SC06-138 – Jermaine Lebron v. State of Florida

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State: Florida

Docket No: SC06-138

Case Date: 01/10/2008

Preview:Supreme Court of Florida
____________ No. SC06-138 ____________ JERMAINE LEBRON, Appellant, vs. STATE OF FLORIDA, Appellee. [May 1, 2008] PER CURIAM. This case is before the Court on appeal from a resentencing proceeding where Lebron was sentenced to death. This Court has jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons that follow, we affirm the sentence. FACTS AND PROCEDURAL HISTORY Jermaine Lebron was convicted of the 1995 first-degree murder and robbery with a firearm of Larry Neal Oliver. See Lebron v. State, 799 So. 2d 997, 1004 (Fla. 2001). In affirming the convictions from the guilt phase, this Court detailed the facts surrounding the murder:

According to eyewitnesses, [Oliver, who worked with one of Lebron`s acquaintances, Danny Summers,] had been lured to a house in Osceola County (the Gardenia house) where Lebron and several others were staying after Lebron offered to sell [Oliver] some spinners for his truck. Shortly after [Oliver] arrived at the home, Lebron called to him to come toward the back bedrooms. As [Oliver] entered the hallway leading to the bedrooms, he was forced to lie face down, and was shot at short range in the back of the head. . . . Money, checks, and a credit card were taken from [Oliver], and stereo equipment was stripped from his truck. Lebron directed others present at the time to burn [Oliver`s] identification papers, to dispose of [his] body, and to clean up the area where [he] had been shot. Over the next several days, Lebron and some of the others used [Oliver`s] credit card, pawned his stereo equipment, and cashed his checks. An attempt was also made to burn [Oliver`s] truck. . . . Shortly thereafter, Lebron left for New York City, the place where Legz Diamond, a topless juice bar owned by his mother, was located. [Oliver`s] body was later discovered in a rural area near the Walt Disney World property. Although the body was covered with a blanket and some shrubs, it was still visible from the road. The medical examiner, Dr. Julia Martin, performed the autopsy on Oliver`s body after it was discovered. She testified that . . . [t]here were no bruises to the hands consistent with defensive wounds. The cause of death, which was instantaneous, was from a shotgun wound to the head. After Lebron left for New York, the others having knowledge of the event reported the murder to law enforcement officers. . . . All of the witnesses other than the Tocci brothers gave statements which were consistent throughout, and also consistent with what the police were able to verify with evidence and other statements (such as where the body was hidden; where the truck was burned; how the checks were cashed; and where Oliver`s property was pawned). At about the same time, a crime-scene investigation was being conducted by the Osceola County Sheriff`s Department. Investigators observed several drops of what appeared to be dried blood in a big area at the southeast bedroom door of the home where the event allegedly occurred. They also discovered what appeared to be blood that had some foreign substance on it. The area was at least twelve to

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fourteen inches in diameter. A very strong stench of dried blood was detected immediately upon entering the residence. Plastic balls were found inside the southeast bedroom, along with sponges and pellets. A spent Winchester twelve-gauge pheasant shotgun shell was found in a drawer in another bedroom. In a third bedroom, the police found four shotgun shells and the decedent`s ring in a pair of sneakers. Shortly after these eyewitness reports were made to law enforcement, Lebron, accompanied at the time by Stacie Kirk and Howard Kendall (who was involved in burning Oliver`s truck), was apprehended in a car parked on the street outside of Legz Diamond, and arrested. Incident to the arrest, a search of the vehicle was conducted, and a day planner was recovered from the center console underneath the dashboard between the passenger seat and the driver`s seat. Upon opening the planner, an identifying card with the name Larry N. Oliver was found. Detective Rodriguez retrieved the planner and secured it for safekeeping. He also found four shotgun shells in the center console. Id. at 1001-02. Lebron`s first trial resulted in a mistrial due to jury deadlock. See id. at 1001. During the guilt phase of the second trial, the jury found the following on special-verdict forms: (1) Lebron was guilty of first-degree felony murder; (2) Oliver was killed by someone other than Lebron; (3) Lebron did not possess a firearm during the commission of the felony murder; (4) Lebron was guilty of robbery with a firearm; and (5) Lebron possessed a firearm during the commission of the robbery. See id. at 1004. During the penalty phase for this same proceeding, the jury recommended the death penalty by a vote of seven to five. See id. at 1006. The trial court sentenced Lebron to death. See id. at 1008. In 2001, this Court affirmed Lebron`s convictions but vacated the death sentence and 3

remanded for resentencing. See id. at 1022.1 After a new penalty phase was held, the jury recommended the death penalty by a vote of seven to five. See Lebron v. State, 894 So. 2d 849, 852 (Fla. 2005). The trial court sentenced Lebron to death. See id. In 2005, this Court again vacated the death sentence and remanded for resentencing. See id. at 856.2 During the most recent penalty-phase proceeding, which commenced on August 16, 2005, the State presented the testimony of Detective Andrew Lang, who provided a summary of the facts surrounding the incident. Lang testified that Daniel Summers supplied the following information with regard to Lebron`s conduct immediately prior to Oliver`s death: (1) Lebron was playing with the shotgun in the vehicle on the ride home after Oliver had agreed to follow them; (2) Lebron stated that he could not believe Oliver was stupid enough to follow them to the house; (3) at the house, Lebron had the shotgun in his possession when Summers and Oliver walked down the hallway; and (4) Lebron directed Oliver to lie on the floor, and Oliver eventually complied after an initial struggle. 1. This Court vacated Lebron`s death sentence due to the following: (1) the trial court erred in finding the felony-probation aggravator because this violated the ex post facto doctrine; and (2) the trial court erred in rejecting the minorparticipant mitigator based on the trial court`s improper finding that Lebron shot Oliver, which was contrary to the special finding of the jury that someone other than Lebron shot Oliver. See id. at 1020-21. 2. This Court vacated Lebron`s death sentence because the probative value of the evidence presented to establish the prior-violent-felony aggravator was far outweighed by its prejudicial effect. See id. at 853. 4

Additionally, Lang testified that the autopsy of Oliver showed no signs of defensive wounds or wounds consistent with a struggle. Lang also testified that Charissa Wilburn provided information that was consistent with Summers` statement: Wilburn stated that immediately after she heard a struggle in the hallway, she heard a shotgun blast. Lang also presented evidence that Dwayne Sapp made the following statements with regard to Lebron`s conduct: (1) when Sapp arrived at the house, Lebron had the gun in his possession; (2) Lebron directed Sapp to look at his (Lebron`s) truck (the red pickup truck that belonged to Oliver) which had been parked in the garage; (3) Lebron directed Sapp and the others to clean the area where Oliver had been shot; (4) Lebron directed that the red pickup truck be destroyed; and (5) Lebron was present when equipment from Oliver`s truck was pawned and Oliver`s credit card was used. Lang addressed that when Lebron was arrested in New York, both a shotgun shell and Oliver`s day planner were found in the car used by Lebron, and, finally that Lebron had been previously convicted of a robbery and kidnapping and also on a charge of aggravated assault. The State presented evidence from Oliver`s mother with regard to victimimpact evidence and also exhibits which included (1) proof of Lebron`s prior violent-felony convictions; (2) pictures of the deceased Oliver after the murder and

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the hallway at the crime scene; and (3) evaluations of mental health professionals who analyzed Lebron. The defense presented only the testimony of Jocelyn Ortiz, Lebron`s mother. Her testimony revealed that while she was living on the streets of New York City, she became pregnant with Lebron when she was sixteen years old and had used drugs during this pregnancy. Lebron`s father was only involved with Lebron for the first few months of his life. Her memory of Lebron during the first few months after his birth was her drug involvement and unsuccessful attempts to feed him. When Lebron was about three months old, she entered a drug rehab program. Her motivation to enter this residential program was based on being advised that Lebron would be taken from her if she did not rehabilitate. Lebron was in foster care during this time. After completing rehab, she married Tony Ortiz and she worked as a counselor with the rehab program she attended. From the time Lebron was three months old until he was four or five years old, she did not use drugs. After her job as a counselor there ended, she became a dancer and later a stripper which covered approximately ten years. During this period of time, Lebron would steal from her on different occasions. She testified that on occasion she used corporal punishment on Lebron in an attempt to instill discipline and would tell him to leave her alone when he

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would cling to her. Her employment provided sufficient income to provide for Lebron, and she would provide him with money and the items (e.g., clothes) he desired. The defense presented exhibits which included (1) the charges and convictions of the other individuals involved in the Oliver incident; (2) reports with regard to Lebron`s prior arrest in New York (these reports disclosed that he was seventeen at that time and a codefendant possessed a gun that was used during the crime);3 and (3) reports with regard to Lebron`s attendance and performance at various schools and group homes during his teenage years. On August 17, 2005, the jury returned a recommendation of death by a vote of seven to five. The jury found three aggravators on Attachment A4 and addressed other mitigators on Attachment B.5

3. On February 18, 1993, Lebron was convicted of attempted robbery for this crime, which was committed in New York. 4. The trial court required the jurors to record a numerical vote for each aggravator on a document called Attachment A. The jury found the following aggravation: (1) Lebron had a conviction for a prior violent felony (the jury vote was twelve to zero); (2) the felony murder of Oliver was committed while Lebron was engaged in a robbery (twelve to zero); and (3) the felony murder of Oliver was committed for financial gain (nine to three). 5. The trial court also required the jurors to record a numerical vote for each mitigator on a document called Attachment B. The jury found the fo llowing with regard to mitigation: (1) Lebron was not merely an accomplice, whose participation was relatively minor, in the felony murder of Oliver (twelve to zero); (2) Lebron`s age was not a mitigator (twelve to zero); (3) no aspect of Lebron`s 7

On September 28, 2005, Lebron moved for a new trial based upon a letter that allegedly established juror misconduct. Lebron asserted that the jurors had allegedly discussed that Lebron had placed a gun to the head of an individual in a separate incident, even though such evidence was never presented to the jury. On October 3, 2005, the trial court conducted a hearing on this issue and multiple jurors were questioned. On October 20, 2005, the trial court denied the motion for a new trial. On October 20, 2005, the trial court conducted a Spencer6 hearing. During this hearing, the trial court considered the testimony of Howard Kendall (given during the trial that involved the victim Roger Nasser) that Lebron was motivated to perpetrate the crime against Nasser7 because Nasser had attempted to rape Stacie Kirk, who was seventeen at the time. The defense also presented various school records of Lebron. The defense asserted that the various aggravators should receive limited weight because (1) this Court does not typically give great weight to either the robbery or pecuniary-gain aggravator, and here, the robbery also benefited other individuals involved in its commission; (2) when Lebron

character, record, or background was a mitigator (nine to three); and (4) no other circumstance of the felony murder was a mitigator (twelve to zero). 6. Spencer v. State, 615 So. 2d 688 (Fla. 1993). 7. On June 24, 1997, Lebron was convicted of both robbing and kidnapping Nasser. This incident occurred approximately one week after Oliver`s murder. 8

committed the crime of attempted robbery in New York, he was a juvenile and an accessory as evidenced by his probation sentence, and the main culprit used a gun that contained blanks; (3) Lebron was provoked by Brandi Gribben`s threats, which mitigates the aggravated assault that he committed against her;8 and (4) Lebron did not possess a firearm when he robbed and kidnapped Nasser, and Nasser had earlier attempted to rape Lebron`s friend, Kirk. Conversely, the State presented a summary of psychological reports and asserted that Lebron had killed Oliver for no real reason because it was not necessary to murder Oliver to steal his truck. On December 27, 2005, the trial court sentenced Lebron to death. The trial court found that the State had proven beyond a reasonable doubt that (1) Lebron was previously convicted of a felony that involved the use or threat of violence to a person; and (2) the capital felony was committed while Lebron was engaged in or an accomplice in the commission of robbery (this merged with the financial gain aggravator). The trial court further found that there were no statutory mitigators present. The trial court found the following nonstatutory mitigators: (1) Lebron`s mother used drugs (assigned very little weight); (2) Lebron performed poorly in school (some weight); (3) Lebron was good with children (very little weight);

8. On August 26, 1997, Lebron was convicted of perpetrating an aggravated assault with a firearm against Gribben. This incident occurred only a few days before Oliver`s murder. 9

(4) the profile of Lebron`s parents was mitigating (very little weight); (5) Lebron`s mother rejected him and had negative feelings about him (some weight); (6) Lebron behaved properly during trial (very little weight); and (7) Lebron had emotional problems, mental health problems, and lacked the world`s best mother (little weight). Finally, the trial court found that the death sentence was supported by an Enmund9-Tison10 analysis because Lebron was a major participant in the murder of Oliver and Lebron had demonstrated a reckless disregard for human life. This direct appeal followed. ANALYSIS 1. Mitigation Findings of Trial Court Resentencing as a De Novo Proceeding Lebron asserts that the trial court erred in its mitigation findings when it considered and relied on evidence not contained in this record. We agree. In the sentencing order, the trial court relied on information, in analyzing multiple mitigators, that was not introduced (i.e., the trial court neither admitted it as evidence nor took judicial notice of it) during the 2005 penalty-phase proceeding. First, in support of a rejection of the mitigator that Lebron`s participation in the offense was relatively minor, the trial court relied on (1) the testimony of Mark 9. Enmund v. Florida, 458 U.S. 782 (1982). 10. Tison v. Arizona, 481 U.S. 137 (1987).

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Tocci, Charissa Wilburn, and Danny Summers with regard to the night that Oliver was killed;11 and (2) Joe Tocci, Mary Lineberger, and Dwayne Sapp established that the defendant told them [Oliver`s] truck was in the garage and also established that the defendant ordered them to clean up the house after the murder and ordered Vern Williams and Dwayne Sapp to dispose of [Oliver`s] body. Second, in rejecting the mitigation that codefendants received disparate treatment, the trial court stated that Joe Tocci testified that [Lebron] said he was going to jack [Oliver] and that he was going to do it for all the guys to see. Third, in support of a finding that Lebron`s mother was not a drug addict but instead only a

11. The trial court`s sentencing order contained the following: The evidence presented in this case established through the testimony of Mark Tocci, Charissa Wilburn, and Danny Summers that: 1. The defendant said he was going to jack the victim, Larry Neal Oliver, Jr., and that the term jack meant to rob; 2. The defendant asked [Oliver] to follow them to the house on Gardenia Road; 3. The defendant had possession of a shotgun, which he gave to Charissa Wilburn to take into the house; 4. The defendant got the shotgun from Charissa Wilburn after she took it into the house; 5. After the shotgun blast, the defendant told Charissa Wilburn, who was in another room, that it was over and that [Oliver] was dead; and 6. The defendant was observed going through [Oliver`s] property, taking money, checks and credit cards.

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drug user, the trial court relied on testimony which she provided during the 2002 proceeding: Q When you were only 18, you were a drug addict?

A Well, I used drugs. I wouldn`t call myself a drug addict. I used drugs. Q A And you got into treatment? Yes.

Q And the reason you got into treatment was so you wouldn`t lose your son? A Q Right. Any other reason?

A When you go into treatment, you go to school. They send you to school. You have a place to live. Those are the reasons. Otherwise, I wouldn`t be able to go to school. I wouldn`t be able to graduate high school or go to college. Fourth, in support of finding that Lebron was good with children, the trial court stated that some evidence that he was good with some children was presented at the previous proceeding. However, none of this evidence was presented during the 2005 proceeding

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