Robyn Novick was last seen on the night of March 11, 1988, leaving the parking lot of the Redlands Tavern, south of Miami, in her yellow Corvette, with a man a witness later identified as Marshall Lee Gore. By the early hours of the next morning Gore had the car; a friend testified that he drove up to his house in a yellow Corvette with a license plate that read “Robyn.” On March 16 her body was found, nude and partly hidden under a blue tarpaulin, beside a road in a rural stretch of Dade County used for dumping trash. She had been stabbed in the chest, and a belt was tied around her neck. Six weeks earlier, on January 30, Susan Roark had left a party in Cleveland, Tennessee, to drive Gore home in her black Mustang and never came back; her skeletonized remains were found on April 2 in a wooded dumping ground in Columbia County, Florida. And on March 14, two days after Novick died, a woman who knew Gore only casually was beaten with a rock, raped, choked, stabbed and left for dead in Dade County. She lived, and she testified against him.
Those three cases produced the nine rulings on this page, and they arrive in the order the courts decided them, not the order of the crimes. The first, from the Third District Court of Appeal in January 1991, affirms all but one of his convictions for the attack on the woman who survived, and turns on an unusual question: whether a defendant whose psychologist said he would play to the cameras had a right to have television crews removed from his trial. The Florida Supreme Court affirmed his conviction and death sentence for Roark’s murder in 1992, with two justices concurring only in the result for reasons they had given in an earlier case on the questioning of suspects. In 1998 the same court threw out his first conviction for killing Novick, holding that the prosecutor’s cross-examination and closing argument, which dwelt on a two-year-old child the prosecutor said Gore had left naked in an abandoned house in Georgia, had so tainted the trial that only a new one would do; it went out of its way to say that the assistant attorney general defending the conviction was not the prosecutor who had tried it. Gore was retried, represented himself in the penalty phase, was sentenced to death again by a unanimous jury, and lost his appeal in 2001. The rulings of 2003, 2009 and 2010 reject his post-conviction claims, including a request for DNA testing and his assertion that a forensic anthropologist could show Roark had been dead only three weeks when she was found, at a time when he had been in jail for six months.
The last two rulings belong to the summer of 2013. Governor Rick Scott signed a warrant on May 13 for an execution on June 24, and Gore’s state lawyer wrote to the governor that he had reason to think his client was insane to be executed. A commission of three psychiatrists interviewed Gore for three hours and heard him describe a conspiracy among state officials, the governor among them, to harvest the organs of condemned prisoners, and a state senator waiting for his eyes. They found him competent. The Eleventh Circuit affirmed the dismissal of his federal petition in June, and on August 13 the Florida Supreme Court upheld a circuit judge’s finding that Gore was feigning the delusions and understood he was to die for murdering Novick. The execution was then pushed back once more, to October 1, after it emerged that the date previously set had clashed with a political fundraiser for Attorney General Pam Bondi, who apologized. Gore was executed at Florida State Prison on October 1, 2013, and was pronounced dead at 6:12 p.m.
The woman who survived the March 14 attack was the victim of a sexual battery, and she is T.C. everywhere on this page, although the opinions print her name in full some ninety times and spell her surname three different ways. The same courtesy goes to the others who lived around the case without choosing to be part of it. The girl in whose family’s home Gore was staying in 1988, thirteen when Novick died, is J.C.; her parents are R.C. and M.C., and the family friend who lived with them is R.L. The friend Gore visited in the Corvette is D.R. The woman who saw a purse in his back seat is L.I., the woman who worked for him answering telephones at fifteen is A.F., and a woman the prosecutor questioned him about is M.D. The two-year-old boy the prosecutor raised in cross-examination is J. Novick and Roark keep their names, as does the woman murdered in Tennessee whom Gore tried to put before the jury, together with the lawyers, doctors, judges and police.
Nothing in these opinions was decided by an appellate court on its own view of the evidence. Each account of the crimes is the evidence as the jury could have seen it, set down to explain why the verdict stands, and several of the later opinions repeat the earlier ones word for word. Some things the reader may have heard about Gore are not here at all: the suspicion that he committed other rapes and a further attempted murder, for instance, belongs to press accounts, not to any finding on this page. Where Gore himself speaks, in quoted testimony, in his requests to fire his lawyers and in his statements to the psychiatrists, he is a party arguing for his life, and the courts that heard him mostly did not believe him. The dates conflict in one place that matters. The opinions put Novick’s last sighting on March 11 and her death between 9 p.m. that night and 1 a.m. on March 12; execution summaries compiled in 2013 give March 10.
These rulings are public law, free to copy and quote in full, taken from the official reporters as the Caselaw Access Project at Harvard Law School digitized them. The text was set in type, not scanned, but the digital version carries a few slips that crept in when the printed volumes were converted, and we have left them, because fixing them would mean supplying words the court did not print: Novick appears several times as Noviek, a temperature prints as “SO degree weather,” and a handful of words split at line ends that never appear whole in the file, such as reap-proaehed and ver-diet, stand as they fell. Fifty-six split words that do appear whole elsewhere have been closed up. The footnotes follow each opinion under their own heading.
Marshall Lee GORE, Appellant, v. The STATE of Florida, Appellee.
No. 89-990.
District Court of Appeal of Florida, Third District.
Jan. 2, 1991.
Rehearing Denied Jan. 31, 1991.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before JORGENSON, LEVY and GODERICH, JJ.
[OPINION BY JORGENSON, Judge. type=majority]
JORGENSON, Judge.
The principal issue presented by this appeal is whether the trial court abused its discretion by refusing to exclude the electronic media from the courtroom after defendant Marshall Lee Gore had presented medical evidence that the media’s presence would adversely affect his ability to testify. We conclude that the trial court did not abuse its discretion in denying Gore’s motion to exclude the electronic media and affirm his convictions for attempted murder, kidnapping, sexual battery, burglary, robbery, and theft.
Gore’s motion to exclude the electronic media was made after the state had completed presenting its case, thirteen days into the trial. Defense counsel argued that, based upon a psychological evaluation made some months earlier, Gore would not be able to participate effectively in the trial or assist in his defense if the electronic media was present. The psychologist who examined Gore had concluded that Gore suffered from Attention Deficit Disorder and a severe personality disorder that would cause him to want to perform before the cameras, and that the presence of the television cameras would distract him. The trial court conducted an evidentiary hearing at which the examining psychologist was questioned by defense counsel, the state, and the court. In response to a question posed by the court, the psychologist admitted that he could not tell when Gore was lying and when he was telling the truth. Following the evidentiary hearing, the court found Gore competent to testify and denied the motion to exclude the electronic media.
Gore took the stand. When he complained that he was “not going to be able to do this,” the court ordered the television camera repositioned so that it was out of Gore’s view and would not be able to focus on the defense table. The court then appointed a team of three doctors to examine Gore to determine whether the presence of the television cameras was, in fact, affecting Gore’s ability to participate in his trial.
On the next day, the three doctors testified. The first psychiatrist testified that Gore did not suffer from any major illness, was manipulative, and was simply “making an issue” of the presence of the camera. In his opinion, Gore was lying when he said that he would not be able to testify if a camera was present. The second doctor, a psychologist, testified that although Gore suffered from some social disorders the mere presence of the camera in the courtroom would not interfere with his ability to assist his counsel and would not affect his competency. The third doctor, a psychiatrist, testified that he found no evidence that Gore suffered from Attention Deficit Disorder or hyperactivity. He diagnosed Gore as suffering from a severe personality disorder and concluded that the camera’s presence would affect Gore’s testimony. However, the doctor could not conclusively determine whether Gore could answer questions posed to him before the cameras, if he so desired. The trial court then denied the defense motion to exclude the electronic media during defendant’s testimony.
Gore resumed testifying but, after a short while, refused to answer any more questions, saying that he could not continue. The court directed Gore to submit to cross-examination. When the state asked Gore whether he had been convicted of any felonies, Gore answered, “Yes.” The state asked, “How many?”; Gore stated that he did not know. The state then asked Gore if he had been convicted of any crimes involving lying; Gore answered, “Yeah.” The state then introduced, over objection, certified copies of all of Gore’s prior convictions, the charging documents, and the arrest forms for those convictions.
Following the jury’s verdicts of guilt and the court’s entry of judgments of conviction and sentencing, Gore appealed.
We hold that the trial court acted within its discretion in finding that the presence of the electronic media did not render Gore incompetent to testify. Although the presence of electronic media in the courtroom does not constitute a per se denial of due process, Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), a trial court is “constitutionally required to prohibit electronic media coverage of court proceedings in a criminal case upon a demonstration that such coverage would render an otherwise competent defendant incompetent to stand trial.” State v. Green, 395 So.2d 532, 535 (Fla.1981). Upon a finding that “such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media,” the court may exclude the media. In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 779 (Fla.1979). The “finding” required by Post-Newsweek must be on the record, either in writing or orally, in a transcript of the hearing. State v. Palm Beach Newspapers, Inc., 395 So.2d 544, 547 (Fla.1981). Moreover, “[a]n evidentiary hearing should be allowed in all cases to elicit relevant facts if these points are made an issue, provided demands for time or proof do not unreasonably disrupt the main trial proceeding.” Id. at 548. The exclusion of the electronic media is a matter that rests within the sound discretion of the trial court judge. State v. Green, 395 So.2d at 536; State v. Palm Beach Newspapers, 395 So.2d at 549.
On two separate occasions, the trial court complied with all of the requirements established by Post-Newsweek, Green, and Palm Beach Newspapers. Nevertheless, Gore argues that whenever a defendant presents competent substantial evidence that the presence of the electronic media will adversely affect his ability to testify, the electronic media must be excluded. That argument flies in the face of reason and a long line of cases which hold that where medical experts’ reports conflict, a trial court has not abused its discretion in finding a defendant competent to stand trial. See, e.g., Ferguson v. State, 417 So.2d 631 (Fla.1982); Fowler v. State, 255 So.2d 513 (Fla.1971); Holmes v. State, 494 So.2d 230 (Fla. 3d DCA 1986). The trial court employed every possible precaution to ensure that Gore’s constitutional rights were protected, both before Gore began testifying and after he had taken the stand. The court exhibited commendable patience, especially because the state had completed its case before Gore even raised the issue of the presence of the electronic media.
No case law in this or any other jurisdiction supports the argument that the trial court loses its broad discretion to determine competency once a defendant presents one psychologist’s testimony that the presence of the electronic media would interfere with the defendant’s ability to testify. No single expert’s opinion should ever be deemed binding on a trial court and preclude the court’s consideration of the weight and credibility of other, perhaps conflicting, expert opinions. Accordingly, we hold that the trial court did not abuse its discretion in denying Gore’s motion to exclude the electronic media during his testimony.
Next, Gore argues that the trial court erred in allowing the state to introduce certified copies of Gore’s prior convictions, the charging documents, and the arrest forms relating to those convictions. We agree that the court committed error. Once Gore admitted that he had been convicted of prior crimes, including crimes involving dishonesty or false statement, the state could go no further. See Jackson v. State, 498 So.2d 906 (Fla.1986); Williams v. State, 511 So.2d 1017 (Fla. 2d DCA), rev. denied, 519 So.2d 988 (Fla.1987); Johnson v. State, 361 So.2d 767 (Fla. 3d DCA 1978), cert. denied, 382 So.2d 693 (Fla.1980). However, such error is subject to a harmless error analysis. Blasco v. State, 419 So.2d 807 (Fla. 3d DCA 1982). In light of the overwhelming evidence against Gore, we hold that the erroneous admission of the prior convictions and the underlying documents was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
However, we reverse Gore’s conviction for the attempted murder of the victim’s child. Because the overt acts comprising the crime charged were committed in Georgia, not in Florida, the court did not have territorial jurisdiction over the crime charged. Section 910.005, Florida Statutes (1987); Lane v. State, 388 So.2d 1022 (Fla.1980). The trial court therefore erred in denying Gore’s motion for judgment of acquittal as to that charge.
We also reverse Gore’s conviction for possession of a weapon during the course of a criminal offense. Hall v. State, 517 So.2d 678 (Fla.1988); Carawan v. State, 515 So.2d 161 (Fla.1987).
As to defendant’s remaining points on appeal, we find no merit.
Reversed in part; affirmed in part; remanded.
Both in the trial court and before this court, Gore attempted to avoid characterizing the issue of his alleged inability to testify before the camera as one of competency. However, we can discern no meaningful difference between Gore's claim and that of the defendant in State v. Green, 395 So.2d 532 (Fla.1981). In Green, the defendant sought to exclude the electronic media because, in the opinion of a psychiatrist, the presence of the media would heighten the defendant's anxiety and depression and interfere with her ability to defend herself and communicate with counsel. 395 So.2d at 535. The supreme court characterized the issue as one of competency to testify. Id. at 538. Likewise, Gore's claim that the presence of the camera would interfere with his ability to testify raised the issue of his competency to stand trial. See also Fla.R.Crim.P. 3.211(a)(2)(vi) (defendant’s capacity to testify relevantly one factor to consider when determining competency to stand trial).
Defense counsel had in its possession the medical report that formed the basis of the motion months before actually moving to exclude the electronic media.
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. 75955.
Supreme Court of Florida.
April 16, 1992.
Rehearing Denied July 6, 1992.
Nancy A. Daniels, Public Defender and W.C. McLain, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Marshall Lee Gore appeals his convictions for first-degree murder, kidnapping, and robbery, and his sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark’s car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend’s home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark’s grandmother reported her missing. She had been expected home by 7 a.m. that morning.
Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark’s Mustang after it was abandoned in a two-car accident. Gore’s fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark’s body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death. The body could have been there anywhere from two weeks to six months prior to discovery. The forensic pathologist who testified for the State concluded that the cause of death was a homicide, given the situation in which the body was found and the fact that the neck area of the body was completely missing. The pathologist explained that this was probably due to some injury to the neck, such as a stab wound or strangulation trauma, which provided a favorable environment for insects to begin the deterioration process.
Gore was found guilty of first-degree murder, kidnapping, and robbery. The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation.
Gore’s first claim on this appeal is that the trial court erred in denying his motion to suppress statements he made to the police. Gore was arrested in Paducah, Kentucky, on March 17, 1988, on federal charges unrelated to this case. At this time, FBI agents informed Gore of his Miranda rights. Gore signed a written waiver form, and the agents began questioning him. When the agents asked Gore how he arrived in Paducah, he stated that he didn’t want to answer any more questions. The agents immediately ceased their interrogation and took Gore to a federal prison. Several days later, on March 24th, Gore was interviewed by detectives from the Metro Dade police department. At the start of this interview, Gore was again informed of his Miranda rights and waived them. The detectives asked Gore various questions about his background and his knowledge of several crimes in the Miami area, as well as the Roark abduction. Gore made several statements at this time which were subsequently introduced at. trial.
Gore argues that he invoked his Fifth Amendment right to the assistance of counsel during police interrogations, thereby precluding any further questioning without the presence of counsel. Minnick v. Mississippi, — U.S. -, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). The only evidence offered in support of this assertion is the fact that Gore at some point consulted with federal public defenders. At the beginning of his interview with the Metro Dade detectives, Gore said that federal public defenders had advised him not to cooperate with law enforcement agencies. However, Gore went on to state that he declined to follow their advice, and that he wanted to speak to the police because he had done nothing wrong and had no need for an attorney.
The fact that Gore had been advised by an attorney at some point in his time in custody does not necessitate a finding that he invoked his Fifth Amendment right to counsel. The FBI agents present at his interview in Kentucky specifically testified that Gore never requested an attorney. Their questioning was stopped because Gore wanted to get to the jail to call his father, not because he wanted the assistance of an attorney. The Metro Dade detectives also testified that Gore never requested an attorney, and that he declined their offer to call someone from the Miami public defender’s office. We therefore reject Gore’s claim that his statements were obtained in violation of his Fifth Amendment right to counsel.
While there is no credible evidence that Gore ever asserted his Fifth Amendment right to counsel, there is evidence that he asserted his Sixth Amendment right to counsel as to the federal charges. Before being questioned by state officials in Miami, Gore was brought before a federal magistrate. At this time, counsel was evidently appointed to represent him in the federal proceedings. Gore contends that because he was unquestionably represented by counsel, the police were prohibited from further interrogating him. However, the appointment of Sixth Amendment counsel is very different from a request for Fifth Amendment counsel to assist in police interrogations. As the Supreme Court recognized in McNeil v. Wisconsin:
The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. [U.S. v.] Gouveia, 467 U.S. [180], at 189, 104 S.Ct. [2292], at 2298 [81 L.Ed.2d 146 (1984) ]. The purpose of the [Fifth Amendment] guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards [v. Arizona ], 451 U.S. [477], at 484, 101 S.Ct. [1880], at 1884 [68 L.Ed.2d 378 (1981)].
— U.S. -, 111 S.Ct. 2204, 2208-09, 115 L.Ed.2d 158 (1991) (citations omitted).
The Court went on to hold that, while no further police-initiated interrogation on any offense can take place without the presence of counsel once the accused has invoked his Fifth Amendment right to have counsel present for questioning, the same is not true when an accused has made a request for counsel under the Sixth Amendment. While an accused may not be interrogated about the offense for which he has Sixth Amendment counsel, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), he may be questioned about offenses for which the Sixth Amendment right has not attached. Therefore, although Gore did exercise his Sixth Amendment right to counsel on the federal charges, this did not prevent the state from questioning him on state charges.
We reject Gore’s argument that this Court should not follow McNeil. We believe that the holding adopted by the Supreme Court in McNeil adequately protects the right to counsel, while at the same time recognizing that there is a difference between the appointment of counsel at a preliminary hearing such as first appearance and a request for counsel to assist in police interrogations, a difference which is also present under the Florida Constitution. See Traylor v. State, 596 So.2d 957 (Fla.1992). Making the appointment of Sixth Amendment counsel the equivalent of a request for Fifth Amendment counsel would mean that the police could not question persons in custody about any offense once they have had some preliminary hearing at which Sixth Amendment counsel is routinely granted. As noted in McNeil:
The Sixth Amendment right to counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner’s rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser.
111 S.Ct. at 2210. The preclusion of interrogation in these situations is simply not mandated by the Constitution. Accordingly, finding no violation of Gore’s rights under either the Fifth or the Sixth Amendment, we reject Gore’s claim that the trial court erred in denying his motion to suppress.
Gore next claims that the trial court erred in admitting evidence of collateral crimes through the testimony of two witnesses, L.I. and T.C. L.I. was riding in a car with Gore on February 19 when she saw a woman’s purse in the back seat. She testified that Gore stated that the purse belonged to “a girl that he had killed last night.” Gore argues that this conversation referred to a murder that must have taken place on the 18th of February. Therefore, his statement could not be relevant to the murder of Roark, which took place on January 31, but was instead introduced solely to show criminal propensity—that Gore had committed a different murder.
We find that this testimony was admissible as an admission with regard to the Roark homicide. § 90.803(18), Fla.Stat. (1989). When L.I. was asked if she was sure about the time that Gore said, she stated that he said he killed a girl “last night or a few nights ago.” Testimony had previously established that Roark had a purse with her on the night she disappeared. While there are some timing problems with this testimony, as well as a lack of connection between Roark’s purse and the purse L.I. saw in the car, these were matters to be considered by the jury in evaluating the weight to give this testimony and did not render the evidence inadmissible.
The testimony of T.C. was admitted as evidence of a collateral crime. T.C. was a casual acquaintance of Gore’s, whom she knew as “Tony.” In March of 1988, Gore called T.C. at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to T.C.’ stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of T.C.’ jewelry and then proceeded to Kentucky in her car.
Similar fact evidence is generally admissible, even though it reveals the commission of another crime, as long as the evidence is relevant to a material fact in issue and is not admitted solely to show bad character or criminal propensity. Williams v. State, 110 So.2d 654, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Here, the State submitted evidence of the crimes committed against T.C. in an effort to establish the identity of Roark’s murderer, as well as to show Gore’s intent in accompanying her that evening.
Gore argues that this case is comparable to Drake v. State, 400 So.2d 1217 (Fla.1981), in that the collateral crime is not sufficiently similar to the crime at issue and the claimed similarities are not unique enough to qualify as evidence of identity. In Drake, the only similarity between the murder for which Drake was being tried and the collateral evidence of two sexual assaults was that in each case the victim’s hands were bound behind her back and the victim had left a bar with the defendant. In rejecting the collateral crimes evidence as evidence of the identity of the murderer, we noted that “[a] mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.” Id. at 1219.
We find that the T.C. crime does have the required pervasive similarities. The significant common features of the two crimes include the following: The victim was a small female with dark hair; Gore introduced himself as “Tony”; he had no automobile of his own; he was with the victim for a lengthy amount of time before the attack began; he used or threatened to use binding; the attack had both a sexual and pecuniary motive; the victim suffered trauma to the neck area; Gore transported the victim to the site of the attack in the victim’s car; the victim was attacked at a trash pile on a dirt road, where the body was then left; Gore stole the victim’s car and jewelry; he pawned the jewelry shortly after the theft; he fled in the victim’s automobile, leaving the state where the victim was apprehended and staying with a friend or relative for a period of time after the crime; and he represented the car to be a gift or loan from a girlfriend or relative.
Gore argues that there are dissimilarities between the two incidents as well. In cases where there are significant dissimilarities between the collateral crime and the crime charged, the evidence tends to prove only two things—propensity and bad character—and is therefore inadmissible. See, e.g., Peek v. State, 488 So.2d 52, 55 (Fla.1986); Drake, 400 So.2d at 1219. Here, however, the similarities are pervasive, and the dissimilarities insubstantial. This Court has never required the collateral crime to be absolutely identical to the crime charged. The few dissimilarities here seem to be a result of differences in the opportunities with which Gore was presented, rather than differences in modus operandi. See Chandler v. State, 442 So.2d 171, 173 (Fla.1983). For example, the most significant difference between the two crimes—that Roark was murdered while T.C. was not—seems to be more of a fortuitous circumstance than a reflection of Gore’s intent in the T.C. crime, since he beat her, stabbed her, and left her for dead in an isolated area.
Gore also argues that the similar features of the two crimes are not sufficiently unique to serve as evidence of identity. See Drake, 400 So.2d at 1219 (similar features of the crimes, binding of the victim’s hands and meeting the victim at a bar, “not sufficiently unusual to point to the defendant in this case,” and therefore irrelevant to prove identity). However, this Court has upheld the use of evidence of a collateral crime where the common points, when considered in conjunction with each other, establish a pattern of criminal activity which is sufficiently unique to be relevant to the issue of identity. Chandler, 442 So.2d at 173. While the common points between the T.C. assault and the Roark murder may not be sufficiently unique or unusual when considered individually, they do establish a sufficiently unique pattern of criminal activity when all of the common points are considered together. The cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide. We find no error in the admission of evidence of Gore’s attack on T.C.
On Gore’s third point on appeal he argues that the trial judge erred in denying his motion for a continuance to secure the presence of a defense witness who was unable to travel to the trial due to her pregnancy. He also asserts error in the court’s subsequent denial of his request to be present at the videotaped deposition of the witness. In this deposition the witness testified that she saw Susan Roark in Cleveland, in her black Mustang, on February 6, 1988. This testimony directly contradicted the State’s contention that Roark was murdered by Gore on the 31st of January.
The decision to grant or deny a continuance is within the sound discretion of the trial court. Magill v. State, 386 So.2d 1188, 1189 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). Here, the case had already been continued several times, and the defense was in fact able to present the testimony of the witness at trial in the form of the videotaped deposition. We find no abuse of discretion under these circumstances.
Gore’s claim that he had a right to be present at the deposition would have merit had the deposition been taken by the State to be used against him at trial. See State v. Basiliere, 353 So.2d 820 (Fla.1977) (Confrontation Clause mandates presence of defendant where deposition will be admitted as substantive evidence against him at trial); Fla.R.Crim.P. 3.190(j)(3). However, this deposition was neither taken on the application of the State nor used against Gore at trial. The deposition was introduced into evidence by Gore. While the deposition was ordered at the suggestion of the State, in order to get around the continuance problem, this was not a State deposition. The State would have been quite content if the defense had decided not to take the deposition at all, since this testimony directly contradicted the State’s case. While a defendant does have the right to be present when a witness testifies against him, no rule of criminal procedure, statute, or judicial decision has ever expanded this right into a right to be present at the deposition of a defense witness, and we decline to do so now.
We also reject Gore’s argument that this deposition falls under the defendant’s right to be present “at the stages of his trial where fundamental fairness might be thwarted by his absence.” Francis v. State, 413 So.2d 1175, 1177 (Fla.1982). Depositions do not implicate the same concerns as trial testimony. While it is crucial for a defendant to be able to consult with his attorney at trial in order to aid him in conducting the examination of a witness, the same is not true of a deposition. Here, as in any deposition, if defense counsel had failed to pursue some avenue of questioning or missed some critical fact, he was fully able to go back and supplement the deposition after consultation with the defendant. Gore had no constitutional right to be present at the deposition of this witness, and we find no abuse of discretion in the court’s decision to deny this request.
Gore next argues that the trial court erred in denying his motion for acquittal on the kidnapping count. Gore notes that testimony from Roark’s friends indicated that at the time Roark left the party to take Gore home she accompanied him voluntarily, that she did not ask any of her friends to go along with her when she left, and that her friends would have been willing to go along had she asked. However, other evidence indicated that at some point Roark’s accompaniment of Gore ceased to be voluntary. Roark planned to return to her friend’s home to spend the night. She called her grandmother that evening and told her she would be home in time for church the next morning. When her body was found in Florida, there was a shoestring tied around her wrist, suggesting that at some point she had been bound. Although there is conflicting evidence on this issue, factual conflicts are to be resolved by the jury. State v. Smith, 249 So.2d 16, 18 (Fla.1971). We find that there was substantial, competent evidence to support the jury’s verdict of guilt as to the kidnapping charge, and we therefore reject Gore’s argument that the trial judge should have granted his motion for acquittal.
Gore’s fifth claim is that the trial court erred in excusing Susan Roark’s stepmother from the rule of witness sequestration solely because she was a relative of the victim. Article I, section 16(b) of the Florida Constitution grants to the next of kin of homicide victims “the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.” Art. I, § 16(b), Fla. Const, (emphasis added). This provision does not provide an automatic exception to the rule of sequestration. While in general relatives of homicide victims have the right to be present at trial, this right must yield to the defendant’s right to a fair trial.
The rule of witness sequestration is designed to help ensure a fair trial by avoiding “the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand.” Spencer v. State, 133 So.2d 729, 731 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962), and cert. denied, 372 U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730 (1963). However, a defendant does not have an absolute right to exclude witnesses from the courtroom. “The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule.” Randolph v. State, 463 So.2d 186, 191 (Fla.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3533, 87 L.Ed.2d 656 (1985). Of course, should the witness’ presence cause some prejudice to the accused, the witness should not be allowed to remain in the courtroom. Where the rule has been invoked, a hearing should be conducted to determine whether a witness’ exclusion from the rule will result in prejudice to the accused. Id. at 192.
In this case, although the trial judge did not hold a hearing to determine possible prejudice, he did hear argument from defense counsel on this issue before making his decision to exclude Ms. Roark. Counsel did not ask for any further proceeding, such as a proffer of testimony. In any event, the presence of Roark’s stepmother in the courtroom during the trial did not prejudice Gore. Ms. Roark was not a material witness for the State; the extent of her participation at trial was her testimony that Susan usually wore several rings at one time and her identification of a necklace and four rings as similar to jewelry owned by Susan. We find no abuse of discretion in allowing this witness to be excluded from the rule of sequestration.
Gore’s final arguments relate to the penalty phase of his trial. He first argues that the trial court erred by allowing the State to question a defense psychiatrist on the issue of Gore’s mental state at the time of the offense. This witness testified on direct examination that Gore was not insane, but that his present behavior was a result of his upbringing, and that he had an antisocial personality disorder. On cross-examination, the State elicited testimony that Gore knew the difference between right and wrong, was capable of understanding the nature and quality of his acts, and was capable of conforming his conduct to the requirements of the law. This testimony, designed to show Gore’s ability to be responsible for his own actions, was relevant to rebut the defense’s mitigating evidence that Gore was merely the product of his upbringing. We find no abuse of discretion in allowing this testimony to be elicited.
Gore next disputes the trial judge’s findings at sentencing. The court found the following as aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (3) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. In mitigation the judge considered evidence of Gore’s poor childhood and antisocial personality, concluding that this was insufficient mitigation to outweigh the aggravating circumstances. Gore does not dispute the finding that the murder was committed for financial gain, but argues that the remaining aggravating circumstances were improperly found.
Gore first argues that the trial court erred in finding the murder to have been committed in a cold, calculated, and premeditated manner. To establish the heightened premeditation necessary for a finding of this aggravating factor, the evidence must show that the defendant had “a careful plan or prearranged design to kill. ” Rogers v. State, 511 So.2d 526, 533 (Fla.1987) (emphasis added), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). See also Porter v. State, 564 So.2d 1060, 1064 (Fla.1990), cert. denied, — U.S. -, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991); Rivera v. State, 561 So.2d 536, 540 (Fla.1990). Here, the evidence established that Gore carefully planned to gain Roark’s trust, that he kidnapped her and took her to an isolated area, and that he ultimately killed her. However, given the lack of evidence of the circumstances surrounding the murder itself, it is possible that this murder was the result of a robbery or sexual assault that got out of hand, or that Roark attempted to escape from Gore, perhaps during a sexual assault, and he spontaneously caught her and killed her. There is no evidence that Gore formulated a calculated plan to kill Susan Roark. We therefore conclude that the State has failed to establish the existence of this aggravating circumstance beyond a reasonable doubt. See Drake v. State, 441 So.2d 1079, 1082-83 (Fla.1983), cert. denied, 466 U.S. 978, 104 S.Ct. 2361, 80 L.Ed.2d 832 (1984); Mann v. State, 420 So.2d 578, 581 (Fla.1982).
Gore’s arguments as to the remaining aggravating factors are without merit. In finding that Gore had previously been convicted of violent felonies, the trial judge considered convictions which have since been affirmed on appeal, see Gore v. State, 573 So.2d 87 (Fla. 3d DCA), review denied, 583 So.2d 1035 (Fla.1991), thereby negating Gore’s argument on this issue. We also reject Gore’s argument as to the finding that the murder was committed during a kidnapping. As discussed previously, there was substantial, competent evidence to support the kidnapping charge.
Having concluded that one of the aggravating factors was improperly found, we must address the effect of this error by examining the remaining aggravating and mitigating circumstances. As nonstatutory mitigating evidence the defense presented the testimony of Gore’s uncle and mother, who testified that Gore’s father was verbally and physically abusive and set a poor example by proudly engaging in criminal activities. Most of the father’s physical abuse was directed at Gore’s mother. The defense also presented the testimony of a psychiatrist who concluded that Gore was a product of his upbringing and had an antisocial personality disorder. In considering the mitigating evidence, the trial judge noted that Gore was rational and possesses above average intelligence, that he participated in legal arguments and defenses, and that the defense psychiatrist specifically testified that Gore had the ability to conform his conduct to the law.
In contrast to this mitigation we must consider the three remaining aggravating circumstances, as well as the jury’s recommendation of death. Under the facts of this case, there is no reasonable possibility the trial court would have concluded that the three valid aggravating factors were outweighed by the mitigating evidence. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We therefore conclude that the trial court would have imposed the same sentence without the finding that the murder was cold, calculated, and premeditated, and that the erroneous finding of this factor was harmless beyond a reasonable doubt.
For the reasons expressed, we affirm Gore’s convictions and sentence of death.
It is so ordered.
SHAW, C.J., and OVERTON, McDonald, GRIMES and HARDING, JJ., concur.
BARKETT, J., concurs in result only with an opinion, in which KOGAN, J., concurs.
KOGAN, J., concurs in result only with an opinion.
[OPINION BY BARKETT, Judge, type=concurrence]
BARKETT, Judge,
concurring in result only.
For the reasons expressed in my opinion in Traylor v. State, 596 So.2d 957 (Fla.1992) (Barkett, J., concurring in part, dissenting in part), I dissent from the portion of the majority opinion that adopts the “rationale” and holding of McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). I concur in the result, however, because I believe the admission of Gore’s exculpatory statements in this case was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).
The facts pertaining to this issue are relatively simple. Gore was arrested in Kentucky on a federal parole violation and subsequently transported to Miami. Before being turned over to state authorities, Gore was brought before a federal magistrate, at which point counsel was appointed to represent him and at which point, as the majority recognizes, Gore exercised his Sixth Amendment right to counsel.
Nevertheless, the majority determines that even though Gore exercised his Sixth Amendment right to counsel, the police were not thereafter prohibited from questioning Gore while he was in custody regarding the state murder charges because Gore had only invoked his right to counsel with respect to the federal charges. Although I agree that the purposes and extent of the Fifth and Sixth Amendment rights to counsel differ in some respects, I find this “charge specific” argument unpersuasive in the context of police-initiated custodial interrogation,
The majority acknowledges that where an accused invokes the Fifth Amendment right to counsel, no further police-initiated custodial interrogation can occur without the presence of counsel. Majority op. at 982; art. I, § 9, Fla. Const.; see Traylor, at 966. However, the majority finds that because Gore did not specifically refer to the Fifth Amendment when he asked for counsel at the first appearance hearing, “there is no credible evidence that Gore ever asserted” it. Majority op. at 982.
The majority thus agrees with McNeil that there is a difference between requesting “counsel at a preliminary hearing such as a first appearance [Sixth Amendment] and a request for counsel to assist in police interrogations [the Fifth Amendment].” Majority op. at 982. However, as I stated in Traylor, any such arbitrary distinction between two separate guarantees of the same right — the right to have a lawyer’s assistance in dealing with the power of the state during custodial interrogation — makes no sense.
The “rationale” set forth in McNeil for distinguishing the Fifth and Sixth Amendment rights to counsel is nonexistent. The McNeil majority writes that:
The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary, ” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime.
111 S.Ct. at 2208-09 (citations omitted) (some emphasis added). The McNeil majority then states:
The •purpose of the [Fifth Amendment] guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel.”
Id. at 2209 (citation omitted) (emphasis added). McNeil’s conclusion that the Fifth and Sixth Amendments differ with respect to custodial interrogation is anything but self-evident. The reason given by the McNeil majority for invoking Sixth Amendment counsel — to protect the unaided laymen at critical confrontations with the government — is exactly the same reason given for invoking the Fifth Amendment right to counsel: the desire to deal with the police only through counsel. Surely, the police are part of the “government” and police interrogation of an accused is a “critical confrontation.” Thus, the Fifth Amendment right to counsel is necessarily a subset of the Sixth Amendment right to counsel in the context of custodial interrogation. Therefore, if Sixth Amendment counsel is invoked to aid in “critical confrontations with the government,” then quite clearly Fifth Amendment counsel— which is invoked for protection against the police during custodial interrogation — is included within that invocation. In sum, the two rights to counsel are coextensive, at least with respect to custodial interrogation.
Perhaps in recognition of its forced logic, the McNeil majority concedes that the reason for its strained legal conclusion is to allow police access to those accuseds who have not been released on bail so that the police can conduct further interrogations. See 111 S.Ct. at 2210. But such “reasoning,” to which the majority of this Court subscribes, is neither reasoned nor fair. To the contrary, it underscores and approves the discriminatory application of our criminal laws. The only accuseds who are sitting in jail after a first appearance, and hence subject to custodial interrogation without lawyers, are those who are indigent and therefore too poor to post bail. Defendants with financial resources can hire their own lawyers and post immediate bail. Thus, any questioning of these accuseds, if it takes place at all, will not take place in the coercive atmosphere of a jail.
Today’s decision not only discriminates against those who are poor, but also discriminates against those who are uneducated and those who are unfamiliar with legal terminology. The McNeil majority made clear that should an accused add the magic words, “I ‘desire ... the assistance of an attorney in dealing with custodial interrogation by the police, ’ ” see McNeil, 111 S.Ct. at 2209, the accused would acquire the protections under both the Fifth and Sixth Amendments. Consequently, those educated defendants conversant with McNeil (and now Gore) would know to add these magic words which would insulate them from being approached (and reap-proaehed) in their cells for interrogation. But the unrepresented and uneducated who simply say, “I need a lawyer and cannot afford to hire one,” would not be insulated from being constantly approached in their cells without their lawyers’ presence. As the Michigan Supreme Court eloquently explained in People v. Bladel:
Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that [the] defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.
421 Mich. 39, 365 N.W.2d 56, 67 (1984), aff'd sub nom. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (quoted in McNeil, 111 S.Ct. at 2213 (Stevens, J., dissenting)).
It is a meaningless and cruel game to tell indigent and usually uneducated defendants that they are entitled to a state-paid lawyer, but only if they can guess the right way to ask for one. Under McNeil and the majority’s holdings today, indigent incarcerated accuseds need lawyers to tell them how to ask for a lawyer in order to fully enjoy the right to a lawyer’s assistance in the first place.
Regrettably, today’s decision comes on the heels of this Court’s release of the Racial and Ethnic Bias Study Commission Report, “Where the Injured Fly for Justice.” Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias. Study Commission (December 11, 1991) (on file with the Office of the State Courts Administrator). The interrelation of minority status and poverty further means that today’s opinion will give police a coercive and unfair advantage over a specific class of defendants — uneducated and indigent minorities.
The majority’s adoption of McNeil and its discriminatory impact on indigent minorities is even more disappointing in light of the Court’s statement in Traylor that “[t]he Equal Protection Clause of our state Constitution was framed to address all forms of invidious discrimination under the law, including any persistent disparity in the treatment of rich and poor.” Traylor, at 969 (footnote omitted). The right to court-appointed counsel is supposed to be the basic mechanism which converts this rhetoric of “justice for all” and “equal access to courts” into a semblance of reality. The proclamation in Traylor that “[e]ach Florida citizen — regardless of financial means — stands on equal footing with all others in every court of law throughout our state,” at 969, is sadly untrue.
KOGAN, J., concurs.
[OPINION BY KOGAN, Judge, type=concurrence]
KOGAN, Judge,
concurring in result only.
I fully concur in Justice Barkett’s comments. I add only that I cannot accept the majority’s analysis for the same reasons expressed in my partial dissent to Traylor v. State, 596 So.2d 957 (Fla.1992) (Kogan, J., concurring in part, dissenting in part).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Gore refused to sign a written waiver of his rights at this interview, stating that he did not want to sign anything. This is not dispositive to a finding of a valid waiver. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).
Gore stated that he did not recall whether he had ever driven a black Mustang with Tennessee license tags and that he had never met Susan Roark before in his life. He also denied any knowledge relating to another attack which subsequently resulted in his conviction on several charges. Evidence of this incident was introduced at trial as similar fact evidence.
Although Gore contends that he invoked this right while in federal custody, this request would have precluded questioning on state charges as well. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
Gore did exercise his Fifth Amendment right to remain silent while being interrogated by federal officials. However, this did not "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject.” Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). The test for determining the voluntariness of statements made after the exercise of the right to remain silent is whether the right to cut off questioning has been "scrupulously honored.” Id. at 104, 96 S.Ct. at 326. Gore’s rights were so honored here. The FBI immediately stopped the interrogation when Gore said he did not want to answer further questions. Questioning by state officials took place seven days later, after Gore was again informed of his Miranda rights and waived them. .We acknowledge that Gore’s testimony at the suppression hearing contradicted that of the Metro Dade detectives. Gore stated that he was interrogated by these detectives from 3:15 p.m. until 1 a.m. and that the only statement he made, in response to every single question, was "I want an attorney, I want a phone, and I want to go to the bathroom." He claimed that the information the police obtained during this interview was gleaned from a federal presentence investigation. This incredulous testimony does not provide a basis for overturning the trial court’s finding that Gore’s statements were voluntary. We also note that evidence was offered at the suppression hearing that an attorney from the Dade County public defender’s office sought access to Gore while he was being questioned, eventually obtaining a court order to be allowed to see him. This evidence has no bearing on the issue of whether Gore requested counsel. The attorney was not present because of a request by Gore, but because she heard about him on a television news story. When Gore was informed that the attorney was present, he declined to speak with her.
We note that the State effectively called this testimony into question by the testimony of a rebuttal witness who saw Roark under the exact same circumstances as the defense witness, but remembered that the date was January 30, and that Roark indicated she was on her way to a party with some friends.
This rule provides in pertinent part: (3) If the deposition is taken on the application of the State, the defendant and his attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep him in the presence of the witness during the examination.
§ 921.141(5)(b), (d), (f), (i), Fla.Stat. (1987).
Gore argued that his age at the time of the crime, twenty-four, was a statutory mitigating factor. In rejecting this argument, the judge noted that Gore was streetwise, had completed two years of high school, and was of average or above intelligence. We find substantial competent evidence to support the trial court’s rejection of this mitigating circumstance. See Nibert v. State, 574 So.2d 1059, 1062 (Fla.1990).
Gore even conducted the cross-examination of one of the State’s witnesses, T.C.
I use the terms “Fifth" and "Sixth” Amendment, as opposed to "article I, section 9” and "article I, section 16” for purposes of consistency with the majority opinion. I note that under the doctrine of primacy announced in Traylor v. State, 596 So.2d 957, 962-963 (Fla.1992), I would have first analyzed Gore's rights under the Florida Constitution before turning to federal constitutional law.
The phrase “charge specific” refers to the argument that invocation in a judicial proceeding of the Sixth Amendment right to counsel as to one charge imposes no restrictions on police inquiry as to separate charges for which the right has not attached. See McNeil v. Wisconsin, - U.S. -, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991); Traylor, at 968 & n. 31.
Because Gore exercised his article I, section 16/Sixth Amendment right to counsel, I would hold that Gore also invoked his article I, section 9/Fifth Amendment right to counsel with regard to custodial interrogation and therefore would find that the police, both federal and state, were prohibited from conducting a custodial interrogation outside the presence of Gore’s attorney.
Once again, as a point of clarification, I am saying that the Sixth Amendment is not charge specific with regard to custodial interrogation although it may indeed be charge specific in other contexts as to which there is yet no prosecution.
I agree with Justice Stevens's observation that the "decision will have little, if any, practical effect on police [interrogation] practices” because defense lawyers will now simply clarify at first appearances that the right to counsel is also being invoked for purposes of custodial interrogation by the police. McNeil, 111 S.Ct. at 2212 (Stevens, J., dissenting).
The majority seems to fear that providing lawyers to defendants in custody will somehow hamper effective law enforcement by eliminating custodial confessions. Similar arguments were discounted by the United States Supreme Court in its landmark decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court predicted that "[t]he limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement." Id. at 481, 86 S.Ct. at 1631. Subsequent studies concluded that there was no substantial reduction in confessions as a result of informing suspects of their “Miranda rights.” Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 Harv.L.Rev. 1826, 1827 & n. 5 (1987); see e.g., Special Project, Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519, 1613 (1967); Stephen J. Schulhofer, Reconsidering Miranda, 54 U.Chi.L.Rev. 435, 455-460 (1987). But see Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda”, 54 U.Chi.L.Rev. 938, 945-948 (1987) (arguing that the empirical studies were flawed).
Ironically, the police have not been held to such a strict standard in advising suspects of their Miranda rights, and courts have consistently held that no magic words are needed. See, e.g., California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981); State v. Delgado-Armenta, 429 So.2d 328, 329-31 (Fla. 3d DCA 1983).
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. 86249.
Supreme Court of Florida.
Oct. 1, 1998.
John H. Lipinski and Maria Brea Lipinski, Miami, and Anthony Genova, Miami, for Appellant.
Robert A. Butterworth, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Marshall Lee Gore. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We reverse for a new trial based on the cumulative effect of the prosecutor’s improper cross-examination of Gore and improper closing argument.
I. FACTS
Gore was tried in 1995 for the murder of Robyn Novick, last seen alive on March 11, 1988, in the company of a white male resembling Gore. In the early morning hours of March 12, Gore was seen driving Novick’s automobile, which he later wrecked and abandoned.
Four days later, on March 16, police found Novick’s nude body beside the road in a rural area of Dade County used for dumping trash. She had been stabbed and strangled. The trial court allowed the State to introduce evidence of Gore’s similar crimes against two victims — -Susan Roark and T.C.— for the limited purpose of establishing Gore’s identity as Novick’s murderer.
Gore took the stand on his own behalf. He admitted that he knew Novick and that he had been with her on the night she disappeared. He claimed that Novick loaned her automobile to him. He admitted wrecking and abandoning the automobile, but denied killing Novick.
The jury found Gore guilty of first-degree murder and armed robbery of Novick. The trial court imposed the death penalty following a unanimous jury recommendation. At the time of the Novick conviction, Gore was under sentence of death for the murder of Roark and was serving a life sentence for the rape, robbery and attempted murder of T.C. Both sentences were affirmed on appeal. See Gore v. State, 599 So.2d 978 (Fla.1992); Gore v. State, 573 So.2d 87 (Fla. 3d DCA 1991).
On appeal in this case, Gore raises six issues regarding the guilt phase of his trial and two issues regarding the penalty phase. Because we find it dispositive in this appeal, we address only one of the guilt phase issues: Whether the prosecutor committed reversible error during the cross-examination of Gore and during closing argument.
II. QUESTIONING ON COLLATERAL CRIMES
A. Child Abuse
Prior to trial, the State filed a notice of intent to introduce Williams -rule evidence, pursuant to section 90.404(2) (b)1, Florida Statutes (1995), concerning Gore’s similar crimes against T.C. and Roark. The State argued that the evidence was admissible to demonstrate a unique modus operandi establishing Gore’s identity as Novick’s murderer. In permitting the State to introduce evidence of those two crimes, the trial court explicitly precluded the State from introducing the details of what occurred after Gore left T.C. for dead. Specifically, these details included the fact that Gore took T.C.’s automobile with T.C.’s two-year-old son inside and then drove the child to Georgia, where he left the child naked and locked in the pantry of a burned and abandoned house in freezing temperatures. In its pretrial ruling, the trial court found that reference to details concerning the child “would be prejudicial and outweigh[] any probative value.”
During defense counsel’s direct examination, Gore testified that he was the biological father of the child. The prosecutor, on cross-examination, questioned Gore about this assertion. Without first seeking the trial court’s permission, the prosecutor proceeded to ask the following inflammatory questions:
Q. Now, let’s talk about your son J. for a moment, who you say is your son?
A. Yes. T.C. says it too.
Q. By the way, would you tell the Ladies and Gentlemen of the Jury why on the 16th of March of 1988, after leaving T.C. on the side of the road, you left two-year-old, who you say is your son, J., locked in an abandoned house in Georgia, naked in SO degree weather?
Defense counsel lodged a timely objection, which the trial court overruled. During closing argument, the prosecutor again referred to the kidnapping and abandonment of the child as one of the reasons the jury should disbelieve Gore’s testimony.
We begin our analysis with the basic proposition that in order to be admissible, evidence must be relevant. See § 90.402, Fla. Stat. (1995). Relevant evidence is defined as evidence “tending to prove or disprove a material fact.” Id. § 90.401. However, the admission of relevant evidence is restricted by the mandate of section 90.403, Florida Statutes (1995), which provides that “[r]ele-vant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.” Section 90.403 compels the trial court to engage in this balancing test. See Steverson v. State, 695 So.2d 687, 688 (Fla.1997).
In its pretrial ruling, the trial court properly precluded the State from introducing evidence concerning Gore’s kidnapping and abandonment of T.C.’s son. We are initially concerned with the State’s blatant disregard of the trial court’s specific pretrial ruling. “The foundation of our legal system depends on fidelity to rules.” Halsell v. State, 672 So.2d 869, 870 (Fla. 3d DCA 1996). If, as the State urges here, the prosecutor genuinely believed that Gore had opened the door to this inquiry by his testimony on direct examination, see generally Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997), the proper method of proceeding would have been to first inquire of the trial court whether it would modify its earlier ruling, thus giving defense counsel an opportunity to respond fully. In this case, the “cat” was already “out of the bag,” and the damaging statement made, before defense counsel could interpose the objection.
The State maintains that its cross-examination on this subject was nonetheless proper for two reasons: (1) to impeach Gore’s credibility; and (2) because the inquiry was within the scope of Gore’s testimony on direct. Even if the cross-examination constituted potential impeachment or was within the scope of direct, the evidence must still pass the balancing test of section 90.403 to be admissible. In this case, the prosecution was permitted to introduce evidence of Gore’s attempted murder of T.C. only for the limited purpose of establishing Gore’s identity as Noviek’s murderer, and then only with a cautionary instruction to the jury limiting the scope of its consideration of this evidence. Neither the issue of Gore’s paternity of the child nor Gore’s conduct toward the child after attacking T.C. was relevant to establish the similarity of the collateral crime involving the attempted murder of T.C. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990); Witherspoon v. State, 645 So.2d 146, 147 (Fla. 3d DCA 1994).
The improper admission of collateral crimes evidence is “presumed harmful” because the jury might consider the bad character thus demonstrated as evidence of guilt of the crime charged. Czubak, 570 So.2d at 928. Undoubtedly, this questioning of Gore was highly prejudicial in that it involved Gore’s reprehensible action of leaving a two-year-old child naked in a burned and abandoned house in thirty-degree weather. Assuming that the State’s intent was to impeach Gore’s statement that he was ’ the child’s father, Gore’s conduct towards the child does not necessarily disprove paternity, and there were other less prejudicial means to contradict Gore’s representation that he was_ the child’s father. It is likely that the jury considered this evidence to establish' Gore’s bad character, and not solely as impeachment of his statement concerning the child’s paternity. Any probative value of this inquiry was marginal and clearly outweighed by the tremendous prejudice resulting from the jury hearing of these despicable actions. See Sexton v. State, 697 So.2d 833, 837-38 (Fla.1997).
B. Other Collateral Crimes
On three separate occasions during cross-examination, the prosecutor questioned Gore as to whether he had sex with a thirteen-year-old girl. However, the State failed to file a notice of intent to introduce any collateral crimes evidence involving the thirteen-year-old, nor otherwise sought the trail court’s permission to question Gore regarding this crime. Nonetheless, the trial court overruled defense counsel’s timely objections to these questions. These questions had no relevance in this trial other than to prove that Gore was a morally reprehensible individual. Because the sole relevance of this evidence could only be to demonstrate Gore’s bad character, it was inadmissible. See Czubak, 570 So.2d at 928.
In addition, during Gore’s cross-examination the prosecutor asked questions about another female, M.D. While the State argues that the questions asked concerning M.D. were themselves innocuous, the State makes no pretense of explaining why the questions were asked in the first place. These questions could only serve to suggest to the jury Gore’s involvement in yet another collateral crime against a female victim, close in time to the crime charged. This aspect of the State’s cross-examination impermissibly placed before the jury presumptively prejudicial collateral crime evidence without an appropriate predicate for its admissibility having been established. Like the questioning concerning the collateral crime of sex with a thirteen-year-old girl, this questioning could only demonstrate Gore’s bad character or propensity to commit crime, and was thus improper. See id.
III. ENTREATY TO CONVICT IF JURY DISBELIEVED GORE
In addition to the improprieties concerning collateral crime evidence, the prosecutor twice exhorted the jurors during closing argument to convict Gore if they disbelieved his testimony:
You see, when I started with you I told you I have the burden of proof and I always have the burden of proof. But you see, now you consider all the evidence presented to you and decide whether I met not just the evidence I presented, but the evidence they presented, you see, because I’ll make it really simple for you: If you believe he did not tell you the truth, that he made up a story, that’s it, he’s guilty of First Degree Murder—
You know, instead of standing up here for the next however much time I have left, 25 minutes, and just talking about ridiculous statements which I don’t want to anymore, okay, we’ve all listened to everything, I can’t, I can’t give you anything else that you haven’t heard. I can’t make this anymore simpler than it is, because that’s what it is. It’s simple and it comes down to this in simplicity: If you believe his story, he’s not guilty. If you believe he’s lying to you, he’s guilty. It’s that simple.
Defense counsel timely objected to these arguments, but each time his objections were overruled. This was error. While wide latitude is permitted in closing argument, see Breedlove v. State, 413 So.2d 1, 8 (Fla.1982), this latitude does not extend to permit improper argument. Here, the prosecutor’s closing argument enunciated an erroneous and misleading statement of the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.
The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. See Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA), review denied, 680 So.2d 424 (Fla.1996); Clewis v. State, 605 So.2d 974, 974 (Fla. 3d DCA 1992); Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989). Here, the prosecutor’s statement, “[i]f you believe he’s lying to you, he’s guilty,” was nothing more than an exhortation to the jury to convict Gore if it found he did not tell the truth. Thus, it was a clearly impermissible argument. See Bass, 547 So.2d at 682; cf. Craig v. State, 510 So.2d 857, 865 (Fla.1987).
IV. PERSONAL ATTACKS ON GORE
At some point in this trial, the prosecutor allowed his animosity towards Gore to overcome his professional judgment and responsibilities. Apparently because the same prosecutor had previously been involved in prosecuting him, Gore “questioned” the prosecutor as to whether the prosecutor had a vendetta against him, and why the prosecutor continued to prosecute cases against him. The prosecutor responded:
Because I don’t like people who kill women. How’s that? You ivant to know why? Because I don’t like people preying on women.
Later in the cross-examination, Gore challenged the prosecutor to take the stand, to which the prosecutor responded:
I didn’t kill three women, you did. You see, Mr. Gore, you killed women. That’s why you’re on the stand.
A. And you’re trying to kill me.
Q. I didn’t kill anyone.
A. But you’re trying to kill me.
Q. Well, you know what, you’re right, I am, because somebody who does what you do deserves to die.
Clearly, it was improper for the prosecutor to express his personal belief about Gore’s guilt. See Conley v. State, 592 So.2d 723, 731 (Fla. 1st DCA 1992), reversed on other grounds, 620 So.2d 180 (Fla.1993); see also Conley v. State, 620 So.2d 180, 184 n. 7 (Fla.1993). To be sure, Gore himself was antagonistic during the questioning, but the conduct on the part of the defendant should not have given rise to this “tit-for-tat” exchange between prosecutor and defendant.
During closing argument the prosecutor argued to the jury:
You know, Ladies and Gentlemen, there’s a lot of rules and procedures that I have to follow in court, and there’s a lot of things I can say or can’t say, but there’s one thing the Judge can’t ever make me say and that is he can never make me say that’s a human being.
It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness. See Reaves v. State, 639 So.2d 1, 5 (Fla.1994); Goddard v. State, 143 Fla. 28, 36-37, 196 So. 596, 600 (1940); Johnson v. State, 88 Fla. 461, 463-64, 102 So. 549, 550 (1924); Pacifico v. State, 642 So.2d 1178, 1182-83 (Fla. 1st DCA 1994).
Goaded by Gore, the prosecutor abandoned any semblance of professionalism and engaged in needless sarcasm. By way of example, when Gore claimed everyone was out to get him because he was Jewish the prosecutor remarked:
Q. Oh, Gore is a Jewish name? What did you have for Passover, a bunch of Matzo this year?
This exchange prompted defense counsel to object that the prosecutor was badgering Gore and that the two were behaving “like two juveniles.” Another instance of the prosecutor’s needless sarcasm occurred when, in response to Gore’s claim of having held several occupations, the prosecutor asked:
Q. So you were also a dancer? Were you a cook? How about a bottle washer?
A. I have been a cook.
Q. Candle maker? No? Nothing like that?
Comments such as these demonstrate that this prosecutor lost sight of his professional responsibility.
V. PROFESSIONAL RESPONSIBILITY
The conduct of the prosecutor was antithetical to his responsibilities as an officer of the court. As this Court stated nearly fifty years ago:
Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament.
Stewart v. State, 51 So.2d 494, 495 (Fla.1951). While prosecutors should be encouraged to prosecute cases with earnestness and vigor, they should not be at liberty to strike “foul blows.” See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). As the United States Supreme Court observed over sixty years ago, “It is as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Id.
We can appreciate from our review of the record that Gore was a most difficult defendant and source of frustration to both the trial court and the prosecutor. However, that frustration cannot justify the prosecutor’s behavior. We expect prosecutors, as representatives of the State, to refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner. See, e.g., Urbin v. State, 714 So.2d 411, 418-22 (Fla.1998); Garron v. State, 528 So.2d 353, 359 (Fla.1988); Adams v. State, 192 So.2d 762, 764-65 (Fla.1966); see also Campbell v. State, 679 So.2d 720, 725 (Fla.1996); Nowitzke v. State, 572 So.2d 1346, 1356 (Fla.1990); Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985).
This case is one more unfortunate demonstration that “there are [still] some [prosecutors] who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom.” Urbin, 714 So.2d at 422. As we did in Garcia v. State, 622 So.2d 1325, 1331-32 (Fla.1993), Campbell, 679 So.2d at 725, Nowitzke, 572 So.2d at 1356, and Garron, 528 So.2d at 359, we once again repeat our admonition in Bertolotti, 476 So.2d at 133:
[W]e are deeply disturbed as a Court by continuing violations of prosecutorial duty, propriety and restraint. We have recently addressed incidents of prosecutorial misconduct in several death penalty cases.... It ill becomes those who represent the state in the application of its lawful penalties to themselves ignore the precepts of their profession and their office.
See also Jackson v. State, 498 So.2d 406 (Fla.1986); State v. DiGuilio, 491 So.2d 1129 (Fla.1986); State v. Marshall, 476 So.2d 150 (Fla.1985).
The prosecutor in this case exceeded the bounds of proper conduct and professionalism and provided a “textbook” example of overzealous advocacy. This type of excess is especially egregious in this, a death case, where both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects.
We further note that the trial court has a crucial role in ensuring that lawyers do not exceed the bounds of proper advocacy. As we stated in Bertolotti “[W]e [again] commend to trial judges the vigilant exercise of their responsibility to insure a fair trial.” 476 So.2d at 134.
VI. CONCLUSION
In considering reversal, we must look to the totality of the improper questions and comments by the prosecutor during his cross-examination of Gore and during closing argument. See, e.g., Campbell, 679 So.2d at 724; Amos v. State, 618 So.2d 157, 163 (Fla.1993). In this case, defense counsel objected to most of the prosecutor’s improper comments and questions. The most significant improprieties concerned the improper admission of collateral crime evidence, which is presumptively prejudicial. We cannot conclude beyond a reasonable doubt that, collectively, these errors were harmless and did not affect the verdict, especially since there was no physical evidence directly linking Gore to the murder, Gore did not confess, and the State’s case was circumstantial. See DiGuilio, 491 So.2d at 1139; see also Campbell, 679 So.2d at 724-25; Amos, 618 So.2d at 163.
Due process requires that fundamental fairness be observed in each case for each defendant. Our system of justice depends on this basic precept. In this case the prosecutor’s “over zealousness in prosecuting the State’s cause worked against justice, rather than for it.” Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984).
Accordingly, for the reasons stated in this opinion, we reverse and remand for a new trial.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
We hasten to point out that the assistant attorney general who represented the State on appeal, Barbara Yates, was not the prosecutor who tried this case. We commend Ms. Yates for her professional conduct in the handling of this appeal.
Susan Roark was last seen alive on January 30, 1988. Robyn Novick (the victim involved in this appeal) was last seen alive on March 11, 1988. Gore attacked and left T.C. for dead on March 14, 1988, three days after the disappearance of Novick. Gore was tried and convicted first for the attempted murder of T.C., and then for the murder of Roark.
Williams v. State, 110 So.2d 654 (Fla.1959).
While not determinative to oiir decision, we note that the pretrial ruling was made by a different judge than the judge who presided at trial.
The trial court gave the following cautionary instruction derived from the Florida Standard Jury Instructions: [T]he evidence you’re about to receive concerning evidence of other crimes allegedly committed by the Defendant will be considered by you for the limited purpose of proving motive and identity on the part of the Defendant, and you should consider it only as it relates to those issues. However,' the Defendant is not on trial for a crime that is not included in this Indictment. See Fla. Std. Jury Instr. (Crim.) 66. 6. Besides being highly improper, this comment by the prosecutor was also misleading. There was no evidence in the record that Gore killed three women.
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. SC96127.
Supreme Court of Florida.
April 19, 2001.
William M. Norris, Coconut Grove, FL, for Appellant.
Robert A. Butterworth, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Marshall Lee Gore. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the convictions for first-degree murder and armed robbery and the sentences, including the sentence of death.
BACKGROUND
This appeal arises from the retrial of Gore as ordered by this Court in Gore v. State, 719 So.2d 1197, 1203 (Fla.1998). Gore was initially tried, convicted of first-degree murder, and sentenced to death in 1995 for the killing of Robyn Noviek. On appeal, this Court reversed the judgment and sentence and ordered a new trial due to the cumulative effect of the State’s improper cross-examination of Gore and improper closing argument. See id. at 1197. Gore was retried and again convicted and sentenced to death.
The record of Gore’s retrial reflects the following facts. Police discovered Novick’s nude body in a rural area of Dade County on March 16, 1988. Her body was hidden by a blue tarpaulin-like material. Noviek suffered stab wounds to the chest and had a belt tied around her neck. According to the medical examiner, Noviek died as a result of the stab wounds and mechanical asphyxia. He estimated that Noviek was killed between 9 p.m. and 1 a.m. on March 11 into March 12,1988.
Noviek was last seen alive on March 11, 1988, leaving the parking lot of the Redlands Tavern in her yellow Corvette. A witness testified that Noviek left with a man, whom the witness identified as Gore.
In the early morning of March 12, Gore was seen driving Novick’s automobile. D.R., a friend of Gore’s, testified that Gore arrived at his home driving a yellow Corvette with a license plate reading “Robyn.” D.R. had not seen the car before and stated that when he last saw Gore in February 1988, Gore was driving a black Mustang. Gore told D.R. that his girlfriend had loaned him the Corvette and asked D.R. to call him “Robyn.” Gore also asked D.R. to accompany him to Coconut Grove.
On the way to Coconut Grove, Gore lost control of the vehicle and “wrecked” the Corvette. Gore attempted to drive the vehicle away from the scene of the accident, but abandoned the vehicle a few blocks away. D.R. testified that shortly after the accident a marked police vehicle was coming towards them, at which time, Gore told him to “run” because the car was stolen. Gore also told D.R. that he had left jewelry in the car. When the police arrived on the scene, they recovered credit cards, a driver’s license and a cigarette case, all belonging to Novick, as well as a “power of attorney” executed by Gore.
J.C., who was thirteen years old at the time of Novick’s murder, testified that Gore came to her home in the early morning hours of March 12, driving a yellow Corvette. Gore had been staying with J.C., her mother, and her mother’s friend since February 1988. According to J.C., Gore returned to her home later that day, stating that he had been injured in a car accident. At that time, Gore gave J.C. the keys to the Corvette. FBI Special Agent Carl Lowery testified that Novick’s body was recovered “within a few hundred feet” from this house.
The following night, March 13, Gore went to the house of a friend, Frank McKee, and asked him if he could borrow some money and stay the night. Gore stated that the police were looking for him. Gore also informed his friend that he had recently been in a car accident involving a yellow Corvette and that he had lost some jewelry. McKee refused to allow Gore to spend the night and Gore subsequently left in a cab.
In its case-in-chief, the State also introduced Williams rule evidence that Gore committed similar crimes against Roark and T.C. The State presented evidence that Gore had murdered Roark shortly after her disappearance in January 30, 1988, by inflicting trauma to her neck and chest. In addition, evidence established that Gore stole Roark’s black Ford Mustang and other personal property, then left her nude body in a rural area used as a trash dump. Similarly, the State presented evidence that Gore attacked T.C. on March 14, 1988, two days after the murder of Novick. T.C. herself testified against Gore, stating that he beat her with a rock, raped, choked and stabbed her, and left her for dead on the side of the road near the scene where Novick’s body was found. Gore proceeded to steal T.C.’s red Toyota sports car and personal property.
FBI agents finally arrested Gore in Paducah, Kentucky on March 17, 1988. At the time of his arrest, Gore was in possession of T.C.’s red Toyota automobile and he had her bank and credit cards in the pocket of his jacket. Police officers subsequently questioned Gore regarding the T.C. and Roark crimes. According to the police, Gore denied knowing Roark or T.C. and denied all involvement in the crimes. Gore also denied knowing Novick. When police prepared to show Gore a photograph of Novick, Gore stated “just make sure it is not gory” because his “stomach could not take it.” At the time that Gore made such statements, the police had yet to inform Gore that Novick was dead. Detective David Simmons of the Miami Dade Police Department testified that when Gore looked at Novick’s picture, Gore’s eyes “swelled with tears.” Gore also stated that “if I did this, I deserve the death penalty.”
In his defense, Gore took the stand and testified on his own behalf. Gore claimed that prior to his interrogation by police in Miami concerning the Novick murder, reporters previously had told him upon his arrest that Novick was dead. He also claimed that during his interrogation, police had placed gruesome photographs of the murders all over the interview room. Moreover, Gore stated that police had given him a polygraph examination, which he claimed he had passed.
Gore testified that he was the owner of an escort service and claimed that T.C., Novick, Roark, and D.R. all worked for the escort business. Gore maintained that Novick worked for him as a nude dancer and he admitted that he was with Novick at the Redlands Tavern on the evening of March 11, 1988. Gore, however, denied killing her. Gore explained that he was driving Novick’s Corvette and that he had arranged for both Novick and T.C. to work as escorts that night. Gore claimed that after leaving the Redlands Tavern, he drove Novick to a club where T.C. worked. According to Gore, Novick, T.C., and another woman left the club with three men in a Mercedes. Gore claimed that he followed this group in Novick’s vehicle to a warehouse in Homestead, Florida. Gore stated that he called the warehouse later that night and that the phone was answered by a member of a pro-Castro group, with which one of the men was affiliated.
Gore testified that he spoke with Novick later that night and informed her about the accident and told her to report the car stolen so that she could collect the insurance proceeds. During this conversation, Novick told Gore that T.C. had left in the middle of the night because there were “problems” with the three clients who were angry about missing drugs and drug money. Gore claimed that he knew that T.C. previously had sold some drugs and used the proceeds to buy a new car-.
Gore also testified that he spoke with T.C. a few days later, and that she was scared because someone was looking for her. Gore claimed that T.C. wanted a gun and that he had arranged a meeting with her in an effort to assist T.C. in selling the remainder of her drugs. Fm> thermore, Gore claimed that he later saw the men who were with Novick and T.C. on the night of the Novick murder and they told him that Novick “was picked up” from the warehouse.
Addressing his relationship with Susan Roark, Gore admitted that he knew her for many years. He acknowledged that he was with Roark on the last night that she was seen alive. He stated, however, that Roark had visited him during his incarceration in Miami, indicating that it was impossible for him to have murdered Roark. Gore also asserted that Dr. William Maples, a forensic anthropologist, could testify that Roark had been dead for only three weeks when her remains were recovered and that Gore had been in jail for six months at that time. Furthermore, Gore asserted that the evidence found at the site where Roark’s body was found did not link him to the crime.
On cross-examination, Gore admitted that he previously had been convicted of committing fifteen felonies. Gore denied trying to kill T.C. and claimed that her injuries were the result of her jumping out of a moving car. Gore also asserted that all of the State witnesses had lied and he refused to explain why he was in possession of the property of people who were either killed or attacked.
A.F. testified on Gore’s behalf. A.F. worked for Gore in 1984 or 1985 when she was fifteen years old, answering phones for the escort service. A.F. claimed to have known Roark, T.C., and Novick through her association with Gore. However, she could not state when, where, or how many times that she had met T.C. or Novick and was unable to describe them. Moreover, when presented with a photograph of several women, she could not identify T.C.
After the close of all the evidence, the jury convicted Gore of first-degree murder and armed robbery with a deadly weapon of Novick. During the penalty phase, Gore chose to represent himself. The jury recommended that Gore be sentenced to death by a vote of twelve to zero. The trial court imposed the death penalty for the first-degree murder conviction and imposed an upward departure life sentence for the armed robbery conviction to run consecutive to any other sentence Gore was serving.
In its sentencing order, the trial court found the following three aggravating circumstances: (1) Gore was previously convicted of another capital felony involving the use or threat of violence to the person; (2) the capital felony was committed while Gore was engaged in the commission of, or an attempt to commit, or in flight after committing or attempting to commit any robbery; and (3) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of legal justification (“CCP”). The trial court found no statutory mitigating circumstances, but did find three nonstatutory mitigating circumstances: (1) Gore suffered hearing loss (minimal weight); (2) Gore suffered from migraine headaches (minimal weight); and (3) Gore had previously stopped an altercation between R.C. and M.C. (minimal weight). The trial court concluded that the aggravators outweighed the mitigators and sentenced Gore to death.
Gore raises eight issues in this appeal. We address the guilt-phase issues first.
GUILT PHASE
A. Double Jeopardy
In the first issue, Gore claims that by retrying him in this case, the State violated his constitutional rights by placing him in double jeopardy. Relying on Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), Gore asserts that the State’s actions during cross-examination of Gore and closing argument were so egregious that this Court should find that the Double Jeopardy Clause of both the United States and Florida Constitutions prevented the State from retrying him in this case.
As stated by the United States Supreme Court in Kennedy, the Double Jeopardy Clause would prevent the State from retrying a defendant where it is established that the judge or prosecutor, by his or her own egregious conduct, caused the defendant to move for a mistrial, and the conduct of the judge or prosecutor “was intended to provoke the defendant into moving for a mistrial.” 456 U.S. at 679, 102 S.Ct. 2083. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on Ms own motion.” Id. at 676, 102 S.Ct. 2083. Despite this limited exception barring a retrial, the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the State from retrying a defendant who succeeds in getting his conviction set aside on appeal due to some error in the proceedings below. See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); see also Ruiz v. State, 743 So.2d 1, 9-10 n. 11 (Fla.1999) (holding that double jeopardy did not bar State from retrying defendant despite the fact that prosecutors “attempted to tilt the playing field and obtain a conviction and death sentence”); Keen v. State, 504 So.2d 396, 402 n. 5 (Fla.1987) (holding double jeopardy did not prevent a retrial of defendant arising from prosecutorial misconduct).
Gore’s reliance on Kennedy is misplaced. In the present case, Gore did not successfully abort the first trial pursuant to a motion for a mistrial. Rather, Gore’s convictions were overturned on appeal. Thus, the limited Kennedy exception to the Double Jeopardy Clause does not apply here and it was not error for the State to retry Gore despite the prosecutors’ actions in the first trial. See Ruiz, 743 So.2d at 10 n. 11; Keen, 504 So.2d at 402 n. 5.
B. Motion for a Mistrial
In the second issue, Gore claims that the trial court erred in denying his motion for a mistrial after the State questioned J.C., in the course of her testimony as a State witness, about whether she had an “intimate relationship” with Gore. Gore contends that the State’s question was unfairly prejudicial because J.C. was only thirteen years old at the time of the murder.
Immediately following the State’s question, defense counsel objected on grounds that such questioning was improper Williams rule evidence and subsequently moved for a mistrial. The trial court denied the motion for a mistrial. However, the trial court sustained the objection and gave the following instruction to the jury:
The last objection was sustained. I’m going to strike from the record the last response made by the witness. You must disregard it in your deliberations. Are you all able to follow the instruction? Is there anyone at all who would be influenced in any way by the last responses you just heard from the witness? If so, just raise your hand. For the record, I see no hands. All jurors said they could follow that instruction.
A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be “granted only when it is necessary to ensure that the defendant receives a fair trial.” Goodwin v. State, 751 So.2d 537, 547 (Fla.1999) (quoting Cole v. State, 701 So.2d 845, 853 (Fla.1997)). Moreover, as this Court stated in Goodwin, the use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where “the trial court recognized the error, sustained the objection and gave a curative instruction.” 751 So.2d at 547.
We hold that the trial court did not abuse its discretion in denying Gore’s motion for a mistrial. This single question is in marked contrast to the error in the first trial when on three separate occasions during cross-examination of Gore, the prosecutor questioned Gore as to whether he had sex with a thirteen-year-old girl (referring to J.C.). See Gore, 719 So.2d at 1200. In the first trial, the trial court overruled defense counsel’s timely objections to these questions. See id. In addition, our reversal resulted from the cumu-lation of multiple errors throughout the trial caused by the conduct of the prosecutor. See id. at 1202-03.
In the present case, the State asked J.C. one isolated question regarding the nature of her relationship with Gore. The trial court sustained the objection and immediately instructed the jury to disregard Gore’s relationship with J.C., and the State did not refer to Gore’s relationship with J.C. during closing argument. Any prejudice that may have ensued from the State’s improper question was exacerbated by Gore himself, who referred to the improper relationship with thirteen-year-old J.C. on several occasions during the State’s cross-examination of Gore despite the fact that the State did not initiate any additional questions about Gore’s relationship with J.C. Accordingly, we hold that the trial court did not abuse its discretion in denying Gore’s motion for a mistrial. See Walker v. State, 707 So.2d 300, 313 (Fla.1997); Cole, 701 So.2d at 853.
C. Motion for Judgment of Acquittal
Gore contends that the trial court erred in failing to grant his motion for a judgment of acquittal on charges of first-degree murder and armed robbery. Gore argues that the circumstantial evidence does not prove that Gore killed Novick with a premeditated design, or during the commission of a felony, as is necessary to support a finding of guilt for first-degree murder. In addition, Gore argues that the State presented insufficient evidence to support his conviction for armed robbery.
As stated in Orme v. State, 677 So.2d 258, 262 (Fla.1996), a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See id. (citing State v. Law, 559 So.2d 187, 188-89 (Fla.1989)).
[The court’s] view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.
Law, 559 So.2d at 188-89 (citations and footnote omitted) (quoting State v. Allen, 335 So.2d 823, 826 (Fla.1976)). “In sum, the sole function of the trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories.” Orme, 677 So.2d at 262. If such inconsistency exists, then the question is for the finder of fact to resolve. See Woods v. State, 733 So.2d 980, 985 (Fla.1999). The trial court’s finding will not be reversed on appeal if there is competent substantial evidence to support the jury’s verdict. See id.; Orme, 677 So.2d at 262.
1. Premeditated Murder
We first examine Gore’s contention that the trial court erred in failing to grant a judgment of acquittal on the first-degree murder charge because the State failed to present sufficient evidence to support premeditated murder. “Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.” Green v. State, 715 So.2d 940, 943 (Fla.1998). This purpose to kill must exist for sufficient time before the homicide “to permit reflection as to the nature of the act to be committed and the probable result of that act.” Id. at 944. Premeditation can be shown by circumstantial evidence. See Woods, 733 So.2d at 985. As this Court has stated:
Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.
Green, 715 So.2d at 944 (quoting Holton v. State, 573 So.2d 284, 289 (Fla.1990)).
Applying these principles to this case, we hold there is competent substantial evidence supporting Gore’s conviction for premeditated murder of Novick and to rebut Gore’s hypothesis of innocence. The official cause of Novick’s death was stab wounds to the chest associated with mechanical asphyxia — strangulation. One of the stab wounds to Novick’s chest was so deep that it penetrated her heart and lung. This wound was severe enough to cause Novick’s death. However, while Novick was still alive, she was strangled with a silver belt so forcefully that she suffered a fracture of her trachea. There were no defensive wounds found on Novick’s body and no evidence was presented indicating that the murder was the result of a provocation or ill will between Novick and Gore.
The State presented additional evidence to support a conviction of premeditated murder, including Gore’s history of targeting young, attractive women who drove sporty automobiles and thereafter killing or attempting to kill them. The State points to the fact that in this case, as in the prior similar crimes, Gore did not attack these women in haste as evidenced by the fact that no blood or any other physical evidence of foul play was found in the victims’ vehicles. Rather, the evidence suggests that Gore acted with deliberation by removing the victims from their vehicles prior to stabbing them. Further, there was no evidence that any of the victims resisted or struggled with Gore, an indication that Gore acted calmly and with deliberation.
Based upon the circumstantial evidence presented in this case, we hold that there was competent substantial evidence supporting the jury’s first-degree murder ver-diet. See Crump v. State, 622 So.2d 963, 971 (Fla.1993) (holding sufficient evidence of premeditation existed to support jury’s verdict where defendant struck and then strangled victim and had engaged in a pattern of similar crimes). Accordingly, the trial court did not err in denying Gore’s motion for a judgment of acquittal.
2. Felony Murder and Armed Robbery
The State contends that even if the evidence did not support premeditated murder, the evidence does support Gore’s conviction based upon a felony murder theory. We agree. Robbery is “the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla.Stat. (1989). Property that is the subject of the taking need not be in the actual physical possession or immediate presence of the person who was robbed. See Jones v. State, 652 So.2d 346, 350 (Fla.1995). “Property is taken from ‘the person or custody of another’ if it is sufficiently under the victim’s control so that the victim could have prevented the taking if she had not been subjected to the violence or intimidation by the robber.” Id. Under section 812.13(3)(b), Florida Statutes (1989), the violence or intimidation may occur prior to, contemporaneously with, or subsequent to the taking of the property so long as both the act of violence or intimidation and the taking constitute a continuous series of acts or events. See Jones, 652 So.2d at 349. The taking of property after a murder, however, does not constitute robbery if the motive for the murder was not the taking of property. See Mahn v. State, 714 So.2d 391, 397 (Fla.1998) (citing Knowles v. State, 632 So.2d 62, 66 (Fla.1993), Clark v. State, 609 So.2d 513, 515 (Fla.1992), and Parker v. State, 458 So.2d 750, 754 (Fla.1984)).
We hold that there is competent substantial evidence to support the finding that Gore committed murder during the commission of a robbery. In the present case, Novick was last seen alive driving her Corvette from the Redlands Tavern, accompanied by Gore, who admitted to being with Novick at the bar that evening. Hours later, Gore was seen driving the Corvette, without Novick, telling others that the car was on loan from his girlfriend. After wrecking the car, he abandoned it and stated that it was stolen. Inside the vehicle, police recovered Novick’s personal property and a “power of attorney” executed by Gore. The day after Gore wrecked the car, Gore gave a friend the keys to the vehicle and told another Mend that the police were after him. Novick’s body was found several days later, naked and abandoned in a remote area, within a few blocks from where Gore had attacked T.C. and from where Gore previously had been staying.
The evidence also revealed that when Gore took Novick’s Corvette, he did not have a car of his own. Gore’s prior convictions established a pattern of attacking women in order to gain their property and use their cars. In each of these prior instances, Gore attempted to murder or actually murdered women, stole their personal possessions and cars, and left the bodies in remote areas.
In sum, there is competent substantial evidence supporting Gore’s conviction for armed robbery. Therefore, we hold that the trial court did not err in denying Gore’s motion for a judgment of acquittal on charges of first-degree murder and armed robbery.
D. Reverse Williams Rule Evidence
In this claim, Gore contends that the trial court erred in excluding reverse Williams rule evidence pertaining to the murder of a Paulette Johnson, which Gore argues supports his hypothesis of innocence. Gore alleges that Johnson was a woman from Miami who worked for his escort service and who was murdered in Tennessee in 1989 in the very same manner as both Novick and T.C. were murdered. Gore argues that because he was incarcerated at the time of Johnson’s death, evidence of Johnson’s murder supported his assertions that someone else had murdered Novick.
Prior to trial, the State filed a motion in limine to prevent Gore from introducing evidence relating to the alleged murder of Paulette Johnson. The State argued that the murder of Johnson was insufficiently similar to the murders of both Novick and Roark to be admissible. In addition, the State contended that the woman murdered in Tennessee was actually named “Pauline Johnson,” not “Paulette Johnson.” Thus, the State argued that Gore failed to present sufficient evidence demonstrating that “Pauline Johnson” was the same “Paulette Johnson” who Gore claimed worked for his escort service. Furthermore, the State argued that any testimony concerning the death of Johnson was hearsay and inadmissible because Gore could not satisfy the test for admissibility of similar fact evidence of other crimes for exculpatory purposes. The trial court granted the State’s motion stating that Gore could not establish that Pauline Johnson, the woman murdered in Tennessee, was the same Paulette Johnson who Gore claimed was involved in his escort business. In addition, the court ruled that Gore failed to show how the murder was relevant in this case.
Although the issue was revisited at trial, the court again excluded all testimony pertaining to the death of Johnson because Gore could not satisfy the test for admissibility by demonstrating the necessary relevance of the evidence. Gore now argues on appeal that the trial court erred in excluding this evidence because it could have established reasonable doubt as to his guilt in the murder of Novick.
In Rivera v. State, 561 So.2d 536, 539-40 (Fla.1990), this Court addressed the situation where a defendant, standing trial for murder, attempted to raise reasonable doubt in jurors’ minds by introducing evidence that a murder of a similar nature had been committed by someone other than the defendant and that the murder occurred while the defendant was in police custody. In addressing the matter, this Court stated that
where evidence tends in any way, even indirectly, to establish reasonable doubt of defendant’s guilt, it is error to deny its admission. § 90.404(2)(a), Fla.Stat. (1985). However, the admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant.
Id. at 539; see State v. Savino, 567 So.2d 892, 894 (Fla.1990) (defendant must demonstrate “a close similarity of facts, a unique or ‘fingerprint’ type of information” in order to introduce evidence of another crime to show that someone other than the defendant committed the instant crime).
In this case, Gore sought to introduce evidence pertaining to the murder of Pauline Johnson, which allegedly occurred while Gore was in police custody, claiming that this murder was committed in a similar manner to the murders of Novick and Roark. However, Gore did not proffer the underlying facts of the Johnson murder to the trial court to enable the court to determine whether the murder was relevant and sufficiently similar to Novick’s murder to warrant admissibility. Therefore, because Gore failed to show the relevance and requisite similarities between this case and the killing of Johnson, the trial court did not abuse its discretion in excluding evidence pertaining to the murder of Johnson.
PENALTY PHASE
A. CCP Aggravating Circumstance
In the present case, the trial court made extensive findings in support of the CCP aggravating circumstance. Nevertheless, Gore claims that the trial court erred in finding and weighing this aggravator. We disagree. In order to prove the existence of the CCP aggravator, “the State must show a -heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill.” Bell v. State, 699 So.2d 674, 677 (Fla.1997). A trial court’s ruling on an aggravating circumstance will be sustained on review as long as the court applied the right rule of law and its ruling is supported by competent substantial evidence in the record. See Almeida v. State, 748 So.2d 922, 932 (Fla.1999) (citing Willacy v. State, 696 So.2d 693, 695 (Fla.1997)).
The facts of this case clearly support a finding of a heightened level of premeditation and this Court previously has affirmed findings of CCP under similar circumstances. See Wuornos v. State, 644 So.2d 1000, 1008-09 (Fla.1994) (affirming trial court’s finding of CCP where evidence established that defendant lured victim to an isolated area, killed victim, and proceeded to steal victim’s property, and defendant had previously killed multiple victims in similar manner). Based on our review of the record, we find that the trial court did not err in finding this aggravating circumstance.
B. State’s Impeachment of Gore
Gore also argues that the State improperly questioned him on cross examination during the penalty phase about collateral crimes allegedly committed by Gore against other women. Gore argues that the State’s questioning constituted improper Williams rule evidence and was admitted solely to demonstrate Gore’s bad character or propensity to commit crime. We disagree and hold that Gore opened the door to this line of questioning by placing his propensity for violence in issue by stating that he was “not a violent person.”
There is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case than during the guilt phase, especially where the focus of the evidence is directed towards the character of the defendant. See Hildwin v. State, 531 So.2d 124, 127 (Fla.1988). As this Court has stated:
[D]uring the penalty phase of a capital case, the state may rebut defense evidence of the defendant’s nonviolent nature by means of direct evidence of specific acts of violence committed by the defendant provided, however, that in the absence of a conviction for any such acts, the jury shall not be told of any arrests or criminal charges arising therefrom.
Id. at 128; see Smith v. State, 515 So.2d 182, 185 (Fla.1987) (stating that the State properly presented evidence of defendant’s prior manslaughter conviction during the penalty phase after defense witness testified that the defendant “would never harm anyone”).
Similar to Hildwin, in the present case, Gore placed his character in issue by taking the stand and testifying “you heard that I’m not or not known as a violent person, and I’m not a violent person.” In doing so, Gore opened the door to the State’s impeachment evidence and the State proceeded to properly question Gore about his collateral acts of violence towards women to impeach Gore’s assertions that he was a nonviolent person. We hold that the State’s questioning was proper rebuttal and the trial court did not err in allowing the State to question Gore about his prior acts of violence.
C. Gore’s SelfLRepresentation During Penalty Phase
Gore next contends that his decision to represent himself in the guilt phase closing argument and during the penalty phase was not knowing and voluntary, as required by Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), because he was forced to choose between proceeding pro se or being represented by incompetent counsel. Despite Gore’s unequivocal requests at trial that he be permitted to represent himself, he now argues that the trial court erred in permitting him to proceed pro se during the guilt phase closing argument and penalty phase proceedings.
We detail the actual proceedings related to this claim in order to properly evaluate Gore’s assertions. Prior to the retrial in this case, Gore first complained to the trial court about the way his attorney was proceeding on several issues, including the admission of Williams rule evidence, and Gore requested that he be allowed to represent himself. Before allowing Gore to proceed pro se, in accordance with Faretta, the court inquired as to why Gore wanted to remove counsel and represent himself and determined whether Gore was competent to do so. The trial court instructed Gore of the advantages of having appointed counsel and the disadvantages of self-representation. The court also instructed Gore that should he choose to proceed pro se, he would be required to abide by the rules of criminal law and courtroom procedure. In addition, the trial court asked Gore several questions to determine whether he was competent to make a knowing and intelligent waiver of counsel. Among other areas, the court inquired into Gore’s educational background, whether he was currently under the influence of drugs and alcohol, and whether he had physical or mental problems that would hinder his self-representation. The court concluded that Gore understood the dangers and disadvantages of self-representation and that he was competent to make a knowing and intelligent waiver of counsel.
At a subsequent hearing, however, Gore changed his mind and requested that his attorney be reappointed. The trial court granted Gore’s request. However, immediately following the State’s opening statements, Gore again informed the court that he was unhappy with the manner in which defense counsel was representing him and stated that he wished to represent himself for the remainder of the trial. After discussing the matter with the court, Gore changed his mind and stated that he did not wish to represent himself.
Despite proceeding through trial represented by defense counsel, Gore informed the trial court, prior to the guilt phase closing arguments, that he wanted to be “lead counsel” and to conduct closing argument himself. Gore stated that defense counsel deprived him of his right to testify, referring to the fact that defense counsel would not recall Gore to testify following the State’s rebuttal case. In accordance with Nelson, the trial court inquired into Gore’s allegations. Defense counsel explained to the trial court that he had discussed the issue extensively with Gore and explained to him that the additional testimony that Gore had proposed was irrelevant. Before allowing Gore to conduct the guilt phase closing argument pro se, the trial court reminded Gore of the rights and pitfalls pertaining to self-representation. Furthermore, the trial court reviewed the transcript of the prior pretrial Faretta hearing and informed Gore about the responsibilities of self-representation. Gore claimed that he understood the court’s instructions and proceeded to conduct his own closing argument.
At the conclusion of the closing arguments, Gore requested that counsel be reappointed for the penalty phase proceedings. Although the trial court initially granted Gore’s request, Gore subsequently changed his mind and asked that he be permitted to represent himself during the penalty phase. Gore claimed that he was forced to proceed pro se during the penalty phase because defense counsel failed to secure any mental health experts or fact witnesses to testify on Gore’s behalf for purposes of introducing mitigating evidence.
Appointed counsel was given the opportunity to explain to the court why he did not plan to call any experts or fact witnesses, except Gore himself, to present mitigating evidence in the penalty phase. Counsel explained the efforts that he undertook to procure the attendance of penalty phase witnesses. Defense counsel spoke with several of Gore’s family members and concluded that it would not be in Gore’s best interest to call them as witnesses. According to defense counsel, several of Gore’s family members refused to testify for Gore, stating that if subpoenaed to testify, they “would rather be held in contempt of court than testify on [Gore’s] behalf.” Gore himself informed the trial court that he - did not want his sister to testify on his behalf, stating, “This is something that is a problem because my sister would love nothing better than to see me dead because my previous attorneys had my sister arrested and put her in jail and gave her a conviction. Now she is in jail. All my sisters are now against me.”
Counsel also explained the tactical reasons for not presenting additional lay witnesses, who Gore claimed were essential. Gore’s attorney stated that he had spoken with A.F., a witness who Gore claimed could provide mitigating evidence. A.F. informed counsel that she had “no interest in testifying on [Gore’s] behalf.” Defense counsel also decided against calling J.C. as a witness. Counsel informed Gore and the court that he did not think the fact that the twenty-two-year-old Gore was “sleeping with” J.C. when she was thirteen years old would be seen as favorable by the jury.
In addition, defense counsel informed the court that he attempted to present expert witnesses to provide mitigating evidence pertaining to Gore’s mental health. Gore’s attorney tried on several occasions to have Gore reevaluated by Dr. Merry Haber. However, according to counsel, Gore refused to cooperate with Dr. Haber, who twice attempted to visit Gore in jail for purposes of interviewing him for the penalty phase proceeding. Thereafter, Dr. Haber was stricken from the penalty phase witness list after she declined to provide any assistance in Gore’s case due to Gore’s lack of cooperation. Furthermore, counsel explained that Gore refused to be reexamined by prior experts who had interviewed and examined him in previous criminal proceedings, referring to several of them as “quacks.”
Before permitting Gore to represent himself in the penalty phase, the trial court again advised Gore that he should have counsel and that it would be to his advantage. The court also inquired into Gore’s education and experience. Defense counsel reminded the trial court that Gore previously had represented himself for part of the T.C. murder trial and a Faretta hearing was also conducted during Gore’s first trial in this case. Gore asserted that he understood the court’s instructions regarding the benefits of appointed counsel and the potential perils of self-representation. Ultimately, the trial court permitted Gore to represent himself during the penalty phase and Gore proceeded pro se.
As the United States Supreme Court has stated, a defendant has the right to waive court-appointed counsel and choose to represent himself or herself. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Once a defendant asserts the right of self-representation, the court must conduct an inquiry to determine whether the defendant is competent to make the choice and that the defendant knowingly and intelligently waived the right to counsel. See id.; see, e.g., Waterhouse v. State, 596 So.2d 1008, 1014 (Fla.1992). The Faretta Court stated:
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
422 U.S. at 835, 95 S.Ct. 2525.
Although an accused has a Sixth Amendment right to waive the right to counsel and conduct his or her own defense in a criminal proceeding, see Faretta, 422 U.S. at 820, 95 S.Ct. 2525, a defendant’s choice between incompetent and unprepared counsel and appearing pro se is “a dilemma of constitutional magnitude.” Sanchez v. Mondragon, 858 F.2d 1462, 1465 (10th Cir.1988), overruled on other grounds by United States v. Allen, 895 F.2d 1577 (10th Cir.1990). The choice to proceed pro se cannot be constitutionally voluntary if such a dilemma exists. See id. For the waiver to be voluntary, the trial court must have inquired into the reasons for the defendant’s dissatisfaction with his counsel. See id. A lawyer’s decision, in the exercise of his or her legal judgment, not to pursue a certain line of defense desired by the defendant does not constitute good cause for discharging counsel. See id. at 1466. The right to counsel does not require that counsel blindly follow a defendant’s instructions. See United States v. Padilla, 819 F.2d 952, 956 (10th Cir.1987).
Throughout the proceedings below, Gore repeatedly changed his mind regarding whether he wished to be represented by defense counsel or proceed pro se. The trial court was extremely accommodating in granting Gore’s requests to represent himself and Gore’s subsequent requests to have counsel reappointed. Furthermore, before allowing Gore to proceed pro se, the trial court took the necessary steps to satisfy the dictates of Faretta and Nelson.
Addressing the merits of Gore’s claim that his decision to proceed during the penalty phase was involuntary because he was forced to choose between incompetent counsel and appearing pro se, we conclude that Gore has failed to show good cause for dissatisfaction with appointed counsel. Despite Gore’s assertions to the contrary, the record reflects that defense counsel spoke with family members and potential lay witnesses, reviewed existing mental health evaluations, and attempted to have Gore reevaluated by mental health experts for purposes of presenting potential mitigating evidence. Gore himself thwarted Dr. Haber’s efforts to provide mitigating evidence by refusing to cooperate with her, and Gore also refused to be reexamined by several experts who previously had interviewed and examined him for other criminal proceedings. In addition, after speaking with Gore’s family members and lay witnesses about testifying on Gore’s behalf, defense counsel concluded that it would not be in Gore’s best interest to have these witnesses testify during the penalty phase. In sum, the record reflects that defense counsel took reasonable steps to secure mitigating evidence on behalf of Gore and made strategic decisions in declining to call certain defense witnesses.
Thus, the record does not reflect that Gore was forced to make a Hobson’s choice between incompetent or unprepared counsel and appearing pro se. Competent substantial evidence supports the conclusion that Gore’s decision to proceed pro se was made with “eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525.
D. Ineffective Assistance of Penalty Phase Counsel
Gore contends that penalty phase counsel rendered ineffective assistance because he failed to secure any mental health testimony or fact witnesses to testify on Gore’s behalf. Even assuming that an ineffective assistance of counsel claim could be properly asserted under these circumstances, with rare exception ineffective assistance of counsel claims are not cognizable on direct appeal. See Martinez v. State, 761 So.2d 1074, 1078 n. 2 (Fla.2000); Lawrence v. State, 691 So.2d 1068, 1074 (Fla.1997); Consalvo v. State, 697 So.2d 805, 811 n. 4 (Fla.1996). A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record. See Martinez, 761 So.2d at 1078 n. 2.
Gore is essentially arguing that he was forced to represent himself because penalty phase counsel declined to call any expert witnesses or any member of Gore’s family to present mitigating evidence and that counsel’s ineffectiveness is apparent on the face of the record. Despite Gore’s assertions, the record reflects that defense counsel acted reasonably in seeking out and evaluating potential mitigating evidence and that counsel made strategic decisions in declining to call certain defense witnesses. Moreover, Gore himself thwarted defense counsel’s efforts to secure mitigating evidence by refusing to cooperate with or be examined by several mental health experts. Accordingly, because it is not apparent from the face of the record that counsel was ineffective, we deny relief on this claim.
E. Proportionality
Finally, although not argued by Gore on appeal, this Court has an independent duty to review the proportionality of Gore’s death sentence as compared to other cases where the Court has affirmed death sentences. See Jennings v. State, 718 So.2d 144, 154 (Fla.1998). The proportionality standard requires that the circumstances in the record must be reviewed in relation to other decisions to determine if the death penalty is the appropriate punishment. See Franqui v. State, 699 So.2d 1312, 1327 (Fla.1997). An independent review of pertinent case law reveals that Gore’s death sentence was an appropriate penalty in this case. See Gore v. State, 599 So.2d 978 (Fla.1992); Franqui v. State, 699 So.2d 1312 (Fla.1997); Jones v. State, 690 So.2d 568 (Fla.1996); Ferrell v. State, 680 So.2d 390 (Fla.1996); Hunter v. State, 660 So.2d 244 (Fla.1995); Heiney v. State, 447 So.2d 210 (Fla.1984).
Accordingly, we affirm the convictions and sentence of death.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ„ concur.
At the time of this conviction, Gore was already under sentence of death for the murder, kidnapping and robbery of Susan Roark, see Gore v. State, 599 So.2d 978 (Fla.), cert. denied, 506 U.S. 1003, 113 S.Ct. 610, 121 L.Ed.2d 545 (1992), and a life sentence for the sexual battery, theft, robbery, burglary and attempted murder of T.C., see Gore v. State, 573 So.2d 87 (Fla. 3d DCA 1991), rev. denied, 583 So.2d 1035 (Fla.1991).
Williams v. State, 110 So.2d 654 (Fla.1959).
Gore's claims concerning the officers' use of gruesome photographs and that he was given a lie detector test were refuted by Detective Steven Parr and Detective Lou Passaro of the Miami Dade Police Department. Both testified during the Slate’s rebuttal.
This aggravating circumstance pertained to the first-degree murder, kidnaping and robbery of Susan Roark, and the attempted first-degree murder, sexual battery, armed burglary, armed robbery, and armed kidnaping of T.C.
R.C. and M.C. are the parents of J.C. According to J.C.'s penalty phase testimony, while Gore was living with J.C., M.C., and R.L., Gore broke-up an altercation between R.C. and M.C. and stopped R.C. from becoming violent.
Gore raises the following issues: (1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State’s questioning of J.C. about whether she had an "intimate relationship” with Gore; (3) the trial court erred in denying Gore's motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore’s hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase.
The State sought a first-degree murder conviction on alternative theories of premeditated murder and felony-murder with the underlying offenses of armed robbery. See Griffin v. United States, 502 U.S. 46, 47, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (stating that even if the evidence does not support the specific verdict, any error in charging the jury on that theory is harmless where the evidence supports a conviction for the general verdict). Because a general verdict form was used in ihis case, in order to affirm Gore's first-degree murder conviction, competent substantial evidence must exist to support either premeditated or felony-murder (predicated on armed robbety). See Jones v. State, 748 So.2d 1012, 1024 (Fla.1999) (citing Mungin v. State, 689 So.2d 1026, 1029-30 (Fla.1995)). In addition, competent substantial evidence must exist to support Gore’s conviction for armed robber)^.
Despite the trial court’s ruling to exclude any reference to the murder of Paulette Johnson, Gore violated the trial court’s order by discussing the murder during his testimony. The trial court sustained the State’s objection and subsequently held Gore in criminal contempt of court.
These findings included the following: (1) Gore had a history of targeting young, attractive women who drove new sporty automobiles; (2) Gore previously was convicted of murdering Susan Roark after stabbing her to death, stealing her car and jewelry, and dumping her body in a remote area; (3) Gore did not have his own automobile and theft of Novick's automobile "was one of the motivat-. ing factors" for the murder, but "was clearly not the Defendant's sole plan”; (4) Gore murdered Novick after a "well thought-out attack,” as indicated by the fact that Novick was stabbed and strangled to death, she had no defensive wounds, and her nude body was left in a remote area, "one which [Gore] reasonably believed would hide the body until nature, insects and other predators would erase any identifying evidence of the victim”; (5) Gore used the same modus operandi in the murders of Novick, Roark, and the attempted murder of T.C.; (6), Gore took his victims' jewelry and automobiles after committing murder or attempted murder; (7) Gore did not panic or act hastily and attack any of these women in their cars, as evidenced by the fact that no blood or any other physical evidence of foul play was found in the cars; rather, Gore acted calmly and with deliberation when he removed each victim from her vehicle prior to stabbing her; (8) there was no evidence to suggest that any of his victims resisted or struggled with Gore, also indicating that Gore acted calmly and deliberately when he took Novick's life; (9) Novick’s injuries demonstrate that the killing was not prompted by an emotional frenzy, panic, or fit of rage — Novick suffered two stab wounds to the neck and an injury to her neck and trachea caused by the extensive pressure applied by Gore during the strangulation; and (10) Novick was alive while being stabbed and strangled and eventually bled to death.
Gore also argues that several of the trial court’s factual findings enunciated in its sentencing order pertaining to CCP were not supported by the evidence. In particular, Gore challenges the court’s finding that after stabbing Novick, Gore "looked her in the eye (since she was lying on her back, facing upward) and strangled the last bit of life out of her.” In this case, there was no direct testimony that Gore looked Novick in the eye as he was killing her, and the medical examiner testified that he could not be certain whether Novick's eyes were open or closed at the time of her death. Although Gore may have "looked [Novick] in the eye" as he was killing her, there is no evidence in the record to support the trial court’s finding or to rule out other scenarios. Thus, we conclude that the trial court’s description of the final moments of the homicide was based upon speculation. See Knight v. State, 746 So.2d 423, 435 (Fla.1998). However, we find this inclusion harmless in view of the other strong evidence supporting the trial court’s multiple findings that support the CCP aggravating circumstance. See id. at 436.
We distinguish what took place here from what occurred in Gore's first trial. In Gore's first appeal, this Court held that the State's questioning of Gore about collateral acts of violence directed at M.D. was improper because it "could only demonstrate Gore’s bad character or propensity to commit crime.” Gore, 719 So.2d at 1200. Importantly, in that case, the State's questions came during the guilt phase of trial and Gore had not placed his character in issue by claiming that he was a nonviolent person.
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
The following discussion took place at sidebar regarding Gore's request of counsel that he be recalled to testify: DEFENSE COUNSEL: My client wants to take the stand again and I don’t believe from what I — because I asked him to tell me what relevant testimony do you have that was not discussed in your prior testimony? He wrote out some questions and whatnot, but gave me nothing relevant. Stupid questions. Why you should find me not guilty and things like that. THE COURT: Well, if you have no relevant questions to ask him, what would be the point of him taking the stand? He can't take the stand just to make a statement to the jury. If you don't have any questions to ask him, I don’t see what we are addressing really. DEFENSE COUNSEL: I'm just concerned from a constitutional standpoint, if my client's right to testify extends to testifying more than once. THE COURT: Well, what I’m saying is, I don’t think I need to get to that juncture, if you have no further questions of your client. There is no reason for him to take the stand and we don’t need to address whether he should be permitted to take the stand again, if you have no questions of him. Well, if you Lold me that you wanted to recall your client at this point, tiren we would address whether that would be appropriate. From what I understand you to say, you have no intention of recalling your client at this time because you have nothing further to ask. DEFENSE COUNSEL: Right.
After deciding to represent himself during the penalty phase, Gore had J.C. subpoenaed and she did testify for Gore during the penalty phase proceeding.
Doctor Haber did interview Gore on January 15, 1999, prior to the retrial, based upon a court order regarding whether Gore was competent to proceed to trial and to represent himself. Doctor Haber found Gore to be competent to proceed and competent to represent himself. She also found him to be manipulative and seductive, coherent, logical and goal-oriented. She found no evidence of major mental illness. Doctor Haber concluded that the defendant suffered from a personality disorder and was antisocial.
At the conclusion of the penalty phase proceedings, Gore requested that counsel be reappointed. When questioned by the trial court about his decision to have counsel reappointed, Gore replied, "I wish to represent myself at this point.” Gore explained that he wanted to prepare a sentencing memorandum and a motion for a new trial and that he wanted counsel to be reappointed as a precautionary measure, stating that "if it becomes too much of a burden for me to do both motions, then I will have to ask for counsel to come in and take over at that point.” From the record, it appears that Gore prepared both motions himself and argued the merits of his motion for a new trial at the Spencer hearing.
Both this Court and several district courts of appeal have reversed cases involving ineffective assistance of counsel claims on direct appeal where counsel’s representation has been impaired by conflicting interests. See Foster v. State, 387 So.2d 344, 345-46 (Fla.1980); see also Robinson v. State, 702 So.2d 213, 215-17 (Fla.1997) (counsel ineffective for not preparing for trial, lying to the jury, offering no evidence in mitigation, and being improperly compensated); Ross v. State, 726 So.2d 317, 319 (Fla. 2d DCA 1998) (counsel ineffective for failing to object to prosecutor’s commenls that defense witnesses were "pathetic,” "ridiculous,” "inappropriate,” "insulting,” to the jury’s intelligence, "totally incredible,” and who had "just flat out” lied and failing to object to the prosecutor's characterizations of the defendant’s testimony as "preposterous,” "nonsense,” and "bologna”); Gordon v. State, 469 So.2d 795, 797 (Fla. 4th DCA 1985) (defense counsel was ineffective for failing to object to 104 instances of improper questions and comments by the prosecutor).
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee. Marshall Lee Gore, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
Nos. SC01-1524, SC02-684.
Supreme Court of Florida.
April 17, 2003.
R. Glenn Arnold of Arnold & Wilkins, P.A., Pensacola, FL, for Appellant/Petitioner.
Charles J. Crist, Jr., Attorney General, and Curtis M. French, Senior Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Marshall Lee Gore, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1),(9), Fla. Const. For the reasons that follow, we affirm the denial of Gore’s postconviction motion and deny the petition for habeas corpus.
FACTS
The facts of the case are set out in this Court’s 1992 opinion affirming Gore’s conviction and sentence.
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark’s car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend’s home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark’s grandmother reported her missing. She had been expected home by 7 a.m. that morning.
Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark’s Mustang after it was abandoned in a two-car accident. Gore’s fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark’s body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death.
Gore v. State, 599 So.2d 978, 980 (Fla.), cert. denied., 506 U.S. 1003, 113 S.Ct. 610, 121 L.Ed.2d 545 (1992).
In addition to this evidence, the State introduced the testimony of two other witnesses. Specifically, L.I. testified that she “was riding in a car with Gore on February 19 when she saw a woman’s purse in the back seat. She testified that Gore stated that the purse belonged to ‘a girl that he had killed last night.’ ” Id. at 983. We concluded on appeal that “this testimony was admissible as an admission with regard to the Roark homicide.” Id. Further, the State presented the collateral crime testimony of another victim, T.C.:
The testimony of T.C. was admitted as evidence of a collateral crime. T.C. was a casual acquaintance of Gore’s, whom she knew as “Tony.” In March of 1988, Gore called T.C. at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to T.C.’ stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of T.C.’ jewelry and then proceeded to Kentucky in her car.
Id. We concluded on direct appeal that the “cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide.” Id. at 984. The jury found Gore guilty of first-degree murder, kidnapping, and robbery. See id. at 980.
The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation after finding the following aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (3) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. See id. at 986. The judge concluded that Gore’s poor childhood and antisocial personality were insufficient mitigation to outweigh the aggravating circumstances. See id.
Gore raised seven issues on direct appeal. This Court found six of Gore’s claims to be without merit, but struck the CCP aggravator. See id. at 987. This court performed a harmless error analysis and concluded that based on the three remaining aggravators and the lack of substantial mitigation, there was no reasonable probability that the trial court would have imposed a life sentence without the CCP aggravator. Accordingly, this Court affirmed the convictions and sentence of death. See id.
Gore filed an amended motion to vacate the judgments of conviction and sentence in which he made multiple claims of error. Following a Hujf hearing, the trial court granted a hearing only on Gore’s ineffective assistance of counsel allegations during the guilt and penalty phases. The trial court found the majority of the claims to be procedurally barred because the claims raised substantive issues on the merits that were not properly before the court in a postconvietion motion.
After an evidentiary hearing at which Jimmy Hunt, Gore’s trial counsel, was the only witness, the trial court entered an order denying all of Gore’s ineffectiveness claims for postconviction relief. Gore now appeals the trial court’s summary denial of eleven of his postconviction claims and the trial court’s denial of relief of the ineffectiveness claims during the guilt and penalty phases following the evidentiary hearing. He also petitions this Court for habeas corpus relief.
3.851 APPEAL
As an initial matter, we dispose of several of Gore’s claims because they are procedurally barred or facially or legally insufficient, conclusively refuted by the record, or without merit as a matter of law.
As to Gore’s assertion that the State committed a Brady violation in failing to turn over a phone book containing exculpatory or impeachment material that was in its possession, or, in the alternative, defense counsel was ineffective for failing to procure the book, we conclude that the trial court did not err in denying this claim as being insufficiently pled.
As to any Brady violation, a defendant must prove:
[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.
Way v. State, 760 So.2d 903, 910 (Fla.2000) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). For Brady purposes, suppression of evidence is prejudicial only if the information is material. See Strickler, 527 U.S. at 282, 119 S.Ct. 1936.
In this case Gore alleged that the State improperly withheld a phone book containing either the names of exculpatory witnesses or “considerable and compelling evidence that was obviously exculpatory.” However, this claim was insufficiently pled in the trial court because Gore cited no facts that supported the allegation. Other than the conclusory statement that “the State violated discovery rules and case law for either concealing or otherwise failing to disclose the book,” Gore presented no factual basis that the “book” ever existed, that the State ever had the book in its possession and concealed the book, or that the book contained material exculpatory information. Gore did not list the names from the phone book of people who could have provided exculpatory information, nor did he state what exculpatory information these witnesses could have provided. In sum, Gore left the trial court with absolutely no idea what evidence was “withheld,” how that evidence was material, or how he was prejudiced by the State’s failure to disclose it. Gore’s ineffective assistance of counsel claim on this issue was similarly insufficiently pled due to the same lack of a factual basis. The trial court did not err in summarily denying these claims as insufficiently pled.
Ineffective Assistance of Counsel
We next address whether the trial court erred when it denied Gore relief on his allegations of ineffective assistance of counsel following an evidentiary hearing. To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694, 104 S.Ct. 2052; Rutherford, 727 So.2d at 220. Further, when it is clear that the defendant cannot establish prejudice under the second prong of Strickland, the deficiency prong need not be evaluated. See Rutherford, 727 So.2d at 221.
A. Guilt Phase Ineffective Assistance of Counsel
In this appeal, Gore alleges that his trial counsel was ineffective for failing to move for a change of venue due to pretrial publicity. An evidentiary hearing was held on this claim. In reviewing a defendant’s postconviction motion alleging ineffective assistance of counsel, this Court defers to the factual findings of the trial court to the extent that the findings are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. See Stephens v. State, 748 So.2d 1028, 1081-32 (Fla.1999). In its order denying relief on this issue, the trial court in this case found:
Mr. Hunt testified that there was no “media blitz” concerning this case, and the Defendant produced no evidence at the hearing to the contrary. Mr. Hunt moved for individual voir dire, which the Court granted, and the record of- voir dire shows no evidence that the prospective jurors had been unduly affected by any pretrial publicity. The Defendant has not demonstrated ineffectiveness regarding this allegation.
The record reveals that Hunt was able to conduct individual voir dire on all the jurors who were seated regarding their potential exposure to media coverage. Further, at the evidentiary hearing, Hunt testified that there was very little electronic or print media coverage either prior to or during the trial. Hunt further testified that he talked to the defendant about a change of venue but decided not to seek one because, compared to other murder trials, there was relatively little known about Gore’s case in the county.
Hunt was the only witness at the evidentiary hearing. Gore has not presented evidence that Hunt’s description of the level of publicity surrounding the trial was inaccurate or that the jury was otherwise tainted by pretrial publicity. Thus, the trial court’s findings that there was no “media blitz” surrounding this trial and that the prospective jurors had not been unduly affected by any pretrial publicity are supported by competent, substantial evidence and, accordingly, will not be disturbed by this Court.
Applying the law to the trial court’s factual findings, we conclude that Gore has not demonstrated how Hunt’s strategic decision not to seek a change of venue was “not reasonable under the norms of professional conduct.” Rolling v. State, 825 So.2d 293, 298 (Fla.2002). Thus, Gore is unable to establish that trial counsel’s performance was deficient under the first prong of Strickland.
Moreover, even if counsel’s performance was deficient, Gore has neither alleged nor demonstrated how such deficiency prejudiced him by undermining confidence in the outcome of the trial. In determining prejudice in a claim that counsel has been ineffective in failing to move for a change of venue, this Court has stated that the defendant must, at a minimum, “bring forth evidence demonstrating that there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [defense] counsel had presented such a motion to the court.’.’ Wike v. State, 813 So.2d 12, 18 (Fla.2002) (quoting Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000)). Gore has presented no evidence to indicate that the trial court would have granted the motion for the change of venue. Therefore, he cannot establish prejudice under the second prong of Strickland. We hold that the trial court did not err in denying this claim following the evidentiary hearing.
B. Penalty Phase Ineffective Assistance of Counsel
In this claim, Gore alleges that trial counsel was ineffective for failing to investigate and provide mental mitigation information to experts and for failing to present such information during the penalty phase. The trial court held an evidentiary hearing on this claim.
In its order denying the relief on this issue, the trial court found:
In this claim the Defendant alleges that trial counsel was ineffective in discovery and presentation of mitigating evidence at the penalty phase. According to the amended motion, the Defendant has a mild to medium brain damage, attention deficit disorder, paranoia, and a history of polysubstance abuse, and the sentencing jury never heard of those afflictions or his intoxication and child abuse. The amended motion alleges that, if given an evidentiary hearing, “witnesses including Barry Crown, Ph.D, family members and relatives of Marshall Gore, any and all witnesses at trial and those persons present with Marshall Gore near the time of the crime can be called as witnesses.” Although granted an evidentiary hearing, the Defendant presented no testimony from any of the just-listed people and failed to prove the conclusory allegations contained in the amended motion.
Instead, Mr. Hunt testified that he interviewed the Defendant’s mother and father, three sisters, and his aunt and uncle with the aim of developing mitigating evidence. Other than the mother and uncle, the Defendant’s family was less than helpful. A sister that counsel thought would testify refused to do so and later told counsel that the Defendant threatened to kill her if she testified. The Defendant’s father told Mr. Hunt that, if called to testify, he would do everything he could to see that the Defendant was sentenced to death.
Mr. Hunt also testified that he contacted the Defendant’s prior counsel in Miami who sent him several mental health evaluations and that he secured a copy of the Defendant’s federal PSI that included a psychiatric evaluation. Counsel also secured the appointment of psychiatrist Umesh Mhatre and psychologist Harry Krop, who both evaluated the Defendant. Both doctors diagnosed the Defendant as having an antisocial personality disorder.
Dr. Krop did not testify at the penalty phase, and counsel testified at the hearing that Dr. Krop told him he did not think his testimony would benefit the Defendant. Dr. Mhatre did testify at the penalty phase, and the Court found that nonstatutory mitigation had been established based on the testimony from Mhatre, the mother, and [the] uncle.
Based on the testimony at the evidentiary hearing, it is obvious to this Court that trial counsel conducted a reasonable investigation and had strong, strategic reasons for presenting the evidence he did at the penalty phase or for not calling other witnesses.... The Defendant failed to prove that counsel was deficient in regards to the penalty phase and that he was prejudiced by any deficient representation.
All of the trial court’s statements regarding Hunt’s testimony at the evidentiary hearing are supported by the postconviction record and the original trial record. Furthermore, to the extent that Gore argues that trial counsel ineffectively failed to provide experts or the jury with evidence as to Gore’s drug use and suicide attempt, this claim is conclusively refuted by the record.
At the evidentiary hearing, Hunt testified that he provided the experts with everything that he had at his disposal that might assist them in evaluating Gore, including that Gore attempted suicide as a young man and went through a drug overdose. When questioned as to why Hunt did not present testimony at the penalty phrase regarding Gore’s drug overdose, Hunt testified that it was a judgment call because, in his view, the jury generally does not view a previous drug overdose as a mitigator. Furthermore, Hunt testified that there was no evidence of drug abuse at the time of the crimes. There is nothing in the record before us that contradicts this testimony. The trial court’s finding that “trial counsel conducted a reasonable investigation and had strong, strategic reasons for presenting the evidence he did at the penalty phase or for not calling other witnesses” is supported by competent, substantial evidence and will not be disturbed by this Court.
Applying the law to the trial court’s factual findings, we conclude that Gore has failed to establish how trial counsel’s performance fell below reasonable standards of professional competence. This Court has held that when an attorney has made a tactical decision not to present mitigating evidence after a full investigation, counsel is not ineffective. See generally Porter v. State, 478 So.2d 33, 35 (Fla. 1985). Moreover, an attorney’s reasoned decision not to present evidence of dubious mitigating value does not constitute ineffective assistance. See Gorby v. State, 819 So.2d 664, 675 (Fla.2002). In this case, there is no indication that the investigation conducted by Gore’s counsel was incomplete. Furthermore, there is no evidence that could lead this Court to conclude that counsel’s decision not to present certain evidence in mitigation was anything other than a reasonable trial strategy. Thus, Gore cannot demonstrate deficiency under the first prong of Strickland.
Moreover, even if counsel was deficient, Gore has neither alleged nor demonstrated how such deficiency prejudiced him by undermining confidence in the sentencing outcome. Thus, we conclude that the trial court did not err in denying this claim following an evidentiary hearing.
PETITION FOR WRIT OF HABEAS CORPUS
In Gore’s first habeas claim he asserts that appellate counsel was ineffective for not raising the sufficiency of the evidence of premeditation on direct appeal. In Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000), we summarized the basis for a claim of ineffective assistance of appellate counsel:
Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel....
When analyzing the merits of the claim, the criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel. Thus, the Court’s ability to grant habeas relief on the basis of appellate counsel’s ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel’s performance was deficient because 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, that the petitioner was prejudiced because appellate counsel’s deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. 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. This is generally true as to issues that would have been found to be procedurally barred had they been raised on direct appeal.
(Citations and internal quotation marks omitted.)
In this case, Gore’s counsel raised seven issues on direct appeal. See Gore, 599 So.2d at 980. There is no indication that appellate counsel was less than zealous in advocating those claims. To the contrary, appellate counsel’s effective advocacy convinced this Court that the evidence was insufficient to support the CCP aggravator. See id. at 986.
We conclude that there is no basis for finding appellate counsel’s performance on appeal to be deficient for failure to specifically argue the insufficiency of evidence as to premeditation. Further, Gore cannot establish prejudice because the evidence presented on appeal was sufficient to support the jury’s verdict of first-degree murder. Thus, we deny Gore relief on this claim.
Next, Gore argues that appellate counsel was ineffective for not raising on direct appeal the failure of the trial court to excuse juror Hollingsworth for pause. This issue is without merit because defense counsel did not run out of peremptory challenges prior to the jury being sworn. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (stating that to show reversible error, a defendant must show that all peremptories have been exhausted and that an objectionable juror had to be accepted). Indeed, Hunt reaffirmed during the evidentiary hearing that he did not exhaust all of his peremptory challenges during voir dire. Thus, Gore cannot now demonstrate any prejudice. We deny Gore relief on this claim.
In his last claim Gore argues that appellate counsel was ineffective for failing to raise on direct appeal the issue of Gore possibly having been seen shackled by the jury pool immediately prior to voir dire. This issue was not preserved for appellate review. The record reveals that the court offered trial counsel the opportunity to voir dire the jury pool regarding whether or not they had witnessed Gore being shackled. Trial counsel declined because he felt it would “emphasize” the issue. Thus, this issue was not preserved for appeal and, in the absence of fundamental error, appellate counsel cannot be ineffective for fading to raise an unpreserved claim. See Rutherford, 774 So.2d at 645; Hardwick v. Dugger, 648 So.2d 100 (Fla.1994).
This issue is not fundamental error. In Sired v. Moore, 825 So.2d 882 (Fla.2002), in holding that appellate counsel was not ineffective for failing to argue on direct appeal that the defendant’s shackling in the presence of the jury violated the defendant’s constitutional rights, this Court noted that
there is nothing in the record that leads us to conclude that the jury ever saw Mr. Sired in restraints. Indeed, the trial court here made every effort to keep the petitioner’s restraints from being.viewed by the jury by placing tables in front of his seat.... The longstanding principle that trial judges must have discretion to properly manage their courtrooms, in combination with a complete absence of evidence indicating any prejudice to the petitioner, requires this Court to deem this argument without merit.
Id. at 888. Similar to Sired, in this case there is nothing in the record to indicate that the trial court erred in the manner in which this issue was handled or to conclude that there was any prejudice to Gore that rises to the level of fundamental error. Thus, appellate counsel was not ineffective for failing to raise this issue on appeal. Wé deny Gore relief on this claim.
CONCLUSION
For the above reasons, we affirm the lower court’s denial of Gore’s rule 3.851 motion for postconviction relief and deny the petition for a writ of habeas corpus.
It is so ordered.
ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
Gore argued that the trial court erred in (1) denying the motion to suppress Gore's statements; (2) allowing the State to present evidence of collateral crimes; (3) denying a motion for continuance regarding a defense witness and in not allowing Gore to attend that witness’s deposition; (4) denying the motion for acquittal as to the kidnapping charge; (5) excusing the victim’s stepmother from the rule of sequestration; (6) allowing the prosecutor to question the defense expert about Gore’s sanity at the time of the offense; and (7) finding the CCP, prior conviction, and murder in the course of a kidnapping aggravators. See Gore, 599 So.2d at 980-87.
Huff v. State, 622 So.2d 982 (Fla.1993).
Gore alleges that the trial court erred in summarily dismissing his claims that trial counsel was ineffective for failing to object to the following: (1) the State of Florida's jurisdiction to try Gore; (2) the prosecutor’s misconduct rendered the trial fundamentally unfair; (3) there was insufficient evidence of premeditation; (4) the prosecutor’s comments during voir dire improperly advised the jury that the death penalty was mandatory in certain circumstances; (5) Gore’s mental health evaluation was inadequate pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (6) the trial court minimized the jury’s role during sentencing in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (7) the trial court prepared its sentencing order without giving the defendant an individualized hearing in violation of Spencer v. State, 615 So.2d 688 (Fla.1993); (8) the trial court improperly failed to excuse jurors who were properly challenged for cause; (9) the trial court had an improper ex parte communication with at least one prospective juror; (10) the trial court should have ordered a change of venue because pretrial publicity precluded the selection of a fair and impartial jury; and (11) the State committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in failing to turn over a phone book containing exculpatory or impeachment material that was in its possession, or, in the alternative, defense counsel was ineffective for failing to procure the book.
Claims (2), (3), (4), (6), (8), and (9) are procedurally barred because these claims, which concern issues that should have been raised on direct appeal, are not properly presented in a motion for postconviction relief. Gore cannot now attempt to resurrect these issues as ineffective assistance of counsel claims on appeal to this Court by making conclusory allegations of counsel’s ineffectiveness. Moreover, the record conclusively refutes these claims.
To the extent that Gore argues in claim (1) that trial counsel was ineffective for failing to argue that the State lacked jurisdiction to try Gore, this claim is conclusively refuted by the record. The record reflects that in moving for judgment of acquittal Gore’s trial counsel argued that the trial court lacked jurisdiction to try Gore. Moreover, the substantive issue raised in claim (1) is without merit as a matter of law. The State had jurisdiction to try Gore because Susan Roark’s body was found in Florida.
The substantive issue raised in claim (7) is without merit as a matter of law. This Court decided Spencer, 615 So.2d at 688, which mandated the requirement of an individualized hearing prior to sentencing, after Gore's trial and 1992 direct appeal. Thus, at the time of Gore's trial and direct appeal, there was no error in preparing a sentencing order without giving the defendant a hearing. See Nelms v. State, 596 So.2d 441, 442 (Fla.1992); see also Asay v. Moore, 828 So.2d 985, 991 (Fla.2002) (holding that counsel is not ineffective for failing to object to sentencing procedures contrary to Spencer, when sentencing occurred prior tp the Spencer decision).
Further, to the extent that Gore asserted in his motion that he told trial counsel that the book existed and trial counsel failed to procure the book, at the evidentiary hearing Gore's postconviction counsel extensively questioned Jimmy Hunt, Gore’s trial counsel, regarding the potential exculpatory witnesses and information provided by Gore. Hunt testified that he thoroughly investigated to the best of his ability all the potential exculpatory witnesses and information of which he was made aware. Gore presented no testimony or evidence to contradict Hunt’s testimony.
We note that the trial court gave Gore ample opportunity to present evidence at the evidentiary hearing on his multiple claims of ineffectiveness of counsel at the guilt and penalty phase contained in his postconviction motion. We conclude that the record fails to demonstrate error in denying relief following an evidentiary hearing on any of the claims of ineffectiveness raised in his postconviction motion. However, because on appeal Gore focuses his claims of ineffectiveness on trial counsel’s failure to move for change of venue and trial counsel’s failure to investigate or provide mitigation to the mental health experts or the jury, we address these assertions in more detail.
In a separate claim, Gore alleged in the trial court that "mental health experts who evaluated Mr. Gore did not render adequate mental health assistance as required by Ake v. Oklahoma.” The trial court denied the Ake claim as procedurally barred in that it could and should have been raised on direct appeal. In this appeal, Gore presents no argument regarding the Ake claim. Thus, we conclude that the trial court properly denied an evidentiary hearing on this claim because it is either procedurally barred or insufficiently presented for review. See generally Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999) (finding that issues raised in appellate brief which contain no argument are deemed abandoned).
Gore's second habeas claim, that appellate counsel was ineffective for failing to argue that the circumstantial evidence was insufficient to support first-degree murder, is derivative of Gore’s first claim. For purposes of this appeal we address and dispose of these two claims together.
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. SC05-1848.
Supreme Court of Florida.
June 25, 2009.
As Revised on Denial of Rehearing Dec. 10, 2009.
Melissa Minsk Donoho and Steven J. Hammer, Fort Lauderdale, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Appellant, Marshall Lee Gore, was convicted of and sentenced to death for the first-degree murder and armed robbery of Robyn Novick in Dade County, Florida, after his initial conviction and death sentence were overturned. Gore v. State, 784 So.2d 418, 423 (Fla.2001). In this appeal, we consider the denial of postconviction relief arising from Gore’s motion to vacate his judgment of conviction and sentence of death filed under Florida Rule of Criminal Procedure 3.851. For the reasons set forth in this opinion, we affirm the denial of postconviction relief.
I. FACTS AND PROCEDURAL HISTORY
The relevant facts regarding the murder of Robyn Novick are set forth in this Court’s opinion on Gore’s second direct appeal:
Police discovered Novick’s nude body in a rural area of Dade County on March 16, 1988. Her body was hidden by a blue tarpaulin-like material. Novick suffered stab wounds to the chest and had a belt tied around her neck. According to the medical examiner, Novick died as a result of the stab wounds and mechanical asphyxia. He estimated that Novick was killed between 9 p.m. and 1 a.m. on March 11 into March 12, 1988.
Novick was last seen alive on March 11, 1988, leaving the parking lot of the Redlands Tavern in her yellow Corvette. A witness testified that Novick left with a man, whom the witness identified as Gore.
In the early morning of March 12, Gore was seen driving Novick’s automobile. D.R., a friend of Gore’s, testified that Gore arrived at his home driving a yellow Corvette with a license plate reading “Robyn.” ...
In its case-in-chief, the State also introduced Williams[n-2] rule evidence that Gore committed similar crimes against [Susan] Roark and [T.C.] T.C. The State presented evidence that Gore had murdered Roark shortly after her disappearance in January 30, 1988, by inflicting trauma to her neck and chest. In addition, evidence established that Gore stole Roark’s black Ford Mustang and other personal property, then left her nude body in a rural area used as a trash dump. Similarly, the State presented evidence that Gore attacked T.C. on March 14, 1988, two days after the murder of Novick. T.C. herself testified against Gore, stating that he beat her with a rock, raped, choked and stabbed her, and left her for dead on the side of the road near the scene where Novick’s body was found. Gore proceeded to steal T.C.’s red Toyota sports car and personal property.
FBI agents finally arrested Gore in Paducah, Kentucky on March 17, 1988. At the time of his arrest, Gore was in possession of T.C.’s red Toyota automobile and he had her bank and credit cards in the pocket of his jacket. Police officers subsequently questioned Gore regarding the T.C. and Roark crimes. According to the police, Gore denied knowing Roark or T.C. and denied all involvement in the crimes. Gore also denied knowing Novick. When police prepared to show Gore a photograph of Novick, Gore stated “just make sure it is not gory” because his “stomach could not take it.” At the time that Gore made such statements, the police had yet to inform Gore that Novick was dead. Detective David Simmons of the Miami Dade Police Department testified that when Gore looked at Novick’s picture, Gore’s eyes “swelled with tears.” Gore also stated that “if I did this, I deserve the death penalty.”
In his defense, Gore took the stand and testified on his own behalf. Gore claimed that prior to his interrogation by police in Miami concerning the Novick murder, reporters previously had told him upon his arrest that Novick was dead. He also claimed that during his interrogation, police had placed gruesome photographs of the murders all over the interview room. Moreover, Gore stated that police had given him a polygraph examination, which he claimed he had passed.
Gore testified that he was the owner of an escort service and claimed that T.C., Novick, Roark, and D.R. all worked for the escort business. Gore maintained that Novick worked for him as a nude dancer and he admitted that he was with Novick at the Redlands Tavern on the evening of March 11, 1988. Gore, however, denied killing her....
On cross-examination, Gore admitted that he previously had been convicted of committing fifteen felonies. Gore denied trying to kill T.C. and claimed that her injuries were the result of her jumping out of a moving car. Gore also asserted that all of the State witnesses had lied and he refused to explain why he was in possession of the property of people who were either killed or attacked.
A.F. testified on Gore’s behalf. A.F. worked for Gore in 1984 or 1985 when she was fifteen years old, answering phones for the escort service. A.F. claimed to have known Roark, T.C., and Novick through her association with Gore. However, she could not state when, where, or how many times that she had met T.C. or Novick and was unable to describe them. Moreover, when presented with a photograph of several women, she could not identify T.C.
After the close of all the evidence, the jury convicted Gore of first-degree murder and armed robbery with a deadly weapon of Novick. During the penalty phase, Gore chose to represent himself.
] The jury recommended that Gore be sentenced to death by a vote of twelve to zero. The trial court imposed the death penalty for the first-degree murder conviction and imposed an upward departure life sentence for the armed robbery conviction to run consecutive to any other sentence Gore was serving.
[N.2] Williams v. State, 110 So.2d 654 (Fla.1959).
784 So.2d at 423-26 (footnotes omitted).
Gore filed his second direct appeal, raising eight claims. The Court affirmed Gore’s convictions and sentence, id. at 438, after which Gore filed this current motion for postconviction relief. In his rule 3.851 motion, Gore alleged ten claims. Following a Huff hearing, the trial court granted an evidentiary hearing on claim four only — Gore’s ineffective assistance of counsel claim arising from the Spencer hearing — and summarily denied Gore’s remaining claims. However, the trial court ultimately did not hold an evidentiary hearing on this single claim based on its determination that Gore, by his actions, waived any evidentiary hearing. The trial court thus denied Gore’s motion for postconviction relief, concluding that all of the claims raised were without merit. Gore appeals the denial of his postconviction motion to this Court and raises several issues for this Court’s review.
II. ANALYSIS
A. Competency at Trial and Postconviction Proceedings
We begin with an examination of the issue of Gore’s competency. We start with the issue of competency because Gore’s mental status has been a recurrent theme throughout the trial, direct appeal, and postconviction proceedings in this case as well as in the proceedings concerning the first-degree murder of Susan Roark in Columbia County, in which Gore was also sentenced to death and in which the issue of Gore’s competency to proceed was also raised. See Gore v. State, 846 So.2d 461 (Fla.2008) (affirming denial of postconviction relief and denying petition for habeas corpus in Roark conviction); Gore v. State, 599 So.2d 978 (Fla.1992) (affirming conviction and sentence for murder of Roark) (hereafter referred to as “the Columbia County case”). While Gore’s current counsel asserts that Gore is “mentally deranged,” the trial judges who have evaluated this issue have concluded that, rather than being incompetent or seriously mentally ill, Gore has intentionally manipulated and attempted to obstruct the ongoing proceedings against him. The question of whether Gore’s actions are the product of a serious mental illness or the result of purposeful manipulation is best analyzed by a thorough review of the record in this case and the Columbia County case.
Gore’s claims of incompetency arise from both his trial and postconviction proceedings. As to his trial-related claims, Gore asserts the following: (1) the trial court erred in finding that he was competent to proceed to trial; (2) his trial counsel was ineffective in advocating his incompetency claims; and (3) the trial court erred in failing to instruct the jury on the extreme mental disturbance mitigator.
As to his postconviction-related claims, Gore alleges that the trial court erred in finding that he was competent at the time of the postconviction proceedings and he claims that he is possibly incompetent and/or insane at present. To provide context to these claims, we will first provide a history of the competency proceedings in Gore’s case and then analyze his postconviction and trial-related incompetency claims.
1. History of Competency Proceedings
a. Competency in Columbia County Collateral Proceedings
We turn first to the Columbia County case because the proceedings in that case gave rise to some of the trial court’s decisions regarding competency in this case. In 1998, after the filing of Gore’s rule 3.851 motion in the Columbia County case involving the murder of Susan Roark, counsel in that case filed a motion to determine Gore’s competency to proceed. In the motion, counsel stated that Gore had “no present ability to consult with and communicate with postconviction counsel regarding factual matters at issue in his postconviction proceedings.” In the absence of the State’s objection to the examination, the court appointed two experts to evaluate Gore’s competency, Dr. Richard Greer and Dr. Umesh Mhatre, who concluded that Gore was competent to proceed. At the competency hearing, Gore had the opportunity to cross-examine these experts and also presented testimony from Dr. Harry MeClaren and Dr. Terence Leland, both of whom found Gore to be incompetent.
In finding that Gore was competent to proceed in the postconviction proceedings, the court noted that two of the doctors had found Gore to be controlling and manipulative. Moreover, the court stated:
Mr. Gore is also a notoriously difficult client. There is, however, no right to a meaningful attorney-client relationship, when the client’s conduct prevents a meaningful relationship. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Based on this Court’s observations of Gore, both during his trial and over the last several years of these postconviction proceedings and the reports and testimony of the experts, the Court finds that Gore’s current dislike of and refusal to cooperate with collateral counsel are not the result of a delusional disorder. Instead, such behavior is consistent with Gore’s personality disorder.
The Court finds that the greater weight of the evidence supports the conclusions that Gore has both a rational and factual understanding of these proceedings and that he has the ability to consult with counsel if he chooses to do so.
b. Competency Evaluation at Retrial in Novick Case
On January 14, 1999, prior to the retrial in this case, defense counsel received a letter stating that Gore had previously been found to be incompetent by two experts in the Columbia County case. When counsel raised the issue before the court, the court sua sponte appointed Dr. Merry Haber to conduct Gore’s evaluation “to make sure [Gore was] okay and still competent.” Counsel then formally requested that the trial court have Dr. Haber perform an evaluation. The parties stipulated that the defense would not request a second evaluation unless Dr. Haber concluded Gore was incompetent.
On January 15, 1999, Dr. Haber conducted a one-hour competency evaluation of Gore. In addition, Dr. Haber reviewed the reports of the four experts who examined Gore in the Columbia County proceedings. In her report, Dr. Haber opined that Gore “was cooperative, but also manipulative and seductive.” She also stated that his “thought processes were coherent, logical, and productive” although he would become “overproductive” in explaining his situation. Dr. Haber believed that Gore’s thought processes were “goal-oriented with no loosening of associations.” She found no evidence of delusional activity, depression, significant anxiety, or any major mental illness. She ultimately concluded that Gore was competent to proceed with his trial. The issue of Gore’s competency was not raised on appeal from the retrial.
c. Competency at Postconviction Proceedings in Novick Case
In this current posteonviction proceeding, Gore filed a motion to determine his competency to proceed in the collateral proceedings. At a subsequent hearing, the State agreed to a competency hearing. Ultimately, the court appointed three experts to evaluate Gore: Dr. Lynne Alison Mclnnes, Dr. Enrique Suarez, and Dr. Sonia Ruiz.
At the competency hearing, the defense presented the testimony of Dr. Mclnnes, a psychiatrist, who conducted a five-hour interview of Gore. She opined that Gore had loosening of association, displayed incoherence, paranoia, and delusional thoughts, and was suspicious of counsel. Dr. Mclnnes did not administer the Minnesota Multiphasic Personality Inventory (MMPI) test to Gore, a test which evaluates personality and “eharacterological” traits, because she did not believe it would be of assistance to the issue of his competency. Gore denied that he had psychiatric symptoms, but Dr. Mclnnes testified that it was very difficult to fake a thought disorder and therefore she did not believe that Gore was malingering. She also did not believe that Gore was capable of conveying consistent information or understanding the facts at hand. Thus, she concluded that Gore was incompetent. On cross-examination, Dr. Mclnnes stated that Gore had indicated that he had suffered some head trauma but she also conceded that there was a possibility that Gore was attempting to produce symptoms to influence the outcome of his case and that she suspected that Gore was manipulative. She also stated that she did not review Gore’s prior evaluations.
The State presented the testimony of Dr. Suarez, a psychologist who performed Gore’s evaluation, and Dr. Ruiz, a clinical psychologist. Dr. Suarez testified that Gore was compulsive and had a tendency to obsess. Gore informed Dr. Suarez that he had a number of different head injuries and had experimented with drugs before prison. However, based on Gore’s interactions with his attorney, who was present during the evaluation, the doctor believed that Gore had the ability to respond to any question that was asked of him. Dr. Suarez also did not see any signs of Gore being psychotic or delusional. Dr. Suarez administered the MMPI, which showed “answers that are known to reflect or be indicative of certain psychological condition or show abnormality.” However, the test results were invalid, which Dr. Suarez opined could have been the result of exaggeration. Ultimately, Dr. Suarez found Gore to be competent. On cross-examination, Dr. Suarez conceded that the MMPI results did not necessarily correlate to an individuars competency.
Dr. Ruiz described Gore as very coherent and intelligent. She stated that Gore was sometimes unresponsive to questions, but she deemed that behavior to be purposeful, occurring when he did not wish to discuss certain topics. She also stated that Gore did not have any loosening of associations but was a highly verbal individual. She opined that Gore obsesses with details but that he was not psychotic, out of contact with reality, or mentally retarded, and showed no evidence of a thought disorder or major mental disorder. She concluded that “[Gore] is very capable of consulting with counsel in a reasonable manner and very capable of testifying if he choosing [sic] to do so.”
Gore himself questioned Dr. Ruiz and asked her if the loosening of associations could exhibit itself on some days but not on others due to the stress on an individual, and she agreed it was a possibility. When Gore continued to question her, Dr. Ruiz also stated it was possible that an individual under stress could provide incorrect answers to questions.
After hearing testimony from the doctors and arguments from counsel, the court stated:
I do find Mr. Gore to be competent.... Maybe more competent than a lot of people that appear before me, some of the lawyers included. I find him to be bright, intelligent, he has good contact with reality. He has no communication difficulty. He certainly does not in front of me or with the doctors, at least Dr. Ruiz and Suarez, have any difficulty with rambling or loosening association. I just observed here that he was able to ask a mental health expert a very good question and follow it through the answer to another follow-up question. I thought he did very well there.
Further, when questioned by the court on whether he felt competent to proceed, Gore stated, “I’m absolutely competent. I’m absolutely lucid.”
2. Standard for Competency
Under the Due Process Clause of the Fourteenth Amendment, a defendant may not be tried and convicted of a crime if he is not competent to stand trial. See Amend. XIV, § 1, U.S. Const. In order to determine whether a defendant is competent to proceed at trial or in postconviction proceedings, the court must discern whether he “has sufficient present ability to consult with counsel with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the pending ... proceedings.” Alston v. State, 894 So.2d 46, 54 (Fla.2004) (quoting Hardy v. State, 716 So.2d 761, 763 (Fla.1998) (applying competency criteria to collateral proceedings)); see Peede v. State, 955 So.2d 480, 488 (Fla.2007) (holding that the trial court must decide whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him”) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)); see also Fla. R.Crim. P. 3.211(a)(1) (setting forth the same test).
Moreover, when analyzing a competency determination on appeal, this Court applies the competent, substantial evidence standard of review to the trial court’s findings. In other words, a trial court’s determination of competency supported by competent, substantial evidence will not be disturbed on appeal. See Hernandez-Alberto v. State, 889 So.2d 721, 727-28 (Fla.2004).
3. Analysis of Postconviction and Trialr-Related Competency Claims
Applying this standard and based on the evidence presented to the postconviction court on the issue of Gore’s competency, we conclude that competent, substantial evidence supports the postconviction court’s finding that Gore was competent to proceed. Although the court heard testimony from Dr. Mclnnes that Gore was incompetent, the court also heard conflicting evidence from Dr. Ruiz and Dr. Suarez that Gore was competent. The trial court also observed Gore’s behavior first-hand and had the benefit of the record from the prior competency proceedings at trial in this case, as well as the Columbia County case. Because the court’s competency determination is supported by the testimony from Dr. Ruiz and Dr. Suarez, the court’s own observations of Gore’s behavior, and the prior proceedings in the Columbia County case, the court did not err in finding Gore competent to proceed in his postconviction proceedings.
We also reject Gore’s competency claims arising from his retrial. We first note that Gore’s claims alleging that he was incompetent at the time of trial and that the trial court erred in removing the extreme mental disturbance mitigator from the jury instructions are procedurally barred because they could have been raised on direct appeal. See Carroll v. State, 815 So.2d 601, 610 (Fla.2002) (rejecting as procedurally barred the postconviction claim that defendant was incompetent to stand trial); see also Farina v. State, 937 So.2d 612, 625 n. 7 (Fla.2006) (argument that age mitigator should be reweighed was procedurally barred as it should have been raised on direct appeal).
As to Gore’s claim that counsel rendered ineffective assistance at his trial in his failure to “advocate the issue of his competency,” we find no merit in this claim. 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 held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
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). In this case, the trial court summarily denied this claim without an evidentiary hearing, concluding it was insufficiently pled. In determining whether the trial court’s ruling on the facial sufficiency of this claim was proper, this Court must apply Strickland’s two-pronged test. Spera v. State, 971 So.2d 754, 758 (Fla.2007).
Because Gore received a competency evaluation at his trial, this claim is unlike other cases where the defendant alleged that counsel was ineffective in failing to request a competency evaluation. See Lamarca v. State, 931 So.2d 838, 847-48 (Fla.2006). Instead, Gore argues that counsel failed to further develop the information that Gore had previously been found incompetent by two experts in another case. However, this claim of deficient performance is conclusively refuted by the record in that the record shows that trial counsel brought the fact of the prior experts’ conclusions to the attention of the trial court, who immediately ordered an additional competency evaluation. Subsequently, in an abundance of caution, counsel formally requested that the trial court read the transcript from the Columbia County ease, review the earlier reports on Gore’s competency, and order another competency evaluation.
As to the second prong of prejudice, there is simply no basis to conclude that our confidence in the outcome of the competency proceedings at trial, and ultimately confidence in the trial proceedings, is undermined. This is especially true in light of Gore having been found competent by every trial court that has held a hearing on this issue, including determinations that were made after the extensive proceedings in Columbia County and after the proceedings by the trial court in these postconviction proceedings. Therefore, we conclude that Gore’s claim of ineffective assistance of counsel in failing to “advocate” the issue of competency is without merit.
B. Ineffective Assistance of Counsel at Penalty Phase and Spencer Hearing
We next turn to Gore’s assertion that the trial court erred in summarily denying his ineffective assistance of counsel claim based on its finding that Gore had waived the claim by representing himself at the penalty phase before counsel was reappointed for the Spencer hearing. We combine our discussion of this issue with the discussion of Gore’s claim of error in the trial court’s ruling that he had voluntarily waived an evidentiary hearing that was granted on his claim that counsel provided ineffective assistance at his Spencer hearing.
1. Summary Denial of Ineffective Assistance Claim
We first address Gore’s claim that the trial court erred in summarily denying his ineffective assistance of counsel claim. We have repeatedly required that an evidentiary hearing be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” See Owen v. State, 986 So.2d 534, 543 (Fla.2008). However, “[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Id. at 543 (quoting Connor v. State, 979 So.2d 852, 868 (Fla.2007)).
The essence of Gore’s ineffective assistance claim is twofold. First, Gore alleges that an evidentiary hearing was required to determine whether his decision to proceed pro se at the penalty phase was voluntary or forced by counsel’s lack of preparation. Second, Gore argues that even if he had voluntarily dismissed counsel, this factor does not negate counsel’s failure “to prepare mitigation or obtain adequate mental health evaluations.”
On direct appeal, we rejected Gore’s claim that his decision to represent himself was not knowing and voluntary:
[W]e conclude that Gore has failed to show good cause for dissatisfaction with appointed counsel. Despite Gore’s assertions to the contrary, the record reflects that defense counsel spoke with family members and potential lay witnesses, reviewed existing mental health evaluations, and attempted to have Gore reevaluated by mental health experts for purposes of presenting potential mitigating evidence. Gore himself thwarted Dr. Haber’s efforts to provide mitigating evidence by refusing to cooperate with her, and Gore also refused to be reexamined by several experts who previously had interviewed and examined him for other criminal proceedings. In addition, after speaking with Gore’s family members and lay witnesses about testifying on Gore’s behalf, defense counsel concluded that it would not be in Gore’s best interest to have these witnesses testify during the penalty phase. In sum, the record reflects that defense counsel took reasonable steps to secure mitigating evidence on behalf of Gore and made strategic decisions in declining to call certain defense witnesses.
Thus, the record does not reflect that Gore was forced to make a Hobson’s choice between incompetent or unprepared counsel and appearing pro se. Competent substantial evidence supports the conclusion that Gore’s decision to proceed pro se was made with “eyes open.”
Gore, 784 So.2d at 437 (emphasis added).
Although we rejected Gore’s argument that Gore’s decision to represent himself was not voluntary, we did not address Gore’s claim that counsel rendered ineffective assistance prior to his discharge because he failed to secure any mental health testimony or fact witnesses to testify on Gore’s behalf. This aspect of his argument, which amounts to a claim of ineffective assistance of counsel at the penalty phase, was raised but not addressed on direct appeal. See Gore, 784 So.2d at 436. While we note that Gore’s ineffective assistance of penalty phase counsel claim is cognizable in postconviction proceedings, in this case the claim is extremely limited because Gore chose to represent himself. Moreover, we reject Gore’s claim that counsel was deficient in failing to prepare mitigation and obtain mental health evaluations because it is conclusively refuted by the record. See Blackwood v. State, 946 So.2d 960, 966-67 (Fla.2006) (upholding summary denial of defendant’s ineffective assistance claims conclusively refuted by the record).
Contrary to Gore’s assertions about counsel’s deficient performance, our record reflects that in preparation for the penalty phase, trial counsel filed the defense witness list on March 4, 1999, which included the names of seven witnesses. At the March 9, 1999, status hearing, counsel removed the names of two of Gore’s family members because counsel concluded that they would not be favorable witnesses. Counsel also removed Dr. Merry Haber from the witness list, after informing the court that Gore refused to meet with her during their scheduled appointments. Then, on March 10, 1999, counsel filed a memo listing three psychologists who had formerly evaluated Gore, who either did not have the time or did not wish to testify on Gore’s behalf. At the status hearing that same day, Gore informed the court that he wished to represent himself at the penalty phase. He explained:
Mr. Pena [counsel] advised me when I got into this courtroom he was not calling any witnesses at all. He was not going to put on any kind of defense, except me.... That was going to be the whole thing.
... I was told that A.F. and J.C. and other people were going to be witnesses here and now, all of a sudden, they are doing it to me again. They done it to me at the first part of this trial ... last minute, seventh hour they are not [sic] witnesses ....
After conducting a thorough colloquy, the court agreed to allow Gore to represent himself during the sentencing hearing. In response, counsel stated to the court that most of the witnesses on the list, including A.F., no longer wished to testify on Gore’s behalf. He also stated that unfavorable evidence would be introduced through the testimony of J.C., and therefore declined to present her testimony at the sentencing hearing.
Gore also asserted to the postconviction court that there were “numerous others willing to testify on Mr. Gore’s behalf and who were never called to do so,” including mental health experts Dr. Lee Norton and Dr. Barry Crown. However, in the memo filed on March 10, counsel stated that Dr. Norton found Gore to be difficult and “would not testify in this case under any circumstances.” The letter further stated that Dr. Crown “found [Gore] to be manipulative and self serving” and would not “give testimony which would affect his credibility as a professional.”
As demonstrated by the above, the record conclusively refutes Gore’s claim that counsel’s decision not to present witnesses at the penalty phase was prompted by a lack of preparation. Counsel attempted to obtain the testimony of family members and mental health experts. However, the majority of the witnesses were unwilling to testify in Gore’s case. Based on the record of counsel’s actions at the trial court proceedings before counsel was discharged, we conclude that further factual development of this claim at a hearing was not required. Further, Gore has been unable to point to any other available witness that counsel could have or should have presented at trial so as to undermine our confidence in the outcome of the penalty phase. Thus, we uphold the summary denial on the basis that the record conclusively refutes Gore’s allegations that counsel rendered deficient performance prior to Gore’s decision to proceed pro se and that the record conclusively refutes any possible prejudice.
2. Waiver of Evidentiary Hearing
We now turn to Gore’s claim that the trial court erred in finding that Gore voluntarily waived his evidentiary hearing on his ineffective assistance claim rising from the Spencer hearing. Although Gore represented himself during the penalty phase, counsel was subsequently reappointed to represent Gore, but did not present any evidence at the Spencer hearing. In its order denying postconviction relief on Gore’s ineffective assistance claim arising from the Spencer hearing, the trial court stated:
1. Defendant has a right to control the conduct of his case, and is therefore entitled to determine that no witnesses be called at the evidentiary hearing against his counsel’s wishes. 2. Defendant has the burden of proof in this post conviction hearing and cannot carry that burden of proof without the presentation of witnesses. 3. By refusing to allow the presentation of evidence at the evidentiary hearing, Defendant has waived his claim that counsel was ineffective for failing to investigate and present mitigation at the Spencer hearing. Because Defendant has waived this claim, it is hereby, denied.
(Citations omitted.)
As to determining whether the trial court erred in finding that Gore waived the only postconviction claim that was granted an evidentiary hearing, we have held that a valid waiver of postconviction penalty phase claims must be “knowing, intelligent, and voluntary.” Garcia v. State, 949 So.2d 980, 986 (Fla.2006) (quoting Alston v. State, 894 So.2d 46, 57 (Fla.2004)). We have carefully reviewed the record and conclude that Gore’s statements at the hearing met this threshold. It is clear from the record that Gore did not want to have an evidentiary hearing on his penalty phase ineffective assistance claim. The State attempted to inform Gore of the consequences of failing to meet his burden of proof. However, Gore declared that he did not “care” about the evidentiary hearing, but was concerned solely with proving his innocence.
As this Court stated in Ferrell v. State, 918 So.2d 163 (Fla.2005), “Ferrell’s claim of ineffective assistance based on the failure of trial counsel to seek the expert assistance of a social worker is a fact-based issue that required development at an evidentiary hearing.... However, Ferrell ‘opted to forego’ the presentation of such evidence at the scheduled evidentiary hearing and thus waived the claim.” Id. at 173-74 (citation omitted). Likewise, Gore’s decision here to “forego” the presentation of evidence at the evidentiary hearing on his Spencer claim waived consideration of this claim on appeal. Because the scheduled evidentiary hearing was granted only as to Gore’s penalty phase ineffective assistance claim and Gore was not interested in pursuing his penalty phase claims, we conclude that the trial court did not err in finding that Gore knowingly, intelligently, and voluntarily waived his evidentiary hearing and this postconviction claim.
Even if the trial court erred in its finding that Gore waived an evidentiary hearing on this claim, we conclude that no prejudice can be demonstrated. See generally Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001) (“[Bjecause the Strickland standard requires establishment of both prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”). Similar to our previous discussion of Gore’s ineffective assistance of counsel at the penalty phase, Gore has not been able to point to any other available witness that counsel should have presented at the Spencer hearing that would undermine our confidence in the outcome of his penalty phase. Thus, we find Gore’s claim of error concerning his Spencer hearing claim to be meritless.
C. Access to Records
We next address Gore’s assertion that the trial court erred in refusing to allow complete and unfettered access to available records. Further, Gore contends that the court did not allow counsel adequate time to review the records that were eventually made available to counsel. Gore’s complaint stems from the trial court’s ruling on postconviction counsel’s motion to compel Frank Tassone, postconviction counsel in the Columbia County case, to allow counsel access to approximately eighty boxes of records. Tassone refused counsel’s request to review the files, based on Gore’s direction that counsel should not have access because of a conflict of interest. The court ultimately ruled that counsel could have access to the fifty-nine boxes of materials to which Gore agreed, but allowed counsel only limited time to review the records.
We conclude that in this case, the trial court did not err in its ruling any inability of current counsel to obtain the records was due primarily to Gore’s own actions in refusing his counsel access. Because Gore himself denied his counsel access to the records and is now complaining that counsel did not have enough time to review the records ultimately made available, this claim also highlights what can most aptly be characterized as an attempt to manipulate the system. Importantly, counsel, who eventually received the majority of the records, is unable to point to a single document contained in the formerly undisclosed record that might have been even marginally useful to the issues he sought to litigate in postconviction proceedings. Accordingly, we deny relief on this claim.
D. Cumulative Error
Gore also contends that the trial court erred in failing to conduct a cumulative analysis of the errors that rendered the result of his trial unreliable. However, because Gore’s individual claims of error are without merit, any cumulative error analysis would be futile. Therefore, we reject this claim of trial court error. See Williams v. State, 987 So.2d 1, 14 (Fla.2008) (“Where allegations of individual error are without merit ... a cumulative error argument based thereupon must also fail.”).
E. Whether the Trial Court Erred in Striking Gore’s Initial Postconviction Motion Without Leave to Amend
In his next claim on appeal, Gore asserts that the trial court erred in striking his initial motion for postconviction relief without leave to amend. On June 18, 2002, Gore filed his initial motion for postconviction relief, which was stricken by the trial court as an improper pleading based on rule 3.851. Gore appealed the trial court’s ruling, which was treated by this Court as a motion for extension of time. In a March 10, 2003, order entered by this Court, Gore was granted an extension of time in which to file a proper motion pursuant to rule 3.851. Gore now appeals the trial court’s initial ruling, stating that the arbitrary application of rule 3.851 violates his due process and equal protection rights and that the trial court’s refusal to grant him leave to amend his motion has jeopardized his federal remedies. Further, Gore argues that he was merely relying on the advice of counsel in filing the improper motion.
To the extent that Gore is alleging that rule 3.851 is unconstitutional as applied to him, this claim is without merit. See Gonzalez v. State, 990 So.2d 1017, 1034 (Fla.2008) (“[R]ule 3.851 as amended in 2001 does not violate a defendant’s due process rights or equal protection rights.”). Moreover, we find that Gore’s claim that he authorized the filing of the improper motion based on the advice of counsel is in effect a claim of ineffective assistance of postconviction counsel, and thus is also without merit. See Waterhouse, 792 So.2d at 1193 (reaffirming the conclusion that ineffective assistance of postconviction counsel is not a cognizable claim for relief).
Finally, although the trial court did not err in striking Gore’s motion without leave to amend, we conclude that because this Court granted an extension of time pursuant to rule 3.851(d)(5) in which to file an amended motion, Gore’s amended motion in this case relates back to the date of the initial motion filed on June 18, 2002. See generally Bryant v. State, 901 So.2d 810, 818 (Fla.2005) (noting that when an initial motion is stricken with leave to amend, a subsequent amended motion relates back to the date of the original filing). Accordingly, although the trial court did not err in its ruling, in our view this Court’s order granting an extension of time in which to file an amended motion rendered Gore’s motion timely for purposes of federal review.
F. Remaining Claims of Trial Court Error
We affirm the trial court’s ruling on Gore’s remaining claims without further discussion: the trial court’s summary denial of several of Gore’s postconviction claims because Gore’s claims are either procedurally barred, conclusively refuted by the record, or facially or legally insufficient; the court’s rejection of Gore’s Ring claim because we have repeatedly held that Ring is not retroactive, see Overton v. State, 976 So.2d 536, 567 (Fla.2007); and the court’s denial of Gore’s claim that he is insane and cannot be executed because we have held such claims to be premature in the absence of an active death warrant. See Jones v. State, 845 So.2d 55, 74 (Fla.2003).
III. CONCLUSION
Based on our examination of the issues raised by Gore on appeal, we affirm the trial court’s denial of Gore’s motion for postconviction relief.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.
PERRY, J., did not participate.
Gore's first conviction was reversed and his case remanded for a new trial because of improper questions and comments by the prosecutor during the cross-examination of Gore and during closing argument. Gore v. State, 719 So.2d 1197, 1202-03 (Fla.1998). 2. Counsel was subsequently reappointed for the Spencer hearing. See Spencer v. State, 615 So.2d 688 (Fla.1993) (allowing for a hearing at which the trial judge may be presented with additional evidence). 3. The trial court found the following aggravating factors: (1) Gore was previously convicted of another capital felony involving the use or threat of violence to the person; (2) the capital felony was committed while Gore was engaged in the commission of, or an attempt to commit, or in flight after committing or attempting to commit any robbery; and (3) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of legal justification ("CCP”). Gore, 784 So.2d at 426 (footnote omitted). As to mitigation, the court found no statutory mitigation but found the following nonstatutory mitigating factors: "(1) Gore suffered hearing loss (minimal weight); (2) Gore suffered from migraine headaches (minimal weight); and (3) Gore had previously stopped an altercation between R.C. and M.C. (minimal weight).” Id. .Gore argued the following points: (1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State's questioning of J.C. about whether she had an “intimate relationship” with Gore; (3) the trial court erred in denying Gore’s motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore’s hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase. Id. at 426 n. 6. .Gore alleged as follows: (1) he was denied his right to effective representation by the lack of time available to fully investigate and prepare his postconviction pleading and the unprecedented workload on counsel, in violation of his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution and in violation of Spalding v. Dugger, 526 So.2d 71 (Fla.1988); (2) his convictions are materially unreliable due to the cumulative effects of ineffective assistance of counsel, the withholding of exculpatory or impeaching material, newly discovered evidence, and/or improper rulings of the trial court in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights; (3) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), at his trial when counsel failed to obtain an adequate mental health evaluation and failed to provide the necessary background information to the mental health consultant in violation of Gore’s equal protection and due process rights under the Fourteenth Amendment and his rights under the Fifth, Sixth and Eighth Amendments; (4) he was denied effective assistance of counsel at the penalty phase portion of his trial, including the Spencer hearing; (5) his execution would violate his Eighth Amendment rights because he is insane and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated because he was incompetent at the time of trial; (6) his sentencing jury was misled by comments, questions, and instructions that unconstitutionally and inaccurately diluted the jury's sense of responsibility towards sentencing in violation of the Eighth and Fourteenth Amendments and counsel was ineffective for not properly objecting; (7) he was denied his rights under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and his rights under the Florida Constitution and was denied effective assistance of counsel in the postconviction proceedings because of rules prohibiting Gore's counsel from interviewing jurors to determine if constitutional error was present; (8) Florida’s capital sentencing procedures violate Gore’s Sixth Amendment right to have a unanimous jury return a verdict addressing his guilt of all the elements necessary for the crime of capital first-degree murder; (9) the application of the new rule 3.851 to Gore violates his due process and equal protection rights; and (10) his indictment was delayed by almost two years in violation of the Fourteenth Amendment.
Huff v. State, 622 So.2d 982 (Fla.1993).
As to Gore's other claims concerning ineffective assistance of counsel at the penalty phase, the court stated: ”[T]he defendant having chosen to represent himself during the penalty phase before the jury cannot now claim ineffective assistance of counsel as to the evidence that was presented before the jury-”
These issues are: (A) Gore was incompetent at the time of his trial and postconviction proceedings; (B) the trial court erred in finding that Gore waived his allegations of ineffective assistance of counsel during sentencing and the trial court erred in finding that Gore voluntarily waived an evidentiary hearing on his claim of ineffective assistance during the Spencer hearing; (C) the trial court erred in refusing to allow postconviction counsel complete and unfettered access to available public records or sufficient time for a full investigation into the records made available; (D) the trial court erred in failing to conduct a cumulative error analysis that fully considered Gore’s allegations of constitutional error; (E) the trial court erred in striking Gore’s initial postconviction motion without permitting him leave to amend; and (F) the trial court's summary denial of claims I, II, III, V, VI, IX and X was error; Florida’s capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Gore cannot be executed because he is insane. We have reordered the above issues from the brief in the order in which we will address them.
Although postconviction relief was denied and that denial affirmed, Gore brought a successive postconviction motion pursuant to Florida Rule of Criminal Procedure 3.853 for DNA testing. That motion was summarily denied and is pending on appeal in this Court in Case No. SC07-678. .The issue of whether Gore has intentionally manipulated the proceedings was the subject of an earlier case in which Gore was convicted of attempted murder, kidnapping, sexual battery, burglary, robbery, and theft. See Gore v. State, 573 So.2d 87, 88 (Fla. 3d DCA 1991). There, Gore filed a motion to exclude electronic media from the courtroom. Several months prior to the trial, a psychologist diagnosed Gore with attention deficit disorder and a severe personality disorder and concluded that the presence of television cameras would distract Gore. After the psychologist’s testimony was presented at an evidentiary hearing, the court found Gore competent to testify and denied the motion. When Gore took the stand and stated he was "not going to be able to do this,” the court appointed three doctors to examine Gore and determine whether the presence of the cameras truly was affecting Gore’s ability to participate in the trial. Notably, the first psychiatrist that testified stated that "Gore did not suffer from any major illness, was manipulative, and was simply 'making an issue’ of the presence of the camera.” Id. The trial court ultimately denied the motion to exclude. Id.
The record also indicates that the trial court appointed Dr. Haber on February 10, 1999, to examine Gore’s competency for the penalty phase.
The trial court granted Gore's request to question Dr. Ruiz after the State and Gore's counsel completed their examinations.
Gore's ineffective assistance claim also extends to counsel’s representation of Gore at the Spencer hearing, which we address later in this opinion.
It appears that the State attempted to inform Gore and the court that the failure to present witnesses could result in a failure to meet the burden of proof and waiver of postconviction claims. The State’s comment was cut off by the trial judge but Gore failed to ask for clarification. Instead, he reiterated his refusal to participate.
As evidenced in his competency evaluation by Dr. Leland, Gore made similar demands in the Columbia County case, stating that he would not cooperate with sentencing phase issues, but would only assist with his "innocence claims.” .Gore also argues that the court failed to hold a hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), or Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and ignored evidence that Gore wished to proceed with substitute counsel. We reject Gore's claim of error concerning a Faretta inquiry because Gore failed to make an unequivocal request to represent himself and we conclude that in this case there was no reversible error as to Gore’s claim regarding the Nelson hearing.
Gore's original postconviction counsel in the Columbia County case and in the instant case was attorney Raymond Glenn Arnold. However, based on Gore’s filing of complaints against Arnold, Arnold moved to withdraw from representing Gore in the Columbia County case on October 18, 2001, and the instant case on November 13, 2001. Tassone was subsequently appointed as counsel in the Columbia County case.
It is not clear from the record whether the boxes of materials were solely from the Columbia County proceeding, solely from the instant case, or a mixture of the two. Regardless of which proceeding(s) the boxes were from, our analysis remains the same based on the facts of this case.
According to 28 U.S.C. § 2244 (2006), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal petition for writ of habeas corpus must be filed within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (2006). However, "[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (2006).
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. SC07-678.
Supreme Court of Florida.
April 8, 2010.
Frank J. Tassone, Jr., and Rick A. Sichta of Tassone and Sichta, LLC., Jacksonville, FL, for Appellant.
Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Marshall Lee Gore, a prisoner under sentence of death, appeals the circuit court’s order denying his motion for postconviction DNA testing, which was filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.
FACTS
The facts of the case are set forth in this Court’s 1992 opinion affirming Gore’s convictions and sentence:
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark’s car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend’s home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned.. The following day Roark’s grandmother reported her missing. She had been expected home by 7 a.m. that morning.
Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark’s Mustang after it was abandoned in a two-car accident. Gore’s fingerprint was found in the car, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark’s body were discovered in Columbia County, Florida. The naked body was found in a wooded area which had been used as an unauthorized dumping ground for household garbage and refuse. Expert testimony established that the body was placed in its location either at the time of death or within two hours of death. The body could have been there anywhere from two weeks to six months prior to discovery. The forensic pathologist who testified for the State concluded that the cause of death was a homicide, given the situation in which the body was found and the fact that the neck area of the body was completely missing. The pathologist explained that this was probably due to some injury to the neck, such as a stab wound or strangulation trauma, which provided a favorable environment for insects to begin the deterioration process.
Gore v. State, 599 So.2d 978, 980 (Fla. 1992). In Gore’s postconviction case, this Court summarized the following additional relevant facts:
In addition to this evidence, the State introduced the testimony of two other witnesses. Specifically, L.I. testified that she “was riding in a car with Gore on February 19 when she saw a woman’s purse in the back seat. She testified that Gore stated that the purse belonged to ‘a girl that he had killed last night.’ ” [Gore, 599 So.2d] at 983. We concluded on appeal that “this testimony was admissible as an admission with regard to the Roark homicide.” Id. Further, the State presented the collateral crime testimony of another victim, T.C.:
The testimony of T.C. was admitted as evidence of a collateral crime. T.C. was a casual acquaintance of Gore’s, whom she knew as “Tony.” In March of 1988, Gore called T.C. at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the car, and drove to a partially wooded dumping area off a dirt road. He put the knife to T.C.’ stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of T.C.’ jewelry and then proceeded to Kentucky in her car.
Id. We concluded on direct appeal that the “cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide.” Id. at 984. The jury found Gore guilty of first-degree murder, kidnapping, and robbery. See id. at 980.
The jury recommended a sentence of death by a vote of eleven to one, and the trial court followed this recommendation after finding the following aggravating circumstances: (1) Gore had previously been convicted of other violent felonies; (2) the murder was committed while Gore was engaged in a kidnapping; (8) the murder was committed for financial gain; and (4) the murder was cold, calculated, and premeditated. See id,, at 986. The judge concluded that Gore’s poor childhood and antisocial personality were insufficient mitigation to outweigh the aggravating circumstances. See id.
Gore v. State, 846 So.2d 461, 464-65 (Fla. 2003). This Court affirmed Gore’s conviction and sentence on direct appeal. Gore v. State, 599 So.2d 978 (Fla.1992). The Court also affirmed the trial court’s order denying Gore’s motion for postconviction relief as well as Gore’s habeas corpus petition filed with this Court. Gore v. State, 846 So.2d 461 (Fla.2003).
Gore subsequently filed a pro se motion entitled “Innocent Defendant’s Motion for Postconviction DNA Testing Pursuant to F.R.C.P. Rule 3.853.” In his motion, Gore sought DNA testing of a variety of items collected in connection with the murder investigation. Additionally, Gore appeared to request DNA analysis of a pair of bloody pants collected from the investigation of another case in which Gore was convicted of murder — the Novick case. Gore also sought to have DNA samples collected from T.C. and D.R.
The trial court summarily denied Gore’s motion as facially insufficient, finding as follows:
The Defendant seeks to have DNA tests run on evidence that was collected near the victim. It should be noted that the victim was buried under a layer of leaves at an unauthorized trash dump in a rural part of Columbia County. The Defendant alleges, that because there is no physical evidence that ties him to the victim, crime scene, or county, DNA tests run on the evidence cited will reveal that he is innocent.
The Defendant is incorrect in this assertion. The identity of the perpetrator of this crime is, was, and can be established without any direct physical evidence. Some of the means of identifying the Defendant are: the Defendant was the last person seen with the victim, the Defendant was in possession of the victims [sic] car (in which he was the last person seen with the victim), and the Defendant pawned personal items of the victims.
Thus, the statutory requirement of a question of identity has not been met, and the Rule 3.853 motion is facially insufficient.
State v. Gore, No. 88-607-CF at 1 (Fla.3d Cir. order dated July 11, 2006). Gore now asserts that the trial court erred in denying his motion on the grounds that it was facially invalid. As explained below, we affirm the trial court’s denial of Gore’s motion for postconviction DNA testing.
ANALYSIS
Gore’s Request to Conduct DNA Testing on Items Collected During the Investigation of This Case
Gore seeks to have DNA testing conducted on items collected during the investigation of this case, asserting that the items were collected from either the vicinity of the victim’s body or from the victim’s vehicle, and contends that the trial court erred in denying his motion as facially insufficient.
The clear requirement of the provisions of section 3.853 is that
a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.
Hitchcock v. State, 866 So.2d 23, 27 (Fla. 2004). This Court has previously explained that “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lott v. State, 931 So.2d 807, 820 (Fla.2006) (emphasis added) (quoting Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004)). “The burden is on the movant to ‘demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.’ ” Van Poyck v. State, 908 So.2d 326, 329 (Fla.2005) (quoting Hitchcock, 866 So.2d at 27). This Court has rejected claims where the defendant was “merely speculating” and has “repeatedly cautioned that ‘[r]ule 3.853 is not intended to be a fishing expedition.’ ” Lott, 931 So.2d at 820-21 (quoting Cole v. State, 895 So.2d 398, 403 (Fla.2004)). Gore has not met his burden and, accordingly, we affirm the trial court’s denial of DNA testing on the items collected during the investigation of this case.
Gore seeks DNA testing of the following items: (1) earrings found near the victim; (2) a shoe string found on the victim’s wrists; (3) socks; (4) a pink shirt; (5) white bikini panties; (6) a panty shield found in two pieces; (7) an earring taken from the victim’s vehicle; (8) a multicolored pillow taken from the victim’s vehicle; (9) a grey shirt found in a brown box; (10) multicolored shorts found in a brown box; (11) a blood sample taken from the map light of the victim’s vehicle; (12) Fruit of the Loom underwear and one pair of socks; (13) a curling iron and hair brush belonging to the victim; (14) debris from the underwear and socks; (15) debris from the panties and panty shield; (16) contact lenses found near the body of the victim; (17) an empty Marlboro brand cigarette package; (18) three empty beer bottles; (19) fingernails collected near the victim’s body; and (20) strands of hair found in the victim’s right hand.
Although Gore was specific as to the list of the items that he requests be tested, a closer examination shows that DNA testing of the items would not exonerate him of the murder. Some of the items were found at the crime scene, but not in close proximity to the body, which was located in a wooded area used as an unauthorized dumping ground for household garbage and refuse. This area was near a road that, according to trial testimony, was strewn with household refuse from beginning to end. For example, Gore requests DNA testing on a Marlboro brand cigarette package, which was found approximately fifty yards from the body. He also requests DNA testing on “Fruit of the Loom underwear,” a pair of socks, and debris from the underwear and socks— these items were located near the entrance to the road, over one hundred yards away from the body.
From a review of the trial record, other items that Gore requests be tested appear to have been located in closer proximity to the body. These items include earrings that were found underneath the victim’s head, socks, a pink shirt, panties, contact lenses, empty beer bottles, fingernails, a panty shield found in two pieces, and debris collected from the panties and panty shield. However, Gore has not earned his “burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lott, 931 So.2d at 820 (emphasis added) (quoting Robinson, 865 So.2d at 1265). Further, this area was used as an unauthorized dumping ground for household garbage and refuse and, because the body was not found until weeks or months after the murder, the chance of contamination is increased.
Another category of items at the crime scene — strands of hair found in the victim’s right hand and a shoe string found knotted around the victim’s left wrist— could likely have been related to the murder but were never used to inculpate Gore and Gore has not shown how the DNA testing of these items could be used to exonerate him of the murder.
Gore also seeks to have DNA testing performed on items found in the victim’s vehicle. These items are earrings, a multicolored pillow, a shirt, shorts, and a “blood sample” from the map light of the vehicle. The shirt had blood on the left sleeve that was consistent with Gore’s blood type and enzyme type — a type that was found in approximately sixteen percent of the population. The shorts and map light tested positive for presumptive presence of blood, but the analyst testifying at trial was not able to determine more than that.
Finally, two of the items in Gore’s list are completely unconnected to the crime scene or the victim’s vehicle — a curling iron and hair brush belonging to the victim. These items were provided to the investigators in this case by Tennessee police to be used as a standard sample of the victim’s hair for comparison purposes. It is not clear whether Gore is requesting DNA testing on these items in order to provide a comparison sample of the victim’s DNA or whether Gore believes that these items were located at the crime scene or in the victim’s vehicle.
Gore asserts that because the State collected all of the above items at the time of the murder investigation, they must have some relevance to the murder. However, none of the items were ever used by the State to inculpate Gore, with the exception of the shirt found in the victim’s vehicle that had blood matching Gore’s blood type and enzyme type. Importantly, there is absolutely no indication that any of the items could be used to exonerate Gore. Gore asserts that the testing of the items will serve to establish that someone other than Gore committed the murder by either establishing the true identity of the actual killer or exclude Gore as the perpetrator of the murder. Even if the DNA analysis indicates a source other than the victim or Gore, “there is no reasonable probability that [he] would have been acquitted or received a life sentence,” Tompkins v. State, 872 So.2d 230, 243 (Fla.2003), as the DNA very likely could have come from someone other than the murderer given the location of the items in either a trash dump or in the victim’s vehicle. See Lott, 931 So.2d at 820-21.
Gore asserted in his motion filed with the trial court that DNA testing will allow the Florida Department of Law Enforcement to “compare those profiles to the profiles of known perverts.” This is exactly the sort of speculation and fishing expedition for which rule 3.853 was not intended. See Lott, 931 So.2d at 820-21.
Further, the absence of Gore’s DNA on the listed items collected from the crime scene or the victim’s vehicle would not exonerate him or mitigate his sentence because “such results would not prove that [he] was neither the perpetrator nor present at the crime scene.” Overton v. State, 976 So.2d 536, 570 (Fla.2007). Moreover, the evidence presented at trial clearly connected Gore to the murder. He was the person last seen with the victim by any credible witness testifying at trial. Gore, 599 So.2d at 980, 984. Within twenty-four hours of the victim’s disappearance, Gore was seen in Florida in possession of her vehicle. See id. He received a traffic ticket while driving the victim’s vehicle in Florida, and his fingerprints were found in the victim’s vehicle, which was abandoned after an accident. Id. He also had someone pawn the victim’s jewelry. Id. Finally, he admitted to L.I. that a purse in the victim’s vehicle belonged to a girl he had killed “last night or a few nights ago.” Id. at 983.
In sum, Gore has not carried his burden to “explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate” him or mitigate his sentence in this case. See Lott, 931 So.2d at 820 (quoting Robinson, 865 So.2d at 1265). Under the facts of this case, we conclude that he cannot carry this burden with respect to these items.
Gore’s Request to DNA Test an Item Collected During the Novick Case Investigation and to Have DNA Samples Collected from D.R. and T.C.
Gore also claims that he is entitled to have an item from another crime scene investigation tested for DNA and that he is entitled to have the court order DNA samples to be collected from D.R. and T.C. so that he may collaterally attack T.C.’s testimony in the instant case. Specifically, he contends that T.C.’s DNA will be found on a pair of bloody pants taken from the Novick vehicle during the investigation of the Novick murder case. Since T.C. testified in the instant case that she had met Gore only briefly prior to him assaulting her and that she did not know Novick, Gore asserts that the presence of her DNA on the pants would demonstrate that her testimony in this regard was false. As to D.R., Gore has not made an argument for how obtaining D.R.’s DNA would allow Gore to attack his conviction in the instant case.
Gore claims that the collection of this DNA evidence would allow him to “attack” his conviction in all three eases by undermining T.C.’s testimony. Without deciding whether Gore would even be entitled to testing of these items under the rule, we conclude that he cannot demonstrate how the DNA testing he requests would exonerate him in this case or mitigate his sentence in this case.
CONCLUSION
For all of these reasons, we affirm the circuit court’s order denying Gore’s rule 3.853 motion for DNA testing.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
In a separate case, Gore was also convicted of the March 1988 first-degree murder and armed robbery of Robyn Novick in Dade County and sentenced to death. The convictions and death sentence were affirmed on appeal. See Gore v. State, 784 So.2d 418 (Fla.2001). We also affirmed the denial of postconviction relief. Gore v. State, 24 So.3d 1 (Fla.2009).
D.R. was a witness in the Novick murder case. He testified that Gore arrived at his home, driving a Corvette (that was later determined to belong to Novick). While D.R. was riding in Novick's vehicle with Gore, Gore lost control of the vehicle, wrecked it, and abandoned it. Gore, 784 So.2d at 423-24.
The hair analyst who testified at trial asserted that she decided that the hairs were too damaged to be used as a hair standard for the victim. Accordingly, the analyst was not able to rule out the victim as the source of some of the hairs found at the scene.
Gore does not assert that he is seeking access to DNA samples previously collected from D.R. and T.C. in any of his three cases. Rather, he seeks to have the court order the collection of DNA samples from these two individuals.
In fact, since D.R. was in Novick’s vehicle with Gore and they were both injured during the crash, one could expect to find his blood on an item recovered from the vehicle after the crash.
Marshall Lee GORE, Petitioner-Appellant, v. Michael D. CREWS, Respondent-Appellee.
No. 13-12834.
United States Court of Appeals, Eleventh Circuit.
June 27, 2013.
Todd Gerald Seher, Law Office of Todd G. Scher, PL, Dania Beach, FL, for Petitioner-Appellant.
Sandra Jaggard, Atty. Gen.’s Office, Miami, FL, for Respondent-Appellee.
Before TJOFLAT, CARNES and HULL, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
Marshall Lee Gore was convicted and sentenced to death in Florida state court for the first-degree murder and armed robbery of Robyn Novick. After his convictions and capital sentence were affirmed on direct appeal in 2001, see Gore v. State, 784 So.2d 418 (Fla.2001), Gore unsuccessfully pursued postconviction relief in both state and federal court on a host of claims, including a claim that he is mentally incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The state and federal courts rejected each of his claims for collateral relief and dismissed his Ford claim as premature because he was not then subject to an active death warrant. Gore v. Sec’y, Fla. Dep’t of Corr., No. 1:06—cv-22736 (S.D.Fla. Mar. 16, 2012); Gore v. State, 24 So.3d 1 (Fla.2009).
That changed on May 13, 2013, when the Governor of Florida signed Gore’s death warrant and scheduled Ms execution for Monday, June 24, 2013. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 1622, 140 L.Ed.2d 849 (1998) (noting that a Ford claim does not become ripe until an inmate’s execution is imminent). Five days later, Gore’s state-appointed collateral counsel, Steven Hammer, notified the Governor that he had reason to believe that Gore was mentally incompetent to be executed. Counsel also filed in the state circuit court a notice of a potential conflict of interest, which expressed a similar belief that Gore may be incompetent to be executed. Hammer indicated that, during a recent conversation with his client, Gore had behaved irrationally, refused to sign a release for his medical records, “made numerous statements about his distrust of counsel” and his belief that counsel was “engaged in a conspiracy to get [him] killed,” and made unspecified statements about his case and imminent execution that Hammer characterized as “contradictory,” “bizarre,” and “irreconcilably irrational.”
On May 22, 2013, the Governor, as required by Fla. Stat. § 922.07, appointed a commission of three psychiatrists to evaluate Gore’s mental competence to be executed and granted a temporary stay of execution pending receipt of the commission’s report. The commission members conducted a three-hour clinical interview with Gore on May 28, 2013, administered several neuropsychiatric tests, reviewed his mental health and correctional records from 1990 onward, and interviewed two corrections officers about his recent behavior. During the evaluation, Gore told the commission members that there was a vast conspiracy among state officials, including the Governor of Florida, to harvest the organs of condemned prisoners for financial gain and for the benefit of elite members of society. Gore said that he believed that a state senator was waiting to obtain Gore’s eyeballs for his blind son. Based on their evaluation, including the results of the neuropsychiatric tests, the commission members unanimously dismissed Gore’s assertions as a patent “fabrication designed to mislead the panel and avoid responsibility for his past actions” and concluded that he has “no current mental illness,” was “feigning psychopathology to avoid the death penalty,” and “understands the nature and effect of the death penalty and why it was imposed on him.”
After receiving the psychiatric commission’s report, the Governor issued a formal executive order on May 30, 2013, finding Gore mentally competent to be executed, lifting the temporary stay of execution, and reinstating the original execution date of June 24, 2013. Although Gore’s Ford claim had fully ripened, Hammer, his state-appointed counsel, did not seek judicial review of the Governor’s competency determination under Florida Rule of Criminal Procedure 3.811, which creates a specific state mechanism for prisoners to challenge their competency to be executed. See Fla. R.Crim. P. 3.811(d) (“On determination of the Governor of Florida, subsequent to the signing of a death warrant ..., that the prisoner is sane to be executed, counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner’s insanity to be executed.”).
Gore’s federally appointed attorney, Todd Scher, waited until 7:00 p.m. on the Friday, June 21, before the scheduled execution on the following Monday, June 24, to file a federal habeas petition under 28 U.S.C. § 2254 raising a Ford claim. He also filed an emergency motion for a stay of execution. Gore, through his counsel Scher, acknowledged that he had not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) by first presenting his Ford claim to the state courts, but he contended that his failure to exhaust his state remedies was excusable under the Supreme Court’s decision in Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), because his attorney in the state proceedings had rendered ineffective assistance in failing to raise the claim in a Rule 3.811 motion.
The district court dismissed Gore’s habeas petition without prejudice for failure to exhaust the Ford claim in state court and, in so doing, the court rejected Gore’s contention that the lack of exhaustion could be excused under Martinez. The court concluded that the rule announced in Martinez did not create an exception to § 2254(b)’s exhaustion requirement, but instead was explicitly limited to claims of ineffective assistance of trial counsel that are procedurally defaulted in state court due to the ineffectiveness of state postconviction counsel. Because Gore’s Ford claim, though unexhausted in state court, was not procedurally barred under state law and was not a claim of ineffective assistance of trial counsel, the district court found that Martinez was inapplicable and that the Ford claim was due to be dismissed for lack of exhaustion. The district court also denied Gore’s motion for a stay of execution. It did, however, grant Gore a certificate of appealability on the sole issue of: “Whether Martinez v. Ryan created an exemption to the exhaustion requirement of 28 U.S.C. [§] 2254(b) when counsel is ineffective for failing to assert a Ford claim in state court.” In granting a COA, the court found that Gore had made a “substantial showing of the denial of a constitutional right” and that reasonable jurists could debate whether he was entitled to pursue an unexhausted Ford claim in federal court pursuant to Martinez.
On the same day as the scheduled execution, June 24, Gore filed an emergency motion for a stay of execution with this Court. The State filed with us a motion to vacate the district court’s COA as improvidently granted on the ground that Martinez clearly does not apply to unexhausted Ford claims. Under Eleventh Circuit Rule 22-4(a)(7), we granted a temporary stay of execution in order to prevent Gore’s death mooting the appeal and directed the parties to brief a number of issues, including the sole issue upon which the district court’s COA was granted. See 11th Cir. R. 22-4(a)(7) (“If a certificate of appealability is granted by the district court or this court, the panel shall grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal .... ”). We have received and considered the parties’ briefs and held oral argument on the issues specified in our earlier order.
I. Gore’s Motion for a Stay of Execution
A stay of execution is an equitable remedy that “is not available as a matter of right.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006). To warrant a stay of execution, an inmate must demonstrate that: “(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011); see also Hill, 547 U.S. at 584, 126 S.Ct. at 2104 (holding that inmate seeking a stay of execution “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits”). Moreover, under Eleventh Circuit Rule 22-4(a)(7), we may deny a temporary stay of execution if, after a hearing, we find that the merits of the appeal are “frivolous, or [are] lacking any factual basis in the record, or [are] squarely foreclosed by statute, rule, or authoritative court decision.” 11th Cir. R. 22-4(a)(7)(i).
Gore has not shown a substantial or significant likelihood of success on the merits of the sole procedural issue identified in the district court’s COA. He cannot make, that showing because the merits of that issue are “squarely foreclosed” by the exhaustion requirement set forth in 28 U.S.C. § 2254. Under § 2254(b), a federal court may not grant a writ of habeas corpus on a claim unless the petitioner has exhausted all available state court remedies regarding that claim. 28 U.S.C. § 2254(b). A petitioner cannot satisfy the exhaustion requirement if, with certain exceptions that are not applicable in this case, he has failed to avail himself of “any available procedure” by which he has the right to raise his claim in state court. Id. § 2254(c). If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir.2010). But see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
It is undisputed that Gore did not exhaust his Ford claim in state court before seeking federal habeas review of that claim, and he does not contend that either of the statutory exceptions, see 28 U.S.C. § 2254(b)(1)(B), are applicable. The question is whether, as Gore contends, the Supreme Court’s decision in Martinez created an exception to the exhaustion requirement where the failure to exhaust a Ford claim is alleged to have been caused by state collateral counsel’s ineffective assistance. Martinez, however, clearly does not apply in the circumstances of this case because Gore’s claim, though unexhausted, is not now proeedurally barred, and it is not a claim that trial counsel was ineffective.
Under the doctrine of procedural default, a federal habeas court may not review the merits of a claim that is procedurally barred unless the petitioner can demonstrate cause for the default and actual prejudice, or that he is actually innocent of his crime of conviction. Ward, 592 F.3d at 1157. Before its decision in Martinez, the Supreme Court had held that a petitioner cannot rely on the ineffective assistance of postconviction counsel to establish cause to excuse a procedural default because there is no constitutional right to an attorney in state postconviction proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991).
In Martinez, however, the Court recognized a “narrow exception” to this general rule by holding that “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 132 S.Ct. at 1315 (emphasis added). Repeatedly in its opinion, the Supreme Court emphasized the limited scope of the exception that it was crafting to the rule established in Coleman. The Court was careful to characterize its decision as a “limited qualification” to Coleman’s holding that negligence on the part of a prisoner’s postconviction counsel does not constitute cause to excuse the procedural default of a claim in state court. Id. at 1315-16, 1319— 20. And the Court made clear in Martinez that “[t]he rule of Coleman governs in all but the limited circumstances recognized here”—namely, “[wjhere, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding” and “counsel in that proceeding was ineffective” for failing to raise such ineffective assistance claims. Id. at 1320. The Court also underscored that the concededly “narrow exception” it was adopting was meant to “reflect[] the importance of the right to the effective assistance of trial counsel” and that its holding “addresse[d] only the constitutional claims presented in this case, where the State barred the defendant from raising the claims [of ineffective assistance of trial counsel] on direct appeal.” Id.
By its own emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance of postconviction counsel. Gore is not asserting a claim of ineffective assistance of trial counsel. And while his Ford claim is unexhausted in state court, it is not procedurally defaulted and, as such, is not subject to any of the exceptions to the procedural default rule, including the one recognized in Martinez.
An unexhausted claim is not procedurally defaulted unless it is evident that any future attempts at exhaustion would be futile due to the existence of a state procedural bar. Bailey v. Nagle, 172 F.3d 1299, 1303, 1305 (11th Cir.1999). There is no state procedural rule preventing Gore from raising his Ford claim in state court. To the contrary, Florida Rule 3.811 creates a specific mechanism through which state death-row inmates can challenge in state court their competency to be executed, and the Florida Supreme Court has specifically stated that there is no filing deadline for bringing such a claim. See Fla. R.Crim. P. 3.811(d); Provenzano v. State, 751 So.2d 37, 40 (Fla.1999) (acknowledging that Rule 3.811 “does not contain a timetable for filing”). The district court in this case found that the Florida courts would not refuse to hear Gore’s Ford claim based on a procedural bar, and the State has assured us that there is nothing in Florida law to suggest that the state courts would refuse to consider the merits of a Rule 3.811 motion. Gore does not contend that his Ford claim is procedurally barred and instead concedes in his brief to us that “[a]ny conclusion that a state procedural bar would be applied to a Rule 3.811 motion filed at this time would be speculative.” App. Br. at 46.
Moreover, although the Supreme Court has recognized several exceptions to the judicially-created procedural bar doctrine, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 81-88, 97 S.Ct. 2497, 2503-07, 53 L.Ed.2d 594 (1977) (creating an exception to the procedural default rule when the petitioner can show cause for the default and prejudice from it), the Court has not recognized any equitable exceptions to the statutory bars on habeas petitions when the petitioner does not make a “credible showing” of actual innocence. See McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1931, 1933, 185 L.Ed.2d 1019 (2013). The Supreme Court’s most recent decision on the matter, McQuiggin, reaffirmed that principle, holding that there is an “equitable exception” to the statute of limitations applicable to habeas claims, 28 U.S.C. § 2244(d), but only when the petitioner presents new evidence that “shows it is more likely than not that no reasonable juror would have convicted the petitioner.” Id. at 1931, 1933 (alteration and quotation marks omitted). The Court’s opinion expressly limited its holding to that situation, stating that “AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made.” Id. at 1933. Gore does not claim actual innocence and the exhaustion statute does not provide for the exception that Gore asks us to create. McQuiggin reaffirms that in these circumstances we lack the authority to rewrite the statute and create an exception that Congress did not enact.
Because Gore’s claim is not procedurally barred and it does not raise an allegation of ineffective assistance of trial counsel, Martinez by its own terms does not, and cannot, excuse his failure to satisfy the exhaustion requirement of § 2254(b). Unless and until the Supreme Court overrules the limitations it placed on its Martinez decision, we are bound to respect and apply them. Because the plain meaning and obvious import of those explicit limitations are not debatable among jurists of reason, Gore has not made the required showing for a COA, regardless of the merits or lack of merit of his underlying claim. The district court should not have granted a COA on the Martinez /exhaustion issue. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (holding that a COA should issue only “when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”). The sole issue presented in this appeal is clearly foreclosed by statute, 28 U.S.C. § 2254(b)(1), and authoritative decisions. See 11th Cir. R. 22-4(7). As for the State’s motion to vacate the COA, see Clisby v. Alabama, 52 F.3d 905, 906 n. 1 (11th Cir.1995).
The district court’s judgment dismissing without prejudice Gore’s petition for a writ of habeas corpus is AFFIRMED. The State’s motion to vacate the certificate of appealability is DENIED AS MOOT. The stay of execution previously entered by this Court is VACATED. The Petitioner’s motion for a stay of execution is DENIED.
Gore’s federal habeas counsel has not adequately explained his failure to attempt to appear on behalf of Gore in state court in order to raise the competency to be executed issue. In Howell v. State, 109 So.3d 763, 772-73 (Fla.2013), the trial court, without any suggestion from the Florida Supreme Court that it was improper to do so, allowed counsel who was not the state registry counsel to appear in state postconviction proceedings and participate in them on behalf of the petitioner. During oral argument, Gore's federal habeas counsel argued that he was not obligated to appear in state court without compensation. But Harbison v. Bell, 556 U.S. 180, 183-84, 190 n. 7, 129 S.Ct. 1481, 1485, 1489 n. 7, 173 L.Ed.2d 347 (2009), held that a district court has discretion to allow federally paid habeas counsel to appear on behalf of the petitioner in state clemency proceedings where the petitioner is otherwise unable to obtain adequate representation in those proceedings. The underlying statute covers both state court clemency proceedings and competency to be executed proceedings. See 18 U.S.C. § 3599(e) (providing that federally appointed counsel ''shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available”). And here Gore is contending that he does not have adequate representation for the state competency proceedings. If, as Gore insists, his state court counsel is not providing representation adequate to exhaust his state court remedies, this would be a circumstance in which a district court could "determine, in its discretion, that it is necessary for court-appointed counsel to exhaust a claim in state court in the course of her federal habeas representation, so that counsel can go forward with her prosecution of the prisoner's federal habeas petition.” Gary v. Warden, 686 F.3d 1261, 1277 (11th Cir.2012) (alteration, citation, and quotation marks omitted). We do not mean to imply that, but for his failure to exhaust, Gore has proffered enough evidence of incompetency to entitle him to a stay of execution based on his Ford claim. That issue is not before us given his failure to exhaust.
Marshall Lee GORE, Appellant, v. STATE of Florida, Appellee.
No. SC13-1281.
Supreme Court of Florida.
Aug. 13, 2013.
Todd G. Scher, Dania Beach, FL; Terri Lynn Backhus of Baekhus & Izakowitz P.A., Tampa, FL, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra Sue Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Marshall Lee Gore appeals an order entered by the Eighth Judicial Circuit Court finding him competent to be executed. For the reasons that follow, we affirm the circuit court’s order.
I. Background
On May 13, 2013, Governor Rick Scott signed a death warrant for Gore and set the execution for Monday, June 24, 2013. On May 18, 2013, Gore’s state counsel submitted a letter to the Governor, stating that there is reason to believe Gore is insane to be executed. Pursuant to section 922.07, Florida Statutes (2012), the Governor temporarily stayed Gore’s execution and appointed a commission of three psychiatrists to examine Gore. As a group, the psychiatrists conducted their examination on May 28, 2013, and concluded that Gore is sane to be executed. Thereafter, the Governor adopted the commission’s conclusion and lifted the stay.
Gore’s state counsel, Steven Hammer, did not file a motion for stay and hearing after the Governor’s determination of sanity to be executed pursuant to Florida Rules of Criminal Procedure 3.811 and 3.812. However, Gore’s federal counsel, Todd Scher, filed a petition for writ of habeas corpus in federal district court, which asserted that Gore is not competent to be executed. The federal district court dismissed the petition without prejudice because Gore had not exhausted the claim in state court. And the Eleventh Circuit Court of Appeals granted Gore’s motion for stay of execution while it considered Gore’s appeal. On June 27, 2013, the Eleventh Circuit affirmed the district court’s dismissal without prejudice and lifted its previously entered stay. Thereafter, on June 28, 2013, the Governor rescheduled Gore’s execution for July 10, 2013.
On July 2, 2013, the circuit court granted federal counsel’s request to represent Gore in state court. Counsel then filed in the Eighth Judicial Circuit a motion for stay and hearing pursuant to rules 3.811 and 3.812. The circuit court stayed the execution and held an evidentiary hearing on July 15 and 16, 2013.
At the evidentiary hearing, Gore presented the testimony of one mental health expert, Dr. Jethro Toomer, who interviewed Gore on July 8, 2013. In response, the State presented the testimony of two of the three psychiatrists who were appointed by the Governor to examine Gore. The State also presented the testimony of four correctional officers who have observed and interacted with Gore over the years.
After an evidentiary hearing that spanned 1 and 1/2 days, the circuit court issued an order finding Gore sane to be executed and lifting its previously entered stay. In its order, the circuit court found that Gore is feigning delusional thoughts that his execution was scheduled in order to harvest his organs, a conspiracy theory purportedly involving China, the Illuminati, Satan worshippers, the national debt, and the Governor. In fact, the circuit court determined that “[tjhere is no credible evidence that Gore’s mental state is such that he believes he is being executed for any reason other than the murder of Ms. Novick.” In addition, the circuit court concluded that Gore is not suffering from a mental illness that would affect his rational understanding of his impending execution and the reason for it. The circuit court explained that it found the State mental health experts’ testimony “to be compelling and supported by the other evidence presented to the court in this case.”
Furthermore, the circuit court noted that it “was able to observe Gore’s demeanor and functioning first hand.” The circuit court stated that “[wjith one exception of using an inappropriate word, Gore was attentive, quiet, and engaged in the proceedings,” that “[h]e assisted counsel by talking with them and appeared at times to be writing notes or messages to them,” and that “he acted as normally as any other participant in the proceedings.”
II. Analysis
Gore alleges that the circuit court erred in finding him sane to be executed. However, because there is competent, substantial evidence supporting the determination, we affirm the circuit court. See Ferguson v. State, 112 So.3d 1154, 1156 (Fla.2012) (explaining standard of review).
“[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). “Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition.” Panetti v. Quarterman, 551 U.S. 930, 934-35, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see also Fla. R.Crim. P. 3.811(e).
To be sane for execution, the defendant must have a rational understanding of his impending execution and the reason for it. See Panetti, 551 U.S. at 959, 127 S.Ct. 2842 (“A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter.”); Ferguson v. Fla. Dep’t of Corrs., 716 F.3d 1315, 1318 (11th Cir.2013) (“The Supreme Court has decided that a convicted murderer cannot be executed unless hé has a rational understanding of the fact that he is going to be put to death and of the reason for his execution”). In other words, a defendant must have more than a factual awareness of his impending execution and the State’s reason for it; he must have a rational understanding of the connection between his crime and impending execution. See Panetti, 551 U.S. at 959-60, 127 S.Ct. 2842; Ferguson, 716 F.3d at 1336 (explaining that Panetti “clarified that the requisite ‘awareness’ or ‘comprehension’ required by Ford was tantamount to a ‘rational understanding’ of the connection between a prisoner’s crimes and his execution”).
However, as the United States Supreme Court has explained, competency for execution does not mean that a defendant must be “normal” or “rational” as colloquially understood:
The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered “normal,” or even “rational,” in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.
Panetti, 551 U.S. at 959-60, 127 S.Ct. 2842.
In this case, the circuit court applied the correct legal standard and determined that Gore is sane to be executed. Specifically, the circuit court determined that “Gore is not mentally ill [and] that he has a rational understanding that he is being executed because he murdered Ms. Novick and will die as a result of that execution.” The circuit court concluded that “[t]here is no credible evidence that Gore’s mental state is such that he believes he is being executed for any reason other than the murder of Ms. Novick.” The circuit court explained that, although Dr. Toomer testified that Gore is not competent to be executed because of Gore’s statements regarding organ harvesting and Satan worshippers, Dr. Toomer’s testimony is not credible because Dr. Toomer had not conducted a complete evaluation, had not conducted a thorough review of Gore’s medical records, Department of Corrections records, or pro se filings, and had not interviewed anyone who had interacted regularly with Gore. Instead, Dr. Toomer relied heavily on Gore’s self reporting of his mental health history, a self report that is inconsistent with Gore’s records as well as the other evidence presented.
There is competent, substantial evidence to support the circuit court’s determination that Gore is sane to be executed. For example, Dr. Myers testified that Gore has the mental capacity to understand rationally that he is being executed and why. Both Dr. Myers and Dr. Werner testified that Gore does not suffer from a mental illness of any kind, let alone a severe mental illness that is preventing him from rationally understanding the connection between his crime and punishment. Cf. Panetti, 551 U.S. at 960, 127 S.Ct. 2842 (“Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose.”). Instead, Dr. Myers and Dr. Werner concluded that Gore has an antisocial personality disorder. Dr. Myers and Dr. Werner explained that Gore’s statements regarding organ harvesting and the Illuminati are a goal-oriented attempt by Gore to feign a delusion in order to avoid execution. Based upon their evaluation of Gore, their review of Gore’s records, their interviews with correctional officers, and Gore’s results on the Miller Forensic Assessment of Symptoms Test and the Mini-Mental State Examination-2, Dr. Myers and Dr. Werner concluded that Gore is malingering. This conclusion is consistent with the correctional officers’ testimony that Gore is manipulative of staff and only exhibits particular symptoms and unusual behavior when in the presence of certain individuals, such as Dr. Toomer, nurses, and the warden. Accordingly, the circuit court’s conclusion is supported by competent, substantial evidence.
III. Conclusion
For the foregoing reasons, we affirm the order of the circuit court finding Gore sane to be executed. No rehearing will be entertained by this Court, and the mandate shall issue immediately.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.