Florida Supreme Court

opinion 80830

opinion SC01-2706

DC# 368527
DOB:  01/29/66 

Ninth Judicial Circuit, Orange County, Case #92-1305
Sentencing Judge: The Honorable Dorothy J. Russell
Attorneys, Trial: Ed Leinster, Esq. - Private
Attorney, Direct Appeal: Christopher S. Quarles - Assistant Public Defender
Attorney, Collateral Appeals: Jeffrey Hazen, Esq. - Registry 

Date of Offense: 02/07/92

Date of Sentence: 11/10/92

Circumstances of the Offense: 

On the morning of 02/07/92, Curtis Windom learned that Johnnie Lee, an acquaintance who owed him nearly $2,000, had just won approximately $100 at the dog track.  Windom assured Jack Luckett, the man who had told him about Lee’s winnings, that he was going to kill Lee and that Luckett would be sure to read about it. 

That same day, Windom purchased a .38 caliber revolver from Walmart, as verified by the sales receipt.  The clerk who sold him the gun testified that Windom was as “calm as could be.”  Following the purchase, Windom located Lee, who was talking to two women by the side of the road.  Windom pulled up beside Lee and shot him twice in the back.  Windom then got out of the car and shot Lee again at very close range.   

Windom then ran towards the apartment complex where his girlfriend, Valerie Davis, and her mother, Mary Lubin, lived.  Windom, who shared a child with Davis, had lived with her intermittently.  Cassandra Hall, a friend of Davis’, had just arrived at the apartment and witnessed Windom shoot Davis once in the chest.  Hall noted that Davis was shot and killed without provocation. 

As Windom fled the apartment, he encountered Kenneth Williams, who he shot in the chest at a very close range.  Williams survived the shooting.  Williams noted that before Windom shot him, he looked abnormal and visibly disturbed.  Windom fled behind Brown’s Bar, where several men attempted to take the gun away from him. 

By this time, Mary Lubin, the mother of victim Valerie Davis, had learned that her daughter had been shot and was on her way home.  Windom saw Lubin stopped at a stop sign and approached her vehicle.  Windom said something to Lubin before shooting her twice and killing her.

Windom was convicted of three counts of First-Degree Murder and one count of Attempted First-Degree Murder.

*****

Trial Summary

03/03/92          The defendant was indicted on the following charges:

Count I:           First-Degree Murder (Lee)

Count II:          First-Degree Murder (Davis)

Count III:         First-Degree Murder (Lubin)

Count IV:          Attempted First-Degree Murder (Williams)

08/28/92          The jury found the defendant guilty of all counts charged in the indictment.

09/23/92          Upon advisory sentencing, the jury, by a 12 to 0 majority, voted for the imposition of the death penalty for all three murder convictions.

11/10/92          The defendant was sentenced as followed:

Count I:           First-Degree Murder - Death

Count II:          First-Degree Murder - Deat

Count III:         First-Degree Murder - Death

Count IV:          Attempted First-Degree Murder  – 22 Years

*****

Case Information:

On 11/30/92, Windom filed a Direct Appeal in the Florida Supreme Court.  In that appeal, he argued that the prosecutor’s discriminatory use of peremptory challenges denied him the right to an impartial jury and, in turn, a fair trial.  After reviewing the record, the Florida Supreme Court noted:

The defendant relied on this peremptory strike in alleging that it was reversible error for the trial court not to require the State to have and express a race-neutral reason for the challenge.

Consistent with what we have held in Alen and Johans, and from our review of the voir dire record, we conclude, in respect to this prospective juror, that the defendant's expressed objection did not make it necessary for the trial court to require the State to have and express a race-neutral reason for the challenge. We reiterate once again what we stated specifically in Neil: there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side's use of peremptory challenges must make a timely objection which demonstrates on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. We followed this statement in Johans by requiring a Neil inquiry when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. However, a timely objection and a demonstration on the record that the challenged person is a member of a distinct racial group have consistently been held to be necessary.

In Johans, the objection was timely and the factual demonstrations made. Johans, 613 So. 2d at 1321. Moreover, we pointed out in Alen that because the question of one's membership in a cognizable class is a matter of fact, the trial judge is granted discretion in making this determination when an objection is made to a peremptory challenge. Alen, 616 So. 2d at 456.
 
Here, defense counsel did not make a timely objection in which it was demonstrated on the record that this venire person was a member of a cognizable class. We do not find that the trial court abused its discretion by sustaining the subject challenge, and thus reject defendant's first point on appeal.

Windom also argued the admission of victim impact testimony by a police officer during the sentencing phase was error.  The Florida Supreme Court agreed, noting “The testimony in which the police officer testified about the effect on children in the community other than the victim’s two sons was erroneously admitted because it was not limited to the victim’s uniqueness and the loss to the community’s members by the victim’s death.”  Even so, the Florida Supreme Court noted that Windom did not object to the police officer’s testimony specifically and that his claim was procedurally barred.  Windom also claimed that the trial court erred in its consideration and application of the cold, calculated, and premeditated (CCP) aggravating factor.  The Florida Supreme Court noted that while the murder of Johnnie Lee could be deemed cold, calculated, and premeditated, the murders of Valerie Davis and Mary Lubin could not.  Windom, however, in an effort to conceal his drug-trafficking history from being unveiled during the penalty phase, elected not to have any mitigating circumstances presented on his behalf.  As such, evidence in support of aggravating factors far outweighed evidence in mitigation.  On 04/27/95, the Florida Supreme Court affirmed the convictions and sentences of death.

On 10/02/95, Windom filed a Petition for Writ of Certiorari in the United States Supreme Court, which was subsequently denied.

Windom next filed a 3.850 Motion in the State Circuit Court.  That motion was denied on 11/01/01, after which Windom filed a 3.850 Appeal in the Florida Supreme Court.  That appeal was affirmed 05/06/04.

Windom also filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court which was denied 05/06/04.

On 09/15/04, Windon filed a Petition for Writ of Habeas Corpus in the United States District Court, Middle District.  The petition is currently pending.

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