Scott v. State

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Scott v. State , 66 So.3d 923 (Fla. 2011)
• Decision Date: 30 June 2011
• Docket Number: No. SC09–1578.,SC09–1578.
• Parties: Kevin Jerome SCOTT, Appellant,v.STATE of Florida, Appellee.

66 So.3d 923

Kevin Jerome SCOTT, Appellant,

v.STATE of Florida, Appellee.

No. SC09–1578.

Supreme Court of Florida.

June 30, 2011.

Nancy A. Daniels, Public Defender, and William Carl McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.Pamela Jo Bondi, Attorney General, and Thomas David Winokur, Assistant Attorney General, Tallahassee, FL, for Appellee.PER CURIAM.

Kevin Jerome Scott, who was twenty-two years old at the time of the crime, was convicted of first-degree murder, attempted armed robbery, and aggravated battery due to his role in the June 30, 2007, coin laundry robbery, which resulted in the shooting death of Kristo Binjaku. Scott appeals his first-degree murder conviction and sentence of death. We have mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons more fully explained below, we affirm Scott's conviction but vacate his death sentence because we conclude that imposing a sentence of death would not be a proportionate punishment in this case. Accordingly, we remand for imposition of a sentence of life imprisonment without the possibility of parole.

FACTS AND PROCEDURAL HISTORY

The Guilt Phase

The evidence presented at trial established that Scott, together with his friend and codefendant Desi Bolling, who was twenty-one at the time, planned a robbery of the Binjaku Crystal Coin Laundry, a coin laundry on the south side of Jacksonville. On June 30, 2007, approximately two weeks after Scott and Bolling planned the robbery, Bolling contacted Scott by phone, and the two men met at a gas station near the coin laundry. Scott and another man, previously unknown to Bolling and identified only as “Miami,” entered Bolling's car. ¹

While inside the vehicle, the three men discussed the coin laundry, during which Scott asked Bolling if he had a firearm. At the time, Bolling had been attempting to sell a .40–caliber Glock handgun, had the gun in his trunk, and provided it to Scott. Bolling expected to sell the gun to Scott in exchange for money gained from the robbery. Miami brought his own firearm but mentioned that it was not loaded. Scott did not indicate to Bolling whether it was Scott's plan to shoot anyone. Following this discussion, Scott and Miami exited the vehicle and informed Bolling that they would call him in ten minutes. Bolling drove to a nearby apartment complex to await the call and socialize with friends.

After Scott and Miami exited Bolling's vehicle, they approached the coin laundry's side entrance. Both men covered their faces with white t-shirts to mask their identities. Scott then entered the coin laundry while Miami apparently remained at the side entranceway. As Scott entered, he hit Gentian Koci, who was sitting in a chair next to the side door, on the back of the head with the butt of his gun. Binjaku, who at the time was sitting on the floor next to Koci working on a broken machine, got up and told the intruders that he did not have any money and to go away. Scott then pointed his gun at Binjaku and fired one fatal shot to Binjaku's face. Scott and Miami fled the scene, and Xhulio Binjaku, the murder victim's son, called 911 to report the crime. Eyewitnesses identified both intruders as black males.

Following the attempted robbery, Scott and Miami ran to a nearby high school. John Holsenbeck, who was at the pool of an apartment complex across the street, testified that after he heard the gunshot, he observed a black male wearing a white t-shirt run by the swimming pool from the direction of the coin laundry and toward the high school. Holsenbeck could not identify the individual but thought the man resembled someone he had spoken to earlier that day at the intersection next to the coin laundry. He relayed his observations to police at the scene. Approximately three weeks later, Holsenbeck identified from a photo lineup two individuals, one of whom was Scott, who looked like the person he had talked to earlier in the day.

Approximately ten to fifteen minutes after Scott and Miami had exited Bolling's vehicle, Bolling received a call from Scott. At Scott's request, Bolling drove to the nearby high school and picked up Scott and Miami. At trial, Bolling testified that Scott and Miami were sweating, hysterical, and tired. Bolling recalled Scott saying that he had “shot the guy” because the victim “had jacked the buck.” Bolling understood that comment to mean that Binjaku had refused to give Scott any money. At the time, Bolling did not realize that the gunshot was fatal to the victim.

Bolling, Scott, and Miami then went back to the apartment complex where Bolling had previously been socializing. One witness, Lawrence Wright, stated that Scott appeared nervous, shaky, sweaty, and paranoid. Bolling testified that Scott explained to everyone that he was sweaty because he had been having sex. Bolling then left the apartment complex to drop off Scott and Miami at separate locations. Scott gave the murder weapon back to Bolling, at which point Bolling observed that one bullet was missing. The next day, Bolling discovered that the gunshot to Binjaku was fatal.

In an effort to secure a $20,000 reward promised by local businessmen, Wright volunteered the information that Bolling, Scott, and another individual had acted suspiciously on the night of the murder and that Bolling had been trying to sell a handgun prior to the date of the murder. Wright agreed to wear a recording device and to purchase the handgun from Bolling. When Bolling sold the murder weapon to Wright, Bolling told Wright to be careful because the gun had “a body on it.” Law enforcement obtained the weapon from Wright and found that it matched a cartridge case recovered from the scene of the murder.

Bolling was subsequently arrested and charged with murder and attempted armed robbery. After initially denying any involvement, Bolling approached law enforcement, acknowledged his complicity, identified Scott as the killer, and agreed to cooperate.² The next day, on October 1, 2007, Scott was arrested for an unrelated possession-of-cocaine offense at the intersection adjacent to the coin laundry. At trial, testimony regarding Scott's arrest and subsequent jailing was excluded following a defense motion in limine. However, testimony as to Scott's general “contact” with law enforcement was presented at trial for the limited purpose of demonstrating that Scott was in the south side area where the crime was committed and not, as the defense would seek to show, always at his north side residence.

Following Scott's arrest, law enforcement arranged for Scott and Bolling to be housed in the same area at the jail. Bolling agreed to wear a wire and to record a conversation with Scott. Both Bolling and lead Detective Travis Oliver testified that they recognized the voice on the recording as belonging to Scott. The conversation was played at trial, but because much of the recording was inaudible, a prepared transcript was provided to the jury as an aid.

In the recording, Bolling asked Scott about the night of the shooting. The ensuing conversation contained statements from Scott about the circumstances surrounding the attempted robbery and murder, including: (1) Scott's identification of three people in the coin laundry, one of whom was bending down by a machine; (2) Scott's explanation that an accomplice from Miami was behind him outside with an unloaded gun and was shaken by the events; (3) Scott's acknowledgement that he was masked; (4) Scott's claim to have hit one man in the head; and (5) Scott's claim that he shot another man after he told Scott to get out of the store and, in Scott's words, “grabbed a chair like he was going to hit” Scott.

At trial, Scott presented four alibi witnesses: Scott's neighbors, Quartx Barney, Tony Paige, and Ray Washington, and the daughter of Scott's girlfriend, Regina Corley, all of whom testified that Scott was present at the birthday party of Barney's child at the time of the crime, that Scott was cooking and helping with the children, and that he never left the party. The witnesses also testified that Scott lived with his girlfriend, Nicole Corley, on Jacksonville's north side, took care of her children, and generally never left the house.

Through cross-examination, the prosecutor suggested that the four had together agreed to provide a false alibi for Scott. Specifically, the prosecutor asked each witness about the circumstances under which the four communicated the story to one another and why they waited nearly two years before coming forward. The prosecutor also asked Barney, Paige, and Washington why Scott was on the south side when he came into contact with a police officer in October.

The State called Scott's girlfriend, Nicole Corley, as a rebuttal witness and asked her if Scott had a friend identified as “Miami.” She testified that she had heard Scott refer to someone by that name but did not know who he was, and she answered that “there's a lot of Miamis in Jacksonville.” Corley also testified that she lived with Scott on the north side, that she had three children—one with Scott—and that Scott always stayed home and cared for the children. The prosecutor asked her why Scott came into contact with a police officer at the intersection next to the coin laundry in October, and she responded that he briefly left the house around that date after the two had a disagreement.

The jury found Scott guilty as to all counts. As to his conviction for first-degree murder, the jury found Scott guilty, by special verdict, under both premeditated and felony-murder theories.

The Penalty Phase

At the penalty phase, the State presented two victim impact witnesses: Malvina Binjaku, the murder victim's daughter, and Sally Trammel, a family friend who taught Malvina, both of whom read from prepared statements.

To establish the existence of mitigation, Scott presented testimony from his relatives, friends, and former employers before...