that without notice, an opportunity to be heard, or presence of counsel, the 2012 clemency “update” did not comport with due process.
We disagree. The Florida Rules of Executive Clemency expressly provide that “[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clem. 4 (emphasis supplied). Further, this Court has repeatedly declined to interject itself into what is, under the Florida Constitution, an executive function. For example, in Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986), a defendant under an active death warrant contended that he must be allowed time to prepare and present a second petition for clemency, even though he had already received an earlier clemency proceeding. In denying relief, the Court noted the separation of powers issue that such a claim presented:
In the death warrant authorizing appellant’s execution, the governor attests to the fact that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.” It is not our prerogative to second-guess the application of this exclusive executive function. First, the principle of separation of powers requires the judiciary to adopt an extremely cautious approach in analyzing questions involving this admitted matter of executive grace. Sullivan v. Askew, 348 So.2d 812 (Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). As noted in In re Advisory Opinion of the Governor, 334 So.2d 561, 562-63 (Fla.1976), “[t]his Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.” See also Ex Parte White, 131 Fla. 83, 178 So. 876 (1938).
Second, the governor and cabinet held an earlier clemency hearing in relationship to appellant’s conviction for the Tallahassee murders and found no basis on which to grant him relief. We cannot say that the executive branch was required to go through the motions of holding a second proceeding when it could well have properly determined in the first that appellant was not and never would be a likely candidate for executive clemency.
Id. (emphasis supplied); see also Glock v. Moore, 776 So.2d 243, 252-53 (Fla.2001) (relying on Bundy to reject capital defendant’s claim that he was denied access to a second clemency process because he was not represented by counsel and he did not have an opportunity to present mitigating evidence).
Here, Gore received a clemency proceeding in 1987. He does not allege that this earlier proceeding was deficient. Instead, he alleges that he is entitled to a full updated clemency proceeding because additional mitigation was revealed during his 1992 resentencing proceeding. However, the Court has also rejected clemency challenges on this basis.
In Johnston v. State, 27 So.3d 11, 24 (Fla.2010), the defendant contended that “the clemency proceeding he was provided in 1987 was inadequate because it was held before the postconvietion proceedings were concluded and before his mental health issues and life history were fully developed for consideration in the clemency process.” In rejecting this claim, the Court noted that “no specific procedures are mandated in the clemency process and that Johnston [was] provided with the clemency proceedings to which he is entitled.” Id. at 25-26. We also declined to depart from our prior precedent in which we refused to second-guess the executive branch on matters of clemency. See id. at 26. This Court subsequently relied on Johnston when it rejected a capital defendant’s claim that the death penalty in Florida is arbitrary and capricious because although the defendant received a prior clemency proceeding, he did not have the opportunity to present additional information about his life in a more recent clemency proceeding. See Grossman v. State, 29 So.Bd 1034, 1044 (Fla.2010) (“Grossman has not provided any reason why this Court should depart from its well-established precedent on this issue, and we thus deny relief on this claim.”).
In light of the foregoing, we conclude that the circuit court properly denied this claim without an evidentiary hearing.
Authority of the Governor to Sign Death Warrants
Gore next contends that the allegedly arbitrary power of the Governor to sign death warrants renders the Florida capital sentencing scheme unconstitutional. Our analysis in the previous section applies equally to this claim. The same principles — the Governor’s unfettered discretion under the Florida Rules of Executive Clemency, see Fla. R. Exec. Clem. 4, and separation of powers concerns — arise again in the context of a claim that the Governor’s decision to sign Gore’s warrant was arbitrary and standardless. As recently as last year, we rejected claims that because of the Governor’s absolute discretion to sign death warrants, thereby deciding who lives and who dies, the death penalty structure of Florida violates the United States Constitution. See Valle v. State, 70 So.3d 530, 551-52 (Fla.2011) (quoting Marek v. State, 14 So.3d 985, 998 (Fla.2009)), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); see also Johnston, 27 So.3d at 24 (rejecting a claim that Florida’s clemency process is “arbitrary, lacks standards, [and] is one-sided”).
Gore does not dispute that he is eligible for a death warrant, and the signed warrant expressly states that the Governor considered clemency and determined that it was not appropriate. In light of the foregoing, and for the same reasons discussed in the prior issue, this claim also fails.
Length of Time on Death Row
Finally, Gore contends that because of the time that he has already spent on death row, adding execution to that punishment would violate the Eighth Amendment and its ban on cruel and unusual punishment, as well as the Fourteenth Amendment and “binding norms of international law.” We reject this claim as both successive and without merit.
Gore previously presented an unsuccessful challenge that extensive time spent on death row constitutes cruel and unusual punishment:
Gore argues that his twenty-three years served on death row is cruel and unusual punishment, and violates both the Eighth and Fourteenth Amendments of the United States Constitution. This Coui't has consistently rejected the argument that serving time on death row is cruel and unusual punishment, regardless of the time served. See Lucas v. State, 841 So.2d 380, 389 (Fla. 2003) (holding that over twenty-five years on death row is not cruel and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (holding that twenty-three years on death row is not cruel and unusual punishment). Gore’s exercise of his constitutional rights through the appeal and postconviction process has prevented his death sentence from being executed, so he may not claim a constitutional violation due to his length of time on death row. See Knight v. State, 746 So.2d 423, 437 (Fla.1998) (“[N]o federal or state courts have accepted [the] argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.”). Therefore, Gore’s claim is without merit.
Gore VI, 964 So.2d at 1276. Since this Court’s 2007 decision, we have repeatedly rejected similar challenges. See, e.g., Johnston, 27 So.3d at 27 (rejecting a claim that almost twenty-five years on death row constitutes cruel and unusual punishment); Marek v. State, 8 So.3d 1123, 1130-31 (Fla. 2009) (same for twenty-five years on death row); Tompkins v. State, 994 So.2d 1072, 1085 (Fla.2008) (same for twenty-three years on death row). Moreover, on February 15, 2012, Robert Brian Waterhouse— an inmate who had been on death row for over thirty years — was executed. Thus, relief is not warranted on this claim.
CONCLUSION
In accordance with our analysis above, we affirm the summary denial of relief by the circuit court. We further hold that Gore is not entitled to relief from this Court under the recent decision of the United States Supreme Court in Martinez v. Ryan. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
Due to the fourteen-year-old’s status as a surviving victim of sexual assault, we refer to her as R.M.
The circuit court judge who presided over Kearse’s successive postconviction proceeding also presided over Gore’s current successive proceeding.
In his postconviction motion, Gore also claimed that his trial counsel were ineffective for failing to discover and present evidence that Gore was abused by his mother. However, Gore subsequently withdrew this claim.
Consistent with this determination, on appeal Gore also contended that Udell was ineffective because he totally deferred to Nickerson during the resentencing proceedings. See Gore VI, 964 So.2d at 1273. This Court held that the strategic decision of Udell "to defer on a limited basis to the apparent abilities of Nickerson" did not constitute deficient performance. Id.
Further, the evidentiary hearing on Kearse’s postconviction motion, during which Udell testified, occurred in 2005 — the same year that Udell engaged in misconduct by submitting false fee affidavits. This is in stark contrast to the instant case where Udell testified years before engaging in the conduct that led to his disbarment. Thus, the argument that Udell’s disbarment, or the dishonest conduct that led to his disbarment, is relevant to the testimony offered by Udell during the 2003 evidentiary hearing is even more tenuous here than it was in Kearse.