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IN THE CIRCUIT COURT, FIFTH.

JUDICIAL CIRCUIT, IN AND FOR
HERNANDO COUNTY, FLORIDA

CASE NO.:

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2010-CF-1105

STATE OF FLORIDA,
vs.
BYRON KEITH BURCH,
Defendant.
________________________/

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EXCERPT OF JURY TRIAL - PENALTY PHASE

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OPENING STATEMENT BY MR. LENAMON

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BEFORE:

THE HONORABLE DANIEL MERRITT, JR.

DATE:

MONDAY, JULY 20, 2015

PLACE:

HERNANDO COUNTY COURTHOUSE

20 NORTH MAIN STREET
BROOKSVILLE, FLORIDA 34601

STENOGRAPHICALLY
REPORTED BY:

SHANNON MASSINGILL, RPR, FPR

REGISTERED PROFESSIONAL REPORTER
FLORIDA PROFESSIONAL REPORTER

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________________________________________________________
JOY HAYES COURT REPORTING
OFFICIAL COURT REPORTERS
407 COURTHOUSE SQUARE
INVERNESS, FLORIDA 34450
BUS:(352)726-4451
FAX:(352)726-9411

A P P E A R A N C E S:

PETER MAGRINO, ESQUIRE

RICHARD BUXMAN, ESQUIRE
OF: OFFICE OF THE STATE ATTORNEY
20 NORTH MAIN STREET
BROOKSVILLE, FLORIDA 34450
(352)754-4255
ESERVICEHERNANDO@SAO5.ORG
APPEARING ON BEHALF OF THE STATE OF FLORIDA

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TERENCE LENAMON, ESQUIRE

MELISSA ORTIZ, ESQUIRE
OF: LENAMON LAW
226 EAST FLAGLER STREET
SUITE 200
MIAMI, FLORIDA 33131
(305)373-9911
TERRY@LENAMONLAW.COM
APPEARING ON BEHALF OF THE DEFENDANT
TANIA Z. ALAVI, ESQUIRE
OF: ALAVI, BIRD & POZZUTO, P.A.
108 NORTH MAGNOLIA AVENUE
SUITE 600
OCALA, FLORIDA 34475
(352)732-9191 FAX-(352)732-4892
TALAVI@ABPLEGAL.COM
APPEARING ON BEHALF OF THE DEFENDANT

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ALSO PRESENT:

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KATHLEEN O'SHEA, MITIGATION SPECIALIST

LENAMON LAW

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DEFENDANT PRESENT, IN CUSTODY

(The following is an excerpt of these proceedings:)

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MR. LENAMON:

Good morning.

Before I get

started, I want to take a moment to thank you for

your service up to this point.

difficult, I'm sure, break with these things

weighing on your mind and you had some great

responsibility that you had to deal with in the

first part of the case and I will be kind of going

It's been a very

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back to some of that during the course of our

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presentation.

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But this is really about the second part, which

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we spent a lot of time talking about during jury

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selection, about your individual responsibility,

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about respecting each other's individual verdicts,

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and about making a sentencing decision individually

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yourself.

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finish your duty, that you are comfortable with

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where you're at, at the end of this.

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So at the end of this, that when you

I thank you.

And I want to begin this journey by talking

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about Byron and Ms. Davis.

Because what you're

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going to learn is that this man here (indicating),

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my client, Byron Burch, is the great grandson of

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Ms. Davis's sister, Beatrice.

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important in part, besides the fact that they are

And that becomes

family, because there were really, as you will hear,

two worlds and one family.

Ms. Davis, her father was Captain Fletcher.

Her mother was Rosa.

and sisters.

a daughter by the name of Odessa.

sister of Fannie.

young girl who was assaulted by Byron.

talk about that in a minute.

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of Verna.

She had a number of brothers

Beatrice was her sister.

Beatrice had

Odessa is the

Fannie is the mother of Nona, the

And we'll

Odessa is the mother

Verna is my client's mother.

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This is important because as you already heard

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and probably recall, Mack Davis, Dr. Davis told you

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his mother was loved, cherished, and someone who is

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extremely beneficial to our community.

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lifelong teacher, she was a civic activist.

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you're going to hear, they're even going to bring

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in, Mr. Magrino is going to bring in the former

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mayor of Brooksville who will talk about some of the

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things, the great things, this woman did.

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She was a
And

You're going to hear from her preacher, you're

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going to hear from a former or a current police

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officer who she touched his life.

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hear a lot of great things about this woman.

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one of the things that you're going to hear

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consistently throughout the testimony about her is

You're going to
And

how she was loving, caring, and forgiving.

caring, and forgiving.

Loving,

And what's important to know is that the world

that she provided for her son Mack and her daughter

Angela is nothing like the world that was provided

for my client, Byron Burch.

hear from a lot of experts over the next several

days.

neurologist, an expert who deals with children who

And you're going to

You're going to hear from a psychiatrist, a

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are sexually abused.

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neuropsychologist and you're even going to see some

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brain imaging that shows you damage to Mr. Burch's

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brain.

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You're going to hear from a

But the story really begins with Odessa, his

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grandmother.

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as we can tell in our investigation, the violence

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began here because Odessa was raped at 15 and

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produced Byron's mother, Verna.

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remember, Beatrice is the grandmother and the sister

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of Sarah.

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When Odessa was 15 years old, as far

And if you

And what you're going to hear is that --

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ultimately you're going to hear and see because

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you're going to get to hear from Verna herself, but

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you're going to get to hear about how this woman who

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is conceived out of rape became victimized herself

on so many different levels.

victimization has a circular pattern.

And as we know,

She ended up having two children, Byron and

James.

murder of Ms. Davis and James was one of the people

that Byron was really closest to.

you're going to hear, though, as that as Verna was

growing up she was victimized and ultimately she met

and became involved in with Byron's father, J.T.

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James died about six months before the

And so what

Now, right now as we sit here, you may or may

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not hear from J.T.

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Jail.

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battery charges of children.

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father.

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ended up with who was abusive, both physically and

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emotionally, and who would rape her on a regular

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basis.

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James, was something that came from rape.

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stayed with J.T. up till the time Byron was about

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four or five years old.

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J.T. is in the Hernando County

He's doing 23 years on multiple sexual

That's my client's

And that's the man that my client's mother

And even the conception of Byron's brother,

She

And you will hear from a number of people who

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J.T. ended up with afterwards.

Another woman,

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Valerie, who will tell you about the violence and

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the treatment.

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show is that my client was sexually abused by J.T.

And what the evidence is going to

when he was about, at the very earliest documented,

when he was about five or six, seven years old.

And Verna will tell you that, how she caught

him, what she did.

more because at the time they weren't really

together and when they were really together, he

wasn't well taken care of by Verna.

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But we suspect there was a lot

And so what you're going to hear is that my

client ended up with another stepfather by the name

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of Anthony Crapps, living in another place.

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that at some point, at the most important time of

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his life when he was around 11 years old, he ended

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up staying with his grandmother for a short period

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of time.

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And

You will hear that conceptually it was to him

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probably the most positive point in his life.

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even though you will hear testimony that Odessa had

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a stepson by the name of Michael who was in his late

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teens, early -- like 19 or 20 years old, that this

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Michael kind of befriended Byron, took him fishing,

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hunting, that he also sexually abused Byron.

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And

And so this is what is going on, you're going

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to hear testimony over the next three or four days,

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both in the form of witnesses and in the form of

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experts who are going to come in and talk about

that, this is what's going on leading up to that

point when the prosecutor talked about this violent

felony.

Now, at the end of the day -- at the end of the

day you're going to get to make a decision on the

weight that you give each of these aggravating

factors.

that you're going to hear is that when Byron was

16 years old, he had been living with Odessa for a

But what happened here is the evidence

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period of time.

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his mother, which he had tried to commit suicide

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when he went back to live with his mother.

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is when he was like 12 or 13 years old.

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He ended up going back to -- with

And this

And then he continued to live with his mother

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and then when he was 15, actually going on 16, he

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met a woman by the name of -- a girl by the name of

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Crystal who was 15 years old.

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to hear from Crystal.

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video/television testimony.

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And so you're going

She's going to appear by

But Crystal ends up being the woman that he has

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children with.

And at the time when he was 16 years

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old, he was certainly in love with her.

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he is 16 -- this is a picture when he's 13.

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didn't have a picture when he was 16.

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16, she is 15, she gets pregnant.

And so when
We

When he is

And so you will hear all this testimony about

how Verna treated her, the dynamics between Verna

him and her.

things that went on with Byron and how his mother

mistreated him, didn't love him, and very favored

the second child, James.

She's going to report to you all the

When she's 15, he's 16, she gets pregnant.

At

some point Odessa dies.

And it's probably one of

the most traumatic things in his life that happens.

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She dies, he goes to the funeral, he has an episode.

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You're going to hear testimony from a number of

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doctors.

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only suffers from what's called chronic traumatic

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encephalopathy which is a brain injury.

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going to tell you that he suffers from trauma.

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They're going to tell you that Byron, not

They're

That he was sexually abused and he suffered

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from trauma with the sexual abuse.

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from bipolar illness.

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have to deal with OCD.

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addicted and began using drugs when he got out of

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prison after he was sent to prison at 16 years old.

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That he suffers

That he has tendencies that

And that clearly he's drug

And when the prosecutor gets up here in closing

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argument and explains all this to you, you'll have

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to make a decision, because I'm going to

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cross-examine their witnesses and present testimony

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on my own, but what happens is, is when he's

16 years old he loses Odessa.

period of bleakness.

He goes through this

And within a couple of weeks, maybe a month of

this happening, the funeral of Odessa, is that

moment in time when he is left alone, unsupervised,

with a number of cousins, including his cousin Nona

who is nine years old at the time.

is nine.

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He is 16.

She

There's no question, we're not excusing what

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happened and that you should consider it, but

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there's going to be a lot of things presented to you

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in the context of how you can consider it and how

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you can weigh it.

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doctor from Vermont.

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specialization is the brain of teenage boys, the

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brain of children, and how they're different than

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the brains of adults.

You're going to hear from a

His name's Fassler and his

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And so we're going to present a whole context

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of information to you to consider in weighing this

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particular aggravating factor and mitigating against

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this particular aggravating factor.

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is the fact that he had been sexually abused

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significantly leading up to this by both his father

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and Michael, the person I told you about.

Including that

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And then so the question is -- and we're going

to have an expert from Boston who comes in, Leslie

Lebowitz, and she's going to tell you -- her

specialization is sexual abuse with children.

going to tell you the cycle that occurs and what

happens.

and she will describe to you her conversation with

him and what's really important.

She's

And she talked to him about this incident

So what you will find out is when he's 16 years

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old then, after he is arrested because his mom ends

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up calling the police when she comes home and finds

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out what happens to Nona, he's arrested and he's

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ultimately charged as an adult.

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And what you're going to discover is that these

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gentlemen over here, back in 1987 had an option:

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Direct file and send a 16-year-old to prison or

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allow him to stay in juvenile and provide treatment

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and rehabilitation.

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but never given.

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Things that was much needed,

And what you're going to find is that the theme

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that you hear over and over, including with his own

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mother who's mentally ill, who's neglectful, who has

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been, you know, somewhat hateful to him, and even

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though she was victimized herself and raped and

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beaten, that she, too, became a victimizer to Byron

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throughout the world.

And you're going to hear from Nona's own mother

who's going to tell you that they, the family --

remember, one family, two worlds -- that the family

outside of Verna were trying to get him help when he

was 10, 11 years old.

some kind of medication, but didn't keep him on

medication when he was 10, 11 years old.

that was something that was significantly not done,

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That Verna had put him on

And that,

much to the detriment obviously of Byron Burch.

And so what you're going to hear is that he

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gets sent to prison when he's 16 and you're going to

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hear from an individual by the name of Ron McAndrew.

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Ron is a former warden at Florida State Prison and a

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number of different prisons.

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you what it was like for a 16-year-old to be sent to

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Sumter Correctional back in 1988; 1987, 1988.

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You're going to hear terms like gladiator camp,

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violence.

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And he's going to tell

And so you're going to hear about this

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16-year-old, this boy, being put into this prison

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and having to deal with the circumstances of the

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prison.

And, yes, he spent his life in and out of

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prison.

You heard about the felonies that they had

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talked about.

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What's going to be interesting to find out

about those felonies to take a sidestep on those for

a second, is in the context of each of those

felonies, after you hear all the testimony, because

you get to decide whether the weight of those

felonies carry any significance, the felonies that

occurred was the incident with Nona, that there was

a battery on a law enforcement in 1994.

was 23 at the time.

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I think he

And that there was a battery on

a corrections officer.

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What you're going to hear about this one is

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that the corrections officer was ultimately fired,

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not related to this incident, and that his

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credibility is hugely in question, because he

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doesn't even remember why he was fired he claims.

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And that there was another corrections officer who

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was in the tower who got a brief look at what

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happened.

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Didn't see what happened before.

But Ron's going to tell you a little bit about,

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and perhaps, not dwelling on the detail, but the

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circumstances of how it works within the prison

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system and the jail system and why he would have

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never even recommended that charges be filed in this

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case.

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The battery on a LEO case involves Byron Burch

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walking with a friend of his, being stopped by two

police officers who are looking for a suspect in

another case.

name, his correct information, and being told that,

Okay, you're not the guy we're looking for, we're

releasing you and releasing him.

Being given his name, his correct

And later on, after they figure out nothing was

going on, one of the officers looks and sees there's

a warrant for a petty crime, a misdemeanor crime, a

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misdemeanor crime which is a less crime for this,

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for Byron, and goes to his house to arrest him for

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that and that there's a struggle that takes place

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while he's being arrested.

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about.

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That's what this case is

This is in 1994.

And you're going to hear from Fatimah, who is

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his aunt, who will tell you that during this period

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of time in Brooksville, Florida there was a lot of

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racial tension going on.

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officers that went to Byron Burch's house and ended

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up arresting him and his brother.

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These are two white

And all of -- this is not being disputed about

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some of the information.

The issue becomes what

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weight you are going to provide each of these in

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deciding the value of those, what they call

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aggravating factors.

And then the incident with

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Nona I've already talked about.

in detail throughout the process more about that.

We're going to talk

So what you're going to hear is during this

period of time, that when he goes to prison at

16 years of age, he has a pregnant girlfriend,

Crystal, and that Crystal has her first child, it's

Alisha is her first child, Alisha while he's in

prison at 16 years of age.

prison and then he ultimately goes back to prison

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And then he gets out of

and he has these children.

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While he's in prison, Christopher is born with

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another father.

And so he -- he knows it's another

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father obviously and he accepts Christopher as his

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own.

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had not what we would consider a conventional

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relationship with his children where he's there

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every day, he's talking to them and seeing them,

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that he's kept in touch with them.

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to hear from them and they're going to tell you how

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much they love him and how important he is to them.

And you're going to hear that although he's

And you're going

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When he gets out of prison in 1987 for that

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sentence, I think he gets out around 1992 or '93, he

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begins a life of drug addiction where he battles

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that addiction consistently throughout his life.

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When he's in prison, out of prison, he's back on it.

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And what you're going to hear from the experts

is, is that there's a circular cycle that exists,

much like the circular cycle that led to the perfect

storm that led to the death of Sarah Davis, where

because of the dysfunction within his world and

because of the mental illness and brain impairment,

that you put all that together with drugs, you have

a really bad combination.

And so what you're going to see and hear is

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that he gets out of prison sometime in December of

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2009 or January of 2010, somewhere around there.

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His brother dies while he's in prison and he has a

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hard time with that happening because this is the

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only person that he's really connected with.

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Remember, it's his only brother and he's the one who

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he went through life with him being closest.

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He's got a dysfunctional mother that for all

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likelihood, and you'll see for yourself and get to

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hear her and judge and make your own decisions on

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her, that this is not someone who provides him the

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nurturing that Sarah Davis provided to Mack and

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Angela in no way, form, close, period.

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And so when he gets out January of 2010, within

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a short period of time he moves in with his mother.

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His mother is a hoarder.

You will hear some

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disturbing things about her behavior which involve

pornography and some other things that is going to

come out from some of the witnesses and the way she

treats people.

And within a -- within a very short period of

time, Byron's trying to work within the labor pool,

which evidence -- you heard some of that evidence in

the first part of the case.

into his old bad habits of using drugs and back on

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But he also is falling

the crack cocaine addiction.

And so thus starts this circular process where

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all this dysfunction from his life -- the rape,

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sexual abuse, the violence he witnessed, the things

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that happened to him in prison, being sent to prison

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when he was 16 -- all those things which we're going

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to present to you over the course of three or four

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days through testimony of witnesses and evidence,

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all that dysfunction is playing out in his world.

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He's got an untreated mental illness, probably

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bipolar, and you're going to hear from a

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psychiatrist on those issues.

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brain that's impaired and he's smoking crack.

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so not being a crack smoking person myself, I

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couldn't describe the need for more crack from a

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normal crack smoker, but imagine someone who has all

He's got a broken

And

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of these things happening to him.

see playing out leading up to the events that

occurred with Ms. Davis.

That's what we

We're not here to make excuses and you all --

all of you told me that you would be able to accept

and weigh the mitigating factors in a meaningful

way, a meaningful way.

weigh those things and make a determination based on

that.

Where you would listen and

Do not be confused that sympathy or feeling

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sorry for someone has anything to do with your

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responsibility involving this.

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At the end of this, what you're going to be

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left with is those events that you make decisions on

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in the back room, both individually and collectively

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in the first phase.

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thought about the different ways that this could

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have happened, the killing.

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come up with your own conclusions or some of you

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could have said that that's not important.

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going to offer something to you through one of the

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doctors of what we think is important for you to

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consider in regards to that.

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And some of you may have

And some of you could

We are

But putting that aside for a second here, the

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responsibility now that you must take is you must

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look at the story of Byron Burch and understand who

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he is and be able to give weight to whatever

mitigating factors there are in existence.

Look at the aggravating factors.

times what you're going to see here is the

aggravators that the state talked about, the one,

two, three, four, they may be proven beyond a

reasonable doubt without question, but the question

becomes the weight that you provide them.

And a lot of

And you're going to hear that we treat children

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differently than we do adults.

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because the reason Fassler's coming in here to talk

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to you is that when you're looking at that one

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aggravating factor involving Nona when he was

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16 years old, I'm going to suggest that when the

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death penalty is in play at the end of my closing

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argument, that you shouldn't even consider that

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aggravating factor based on the fact of his age and

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all the circumstances.

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And that's important

In Florida, in the United States, we don't

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execute juveniles.

And so I'm going to be asking

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you at the end of the day to put that completely

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aside.

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factors and the events that took place within the

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context of the killing of Ms. Davis and those are

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the things that you have to look at.

That's leaving you with the two aggravating

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In the context of everything else, and although

you're going to be considering all the aggravating

factors, do not -- do not forget that all these

aggravating or mitigating factors play into your

consideration of the aggravating factors.

That is the events that took place, Ms. Davis's

death, the killing, how she died, and the state of

mind of the person that you have found, Mr. Burch,

responsible, his state of mind during this event,

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leading up to it, and before.

All of those things

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you must remember that you cannot put aside and

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forget about.

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You know, we talked about when in jury

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selection about your thoughts about Byron having

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this eye and his look and you all promised me you

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would set those aside and that would not be an issue

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at all.

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that when he was ten years old, he was horse playing

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with a cousin of his and the cousin flipped a wire

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and it hit his eye and caused that damage.

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What you're going to hear about his eye is

And so from ten years old he had to deal with,

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besides all of the things we talked about, this

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issue of his eye.

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that some people would refer to him as Cyclops.

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so all -- obviously all those things can be factored

You're going to hear from his mom

And

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in when you're looking at the mitigation that's

involved in this case.

You were very thoughtful and kept an open mind

and listened throughout the first part of this case

and I thank you very much for taking on that

responsibility and doing what your job was to do.

Now I ask you please, keep an open mind.

caught up in like, you know, this is such a horrible

killing, I can't feel sorry for this person.

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just not right.

Don't get

That's

I want to, but I can't.

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Because that's not what the law is.

That's a

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confusing -- confusing look at what the law.

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law says that you must consider the mitigation that

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you find credible and each of you individually have

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to make that determination and decide that when

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you're looking at the evidence in this case and I

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ask that you do that.

The

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And when you do that, I think that, as we

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talked about in detail, that the law allows you to

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vote for death under a circumstance, the word is

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"may".

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aggravation, the word is "must".

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never required to vote for death.

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individual conscious decision on whatever reason you

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want to feel, whether it's tied to something in the

And where the mitigation outweighs the

And that you are
And that's an

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first part of the case or tied to something in the

second part of the case.

But at the end of the day, this is a great

responsibility and I am taking that responsibility

serious and will be giving you as much as I possibly

can.

expert after expert, please listen because each of

those experts bring something to the table that's

important for you to in you making your decision.

So when I call witness after witness and

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At the end of this I believe that the only

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evidence in this case will be that you vote for

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life, that six of you vote for a life recommendation

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and you give that recommendation to the judge and

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that the judge then would sentence Byron to life

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without the possibility of parole.

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getting out.

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He's never

By your first decision in the beginning a

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couple weeks ago, a month ago, you made that

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decision when you found him guilty of first-degree

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murder, he is never getting out of prison.

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the only decision is whether you're going to allow

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his life to be taken by the State of Florida.

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That's the only decision.

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responsibility.

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thank you for listening.

And now

It's a great

I thank you for embracing it.

Thank you, Judge.

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* * * * *

(This concludes this excerpt.)

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CERTIFICATE OF REPORTER

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STATE OF FLORIDA

COUNTY OF HERNANDO

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I, Shannon Massingill, RPR, FPR, Notary Public,

State of Florida, I was authorized to and did

stenographically report the foregoing proceedings; and

that the transcript, Page 1 through Page 23 is a true

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and accurate record of the requested excerpt of my

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stenographic notes.

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I FURTHER CERTIFY that I am not a relative, or

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employee, or attorney, or counsel of any of the parties,

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nor am I a relative or employee of any of the parties'

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attorney or counsel connected with the action, nor am I

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financially interested in the action.

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Dated this 21st day of July, 2015.

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__________________________________
Shannon Massingill, RPR, FPR
Stenographic Reporter
Registered Professional Reporter
Florida Professional Reporter