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Killer Awaits Resentencing

Tribune photo by Fred Bellet

Brittany Green, 16, a Zephyrhills High School FFA member, enters the arena with her 1,222-pound steer, Gator. Gator weighed about 500 pounds when she started taking care of him seven months ago.

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By TODD LESKANIC, The Tampa Tribune

Published: February 23, 2008

DADE CITY - Nearly seven years ago, then-Circuit Judge Maynard Swanson unloaded on Lawrence Joey Smith in a 32-page sentencing order sending Smith to death row.

In it, Swanson called Smith a "merciless executioner." The judge went on to write, "The attempted murder of Stephen Tuttle, coupled with the murder of Robert Crawford, shows the defendant as almost a serial killer."

Although powerful, those words held no sway when compared with a single word Swanson wrote in the order's final paragraph. That single word - "required" - has kept Smith off death row since 2004 and will have him back in an east Pasco courtroom Monday morning for resentencing.

The line in Swanson's order read this way: "The Legislature of this state has required that death must be imposed when the aggravating factors far outweigh the mitigating factors."

The statement is nearly true. Attorneys who don't work death penalty cases might even think it is true. But the subtle inaccuracy didn't escape the keen eyes of the Florida Supreme Court justices who reviewed the case.

According to Florida law, there is no requirement that a jury recommend or a judge impose a death sentence even if the aggravating factors outweigh the mitigators. The presence of greater aggravators only allows consideration of the death penalty.

The high court explained the problem with the error in its January 2004 opinion nullifying Smith's death sentence:

"Because it is not evident to this Court whether the trial court simply misstated the law or would have considered imposing a sentence of life imprisonment if he thought it permitted and thus misapplied the law, we remand this case for resentencing by the trial court."

The error and subsequent ruling sent the case into a maze of hearings and delays leading up to Monday's proceeding. The legalities involved can be frustrating to victims' relatives who must wait and then relive parts of the painful past.

Crawford's mother, Patty Brink, has tried to keep things in perspective.

"I have to look at it from the viewpoint that we are lucky to have our justice system and the freedoms associated with it," she said in an e-mail. "I personally do not believe that someone who has already been convicted and remains convicted, as Joey is, should have that freedom.

"Unfortunately, sometimes the bad people get to take advantage of the system, but it's important that we have the rights we have."

Assistant State Attorney Manny Garcia will be tasked with choosing a jury, presenting evidence of the 1999 shootings and then asking that jury to again send Smith to death row.

Smith, who plans to represent himself with help from New Port Richey lawyer Keith Hammond, will offer evidence to convince jurors that he deserves a life sentence. The resentencing could take up to eight days.

In Smith's first trial, jurors voted 8-4 to recommend death. At least seven jurors must vote for death for a judge to consider imposing the sentence.

Smith and co-defendant Faunce Pearce were charged with driving Crawford, 17, and Tuttle, then 16, to a remote part of State Road 54 and shooting them in the head. Crawford died on the side of the road. Tuttle survived and was able to flag down help.

Testimony from Smith's trial indicated the incident was drug-related.

Pearce, 45, also was convicted of first-degree murder in 2001 and sentenced to death. In 2006, Circuit Judge Lynn Tepper overturned his conviction and sentence when she found he received poor legal representation.

Prosecutors have appealed that ruling to the state Supreme Court.

Reporter Todd Leskanic can be reached at (352) 521-3156 or tleskanic@tampatrib.com.

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