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    Joseph Smith Carley Brucia Court Order 4-2020

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    Joseph Smith Carley Brucia Court Order 4-2020

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    Joseph Smith Carley Brucia Court Order 4-2020

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    IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA, STATE OF FLORIDA, Plaintift, % ‘Case No. 2004 CF 2129 NC DEATH PENALTY CASE. JOSEPH P. SMITH, Defendant. J ORDER (1) GRANTING STATE'S MOTION TO REINSTATE DEATH SENTENCE, 2) VACATING, IN P7 STERED JULY 13,2017, WHICH ‘GRANTED A NEW PENALTY PHASE, AND (3) REINSTATING DEFENDANT'S SENTENCE OF DEATH WITH DIRECTIONS TO THE CLERK ‘This matter comes before the Court onthe State's Motion to Reinstate the Death Sentence, filed January 27, 2029. The defense filed “Defendant's Response to State's Motion to Reinstate Death Sentence on February 12, 2020, and the State filed its Memorandum of Law in Support of Motion to Reinstate Death Sentence (Amended) on February 14, 2020. The Court conducted a hearing on the State's Motion on February 18, 2020, at which Defendant was present and represented by counsel, The Court has carefully considered the State's Motion and supporting Memorandum, Defendant’s Response, the court file, applicable law, and arguments of counsel, _and is otherwise duly advised of the premises. Procedural History ‘The Florida Supreme Court “has previously detailed the gruesome facts of this case.” ‘Smith v. State, 251 So. 34 807 (Fla. 2018) (referencing Smith v. Stare (Smith ), 28 So. 34 838, £844.53 (Fla. 2009). This Court incorporates by reference al the details outlined by the Florida Supreme Court in Smith I, and otherwise provides the following procedsral summary highlights 1m support of the ruling herein By an indictment and a separate information, both filed on February 20, 2004, the State ‘charged Defendant with the First-Degree Murder (Count 1), Sexual Battery (Count 2), and Kidnapping (Count 3) ofcleven-year-old Carlie Brucia. Following atrial, which commenced! on ‘November 7, 2005, and concluded on November 17, 2005, a jury found Defendant guilty as "Jury selection began on etober 25,205, and eoelded on November 4, 2005 1 charged on each count. (See Attachments I and 2) The Court held the penalty phase from ‘November 28 to November 30, 2005. On December 1, 2005, the jury recommended a sentence of death on Count | by a vote of 10 t02. ‘The tral record reveals that Defendant's February 1, 2004, abduction of Carle Brucia was captured on surveillance video obtained from a carwash on Bee Ridge Road. Defendant quickly became a suspect in her disappearance based on tips generated from the public dissemination of the surveillance video. Defendants instructions to his brother aided law enforcement in the February 5, 2004, recovery of Carles body, which he had dragged into a wooded area near a church on Proctor Road. She was discovered essentially naked from the waist down, with ligature ‘marks on her waists and neck, and Defendant's semen on the back of her shit, Defendant made statements indicating that he had “Rough Sex” with Carlie, The medical examiner opined that the cause of death was ligature strangulation, that Carlie was sexually battered while still live, and that she was likely conscious atthe time Defendant applied the ligature that took her life Defendant returned for sentencing on March 15, 2006. AC that time, the Court entered a 36-page sentencing order outlining and analyzing the aggravating and mitigating sircumstances presented and proven inthis ease. In that order, the Court found that the State demonstrated the following aggravating circumstances beyond a reasonable doubt: LL The capital felony was commited by a person previously convicted ofa felony and placed on felony probation (moderate weight assigned). 2, The capital felony was committed while Defendant was engaged in sewual battery or kidnapping (significant weight assigned), 2. The capital felony was commited forthe purpose of avoiding or preventing a lawful, rest (great weight assigned). 4. The capital felony was especially heinous, atrocious, or eruel (“HAC”) (great weight assigned), 5. The capital felony was a homicide and was committed in a cold and calculated and premeditated manner without any pretense of moral or legal justification (great weight assigned)? 2 Atough the Florida Supreme Cour suck the CCP aggravator on det appeal it also eoneue( A) that the ‘eroneous fing ofthe CCP aggravator here was Harmleseror because the til court expresly stated i the ‘Sentencing order that any one ofthe agravators found (except the felony rokation aggravator mas suficieat © ‘outweigh he mitigating cramtances found inthis case--” Smith State (Sth. 28 So. 30 838,368 (la 2008). 2 6. The victim of the capital felony was a person less than twelve years of age (great weight assigned), ‘While the Court found evidence of statutory mitigating circumstances lacking. the Court found that Defendant established the following non-sttutory mitigating circumstarces: 1. Defendant has a long and well-documented history of mental illness (moderate weight assigned), 2. Defendant has a long and well-documented history of drug abuse (moderate weight assigned), 3._ Defendant suffered longstanding severe pain from back injuries that contributed to his, addiction (litle weight assigned), 4. Defendant repeatedly sought help for his problems (litle weight essigned). 5. Defendant was repeatedly denied treatment or received inadequate treatment (litle ‘weight assigned). 6. Defendant has many positive qualities including (moderate weight assigned)—{a) skills asa carpenter, plumber, and mechanic; (b) performance of kind deeds for others; (©) sharing of love and support with his family; () attempts to havea positive influence ‘on family members, despite his incarceration; (c) artistic skills; an (1) care for animals 7. Defendant provided information that le tothe resolution of his case (very litle weight, assigned). 8. Defendant’s family assisted law enforcement with the knowledge and cooperation of Defendant (slight weight assigned), 9. Defendant has demonstrated spiritual growth (moderate weight assigned), 10, Defendant has maintained gainful employment (slight weight assigned). 11, Defendant was a kind and loving father to his three young daughters (moderate weight assigned), 12, Defendant is remorseful litle weight assigned), > Defendant atemptd, but filed 1 demonstrate the following statutory mitigating circumstances: 1) The cpt ‘elony was commited while Defendant was under te inuene of exteme meal or emotion distance and 2) the capacity of Defendarst appreciate the criminality of is eonet oro conform his condut othe requirements oth aw was substan impaired 13, Defendant is amenable to rehabilitation and a productive lite in prison (litle weight assigned). ‘Ultimately, the Court concluded thatthe aggravating circumstances far outweighed the ‘mitigating cicumstances in ths case. More specifically, withthe exception ofthe felony probation aggravating circumstance, the Court concluded that each aggravating circumstance—standing slone—outweighed the totality of the non-statutory mitigating circumstances proven inthis cas. ‘Asa consequence, the Court adopted te jury's recommendation, sentenced Defendant to death on Count 1, and imposed concurrent terms of life in prison on Counts 2and 3. As previously noted, the Florida Supreme Cour issued a detailed opinion in Smith v. State, 28 So. 3d 838 (Fla. 2009), affirming the judgments and sentences imposed by this Court. The opinion became final on June 28, 2011, when the United States Supreme Court denied Defendants petition for wrt of certiorari ‘Smith v, Florida, $64 U.S. 1052, 131 S. Ct. 3087 (2011), re. den, $67 U.S. 954, 133 S.Ct. 73 (2012); see U.S», Willis, 202 F.3d 1279, 1281 (10th Cir. 2000) DJefendant's judgment of conviction was final when the United States Supreme Court denied his petition for writ of certiorari, notwithstanding the fact that he could have filed a petiticn for rehearing ofthe order denying his petition for wrt of certiorari"). Defendant timely fle his inital Rule 3.851 Motion for Postconvicton Relief on June 21, 2012. The Court denied the motion by order rendered December 25, 2012, and that denial was affirmed by the Florida Supreme Court by a Mandate sued December 12,2014, Smith » State, 151 So, 34 1177 (Fla. 2014) ‘On January 5, 2017, Defendant's successive postconviction motion was timely submitted within one year ofthe United States Supreme Court's issuance of Hust». Florida and he Fovia Supreme Courts issuance of Hurst, State Noting that the Florida Supreme Court had repeatedly held “that in cases where the jury makes a non-unanimous recommendation of death, the Hurst ‘error isnot harmless," and bound by such decisions? at chat time, tis Court vacated Defendant "136. C4616 2016). 2200 So. 4840 (Fla 2016, * Dubose Site, 210 So 4 6 (Fa Feb 9, 2017). 9 See, eg, Dubore v State, 210 So. 34 at (Fla. Feb. 9, 2017) (uy vote 8 to 4 for death penalty not harm), -Jechson Sate, 213 So, 34758 (Fh, March 23,2017) uy vote 1 1 for death pert not halen), Kops ‘Sate, 209 So, 3 55 (Fi. Jon, 19,017) Gury vote 10102 For death penalty not harmless); Hodges v State, 213 So, 534 863 (Fla, March 16,2017) Gur vote 10 2 for death penalty not harmless). Coe w State, 221 So, 3d 334 (Fla June 29,2017) (ry ve 9 3 for death penalty not barnes) Serton Stat, 221 So. 54 (Fane 29, 2017) (Gury vote 101 2 for deat pena ot armless). Willams v. Stare, 228.3738 (la. ne 29,2017) (Jury vue 10 4 Smith's death sentence and granted him anew penalty phase trial by Order rendered July 13,2017 The State appealed the Cours “Order (1) Granting, In Pat and Denying, In Pa, Defendant's Successive Motion to Vacate Death Sentence; (2) Vacating Death Sentence Imposed on Count Is and (3) Scheduling Case Management Conference,” filed lly 13,2017, andthe Florida Supreme Court per curiam affirmed the Court's July 13, 2017 Order by Mandate issued April 26,2018 Smith Sate, 251 So, 34807 (Fa, 2018). Since then, the parties have engaged in penalty phase pre-trial discovery, filed multiple and varied motions, and participated in regulary held case management conferences. Meanwhile, on June 20, 2019, the State moved the Court to stay penalty phase retrial proceedings, pending the outcome of Owen », State, Case No. SCI8-810, which the Court granted, in part, by removing Defendant's penalty phase retrial from the October 2019 court calendar. While the Florida Supreme Court has not yet issued a decision in Owen, it as rendered a forthright opinion in Stare ». Poole 45 Fla L, Weekly $41, 2020 WL 370302 (Fa. an. 23, 2020), another non-unanimous jury death penalty case, which unabashedly and explicitly admits several errors inthe rationale employed in Hurst v. State, 202 So 3440 (Fla. 2016) Discussion and Analysis In the instant motion, the State asks this Court to reinstate Defendant's death sentence based on State» Poole. The State argues tha, although this Court “properly followed Hurst in its prior decision when it vacated the [DJefendan’s sentence, ... the Florida Supreme Court has ‘unequivocally receded from Hurst in Poole on the very issue aplicable to this case."* In support of its motion, the State argues that, in addition to capital murder, the jury that tied Defendant ‘Smith convicted him of both Sexual Batery by «Person 18 Years or Older Upon a Child Less ‘Than Twelve Years of Age and Kidnapping—fects which provide the unanimous jury findings necessary to Serve as the basis for avo aggravating crcunstances: (1) “the murder of CB. was ‘commited while the defendant was engaged inthe commission of sexual batery or kidnapping” and () the Vietim, CB, was less than twelve years of ape atthe time of her murdet.!® While acknowledging there was no specific jury finding on it the Stat further argues“ third aggravating 12 for death penalty wot armless; Bargo v. State, 221 So 5d $62 (Fl June 28, 2017) (uy vote 101 2 for det pally ot hemes) States Motion wo Reins Deut Sentences "See § 921.1454), Fla, Si, 2003), © See§ 921.1813), Fle Stat (2003. -cireumstance was proven beyond a reasonable doubt in thatthe [DJefendant commited the murder While on felony probation” which “was never contested during the sentencing hearing” In is response, Defendant frst argues the State's motion is premature because the Florida Supreme Cours opinion in Poole is not final. However, Because the Florida Supreme Court issued an order denying Poole's Motion for Rehearing and Clarification on April 2, 2020, withthe Mandate having been issued on April 20, 2020, Defendant Smith's argument thatthe State's instant motion is prematue, hasbeen rendered moot Second, Defendant arses that this Court is without jurisdiction to disregard the Mandate issued by the Florida Supreme Court on April 26, 2018, which affirmed this Cout's “Order (1) Granting, In Pan, and Derying, In Part, Defendant's Successive Motion o Vacate Death Sentence; (2) Vacating Death Senience Imposed on Count 1; and (3) Scheduling Case Management Conference,” rendered uy 13,2017. Citing amid oer decisional ease law Manat . State, 226: So, 34 1027 (Fla. Ist DCA 2017), Defendant insists, “This Cour is without jurisdiction to disregard the Mandate ard is required to obey it by holding a new sentencing heating for Mr. Smith” Indeed tial court’s role in carrying outa mandates a purely ministerial actin, and a trial cour usually does nat have authority to "modify, mllify, or evade the mandate” 1. at 1028. Florida appellate courts, however, have carved out a narrow exception to this rule: A “clear example ofa case in which an exception tothe general rule [binding the partes to the aw of the case] shouldbe made results from an intervening decision bya higher cour contrary tothe decision reached onthe former appeal...” Marshall. State, 4 Fla. L. Weekly D2561,2019 WL $296709- at (Fla. 24DCA October 18, 2019) (quoting Straszullav Hendrick, 177 So. 241, 4 (Fla. 1968). “Thus, because the reasoning in Hurst—upon which this Couns July 13,2017 Orde and tre Florida Supreme Couns April26 2018 Mandate aiming same were based—has been superseded bythe Florida Supreme Cour's more recent decision in Poole, Defendants insistence that the April 26, 2018 Mandate “is unassilsble” is without merit. See Marshal, 2019 WL 5296709 at *2 (*Beeause our reasoning in Marshall has been superseded by the supreme court in Franklin, we deny Marshall's motion to enforce mandate." Third, Defendant argues that a reinstatement of the vacated death sentence “would be axbitary, capricious, and manifestly unjust in violation of the Eighth Amendment, in aition to the Fourteenth Amendment's Due Process and Equal Protection Clauses.” Finally, making & 1 State's Motion to ReintteDeuth Sentence, a, ‘general “eruel and unusual punishment” argument, Defendant alleges, among other things: “What constitutes cruel and unusual punishment under the Bighth Amendment tums upon evolving standards of decency “because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability ‘must change as the basic mores of society change.""!? Contrary to Defendant’s arguments, the Florida Supreme Court has repeatedly upheld Florida's death penalty statutes against claims that the death sentence is arbitrarily and capriciously imposed. See, ex, Hodges ». State, 885 So, 2d 338, 359 & n. 9 and 10 (Fla. 2004) (noting that the defendants claim that “the death penalty statue is unconstitutional because it fails to prevent the arbitrary and capricious imposition of the death penalty, violates due process, and constitutes cruel and unusual punishment,” has “consistently been determined to lack merit"). The Florida, Supreme Court has also repeatedly rejected similar “cruel and unusual punishment” claims “that Florida’s death penalty system is not in accord with evolving standards of devency.”" Correll v. State, 184 So. 34 478, 485 (Fla. 2015); see Hunter v. State, 175 So. 34 699, 710 (Fla. Apr. 30, 2015); MeLean v, State, 147 So. 3d 504, 514 (Fla. 2014); Kimbrough v, State, 125 So. 34 752, 153-54 (Fla), cert, denied, 134 S.Ct, 632 (2013); Mann v. State, 112 So. 34 1158, 1162 (Fla 2013), In any event, Defendant's contentions do not dissuade this Court from closely re- examining —in light of Poole—the death sentence imposed on March 15, 2006," and the Florida, Supreme Court’s Smith opinion affirming Defendant's sentence of death forthe murder of Carlie Bricia, With its decision in Poole, the Florida Supreme Court determined that ithad erred in Hurst in several ways, including by holding thatthe “Eighth Amendment requires a unanimous jury recommendation of death.” Poole, 45 Fla. L. Weekly S41 at 32. In reaching this conclusion, the Court outlined Florida's historical capital sentencing law, as well as, “the principles underlying the [U.S.] Supreme Court's capital punishment cases” and noted, “Those cases ‘address two Afferent aspects of the capital decisionmaking process: the eligibility decision and the selection decision.” Id. at 24 (quoting Tuilaepa v. California, $12. U.S. 967, 971 (1994). While the © Defendaa’s Response to Sates Moto Wo Reintte Des Seuss a (qui Ferman. Grong, 408 US, 238, 362 (1972) (Burger, CJ, dissenting). See Sentencing Orde, ed March 1S, 206 (Atachnent 3) 7 eligibility decision narrows the class of those who commit murder to persoas eligible for a more: severe sentence, the selection decision encompasses a determination whether a person eligible for the death penalty should receive such a sentence. Poole, 45 Fla. L. Weekly S41 at 24, Aer analyzing the distinctions between those two decisions, the Poole opinion unambiguously announced: This Court clearly ered in Must v. Stare by requiring thatthe jury make any finding beyond the section 921.141(3)@) eligibility finding of one or more Statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution, mandates that the ;ury make the section 941.121(3)(b) selection finding or thatthe jury recommenda sentence of death, Poole, 45 Fla. L. Weekly S41 at 28. Rather, the Florida Supreme Court corcluded, “The section 921.141(3)(b) selection finding is nor a act.” Id. (emphasis added). The Court explained its rationale: “A subjective determination like the one that section 921.141(3)(b) calls for cannot be analogized to an element ofa crime; it does not lend itself to being objectively verifiable, Instead, itisa ‘discretionary judgment cal that nether the state nor federal constitution entrusts exclusively, to the jury.” Id. at 29 (quoting State v. Wood, $80 $.W.34 $66, 585 (Mo. 2019)). Thus, in partially but significantly, receding from Hurst v. State, Poole unequivocally states thatthe jury is constitutionally required to make only one finding: “the existence of ane or more statutory aggravating circumstances.” Poole, 45 Fla. L. Weekly $4 at 27; see also id, at 33. Applying Poole tothe case at bar, and following the requirements set out therein, this Court finds that Defendants trial and death sentence are constitutional. At trial, by finding Defendant guilty of Sexual Batery By Person Over 18 Years of Age Upon a Child Less than 12 Year of Age (Count 2) and Kidnapping (Count 3, the jury implicitly found that the capital felony in Count One was committed while Defendant was engaged in the commission of @ kidnapping and sexual battery, an aggravating factor delineated in § 921.141(5)(@), Fla. Stat, (2003), and that the vietia, Carlie Brucia, was less than 12 years of age at the time of her murder, an aggravating factor Aelineated in § 921.141(5)(), Fla. Stat. (2003). Those two facts—taken together or individually satisfy the eligibility requirement discussed in Poole. Moreover, as the sentercing judge originally held, “Each one of the aggravating factors in this case, standing alone, would be sufficient to ‘outweigh the mitigation submitted in this case."!* Thus those two aggravatirg factors are enough, " Semeocng Order 36 (emphasis added), and the Court declines to place any reliance onthe State's proposed third aggravating circumstance (Ge., felony probation) to suppor this decision To conclude, because Poole recedes from Hurst's unanimous-jury-recommendation-of- death requirement and Defendant Smith otherwise satisfies the requirements of Poole, this Court finds it appropriate to reinstate the sentence of death initially imposed on March 15, 2006, To the extent the Court’s “Order (1) Granting, In Part, and Denying, In Part, Defendant's Successive Motion to Vacate Death Sentence; (2) Vacating Death Sentence Imposed on Count 1; and (3) Scheduling Case Management Conference,” filed July 13, 2017, previously vacated Defendant's sentence of death and granted him a new penalty phase trial, that order should be vacated. Finally, the Court notes that further penalty phase proceedings are not necessary inthis matter, and the instant ease should be removed from the felony docket. Based on the foregoing, its hereby, ORDERED AND ADJUDGED that: 1. The State's Motion to Reinstate the Death Sentence, filed January 27, 2020, is GRANTED, 2, ‘The “Order (1) Granting In Par, and Denying, In Part, Defendant's Successive Motion to Vacate Death Sentence; (2) Vacating Death Sentence Imposed on Count 1; and (3) ‘Scheduling Case Management Conference,” filed July 13, 2017, is VACATED to the extent that it vacated Defendant's sentence of death and granted him a new penalty phase trial 3. Defendant's sentence of death as to Count One, which was imposed on March 15,2006, is REINSTATED, and the Sentencing Order rendered on March 15, 2006 stands 4, The Clerk of Court is DIRECTED to prepare and transmit a uniform commitment to custody ofthe Florida Department of Corrections package. ‘5. Defendant has the right to appeal within thy (30) days of rendition ofthis. on DONE AND ORDERED in Chambers in Sarasota, Sarasota County, Florida on day of April 2020, EB Lz poet Charles E. Roberts, Circuit Court Judge Attachments to Order: P 2 Jury Verdict Form, filed November 17, 2005 Judgment, filed December 5, 2005 3. Sentencing Order, filed March 15, 2006 CERTIFI 1 certify that on hisg,\_day of April 2020, copes ofthe foregoing Order were fumished bby U.S. Mail, hind delivery, and/or electronic mailto: Craig Schaeffer, Esq. Assistant State Attomey 2071 Ringling Blvd. Sarasota, FL 34237 saoroundsis2012.0ng Mare Richard Gilman, Esq Assistant Public Defender 2071 Ringling Blvd. $* Floor Sarasota, FL 34237 ‘+ Joseph Smith Do#899500 lo Sarasota County Jal Post Office Box 49588 Sarasota, Florida 3423) Ack Roos Fadisial Assistant Attachment 1 Jury Verdict Form, filed November 17, 2005 IM THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IM AND FOR SARASOTA COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff vs CASE NO. 2004cF002129NC JOSEPH SMITH Defendant VERDICT We, the jury find as follows, as to Count I of the charges (check’ one only) La. the defendant is guilty of Murder in the First Degree as charged. b. The defendant is guilty of Murder in the Second Degree, a lesser included offense. c. The defendant is guilty of Murder in the ‘Third Degree, a lesser included offense. 4. The defendant is guilty of Manslaughter. @ lesser included offense fe. The defendant is not guilty. We, the jury find as follows, as to Count IT of the charg (check one only) ‘The defendant is guilty of Sexual Battery Upon a child Lese than 12 Years of Age as charged. b, The defendant is guilty of Attempted Sexual Battery Upon a clild Lees then 12 Years of age, a lesser included offense c. The defendant is guilty of sattery, a lesser included offense. . 4. ‘The defendant is not guilty. bend LV 0 We, the jury find as follows, as to Count III of the charges. (check one only) a. The defendant is guilty of Kidnapping (with Inflictions of Bodily Harm and/or with Commission of Felony on Child) ae charged, b. The defendant is guiity of raise Imprisonment, a lesser included offense _c. The defendant is not guilty. 0 say we ar enis UTM aay of novenber, 2005, FOREPERSON OF THE JURY Attachment 2 Judgment, filed December 5, 2005 [ETE SRCUTCOURT OFTHE WEIFIUOCACCRCUTRTARGFOR) ACURED 1H OFICTA, RECS [1c WHE counrY COURT MAND FoR sarasoracounry, stoma _|[HGTRIMENT # 2O0G260059 2 PS DBVISION: CRAMNAL NTE ee eae {CASE NUMBER: 2004 CF 002129 NC eet KOREN E, USHING See TE-DEFEIGANT CLERK. THE CIRGUTY oT ‘HRAGDTA COUNTY FLORIDA STATE OF FLORIDA JOSEPH PETER SMH HERRERA Receipt #720657 STAMP FOR RECOROING Probation Veter Ccommunty Como! Viatr C)Retis! C)Resentence ‘The Detendant, JOSEPH PETER SWEITH boing parsraly before the Cout represented ty NORMAN ADAM TEBRUGGE, the attorney tocar and the State oprosorog by DEBRA RWA/ DENNIS NALES / CRAIG SCHAEFFER and having (Chock 1. Bao ed and fount GUILTY by jy Court ofthe floning crimes) ‘Appeals [}2 Entered a pon of GULTY ote folameg camels) Provson) £)3.aeredapiea NOLO CONTENDRE wine frowng cimets) AMA = Oars COUNT RIE SERENE TERRE srarure oF wowDER BES) coraues 1] WORDER THE FRGYOSGREE | BU CAL | RTF ORTRNE ‘SOTO Fou 3 RRS TR RRETINOF [Terre SE SCGREE | RTOF TNT aT SEinaston oF row on ‘SEXUAL ERTTERY BY PERSON — TOTATT ST TET mar TARA Ta (OveR tevoR UPON AcHD LESS Faow San 2508 (Check WArpicab) {anno cause bln shown wy the Dslendan shoud nol be ast gully IT IS ORDERED THAT ha ete is hereby ADJUDICATED GUILTY oth above cine) [Danthavng bean cacao ound gud of, having entered a aa of NOLO CONTENDERE or GUL, ‘egardees of acucaton, eae oF oleae relat te soual baler (2h 794), lew an asovase| andl D0), mdr (67208, ggrvats tlt (6784.05), ct acing (G32 13), or ame Fovaon robber (81235) ny ter oan spetid mn snton 335, eat Sal ‘ued to sub ood specimens (1 Sra good cause beng show IIS ORDERED THAT ADIUDICATION OF GUL BE WITHHELD. Puerto provers ot 6002960253, Fs Sates, an shay Ingo a nr Sal Fos an ean aunty a allows 1 Ostenant was convicted fr notes cnr tan capil rf ny. This len is for igual damages Inte aroun of ty oars (800) pe day of te deendents erence 1D Batt was convicted fr cop r flny This en sor Hult dameges inthe sou of wo andres nd ty tousand sare $250, 0500), ALL LIQUIDATED DAMAGE SUMS BEAR INTEREST AT THE RATE SET FORTH IN §55.03, FLORIDA STATUTES, DONE AND AREER ypuua out al Sarasota, Flor, ths 17TH day of NOVEMBER, 2005, Det TT JUGE ANDREW D OWENS FIED FOR RECORD STAN SrAnd Arron a ea ——— Se ronson am DE? ATTORNEY 2a2g¢0e |e it hover na on uscraco.onon ie Sane crn 0H OF NRY FORA es FINGERPRINTS OF DEFENDANT Tatum Zhe ‘Name SA Macs ‘aang = Ae rgeonns wong 0). COLWEM HIRE DEpury Tie HEREBY CERTIFY hat the above and foregoing fngorpsts ar the fingerprints of he Detendant, SSHEBY Per regoing ing arth thay wor placa hereon byte Defensa my presence mn opan cout is at DONE AND ORDERED in open court in Sarasota County, Floats, cor Boe, UT XOOGE Attachment 3 Sentencing Order, filed March 15, 2006 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA STATE OF FLORIDA, = cast NO, 2004CF 29 g gz JosePa r.SMITH. a Defendant. 2 Re 2 SENTENCING ORDER ‘The Defendant appeared before this Court and received a tril by jury, which ‘commenced on November 7, 2005, and concluded on November 17,2005." Thejury ‘convicted Defendant ofthe following crimes: (1) Murder in the First Degre forthe Alling of eleven-year-old, Cai Bruci; (2) Capital Sexual Battery of Carle Bri; and (@) Kidnapping of Carte Bria. The Penalty Phase was conducted from Novenber 28 through November 30, 2005. On December 1,2005, the jury recommended by avote of ten to two (10-2) tat the Defendant be sentenced to death forthe murder of Carle Brucia. The Court scheduled a Spencer Hearing” for the week of February 13, 2006.’ At the conclusion of addtional evidence presented by the defense, and ater consuling with bis attomey, the Defendant made a statement tothe Court regarding his sentence, The ‘Spencer Hearing proceedings concluded ater two days. “The Court, having heard the evidence presented in the guilt and penalty phase of ‘the tral, having heard and reviewed additonal evidence presented atthe Spencer "ay acetone on Oster 25,2005, ad conlded on Novenber 4,208, The Court wm closed on Nowenber 1,200 a nerenc of Vate's Day. 2 Sa Spencer. Sui, 65 So, 2668, 690-691 (Fa 195) » atthe request of defese counsel the Court scheduled the Spencer Hearg in Febrary, 2006,» permit {be ceeneaiorl ine prepare fo seeing, Aer defense did ot cal expert wits led in dicovey, te Court extensively quod both fee oun! the Defendant enue ht he econ onto prevent expr testimony gang tie ‘Hearing, and having received and considered the sentencing memoranda from the State ‘andthe Defendant, being fully advised ofthis Court's duty and responsiblity to give ‘individual consideration to each and every aggravating and mitigating circumstance set {orth by section 921.141, Florida Statutes, as well as each and every applicable non- statutory mitigating circumstance, and having considered this information and argements ‘presented by counsel both in favor and in opposition to the death penalty, finds as follows: BACKGROUND FACTS ‘On Sunday, February 1, 2004, at approximately 6:15 pm, eleven-year-old Cat ‘Bruci lft a girlfriend's home on Lalani Boulevard in Sarasota, Florids to walk home. ‘To reach her house on Mcintosh Road, Carte needed to walk slong Bee Ridge Road, ‘After Carlie left, Connie Arnold saw her walking on Bee Ridge Road and called Calie’s -mother, Susan Sehorpen, to lt her know that Carlie was walking home and that she was fon Bee Ridge. Concemed, Ms. Schorpen sent her husband, Steven Kanser, to pick up Carle, Mr. Kansler went to the area where Carlie was last reported seen, but he never found her, end she never atived home. Me. Kansler began searching for Carle, and afte an hour and a half of not finding ‘her, Me. Schorpen called 911 for help. An intensified search ofthe area lasted well into the night, but they could not find Carlie. On February 2,200¢, investigators retumed to the area where Carlie was last reported seen. One are of interest was a car wash parking lot on Bee Ridge Road. Law enforcement leamed that Mike Evanoff, owner of Evie's (Car Wash, had several surveillance camera installed throughout the grounds. Mr. ‘mow kiana her miintion teimony fd beer made ater a rough inven and was ‘olny dient made Evanoff viewed images from the sameras, and at 6:21 pm onthe date in question, the mages reveal a white male, with dak, short hair, and tattoos on both forearms, taking Carle by the arm and leading her away. Mr. Evanoff informed law enforcement about the images. Law enforcement immediately released the images tothe media, an an Amber Alert was issued. Almost instant, callers toa tip line began identifying the Defendant 2 the man inthe images, based upon several characteristics including his overall pearance, his tattoos, his walking gait, and other mannerisms. As a result of these leads, Detective Toby Davis interviewed the Defendant on February 3, 2004. The Defendant voluntarily answered question concerning hs activities on February 1, 2004, Although an alibi witness appeared intially to corroborate the Defendant's version of his activities on February 1, 2004, within hours, contradictions inthe Defendants story began to surface, and his alibi began to unravel, Furthermore, after the detectives finished questioning tke Defendant on February 3,2004, he was arrested for ‘unrelated drug charges resulting from a consensual search of his vehicle, and for violating ‘the terms of his probation. Despite increasing ffortsto locate Cale, including assistance from other law ‘enforcement agencies, such asthe FB. Carlie was not located, By now, she had been ‘missing for thre days. Stl, ther efforts intensified and included numerous interviews of individuals who contacted law eeforcement with information. One such individual was John Smith, the Defendant's brother. He contacted law enforcement and provided « voluntary statement to F.B.L agents on Wednesday, February 4, 2004, 2 Cane spent tng ot Connie Aoi’ Kame on amar 31,2004, ad pete day tee as welloa ‘Sana, February 1, 2004 Cae was ends with Come Arsl's dager. 3 ‘On Thursday moming, February 5, 2004, John Smith visited the Defendant atthe jail fora private meeting with is brother and mother, Patricia Davis Late that same ay, John Smith contacted one ofthe F.B.1. agents, and made arrangements to meet. At the direction of John Smith, they’ drove to church parking lt off of Proctor Road in Sarasota. Once there, they remained in their vehicle, and John Smith ecewved a telephone cll from the Defendant. The Defendant proceeded to provide is brother with specific landmarks on the church property to indicate the precise location where the body ‘of Carlie Brucia could be found. At this point, other law enforcement agents were called to the scene, and they discovered Caries body in the exact location the Defendant had described over the telephone, AGGRAVATING CIRCUMSTANCES 1. Phecapital felony was committed by « person previously convicted of «felony ‘and placed on felony probation.” (On March 6, 2003, the Defendant entre a pea of no contest to possession of cocaine, third-degree felony, in Sarasota County Case Number 2003 CF.415 NC. The ‘Cour adjuicated him gully and sentenced hm to one year of drug offender probation to ‘be fllowed by two years of regular probation, tn the pending case, the jury convicted the Defendant ofthe cine of Fint-Degree Murder, which ocred on o about February 1, 2004 “To establish this aggravating cicamstance, the State called the Defendant's probation officer, Linda Atkins, to testify and introduced a certified copy ofthe ‘Tas meeting was tot monited recorded or atended by lav enforcement o counsel. Allaangements fortis meting were made byte Defendant. “ot Sah, Pasca Davis, Surat Cou Shen's Detective Toby Davis, and two FB. agents, Leo Marines and Dasa Stet "492114160, Fla Sat Defendant’ felony conviction. The Cour finds the State has established this sggravatng factor beyond a reasonable dovbt and assign it moderate weight 2. The capital felony was committed while the Defendant was engaged in sexual ‘Battery or Kidnapping." “The Sue has proven beyond ay and every esnabe dub tht the Defendant murdered Cate Brca while wa engage in th commision ofthe cies of kidoppng her ad commiting sexual batey aunt er, Suen cameras recorded the kidapping of Cate Bri. Evidence preset at il eee that the Defendant id not now Calica that he dnt hve pemisson or consent o ake costal ofex! Following the abduction and anspor of Cai, the Defendant bound er wists sod cvetllyhernck with igaturs, He elathes wee removed fom mast of her body, od she was ef naked fom the wast down. Te Defendant mae ements indctng ead “rough sex with Cre and his semen ma discovered onthe bck of hers “Tony conclusion tat can be daw rom tse fits tht the Defendant sexy boner his cl. Wits clr that he Defeat commited hs tw cries hs Court is ot affording hs agpavatgccunstanc abit weight or "doubling" he ageing ctoumstacs because wo sere rines war commit Instead, his aggravating ccamsuos sweated aon aggravating ckometnce nis amsigndsgieank wiht 7g Py Ped Deg ing pet i ped le Se proved Sects meta hfo0sCrAE RO igen "Sevag State Teal Exhibit No, 108, When i he Defendant ade surrens family members ‘tat were molt and ecorde and evened hath id ot know Caro he ay s 3. The capital felony was commited forthe purpose of avoiding or preventing a level arrest ‘To prove this aggravating circumstance when the victim is nt law enforcement officer, the State must show beyond a reasonable doubt thatthe sole or dominant motive forthe murder was the elimination ofa witness.” This factor focuses on the motive for the murder, and it may be proved “by circumstantial evidence from which the motive for the murder may be inferred, without direct evidence ofthe offender's thought ‘procease.""* The evidence presented in this case leaves no doubt thatthe sole predominant reason thatthe Defendant killed Carlie Brucia was to ay The Defendant failed 10 conceal his identi. ‘When the Defendant kidnapped Carlie from Evie's Car Wash, he did not wear a mask or cover his name badge, which was prominently displayed on his uniform, revealing the name “Joe.” At that ime, the Defendant had no idea his ations were being filmed by surveillance cameras—he only leamed about the videotape later, Carlie had seen the Defendants face, knew his name, and could identity him.” 1b. The Defendant took most of Carle's belongings and disposed of tem. ‘When lw enforcement and the medical examines office recovered Carle's body atthe erime scene, certain items belonging to Carlie were not found with her body, ‘neluding her backpack and much ofher clothing. While the cause of death was ligature #8 goat. sa16yo), Fla Su ° See Connors Sa, 803 So, 2458, 610 (Fa. 2001 See also Wie v. Sate, 698 So. 24817 (Fa. 1997. Farina vit, 801 So, 28-44, $4(Fla 201), Se aso Joes. Sate, 748 So. 24 1012, 1027 (Fla 2000), ‘See Her. Ste, 303 So, 24 629, 649 (Fa, 2001\ defendant did ot cover i ces nd belived hat the victim ha seen hm fared being ote an expesedapechension concming ae Lig ¥ ‘Sire, 345 So 2474113 (Pa 2002fbertnee Defendant i nt ie heey om ictns us bowed ie plned fromthe bing te Ll both vite fo limite having ay wineses vale testify aginst hi), ‘ strangulation, andthe medical examiner testified that Carlie had ligatures on er wrist at some point, no ligatures were ever recovered a the crime scene. ‘During trial, the State introduced a lter written in “code” by the Defendant on ‘April 9, 2005, to his brother." A cryptanalysis expert forthe FBI deciphered the letter, ‘and testified that inthe coded letter, the Defendant admitted the backpack and clothes and disposing of them in four different dumpsters.” The Defendant further admitted that he dragged Caries body tothe location where she was later discovered, © The Defendant lied to Detective Toby Davis when intially interviewed on February 3, 2004 ‘When Detective Davis asked the Defendant questions sbou his whereabouts on February 12004 the Defendant tld series of ies. He told Detetive Davis he had visited his brother’ house that evening and denied having ben involved inthe lvduton, When he was shown sil pitre fom the videotape ofthe abduction, he said, “That looks I sme, but that's not me.” 4 The Defendant abducted Carle from one location and transported her to ‘another location to commit the sexual battery. ‘The evidence presented reveals thatthe Defendant was driving his friend's vehicle ‘on February 1, 2004, Just before the ahduction, the surveillance cameras at Evie's Car ‘Wash picked up the vehicle driving west on Bee Ridge Road, and then entering the car wash parking lot. The Defendant spoted Carlie taking a shortcut through the car wash to 1 Se Stat Trial Eat No. 128 Se Stat’ Til Exhibit No. 157. "Toe Defend’ coded nese ois ter was deciphered wo rea “I WLSH L HAD SOMTHLN IULGY TO SAY OH OK THE BACKPACK AND CLOTHES WENT IN FOUR DIFFERENT DUMPSTERS THAT MONDAY 1 CAME TO YOUR HOUSE FOR ADVISE I WENT IT LEFT (QUT IN THE OPEN TDRAGED THE BODY 10 WHERE ST WAS FOUND DESTROY THIS AFTER DECIFERING IF AND SHUT UP.” (Not: The Court did wt comer punctation spe reach her home, At tat point he made the ill-fated decision to park the car, cut her off as, she walked through the parking lt, snatch her, and transport her to another location."® ‘While the Court may never know the exact sequence of events, the Court has no doubt that this crime was initially sexually motivated. Once the Defendant finished ‘committing the sexual battery against Carlie, he was faced with deciding whether to let Carlie live or de, ‘Atthis point, Carte was completely confined by the ligatures and could offer no resistance to him. She wasno threat. As she remained defenseless, subdved, and stripped of most of her clothing, the Defendant could have walked away and left her.” He even had the option of transporting her to yet another location and dropping her oft. Instead, he made the life altering decision to kill Care. Court's Finding: Absolutely no other reason existed forthe Defendant to Kill (Carte Bruci than to avoid arrest. Based upon the facts inthis case, the Court specifically finde that the Defendants decision was not based on reaction or instint, but ‘was motivated solely by his decision to eliminate Carlie as witness.” No doubt, the Defendant realized tha fhe were caught and convicted of kidnapping and capital sexual battery, he would spend the rest of his life in prison. Inhis allocution, the Defendant told this Court that on the day he murdered Care, “{he) just wanted to die.” The evidence presented in this ease, however, reveals afar In furtherance of his plan to avoid detection, the Defendant led to law enforcement when ‘questioned about his whereabouts on February 1, 2004. “After considering te totality of factors set forth above, the Court finds thatthe State has proved this aggravating factor beyond and tothe exclusion of each and every reasonable doubt. The Court assigns this aggravating factor great weight. 4. The capital felony was especially heinous, atrocious, or cruel ("HAC"). ‘This aggravating factor focuses on the circumstances ofthe murder fom the ‘unique perspective ofthe victim: When considering this aggravating factor, the Court ‘should focus on the victim's perception of the circumstances, not on the perpetratr's.** In determining the victim's mental stat, a common-sense inference may be inferred from the circumstances.” With this in mind, the Court must now determine whether the murder was a conscienceless or pitiless crime and unnecessarily torturous to Carlie uci, "This Courts aware of case law which provides: “strangulation, when perpetrated ‘on a conscious victim, involves foreknowledge of death, extreme anxiety and fear, and 2 See Tit Sate Exhibit Non 41-43, Photograph reveling extensive srape ast Care's Body De ‘Yes opined that the inure were cated when Care's body as eagaed 2 Se Trial Sut’ Exit Nor. 128 & 157, Cade letra which Defendant amined desroying is ayidence. S921. 14190), Fi Stat. ° Se fonts Sate, 700 S024 36, 365 (Fa 1997)enal anguish and serious physic nur rng gps bt prt deny uffcant wo esublsh dhs aggro fac). See tchinon Sut, 832 So. 24983 Fla 200) Farna v. Ste, 801 So. 244, $3 Fa. 2000, Sec Bank Sate, 700 Sa 2436, 366 (Fa 1997iten-yea ol ope itn was eal bated for 20 mists prot ig shoe pal ure ound herp ted deriv mnt evened he ‘Gein sled gen. See lo Cher v. Sat, #32 So. 24750 (Fa 2002) vic el captive for "resend hours rior to eng ile during captivity the cid wat raped nd endo mind aes). ° ‘that this method of killing i one to which the factor of heinousness is applicable” and that “strangulation creates a prima facie case for this aggravating factor (HAC). a. Dr, Vega's testimony: Inattempting to conceptualize the ordeal sufered by Carte Bru atthe hands of | ‘he Defendant, the Court reliod heavily upon the testimony of Dr. Russell Vega, Medical Examiner forthe Twelfth Judicial Circuit. Dr. Vega testified that Care's death was a ‘homicide caused by ligature strangulation. Based upon the autopsy, he opined that there is a great likelihood thatthe perpetrator applied the ligature to Care's neck, while standing behind her, in a positon somewhat above her. Dr. Vega also opined that Carte hha been sexually battered He found subtle linear marks on Carlie's wrists, consistent with the application of ligatures, indicating that her hands had also been tied or bound. Dr. Vega found no ‘defensive wounds on Casle, and explained thatthe absence of the defensive wounds is scoounted for by the use of the ligatures, In other words, he explained “with [her] hands restrained... the ability to move [ber] ams in such a way as to shield [hese] from injuries... [was] impeded." Dr. Vega testified that after a ligature is applied tothe neck, loss of consciousness generally occurs rapidly, within 8-10 seconds, if the ligature is applied and held with ‘enough force to occlude the blood flow, Death from ligature strangulation, however, is not instant and generally takes 2-4 minutes to occur. Dr. Vega opined that Care was ‘conscious when the ligature was placed around her neck, and that thin ligature, the size ‘of a shoestring, was probably used, 5 Ooh Stare, 826 So, 24936, 963 (Fa 2002) ™ De Vga’ tal esimony on 1142005, In support of his opinion that Carlie was conscious when the ligature was placed around her neck, Dr. Vega relied upon the absence of other injuries, such as blunt force ‘trauma to her head, which would have left her unconscious. Further, the wrist igatures ‘suggest that she had been restrained at some point prior to te ligature being placed around her neck, b. Findings: ‘The defense has argued, “there are some murders that are worse” and that ifthe expecially heinous, atrocious, or crus! aggravating factor were to apply in this case “it ‘would apply to every first-degree murder casein the state” Frankl, this Court could not disagree more. Carlie endured unspeakable trauma, which began atthe time of her kidnapping at Eve's, Because of the surveillance cameras, Carle's abduction was literally caught on. tape, The image ofthe Defendant taking herby the arm and leading er away will, no doubt, forever be etched in our minds. Because of forensic evidence, we know the ‘unfortunate truth of what Carlie experienced thereafter. From Evie's, Carlie was transported to at least one location, possibly more, and subjected to demeaning and cruel acts including the binding ofher hands, the removal of har clothes and being forced to engage in various sex acs by a man nearly four-times her age and double her size, During those acs, Carlie was unable to fight back. AL eleven years of age, there is no doubt she was aware ofher dire predicament and that she had litle, if any, hope of survival 5 See Penal Phase Defoe Cloning Argument on 120108. > See Chav 852 So. 24730, 763 (Pla. 2002)HAAC may be oppo by be defendant's sto pio to ‘he murder ich as (1) fer abduction; (2 king away fo prevent etna or bly and (3) sen a) " Any hope of survival Cle may have clang o faded once the Defendant placed the ligature around her neck. At this time, Carle was conscious, but clearly in n0 poston to fight back, Petes worst of ll, Cte knew she was going odie” Although this Court may never know exactly how longi took for Carlito be rendered unconscious once the Defendat placed the ligature around her neck this child had already suffered unspeakable teror and physical suffering a the Defendant's hands. Her seing began atthe time ofthe abduction, continued through the sexual atery, nd throughout those final ations which ultimately caused her death. While only the Defendant knows the fll xtct of the suffering he inflicted on Ceri that evening, the evidence presented to the Court demonstrates beyond any reasonable doubt that Car's death was expecially heinous, evocious or ere. Her death was consciences, and pitiless and undoubtedly unnecessarily torturous.” “This aggravating fctorhas been proved beyond al reasonsble doubt and hasbeen assigned great weight 5. The capital felony was a homicide and was commited ina cold and caleulated ‘and premeditated manner without any pretense of moral or legal justification.” “The aggravating circumstance of cold and calculated and premeditated ("CCP") {focuses on the manner in which the homicide was committed.” CCP may be established by the totality of circumstances” 5 See Paton Sit 607 So, 24404, 09 (Fa 107 \Desyite infin of snl insaneoos fil woud, HAC propery found wien vii fred evo emote cation wok hough eld at aie, ad then dorobe, becouse tl oat ok to cco he iin’ reat fea and error mere ng he fren ic ed up to her mur SSL Neluon Stat, 748 So. 24237 (Fla, 1999); Richardson, Sate, 60 So, 241107 Fa 1992) 349211416900, Fl. Sia, 2 See Stein: Stat 632 80.24 1361 Fla. 1990. » Soe Wik Sate 698 So, 24817, 23 (1997) Planning of the Contemporancous Felonies: (on Febroary 1, 204, the Defendant borowei his en's station wagon and while diving on Bee Ridge Road spotted Cate Bruca, He quickly tamed the vehicle into Evie's Car Was, pared, ad intercepted Cari as she was making shortcut to her house. Herkidsaping was adeiberate, premeditated ac it was not an accident, caused by panic or dstes, or even an afenbought. The Defendant preyed upon youn, vulnerable victim, nd tok the necessary steps to abduct her and use her for is own sexual gatifcation. Wile the Court may not be privy to cach ad ever detail concering the timing of the evens onthe night of Cat 's abduction, rape, and murder, the pertinent details are all too clear. For the Defendant o achieve his goal of preying on this young child, he rove Carle toa emote location and tied her wrists with ligatures, which he had with him." Like the kidnapping the rape was not an accident or motivated by the need to ‘obtain more drugs. It was a deliberate act, motivated by the selfish and violent desires of the Defendant. b. Manner of Death-Ligature Sirangulaion: Daring the trial, Dr. Veg testified that death by ligature strangulation generally ‘occurs asa result ofthe obstruction or occlusion ofthe arteries, which take blood tothe ‘rain, and ofthe veins, which take blood from the head. Further, strangulation may Potentially obstruct or occlude the airways 5 See Sin State, 65280. 24 1361(Fla,1994XOne actor supporting OCP iste advance procurement of the rarer weapon) B Dr. Vega testified that his autopsy examination of Cali revealed the presence of, “crisscross marks" on back of her neck”* These marks indiate that when the Defendant strangled Carlie, he likely stood behind her kept hold ofthe ligature, and “crisscrossed” it her neck, without ever tying it. Further, to actually cause Carle's death, Dr. ‘Vega testified the Defendant would have needed to apply continuous, manual pressure to hold the ligature in place, ‘Throughout these proceedings, the defense has stressed tht with ligature strangulation, loss of consciousness generally occurs rapidly within about 8 to 10, seconds. No one has disputed this fact, What is crucial is the length of time it takes to ‘exact death through ligature strangulation. Dr. Vegas testimony clarified that dearh ‘from ligature strangulation is not instant and generally kes two to four minutes. He farther stressed that once a victim is rendered unconscious, the pressure placed around the victim's neck must be maintained to cause death; otherwise, recovery may occu, In other words, pressure must be maintained for minutes to cause death. ‘The Defendants actions were cold and calculated and premeditated and without ‘any moral or legal justification. He held Car's life in his hands, not for 8 to 10 ‘seconds, but for minutes, and as each moment passed, he made a conscious choice to slowly and methodically deprive her body ofthe blood and air necessary to sustain life.”” ‘Throughout this entire time, Carlie was no threat to him. First, he subdued her with the wrist ligatures he brought with him tothe erime scene, Next, he committed the ‘unthinkable act of strangling Carli until she was rendered unconscious. Ifever victim 1 caer examining tea mats, Dr Vege opined tere great ieltood tat Smhaplie lesue to (Gti eck wile sanding behind ber, na poston sone above et, Soe Conde Ste 480 So, 24930, 98-954 (Fl 2003); Connor v. Sate, 803 So, 24598, 611-612 (Fa 200). 4 could be described as defenseless and subdue it was Carlie Brucia During these ‘crucial moments, the Defendant had adequate time to reflect on whether to spare Carlie’s life. He had other options availble to him, but for reasons we may never know, he simply chose to ignore them. in fact, he not only chose to ignore those options, the forensic evidence reveals that he held the ligature so tight around Carle's neck that it dog {nto her flesh. He did not let go and ultimately carried out his senseless plan to end her ise’ “The Court finds thatthe State satisfied each and every element ofthe cold and calculated and premeditated aggravating cizcumstance beyond a reasonsble doubt. ‘The Court assigns it great weight. 6 Thevictim of the capital flony was a person less than twelve years of age: Carlie Jane Brucia was bor on March 16, 1992. She was only 11-yearsold on February 1, 2004, when she was brutally murdered by the Defendant. The Court finds that the State as proved this aggravating circumstance beyond a reasonable doubt and assign it great weight. "Sue Hor Sa 29, 650 Fa 2001) cour property found CCP where ite ware ‘bound and peed fro hour and unable ofr ay estes or vocation; th defendant had ‘See tane tore on i atonal chose to exo hetvetin), ‘See Hert State 603 So 24a 6S. (Heigtened premeditation demonsrated wher defendant hasan ‘oppor oe his iin go afer omiting rime bt sir sb rection choose cay Ot {beplan'o mardy, Se ao Wily v. State, 696 So. 24693 Fa 1997). ‘Se old lemct was maid Pace tne Defendant conned the mide gt Cat even ‘hough she was efeessubed, and ube o defend heel. The Defedat had ample tie 10 ‘ele abouts eons. The “acl” prong we said because the Defndat “armed” Biel with the gaia vane ofthe abductions rove Cae tare ae to comma the crimes The “Peokened pemedsation” cement wat sted becase the Defends had more tha uci inet relate Cre afer commiting the Kidnapping and sca batr. Eves after be began to apply preset Care's neck wih he gna, the Defendant could have change his mid and Care cul ve posibiy recovered sted te Defendant chose 1 carryout span © murder Cate. The fal element of "0 legal or moral jaan” has clery been proved teeare Csi was an eleven ear child who wa ound and defences when slain. See Baral Sae, 6450.24.83, 650 (Fla 2002}, ction ¥ State, (8 S0. 2485 a 1998), Sonn. 1416509, Fle St “ See ut’ Tl Exhibit No. 20. Bit Certietof Cali Jane Brac), s MITIGATING CIRCUMSTANCES. Statutory Mitigating Circumstances In the Defendants sentencing memorandum, the Defendant asserts that two statutory mitigating circumstances have been established 1. The capital felony was committed while the Defendant was unde the influence of ‘extreme mental or emotional disturbance.” “The extreme mental or emotional disturbance mitigating cicumstance has been ‘described asa condition “les than insanity but more than the emotion ofan average ‘man, however inflamed."** “The Defendant asserts that when he committed the homicide he was under the influence of an extreme mental or emotional disturbance, and relies pon his history of ‘mental and emotional problems.” Additionally, the defense argues thatthe Defendant's ‘mental issues were associated with emotional turmoil in his life and pont to traumatic ‘vents present inthe Defendants life around the time of Care's murder, suchas the loss ofhis fend, Gino Longobari who die fom an apparent drug overdose approximately cight moat eer in Jane 2003, According tothe defense, however, the largest reso inthe Defendant's fe was the fling reltionship between the Defendant and his wife andthe emotional tumail he felvathe prospetofosng his family. 1s fhe argued that the Defendant was experiencing depression during the seperation from his wife and cilren. On the day the Defendant killed Cari, the Defendants wife allegedly informed him tat she “didn’t © 9. 141(00), Fe Sun 11 See Party Sti, 180.28 606,608 (Fl. 1983) © During te sentencing roenting, he Coa admit no evdence merous eb iodcol by he dese, which deta he Defendants extenive substance bus od metal Hel isto, with ates sion ranging om 1992 Uwough ate 2003. 16 ‘want [him].""" The defense ater thatthe crimes were a direct product ofthe Defendant's “emotional distress and mental ines.” ‘Two witnesses who saw the Defendant on February 1, 2004, testified about his ‘demeanor on that day. The frst witness, Jeff Pincus, saw the Defendant a few hours before he abducted Carlie. Mr, Pincus saw the Defendant immediately ater he spoke with his former wife on the telephone, and testified thatthe Defendant may have suid, “she was making him fing crazy,” but that “he came out really not—didn’t act upsen™? ‘The defense argues, however, that during the course of that phone conversation, the Defendant leamed his wife “didn’t want [him."*° ‘The second witness, Alibiza Moctezums, testified that he saw the Defendant on the aflemoon of February 1, 2004, around 3:15 pm. The Defendant was inthe backyard of the Moctezuma’s house picking fruit. The evidence reveals thatthe Defendant etumed to their house around 8:15 pm, In the interim, the Defendant left and committed the horrific crimes against Carlie, Incomprehensibly, during this return vst, the Defendant spoke with Mr. Moctezuma about repairs to his vehicle for approximately 35 to 45 minutes. During this time, Mr. Moctezuma did not notice anything unusual concerning the way the Defendant was acting ortalking ‘Throughout these proceedings, the Court has viewed the images of the abduction of Carlie Brucia. The Defendant's actions can only be described as purposeful and eliberate, and he continued to act witha systematic plan and scheme throughout the * Soe Tramrp died 21406 Defendant's Statement in open cour. Note: The Defendant’ wife dil ot {gra wil rin the etocing proceeding See Tria Tsinony of ff Pinca, 1/08/2005 (pass nei). 2 See Teaser date 2/1406 Deledat’s Statement np our. » See Tal Teisony of Abin Moctruma on 1/906. ” course of commiting his crimes against Cari. He took whatever steps he pereived as necessary to avoid detection, Thove steps included driving Calico a remote location, iling er, dragging er body into the woos, removing personal effects from her body, including the iatre, and disposing of several items in separate dumpsters. The Defendant even tok adiional steps such as ying to law enforcement officers conceming his iavolvement in Carle's abduction. “The Defendant asserts that photographs taken of apparent “tack masks” on the Defendant after his arest demonstrate that he was using drugs on the day of Carle's death, This arguments speculative, The Defendant could have used drugs after he killed Carle or before the time of is arest. ‘While the Defendant may sufe from cen ment illeses or emotional problems, no record evidence has been presented to this Court to demonstrate that a the time the Defendant killed Cari he was under he influence of an extreme mental or motional disturbance. Further, the two witnesses who saw the Defendant ight around the time of Care's kidnapping noticed nothing unusual about his behavior, even though hh had apparently ceived “devastating” news fom his wife. Although the Defendant ‘may have suffered depression and sadness during the marital separation, the defense has failed to demonstrate how tis condition rises tothe lve of an extreme mental or ‘motional disturbanoe under Florida law.” 3 See Johnson . Ste, 60 So, 24 637, 646 (Fa. 19), 2 See Cond Sit, 860 So, 14930, 936 Fla. 2003) Difcules in mariage ad symptoms of depression didnot aque exreme mesial orenetonl dsurbanet). 8 ‘To establish ths mitigating circumstance, the defense did not utilize expert testimony. In fact, the Defendant waived the right to present the testimony of mental ‘health expets retained on his behalf ‘Upon consideration, there i no evidence that reasonably establishes the existence ofthis statutory mitigating circumstance; however, the Court finds that evidence supporting the existence ofthe non-statuory mitigating circumstance of having a history cof mental illness has been established, and i is discussed below. 2. The capacity ofthe Defendant to appreciate the criminality of his conduct orto conform his conduct tothe requirement ofthe law was substantially impaired:* (Case law concerning this mitigating circumstance provides the following guidance conceming its applicaos ‘Meal disturbance, which interferes with but doesnot obviate the defendant's lnowledge of right and wrong may be considered as a mitigating circumstance, Like [extreme menial or emotional disturbance), this circumstance i provided to protect that peson who, while legally answerable for his actions, may be ‘Seservng of sone mitigation of sentence because of hit mental sate” ‘The Defendant asserts that he was substantially impaired asa result ofhis ten-year

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