Gorby v. StateGorby v. State
Olen Clay Gorby appeals the denial of his motion for postconviction relief filed pursuant to
The facts of this case were presented in Gorby v. State, 630 So.2d 544, 545-46 (Fla. 1993):
Gorby was paroled from a Texas prison on April 11, 1990. [n. 1] Later that month he met Robert Jackson, who offered him a ride to Tennessee. At trial Jackson testified that, after a couple of days in Tennessee, they drove to Panama City, Florida. The two men had a falling out, and Jackson went back to Tennessee. He returned to Panama City on Sunday, May 6, and checked into a homeless shelter. During a church service at the shelter that evening, Gorby came in and thanked everyone for the help they had given him and then left. The victim, who was crippled from polio, occasionally picked up people from the shelter to do odd jobs around his home. Two witnesses testified that they saw Gorby with the victim on May 6. The next day the victim‘s neighbor saw a note on the door of his house trailer. The note, saying he would return on Tuesday, aroused her suspicions, and, on entering the trailer, she found the victim dead of head injuries. A handwriting expert testified that Gorby, not the victim, wrote the note, and Gorby‘s fingerprint was found on a jar in the victim‘s kitchen. Receipts tracked the victim‘s credit cards through Louisiana and Texas.
[Note 1]. He had been serving a sentence for burglary of a dwelling. Gorby has an extensive criminal history dating back to 1968 with multiple convictions of, among other things, burglary, robbery, armed robbery, and attempted homicide. He committed these crimes in six states under at least a dozen different names.
On May 8, 1990, Gorby arrived at his friend Allan Brown‘s home in San Antonio, Texas, driving the victim‘s car. Brown and his wife saw Gorby replace the car‘s Florida license plate with Louisiana plates. Gorby told them that he had killed someone and stolen the car and some credit cards. Several days later Gorby sold the car to Cleo Callaway. A BOLO [n. 2] had been issued for the car because of its connection with a homicide, and on June 19 the police found the car and arrested Callaway. San Antonio police arrested Gorby several days later, and he was extradited to Florida. Gorby made a statement acknowledging that he knew the victim, but claiming that Jackson killed the victim and stole his car and credit cards.
[Note 2]. Be on the look out.
The state charged Gorby with first-degree murder, grand theft auto, burglary with a battery, and armed robbery. The jury convicted him as charged on the first three counts and of robbery on the fourth. At the penalty
phase the jury recommended that Gorby be sentenced to death, which the trial court did.
The jury voted 9-3 to recommend a sentence of death. The trial court found four aggravating factors,1 and no statutory mitigating factors. The trial court also found several nonstatutory mitigating factors,2 but also determined that they did not outweigh the aggravating factors and, therefore, a sentence of death was appropriate. In October 1995, Gorby filed his first motion for postconviction relief pursuant to
3.850 APPEAL
Gorby raises five broad claims,7 with numerous subclaims, in his 3.850 appeal.
Gorby contends that his trial counsel was ineffective in the penalty phase for failing to properly investigate the existence of mitigation evidence and for failing to present that mitigation evidence to the jury. To establish a claim of ineffective assistance of counsel, two elements must be proven:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216, 219 (Fla.1998). Moreover, to establish prejudice:
The defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Rutherford, 727 So.2d at 220. We determine that all of Gorby‘s assertions of ineffective assistance based on the failure to investigate and present mitigation evidence are unavailing.
Gorby contends that his trial counsel was ineffective for failing to interview his father, Ernie, and for interviewing his other family members in a group instead of individually. We reject both assertions. Trial counsel conducted a phone interview with Gorby‘s father and determined, as a reasonable tactical decision,
Gorby also asserts his trial counsel was ineffective for not providing Dr. Goff with evidence of Gorby‘s childhood drinking. He further argues that his trial counsel was ineffective for not calling Dr. Goff to testify during the penalty phase. The record refutes these assertions. Dr. Goff testified in detail during the guiltinnocence phase concerning the effects of alcohol dependence on Gorby‘s behavior, the impact of an organic personality syndrome, and the implications from head trauma Gorby suffered while he was a young boy, which occurred in a collision with a moving vehicle. Dr. Goff further stated that these factors could have made Gorby act impulsively, with a “hair trigger.” Equally important, during the penalty phase Gorby‘s trial counsel summarized for the jury Dr. Goff‘s testimony from the guilt-innocence phase, and argued that it should be considered as evidence of statutory mental health mitigation.10 Furthermore, the trial judge found as nonstatutory mitigation that Gorby‘s drinking contributed not only to his having some inability to conform his conduct to the requirements of law but also to his having suffered some level of emotional disturbance. When the above facts are juxtaposed against the four strong aggravators found in Gorby‘s case we determine, as did the postconviction judge, that there is no reasonable probability of a different outcome during the penalty
Gorby makes numerous miscellaneous contentions regarding his trial counsel‘s failure to present mitigating evidence. We determine that each is either wholly unsupported by evidence, was actually presented as mitigation evidence, or is related to nonstatutory mitigation found to exist by the trial judge.12 Therefore, with regard to these contentions, Gorby has failed to meet the prejudice prong of Strickland and its progeny. We further reject Gorby‘s claims to relief under Brady and Giglio, regarding the issue of his trial counsel‘s ineffectiveness during the penalty phase, as insufficiently pled or wholly conclusory.
Gorby is entitled to no relief regarding his claims of ineffective assistance of counsel during the guilt-innocence phase (claims 3(a) through (e)).13 In claim 3(a), Gorby asserts that trial counsel was ineffective for not discovering that State witness Robert Jackson, a Florida prison inmate, had written a letter to the prosecution before he testified at Gorby‘s trial. In the letter, Jackson stated that he would be an “unwanted witness” if he were made to appear in court wearing any restraints or clothing indicating his status as a prison inmate.14 He also indicated his desire that he not be temporarily incarcerated, during the time he was to be available to testify, in any facility in Bay County (where Gorby‘s trial was conducted) due to an unexplained fear for his safety. Gorby asserts
Claim 3(b) warrants little discussion. Gorby asserts that his trial counsel was ineffective for not discovering that State witness Cleo Callaway was psychotic when he identified Gorby in a photographic police lineup and when he testified at Gorby‘s trial. Callaway testified that he purchased an automobile from Gorby in Texas. Police later determined that Gorby had stolen the automobile from his victim. Gorby makes a wholly conclusory claim concerning Callaway‘s mental state.16 Moreover, the State produced other witnesses who testified that Gorby was in possession of the victim‘s automobile. Gorby has shown no prejudice to support claim 3(b) and we therefore deny relief. We also deny his claim to relief under Brady.
In claim 3(c), Gorby asserts that his trial counsel was ineffective for not challenging the qualifications of State witness Jan Johnson, a blood spatter expert. Gorby claims that because Ms. Johnson trained under blood spatter expert Judith Bunker, against whom allegations of exaggerating her educational qualifications had previously been lodged, trial counsel was ineffective for not challenging Ms. Johnson‘s supposed lack of qualifications. We have previously determined that the issue of whether Judith Bunker‘s allegedly exaggerated educational qualifications were presented to a jury would have had little effect on the outcome of a case, given that she had been recognized as a blood spatter expert in numerous other cases. See Correll v. State, 698 So.2d 522, 523-24 (Fla. 1997). An extension of this logic applies here. It was established at trial that Ms. Johnson had also been recognized as a blood spatter expert in a significant number of cases in Florida courts. Moreover, her findings were entirely corroborated by another expert whose qualifications were
Gorby contends, in claim 3(d), that his trial counsel was ineffective for not properly impeaching the medical examiner, Dr. William Sybers, regarding Sybers’ possible bias favoring the State during his testimony. At the time Dr. Sybers testified at Gorby‘s trial in 1991, Sybers’ wife had recently died under suspicious circumstances.18 Gorby also claims that a Brady violation occurred because the State failed to reveal that Dr. Sybers was a suspect in his wife‘s death. Finally, he claims that a Giglio violation occurred because the State knowingly presented false testimony by Dr. Sybers. Because Gorby‘s assertions are wholly conclusory and require improper layers of inference, we disagree with all three points.
Gorby fails to establish that any charges were pending against Dr. Sybers when he testified. He also does not present any instance in which he was prevented from exploring any bias on the part of Dr. Sybers. During the penalty-phase closing argument, Gorby‘s trial counsel actually used some of Dr. Sybers’ testimony in an attempt to counteract the State‘s evidence regarding the heinous, atrocious, or cruel (HAC) aggravating circumstance. In her order denying relief pursuant to Gorby‘s 3.850 motion, Judge Costello noted that during postconviction proceedings Gorby presented no evidence that materially contradicted Dr. Sybers’ trial testimony.19 Dr. Sybers’ testimony focused on the cause of death and how long the victim may have been conscious after receiving the first blow to the head; none of his testimony specifically indicated that Gorby was the killer. Logic does not dictate that we should countenance, on one hand, the attempt by Gorby‘s trial counsel to use some of Dr. Sybers’ testimony for Gorby‘s benefit and, on the other hand, also countenance the attempt by Gorby‘s postconviction counsel to show that Gorby‘s trial counsel was ineffective in his impeachment of Dr. Sybers. Reasoned trial tactics do not amount to ineffective assistance of counsel. See, e.g., Ferguson v. State, 593 So.2d 508, 511 (Fla.1992).
We also reject Gorby‘s Brady and Giglio claims asserted in connection with Dr. Sybers’ testimony. Gorby fails to meet the prejudice element of Brady; in sum, he asks us to infer, without supporting evidence, that Dr. Sybers “must” have been biased toward the State when he testified. A mere stacking of inferences does not constitute a Brady violation. See Porter v. State, 653 So.2d 374, 379 (Fla. 1995) (determining that mere inferences that a deal was cut between the State and a witness in a petitioner‘s trial, and that the State failed to disclose the deal to the petitioner‘s counsel, did not constitute a Brady violation in absence of evidence that
In claim 3(e) Gorby contends that his trial counsel was ineffective for failing to undertake a proper cross-examination of Allen and Marissa Brown. Mr. and Mrs. Brown both of whom are deaf, testified for the State with the assistance of a sign language interpreter. The order denying postconviction relief notes that Gorby‘s trial counsel “questioned the interpreter at length as to her qualifications and ability to adequately interpret the testimony of the witness[es].” We also note that the trial judge questioned the interpreter before she began interpreting for Mr. and Mrs. Brown, and made a specific finding that the interpreter not only was able to communicate with the witnesses but also was able to translate statements of the witnesses and all parties to the case. Furthermore, during the evidentiary hearing on Gorby‘s 3.850 motion, the sign language interpretation expert called by Gorby said she could not opine that any substantive error in the sign language interpretation occurred at trial. These facts are dispositive of Gorby‘s claim and require that no relief be given on this issue.20
Gorby‘s next broad claim is that his right to a full and fair evidentiary hearing was denied (claims 4(a), 4(b), and 4(d)). This claim is entirely unavailing. Gorby first asserts that his right to an evidentiary hearing was denied because the State declined to provide immunity from perjury charges to Jerry Wyche, which Gorby claims would have enabled Wyche to testify at his postconviction evidentiary hearing. Gorby sought to reopen his evidentiary hearing based on evidence that Wyche perjured himself when he testified at Gorby‘s trial.21 While Gorby contends that the State‘s refusal to grant Wyche immunity from perjury charges hindered his ability to develop further claims under Brady or Giglio, he fails to cite any case in which the State was compelled to offer immunity to a witness so that a petitioner could further develop claims pursuant to a 3.850 motion. Moreover, Wyche is not the only person to whom Gorby made inculpatory statements.22 Therefore, we deny relief.23
In claim 4(b), Gorby contends that he was unable to present a credible case during postconviction proceedings because of the underfunding and understaffing of the Office of the Capital Collateral Counsel and the unconstitutionality of
Gorby further asserts that he was denied access to public records regarding Dr. Sybers, the medical examiner who testified during his trial. The postconviction judge denied access because the records were deemed part of an ongoing criminal investigation. Gorby offers no credible reason why the postconviction judge erred in her ruling. We deny relief.24
In claim 5 Gorby posits that he did not receive the competent assistance of a mental health expert to which he is entitled under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake requires that a defendant be afforded access to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087. Our review of the record convinces us that Gorby received a competent mental health examination. The trial court granted the request by Gorby‘s trial counsel to have Dr. John Goff, a neuropsychologist, appointed as a confidential mental health expert.25 Dr. Goff examined Gorby using a battery of standard tests, engaged in pretrial discussions with Gorby‘s counsel, and testified as a witness for Gorby during the guilt-innocence phase of his trial. During his trial testimony Dr. Goff expressed his belief that Gorby suffered from organic personality syndrome and substance abuse problems, and that there were no indications of mental retardation. Therefore, Dr. Goff‘s examination itself was competent because it certainly was not “so grossly insufficient [as to] ignore clear indications of either mental retardation or organic brain damage.” State v. Sireci, 502 So.2d 1221, 1224 (Fla. 1987).
Gorby also contends that his rights under Ake were violated because Dr. Goff did not testify on his behalf during the penalty phase, nor was he given the proper information to enable him to do so. Several facts militate against a determination that Gorby‘s Ake rights were violated in this manner. Gorby‘s trial counsel testified at the evidentiary hearing on the 3.850 motion that the main defense in Gorby‘s trial was that someone else killed the victim, not Gorby. To the extent that Gorby‘s counsel decided, as a reasonable trial tactic, not to have Dr. Goff testify during the penalty phase because it might have led to Goff‘s having to make contradictory assertions during the guilt-innocence and penalty phases, no relief is due under Ake. Trial counsel summarized Dr. Goff‘s testimony during the guilt-innocence phase in his penalty phase closing argument; therefore, the jury was able to consider the information contained in Dr. Goff‘s testimony. Furthermore, many of the matters on which Gorby asserts Dr. Goff would have testified during the penalty phase were found by the trial judge to be nonstatutory mitigating factors. Gorby has failed to show how he was prejudiced by not having Dr. Goff testify during the penalty phase in addition to his prior testimony.
Gorby also asserts that the postconviction judge misinterpreted the testimony of mental health experts during the evidentiary hearing. We disagree. After reviewing materials provided to him by
PETITION FOR WRIT OF HABEAS CORPUS
A petition for writ of habeas corpus is the proper vehicle for asserting the ineffectiveness of appellate counsel. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In considering the petition for habeas relief on the basis of ineffective assistance of appellate counsel, we must determine:
[W]hether 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). Moreover, “[t]he defendant has the burden of alleging a specific,
In claim 1 of his habeas petition, Gorby asserts that his appellate counsel was ineffective for not presenting the unconstitutionality of the general jury qualification procedure employed by the circuit court in Bay County at the time of his trial. In our consideration supra of Gorby‘s claim in his 3.850 appeal that his trial counsel was ineffective regarding the general jury qualification procedure, we determined that the issue was procedurally barred. The record is clear that Gorby‘s trial counsel failed to preserve the issue for review. Appellate counsel cannot be deemed ineffective for failing to raise an issue not preserved for review. See Johnson v. Singletary, 695 So.2d 263, 266-67 (Fla.1996); Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995).
Gorby contends in claim 2 that his appellate counsel was ineffective for not raising, as fundamental error, the issue of whether there was factual support for the finding of the heinous, atrocious, or cruel (HAC) aggravator by the trial judge. Contrary to Gorby‘s contention, this issue was presented in the direct appeal of his sentence of death. There, we stated that “[the HAC aggravator] pertains to the nature of the killing itself, and the record supports finding it.” Gorby, 630 So.2d at 547. Through his habeas petition Gorby impermissibly attempts to again review the issue of the HAC aggravator. See Teffeteller v. Dugger, 734 So.2d 1009, 1025 (Fla.1999).
In claim 3 Gorby presents several arguments that his appellate counsel was ineffective for failing to raise several instances of fundamental error. Fundamental error has been described as error “so prejudicial as to vitiate the entire trial.” Chandler v. State, 702 So.2d 186, 191 n. 5 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). We have also stated that the fundamental error doctrine appertains only “where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla.1988).
First, Gorby contends that fundamental error occurred when the prosecutor assigned “points” to some of the aggravating
Gorby further asserts that fundamental error occurred because his appellate counsel failed to challenge the State‘s use of surprise witnesses during the guilt-innocence phase. Specifically, Gorby states that during the trial and with very short notice to the defense, the State produced witnesses Dale Skipper and Gwen Beck. He claims it was fundamental error for the trial judge to have denied the defense‘s request for a continuance which would have allowed more time to prepare for the depositions of Skipper and Beck.30 Gorby also contends that his appellate counsel was ineffective for not presenting this issue of fundamental error on appeal. We disagree on both points. The decision to grant or deny a continuance is a matter within the sound discretion of the trial judge; the decision should not be disturbed absent an abuse of discretion. See Bouie v. State, 559 So.2d 1113, 1114 (Fla. 1990). No abuse of discretion occurred here. Neither Skipper‘s nor Beck‘s testimony was crucial to the State‘s case.31 Without it, the State still had overwhelming evidence of Gorby‘s guilt. Moreover, to be effective, counsel is not required to raise every conceivable issue on appeal. See Atkins v. Dugger, 541 So.2d 1165, 1167 (Fla.1989). Appellate counsel‘s decision not to include this issue does not approach the margins of ineffectiveness. The result in this case did not depend on Skipper‘s or Beck‘s testimony. Therefore, appellate counsel‘s decision not to include this issue for appellate review does not undermine our confidence in the correctness of the result reached on appeal.
Gorby next contends that his appellate counsel was ineffective for not raising the issue of fundamental error concerning the prosecutor‘s disparaging
Gorby also emphasizes that his appellate counsel was ineffective for not challenging the prosecutor‘s improper bolstering of State witnesses Allen Brown and Michael Bennett. When Brown and Bennett were on the stand, the prosecutor stated that he had a “rule” for each State witness and that he required each witness “to tell the truth.” Gorby primarily relies on the distinguishable case of Cisneros v. State, 678 So.2d 888 (Fla. 4th DCA 1996). In Cisneros, the prosecutor argued to the jury that the testimony of a police officer, who was the key State witness, should be believed because the police officer would never have violated his sacred oath to tell the truth. The district court remanded for a new trial because the State‘s case hinged on the police officer‘s testimony. The same situation does not apply in Gorby‘s case. The State produced other witnesses here who corroborated the testimony of Brown and Bennett. Therefore, the State‘s case did not hinge on the testimony of either one of them.34 We determine that no fundamental error occurred regarding this issue, nor was Gorby‘s appellate counsel ineffective for not raising it.35
Finally, with regard to the intertwined issues of fundamental error and ineffective assistance of appellate counsel, Gorby claims that his appellate counsel was ineffective for not asserting fundamental error regarding certain disparaging remarks made by the prosecutor both during opening statement and the questioning of the State‘s first witness. Gorby further avers that the prosecutor‘s remarks amounted to the impermissible introduction of nonstatutory aggravating factors. Gorby first alludes to the prosecutor‘s remark during opening statement that Gorby showed “no remorse” for killing the victim. The trial judge sustained defense counsel‘s objection to the remark. Gorby‘s reliance on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), is misplaced. Maynard primarily concerned the issue of the “heinous, atrocious, or cruel” aggravating circumstance under Oklahoma‘s criminal statutory scheme. We do not find Maynard applicable to the prosecutor‘s “no remorse” remark in Gorby‘s case.36 At most, harmless
Gorby also presents a claim of ineffectiveness based on the failure to attack the prosecutor‘s remark during opening statement that the witnesses the State planned to call, and with whom Gorby had engaged in previous contact, were not churchgoing members because Gorby only confided in people who were “of the same breed” as himself. In support of this position Gorby relies on Marchina v. State, 702 So.2d 1369 (Fla. 1st DCA 1997), which is factually distinguishable. In Marchina, the defendant was on the witness stand when the prosecutor sought to explore other charges that might have been pending against the defendant, and as to which the district court determined that the prejudice outweighed the probative value. No such situation occurred in Gorby‘s case, and the trial judge appropriately instructed the jury that the comments of both sides in their opening statements were not to be considered as evidence. Therefore, we deny relief and determine that at most harmless error occurred. Finally, Gorby contends that reversible error had occurred when the State asked one of its witnesses whether Gorby was “the type of individual you want riding around with you.” The trial judge properly sustained defense counsel‘s objection. In light of the overwhelming evidence of Gorby‘s guilt, we again determine that no fundamental error occurred which should have been presented for review. Moreover, counsel‘s effectiveness does not require the presentation of every conceivable issue on appeal. See Atkins v. Dugger, 541 So.2d at 1167. Counsel cannot be faulted for declining to raise on appeal an issue that would have failed. See Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994).
Gorby contends in claim 4 that his appellate counsel was ineffective for failing to assert on appeal the issue of the trial judge‘s refusal to allow individual and sequestered voir dire regarding each venireperson‘s views on the death penalty. The decision to grant individual and sequestered voir dire is within the trial judge‘s broad discretion. See Davis v. State, 461 So.2d 67, 69-70 (Fla.1984). No abuse of discretion occurred in Gorby‘s case. The heart of Gorby‘s assertion is that venirepersons, who were questioned by the State during voir dire but who never sat on Gorby‘s jury, unduly influenced with their responses to the State‘s questions some or all of the jurors who ultimately determined Gorby‘s guilt and recommended that he be sentenced to death.37 Our review of the record convinces us that the responses given by the venirepersons were both truthful and dispassionate, and did not pose any threat toward preventing the jurors in Gorby‘s trial from performing their duties in an objective manner. Gorby‘s claim is
Claim 5 of Gorby‘s habeas petition states that appellate counsel was ineffective for failing to include the issue of whether Gorby‘s jury weighed invalid aggravators during the penalty phase. First, Gorby states that the trial court was required to give a limiting instruction to the jury regarding the “under sentence of imprisonment” aggravator, and that his appellate counsel was ineffective for not presenting the issue. Specifically, Gorby avers that the trial judge was required to inform the jury that Gorby was on parole when he murdered the victim. Gorby‘s trial counsel did not object to the standard instruction given to the jury. Thus, the issue was not preserved for appeal. Appellate counsel is not ineffective for failing to raise an issue not preserved for appeal. See Johnson v. Singletary, 695 So.2d at 266-67. Moreover, Gorby cites no precedent requiring a trial judge to give the limiting instruction he seeks. Therefore, this issue also lacks merit.38
Gorby also contends that his appellate counsel was ineffective for not challenging the jury instruction for the “prior violent felony” aggravator. Gorby‘s trial counsel did not object when the standard jury instruction was given, so appellate counsel was not ineffective for not presenting argument on the issue.39 Gorby cites no precedent stating that the standard jury instruction is invalid, and we decline to make that determination here.40 This issue lacks merit.
Gorby‘s challenges regarding appellate counsel‘s ineffectiveness on the issue of the “pecuniary gain” instruction also must fail. Trial counsel did not object to the wording of the standard jury instruction; consequently, appellate counsel was not ineffective for not raising the issue. Moreover, appellate counsel‘s decision not to present this issue does not undermine our confidence in the outcome of the appellate process. Gorby cites no precedent persuading us that the pecuniary gain instruction is infirm.41
Gorby‘s challenges regarding the heinous, atrocious, or cruel (HAC) aggravator fail because they are procedurally barred. On direct appeal, we not only considered the merits of the finding of HAC, we also determined that the jury instruction did not constitute error under Espinosa. See Gorby, 630 So.2d at 548. Finally, we reject Gorby‘s assertion that cumulative errors
Claim 6 of Gorby‘s habeas petition requires only brief discussion. Gorby contends that his appellate counsel was ineffective for not raising the issue of the trial judge‘s failure to find and weigh the applicable mitigating circumstances. The sentencing order is replete with instances in which the trial judge considered both statutory and nonstatutory mitigating circumstances, and weighed them against the strong aggravators in Gorby‘s case. We determine that this claim is entirely without merit and likewise determine that appellate counsel‘s decision not to generate an issue does not constitute ineffectiveness.
Claims 7 and 8 also require little discussion. In claim 7 Gorby states that the jury instructions given during the penalty phase shifted the burden to him to prove that a life sentence was the appropriate penalty. He also argues that “prosecutorial argument” shifted the burden. Gorby cites no specific language from the jury instructions or from the prosecutors’ penalty phase closing argument to support his assertion. Moreover, we have previously stated that the standard jury instructions do not shift the burden in the manner Gorby claims. See Shellito v. State, 701 So.2d 837, 842-43 (Fla.1997). In claim 8 Gorby challenges the constitutionality of Florida‘s death penalty statute. He makes no assertion of ineffective assistance of counsel; therefore, his claim is procedurally barred because it could have been raised on direct appeal. Moreover, we have previously considered similar constitutional challenges and found them lacking in merit. See, e.g., Fotopoulos v. State, 608 So.2d 784, 794 n. 7 (Fla.1992).
CONCLUSION
After careful consideration of all of Gorby‘s claims, we determine that he is entitled to no relief. Accordingly, we affirm the denial of Gorby‘s motion for postconviction relief filed pursuant to
It is so ordered.
WELLS, C.J., and SHAW, HARDING, and QUINCE, JJ., concur.
LEWIS, J., concurs specially with an opinion, in which SHAW, J., concurs.
ANSTEAD and PARIENTE, JJ., concur in result only.
LEWIS, J., specially concurring.
While I concur in the majority‘s reasoning in this case, I write to express my serious concerns with regard to the potential for reversible error when general jury qualification procedures similar to those described as occurring in Gorby‘s trial are employed. These procedures were described as including the dual tasks of ensuring that those persons summoned for jury service were qualified to serve and determining whether any person had circumstances that included the statutory criteria for being excused from service. See
Equally troubling is that remonstrations directed to end this process appear to have gone unheeded. Twelve years ago, in Mackey v. State, 548 So.2d 904 (Fla. 1st DCA 1989), the First District Court of Appeal considered whether it was reversible error for the State Attorney for the Fourteenth Judicial Circuit to have made an appearance in a Bay County circuit court before potential jurors, outside the presence of defendant Mackey and his counsel.44 The State Attorney indicated, in his testimony at a hearing on Mackey‘s motions for a mistrial and to strike the entire venire assigned to his trial proceeding, that he routinely appeared at juror orientation proceedings to introduce himself and to explain the process of being a juror. He would then explain the general qualifications for being a juror and ask if any potential juror met one or more of the statutory criteria to be excused from service. The State Attorney also mentioned that if any defense counsel were in the courtroom during the juror orientation, he made it a habit of introducing them.45 The trial court denied Mackey‘s motions. While the court in Mackey determined that no reversible error occurred, it also indicated its deep concerns over the juror
In these days of heightened judicial and public scrutiny at each step in the criminal justice process, such a procedure seems to us to invite challenges such as the one [made in Mackey‘s case]. We cannot say that, in the future, questions of substance will not arise concerning state attorney qualification of jurors which may dictate a result different than that reached here.
It should always be remembered not only that criminal proceedings must be fair, in fact, they must appear to be fair.... An imagined advantage on one side or the other in a criminal proceeding can be as destructive of the integrity of the process as can a real advantage.
Despite this clear expression of concern from the First District, there are allegations that the jury qualification procedures employed in Bay County may have remained unchanged for some extended period of time. Gorby‘s allegations present at least the specter of abuse of the right to a fair and impartial jury—a right of such value that the importance cannot be overstated. Though Gorby‘s claim fails here, the warning must be sounded in no uncertain terms that such abuse, if and when it occurs, cannot be tolerated. Where such fundamental rights are concerned, the appearance of fairness is as important as the underlying fairness itself.
SHAW, J., concurs.