Petition for Writ of Certiorari — Charles Grover Brant, Petitioner v. Florida

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APPENDIX G

, - Filing#65733194E-Filed 12/21/2017 11:27:10PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH, FLORIDA

STATE OF FLORIDA,

Plaintiff,

CASE NO. 04-CF-12631

CHARLES GROVER BRANT,

Defendant.

SUCCESSIVE MOTION PURSUANT TO FLA. R. CRIM. PRO. 3.851 TO VACATE

SENTENCE OF DEATH

CHARLES GROVER BRANT, Defendant in the above-captioned action, respectfully

moves this Court for an Order, pursuant to Fla. R. Crim. P. 3.851, vacating and setting aside the

sentence of death, imposed upon him by this Court. In support thereof, Mr. Brant, through counsel,

respectfully submits as follows:

PROCEDURAL HISTORY

The Honorable William Fuente, Circuit Judge, Thirteenth Judicial Circuit, Hillsborough

County, entered the judgments of conviction and sentence under consideration. (Attachment A).

Mr. Brant was charged by indictment on July 14, 2004 with one count of first degree

premeditated murder, one count of sexual battery, one count of kidnapping, one count of grand

theft of a motor vehicle, and one count of burglary of a dwelling for the murder of Sara Radfar on

July 2, 2004.

Upon advice of counsel, Mr. Brant pled guilty to all charges on May 25, 2007. On August

13, 2007, the trial court adjudicated Mr. Brant guilty of all charges. The penalty phase began with

jury selection on August 20, 2007. On August 22, 2007, Mr. Brant waived his right to a penalty

phase jury. The trial court conducted a bench trial on August 22-24,2007. The trial court sentenced

Mr. Brant to death on count one. The court found the following aggravators and gave both great

weight: (1) the murder was committed during the course of a sexual battery and, (2) the murder

was especially heinous, atrocious and cruel (HAC).

The court found the following mitigating circumstances; (1) no significant prior criminal

activity/little weight; (2) emotional, mental, and physical abuse during childhood, diminished

intellectual function, diminished impulse control due to drug dependency, and as a result, his

capacity to conform his conduct to the law was substantially impaired, and sexual obsessive

disorder/moderate weight; (3) age of 39 at the time of the crime and a crime free life until the time

of the crime/little weight; (4) remorse/little weight; (5) cooperation with law enforcement,

confession, guilty plea, and waiver of jury penalty recommendation/moderate weight; (6)

borderline verbal intelligence/little weight; (7) family history of mental illness/little weight; (8)

not a sociopath or psychopath and does not have an anti-social personality disorder/little weight;

(9) diminished impulse control due to methamphetamine abuse and exhibition of periods of

psychosis, recognizing drug problem and seeking help, and methamphetamine use before, during,

and after the crimes/moderate weight; (10) diagnosed with chemical dependence and sexual

[

obsessive disorder, and has symptoms of attention deficit disorder/moderate weight; (11) good

father/little weight; (12) good worker and craftsmen/little weight; (13) reputation for non

violence/little weight.

Mr. Brant filed a timely motion for post- conviction relief which he amended several times.

In his final amended motion, Brant raised seven claims: (1) ineffective assistance of counsel during

the guilt phase; (2) ineffective assistance of counsel during the penalty phase; (3) counsel was

ineffective for failing to prepare for jury selection; (4) counsel was ineffective for failing to present

the testimony of a neuropharmacologist on the issue of the interrogation's effect on Brant; (5)

cumulative ineffective assistance; (6) Brant will be incompetent at the time of execution; and (7)

the State withheld evidence that Brant's half-brother was a confidential informant in violation of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d215 (1963). Brant v. State, 197 So. 3d

1051, 1063 (Fla. 2016). Brant ultimately withdrew Claim Four. Id.

The post-conviction court denied his Motion. Mr. Brant timely appealed raising claims: 1)

trial counsel were ineffective for advising him to plead guilty without consulting a jury expert or

researching jury decision-making, and without Brant receiving any benefit for his plea; 2)

trial

counsel rendered ineffective assistance during the penalty phase by failing to conduct a reasonable

mitigation investigation, consult with an expert on methamphetamine, consult with and present

positive prison adjustment testimony, and present images from Brant's PET scan and additional

experts to describe the findings from the PET scan, and conduct an adequate background and

mental health investigation; 3) failure to conduct an adequate investigation and thereby render

deficient performance by advising Brant to waive a penalty phase jury, or, failing to advise him at

all thereby effectively abandoning him; 4) State violated Brady, and, 5) appellate counsel failed to

appeal the denial of Brants motion to dismiss the kidnapping charge and challenge the Florida

Supreme Court’s proportionality review.

While Mr. Brants appeal of this Court’s Order was pending at the Florida Supreme Court,

the Supreme Court of the United States issued Hurst v. Florida. Mr. Brant timely sought

supplemental briefing before the Florida Supreme Court, which the court granted. Ultimately, the

court denied all of Mr. Brants claims, including his claim that his sentence of death was

unconstitutional under the Sixth Amendment in light of Hurst. Brant v. State, 197 So. 3d 1051,

1063 (Fla. 2016). Mr. Brant timely filed a Petition for Writ of Habeas Corpus in the federal District

Court for the Middle District of Florida, Brant v. Jones, etal., Case No: 8:16-cv-2601-T-23-MAP.

That case remains pending and has been administratively closed pending exhaustion of Mr. Brant’s

Hurst claims.

(A)

JUDGMENT AND SENTENCE UNDER ATTACK

Mr. Brant was convicted of one count of first degree murder, one count of sexual battery, one

count of kidnapping, one count of grand theft of a motor vehicle, and one count of burglary of a

dwelling. Mr. Brant was sentenced to death on the first degree murder charge; he was sentenced

to concurrent life sentences for sexual battery, kidnapping, and burglary of a dwelling; he was

sentenced to five years in prison for grand theft of a motor vehicle. A copy of the judgment and

sentence is attached to this motion as Exhibit A

(B)

PRIOR ISSUES RAISED AND DEPOSITION ON APPEAL

The following issues were raised in Mr. Brant’s direct appeal:

1 .Whether Mr. Brant’s death sentence was proportionate. This claim was denied.

2.Whether Mr. Brants guilty pleas were given knowingly, intelligently, and voluntarily.

This claim was raised sua sponte by the Florida Supreme Court, but ultimately denied.

The following claims were raised in Mr. Brant’s initial motion for post-conviction relief

pursuant to Fla. R. Crim. Pro. 3.851:

1. Ineffective Assistance of Counsel. Guilt Phase (Jury expert/Garrett Coleman C.I.).

denied.

2. Ineffective assistance of Counsel - Penalty Phase (failure to conduct reasonable

mitigation investigation: brain damage, multi-generational family-history, community

and parenting risk factors, adapt to prison, sexual homicide risk factors, neurimaging, psychopharmacologist, Garrett Coleman’s Cl status) - denied.

3. Ineffective Assistance of Counsel- Waiver of penalty phase jury, failure to inform

about extent of mitigation therefore waiver not knowing - denied.

4. Ineffective Assistance of Counsel- Supression of Confession- failure to consult with a

psychopharmacologist - withdrawn.

5. Cumulative Error - denied.

6. Prosecution withheld Brady evidence/ Giglio violation (Garrett Coleman Cl status) - denied..

Mr. Brant raised the following issues on direct appeal of the denial of his post-conviction

motion:

1. Counsel was ineffective in failing to research jury decision-making and thus misadvising

Brant to enter a guilty plea based on an uninformed belief that by pleading guilty, Brant

was less likely to incur the jury’s anger. Counsel was further deficient in failing to

investigate mitigation prior to advising Brant to enter a plea. But for counsel’s deficient

performance, Brant would not have pled guilty.

2. Counsel rendered ineffective assistance in the penalty phase by failing to investigate and

present mitigation which prejudiced Brant.

3. Counsel’s performance in failing to investigate and prepare for jury selection and develop

and inform Mr. Brant of mitigation in the penalty phase fell below prevailing professional

norms. But for counsel’s deficient performance, Mr. Brant would have exercised his right

to a sentencing phase jury.

4. The State violated Brady v. Maryland in failing to disclose Garret Coleman’s status as a

Cl at trial. Further, Brant was denied a full and fair hearing on this claim when the state

continued to refuse to disclose evidence which would have substantiated Garret’s status

as a CL

Cumulative Error.

Brant’s Eighth Amendment right against cruel and unusual Punishment will be violated

as Brant may be incompetent at the time of execution.

, 136 S.Ct. 616,619, 193

7. Following the Issuance of Hurst v. Florida,---- U.S.

L.Ed.2d 504 (2016), Mr. Brant sought supplemental briefing arguing that his sentence of

death had been unconstitutionally obtained in violation of the Sixth Amendment and that

Section 775.082, Florida Statutes, Mandates a Life Sentence Following Hurst.

The Florida Supreme Court rejected all of Mr. Brant’s claims, including a finding that

Hurst does not apply to death sentences where the defendant waived a jury. Brant v. State, 197

So. 3d 1051 (Fla. 2016).

Reasons Claims Listed Below were not Previously Raised

On the basis of the new Florida law arising from Mosley v. State, Bevel v. State, Hurst v.

State, and the enactment of Chapter 2017-1, Brant files this successive motion to vacate and

presents his claims for relief arising from the resulting new Florida law. On January 12, 2016,

Hurst v. Florida, 136 S. Ct. 616 (2016), issued. The decision declared Florida’s capital

sentencing scheme unconstitutional. On March 7, 2016, Chapter 2016-13 was enacted. It was the

legislature’s first effort to rewrite Fla. Stat. § 921.141 in attempt to cure the constitutional

deficiencies.

On October 14, 2016, the Florida Supreme Court (“FSC”) issued its decision in Perry v.

State, 210 So. 3d 630 (Fla. 2016), and declared the 10-2 provision contained in Chapter 2016-13

to be unconstitutional under Hurst v. Florida. In Perry, the FSC concluded that the Sixth and the

Eighth Amendments required a unanimous jury verdict recommending a death sentence before

one could be imposed. As the FSC explained in Hurst, “Not only does jury unanimity further the

goal that a defendant will receive a fair trial and help to guard against arbitrariness in the ultimate

decision of whether a defendant lives or dies, jury unanimity in the jury's final recommendation of

death also ensures that Florida conforms to ‘the evolving standards of decency that mark the

progress of a maturing society,’ which inform Eighth Amendment analyses.” Hurst v. State, 202

So. 3d 40, 72 (Fla. 2016) (internal citations omitted). Accordingly, the jury must unanimously find

that sufficient aggravators exist to justify a death sentence and that the aggravators outweigh the

mitigating factors present in the case. Finally, if a unanimous death recommendation is not

returned, a death sentence cannot be imposed. Thus, a life sentence is mandated if one or more

jurors vote in favor of a life sentence due to a desire to be merciful, even if the jury unanimously

determined that sufficient aggravators existed and that they outweighed the mitigators that were

present. Perry v. State, 210 So. 3d 630, 640 (Fla. 2016), quoting Hurst, 202 So. 3d at 59 (“‘the

penalty phase jury must be unanimous in making the critical findings and recommendation that

are necessary before a sentence of death may be considered by the judge or imposed.’”) See also

Hurst, 202 So.3d at 62, n. 18.

On December 22, 2016, the FSC decided Mosley v. State, 209 So. 3d 1248 (Fla. 2016).

After conducting a Witt1 and James2 analysis, the Court decided that Mosley was entitled to the

retroactive effect of Hurst and the error was not harmless. Therefore, Mosley’s death sentence was

vacated and he was entitled to a new penalty phase. Id. at 1284.

On March 13, 2017, Chapter 2017-1 was enacted, which finally created a constitutional

capital sentencing scheme in Florida. Florida law further evolved on June 15, 2017 when the

Florida Supreme Court decided Bevel v. State, 221 So. 3d 1168 (Fla. 2017). Bevel’s conviction

Witt v. State, 387 So.2d 922 (Fla. 1980).

2 James v. State, 615 So.2d 668 (Fla. 1993).

became final after Ring3, therefore Bevel was entitled to retroactive Hurst relief. Id. at 1175.

Further, Bevel acknowledges that Hurst has affected the prejudice analysis of Strickland* claims.

See id. at 1179. Although Bevel’s jury recommendation was unanimous, his death sentence was

vacated because the “unpresented evidence of substantial mitigation” could have swayed one juror,

which “would have made a critical difference.” Id.

This successive motion is filed within one year of the issuance of Mosley v. State, Bevel v.

State, and the enactment of Chapter 2017-1, all of which have established new Florida law. The

claims below could not have been raised previously because these claims arise from changes in

Florida law caused by these opinions and the statutory amendment. These claims were not ripe

until now because their basis did not exist before these changes in Florida law. Accordingly, this

motion is timely.

(C)

NATURE OF RELIEF SOUGHT

Mr. Brant respectfully asks that his sentence of death be vacated.

(D)

CLAIMS FOR WHICH AN EVIDENTIARY HEARING IS SOUGHT.

CLAIM 1

MR. BRANT COULD NOT KNOWINGLY HAVE WAIVED HIS RIGHTS

TO A UNANIMOUS JURY VERDICT BECAUSE THAT RIGHT DID NOT

YET EXIST. THEREFORE, HIS JURY WAIVER WAS NOT KNOWING

AND VOLUNTARY AND WAS OBTAINED IN VIOLATION OF MR.

BRANTS FIFTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS

UNDER THE UNITED STATES' CONSTITUTION AND HIS

3 Ring v. Arizona, 536 U.S. 584 (2002).

4 Strickland v. Washington, 466 U.S. 668 (1984).

CORRESPONDING RIGHTS UNDER THE DECLARATION OF RIGHTS

OF THE FLORIDA CONSTITUTION,.

This claim is evidenced by the following:

All other allegations and factual matters contained elsewhere in this motion are fully

incorporated herein by specified reference.

Mr. Brant acknowledges that the Florida Supreme Court has held that capital

defendants who waived their right to a penalty phase jury are not entitled to Hurst relief. Mullens

v. State, 197 So. 3d 16 (Fla. 2016). However, this Court should not deny Mr. Brant’s motion based

on Mullens, because Mr. Brant has substantial arguments not previously raised in his own case at

the Florida supreme Court and not considered in Mullens.

3. A defendant cannot waive a right not yet recognized by the courts. Halbert v. Michigan,

545 U.S. 605, 623 (2005); see also Management Health Systems, Inc. v. Access Therapies, Inc.,

No. 10-61792-CIV, 2010 WL 5572832 (S.D. Fla. Dec. 8,2010) (“It is axiomatic that a party cannot

waive a right that it does not yet have.”) Cru ..Lowes Home Centers, Inc., No. 8:09-cv-1030T-30MAP, 2009 WL 2180489, at *3 (M.D. Fla. Jul. 21, 2009) (same); cf. Menna v. New York, 423

U.S. 61 (1975) (guilty pleas do not “inevitably waive all antecedent constitutional violations” and

a defendant can still raise claims that “stand in the way of conviction [even] if factual guilt is

validly established”).

4. In Halbert, the United States Supreme Court held that where the appellate court

considers the merits of the claim in ruling on a motion for leave to appeal, a defendant has a

constitutional right to appointed counsel in filing the motion for leave to appeal. 545 U.S. at 61819. Michigan argued that even if the defendant had a constitutional right to appointed counsel he

[

had waived that right when he pled nolo contendere. Id. at 623. The Supreme Court found,

however, that the defendant did not waive his right to counsel because he “had no recognized right

to appointed appellate counsel he could elect to forgo.” Id.

5. The holding of Mullens is contrary to Halbert. Mullens holds that there is no Hurst error

where the defendant waived a jury recommendation at sentencing. Mullens, 197 So. 3d at 39.

Prior to Hurst, however, a Florida defendant could not have waived /fwrst-required jury factfinding

because that right was not yet recognized by the courts, nor could he have waived his right to a

unanimous jury verdict under the Eighth Amendment because that right did not yet exist in

Florida.. The pre-Hurst defendant could only waive the right to a jury recommendation of life or

death.

6. At the time of Defendant’s death sentencing proceeding, before Hurst, Florida’s

unconstitutional capital-sentencing scheme permitted only the judge, not the jury, to find facts that

would expose a defendant to a death sentence. Defendant, therefore, waived only the right to a

jury recommendation, not to his then-unrecognized Eighth Amendment constitutional right to a

unanimous jury fact-finding prior to the imposition of a sentence of death. Under Halbert,

Defendant could not have waived his right to jury fact-finding or a unanimous jury verdict.

7. Even if this Court concludes that a pr e-Hurst defendant could waive Hurst relief,

Defendant’s waiver was not knowing, voluntary, and intelligent, Mullens, 197 So. 3d at 39(waiver

of jury sentencing must be “knowingly, voluntarily, and intelligently made”); Trease v. State, 41

So. 3d 119, 123 (Fla. 2010) (waiver of post-conviction counsel and post-conviction proceedings

must be “knowing, intelligent, and voluntary”), because it did not consider the possibility that

Florida’s death-sentencing scheme would be found unconstitutional, see Rodgers v. Jones, 3:15cv-507-RH, ECF No. 15 (N.D. Fla. Aug. 24, 2016) (federal district court order noting Defendant’s

waiver was pre-Hurst and did not address “the possibility that the entire Florida sentencing scheme

would be held unconstitutional”).

7. Mr. Brant pled guilty to first degree murder. After one attempt to secure a jury for the

sentencing phase of his trial which resulted in a “debacle,” Mr. Brant opted to waive his right to

a non-unanimous jury recommendation.

8. Hurst v. Florida was a decision of fundamental significance that has resulted in

substantive and substantial upheaval in Florida’s capital sentencing jurisprudence. The Sixth

Amendment right enunciated in Hurst v. Florida, and found applicable to Florida’s capital

sentencing scheme, guarantees that all facts that are statutorily necessary before a judge is

authorized to impose a death sentence must be found by a jury beyond a reasonable doubt, pursuant

to the capital defendant’s constitutional right to a jury trial. Hurst, 136 S. Ct. at 621. Hurst v.

Florida held that “Florida’s capital sentencing scheme violates the Sixth Amendment . . . .” It

invalidated Fla. Stat. §§ 921.141(2) and (3) as unconstitutional. Under those provisions, a

defendant who had been convicted of a capital felony could be sentenced to death only after the

sentencing judge entered written fact findings that: 1) sufficient aggravating circumstances existed

that justify the imposition of a death sentence, and 2) insufficient mitigating circumstances existed

to outweigh the aggravating circumstances. Hurst, 136 S. Ct. at 620-21. Hurst v. Florida found

Florida’s sentencing scheme unconstitutional because “Florida does not require the jury to make

critical findings necessary to impose the death penalty,” but rather, “requires a judge to find these

facts.” Id. at 622. On remand, the Florida Supreme Court held in Hurst v. State that Hurst v. Florida

means “that before the trial judge may consider imposing a sentence of death, the jury in a capital

case must unanimously and expressly find all the aggravating factors that were proven beyond a

reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death,

unanimously find that the aggravating factors outweigh the mitigating circumstances, and

unanimously recommend a sentence of death.” Hurst, 202 So. 3d at 57.

‘'Hurst applies retroactively to defendants whose sentences became final after the United

States Supreme Court issued its decision in Ring.'’'’ Peterson v. State, 221 So. 3d 571, 585 (Fla.

2017). Brant’s sentence became final on February 10,2009, when the time for filing a petition for

writ of certiorari had expired. Therefore, Brant is clearly entitled to the retroactive application of

Hurst and Perry. Where a constitutional rule is substantive, the Supremacy Clause of the United

States Constitution requires a state postconviction court to apply it retroactively. See Montgomery

v. Louisiana, 136 S. Ct. 718, 731-32 (2016).

In Hurst v. State, the court announced not one, but two substantive constitutional rules. First,

the court held that the Sixth Amendment requires that a jury decide whether aggravating factors that

have been proven beyond a reasonable doubt are sufficient in themselves to warrant the death penalty

and, if so, whether those factors outweigh the mitigating circumstances. Hurst, 202 So. 3d at 53.

Second, the court determined that the Eighth Amendment required that a jury unanimously determine

that the evidence presented at the penalty phase warrants imposition of a death sentence. Id. at 62.

In Hurst v. State, the court stated that error under Hurst v. Florida “is harmless only if there

is no reasonable possibility that the error contributed to the sentence.” Hurst, 202 So. 3d at 68.

Moreover, ‘“the harmless error test is to be rigorously applied,’” and “the State bears an extremely

heavy burden in cases involving constitutional error.” Id. (quoting State v. DiGuilio, 491 So. 2d

1129,1137 (Fla. 1986)). Therefore, as to Hurst error, “the burden is on the State, as beneficiary of

the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the

facts necessary for imposition of the death penalty did not contribute to [the defendant’s death

sentence in this case.” Id. at 68 (emphasis added).

Brant asserts unequivocally that the Hurst error is not harmless in his case and any decision

to the contrary is a violation of his rights. Brant recognizes that Mullens v. State, 17 So. 3d 745

(Fla. 2016), suggests defendants who waived a jury are not entitled to Hurst relief under the Sixth

Amendment, and that he has previously raised that claim. However, no court has yet addressed

Brant’s argument that he could not have knowingly waived his Eighth Amendment right to a

unanimous fact—finding jury, since that right did not yet exist.

Specifically, our highest Court held that a waiver of a constitutional right must be

“knowingly and intelligently” relinquished. Johnson v. Zerbst, 304 U.S., at 464-465, 58 S.Ct., at

1023. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality

opinion of Black, J.). Therefore, a waiver of rights that does not exist and is thus less than knowing

cannot withstand constitutional scrutiny. Halbert v. Michigan, 545 U.S. 605, 623 (2005).

Anything less than Hurst relief for all post -Ring defendants leads to disparate treatment

among Florida capital defendants. Ensuring uniformity and fairness in circumstances in Florida’s

application of the death penalty requires full retroactive application of Hurst and the resulting new

Florida law. After all, “death is a different kind of punishment from any other that may be imposed

in this country,” and “[i]t is of vital importance ... that any decision to impose the death sentence

be, and appear to be, based on reason rather than caprice ...” Gardner v. Florida, 430 U.S. 349,

357-58 (1977). The FSC has granted Hurst relief in many cases that were more egregious than

Brant’s. See e.g., Cole v. State, 221 So. 3d 534 (Fla. 2017) (two victims buried alive and seven

aggravating factors found); Calloway v. State, 210 So. 3d 1160 (Fla. 2017) (five men were shot in

the head execution style and six aggravating factors found); Johnson v. State, 205 So. 3d 1285

(Fla. 2016) (three counts of first-degree murder where one of the victims was a law enforcement

officer and five aggravating factors found); Bradley v. State, 214 So. 3d 648 (Fla. 2017) (murder

of Brevard County Sheriffs Deputy, Barbara Pill, and five aggravating factors found); Pasha v.

State, 42 Fla. L. Weekly S569 (Fla. May 11, 2017) (defendant murdered his wife and another

victim by cutting their throats and four aggravating factors found); Williams v. State, 209 So. 3d

543 (Fla. 2017) (defendant was convicted of the kidnapping, robbery, and first degree murder of

an 81 year old woman and the jury unanimously found four out of five aggravating factors on a

special verdict form); Davis v. State, 217 So. 3d 1006 (Fla. 2017) (two counts of first-degree

murder, five aggravating factors found for one murder and three for the other); Snelgrove v. State,

217 So. 3d 992 (Fla. 2017) (elderly couple brutally beaten and stabbed to death and five

aggravating factors found); and Hertz v. Jones, 218 So. 3d 428 (Fla. 2017) (two counts of first-

degree murder and six aggravating factors found). As all of these cases were more aggravated and

exhibit facts that are more heinous, the only way to distinguish Brant’s is that he waived his right

to a jury.

However, Brant’s situation is unique and an individualized harmless error review will show

)

that the Hurst error was not harmless. Particularly in light of the compelling mitigation presented

)

in post-conviction. There is no doubt that Brant himself would not have waived his right to a jury

and a properly instructed jury would not have unanimously returned a death recommendation in

light of the overwhelming mitigation presented in post-conviction.

In the wake of Hurst v. Florida and the resulting new Florida law, any new Florida jury

under Caldwell v. Mississippi, All U.S. 320 (1985) must be correctly instructed as to its sentencing

responsibility. Individual jurors must know that they each will bear the responsibility for a death

sentence resulting in a defendant’s execution since each juror possesses the power to require the

imposition of a life sentence simply by voting against a death recommendation. See Perry, 210 So.

3d 630. As was explained in Caldwell, jurors must feel the weight of their sentencing responsibility

if the defendant is ultimately executed after no juror exercised his or her power to preclude a death

sentence. Indeed because the jury’s sense of responsibility was inaccurately diminished in

Caldwell, the USSC held that the jury’s unanimous verdict imposing a death sentence in that case

violated the Eighth Amendment and required the resulting death sentence to be vacated. See

Caldwell, All U.S. at 341.

It is likely that at least one juror would not join a death recommendation if Brant was

granted a resentencing in front of a jury because the proper Caldwell instructions would be

required. The probability of one or more jurors voting for a life sentence increases when a jury is

told a death sentence could only be authorized if the jury returned a unanimous death

recommendation, and that each juror had the ability to preclude a death sentence simply by

refusing to agree to a death recommendation. See Caldwell, All U.S. at 330 (“In the capital

sentencing context there are specific reasons to fear substantial unreliability as well as bias in

favor of death sentences when there are state-induced suggestions that the sentencing jury may

shift its sense of responsibility to an appellate court.”). Where the jurors’ sense of responsibility

for a death sentence is not explained or is diminished, a jury’s verdict in favor of a death sentence

violates the Eighth Amendment and the death sentence cannot stand. Caldwell, 472 U.S. at 341

(“Because we cannot say that this effort had no effect on the sentencing decision, that decision

does not meet the standard of reliability that the Eighth Amendment requires.”).

Furthermore, society’s evolving standards of decency demand that Brant be granted Hurst

relief, as the jury vote has evolved from a bare majority, to ten-to-two, to unanimous. In Hurst,

the FSC ruled that on the basis of the Eighth Amendment and on the basis of the Florida

Constitution, the evolving standards of decency now require jury “unanimity in a

recommendation of death in order for death to be considered and imposed.” 202 So. 3d at 61.

Quoting the USSC, the Court in Hurst noted “that the ‘clearest and most reliable objective

evidence of contemporary values is the legislation enacted by the country's legislatures.’” 202

So. 3d at 61 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002) (quoting Penry v. Lynaugh, 492 U.S. 302,331,109 S. Ct. 2934,106 L. Ed. 2d 256 (1989)).

Then from a review of the capital sentencing laws throughout the United States, the FSC in Hurst

found that a national consensus reflecting society’s evolving standards of decency was apparent:

The vast majority of capital sentencing laws enacted in this country provide the

clearest and most reliable evidence that contemporary values demand a defendant

not be put to death except upon the unanimous consent of the jurors who have

deliberated upon all the evidence of aggravating factors and mitigating

circumstances.

202 So. 3d at 61. Accordingly, the Court in Hurst concluded:

the United States and Florida Constitutions, as well as the administration ofjustice,

are implemented by requiring unanimity in jury verdicts recommending death as a

penalty before such a penalty may be imposed.

202 So. 3d at 63. See Hurst, 202 So. 3d at 73 (Pariente, J., concurring); see also Powell v.

Delaware, 153 A.3d 69 (Del. 2016).

A capital defendant’s life no longer lies in the hands of a judge or a bare majority; it lies in

the hands of twelve individuals. What constitutes cruel and unusual punishment under the Eighth

Amendment turns upon considerations of the “evolving standards of decency-that mark the

progress of a maturing society.” Atkins v. Virginia, 536 U.S. 304, 312 (2002). “This is because

‘ [t]he 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.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Furman v.

Georgia, 408 U.S. 238, 382 (1972)). According to Hurst v. State, the evolving standards of

decency are reflected in a national consensus that a defendant can only be given a death sentence

when a penalty-phase jury has voted unanimously in favor of the imposition of death. The USSC

has explained that the “near-uniform judgment of the Nation provides a useful guide in delimiting

the line between those jury practices that are constitutionally permissible and those that are not.”

Burch v. Louisiana, 441 U.S. 130, 138 (1979). The near-uniform judgment of the states is that

only a defendant who a jury unanimously concluded should be sentenced to death, can receive a

death sentence. As a result, those defendants who have had one or more jurors vote in favor of a

life sentence are not eligible to receive a death sentence. This class of defendants, those who have

had jurors formally vote in favor a life sentence, cannot be executed under the Eighth

♦

Amendment. Therefore, Brant must be granted relief and the opportunity to make a constitutional

decision regarding his waiver of a constitutional jury sentencing. It is arbitrary that a defendant

■who was convicted of triple murders with an eleven-to-one vote receives relief, while Brant is

denied the same opportunity. See Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (“In light

of the non-unanimous jury recommendation to impose a death sentence, we reject the State’s

contention that any Ring- or Hurst v. Florida-related error is harmless.” Id. “We also reject the

State’s contention that Franklin’s prior convictions for other violent felonies insulate Franklin’s

death sentence from Ring and Hurst v. Florida.'’’’ Id.). To find that the Hurst error was harmless

and deny this right to Brant would be manifest injustice and a violation of his equal protection

rights. See U.S. Const, amend. XIV.

Conclusion

Notwithstanding the insufficient colloquy, Brant cannot waive a constitutional right that

did not yet exist under Florida law but that should have been afforded to him and every capital

defendant. Now that a unanimous jury is required under the Eighth Amendment to sentence a

defendant to death, the conversations and assessments between counsel and capital defendants

change dramatically. Moreover, the colloquy required by a court in cases of waivers will also

evolve. Hurst impacts an attorney’s strategy and decision-making throughout the trial, including

the decision whether to waive a penalty phase jury. No longer will the jury’s role in determining

death-eligibility be advisory; the jury will make the ultimate decision of whether the defendant’s

life will be spared. The new constitutional statute changes the harmlessness analysis because the

landscape of voir dire and death qualification, pre-trial motions, opening and closing arguments,

investigation and presentation of evidence in mitigation of a death sentence, challenging and

arguing against evidence in aggravation, and jury instructions have to change so that a capital

defendant is afforded a constitutional trial in accordance with the Sixth and Fourteenth

Amendments.

As the FSC explained in Hurst v. State, all of the findings necessary for the imposition of

a death sentence must be unanimously found by the jury:

Hurst v. Florida mandates that all the findings necessary for imposition of a death

sentence are “elements” that must be found by a jury, and Florida law has long

required that jury verdicts must be unanimous. Accordingly, we reiterate our

holding that before the trial judge may consider imposing a sentence of death, the

jury in a capital case must unanimously and expressly find all the aggravating

factors that were proven beyond a reasonable doubt, unanimously find that the

aggravating factors are sufficient to impose death, unanimously find that the

aggravating factors outweigh the mitigating circumstances, and unanimously

recommend a sentence of death. We equally emphasize that by so holding, we do

not intend to diminish or impair the jury's right to recommend a sentence of life

even if it finds aggravating factors were proven, were sufficient to impose death,

and that they outweigh the mitigating circumstances.

Hurst, 202 So. 3d at 57-58. Lynch never had the constitutional benefit of the option of a penalty

phase jury returning a verdict making findings of fact. There is no way of knowing what

aggravators, if any, a jury unanimously could have found proven beyond a reasonable doubt,

if the jurors unanimously found the aggravators sufficient for death, or if the jurors

unanimously found that the aggravating circumstances outweighed the mitigating

circumstances. Further, each individual juror would be instructed that they individually carried

the immense responsibility of whether a death sentence was authorized or a life sentence was

mandated. The jurors would be told that they each were authorized to preclude a death sentence

simply to be merciful. These are all important considerations for a conversation regarding

A19

{

waiving a jury. Reviewing courts cannot speculate as to what the findings or vote would be if

Brant was allowed a constitutional jury sentencing.

Brant requests that this Court vacate his sentences of death and order a new penalty phase

proceeding.

CONCLUSION AND RELIEF SOUGHT

Based on the foregoing, Mr. Brant requests the following relief, based on his prima facie

allegations showing violation of his constitutional rights: 1) a “fair opportunity” to demonstrate

that his death sentence stands in violation of the Fifth, Eighth and Fourteenth Amendments, Hurst

v. Florida, Mosley v. State, Bevel v. State, and Chapter 2017-1; 2) a reevaluation of his previously

presented Strickland, Brady, Giglio, and newly discovered evidence claims in light of the new

Florida law that would govern at a resentencing in order to enhance the reliability of any resulting

death sentence; 3) an opportunity for further evidentiary development to the extent necessary; 4)

leave to supplement this motion should new claims, facts, or legal precedent become available to

counsel; and 5) on the basis of the reasons presented herein, Rule 3.851 relief vacating Brant’s

sentence of death and granting a penalty phase proceeding, or, in the alternative, the imposition of

life sentences.

Respectfully Submitted,

Is/ Marie-Louise Samuels Parmer

Marie-Louise Samuels Parmer

Florida Bar Number 0005584

Email: marie@samuelsparmerlaw.com

Samuels Parmer Law Firm, P.A.

P.O. Box 18988

Tampa, Florida 33679

Tel: (813) 732-3321

Fax: (813)831-0061

CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851(e)

Pursuant to Fla. R. Crim. P. 3.851(e)(2)(A) and (e)(1)(F), undersigned counsel certifies that

the contents of this successive motion have been discussed fully with Charles Grover Brant, that

undersigned counsel has complied with Rule 4-1.4 of the Rules of Professional Conduct, and that

this successive motion is filed in good faith.

/s/ Marie-Louise Samuels Parmer

Marie-Louise Samuels Parmer

Florida Bar Number 0005584

Email: marie@samuelsparmerlaw.com

Samuels Parmer Law Firm, P.A.

P.O.Box 18988

Tampa, Florida 33679

Tel: (813)732-3321

Fax:(813) 831-0061

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was filed using the Florida Courts efiling

Portal

)

which

has

electronically

capapp@mvfloridalegal.com:

Ron

served

the

Office

Gale,

Assistant

the

Attorney

General,

State

Attorney,

mailprocessingstaff@sao 13th.com , and the Honorable Michelle Sisco, Circuit Court Judge,

siscodm@fliudl3.org. on this 21st day of December, 2017.

/s/Marie-Louise Samuels-Parmer

MARIE-LOUISE SAMUELS-PARMER

Fla. Bar No. 0005584

Copies provided by U.S. Mail to:

)

Charles Brant

DOC #588873

Union Correctional Institution

P. O. Box 1000

Raiford, FL 32083

)

EXHIBIT 1

(

I -

IN THE CIRCUIT COURT, 13TH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

TR2

DIVISION

04-CF-012631

CASE NUMBER

2901092212

rp.

OBTS NUMBER

STATE OF FLORIDA

BRANT, CHARLES, GROVER

DEFENDANT

JUDGMENT

BEING PERSONALLY' BEFORE)

SsDc™IpSe™Sk?m™RATTORNEY FRASER, ROBERT

PRIVATE ATTORNEY TERRANA, RICK ,

REPRESENTED BY ASSISTANT STATE ATTORNEY

THE ATTORNEY OF RECORD AND THE STATE

HARB, JALAL, A, AND HAVING

Entered a plea of Guilty to the following crime(s):1,2,3,4,5

COUNT CRIME

DEGREE

COURT

CRIME ACTION DATE

OFFENSE

STATUTE

NUMBER

-MURD1000

MURDER IN THE FIRST DEGREE (PR 78204 1

-RAPE3001

SEX. BATT. (DEAD. WEA. OR FORC 794011 31A2 -KIDN2000

78701

COMMIT FELONY

KIDNAPPING

812014 2C6 -THEF2201

GRAND THEFT MOTOR VEHICLE

BURGLARY OF DWELLING WITH ASSA 81002 12A -BURG1100

FC ADJG

FL ADJG

FP ADJG

FT ADJG

FP ADJG

13-AUG-2007

beincr shown why the defendant should not be adjudicated guilty,

And no cause being show5e^dant is hereby adjudicated guilty of the above

it is ordered that the

crime(s).

BLOOD SPECIMENS.

Jordan Pat

5tert

ofthe^Circiirt Court Hillsborough County

PAGE 01

688

STATE OF FLORIDA

CASE NUMBER: 04-GF- Q

VS-

Rr A/»-r P Jaguar (r,

DECi 0 3 TOOli

PAT FRANK

CLERK OF CIRCUIT COURT

defendant

FINGERPRINTS OF DEFENDANT

1. Right Thumb

2. Right Index

6. Left Thumb

7. Left Index

3. Right Middle

5. Right Little

4. Right Ring

Fingerprints taken b

NAME

I HEREBY CERTIFY that the above and foregoing are the fingerprints of the defendant,

, and that they were placed thereon by the defendant in my

presence in open court this date.

ND ORDERED in open court in Hillsborough County, Fjorid^this

____ _,2o^.

day of

intxr:P

<r-

JUDGE

689

IN THE CIRCUIT COURT, 13TH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

TR2

DIVISION

04-CF-012631

CASE NUMBER

2901092212

OBTS NUMBER

STATE OF FLORIDA

BRANT, CHARLES, GROVER

DEFENDANT

[

CHARGES/COSTS/FEES

A sum of $49.00 pursuant to Section 938.03 (1),. Florida Statutes

(Crime Compensation Trust Fund)

A sum of $1,00 pursuant to Section 938.03(1), Florida Statutes

(Crime Compensation Trust Fee)

S2 00 Dursuant to Section 938.15, Florida

■. »

Statutes (Criminal Justice Education by Municipalities and Counties)

A sum of $65.00 pursuant to Section 939.185, Florida Statutes

(Circuit Criminal Additional Court Costs)

A sum of $200.00 pursuant to Section 938.05(1)(A), Florida

Statutes (Criminal Justice Trust Fund)

A sum of $3.00 as a Court Cost pursuant to Section 938.01,

Florida Statutes (Assessments - Florida [Criminal Justice Trust Fund]).

DONE AND ORDERED IN HILLSBOROUGH COUNTY, FLORIDA, THIS 30TH DAY OF November 2007

JUDGE

PAGE 03

630

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

SENTENCE

AS TO COUNT(s) : 1

the defendant^'being'personally before this court, accompanied by the

DEFENDANT'S ATTORNEY OF RECORD, PRIVATE ATTORNEY

FRASER, ROBERT

K^SSSnSas- -

AND

PROVIDED BY LAW AND NO CAUSE BEING

And the Court having on

until this date.

SHOWN...........___................. .......................

13-AUG-2007 deferred imposition of sentence

TT TS THE SENTENCE OF THE COURT THAT THE DEFENDANT :

Is sentenced to death and is hereby committed to the custody of

the Department of Corrections until that sentence is came

PAGE 04

691

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

THE FOLLOWING

__________ _____ OTHER PROVISIONS---------------- --------------MANDATORY/MINIMUM^ PROVISION (S) APPLY TO THE SBOTENCE_IMPOSED_: _ _

It is further ordered that the **«*£*£ *£"£*5 before

total of 3 Years 5 Months as

imposition of this sentence.

Count 1: STIPULATED

JAIL CREDIT:

PAGE 05

692

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

.......................... SENTENCE

AS TO COUNT(s) : 2,3,5

BEFORE THIS COURT, ACCOMPANIED BY THE

DEFENdS°^ATTORNEY O^RECORD, PRIVATE ATTORNEY FRASER, ROBERT

AND

™Sl25?*£ TO SETSKVS

PROVIDED BY LAW AND NO CAUSE BEING

And the Court having on

until this date.

SHOULD NOT BE SENTENCED AS

SHOWN

13-AUG-2007 deferred imposition of sentence

SENTENCE OF

THAT

IT IS THE SENTENCE

Ob THE

itu. COURT

cugtody

ofTHE

the DEFENDANT

Department of Corrections

for

Is hereby committed to the

term of Natural Life.

PAGE 06

693

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

OTHER PROVISIONS

21C TH (DUNT (S)

[

* 2

THE FOLLOWING MANDATORY/MINIMUM PROVISION(S) APPLY TO THE SENTENCE IMPOSED

JAIL CREDIT:

defendant shall be allowed a

It is further ordered that the

credit for time incarcerated before

Years

Months

total of

imposition of this sentence.

Count 2: STIPULATED

IT IS FURTHER ORDERED THAT THE SENTENCE FOR THIS COUNT SHALL RUN CONCURRENT

TO THE SENTENCE SET FORTH IN THE FOLLOWING COUNTS: 1

PAGE 07

634

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

Q4-CF-Q12631

2901092212

.OTHER PROVISIONS

AS TO COUNT(s) : 3

THE FOLLOWING MANDATORY/MINIMUM PROVISION(S) APPLY TO THE SENTENCE IMPOSED ^

It is further ordered that the defendant shall be allowed a

total of 3 Years 5 Months as credit for time incarcerated before

imposition of this sentence.

Count 3: STIPULATED

JAIL CREDIT:

IT IS FURTHER ORDERED THAT THE SENTENCE FOR THIS COUNT SHALL RUN CONCURRENT

TO THE SENTENCE SET FORTH IN THE FOLLOWING COUNTS: 1,2

PAGE 08

695

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

__ _________________ ________ OTHER PROVISIONS....... ................................. ............... ..

AS TO COUNT{s) : 5

FOLLOWING

MANDATORY/MINIMUM

PROVISION (S) APPLY TO THE SENTENCE

THE

■■

It is further ordered• that the defendant shall be allowed a

credit

for

time

incarcerated

before

Years

Months

total of

imposition of this sentence.

Count 5: STIPULATED

JAIL CREDIT:

IT IS FURTHER ORDERED THAT THE SENTENCE FOR THIS COUNT SHALL RUN CONCURRENT

TO THE SENTENCE SET FORTH IN THE FOLLOWING COUNTS: 1,2,3

PAGE 09

696

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

: TR2

: 04-CF-012631

: 2901092212

■ SENTENCE •

AS TO COUNT(s) : 4

THE DEFENDANT, BEING PERSONALLY BEFORE THIS COURT, ACCOMPANIED BY THE

DEFENDANT’S ATTORNEY OF RECORD, PRIVATE ATTORNEY FRASER, ROBERT

TERRANA, RICK

PRIVATE ATTORNEY

THE COURT HAVING GIVEN

AND HAVING BEEN ADJUDGED GUILTY HEREIN, AND

AND

TO OFFER MATTERS IN MITIGATION OF

THE DEFENDANT AN OPPORTUNITY TO BE HEARD

DEFENDANT

SHOULD NOT BE SENTENCED AS

SENTENCE, AND TO SHOW CAUSE WHY THE

SHOWN

PROVIDED BY LAW AND NO CAUSE BEING

And the Court having on

until this date.

13-AUG-2007 deferred imposition of sentence

H hereby cSi?ted°LT?LC?SL™of™LD?epa?^ent of Corrections for a

- terra of:

5 Years

(

PAGE 10

697

DEFENDANT BRANT, CHARLES, GROVER

DIVISION

CASE NUMBER

OBTS NUMBER

TR2

04-CF-012631

2901092212

OTHER PROVISIONS

AS. TO COUNT (s) : 4

THE FOLLOWING MANDATORY/MINIMUM PROVISION{S) APPLY TO THE SENTENCE IMPOSED :

It is further ordered that the defendant shall be allowed a

total of 3 Years 5 Months as credit for time incarcerated before

imposition of this sentence.

Count 4: STIPULATED

JAIL CREDIT:

IT IS FURTHER ORDERED THAT THE SENTENCE FOR THIS COUNT SHALL RUN CONCURRENT

TO THE SENTENCE SET FORTH IN THE FOLLOWING COUNTS: 1,2,3,5

IN THE EVENT THE ABOVE SENTENCE IS TO DEPARTMENT OF CORRECTIONS, THE SHERIFF

OF HILLSBOROUGH COUNTY,. FLORIDA, IS HEREBY ORDERED AND DIRECTED TO DELIVER

THE DEFENDANT TO THE DEPARTMENT OF CORRECTIONS AT THE FACILITY DESIGNATED

A BY THE DEPARTMENT TOGETHER' WITH A COPY OF THIS JUDGEMENT AND SENTENCE AND

ANY OTHER DOCUMENTS SPECIFIED BY FLORIDA STATUTE

THE DEFENDANT IN OPEN COURT WAS ADVISED OF THE RIGHT TO APPEAL FROM THIS

SENTENCE BY FILING NOTICE OF APPEAL WITHIN 30 DAYS FROM THIS DATE WITH THE

CLERK OF THIS COURT AND THE DEFENDANT'S RIGHT TO THE ASSISTANCE OF COUNSEL IN

TAKING THE APPEAL AT THE EXPENSE OF THE STATE ON SHOWING OF INDIGENCY.

- DONE AND ORDERED IN HILLSBOROUGH COUNTY, FLORIDA, THIS 30TH DAY OF November 2007

‘V

JUDGE

PAGE 11

698

EXHIBIT 2

THIRTEENTH JUDICIAL CIRCUIT COURT

HILLSBOROUGH COUNTY, FLORIDA

CRIMINAL DIVISION

STATE OF FLORIDA

■ >J

filed

DOV 3 0:20117

VS.

CASE NO.

OM^'WUKaflT

CHARLES B. BRANT

DIVISION

E (TD-2)

SENTENCING ORDFP

i^A ku

“ 4 ** 2004 * «*- of fua degree murder,

? ml J f31 ba“ery’

,teft "* a"d ^ ** assault or battery, which he

v^j

5! jffvfj™1"611 °” 1 ^ 2004' ^ ViCtim °f Uk offenses is Sara Radford. A Grand Jury

*>Xj;

^ra for those offenses on 14 July 2004

••'IcjgKNW

'■ *iP*

'^--s

■ ; i..u n.'.a C3*.

D QZ O

The State filed its notice of intent to seek the death penalty

on 2 September 2004.

The State iIS represented by Fatal Harb, Esq. Defendant is

represented by Robert

Fraser, Esq. for the penalty phase, and by Rick Ten-ana, Esq. fo

r the guilt phase,

After engaging in discovery and pretrial motions, Defendant pled guilty

on 25

May 2007 to all counts, open, without benefit of any plea agreement with the State. He

specifically reserved his right to appeal the dispositive issue in the Court

’s pretrial order

denying a Fla.R.Crim.P. 3.190(c)(4) motion to dismiss the kidna

p count.

On 13 August 2007 the Court adjudicated Defendant guilty

, and on 20 August

2007 the parties and the Court atte

nipted, unsuccessfully, to empanel a penalty phase jury

for an advisory sentence.

On 22 August 2007 Defendant advised the C

ourt that he wished to waive his right

10 a penalty phase jury advisory sentence. The Court conducted

a colloquy and accepted

his waiver. The Court did not insist on a i

a jury advisory verdict as it could have. See State

Paee I of 44

640

v. Carr, 336 So.2d 358 (FUl 1976); Sired v. State, 580 So.2d 450 (Fla, 1991); and

Mohammed v. State, 782 So.2d 343 (Fla. 2001).

Penalty Phase Proceeding

The penalty phase began on 22 August 2007 and finished on 24 August 2007.

The State presented evidence of the facts of the offenses, which subsumed in part the

evidence relating to its proposed aggravating circumstances, and additional evidence of

, other proposed aggravating circumstances.

The State also presented victim impact evidence by way of several letters and

photographs in State Exhibits 27, 79, 80, and 81. Lina Vartanian, the victim’s cousin.

read certain victim impact letters into the record on 23 August 2007.

The Court will not consider this evidence in the weighing process.

Defendant presented evidence of his proposed mitigating circumstances by direct

examination of witnesses he called to testify, by offering certain documents in evidence,

and by cross examination of witnesses the State called to testify.

The State offered in rebuttal, the testimony of Dr. Donald Taylor, who had

examined Defendant pursuant to Fla.R.Crim.P. 3.202, and two (2) transcribed prior

sworn statements of Garrett Coleman, Defendant’s half brother, to which Defendant

stipulated

On 8 October 2007 the Court conducted a Spencer v. State, 615 So.2d 688 (Fla.

1993) hearing at which Defendant presented additional evidence in mitigation.

Defendant elected to not testify at either the trial or the Spencer hearing.

Pane 2 of 44

641

The parties presented the aggravating circumstance evidence and the mitigating

circumstance evidence to an extent out of order.

Some of the witnesses provided

testimony relevant to both issues.

The Court directed counsel to submit sentencing memoranda to include

authorities and arguments relating to aggravation and mitigation. Both counsels timely

did so.

The Court will summarize the evidence and arguments and authorities in detail,

and because this was a Bench proceeding with State and defense witnesses being called

out of order, the Court will, where appropriate, italicize the mitigation matters.

The aggravating circumstances proposed by the State in its memorandum are:

The capital felony was heinous, atrocious, or cruel. § 921.141(5)(h), Fla.

Stat.

The capital felony was committed while engaged in the commission of

sexual battery, burglary, or kidnap. § 921.141(5)(d), Ha. Stat.

The capital felony was committed to avoid or prevent lawful arrest (to

eliminate a witness). § 921.141(5)(e), Fla. Stat.

The capital felony was committed for pecuniary gain. § 921.141(5)(f),

Fla. Stat.

The capital felony was committed in a cold, calculated, and premeditated

manner without any pretense of moral or legal justification. §

921.141(5)0), Fla. Stat.

Defense counsel concedes that the State’s evidence established and proved,

beyond a reasonable doubt, the aggravating circumstance of “heinous, atrocious, or

cruel,” and the aggravating circumstance of “while engaged in the commission of a

felony,” but argues that the Court should not give them great weight, and additionally

argues that the State did not prove, beyond a reasonable doubt, the aggravating

642

Page 3 of 44

circumstances of “for pecuniary gain” or “to avoid or prevent lawful arrest,” or “cold,

calculated, and premeditated,” and that the Court should so find and not consider or

weigh them.

The mitigating circumstances proposed by the Defendant in his memorandum are:

He suffered an abusive childhood, has impaired intellectual functioning,

reduced impulse control, and a drug dependency, which collectively

served to substantially impair his ability to conform his conduct to the

requirements of the law. § 921.141(6)(f), Fla. Stat.

He is not a sociopath or a psychopath, and does not suffer from antisocial

personality disorder. § 921.141(6)(h), Fla. Stat.

He had poor impulse control and was not able to make sound decisions

because of methamphetamine abuse, and suffered periods of psychosis due

to such abuse at and around the time of the offenses. § 921.141 (6)(h), Fla.

Stat.

He suffered from chronic and recurring major depression and sexual

obsessive disorder, and exhibited symptoms of attention deficit disorder.

§ 921.141 (6)(h), Fla. Stat.

He is a good father. § 921.141(6)(h), Fla. Stat.

He is a good worker and craftsman. § 921.141(6)(h), Fla. Stat.

He has a reputation for being peaceful and non-violent. § 921.14 l(6)(h),

Fla. Stat.

He is remorseful. § 921.141(6)(h), Fla. Stat.

He cooperated with law enforcement officers first by trying to turn himself

in to authorities, then by voluntarily accompanying officers to the station

house while not under arrest, then when interrogated by ultimately

confessing to the charged offenses, and finally by pleading guilty rather

than requiring the State to prove his guilt at a jury trial. § 921.141(6)(h),

Fla. Stat.

J-

He has borderline verbal intelligence. § 921.141(6)(h), Fla. Stat.

His family has a history of mental disorders. § 921.141(6), Fla. Stat.

■j

Page 4 of 44

643

His drug abuse and dependency were not the result of recreational drug

use, rather, were the result of a desire to be able to work longer hours. §

921.141(6), Fla. Stat.

The State concedes that most of the proposed mitigating circumstances have been

established by the evidence, but argues that the Court should give them little or only

moderate weight, and further argues that some of the proposed mitigating circumstances

were not established by the evidence, and that the Court should so find.

Plea Colloquy

The factual basis recited by the prosecutor during the 25 May 2007 guilty plea, to

which Defendant conceded, demonstrated that:

(

The Defendant lived in a house close to Ms

Radfar’s residence, and that at some time prior, he and his

wife lived in that same apartment. On 1 July 2004 in the

evening hours while his wife and children were at a movie,

Defendant went to Ms Radfar’s residence and managed to

get inside where he killed Ms Radfar by strangulation and

suffocation. He used his hands, a plastic bag, a dog leash,

an electrical cord, and stockings

Law enforcement officers found Ms Radfar’s naked

body in her shower with the water pouring over her body.

Vaginal swabs showed Defendant’s DNA in the collected

semen.

Law enforcement officers questioned Defendant on

4 July 2004 and he admitted having vaginal intercourse

with Ms Radfar; that he entered her residence because he

wanted to take photographs of tile work he had done to the

apartment; that when she came out of the bathroom he

grabbed her and threw her on a bed and raped her without

her consent, and that she resisted by words and acts.

The Defendant forcibly, secretly, and by threat,

confined and abducted and imprisoned the victim with

intent to inflict bodily harm and to terrorize her.

At a time when he thought the victim was dead and

while searching the residence, the victim got up and

Page 5 of 44

844

attempted to go out the door. He grabbed her, took her

back to the bedroom and suffocated and choked her to

death. He put her body in the bathroom and under the

shower in an effort to clean her up. She was hiccupping.

When law enforcement officers entered her

residence, they found cleaning materials* and later found

her Bronco vehicle near the residence

The Defendant assaulted and battered the victim in

her residence, which he entered under the pretense of

taking pictures of tile work.

After killing Ms Radfar, Defendant went home and

asked his wife to cut his hair. Law enforcement officers

searched Defendant’s garbage and found incriminating

items of evidence, including the victim’s car and house

keys, and the victim’s debit card.

Defendant returned to the victim’s residence the

following day to clean up, and avoided being detected by

law enforcement officers by going out the back door when

they arrived at the scene.

Defendant initially gave untruthful statements to

investigators, including that he had seen a person leaving

the scene of the offenses.

Law enforcement officers interviewed Defendant in Orange County on 4 July

2004 and recorded the session, which the State transcribed. After the interview they

arrested him and thereafter booked him into the Hillsborough jail on 7 July 2004. The

State did not offer into evidence the recorded statement or the entire content of the

statement. Defendant offered the entire recorded statement. The statement contains

evidence that supports aggravation and evidence that supports mitigation.

V..

645

Page 6 of 44

The substance of his statement to the law enforcement officers, relevant to

aggravating and mitigating circumstances, is as follows:

*7 hurt that poor girl [crying]

"I've been praying for her for two days ... [sobbing] ...

that God let her go home...

How did you kill her?

Strangulation

What did you use?

I don’t know, just some wires

What else did you use?

I guess my hands

Where did you put her after you strangled her?

Bath tub

Prior to killing her, did you have sex with her?

Yes

Was it against her will?

Yes

Were you in her home prior to her coming home?

How did that lead up to getting into her home?

She came over ... I told her I needed pictures of the

floors ... for my portfolio, so she let me in

What did you do once you were inside her house?

I took pictures of the floor and then ... and I

grabbed her... in the bathroom

I don’t know what she was wearing

I just grabbed her and pulled her out of the

bathroom and threw her on the bed

What was she saying?

She said ... when I was done, all she said was all I

had to do ... all I had to do was ask

How did you have sex with her - vaginally or anally?

Vaginal, once, I don’t know how long

646

Page 7 of 44

And then what did you do?

Then I put the plastic bag, think she was gonna ... it

would ... she would suffocate.

Where did you get that from?

The other bedroom

When you went into the other bedroom to get the plastic

bag, what was she doing? Was she just lying there? Had

you already choked her?

She was just lying there naked? She didn’t try to run?

No. Not...

What did she say?

She didn’t say anything. I tied her mouth up ...

with a stocking. So I stuck a sock in her mouth and ...

After you went back into the bedroom and got this

plastic bag and attempted to put it oyer her head, what

did you do then?

I don’t know. I’m trying to think. I started looking

around the house. That’s when she jumped up from the

bed, ran to the front door and then I grabbed her, took her

back into the bedroom and suffocated her. Then I

suffocated her ... with my hand ... over her mouth and

nose.

How long did you keep her in that position? A long

time? Short time?

I don’ know how long it was

After you did that, then what did you do?

Took her into the bathroom and then she was ...

Was she dead already then?

She kept hiccupping or something. I don’t know,

but it looked like she was dead, so that's when I grabbed

the cords and used them to ..,

Where did you get the leather dog leash from?

Off the floor ... I think the bedroom.

647

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Where did you get the heater pad from?

The other bedroom floor ... I don’t remember

Where you had sex with her or the other bedroom?

No, the other one, the other one

Were you panicking? I mean why were you grabbing

all of these things to put around her neck?

I don’t know, I just don’t know ... she just kept

struggling or wouldn’t die or ...I don’t know

So you put her in the bath tub ... what did you do then,

after all this stuff is around her neck?

I don’t know. I washed her down. Tried to wash

everything off of her ... with just water.

What did you do then?

Cried ...in between the two bedrooms and the door

... and the bathroom door,

What did you do after that?

I don’t know. About twenty minutes to dark, so I

put the other clothes on ... her clothes ... whatever clothes

was in the closet... and a towel over my head. I jumped in

the Bronco. Then I drove around that part of it. By the

time it was dark, I got out and then I walked back to my

house.

Where did you park her car?

I don’t know ... Friendship Trail, the little dirt area.

How did you leave her house?

Through the front door

Did you ever go back into her house again?

Yes. The next day, right before the officer got there

I wiped my prints. Trying to wipe off the most stuff I

could. I started thinking about things. I had touched and

this and that. I was trying to wipe everything off.

Did you try to make it look like a burglary?

No.

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Did you open the back window?

When the officer came to the door that’s when I

went out the back window, jumped over the fence, and ran

inside.

Were you in the house when the cops came to the

house?

Just got in there and was trying to clean up and

that’s...

Let me clarify « • • in your initial statement • »« you

described a man in a yellow rain coat with a hood • • •

was that a fictitious story?

Yes

When did you put all the stuff in your trash cans?

I don’t know ... when I got back from the Bronco

when I parked the Bronco and came back.

Did she expect you?

Yes. She came to my house because I was

supposed to take pictures of the floor .. . that’s what

originally was going to do ... And just something ...

Did you wear a condom?

Did you ejaculate in her?

Yes

Do you have a key from when you used to live there?

During this time, was your wife at movies with

children?

Yes

Did you ask your wife to do something?

Yes - cut my hair, because I had lice ... nothing to

do with altering my appearance

Did you send your wife to movies on purpose, so you

could do this?

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[

Do you have any questions?

It torments me every day [crying]. I tried and tried.

I keep doing more drugs and more drugs and ... it just

controls me. It gets harder and harder [sobbing]. I hurt

everybody. I hurt that girl.

/ hurt that poor girl, my wife, I hurt my family.

[sobbing]

Is there anything else you want to say?

That I’m sorry for hurting that girl and hurting her

family and just seeing her family there crying and Steve. /

don’t what made me do it [crying], I just don’t know.

The State also offered into evidence numerous photographs and items of physical

evidence, to many of which Defendant did not object, and to others of which Defendant

did object, primarily on the ground of lack of relevance to any proposed aggravating

circumstance. The Court sustained some defense objections and over-ruled others, and as

to still others, the Court received the objected-to exhibit into evidence with the

understanding that the Court would not consider an objected-to exhibit in its weighing

process if it determines it is not relevant to any proposed aggravating circumstance.

Many of the State’s exhibits served only to establish the scene of the crimes and are not

relevant or helpful to the issues this Court must analyze.

Specifically, Court received in evidence certain photographs, including State

Exhibits 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, and 59. Most are

photographs-of the deceased as she was found in her tub, and are relevant to two of the

five proposed aggravating circumstances - “heinous, atrocious, or cruel,” and “while

engaged in a sexual battery, burglary, or kidnap.” They also include a close view of the

The CD of the interview was not played in court for the court reporter to attempt

to capture for the record; rather, defense counsel introduced the CD and a copy of a

stipulated redacted transcript [in compliance with the Court’s order in limine] of same as

defense exhibits 13 and 14 for the Court to consider in mitigation. Hence, the interview

will not be contained in the trial transcript.

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deceased’s face in her tub; a view of the deceased with the plastic bag over her face and

ligatures around her neck; a view of the deceased’s face with a ligature around her neck;

a view of the back of the deceased’s head showing the nylon stocking knotted at the back

of her neck; a view of the right side of the deceased’s face after the bag and ligatures

were removed; a view of the left side of her neck; a view of a bruise under her left breast

area; a view of two minor puncture wounds; a view of bruising on the back of her left

upper arm; a view of injuries to the back side of her left hand; a view of bruising on the

back of her right upper arm; a picture of the nylon ligature; a picture of the heating pad

electrical cord ligature; and a picture of the dog leash ligature. These are relevant and the

Court will consider them.

The Court will sustain in part Defendant’s objections to State’s Exhibits 2,3,4,6,

7,9, 10, 11, 12, 13, 14, 15, 16, 24,28,29, 30,31,32, 33, 34, 35, 36, 37, 38, 39,60,61,

62, 63, 64, 65, 66, 67, 69, 70, 71,72, 73, and 74, which consist of photographs and other

items of physical evidence, as not relevant to any aggravating circumstance. They are

relevant to establish the circumstances of the offenses, since the Court did not hear

evidence during a trial, and the Court will receive and consider them, for that limited

purpose.

The witnesses testified as follows.

Melissa McKinney, Defendant’s former wife, called by the State, testified that she

married Defendant in 1991 and that they divorced in 2004. They have two sons, Seth and

Noah, They at one time lived in Ms. Radfar’s house. On 1 July 2004, a Thursday, she

worked during the day and took the children to a movie in the evening. Defendant did

not appear to her to be under the influence of drugs that afternoon or when she returned

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from the movies in the evening, and he did not act abnormally in any way. Before they

went to bed he asked her to cut his hair because of his concern for a lice problem, which

she did. He normally wanted his hair long. He went to Orlando to his mother’s house

Friday afternoon unexpectedly.

On further examination by Mr. Fraser Ms. McKinney described that when she met

Defendant in Bible College he wanted to be a minister and start a church. During their

marriage he discussed his abusive stepfather with whom he wanted very much to have a

relationship. Also during their marriage they separated eight or nine times, and he used

marijuana and ecstasy, and most recently methamphetamine, about 6 months before the

murder. He used methamphetamine at least weekly, which would allow him to stay

awake for four to five nights a week without sleep, after which he would “crash. ” While

using this drug, he would be cheerful, and when coming off of it he would be irritable and

snappy. During approximately the six weeks period before the murder he was using the

drug, and developed a habit of talking to himself.

He was good with his children and coached little league at one time.

During approximately the six months period before the murder, she and

Defendant engaged in sex games. During intercourse he would hold her hands above her

head and tie her up, and on other occasions he would sneak in and sexually assault

her. She did not object initially, until he became too rough and hurt and bruised her.

When she protested, he would relent, but he continued to “surprise ” her in much the

same manner, and would hide in the apartment and "assault ” her. On one such occasion

she called 911 because she did not know it was her husband "assaulting" her while

masked, until he pulled off the mask.

Their daily sexual relationship reached the point

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where it

consisted of “normal” consensual sexual intercourse and frequent not-

consensual "rough’' sexual intercourse.

On 30 June 2004, Wednesday, Defendant

"attacked" her by surprise by hiding in the bedroom and throwing her on the bed face

down

and attempting to bind her hands and attempting to put a sock in her mouth. He

pulled her pants down. She was able to get away and go the bathroom. She stayed in the

bathroom

the entire night. The next morning when she asked him why he had done Hand

told him he would have to stop, he responded that he didn't do anything. She threatened

to call the police. She knew he was using methamphetamine during this incident, and

had been up for several days.

Dr. Jacqueline Lee, an associate medical examiner, called by the State, examined

the victim at the scene of the homicide. She had a slightly tom plastic bag over her head

and face which was held in place by several ligatures and a leather dog leash, a heating

pad cord, and a nylon stocking wrapped around her neck. She had bruises on the front

and right side neck, left check, right jaw, right scalp, left shoulder, left breast, right

buttocks, right upper arm, right forearm, left forearm, left hand, left wrist, right knee, and

left thigh, all of which were inflicted while alive, and some of which are defensive

injuries. Dr. Lee opined is that the victim was attacked from behind, and that the blunt

trauma injuries to her face, trunk of body, and head, were

was

painful.

None of the injuries

life threatening, and none was deep. The cause of death was strangulation and

suffocation as a result of the plastic bag over head held in place with a ligature. Dr. Lee

did not have an opinion as to how long it took for the strangulation to render the victim

unconscious, and conceded that it could have taken as little as seven to fourteen seconds.

She found no forensic evidence to suggest that during the initial attack, just before she

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got up and walked to the door, she was unconscious. She further opined that the victim

lived through some of the attack.

John Hess, HI, a minister called by Defendant, was a bible student with

Defendant in Virginia in the early 1990's.

He provided the Court with copies of

Defendant’s grades while a student, which were relatively good. In his application to

attend the school, Defendant acknowledged prior drug use.

Several years later,

Defendant called Mr. Hess seeking help because he had again gotten involved in drugs

and wanted to turn his life around.

James Harden, a fellow student of Defendant at Bible School called by Defendant,

testified that Defendant lived with him for about three months when he was dating

Melissa.

He was respectful and attended church regularly.

Mr. Harden visited

Defendant at the jail after he was arrested. He would reminisce about his sons and

become very emotional.

Steve Alvord, a former co-worker of Defendant called by Defendant, described

him as very smart with respect to mechanical abilities. He was a fast learner and did not

need supervision working on elevators. During jail visits, Defendant expressed that he

was sorry for the situation and wished that these things had not happened; that he wished

he were back working with Mr. Alvord.

Christi Esqinaldo, a Hillsborough County Sheriffs Office detective called by the

State, located the victim’s Bronco vehicle, impounded it, and took into evidence several

items, She participated in the recorded interview of Defendant on 4 July 2004.

Thomas Rabeau, a former volunteer Chaplain at the Hillsborough County Jail

called by Defendant, visited with Defendant weekly after his incarceration in 2004

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approximately 150 times,

They almost always discussed forgiveness ... Defendant’s

forgiveness from himself because he can’t forgive himself for what he did; forgiveness

from God for what he did; and from his family. During the visits. Defendant cried a lot

and expressed remorse over the loss of his family and for everything that happened.

Defendant expressed that because what he did is so hideous, he does not believe that he

can forgive himself; that his ex-wife can forgive him; that his parents can forgive him; or

that anyone can forgive him for what he did. Defendant demonstrated to him how he

killed the victim - by putting an arm around her neck in a strangling hold.

Frank Losat, a Hillsborough County Sheriffs Office detective called by the State,

participated in the 4 July 2004 interview of Defendant in Orange County. He described

the interview as follows.

[

The Defendant initially told other deputies or detectives

that he had seen a man running from the victim’s

apartment, but during the interview admitted that he

assaulted and killed the victim in her home.

summarized the incriminating portions contained in the

recorded interview, He testified that the Defendant

appeared sober on 4 July 2004 during the interview, and

that he initially said that, he had seen a person running

through the back yard wearing a raincoat. He later changed

his story and said that he went to Ms. Radfar’s house to

take pictures of the floor for his portfolio and that she let

him in and that he started taking pictures. When she came

out of the bathroom, he didn’t know why, he grabbed her

forcefully and dragged her onto a bed and sexually

assaulted her vaginally against her will and did not use a

condom. He placed a sock in her mouth to keep her quiet.

He choked and suffocated her for a little bit and he thought

she had passed out or was dying, and he thought she was

not a threat and got off the bed looking around the house.

At some point she gained consciousness, jumped from the

bed, and ran to the front door. He grabbed her and took her

back to the room and choked her manually and placed a

plastic bag over her head to suffocate her. He then took her

to the bathroom and put her in the tub. He thought she was

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dead but was hiccupping. He then got a leash and an

electrical cord and wrapped them around her neck to

strangle her. He also used a stocking around her neck,

The State did not offer into evidence the recorded statement which contained

evidence of remorse.

On cross examination by Mr. Fraser, Detective Losat acknowledged that

Defendant was cooperative at his mother’s residence; that he accompanied them to the

Orlando Sheriffs Office voluntarily; that he did not attempt to run when he saw the

detectives at his mother’s home; and that on the ride to the station house, he told them

several times that he had tried to turn himself in on at least two occasions.

Ted Fitzpatrick, a retired Hillsborough County Deputy Sheriff called by the State,

responded to the deceased’s home on 2 July 2004 and found her body in the tub with a

belt, a chord, and a plastic bag around her neck, and the shower running pouring water on

her nude body.

Steven Ball, the victim’s boyfriend, called by the State, knew that the Defendant

had lived in the victim’s apartment and had a key, and that the Defendant had done some

work in that apartment for the victim.

Kathy Smith, a retired HCSO homicide detective called by the State, had contact

with Defendant on 2 July 2004 at 5:00 p.m. He appeared lucid and coherent. She

recovered items of incriminating evidence in Defendant’s garbage, including a white in

color man’s shirt, latex gloves, the victim’s car keys, her Visa debit card, a hosiery box,

Defense counsel offered the recorded interview in its entirety (as redacted by

stipulation) in evidence during Defendant’s case. The State apparently was attempting to

avoid introducing evidence of remorse Defendant expressed in the interview. The

summarized testimony of the interview is not inconsistent with the recorded interview.

The Court will therefore consider the latter in assessing whether the latter supports any

particular aggravating circumstance, even if not offered by the State.

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and hair clippings. The Defendant told her he had seen the victim with a white male of

whom he gave a detailed description, and had seen someone fleeing from the scene

wearing a yellow raincoat.

Rodney Riddle, a Hillsborough County Sheriffs Office deputy called by the

State, spoke with Defendant at his residence on 2 July 2004. Defendant told him he saw

a white male with black pants with a yellow raincoat and yellow hood running from the

victim’s residence at about 7:00 p.m. He described Defendant as coherent and sober.

John Burtt, a neighbor of Defendant and of the deceased Sara Radfar, called by

the State, arrived home at 5:00 p.m. on 2 July 2004 the afternoon the body Ms. Radfar

was found, and spoke with Defendant. He appeared sober and lucid.

The parties stipulated that laboratory DNA analysis established that Defendant’s

semen was found on the victim’s vaginal swab.

The State rested after the testimony of Detective Losat.

The Defendant’s additional evidence in mitigation is summarized as follows:

Leon Jackson, a pastor in Tampa, called by Defendant, is related to Defendant’s

ex-wife Melissa McKinney.

In 2003 he helped the Brants with their marital problems,

and Defendant acknowledged his drug problem and recognized he needed help. He tried

to help him get into an inpatient drug treatment program, but Mr. Brant could not afford

to not work because of family financial responsibilities. He described Defendant as

insecure and wanting everyone to be his friend, primarily because he grew up in a very

dysfunctional family and did not have a real father figure growing up. He saw that

Defendant interacted with his sons more as a friend to them than as a father figure, in

that they played games together, went to the beach together, and surfed. He suggests that

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if sentenced to life imprisonment, Mr. Brant might develop the capacity to counsel fellow

Vis-

inmates.

Dr. Michael Maher, a board certified psychiatrist called by Defendant, evaluated

Defendant.

He reviewed court records and mental health records and reports, including

PET scan information. Dr. Maher has expertise in the behavior of persons who abuse

thamphetamine.

He describes Defendant as a person who regularly worked and

developed a dependence on methamphetamine, as opposed to a person who used the drug

only for recreation. As such, he tried, unsuccessfully, to live a normal life, and because

of the drug dependence, he had periods of psychosis manifested by periods of being

highly energized, having racing thoughts, being irritable, being fidgety, having difficulty

sitting still, feeling, and seeing, He would hear things that he was not sure were real,

and heard sounds he was not sure of... he had auditory hallucinations. He tried to not

look like he was using drugs. Methamphetamine abuse affects the relationship between

executive functions and impulse control, which means that it decreases a person’s ability

to control his impulses.

Mr. Brant’s PET scan demonstrates lack of or underutilization of glucose in the

brain, and is consistent with an abnormal brain, but no clinical diagnosis can be

associated with the abnormality, and the abnormality is not associated with particular

behavior, and does not explain the mechanism as to why certain behavior has or has not

occurred.

It only suggests that the behavior center affected by the lack of glucose

demonstrated on the PET scan is consistent with Defendant's impulsive behavior.

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Mr. Brant’s history ofproblems beginning when he was a child, and his pattern of

sexual behavior with his wife, and severe use of methamphetamines, are consistent with

an “obsessive pattern of sexual interest. ”

Dr. Maher diagnosed Defendant to have “methamphetamine dependence severe, associated with psychotic episodes, sexual obsessive disorder, and chronic

depression, ” conditions he has had all of his life.

Dr. Maher opined that as a result of a mental disease or defect, Defendant s

ability to conform his behavior to the requirements of the law was substantially impaired.

On further examination by Mr. Harb, Dr. Maher explained that Defendant

suffered from attention deficit syndrome as a child, which played a role in the way he

became later; and that his review of the police reports demonstrates Defendant s

acceptance of responsibility and his remorse for what he did; and that the killing and the

rape psychologically and neurologically were more one event than two separate events,

and they point to evidence of brain abnormality because they are clearly out of character

for Defendant; and that Defendant has an Axis 1 diagnosis of sexual obsession disorder.

Gloria Milliner, a family friend, called by Defendant, knew Defendant and his

mother Crystal and step father Marvin Coleman from Virginia, Marvin Coleman and

Crystal later lived with Mr. & Mrs. Milliner. She has known Marvin Coleman since

1988. He is now deceased. He was a controlling and violent person. Charles (Chuck)

Brant was always good with her, and did not use alcohol or drugs, and was never violent.

He was a goodfather to his then three year old son Seth.

On further examination by Mr. Harb, Ms. Milliner described that Mr. Coleman

was not close to Defendant, and that there was no affection between them, apparently

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because he was the product of Crystal's prior marriage. Mr. Coleman had a bad temper

an d Defendant did not. Mr. Coleman abused drugs.

Crystal Coleman. Defendant’s mother, called by Defendant, described that her

tfferedfrom depression and was medicatedfor several years, and that her father

mother su

was an alcoholic and physically abusive to

her mother.

Her father’s mother was

committed to a mental institution. Charles E. Brant, Defendant’s father, left Crystal

when Defendant was an infant. Charles E. Brant was of very low intelligence.

Coleman

Crystal

was committed to a mental facility after she gave birth to Defendant, and at one

time attempted to take her own life. The family sent Defendant to live with his paternal

grandparents in Virginia,

Crystal Coleman has been on psychotropic mediations all of

her life. Defendamt’s grandfather too was of very low intelligence. She later got custody

of Defendant, and he exhibited violent behavior, such as banging his head on walls,

eating wall plaster, and eating fertilizer.

She later married Marvin Coleman when Defendant was five years old, and she

had one child with him, Garrett. Her marriage with Mr. Coleman was horrible. He was

He did not

verbally abusive with her and the Defendant, associated with alcohol abuse,

like Chuck (.Defendant) and was negative and derogatory toward him, often telling him

he was no good. Chuck was very good with his brother Garrett.

Defendant moved out of the home at age seventeen to live with a friend. He was

later arrestedfor a petit theft and bad check charge, but neverfor any violent offense.

Sherry Coleman, the Defendant’s older sister, called by Defendant, testified that

as a child she lived with Defendant, Crystal Coleman, and Marvin Coleman.

Marvin

Coleman was a bully with Defendant and was verbally and mentally abusive to their

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mother, Crystal. They never knew how Mr. Coleman would be at dinner. He would

always tell Chuck, who was about eight years old then, that he would never be anything

when he grew up, that he was not going to be a man, and that he could beat him up. He

told him he would end up in jail one day. Mr. Coleman singled out Chuck for abuse more

than the other two children, although she never saw him physically abuse him. He never

showed the children affection. Chuck would cry and often not eat dinner. The abuse got

worse as Mr. Coleman became more alcoholic. He underwent a religious conversion

after she and Chuck were gone from the home. Her mother told her she was afraid to

leave him because he had threatened to kill the family.

Mr. Coleman began to sexually abuse her (Sherry) when she was thirteen years

old. This abuse continued for about three years. She did not disclose this information

until she testified at this trial because she had blocked it from her memory.

She learned that Chuck and Mr. Coleman, at some time before he died, spoke to

each other. Chuck told her it was a blessing to talk to him.

The sworn statements of Garrett Coleman offered by the State in rebuttal do not

rebut anything. Rather, they support Sherry Coleman’s description of Marvin Coleman.

Jn July, 2004 she learned that Chuck had told their brother Garret about what

happened to Sara, and that he somehow was a part of it and wanted to turn himself in.

They all went to a police station to turn him in but it was closed, so they went to another

police station in Orlando to turn him in, but the officer told him they did not have any

information on him.

Dr. Valerie McClain, a psychologist called by Defendant, evaluated Defendant in

2005. She did psychological testing and reviewed pertinent documents and reports. She

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diagnosed Defendant as having polysubstance dependence, major depression-recurrent,

and cognitive disorder - not otherwise specified.

She opined that the Defendant's ability to conform his conduct to the

requirements of the law was substantially impaired on 1 July 2004, and that he has

difficulty with impulse control, based on his brain functioning deficits and academic

records. He tested very low with language skills.

Mr. Harb on cross examination, elicited testimony that Defendant told Dr.

McClain that on the date of the crimes he had been doing significant amounts of crystal

methamphetamines and ecstasy for eight days straight, and had consumed a 12-pack of

alcohol that day, and had not been sleeping well. He described to her that he went to the

house to take pictures of the tile and that he grabbed her and tied her and had sex with

her. He raped her vaginally, put a bag over her head and tied it with an extension cord to

tie the bag down, then looked around the house. She got up and said there was money in

the closet and took off towards the door; he grabbed her and smothered her and he

covered her mouth and nose while he straddled over her. He further elicited that she

diagnosed him as having difficulty with learning and memory.

Methamphetamine use makes anger management problems worse, and would

render a person more likely to act out or to be impulsive.

The defense rested after Dr. McClain testified. The Defendant elected to not

testify.

Mr. James Ellis Harden, son of James Donald Harden, was called by the State in

rebuttal. His testimony rebutted nothing. The Court will disregard his testimony.

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Donald R. Taylor. Jr., a forensic psychiatrist called by the State in rebuttal,

evaluated Defendant in July 2006 and August 2007. He reviewed medical records and

court documents, including PET scan reports, a science of which he has no expertise. He

did not perceive Defendant to be malingering. He diagnosed Defendant to have three

Axis 1 disorders

substance dependence disorder, learning disorder, and sexual

sadism. He did not find evidence of brain injury.

With respect to the issue - the mitigating factor - of whether the defendant’s

ability to conform his conduct to the requirements of the law was substantially impaired,

he opined first that with respect to the specific act of committing sexual battery, the

Defendant’s ability to conform his conduct to the requirements of the law was

substantially impaired, because he was under the influence of methamphetamine, and he

opined second that with respect to the specific act of killing the victim, the Defendant’s

ability to

conform his conduct to the requirements of the law was not substantially

impaired.

Mr. Fraser on cross examination elicited that Defendant is not a sociopath or

psychopath, and that his condition of sexual sadism arises from a genetic predisposition

and childhood environment, which are factors over which Defendant has no control, and,

that the mental condition that substantially impaired his ability to conform his conduct to

the requirements of the law when he committed the sexual battery remained the same;

that what changed was the nature of the subsequent crime - homicide.

He further elicited that prior to 2004 Defendant had no history of committing any

violent offense.

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On 8 October 2007 the Court, at Defendant’s request, conducted a Spencer

hearing.

Melissa

McKinney, Defendant's former wife, recalled by Defendant, testified

telephonically. They are the parents of Seth, age 12, and Noah, age 9. They rww live in

Texas. Prior to moving away, she and the children visited Defendant at the jailfour or

five times.

During the August, 2007 trial she and the children also visited with him in the

courtroom. These courtroom visits went well in that he seemed to encourage the boys

and asked them how they were doing in school and what they would be doing for the

summer.

They were talkative and opened up with him. Counsel introduced letters the

boys had sent Defendant as Defense Composite Exhibit 1. Ms. McKinney has made

arrangements to keep him apprised of their grades and activities. She always tells them

that their father loves them and wants to hear from the, which helps them to open up with

their feelings. She intends to encourage the boys to see their father and to write him.

Finally, the State and Defendant stipulated to the introduction of two sworn

statements of Garrett C. Coleman, Defendant’s half brother, given to Mr. Harb on 27

August 2004 and 19 July 2006. The State suggests the statements rebut defense evidence

about Marvin Coleman’s attitudes and behaviors. Defendant suggests it supplements the

evidence of his narcotic abuse.

In the August, 2004 statement, Garrett Coleman described his father Marvin

Coleman as mentally abusive to the entire family, and physically abusive to Chuck,

especially when he w<zs a teenager. He abused alcohol for many years and at one point

in his life stopped drinking, and stopped being so abusive to the family. Defendant went

to Garrett Coleman’s home after the homicide, and told him he had hallucinations and

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that he might be involved in the homicide they were investigating. The Defendant told

him

he wanted to talk to the police, and they went to a local police station to turn himself

in to the police. He knew Defendant had been using Ecstasy at that time and before then,

and knew about Ike effects it had on his life. He also knows him to not be violent. In die

July, 2006 statement, Garrett Coleman stated that when Defendant came to his house

after the homicide, he was "messed up on crystal meth, still smoking it, ” and that he

could not understand what he was saying, but he know there was a problem. He again

described how they tried to go to the police, and how his brother told him he had been

hooked on crystal meth for several months and was getting progressively words.

Defendant slept at his home and they went to the beach the next day. Defendant was

again high on drugs and told him that he used what he had left. He described him as

always being responsible, having a good job, and loving his family. He told him he was

sorry, that he didn’t mean to hurt the family by doing it, that it just happened.

This evidence does not rebut any mitigation evidence, rather, it corroborates

evidence of Mr. Coleman’s demeanor.

The Court will consider this as mitigation.

State’s Arguments in Support of Aggravating Circumstances

The State cites numerous cases in support of each of the proposed aggravating

circumstances, and argues that the facts support each circumstance as follows.

The Capital Felony was Especially Heinous, Atrocious, or Cruel

Defendant gained entry to victim’s residence and grabbed and dragged her and

pushed her onto the bed and raped her. She resisted and struggled with him. He tied her

mouth with a stocking after stuffing her mouth with a sock. After he raped her and while

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he was looking around the house, she got up from the bed and went towards the door. He

grabbed her and took her to the bedroom where he suffocated her and strangled her, using

his hand, a sock, a stocking, an electrical cord, a dog leash, and a plastic bag. He then

placed her in the bathtub. She was hiccupping at the time. She was conscious and aware

for the majority of the assault. During the sexual assault the victim yelled at Defendant

to stop, and after the assault she and he spoke. She suffered 13 to 15 injuries, some of

which were defense and some of which were painful.

The medical examiner testified the assault could have lasted from minutes to

hours and that most likely the Defendant strangled her and then suffocated her then

strangled her again.

Dr; Taylor diagnosed Defendant as a sexual sadist, a condition in which the

person becomes sexually excited by either causing suffering or humiliation to another.

The State cites State v. Dixon, 283 So.2d 1 (Fla. 1973); Smalley v. State, 546

So.2d 720 (Fla. 1989); Cheshire v. State, 568 So.2d 908 (Fla. 1990); Sochor v. Florida,

112 S.Ct. 2114 (1992); Espinosa v. Florida, 112 S.Ct. 2926 (1992); Richardson v. State,

604 So.2d 1107 (Fla. 1992); James v. State, 695 So.2d 1229 (Fla. 1997); Johnson v.

State, 465 So.2d 499 (Fla. 1985); Alvord v. State, 322 So.2d 533 (Fla. 1975); Orme v.

State, 677 So.2d 258 (Fla. 1996); Sired v. Moore, 825 So.2d 882 (Fla. 2002), and argues

this aggravator is proven beyond a reasonable doubt and that the Court should give it

great weight.

The Capital Felony Committed While Engaged in Commission of

Burglary. Kidnapping, or Sexual Battery

Defendant unlawfully entered or remained in the victim’s dwelling with intent to

commit an offense, and committed a kidnapping and sexual battery. The burglary,

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kidnapping, and sexual battery are statutorily enumerated offenses to which Defendant

pled guilty. The State cites no authority, and argues this aggravating circumstance was

proven beyond a reasonable doubt and that the Court should give it great weight.

The Capital Felony Was Committed for the Purpose_of

Preventing a Lawful Arrest

^Elimination of a Witness}

The Defendant’s intercepting the victim’s attempt to leave her residence and his

actions after the murder including cleaning the victim’s body and removing physical

evidence are evidence of a continuation of his attempt to avoid detection.

The only reasonable inference is that Defendant killed the victim, his neighbor

who could identify him, in order to eliminate her as the sole witness to his already

completed crimes of burglary, kidnapping, and sexual battery. He had no other reason,

and the victim failed to resist his assault and did not attempt to stop or prevent his escape.

The State cites Howell v. State, 707 So.2d 674 (Fla. 1998); Willacy v. State, 696

So.2d 693 (Fla. 1997); Swafford v. State, 533 So.2d 270 (Fla. 1988); Hoskins v. State,

965 So.2d 1 (Fla. 2007), and argues this aggravator is proven beyond a reasonable doubt

and that the Court should give it great weight.

The Capital Felonv Was a Homicide and Was Committed In a

Cold. Calculated, and Premeditated Manner

Without anv Pretense of Moral or Legal Justification

The circumstances that support this aggravator are that shortly before the

homicide, the victim’s boyfriend moved out of their common residence, and she lived

alone. Defendant and his family had lived in that same unit and moved out about a year

before the homicide, and was therefore familiar with the residence. He still had in his

possession a key and the Defendant gave it to him. Defendant told others that a few days

667

Page 28 of 44

prior to the homicide the victim asked him to inspect her windows to make sure they

were secured, and he did the inspection. Defendant could have entered or left the

residence through a rear window. Defendant’s wife testified that she and Defendant

engaged in sex daily, and that once every two weeks he would force her into rough sex,

during which he would wear latex gloves and would stuff a sock in her mouth, and that

they last had forced sex the night before the murder and that the next morning she

threatened to report him to the police. The Defendant claimed he went to the victim s

residence to take pictures, but he there is no evidence he had a camera or took pictures, or

that he told his family about his plans to take pictures. He declined to go to the movies

with his family. Collected physical evidence, including latex gloves, a sock, a stocking,

and a yellow raincoat suggests he took these items to the victim’s residence.

The State argues the evidence proves that Defendant planned his actions before

and after the homicide, and that once his wife told him he could no longer rape her, he

went elsewhere to practice his sadistic tendencies. He raped the victim the same way he

raped his wife.

The State cites Jackson v. State, 648 So.2d 85 (Fla. 1994); Rogers v. State, 511

So.2d 526 (Fla. 1987); Hill v. State, 422 So.2d 816 (Fla. 1982), and argues the evidence

proves this aggravating circumstance beyond a reasonable doubt, in that that the

Defendant’s actions reached a level of heightened premeditation, and that he acted with

cool and calm reflection without any pretense of legal or moral justification, and that the

Court should give it great weight.

668

PoftA OO rtf 44

Th<>. fapital Felony Was Committed for Pecuniary Gain

Defendant’s wife at the time of the offenses had been asking him for money to

pay bills which he did not have. During this time he was consuming drugs heavily.

Defendant told Dr. McClain that the victim told him there was money in the

closet, He stole items from the residence, including clothing, keys, credit cards, a towel,

and the car

The State cites Peek v. State, 395 So.2d 492 (Fla. 1980); Hardwick v. State, 521

So.2d 1071 (Fla. 1988); Porter v. State, 429 So.2d 293 (Fla. 1983), and agues this

aggravator is proved beyond a reasonable doubt and that the Court should give it great

weight.

State’s A rgnments in Response to Defendant’s Mitigating Circumstances

The State concedes that most of the mitigating circumstances have been

established, but argues that the Court should give them little or moderate weight, As to

others, the State argues that they were not established by the evidence, and that the Court

should so find.

Defendant’s Arguments In Response to State’s Aggravating Circumstances

In response to the State’s argument in support of the proposed aggravating

circumstances, defense counsel cites numerous authorities, and argues as follows.

Pecuniary Gain

Counsel argues that the evidence is that the Defendant only moved the victim s

car 388 feet from the residence, apparently to mislead anyone looking for her, and that

nominal personal property taken from the residence, which he discarded, does not

669

provide or establish a motive for murder. Counsel cites Choky v. State, 651 So.2d 1169

(Fla. 1995); Peek v. State, 395 So.2d 492 (Fla. 1980).

Cold. Calculated, and Premeditated

Counsel argues the evidence establishes only one of the four required elements of

this aggravator - that Defendant had no pretense of moral or legal justification to murder,

and, that it does not establish the other three required elements - cool and calm reflection

rather than prompted by emotion; frenzy, panic, or fit of rage; or careful prearranged

design to commit murder before the killing; and exhibiting heightened premeditation.

Counsel cites Owens v. State, 854 So.2d 182 (Fla. 2003); Smith v. State, 515 So.2d

182(Fla. 1987).

Counsel argues that the evidence did not establish that the stocking Defendant

used to strangle the victim came from his home rather than the victim’s home. The

evidence is that Defendant did not use a condom during the sexual battery, and, the

evidence did not establish that the latex gloves recovered in Defendant’s home does not

support the suggestion that he used him during the offenses, since the evidence is that he

returned to the victim’s home the next day to eliminate evidence, including fingerprints,

suggesting he did not use gloves. He did not remove or destroy a note he left for the

victim to call him. The note was found in the victim’s vehicle.

Counsel further argues that the expert testimony of Dr. Taylor and of Dr. Maher

that Defendant’s ability to conform his conduct to the requirements of the law, at least as

it pertains to the sexual battery, was substantially impaired, vitiates a finding that the

killing was the product of cool and calm reflection.

670

Witness Elimination

Counsel argues that nothing in the State’s evidence addressed Defendant’s reason

for the murder. The only testimony related to this issue was that of Dr. Maher, a defense

witness, who acknowledged on cross examination that Defendant possibly intended to

eliminate a witness.

He further argues that the victim’s ability to identify him as the person who

assaulted her, standing alone, is not sufficient to justify a finding of witness elimination.

Counsel cites Farina v. State, 801 So.2d44 (Fla. 2001); Consalvo v. State, 697 Sold 805

(Fla. 1996); Jennings v. State, 718 So.2d 144 (Fla. 1998); Davis v. State, 698 So.2d 1182

(Fla. 1997).

Heinous, Atrocious, or Cruel

Counsel concedes that the evidence established this aggravator beyond a

reasonable doubt, but argues that it is not entitled to great weight. Counsel cites Barnhill

v. State, 834 Sold 836 (Fla. 2002); Offord v. State, 959 Sold 187 (Fla. 2007); Diaz v.

State, 860 Sold 960 (Fla. 2003)

Committed While Committing Sexual Battery. Burglary, or Kidnapping

Defendant concedes that the evidence established the aggravator beyond a

reasonable doubt, but argues that the Court should consider only one of the three crimes burglary, sexual battery, or grand theft as an aggravator, not all three. Counsel cites

Brown v. State, 473 Sold 1260 (Fla. 1985); Tanzi v. State, 964 Sold 106 (Fla. 2007)

Defendant’s Arguments in Support of Mitigating Circumstances

Counsel argues that Marvin Coleman mentally, emotionally, and physically

abused Defendant from the age of 5 to the age of 17 when he moved out of the house. He

871

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[

belittled him constantly, apparently because he was not his biological child. He told him

he would never be anything. He told him he could beat him; that he would never be a

man, and that he would end up in jail someday. He was alcoholic and used marijuana,

He abused the entire family, and also sexually abused Defendant's sister Crystal. He

never showed affection to any of the children

Counsel further argues that the mental health experts uniformly found Defendant

severely impaired by methamphetamine abuse, and explained that continued use of the

drug causes more dramatic dysfunction, deterioration and psychosis. Dr. Maher testified

that use of the drug results in poor impulse control, and inability to make sound

decisions. He opined that Defendant suffered periods of psychosis because of the drug

abuse.

Dr. Maher relied on Dr. Wood’s findings, which show abnormal glucose

underutilization. He also described that the 25 point difference between Defendant’s

verbal IQ and performance IQ demonstrates abnormal brain functioning. He diagnosed

Defendant with chronic depression and obsessive pattern of sexual interest. Ultimately,

he opined that Defendant’s ability to conform his behavior to the requirements of the law

was substantially impaired.

Dr. McClain also diagnosed Defendant to have a substance dependence, recurring

major depression, and cognitive disorder, She further found him to have impaired

impulse control. As to the date of the murder, she opined that his capacity to conform his

conduct to the requirements of the law was substantially impaired, and that

methamphetamine use would render him more impulsive.

672

“Jl nf AA

Dr. Taylor likewise diagnosed Defendant with substance abuse dependence, a

learning disability, and sexual sadism. He opined that his ability to conform his conduct

to the requirements of the law with respect to the sexual battery was substantially

impaired, and, that he was not a sociopath or psychopath.

Defendant had no control over his childhood and no control over his genetic

predisposition. He had no history of violent behavior toward anyone other than his wife.

Defendant argues that the mitigating circumstances outweigh the aggravating

circumstances, and that the Court should impose a life sentence.

Defendant attempted to lead a productive life without drug abuse. He sought help

from Reverend Hess and Pastor Jackson.

Defendant is a hard and good worker and craftsman as attested by Seven Alvord

and Mr. Burt.

Defendant is a good father and spent a good deal of time with them.

Those who knew him, including Mr. Harden, Pastor Jackson, and Mrs. Coleman,

described how out of character this conduct is for Defendant.

Defendant felt and exhibited remorse for his conduct, as attested to by Mr.

Rabeau and others. Defendant confessed to Detective Losat, during which he showed

remorse. He also attempted to turn himself in to authorities, and agreed to accompany

detectives from his mother’s home to the station house, though not under arrest at the

time.

673

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Analysis and Findings

Any aggravating circumstance must be proved beyond a reasonable doubt. A jury

or judge need only be reasonably convinced that a mitigating circumstance is established.

Proposed Aggravating Circumstances

Pecuniary Gain

The evidence does not convince the Court beyond a reasonable doubt that

Defendant committed the homicide for pecuniary gain. The evidence demonstrates that

he took the victim’s car, after he committed the sexual battery and homicide, not

primarily to appropriate it for his own use, but to remove it from the scene of the crimes

to prevent him from being discovered. The evidence certainly does not establish that his

reason for killing Ms. Radfar was an integral step to obtain the sought-after gain of

stealing her car or any other property. Hardwick v. State, 521 So.2d 1071(Fla. 1988).

The Court will not weigh this proposed aggravating circumstance.

Witness Elimination

The evidence does not convince the Court beyond a reasonable doubt that the

Defendant committed the homicide to avoid lawful arrest or to eliminate the only witness

to the sexual battery or burglary or theft. The circumstantial evidence creates a strong

inference of this aggravating circumstance, but it does not establish beyond a reasonable

doubt, that the Defendant killed Ms. Radfar because after he sexually battered her, she

would be able to identify him as her assailant. The evidence of what transpired inside the

victim’s home with respect to the killing and other offenses comes only from Defendant’s

statement to the detectives. Nothing in his statement provides such a reason, or any

reason, for the homicide. The evidence does not establish that the sole or dominant

€74

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motive for the murder was the elimination of Ms. Radfar as a witness. Speculation

cannot support this aggravating circumstance. Urbin v. State, 714 So.2d 411 (Fla. 1998),

Hurst v. State, 819 So.2d 689 (Fla. 2002).

The Court will not weigh this proposed aggravating circumstance.

r’nlri. Calculated, and Premeditated

The evidence does not convince the Court beyond a reasonable doubt that the

murder was cold, calculated, and premeditated, without any pretense of any legal or

moral justification. The evidence supports a felony (sexual battery) murder as well as a

premeditated murder — that he made conscious decision to murder Ms. Radfar after he

sexually assaulted her. It does not, however, support the required finding of heightened

premeditation, defined as “deliberate ruthlessness.” Fennie v. State, 648 So.2d 95 (Fla.

1994)i Walls v. State, 641 So.2d 381 (Fla. 1994); Buzia v. State, 926 So.2d 1203 (Fla.

2006).

The Court will not weigh this proposed aggravating circumstance.

During Course nf Committing Sexual Battery

The evidence convinces the Court beyond a reasonable doubt that the Defendant

committed the homicide in the course of committing sexual battery, to which he admitted

and to which he pled guilty. Defendant’s guilty plea, coupled with the other evidence,

demonstrates, beyond a reasonable doubt, that he sexually assaulted the victim with force

and against her will, and that he thereafter, as part of the continuing senes of events,

decided to strangle and smother her with a plastic bag, ligatures, and his bare hands.

The Court will not consider that he committed the murder in the course of

committing a burglary or theft to support this aggravating circumstance. The State’s

675

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evidence of entering the residence with intent to commit a crime therein is circumstantial

as to its theory that he entered surreptitiously through a rear window or with a key, or is

limited to the Defendant’s statement to detectives that he entered the residence with the

victim’s permission, with intent to commit a crime, or remained in the residence after he

decided to commit sexual battery

The evidence supports both premeditated murder and felony (sexual battery)

murder. Taylor v. State, 638 So2d 30 (Fla. 1994); Blanco v. State, 706 So.2d 7 (Fla.

1997).

The Court accords great weight to this aggravating circumstance.

Heinous. Atrocious, or Cruel

The evidence convinces the Court beyond a reasonable doubt that the Defendant

committed the homicide in a heinous, atrocious, and cruel manner, Ms. Radfar was

conscious when Defendant sexually assaulted her using force and restraint, during which

he choked and strangled her to the point of unconsciousness; was conscious or regained

consciousness after he sexually battered her, and was conscious when she attempted to

get out of the house, and was conscious when he further restrained her and strangled and

smothered her with the plastic bag, ligatures, and his hands. The evidence, and common

sense inferences from the evidence, establishes that the victim endured the Defendant s

violence for several minutes, during which time she was certainly aware she was going to

die. Sochor v. State, 580 So.2d 595 (Fla. 1991); Orme v. State, 677 So.2d 258 (Fla.

1996); Bowles v. State, 804 So.2d 1173 (Fla. 2001); Blackwood v. State, 777 So.2d 399

(Fla. 2000); Overton v. State, 801 So.2d 877 (Fla. 2001)

The Court accords great weight to this aggravating circumstance.

676

M ~(AA

Proposed Mitigating Circumstances

The Court is reasonably convinced that all evidence offered in mitigation has been

established, and will accord it appropriate weight as follows.

determines that nothing in the

case,

The Court further

State’s evidence, not in its case in chief, or in its rebuttal

rebuts, contradicts, or impeaches any evidence in mitigation. Defendant cites

Campbell v. State. 571 So.2d 415 (Fla. 1990); Nibert y. State, 574 So.2d 1059 (Fla.

■ 802 So.2d 1121 (Fla. 2001); Coday v. State. 946 So.2d 9S8 <Fla.

1990); Ford v. State

2006); Kramer v. State, 619 So.2d 274 (Fla. 1993),

Initially, the Court finds that the evidence offered in mitigation and in

aggravation, through both direct and cross examination of the witnesses, and the defense

exhibits, established the following statutory enumerated and non-enumerated mitigating

circumstances

, which the Court will consider and to which it will accord its weight and

importance as indicated below.

Weighing

On 1 July 2004 Defendant was and had been for many months, using unlawful

substances, primarily methamphetamine. He went to the victim's home and entered with

her consent, ostensibly for the purpose of taking photographs of

some tile work he had

done in her house when he and his wife lived in that home several months before. The

best evidence

of what he then did comes from his pre-arrest statements and admissions to

Detectives Esquinaldo and Losat. The evidence is that he grabbed her and forcibly

sexually assaulted her. He did not use a condom and he ejaculated. In the process he

placed a sock

in her mouth. He then choked her and left her on her bed, believing she

was dead or not conscious. While he was then looking around the house, she regained

677

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consciousness and attempted to leave the house. He grabbed her and took her back to the

bed and strangled and suffocated her using his hands, a plastic bag over her head, and

ligatures - a stocking, an electrical cord, and a dog leash - around her neck. She was

conscious for some period of time and was obviously aware she was going to die, but she

did not die immediately. She “hiccupped” while he placed her body in the bath tub and

opened the shower on her. The cause of death was strangulation and suffocation.

She

could have remained conscious for as little as seven to fourteen seconds, and possibly

to a state of

more. She endured being violently sexually assaulted, being strangled

unconsciousness, then regained consciousness, then was strangled again, to her death.

Defendant killed Ms. Radfar without conscience, and without pity. The homicide was

-s

extremely torturous to the victim, She must have experienced fear and terror knowing

she was going to die. The homicide was heinous, was atrocious, and was cruel. The

Court places great weight on the conduct and manner of the sexual assault and the

strangulation killing.

Defendant over the next several hours thereafter did things to conceal his crimes,

including wiping areas to remove his finger prints, cleaning the room with cleansing

materials, and taking her car from the area and abandoning it several blocks away.

His

conduct after the crimes however does not establish any facet , of any aggravating

circumstance.

Defendant in July, 2004 was 39 years of age, married, and had two sons. From

the age of 5 until the age of 17 when he left his parents’ home, his step father severely

abused him emotionally, psychologically, and to a lesser extent, physically. He lived in

that home with his step brother and sister. The step father also physically abused

678

Drt

20 rtf A.A.

Defendant’s mother and he sexually abused the sister. The step father was an alcoholic

and an evil person to the children.

He later attended a bible school where he met his wife. He had been a religious

person and wanted at one time to become a minister. He and his wife to be left the

school, married, and had children. At some time during the marriage, Defendant began to

abuse drugs, including marijuana, cocaine, and methamphetamine, and became

dependent or addicted.

He is diagnosed with chemical dependence and has symptoms of attention deficit

disorder. More significantly, he is diagnosed with having a sexual obsessive disorder, or

sexual sadism. This led to the sex games or fantasies in which he engaged with his wife,

which included “assaulting” her and having “rough sex,” much like his conduct with the

victim of the homicide.

His diagnosed drug dependence and depression and childhood experiences led

mental health experts to opine that because of these factors, his capacity to appreciate the

criminality of his conduct, or to his capacity to conform his conduct to the requirements

of the law was substantially impaired. He has a diminished ability to control his

impulses.

He came to be a good and reliable worker and competent craftsman, and

supported his family. He was a good father and husband. He has a reputation for nonviolence.

Although Defendant has borderline verbal intelligence, he feels and has

expressed genuine remorse for his actions. He attempted to turn himself in to the police

the day after he killed the victim, and he cooperated with detectives when they went to

his mother’s home to interview him, and he ultimately confessed to the crimes. He later

679

T)—~ /I A

pled guilty to the murder and other charges, which dispensed with requiring the State to

prove his guilt to a jury, and he waived his right to a jury advisory sentence.

The above are significant aspects of the Defendant’s background and character,

on which the Court places importance and weight, as indicated below.

{

Charles G. Brant has no significant history of prior

criminal activity.

The Court accords this circumstance little weight

Defendant was emotionally, mentally, and physically

abused by his stepfather from age 5 to 17; he has

diminished intellectual function; he has diminished impulse

control due to drug dependency, and as a result, his

capacity to appreciate the criminality of his conduct, or to

conform his conduct to the requirements of law was

substantially impaired

He has a diagnosed sexual

obsessive disorder.

The Court accords these circumstances moderate

weight

Defendant at the time of the crime was 39 years old and

had led a crime-free life.

The Court accords this circumstance little weight

Defendant is remorseful, and expressed his remorse when

initially interviewed, and has expressed his remorse to

other persons since his arrest.

The Court accords this circumstance little weight

Defendant cooperated with law enforcement officers when

approached at his mother’s home.

He voluntarily

accompanied detectives, while not under arrest, to a station

house for questioning. He admitted the crimes when

questioned. He later pled guilty to all crimes and did not

require the State to prove the charges to a jury beyond a

reasonable doubt. He then waived his fight to a jury

penalty recommendation.

The Court accords these circumstances moderate

weight

Defendant has borderline verbal intelligence.

The Court accords this circumstance little weight

680

Defendant has a family history of mental illness;

The Court accords this circumstance little weight

Defendant is not a sociopath or a psychopath, and does not

have an antisocial personality disorder.

The Court accords this circumstance little weight

Defendant has diminished impulse control and is not able

to make sound decisions because of his methamphetamine

abuse, and exhibits periods ofpsychosis.

Defendant has recognized his drug dependence

help.

problem and has sought

Defendant used methamphetamine before, during,

and after the murder and other crimes.

The Court accords these circumstances moderate

weight

10.

Defendant is diagnosed with chemical dependence, sexual

obsessive disorder, and has symptoms of attention deficit

disorder.

The Court accords this circumstance moderate

weight

11.

Defendant is a good father. He encourages his sons to do

well and expresses to them his interest in their welfare and

how they are doing. His children, now ages 9 and 12, who

he has not seen since 2004, responded favorably to him

during the trial, and have written letters to him.

The Court accords this circumstance little weight

12.

Defendant is a good worker and craftsman.

The Court accords this circumstance little weight

13.

Defendant has a reputation of being a non-violent person.

The Court accords this circumstance little weight

681

Sentence

The Court has considered and weighed the aggravating and mitigating

circumstances, and concludes

exist to support an

and determines that sufficient aggravating circumstances

d warrant a sentence of death, and that the midgating circumstances do

not outweigh the aggravating circumstances. n>e Court will impose sentences as follows:

As to count one for the first degree murder of Sara Radfar, the Court imposes a

sentence of death.

As to count two for the sexual battery of Sara Radfar, the Court imposes a

sentence of life imprisonment, concurrently with count one.

As to count three for the kidnap of Sara Radfar, the Court imposes a sentence of

life imprisonment, to be served concurrently with counts one and two.

As to

count four for the burglary of dwelling with assault the Court imposes a

of life imprisonment, concurrently with counts one, two, and three.

L'-

As to count five for grand theft motor vehicle, the Court imposes a sentence of

five years imprisonment, concurrently with counts one, two, three, and four.

The Court awards three (3) years and five (5) months credit for time served.

The Court does accordingly

ORDER that Charles G. Brant be taken by the proper authorities to Florida State

Prison (FSP), and there be kept under confinement until a date for execution is set. The

Court does further

632

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A A

ORDER that on said date, Charles G. Brant be put to death in the manner

provided by law.

• Defendant has thirty (30) days to appeal the judgments and sentences .

DONE

ND ORDERED in open CouiJ£ at Tampa, Hillsborough County,

Florida, this Z_ day of November, 2007.

c(M COUl

WILLIAM FUENTE

CIRCUIT JUDGE

Copies furnished to:

Jalal Harb, Esq.

Office of the State Attorney

800 E. Kennedy Blvd.

Tampa, Florida 33602

Rick Terrana, Esq.

2917 W Kennedy Blvd

Suite 120

Tampa, FL 33609

■5

Robert Fraser, Esq.

P.O. Box 3470

Brandon, FL 33509

‘V-

683

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.