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Filing # 77540624 E-Filed 09/06/2018 03:46:48 PM

IN THE CIRCUIT COURT OF THE NINTH


JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA

CASE NUMBERS: 2016 CF 15738 A


2017 CF 826
STATE OF FLORIDA,
Plaintiff,
vs.

MARKEITH LOYD,
Defendant.
/

DEFENDANT’S MOTION TO PRESENT THE PENALTY PHASE TESTIMONY OF


STATE ATTORNEY ARAMIS AYALA REGARDING THE MITIGATING FACTOR
“THE CIRCUMSTANCES OF THE OFFENSE WHICH WOULD MITIGATE AGAINST
THE IMPOSITION OF THE DEATH PENALTY” PURSUANT TO 7.11 FINAL
INSTRUCTIONS IN PENALTY PROCEEDING CAPITAL CASES EXISTENCE

COMES NOW the Defendant, MARKEITH LOYD, by and through undersigned counsel, and

files this Motion and Notice that he intends to list State Attorney Aramis Ayala as a defense

penalty phase witness and to have her testify in the event that Mr. Loyd is convicted of a capital

offense in either of the above listed cases, and as grounds in support of this motion states the

following:

1. The Defendant is charged with the killing of Sade Dixon and her unborn child as well as

Master Sgt Clayton.

2. Should the Defendant be convicted of either of theses charges, then the jury that heard the

evidence at trial and determined that the Defendant was guilty must then decide whether

the Defendant should spend his natural life in prison or be executed by lethal injection.

3. The jury is mandatorily guided by Florida Statute 921.141 and jury instructions that were

implemented in May of 2018 by the Florida Supreme Court. In order for the Defendant to

receive a death sentence, all twelve jurors must unanimously find that:

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a. The State of Florida has established beyond a reasonable doubt that at least one

aggravating factor has been proven. If they do not find this then the Defendant will be

sentenced to life in prison without the possibility of parole.

b. The State of Florida has established beyond a reasonable doubt that the aggravating

factors are sufficient to warrant a possible death sentence. If they do not find this then

the Defendant will be sentenced to life in prison without the possibility of parole

4. If sufficiency is found unanimously by the jury, then the jury considers mitigation. This is

determined by the greater weight of the evidence. It is an individual process. The law

contemplates that different factors or circumstances may be given different weight or value

by different jurors. Each individual juror must decide what weight is to be given to a

particular factor or circumstance.

c. Individual jurors decide whether mitigation is established by the greater weight of the

evidence.

d. The jury then determines unanimously whether the aggravating factors that were

proven beyond a reasonable doubt outweigh the mitigating circumstances established.

e. Regardless of the results of each juror’s individual weighing process, even if a juror

finds the aggravating factors outweigh the mitigating factors, the law neither compels

nor requires them to determine that the defendant should be sentenced to death.

f. Finally, if the jury unanimously finds that the aggravating factors that were proven

beyond a reasonable doubt outweigh the mitigating circumstances established then

they must unanimously find that the Defendant should be sentenced to death.

5. In deciding whether to consider death as an option, the jury is guided through both the

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presentation of aggravating factors and mitigating circumstances. The aggravating factors

are limited by Florida Statute. Mitigation is anything that warrants a sentence less then

death. This includes anything related to the circumstance of the offense and any other

factor in the defendant’s background.

6. The current Florida Jury Instructions implemented by the Florida Supreme Court in May

of 2018 reads in part:

Among the mitigating circumstances you may consider are:


(8) The existence of any other factor in (defendant’s) character, background, or life or the
circumstances of the offense that would mitigate against the imposition of the death
penalty.

7. In Lockett v. Ohio, 438 U.S. 586 (1978), Chief Justice Burger writing for the plurality,

stated: “We conclude that the Eighth and Fourteenth Amendments require that the

sentencer…not be precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.

8. On November 8, 2016 Aramis Ayala was elected State Attorney in the Ninth Judicial

Circuit.

9. On February 15, 2017 Ayala sought and received grand jury indictments against Mr. Loyd

in the above listed cases for the killings of Clayton, Dixon and her unborn fetus. Preceding

the indictment both Ayala and her assistants met with police and carefully examined the

investigation and circumstances of both cases. They carefully prepared the evidence to be

presented to the grand jury. They scrutinized every aspect available to them looking at the

events that transpired, including the fact that a firearm purportedly belonging to Sade

Dixon was recovered at the scene. They examined and discussed policy and procedure

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issues relevant to the Clayton shooting which occurred outside a busy front entry area of

Walmart. They were made aware of the text messages that occurred between Dixon and

the Defendant that supported a domestic ongoing disagreement including statements made

by Dixon relevant to the unborn child. They were provided and viewed video footage of

the shooting involving Clayton.

10. After obtaining the Indictments, State Attorney Ayala carefully scrutinized the facts of

both cases through an “evidence based” analysis. The factors she considered included but

were not limited to:

a). Factors discussed in Florida’s death penalty statute, and;

b). Discussions with victims’ families.

11. Ayala’s testimony as to the why and how she reached her conclusion regarding the

circumstance of the offense is relevant testimony for the jury to consider in determining

the existence of particular mitigating circumstances and the weight each individual juror

decides to give it (if they believe it has been proven by the greater weight of the evidence).

12. Ayala’s testimony is significant in that as the sitting and elected State Attorney, she

determined that despite the interpretation that these crimes were “brutal”, the brutality was

nevertheless outweighed by mitigating factors that guided her to a decision not to seek

death.

WHEREFORE, Mr. Loyd respectfully gives notice that he intends to list State Attorney

Ayala as a penalty phase witness and, if necessary, compel her mitigation testimony on his behalf.

Respectfully submitted on this 6th day of September, 2018.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing motion was served via
Efiling notification on the Office of the State Attorney on this 6th day of September, 2018.

/S/Terence Lenamon, Esquire


Florida Bar No. 0970476
Law Offices of Terence M Lenamon P.A.
245 SE 1st Street
Suite 404
Miami, FL 33131
305-373-9911
Attorney for the Defendant

/S/Teodoro Marrero, Jr., Esquire


Florida Bar No. 818127
tmarrero@mrlawfl.com
MARRERO LAW FIRM, P.A.
100 South Orange Avenue
Suite 300
Orlando, Florida 32801
407.459.1226
FAX 407.915.4137
Attorney for the Defendant