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Supreme Court of Florida





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No. SC06-276


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WILLIE H. NOWELL,


Appellant,



vs.




STATE OF FLORIDA,


Appellee.



[December 30, 2008]



PER CURIAM.


This case is before the Court on appeal from a judgment of conviction for first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we reverse and remand for a new trial.


Facts and Procedural History




Kelvis Smith and Michelle Gill were a couple for almost eight years. Gill was pregnant with Smith`s child. On June 14, 2002, Smith picked Gill up from work and they went straight home. After arriving home, Gill went into the house first. When Smith entered the house he saw two men, and he saw that the

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bedrooms had been ransacked. Gill was sitting on the floor crying while one of the men had a gun pointed at her. Nowell pulled a gun on Smith. The two intruders were not wearing masks and Smith recognized them as Willie Nowell and Jermaine Bellamy. Smith asked Nowell what was going on, and Nowell said he believed that Smith had previously shot him. Smith denied having shot Nowell.1


Nowell and Bellamy discussed what they should do. Nowell stated, If we let them go, they going to try to kill us. Bellamy then made a slicing motion across his throat. While acting hysterical, Gill begged Nowell not to do anything to Smith. She stated if they did not, she would not call the police after they left.


Nowell and Bellamy forced Smith and Gill to sit in the closet in the back room.


Smith testified that he thought that the two men were getting ready to leave but then he saw both the guns come across from the side of the closet and bullets coming down the wall.


After the flurry of bullets, Smith looked at Gill. She was shaking but did not say anything. Soon thereafter Smith lost consciousness. When Smith regained consciousness, he was tied up and sitting in the darkness of the closet. Gill was beside him, not moving. She was fatally injured with multiple gunshot wounds.














1. Smith said he heard that Nowell and Bellamy had been shot earlier in the year on April 19, 2002. Smith testified that he did not know who had shot Nowell and Bellamy. During that shooting, Nowell was shot in the leg. Smith was one of the suspects in the shootings, but no arrests were ever made because the shooter was never identified.








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Smith was shot near his right eye and in his jaw. The paramedics transported Smith to a medical center.


On June 17, 2002, two officers and a detective from the Palm Bay Police Department interviewed Smith at the medical center. Smith used sign language to tell them Nowell and Bellamy were the shooters.2 Smith identified Nowell and Bellamy through two photo lineups. Smith knew Nowell because Nowell was a friend of Smith`s older brother, and Smith and Nowell had worked at the same steakhouse.


On July 16, 2002, Willie H. Nowell and Jermaine Bellamy were charged by indictment with the following crimes: (1) first-degree premeditated murder; (2) attempted first-degree premeditated murder; (3) killing of an unborn child by injury to the mother; (4) armed burglary of a structure while inflicting great bodily harm or death; (5) robbery with a firearm while inflicting great bodily harm or death; (6) kidnapping while inflicting great bodily harm or death; (7) another count of kidnapping while inflicting great bodily harm or death; (8) grand theft of a motor vehicle; (9) possession of firearm by convicted felon (Bellamy); and (10) possession of firearm by convicted felon (Nowell). Bellamy`s trial was severed from Nowell`s trial. Count ten was dismissed when Nowell later pled to other pending charges and to violations of probation. The jury trial commenced on












2. Because Smith had a tracheotomy, he used sign language to communicate.







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September 29, 2005, in the circuit court in Brevard County. The jury returned guilty verdicts on all of the charges, and trial court adjudicated Nowell guilty of each count.


During the State`s penalty phase closing argument, the prosecutor made comments that Nowell argues were improper. Nowell objected to the comments and moved for a penalty phase mistrial after each objection. The trial court overruled the objections and denied the motions for mistrial. The jury issued an advisory sentence that recommended the death penalty for Nowell by a vote of seven to five. A Spencer3 hearing was held on December 12, 2005.


On January 31, 2006, the trial court issued its judgment and sentence. The trial court found four aggravating circumstances applicable to Gill`s murder: (1) Nowell had been convicted of a felony involving the use or threat of violence to the person; (2) the crime for which Nowell was to be sentenced was committed while he was engaged in the commission of or an attempt to commit the crimes of attempted first-degree murder, robbery, and kidnapping; (3) the crime for which Nowell was to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the crime for which Nowell was to be sentenced was a homicide and was committed in a cold, calculated, and premeditated (CCP) manner without any pretense of moral or legal justification.















3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).







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The trial court found four statutory mitigating circumstances: (1) the crime for which Nowell was to be sentenced was committed while he was under the influence of extreme mental or emotional disturbance; (2) the capacity of Nowell to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; (3) the age of Nowell at the time of the crime; and (4) the existence of any other factors in Nowell`s background that would mitigate against imposition of the death penalty. The trial court also found the following nonstatutory mitigating circumstances: (1) Nowell voluntarily surrendered to authorities; (2) Nowell was a good son and friend; (3) Nowell was removed at an early age from his mother and raised in a foster home, grew up without his father, was raised by his mother and stepfather, and was the victim of neglect as a child; (4) Nowell suffered a traumatic incident as a victim of an assault and had been ***ually abused; (5) Nowell was a good employee; (6) Nowell received no psychological or psychiatric treatment; (7) Nowell handled himself acceptably and appropriately at trial; (8) Nowell will adjust well to prison life; (9) Nowell exhibited good behavior in jail prior to and after the verdict; (10) Nowell was involved in religious activities at a young age; (11) Nowell has family and friends who care for and love him; (12) Nowell may have been exposed to negative influences in his life; and (13) society can be protected by a sentence of life imprisonment.







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In evaluating the aggravating and mitigating circumstances, the trial court found that the aggravating circumstances clearly outweighed the mitigating circumstances. The court sentenced Nowell to death for the murder of Michelle Gill; life imprisonment for attempted first-degree premeditated murder; fifteen years for the killing of an unborn child by injury to the mother; life imprisonment for the armed burglary of a structure while inflicting great bodily harm or death; life imprisonment for robbery with a firearm while inflicting great bodily harm or death; life imprisonment for each count of kidnapping while inflicting great bodily harm or death; and five years for grand theft of a motor vehicle. All sentences are to be consecutive.


In his appeal to this Court, Nowell raises five claims of error.4 We only address two of the claims: that the trial court erred in allowing the State`s peremptory strike of Nelson Ortega, a member of a minority group, and that the trial court erred in denying appellant`s objections and motions for mistrial made during the State`s penalty phase closing argument. We will not address the other












4. The five claims raised are: (1) the trial court erred in allowing the State`s peremptory strike of Nelson Ortega, a member of a minority group; (2) the trial court erred in denying Nowell`s objections and motions for mistrial during the State`s guilt phase closing argument; (3) the trial court erred in overruling Nowell`s objections and motions for mistrial when the prosecutor made improper comments during his closing argument in the penalty phase of the trial; (4) the trial court erred in failing to find the death penalty unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); and (5) the trial court erred in finding as a statutory aggravator that Nowell committed the crime to avoid arrest.







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claims because they are rendered moot as a result of our decision. Because we find that the trial court erred in its rulings on these claims, we vacate the judgments and sentences imposed and remand for a new trial.



Peremptory Strike of Prospective Juror


Nowell contends that the trial court erred in allowing the State`s use of a



peremptory challenge against Mr. Ortega, a potential juror who was described as being of Hispanic descent, because the State`s race-neutral reason for the strike was not genuine. The State argues that the trial court properly allowed it to use a peremptory challenge against Mr. Ortega because the prosecutor offered facially race-neutral reasons, namely, that the potential juror was of a similar age to the defendant and that his philosophies on the death penalty might prevent him from following the law, and that the trial court`s decision should be affirmed because it was not clearly erroneous.



It is well settled in Florida that peremptory challenges may not be used to exclude prospective jurors solely because of their race or ethnicity. See State v. Alen, 616 So. 2d 452 (Fla. 1993); State v. Neil, 457 So. 2d 481 (Fla. 1984), receded from on other grounds by State v. Johans, 613 So. 2d 1319 (Fla. 1993).


An individual venireperson has the constitutional right not to be excluded from jury service on the basis of race. See Powers v. Ohio, 499 U.S. 400 (1991).


Potential jurors also have an equal protection right under both the state and federal







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constitutions to jury selection procedures free from stereotypical presumptions that reflect and reinforce patterns of historical discrimination. Rivera v. State, 670 So. 2d 1163, 1165 (Fla. 4th DCA 1996) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994)), receded from on other grounds by Foster v. State, 767 So. 2d 525 (Fla. 4th DCA 2000).5


In Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), we clarified the guidelines that are to be used whenever a race-based objection to a peremptory challenge is made. We stated:


A party objecting to the other side`s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.


At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court`s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.



Id. (footnotes omitted). In determining whether a reason is genuine, the relevant circumstances to be considered may include, but are not limited to, the following:















5. Although the State never asserted that Mr. Ortega was not of a protected class of jurors, we note that Florida courts have recognized Hispanic Americans as a cognizable ethnic group entitled to protection against discrimination in jury selection. See State v. Alen, 616 So. 2d 452, 455 (Fla. 1993); Bernard v. State, 659 So. 2d 1346, 1347 (Fla. 5th DCA 1995).







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the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. Id. n.8.


We acknowledge that peremptory challenges are presumed to be exercised in a nondiscriminatory manner and that the appropriate standard of appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is abuse of discretion.

Hoskins v. State, 965 So. 2d 1, 7 (Fla. 2007) (quoting Jones v. State, 923 So. 2d 486, 490 (Fla. 2006)), cert. denied, 128 S. Ct. 1112 (2008); accord Files v. State, 613 So. 2d 1301, 1304 (Fla. 1992). Generally, the trial court is in the best position to assess the genuineness of the reason advanced, and the decision will be affirmed unless clearly erroneous. See Jones, 923 So. 2d at 490. However, this Court has also confirmed that deference does not imply abandonment or abdication of judicial review, Dorsey v. State, 868 So. 2d 1192, 1200 (Fla. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)), because [d]eference does not by definition preclude relief. Miller-El, 537 U.S. at 340. As we will now explain, we conclude that the State`s race-neutral reasons were clearly pretextual and not genuine and that the trial court therefore committed reversible error in allowing the State to exercise a peremptory challenge against Mr. Ortega.
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