Court Cases

Sentencing Phase Under Way For Kemar Johnston by Pat Gillespie -

23-year-old could get death penalty

Kemar Johnston, 23, was convicted Jan. 29 of six charges, including two counts of first-degree murder in the killings of Alexis Sosa, 18, and his nephew Jeffrey Sosa, 14. Watch live video as he appears in court for sentencing. Proceedings have ended for the day and are expected to resume at 9 a.m. Wednesday.

1:26 p.m. update

The proceeding has reconvened following a one-hour lunch recess. Before the recess, the prosecution rested its case after hearing testimony from Dr. Robert Pfalzgraf, the deputy chief medical examiner. Pfalzgraf testified that both victims would have been conscious for hours after being shot and would have been in pain from those wounds. He also said that both would have suffered more pain after letters were carved into their skin with knives and after bleach was then poured on the wounds. Prosecutors are trying to show hat the killings were cruel and that Johnston deserves the death penalty.

The defense is now presenting its case.

Defense attorney David Brener said Johnston deserves the jury’s mercy because he was brain damaged from herbicides sprayed on plants in his native Jamaica where he lived until age 9. Brener said that Johnston was also under the influence of drugs and alcohol at the time of the slayings and was influenced by others who participated in the killings. By the end of the proceeding, “I will implore you to spare Kemar Johnston’s life. This young man is worth saving and deserves your mercy and compassion,” Brener told the jury. Johnston’s half brother, Robert Johnston, 36, a soldier who has served in Iraq, is now testifying for the defense.

9:55 a.m. update

The penalty phase of the Kemar Johnston murder trial has begun. The 12-member jury is to decide whether to recommend that Johnston, 23, should be sentenced to life in prison or should receive the death penalty by lethal injection. Johnston was convicted Jan. 30, of two counts of first-degree murder in the 2006 killings of Alexis Sosa, 18, and Jeffrey Sosa,14, in Cape Coral after the Sosas showed up at Johnston’s birthday party. “At the close of the case, I’ll ask you to hold the defendant responsible for that night when his celebration of life became a celebration of death,” Assistant State Attorney Bob Lee told the juiry.

He said the prosecution will show beyond a reasonable doubt that the murders were especially heinous, attrocious or cruel and were committed in a cold, calculated and premeditated manner. Defense attorney Daivd Brenner told the jury that he and Johnston accept the fact that they found Johnston guilty of murder. “By your verdict, you have insured that Kamar Johnston will at least serve the rest of his natural life in prison,” Brener said. Now the jury is to decide to recommend whether “Kemar lives or dies,” Brener said. He said he intends to show that the killings were not heinous, atrocious or cruel and were not cold, calculated and premeditated. The jury, if they find this is so, must then decide whether “someone convicted of felony murder should receive the death penalty,” Brener said. Also, Brener argued that the evidence shows that someone else killed the Sosas, although Johnston was still found guilty because he participated in other crimes, including kidnapping, of which he was also convicted. This is known as felony first-degree murder.

Last month, Kemar Johnston’s attorneys tried to show a Lee County jury he wasn’t guilty of killing two teens in Cape Coral in October 2006. Starting today, they’ll have to convince the same dozen people that their client shouldn’t be executed for committing the crimes. Johnston, 23, was convicted Jan. 29 of six charges, including two counts of first-degree murder in the killings of Alexis Sosa, 18, and his nephew Jeffrey Sosa, 14. According to trial testimony, Johnston was at the center of the beatings and torture that preceded their murders. The charred body of Alexis Sosa was found in the trunk of a charred Lexus sedan at the North Cape Industrial Park. Jeffrey’s body, with his ankles tied with shoelaces, was found nearby. Based on the conviction, Johnston is eligible for the death penalty, which prosecutors have been seeking since early 2007. Defense attorneys will to try to convince jurors to recommend a life sentence. Jurors will make a recommendation. Lee Circuit Judge Thomas Reese must give “great weight” to that decision, but he makes the final choice.

During a hearing on motions in the case Monday, Reese denied a defense request to exclude the jury’s consideration of the death penalty from the proceedings. Defense attorney David Brenner said that according to tests, Johnston, who was 20 at the time of the murders, had a mental capacity of a 10 or 11-year-old as far as reading, math and other skills were concerned. “It appears he’s functioning as a child,” said Brener. He said his client has borderline retardation and should not have to face the death penalty. However, Assistant State Attorney Robert Lee argued that as far as Johnston’s intelligence quotient is concerned, that’s far from the case. Johnston has an IQ of 82 and does not suffer borderline retardation, according to tests, Lee said. Lee said the jury should be allowed to consider the death penalty. Reese concurred. In another ruling, Reese denied a defense request to prohibit prosecutors from presenting the aggravating factors that the murders were committed in a cold, calculated and premeditated manner.

Lee argued that there is plenty of evidence by witnesses that Johnston “took charge and directed things” in the killings, thus allowing the jury to consider premeditation. The last two Lee County defendants who were convicted of murder and were eligible for the death penalty – Fred Cooper and Justin Grodin -_weren’t sentenced to death by Lee judges. Cooper’s jury recommended a life sentence while Grodin’s jury recommended death by a vote of 10-2, but Lee Circuit Judge Edward Volz Jr. sentenced Grodin to life based on his mental health and other issues. Cooper was convicted of killing a couple in their Gateway home. Grodin was found guilty of beating his 13-month-old stepdaughter to death. Johnston’s attorney David Brener said the recent trend of life sentences for death-eligible defendants doesn’t mean anything for his client.

“I think each case is different – the aggravators and mitigators are different,” he said. “Each jury is different.” Aggravating factors are legal reasons such as the victim’s age and other circumstances for which a jury should recommend death. Mitigating factors can be anything the defense presents in support of a life sentence, including facts of the case, mental health and the defendant’s upbringing. A jury’s recommendation isn’t a numbers game; jurors will be instructed to assign weight to each factor. “I’m very optimistic this jury is going to pay attention to all the mitigation presented,” Brener said.

State Attorney’s Office spokeswoman Samantha Syoen said prosecutors couldn’t comment on the case until after the penalty phase.