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Penalty phase of Johnston trial to begin

By Staff | Feb 15, 2010

As the penalty phase begins today in the double murder trial of Kemar Johnston, the death penalty remains on the table despite the defense’s attempts to eliminate it.
Johnston, 23, was found guilty Jan. 30 in the October 2006 torture and slaying of Alexis Sosa, 18, and his 14-year-old nephew, Jeffrey Sosa. It took a jury two days and five hours of deliberations to find him guilty of two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon.
Johnston faces life in prison without parole or death.
On Monday, Lee County Circuit Judge Thomas S. Reese heard at least 18 motions filed by the defense, along with a couple from the prosecution. In one or two motions, defense attorney David A. Brener pushed to have the death penalty tossed as a sentencing option for his client.
In one instance, Brener moved to have the death penalty eliminated based on the mental age of the defendant. He said Johnston was 20 at the time of the murders, but has a lower mental age and is borderline retarded because of low testing scores.
“The court is aware the defense is not claiming that Mr. Johnston is mentally retarded,” Brener said. “But it appears he is functioning like a child.”
Assistant State Prosecutor Bob Lee argued that experts who have tested Johnston have found his scores low in some areas, but that Johnston’s IQ score is in the average range.
“Doctors who examined him have him well above the threshold,” he said. “There’s a big difference between IQ and the ability to function.”
Reese denied the motion.
Brener also argued Monday against cold, calculated premeditated murder. He said Johnston’s impairment the night the Sosas were killed was inconsistent with premeditation to the extent that it should not be allowed to go to jury.
“If indeed Kemar was one of the killers,” he said. “It was a warm-bloodied, if not a hot-bloodied, homicide.”
Brener said there may be evidence to support Johnston’s participation in terms of kidnapping and aggravated battery, but that there is insufficient evidence to support cold, calculated premeditated murder.
Lee argued back, stating that there is “ample evidence for premeditation.”
He explained that witnesses testified to Johnston taking charge during the crime and instructing others to commit criminal acts though participating. Lee said the incident may have started as threats toward people, perhaps friends of Johnston, but it “does not justify Kemar Johnston stepping in.”
“Let it go to the jury,” he said. “See if it calls for the death penalty.”
Reese also denied that motion without prejudice. He told Brener that if there is evidence, either for or against premeditation, it must go to the jury.
“Let’s see what’s presented to the jury,” Reese said.
Other motions heard Monday dealt with not questioning witness experts about unrelated cases that involve the attorneys, not referencing prior arrests that did not end in convictions or pending cases that involve the attorneys and allegations of misconduct at the prior employment of one witness.
Some motions Reese denied and some he granted.
According to Samantha Syoen, spokeswoman for the State Attorney’s Office, both sides call witnesses and present either mitigating or aggravating factors to support their case during the penalty phase. The jury will then recommend a sentence to Reese, which he will consider. The final decision though is made by the judge.
“It could take the majority of the week,” she said. “There’s no time limit.”
Johnston was one of 10 people arrested and charged in connection to the murders.
The Sosas were hog-tied, beaten and tortured at a Cape Coral duplex during a birthday party. They were then driven to an industrial park in the north Cape, where they were fatally shot and Alexis’ body was placed in the truck of a car and set on fire. Emergency units responding to a call about a possible fire discovered the car in flames and Jeffrey’s body lying nearby.
Roderick Washington and Ashley Toye were found guilty following separate trials. Washington received four consecutive life sentences plus 30 years in prison, and Toye was sentenced to life in prison without parole.
Melissa Rivera, Iriana Santos, Alexis Fernandez, Cody Roux and Michael Balint have each pleaded guilty to lesser crimes and will receive prison sentences varying between 14 years and 26 years in exchange for their testimony.
Kenneth “Ant” Lopez’s trial is scheduled for May 17.
Paul Nunes, who pleaded guilty in August for a reduced sentence of 40 years in prison, recently was appointed new counsel. On Dec. 28, he requested that his plea deal, which required him to testify against Johnston and Lopez, be withdrawn. He still testified against Johnston, although his plea withdrawal request has yet to be ruled on.
The penalty phase starts at 9 a.m. in courtroom 8A at the Lee County Justice Center in Fort Myers. Assistant State Attorney Marie Doerr is also prosecuting the case, and Terry Lenamon is co-counsel for the defense.