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Newberry v. State

Supreme Court of Florida

December 12, 2019

RODNEY RENARD NEWBERRY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          An Appeal from the Circuit Court in and for Duval County, Adrian G. Soud, Judge - Case No. 162012CF009296AXXXMA

          Andy Thomas, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant

          Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, Florida, for Appellee

          PER CURIAM.

         This case is before the Court on direct appeal from a resentencing.[1] Rodney Newberry appeals his sentence of death for the 2009 first-degree murder of Terrese Pernell Stevens. For the reasons we explain, we affirm Newberry's death sentence.

         I. BACKGROUND

         We set forth the following facts in Newberry's first direct appeal:

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.
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 [later met up with Newberry and Anderson]. Both men gave Phillips $20.00 of the money Defendant took from Mr. Stevens.
The owner of Club Steppin' Out testified that she was inside the club at the time of the shooting and, although she did not see the shooting, she heard the gunshots and called the police. Law enforcement officers who responded to the scene testified that the victim was lying across the front seat of his vehicle and that they recovered twelve 7.62 x 39 mm rifle casings from the scene. No weapons were recovered by law enforcement.
In the months following the crime, Michelle Massey, who saw Newberry, Phillips, and Anderson with guns earlier in the day on the day of the murder and whose phone Newberry was using on the day of the murder, assisted police with obtaining information that led to Newberry being charged with the victim's murder. Prior to Newberry's trial, Anderson and Phillips both pled guilty to second-degree murder and armed robbery for their roles in the crime. Anderson also pled guilty to possession of a firearm by a convicted felon. Neither had been sentenced at the time of Newberry's trial, at which they both testified that Newberry shot the victim.

Newberry v. State, 214 So.3d 562, 563-65 (Fla. 2017) (alterations in original) (footnotes omitted) (quoting trial court's order).

         The jury found Newberry "guilty of first-degree premeditated and felony murder and armed robbery and further found that Newberry 'discharged a firearm causing death or great bodily harm during the commission of the offense.'" Id. at 565. This Court "affirm[ed] the conviction but vacate[d] the death sentence and remand[ed] for a new penalty phase," concluding that ...


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