Court ruling could affect death row

OKEECHOBEE — U.S. Supreme Court rules state’s manner of issuing a death sentence unconstitutional.

The U.S. Supreme Court has ruled Florida’s manner of issuing a death sentence is unconstitutional, which could now lead to a slew of filings by defense attorneys.

High court justices ruled Tuesday, Jan. 12, that the manner in which Florida issues a death sentence violates the Sixth Amendment.

What this means is an already bogged down judicial system may now slow to a crawl.

“Defense attorneys will start filing motions to start resentencings and it will go through the court system,” explained assistant state attorney Ashley Albright. “The possible result is we’ll have to start picking new juries and go through new sentencings.”

It’s unknown at this time if the Supreme Court’s ruling is retroactive. If it is, then the four men on death row who were sentenced to death for their crimes in Okeechobee County will receive new sentencing hearings.

Those four convicted murderers are: Harold Lee Harvey, 53; Neil Salazar, 48; Terry Ellerbee, 30; and, Dale Middleton, 42. Three of those — Salazar, Ellerbee and Middleton — were prosecuted by Mr. Albright.

“We don’t have the answer to whether or not this is retroactive. They (the Supreme Court justices) pretty much said ‘we’ll let the state figure it out,’” said Mr. Albright. “My gut reaction is we’re going to be doing all new sentencings.”

At the heart of the court’s ruling is the manner in which the death sentence is handed down in Florida.

Prior to this ruling, a 12-person jury would either recommend the defendant receive life in prison or death. Then, the presiding judge would decide if the defendant would be put to death.

“They (justices) found that because the death penalty is an enhancement over a life sentence, only the jury could make a finding of fact and not the judge,” Mr. Albright explained.

Supreme Court justices said: “We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”

Justice Samuel Alito Jr. voted against the ruling.

The ruling came about via an appeal for Timothy Lee Hurst who murdered his co-worker in 1998. The victim, Cynthia Harrison, was bound, gagged and stabbed more than 60 times. It was estimated her death could have taken as long as 15 minutes to occur.

With the aggravators in mind, the jury recommended Hurst be put to death and the presiding judge so ruled. The aggravators included the heinous and atrocious manner of death and that Hurst was committing a robbery.

At a 2012 resentencing, Hurst offered mitigating evidence that he was not a major participant in the murder because he was at home when it happened.

The sentencing judge told the advisory jury it could recommend a death sentence if it found at least one aggravating circumstance beyond a reasonable doubt — that the murder was especially heinous, atrocious or cruel, or if it occurred while Hurst was committing a robbery.

The jury suggested death by a 7-5 vote.

The judge then sentenced Hurst to death and based her sentence, in part, on her independent determination that both the heinous murder and robbery aggravators existed. The Florida Supreme Court affirmed that judge’s sentencing by a 4-3 vote.

The Hurst case is similar to that of Middleton’s, who was convicted of killing Roberta Christensen in 2009 after she declined to loan him some money.

After killing Mrs. Christensen, Middleton took her 42-inch television and sold it so he could buy drugs.

Middleton appealed his sentence, but it was upheld by the Florida Supreme Court in 2015. The justices ruled by a 7-0 vote that Middleton should be put to death.

The state’s high court also refused to overturn Salazar’s conviction and death sentence on his appeal in 2008.

Salazar was convicted  in 2006 for killing Evelyn ‘Jenny’ Nutter in her Fort Drum Home in June of 2000.

Julius Hatcher actually pulled the trigger, but he did so out of fear for his own life. Salazar had told Hatcher he would kill him if he did not shoot and kill Ms. Nutter and Ronze Cummings, who was living with her at the time. Cummings survived his wounds.

Hatcher testified against Salazar and was given a life sentence instead of the death penalty.

In 2010 Ellerbee was sentenced to death for the killing of 72-year-old Thomas R. Dellarco in September of 2006.

Ellerbee shot and killed the man’s German Shepherd, Rikki, then hid in the man’s home. When Mr. Dellarco returned home and sat down at his kitchen table, Ellerbee stepped out of the master bedroom and shot the elderly man in the head. Ellerbee then dragged the man’s body into the garage and covered it with a blanket.

As for Harvey, he was sentenced to death in 1986 after he and Harry Scott Stiteler killed William and Ruby Boyd on Feb. 23, 1985, after the couple had given the two men some money.

Stiteler avoided a death sentence when he entered into a plea deal with the state and, as a result, was sentenced to life in prison.

According to testimony when the Boyds learned of the two men’s plot to kill them, the couple tried to flee on foot. But, they were shot to death by Harvey.

As of Jan. 14, 2016, there were 390 inmates on death row in state prisons, stated the Florida Department of Corrections (DOC). The ethnicity and gender breakdown of those inmates was: 222 white males; 151 black males; 12 ‘other’ males; 1 white female; two black females; and, 2 ‘other’ females.

Eric Kopp is a staff writer for the Okeechobee News

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