As day one of the penalty phase came to a close Tuesday in the double murder trial of Kemar Johnston, the defense had begun to build its case in an attempt to save its client’s life. Johnston, 23, faces the death penalty or life in prison without parole in the October 2006 torture and slaying of Alexis Sosa, 18, and his 14-year-old nephew, Jeffrey Sosa. Johnston was found guilty Jan. 30 on two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon after about two weeks of testimony and two days of deliberations. The penalty phase began Tuesday with opening statements from the state and defense. The same 12-member jury that handed down the guilty verdict listened as Assistant State Attorney Bob Lee and defense attorney David A. Brener outlined why they should vote one way or the other on the sentence.
Twentieth Judicial Circuit Judge Thomas S. Reese will make the final ruling on whether Johnston gets death or life in prison, but he will give great weight to the jury’s recommended sentence. Only a majority vote is needed for the jury to recommend a sentence. Lee argued that aggravating factors support the death penalty. Lee cited Johnston’s capital felony convictions in the Sosas’ deaths, and added that the capital felonies were committed during a kidnapping. He said the crime was heinous, atrocious and cruel manner, and was committed in a manner that was cold, calculated premeditated. “We’re looking at things that make the crimes more aggravating,” he said. Though Lee told the jury to consider both mercy and justice, he said they need to find that only one aggravator is met to consider the death penalty.
“Follow the law, follow the evidence, and hold the defendant personally responsible for that night, when a celebration of life because a celebration of death,” Lee said. Brener explained that people can be convicted of felony murder if they participate in a crime that leads to a death, even if they do not “personally kill.” If found guilty, the person is eligible for the death penalty. But Brener questioned whether a person guilty of felony murder should receive death. He pointed to the testimony of witnesses and questioned their creditability. Brener added that some testified to being threatened, cajoled or “assisted” by police when recounting what happened the night of the murders. Many lied to police and admitting to the jury that they had done so. “Just because someone says something, doesn’t mean it’s true,” he said.
Brener asked that the jury “assign little weight” to the heinous, atrocious and cruel manner of the crime because the “cruelty was not solely done at the actions of Mr. Johnston.” He argued that the murders could not be cold, calculated premeditation because Johnston has brain damage, “thinks like a child” and was extremely impaired on drugs and alcohol at the time. Brener added that during the penalty phase, he would present mitigating factors, circumstances or reasons for the jury “to vote to spare his life.” “I will ask you not to abandon Kemar. I will tell you his life is worth saving,” he said. “I will beg you to spare that life because I will argue it is worth saving … This young man is worth saving and is deserving of your mercy and compassion.” Following opening statements, the state called to the stand its only witness, the employee from the District 21 Medical Examiner’s Office who performed the autopsies on the Sosas. He testified to the wounds on the bodies, to the possibility the Sosas were conscious when shot and to the possible pain they suffered.
Under cross-examination by Brener, the witness admitted that he could not determine the order of how the wounds were inflicted, such as if the fatal or non-fatal shots were first. He also said he could not determine who fired the shots and if the Sosas were conscious when the wounds were inflicted. The state rested and the defense began to call its witnesses. Ten took the stand Tuesday to speak on Johnston’s character, his mental functioning and academic difficulty in school, his childhood in Jamaica and how his execution would impact their lives. The list included relatives, former teachers, an employer and a school friend. Lisa Dilgard, Johnston’s general manager at Rib City, called Johnston a “great employee.” She said they were often the last ones working and he would hang around after clocking out to walk her to her car to make sure she was OK. He offered to walk her, Dilgard added, it was not something she asked of him. Johnston’s second cousin, Julett Salmon of Jamaica, also spoke. She talked about Johnston’s upbringing in “the ghetto,” and said he and his siblings had to steal from a relative in order to eat. She testified that Johnston did not attend school and likely encountered a chemical sprayed by planes on local vegetation to kill marijuana plants.
Denise Johnston of Cape Coral, Johnston’s stepmother, echoed Salmon. “There were times they didn’t have any clothes or food,” she said of Johnston and his siblings in Jamaica. “They just weren’t having a good life.” Brener showed photographs to Denise Johnston of her stepson and had her identify them, which brought the woman to tears. One was Johnston teaching his half-sister to ride a bike, in another he stood with a fishing rod in his hand and in a third he was playing in a children’s pool with relatives. Denise Johnston testified that she trusted Johnston with her daughters, and that Johnston spent time with, showed affection to and bought things for his half-sisters. She broke down into tears when asked about his possible death. “It’s just devastating to even think about it,” Denise Johnston said. The list of teachers called to the stand Tuesday included an elementary teacher of Johnston’s, one teacher from Lee Middle School, his ninth-grade math teacher, 10th-grade history teacher and 11th-grade English teacher. All testified to his learning difficulties, poor grades and low test scores. “He didn’t quite grasp the academic curriculum as it was presented,” Patrick Magee said. “He needed guidance. He need to work with other students that were a little higher to be successful.”
Sal Jesuele, who taught Johnston at Lee Middle School, said the poor grades were not because of inattentiveness in class, bad behavior or lack of effort — Johnston put in the effort, the educators all agreed. “The reasons for the low grades was his inability to comprehend,” he said. Under cross-examination by Lee, some teachers reported that Johnston showed improvement in their class and noted that he was not held back or put in a remedial class. Others admitted to marking in his records that he was “inattentive” and would “smooze” to get himself out of trouble. Lee added that some of Johnston’s low scores still placed him higher than those who scored lower than him.
The teachers also spoke to Johnston’s character Tuesday. He was referred to as “polite,” “cordial” and “respectful.” “He would hug me for no reason, just when he walked in,” said Paul Young, Johnston’s second-grade teacher. The penalty phase resumes at 9 a.m. today at the Lee County Justice Center in Fort Myers. Assistant State Attorney Marie Doerr is also prosecuting the case, and Terry Lenamon is serving as co-counsel for the defense. Johnston was one of 10 people arrested and charged in connection to the murders. The Sosas were hog-tied, beaten and tortured at a Cape duplex during a birthday party. They were then driven to an industrial park in the north Cape, where they were fatally shot and Alexis’ body was placed in the truck of a car and set on fire. Emergency units responding to a call about a possible fire discovered the car in flames and Jeffrey’s body lying nearby.
Roderick Washington and Ashley Toye were found guilty following separate trials. Washington received four consecutive life sentences plus 30 years in prison, and Toye was sentenced to life in prison without parole. Melissa Rivera, Iriana Santos, Alexis Fernandez, Cody Roux and Michael Balint have each pleaded guilty to lesser crimes and will receive prison sentences varying between 14 years and 26 years in exchange for their testimony. Kenneth “Ant” Lopez’s trial is scheduled for May 17.
Paul Nunes, who pleaded guilty in August for a reduced sentence of 40 years in prison, recently was appointed new counsel. On Dec. 28, he requested that his plea deal, which required him to testify against Johnston and Lopez, be withdrawn. He still testified against Johnston, although his plea withdrawal request has yet to be ruled on.