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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. BUXMAN

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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. BUXMAN:

Please the Court, Counsel?

Sexual battery on a child, battery on a law

enforcement officer, battery on a corrections

officer.

after violent felony, all committed by that man

before he murdered Sarah Davis (indicating).

Violent felony, after violent felony,

Ladies and gentlemen, this begins the second

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part of the trial called the penalty phase.

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this portion of the trial the state will present

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evidence to you that relates to several different

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aggravating circumstances.

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later on by the judge what those aggravating

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circumstances are.

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During

You will be instructed

During this phase of the trial, you will hear

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evidence that you have not yet heard, but you can

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also rely on the evidence that was presented to you

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during the guilt phase of this trial last month in

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making your recommendations to the judge in this

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phase.

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All of that evidence of the first portion of

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the trial, along with the evidence that you will

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hear during this phase of the trial, is what we will

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ask you to rely on and focus on and consider when

making your recommendation to the judge as far as

what the proper punishment should be for that man

(indicating) for committing these crimes.

What the proper punishment should be for the

murder of 80-year-old Sarah Davis in her own home.

What the proper punishment should be for someone

with prior violent felonies, for someone who caused

unimaginable pain and suffering --

MR. LENAMON:

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THE COURT:

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MR. LENAMON:

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Objection.

Argument.

All right, do you want to come up?

No, sir, just as to the argument.

This is opening statement.

THE COURT:
the objection.

All right, well, I need to rule on

You want to come up?

(Whereupon, a discussion was held at the

bench.)

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THE COURT:

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MR. BUXMAN:

Overruled.
That is the evidence that we will

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ask you to consider and rely on when determining

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what the proper punishment for the defendant should

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be for this crime and for someone who was involved

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in the commission of a felony at the time of this

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murder.

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is all about.

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That is what the second phase of this trial

The evidence you have already heard and that

you will hear during the course of this phase will

establish beyond a reasonable doubt several

aggravating circumstances in this case, and it is

those aggravating circumstances which cause the

death penalty to be the appropriate punishment in

this case.

The evidence will show that several aggravating

circumstances exist here.

The evidence will show

that the murder of Sarah Davis was committed in an

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especially heinous, atrocious, and cruel manner.

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You will hear again from Dr. Lavezzi who will

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explain in some more detail the injuries that

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Ms. Davis suffered at the hands of the defendant.

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This time, however, she will explain to you and

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the evidence will show that Ms. Davis suffered.

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evidence will show that she was aware of the pain

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that was being inflicted upon her body.

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was not an instantaneous or a quick death, not only

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demonstrated by the defensive wounds on her hands

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and her arms and other portions of her body, but

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also based on the medical evidence and how her body

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reacted to these injuries.

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The

That this

Ladies and gentlemen, the evidence will show

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that she was aware of what was happening to her,

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able to perceive the identity of her attacker, knew

she was being murdered by someone who she trusted

and --

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MR. LENAMON:

Objection.

This is argument,

Judge.

THE COURT:

(Whereupon, a discussion was held at the

Come on up.

bench.)

THE COURT:

Overruled, go ahead.

MR. BUXMAN:

The evidence will show that she

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was able to perceive what was happening to her,

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perceive who was doing this to her, perceive that it

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was being done by someone she trusted.

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The evidence will also show another aggravating

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circumstance.

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of a prior violent felony.

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you will hear from the victim of the crime of sexual

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battery on a child.

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battery conviction back in 1987 when he sexually

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battered then nine-year-old Nona Phillips.

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That the defendant had been convicted

Ladies and gentlemen,

The victim of the sexual

The evidence will show that in 1987,

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nine-year-old Nona Phillips was taken to the

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hospital.

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the doctors examined her, they discovered that she

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had a large laceration, a tear, to her vaginal area.

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That little girl was admitted to the hospital.

Her shorts were soaked in blood and when

Surgery was done the next morning to repair the

damage he did to her.

that the injuries were caused by the defendant in

this case.

Ms. Phillips will tell you

She'll will explain to you that she was staying

with her cousin, Verna Crapps.

Verna Crapps happens

to be the defendant's mother.

Phillips' cousins left the house, the defendant took

her to a back bedroom, pulled down her panties, and

And after Nona

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forced his penis inside of her.

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that she told the defendant to stop, but he didn't.

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She'll tell you

He then tried to cover up what he had done.

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The evidence will show that he told nine-year-old

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Nona Phillips to tell his mother that she got a

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broomstick stuck in her vagina.

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Phillips, ran to the bathroom where she grabbed a

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washcloth and tried to stop the bleeding that had

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begun from the defendant, from an act he committed

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against her.

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Ms. Phillips, Nona

You will also hear from the lead detective,

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Detective Kim Corlew.

She will explain to you when

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she arrived in the hospital she saw Nona Phillips

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and learned what happened and she asked for the

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defendant to be brought to the hospital where she

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could speak with him.

The evidence will show that the defendant was,

in fact, brought there and Detective Corlew did, in

fact, speak with him.

Detective Corlew that his mom and dad left the house

and only the kids were there remaining.

defendant stated that he went into the utility room

and when he came back in he saw Nona Phillips

holding her vaginal area, dancing around, screaming.

And the defendant told

The

He told Detective Corlew that he took her into

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the bathroom and he cleaned her off with a warm

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washcloth and it was then that his parents came back

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to the house.

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he ran outside and said, You need to check on Nona,

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something's wrong with her.

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The defendant told Detective Corlew

The evidence will show that the defendant

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denied knowing how Nona hurt herself initially to

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the detective and suggested maybe it was when she

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was wrestling around with the other kids.

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Detective Corlew, Maybe she ran into a broomstick or

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a vacuum cleaner handle and that's what caused the

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injury to her vaginal area.

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Nona Phillips to tell.

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He told

The same lie he told

Detective Corlew told the defendant he was

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being arrested for sexual battery and it would be

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better and it was time to tell the truth.

Knowing

that he was caught and his story wasn't being

believed, he gave a second interview to the

detective and in that interview the defendant

admitted that he did, in fact, have sexual

intercourse with nine-year-old Nona Phillips.

He explained that Nona came onto him.

explained that Nona started kissing him.

was the one that took her dress off.

the one that wanted to sleep with him.

He
That Nona

That Nona was

That this

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was Nona's fault because she was the one who

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initiated the sexual intercourse, the nine-year-old.

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Ladies and gentlemen, you will hear the

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defendant blamed the nine-year-old child for the

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crime --

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MR. LENAMON:

Objection.

This is argument,

Judge.

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THE COURT:

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(Whereupon, a discussion was held at the

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Come on up.

bench.)
THE COURT:

All right, sustained.

All right,

go ahead.
MR. BUXMAN:

Ladies and gentlemen, that

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episode, that crime, did not end the violent crimes

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the defendant committed in his life before --

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MR. LENAMON:

Objection.

Argument.

That is

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argument, Judge.

THE COURT:

(Whereupon, a discussion was held at the

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All right, Mr. -- come on up.

bench.)
MR. BUXMAN:

The evidence will show that in

1994 the defendant was convicted of more violent

crimes.

and convicted of the crimes of battery on a law

enforcement officer.

The evidence will show that he was arrested

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Later in 2004, you're going to hear that the

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defendant was in the Hernando County Jail when he

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attacked a guard by putting a choke hold on him and

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trying to strangle him.

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pepper sprayed the defendant which finally caused

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him to release his grip on the officer.

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going to hear that the defendant was convicted of

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another violent felony as a result of this crime.

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The corrections officer

You're

The evidence will also show that the defendant

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was -- another aggravating circumstance.

That the

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defendant was engaged in the commission of another

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felony at the time he murdered Sarah Davis.

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virtue of you already finding the defendant guilty

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of burglary of a dwelling while armed in the first

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phase of the trial, you have already determined that

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this aggravating circumstance has been proven beyond

By

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a reasonable doubt and that can be relied upon by

you in making your recommendation to the judge.

Ladies and gentlemen, at the end of the penalty

phase, the state will have proven beyond a

reasonable doubt that several different aggravating

circumstances exist in this case.

this phase, the state will have shown you, through

the facts and the evidence and the testimony, that

the proven aggravating circumstances in this case

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vastly outweigh any mitigating circumstances that

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may exist in this case.

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By the end of

At the end of this phase of the case, ladies

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and gentlemen, we'll ask you to recommend the

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punishment that is justified in this case, the

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punishment that is appropriate in this case.

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will ask you to recommend the punishment that the

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defendant has earned and has deserved --

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MR. LENAMON:

Objection.

This is all argument,

Judge.

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MR. BUXMAN:

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THE COURT:

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(Whereupon, a discussion was held at the

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Judge, that's it.

I'm done.

Come on up.

bench.)
THE COURT:
Mr. Buxman?

All right.

We

Anything further,

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MR. BUXMAN:

THE COURT:

MR. BUXMAN:

Very, very briefly.

All right, go ahead.
Ladies and gentlemen, at the close

of this case, Mr. Magrino is going to stand up here

and ask you to find that the punishment that the

defendant deserves in this case is death.

you.

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* * * * *
(This concludes this excerpt.)

Thank

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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 12 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