IN THE SUPREME COURT OF FLORIDA...Aja v. State, 658 So.2d 1168 (Fla. 5th DCA 1995) ..66 Bello v. State , 547 So.2d 914 (Fla. 1989) ..93 Bertolotti v. State, 476 So.2d 130 (Fla. 1985)

i

IN THE SUPREME COURT OF FLORIDA

CASE NUMBER SC11-475

LEONARD PATRICK GONZALEZ,

Appellant,

v.

THE STATE OF FLORIDA,

Appellee.

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A CAPITAL APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ESCAMBIA COUNTY

CRIMINAL DIVISION

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INITIAL BRIEF OF APPELLANT J. RAFAEL RODRIGUEZ Specially Appointed Public Defender for Leonard Patrick Gonzalez LAW OFFICES OF

J. RAFAEL RODRIGUEZ 6367 Bird Road Miami, Florida 33155 (305) 667-4445 (305) 667-4118 (FAX)

ii

Oral Argument Requested

Appellant, Leonard Patrick Gonzalez, respectfully requests oral argument in

this capital appeal.

iii

TABLE OF CONTENTS

Page(s) ORAL ARGUMENT REQUESTED ..ii

TABLE OF CITATION OF AUTHORITIES ..vi

INTRODUCTION ..1

STATEMENT OF JURISDICTION ..1

STATEMENT OF THE CASE ..1

STATEMENT OF FACTS ..8

ISSUES PRESENTED

(I)

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S COMMENTS DURING OPENING STATEMENT

(II)

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S IMPROPER GUILT PHASE CLOSING ARGUMENTS

(III)

THE TRIAL COURT ERRED IN PERMITTING THE JURY TO HAVE A MAGNIFYING GLASS DURING DELIBERATIONS OVER DEFENSE OBJECTION

iv

(IV)

DEFENDANT’S CONVICTIONS MUST BE REVERSED DUE TO THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS

(V)

THE TRIAL COURT ERRED DENYING DEFENDANT’S MOTION TO COMPEL A BILL OF PARTICULARS AS TO AGGRAVATING CIRCUMSTANCES

(VI)

THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO PRESENT TESTIMONY CONCERNING A 1992 ROBBERY DURING THE PENALTY PHASE

(VII)

THE TRIAL COURT ERRED IN PENALTY PHASE JURY INSTRUCTIONS

(VIII)

DEFENDANT IS ENTITLED TO RESENTENCING BASED UPON THE PROSECUTOR’S IMPROPER PENALTY PHASE ARGUMENTS

(IX)

THE TRIAL COURT’S SENTENCE OF DEATH SHOULD BE VACATED SINCE DEATH WAS A DISPROPORTIONATE SENTENCE IN THIS CASE

v

(X)

THE TRIAL COURT’S SENTENCING ORDER HAS ERRORS THAT, BOTH INDIVIDUALLY AND CUMULATIVELY, REQUIRE REVERSAL OF DEFENDANT’S DEATH SENTENCE AND A REMAND FOR RESENTENCING BY THE TRIAL COURT

(XI)

CAPITAL PUNISHMENT AS PRESENTLY ADMINISTERED VIOLATES THE STATE AND FEDERAL CONSTITUTIONS

(XII)

DEFENDANT’S SENTENCE OF DEATH MUST BE VACATED DUE TO THE CUMULATIVE EFFECT OF THE PENALTY PHASE ERRORS

STANDARD OF REVIEW ..53

SUMMARY OF ARGUMENT ..55

ARGUMENT ..59

CONCLUSION ..99

CERTIFICATE OF SERVICE. ..100

CERTIFICATE OF COMPLIANCE ..100

vi

TABLE OF CITATION OF AUTHORITIES

Cases Page(s) Aja v. State, 658 So.2d 1168 (Fla. 5th DCA 1995) ..66 Bello v. State, 547 So.2d 914 (Fla. 1989) ..93 Bertolotti v. State, 476 So.2d 130 (Fla. 1985) ..75,78,80 Bonifay v. State, 680 So.2d 413 (Fla. 1996) ..61,66 Brooks v. State, 762 So.2d 879 (Fla. 2000) ..61 Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed.2d 231, 105 S.Ct. 2633 (1985) ..73,82 Card v. State, 803 So.2d 613 (Fla. 2001) ..82 Cisneros v. State, 678 So.2d 888 (Fla. 4th DCA 1996) ..60 City of Elgin v. Nofs, 200 Ill. 252, 65 N.E. 679 (1902) ..67 Clark v. State, 609 So.2d 513 (Fla. 1992) ..91 Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998) ..82 Cole v. State, 701 So.2d 845 (Fla. 1997) ..54 Cook v. State, 542 So.2d 964 (Fla. 1989) ..91,93 Craig v. State, 510 So.2d 857 (Fla. 1987) ..91 Crump v. State, 622 So.2d 963 (Fla. 1993) ..66 Dailey v. State, 594 So.2d 254 (Fla. 1992) ..61,65 Darling v. State, 808 So.2d 145 (Fla. 2002) ..54

vii

D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) ..54 Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994) ..77 Dessaure v. State, 891 So.2d 455 (Fla. 2004) ..54 Downs v. Moore, 801 So.2d 906 (Fla. 2001) ..65 Duest v. State, 462 So.2d 446 (Fla. 1985) ..62 Evans v. McNeil, Case No. 08-14402-CIV-MARTINEZ (S.D. Fla., June 20, 2011) ..97,98 Fenster v. State, 944 So.2d 477 (Fla. 4th DCA 2006) ..77 Ferrell v. State, 686 So.2d 1324 (Fla. 1996) ..61,88 Ferrell v. State, 29 So.3d 959 (Fla. 2010) ..94 First v. State, 696 So.2d 1357 (Fla. 2d DCA 1997) ..60 Frances v. State, 970 So.2d 806 (Fla. 2007) ..55,91

Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998) ..63 Fryer v. State, 693 So.2d 1046 (Fla. 3d DCA 1997) ..60 Frazier v. State, 970 So.2d 929 (Fla. 4th DCA 2008) ..53

Fuller v. State, 540 So.2d 182 (Fla. 5th DCA 1989) ..66 Garcia v. State, 622 So.2d 1325 (Fla. 1993) ..64,77 Garron v. State, 528 So.2d 353 (Fla. 1988) ..78 Goodrich v. State, 854 So.2d 663 (Fla. 3d DCA 2003) ..53

viii

Gonzalez v. State, 588 So.2d 314 (Fla. 3d DCA 1991) ..66 Gore v. State, 706 So.2d 1328 (Fla. 1997) ..72 Gore v. State, 719 So.2d 1197 (Fla. 1998) ..80 Green v. State, 907 So.2d 489 (Fla. 2005) ..54 Hamilton v. State, 678 So.2d 1228 (Fla. 1996) ..92 Hartley v. State, 686 So.2d 1316 (Fla. 1996) ..61,88 Heath v. State, 648 So.2d 660 (Fla. 1994) ..61,94 Hertz v. State, 803 So.2d 629 (Fla. 2001) ..94 Huff v. State, 437 So.2d 1087 (Fla. 1983) ..64,77 Jackson v. State, 832 So.2d 932 (Fla. 3d DCA 2002) ..67 Johnson v. State, 917 So.2d 226 (Fla. 3d DCA 2005) ..63 Jones v. State, 569 So.2d 1234 (Fla. 1990) ..68 Kearse v. State, 770 So.2d 1119 (Fla. 2000) ..54 Kilgore v. State, 688 So.2d 895 (Fla. 1996) ..82 King v. State, 623 So.2d 486 (Fla. 1993) ..80 Knowles v. State, 632 So.2d 62 (1993) ..93 Kramer v. State, 882 So.2d 512 (Fla. 4th DCA 2004) ..67 Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998) ..63 Lewis v. State, 780 So.2d 125 (Fla. 3d DCA 2001) ..54

ix

Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988) ..68 McKinney v. State, 579 So.2d 80 (Fla. 1991) ..92 Maharaj v. State, 597 So.2d 786 (Fla. 1992) ..88,92 Mahn v. State, 714 So.2d 391 (Fla. 1998) ..72,87 Maxwell v. State, 603 So.2d 490 (1992) ..93 Miller v. State, 42 So.3d 204 (Fla. 2010) ..97 Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) ..86 Nelson v. State, 850 So.2d 514 (Fla. 2003) ..98 Nibert v. State, 574 So.2d 1059 (Fla. 1990) ..95 Northard v. State, 675 So.2d 652 (Fla. 4th DCA 1996) ..60 Orme v. State, 25 So.3d 536 (Fla. 2009) ..93

Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994) ..64 Pait v. State, 112 So.2d 380 (Fla. 1959) ..62,66 Pardo v. State, 563 So.2d 77 (Fla. 1990) ..88 Parker v. State, 904 So.2d 370 (Fla. 2005) ..54 People v. Rhoden, 101 Ill.App.3d 223, 427 N.E.2d 1292 (1981) ..67 Perez v. State, 919 So.2d 347 (Fla. 2005) ..53 Pope v. Wainwright, 496 So.2d 798 (Fla. 1986) ..64 Porterfield v. State, 522 So.2d 483 (Fla. 1st DCA 1988) ..66

x

Post v. State, 315 So.2d 230 (Fla. 2d DCA 1975) ..61 Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978) ..65 Riley v. State, 366 So.2d 19 (Fla. 1978) ..76 Rimmer v. State, 825 So.2d 304 (Fla. 2002) ..90,91 Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ..58,96,97,98 Rivera v. State, 545 So.2d 864 (Fla. 1989) ..91 Robbins v. State, 891 So.2d 1102 (Fla. 5th DCA 2004) ..65 Rose v. State, 787 So.2d 786 (Fla. 2001) ..72 Ruiz v. State, 743 So.2d 1 (Fla. 1999) ..60,63 Rosso v. State, 505 So.2d 611 (Fla. 3d DCA 1987) ..66 Sexton v. State, 697 So.2d 833 (Fla. 1997) ..54 Sexton v. State, 775 So.2d 923 (Fla. 2000) ..55 Shere v. State, 579 So.2d 86 (Fla. 1991) ..92 Sinclair v. State, 717 So.2d 99 (Fla. 4th DCA 1998) ..63 Smith v. State, 28 So.3d 838 (Fla. 2009) ..54,55,92 Spann v. State, 857 So.2d 845 (Fla. 2003) ..94 Spencer v. State, 615 So.2d 688 (Fla. 1993) ..7,45 State v. Bloom, 497 So.2d 2 (Fla. 1986) ..69

xi

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) ..65 State v. Hoggins, 718 So.2d 761 (Fla. 1998) ..65 State v. Marshall, 476 So.2d 150 (Fla. 1985) ..61 Steele v. State, 921 So.2d 538 (Fla. 2005) ..54,69 Stein v. State, 632 So.2d 1361 (Fla. 1994) ..91 Thompson v. State, 553 So.2d 153 (Fla. 1989) ..71 Tillman v. State, 591 So.2d 167 (Fla. 1991) ..84 Traina v. State, 657 So.2d 1227 (Fla. 4th DCA 1995) ..61 Tucker v. Kemp, 762 F.2d 1496 (11th Cir. 1985) ..77 United States v. Brewer, 783 F.2d 841 (9th Cir. 1985) ..67 Urbin v. State, 714 So.2d 411(Fla. 1998) ..61,78 Walker v. State, 707 So.2d 300 (Fla. 1997) ..79 Washington v. State, 362 So.2d 658 (Fla. 1978) cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979) ..93 Williams v. State, 967 So.2d 735 (Fla. 2007) ..72 Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ..86 Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ..79

xii

Constitutions Fifth Amendment, United States Constitution ..62,67,68,70,71, 72,75,96,99 Sixth Amendment, United States Constitution ..62,67,68,70,71, 72,75,96,99 Eighth Amendment, United States Constitution ..62,67,68,70,71, 72,75,96,99 Fourteenth Amendment, United States Constitution ..62,67,68,70,71, 72,75,96,99 Article I, Section 9, Florida Constitution ..62,67,68,70,71, 72,75,96,99 Article I, Section 16, Florida Constitution ..62,67,68,70,71, 72,75,96,99 Statutes Section 90.404, Florida Statutes ..2 Section 775.087, Florida Statutes ..1,2 Section 782.04(1), Florida Statutes ..1 Section 812.135(1), Florida Statutes ..2 Section 812.135(2)(a), Florida Statutes ..2 Section 921.141(1), Florida Statutes ..71 Section 921.141(4), Florida Statutes ..1 Section 921.141(5)(a)-(i), Florida Statutes ..69

xiii

Section 921.141(5)(b), Florida Statutes ..71 Section 921.141(5)(c), Florida Statutes ..77 Rules Rule 9.030(a)(1)(A)(i), Florida Rules of Appellate Procedure ..1

1

INTRODUCTION Appellant was the Defendant in the trial court and Appellee, the State of

Florida, was the prosecution. The parties will be referred to as they stood in the

lower court. The symbol "R" will designate the record on appeal and "T" will

designate the pre-trial, trial and sentencing transcripts.

STATEMENT OF JURISDICTION

This Court has appeal jurisdiction in this case. Defendant was sentenced to

death. Rule 9.030(a)(1)(A)(i), Florida Rules of Appellate Procedure, provides that

the Florida Supreme Court has jurisdiction of final orders of courts imposing

sentences of death. See also Section 921.141(4), Florida Statutes.

STATEMENT OF THE CASE

Guilt Phase

Defendant Leonard Patrick Gonzalez was charged by Indictment with one

count of first degree premeditated murder of Byrd Billings by shooting him with a

firearm, in violation of Sections 782.04(1) and 775.087, Florida Statutes [Count I];

one count of first degree premeditated murder of Melanie Billings by shooting her

with a firearm, in violation of Sections 782.04(1) and 775.087, Florida Statutes

[Count II]; and one count of home invasion robbery by entering a dwelling with

the intent to commit robbery and did commit a robbery of Byrd Billings, and in the

2

course of committing the offense did carry and possess a firearm, in violation of

Sections 812.135(1) and (2)(a), and 775.087, Florida Statutes [Count III]. (R. 1-

3). The State filed a notice of intent to seek the death penalty. (R. 50).

Preliminary Proceedings

Prior to trial, the defense filed a motion to suppress physical evidence seized

pursuant to a search warrant on July 13, 2009. (R. 292-300). At the beginning of

trial, the prosecutor informed the Court that the State would not seek to introduce

evidence from the search warrant. As such, the Court denied the defense motion

without prejudice as it was moot. (T. 8-9). The defense also filed a motion for

change of venue, alleging overwhelming media coverage which would deprive

Defendant of a fair trial. The defense attached supporting affidavits. (R. 280-286;

R. 289-291). On October 8, 2010, the trial court conducted a hearing on the change

of venue motion. The court ruled that the parties should first attempt to seat a jury

before a change of venue would be warranted. (R. 1474-1476). The State filed a

Williams Rule notice, pursuant to Section 90.404, Florida Statutes, seeking

admission of evidence that the defendants1

1 The charged defendants in this case were Leonard Patrick Gonzalez, Sr., Leonard Patrick Gonzalez, Jr., Gary Lamont Sumner, Jr., Pamela Laverne Long-Wiggins, and Donnie Ray Stallworth, Jr.

went to the victims’ home on July 3,

2009 to “look around” the house and surroundings and that on July 4, 2009, the

defendants went to the victims’ house with the intent to commit a robbery and

3

aborted the attempt when outside lights were activated. (R. 52A-52B). The court

conducted a hearing on the admissibility of the Williams Rule evidence. The State

argued that the evidence was inextricably intertwined with the charged crime. The

defense objected, arguing that the events were remote in time and on grounds that

the probative value of the evidence was outweighed by its prejudicial impact. The

court ruled that such evidence would be allowed, but indicated that the defense

could renew its objections at trial. (R. 241-245).2

The defense filed numerous penalty phase motions. (R. 55-200; R. 201-

206). The State filed an omnibus response to these motions, arguing that the Court

should deny all defense motions. The State noted, however, that the “prior violent

felony” aggravating circumstance did not apply in this case. (R. 207-214). The

court conducted a hearing on the motions. The court denied all defense motions,

The State filed two motions in

limine. The first motion in limine requested that the defense be prevented from

eliciting testimony that Rakeem Florence and Frederick Thornton sold drugs in

Okaloosa County prior to the homicides charged in this case. (R. 52C-52D). The

second motion in limine requested that the court admit phone records through the

use of self-authenticating business record certifications. (R. 250-262). On October

8, 2010, the trial court conducted a hearing on the State’s motions in limine and

granted both motions without defense objection. (R. 1469-1473).

2 The defense did not renew its objections to the Williams Rule evidence at trial.

4

except for the prior violent aggravating circumstance motion. (T. 230-248). The

court entered an omnibus order denying the foregoing motions. (R. 273-274).

The Trial

Trial commenced in the cause on October 25, 2010.3 The court began voir

dire. (T. 20). The jury was selected and sworn. (T. 234). The court gave the jury

preliminary instructions and excused the jury for the day. (T. 234-240).4

3 Prior to trial, the parties executed stipulations as to the identity of Mr. and Mrs. Billings. (R. 287-288; R. 595-596; R.1473-1474). The stipulations were later presented to the jury. (T. 779-780). 4 The defense did not renew the change of venue motion at the close of jury selection. Moreover, the defense accepted the final panel without renewing its prior objections.

The

following day, the rule of sequestration was invoked. (T. 244). The State presented

an opening statement. (T. 246-269). Defendant's counsel thereafter presented

opening statement. (T. 269-273). At trial, the State called numerous witnesses in

its case-in-chief. Following testimony of forensic firearms examiner Paul Dragan,

the State rested its case. (T. 869-870). Defendant presented his arguments on

motions for judgments of acquittal. (T. 870). The court denied the motions. (T.

870-871). The defense announced it would not present any evidence. The court

asked Defendant if he desired to testify and Defendant stated that he did not want

to testify or call any witnesses. Defendant stated he was satisfied with the

witnesses called. (T. 871-873). Thereafter, the defense rested its case. (T. 873; T.

882). The court conducted a charge conference. (T. 873-880; T. 884-886).

5

Subsequently, counsel for the State presented closing argument. (T. 887-914). The

defense then presented closing argument. (T. 916-938). Counsel for the State

presented a rebuttal closing argument. (T. 939-946).

The court instructed the jury. (R. 684-697; T. 946-971). The jury retired to

deliberate. (T. 971). During deliberations, the jury requested a magnifying glass.

The defense objected to the request. The court overruled the objection and allowed

a magnifying glass to go back to the jury. The jury also requested the transcripts of

the witnesses’ testimony. The parties objected to this request. The court agreed to

instruct them they would not be entitled to the transcripts. (R. 698; T. 974-976).

Thereafter, the court reconvened to consider the jury's verdicts. Defendant was

found guilty on all three (3) counts as charged in the indictment. (R. 699-701; T.

977-978). The jury was polled. (T. 979-980). The court instructed the jury to

return the following day for the penalty phase. (T. 980-981).

Penalty Phase

Prior to the penalty phase, the defense attorneys informed the court that

Defendant had instructed them not to put on any mitigation evidence or call any

witnesses during the penalty phase. The court ruled that it would address the

matter after the State’s presentation of evidence. (T. 989-990). The court gave the

preliminary instructions. (T. 990-991). Prior to the testimony of Christopher

Reiter, the defense objected to his testimony on grounds that the testimony

6

concerned a very old robbery case. The court overruled the objection. (T. 992-

993).5

The prosecution presented a penalty phase argument. (T. 1081-1101). The

defense presented its penalty phase argument. (T. 1101-1112). The court

The State called four witnesses. Thereafter, the State rested its case. (T.

1013). The court re-addressed defense counsel’s concerns about their inability to

present mitigation. Defendant informed the court that he did not want his family

testifying in public. The court informed Defendant that all matters had to be

presented publicly. (1014-1016). Defendant was questioned by the court about his

decision not to testify. (T. 1018). Thereafter, the defense called two witnesses.

The defense rested its case. (T. 1072). The court conducted a charge conference.

(T. 1074-1080). The defense requested the statutory mitigating circumstance that

Defendant had no significant criminal history. The prosecution argued that if the

instruction were to be given they would request an opportunity to reopen the case

and introduce other, non-violent convictions. When the court agreed to allow the

State to re-open the case, the defense withdrew its request for the no significant

criminal history mitigation instruction. (T. 1075-1078). The State requested

various statutory aggravating circumstances: heinous, atrocious and cruel; financial

gain; commission during a robbery; and previous conviction of a violent felony

and prior capital felony. (T. 1079-1080).

5 The State had conceded previously that the prior violent aggravator did not apply in this case. (R. 210).

7

instructed the jury. (R. 705-710; T. 1112-1125). After deliberations, the jury

returned an advisory verdict recommending a death sentence by a vote of 10-2 as

to Counts 1 and 2. The jury was polled. (T. 1126-1132; R. 703; R. 1467). The

court ordered a pre-sentence investigation report. (T. 1134-1135).6

On December 9, 2010, the court conducted the final sentencing hearing,

pursuant to Spencer v. State, 615 So.2d 688 (Fla. 1993). (R. 711-808). The State

announced that it had no additional aggravating circumstances to introduce.

However, the State submitted victim impact statements. (R. 713; R. 810-813). The

defense called Defendant, Lisa Clark Gray and Tabitha Gonzalez.

The Spencer Hearing and Final Order

7

On February 17, 2011, the court issued its sentencing order. (R. 865-872; T.

838-843). The court imposed the death penalty on Counts I and II. The court

sentenced Defendant to a term of life imprisonment term on Count III. The court

Thereafter, the

defense renewed its motions for judgment of acquittal and directed verdict. (R.

807). The court denied the renewed motions. (R. 807). The court informed the

parties that they could present written sentencing memoranda. (R. 807). On

December 27, 2010, the State filed a sentencing memorandum. (R. 814-826). The

defense filed a sentencing memorandum. (R. 857-863).

6 A Pre-Sentence Investigation Report (PSI) was subsequently prepared and filed. (R. 847-856). At the Spencer hearing, the defense announced that there were no corrections, additions or deletions to be made to the PSI. (T.795). 7 Defendant’s “Public Statement” was filed with the court. (R. 829-833).

8

ordered the sentence on Count II to run consecutive to the sentence on Count I.

The court ordered the sentence on Count III was to run concurrent with the

sentences in Counts I and II. (R. 872; R. 873-881; T. 835-836). Defendant filed a

notice of appeal. (R. 884). This appeal follows.

STATEMENT OF THE FACTS

Guilt Phase

At trial, the State called Ashley Markham, who testified that on July 9, 2009,

she worked at her mother’s retail business and finance company. Ms. Markham

stated that her parents lived off of Nine Mile Road. (T. 274-275). She identified a

photograph of the residence. (T. 278; R. 894-Exh. 1). Markham’s parents, Melanie

Anne Billings and Byrd Starling Billings, were raising nine (9) children at the

house. The age range of the children was 4 to 11 years old. The children had

disabilities. (T. 279-280). Markham testified that April Spencer, a family friend

who was a nurse, moved to the property to help take care of the children.

Markham’s parents had set up a video monitoring system at the house in order to

monitor the children. (T. 281-282; R. 930-Exh. 51). Markham was aware of safes

kept at her parents’ home. She knew one safe was located in the master bedroom

containing birth certificates, passports, some jewelry, and prescription medication.

(T. 283; R. 958-Exh. 94). Another safe was located upstairs in the utility closet.

This safe contained money. (T. 284). Markham testified that she met Defendant in

9

early 2008, when he was at their business. Defendant was requesting funding for a

karate program. (T. 285). On July 9, 2009, Markham received a miscall from her

mother’s house. She called the house and Jake answered. He was screaming into

the phone. Later, Adrianna came to the phone and told her what was happening.

Markham told her to run to April’s residence and to get April. (T. 286-287).

Tabitha Gonzalez, Defendant’s wife, testified that in June/July, 2009, she

and her husband worked for Pamela Long, who ran an antique business.8

Defendant was called out to work for Ms. Long on various occasions at that time.

He worked odd hours. At the time, Defendant had access to a maroon minivan. (T.

291-294). Ms. Gonzalez testified that she and her husband ran a karate business.

However, in 2009 the business failed. She and her husband were having financial

difficulties. They had six children. In the June/July 2009 time frame, Defendant’s

mother bought a van.9

8 Ms. Gonzalez and her husband had a key to Long’s residence and had access to the house. (T. 299-300). 9 The van was red. Defendant had the van only a short time because it was not in good working condition. Defendant left the van with his father and asked him to look at it and see what he could do with it.(T. 304-305).

Ms. Gonzalez testified that prior to July, 2009, Defendant

met with Mr. Billings when he attempted to raise funds for his karate business.

Billings provided Defendant with a $5,000 donation for Project Fight Back, but

refused to invest in the karate business because it was a bad investment. (T. 294-

10

296; T. 305-306).10 Ms. Gonzalez testified that on July 9, 2009, she initially met

with Defendant at the Wal-Mart. Later, she saw him in the evening. (T. 296-

298).11

Lonnie Smith testified that he knew Defendant for about 8 or 10 years. Prior

to July 9, 2009, Smith had a conversation with Defendant about a “security job” he

had. Defendant mentioned taking a safe or money. Smith refused to have

Ms. Gonzalez testified that she and her husband had previously helped

Pamela Long move from one residence to another. They transported various

firearms, along with furnishings and other items. (T. 300-302). Ms. Gonzalez

testified that on the night of July 4, 2009, Defendant was with her, the children and

the neighbors shooting off fireworks. (T. 308). According to Ms. Gonzalez,

Defendant was left-handed. (T. 309).

Terri Michele Poff, Defendant’s adoptive mother, testified that in June/July,

2009, she became aware that Defendant was having financial problems. Poff was

helping her son make payments on for his car, utilities, rent and groceries.

Additionally, she provided him with cash. (T. 311-313). At one point, Poff bought

Defendant a red van for $300.00. (T. 313-315; R. 943-944-Exhs. 73 and 74; T.

319-320). Poff explained that Defendant ran a karate business. Additionally,

Defendant worked at other things in order to take care of his family. (T. 316-318).

10 The program was set up to teach children and women self-defense, to teach children to be aware of strangers and to set up a buddy system. (T. 307). 11 When Defendant came home, he appeared fine. He acted normally. (T. 309).

11

anything to do with it. Defendant mentioned it involved millions. The

conversation took place in a condo on the beach. Hugh Wiggins and Gary Sumner

were present. (T. 321-324).12

Anthony Joseph Elisa, a six or eight-time convicted felon, testified that in

June/July, 2009, he had a conversation with Defendant at Elisa’s house. Defendant

was sweating and appeared to be doing drugs or out of his mind. Defendant

wanted to Elisa to be a getaway driver for him in a robbery. Defendant said there

was a safe containing $130 million in a house. He mentioned that there could be

some kids involved. Elisa escorted Defendant out of his house. He did not think

Defendant was serious.

On July 9th, Smith received numerous phone calls

from Defendant. He did not take any of them. (T. 324; T. 326).

13

Carol Brant, Defendant’s stepmother, testified that she lived with Leonard

Patrick Gonzalez, Sr. In the months leading up to July 9th, Defendant and

Subsequently, Elisa went to a paint and body shop with

Defendant and met Gary Sumner. Elisa stayed outside the shop smoking. He saw

a duffel bag taken into the shop. Later, Defendant dropped Elisa off at his house.

(T. 326-331). On July 9th, Elisa received several calls from Defendant, but he did

not answer them. On that day, Elisa had been doing yard work and became very

ill. He ended up in the hospital. (T. 331).

12 Smith conceded that the conversation in the condo was vague. (T. 325). 13 Elisa remembered that Defendant said that the occupants of the house were in some drug cartel, supposedly the Mexican Mafia. (T. 332).

12

Gonzalez, Sr., met several times. Brant overheard Defendant mention a robbery

and talk about a person who was dealing drugs. In particular, Defendant told

Brant that the man was messing with little girls and that he was dealing drugs.

Defendant reason for committing the robbery was money. (T. 334-338). Brant

testified that on July 9th she left her house. She knew that Defendant was coming

over. (T. 339). Brant stated that there were two broken CB radios at her house.

Defendant and Gonzalez, Sr., were trying to fix them. She supplied the radios to

law enforcement. (T. 340).

Sue Ann Matthews, Leonard Gonzalez, Sr.’s sister, testified that she lived

near her brother’s house and could see the front of his house from her home. On or

about July 9th, Matthews saw her brother, Defendant, and three or four black men

pull up in three vehicles. Her brother was in a Honda, Defendant was in a red

minivan, and the black males were in a SUV Expedition or similar car. She saw

her brother open the gate and all the men entered the house. (T. 341-344).

April Spencer testified. Ms. Spencer, a registered nurse, stated that in July,

2009, she was living in the Billings property. She knew Mr. and Mrs. Billings for

about ten years. Spencer began living at the property the previous October. There

were nine children living at the Billings house. Spencer was aware of the

surveillance system at the house. It was installed to monitor the children who had

special needs. (T. 345-347). On July 9, 2009, Spencer arrived at the property

13

between 4:30 and 5 in the afternoon. Later that evening, Adrianna Billings, an 11

year-old girl, knocked on her door. She was crying and very upset. Based on what

she told her, Spencer went to the house. As she entered the house, Spencer noticed

that the door had been knocked open. She saw drops of blood in the hallway. She

found Mr. Billings, facedown, in the bedroom. Mrs. Billings was in front of the

closet. Spencer called for emergency services. (T. 348-351).

Deputy Sheriff Walter Thomas, Escambia County, testified that on July 9th

he was assigned to an area encompassing the Billings household. Deputy Thomas

responded to the Billings residence relating to a shooting. He arrived around 7:55

P.M. Thomas met Ms. Spencer who was running across the front yard. The

deputy and other deputies entered the house. Thomas noticed a large amount of

pooled blood, as well as two bullet casings and two bullet holes in the floor. He

entered the master bedroom. Thomas saw a white male, facedown, with his arms

tucked up under him. A white female was on her back, facing towards the west.

She was partially in the hallway. Deputy Thomas noticed certain bullet casings

around both victims. There were children in the home and other deputies were

clearing the house. A room-to-room sweep was conducted. The crime scene was

roped off for the crime scene investigators. (T. 352-357).

Zachary Ward, Escambia County Sheriff’s Office computer crimes

investigator, testified that he was called to the Billings residence on July 9th. Ward

14

located a DVR system in a small room upstairs. The system was hooked up to a

monitor. There were 16 cameras throughout the house. Ward was supposed to

download the video evidence from the DVR system. According to Ward, all the

real-time photographic surveillance was recorded on a hard drive. Images from

several cameras were recorded. The recordings were copied to DVDs. Ward

identified an exhibit containing clips of the video from the night in question and

identified photographs of images from the video recorder. (T. 365-372).

Allen Fuller, FBI forensic video examiner, testified that he received a DVR

and was asked to examine certain video images. The recording was copied in

order to preserve the original. Fuller was able to make video prints and movies of

the different cameras with the intent to make it viewable and playable in a

courtroom. Fuller explained that the substance of the original was not altered.

Fuller identified the disk exhibit. (T. 376-383; R. 1412-1434-Exhs. 123 and 124).

Lacey Oden, crime scene technician for the Escambia County Sheriff’s

Department, testified that she responded to the Billings residence on July 9th. She

was responsible for processing the crime scene with her partner Wayne Wright.

Oden took photographs of tire tracks outside the residence and prepared a crime

scene sketch. (T. 393-398).

Wayne Wright, crime scene technician for the Escambia County Sheriff’s

Department, testified that he responded to the Billings residence on July 9th.

15

Wright stated that upon arrival he noticed that deputies were still clearing the

residence. Photographs of the scene were taken. (T. 399-407; R. 895-907-Exhs. 2-

14; R. 908-916-Exhs. 15-29; R. 917-929–Exhs. 30-50; R. 931-939-Exhs. 52-60).

Wright described the photographs taken. Wright pointed out the yellow evidence

tags placed on the scene. Several projectiles and casings were recovered. Wright

described the location of the victims’ bodies and the relation of the casings to the

bodies. Wright testified that all the casings were from a 9 mm firearm. A total of

ten casings were recovered. Additionally, Wright explained the tire track

photographs and the relation of the tracks to the house. Wright pointed out the

documented evidence on the crime scene sketch. (T. 407-434). Wright conceded

that the photographs documented the scene as he found it. (T. 435). Wright

processed numerous locations at the scene for latent fingerprints. (T. 437-438; T.

440). Wright did not see any door frames with a bullet hole. (T. 439). No plaster

casts were made of the tire tracks. Wright pointed out that the tracks did not have

any discernible tire tread pattern. (T. 440-441). Moreover, the hardwood floors

were processed for shoeprints. (T. 441). Wright bagged the hands of the victims

for gunshot residue testing. (T. 441).

Frederick Lee Thornton, Jr., testified that he was currently incarcerated at

the Santa Rosa County Jail. Thornton stated that in July, 2009, he was 19 years

old. He entered a plea to second degree murder in this case pursuant to a plea

16

agreement. Thornton was hoping that his cooperation would be taken into

consideration at his sentencing. (T. 445-447).14

Thornton testified that he lived near a body shop named Fifth Dimensions,

owned by Gary Sumner. Thornton stated that at one point Sumner informed him

that there was a plan to rob people involved in the Mafia. Eventually, Thornton

met Sumner and others at Fifth Dimensions. At that meeting, Thornton met

Thornton testified that after the

deaths of Mr. and Mrs. Billings his aunt told him to turn himself in to the police.

Thornton conceded that he never told his aunt and mother the truth of what had

happened. Rather, he told them that he and his friend Rakeem had gone out to buy

some weed. Rakeem has a child by Thornton’s sister. (T. 448-449). When

Thornton surrendered himself he went with his aunt, his mother and his

grandmother. Rakeem’s father, aunt and cousin also went with Rakeem. Thornton

and Rakeem discussed what they were going to say. In particular, they told the

police that they went to get some weed and did not know what happened. They

maintained they did not enter the house. After the police confronted them with

evidence from the surveillance video, they changed their story. (T. 449-450; T.

534-535).

14 Thornton’s plea agreement was admitted into evidence. (T. 547; R. 1440-1442- Defense Exh. 1). In this agreement, Thornton entered a plea of no contest, meaning he did not admit to actually committing the offense. (T. 545; R. 1440). Thornton conceded that it was a sweet deal. (T. 545). Thornton’s sentence was delayed pending his trial testimony. (T. 546; R. 1441).

17

Defendant, Rakeem Florence, Tony Ducks, Donnie Stallworth and Gary Sumner.

Defendant talked about robbing some people. He mentioned he had some

firearms. Sumner would get in contact with everyone else when needed. (T. 450-

455). About a week or two later, Thornton saw Defendant again at Fifth

Dimensions. Sumner had contacted Thornton and asked that he come to the shop.

Thornton showed up with Rakeem, who was 16 years old at the time. At this

meeting, Thornton and Rakeem met with Defendant, Sumner, Stallworth and Tony

Ducks. Defendant retrieved two firearms, a 9 mm. and a shotgun, from his car and

brought them into the shop in a black duffle bag. Defendant talked about dressing

in black shirts, pants and boots. Defendant also talked about wearing gloves and

head stockings with goggles. (T. 456-460). On a subsequent day, Sumner

contacted Thornton again and asked that he come to the shop. Thornton came

alone. He met with Sumner. At a subsequent meeting, Thornton met with

Rakeem, Sumner, Stallworth and Defendant at Sumner’s shop. At this meeting

there was a specific discussion about the target. Defendant explained that targets

had over $13 million obtained from money laundering with the Mexican Mafia.

They were apparently selling heroin out of some trailers by the house. Defendant

also mentioned that there was a vault in the bedroom. The meeting ended. (T. 460-

463). Subsequently, Thornton and Rakeem were picked up by Stallworth and

Sumner in an Explorer. They met with Defendant at an antique shop. From that

18

location, they traveled to Pensacola and met with Defendant’s father at a trailer.

Defendant was driving a red minivan. At the trailer, Defendant explained that they

were going to meet on the 4th of July and look around the target house. Defendant

stated he had the clothing and the guns. Defendant was holding Thornton’s .357

firearm. He displayed the .9 mm and the shotgun. There was a discussion about

splitting the money down the middle. Once again, $13 million was mentioned.

Defendant also stated that there were children at the house. These children were

adopted. Defendant stated that there were two labs on the property used for

cooking dope. The meeting ended. (T. 464-470).

Thornton testified that toward the end of June, Sumner called him again.

Sumner, Florence and Stallings picked him and they drove to Pensacola. They

eventually met with Defendant and discussed a plan to visit the house. At this

meeting, Thornton met a female, PL. Thornton, Stallworth, Sumner, Defendant,

Florence and PL drove by the residence to look around. On July 4th, they drove by

the residence a second time. Everyone changed into black clothing. They put on

gloves and masks with goggles. Everyone was armed, except Sumner and Frank.

Thornton armed himself with a .357, Florence had an AK47, Stallworth had a

shotgun and Defendant had a 9mm. Defendant and Sumner had walkie-talkies. PL

was in a red minivan, Thornton, Florence, Frank and Stallworth were in a big van

and Sumner was in an Explorer. They drove by the Billings residence. They tried

19

to enter the property. They had previously discussed entering the residence

through the front door. They had zip ties to tie the hands of the victims. As they

approached the driveway of the residence, the lights turned on. The cars were put

in reverse and they backed out. Defendant got on the phone and said, “The lights

came on. We didn’t do it. Somebody ain’t cut off the alarm system.” They left

the area and put away the clothing and guns. Thornton was told that he would be

contacted again at a later time. (T. 470-488).

Thornton testified that on July 9th Stallworth picked up Thornton and

Florence in the tan Explorer. They picked up Sumner and met Defendant at a Wal-

Mart. Stallworth and Sumner got into the red minivan with Defendant. The group

traveled to Frank’s house. At the house, Thornton met a person by the name of

Coldiron for the first time. The group was short two weapons. Defendant and

Sumner left for a few minutes. Upon their return, they provided the group with

additional firearms. Defendant showed the group some pictures of the house and

the doors they were supposed to go into. Thornton and Florence were supposed to

enter the house through the door on the far left side. Stallworth was supposed to

go through the front door. Defendant and Coldiron were supposed to through the

master bedroom slide door. Defendant showed the group how to use the zip ties.

Everyone, except Sumner and Defendant’s father, changed into different clothing

and weapons were handed out. Thornton and Stallworth had shotguns, Florence

20

had an AK47, Coldiron had a .357 and Defendant had a 9 mm. (T. 489-497; R.

965-967-Exhs. 102-104). Thornton testified that everyone wore gloves and

stockings on their heads with goggles on. (T. 498).

Thornton testified that the group drove to the house. They proceeded to the

Billings residence in the red minivan. Sumner remained behind in the tan

Explorer. He was on a walkie-talkie. Defendant had the other walkie-talkie.

Stallworth drove the van through the driveway and cut through the grass. He

pulled up by the front door. Stallworth, Thornton and Florence got out of the van

and Frank stayed behind. Thornton and Florence entered the house through the far

left door by kicking down the door while Stallworth entered through the front door.

Thornton saw Defendant and Coldiron entering the residence as he entered the

house. Thornton saw Mr. and Mrs. Billings and several children. Mr. Billings

approached Defendant and fell to the ground. Defendant went to Mr. Billings and

asked him, “Where is the money at?” Billings answered, “I don’t have none.” At

that point, Defendant shot in the ground. Defendant repeated the question and

Billings answered the same. Defendant shot Billings in the leg. Defendant

repeated the question again and Billings answered the same. Defendant shot

Billings in the other leg. Defendant grabbed Billings by the neck and shoved the

gun in his face. Defendant asked Mrs. Billings where the bedroom was and she

pointed towards the bedroom. At that point, Defendant and Mrs. Billings entered

21

the bedroom. Mr. Billings followed them. Stallworth also entered the bedroom.

Thornton ran back outside to get the duffle bags. Prior to leaving, Thornton

overheard Defendant say, “Where is the money at?” When he was outside,

Thornton heard three gunshots coming from inside the house. Thornton entered

the house again and entered the master bedroom. He saw Mr. Billings on the floor.

There was a lot of blood. Thornton handed over the duffle bags. He saw Mrs.

Billings trying to open a safe in the closet. She was unable to do so. Thornton saw

Defendant pointing his gun in the direction of the closet area. He heard Defendant

say something and saw Defendant shoot his gun about three times. He overheard

Defendant tell Stallworth to grab the safe. The safe was placed inside the van.

Everyone entered the van. They drove off. (T. 499-513).15

15 Thornton testified there was never a discussion about killing anyone. (T. 550).

Thornton identified several still photographs from the surveillance video.

He picked out the red minivan, Defendant’s photographic image, Coldiron’s

photographic image, Rakeem’s photographic image, and the photographic images

of Mr. and Mrs. Billings. In particular, Thornton pointed out those images inside

the residence showing the defendants interacting with Mr. and Mrs. Billings, as

well as the images of the van as it departed the property. (T. 513-519; R. 1412-

1434-Exhs. 124A-124W).

22

Thornton testified that after they left the residence, they met with Sumner

who was waiting in the Expedition. Thornton, Defendant, Stallworth and Florence

entered the Expedition. They started to change clothing and put away the guns.

Meanwhile, Frank and Coldiron left in the van. The defendants eventually met

together again at the Wal-Mart in Pensacola and from there they proceeded to the

antique shop, where they met PL. The safe was placed inside the antique shop and

the guns were kept in the red minivan. Thornton, Florence, Sumner and Stallworth

left in the Explorer and Sumner was dropped off. Defendant and PL got into the

minivan. Thornton testified that Defendant told him to burn his clothing.

Thornton and Florence did so. Thereafter, when news coverage of the incident

began, Thornton eventually surrendered to the police. (T. 519-526).

Brad Thornton, a businessman who owned Big Country’s Convenience

Store in Elberta, Alabama, testified that in July, 2009, when Mr. and Mrs Billings

were killed, he recalled seeing a vehicle parked in his parking lot. Later the same

day, an older man came by to pick up the vehicle. He was able to identify the

photograph of the individual (Leonard Patrick Gonzalez, Sr.). (T. 550-554; R.

1406-1407-Exh. 120).

Gene Johnson, asset protection coordinator at Wal-Mart at Gulf Breeze,

testified that he was in charge of the security at the store. A DVR system was set

up at the store, which captures images from a number of locations through the

23

store. Johnson testified that law enforcement came to the store and asked to review

the video recording. Johnson identified photographs from the video recording

taken on July 9, 2009 from 3:26 P.M. to 3:34 P.M. (T. 555-559; R. 968-984-Exhs.

108A-108Q).

Rakeem Chavez Florence testified. Mr. Florence stated that he was 16 years

old in July, 2009. Florence entered a plea in this case.16

Florence testified that prior to July 4, 2009, he met with Gary Sumner and

Thornton at the Fifth Dimensions. Tony Ducks, Stallworth and Defendant were

also present at the meeting. According to Florence, Defendant was doing all the

talking. Defendant mentioned $13 million were in a vault. At some point, either at

this meeting or at a subsequent meeting, Defendant displayed firearms, including a

shotgun. (T. 564-567). On July 4, 2009, Thornton contacted Florence and they

He turned himself in to

the authorities in July, 2009, along with Thornton. Florence and Thornton had

come to an agreement on the story they would provide the police. Florence and

Thornton agreed to tell the police they went to the house to buy weed. Florence

did not tell his family the truth concerning his involvement. He did not tell the

police the truth. After his mother spoke with him, Florence decided to tell the

police the truth. (T. 560-564; T. 611).

16 Florence entered a plea on two counts of second degree murder and one count of home invasion robbery. (T. 597-598; T. 623; R. 1443-1447-Defense Exh. 2). Florence had a hope to qualify for a youthful offender sentence. (T. 611).

24

went to Fifth Dimensions. They were picked up by Sumner or Stallworth in a

silver Explorer and they proceeded to Defendant’s father’s house. At the house,

Defendant provided Florence and some of the others with black clothing, gloves

and masks. Defendant said that Thornton and Florence were to go through one

door, while Stallworth would go through another door and Defendant would enter

the house through a third door. They were going to take the $13 million from the

vault. There was no discussion about any children. The money was supposedly

laundered for the Mexican Mafia. Weapons were passed out. Florence was given

an AK47 and Thornton received a shotgun. Defendant had a black automatic

firearm. Defendant and Sumner had walkie-talkies. The group drove to the

residence in three vehicles. As they drove into the driveway, the lights came on

and they decided to leave. Defendant was talking on the phone and yelled out that

he was going to kill somebody. They parked the van at a store and switched

vehicles. Florence, Thornton and Stallworth got into an Explorer, while Pamela

Wiggins, Defendant, Defendant’s father and Sumner got into a purple minivan.

The guns and clothing were placed inside a bag. (T. 567-576).

On the day of the incident, Thornton contacted him again. Florence and

Thornton traveled to Fifth Dimensions where they met Defendant, Stallworth and

Sumner. The group proceeded to a Wal-Mart in an Explorer and a purple minivan.

Florence identified several surveillance photographs from the Wal-Mart. (T. 577-

25

581). After the meeting at the Wal-Mart, everyone traveled to Defendant’s father’s

house. Defendant discussed the plan and showed them pictures of the house.

Florence and Thornton were supposed to enter the house by kicking down the left

door. Defendant also told the others to tie the victims with the zip ties and

mentioned the money again. Stallworth was directed to enter the house through

the middle door. Defendant and Coldiron were suppose to come across the fence

and enter the house through another door. Defendant provided clothing and guns.

Florence got an AK47,17

Florence testified that they entered the driveway to the residence and drove

onto the grass. Florence and Thornton got out of the van and proceeded to the left

side door, while Stallworth approached the middle door. Once inside, Florence

and Thornton began looking around. Florence saw a kid sitting on a sofa and saw

Mr. Billings on the floor while Mrs. Billings was between the couches. Florence

Thornton got a shotgun, Stallworth got a shotgun,

Coldiron got a .357 revolver and Defendant had a black Glock. Everyone loaded

the guns. The group drove to the residence in the purple minivan, the silver

Explorer and the big red van. Defendant parked the minivan in the woods.

Sumner drove the Explorer. Defendant and Sumner held walkie-talkies. Florence,

Defendant’s father, Thornton, Defendant, Stallworth and Coldiron were in the big

red van. (T. 581-586).

17 Florence said he did not know how to use the AK-47. (T. 597).

26

saw Defendant approach Mr. Billings and demanding to know where the money

was. Mr. Billings said he did not have any money. Defendant told Mr. Billings to

get up and took him to a room. Florence heard a shot, but he did not see it. He

heard one or two shots. Defendant kept asking for the location of the money.

When Mr. Billings walked into the room Florence could not see if he was bleeding.

Defendant went into the room with Mr. and Mrs. Billings. Florence could not hear

what was going on in the room. Florence heard three initial shots and then heard

three additional shots. Defendant told Florence to get the safe. When Florence

entered the room he saw Mr. Billings on the ground. Florence picked up the safe.

Florence did not see Mrs. Billings. He only saw Defendant in the room.

Stallworth was in the living room. Thornton had left to get a bag. The safe was

taken into the red van. Defendant’s father was sitting in the driver’s seat in the van

and everyone else entered the van. The defendants drove off. They met with

Sumner, who was in the Explorer. Everyone took their clothes off and put away

the guns. Defendant’s father and Coldiron left in the red van, while Florence,

Sumner, Thornton, Defendant and Stallworth left in the Explorer. They met at the

Wal-Mart and then proceeded to an antique shop. Pamela Long met them there.

The guns were turned over to Defendant and Long. Florence and Thornton were

told to burn their clothes and they did so. There was never any discussion about

27

anyone being killed. He did not know that anyone was going to get killed. (T. 587-

597).

Sergeant Donald Buddy Nesmith, Escambia County Sheriff’s Office,

testified that he became involved in the Billings case. In the course of the

investigation, Sgt. Nesmith visited the residence of Carol Brant and Gonzalez, Sr.

Sgt. Nesmith seized a boot box from inside the trailer. Nesmith understood that

the boots were connected to a purchase of boots at Wal-Mart. Nesmith also made

contact with Gonzalez, Sr. (T. 624-628). Sergeant Rusty Hoard, Escambia County

Sheriff’s Office, testified that he became involved in the Billings case. He

received a call from Carol Brant who turned over walkie-talkies. The evidence

was not submitted for fingerprint analysis. (T. 630-632).

Jennifer Norman, crime scene technician with the Escambia County

Sheriff’s Office, testified that on July 11, 2009, she responded to a property with a

two trailers and a shed located on it. She conducted a walk-through and then the

scene was photographed and video-taped. Norman identified photographs of the

scene. Norman explained that a vehicle was located behind the shed. She noticed

some red paint chips on the ground near the van. Additionally, Norman collected a

receipt located in a shopping cart next to the shed. The receipt was for the

purchase of red enamel paint. The vehicle was towed to the forensic processing

shed at the sheriff’s office. Inside the vehicle, Norman found a package of trash

28

bags, a canister of disinfectant wipes and some scouring soap pads. Additionally,

two tires were located in the rear portion of the van. (T. 633-644; R. 940-947-Exhs.

70-79).

Dan Blocker, a businessman and owner of Auto Works Tire and Automotive

in Gulf Breeze, testified that he knew Defendant for years. Defendant has brought

cars for service. Blocker testified that the day after the Billings homicides,

Defendant came into Blocker’s shop. Defendant was driving a small maroon

minivan owned by Pamela Long Wiggins. Blocker had serviced the van

previously. There were two rims and two used tires in the back of the vehicle.

Blocker was told to change the tires. Blocker thought it was strange because the

tires taken off were in better shape than the ones he was putting on. Defendant

placed a twenty on the counter and told him if anyone asks, “you haven’t seen me.”

Defendant was in the company of Wayne Coldiron and his father. The following

Monday he contacted law enforcement after he saw television reports. (T. 646-

651).

Christine Rollins Percell, a crime scene technician, testified that on July 10,

2009, he attended the autopsies of Mr. and Mrs. Billings. Percell was charged with

taking photographs and collecting evidence. In particular, Percell took into

evidence a shirt from Mrs. Billings, two projectiles from Mrs. Billings, a zip tie

from Mr. Billings. (T. 654-660). Percell testified he responded to the Billings

29

residence at a later time. Percell took photographs, took carpet samples and

collected projectiles. (T. 660-664).

Eddie Denson testified that on July 9, 2009, he met Hugh Wiggins and

Pamela Long on Highway 63 in Mississippi. Wiggins and Long were in a maroon

minivan. Wiggins gave Denson two shotguns and a long gun. The Federal ATF

eventually took possession of the guns. Denson made arrangements for the

Wiggins couple to stay at a hotel in Mississippi. Denson identified the receipt for

the hotel. It was dated July 14-15, 2009. Denson noticed that Wiggins had a small

hand-held radio. Wiggins tossed it out the window. Later, investigators located

the radio with Denson’s assistance. In the hotel room, Denson noticed that Long

was watching news accounts of the Billings case. Several days later, federal agents

arrived at Denson’s residence and met with Denson. The agents took possession of

the firearms. Additionally, Denson was interviewed and he made a photographic

identification of Pamela Long. (T. 667-677). Special Agent Shane Lynes, Bureau

of Alcohol, Tobacco, Firearms and Explosives, testified that she visited Denson’s

residence in Mississippi. The federal agents took photographs of the firearms and

took possession of the firearms. (T. 680-685; R. 959-967-Exhs. 96-104). Leonard

Tyree, a homicide investigator, testified that he became involved in the Billings

investigation. Tyree met with federal agents in Mobile and collected certain

firearms in their possession. Tyree also interviewed Eddie Denson and showed

30

him a photo line-up. Denson identified Pamela Wiggins. (T. 685-690; R. 986-987-

Exh. 112).18

18 Denson was charged with accessory after the fact in Mississippi. (T. 690-691).

Stephen Hartley testified that he owned an air conditioning repair business in

Pensacola, Florida. In July after the Billings homicides, Pamela Long Wiggins, a

previous customer, dropped off a 1971 Buick Convertible for some work. Some

time later, law enforcement officers contacted Hartley to inspect the vehicle. (T.

692-696). Larry Meadows, an investigator for the Escambia County Sheriff’s

Office, testified that he responded to Hartley’s business on July 15th in order to

look at a red Buick convertible. Meadows found a package under the rear seat. A

firearm was in the package. (T. 698-700). Wayne Wright, a crime scene

investigator, testified that on July 15th he responded to the location and

photographed the scene. Wright identified the photographs he took, including a

photograph of the package containing a 9 mm. pistol. (T. 703-708; R. 948-954-

Exhs. 83-89).

Jennifer Lovely, deputy sheriff, Escambia County Sheriff’s Office, testified

that on July 16th she responded to 9717 Mobile Highway. Workers were replacing

the carpeting at the residence and they turned over a projectile found on the floor

of the master bedroom closet. (T. 709-712).

31

Cory Aittama, as State Attorney’s Office investigator, testified that she

became involved in the Billings investigation. She responded to an automobile

detail shop known as Fifth Dimensions. Aittama obtained information from Gary

Sumner’s cell phone after Sumner was arrested. Aittama also located a walkie-

talkie in the roadway in Mississippi after Eddie Denson provided directions to its

location. Lastly, Aittama located a safe at Pamela Long’s residence in Gulf

Breeze. The safe was in the backyard of the residence buried beneath a pile of

bricks and a black garbage bag. (T. 713-720; R. 1404-1405-Exhs. 117 and 118; R.

956-Exh. 92). Christine Percell was recalled. Percell testified that she became

involved in the location of the safe. Percell photographed the location of the safe

and identified the photographs. The safe was under a pile of bricks. There were

black garbage bags on top of the safe. (T. 723-728; R. 955-958-Exhs. 91-94).

Chris Gillespie, Drug Enforcement Administration (DEA), testified that in

July, 2009, Escambia County detectives contacted the DEA for assistance in the

Billings investigation. Gillespie, an intelligence analyst, assisted the local

authorities by examining telephone toll records, financial documents and other

business records and by interviewing witnesses and co-defendants. Gillespie

examined the records for phone number (850) 200-5438. The subscriber records

for this number covered the period of mid-June to mid-July. The carrier for the

phone number was T-Mobile, the subscriber was Lauren H. Williams and the user

32

was Gary Sumner. In addition, Gillespie analyzed the phone records for (850)

225-7003. The carrier for the phone number was AT&T and the subscriber/user

was Patrick Poff. (T. 729-735).19

Wayne Wright, a crime scene investigator, was recalled. Wright testified

that he took a buccal swab from Defendant. The swab collects a sample of saliva

or DNA cells inside the person’s mouth. (T. 746-749). Jennifer Hatler, crime

Gillespie testified that he used Penlink, a

computer program to help analyze the records. The program can sort out certain

information, such as the frequency of calls. Gillespie prepared summary charts of

his findings. Gillespie testified that between July 2 through July 10, 2009, there

were 42 contacts between Defendant’s phone number and Sumner’s phone

number. There were contacts between the phone numbers between July 3 and July

4, 2009, and there were contacts on July 9th. In particular, on July 9th, there were

three calls, the first at 9:17 A.M. and the last at 10 P.M. Gillespie noted there were

contacts between Defendant and Anthony Eisa. Some of the contacts were text

messages. On July 9th, the Sumner records show there were no telephone contacts

between 12:56 P.M. and just before 2:56 P.M., and between 7:40 P.M and 10 P.M.

On the same date, Defendant’s records show there were only two calls between

3:39 P.M. to 8:40 P.M. (T. 735-743; R. 1435-1439). Gillespie conceded anyone

could pick up a phone and make a phone call. (T. 744).

19 The State introduced the cell phone records of T-Mobile and AT&T. (T.

728-729; R. 991-1094; R. 1295-1403-Exhs. 115 and 116).

33

laboratory analyst, Florida Department of Law Enforcement, testified that she

conducts DNA analysis. She explained how DNA is analyzed and the process

used to make comparisons. (T. 749-758). Hatler testified that she analyzed

Defendant’s buccal swab and obtained a genetic profile. Thereafter, Hatler

examined certain pieces of evidence. Hatler testified that the DNA profile from

the swab of the rifle indicated the presence of a mixture of two individuals.

Assuming two donors, the major profile matched Defendant’s DNA profile at 11

genetic markers, which yielded a population frequency of 1 in 320 trillion

Caucasions, 1 in 18 quadrillion African-Americans and 1 in 95 trillion southeastern

Hispanics. Hatler also testified that the DNA profile from the swab of another

firearm indicated the presence of three individuals. There were 13 genetic

markers, but Hatler was unable to determine a major or minor contributor.

Defendant was indicated a possible contributor in the mixed DNA profile. Hatler

was only able to do statistics on four genetic markers, which yielded a population

frequency of the mixed DNA profile of 1 in 11 Caucasions, 1 in 12 African-

Americans and 1 in 15 southeastern Hispanics. (T. 759-768). Hatler conceded that

DNA could be inadvertently transferred. (T. 770). Hatler testified she analyzed the

9 mm. This firearm indicated the presence of a mixture of at least four individuals

and got results on all 13 genetic markers, but was unable to determine who was a

34

major or minor contributor. The casings yielded very limited DNA information

which was insufficient for inclusion purposes. (T. 775-776).

Dr. Andrea Minyard, chief medical examiner for district 1 in Florida,

testified that in July, 2009, she performed the autopsies of Mr. and Mrs. Billings.

Dr. Minyard found that Mr. Billings had been shot twice in the legs. He had one

wound in the right leg and one wound in the left leg. (T. 781-790). Dr. Minyard

also found that Mr. Billings was shot in the head. There was a gunshot wound in

the left cheek and exited the right side of the neck. There were two wounds in the

back of the head. One shot entered at the base of the head and exited in the right

forehead. The other shot exited the eyelid on the left. (T. 790-792). These two

wounds indicated they were close in time because they were very close in position.

(T. 793). At least one of the gunshots was consistent with the victim being on his

knees or being close to the ground. (T. 793-794). Dr. Minyard found that Mrs.

Billings had been shot through the right eyebrow. The bullet did not exit. The

trajectory was front to back and slightly right to left. Another gunshot wound to

the head went from the left nose and came out the left frontal scalp on top of the

head. Additionally, there was one wound to the right breast. The projectile did not

exit. Another wound was on the right side of the chest. The projectile exited the

right upper back. The trajectory was front to back, right to left and sharply

upward. (T. 794-798). Dr. Minyard testified that the first shot that entered the right

35

eyebrow of Mrs. Billings would have rendered her instantly unconscious. (T. 798-

799). In regard to Mr. Billings, Dr. Minyard testified that trajectories tended to be

right to left, except the wound on the left cheek which went from left to right. The

gunshot to Mr. Billings’s left cheek may have left him unconscious. (T. 799-800).

Willie Bradley, Escambia County Sheriff’s Office, crime scene lab, testified

that he examined two black bags found on top of a safe. Bradley was able to detect

fingerprints. The latent prints were forwarded to the latent print examiners at the

Sheriff’s Office. (T. 810-814). Altogether, Bradley examined 30 items. (T. 815).

Wayne Wright, a crime scene investigator, was recalled. Wright testified that he

processed the big red van for fingerprints. He located a potential print at or near in

the back passenger side area of the van on the interior portion of one of the rear

windows. The prints were sent to the Sheriff’s Office for identification. (T. 816-

818). Scott Glazebrook, a latent print examiner with the Escambia County

Sheriff’s Office, testified that he found the right thumb, right ring finger and right

middle finger prints of Pamela Long Wiggins on the garbage bag. (T. 818-823; R.

1408-1409-Exh. 121). Glazebrook was able to find Defendant’s left middle

fingerprint on the red van. (T. 823-824; R. 1410-1411-Exh. 122).

Deputy Bill Chavers, Escambia County Sheriff’s Office, testified that on

July 12, 2009, he interviewed Defendant. Deputy Chavers knew Defendant by the

36

name of Pat Poff.20

20 Chavers knew Defendant since 1980 or 1981 when he took karate classes from Defendant’s mother and stepfather. (T. 839).

Chavers interviewed Defendant at the Santa Rosa County Jail.

He did not have a recording device with him. He went over the Miranda form with

Defendant. (T. 825-829; R. 988-989-Exh. 113). Defendant asked Chavers if he

was there to talk about the red van and the Billings situation. When Chavers said

that he was there for that reason, Defendant told him to ask him anything because

he was not in the van, had not driven it lately and was not guilty of anything. (T.

829). Chavers testified that Defendant appeared a little nervous and excited.

Defendant said that the van had been given to him by his mother. Defendant

picked up the van and drove it to his father’s house because it needed some

mechanical work. Defendant said he went to Alabama and the clutch got

overheated. He returned the van back to Pensacola. Defendant said he was

watching television when he saw a report of a red van and a video. He was

concerned that it looked like his van and he tried to call his father, but he could not

reach him. Later, he got a frantic phone call from his father who said that they had

to move the vehicle. Defendant went to his father’s house and he saw his father

trying to clean the van. He said there were a number of people who knew about

the van and knew where the keys to the van were and that anyone could have

driven the van at any point. Defendant mentioned a person by the name of “Tice,”

and said he knew of a group of people that had met, and were not happy, with Mr.

37

Billings. At one point, Defendant made clear that if the investigation was about

the killings he could assure Chavers that he did not do it. He said he knew people

who may have done it. He said he would be willing to go to jail and even die

because his family was in danger. Defendant stated he had gone to Wal-Mart with

two black friends. He would not identify them. He also said he had gone to the

home of Pam Long because he wanted to look at a Bentley she had. Defendant

repeated his fear that his family was in danger. He suggested that he may want to

speak to the Feds about it. Later, Defendant mentioned that “Cab Tice” had come

to him and had said the group wanted to have Billings whacked, but that he

refused. According to Chavers, Defendant mentioned “Tice,” “Mantis” (Jerry

Wood), Phillips and a few others. Another investigator, Baggett, entered the room

at one point. The Miranda form was reviewed again. Defendant mentioned a

group called MS13 and suggested that the investigators look into that group. (T.

830-838; R. 990-Exh. 114). Defendant adamantly maintained he did not do

anything and was not guilty. (T. 847).

Paul Dragan, a forensic firearm and tool mark examiner with the Bureau of

Alcohol, Tobacco, Firearms and Explosives, testified that he was responsible for

identifying firearms and doing ballistics comparisons. Dragan examined the 9 mm.

semiautomatic firearm in evidence. He test-fired the firearm. Dragan then

compared the test-fired projectiles with the spent projectiles and fired casings in

38

evidence. All the spent projectiles were 9 mm. caliber. Dragan concluded that

some of the projectiles recovered by the police matched the test-fired bullets. (T.

848-861). Dragan also examined the ten fired casings. Dragan testified that all the

casings were 9 mm. caliber. He concluded that the casings were fired from the

semiautomatic firearm. (T. 861-863). Dragan examined a shirt and pants in

evidence, labeled as having been from Melanie Billings. Dragan determined that

some holes in the shirt were consistent with being bullet holes. He documented

four holes, three of which were made by one bullet. He concluded that one of the

bullet holes was from a bullet fired from the semiautomatic. Dragan found small

amounts of granular unburnt gun powder. Dragan proceeded to compare a test-

fired cloth with the shirt. He concluded that the shot was fired from a distance of

no closer than four feet. (T. 864-868).

Penalty Phase

The State called Christopher Rieter, who testified that he was a fingerprint

identification examiner with the Pensacola Police Department. Mr. Rieter

reviewed a certified copy of the judgment and sentence in Case No. 92-1970-CFA-

1401 entered against Patrick Richmond Poff and examined the fingerprints

attached to the judgment. Mr. Rieter compared the judgment fingerprints to

Defendant’s standard set of fingerprints. Rieter concluded that the fingerprint

images in the copy of the judgment and sentence and the fingerprint images on the

39

fingerprint card bearing the name Leonard Patrick Gonzalez were one and same.

The conviction was for robbery without a weapon. The judgment was introduced

over defense objection. The date for the judgment was March 1, 1995. (T. 993-

997; R. 1462-1464-Exh. 127).21

Louie Bain Matthews, deputy with the Escambia County Sheriff’s Office,

testified that on April 22, 1992, he responded to a robbery call. Deputy Matthews

was able to apprehend Defendant. Matthews took Defendant back to the Circle K

Jason Walker testified that in April, 1992 he was working as a clerk at a

Circle K in Escambia County. Walker was working the night shift when an

individual came in and grabbed some cigarettes off the counter and started to leave

without paying for the items. Walker approached him and asked if he was going to

pay for the cigarettes. The person grabbed Walker and placed him in a head lock

and dragged him out the door. Walker believed the man used his left arm. The

man pulled Walker out into the middle of the parking lot and began striking him in

his face. The man was yelling that he was going to kill him. Walker fought him

off and was able to strike him in the groin area. The man fled across the street and

began to “pump himself up.” Walker entered the store, locked the door and called

911. The police eventually apprehended the assailant and the person was brought

to Walker to identify him. (T. 997-1002).

21 The judgment reflected a plea of no contest to a violation of probation resulting in a six month jail sentence on robbery. (R. 1462).

40

where he was identified by the victim. (T. 1005-1007). Defendant was 18 years

old at the time. (T. 1007-1008). Matthews testified that he knew Defendant from

his neighborhood. Defendant was a regular, good kid back then. He had no

violent tendencies. (T. 1008).

Ashley Markam was called to read a statement regarding victim impact. Ms.

Markam stated that her parents, Mr. and Mrs. Billings, were good parents, advice-

givers and friends. Markam explained that the victims devoted their resources to

the cause of protecting children and assisted others in the community. The victims

helped people around the world by sharing their knowledge of children with

disabilities and taught others to be compassionate. Markam identified nine

children, ranging from 12 to 5 years of age, whose lives have been turned upside

down. She stated that the children were victims again. They would not have their

parents to share their lives or to guide them through life’s challenges. On a

personal note, Markham stated she had lost her best friend and idol. She

concluded by saying that the community had lost two people who were trying to

make the world a better place and two people who were soulmates. They were

placed together to enrich the lives of others. (T. 1009-1013).

The defense called Terri Poff, Defendant’s mother. Ms. Poff testified that

Defendant was born on January 31, 1974. Ms. Poff was married to Leonard

Patrick Gonzalez, Sr. at the time. Poff had a very difficult pregnancy. She was

41

extremely anemic and was in the hospital a couple of times of hemorrhaging from

beatings from her husband. She was trying to divorce Gonzalez, Sr. at the time.

Poff was only 15 years old when she got married and 17 when she was divorced.

Poff testified that after Defendant was born Poff was divorced and worked at

different restaurants. She attended college and Defendant attended Pensacola

Christian Preschool. Poff described a time where she was holding Defendant on

her lap when Gonzalez, Sr. threw an ashtray at her and she blocked the ashtray.

She called Gonzalez Sr.’s probation officer and he was jailed. Gonzalez, Sr. was

on probation for sale of marijuana. Defendant attended Ferry Pass Elementary

school. She learned that Defendant suffered from behavior disorder, Attention

deficit and hyperactivity disorder (ADHD), but she refused to put him on any kind

of medication. Instead, Poff got Defendant involved in Taekwondo (Korean

martial arts) at age 4 because he had so much energy. By the time Defendant was

15 years old he was in the National Junior Olympics and received two gold medals.

Over the years, Defendant received hundreds of trophies. In fact, sometimes he

would give others his trophies. (T. 1020-1025).

Poff testified that she later married Joe Poff. Defendant loved his stepsister,

Katie, and was very protective of her. Defendant later attended Oriole Beach

Elementary. He received good grades. Poff took Defendant out of school at 7th

grade for home schooling because she believed he just being passed from grade to

42

grade. Poff, who had a degree in special education, went through 4 years of school

within 1 year with Defendant. Defendant was very excited to go back to school.

Defendant loved the beach. He was doing karate every day. He was a black belt

by age 9. Subsequently, Defendant began teaching Taekwondo every day after

school. He attended church on Wednesday nights and Sunday mornings. He was

part of a youth group. He joined drama classes, chorus and football at school.

Poff’s husband adopted Defendant in 1980. Eventually, Defendant obtained a high

school degree at Pensacola Junior College. (T. 1026-1032). Poff testified that

Defendant was arrested when he was17 for taking things out of a car. Poff also

stated that he was later arrested for taking cigarettes at a Circle K. Defendant

attempted suicide with an overdose of stolen sleeping pills. He was sent to West

Florida Community Care Center. (T. 1032-1034). Poff testified that Defendant set

up several dojos or martial arts schools. He taught women martial arts to defend

themselves against rape. (T. 1035-1037). Defendant married and fathered a

daughter when he was 27. Defendant’s wife would not let Poff see the child.

Eventually, Defendant divorced and the child’s mother took the child to Sarasota.

The mother would not let Defendant have contact with his daughter. Defendant

met Tabitha, a student at his school. Tabitha had 4 children from her prior

marriage. Tabitha and Defendant were later married. Defendant fathered two boys

by Tabitha. One child, Eric, is 4 years old and Patrick is 7 years old. Tabitha got

43

pregnant again but after Defendant’s arrest, Tabitha lost her child. Poff testified

that Defendant was great with the children. He spent a lot of time with them and

was very patient. He taught them and developed a special bond with the children.

He never mistreated or disrespected the children in any way. Defendant and

Tabitha set up a program for children. The program, called Project Fight Back,

was set up to teach children and women to be safe. (T. 1037-1041). Defendant

served in the Army National Guard. (T. 1041-1042).22

Poff testified that Defendant developed a hernia and injured his shoulder due

to all the years of Taekwondo. He had surgery and was prescribed pain killers.

Defendant became addicted to the painkillers. Defendant’s behavior changed. He

became unapproachable. He spoke rapidly and had mood swings. Defendant was

forced to close his schools and filed for bankruptcy. Poff tried to assist Defendant

with his bills but she could not help him out anymore. (T. 1042-1045). Poff stated

she had two sisters who died in the last year. One sister suffered from cancer.

Defendant bought her a mattress to make her more comfortable. Defendant and his

wife helped out a lot. (T. 1045). After Defendant’s arrest, Defendant’s wife and

children moved in with Poff. Defendant continues to have regular contact with his

children. (T. 1046). Poff testified that Defendant is a kind person who would give

22 The prosecutor pointed out that Poff had testified that Defendant loves children and then asked: “Wasn’t a great deal of that shown on July 9th 2009 was it?” The defense objected and the court sustained the objection. (T. 1052).

44

his last penny if he could. He helped everyone that he could. He is a good person.

However, when he started his medications he became completely different. (T.

1046).

Tabitha Gonzalez, Defendant’s wife, testified that she met Defendant at a

karate school when her children started taking classes. They became romantically

involved and were married on July 5, 2003. Defendant loved children and would

do the children’s self-defense and women’s self-defense programs. Defendant

would write her poems. He was funny. While they were married, Defendant was

test-driving a car from Cab Tice. The police stopped the car because the car tag

was traced to a violent crime. When he was stopped, Defendant was man-handled

and slammed to the ground. Defendant could not move the next day. He went to

the hospital and was prescribed pain-killers. As a result, Defendant became

addicted to the pain killers. He also began to abuse alcohol. He became

unfriendly. Defendant could not focus on the martial arts businesses. Defendant

and Tabatha created a Project Fight Back program to empower children to be safe

and defend themselves. They did not charge for this program. The Pensacola

News Journal published a series of articles concerning the program. (T. 1054-

1062). Tabitha Gonzalez testified that they started to have financial difficulties. In

fact, utilities were being turned off. Defendant became depressed. He had mood

swings. She learned that Defendant had tried to reunite with his biological father.

45

She did not approve because she knew his father was a drunk and drug addict. (T.

1062-1064). She and Defendant had two boys. Their ages were 7 and 4.

Additionally, she had four children from a previous marriage. Defendant was very

good with the children. Defendant has continued to speak with the children on the

telephone. He encourages the children to do well in school and do their homework

and help with their projects. While in jail, Defendant was baptized. He still tries

to help people in jail. She still loves him. (T. 1064-1067). Various defense

exhibits were introduced. (R. 1448-1461-Defense Exh. 3).

Spencer Hearing

On December 9, 2010, the court conducted the final sentencing hearing

pursuant to Spencer v. State, 615 So.2d 688 (Fla. 1993). The State announced that

it had no additional aggravating circumstances to introduce. However, the State

submitted victim impact statements. (R. 713; R. 810-813). The defense pointed

out that only Defendant was facing the death penalty in the case. (R. 715-716).

Thereafter, the defense called Defendant, Lisa Clark Gray and Tabitha Gonzalez.23

23 The defense announced it intended to introduce psychological records, school records and military records, but Defendant informed the court that he did not want the records to be presented. (R. 714-715).

Defendant read a statement. (R. 829-833). In his statement, Defendant said that

there was an assumption of guilt in this case. He pointed out that there had been

countless press conferences and interviews. Defendant maintained that the

46

government had not proven its case. He asserted that from the very beginning he

had claimed his innocence, while the government, the police and the State

Attorney’s Office had announced to the world that Defendant was guilty. The

prosecution had written a complicated conspiracy story for the local, national and

international media outlets. The government had spoon-fed the public with claims

of evidence that never materialized and introduced alleged star witnesses who

never appeared in court. The prosecution generated as much publicity as possible

on programs like Nancy Grace, Larry King, Oprah and the O’Reilly Factor.

Defendant averred that the government’s actions were illegal and unethical. In

particular, Defendant pointed out that the Sheriff and the State Attorney had made

shocking statements about military tactics, ninja guard, ties to organized crime, and

conspiracies that crossed state lines and international borders. According to

Defendant, the government took an awful, horrible tragedy and politicized it. (R.

717-721). Defendant also stated that according to the judicial canon, prosecuting

officials are strictly prohibited from making for publication statements which

pertain to pending or anticipated litigation for the reason that such statements may

interfere with the fair trial. Defendant pointed out that neither his legal team nor

his family or any one else had called a single press conference, or had granted

interviews, or had made public statements to respond to the government’s

allegations. He charged the government with influencing the public with pervasive

47

pre-trial publicity and inflammatory statements to create hostility towards him. He

maintained he was tried and convicted in the media. Defendant noted that the

prosecution promised to present forensic evidence, video evidence and eyewitness

evidence against him but what they did not tell the media was that there was no

real evidence connecting him as participating in the crime because he was not

guilty. He pointed out that his father had severe brain damage and that one could

get him to say anything. For example, he was led to say he was the getaway

driver. Only two co-defendants were eventually called by the State. They

admitted that there hands were bloody and were testifying in hopes of getting two

extremely reduced sentences. Defendant labeled their testimonies “slot machine

confessions.” They would tell one story and then tell another story and then tell

another story, until they said what the State wanted them to tell. They admitted

lying under oath and their testimony was the product of purely selfish

considerations. (R. 721-726).

Defendant further stated that while the sheriff and the state used the media to

accomplish their objectives and for political gain, he did not stoop to that level. He

flatly stated he was not guilty of the charges. He was sure that the prosecution’s

evidence or lack thereof would prove itself to be smoke and mirrors. Defendant

stated that the State produced a weapon that the prosecution was able to prove fired

every shot that killed the victims. They proved that the gun had four different

48

persons’ DNA on it, none of which belonged to him. The gun, however, was

found in a car belonging to Hugh Wiggins, who was given immunity to testify

against him but who never testified. Defendant pointed out that the State produced

a safe taken from the crime scene. The safe was wrapped in black bags buried

underneath a pile of bricks. It was found in the backyard of Hugh Wiggins. No

fingerprints, DNA or other evidence linked the safe to Defendant. The State

produced a video, but it was of such poor quality that none of the assailants could

be identified. Moreover, the State did not produce evidence that the red van in the

video was the same van found at his father’s home or that it was ever in

Defendant’s control or that Defendant ever drove the van. The two co-defendants

admitted lying under oath and testified to negotiate youthful offender sentences.

More importantly, the co-defendants contradicted each other and never said they

saw Defendant shoot anyone. Defendant stated that the prosecution called two

men allegedly recruited by Defendant, but these men were never told of a time,

place or targets. One of the men, Lonnie Smith, had his drug trafficking charges

dropped before his testimony. Defendant’s father’s ex-wife allegedly overheard

Defendant talk about a robbery, but she did not know any of the details. Defendant

stated that the prosecution presented photos from the Wal-Mart showing him

shopping at the store with two black men. There was no showing that the boots

purchased at the Wal-Mart were of any evidentiary value. Also, there was no

49

showing that the two black men were involved in the murders. The State also

called a mechanic who said that Defendant had asked him to switch tires just days

after the crime and that Defendant had asked him not to say he had seen him.

However, this person did not connect Defendant to the crime. Defendant also

pointed out that a Mississippi man testified he had been given a cache of weapons

just days after the crime. This man, however, never met Defendant and was given

the weapons by Hugh Wiggins, a man who had a lot of connections to the evidence

in this case. (R. 726-734). Defendant stated that Chief Bill Chavers testified he

spoke with Defendant and that Defendant denied any involvement in the crimes.

Defendant maintained that no physical evidence placed Defendant at the crime

scene, or connected the murder weapon to him or linking him with the getaway car

or the safe that was taken. He asked again why the State had not called Hugh

Wiggins. (R. 734-736). Defendant asserted anew that the huge amount of pre-trial

publicity, augmented by modern-day innovations such as the internet, blogs and

numerous television outlets, clearly violated his right to a fair trial. (R. 736-737).

Defendant maintained his innocence. He asked that the conviction be reversed due

to lack of evidence. He repeated that he was never at the crime scene, had not

touched anything or had any control of the murder weapon or the getaway car. He

questioned how in the 400-year history of Pensacola his trial only lasted three

days. He concluded that whether he is sentenced to life imprisonment or to death

50

row he was not guilty. (R. 737-739). Defendant said he was sorry about what

happened to Mr. and Mrs. Billings and the Billings family. He said the victims

were good people. He maintained he did not have a motive to kill them because

Mr. Billings had contributed to his organization. He claimed that he has been an

advocate for children and women as well as the elderly. He labeled the man who

committed the crime as a monster. He denied the he could have done such a cold-

blooded act. Defendant reiterated the lack of evidence against him. He was sorry

for what his family was going through. He said that if he could have done

anything to stop the men from going to the victims’ house that day and killing the

victims he would have done it. (R. 739-743).24

The defense called Lisa Clark Gray, Defendant’s aunt. Ms. Gray testified

that she has known Defendant since he was born. She spent a lot of time with

Defendant when he was a baby. She remembered that her sister, Terri Poff, was

married to Leonard Gonzalez. She thought Gonzalez was retarded. He would rant

and rave. She remembered one incident when Gonzalez was drunk and threw a

huge glass ashtray at Terri. The ashtray broke Terri’s left wrist. Gray testified that

Gonzalez broke into her parents’ home while they were keeping Defendant and he

chased her all over the house trying to get the baby. Gray’s father beat Gonzalez

up and Gray never spoke to Gonzalez again. Gray testified that her sister bought a

24 The prosecution thoroughly cross-examined Defendant. Defendant maintained his innocence and lack of involvement in the charged offense. (R. 744-791).

51

red van for Defendant and Tabitha so that they would have a car to transport the

children. Gray said Defendant grew up to be a great person. He wanted to protect

children. He taught mothers karate as self-defense. She maintained that there is no

way that Defendant would have killed parents of handicapped children. Defendant

is a loving parent and husband. Defendant would also help her out as much as

possible. Gray could not remember one time where Defendant hurt anyone. (R.

795-801).

Tabitha Gonzalez testified. Ms. Gonzalez testified that when she met

Defendant he was doing women’s self-defense and children’s self-defense. He is

an advocate for children’s and women’s rights. Defendant would do people’s

groceries and give them his last five dollars. She said that Defendant was a good

father. The children love Defendant. He has done many wonderful things for the

community. Ms. Gonzalez said the police told her many things and she believed

she was lied to. She expressed her continued love for Defendant. She expressed

her sorrow for the Billings family. (R. 801-807).

The defense renewed its motions for judgment of acquittal and directed

verdict. (R. 807). The court denied the renewed motions. (R. 807). The court

informed the parties that they could present written sentencing memoranda. (R.

807). On February 17, 2011, the court read his order stating reasons for the

imposition of the death penalty. (R. 838-843; R. 865-872).

52

ISSUES PRESENTED

(I)

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S COMMENTS DURING OPENING STATEMENT

(II)

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S IMPROPER GUILT PHASE CLOSING ARGUMENTS

(IIII)


(IV)

DEFENDANT’S CONVICTIONS MUST BE REVERSED DUE TO THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS

(V)

THE TRIAL COURT ERRED DENYING DEFENDANT’S MOTION TO COMPEL A BILL OF PARTICULARS AS TO AGGRAVATING CIRCUMSTANCES

(VI)


(VII)

THE TRIAL COURT ERRED IN PENALTY PHASE JURY INSTRUCTIONS

(VIII)

DEFENDANT IS ENTITLED TO RESENTENCING BASED UPON THE PROSECUTOR’S IMPROPER PENALTY PHASE ARGUMENTS

53

(IX)

THE TRIAL COURT’S SENTENCE OF DEATH SHOULD BE VACATED SINCE DEATH WAS A DISPROPORTIONATE SENTENCE IN THIS CASE

(X)

THE TRIAL COURT’S SENTENCING ORDER HAS ERRORS THAT, BOTH INDIVIDUALLY AND CUMULATIVELY, REQUIRE REVERSAL OF DEFENDANT’S DEATH SENTENCE AND A REMAND FOR RESENTENCING BY THE TRIAL COURT

(XI)


(XII)

DEFENDANT’S SENTENCE OF DEATH MUST BE VACATED DUE TO THE CUMULATIVE EFFECT OF THE PENALTY PHASE ERRORS

STANDARDS OF REVIEW

(I, II & VIII) The control of comments by counsel is within the trial court’s

discretion. Perez v. State, 919 So.2d 347, 363 (Fla. 2005); Goodrich v. State, 854

So.2d 663, 664 (Fla. 3d DCA 2003); Frazier v. State, 970 So.2d 929, 930 (Fla. 4th

DCA 2008). An appellate court may reverse a conviction based upon improper

prosecutorial comments if the comments are of such a nature as to (1) deprive the

defendant of a fair trial; (2) materially contribute to his conviction; (3) to be so

harmful or fundamentally tainted as to require a new trial; or (4) be so

54

inflammatory that they might have influenced the jury to reach a more severe

verdict than that which they would have reached otherwise. Lewis v. State, 780

So.2d 125, 131 (Fla. 3d DCA 2001). The propriety of a prosecutor’s closing

argument may be reviewed for fundamental error. D’Ambrosio v. State, 736 So.2d

44 (Fla. 5th DCA 1999). (VI) A trial judge is afforded broad discretion with

respect to the admissibility of evidence. Sexton v. State, 697 So.2d 833 (Fla.

1997); Cole v. State, 701 So.2d 845 (Fla. 1997); Kearse v. State, 662 So.2d 677

(Fla. 1995); Smith v. State, 28 So.3d 838 (Fla. 2009). (III) A trial court’s response

to a jury question is reviewed for abuse of discretion. Green v. State, 907 So.2d

489, 496-498 (Fla. 2005). (V) A trial court has discretion to grant a motion to

compel a bill of particulars as to aggravating circumstances. See Steele v. State,

921 So.2d 538, 543 (Fla. 2005). (IV & XI) An appellate court may consider the

cumulative effect of errors even where each of the trial court’s asserted errors,

standing alone, are insufficient to merit reversal, and an appellate court may find

prejudice requiring reversal. See Parker v. State, 904 So.2d 370, 380 (Fla. 2005).

(VII) This Court reviews the propriety of penalty phase jury instructions for abuse

of discretion. See Darling v. State, 808 So.2d 145, 162-63 (Fla. 2002). (IX) To

determine whether death is a proportionate penalty, this Court must consider the

totality of the circumstances and compare the case with other cases. Dessaure v.

State, 891 So.2d 455, 472 (Fla. 2004). (X) The standard of review applicable to a

55

trial court’s finding of a capital aggravator is whether competent, substantial

evidence supports the finding. Smith v. State, supra. The weight to be accorded an

aggravator is within the discretion of the court. Sexton v. State, 775 So.2d 923, 934

(Fla. 2000). It is within the trial court’s discretion to decide whether a mitigating

circumstance is proven and the weight to be given each mitigating factor. Frances

v. State, 970 So.2d 806, 810 (Fla. 2007).

SUMMARY OF ARGUMENT

(I) During opening statement, the prosecutor improperly expressed his

personal belief by vouching for the truthfulness of State witnesses and improperly

argued that the victim had been executed during opening statement denying

Defendant a fair trial. The prosecutor impermissibly discredited the defense,

attacked Defendant’s character and expressed personal views and opinions. (II)

During guilt phase arguments, the prosecutor improperly commented on the

witnesses’ veracity by noting that they could have added information to please the

prosecution, impermissibly introduced facts not presented at trial and unfairly

commented on Defendant's failure to explain evidence or testimony. A prosecutor

may not bolster the credibility of witnesses, especially where the prestige of the

State is utilized to back up the prosecutor’s claim. A prosecutor may not comment

on matters not in evidence. Further, a prosecutor may not argue that a defendant

did not offer an exculpatory account of events after being advised of his Miranda

56

rights. (III) The trial court improperly provided the jury with a magnifying glass.

There was no indication from the jury as to why it requested the magnifying glass

and the court did not inquire of the jurors on the issue. The magnifying glass was

not used during the presentation of evidence in the case and was not introduced as

an evidentiary exhibit. The jury’s use of the magnifying glass was error. (IV) The

cumulative effect of the guilt phase errors entitles Defendant to a new trial. (V)

The trial court erred in denying Defendant’s motions to compel the State to provide

a bill of particulars as to the aggravating circumstances. A trial court does not

depart from the essential requirement of law by requiring the state to provide pre-

guilt or pre-penalty phase notice of aggravating factors. It is apparent that the trial

judge believed he was required to deny the defense motion even though the law

permits the filing of a bill of particulars for aggravating circumstances. (VI) The

trial court improperly permitted the State to present testimony concerning a 1992

robbery during the penalty phase. The remoteness of the offense, in conjunction

with the fact that the prior offense was not life-threatening, supported the

Defendant’s argument that evidence of the offense was not relevant and should not

have been permitted. (VII) The trial court improperly instructed jurors in the

penalty phase by denigrating the role of the jury, informing the jury that their

verdict need not be unanimous as to the aggravating factors supporting a death

sentence and excluding the concept of mercy from jury consideration. (VIII) The

57

prosecutor improperly argued at penalty phase closings when he repeatedly made

reference to the children in the Billings residence, commented on the children’s

disabilities and made comments not supported in the record, when he equated

mitigating circumstances with an aggravating circumstance, when he repeatedly

referred to “double murder” as an aggravating circumstance, when he argued that

Defendant shot Mr. Billings “like a dog,” and when he denigrated the role of the

jury. (IX) Defendant’s death sentence is disproportionate under Florida law. The

defense presented evidence and testimony that Defendant was loved by family and

acquaintances and his execution would have a negative impact on Defendant's

family. Defendant had contributed to the community and exhibited appropriate

courtroom behavior. Most of the aggravating factors involved Defendant’s prior

crime of robbery and the contemporaneous convictions. The court’s finding of

EHAC, challenged by the defense here, must nevertheless be viewed along with

Defendant’s substantial mitigating circumstances. (X) The trial court committed

several errors in its sentencing order which, individually and cumulatively, require

reversal of Defendant's death sentence. In particular, the court erred in finding the

EHAC factor. The court improperly referred to the victims’ assumption that their

minor children would not be left behind as witnesses. The court improperly

referred to matters not established in the record. There was no testimony that the

children witnessed the shootings in the bedroom or that the victims knew that the

58

children were watching or even overhearing the shootings in the bedroom. The

court’s review of the record was not entirely supported by the medical examiner’s

testimony. The medical examiner testified that the shot to Mr. Billings’s cheek

likely rendered him unconscious and was probably fatal. As such, the testimony

presented at trial established that Mr. Billings probably lost consciousness and may

have died instantaneously. The court’s characterization that the wound was “more

serious” and may not have been fatal, understated the effect of this shot. The

court’s finding that Mrs. Billings’s death was “more instantaneous” understated the

medical examiner’s testimony that the shot to Mrs. Billings’s head rendered her

unconscious and was fatal. The shootings of Mr. and Mrs. Billings in the bedroom

rendered them unconscious and probably resulted in their instantaneous deaths.

The events in the residence unfolded rapidly with very little delay between the

initial entry and the eventual shootings in the bedroom. There was no evidence

that Defendant intended to torture the victim. The evidence introduced at trial did

not establish this factor beyond a reasonable doubt. Lastly, the trial judge also

failed to properly assess all the mitigating circumstances and failed to give those

mitigating circumstances found sufficient weight. (XI) Defendant maintains that

Florida’s capital punishment statute violates the United States Supreme Court

decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

59

(2002). (XII) Defendant’s sentence of death must be vacated due to the cumulative

effect of the penalty phase errors.

ARGUMENT

(I)

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S IMPROPER COMMENTS DURING OPENING STATEMENT

During opening statement, the prosecutor improperly expressed his personal

belief by vouching for the truthfulness of State witnesses. The prosecutor stated:

MR. EDDINS: “Gary had two young kids, Frederick Thorton and Rakeem Florence, that hung around his car cleaning—car detailing business. A [sic] the time of the murders, Rakeem Florence was only 17 years old; Frederick Thorton was only 19… They’ve confessed. They have told the truth. And they are going to testify here in this trial, and tell you in detail how this murder happened.” (T. 249)(emphasis supplied).

*** MR. EDDINS: “Now, the proof will show that the defendant in the

case was not the smartest person in the world. We’ve already established that he talked to Lonnie Smith and Tony Elisa about it. He talked to his daddy about it, told him they had a target with a safe with a lot of money. And while he was doing that, his father’s ex-wife, who still lived with his father was presence [sic]; her name is Carol Brant. She heard them planning a robbery, and she will testify. And she has no involvement, no interest in the case, the proof will show, and her only interest is to tell the truth about the plan that this man and his father had to rob these people.” (T. 250) (emphasis supplied).

*** MR. EDDINS: “Rakeem Florence’s mother got on him – he’s one that’s 17—and chastised him severely that night. And when she did, he told the truth. He confessed, and told what happened. The same night Frederick Thorton did the same thing as well. And you’ll be able to—the proof will show these young men are very credible and very remorseful. (T. 252)(emphasis supplied).

60

Additionally, the prosecutor improperly argued during opening

statement that Defendant “executed” the victim. The prosecutor stated:

MR. EDDINS: “Then Gonzalez, Jr., goes into the bedroom and continued to demand, to know where the money was. When Bud Billings wouldn’t tell him—he told him he didn’t have any money, he shot him in the cheek. Then at the foot of his bed in his bedroom, he was shot behind the head twice and executed.” (T. 258)(emphasis supplied).

*** MR. EDDINS: “… I’ve already indicated, the proof will show that Bud Billings was shot in the legs twice, that he was then carried into his bedroom, that in his bedroom he was shot in the cheek first for telling—for failing to tell—for defying he had any money, then he was shot—executed in the back of the head at the foot of his bed while his wife watched in horror.” (T. 268)(emphasis supplied).

An opening statement may not be used by a prosecutor to argue his case,

attack the credibility of witnesses or to express personal opinions. See First v.

State, 696 So.2d 1357 (Fla. 2d DCA 1997) (prosecutor's comment in opening

branding defendant's alibi witness a "liar" argumentative, expression of personal

opinion and reversible error). Here, the prosecutor impermissibly vouched for the

truthfulness of State witnesses. (T. 249; T. 250; T. 252). This was error. See Fryer

v. State, 693 So.2d 1046 (Fla. 3d DCA 1997); Cisneros v. State, 678 So.2d 888

(Fla. 4th DCA 1996); Northard v. State, 675 So.2d 652 (Fla. 4th DCA 1996). See

also Ruiz v. State, 743 So.2d 1, 5 (Fla. 1999) (prosecutor may not imply that state

only prosecutes the guilty). In addition, the prosecutor improperly argued that the

victim had been executed. (T. 258; T. 268). On opening statement, a prosecutor

61

may not attack the character of the defendant. See Traina v. State, 657 So.2d 1227

(Fla. 4th DCA 1995); Post v. State, 315 So.2d 230 (Fla. 2d DCA 1975). In the

present case, the prosecutor argued that Defendant “executed” the victim. This

was improper. See, e.g., Urbin v. State, 714 So.2d 411, 420 n.9 (Fla. 1998)

(improper for prosecutor to argue that the defendant “executed” the victim);

Brooks v. State, 762 So.2d 879, 900 (Fla. 2000)(prosecutor impermissibly

inflamed passions of jury by using “executed” or “executing”); Bonifay v. State,

680 So.2d 413, 418 n.10 (Fla. 1996)(use of word “exterminate” or similar term

dehumanizing defendant condemned as improper). The assistant state attorney’s

comments in this case clearly amounted to argument discrediting the defense,

attacking the character of the defendants and expressing personal views and

opinions.25

25 The State only requested an aggravating factor instruction on especially heinous, atrocious or cruel (EHAC), and not cold, calculated and premeditated (CCP), in this case. As such, the prosecutor’s reference to execution-style murders was particularly improper, given the fact that execution-style murders are not normally EHAC. See Hartley v. State, 686 So.2d 1316 (Fla. 1996); Ferrell v. State, 686 So.2d 1324 (Fla. 1996).

These were not single, isolated remarks. Rather, the record shows that

the prosecutor repeatedly referred to the witnesses’ credibility and made his

“executed” remark twice during opening statement. Compare Heath v. State, 648

So.2d 660, 663 (Fla. 1994)(single remark in opening); State v. Marshall, 476 So.2d

150 (Fla. 1985)(single comment on defendant's failure to testify); Dailey v. State,

594 So.2d 254, 257-58 (Fla. 1992)(single comment on right to remain silent);

62

Duest v. State, 462 So.2d 446, 448 (Fla. 1985)(single incident where prosecutor

insulted defense counsel). The cumulative effect of the prosecutor’s arguments

vouching for the truthfulness and remorse of the State’s witnesses and arguing that

Defendant executed the victim deprived Defendant of a fair trial, under Art. I, §§9

and 16, Florida Constitution, and the 5th, 6th, 8th and 14th Amendments, U.S.

Constitution. The series of improper comments amounted to fundamental error

and cannot be considered harmless error. As this Court has observed:

“There are situations where the comments of the prosecutor so deeply implant the seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction.” Pait v. State, 112 So.2d 380, 384 (Fla. 1959).

(II)

DEFENDANT WAS DENIED A FAIR TRIAL BY THE PROSECUTOR'S IMPROPER GUILT PHASE CLOSING ARGUMENT

Defendant was denied a fair trial, under Art. I, §§9 and 16, Florida

Constitution, and the 5th, 6th, 8th and 14th Amendments, U.S. Constitution, by the

prosecutor's improper guilt phase closing argument. The prosecutor argued:

MR. MOLCHAN: “Again, remember, neither one of the codefendants, Mr. Florence or Mr. Thornton, if they wanted to make up a story, if their idea was to pin this on the defendant, wouldn’t you think they would sit there and say, oh, yeah, I saw him point the gun and shoot him, boom, boom, boom…[T]hey are 16- and 19-year old men who are in the middle of a crime, who will be punished as they should be, but whose testimony is not the kind of testimony that appears fabricated because in essence it could have gone a lot further down the way if they wanted to

63

please us, so to speak. Does everybody understand that? If they wanted to please us and come up with a story, they would have left nothing out there, but they didn’t.” (T. 904-905)(emphasis supplied).

The prosecutor improperly commented on the witnesses’ veracity by noting

that they could have added information to please the prosecution. It has long been

held that a prosecutor may not bolster the credibility of witnesses, especially where

the prestige of the State is utilized to back up the prosecutor’s claim. In Ruiz v.

State, 743 So.2d 1, 4 (Fla. 1999), this Court made clear that an attorney’s closing

argument is not a place to express a personal opinion on the merits of the case or

the credibility of witnesses. See also Freeman v. State, 717 So.2d 105, 105-106

(Fla. 5th DCA 1998)(prosecutor improperly asked jurors to believe officers because

they had no reason to lie); Sinclair v. State, 717 So.2d 99, 100 (Fla. 4th DCA

1998)(improper to ask jurors if officer would put his career on the line for other

motivations); Lewis v. State, 711 So.2d 205, 207 (Fla. 3d DCA 1998)(improper for

prosecutor to argue that victim was nice kid who was super honest and would not

lie); Johnson v. State, 917 So.2d 226, 232 (Fla. 3d DCA 2005)(improper for

prosecutor to vouch for victim by saying he is not a bad guy).

During rebuttal argument, the prosecutor further argued that

MR. MOLCHAN: “And, remember, he’s trained in quote, karate. He’s a karate person and there’s one thing they use both hands. Both hands are used in that situation, so it really doesn’t—it’s not a factor that should be considered because the testimony is clear in outlining him as the murderer. (T. 945-946)(emphasis supplied)

64

The prosecutor was attempting to undercut the defense argument that

Defendant was left-handed and, as such, testimony that he shot the victims was

unreliable. The prosecutor’s argument, however, impermissibly introduced facts

not presented at trial. A prosecutor may not comment on matters not in evidence.

See Huff v. State, 437 So.2d 1087, 1090-1091 (Fla. 1983)(prosecutor may not

comment on matters unsupported by the evidence produced at trial); Garcia v.

State, 622 So.2d 1325, 1331 (Fla. 1993)(prosecutor may not subvert truth-seeking

function of trial by deliberate obfuscation of relevant facts). See also Pacifico v.

State, 642 So.2d 1178, 1184 (Fla. 1st DCA 1994); Pope v. Wainwright, 496 So.2d

798, 803 (Fla. 1986)(improper to argue matters outside the evidence).

During rebuttal, the prosecutor made the following additional argument:

MR. MOLCHAN: “His own words are confirmation because his own words place him at Wal-Mart and when he places himself at Wal-Mart and Chavers asked him, Who are you with? I’m not going to say. I’m not going to tell you. When he says he sees something disturbing in the red van. What’s in there? I’m not going to tell you, I’m not going to say. When he talks about aspects of the crime, he shuts down and will not talk about it. Confirmation by his own words also come into play in this situation. Because his own words, I’m in deep, I’ll take the heat.” (T. 946)(emphasis supplied).

The prosecutor unfairly commented on Defendant's failure to explain

evidence or testimony. The prosecutor made clear that Defendant refused to speak

to the police about certain matters. It is impermissible for a prosecutor to make a

statement that is “fairly susceptible” of being understood as a comment on a

65

defendant’s right to silence. See Dailey v. State, 594 So.2d 254, 258 (Fla. 1991).

The “fairly susceptible” test is a very liberal rule. State v. DiGuilio, 491 So.2d

1129, 1135 (Fla. 1986). A prosecutor may not argue that a defendant did not offer

an exculpatory account of events after being advised of his Miranda rights. See

State v. Hoggins, 718 So.2d 761, 772 (Fla. 1998); Robbins v. State, 891 So.2d

1102, 1105-1108 (Fla. 5th DCA 2004). While Defendant in this case agreed to

speak with the police, the prosecutor argued that Defendant failed to say who he

was with at Wal-Mart, failed to what was in the red van and failed to talk about

aspects of the crime. The prosecutor flatly stated that Defendant would “not talk

about it.” The argument did not involve a single instance of a refusal to speak, but

a series of matters on which Defendant refused to speak. This was error. Compare

Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978)(prosecutor’s single remark

concerning Defendant’s refusal to answer one question not violative of the

defendant’s constitutional rights). This was not a case where Defendant was cross-

examined about his statement. Rather, the prosecutor argued that he failed to tell

Det. Chavers certain things in the absence of Defendant’s testimony at trial.

Compare Downs v. Moore, 801 So.2d 906, 910-912 (Fla. 2001)(prosecutor’s cross-

examination of the defendant on his failure to tell police about circumstances of

crime proper impeachment). The defense did not object to the foregoing

comments. Fundamental error exists because the comments go to the foundation

66

or merits of the cause of action. See Gonzalez v. State, 588 So.2d 314, 315 (Fla. 3d

DCA 1991); Bonifay v. State, 680 So.2d 413, 418 (Fla. 1996). This Court may

review the record and take into consideration the context of the closing argument.

See Crump v. State, 622 So.2d 963, 972 (Fla. 1993). See also Porterfield v. State,

522 So.2d 483, 487 (Fla. 1st DCA 1988)(defendant's failure to testify); Rosso v.

State, 505 So.2d 611, 612-613 (Fla. 3d DCA 1987) (defendant's failure to testify

and derogatory comments concerning insanity defense); Aja v. State, 658 So.2d

1168 (Fla. 5th DCA 1995)(comments on matters not introduced as evidence);

Fuller v. State, 540 So.2d 182, 184-185 (Fla. 5th DCA 1989)(comments derogatory

of defendant as "shrewd" and "diabolical" and attacking counsel). The cumulative

effect of the prosecutor’s comments cannot be considered harmless. See Pait v.

State, 112 So.2d 380, 384 (Fla. 1959). (See also Issue VIII, pp. 82-84, infra).

(III)


During deliberations, the jury requested a magnifying glass. The defense

objected to the request, asking the court to instruct jurors that they should take the

evidence as presented. The court overruled the objection and provided the jury

with a magnifying glass. (T. 973-975; R. 698). There was no indication from the

jury as to why it requested the magnifying glass and the court did not inquire of the

67

jurors on the issue. The record does not show that a magnifying glass was used

during the presentation of evidence in the case. A magnifying glass was not

introduced as an evidentiary exhibit. Due to the fact that the magnifying glass was

not an exhibit in evidence and had not been used during the course of the trial, the

jury’s use of the magnifying glass was error. The court’s decision allowing the

magnifying glass to the jury deprived Defendant of a fair trial, under Art. I, §§9

and 16, Florida Constitution, and the 5th, 6th, 8th and 14th Amendments, U.S.

Constitution. In the present case, the court did not inquire of the jury as to why the

magnifying glass was needed. Based on the foregoing, the trial court erred in

permitting the jury to have the magnifying glass. See, e.g., City of Elgin v. Nofs,

200 Ill. 252, 65 N.E. 679 (1902)(error to permit jury to examine pieces of timber

with a magnifying glass); People v. Rhoden, 101 Ill.App.3d 223, 427 N.E.2d 1292

(1981)(affirming trial court’s denial of jury’s request for magnifying glass to

examine fingerprints). But see United States v. Brewer, 783 F.2d 841, 843 (9th Cir.

1985)(no error in denying motion for mistrial when jury used magnifying glass

during deliberations).26

26 In Kramer v. State, 882 So.2d 512 (Fla. 4th DCA 2004), the court found that an undisclosed jury request for a magnifying glass was harmless error under Rule 3.410, Florida Rules of Criminal Procedure. See also Jackson v. State, 832 So.2d 932 (Fla. 3d DCA 2002)(request for magnifying glass apparently not objected to).

68

(IV)

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS

Should this Honorable Court find that the issues raised by Defendant

constitute harmless error, Defendant would tender that the cumulative effect

of the guilt phase errors renders Defendant's convictions unfair under Art. I,

§§9 and 16, Florida Constitution, and the 5th, 6th, 8th and 14th Amendments,

U.S. Constitution. See Jones v. State, 569 So.2d 1234 (Fla. 1990); Lusk v.

State, 531 So.2d 1377 (Fla. 2d DCA 1988).

(V)

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTIONS TO COMPEL THE STATE TO PROVIDE A BILL OF PARTICULARS AS TO THE AGGRAVATING CIRCUMSTANCES IT WOULD BE RELYING ON

The trial court erred in denying Defendant’s motions to compel the

State to provide a bill of particulars as to the aggravating circumstances it

would be relying on. Prior to trial, the defense filed a motion for statement

of particulars regarding aggravating and mitigating circumstances. (R. 67-

72). The defense also filed a motion to elect and justify aggravating

circumstances. (R. 163). In particular, the defense argued that because the

indictment failed to sufficiently inform Defendant of the particulars of the

offense relevant to the imposition of the death penalty to enable him to

69

prepare his defense. The defense requested that the Court direct the State to

file a statement of particulars stating whether it intends to rely upon the

aggravating circumstances under §§921.141(5)(a)-(i), Florida Statutes. (R.

67-72). Additionally, the defense requested that before the court determines

which aggravating circumstances are to be included in the instructions, the

State should select the circumstances and show supporting evidence. (R.

163). The State filed a response, noting that the prosecution need not

divulge before trial the specific statutory aggravating factors it intends to

prove at a sentencing hearing, citing State v. Bloom, 497 So.2d 2 (Fla.

1986). (R.209). The State also maintained that Florida law was contrary to

Defendant’s request for a statement of particulars as to aggravating

circumstances. (R. 212). At a hearing prior to trial, the court denied these

motions, citing Bloom. (R. 233; R. 238-239). Neither the State nor the trial

court cited to Steele v. State, 921 So.2d 538 (Fla. 2005), where this Court

ruled that a trial court does not depart from the essential requirement of law

by requiring the state to provide pre-guilt or pre-penalty phase notice of

aggravating factors. Id., at 542-544. It is clear that the trial judge

erroneously believed he was required to deny the defense motion based on

Bloom irrespective of this Court’s subsequent decision in Steele permitting

the filing of a bill of particulars for aggravating circumstances. Defendant

70

was denied a fair trial under Art. I, §§9 and 16, Florida Constitution, and the

5th, 6th, 8th and 14th Amendments, U.S. Constitution.

(VI)


The trial court improperly permitted the State to present testimony

concerning a 1992 robbery during the penalty phase. Prior to the

presentation of the State’s penalty phase evidence, the defense objected to

testimony concerning the 1992 offense. The defense maintained that the

offense was too remote in time, was not relevant and could not even be

considered under the sentencing guidelines as it was more than 15 years old.

(T. 992). The State had previously conceded that the prior violent felony

factor did not apply in this case (R. 210), yet still sought to present evidence

on this factor. The court overruled the defense objection. (T. 993). The

State called Christopher Rieter, Jason Walker and Deputy Louie Bain

Matthews concerning the 1992 offense. (T. 994-997; T. 997-1004; T. 1005-

1009). The judgment introduced into evidence reflected a plea of no contest

to a violation of probation resulting in a six month jail sentence on robbery.

(R. 1462). The evidence related to the 1992 robbery should not have been

allowed and its admission rendered Defendant’s penalty phase unfair under

71

Art. I, §§9 and 16, Florida Constitution, and the 5th, 6th, 8th and 14th

Amendments, U.S. Constitution. The trial occurred in October, 2010. The

robbery prior offense occurred in 1992 and the conviction was entered in

1995. As such, evidence of the prior robbery was 15 years old at the time of

the trial. Defendant submits the prior offense was remote in time and should

not have been considered as evidence of an aggravating circumstance during

the penalty phase. 27 The aggravating factor of previous conviction of a

violent felony (§921.141(5)(b), Florida Statutes) is silent on when or where a

previous conviction must have taken place. See Thompson v. State, 553

So.2d 153, 156 (Fla. 1989). However, the fact that the statute is silent on the

issue does not mean a court may not weigh the remoteness of the offense in

determining whether the offense should be considered as evidence of the

aggravating factor.28

27 In fact, Mr. Walker, the victim of the crime, could not even identify Defendant. (T. 1002). 28 Under §921.141(1), Florida Statutes, a trial court has authority to exclude the presentation of remote-in-time offenses. In the present case, the trial court was apparently satisfied with the sole fact that a conviction was entered. (T. 993).

Also, the remoteness of the offense, in conjunction

with the fact that the prior offense was not life-threatening, supported the

Defendant’s argument that evidence of the offense was not relevant and was

inadmissible. The evidence presented concerning the 1992 robbery does not

show that the offense endangered life. This Court has made clear that a prior

72

felony involving the use or threat of violence to person only attaches to life-

threatening crimes in which the perpetrator comes in direct contact with a

human victim. See Rose v. State, 787 So.2d 786, 800 (Fla. 2001)(citing

Mahn v. State, 714 So.2d 391, 399 (Fla. 1998)). A prior violent felony is

determined by the surrounding facts and circumstances of the prior crime.

Rose, supra, at 800(citing Gore v. State, 706 So.2d 1328, 1333 (Fla. 1997)).

The existence of violence as an inherent element of the offense is not the

test. See Williams v. State, 967 So.2d 735, 762 (Fla. 2007). The facts of the

prior robbery do not establish that the offense was life-threatening.29

29 Mr. Walker testified that the assailant placed him in a headlock, dragged him out the door of the Circle K and struck him twice in the face. He supposedly said he was going to kill him. Walker fought him off by striking him in groin area, at which point the assailant ran across the street. (T. 999-1000). The trial court’s sole ruling on this matter was to state that the 1992 robbery “passes muster” under Mahn, supra. (R. 868).

Moreover, the defense was affirmatively misled due to the State’s earlier

position disavowing this aggravator. (R. 210).

(VII)

THE TRIAL COURT ERRED IN ITS PENALTY PHASE JURY INSTRUCTIONS

The trial court erred in its penalty phase jury instructions and violated

Defendant’s right to a fair penalty phase under Art. I, §§9 and 16, Florida

Constitution, and the 5th, 6th, 8th and 14th Amendments, U.S. Constitution.

73

Denigrating Role of Jury

During the preliminary instructions to the jury at the penalty phase, the trial

judge instructed jurors that the final decision “rests with the judge” and that they

were to render an “advisory sentence.” (R. 991). The court repeatedly told jurors

that it would be rendering an “advisory sentence” (R. 1112-1113; R. 1117; R.

1119; R. 1123-1124); that the final decision was the responsibility of the judge (R.

1112-1113); that the jury would render a “recommendation” (R. 1112-1113; R.

1115; R. 1116; R. 1121; 1122-1124; R. 1125). The foregoing instructions

impermissibly diluted the jury’s sense of responsibility. See Caldwell v.

Mississippi, 472 U.S. 320, 86 L.Ed.2d 231, 105 S.Ct. 2633 (1985). The court

repeatedly told the jury that it would recommend a sentence, advise a sentence,

enter a recommendation for a sentence, or issue an advisory verdict. These

instructions impressed upon the jury a diluted sense of their responsibility for

voting for death. Even the verdicts were entitled “advisory.” (R. 703; R. 1467). In

this respect, Florida’s death penalty statute and instructions are unconstitutional to

the extent that the jury’s verdict is merely advisory and the jury is so instructed.30

The trial court instructed the jurors that their verdict need not be unanimous.

(R. 1122-1123). The foregoing instruction improperly lessened the need for jurors

No need for unanimity

30 The defense raised this issue below. (R. 91-92; R. 95-97; R. 112-113; R. 232).

74

to find the aggravating circumstances by unanimous vote. There is no guidance for

the jury concerning whether they must find the aggravating circumstances by

unanimous vote. Jurors could reasonably construe that the law as authorizing a

death verdict where not even a majority of them agree as to any one aggravating

circumstance. Florida’s death penalty statute and jury instructions are

unconstitutional to the extent that a jury is instructed and authorized to vote for the

death penalty where they are not required to find any aggravating circumstances by

a unanimous vote.31

Defendant is entitled to resentencing based upon the prosecutor's improper

penalty phase arguments, which rendered Defendant’s penalty phase unfair under

Mercy

The trial court improperly excluded the concept of mercy when it instructed

the jury that they were not to feel sorry for anyone (R. 1115) or be influenced by

feelings of sympathy. (R. 1116). The foregoing instructions had the effect of

dismissing, or at best, diluting the right of jurors to consider mercy in their

deliberations.

(VIII)

DEFENDANT IS ENTITLED TO RESENTENCING BASED UPON THE PROSECUTOR'S IMPROPER PENALTY PHASE ARGUMENTS

31 The defense raised this issue below. (R. 61-63; R. 81-82; R. 90-95; R. 110-112; R. 138-139; R. 235). See also the prosecutor’s voir dire questions. (T. 66).

75

Art. I, §§9 and 16, Florida Constitution, and the 5th, 6th, 8th and 14th Amendments,

U.S. Constitution. This Court in Bertolotti v. State, 476 So.2d 130, 134 (Fla.

1985), described the proper parameters of a prosecutor’s closing argument:

“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Conversely, it must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” The prosecutor violated the proper parameters of closing argument in this

case. Initially, the assistant state attorney repeatedly made reference to the

children in the Billings residence, commented on the children’s disabilities and

made comments not supported in the record.32

MR. EDDINS: “Mr. Billings has got shot two times in the leg, he’s obviously in severe pain, he knows the children are in the house

The following are several remarks

made the prosecutor on this point:

MR. EDDINS:"This wasn’t just any robbery, the man was there, his wife was there and nine children were scattered throughout the house… So that is an aggravating factor in terms of considering just how bad this robbery is.” (T. 1093)(emphasis supplied). MR. EDDINS: “Mr. Billings and his wife and family were at home Thursday afternoon, had gotten dark, but they were in the casual mode, kids were scattered around the house and as he’s relaxing in his home, in his castle, where he had a right to be safe and secure…”(T. 1096-1097)(emphasis supplied).

32 Indeed, during the testimony of Ashley Markham, the very first witness called by the State, the court sustained a defense objection to the prosecutor’s question concerning the children’s disabilities. (T. 280-281).

76

running around, were running around all over the house….” (T. 1098)(emphasis supplied). MR. EDDINS: “Let’s talk about Mrs. Billings… She’s in the – and you have seen this in the video, she’s in the living room and she’s in the video when this man has her husband by the throat with a gun to his head and has shot him in the leg two times and has asked him where is the money, where it the money and then he says to her, `Where is the bedroom?’ Now, while this is happening their children are all around. There are nine children in that house with special needs. She knew that.” (T. 1098-1099) (emphasis supplied) MR. EDDINS: “… The evidence shows that Melanie Billings was terrorized in her home for several minutes before she was killed. It demonstrates, the evidence clearly shows, that in that home with her were nine of her children that had disabilities. At some point, at some point, Melanie Billings fearfully wondered, `What will happen to my children, my precious children.’” (T. 1100-1101)(emphasis supplied).

The prosecutor improperly made reference to the children in the context of

explaining the aggravating nature of the charged crimes. In effect, the prosecutor

was equating the fact that there were nine children with disabilities as a non-

statutory aggravating circumstance.33 The assistant state attorney alluded to

matters that were not relevant to the imposition of the death penalty. See Riley v.

State, 366 So.2d 19, 21 (Fla. 1978)(no relevance to effect a defendant’s actions had

on people present and watching but not killed). Also, the prosecutor referred to

matters not supported in the record.34

33 Of course, these comments were made before defense counsel ever addressed the jury and could not be considered fair rebuttal.

The record is silent as to the location of all

34 Previously, the prosecutor had attempted to make the children an issue during the penalty phase when he challenged Defendant’s mother’s claim that Defendant

77

the children or the nature of their disabilities. There was no testimony about the

children being “scattered” about or “running” around, or being endangered by the

assailants’ conduct.35

loved children by asking, “Wasn’t a great deal of that shown on July 9th 2009 was it?” (T. 1052). 35 These comments amounted to an argument that Defendant’s actions created a great risk of death to many people (§921.141(5)(c), Florida Statutes), an aggravating circumstance not supported in the record and on which the jury was not instructed. Likewise, the comments improperly used victim impact evidence as an aggravating factor. The State repeated this argument in its sentencing memorandum. (R. 821-822).

It is improper for a prosecutor to make misstatements of fact

in closing argument. See Davis v. Zant, 36 F.3d 1538, 1548 n.15 (11th Cir.

1994)(noting prosecutors’ special duty of integrity in their arguments). A

prosecutor may not argue facts which are not supported in the record. See, e.g.,

Huff v. State, 437 So.2d 1087 (Fla. 1983)(state attorney prohibited from

commenting on matters unsupported by the evidence produced at trial and erred

when he argued that defendant forged agreement); Garcia v. State, 622 So.2d 1325

(Fla. 1993)(prosecution may not subvert truth-seeking function of trial by

obtaining conviction or sentence based on deliberate obfuscation of facts by

claiming that defendant created non-existent person); Tucker v. Kemp, 762 F.2d

1496, 1507 (11th Cir. 1985)(improper to allege oral sodomy during closing

argument where not supported in the record). See also Fenster v. State, 944 So.2d

477 (Fla. 4th DCA 2006)(prosecutor improperly argued facts unsupported in the

record). Moreover, the prosecutor’s reference to what Melanie Billings was

78

feeling and that she “fearfully wondered, `What will happen to my children, my

precious children?’” (T. 1101), was particularly egregious because the prosecutor

created evidence which had not been not presented and plainly appealed to the

passions of the jury and asking jurors to place themselves in the victim’s position.

This was clearly improper. See, e.g., Garron v. State, 528 So.2d 353, 358-359 n.6

(Fla. 1988)(improper to ask jurors imagine pain of the victim as she was dying);

Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985)(improper to ask jurors to

imagine victim’s final pain, terror and defenselessness); Urbin v. State, 714 So.2d

411, 421 (Fla. 1998)(improper to put imaginary words in the victim’s mouth).36

MR. EDDINS:"What the Defense has proven this morning is that this Defendant had every opportunity. He had a good, loving mother that provided him with love, support, direction, positive direction and he had a loving wife that put up with his addiction to pain killers and his inability to make a living. He was taught to respect others. He was taught the principles of Taekwondo his whole life. He was taught to have integrity. This wasn’t some poor person that had no conception of right and wrong. This was a man that knew beyond every shadow of a doubt how to respect people. He observed that from his mother. He was taught that. He taught children to have respect others, to have integrity. So I submit to you have that is an

Secondly, the prosecutor also made improper comments equating mitigating

circumstances with an aggravating circumstance. The following occurred:

36 The prosecutor returned to the “children” theme in his sentencing memorandum, urging the court to impose death sentences, in part, because Byrd and Melanie Billings would have been “acutely aware of the children inside the home and would have been terrified about what fate awaited those defenseless and handicapped children” (R. 820), and because Melanie Billings would have had “incredible anxiety and fear that a mother would feel for her defenseless children that were in the house.” (R. 822).

79

aggravating circumstance, a man that had everything he needed to be successful in life and made a conscious--” MR. ETHERIDGE: “Judge, I apologize, but I have to object to that. He’s characterized this as an aggravating factor. It is not. It is a misstatement of the law. THE COURT: I’m going to overrule the objection. The jury is mindful of my earlier instruction to you that what the attorneys say during course of these arguments is not evidence in the case nor is it your instruction on the law. The instruction on the law that will follow contains what are the aggravating circumstances that the law permits you to consider. You may continue, Mr. Eddins. MR. EDDINS: Let me be real clear. The evidence this morning that shows that he had opportunity to live a respectful, law-abiding life is not mitigating circumstances. I submit the evidence does not demonstrate that that is a mitigating circumstance.” (T. 1087-1089)(emphasis supplied). The prosecutor improperly argued a non-statutory aggravating circumstance.

He plainly told the jurors that Defendant’s life amounted to “an aggravating

circumstance.” The comment was objected to. The court’s overruled the objection

and its ensuing explanation to the jury was clearly insufficient to remove the

prejudicial taint of the prosecutor’s comments. A prosecutor may not attach

aggravating labels to factors that actually should militate in favor of a lesser

penalty. See Walker v. State, 707 So.2d 300, 314 (Fla. 1997) (citing Zant v.

Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)).

Thirdly, the prosecutor made improper comments arguing that a “double

murder” is an aggravating circumstance. The prosecutor maintained that the

aggravating circumstance that the fact that Defendant had previously been

80

convicted of a capital offense was the same as a “double murder.” He repeated this

explanation throughout his closing argument. (T.1086; T. 1091; T. 1095; T. 1100).

He argued that “because two people were killed, that is an aggravating factor and

you will need to consider…” (T. 1083). While another capital offense is arguably

relevant as an aggravating circumstance under §921.141(5)(b)), Florida Statutes,

there is no such thing as a “double murder” aggravating circumstance under

§921.141(5), Florida Statutes.

Fourthly, the prosecutor made improper comments arguing that Defendant

shot Mr. Billings “like a dog” in sight of Mrs. Billings. The prosecutor argued:

MR. EDDINS: “… He let her stand there and watch him shoot her husband down like a dog.” (T. 1100)(emphasis supplied).

The prosecutor engaged in a vituperative and pejorative characterization of

Defendant by arguing that he killed Mr. Billings “like a dog.” Such

characterizations are improper. See Gore v. State, 719 So.2d 1197, 1201 (Fla.

1998). A closing argument must not be used to inflame the minds and passions of

the jurors so that their verdict reflects an emotional response to the crime or the

defendant. See King v. State, 623 So.2d 486, 488 (Fla. 1993)(quoting Bertolotti v.

State, 476 So.2d 130, 134 (Fla. 1985)).

Fifthly, the prosecutor improperly denigrated the role of the jury during

closing argument. The prosecutor argued to the jury that their verdict would be a

recommendation and their verdict would be advisory. (T. 1082; T. 1083; T. 1084;

81

T. 1085; T. 1101). He told jurors: “I have the opportunity to argue the capital

portion of this case and that’s whether your recommendation to the Court will be

life or death.” (T. 1082). He stated: “In other words, because two people were

killed, that is an aggravating factor and you will need to consider that and again,

I’ll come back an talk to you a little bit more in detail about that, but in deciding

whether or not to recommend death for Byrd Billings…” (T. 1083). The

prosecutor informed jurors that “the judge will tell you that your verdict is an

advisory verdict, but he must give it great weight and deference. He will also tell

you that your advisory sentence should be based upon the evidence…” (T. 1084).

He reiterated that he “wanted to make sure that you were clear that all the evidence

in the underlying trial is to be considered by you in reaching this recommendation.

(T. 1084). The assistant state attorney argued to jurors that: “If you fail to follow

the law, your recommendation will be a miscarriage of justice.” (T. 1084). The

prosecutor quoted the instructions: “Now, your recommendation must be decided

only upon the evidence that you have heard from the testimony of the witnesses,

have seen in the form of the exhibits in evidence and these instructions. Your

recommendation must not be based upon the fact that you feel sorry for anyone or

because you are angry at anyone.” (T. 1085). He concluded his remarks by saying:

“I suggest to you that in this case each individual decision should be that the

aggravators outweigh the mitigators and that the proper and just recommendation

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is a recommendation for death.” (T. 1101). These comments clearly denigrated the

role of the jury. See Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed.2d 231, 105

S.Ct. 2633 (1985).

The cumulative effect of the prosecutor’s comments during closing

argument amounted to fundamental error. See Card v. State, 803 So.2d 613, 622

(Fla. 2001)(court to consider the totality of errors in closing argument to determine

whether cumulative effect deprived defendant of a fair trial). See also Cochran v.

State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998)(improprieties in the prosecutor’s

closing argument reached critical mass of fundamental error that reached down

into validity of trial itself)(citing Kilgore v. State, 688 So.2d 895, 898 (Fla.

1996)).37 The defense submits that the evidence at trial was not so overwhelming

such as to render harmless the prejudicial impact of the prosecutorial misconduct.

The two co-perpetrators (Thornton and Florence) struck potentially lenient deals

with the prosecution to avoid the death penalty.38

37 Due to the intense animosity generated in the community by this case (R. 280-286; R. 289-291), the cumulative effect of the prosecutor’s comments during closing argument were particularly egregious. 38 Thornton intended to ask for a sentence well below life imprisonment due to his cooperation. (T. 546). Florence hoped for a youthful offender sentence. (T. 611).

They were related to each other,

in that Florence was the father of Thornton’s sister’s child. (T. 533). These

individuals did not see the actual shooting death of Mr. and Mrs. Billings in the

bedroom, although Thornton claimed he was present. (T. 509; T. 511; T. 589).

83

These witnesses contradicted each other on key points, such as who was present in

the bedroom when the fatal shots were fired. (Thornton stated Stallworth was in

the bedroom (T. 508; T. 510); Florence said Stallworth was in the living room. (T.

592); Thornton claimed Stallworth took the safe (T. 512); Florence said he took the

safe (T. 591)). Both Thornton and Florence were admitted liars and murderers.

The surveillance video was not clear.39

39 This perhaps explains the jury’s request for a magnifying glass during deliberations. (T. 974).

The phone records did not show the

substance of any conversations. The fingerprint evidence linked Defendant to the

door panel on his own van. There was ambiguity as to whether Defendant fired the

gun used to kill the Billings couple because Defendant was left-handed and the

bullet trajectories were almost all right to left. Numerous items seized from the

Billings residence were never linked to Defendant, either through DNA or

fingerprints. Although Thornton and Florence claimed Defendant produced the

guns used in the crime, the firearms, as well as the stolen safe, were actually

connected to others (Wiggins couple). In fact, the weapon linked to the shootings

was found in a car owned by Hugh Wiggins. The defense presented a viable alibi

when testimony established that Defendant was with his family on July 4th

watching fireworks when the State’s cooperating witnesses claimed he was with

them on their first approach to the Billings residence. Defendant did not admit to

any homicide when interrogated. The State did not introduce either an audio-tape

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or a video tape of the post-arrest statement. The foregoing does not establish

overwhelming evidence of guilt, such as to render the prosecutor’s improper

comments harmless.

(IX)

THE TRIAL COURT'S SENTENCE OF DEATH SHOULD BE VACATED SINCE DEATH WAS A DISPROPORTIONATE SENTENCE IN THIS CASE

It is necessary in capital cases that this Court engage in a thoughtful,

deliberate proportionality review to consider the totality of circumstances in a case,

and to compare it with other capital cases. Tillman v. State, 591 So.2d 167, 169

(Fla. 1991). Any review of the proportionality of the death penalty in a particular

case must begin with the premise that death is a uniquely irrevocable penalty,

requiring a more intensive level of judicial scrutiny. Id. Following the non-

unanimous, 10 to 2 vote jury verdicts (R. 703; R. 1467), the trial court entered an

order finding four (4) aggravating circumstances. In particular, the court found

that Defendant was previously convicted of another capital felony or a felony

involving the use of violence; 40

40 The defense had been misled on the prior violent offense factor by the State’s representation that this aggravating factor did not apply in this case. (R. 210).

that Defendant was engaged in the commission of

a robbery; that the capital felony was committed for pecuniary gain; and that the

capital felony was especially heinous, atrocious or cruel. (R. 868-869). A review

of the order imposing death shows that the court, in effect, found at most three (3)

85

aggravating circumstances.41

41 The court included references to both the capital felony and the prior robbery under §1 of the Order (R. 868). The State included all convictions under one aggravating circumstance (R. 815-817), although it had previously represented that this factor did not apply in this case. (R. 210).

The court rejected the statutory mitigating

circumstances. Rather, the court found four (4) non-statutory mitigating

circumstances. (R. 870-871). The record shows that Defendant was loved by

family and acquaintances and that his execution would have a negative impact on

Defendant's family. Defendant had self-defense talents, which he shared with the

community. Defendant exhibited appropriate courtroom behavior. Moreover,

Defendant's mandatory incarceration for life would keep him out of society. The

two of the three (3) aggravating factors found by the trial judge involved

Defendant’s prior convictions. (§§1-3 of the Order)(R. 868-869). The court’s

findings of EHAC, challenged by the defense here, must nevertheless be viewed

along with Defendant’s mitigating circumstances listed in Defendant’s Spencer

memorandum, namely (1) that all the co-defendants avoided the death penalty in

the case even though most, if not all, of the co-defendants were actively involved

in the home invasion robbery resulting in the deaths of Mr. and Mrs. Billings, and,

two of the co-defendants (Sumner and Wiggins) appeared to be the masterminds

and supplied the other co-defendants with weapons; (2) Defendant was a

businessman, who taught martial arts for many years; (3) Defendant was involved

in community affairs on behalf of women and children, even receiving a service to

86

mankind award, and teaching children and women self-defense tactics; (4)

Defendant was a devoted family man; (5) Defendant received gold medals in the

Junior Olympics; (6) Defendant has a wife and six children and his execution

would have a significant negative impact on his family; (7) Defendant came from a

broken home; (8) Defendant became addicted to prescription drugs due to a back

injury; (9) Defendant was manic depressive or had ADHD and received counseling

when he was a child. (R. 860-862). Under these circumstances, imposition of the

death penalty would be disproportionate.

(X)

THE TRIAL COURT'S SENTENCING ORDER HAS ERRORS THAT, BOTH INDIVIDUALLY AND CUMULATIVELY, REQUIRE REVERSAL OF DEFENDANT'S DEATH SENTENCE AND A REMAND FOR RESENTENCING BY THE TRIAL COURT

Capital cases mandate an even “greater degree of reliability” than other

cases do. Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 106 L.Ed.2d 1

(1989); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d

944 (1976). The penalty of death is qualitatively different from any other penalty

and “there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment.” Woodson, 428 U.S. at

305, 96 S.Ct. 2978. In the present case, the high standard set by the United States

Supreme Court has not been met. The trial court committed several errors in its

87

sentencing order which, individually and cumulatively, require reversal of

Defendant's death sentence and a remand for resentencing.

The court gave great weight to the fact that Defendant was previously

convicted of another capital felony or a felony involving the use of threat of

violence to the person. In this respect, the court noted that Defendant had been

convicted in the deaths of both Mr. and Mrs. Billings. The court also gave some

weight to Defendant’s prior conviction for robbery, ruling that the offense was not

too remote and passed muster under Mahn v. State, 714 So.2d 391 (Fla. 1998). (R.

868). The court found that the capital felony in this case was engaged in the

commission of robbery and gave this factor great weight. Although the court

found that the felony was committed for financial gain, this circumstance was not

accorded any weight because of the great weight given the preceding factor. (R.

868-869).

Defendant submits that the trial court was unclear in its decision under

§921.141(5)(b), Florida Statutes. The court apparently gave great weight to the

fact that two murders had been committed and some weight to Defendant’s 1992

robbery conviction. It appears that the court gave conflicting weights as to this

merged aggravating circumstance. Additionally, the State had previously

represented that the prior violent factor did not apply. (R. 210). Also, this

contemporaneous conviction aggravator operates as an impermissible automatic

88

aggravator because it is duplicative of felony murder. In any event, the court

should not have given this aggravator great weight because the prosecution already

relied upon the robbery under the felony murder theory. Moreover, without a

special verdict form, there is no way of knowing which, or, if any, of the jurors

convicted on a premeditated or felony murder theory.

As to the EHAC factor, it must first be noted that the court did not assign

any particular weight to this factor. (R. 869). Rather, the court recounted the facts

and circumstances of the case. The court repeated the fact that there were two

capital felonies. The court appears to have improperly re-weighed the aggravating

factor of a prior capital conviction. Next, the court mentioned that Mr. and Mrs.

Billings were killed in consecutive, “execution” fashion. Defendant submits that

execution-style murders do not generally qualify as EHAC. See Hartley v. State,

686 So.2d 1316, 1323 (Fla. 1996); Ferrell v. State, 686 So.2d 1324, 1330 (Fla.

1996). Rather, such murders generally fall under the cold, calculated and

premeditated (CCP) aggravating factor. See, e.g., Pardo v. State, 563 So.2d 77

(Fla. 1990); Maharaj v. State, 597 So.2d 786 (Fla. 1992). Given that CCP was

neither requested by the State, nor found by the court, the court’s reliance on

“execution-style” murders was improper. Moreover, the court noted that the

victims’ children were present and it was logical to assume that the victims were

terrified for themselves and their minor children and that the victims rightfully

89

assumed that their minor children would not be left behind as witnesses. The

defense submits that the court improperly referred to matters not established in the

record. Specifically, there was no testimony that the children witnessed the

shootings in the bedroom or that the victims knew that the children were watching

or even overhearing the shootings in the bedroom.42

The court referred to the shooting of Mr. Billings, noting that he had been

shot in each leg, and then taken to the bedroom where he was shot in the head.

The court found that this last shot may not have been a mortal wound. Thereafter,

Mr. Billings was shot twice in the cranium.

43

42 The court’s conclusion that the children were witnesses and were potentially targeted for elimination was not supported in the record and was premised on the unfound aggravating circumstance of avoiding or preventing an arrest. 43 Dr. Maynard, the medical examiner, testified that Mr. Billings had two gunshot injuries, one on each leg. (T. 788). Dr. Maynard described the shot to Mr. Billings face, by saying that the bullet entered the left cheek and exited the right side of the neck. This wound could have been fatal. (T. 790-791). Dr. Maynard testified that this shot would have probably rendered Mr. Billings unconscious. (T. 800). Dr. Maynard described the next two wounds as gunshots to the back of the head. (T. 791-792). These shots were clearly fatal. (T. 794).

The court concluded that Mrs.

Billings witnessed these shootings and “surely knew she would be Defendant’s

next victim.” (R. 869). As to Mrs. Billings, the court found that she was shot at

close range in the head and then in the chest after she fell on the floor of the

bedroom. The court conceded that her death was “more instantaneous” than that of

90

her husband. (T. 869).44

The defense submits that the facts and circumstances of this case do not

justify the finding of EHAC. The medical examiner’s testimony established that

the shot to Mr. Billings cheek likely rendered him unconscious and was probably

fatal. As such, the testimony presented at trial established that Mr. Billings

probably lost consciousness and may have died instantaneously. The court’s

characterization that the wound was “more serious” and may not have been fatal

(R. 869), understated the effect of this shot. Additionally, the court’s finding that

Mrs. Billings’s death was “more instantaneous” (R. 869) understated the medical

examiner’s testimony that the shot to Mrs. Billings’s head rendered her

unconscious and was fatal. It is apparent that the shootings of Mr. and Mrs.

Billings in the bedroom rendered them unconscious and probably resulted in their

instantaneous deaths which does not support the EHAC factor. See Rimmer v.

State, 825 So.2d 304, 327-329 (Fla. 2002)(EHAC factor rejected in execution-style

shooting deaths where defendant told two victims to lie down and bound their

The court concluded that the combination of the “ghastly

acts” established that the capital felonies were especially heinous, atrocious or

cruel.

44 Dr. Maynard testified that Mrs. Billings had a gunshot wound to the head. The bullet was recovered at autopsy. (T. 795). She suffered an additional wound to the head and two wounds to the chest. (T. 795-796). Dr. Maynard stated that the first shot would have rendered Mrs. Billings unconscious. (T. 797; T. 798-799). All the shots were fatal. (T. 797).

91

hands and evidence showed victims died instantly or lost consciousness).45

Furthermore, the events as described the Thornton and Florence indicated a very

quick sequence of events. The situation in the Billings residence unfolded rapidly

with very little delay between the initial entry and the eventual shootings in the

bedroom. See Rimmer, supra, at 329 and 329 n.24 (EHAC rejected even as to

second shooting victim where shooting occurred relatively quickly)(citing

numerous cases where extended period of time supported EHAC); Clark v. State,

609 So.2d 513, 514-515 (Fla. 1992)(EHAC inappropriate where victim shot twice

and fatal shot came almost immediately after initial shot to chest); Stein v. State,

632 So.2d 1361, 1367 (Fla. 1994)(EHAC finding erroneous where shooting deaths

were nearly instantaneous and no evidence of torturing of victims); Cook v. State,

542 So.2d 964, 970 (Fla. 1989)(EHAC not supported where shooting death was

quick); Rivera v. State, 545 So.2d 864, 866 (Fla. 1989)(EHAC not supported

where police officer quickly shot twice in the head after receiving shot in the arm);

Craig v. State, 510 So.2d 857, 868 (Fla. 1987)(EHAC not proper where victims

shot quickly).46

45 Compare Frances v. State, 970 So.2d 806 (Fla. 2007)(EHAC applies to murders by strangulation of a conscious victim because killing by this method is inherently torturous). Id. At 815.

Moreover, the fact that the victim was shot numerous times does

46 The State conceded that the victims were killed “probably within seconds of each other” (R. 815), that the evidence suggests that Byrd and Melanie Billings “died an instantaneous death as a result of gun shot wounds” (R. 819), and that the victims’ deaths “would have occurred almost instantaneously from the gunshots...”

92

not alone show intent to torture. See Shere v. State, 579 So.2d 86, 95-96 (Fla.

1991)(EHAC not supported even though victim shot ten times); Hamilton v. State,

678 So.2d 1228, 1231-1232 (Fla. 1996)(EHAC not supported where the defendant

had to re-load while shooting two victims); McKinney v. State, 579 So.2d 80, 84

(Fla. 1991)(EHAC not supported where victim shot several times). Additionally,

the fact that Mrs. Billings saw the shooting death of Mr. Billings does not alone

establish that Mrs. Billings’s death was EHAC. See, e.g., Maharaj v. State, 597

So.2d 786, 791 (Fla. 1992)(EHAC not supported where execution-style killing of

victim who had witnessed killing of his father). There was no competent,

substantial evidence that Defendant intended to torture the victim or to show a long

drawn-out criminal episode. The EHAC finding was erroneous and not harmless

as the court did not state that any one of the aggravators found was sufficient to

outweigh the mitigators. See Smith v. State, 28 So.3d 838, 868 (Fla. 2009).

Also, the trial judge failed to assess all of Defendant's mitigating

circumstances and failed to give those mitigating circumstances found sufficient

weight. The mitigating circumstances provided by the defense, and supported in

the record, should have been accorded great weight by the trial court. Instead, the

court gave no weight, or little or some weight to all the mitigating circumstances

(R. 871). The court found only three mitigating circumstances. (R. 872).

(R. 821). The State also conceded that “the episode only took minutes…” (R. 820).

93

Rejection of mitigating factor cannot be sustained unless supported by competent

substantial evidence refuting existence of factor. Maxwell v. State, 603 So.2d 490

(1992). See also Knowles v. State, 632 So.2d 62 (1993). An order must evaluate

each mitigating circumstance offered, decide if it has been established, and assign

it a proper weight. See Orme v. State, 25 So.3d 536, 547-548 (Fla. 2009).

In the present case, the court did not carefully evaluate each mitigating

circumstance. First, the court found no statutory mitigating factors were proven.

In particular, the court ruled that Defendant had a significant history of prior

criminal activity. (R. 870, ¶1). It is unclear whether the court relied on

Defendant’s contemporaneous convictions to make this finding, or whether the

court was premised its decision on the 1992 robbery offense, the applicability of

which had been challenged by the defense. The 1992 robbery alone was not

sufficient to deny Defendant’s mitigating circumstance.47

47 Compare Washington v. State, 362 So.2d 658, 666 (Fla. 1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979)(trial court’s failure to find lack of significant history of prior criminal history upheld where the defendant had carried on a course of burglaries and had stolen property for a significant period of time).

If the court was relying

on the contemporaneous convictions, this was error. See Cook v. State, 542 So.2d

964, 971 (Fla. 1989)(crimes committed contemporaneous to the subject murder

may not be used to negate a finding of no significant history of prior criminal

activity); Bello v. State, 547 So.2d 914, 917-918 (Fla. 1989)(defendant’s

contemporaneous conviction could not negate mitigating factor that defendant had

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no significant prior criminal history). Second, the court rejected the statutory

mitigating circumstance of Defendant’s age. The court found that Defendant was

35 when the offense occurred and “is not a factor.” (R. 870, ¶7). However, there is

no per se rule which pinpoints a particular age as a factor in mitigation. See, e.g.,

Ferrell v. State, 29 So.3d 959, 987 (Fla. 2010)(disapproving prosecutor’s argument

that the age mitigator only applies to someone younger than the defendant).

The court did not carefully consider or evaluate all non-statutory mitigating

circumstances.48

48 Mitigating evidence must be considered and weighed when it is contained anywhere in the record to the extent it is uncontroverted and believable. See Spann v. State, 857 So.2d 845, 857 (Fla. 2003).

The court gave no weight to the fact that all the co-defendants in

this case received or will receive sentences less than death. (R. 871, ¶8a). The fact

that Defendant may have more culpable than the co-defendants does not

necessarily mean that this fact should not be considered a mitigating circumstance

and accorded no weight. See, e.g., Heath v. State, 648 So.2d 660, 665-666 (Fla.

1995)(upheld trial court’s finding that co-defendant’s life sentence was a non-

statutory mitigating circumstance accorded substantial weight but insufficient to

overcome aggravating circumstances); Hertz v. State, 803 So.2d 629, 653 (Fla.

2001)(trial court accorded co-defendant’s life sentence substantial weight).

Additionally, the court did not consider the mitigating circumstances that

Defendant exhibited proper courtroom behavior, that Defendant's mandatory

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incarceration for life would keep him safely from society, that Defendant

attempted suicide, and that he was a member of the National Guard, and that he

began to abuse alcohol. The court perfunctorily assessed the list of mitigating

circumstances provided by the defense (R. 860-862). For instance, the court

improperly merged the mitigating circumstance that Defendant was a businessman,

who served the community, and the fact that Defendant is a devoted husband and

father, assigning the latter little weight. (R. 871, ¶¶8b and 8c). The court

improperly grouped a series of disjointed and unrelated mitigating circumstances

into one overall mitigating factor, assigning the “combination” of factors little

weight. (R. 871, ¶8d). The court also concluded that the combined factor was

entitled to little weight because the record showed that Defendant had a normal

upbringing, even though some of the factors (depression, addiction to pain-killers)

related to issues arising when Defendant was an adult. Clearly, the trial court did

not properly assess the mitigating circumstances and failed to accord such factors

sufficient weight, especially as the mitigating circumstances were uncontroverted.

See Nibert v. State, 574 So.2d 1059, 1062 (Fla. 1990) (uncontroverted evidence of

physical and psychological abuse in his youth and trial court’s analysis inapposite).

The trial court simply did not find the appropriate number of mitigating

circumstances and did not give sufficient weight to the unrebutted mitigating

circumstances, even though various witnesses testified in support of mitigation.

96

Rather, the court weighed the three aggravating circumstances against the “three

insignificant and insufficient” mitigating circumstances, and imposed the death

sentences. Certainly, Defendant’s case is not one of the “most aggravated and least

mitigated cases,” warranting the death penalty. The death sentence here violated

Defendant’s right to a fair trial under Art. I, §§9 and 16, Florida Constitution, and

the 5th, 6th, 8th and 14th Amendments, U.S. Constitution.

(XI)


Defendant maintains that the Florida’s capital sentencing scheme is

unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d

556 (2002). In particular, the death penalty scheme is unconstitutional because the

law allows a non-unanimous jury to make sentencing recommendations, and not

binding decisions. Furthermore, the law permits the judge, not the jury, to make

the findings necessary to impose the death sentence. Additionally, the indictment

improperly failed to allege any of the aggravating circumstances; the jury is not

required to render a specific verdict stating forth its findings as to aggravating

circumstances; no meaningful appellate review is possible without these specific

findings by a jury; the jury is not instructed on specific non-statutory mitigating

circumstances; the jury is not given proper guidance on how the jury is to go about

determining the existence of the sentencing factors or how to weigh them; the

97

felony-murder aggravating circumstance amounts to an “automatic” aggravating

factor creating a presumption for a death sentence; the jury is permitted to consider

victim impact evidence, which is not relevant to any aggravating circumstance; and

the prior violent felony aggravating circumstance is improperly vague and

overbroad, as it does not require the “prior” conviction to be used to be final and

allows contemporaneous convictions to be used. Lastly, Defendant maintains that

the EHAC factor is vague and overbroad because the jury is not properly instructed

on the precise meaning and application of EHAC. Defendant recognizes that this

Court has rejected constitutional challenges to Florida’s capital punishment statute.

See, e.g., Miller v. State, 42 So.3d 204 (Fla. 2010). Nevertheless, Defendant

maintains that Florida’s capital punishment statute violates the United States

Supreme Court decision in Ring v. Arizona, supra. The defense raised these issues

below and the court ruled against Defendant. (R. 55-206; R. 230-245; R. 273-274).

Recently, Judge Jose E. Martinez of the United States District Court for the

Southern District of Florida entered an order in Evans v. McNeil, Case No. 08-

14402-CIV-MARTINEZ (S.D. Fla., June 20, 2011), finding that Florida’s death

penalty statute was unconstitutional as a matter of federal constitutional law in Mr.

Evans’s case. (Docket Entry 21). In Evans the court reviewed the statute in light of

Ring, supra, and found, inter alia, that because the jury may not have reached a

majority finding as to any one aggravating factor, the Florida sentencing statute

98

leaves open the very real possibility that in substance the judge still makes the

factual findings necessary for the imposition of the death penalty as opposed to the

jury as required by Ring. Also, Florida’s death scheme is unconstitutional under

Ring because the jury’s decision is simply a sentencing recommendation made

without clear factual findings, and leaves only the judge’s findings available for

meaningful appellate review; an increase in a defendant’s authorized punishment is

contingent on a finding of fact and such findings must be made a jury beyond a

reasonable doubt; a trial judge is unaware of the aggravating factor or factors found

by a jury and, thus, he or she may find an aggravating factor not found by a jury in

its death sentence; and a judge may reject a jury’s life recommendation altogether,

thus rendering a jury’s recommendation meaningless as the judge may find the

jury’s decision unreasonable. The Evans decision supports Defendant’s claim that

Florida’s death penalty statute is unconstitutional as applied in this case. This

Court has not had the opportunity to rule on the constitutionality of Florida’s death

penalty scheme after the Evans.49

49 This Court has stated that a Ring claim may be rejected where one of the aggravating factors is a prior conviction. Former Chief Justice Anstead in Nelson v. State, 850 So.2d 514 (Fla. 2003), however, pointed out that even if one of the aggravating factors is “exempt” from Ring, the remaining aggravating factors that the judge finds alone were given great weight in imposing the death penalty, and such findings and reliance thereon would appear to violate the mandate of Ring that a death sentence may not be based upon findings made by the trial judge alone. Id., at 534 (Anstead, C.J., concurring in part and dissenting in part). Justice Anstead’s reasoning should be adopted and followed by this Court.

99

(XII)

DEFENDANT’S SENTENCE OF DEATH MUST BE VACATED DUE TO THE CUMULATIVE EFFECT OF THE PENALTY PHASE ERRORS Defendant’s sentence of death must be vacated due to the cumulative effect

of the penalty phase errors. The cumulative effect of these errors deprived

Defendant of his right to a fair trial under Art. I, §§9 and 16, Florida Constitution,

and the 5th, 6th, 8th and 14th Amendments, U.S. Constitution.

CONCLUSION

Leonard Patrick Gonzalez respectfully requests that this Honorable Court

reverse his convictions and corresponding sentences, or alternatively, requests that

this Court vacate his death sentence and remand for resentencing.

Respectfully submitted,

J. RAFAEL RODRÍGUEZ Specially Appointed Public Defender for Leonard Patrick Gonzalez LAW OFFICES OF

J. RAFAEL RODRIGUEZ 6367 Bird Road Miami, FL 33155 (305) 667-4445 (305) 667-4118 (FAX) By: s/ J. Rafael Rodríguez J. RAFAEL RODRÍGUEZ FLA. BAR NO. 302007

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

mailed to Meredith Charbula, Esq., Department of Legal Affairs (Capital Appeals),

PL-01, The Capitol, Tallahassee, FL 32399-1050, on this 5th day of December,

2011.

s/ J. Rafael Rodríguez J. RAFAEL RODRÍGUEZ

CERTIFICATE OF COMPLIANCE

Appellant states that the size and style of type used in his initial brief is 14

Times New Roman.

s/ J. Rafael Rodríguez J. RAFAEL RODRÍGUEZ

Documents

IN THE SUPREME COURT OF FLORIDA...Aja v. State, 658 So.2d 1168 (Fla. 5th DCA 1995) ..66 Bello v. State , 547 So.2d 914 (Fla. 1989) ..93 Bertolotti v. State, 476 So.2d 130 (Fla. 1985)