Gordon v. State

350 So.3d 25

Michael A. GORDON, Appellant,

v.STATE of Florida, Appellee.

No. SC20-284

Supreme Court of Florida.

September 1, 2022

Howard L. "Rex" Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Rick A. Buchwalter, Assistant Attorney General, Tampa, Florida, for Appellee

COURIEL, J.

Michael A. Gordon appeals his convictions and sentences of death for the January 15, 2015, first-degree murders of Patricia Moran and Deborah Royal. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Gordon's convictions and sentences.

I

The victims in this case were murdered at home, seemingly at random, having had no connection to the pawnshop robbery that unfolded earlier on the day they died.

A

Shortly after 5:30 p.m. on January 15, 2015, Chad O'Brien, the manager of a Cash America Pawnshop in Auburndale, in Polk County, and Richie Soto, one of his pawnbrokers, were talking in the store's office when three armed men rushed into the store, demanding at gunpoint that O'Brien and Soto get down. Gordon, one of those armed men, pointed a rifle at O'Brien; another pointed a handgun at Soto.

After noticing O'Brien’s keys, Gordon threatened to kill O'Brien if he did not immediately unlock the case. O'Brien complied. Gordon and an accomplice with a crowbar began stuffing jewelry into a bag. When the robber with the handgun yelled that they were out of time, the three men grabbed their loot and bolted from the store. They loaded into a red SUV idling outside and fled in the direction of Haines City.

Back at the pawnshop, Soto called 911 and reported the robbery, which the store's security cameras had captured. Some of the stolen jewelry contained GPS tracking devices that had been activated when the items were removed. The Polk County Sheriff's Office had access to the devices’ tracking system and officers were immediately sent to follow the items’ GPS signals.

Three Haines City Police Department officers responded to radio calls that the fleeing SUV was headed their way. As the officers closed in on it, someone in the SUV opened fire on them, with one shot striking a patrol car. The SUV continued to race toward Haines City, its occupants continually firing at the pursuing officers. When two more officers joined the chase, another patrol car was hit. The SUV was speeding and evasively weaving in and out of traffic. At last, it made a sharp left turn, nearly tipping over in the process, drove through a grass median, and pulled into the Chanler Ridge subdivision in Haines City.

Officers followed the SUV into the neighborhood, where it had foundered in a field. Its occupants fled in several directions. One man was tracked down by a police dog. Two men had better luck and avoided detection at the scene but were arrested the following morning.

Meanwhile, one block away, three Chanler Ridge residents had stepped outside to see what was going on and spotted a man running. He identified himself as a neighbor and said that he was fleeing people who were trying to shoot him. The residents were suspicious; they did not recognize him. One ran to flag down the police officers who were swarming the subdivision. Seeing this, the unrecognized man fled toward Astor Drive. Hearing the sirens, additional neighborhood residents gathered and noticed clothes strewn across multiple yards. One of the residents who had earlier encountered the stranger found a rifle in their yard and called 911. An officer's police dog tracked the scent from the items to 618 Astor Drive.

While the residents who had encountered the stranger were calling 911, a different resident called the authorities to report that she heard screaming from her neighbors’ house—at 618 Astor Drive. Officers formed a perimeter around the house. It was then dark enough that the police had started using their flashlights. While searching the fenced-in backyard of the house, two officers pointed their lights through a window to see inside the house. Two unclothed women with serious lacerations lay motionless on a bloody floor. The officers yelled out what they saw to nearby colleagues and their discovery was soon broadcast over the radio to all officers on the scene.

Deputy Jonathan Quintana-Rivera was standing in the driveway guarding the front of the house. Officer Eric Nickels was in the street, about 35 feet from the garage door, near the curb. Other officers were preparing to enter the house. From inside a closed garage they heard loud noises followed by the revving of a car engine, then the sound of squealing tires. Gordon, at the wheel of the victims’ car, burst through the closed garage door. The garage door collapsed on top of the car, staying on its roof while the car careened down the driveway.¹

To avoid being hit by the car, Deputy Quintana-Rivera dove from the driveway onto the lawn. The garage door on top of the car blocked Deputy Quintana-Rivera's view of the driver. Officer Nickels, trying to get out of the car's path, scrambled toward the lawn but fell down in the road. Before he could get up, the car made a hard left out of the driveway and began accelerating towards him. Officers began firing at the car. Even though Officer Nickels could not see who was driving, he aimed for the car's windshield, trying to hit the driver. The car sped down Astor Drive past Officer Nickels, made a sharp right turn, and crashed to a halt in a nearby field.

An officer and his police dog apprehended Gordon about 60 to 75 feet from the crashed vehicle. Gordon was handcuffed, placed in a patrol car, and read his rights. Following Miranda² warnings, Gordon told officers that a man named Tony Wright, as well as two of Wright's family members, were still in the house at 618 Astor Drive.

While Gordon was being arrested, a SWAT team was clearing the house. They found no other suspects, but they did find the remains of 72-year-old Patricia Moran and her 51-year-old daughter, Deborah Royal. Their throats had been slashed, their bodies repeatedly stabbed. Several knives were scattered near the bodies. There was blood throughout the house; two T-shirts in the washing machine were covered in blood that was later identified as Gordon's. Medical examiners later concluded that neither woman died immediately. Each had defensive wounds indicating she attempted to defend herself before she died from the attack.

B

The State charged Gordon in a 15-count indictment for the events of January 15. The offenses included: two counts of first-degree murder, burglary with assault or battery, conspiracy to commit armed robbery, robbery with a firearm, grand theft, fleeing or attempting to elude, three counts of attempted first-degree murder with a firearm, three counts of attempted first-degree murder with a vehicle, grand theft of a vehicle, and possession of a firearm by a convicted felon.³

During jury selection, the assistant state attorney asked members of the venire to raise their hands if someone close to them had ever been charged with a crime. Kimberly James was among the potential jurors who did. She explained that her first cousin had been sentenced to 25 years in prison, "[b]ut it didn't affect me." When asked if there was "anything about that incident that would impact [her] ability to be fair and impartial as it relates to this case," she answered "[d]efinitely not."

At a different point in voir dire, the State asked James whether she ever had any casual conversations with anyone about the death penalty. "No," she said. Asked whether her jury service at this trial had been the first time she had ever really thought about death penalty, James said that she had considered the subject "thinking to myself," perhaps while watching crime-related news. Asked what her thoughts about the death penalty were when she saw news about it, she said, "sometimes it's merited and sometimes it's not ... I'm not there to look like at evidence to see whether the person should die, you know. I'm not God."

The State followed up by asking whether her use of the phrase, "I'm not God," was a reference to a religious belief. James replied, "It has nothing to do with religion. It's just how I am as a person. I want to see the evidence. If it warrants death, so be it. If it warrants life, life." Asked if she would like to serve on the jury, James said she would. Counsel for the State and for Gordon went on to conduct an extensive colloquy with members of the panel, including James, on a number of topics.

The State ultimately exercised one of its peremptory strikes to remove James—who, like Gordon, is black—from the panel. Gordon's counsel asked the State to supply a race-neutral reason for the strike. The State replied that James's statement, "I'm not God," caused concern about whether she could be fair and impartial in determining whether the death penalty was appropriate in this case. At that point, Gordon's counsel stated that the State's reason for striking James was not sufficiently race-neutral.

Applying a version of the procedure required under the circumstances in a Melbourne⁴ and Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge, the trial court found that Gordon was black; that the venire member in question, James, was black, and that an already-seated juror appeared to be black. Next, the trial court considered the State's explanation for striking James. It said, "the Court is not persuaded that the comments taken, all the answers and responses given by Ms. James to the questions both by the State and defense, I do not find that what she said and the reason articulated by the State is sufficient to allow the cause^{[5 ]} challenge."

When a panel of 12 jurors had been assembled, the State again moved to strike James. The trial court asked whether the State had any additional grounds. The State answered that James had also indicated during voir dire that her first cousin had...