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IN THE CIRCUIT COURT, FIFTH.
JUDICIAL CIRCUIT, IN AND FOR
HERNANDO COUNTY, FLORIDA
CASE NO.: 2010-CF-1105
STATE OF FLORIDA,
vs.
BYRON KEITH BURCH,
Defendant.
________________________/
EXCERPT OF JURY TRIAL - PENALTY PHASE
OPENING STATEMENT BY MR. LENAMON
BEFORE: THE HONORABLE DANIEL MERRITT, JR.
DATE: MONDAY, JULY 20, 2015
PLACE: HERNANDO COUNTY COURTHOUSE
20 NORTH MAIN STREET
BROOKSVILLE, FLORIDA 34601
STENOGRAPHICALLY
REPORTED BY: SHANNON MASSINGILL, RPR, FPR
REGISTERED PROFESSIONAL REPORTER
FLORIDA PROFESSIONAL REPORTER
________________________________________________________
JOY HAYES COURT REPORTING
OFFICIAL COURT REPORTERS
407 COURTHOUSE SQUARE
INVERNESS, FLORIDA 34450
BUS:(352)726-4451
FAX:(352)726-9411
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A P P E A R A N C E S:
PETER MAGRINO, ESQUIRE
RICHARD BUXMAN, ESQUIRE
OF: OFFICE OF THE STATE ATTORNEY
20 NORTH MAIN STREET
BROOKSVILLE, FLORIDA 34450
(352)754-4255
[email protected]
APPEARING ON BEHALF OF THE STATE OF FLORIDA
TERENCE LENAMON, ESQUIRE
MELISSA ORTIZ, ESQUIRE
OF: LENAMON LAW
226 EAST FLAGLER STREET
SUITE 200
MIAMI, FLORIDA 33131
(305)373-9911
[email protected]
APPEARING ON BEHALF OF THE DEFENDANT
TANIA Z. ALAVI, ESQUIRE
OF: ALAVI, BIRD & POZZUTO, P.A.
108 NORTH MAGNOLIA AVENUE
SUITE 600
OCALA, FLORIDA 34475
(352)732-9191 FAX-(352)732-4892
[email protected]
APPEARING ON BEHALF OF THE DEFENDANT
ALSO PRESENT:
KATHLEEN O'SHEA, MITIGATION SPECIALIST
LENAMON LAW
DEFENDANT PRESENT, IN CUSTODY
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(The following is an excerpt of these proceedings:)
* * * * *
MR. LENAMON: Good morning. Before I get
started, I want to take a moment to thank you for
your service up to this point. It's been a very
difficult, I'm sure, break with these things
weighing on your mind and you had some great
responsibility that you had to deal with in the
first part of the case and I will be kind of going
back to some of that during the course of our
presentation.
But this is really about the second part, which
we spent a lot of time talking about during jury
selection, about your individual responsibility,
about respecting each other's individual verdicts,
and about making a sentencing decision individually
yourself. So at the end of this, that when you
finish your duty, that you are comfortable with
where you're at, at the end of this. I thank you.
And I want to begin this journey by talking
about Byron and Ms. Davis. Because what you're
going to learn is that this man here (indicating),
my client, Byron Burch, is the great grandson of
Ms. Davis's sister, Beatrice. And that becomes
important in part, besides the fact that they are
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family, because there were really, as you will hear,
two worlds and one family.
Ms. Davis, her father was Captain Fletcher.
Her mother was Rosa. She had a number of brothers
and sisters. Beatrice was her sister. Beatrice had
a daughter by the name of Odessa. Odessa is the
sister of Fannie. Fannie is the mother of Nona, the
young girl who was assaulted by Byron. And we'll
talk about that in a minute. Odessa is the mother
of Verna. Verna is my client's mother.
This is important because as you already heard
and probably recall, Mack Davis, Dr. Davis told you
his mother was loved, cherished, and someone who is
extremely beneficial to our community. She was a
lifelong teacher, she was a civic activist. And
you're going to hear, they're even going to bring
in, Mr. Magrino is going to bring in the former
mayor of Brooksville who will talk about some of the
things, the great things, this woman did.
You're going to hear from her preacher, you're
going to hear from a former or a current police
officer who she touched his life. You're going to
hear a lot of great things about this woman. And
one of the things that you're going to hear
consistently throughout the testimony about her is
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how she was loving, caring, and forgiving. Loving,
caring, and forgiving.
And what's important to know is that the world
that she provided for her son Mack and her daughter
Angela is nothing like the world that was provided
for my client, Byron Burch. And you're going to
hear from a lot of experts over the next several
days. You're going to hear from a psychiatrist, a
neurologist, an expert who deals with children who
are sexually abused. You're going to hear from a
neuropsychologist and you're even going to see some
brain imaging that shows you damage to Mr. Burch's
brain.
But the story really begins with Odessa, his
grandmother. When Odessa was 15 years old, as far
as we can tell in our investigation, the violence
began here because Odessa was raped at 15 and
produced Byron's mother, Verna. And if you
remember, Beatrice is the grandmother and the sister
of Sarah.
And what you're going to hear is that --
ultimately you're going to hear and see because
you're going to get to hear from Verna herself, but
you're going to get to hear about how this woman who
is conceived out of rape became victimized herself
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on so many different levels. And as we know,
victimization has a circular pattern.
She ended up having two children, Byron and
James. James died about six months before the
murder of Ms. Davis and James was one of the people
that Byron was really closest to. And so what
you're going to hear, though, as that as Verna was
growing up she was victimized and ultimately she met
and became involved in with Byron's father, J.T.
Now, right now as we sit here, you may or may
not hear from J.T. J.T. is in the Hernando County
Jail. He's doing 23 years on multiple sexual
battery charges of children. That's my client's
father. And that's the man that my client's mother
ended up with who was abusive, both physically and
emotionally, and who would rape her on a regular
basis. And even the conception of Byron's brother,
James, was something that came from rape. She
stayed with J.T. up till the time Byron was about
four or five years old.
And you will hear from a number of people who
J.T. ended up with afterwards. Another woman,
Valerie, who will tell you about the violence and
the treatment. And what the evidence is going to
show is that my client was sexually abused by J.T.
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when he was about, at the very earliest documented,
when he was about five or six, seven years old.
And Verna will tell you that, how she caught
him, what she did. But we suspect there was a lot
more because at the time they weren't really
together and when they were really together, he
wasn't well taken care of by Verna.
And so what you're going to hear is that my
client ended up with another stepfather by the name
of Anthony Crapps, living in another place. And
that at some point, at the most important time of
his life when he was around 11 years old, he ended
up staying with his grandmother for a short period
of time.
You will hear that conceptually it was to him
probably the most positive point in his life. And
even though you will hear testimony that Odessa had
a stepson by the name of Michael who was in his late
teens, early -- like 19 or 20 years old, that this
Michael kind of befriended Byron, took him fishing,
hunting, that he also sexually abused Byron.
And so this is what is going on, you're going
to hear testimony over the next three or four days,
both in the form of witnesses and in the form of
experts who are going to come in and talk about
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that, this is what's going on leading up to that
point when the prosecutor talked about this violent
felony.
Now, at the end of the day -- at the end of the
day you're going to get to make a decision on the
weight that you give each of these aggravating
factors. But what happened here is the evidence
that you're going to hear is that when Byron was
16 years old, he had been living with Odessa for a
period of time. He ended up going back to -- with
his mother, which he had tried to commit suicide
when he went back to live with his mother. And this
is when he was like 12 or 13 years old.
And then he continued to live with his mother
and then when he was 15, actually going on 16, he
met a woman by the name of -- a girl by the name of
Crystal who was 15 years old. And so you're going
to hear from Crystal. She's going to appear by
video/television testimony.
But Crystal ends up being the woman that he has
children with. And at the time when he was 16 years
old, he was certainly in love with her. And so when
he is 16 -- this is a picture when he's 13. We
didn't have a picture when he was 16. When he is
16, she is 15, she gets pregnant.
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And so you will hear all this testimony about
how Verna treated her, the dynamics between Verna
him and her. She's going to report to you all the
things that went on with Byron and how his mother
mistreated him, didn't love him, and very favored
the second child, James.
When she's 15, he's 16, she gets pregnant. At
some point Odessa dies. And it's probably one of
the most traumatic things in his life that happens.
She dies, he goes to the funeral, he has an episode.
You're going to hear testimony from a number of
doctors. They're going to tell you that Byron, not
only suffers from what's called chronic traumatic
encephalopathy which is a brain injury. They're
going to tell you that he suffers from trauma.
That he was sexually abused and he suffered
from trauma with the sexual abuse. That he suffers
from bipolar illness. That he has tendencies that
have to deal with OCD. And that clearly he's drug
addicted and began using drugs when he got out of
prison after he was sent to prison at 16 years old.
And when the prosecutor gets up here in closing
argument and explains all this to you, you'll have
to make a decision, because I'm going to
cross-examine their witnesses and present testimony
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on my own, but what happens is, is when he's
16 years old he loses Odessa. He goes through this
period of bleakness.
And within a couple of weeks, maybe a month of
this happening, the funeral of Odessa, is that
moment in time when he is left alone, unsupervised,
with a number of cousins, including his cousin Nona
who is nine years old at the time. He is 16. She
is nine.
There's no question, we're not excusing what
happened and that you should consider it, but
there's going to be a lot of things presented to you
in the context of how you can consider it and how
you can weigh it. You're going to hear from a
doctor from Vermont. His name's Fassler and his
specialization is the brain of teenage boys, the
brain of children, and how they're different than
the brains of adults.
And so we're going to present a whole context
of information to you to consider in weighing this
particular aggravating factor and mitigating against
this particular aggravating factor. Including that
is the fact that he had been sexually abused
significantly leading up to this by both his father
and Michael, the person I told you about.
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And then so the question is -- and we're going
to have an expert from Boston who comes in, Leslie
Lebowitz, and she's going to tell you -- her
specialization is sexual abuse with children. She's
going to tell you the cycle that occurs and what
happens. And she talked to him about this incident
and she will describe to you her conversation with
him and what's really important.
So what you will find out is when he's 16 years
old then, after he is arrested because his mom ends
up calling the police when she comes home and finds
out what happens to Nona, he's arrested and he's
ultimately charged as an adult.
And what you're going to discover is that these
gentlemen over here, back in 1987 had an option:
Direct file and send a 16-year-old to prison or
allow him to stay in juvenile and provide treatment
and rehabilitation. Things that was much needed,
but never given.
And what you're going to find is that the theme
that you hear over and over, including with his own
mother who's mentally ill, who's neglectful, who has
been, you know, somewhat hateful to him, and even
though she was victimized herself and raped and
beaten, that she, too, became a victimizer to Byron
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throughout the world.
And you're going to hear from Nona's own mother
who's going to tell you that they, the family --
remember, one family, two worlds -- that the family
outside of Verna were trying to get him help when he
was 10, 11 years old. That Verna had put him on
some kind of medication, but didn't keep him on
medication when he was 10, 11 years old. And that,
that was something that was significantly not done,
much to the detriment obviously of Byron Burch.
And so what you're going to hear is that he
gets sent to prison when he's 16 and you're going to
hear from an individual by the name of Ron McAndrew.
Ron is a former warden at Florida State Prison and a
number of different prisons. And he's going to tell
you what it was like for a 16-year-old to be sent to
Sumter Correctional back in 1988; 1987, 1988.
You're going to hear terms like gladiator camp,
violence.
And so you're going to hear about this
16-year-old, this boy, being put into this prison
and having to deal with the circumstances of the
prison. And, yes, he spent his life in and out of
prison. You heard about the felonies that they had
talked about.
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What's going to be interesting to find out
about those felonies to take a sidestep on those for
a second, is in the context of each of those
felonies, after you hear all the testimony, because
you get to decide whether the weight of those
felonies carry any significance, the felonies that
occurred was the incident with Nona, that there was
a battery on a law enforcement in 1994. I think he
was 23 at the time. And that there was a battery on
a corrections officer.
What you're going to hear about this one is
that the corrections officer was ultimately fired,
not related to this incident, and that his
credibility is hugely in question, because he
doesn't even remember why he was fired he claims.
And that there was another corrections officer who
was in the tower who got a brief look at what
happened. Didn't see what happened before.
But Ron's going to tell you a little bit about,
and perhaps, not dwelling on the detail, but the
circumstances of how it works within the prison
system and the jail system and why he would have
never even recommended that charges be filed in this
case.
The battery on a LEO case involves Byron Burch
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walking with a friend of his, being stopped by two
police officers who are looking for a suspect in
another case. Being given his name, his correct
name, his correct information, and being told that,
Okay, you're not the guy we're looking for, we're
releasing you and releasing him.
And later on, after they figure out nothing was
going on, one of the officers looks and sees there's
a warrant for a petty crime, a misdemeanor crime, a
misdemeanor crime which is a less crime for this,
for Byron, and goes to his house to arrest him for
that and that there's a struggle that takes place
while he's being arrested. That's what this case is
about. This is in 1994.
And you're going to hear from Fatimah, who is
his aunt, who will tell you that during this period
of time in Brooksville, Florida there was a lot of
racial tension going on. These are two white
officers that went to Byron Burch's house and ended
up arresting him and his brother.
And all of -- this is not being disputed about
some of the information. The issue becomes what
weight you are going to provide each of these in
deciding the value of those, what they call
aggravating factors. And then the incident with
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Nona I've already talked about. We're going to talk
in detail throughout the process more about that.
So what you're going to hear is during this
period of time, that when he goes to prison at
16 years of age, he has a pregnant girlfriend,
Crystal, and that Crystal has her first child, it's
Alisha is her first child, Alisha while he's in
prison at 16 years of age. And then he gets out of
prison and then he ultimately goes back to prison
and he has these children.
While he's in prison, Christopher is born with
another father. And so he -- he knows it's another
father obviously and he accepts Christopher as his
own. And you're going to hear that although he's
had not what we would consider a conventional
relationship with his children where he's there
every day, he's talking to them and seeing them,
that he's kept in touch with them. And you're going
to hear from them and they're going to tell you how
much they love him and how important he is to them.
When he gets out of prison in 1987 for that
sentence, I think he gets out around 1992 or '93, he
begins a life of drug addiction where he battles
that addiction consistently throughout his life.
When he's in prison, out of prison, he's back on it.
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And what you're going to hear from the experts
is, is that there's a circular cycle that exists,
much like the circular cycle that led to the perfect
storm that led to the death of Sarah Davis, where
because of the dysfunction within his world and
because of the mental illness and brain impairment,
that you put all that together with drugs, you have
a really bad combination.
And so what you're going to see and hear is
that he gets out of prison sometime in December of
2009 or January of 2010, somewhere around there.
His brother dies while he's in prison and he has a
hard time with that happening because this is the
only person that he's really connected with.
Remember, it's his only brother and he's the one who
he went through life with him being closest.
He's got a dysfunctional mother that for all
likelihood, and you'll see for yourself and get to
hear her and judge and make your own decisions on
her, that this is not someone who provides him the
nurturing that Sarah Davis provided to Mack and
Angela in no way, form, close, period.
And so when he gets out January of 2010, within
a short period of time he moves in with his mother.
His mother is a hoarder. You will hear some
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disturbing things about her behavior which involve
pornography and some other things that is going to
come out from some of the witnesses and the way she
treats people.
And within a -- within a very short period of
time, Byron's trying to work within the labor pool,
which evidence -- you heard some of that evidence in
the first part of the case. But he also is falling
into his old bad habits of using drugs and back on
the crack cocaine addiction.
And so thus starts this circular process where
all this dysfunction from his life -- the rape,
sexual abuse, the violence he witnessed, the things
that happened to him in prison, being sent to prison
when he was 16 -- all those things which we're going
to present to you over the course of three or four
days through testimony of witnesses and evidence,
all that dysfunction is playing out in his world.
He's got an untreated mental illness, probably
bipolar, and you're going to hear from a
psychiatrist on those issues. He's got a broken
brain that's impaired and he's smoking crack. And
so not being a crack smoking person myself, I
couldn't describe the need for more crack from a
normal crack smoker, but imagine someone who has all
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of these things happening to him. That's what we
see playing out leading up to the events that
occurred with Ms. Davis.
We're not here to make excuses and you all --
all of you told me that you would be able to accept
and weigh the mitigating factors in a meaningful
way, a meaningful way. Where you would listen and
weigh those things and make a determination based on
that. Do not be confused that sympathy or feeling
sorry for someone has anything to do with your
responsibility involving this.
At the end of this, what you're going to be
left with is those events that you make decisions on
in the back room, both individually and collectively
in the first phase. And some of you may have
thought about the different ways that this could
have happened, the killing. And some of you could
come up with your own conclusions or some of you
could have said that that's not important. We are
going to offer something to you through one of the
doctors of what we think is important for you to
consider in regards to that.
But putting that aside for a second here, the
responsibility now that you must take is you must
look at the story of Byron Burch and understand who
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he is and be able to give weight to whatever
mitigating factors there are in existence.
Look at the aggravating factors. And a lot of
times what you're going to see here is the
aggravators that the state talked about, the one,
two, three, four, they may be proven beyond a
reasonable doubt without question, but the question
becomes the weight that you provide them.
And you're going to hear that we treat children
differently than we do adults. And that's important
because the reason Fassler's coming in here to talk
to you is that when you're looking at that one
aggravating factor involving Nona when he was
16 years old, I'm going to suggest that when the
death penalty is in play at the end of my closing
argument, that you shouldn't even consider that
aggravating factor based on the fact of his age and
all the circumstances.
In Florida, in the United States, we don't
execute juveniles. And so I'm going to be asking
you at the end of the day to put that completely
aside. That's leaving you with the two aggravating
factors and the events that took place within the
context of the killing of Ms. Davis and those are
the things that you have to look at.
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In the context of everything else, and although
you're going to be considering all the aggravating
factors, do not -- do not forget that all these
aggravating or mitigating factors play into your
consideration of the aggravating factors.
That is the events that took place, Ms. Davis's
death, the killing, how she died, and the state of
mind of the person that you have found, Mr. Burch,
responsible, his state of mind during this event,
leading up to it, and before. All of those things
you must remember that you cannot put aside and
forget about.
You know, we talked about when in jury
selection about your thoughts about Byron having
this eye and his look and you all promised me you
would set those aside and that would not be an issue
at all. What you're going to hear about his eye is
that when he was ten years old, he was horse playing
with a cousin of his and the cousin flipped a wire
and it hit his eye and caused that damage.
And so from ten years old he had to deal with,
besides all of the things we talked about, this
issue of his eye. You're going to hear from his mom
that some people would refer to him as Cyclops. And
so all -- obviously all those things can be factored
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in when you're looking at the mitigation that's
involved in this case.
You were very thoughtful and kept an open mind
and listened throughout the first part of this case
and I thank you very much for taking on that
responsibility and doing what your job was to do.
Now I ask you please, keep an open mind. Don't get
caught up in like, you know, this is such a horrible
killing, I can't feel sorry for this person. That's
just not right. I want to, but I can't.
Because that's not what the law is. That's a
confusing -- confusing look at what the law. The
law says that you must consider the mitigation that
you find credible and each of you individually have
to make that determination and decide that when
you're looking at the evidence in this case and I
ask that you do that.
And when you do that, I think that, as we
talked about in detail, that the law allows you to
vote for death under a circumstance, the word is
"may". And where the mitigation outweighs the
aggravation, the word is "must". And that you are
never required to vote for death. And that's an
individual conscious decision on whatever reason you
want to feel, whether it's tied to something in the
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first part of the case or tied to something in the
second part of the case.
But at the end of the day, this is a great
responsibility and I am taking that responsibility
serious and will be giving you as much as I possibly
can. So when I call witness after witness and
expert after expert, please listen because each of
those experts bring something to the table that's
important for you to in you making your decision.
At the end of this I believe that the only
evidence in this case will be that you vote for
life, that six of you vote for a life recommendation
and you give that recommendation to the judge and
that the judge then would sentence Byron to life
without the possibility of parole. He's never
getting out.
By your first decision in the beginning a
couple weeks ago, a month ago, you made that
decision when you found him guilty of first-degree
murder, he is never getting out of prison. And now
the only decision is whether you're going to allow
his life to be taken by the State of Florida.
That's the only decision. It's a great
responsibility. I thank you for embracing it. I
thank you for listening. Thank you, Judge.
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* * * * *
(This concludes this excerpt.)
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CERTIFICATE OF REPORTER
STATE OF FLORIDA )
)
COUNTY OF HERNANDO )
I, Shannon Massingill, RPR, FPR, Notary Public,
State of Florida, I was authorized to and did
stenographically report the foregoing proceedings; and
that the transcript, Page 1 through Page 23 is a true
and accurate record of the requested excerpt of my
stenographic notes.
I FURTHER CERTIFY that I am not a relative, or
employee, or attorney, or counsel of any of the parties,
nor am I a relative or employee of any of the parties'
attorney or counsel connected with the action, nor am I
financially interested in the action.
Dated this 21st day of July, 2015.
__________________________________
Shannon Massingill, RPR, FPR
Stenographic Reporter
Registered Professional Reporter
Florida Professional Reporter
