Gore v. State, 475 So.2d 1205 (Fla. 1985). (Direct Appeal)

Defendant was convicted before the Circuit Court, Pinellas County, L.B. Vocelle, J., of murder in the first degree, two counts of kidnapping, three counts of sexual battery, and sentenced to death. On his appeal, the Supreme Court, Alderman, J., held that: (1) although trial court should have allowed defendant to propound questions to jury as to their bias or prejudice in recommending a life sentence, voir dire of jurors read in its entirety evidenced that error was harmless beyond a reasonable doubt; (2) evidence supported conclusion that defendant intelligently and voluntarily waived his right to counsel and expressed his wish to proceed without counsel to give confession; (3) photographs of murder victim were relevant and properly admitted; (4) request for mistrial due to epileptic juror's interruption of defense counsel during closing argument was properly denied; and (5) evidence supported conclusion that murder was committed to prevent lawful arrest and that it was heinous, atrocious, or cruel. Affirmed.

ALDERMAN, Justice.

David Alan Gore appeals his convictions for murder in the first degree, two counts of kidnapping, and three counts of sexual battery, and his sentence of death. Finding no reversible error, we affirm his convictions and his death sentence.

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

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

Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of Regan Martin, and for three counts of sexual battery of Regan Martin. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.

Gore challenges his convictions on a multitude of grounds. He initially contends that the court reversibly erred in not permitting him to inquire of the various jurors as to their feelings, attitudes, or prejudices regarding a recommendation of mercy. The trial court sustained the state's objection to the following question posed by defense counsel during voir dire: “Concerning the death penalty, is there someone here that feels so strongly in favor of the death penalty that you would never under any circumstances be able to recommend mercy in a case in which the defendant was convicted of first-degree murder? ” After the state's objection that there is nothing in the statute that says anything about mercy, the following colloquy between counsel and the trial court transpired:

THE COURT: Of course, what we're doing here, gentlemen, with all due respect, we're getting into the lawyers making comments on what the law is. As I understand it, the jury, their function, first of all, is to determine innocence or guilt as to the first count.... .... MR. STONE: It bothers me, the word. That's under the old statute, whether you recommend mercy. It has nothing to do with this case. MR. LONG: Your Honor, a juror can recommend— THE COURT: I'll permit you—I'm going to permit you to ask this jury would they under no circumstances because they've got such a conviction of the death penalty, they cannot render an advisory opinion back to this Court with reference to life imprisonment not to exceed twenty-five years. MR. STONE: But the use of the word mercy, that no longer exists. That has nothing to do with the statute whatsoever. THE COURT: If they're so strong in their belief at this point. Mercy is not involved. .... THE COURT: The objection is sustained as not a valid instruction to the law.

Citing Poole v. State, 194 So.2d 903 (Fla.1967), and Thomas v. State, 403 So.2d 371 (Fla.1981), Gore argues that he was denied the opportunity to ascertain whether the jurors were prejudiced and was thereby denied his right to a fair and impartial jury. In Thomas v. State, we addressed the issue of whether a juror who admitted in voir dire that he could not recommend any mercy in any required sentencing phase under any circumstances should have been excused for cause at the defendant's request. We held that the juror should have been excused for cause because of a fundamental violation which was the actual presence of expressed bias against the defendant in the sentencing phase of his capital trial. In Thomas, reiterating what we had formerly said in Poole, we held: Although the jury's role in the sentencing phase is an advisory one, it is significant to a defendant since a trial court may not impose the death penalty following a jury's advisory sentence of life imprisonment unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). We have previously held that it was error for a trial judge to refuse to allow defense counsel to propound any voir dire inquiry as to the issue of mercy, since “[s]uch inquiry ... could conceivably be determinative of whether the defense should challenge a juror—either for cause or peremptorily.” Poole v. State, 194 So.2d 903, 905 (Fla.1967) (emphasis supplied). The admitted refusal of juror Roberts to weigh mitigating circumstances in the sentencing phase presents a clear case in which a challenge for cause should have been granted. 403 So.2d at 376.

In the present case, however, unlike Thomas, juror bias and prejudice do not appear from the record before us. Although the trial court should have allowed Gore to propound questions to the jury as to their bias or prejudice in recommending a life sentence, we hold that the voir dire of the jurors read in its entirety evidences that this error does not amount to reversible error, but rather was harmless error beyond a reasonable doubt. The jury was thoroughly questioned in regard to their attitudes toward the death penalty and whether they felt it should be automatically imposed or whether they would follow the court's instructions and make sure the circumstances were proved to support it before they would consider it. Gore has not shown that his jury was made up of one or more persons unalterably in favor of the death penalty or that any of the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. In our recent decision of Fitzpatrick v. State, 437 So.2d 1072 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), we found that Fitzpatrick was unlike Thomas because none of the four veniremen ever indicated that he was unalterably opposed to recommending life sentences for convicted murderers. Their statements only indicated a tendency toward being in favor of the death penalty. “A man who opposes the death penalty, no less than the one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” ... A judge need not excuse such a person unless he or she is irrevocably committed to voting for the death penalty if the defendant is found guilty of murder and is therefore unable to follow the judge's instructions to weigh the aggravating circumstances against the mitigating circumstances. 437 So.2d at 1075–76. We hold that the trial court did not reversibly err in sustaining the state's objection.

We find no merit to Gore's claim that the trial court erred in denying his motion to suppress his confession. The record supports the trial court's specific ruling that Gore intelligently and voluntarily waived his right to counsel and expressed his wish to proceed without counsel to give the subject confession. In denying this motion, the trial court explained:

And the evidence is that he was an auxiliary police officer. That he had education, experience with reference to arrest et cetera. Whether or not he made an intelligent waiver of his right to counsel during his statement, in the court's opinion he was given Miranda at the Indian River County Jail, and he stated that he did wish to proceed without a lawyer and did proceed and did intelligently answer the questions. And it was only after some more incriminating statements were beginning to be asked that he at that time asked for counsel and stated I believe he did not want to proceed further without counsel and the interrogation did, of course, cease. So, the motion to suppress the statement will be denied, and it'd be admitted during the course of the trial. Then after more discussion regarding the trial court's ruling, the court, to make its finding perfectly clear, stated: “Well, let me make my ruling specific so there'd be no misunderstanding of what I'm doing. I'm stating that there was an intelligent waiver of the right of counsel, intelligently done at the Indian River County Jail wherein Mr. Gore specifically stated after Miranda that he wished to proceed without counsel.” Gore's statement that he wanted to get something off his chest and then he wanted to see a lawyer was not confusing and in need of further clarification. See Cannady v. State, 427 So.2d 723 (Fla.1983). He indicated unequivocally that he wanted to talk to the police authorities and that after getting something off his chest, he then wanted to speak to a lawyer.

We reject Gore's contention that the trial court reversibly erred in allowing into evidence two prejudicial photographs, one depicting the victim in the trunk of Gore's mother's car and the other showing the hands of the victim behind her back. The test of admissibility of photographs such as these objected to by Gore is relevancy and not necessity. These photographs met the test of relevancy and were not so shocking in nature as to defeat their relevancy. Bush v. State, 461 So.2d 936 (Fla.1984); State v. Wright, 265 So.2d 361 (Fla.1972). These photographs placed the victim in Gore's mother's car, showed the condition of the body when first discovered by the police, and showed the considerable pain inflicted by Gore in binding the victim.

Gore also argues that the trial court should have granted his request for a mistrial due to an epileptic juror's interruption of defense counsel during closing argument. Defense counsel told the court that he had heard this juror who suffered a slight attack during trial say two or three times, “goddamn you, (laughing).” After the seizure, the jury was immediately taken from the courtroom, and the juror was given medical attention. The trial court denied Gore's motion for mistrial, substituted an alternate juror in place of the excused epileptic juror, and gave the following explanation and curative instruction to the jury:

THE COURT: Ladies and gentlemen of the jury, we are concerned about Mr. Brown's health. Under the circumstances I am excusing Mr. Brown so that he can go about his own personal affairs and I believe we do have someone in attendance with him. .... Ladies and gentlemen, any outburst that Mr. Brown made or may not have made—I did not hear—but I want to state to you, as I've stated to you from the very beginning, this case must be tried solely on the evidence and on the law and nothing else. .... Can each of you assure me that you will make your decision in this case solely on the law and nothing else? Is there anything that Mr. Brown has stated that would in any way influence this jury and carry any comments he may or may not have said into the jury room? All right. We're sorry for the interruption of the defense's argument. Mr. Phillips, you may proceed.

We find that the trial court's curative instruction was adequate. Whether substantial justice requires the granting of a mistrial is a determination within the sound discretion of the trial court, and the dealing with the conduct of jurors is also left to the discretion of the trial court. Doyle v. State, 460 So.2d 353 (Fla.1984). In the present case, we find no abuse of discretion. We further reject Gore's contention that the court reversibly erred in disallowing Gore's request for a demonstration in downtown St. Petersburg of the distance of 356 feet, erred in precluding certain testimony of Detective Pisani, erred in denying a mistrial due to certain comments and conduct of the prosecutor, erred in denying a mistrial upon Gore's motion relating to Detective Kheun's testimony, erred in restricting his voir dire of the jury relating to his cousin's involvement, and erred in denying his motion for judgment of acquittal or motion for new trial. We also reject as without merit Gore's challenge to the jury selection process. See Lara v. State, 464 So.2d 1173 (Fla.1985); Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). In addition to reviewing the record in light of the errors asserted by Gore, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. Finding no reversible error, we affirm his conviction.

Gore also challenges his sentence of death on a multitude of grounds. The jury recommended the death sentence, and the trial court entered the death sentence, finding as aggravating circumstances that the murder was committed while Gore was under sentence of imprisonment because he was on parole; that the murder was committed while Gore was engaged in the commission of two kidnappings and three sexual batteries; that the murder was committed for the purpose of avoiding or preventing a lawful arrest; that this murder was especially wicked, evil, atrocious, or cruel; and that this murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial court found none of the statutory mitigating circumstances to be applicable. It also considered “any other aspect of Gore's character or record” or any circumstances of the offense and found that no circumstance of the offense could in any way act in mitigation. Insofar as concerns “any other aspect of Gore's character or record,” the trial court found that Gore was affectionate and considerate to his family members; that a minister testified that he was a “born again” Christian since his arrest for murder; that he was not a deprived child and was not rejected by his family; that, on the contrary, he was given all the love and attention any parent could give a child; and that, based on all the evidence, the mitigating circumstance relative to “any aspect of Gore's character or record” does apply. The court concluded that sufficient aggravating circumstances exist to warrant imposition of the death penalty upon Gore and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

Constitutional challenges to Florida's death penalty statute identical to those now being made by Gore have been previously rejected by this Court.

Gore's argument that he is entitled to a statement of aggravating circumstances prior to trial is without merit. We have repeatedly rejected this claim. In Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982), we explained that the death penalty statute sets out the aggravating factors to be considered in determining whether the death sentence should be imposed and that this statute limits consideration to the statutory factors listed. Therefore, we concluded, there is no reason to require the state to notify defendants of the aggravating factors that the state intends to prove. The trial court did not err in instructing the jury during the penalty phase. It did not erroneously restrict Gore's closing argument during the penalty phase. Gore's arguments that the court erred in not directing a verdict of life and that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), applies and precludes the imposition of the death penalty in this case are also completely without merit.

He also contends that the aggravating circumstances that the murder was committed to prevent a lawful arrest and that the murder was heinous, atrocious, or cruel were not proven beyond a reasonable doubt. We disagree and hold that these circumstances were established by the evidence beyond a reasonable doubt. With regard to its finding of the existence of these circumstances, the trial court accurately explained:

The crime for which the Defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. This aggravating circumstance does apply in this case and therefore was considered by the Court regarding imposition of sentence because the evidence shows conclusively that the dominant or only motive for the Defendant murdering one of the victims who was in the process of escaping was to prevent her identification of him as the perpetrator of the kidnapping and to thereby avoid or prevent the Defendant's arrest. .... The crime for which the Defendant is to be sentenced was especially wicked, evil, atrocious or cruel. This aggravating circumstance does apply in this case and therefore was considered by the Court regarding imposition of sentence based upon the following evidence: The homicide victim was a seventeen year old girl who was hitchhiking along with her younger friend, another schoolgirl. After the Defendant and his cousin offered the two girls a ride, the Defendant pulled a gun on them and repeatedly threatened to kill the homicide victim when she started crying. The homicide victim and her friend were subsequently handcuffed together while enroute to the Defendant's residence. Upon arrival at the residence, the handcuffs were removed from the girls and the homicide victim was hog-tied so tightly that a welt formed on one of her limbs. While the homicide victim was inside the residence, the Defendant committed a sexual battery upon her between the intervals he committed three sexual batteries upon her friend. When the homicide victim managed to escape from the residence, the Defendant pursued her, firing his gun. After she fell on the ground, the Defendant grabbed her and began pulling her back towards the residence. The Defendant then shot her twice in the head, killing her. The horror and terror experienced by the homicide victim and the torture and pain inflicted upon her prior to her death places this murder case outside the norm of first-degree murder cases.

We also reject Gore's claim that the evidence does not support the trial court's finding that this murder was cold, calculated, and premeditated without any pretense of moral or legal justification. The facts of this case are sufficient to show the heightened premeditation required for the application of this aggravating circumstance. We find no merit to Gore's other challenges to his death sentence.

Accordingly, finding no reversible error and that the death penalty is proportionately warranted under the circumstances, we affirm Gore's convictions and the imposition of the death sentence. It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

Gore v. Dugger, 763 F.Supp. 1110 (M.D. Fla. 1989). (Federal Habeas - DP Vacated)

After conviction for murder in the first degree, kidnapping, and sexual battery was affirmed by the Florida Supreme Court, 475 So.2d 1205, petition was filed for writ of habeas corpus. The District Court, Hodges, J., held that: (1) petitioner was entitled to new sentencing hearing as a result of exclusion at sentencing of evidence that he had been drinking and/or taking pills at or about time murder was committed; (2) there was no error during death penalty phase of trial; and (3) defense counsel was not ineffective. Petition granted.

HODGES, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a state prisoner under sentence of death. The petition was filed on February 14, 1989, together with an application for stay of the Petitioner's execution then set for February 16, 1989. In order that the Petitioner's claims could be judiciously considered, I entered a stay of execution on February 14, 1989.

The complete record has now been compiled. The issues have been briefed and the Petitioner's claims have been fully considered. Upon due consideration, I have concluded that Petitioner's claim based on Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) is meritorious and that the petition must be granted in order to afford the Petitioner a new sentencing hearing. With respect to all other claims, the petition is without merit and is denied.

FACTS SURROUNDING THE OFFENSE

The Supreme Court of Florida, in disposing of the Petitioner's direct appeal, Gore v. State, 475 So.2d 1205 (Fla.1985), recited the facts of the case as follows:

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

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

HISTORY OF THE CASE

The Petitioner was indicted, tried and found guilty of first degree murder, two counts of kidnapping and three counts of sexual battery. Following a sentencing hearing, the Petitioner was sentenced to death for first degree murder. (R. 845–47).FN1 The trial court also sentenced Petitioner to life imprisonment on each of the two counts of kidnapping, to be served concurrently, and on each of the three counts of sexual battery, to be served concurrently with each other but consecutively to the sentences imposed on the kidnapping charges. (R. 848–54). FN1. The record of the proceedings in the Petitioner's trial and direct appeal will be referred to by the symbol “R” followed by the appropriate page number. The record of the proceedings in the state court post conviction evidentiary hearing will be referred to by the symbol “EH” followed by the appropriate page number.

On August 22, 1985, the Florida Supreme Court affirmed the convictions and sentences. Gore v. State, 475 So.2d 1205 (Fla.1985). The United States Supreme Court denied certiorari on February 24, 1986. Gore v. Florida, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986). On February 24, 1988, the Petitioner filed a motion for post conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., in the state trial court. Shortly thereafter, the Governor of Florida signed Petitioner's first death warrant. Execution was scheduled for May 4, 1988.

On April 4, 1988, Petitioner filed a petition for a writ of habeas corpus in the Florida Supreme Court. The state trial court conducted an evidentiary hearing on Petitioner's Rule 3.850 motion on April 15, 18 and 19, 1988. At the conclusion of the hearing, the court entered an order denying Petitioner's motion. (EH 1121–26). The Florida Supreme Court consolidated Petitioner's appeal from the trial court's denial of his Rule 3.850 motion with his petition for a writ of habeas corpus and, following oral argument, granted Petitioner a stay of execution. On August 18, 1988, the Court affirmed the trial court's denial of Petitioner's Rule 3.850 motion and also denied his petition for a writ of habeas corpus. Gore v. Dugger/Gore v. State, 532 So.2d 1048 (Fla.1988).

The Governor of Florida signed Petitioner's second death warrant on January 31, 1989. The Petitioner filed the present petition in this Court on February 14, 1989, together with an application for stay of the execution then scheduled for February 16. A stay was entered due to the short time remaining before the scheduled execution and the necessity that the Court review the voluminous record.

The State does not dispute that Petitioner has exhausted his state remedies as required by 28 USC § 2254; and, as previously noted, the state trial court has conducted an evidentiary hearing. The court considered and determined at that time the Petitioner's claims, including his claim of ineffective assistance of counsel. While factual findings of the state court are entitled to a presumption of correctness under 28 USC § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), claims of ineffective assistance of counsel present mixed questions of law and fact, and as such, the state court's determination of ineffective assistance claims are not entitled to that presumption. Douglas v. Wainwright, 714 F.2d 1532, (11th Cir.1983), vacated 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874, aff'd on remand 739 F.2d 531 (11th Cir.1984). Nevertheless, a review of the transcript of the post conviction proceedings in the state court demonstrates that the Petitioner was afforded a full and fair hearing within the meaning of 28 USC § 2254(d)(6), and that transcript, taken together with the trial record, excludes the necessity of an evidentiary hearing on any of the claims now before this Court.FN2

FN2. See Rule 8, Rules—Section 2254 cases (adopted pursuant to 28 USC § 2254). Petitioner contends that the state court did not give him a complete hearing because it did not receive evidence on his claim concerning the ineffectiveness of his mental health expert. As is more fully discussed infra, given the Court's resolution of this issue, no hearing is needed on this claim.

The Petitioner has presented seventeen claims of alleged constitutional deprivation. Each will be considered in turn.

I

In his first claim Petitioner asserts that his rights under the Sixth, Eighth and Fourteenth Amendments were violated when the state trial court precluded him from presenting certain mitigating evidence to the sentencing jury in violation of the Supreme Court's decisions in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In Hitchcock and Lockett the Court made it clear that the Eighth Amendment, applicable to the states through the Fourteenth Amendment, requires that a capital sentencing jury not “be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record that the defendant proffers as a basis for a sentence less than death.” Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989). (emphasis in original) (citations omitted). In this case Petitioner contends that the trial court committed Hitchcock/ Lockett error when it excluded mitigating evidence on two subjects: Petitioner's drug and alcohol abuse, and the dominance exercised over him by his cousin, Frederick Waterfield. With respect to his use of drugs and alcohol, Petitioner attempted to introduce evidence at his sentencing hearing to show that he had been drinking and taking pills around the time of the commission of the offenses. Defense counsel stated to the court that he planned to have members of Petitioner's family testify both that he had been acting strangely during the days prior to the murder and that, because of the way he was acting when they saw him shortly after his arrest, they believed that he had been drinking. Petitioner also sought to introduce evidence that, after the crime, a half empty bottle of vodka and some pills were found in his bedroom. The trial judge refused to admit any of this evidence ruling that it was irrelevant because there was no direct evidence that Petitioner was drinking while the offenses were being committed and because there was testimony from the surviving victim and law enforcement personnel to the effect that Petitioner did not appear drunk. (R. 3047–56).

In evaluating Petitioner's Lockett/Hitchcock claim, this Court is, of course, bound by the Eleventh Circuit's interpretation of those decisions. One of the Circuit's most recent decisions on the point is Demps v. Dugger, 874 F.2d 1385, 1389–90 (11th Cir.1989). Because the Demps case produced an opinion by each of the members of the panel, however, it is necessary to review those opinions in some detail to determine the current state of Lockett/ Hitchcock law in the circuit. In Demps the petitioner was convicted of first degree murder and was sentenced to death for the killing of a fellow prison inmate. Demps challenged his sentence on Hitchcock grounds by arguing that the trial court's instructions to the jury impermissibly precluded them from considering nonstatutory mitigating evidence. The Court of Appeals agreed, concluding that “the judge gave an instruction functionally identical to that [erroneously] given in Hitchcock.” Demps, at 1389. The three judges on the panel did not agree, however, on how to properly analyze and evaluate the Hitchcock claim.

In the lead opinion for the court, Judge Fay began his analysis by stating that Hitchcock error can be harmless under “the strict Chapman criterion.” Id. at 1389 citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). And, for a Hitchcock error to be harmless, a court must, after an in depth review of the entire record, “determine beyond a reasonable doubt that the proposed mitigating evidence regarding the defendant's character would not have influenced the jury to recommend a life sentence.” Id. Judge Fay then examined each of the four types of evidence which Demps alleged would have influenced the jury to recommend life and concluded that since none of the evidence excluded from the jury's consideration would have affected its sentencing recommendation, the Hitchcock error was harmless and resentencing not required. Id. at 1389–91. FN3

FN3. The four types of evidence offered by Demps and analyzed by Judge Fay were as follows: (1) Evidence of “honorable military combat service.” Judge Fay concluded that exclusion of this evidence from the jury's consideration was harmless because Demps's service record was not “honorable” at all. He was given one special court-martial, numerous other punishments, and a dishonorable discharge which was eventually upgraded to a general discharge. Judge Fay thus concluded that Demps's military record did not reflect favorably on his character and would not have influenced the jury to recommend life. (2) Evidence of a history of drug abuse. Judge Fay concluded that exclusion of this evidence from the jury's consideration was also harmless because Demps's drug addiction predated his incarceration on unrelated charges and that no evidence existed to show that drugs or treatment for drug dependence influenced his participation in the prison murder. (3) Evidence of a good prison record. Judge Fay concluded that exclusion of this evidence from the jury's consideration was harmless because Demps's prison record was not good and, in fact, indicated that he had a record of continuing disciplinary problems. (4) Evidence that his two co-perpetrators received life sentences. Judge Fay concluded that exclusion of this evidence from the jury's consideration was harmless because Demps's prior criminal record was more severe than his co-perpetrators and that it was sufficient to justify imposing a more serious penalty. Id. at 1389–91.

Judge Clark, in his special concurrence, agreed with Judge Fay that Demps's petition should be denied but disagreed with his handling of the Hitchcock claim because the analysis was based on the harmlessness of the Hitchcock error. Id. at 1394 (Clark, J., specially concurring). Judge Clark concluded that “[t]his case is not a potential Hitchcock error case. Although there was an erroneous Hitchcock instruction, there has been no showing that any credible non-statutory mitigating evidence exists.” Id. at 1395 (Clark, J., specially concurring). Since Judge Clark concluded that the “evidence” Demps wished to present to the jury did not reach the threshold of being Hitchcock mitigating evidence (because there were no facts to substantiate his claims), he did not believe that a Chapman harmless error analysis was necessary or appropriate. Id. at 1396 (Clark, J., specially concurring). Indeed, Judge Clark found the case to be comparable to Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987), cert. denied, 485 U.S. 982, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988), in which the court found:

Here, however there simply were no nonstatutory mitigating circumstances to consider. Clark did not introduce any evidence that would support the existence of a nonstatutory mitigating circumstance. As explained, supra, Clark's counsel, after her investigation, made a tactical decision that any testimony at the penalty phase could only prove harmful. Thus, Clark failed to introduce any mitigating evidence whatever. Clark, 834 F.2d at 1569 quoted in Demps, at 1396 (Clark, J., specially concurring).

Although Judge Clark recognized that the Clark court had held that any Hitchcock error in that case was harmless under Chapman, he stressed that “harmless” was an incorrect label because “[w]here there is no nonstatutory mitigating evidence there can be no Hitchcock error and harmlessness need not be considered.” Id. Further, he rejected the application of a harmless error standard in a case in which legitimate Hitchcock evidence might be offered stating that “[i]f such evidence exists, the case should be returned to the state court for resentencing ...” Id. at 1395 (Clark, J., specially concurring) (citations omitted). Judge Clark explained that

I deem it an inappropriate function for a federal court to weigh nonstatutory mitigating evidence against aggravating circumstances and decide whether a petitioner should get the death penalty as an alternative to a resentencing hearing. That is an invasion of the separate states' rights and obligations for their courts to insure appropriate sentencing in death penalty cases. ... If there is credible evidence demonstrated by the petitioner, we should return the case to the state court for resentencing. Id. at 1396 (Clark, J., specially concurring).

Dissenting on the Hitchcock issue was Judge Johnson. Initially, citing Clark v. Dugger, Judge Johnson agreed with Judge Fay that Hitchcock error may be harmless in some circumstances, but he immediately qualified his statement by noting that “this Court has only once found Hitchcock error to be harmless, see Clark, supra, and the Supreme Court has never found the error to be harmless in its four reversals of death sentences for failure of the sentencer to consider non-statutory mitigating circumstances.” FN4 Id. at 1393 (citations omitted) (Johnson, J., concurring in part, dissenting in part). Judge Johnson further noted that “[t]he Knight decision FN5 leaves little room for the application of harmless error analysis, except in the situation where non-statutory mitigating evidence could have been proffered.” Id.; see also Knight v. Dugger, 863 F.2d 705 (11th Cir.1988). Thus, Judge Johnson agreed with Judge Clark that applying a harmless error analysis to a Hitchcock error is inappropriate, except for the situation in which no mitigating evidence is offered (a circumstance which, as discussed supra, Judge Clark considers to be outside the realm of Hitchcock altogether).

FN4. Subsequently, as discussed infra, in a recently released opinion, Tafero v. Dugger, 873 F.2d 249, 252–53 (11th Cir.1989) (per curiam), the Circuit once again found a Hitchcock error to be harmless. FN5. In Knight v. Dugger, 863 F.2d 705 (11th Cir.1988), the Court of Appeals rejected the State's contention that the failure of the jury to consider all mitigating factors was harmless error because of the large number of aggravating factors that had been found. The Knight court stated: No authority has been furnished for this proposition and it seems doubtful that any exists. The State's theory, in practice, would do away with the requirement of an individualized sentencing determination in cases where there are many aggravating circumstances. It is this requirement, of course, that is at the heart of Lockett and its progeny. Id. at 715.

Judge Johnson's disagreement with Judge Clark, and his dissent from the result reached by the court, stemmed from the fact that he believed the case should be remanded to the district court for inquiry into whether Demps had any legitimate mitigating evidence to present instead of having of the Court of Appeals make that initial factual determination. Judge Johnson believed that if any of Demps's claims were true, then excluding them from the jury's consideration was constitutional error. Id. at 1394 (Johnson, J., concurring in part, dissenting in part). Thus, Judge Johnson concluded that “[t]he determination of whether the error committed in Demps' case was harmless or not depends entirely on the truth of his claim that unconsidered mitigating factors existed.” Id.

A synthesis of the three opinions in Demps leads the Court to conclude that the following propositions were adopted by a majority of the panel and thus constitute binding precedent which this Court must apply. First, a district court must determine, when reviewing a Hitchcock claim, whether the mitigating evidence sought to be placed before the jury is, in fact, mitigating evidence. In making this determination the district court may review not only the evidence presented on the issue by the petitioner but may also consider any evidence advanced by the State which contests the truthfulness or relevancy of the petitioner's evidence. If the court concludes that the evidence offered by the petitioner is either patently untrue or irrelevant, i.e., that it is not mitigating, then it was not error (or, at worst, was harmless error) for the trial court to have precluded the jury from considering it. Second, however, if the excluded evidence does have some mitigating value, then the court should not attempt to balance the weight of all the evidence presented at the sentencing hearing by conducting a harmless error review, but instead should vacate the death sentence and return the case to the state court for resentencing.

The Court of Appeals' recent decision in Tafero v. Dugger, 873 F.2d 249, 252 (11th Cir.1989) (per curiam), does not alter this conclusion. In Tafero a different panel of the Court (consisting of Judges Vance, Kravitch and Hatchett) stated that Hitchcock error could be harmless and held that it was so in that case. Id. at 252. The court noted, however, that the case parallels the situation in Clark v. Dugger. Tafero's counsel, like the Clark defendant's counsel, purposely presented no non-statutory mitigating evidence.... The Clark court held that any Hitchcock error was harmless because of the defendant's counsel's failure to present non-statutory mitigating evidence. Likewise, we conclude that any Hitchcock error by Tafero's counsel was harmless. Id. at 252 n. 5.

Tafero, therefore, when examined in light of its facts, does not affect the Court's understanding of the law of the Circuit on the Hitchcock issue as established by Demps; and, applying that law to the facts of this case leads the Court to conclude that constitutional error was committed during Petitioner's sentencing hearing. The truthfulness of the alcohol and drug evidence sought to be introduced, the presence of the half empty bottle of vodka, the pills and the Petitioner's relatives' statements that he behaved as though he were under the influence, has not been questioned.FN6 Nor can the evidence be considered irrelevant. The evidence could support an inference that the Petitioner had been drinking and/or taking pills at or about the time the murder was committed. This certainly can be considered as mitigating by the sentencing jury.FN7 See e.g., Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1987); Fead v. State, 512 So.2d 176 (Fla.1987). Thus, although in the totality of the circumstances the Petitioner's mitigating evidence may not be strong, it is for the state jury and judge to decide what sentence is appropriate when all mitigating factors are considered. Since the jury did not have the opportunity to consider all mitigating evidence, the Petitioner's sentence of death was imposed in violation of the Eighth Amendment and relief must be granted on this claim.FN8

FN6. Certainly, though, the State has sought to disprove the truthfulness of the inference Petitioner hopes the jury draws from the evidence, that he was intoxicated at the time of the murder. However, this attack on the truthfulness of the ultimate conclusion is qualitatively different from an attack on the truthfulness or reliability of the actual evidence itself. Unlike the situation in Demps in which the State sought to disprove the evidence of the existence of an honorable discharge, the State does not argue here that the pills or vodka bottle were not found in Petitioner's room. Further, an attack on the inference a petitioner hopes a jury draws from truthful evidence cannot be adequate to sustain the exclusion of the evidence itself. Otherwise, a trial court could preclude a defendant's mother from testifying that her child was always a good boy when his record is to the contrary. Clearly this type of character evidence cannot be barred under Lockett/Hitchcock. Instead, it is in the province of the jury to weigh its credibility. FN7. The jury, of course, may also consider the State's evidence which it contends shows that the Petitioner was not intoxicated at the time of the offense. FN8. As previously indicated, Petitioner has raised one other Lockett/ Hitchcock claim arguing that the trial court improperly excluded from the jury's consideration evidence concerning Waterfield's domination over him. Given the Court's determination that a resentencing is mandated because of the exclusion of the drug and alcohol evidence, the Court need not consider this claim. The Court notes that in its opinion on Petitioner's Rule 3.850 motion, the Florida Supreme Court has already stated that this domination evidence should have been admitted at the sentencing phase. Gore v. Dugger, 532 So.2d 1048, 1050 (Fla.1988). Thus, on resentencing the Petitioner will also be able to introduce this evidence.

II

In his second claim Petitioner contends that he was deprived of his due process and equal protection rights under the Fourteenth Amendment, as well as his rights under the Fifth, Sixth, and Eighth Amendments, because his court-appointed mental health expert failed to conduct a competent and professionally appropriate evaluation of him thereby overlooking numerous mitigating factors which could have been presented to the sentencing jury. More specifically, Petitioner asserts that Dr. David Tingle, the psychiatrist appointed by the Court at the Petitioner's request,FN9 rendered professionally inadequate services in that he failed:

FN9. The Court notes that in Petitioner's motion for the appointment of psychiatrists and psychologists, he specifically requested “an order authorizing the defendant to retain the services of Dr. David Tingle, M.D., a competent and qualified psychiatrist.” (R. 32). The trial court granted Petitioner's motion and appointed Dr. Tingle. (R. 413). to follow or even understand the simple requests of counsel regarding the scope of the evaluation, to conduct proper testing, and to review the amply available and extensive background materials and collateral data which would have demonstrated [Petitioner's] life-long mental disabilities, his history of severe alcohol and substance abuse, the effects of intoxicants on his character, personality, behavior, and control, and a veritable plethora of information which would have, if properly assessed, evaluated, and related in a professionally competent manner, established myriad statutory and non-statutory mitigating circumstances. (Petition for writ of habeas corpus, p. 75). Petitioner alleges that because of Dr. Tingle's inadequate assistance with respect to investigating and evaluating potential mitigating evidence to be presented at the penalty phase, his sentence of death was imposed in an unfair and unreliable manner. Petitioner requests that this Court conduct an evidentiary hearing since the state court refused to hold a hearing on this claim.

In sum, Petitioner's claim is that his court-appointed psychiatrist rendered him ineffective assistance; and he relies on the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to support his contention that the Due Process Clause requires that a criminal defendant be given competent psychiatric assistance to aid him in preparing his defense, including the presentation of mitigating circumstances. Ake and its progeny, however, while establishing a limited right to court-appointed psychiatric assistance in presenting a defense, do not stand for the expansive proposition Petitioner asserts.

In Ake, the Supreme Court considered an indigent capital defendant's need for psychiatric assistance both at trial and at the penalty phase. With respect to the guilt phase, the Court held that as a matter of due process when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. Ake, 105 S.Ct. at 1097. The Court's discussion of the need for psychiatric assistance during the penalty phase was considerably more narrow. The Court focused on the fact that in some states the jury is allowed to consider psychiatric evidence of the defendant's future dangerousness in fixing or recommending sentence. The Court held In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing hearing. Id. (emphasis added). See also Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987).

In this case, Petitioner does not claim that he was denied the assistance of a psychiatrist in determining whether to present an insanity defense; hence, Ake 's first principle is inapplicable. The Court concludes that Ake 's second principle is similarly inapplicable because “[u]nlike the sentencing situation in Ake, [Petitioner's] prosecutor had no need to present psychiatric evidence to show an aggravating factor, and he presented none. The dangers and inequities which concerned the Court in Ake consequently did not exist.” Bowden v. Kemp, 767 F.2d 761, 764 n. 5 (11th Cir.1985). Ake simply stands for the proposition that a defendant must be afforded psychiatric assistance at the penalty phase to rebut the State's own psychiatric evidence. Where no such evidence is presented, Ake confers no constitutional right to state afforded psychiatric assistance at the penalty phase. Since, as previously noted, the State presented no psychiatric testimony during the penalty phase of Petitioner's trial, he cannot claim to have a federal right to the assistance of a psychiatrist at that phase of trial.

Petitioner also argues that the denial of the effective assistance of a psychiatrist at the penalty phase violated his rights under Florida law. Two recent decisions of the Florida Supreme Court appear to give criminal defendants a slightly expanded right under state law to the assistance of a psychiatrist at the penalty phase when there are “clear indications of either mental retardation or organic brain damage.” State v. Sireci, 502 So.2d 1221, 1224 (Fla.1987) citing Mason v. State, 489 So.2d 734 (Fla.1986). In this case, however, the trial court specifically found that the Petitioner's right to a psychiatrist under state law was not violated and the Florida Supreme Court agreed. This Court's review of that decision is limited to the question of whether the state courts' finding on an issue of state law is “so unprincipled or arbitrary as to somehow violate the United States Constitution.” Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 3423, 77 L.Ed.2d 1134 (1983). Upon review of the record, the Court cannot say that the state courts' decision was arbitrary or irrational. Petitioner, therefore, has failed to demonstrate that he is entitled to relief. Accordingly, this claim is DENIED.

III

Petitioner asserts that he was convicted on the basis of statements obtained in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. More specifically, Petitioner contends that the trial court impermissibly allowed certain statements he gave to law enforcement personnel to be admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Petitioner argues that the statements he gave to Detectives Bevis and DuBose at the Sheriff's Office, which were later admitted into evidence at his trial, were obtained only after he had previously requested the presence of counsel.

Upon review of the record, the Court cannot agree with Petitioner that there was a Miranda/Edwards violation in this case. The testimony presented to the trial court during its hearing on Petitioner's motion to suppress discloses that immediately upon arrest at his parents' home Petitioner was read the Miranda warnings. (R. 1222, Testimony of Lt. Curt Keuhn). In response, Petitioner indicated that he “had a lot of things to get off his chest” and then he wanted to speak with a lawyer. (R. 1222, Testimony of Lt. C. Keuhn; R. 1244 Testimony of Ofc. C.C. Walker; R. 1307, Testimony of Det. Neil Bevis). Upon his arrival at the Sheriff's Office, Petitioner was reminded of his Miranda rights and he once again indicated a willingness to make certain statements without a lawyer being present. (R. 1311–12, Testimony of Det. N. Bevis). It was these statements which were admitted into evidence and about which Petitioner now complains.

Petitioner's argument that he explicitly or equivocally invoked his right to counsel is without merit. Petitioner clearly and unambiguously stated that he understood his rights FN10 and that he wished to make certain statements to police before speaking with an attorney. Petitioner's statements both immediately after his arrest and again at the Sheriff's Office demonstrate an intent to waive his Miranda rights at least to the extent of making certain initial statements. Petitioner's mere mentioning of his desire to consult with an attorney at some time in the future (as opposed to a present request for an attorney) was not an equivocal request for counsel sufficient to require that the police terminate questioning until clarified. See Bruni v. Lewis, 847 F.2d 561, 564 (9th Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988); see also United States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985) (the word attorney has no talismanic qualities; a defendant does not invoke his right to counsel merely by mentioning the word). Therefore, it was not erroneous for the trial court to deny Petitioner's motion to suppress and to permit his statements to be admitted into evidence. FN10. The Court notes that Petitioner was an auxiliary police officer who was trained in arrest procedures and Miranda rights. Accordingly, this claim is DENIED.

IV

A jury can find an aggravating circumstance under Florida Statute § 921.141(5)(h) if they find that “[T]he capital felony was especially heinous, atrocious, or cruel.” The Petitioner contends that the Florida Supreme Court has interpreted this statutory aggravating circumstance in an unconstitutionally overbroad manner in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and the Eighth and Fourteenth Amendments. The Petitioner further contends that the trial court's instructions to the jury failed to guide the jury's sentencing discretion and provided “no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980). These arguments are without merit.

The Florida Supreme Court has held that the “especially heinous, atrocious or cruel” statutory language is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973). See also Halliwell v. State, 323 So.2d 557, 561 (Fla.1975); Tedder v. State, 322 So.2d 908, 910 (Fla.1975); Alford v. State, 307 So.2d 433, 445 (Fla.1975). In light of the construction placed upon § 921.141(5)(h) in these cases, the provision is not constitutionally overbroad. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976).

In instructing the jury with respect to this statutory aggravating circumstance, the trial judge stated, in pertinent part: Now, the aggravating circumstances that you may consider are limited to any of the following that are established by the evidence ... Now, the crime—the fourth, the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel. Now, this aggravating circumstance is only applicable if the State of Florida has proven beyond a reasonable doubt that the capital felony was accomplished by such additional acts as to set the crime apart from the norm of capital felonies. The murder must have been a consciousless (sic) or pitiless crime which was unnecessarily torturous to the victim. (Tr. 3232–33).

This clarifying instruction substantially complies with the limiting construction placed upon § 921.141(5)(h) by the Florida Supreme Court as approved in Proffitt. Moreover, the Court agrees with the Florida Supreme Court that this aggravating circumstance was established beyond a reasonable doubt. Gore v. State, 475 So.2d 1205, 1210–11 (Fla.1985). Section 921.141(5)(h) is not unconstitutional as applied in this case. Accordingly, this claim is DENIED.

V

The Petitioner also contends that the aggravating circumstance as set forth in Fla.Stat. § 921.141(5)(i) is unconstitutional on its face and as applied in this case. Section 921.141(5)(i) allows the sentencing court to find an aggravating circumstance where “the ... homicide ... was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” The Petitioner argues that this aggravating factor does not genuinely narrow the class of persons eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1982).

The Florida Supreme Court has held that § 921.141(5)(i) requires a “heightened” level of premeditation and, therefore, does narrow the class of persons eligible for the death penalty. In Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), the Court held that “the level of premeditation needed to convict in ... a first degree murder trial does not necessarily rise to the level of premeditation in subsection (5)(i).” Id. at 1032. See also Card v. State, 453 So.2d 17, 23 (Fla.1984), cert. denied 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984) (“premeditation must rise to a level beyond that which is required for a first degree murder conviction”). In Brown v. State, 473 So.2d 1260 (Fla.1985) cert. denied 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), the court held that “[T]he factor places a limitation on the use of premeditation as an aggravating circumstance in the absence of some quality setting the crime apart from mere ordinarily premeditated murder.” Id. at 1268. See Combs v. State, 403 So.2d 418, 421 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). The Eleventh Circuit Court of Appeals en banc has held that, given these limiting constructions, § 921.141(5)(i) sufficiently narrows the class of defendants eligible for the death penalty. Harich v. Dugger, 844 F.2d 1464, 1468–69 (11th Cir.1988) ( en banc ) (specifically adopting relevant portions of the panel opinion in Harich v. Wainwright, 813 F.2d 1082, 1101–04 (11th Cir.1987)). Subsection (5)(i) is, therefore, not unconstitutional on its face.

The Petitioner further contends, however, that this aggravating circumstance has been inconsistently applied by the Florida Courts. This same argument was rejected in Harich v. Dugger, 844 F.2d 1464, 1468–69 (11th Cir.1988) ( en banc ). The Court finds the Petitioner's arguments in this respect similarly unpersuasive. “[W]hile the line between ‘ordinary’ premeditation and the ‘heightened’ cold, calculated premeditation is a thin one, petitioner has not shown that the state has applied this factor in an unconstitutionally arbitrary manner.” 813 F.2d at 1103. See Harich v. Dugger, 844 F.2d 1464, 1468–69 (11th Cir.1988) ( en banc ). Moreover, the Court agrees with the Florida Supreme Court that the facts of this case are sufficient to show the heightened premeditation required for the application of subsection (5)(i). Gore v. State, 475 So.2d 1205, 1211 (Fla.1985). Accordingly, this claim is DENIED.

VI

Petitioner seeks relief on the basis that defense counsel was improperly restricted in making his closing argument in the penalty phase of the case. Petitioner was prosecuted for first degree murder under two theories: premeditated murder and felony murder. During the closing arguments following the penalty phase, Petitioner's counsel sought to argue that if the jury believed that Petitioner's codefendant, Freddy Waterfield, had committed the murder and that Petitioner's conviction was based on felony murder, then the aggravating factors that the capital murder was heinous, atrocious, or cruel and cold, calculated, and premeditated did not apply to Petitioner. FN11 The trial court precluded this argument, finding that it misstated the law.

FN11. Petitioner's counsel stated: if any of you decided that David Gore ... was guilty of first-degree murder because Freddy had done it and that was felony murder ... I submit to you that these aggravating circumstances that Mr. Stone is arguing for, many of them don't apply. (R. 3222–26). F.S.A. § 921.141(5)(h) and (i) list the two aggravating factors that Petitioner argued did not apply: (h) The capital felony was especially heinous, atrocious, or cruel. (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

A conviction based on felony murder when the defendant was not the triggerman would not, as a matter of Florida law, preclude the jury from considering these two aggravating factors during the sentencing phase. The State properly points out that the legal threshold to apply an aggravating factor is the defendant's conviction of a capital felony as opposed to the defendant's actual role in the crime. Defense counsel erroneously sought to argue that heinous and cruel, cold and calculated could only apply in the instance that the defendant did the actual killing. The Court properly prevented counsel from making that argument.FN12 United States v. Trujillo, 714 F.2d 102 (11th Cir.1983). Hence, the trial court did not deny Petitioner's Sixth, Eighth, or Fourteenth Amendment rights by restricting his closing argument.

FN12. The judge did point out that defense counsel could argue that the facts did not support finding that aggravating factor: I'll permit you to argue that the crime was not committed in a cold, calculated, way ... and it's not an aggravating circumstance; but I will not permit you to argue that simply because Mr. Waterfield did the killing, that is not an aggravating circumstance. (R. 3225) [and in the same conversation the Court also stated] I think you can argue that the fact it may not be premeditated, the fact that somebody else did the shooting ... (R. 3224). Accordingly, this claim is DENIED.

VII

In his seventh claim, Petitioner asserts that his right to an impartial jury under the Sixth Amendment and the Florida Constitution was violated because the trial court allegedly prevented Petitioner's counsel from engaging in adequate voir dire examination of the jury panel. During voir dire, Petitioner's counsel sought to ascertain whether any juror possessed such a predisposition toward the death penalty that he or she would be unable to recommend life if Petitioner was found guilty of first degree murder. Defense counsel asked: Concerning the death penalty, is there someone here that feels so strongly in favor of the death penalty that you would never under any circumstances be able to recommend mercy in a case in which the defendant was convicted of first degree murder? (R. 1595). The Court sustained the State's objection to that question on the grounds that “mercy” was not referred to in the death penalty statute.

Though sustaining the State's objection may have been incorrect under Florida law, the trial court's action did not prejudice defendant's right to an impartial jury.FN13 The Sixth Amendment limits the State's power to exclude jurors based on their views about capital punishment. However, a juror may be excluded for cause if his views

FN13. The Supreme Court of Florida decided in Petitioner's appeal that pursuant to Florida law defense counsel should have been permitted to ask the jurors whether they could have recommend mercy. Gore v. State, 475 So.2d 1205, 1207 (Fla.1985) However, the Court also found that the trial court's sustaining the state's objection “was harmless error beyond a reasonable doubt.” Id. There was no showing of prejudice to the defendant because The jury was thoroughly questioned in regard to their attitudes toward the death penalty and whether they felt it should be automatically imposed or whether they would follow the court's instructions and make sure the circumstances were proved to support it before they would consider it. Id.

would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). Indeed, “[t]he State may insist ... that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” Id. see also Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The record here clearly shows that the Court inquired of the prospective jurors whether they had any bias or prejudice which would prevent them from being impartial or from following the Court's instructions. R. 1497–1502). Although the trial court did not allow defense counsel to use the term “mercy,” the court did not foreclose counsel from asking jurors whether, given a guilty verdict, “they cannot render an advisory opinion back to this Court with reference to life imprisonment not to exceed twenty-five years.” (R. 1596).FN14 Overall, the record demonstrates that the subject of predisposition in favor of the death penalty was adequately addressed and that Petitioner's Sixth Amendment right to an impartial jury and an adequate voir dire were not violated. Both the judge as well as counsel for both sides took great pains to ascertain whether the jury could fulfill its duty abide by the law and render an impartial verdict and sentence.

FN14. At the conclusion of the bench conference following the objection to the use of the term “mercy,” the Court told the jury: The bottom line is that you would follow the instructions of the law that will govern this case, and with that law and the evidence base your decision only on the law and the evidence. In other words, is there anyone that would not follow the law in this case. I know the reservations that some of you have about the capital death penalty, and we're going to get into that, but with those reservations, is there anyone that would not follow the Florida law that governs this case and that you would be instructed by me as the judge in this case with the reservations of those individuals as to capital punishment? (R. 1596–97). Accordingly, this claim is DENIED.

VIII

Petitioner's eighth claim concerns two incidents during which the trial court allegedly prevented defense counsel from presenting exculpatory testimony. In reviewing both instances, the Court does not find that Petitioner's Sixth Amendment right to confront witnesses or present evidence was violated.

First, Petitioner asserts that the trial court violated his right to present witnesses when it barred defense counsel from presenting a witness to impeach the testimony of Michael Rock. Mr. Rock testified that he saw Petitioner shoot the victim. Defense counsel asked Mr. Rock in his cross examination whether Rock recalled “telling Detective Pisani that you couldn't see his face?” To which Rock replied, “Well I told him I couldn't see his whole face, but part. I only saw part of it, but I told him I didn't see his whole face.” (R. 1994–95). Defense counsel then sought to impeach Mr. Rock by having Detective Pisani testify: “I asked [Rock] did he have a mustache and I said ‘Do you know?’ Rock responds, ‘I really couldn't see his face ‘cause he kind of held it down.’' The trial court barred this testimony pursuant to Florida Evidence Code § 90.614(2) because defense counsel had failed to lay a proper predicate for the introduction of impeachment testimony. (R. 2660–64).

Florida Evidence Code § 90.614(2) requires: Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it ...

The Court agrees with the State that defense counsel could very easily have asked Rock if he had told Detective Pisani “I really couldn't see his face cause he held it down.” Here, defense counsel did not fully and accurately quote the prior, allegedly inconsistent statement to the witness during cross examination and did not fulfill the prerequisite of the rule for subsequent presentation of the impeachment testimony. Moreover, the statement made by the witness during cross examination was not materially different from the earlier statement in the sense that the witness admitted that his view of the Petitioner's face was impaired.

Second, defense counsel sought to introduce exculpatory statements allegedly made by Willie Webb who lived next door to the place where the victim was shot. The statements were made to Dorothy Stokes. Webb is alleged to have said that he heard a scream and shots, then immediately saw Waterfield come around the corner in his truck, jump out and run into Webb's yard with a gun in his waistband. The trial court refused to let Ms. Stokes testify to Webb's statements on the basis that the statements did not qualify as an excited utterance exception to the hearsay rule. This was nothing more than an evidentiary ruling which was not clearly wrong, and the Court does not find any constitutional infirmity in that ruling. Accordingly, this claim is DENIED.

IX

In his ninth claim, Petitioner argues that his sentence must be overturned because the court allowed the State to introduce evidence of non-statutory aggravating factors at Petitioner's capital sentencing proceeding. Four months prior to his conviction in this case, Petitioner had been serving a prison sentence for an earlier conviction of the offense of armed trespass. This conviction was based on Petitioner's entering into a woman's car and hiding in the back seat with a loaded .357 magnum and a pair of handcuffs. Petitioner's prior imprisonment was made known to the jury. However, the jury was not told the reason for that imprisonment. (R. 3070–3073). The trial court had previously ruled that armed trespass did not qualify as an aggravating circumstance.

The first reference to the trespass later arose when Petitioner's mother testified about Petitioner's character and his religious conversion while he was in prison on the prior charge. This effectively “opened the door” and, on cross examination, the State questioned Petitioner's mother about the circumstances of the trespass since she had testified that Petitioner was “not capable of doing this” and that she had “never worried from day one until now” that her son would get into such trouble. Petitioner's mother admitted that he had been sent to prison for crouching in the back of a woman's car with a gun and handcuffs. (R. 3154–55). The State later referred to this incident in its closing argument when it questioned whether Petitioner's alleged religious conversion was sincere in light of his past behavior. (R. 3213).

Petitioner contends that the two references to the armed trespass unlawfully introduced the aggravating circumstance of a prior conviction of a felony involving the use or threat of violence. F.S.A. 921.141(5)(b). The references to the circumstances surrounding the armed trespass do not qualify as error, much less constitutional error. The State never argued that this prior incident constituted an aggravating circumstance. Rather, the prosecutor told the jury: I submit to you that was a response to a comment about the character of the defendant in this case. What happened after he got out of prison and had been born again the first time? [referring to the murder] Within four months—within four months after he had been born again in prison and got out, that's what happened. I submit to you that you can consider that in determining whether or not the defendant's character is an aspect in mitigation of the aggravating circumstances that have been proven here beyond a reasonable doubt. R. 3215–16. Hence, the references to the circumstances of the trespass simply addressed the issue of Petitioner's character in rebuttal of his argument that he had undergone a religious conversion. Moreover, the jury was instructed that it could consider only five aggravating circumstances. Those five did not include a prior felony involving threat or use of violence. Accordingly, this claim is DENIED.

X

Petitioner's tenth claim is that he was deprived of a reliable and individualized sentencing procedure. Here, Petitioner argues that the judge imposed sentence after the jury's verdict without mentioning any statutory or nonstatutory mitigating circumstances, and that the trial court had not engaged in the required balancing process. Instead, Petitioner contends that the trial court sought after the fact to bolster its sentence by providing written findings which in part varied from the trial court's oral comments at sentencing.

Petitioner's claim is procedurally barred due to his failure to argue it on appeal. Petitioner has not demonstrated sufficient cause for his failure to raise the issue on appeal nor has he demonstrated any actual prejudice. Even if the claim were not barred, the trial court's action in sentencing the Petitioner and its later submission of written findings supporting that sentence does not raise a constitutional issue. It is clear that the trial court made a considered judgment in imposing the death penalty. The judge referred to the jury's 11–1 vote in favor of death, and identified several aggravating circumstances in imposing the sentence. Moreover, the basis of that sentence was thoroughly discussed and supported by specific findings which the Court later submitted as required by Florida statute § 921.141(3). Petitioner's allegation of prejudice and an unreliable sentence is without merit. Accordingly, this claim is DENIED.

XI

Petitioner's eleventh claim is that he was denied a reliable sentencing proceeding in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and the Eighth and Fourteenth Amendments, when the state urged that he be sentenced to death on the basis of impermissible “victim impact” evidence. Petitioner asserts that, contrary to the rule established in Booth, both the jury and the judge may have considered inappropriate victim impact evidence in arriving at their decisions to recommend and impose, respectively, the death penalty. Booth involved a Maryland statute which required that a presentence report containing a “victim impact statement” be considered in all felony cases. The statement was designed to detail the effect that the crime had on the victim and his or her family. The Supreme Court held that the presentation of such information to a capital sentencing jury violates the Eighth Amendment because it creates a constitutionally unacceptable risk that the jury might impose the death penalty in an arbitrary and capricious manner. Id. 107 S.Ct. at 2533.

The victim impact statement provided to the jury in Booth contained two types of information. It first described the personal characteristics of the victims and the emotional impact of the crimes on their family, and second, it set forth the family members' opinions and characterizations of the crimes and the defendant. Id. Included in the impact statement presented to the jury were family members' comments regarding the serious emotional problems they suffered as a result of the crimes, family members' perception of the crimes, including the victims' son's opinion that his parents had been “butchered like animals,” and the family members' beliefs that the defendants could “never be rehabilitated.” Id. at 2531.

In noting that “any decision to impose the death sentence must ‘be, and appear to be, based on reason rather than caprice or emotion,’ ” Id. at 2536 quoting Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), the Court stated that there is no “justification for permitting such a decision to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character.” Booth, 107 S.Ct. at 2534. Thus, the Court vacated Booth's death sentence because it concluded that the family members' opinions and characterizations of the crimes “can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” Id. at 2536.

Upon review of the record in this case, the Court concludes that a material difference exists between the detailed victim impact statements presented to the jury in Booth and the references made to the victim's family here. In this case during voir dire examination of the venire, the prosecutor, in the context of stressing that sympathy cannot play a role in the jury's deliberations, made reference to the fact that although members of the Petitioner's family might testify during the penalty phase (if the Petitioner were ultimately convicted), the parents of the victim would not be permitted to testify. Additionally, at the sentencing phase the prosecutor, in response to the introduction of childhood photographs of the Petitioner, made passing reference to the fact that he could not introduce similar photographs of the victim. Unlike the situation in Booth, there were no comments from family members regarding either their emotional problems, their perceptions of the crime, their beliefs about the Petitioner, or the personal characteristics of the victim. Indeed, the prosecutor did not dwell on any impact the crime had on the victims or their families. His comments simply pointed out the self-evident fact that these teenage victims did have families in the context of arguing that sympathy for any party, victim or Petitioner, should not enter into the jury's consideration. The Court, therefore, concludes that the prosecutor's statements did not create the risk that the Petitioner's death sentence was based on considerations that are “constitutionally impermissible or totally irrelevant to the capital sentencing process.” Id. at 2533 (citations omitted).

Petitioner also contends that the trial judge considered inappropriate victim impact evidence when imposing sentence. Petitioner points out that when the judge orally imposed sentence, he mentioned the suffering and torture felt by the surviving victim, Regan Martin. These comments were discussed in the context of the statutory aggravating circumstances that the murder was committed while the Petitioner was engaged in committing other felonies—kidnapping and sexual battery—and that the murder was especially heinous, atrocious and cruel. These comments by the judge clearly fail to offer any support for Petitioner's Booth claim. Accordingly, this claim is DENIED.

XII

Petitioner asserts that the trial court's instructions to the jury during the penalty phase of Petitioner's trial violated his constitutional rights by shifting the burden of proof from the State to him. The relevant instructions given by the trial court are as follows:

THE COURT: ... [I]t is your duty to follow the law that will now be given to you by the Court and to render to the Court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist. * * * * * * Now, should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. * * * * * * Now, if one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed. Now, a mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established. Now, the sentence that you recommend to the Court must be based upon the facts as you find them from the evidence and the law. You should weigh the aggravating circumstances against the mitigating circumstances, and your advisory sentence must be based on these considerations. (R. 3231–34).

Petitioner contends that these instructions impermissibly shifted the burden of proof to him in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and violated his due process and Eighth Amendment rights to a fundamentally fair and reliable sentencing determination. Petitioner's claim is without merit. The United States Supreme Court has previously declared Florida's capital sentencing procedure, including its weighing of aggravating and mitigating circumstances, to be constitutional on its face. Id. As the Supreme Court stated: The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against mitigating ones. As a result, the trial court's sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976). The instructions given by the trial court in this case track the language of the statute found facially constitutional in Proffitt. The statute as applied by the trial court in its instructions thus did not violate Petitioner's due process rights; and more specifically, did not shift the burden of proof to him. Accordingly, this claim is DENIED.

XIII

Petitioner asserts that he was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments.

The Sixth and Fourteenth Amendments to the Constitution guarantee a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The basic standard for judging a claim that an attorney has not provided constitutionally adequate assistance is “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. Accordingly, a petitioner seeking relief on a claim of ineffective assistance, such as the one presented here, has the burden of showing (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. Each of these requirements was explained further in Strickland v. Washington to involve the following considerations.

The criterion for evaluation of attorney performance is that of reasonably effective assistance. The standard of reasonableness is an objective one which may be measured by using prevailing professional norms as guidelines; however, a court must be highly deferential when evaluating the performance of defense counsel and “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. 104 S.Ct. at 2065–66. Every effort should be made “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 2065. Indeed, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 2066. Further, the Court of Appeals has reiterated that effective assistance does not mean errorless assistance, and that an attorney's performance is to be judged on the totality of circumstances in the entire record rather than on specific actions. Green v. Zant, 738 F.2d 1529, 1536 (11th Cir.), cert. denied 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984).

Even if defense counsel's performance was deficient, a petitioner asserting a claim of ineffective assistance must show that the deficiencies were prejudicial to his defense. This requires “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 104 S.Ct. at 2068.

In this case, Petitioner asserts that his trial counsel rendered ineffective assistance because he failed to present evidence concerning, and to request an instruction on, the issue of Petitioner's voluntary intoxication which, if proven to the jury, would have negated the specific intent necessary to convict Petitioner of the crimes with which he was charged. At the Petitioner's Rule 3.850 hearing in state court Mr. Kendall Phillips, Petitioner's trial counsel, testified that he and co-counsel James Long investigated and considered presenting a defense based on Petitioner's intoxication but ultimately rejected pursuing such a strategy. (EH 658, 661, 668). Mr. Phillips testified that the intoxication defense was rejected both because it was factually very weak and because he thought it would be inconsistent with Petitioner's main defense, factual innocence based on misidentification.FN15 Mr. Phillips stated that he thought he would lose credibility with the jury if he were to present both defenses. (EH 658).

FN15. Mr. Long gave similar testimony at the state Rule 3.850 hearing, stating that counsel had spent many hours talking with Petitioner's family about his history and that counsel rejected presenting an intoxication defense because they believed the identity defense was stronger. (EH 567, 601). Upon review of the record the Court cannot say that by failing to pursue an intoxication defense, counsel's performance fell outside the range of professionally competent assistance. As counsel pointed out during his testimony, the intoxication defense was weak as there was no direct evidence that Petitioner had been drinking or using drugs on the day of the offense. FN16 To be sure, as discussed with respect to claim I, there was some circumstantial evidence—the bottle of vodka, the opened bottle of pills and family members' impressions—that would lend credence to an intoxication theory. However, there was also evidence from law enforcement personnel that after his arrest the Petitioner did not appear to be under the influence of either alcohol or drugs. (R. 2504, Testimony of Detective Sidney DuBose). Additionally, although Petitioner is correct that the misidentification and intoxication defenses are not strictly inconsistent, counsel's belief that he would lose credibility with the jury if he were to argue both that his client was innocent but that, if he were guilty, his guilt should be at least partially excused, is not unreasonable and his strategic choice not to pursue both defenses does not render his assistance ineffective.

FN16. Petitioner did not testify at either the guilt phase or the sentencing phase and no allegation is made that the decision to keep him off the witness stand was erroneous or constituted ineffective assistance of counsel and, from the record, no such claim could be sustained.

Further, even if the Court concluded that competent counsel would have pursued an intoxication defense, the Petitioner's claim of ineffective assistance would still be unavailing because he has failed to demonstrate that there is a reasonable probability that assertion of the defense would have changed the outcome of the case. See Strickland, 104 S.Ct. at 2068; Harich v. Dugger, 844 F.2d 1464, 1471 (11th Cir.1988). Not only was there no direct evidence of intoxication but the circumstantial evidence was not extremely strong and the inference of intoxication Petitioner hoped to draw from it was disputed by the observations of law enforcement personnel. Further, as described by Regan Martin, the surviving victim, the Petitioner's course of conduct over the hours the kidnappings, sexual assaults and murder took place disclosed that he directed the commission of the offenses. This testimony would have directly contradicted Petitioner's claim that he was so intoxicated that he was unable to form the specific intent necessary to be found guilty of the crimes charged. Petitioner, therefore, has failed to meet his burden of demonstrating that he was constitutionally prejudiced by counsel's failure to pursue an intoxication defense. Accordingly, this claim is DENIED.

XIV

Petitioner asserts that he was deprived of his due process rights, his right to a fair trial and his right to confrontation in violation of the Sixth, Eighth and Fourteenth Amendments due to the State's failure to comply with state discovery rules. Petitioner alleges that the State failed to comply with state discovery rule 3.220(a)(1)(vi), Fla.R.Crim.P., because it did not list the fact that three rounds of ammunition were found in Petitioner's pants pocket. Petitioner claims that this omission prejudiced him when the State improperly introduced the ammunition into evidence over his objection. [30] This claim is without merit. An alleged violation of state law is cognizable in a § 2254 petition only if some federal right has also been impinged. Petitioner has shown no such federal right was violated in this case. Petitioner had been given notice of the presence of the ammunition well prior to trial because its existence was noted during the deposition testimony of Mr. Daniel Nippes, criminalist with the regional crime laboratory. (R. 2467–68). Additionally, the evidence was available for inspection by counsel for some time prior to trial. (R. 2472). The Court, therefore, cannot say that Petitioner's due process rights, his right to a fair trial or his right to confrontation were compromised by the State's failure to list the ammunition as may be required by state rules. Accordingly, this claim is DENIED.

XV

Petitioner's fifteenth claim for relief is predicated upon Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in which the Supreme Court held that it is constitutionally impermissible under the Eighth and Fourteenth Amendments for a state to rest a death sentence on a determination made by a sentencing jury which has been led to believe that ultimate responsibility for determining the appropriateness of the defendant's death rested elsewhere. As this claim was not raised at trial or on direct appeal, it is procedurally barred. The Court can review the merits of the Caldwell claim only if the Petitioner can demonstrate sufficient cause and prejudice to excuse his failure to raise this issue on appeal. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner is foreclosed from showing the requisite “cause,” however, by the Supreme Court's recent decision in Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). Adams held that the Court's intervening decision in Caldwell does not provide cause to a Florida defendant for a procedural default because the claims could have been raised during trial under then-existing state law. As the Supreme Court explained in Adams:

[W]hat is determinative in this case is that the ground for challenging the trial judge's instructions—that they were objectionable under state law—was a necessary element of the subsequently available Caldwell claim. In such a case, the subsequently available federal claim does not excuse the procedural default. Id., at 402, 109 S.Ct. at 1212. Petitioner's Caldwell claim is thus procedurally defaulted and the default is not excused under the cause and prejudice standard set out in Sykes. Accordingly, this claim is DENIED.

XVI

Petitioner contends that his death sentence rests upon an unconstitutional automatic aggravating circumstance, in violation of Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), and the Eighth and Fourteenth Amendments. More particularly, the Petitioner contends that it is unclear from the general verdict form whether the conviction was for killing with a premeditated design pursuant to Fla.Stat. § 782.04(1)(a) 1 or pursuant to the felony murder provision at Fla.Stat. § 782.04(1)(a) 2. The Petitioner argues that if the jury rendered a verdict of guilty of murder in the first degree on the basis of the felony murder statute, then a finding of the aggravating factor set forth in Fla.Stat. § 921.141(5)(d) (that the crime for which the defendant is be sentenced was committed while the defendant was engaged in the commission of, inter alia, sexual battery or kidnapping) was “automatic” at the penalty phase in violation of Lowenfield. This argument is without merit.

In Lowenfield, the petitioner was found guilty of three counts of first degree murder pursuant to a Louisiana statute which defined the crime as occurring when: “[T]he offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” Id. 108 S.Ct. at 554 quoting La.Rev.Stat.Ann. § 14:30.A(3). The only aggravating factor found by the jury was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Id. quoting La.Code Crim.Proc.Ann. Art. 905.4(d). Petitioner contended that his death sentence violated the Eighth Amendment because the sole aggravating factor found merely duplicated an element of the underlying offense of which he was convicted. Id. at 548.

In rejecting the petitioner's contention the Supreme Court held that the parallel nature of the aggravating circumstance did not render the sentence infirm because the constitutionally mandated narrowing of the class of death-eligible persons was performed at the guilt phase under Louisiana's statutory scheme. The Constitution, therefore, did not require an additional aggravating circumstance to be found at the penalty phase to channel the jury's discretion. Id. at 554.

In Florida, unlike Louisiana, the required narrowing of death-eligible persons occurs during the sentencing phase through the weighing of aggravating and mitigating factors. Here, in the Order entered August 20, 1984, the trial judge specifically found the existence of five statutory aggravating circumstances and that no mitigating circumstances existed. (R. 854A–G, Order of Judge L.B. Vocelle, August 20, 1984). On appeal, the Florida Supreme Court rejected all of Petitioner's challenges to his sentence, including numerous challenges to individual aggravating circumstances, and held that the death penalty was proportionately warranted in this case. Gore v. State, 475 So.2d 1205, 1211 (Fla.1985).

Based on the fact that the trial court found four aggravating circumstances independent of that claimed to be “automatic” by Petitioner, and the Court's own review of the record, there is no question that the penalty phase of this trial “genuinely narrow[ed] the class of persons eligible for the death penalty and ... reasonably justif[ied] the imposition of a more severe sentence on the defendant as compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). Lowenfield v. Phelps adds nothing to the Petitioner's argument and simply does not support it. Accordingly, this claim for relief is DENIED.

XVII

In his final claim Petitioner contends that he was denied the due process guarantees of an impartial jury and a verdict based solely on the evidence adduced at trial in violation of the Sixth, Eighth and Fourteenth Amendments due to an outburst by an epileptic juror which interrupted defense counsel's closing argument. At the time, defense counsel reported to the trial judge that he had heard the juror laughingly exclaim during his seizure “goddamn you” two or three times. (R. 2856–7). After taking a brief recess during which the trial judge denied Petitioner's motion for a mistrial, the epileptic juror was excused and an alternate juror seated in his place. The judge then gave the following explanatory and curative instruction:

THE COURT: Ladies and gentlemen of the jury, we are concerned about Mr. Brown's health. Under the circumstances I am excusing Mr. Brown so that he can go about his own personal affairs and I believe we do have someone in attendance with him. * * * * * * Ladies and gentlemen, any outburst that Mr. Brown made or may not have made—I did not hear—but I want to state to you, as I've stated to you from the very beginning, this case must be tried solely on the evidence and on the law and nothing else. * * * * * * Can each of you assure me that you will make your decision in this case solely on the law and nothing else? Is there anything that Mr. Brown has stated that would in any way influence this jury and carry any comments he may or may not have said into the jury room? All right. We're sorry for the interruption of the defense's argument. Mr. Phillips, you may proceed. (R. 2864–66).

Upon review of the record, the Court concludes that the brief and unfortunate outburst by the epileptic juror in the throes of a seizure did not undermine “the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965). The juror was excused and any potential confusion felt by the jury after the juror's outburst was adequately remedied by the curative instruction given by the trial court immediately following the brief recess which had been taken in order to give the affected juror medical assistance. Accordingly, this claim for relief is DENIED.

Upon due consideration, the Court has concluded that Petitioner's first claim for relief, the claim based on Lockett v. Ohio and Hitchcock v. Dugger is meritorious and that Petitioner has demonstrated that his death sentence was imposed in violation of the Eighth Amendment of the Constitution of the United States. The petition for a writ of habeas corpus is GRANTED. Unless the State within 120 days resentences the Petitioner in a proceeding that comports with Lockett and Hitchcock, the Petitioner shall be resentenced to an appropriate sentence less than death. With respect to all other claims, the petition is without merit and is denied. A number of motions remain for the Court's consideration. Petitioner's motion for leave to proceed in forma pauperis is GRANTED. The motion for an extension of the Court's page limitation is GRANTED. The several motions to admit counsel pro hac vice are GRANTED.

The Clerk is directed to enter judgment in favor of Petitioner consistent with this memorandum opinion. IT IS SO ORDERED. DONE and ORDERED.

Gore v. Dugger, 933 F.2d 904 (11th Cir. 1991).

After defendant's first-degree murder, kidnapping and sexual battery convictions were affirmed on direct appeal, 475 So.2d 1205, defendant petitioned for habeas relief. The United States District Court for the Middle District of Florida, 89-203-CIV-T-10C, Wm. Terrell Hodges, J., granted partial relief, 763 F.Supp. 1110, and appeal was taken. The Court of Appeals held that preclusion of nonstatutory mitigating evidence in violation of Lockett / Hitchcock principle was not harmless. Affirmed.

Gore v. State, 706 So.2d 1328 (Fla. 1997). (Direct Appeal After Resentencing)

After defendant's first-degree murder, kidnapping, and sexual battery convictions were affirmed on direct appeal, 475 So.2d 1205, and partial grant of federal habeas corpus relief, 763 F.Supp. 1110, was likewise affirmed, 933 F.2d 904, state sought order compelling discovery in new sentencing proceeding. The Circuit Court, St. Lucie County, Dan L. Vaughan, Acting J., ordered discovery. Defendant petitioned for common law writ of certiorari. The District Court of Appeal, 614 So.2d 1111, Farmer, J., granted certiorari, quashed order, and remanded with instructions. On remand, the trial court imposed sentence of death, and defendant appealed. The Supreme Court held that: (1) trial court did not abuse its discretion in declining to excuse venire members challenged for cause on basis of incompetency; (2) jury instruction indicating that defendant, if sentenced to life imprisonment, would be eligible for parole after 25 years, did not impermissibly mislead jury as to his eligibility for parole; (3) evidence supported all statutory aggravating factors invoked by jury; (4) any alleged inadequacy or vagueness in jury instruction concerning aggravating factor of “cold, calculated and premeditated” (CCP) was harmless error beyond reasonable doubt; (5) defendant was not entitled to instruction concerning prohibition against doubling of aggravators based on same circumstances of crime with respect to aggravating factors of CCP and avoiding arrest; (6) defendant was not entitled to instruction regarding specific nonstatutory mitigation factors; (7) trial court did not err in permitting testimony of former prosecutor concerning terms of previous plea agreement made with defendant; (8) trial court's error in permitting police officer to express opinion that defendant had lied to him with respect to particular fact was harmless beyond reasonable doubt; and (9) county court judge's two successive six–month assignments to hear matters presented to him in Criminal Division, which resulted in his presiding over defendant's capital sentencing proceeding, were permissible. Affirmed. Shaw, J., dissented with opinion in which Anstead, J., concurred.

PER CURIAM.

We have on appeal the sentence of the trial court imposing the death penalty upon David Allen Gore following resentencing.FN1 We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. FN1. This Court affirmed Gore's original sentence of death in Gore v. State, 475 So.2d 1205 (Fla.1985). Upon petition for a writ of habeas corpus, the United States District Court for the Middle District of Florida concluded that Gore's sentence of death was imposed in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and granted the petition. Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989), aff'd, 933 F.2d 904 (11th Cir.1991). A second sentencing proceeding was instituted, resulting in the instant appeal.

The circumstances of the murder are as follows. On July 26, 1983, Gore and his cousin Freddy Waterfield picked up teenagers Lynn Elliott and Regan Martin, who were hitchhiking. Soon after, Gore took a gun out of the glove compartment and handcuffed the two girls while Waterfield drove to Gore's parents' house. Once there, Gore bound each of the girls and placed them in separate bedrooms. Regan Martin testified that Gore cut off her clothes and forced her to perform oral sex on him while he threatened to kill her, and that Gore kept going back and forth between the two rooms. At one point when Gore was out of the room, Martin heard gunshots from outside. When Gore returned he placed her in a closet and then the attic and threatened to kill her if she tried anything. Soon after, Gore surrendered to the police and Martin was rescued. Elliott's nude body was found in the trunk of Gore's car.

Michael Rock, a teenager riding his bike by Gore's house on the day in question, testified that he saw Gore and a naked woman (Lynn Elliott) running up the driveway toward the road. Rock watched as Gore caught up with Elliott and dragged her back toward the house. He then saw Gore throw Elliott down and shoot her. Elliott had been shot twice, once in the back of the head and once in the jaw.

The jury recommended a sentence of death by a vote of twelve to zero. The trial court found the following six aggravators were established beyond a reasonable doubt: (1) The capital felony was committed by a person under sentence of imprisonment. Gore was on parole after being convicted and sentenced for trespass of a conveyance while armed. (2) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to a person. The trial court found that the facts of the aforementioned trespass conviction involved the threat of violence to a person. The court further found that Gore's contemporaneous convictions for kidnapping and sexual battery also satisfied this aggravator. (3) The crime was committed while the defendant was engaged in the commission of a sexual battery and kidnapping. (4) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. The trial court found that Elliott was in the process of escaping and was killed for the dominant or sole motive to prevent her from identifying Gore because that would lead to his arrest. (5) The capital felony was especially heinous, atrocious, or cruel (HAC). The trial court relied on evidence that Elliott was abducted and handcuffed at gun point, brought to the Gores' residence, and then tightly bound before being sexually assaulted. The court also found that Elliott attempted to flee but Gore caught up with her and dragged her back as she fought to free herself before finally throwing her to the ground and shooting her. (6) The murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The trial court relied on evidence that Gore participated in a detailed plan to kidnap a young girl using a gun, handcuffs, and rope, to transport her to his residence, commit sexual battery, terrorize and then murder her. He also threatened to kill Regan Martin and told her he was “going to do it anyway.”

The trial court found no statutory mitigation. It found the following nonstatutory mitigating circumstances: (1) Gore's exemplary conduct while in prison, his past conduct as a model prisoner, his capacity to be one in the future, and his ability to live in prison without being a threat or danger to others; (2) Gore's impoverished childhood; (3) Gore's exemplary conduct during the resentencing proceeding; (4) Gore's depression at the time of the offense; and (5) Gore's love for his children and his separation from them. Finding that the mitigating circumstances were substantially outweighed by the aggravating circumstances, the trial court sentenced Gore to death.

Gore raises sixteen issues in this appeal. We find that nine merit consideration. We reject the remaining seven without discussion. FN2 First, he contends that the trial court erred during jury selection in denying his challenges for cause to eight members of the venire. Of those eight, three ultimately served on the jury.FN3 A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror incompetency. Pentecost v. State, 545 So.2d 861 (Fla.1989). The decision to deny a challenge for cause will be upheld on appeal if there is support in the record for the decision. Johnson v. State, 660 So.2d 637, 644 (Fla.1995), cert. denied, 517 U.S. 1159, 116 S.Ct. 1550, 134 L.Ed.2d 653 (1996).

FN2. These issues are: (1) the trial court erroneously permitted the State to create the impression that mercy and sympathy should play no role in the jurors' deliberations; (2) the trial court erred in permitting the State's psychiatrist to examine Gore; (3) the State engaged in improper argument to the jury; (4) the court erred in refusing to hear Gore's motion to suppress Michael Rock's identification of Gore; (5) the trial court erred in refusing to allow on cross-examination the introduction of an out-of-court statement Gore had made which implicated Waterfield; (6) the trial court erred in failing to enforce the rule of sequestration with respect to two State witnesses; and (7) the trial court erred in failing to conduct an allocution hearing before reaching its sentencing decision and in failing to consider allocution evidence.

FN3. Gore also argues that juror Tobin should not have served on the jury. However, Tobin was not challenged for cause. Gore is therefore procedurally barred from arguing the matter on appeal.

We conclude that the trial court did not abuse its discretion in declining to excuse the challenged venire members.FN4 We have carefully examined the voir dire of each of these jurors. Although they expressed certain biases and prejudices, each of them also stated that they could set aside their personal views and follow the law in light of the evidence presented. Penn v. State, 574 So.2d 1079 (Fla.1991); Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). The trial court was in a better position to assess the credibility of these venire members. Consequently, we will not substitute our judgment for that of the trial court.

FN4. We note that after Gore exhausted his peremptory challenges, he asked for three more and identified the three that he would challenge. Yet, when the trial court granted him an additional peremptory challenge, he used it to challenge an unidentified juror whom he had not challenged for cause. When his subsequent challenge of another juror for cause was denied, he did not thereafter request any more peremptory challenges.

Gore's second argument is that the trial court through multiple errors permitted the State to mislead the jury as to his eligibility for parole. Specifically, Gore asserts that in light of his numerous other life sentences, FN5 he could not have been considered for parole for at least fifty years if given a life sentence. According to Gore, the jury was misled into believing that Gore was subject to parole either immediately on some of these offenses or at most within fifteen years. As part of this argument, Gore contends that it was error to deny his request to omit possibility of parole after twenty-five years from the life sentence instruction. We disagree. The jury was correctly instructed that a life sentence for the murder of Lynn Elliott included eligibility for parole after twenty-five years. § 775.082(1), Fla. Stat. (1983).FN6 It would have been error for the trial court to instruct the jury otherwise.

FN5. Gore had been sentenced to two concurrent life sentences for the kidnappings of Regan Martin and Lynn Elliott and three life sentences for sexual batteries committed against Martin. The two kidnapping sentences were to run consecutive to the three sexual battery sentences. FN6. The statute was subsequently amended in 1994 to eliminate eligibility for parole for those convicted of first-degree murder. Ch. 94–229, § 1, at 1577, Laws of Fla.

Also in connection with this argument, Gore posits that the trial court erred in its responses to two questions issued by the jury during deliberations. The first question asked whether, if given a life sentence, Gore would receive credit for the ten years he had already served, to which the court instructed the jury that he would. However, even defense counsel conceded this point at trial. The jury's second question asked if and when parole could occur on these other life sentences. The court instructed the jury to rely on their recollection of the evidence that had been presented. This was not error. The record shows that in its cross-examination of former prosecutor Robert Stone,FN7 the State elicited testimony that none of Gore's life sentences contained a minimum mandatory sentence.FN8 Defense counsel did not object to the line of questioning; thus any objection was waived. We also note that defense counsel was free to argue that as a practical matter Gore would spend his life in prison.

FN7. Stone was one of the prosecutors in Gore's first trial and Waterfield's trial. FN8. Gore claims he presented Stone's testimony to illustrate that if Gore was given a life sentence for the murder of Lynn Elliott, he would not be eligible for parole for 50 years. On cross-examination, Stone testified that Gore's five life sentences boiled down to the equivalent of two consecutive life sentences, and that none of his sentences contain any minimum mandatory sentence.

Because Gore points out that error can occur even where there is no actual misstatement of the law, we also note that this case is distinguishable from Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996). In Hitchcock, the State argued in a resentencing proceeding that the defendant would be eligible for parole after twenty-five years if given a life sentence. We held this argument to be improper and unfairly prejudicial because the resentencing occurred so close in time to the expiration of the twenty-five-year period. In contrast, the State in the present case did not make any such argument, nor was Gore close to meeting the expiration of the twenty-five-year minimum mandatory.

Gore's third argument is that the trial court erred in finding that his prior conviction for armed trespass of a conveyance constituted a felony involving the use or threat of violence under section 921.141(5)(b), Florida Statutes (1991). He argues that neither the facts of the offense nor its legal elements satisfied the requirements for finding this aggravating circumstance. In Johnson v. State, 465 So.2d 499 (Fla.1985), we held that the offense of burglary is not per se a crime involving violence or threat of violence. We continued: [W]hether a previous conviction of burglary constitutes a felony involving violence under section 921.141(5)(b), Florida Statutes (1981), depends on the facts of the previous crime. Those facts may be established by documentary evidence, including the charging or conviction documents, or by testimony, or by a combination of both. Id. at 505. The same can be said of armed trespass.FN9 While the crime of armed trespass is not per se a crime involving the use or threat of violence, documentary evidence and/or testimony may be introduced to establish that the circumstances surrounding a defendant's prior crime of armed trespass satisfy the requirements of this aggravating factor. FN9. § 810.08(1), (2)(c), Fla. Stat. (1981).

In Johnson, we concluded that it was error to instruct the jury that burglary is a felony involving the use or threat of violence for purposes of section 921.141(5)(b) without making it clear that the circumstances surrounding the particular burglary are dispositive. Id. In the instant case, however, the trial court properly instructed the jury that trespass of a conveyance while armed may or may not be a felony involving the use or threat of violence to another person, depending on the circumstances of that offense. The evidence adduced at trial supports the finding that the offense involved the threat of violence. Testimony concerning the armed trespass offense established that Gore was found crouching behind the front seat of a woman's car with a loaded gun and a police scanner. The woman, who discovered Gore upon returning to her car but before getting in, summoned a police officer and Gore was apprehended. It is clear that at a minimum, the woman was under a threat of violence. We have held that the lack of any actual violence or harm to the intended victim is irrelevant for purposes of this aggravator. Johnston v. State, 497 So.2d 863 (Fla.1986). Thus we find no error.

Fourth, Gore argues that the trial court committed error in giving certain jury instructions and refusing to give others. In connection with this argument, he contends that the HAC and CCP instructions were unconstitutionally vague, that the trial court erred in refusing to instruct the jury on the prohibition against doubling of aggravators when they are based on the same circumstances of the crime, and that the trial court erred in refusing to instruct the jury regarding specific nonstatutory mitigation.

The State acknowledged that the HAC instruction that was then set forth in the Florida Standard Jury Instructions in Criminal Cases had been declared unconstitutional in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). As a consequence, the State suggested an expanded HAC instruction. Defense counsel objected to this expanded instruction but declined the trial court's request to explain how the instruction could be made constitutionally adequate. Because the instruction as given was virtually identical to the instruction we upheld in Hall v. State, 614 So.2d 473, 478 (Fla.1993), we find no error on this point.

Even though the case was tried prior to this Court's decision in Jackson v. State, 648 So.2d 85 (Fla.1994), the State also requested an expanded CCP instruction. Defense counsel objected to the expanded instruction but once again declined to explain how the instruction could be changed to meet his objection. The CCP instruction ultimately given FN10 incorporated some but not all of the provisions of the CCP instruction suggested in Jackson or the current standard criminal jury instruction on CCP. Assuming, without deciding, that the CCP instruction as given was inadequate, we are convinced that any error in the instruction was harmless beyond a reasonable doubt in light of the overwhelming evidence of CCP as well as the other circumstances of the case.

FN10. The instruction was as follows: The crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. The kind of crime intended to be cold, calculated and premeditated is one that follows a careful plan or pre-arranged design.

Gore's argument regarding the doubling instruction was not properly preserved for review. At trial, Gore's argument in favor of the doubling instruction was that the prior violent felony and under sentence of imprisonment aggravators should be merged. However, on appeal he grounds his argument for the doubling instruction on two different aggravators; namely, the CCP and avoid arrest factors. In any event, we find no error because the avoid arrest and CCP aggravators were based on different aspects of the crime. See Stein v. State, 632 So.2d 1361, 1366 (Fla.1994) (finding no improper doubling where avoid arrest aggravator focused on motive for the murder and CCP focused on manner).

We also reject Gore's argument that the trial court erred in refusing to instruct the jury regarding specific nonstatutory mitigation such as Gore's background and deprived childhood. The trial court instructed the jury that they could consider as mitigation any evidence that went to the defendant's character or record and any other circumstances of the offense. That is all that was required. Robinson v. State, 574 So.2d 108, 111 (Fla.1991). Gore's counsel was free to argue specific nonstatutory mitigation for the jury to consider.

Fifth, Gore contends that the trial court erred in finding that the avoid arrest, CCP, and HAC aggravators had been established. We disagree. With respect to the avoiding lawful arrest aggravator where the victim is not a police officer, we have required strong proof of the defendant's motive, and it must be clearly shown that the dominant or only motive for the murder was the elimination of the witness. Perry v. State, 522 So.2d 817, 820 (Fla.1988). In this case, the trial court found and the evidence established that Elliott was attempting to escape from Gore when he dragged her back toward the house and shot her. These circumstances support the finding that the dominant motive for killing Elliott was to avoid arrest by eliminating a witness. See Swafford v. State, 533 So.2d 270, 276 (Fla.1988); Harvey v. State, 529 So.2d 1083, 1087 (Fla.1988); Harich v. State, 437 So.2d 1082 (Fla.1983).

As to the CCP finding, the facts of this case clearly support this aggravator. The evidence showed that Gore had planned in advance to both kidnap and kill Elliott and Martin. Gore repeatedly threatened to kill the two girls throughout the ordeal. He told Regan Martin that he was “going to do it anyway” as he was sexually assaulting her, and this occurred before Elliott was killed. That statement illustrates the heightened degree of premeditation necessary to sustain the CCP aggravator. The fact that the actual murder may have taken place earlier than Gore had planned it does not change this result.

The evidence also established beyond a reasonable doubt that the murder was heinous, atrocious, or cruel. Although Elliott's death by gunshot was most likely instantaneous, we have held that the actions of the defendant preceding the actual killing are relevant to this aggravator. Swafford, 533 So.2d at 277; see also Smith v. State, 424 So.2d 726, 733 (Fla.1982). We have also held that the fear and emotional strain of the victim from the events preceding the killing may contribute to its heinous nature. Swafford, 533 So.2d at 277 (citations omitted). Here, there is little doubt that Elliott experienced terror from the moment Gore took the gun from the vehicle's glove compartment. She had been abducted, handcuffed, transported to a remote place, tightly bound, and sexually battered, all under threat of death. Her escape attempt ended in vain with Gore dragging her back toward the house and finally shooting her.

Sixth, Gore claims that the State violated its agreements with the defense by eliciting certain testimony from former prosecutor Robert Stone. Some background is required to understand this argument. Gore and the State entered into a written agreement under which he would plead guilty to first-degree murder for three other deaths in exchange for the State's assurance that it would not seek the death penalty for those crimes. The State also agreed that the convictions would not be used against Gore in any other proceedings, including the instant case, and that no information revealed by Gore to law enforcement officers after July 27, 1983, would be used against him. As part of the plea bargain, Gore also agreed to testify truthfully against his cousin Freddy Waterfield regarding his part in the crimes involving the victim in this case. Gore gave a deposition fully implicating Waterfield in these crimes. However, in the middle of Waterfield's trial, Gore's attorney informed prosecutors that Gore's trial testimony would place much less blame on Waterfield. Therefore, the State did not call Gore as a witness. Waterfield was ultimately convicted of manslaughter and sentenced to fifteen years. Subsequently, the original plea agreement was reaffirmed as part of a new agreement under which Gore agreed to plead guilty to two additional murders.

In the instant case, the defense was attempting to establish that Gore and Waterfield were equally culpable in the crimes, so that by being made eligible for the death penalty when Waterfield had been convicted of manslaughter, Gore was the subject of disparate treatment. Part of the defense's cross-examination of the State's witnesses was directed to this end. Also, in its opening argument, defense counsel quoted a statement made by Stone during his opening argument in Freddy Waterfield's trial that Waterfield was just as guilty as Gore. The State in turn presented Stone's testimony to explain that the reason Waterfield was ultimately convicted of manslaughter was because Gore had backed out of his plea agreement, leaving the State without the evidence it needed to secure a first-degree murder conviction against Waterfield, and not because Waterfield was receiving more lenient treatment for the same level of culpability.

We conclude that the trial court did not err in permitting this testimony. Significantly, there was no mention of the plea agreements or the other five murders. Moreover, Gore opened the door to this testimony by suggesting that the death penalty would be unfair in light of Waterfield's manslaughter conviction. See Wuornos v. State, 644 So.2d 1000, 1009–1010 (Fla.1994) (“Once the defense argues the existence of mitigators, the State has a right to rebut through any means permitted by the rules of evidence, and the defense will not be heard to complain otherwise.”) (footnote omitted), cert. denied, 514 U.S. 1069, 115 S.Ct. 1705, 131 L.Ed.2d 566 (1995). To the extent it could be said that the State breached the condition of the plea agreements, any error in admitting Stone's testimony was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We agree with Gore's seventh claim that the court erred in permitting a police officer to express the opinion that Gore had lied to him with respect to a particular fact. Capehart v. State, 583 So.2d 1009 (Fla.1991). However, we find this error to be harmless beyond a reasonable doubt. DiGuilio.

Gore's eighth argument is that it was improper for Judge Vaughn, a county court judge, to preside over Gore's capital sentencing proceeding. Gore asserts that the temporary assignment order authorizing Judge Vaughn to preside over the sentencing proceeding exceeded permissible time limits under Payret v. Adams, 500 So.2d 136 (Fla.1986). However, this case is distinguishable from Payret, which involved successive assignments of a county judge totaling five years and wherein the county judge was the de facto circuit judge for a specially created district. Further, in Wild v. Dozier, 672 So.2d 16, 19 (Fla.1996), we stated that whether a judicial assignment is a proper “temporary” assignment is not merely a function of the duration of an individual assignment. Other factors to be considered include the successive nature of the assignment, the types of cases covered by the assignment, and the practical effect of the assignment on circuit court jurisdiction over a particular type of case. Id.

The record in this case indicates that Judge Vaughn received a temporary assignment to hear emergency matters in the Juvenile Division, HRS and URESA filings in the Family Relations Division, and all matters presented to him in the Criminal Division from January 1 to June 30, 1992. By separate order he also was assigned to hear domestic violence ex parte injunctions for protection cases on weekends and holidays and during the absence of the judge regularly assigned to domestic violence cases. In April of that same year he was assigned to the instant case following Judge Wild's disqualification. Judge Vaughn then received a second six-month assignment to hear the same types of matters. There is no indication that Judge Vaughn's county court duties were suspended. We therefore conclude that the two successive six-month assignments were permissible. See Crusoe v. Rowls, 472 So.2d 1163 (Fla.1985) (upholding successive assignments totaling two and a half years).

Finally, we reject the argument that Gore's resentencing violated his constitutional right to a speedy trial. See Hitchcock, 673 So.2d at 863 (rejecting argument that length of time case took since murder, which occurred in 1978, was a violation of defendant's constitutional rights). The sentence of the trial court imposing the death penalty on David Allen Gore is affirmed. It is so ordered.

OVERTON, GRIMES, HARDING and WELLS, JJ., concur. SHAW, J., dissents with an opinion, in which ANSTEAD, J., concurs.

SHAW, Justice, dissenting.

I disagree with the majority's conclusion that the trial court did not abuse its discretion in declining to excuse venireperson M.K. for cause. Ms. K. violated the court's order by discussing the case with her husband who informed her that this homicide case also involved sexual battery. Ms. K. was a former rape victim and expressed concern about her ability to be impartial since her assailant was released early from prison and “did it again.” The voir dire transcript reflects the following colloquy: THE COURT: What is it you want to tell me, ma'am? JUROR K.: Well, I don't know whether I can be any good on this or not because about ten years ago I was raped with a— THE COURT: Okay.... Why don't you come up to the bench? Yes, ma'am. What did you want to tell me? JUROR K.: About ten years ago I was raped at knife point and I just don't think I can—this has been bothering me. I don't think I have— THE COURT: That experience, do you think that experience would affect your ability to sit— JUROR K.: I'm sorry? THE COURT: Do you think that experience would affect your ability to sit impartially on this case if you were asked to serve? JUROR K.: No. No, it would not. THE COURT: Would it affect your ability to be impartial? JUROR K.: (Witness nods head.) THE COURT: Any questions for her? MR. MORGAN [PROSECUTOR]: No, sir. THE COURT: Mr. Udell, Mr. Nickerson? MR. NICKERSON [DEFENSE COUNSEL]: Ms. Wetmore—Ms. K., pardon me. Is this something that has troubled you part of the—Apparently this is something that has troubled you, caused you some concern enough to bring it to the Judge's attention on this evening, is that— JUROR K.: Yes. MR. NICKERSON: And prior to this evening you sat here for about three days and it hasn't bothered you? JUROR K.: I didn't know what it was about. MR. NICKERSON: Okay. Do you now know that this case—the State has told you that there's a homicide; is that right? JUROR K.: (Witness nods head.) MR. NICKERSON: Okay. Is there some other information that you have right now that makes you believe this prior experience that you have gives you great concern? JUROR K.: Someone else told me it was rape and I—that's what bothered me. MR. NICKERSON: Who told you it was rape, ma'am? JUROR K.: My husband. MR. NICKERSON: Okay. Now that you know that this case does involve a sexual battery, ma'am, and you've come here to the Judge tonight to bring this to his attention this concern, can you say that when the evidence is presented here in court that your prior experience, this experience that happened to you ten years ago, that you would be able to keep that in a way that you will not be biased against Mr. Gore should you hear evidence of a sexual battery being presented in this case? Can you be—can you tell the Judge that you can be completely fair to Mr. Gore. Can you keep this experience out from your deliberations if you're selected as a juror in this case? JUROR K.: Yes. The only thing that bothers me, like this one that raped me was sent to jail. He had 20 years sentence and he only got six. They let him out and he did it again. MR. NICKERSON: Okay. Based on—ma'am, I understand that. Based on how that particular defendant was treated, the sentence that he got and how he was released back out again, do you think that you could sit if you were selected on this jury and deliberate whether or not Mr. Gore should get a sentence of life without parole for a 25–year period based on the fact this other defendant was released and went out and committed the offense again? Can you say that you can be completely unbiased in your determination of which sentence is appropriate based on how this other defendant was treated? JUROR K.: Yes. I agree with defense counsel's argument that by saying the “magic words,” i.e., that she could set her experience aside, Juror K. was not rendered competent: MR. UDELL [DEFENSE COUNSEL]: ....

But, Judge, we'd ask you to go beyond the words, you saw her, she was obviously shaken about this incident, she obviously felt it was important enough and affected her enough to come forward and bring it to the Court's attention. We would ask you on whole considering the way she acted, her demeanor, what she had to say, given all due deference to the Defendant and following the law which requires that all reasonable doubts as to the issuance of jurors be impartial in favor of the Defendant,[ FN11] we would ask to grant the challenge for cause as to Ms. K.

FN11. This Court has repeatedly applied the rule to which defense counsel refers: [I]f there is a basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused on motion of a party, or by the court on its own motion. Singer v. State, 109 So.2d 7, 23–24 (Fla.1959). .... THE COURT: I'll deny the challenge for cause based on simply because each and every question that was asked of her she indicated she could be fair and impartial and set it out of her mind. Now, I understand what her husband may have told her in conversation, she indicated she stopped him, cut-off the conversation there and then before the Court with regard to this case her situation that she had in the past but to each question asked of her she never waivered [sic] or indicated she could not set that out of her mind and render a fair and impartial verdict. So I'll grant—but that's not reason to disqualify her. I'll deny the motion for cause [ ][c]hallenge for that. All right. Do you have any more cause?

The judge erred factually when he said Juror K. indicated she could be fair and impartial each time she was asked. She responded affirmatively (“Witness nods head.”) when asked if her experience would affect her ability to be impartial. Several of her responses were equivocal at best.

This case differs from other Florida cases reversed for a trial court's refusal to strike a juror for cause in that Juror K. never verbally indicated an inability to be impartial.FN12 In Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994), the district court held that the trial court's failure to excuse a juror for cause (who had contacts with the United States Attorney's Office) constituted reversible error. The juror in Williams nodded his head when asked by defense counsel whether he had any apprehensions about being “a hundred percent sure that [he] could be fair and impartial.” The court further questioned the juror on his ability to be fair and impartial and the juror stated, “I hope that I can [be fair and impartial]” and “I'll be impartial because that is my character.” Id. at 978. In reversing the conviction, the district court in Williams stated: FN12. In the following instances, potential jurors gave equivocal verbal answers regarding their ability to be impartial, and it was held to be error for a trial judge to refuse to strike them for cause: “I would like to try,” Gill v. State, 683 So.2d 158, 160 n. 1 (Fla. 3d DCA 1996); “I hope that I can,” Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994); “I think I can,” Jones v. State, 660 So.2d 291, 292 (Fla. 2d DCA 1995); “I could do it,” Price v. State, 538 So.2d 486, 489 (Fla. 3d DCA 1989); “I believe so,” Coggins v. State, 677 So.2d 926, 927 n. 2 (Fla. 3d DCA 1996); “and I would try,” Auriemme v. State, 501 So.2d 41, 42 (Fla. 5th DCA 1986). A juror's subsequent statements that he or she could be fair should not necessarily control the decision to excuse a juror for cause, when the juror has expressed genuine reservations about his or her preconceived opinions or attitudes. Id. at 979. Under this analysis, Juror K.'s statements, “I don't think I can—this has been bothering me. I don't think I have—,” when coupled with the nod of her head in response to the question regarding her ability to be impartial, amounts to an expression of “genuine reservations,” about her potential bias. Consistent with the principles enunciated in Williams for resolving these issues, the Third District, in Perea v. State, 657 So.2d 8 (Fla. 3d DCA 1995), reversed the defendant's conviction based upon the trial court's error in denying a juror challenge for cause:

The juror at issue turned in a questionnaire answer indicating that he was unsure whether he could give defendant a fair trial. This was partly because of a sexual molestation experience of one of the juror's family members. As was true in the Bryant case, the prospective juror indicated that he would follow the court's instructions, but his other responses on the ability to give a fair trial were equivocal. We conclude that there must be a new trial. Id. at 9.

Finally, in Club West, Inc. v. Tropigas of Fla., Inc., 514 So.2d 426 (Fla. 3d DCA 1987), the Second District held that the trial judge's refusal to excuse a particular juror for cause was reversible error. The juror's husband owned stock in Raytheon, the defendant corporation, and stated that she might be inclined to let her knowledge of her husband's investment experiences with Raytheon figure into her decision in the case. In later questioning, however, she assured the court that she would weigh the evidence and impartially decide the case based on the evidence. In reversing the judgment, the district court stated: Where a juror initially demonstrates a predilection in a case which in the juror's mind would prevent him or her from impartially reaching a verdict, a subsequent change in that opinion, arrived at after further questioning by the parties' attorneys or the judge, is properly viewed with some skepticism. Id. at 427.

When a juror such as Ms. K. states that she can set aside her personal views and follow the law in light of the evidence presented, it is extremely difficult for the trial judge to divine whether she can in fact be impartial in light of her initial reservations founded on a negative personal experience, “partly because the juror may have an interest in concealing [her] own bias and partly because the juror may be unaware of it.” Though a juror might honestly believe she can be impartial, she nevertheless may have “such a close connection to the circumstances at hand that bias must be presumed.” Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir.1996)(quoting Smith v. Phillips, 455 U.S. 209, 221–22, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982), (O'Connor, J., concurring), and United States v. Scott, 854 F.2d 697, 699 (5th Cir.1988)), cert. denied, 520 U.S. 1159, 117 S.Ct. 1342, 137 L.Ed.2d 501 (1997). Although Ms. K. did not admit to bias, “rape is a traumatic and heinous violation of personal integrity and autonomy,” FN13 and in light of her equivocal responses, it defies human experience to believe that her emotional involvement would not compromise her impartiality, notwithstanding her best efforts to remain unbiased and objective. A vivid example of the depth of feeling experienced by a victim of a sexual battery is contained in a recent opinion from the Third District: FN13. Gonzales v. Thomas, 99 F.3d 978, 990 (10th Cir.1996).

The trial court conducted the initial segment of voir dire. Because this was a sexual battery case, the court asked whether any of the jurors had been the victim of sexual abuse, or had a relative, friend or acquaintance who had been such a victim. The court explained in substance that if the answer was yes, any follow-up questions would be asked privately with only the judge and attorneys present. Juror L. misunderstood the court's instruction. When the court began questioning individual prospective jurors in open court, Ms. L. answered the court's questions about employment, marital status, and prior jury service. She then went on to state that she had been a victim of incest, sexual molestation, and rape, and that she would not be able to give the defendant a fair trial. She then broke down crying and was comforted by the juror sitting next to her, juror Popejoy. The court called a recess and excused juror L. From further jury service. Bauta v. State, 698 So.2d 860, 861 (Fla. 3d DCA 1997).

The statute governing disqualification, states that “No person interested in any issue to be tried therein shall be a juror in any cause.” § 40.013(3), Florida Statutes (1995). I find it difficult to believe that a former rape victim who expressed concern about her assailant's early release and recidivism would not be “interested in any issue tried” where her options are to vote for the death penalty or risk the eventual parole of another convicted rapist (and murderer) who might “[do] it again.” “[J]urors should if possible be not only impartial, but beyond even the suspicion of partiality.” Hill v. State, 477 So.2d 553, 556 (Fla.1985) (quoting O'Connor v. State, 9 Fla. 215, 222 (1860)). I would find that Ms. K. should have been excused upon Gore's challenge for cause for the following reasons: (1) she violated the court's order by discussing the case with her husband; (2) her responses regarding her ability to be impartial were equivocal; and (3) it is clear from the record that Ms. K. was raped at knifepoint, was traumatized by the experience and was bothered by the fact that her assailant who received a twenty-year sentence only served six. Once he was released, he apparently raped again; “they let him out and he did it again.” A juror with these concerns should not be sitting on a case where she is called upon to determine whether the defendant, a convicted rapist, should be sentenced to life without parole for twenty-five years or death. When such a juror is challenged for cause, prudence would dictate that doubt as to the juror's impartiality should be resolved in favor of granting the challenge. Denying the challenge under these circumstances was an abuse of discretion. Consistent with my belief that Gore was denied an impartial and unbiased jury, I would reverse.FN14

FN14. Ms. K. sat on the jury even though Gore challenged her for cause, asked for additional peremptory challenges, specifically naming her as an objectionable juror, and after exhausting his peremptory challenges (including the additional one granted by the court) on other objectionable jurors, Gore objected to all the challenged jurors prior to the panel being sworn. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (“Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.”). ANSTEAD, J., concurs.

Gore v. State, 964 So.2d 1257 (Fla. 2007). (State Habeas)

Background: Following affirmance on direct appeal, 475 So.2d 1205, of convictions of first-degree murder, kidnapping, and three counts of sexual battery, federal appellate affirmance, 933 F.2d 904, of partial grant of federal habeas corpus relief, 763 F.Supp. 1110, and appellate affirmance, 706 So.2d 1328, of reimposed sentence of death, movant sought to vacate, set aside, or correct sentence. The Circuit Court, Indian River County, Dan L. Vaughn, J., denied motion, and movant appealed. In addition, movant brought original petition for writ of habeas corpus.

Holdings: The Supreme Court held that: (1) prosecutor did not knowingly present or fail to correct false testimony in resentencing proceeding; (2) lead defense counsel did not provide ineffective assistance at resentencing; (3) movant's 23 years served on death row did not amount to cruel and unusual punishment; and (4) state capital sentencing scheme did not violate Sixth Amendment right to jury trial or federal constitutional right to due process. Affirmed; petition denied.

PER CURIAM.

David Alan Gore appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. FN1 Gore also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. FN1. Gore's postconviction motion was filed under Florida Rule of Criminal Procedure 3.850 on September 28, 1999, and his amended 3.850 postconviction motion was filed on January 7, 2002. The current version of the rule, Florida Rule of Criminal Procedure 3.851, “appl[ies] to all postconviction motions filed on or after October 1, 2001.” Fla. R.Crim. P. 3.851(a).

FACTUAL AND PROCEDURAL HISTORY

This Court concisely detailed the facts surrounding the murder and other crimes in the direct appeal of Gore's resentencing: FN2. The resentencing occurred after a federal court overturned Gore's death sentence. See Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989), aff'd, 933 F.2d 904 (11th Cir.1991).

On July 26, 1983, Gore and his cousin Freddy Waterfield picked up teenagers Lynn Elliott and Regan Martin, who were hitchhiking. Soon after, Gore took a gun out of the glove compartment and handcuffed the two girls while Waterfield drove to Gore's parents' house. Once there, Gore bound each of the girls and placed them in separate bedrooms. Regan Martin testified that Gore cut off her clothes and forced her to perform oral sex on him while he threatened to kill her, and that Gore kept going back and forth between the two rooms. At one point when Gore was out of the room, Martin heard gunshots from outside. When Gore returned he placed her in a closet and then the attic and threatened to kill her if she tried anything. Soon after, Gore surrendered to the police and Martin was rescued. Elliott's nude body was found in the trunk of Gore's car.

Michael Rock, a teenager riding his bike by Gore's house on the day in question, testified that he saw Gore and a naked woman (Lynn Elliott) running up the driveway toward the road. Rock watched as Gore caught up with Elliott and dragged her back toward the house. He then saw Gore throw Elliott down and shoot her. Elliott had been shot twice, once in the back of the head and once in the jaw. Gore v. State, 706 So.2d 1328, 1331 (Fla.1997).

Gore was convicted of the first-degree murder of Lynn Elliot (“Elliot”), the kidnapping of Elliot and Regan Martin (“Martin”), and three counts of sexual battery upon Martin. See Gore v. State, 475 So.2d 1205, 1206 (Fla.1985). The jury recommended the death penalty for the murder of Elliot. See id. The trial court imposed the death sentence for the murder, and life sentences were imposed for the five other counts. See id.

On the initial direct appeal, Gore asserted the following claims involving the guilt phase: FN3 (1) the trial court erred in not permitting inquiry of the jurors with regard to a mercy recommendation; (2) the trial court erred by denying Gore's motion to suppress his confession; (3) the trial court erred by admitting into evidence two prejudicial photographs (one showed Elliot in the trunk of Gore's mother's car and the other showed Elliot's hands bound behind her back); (4) the trial court should have granted Gore's request for a mistrial because of an epileptic juror's interruption of Gore's counsel during closing argument; (5) the trial court erred in disallowing a demonstration in downtown St. Petersburg; (6) the trial court erred in precluding certain testimony of Detective Pisani; (7) the trial court erred by denying a request for a mistrial that was made due to comments and conduct by the State; (8) the trial court erred by denying a request for a mistrial that was made due to the testimony of Detective Kheun; (8) the trial court erred in restricting Gore's voir dire of the jury with regard to Waterfield's involvement; and (9) the trial court erred by denying Gore's motion for judgment of acquittal or motion for new trial. See id. at 1206-09. This Court denied all of Gore's claims in affirming his conviction and death sentence. See id. at 1211.

FN3. Gore also asserted claims involving the penalty phase, but we have omitted these claims due to the later resentencing (and the subsequent direct appeal) that occurred.

Gore petitioned for a writ of habeas corpus in the United States District Court for the Middle District of Florida. See Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989). In granting the petition, the federal court concluded that Gore's death sentence violated both Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore, 763 F.Supp. at 1119. After a new penalty phase proceeding was held, the jury unanimously recommended a death sentence. See Gore, 706 So.2d at 1331. The trial judge found the following six aggravators: (1) the capital felony was committed by a person under sentence of imprisonment (Gore was on parole for the armed trespass of a conveyance); (2) Gore's previous conviction for a violent felony (either for the armed trespass conviction, or the contemporaneous convictions for kidnapping and sexual battery); (3) the murder was committed while Gore was committing the offenses of sexual battery and kidnapping; (4) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest (Elliot was killed to prevent her from identifying Gore); (5) the capital felony was especially heinous, atrocious, or cruel (“HAC”) (Elliot was abducted at gunpoint, tightly bound, sexually assaulted, and dragged across a driveway); and (6) the murder was committed in a cold, calculated, and premeditated manner (“CCP”) (Gore's detailed plan and his threat to kill Martin accompanied by his statement that he was “going to do it anyway”). See id. The trial court found no statutory mitigating circumstances and five nonstatutory mitigating circumstances. See id. at 1331-32.FN4 The trial court found that the mitigating circumstances were substantially outweighed by the aggravating circumstances, and sentenced Gore to death. See id. at 1332.

FN4. The trial court found the following nonstatutory mitigating circumstances: (1) Gore's past conduct and probable future conduct in prison; (2) Gore's impoverished childhood; (3) Gore's exemplary conduct at the resentencing; (4) Gore's mental depression at the time he committed the murder; and (5) Gore's affection for his children and his separation from them. See Gore, 706 So.2d at 1332-33.

On direct appeal, this Court affirmed the death sentence that was imposed during resentencing. See id. at 1336. In that proceeding, Gore asserted the following claims: (1) the trial court erred during jury selection by denying challenges for cause to eight venire members; (2) the trial court erred by permitting the State to mislead the jury as to Gore's parole eligibility, which included responses that the trial court provided to two questions presented by the jury during deliberations; (3) the trial court erred in finding that the previous armed trespass conviction constituted a prior violent felony; (4) the trial court erred in giving jury instructions on the HAC and CCP aggravators because the instructions were unconstitutionally vague, the jury should have been instructed on the prohibition against the doubling of aggravators when they are based on the same circumstances, and the jury should have been instructed on specific nonstatutory mitigation; (5) the trial court erred in finding that the avoid arrest, CCP, and HAC aggravators had been established; (6) the State violated its agreements with the defense by utilizing particular testimony from witness Robert Stone (“Stone”); FN5 (7) the trial court erred by allowing a police officer to opine that Gore had lied to him; (8) it was improper for a county court judge, Judge Vaughn, to preside over this capital sentencing; and (9) Gore's resentencing violated his right to a speedy trial. See id. at 1332-36. FN6 This Court denied all of Gore's claims. See id. at 1336.

FN5. In separate trials, Stone personally prosecuted both Waterfield (who was Gore's accomplice) and Gore for their roles in the crimes surrounding the instant matter. FN6. Seven other issues that were raised by Gore were rejected by this Court without discussion due to their lack of merit.

On September 28, 1999, Gore filed a rule 3.850 motion for postconviction relief. On January 7, 2002, Gore filed an amended motion. On October 24, 2002, a HuffFN7 hearing was held. The trial court ordered an evidentiary hearing on claims III(1)(a), III(1)(b), and III(1)(c), which addressed counsel's presentation of witnesses and the failure to object to juror Tobin for cause; on claim III(3), which addressed the failure of Gore's counsel to elicit testimony with regard to the fee charged by the State's mental health expert, Dr. Cheshire; and on claim III(4), which addressed the failure of Gore's counsel to present witnesses to demonstrate that Gore suffered from neurological disorders. An evidentiary hearing was held and on June 9, 2004, the trial court issued an order that denied postconviction relief on all of his claims. This appeal followed. FN7. Huff v. State, 622 So.2d 982 (Fla.1993).

MOTION FOR POSTCONVICTION RELIEF

I. Presentation of Untruthful Parole Possibilities

Gore asserts that the State knowingly presented the false testimony of Stone that Gore could receive parole at “any time,” because of the new evidence discovered at the evidentiary hearing that Stone only met with the State prior to the resentencing to discuss his testimony and the State has imputed knowledge of the correct parole possibilities. A GiglioFN8 violation exists when (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. See Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). Once the first two prongs are established, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury's verdict. See id. at 1050. Gore also asserts that he was prevented from arguing the correct sentencing alternative of life imprisonment without eligibility for parole for fifty years as a mitigating circumstance, because the trial court incorrectly instructed the jury that the alternative to the death penalty was life imprisonment without eligibility for parole for twenty-five years. FN8. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

This general claim involving the alleged untruth with regard to Gore's parole possibilities was previously litigated on direct appeal. In Gore, 706 So.2d 1328, this Court's conclusions included the following: (1) a jury instruction that stated the life sentence for Elliot's murder included eligibility for parole after twenty-five years was correct; (2) the trial court's response to the second jury question asking when Gore could receive parole on the other life sentences was correct; FN9 and (3) any alleged error with regard to Stone's testimony that none of Gore's life sentences had a minimum mandatory sentence was not preserved for appellate review because defense counsel failed to object. See id. at 1332-33. Gore cannot bring a second appeal on the parole possibilities that were presented to the jury. See Maharaj v. State, 684 So.2d 726, 728 (Fla.1996) (“It is inappropriate to use a collateral attack to relitigate an issue previously raised on appeal.”). Despite couching his challenge in terms of a Giglio violation, Gore is making the same general argument that he made on direct appeal: that the parole possibilities presented to the jury were incorrect and, therefore, a resentencing is warranted. Gore is procedurally barred from making the same challenge in a postconviction proceeding. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (concluding that it is “not appropriate to use a different argument to relitigate the same issue”).

FN9. The trial court's response was that the jury should rely on their “own recollection of the evidence” that had been presented, which included the testimony of Stone that none of Gore's life sentences contained a minimum mandatory sentence. See Gore, 706 So.2d at 1333. The effect of no minimum mandatory sentences, according to Stone, was Gore could receive parole at “any time” on the sexual battery and kidnapping offenses.

As previously described, this Court on direct appeal has already specifically addressed (and concluded that it was without merit) Gore's current claim that the jury instruction which stated that Gore would be eligible for parole after twenty-five years for Elliot's murder was error. The one claim that was not specifically litigated on direct appeal addressed Stone's response to the question about Gore's kidnapping and sexual battery offenses, when Stone testified that Gore could receive parole at “any time.” On direct appeal, this Court held that Gore could not argue error with Stone's testimony about minimum mandatory sentences FN10 because it was procedurally barred due to the failure of Gore's counsel to object to it. See Gore, 706 So.2d at 1333. To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). In the instant postconviction matter, the Giglio claim involving Stone's “any time” testimony is without merit. FN11

FN10. This Court summarized the argument by Gore that was procedurally barred as “[o]n cross-examination, Stone testified that Gore's five life sentences boiled down to the equivalent of two consecutive life sentences, and that none of his sentences contain any minimum mandatory sentence.” Gore, 706 So.2d at 1333 n. 8.

FN11. Gore incorrectly asserts that the claim could not be brought on direct appeal, because evidence of this violation was not discovered until the 2003 evidentiary hearing. This new evidence was that the State met with Stone after he was subpoenaed, and discovered the substance of his testimony to be presented at the resentencing, including testimony that Gore could receive parole at “any time.” Gore's argument that this claim could not be brought on direct appeal is inconsistent with his argument that the State has imputed knowledge of the true parole possibilities. This imputed knowledge theory is based on both the Parole Commission and the prosecutor in the instant matter working for the government of the State of Florida. Gore alleged that the State presented untruthful parole possibilities through the testimony of Stone, and failed to correct this false information despite the State's imputed knowledge at that time of the true parole possibilities. Even without the “new” evidence, which was discovered in 2003, Gore could have challenged Stone's testimony in the direct appeal of the resentencing in 1997, because Stone had already testified and the State had imputed knowledge at the time of his testimony.

Even without the earlier procedural bar, we conclude that the requirements of Giglio are not met. Under the first prong of Giglio, the testimony of Stone with regard to when parole could occur was technically not false. Even Gore acknowledges that when Stone stated that he could receive parole at “any time,” Stone was being questioned with regard to the noncapital felonies of kidnapping and sexual battery. For first-time offenders, convictions for kidnapping and sexual battery offenses committed prior to October 1, 1983, do not require minimum mandatory sentences in Florida. See § 775.082(3)(a)(1), Fla. Stat. (2005). Gore could technically receive parole at “any time” for each of these particular offenses in isolation. There was no inquiry specifically about the practical or combined effect of all of Gore's sentences on his parole possibilities. Therefore, without a clear and more fully developed context, the first prong for a Giglio violation is unsatisfied as the State did not necessarily present false testimony through witness Stone.FN12

FN12. Even if this testimony could be deemed false, the lack of a broader context surrounding Stone's “any time” statement would prevent a conclusion, under the second prong of Giglio, that the State knowingly presented false testimony. Only if Gore's counsel had established that Stone was testifying to the combined or practical effect of Gore's various sentences could the State's presentation of Stone's testimony that Gore could receive parole at “any time” possibly meet the second prong under Giglio. Additionally, we conclude that the materiality prong of Giglio is not met because of the overwhelming evidence supporting the trial court's finding of the six aggravators at resentencing. See Ponticelli v. State, 941 So.2d 1073, 1088 (Fla.2006) (discussing that the third prong of Giglio “requires the State to prove that the presentation of false testimony was ‘harmless beyond a reasonable doubt’ or ... that ‘there is no reasonable possibility that the error contributed to the conviction.’ ”).

II. Improper Ex Parte Communications

Gore asserts that a letter sent by the State to the resentencing court on December 4, 1992,FN13 and a motion filed by the State on February 17, 1992,FN14 were improper ex parte communications. Gore also asserts that it was error for the trial court judge at resentencing to deny the motion to disqualify himself, because this judge was a material witness to the ex parte communications. In Rose v. State, 601 So.2d 1181 (Fla.1992), this Court discussed the negative effect of ex parte communications:

FN13. The State provided a “letter” to the trial court that was actually a cover letter and a memorandum of law, which extensively detailed findings on aggravating and mitigating circumstances. The State initially argued that the trial court requested this letter, but later withdrew this argument. The letter had a “cc” notation indicating that a copy was sent to Gore's counsel. FN14. The State's motion was entitled “Ex Parte Motion to Appoint Counsel, Transport the Defendant and Set Case for Pre-Sentencing and Sentencing Hearing,” and it presented arguments on these various issues.

Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.... ... Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all other interested parties.... ... The guaranty of a fair and impartial trial can mean nothing less than this. ... [W]e understand that this would not include strictly administrative matters not dealing in any way with the merits of the case. Id. at 1183 (quoting In re Clayton, 504 So.2d 394, 395 (Fla.1987) and State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939)). Unlike Rose and other cases in which this Court has ordered a resentencing, such as Reese v. State, 728 So.2d 727, 728 (Fla.1999), or ordered an evidentiary hearing on the improper ex parte communication issue, both parties in the instant matter were given an opportunity to make their arguments to the judge at the resentencing prior to the issuance of the sentencing order. After the jury returned its death recommendation, Gore responded negatively to the court's question as to whether there was anything additional that needed to be addressed. Subsequently, a notice of hearing, which was to occur on December 8, 1992, was sent to all parties on November 23, 1992. Gore was provided with the opportunity to make an argument as to the proposed mitigators and aggravators after December 4, 1992, which was the date the State's letter was filed with the trial court. Therefore, this letter from the State is not the type of ex parte communication with which this Court had concerns in Rose, which is a communication that risks the judge “being unduly swayed by unrebutted remarks” and destroys the “appearance of the impartiality of the tribunal.” 601 So.2d at 1183.

Also, even though portions of the trial court's findings do closely resemble the language in material submitted by the State, the two are not identical. Instead, the trial court made additional findings that were not proposed by the State. For example, the trial court found that the CCP aggravator was supported by the fact that Gore concealed Elliot's body in the trunk of a vehicle and attempted to divert the police by making phony 911 calls. These arguments were not made by the State, demonstrating that the State did not effectively write the resentencing order through the material submitted. See Jones v. State, 845 So.2d 55, 64 (Fla.2003) (holding that the defendant failed to offer competent evidence that the resentencing court failed to engage in an independent weighing of aggravators and mitigators, because the version of the order drafted by the prosecutor was not identical to the final order entered by the trial judge). Therefore, during the Huff hearing, the trial court did not err in finding that the resentencing court independently weighed the aggravators and mitigators, rather than solely relying on the State's letter.

Additionally, Gore's claim that the letter constituted an improper ex parte communication is based on speculation. See Jones, 845 So.2d at 64 (rejecting defendant's request for postconviction relief for an alleged improper ex parte contact, because the defendant's assertions were based on speculation and “[p]ostconviction relief cannot be based on speculative assertions”). Speculation just as easily supports the scenario that Gore's counsel was provided a copy of the State's letter, consistent with the letter's “cc” notation that indicated such, and that Gore's counsel may have misplaced the copy. At the Huff hearing, Gore withdrew his assertion that the trial court had requested that the State provide this letter, because there were “no facts to back up that allegation.” Accordingly, there is no support for Gore's argument that another resentencing is necessary due to an ex parte communication.

The claim involving the motion filed by the State also fails on the merits. The State's motion requested action that was strictly administrative and had nothing to do with the merits of the case. See Arbelaez v. State, 775 So.2d 909, 916 (Fla.2000) (holding that an ex parte communication that involved the judge setting a time period for when a response to a 3.850 motion could be filed was strictly administrative under Rose ). The results of motion subject to this claim were as follows: (1) a hearing date was set; (2) defense counsel was appointed; and (3) a determination was made that Gore should be transported. These are not merit-related issues.FN15 Accordingly, this ex parte communication involving the State's motion is also not improper.

FN15. Contrary to Gore's argument, the significance of these issues does not factor into the Rose test. It is entirely possible for an ex parte communication to involve a matter that is extremely significant but also strictly administrative, so it is not improper under Rose.

If an argument that the ex parte communications were improper is “conclusively refuted” by the record, the trial court's denial of an evidentiary hearing should be affirmed. See Waterhouse v. State, 792 So.2d 1176, 1189 (Fla.2001) (affirming the trial court's denial of an evidentiary hearing on the ineffective assistance claim involving the failure of defendant's counsel to impeach a State witness, because the claim was conclusively refuted by the record). Based upon our prior analysis determining that a resentencing is not warranted, we conclude that an evidentiary hearing on these alleged ex parte communications is also not needed because the record conclusively refutes Gore's argument that they were improper.

Gore also claims it was error for the trial judge to deny the motion to disqualify, because this judge was a material witness to the allegedly improper ex parte communication. A motion to disqualify is governed substantively by section 38.10, Florida Statutes (2005), and procedurally by Florida Rule of Judicial Administration 2.330. The rule provides that a motion to disqualify shall show that “the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge”; or that the judge is either an interested party to the matter, related to an interested party, related to counsel, or “is a material witness for or against one of the parties to the cause.” Fla. R. Jud. Admin. 2.330(d). The standard of review of a trial judge's determination on a motion to disqualify is de novo. See Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004), cert. denied, 544 U.S. 930, 125 S.Ct. 1669, 161 L.Ed.2d 495 (2005). Whether the motion is legally sufficient is a question of law. See Barnhill v. State, 834 So.2d 836, 843 (Fla.2002). The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Fla. R. Jud. Admin. 2.330(d)(1). In the instant matter, there was no error in the trial court's denial of the motion to disqualify due to legal insufficiency, because the alleged ex parte communications with the trial judge, as noted above, were not improper. Compare Hodges v. State, 885 So.2d 338, 354 (Fla.2004) (holding that the trial court did not err in rejecting defendant's motion to disqualify because the only basis supporting a well-grounded fear that he would not receive a fair trial was that the ex parte communications were improper, and this claim was rejected), with Roberts v. State, 840 So.2d 962, 968 (Fla.2002) (holding that the motion to disqualify was legally sufficient, because the judge had asked the State to draft the sentencing order and had failed to independently weigh the aggravators and mitigators).

III. Ineffective Assistance of Counsel During the Resentencing

Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that successful ineffective assistance of counsel claims satisfy the following two requirements:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). There is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel's performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Id. at 1048.

A. Decisions Involving Witness Stone

Gore argues that counsel was ineffective in deciding to call witness Stone during resentencing. This claim fails on the merits. Gore never produced lead counsel Nickerson at the evidentiary hearing, which would have provided insight into his decisions with regard to witness Stone, so the available testimony is relegated to that of co-counsel Udell. Despite Udell's description of Nickerson's decision to call Stone as “surprising,” we conclude that the decision could have been considered “sound trial strategy” from the perspective of Nickerson at the time. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The decision to call Stone was made solely by Nickerson. At the evidentiary hearing, Udell testified, “I think it's quite clear that we all kn [e]w that Mr. Stone was not going to be friendly to David Alan Gore in his testimony....” Despite this predicted unfriendliness, Stone was seemingly called for a strategic reason that both Udell and this Court recognized on direct appeal: to elicit testimony that Waterfield was not sentenced to death and, because the State had argued that both Gore and Waterfield were equally culpable, proportionality necessitated that Gore also not receive the death penalty. See Gore, 706 So.2d at 1335. Other possible strategic reasons for calling Stone include the presentation of testimony that Gore had received life sentences for the kidnapping and sexual battery crimes perpetrated on Elliot and Martin (illustrating that Gore would likely never be released from prison), and to elicit testimony demonstrating the inconsistent statements that the State made with regard to the culpability of Gore and Waterfield. With three viable strategies, Nickerson's decision to call Stone does not qualify as deficient performance. Gore has not met his burden in overcoming the presumption of “sound trial strategy.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Indeed, it appears that Gore's counsel should have located and presented evidence from Nickerson, as his testimony would have directly revealed his strategies in calling Stone.FN16

FN16. After the evidentiary hearing, the trial court found that Gore gave no explanation as to why Nickerson could not testify at the hearing or what efforts were made to secure his attendance.

Gore also argues that counsel was ineffective for the failure to interview or depose Stone between the time he was subpoenaed and the time he testified. At the evidentiary hearing, Stone testified that after he was subpoenaed by Gore's counsel, he had no contact with either Nickerson or Udell, but he did discuss what his testimony on cross-examination might be as to parole possibilities with the State. Udell speculated that Nickerson's reason for not speaking with or deposing Stone was that perhaps Nickerson already knew the testimony Stone would deliver. Again, Gore's claim is hindered by Nickerson not testifying at the evidentiary hearing. Speculation by co-counsel Udell as to why Nickerson did not speak to Stone prior to the hearing is insufficient to meet Gore's weighty burden on this ineffective assistance claim. Gore presented no evidence at the hearing that this failure to contact Stone prior to the hearing fell below “prevailing professional standards.” Maxwell, 490 So.2d at 932. Moreover, even if Nickerson's performance was deficient, there was no prejudice. It still would have been reasonable to call Stone due to the aforementioned strategic reasons.

Gore also argues that counsel was ineffective for the failure to object to Stone's testimony that Gore could receive parole at “any time,” which led to a waiver of this issue for direct appeal. We conclude that Gore's counsel at resentencing was not deficient for failing to object. As previously described, this questioning occurred in the narrow context of the kidnapping and sexual battery charges, rendering the “any time” response to be arguably technically correct. Thus, the decision to not object can be considered within “sound trial strategy” at the time. Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see Wright v. State, 581 So.2d 882, 883 (Fla.1991) (holding that the ineffective assistance claim with regard to the failure to object had no merit, because this error was “strategic in nature and this Court will not second guess trial strategy employed by trial counsel”). Again, because lead counsel Nickerson did not testify at the evidentiary hearing, Gore has not met his weighty burden. To satisfy the deficient performance requirement, evidence was needed but lacking that alternative courses were not considered in deciding upon this trial strategy of not objecting to Stone's “any time” testimony. See Occhicone, 768 So.2d at 1048. Additionally, there was also no prejudice. As described above, if the “any time” testimony was error it was nothing more than harmless error due to the record and overwhelming evidence supporting the trial court's finding of the six aggravators at resentencing. Accordingly, the failure to object does not undermine our confidence in the outcome.

Gore also argues that counsel was ineffective for the failure to present additional witnesses to illustrate that Gore could not receive parole for fifty years. We disagree. At the evidentiary hearing, Udell testified that he remembered testimony from Stone that Gore received life sentences for the kidnapping and sexual batteries involving Elliot and Martin, so it was unlikely that Gore would ever be released from prison. The likely combined or practical effect of Gore's various sentences was already illustrated to the jury, so Gore's counsel did not need to present another witness. See Whitfield v. State, 923 So.2d 375, 380 (Fla.2005) (holding that the failure to call certain witnesses was not ineffective assistance, because witnesses had already presented similar evidence and “counsel is not required to present cumulative evidence”). Additionally, the significance of the testimony that the combined or practical effect of Gore's sentences was that he would not receive parole for fifty years would have been immediately negated through damaging cross-examination that could potentially reveal that Gore could technically receive parole after twenty-five years for Elliot's murder in isolation. See Jones v. State, 928 So.2d 1178, 1185 (Fla.2006) (citing Johnson v. State, 921 So.2d 490, 501 (Fla.2005)) (“Counsel cannot be deemed ineffective for failing to present evidence that would open the door to damaging cross-examination and rebuttal evidence that would counter any value that might be gained from the evidence.”). Even if deficient performance was found, the prejudice requirement has not been met. On direct appeal, this Court held that the jury instruction indicating that Gore would be eligible for parole after twenty-five years was not error. See Gore, 706 So.2d at 1332. With the jury being instructed on the possibility of parole after twenty-five years, it is highly unlikely that a witness who testified that Gore, for all practical purposes, could not receive parole for fifty years would have changed the outcome at the resentencing. Additionally, the trial court at resentencing found six aggravating circumstances and no statutory mitigating circumstances. See id. at 1331-32. Accordingly, we conclude that the failure of Gore's counsel to offer a witness on this subject did not so “affect[ ] the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell, 490 So.2d at 932.

B. Failure to Impeach Dr. Cheshire with Financial Bias

Gore argues that counsel was ineffective at the resentencing for the failure to question Dr. Cheshire about his fee and how often he testified for the State. Gore's counsel was not deficient in this regard. As with other aspects of the resentencing, lead counsel Nickerson was responsible for the strategy utilized with Dr. Cheshire on cross-examination. At the evidentiary hearing, Udell testified that he did not know why Cheshire was not questioned by Nickerson on financial bias. Again, Gore has not met his burden on this ineffective assistance claim because Udell cannot provide evidence about what Nickerson may have been thinking in his decisions, and Nickerson was not produced as a postconviction witness. Udell did testify, however, that he believed questions as to financial bias are overrated as “jurors know these people are getting paid.” Therefore, Nickerson's decision to not impeach through questions targeted at financial bias can certainly be viewed as “sound trial strategy.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The record on resentencing demonstrates that Nickerson extensively cross-examined Cheshire on his substantive conclusions, which, unlike financial bias questions, directly attacked his conclusions. Gore's expert at resentencing stipulated that there is no absolute rule or checklist for financial bias questions that must be asked of expert witnesses under all circumstances. FN17. We note that testimony from Gore's alleged expert that Nickerson's cross-examination of Cheshire did not meet the local community's standard of care for lawyers is weakened by the following, which demonstrate his lack of expertise on criminal capital matters: (1) he is a civil trial lawyer who only handles personal injury and legal malpractice cases; (2) he admitted that he is unqualified to handle a capital case; and (3) this was the first time that he had testified as an expert on the subject.

Also, even if the deficiency prong was satisfied, there was no prejudice. Dr. Cheshire testified that Gore was not an alcoholic, did not have a dependent personality disorder, and did not have an extreme mental or emotional disturbance; but was instead suffering from adult antisocial behavior without mental illness. He also testified that it was impossible for Gore to ingest the amount of alcohol he claimed and show no signs of impairment. The testimony of Cheshire contradicted some of the mitigators that Gore claimed, but other evidence presented was sufficient to refute those mitigators even without the testimony of Cheshire. For example, Gore's argument that he was intoxicated by alcohol at the time of the incident was refuted by numerous other individuals, rather than just Cheshire. At the resentencing, Martin testified that Gore did not smell of alcohol, did not slur his words, did not have bloodshot eyes, and was in complete control. Eyewitness Michael Rock testified that Gore did not stagger in the driveway when he ran after Elliot. Detective Redstone, Captain Dubois, and Officer Raymond all testified that Gore had no signs of alcohol impairment at the time of arrest. Therefore, Cheshire's testimony was not essential to the trial court finding the existence of no statutory mitigators on resentencing.

Even if one or more mitigators could have been found by the trial court had Cheshire been impeached with financial bias, a death sentence would have likely still resulted due to the strength of the six aggravators that were independently found. First, Gore was under a sentence of imprisonment at the time of Elliot's murder, because he was on parole for the armed trespass conviction. Second, the armed trespass conviction was a prior violent felony due to the discovery of a handgun and police scanner in the victim's car with Gore, and the discovery of handcuffs and rope in Gore's car nearby at the time of this offense. Third, the Elliot murder was clearly committed while Gore was engaged in the crimes of kidnapping and sexual battery, because Gore was convicted of kidnapping Elliot and the testimony at resentencing established that Gore had committed sexual batteries on Elliot. Fourth, the avoid arrest aggravator was supported by the murder occurring when Elliot tried to escape and only after she struggled during Gore's attempts to return her to the house. Fifth, the HAC aggravator is supported by the following: (1) Gore “hogtied” Elliot so tightly prior to her murder that a welt formed; (2) Gore sexually battered Elliot prior to her murder; and (3) Gore dragged Elliot, who was nude, along the ground back toward the house immediately prior to shooting her. Sixth, the following “overwhelming” evidence helped establish the CCP aggravator: (1) Gore said to the girls at the house, “Don't try anything or I'll come back and kill you”; (2) Gore told Martin, while she was performing oral sex on him, to “suck harder” or else he was “going to slice [her] throat”; (3) Gore said to Martin, in reference to slicing her throat, that he was “going to do it anyway”; (4) Gore used a police scanner to monitor threats of detection by the police; (5) Gore concealed Elliot's body in a car trunk; and (6) Gore placed phony 911 calls in an attempt to divert police from his residence. See Gore, 706 So.2d at 1334 (discussing that the evidence in support of the CCP aggravator in the instant matter was “overwhelming”); Fotopoulos v. State, 608 So.2d 784, 792-93 (Fla.1992) (holding that the murder was committed in a cold, calculated, and premeditated manner due to the heightened premeditation illustrated by how the defendant carefully planned and prearranged the murder). Accordingly, the failure to impeach Cheshire with financial bias does not undermine our confidence in the outcome.

C. Co-Counsel Udell's Deference to Lead Counsel Nickerson

Gore argues that co-counsel Udell was ineffective due to his total deference to lead counsel Nickerson. We conclude that this decision by Udell to defer to Nickerson could have been considered “sound trial strategy” at the time, because of Udell's reasonable beliefs that Nickerson had superior qualifications to take the lead in the case. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. At the evidentiary hearing, Udell testified that he deferred to Nickerson because Nickerson was intelligent and had better experience with capital cases and Gore had a lot of personal confidence in him. We conclude that Udell made a strategic decision to defer to Nickerson, and such was arguably “reasonable under the norms of professional conduct.” Occhicone, 768 So.2d at 1048. When Udell finally discovered at the evidentiary hearing that Nickerson had only practiced law for approximately three years at the time of the 1992 resentencing, Udell stated that he was “surprised” by this information. Any mistaken belief that Udell had as to Nickerson's experience was reasonable, because according to Udell, Nickerson appeared to know everybody and was completely “immersed” in the area of capital litigation. Additionally, Udell was never aware that there was a bar grievance pending against Nickerson during preparation for and the actual resentencing. Finally, contrary to Gore's argument, we conclude that Udell did not totally defer to Nickerson but, rather, assumed an active role by providing input on trial strategy. For example, Udell discussed possible nonstatutory mitigators with Nickerson. Therefore, Udell's strategic decision to defer on a limited basis to the apparent abilities of Nickerson did not constitute deficient performance.

D. Failure to Discover and Present Additional Mitigators Relating to Alleged Neurological Disorders

Gore argues that his counsel was ineffective due to the failure to investigate his past involvement with toxic citrus groves that allegedly caused neurological disorders, which could have then been offered as mitigating evidence. Gore has not established that the performance of his counsel was deficient. The general rule is “[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence.” Ventura v. State, 794 So.2d 553, 570 (Fla.2001) (quoting Rose v. State, 675 So.2d 567, 571 (Fla.1996)). Although Nickerson apparently did not ask Gore's mother any specific questions about agricultural chemicals or the citrus groves, Nickerson did ask her about Gore's health as is demonstrated by her resentencing testimony that ant bites had given Gore convulsions when he was seventeen months old. Additionally, Gore's counsel asked her whether Gore was an alcoholic. Udell's testimony that Nickerson “got very close to David and David's mom and dad” indicates that there was a good and open relationship with essential persons to assist with the investigation as Nickerson was analyzing Gore's past. Finally, Udell testified that he was present during conversations that Nickerson had with Gore's family with regard to Gore's life and a search and investigation into Gore's past did occur. Cf. Ragsdale v. State, 798 So.2d 713, 719 (Fla.2001) (holding that counsel was ineffective due to an inadequate investigation and failure to present particular mitigators when “counsel's entire investigation consisted of a few calls made by his wife to Ragsdale's family members”); Heiney v. State, 620 So.2d 171, 172 (Fla.1993) (holding that there was ineffective assistance when counsel “totally fail[ed] to investigate potential mitigating factors”).

The decision by Gore's counsel not to pursue a theory that pesticide exposure from the citrus groves may have led to neurological disorders without proper supporting evidence, and then present this as a mitigator, was within the range of “sound trial strategy” at the time this decision was made. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. At the evidentiary hearing, Udell stated that it is dangerous to make tenuous arguments that sound only like “lawyer talk,” because the jury might punish that party for making a seemingly senseless argument. Nickerson could have engaged in that thought process when he determined that he would not pursue this argument, but again, this was not confirmed because Nickerson did not testify at the evidentiary hearing. Additionally, those directly and personally involved with Gore's life were also apparently of the same view that this was a weak theory as Udell testified that he did not believe the issue of pesticides from the citrus groves was ever raised by Gore or his family. Gore's failure to inform counsel about the alleged exposure to the pesticides precludes Gore from arguing that counsel was ineffective for failing to offer this potential mitigating evidence. See Stewart v. State, 801 So.2d 59, 67 (Fla.2001) (holding that the failure to communicate instances of childhood abuse to defense counsel or the defense psychiatrist precludes an ineffective assistance claim for failing to pursue such mitigation). Also, the testimony of two entomologists at the evidentiary hearing demonstrated that the theory that Gore suffered neurological disorders from pesticide exposure was extremely tenuous, at best. Dr. Nigg testified that it is uncertain how the agricultural chemicals, to which Gore was supposedly exposed by working and living near the citrus groves, affect humans on a long-term basis. In analyzing a test done on Gore's blood, he said some of his chemical composition levels, such as with mercury and cadmium, were troublesome because they were too low. Also, Gore's lead level of 20 ug/dL was considered a “ normal lead blood level.” This testimony contradicts Gore's assertion that he was overexposed to high levels of agricultural chemicals. Similarly, Dr. Napp testified that he had no knowledge of anyone developing health problems from lead arsenic, and he opined that there are no long-term effects associated with exposure to organo-phosphates and there has never been a case of overexposure to Calthane or Ethion in Florida. These are all agricultural chemicals to which Gore was allegedly exposed. Finally, there was no direct evidence, such as a medical diagnosis, that Gore actually suffered from any neurological disorders, which he now argues resulted from exposure to agricultural chemicals. Instead, only evidence that Gore suffered from totally different health problems, such as high fevers and convulsions, was presented.

Instead, Gore's counsel focused on other theories and presented extensive mitigating evidence related to those theories at the resentencing. Gore's counsel called approximately ten witnesses, including Michael Maher and Peter Maculuso, who were both mental health experts. In preparing for his testimony, Dr. Maher reviewed a medical history of Gore, which was provided by Gore's counsel, and questioned Gore about his background. The mitigation that was presented included the following: (1) Gore was the son of hard-working parents; (2) Gore was shy and introverted in comparison to Waterfield; (3) Gore's divorce and separation from his children had negatively affected him; (4) Gore used alcohol around the time of the murder; and (5) Gore was an alcoholic. Moreover, Udell testified that all mitigation that “seemed consistent with [Gore's] best interests” was presented at the resentencing. This evidence establishes that Gore's counsel was not deficient.

Even if Gore's counsel was deficient, we conclude that there was no prejudice. As previously described, extensive mitigation was already presented at the resentencing. Even if the trial court at resentencing had found this one additional mitigating factor involving neurological disorders from citrus grove pesticide exposure, which is a tenuous theory at best, this would not have overcome the trial court's finding of six aggravating factors which, as previously described, are supported by strong evidence. Therefore, we conclude that counsel's failure to present the mitigating evidence with regard to the citrus grove pesticide exposure is not of such a nature that “confidence in the outcome is undermined” due to the failure to present this evidence. Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

E. Failure to Challenge Juror Tobin for Cause

Gore argues that his counsel was ineffective for the failure to present a challenge for cause with regard to juror Tobin at the resentencing, after Tobin stated during voir dire that an impoverished background may not be a proper mitigating circumstance. Nickerson's failure to challenge this juror for cause was not deficient performance. We have reviewed the record and conclude that Tobin did not give unequivocal answers that would render him subject to removal for cause. See Spencer v. State, 842 So.2d 52, 68 (Fla.2003) (“It is sufficient if the juror can lay aside his or her opinion or impression and render a verdict based on the evidence presented in court.” (citing Castro v. State, 644 So.2d 987, 990 (Fla.1994))). Instead, Tobin also stated “that he would be fair and impartial and would follow the law as instructed by the court.” There was also arguably no prejudice as the trial court likely would not have excused Tobin for cause had this challenge been made. See Dufour v. State, 905 So.2d 42, 54 (Fla.2005) (holding that the ineffective assistance claim for failing to strike a juror was without merit, because the juror was “properly permitted to serve because she clearly indicated an ability to follow the trial court's instructions and weigh the aggravating and mitigating factors” through later responses, despite the initial statement of bias by the juror).

F. Failure to Propose an Expanded CCP Jury Instruction

Gore argues that his counsel was ineffective for the failure to propose an expanded CCP jury instruction. Gore's counsel was not deficient in this regard. The resentencing of Gore occurred prior to Jackson v. State, 648 So.2d 85 (Fla.1994), in which this Court held that the standard CCP jury instruction was unconstitutionally vague. See id. at 87. Gore's counsel was not deficient for the failure to offer an alternative CCP instruction, because Gore's counsel was not even required to initially object to the standard CCP jury instruction as this jury instruction was considered proper at that time. See Downs v. State, 740 So.2d 506, 518 (Fla.1999) (holding that because the CCP instruction given at the resentencing was approved by this Court as the proper standard jury instruction, defense counsel was not ineffective for failing to object). Additionally, there was no prejudice. On direct appeal, this Court previously determined that regardless of the type of CCP instruction given to the jury, the jury would have returned a finding of CCP due to the overwhelming evidence of this aggravator. See Gore, 706 So.2d at 1334. Accordingly, any error with regard to the CCP jury instruction was harmless. See id.

IV. Death Row is Cruel and Unusual Punishment

Gore argues that his twenty-three years served on death row is cruel and unusual punishment, and violates both the Eighth and Fourteenth Amendments of the United States Constitution. This Court has consistently rejected the argument that serving time on death row is cruel and unusual punishment, regardless of the time served. See Lucas v. State, 841 So.2d 380, 389 (Fla.2003) (holding that over twenty-five years on death row is not cruel and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (holding that twenty-three years on death row is not cruel and unusual punishment). Gore's exercise of his constitutional rights through the appeal and postconviction process has prevented his death sentence from being executed, so he may not claim a constitutional violation due to his length of time on death row. See Knight v. State, 746 So.2d 423, 437 (Fla.1998) ( “[N]o federal or state courts have accepted [the] argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.”). Therefore, Gore's claim is without merit. FN18. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Gore argues that the death penalty is unconstitutional under the Eighth Amendment of the United States Constitution. This claim is procedurally barred, because Gore failed to make this argument in his direct appeal of the resentencing. See Gore, 706 So.2d 1328; Maharaj, 684 So.2d at 728. Additionally, there is nothing in the record that indicates Gore properly preserved this argument for appellate review during the resentencing. See Fotopoulos, 608 So.2d at 794 & n. 7 (holding that the argument that “Florida law unconstitutionally creates a presumption of death” was not properly preserved at the trial level). Even without this procedural bar, this Court has repeatedly summarily denied this claim due to its lack of merit, regardless of the circumstances. See Atwater v. State, 788 So.2d 223, 228 (Fla.2001); Hunter v. State, 660 So.2d 244, 252-53 (Fla.1995); Fotopoulos, 608 So.2d at 794.

PETITION FOR WRIT OF HABEAS CORPUS

I. Apprendi and Ring Violation with Death Penalty Statute

Gore asserts that his sentence of death must be vacated because according to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Florida's capital sentencing scheme violates his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process under the United States Constitution. The claim is without merit. This Court addressed the contention that Florida's capital sentencing scheme violates the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring, in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. See also Jones, 845 So.2d at 74. We conclude that Gore is likewise not entitled to relief on this claim. Furthermore, one of the aggravating circumstances found by the trial court in this matter was Gore's prior conviction of a violent felony, “a factor which under Apprendi and Ring need not be found by the jury.” Jones v. State, 855 So.2d 611, 619 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (rejecting the Ring claim where one of the aggravating circumstances found by the trial judge was the defendant's prior conviction for a violent felony), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). Finally, this Court has previously held that Ring and Apprendi cannot receive retroactive application. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (holding that Ring does not apply retroactively in Florida in postconviction proceedings to cases that were final on direct review at the time of the Ring decision); Hughes v. State, 901 So.2d 837, 840 (Fla.2005) (holding that Apprendi does not apply retroactively in Florida in postconviction proceedings to cases that were final on direct review at the time of the Apprendi decision). Here, the claim is procedurally barred as Gore's direct appeal to this Court occurred prior to the decisions in both Ring and Apprendi. Accordingly, we reject this claim.

II. Ineffective Assistance of Counsel During the Appellate Process

Gore asserts that counsel was ineffective for the failure to challenge the constitutionality of Florida's death penalty statute under Ring and Apprendi. As a general rule, claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). As described above, we conclude that there is no merit to Gore's claim that Florida's death penalty statute is unconstitutional under Ring and Apprendi. Therefore, we conclude that appellate counsel was not ineffective for failing to bring this meritless claim.

CONCLUSION