Gore v. State

846 So. 2d 461, 2003 WL 1883690
CourtSupreme Court of Florida
DecidedApril 17, 2003
DocketSC01-1524, SC02-684
StatusPublished
Cited by45 cases

This text of 846 So. 2d 461 (Gore v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gore v. State, 846 So. 2d 461, 2003 WL 1883690 (Fla. 2003).

Opinion

846 So.2d 461 (2003)

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.

*464 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.

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, Lisa Ingram 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 *465 crime testimony of another victim, Tina Corolis:

The testimony of Tina Corolis was admitted as evidence of a collateral crime. Corolis was a casual acquaintance of Gore's, whom she knew as "Tony." In March of 1988, Gore called Corolis 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 Corolis' 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 Corolis' 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.[1] 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 Huff[2] 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 postconviction 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 *466 claims for postconviction relief. Gore now appeals the trial court's summary denial of eleven of his postconviction claims[3] 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,[4] conclusively refuted by the record,[5] or without merit as a matter of law.[6]

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:

The evidence at issue must be favorable to the accused, either because it *467 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,

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Bluebook (online)
846 So. 2d 461, 2003 WL 1883690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gore-v-state-fla-2003.