FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Duval County, Adrian
Gentry Soud, Judge - Case No. 62012CF009296AXXXMA
Clinton Andrew Thomas, Public Defender, and Nada M. Carey,
Assistant Public Defender, Second Judicial Circuit,
Tallahassee, Florida, for Appellant
Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant
Attorney General, Tallahassee, Florida, for Appellee
Renard Newberry appeals his conviction for first-degree
premeditated and felony murder and his sentence of death. For
the reasons below, we affirm the conviction but vacate the
death sentence and remand for a new penalty
trial court well explained the facts in its sentencing order:
On December 28, 2009, Defendant [Newberry] set out to commit
an armed robbery of a to-be-determined member of the
Jacksonville community who happened to be located in whatever
vulnerable circumstance provided Defendant the most
advantageous opportunity for gain. Defendant was joined by
James Phillips, who is approximately eighteen (18) years
Defendant's junior, and Robert Anderson, who is
approximately seventeen (17) years Defendant's junior.
Both Phillips and Anderson claim to have participated in the
scheme because each feared Defendant. Further, each testified
that neither had any intention of joining Defendant in the
shooting and killing of any human being.
When the Defendant and his accomplices assembled, Phillips
had two firearms, an AK-47 and a MAC-11. Defendant had his
own gun, a .357 magnum. Once in the car together, Defendant
took possession of the AK-47, along with his .357 magnum.
Anderson had the MAC-11. The three men proceeded to drive to
the desired location to begin their search. Phillips
apparently drove because he had a valid driver's license.
Defendant, Phillips[, ] and Anderson began prowling Duval
County in the area surrounding Myrtle Avenue. After some
time, and unable to find a suitable victim to rob, Defendant
suggested, and the others agreed, to move their hunt to the
region around Pearl Street.
Tragically, at approximately 7:20 p.m. on that fateful day,
Terrese Pernell Stevens was spotted at Club Steppin' Out.
When Defendant spotted Mr. Stevens's car in the parking
lot, he told Phillips to stop the car. Defendant directed
Phillips to go inside the club, locate Mr. Stevens, and
"chirp" Defendant to let him know when Mr. Stevens
was leaving the club.FN
FN. "Chirping" is a method whereby one can use a
certain type of cell phone to direct connect to another cell
phone merely by pressing a button. When this is done, the
recipient's phone chirps.
While Phillips was in the club, and before he alerted
Defendant, Defendant had Anderson move the car. Anderson was
in the driver's seat when Defendant's phone chirped.
He started the car and Defendant, sitting in the front
passenger seat and stretching his foot across the car,
pressed Anderson's foot down on the gas pedal to make the
car go faster. Anderson stopped the car a few feet from Mr.
Stevens's car. After [Anderson] parked the car, Defendant
got out of the car with the AK-47 and ran to the driver's
side of Mr. Stevens's car. Defendant yelled at Mr.
Stevens to "give it up, and if you make one
(explicative} move I'll put it on my daddy that I'm
going to kill you." At that time, Anderson got out of
the car with the MAC-11 and stayed by the driver's side,
never firing the gun. Without warning, and leaving Mr.
Stevens little or no time to comply with Defendant's
demands, Defendant fired twelve shots from the AK-47 [after,
as Anderson testified at trial, Mr. Stevens said "please
don't, don't, don't, don't kill me"].
Mr. Stevens was killed.
Defendant got back in the car, and before Phillips returned
to the car, Anderson and Defendant drove [away]. As they
drove, Defendant offered Anderson money that he took from Mr.
Stevens. At first, Anderson refused the money because it had
blood on it, but eventually he took $75.00 from Defendant.
Phillips, who stayed in the club when he heard the gunshots,
left the club after the police arrived. [After the shooting,
Phillips] called a friend for a ride, and ...