throbber
IN THE CIRCUIT COURT, SEVENTH
`JUDICIAL CIRCUIT, IN AND FOR
`ST. JOHNS COUNTY, FLORIDA
`
`CASE NO.: CF11-1604
`DIVISION: 56
`
`STATE OF FLORIDA
`
`vs.
`
`SEAN ALONZO BUSH,
`Defendant.
`
`SENTENCING ORDER
`
`The Defendant Sean Alonzo Bush is before this Court for imposition of
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`sentence pursuant to the jury's findings of guilt for First Degree Murder and
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`Burglary of a Dwelling with an Assault or Battery while Armed with a Firearm, as
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`charged in the Indictment. After considering the evidence adduced at trial during
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`the guilt and penalty phases, the jury's verdicts, the memoranda submitted by the
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`parties, the evidence and arguments of counsel before the Court at the Spencer
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`hearing¹, and the applicable law, the Court finds as follows:
`
`L
`
`PROCEDURAL HISTORY
`
`Sean Bush was indicted by a St. Johns County Grand Jury on September 8,
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`2011, for the First Degree Premeditated and Felony Murder of Nicole Bush (Count
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`¹ Spencer v. State, 615 So.2d 688 (Fla. 1993).
`
`1
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`Filed for record 12/21/2017 01:54 PM Clerk of Court St. Johns County, FL
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`

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`I) and Burglary to a Dwelling with an Assault or Battery while Armed with a Firearm
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`(Count II). Trial in this case commenced with voir dire on July 17, 2017. A St.
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`Johns County jury returned a verdict on August 2, 2017, unanimously finding the
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`Defendant guilty of both counts charged in the Indictment.
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`Pursuant to the jury's verdict in the guilt phase of the trial, the same jury
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`returned for the penalty phase of the trial on August 14, 2017, to determine the
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`appropriate sentence for Count I of the Indictment (First Degree Murder). The
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`penalty phase was conducted in accordance with Fla. Stat. §921.141(2017). On
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`August 17, 2017, the jury returned its penalty phase verdict unanimously finding the
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`Defendant should be sentenced to death for the First Degree Murder ofNicole Bush.
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`A Spencer hearing took place on November 3, 2017, and sentencing was
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`scheduled for today.
`
`II.
`
`FACTS
`
`The facts adduced at trial revealed the following:
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`The victim Nicole Bush was the Defendant's third wife. During the course of
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`their marriage, Nicole and Sean Bush became the parents of Malik and Jalen Bush.
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`Nicole and the Defendant eventually separated.
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`In May 2011, Nicole resided in a
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`townhome in the Julington Creek Plantation neighborhood located in northwest St.
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`Johns County, Florida. The Defendant resided in a home located on the west side of
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`Jacksonville, Duval County, Florida.
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`Malik and Jalen Bush, who primarily resided with their mother, spent
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`Memorial Day weekend in 2011 with the Defendant. The Defendant arranged to
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`keep the two boys until the day after Memorial Day. During the early morning hours
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`of Tuesday, May 31, 2011-the day after Memorial Day, the Defendant left his
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`residence in Jacksonville while his two sons were asleep at that residence. The
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`Defendant drove to Nicole's residence in St. Johns County.
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`The Defendant
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`surreptitiously entered Nicole's townhome, disarmed the alarm system at 5:47 a.m.,
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`proceeded upstairs to where Nicole was asleep, and shot her six times at close range
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`with a .22 caliber firearm. Three ofthe gunshots were fired through a pillow in order
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`to muffle the sound of the gunshots. The six gunshots did not kill or render Nicole
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`unconscious. The Defendant then retrieved an aluminum baseball bat that Nicole
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`kept in her bedroom and repeatedly beat her with the bat. The Defendant then
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`stabbed Nicole multiple times.
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`Dr. Jesse Giles, the medical examiner who performed the autopsy on Nicole,
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`could not determine from his autopsy whether the victim was initially shot or beaten
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`with the bat; however, he did opine the stab wounds followed the shooting and
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`beating. Although the autopsy could not determine the order in which victim was
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`shot and beaten, forensic evidence at the crime scene made it apparent the gunshots
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`were fired while Nicole was in her bed, and she was beaten and then stabbed
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`following the gunshots.
`
`3
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`The Defendant left the scene after his attack on Nicole. Nicole remained
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`conscious throughout the attack. Following the attack, Nicole managed to place a
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`phone call to her friend Tracie Walker. During the initial call, Nicole was unable to
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`say anything. Ms. Walker called her back and Nicole managed to ask for help. Not
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`sure of what she heard, Ms. Walker called another friend of Nicole's, Lenora Jerry,
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`and asked Ms. Jerry to call Nicole. Ms. Jerry then called Nicole who was able to
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`whisper a request for help. The police were called and first to respond was St. Johns
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`County Deputy Graham Harris, who found Nicole conscious but severely wounded.
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`Moments later St. Johns County Fire Rescue responded to Nicole's residence and
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`likewise found her conscious. Nicole was transported to the hospital where she died
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`later that morning. Dr. Giles opined Nicole died as a result of severe blood loss
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`following the shooting, beating and stabbing.
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`In the days following the murder, police processed the crime scene and
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`eventually discovered the bat used to beat Nicole hidden in a sofa downstairs in the
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`townhome, as well as the victim's laptop and jewelry hidden behind a dresser in the
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`upstairs bedroom where Nicole was found. Once police completed processing the
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`crime scene, they released the townhome to only the Defendant. Prior to releasing
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`Nicole's townhome to the Defendant, police hid cameras to see if the Defendant
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`would return to the areas where the bat, laptop and jewelry were found. Once the
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`scene was released to the Defendant, he returned to the townhome, shut off all the
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`lights and could be seen using a flashlight in the area where the victim's jewelry and
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`laptop were discovered hidden behind the dresser.
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`In addition, the cameras were
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`able to detect displacement of the sofa cushion in the immediate area where the
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`Defendant had hidden the bat.
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`Subsequent
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`forensic analysis of the bat determined the presence of the
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`Defendant's DNA on the handle. The Defendant denied any knowledge of the
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`existence of the bat.
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`Additionally, while processing Nicole's townhome, police discovered bloody
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`shoeprints. The police subsequently obtained several pairs of shoes from the
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`Defendant. The Defendant's shoes were compared to the bloody shoeprints found
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`at the crime scene. Florida Department of Law Enforcement (FDLE) analyst Lynn
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`Ernst opined that five pairs of the Defendant's Timberland boots matched in class
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`characteristics (sole design and size) to the bloody shoeprints found at the crime
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`scene.
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`Following the murder, detectives met and spoke with the Defendant on a
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`number of occasions. Some ofthose discussions were video recorded in an interview
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`room at the St. Johns County Sheriff's Office. During one recorded interview, after
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`the detective left the room but the video recording continued, the Defendant is
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`overheard stating to himself that he would be going to prison. During another
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`interview in which a detective discussed with the Defendant the forensic analysis
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`s
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`

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`that would be taking place, again while in the interview room by himself, the
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`Defendant is overheard expressing concern that he had been scratched by the victim.
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`Further, during interviews with detectives, the Defendant initially told police
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`that on the morning of the murder he only briefly left his residence while his sons
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`slept to check gas prices at a neighborhood gas station. Later, the Defendant changed
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`his story and told a detective that during the early morning hours of May 31, 2011,
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`he left his residence for several hours while his sons slept and parked outside of
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`another woman's home that he was interested in. The Defendant persisted in his
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`denial of any involvement in Nicole's murder.
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`As part oftheir investigation police asked the Defendant if they could inspect
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`his computer, which he agreed. Shortly after Nicole's murder, the Defendant
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`produced to police a Dell
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`laptop computer. The police inspection of the laptop
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`revealed the hard drive in the laptop had been wiped clean of most files including
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`the operating system. After the Defendant's arrest in August 2011, during a recorded
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`telephone call from jail, the Defendant asked his then girlfriend Sharon Bennett to
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`go to his residence and get his computer. Police subsequently went to Ms. Bennett
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`and obtained the laptop computer she retrieved at the Defendant's request, which
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`turned out to be the same Dell laptop previously examined by police and returned to
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`the Defendant. Upon subsequent examination of the laptop, police discovered it
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`contained a different hard drive. A review by police of the hard drive found in the
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`6
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`computer at that time, revealed that months prior to the murder of Nicole, the
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`Defendant conducted internet searches to determine how to make a homemade
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`suppressor or sound muffler for a .22 caliber firearm-the same caliber firearm used
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`to shoot Nicole.
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`Based on the aforementioned evidence, the jury found the Defendant guilty of
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`First Degree Murder and Burglary to a Dwelling with an Assault or Battery with a
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`Firearm.
`
`III. AGGRAVATING FACTORS AND MITIGATING
`CIRCUMSTANCES
`
`At trial, the State ofFlorida presented evidence relating to five (5) aggravating
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`factors. The Defendant presented evidence relating to thirty-four (34) non-statutory
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`mitigating circumstances at the penalty phase. The Defendant proposed additional
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`mitigating circumstances at the Spencer hearing. The Court will now discuss the
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`aggravating factors and mitigating circumstances.
`
`A.
`
`Aggravating Factors
`
`At the penalty phase, the State relied on five (5) aggravating factors, for which
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`it had given the defense notice in advance of trial as required by Fla. Stat.
`
`§782.04(1)(b)(2017) and §921.141(1)(2017). Pursuant to the directives of the
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`United States Supreme Court in Hurst v. Florida, 577 U.S. __; 136 S.Ct. 616; 193
`
`L.Ed.2d 504 (2016) and Fla. Stat. §921.141(2)(a)(2017), the jury was instructed that
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`in order to find the existence of an aggravating factor it must unanimously determine
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`7
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`the aggravating factor has been proven beyond a reasonable doubt. The evidence
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`for the aggravating factors was adduced during the guilt phase, as well as the penalty
`
`phase of the trial. At the conclusion of the penalty phase, the jury unanimously
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`found the State had proven each of the five (5) aggravating factors asserted beyond
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`a reasonable doubt. Each aggravating factor unanimously determined by the jury to
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`exist beyond a reasonable doubt is discussed below.
`
`i.
`
`The Defendant was previously convicted ofanother capitalfelony or of
`afelony involving the use or threat ofviolence to theperson. Fla. Stat.
`§ 921.141 (6)(b)(2017)
`
`During the penalty phase,
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`the State introduced a certified judgment and
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`sentence showing the Defendant was convicted of Aggravated Assault, a felony
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`involving the use or threat of violence to a person,
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`in New Jersey in 2001.
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`Additionally, the State called Cherise Conte-Bush, the victim of that Aggravated
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`Assault, to testify during the penalty phase. Ms. Conte-Bush was the Defendant's
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`second wife and mother of his daughter Gayla Bush. Ms. Conte-Bush testified that
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`on her 30th birthday (April 15, 2000) the Defendant planned a "romantic evening"
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`with her which was to begin with her taking a bath. The Defendant told Ms. Conte-
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`Bush he had a surprise for her and directed her to remain in the tub. The surprise
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`the Defendant had for Ms. Conte-Bush turned out to not be what she expected.
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`Unbeknownst to Ms. Conte-Bush, the Defendant fashioned a device to electrocute
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`her while she was in the bath. The Defendant hooked up an electrical cord to a metal
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`8
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`rod so it would be electrified. The Defendant returned to the bathtub and threw the
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`electrified rod into the tub in an effort to electrocute Ms. Conte-Bush. When Ms.
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`Conte-Bush tried to get out of the bathtub, the Defendant tried to choke her and push
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`her back into the bathtub. The police were called, the Defendant was arrested, and
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`he was ultimately convicted of Aggravated Assault.
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`The jury unanimously found this aggravating factor had been proven beyond
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`a reasonable doubt. (Question A.1 in the Jury's Verdict As To Sentence) This Court
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`agrees with the jury's finding regarding this aggravating factor.
`
`The Florida
`
`Supreme Court has explained that the "prior violent felony" aggravating factor is
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`one of the "most weighty in Florida's sentencing calculus." Sireci v. Moore, 825
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`So. 2d 882, 887 (Fla. 2001). The nature of the circumstances involved in the
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`Defendant's Aggravated Assault conviction wherein he tried to electrocute his
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`second wife, considered in concert with the facts of the instant wherein the
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`Defendant killed his third wife, results in this Court giving this aggravating factor
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`GREAT WEIGHT.
`
`ii.
`
`The capitalfelony was committed while the defendant was engaged, or
`was an accomplice,
`in the commission of .
`.
`. burglary. Fla. Stat.
`§921.141(6)(d)(2017)
`
`The evidence supporting this aggravating factor is derived from the facts of
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`the case presented during the guilt phase of the trial. The jury unanimously found
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`the Defendant guilty of Burglary to a Dwelling with an Assault or Battery while
`
`9
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`Armed with a Firearm, as charged in the Indictment. That alone demonstrates the
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`existence of this aggravating factor. The facts surrounding this aggravating factor
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`play a strong role in determining its weight.
`
`The evidence at trial revealed that during the early morning hours of May 31,
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`2011, the Defendant left his residence in Jacksonville and drove to Nicole Bush's
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`townhome. Once there, he entered the townhome with the intention of assaulting,
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`battering and killing Nicole. The Defendant entered through the garage, using the
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`keypad code known to him, entered the townhome using a key he knew was hidden
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`in the garage, and disarmed the alarm system by entering the master code known to
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`him. The Defendant then ascended the stairway to the bedroom where Nicole was
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`asleep and proceeded to shoot her multiple times with a .22 firearm, beat her
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`repeatedly with an aluminum baseball bat, and stab her multiple times, leaving her
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`to die from her wounds. The purpose of the Defendant's unlawful entry into the
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`residence was not to steal anything - although he would hide the victim's laptop and
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`jewelry to make police think it was done for that purpose - but to kill his estranged
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`wife.
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`The jury unanimously found this aggravating factor had been proven beyond
`
`a reasonable doubt. (Question A.2 in the Jury's Verdict As To Sentence) This Court
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`agrees with the jury's finding regarding this aggravating factor. This Court gives
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`this aggravating factor GREAT WEIGHT.
`
`10
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`iii.
`
`The capital felony was committed for pecuniary gain. Fla. Stat.
`§921.141(6)(f)(2017)
`
`The aggravating factor that the murder was committed for pecuniary gain has
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`been held to apply only where the "murder is an integral step in obtaining some
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`sought-after specific gain." Hardwick v. State, 521 So.2d 1071, 1076 (Fla. 1988).
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`The evidence must establish that the murder was motivated, at least in part, by a
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`desire to obtain money, property, or other financial gain. Durousseau v. State, 55
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`So.3d 543 (Fla. 2010); Finney v. State, 660 So.2d 674, 680 (Fla. 1995); Hildwin v.
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`State, 727 So.2d 193, 195 (Fla. 1998); Rogers v. State, 783 So. 2d 983, 993 (Fla.
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`2001).
`
`The evidence supporting this aggravating factor was presented during the guilt
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`and penalty phases of the trial.
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`It is undisputed that prior to his murder of Nicole
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`the Defendant was broke. He had not been employed for some period of time, he
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`was struggling to pay his rent, his bank accounts were nearly empty, and he had been
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`asking friends and family for money. Prior to her death, Nicole was trying to finalize
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`the divorce between her and the Defendant, which would have likely resulted in a
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`child support obligation for the Defendant, making his dire financial situation even
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`worse.
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`Nicole had life insurance policies in place wherein the Defendant stood to gain
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`over $800,000 upon her death as beneficiary on the policies. During a recorded
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`telephone call to the life insurance insurer, wherein the Defendant was attempting to
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`11
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`make a claim on the policies following Nicole's death, he made statements reflecting
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`his knowledge prior to Nicole's murder that he was the beneficiary on the
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`aforementioned policies. Moreover, during the penalty phase the Defendant's
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`cousin Noel Chambers testified that the Defendant mentioned to him prior to
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`Nicole's death that he was a beneficiary on her life insurance policy. It was apparent
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`from the trial testimony that the murder ofNicole was motivated by the Defendant's
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`desire to collect on her life insurance policies and remedy his grim financial
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`situation.
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`There is no improper doubling or merging of the aggravating factor of
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`pecuniary gain with the aggravating factor that the murder occurred while the
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`Defendant was engaged in the commission of a burglary, because the burglary was
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`committed with the intent of assaulting, battering or killing Nicole in her residence,
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`as explained above. The consideration oftwo or more aggravators is improper when
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`the aggravators are based on the same aspect of the crime; however, the facts of a
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`case may support multiple aggravating factors "so long as they are separate and
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`distinct aggravators and not merely restatements of each other." Spann v. State, 857
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`So. 2d 845, 856 (Fla. 2003); Rose v. State, 787 So.2d 786, 801 (Fla.2001)). Such is
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`this case with this aggravating factor.
`
`The jury unanimously found this aggravating factor had been proven beyond
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`a reasonable doubt. (Question A.3 in the Jury's Verdict As To Sentence) This Court
`
`12
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`agrees with the jury's finding regarding this aggravating factor. This Court gives
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`this aggravating factor GREAT WEIGHT.
`
`iv.
`
`The capitalfelony was especially heinous, atrocious, or cruel. Fla. Stat.
`§921.141(6)(h)(2017)
`
`The Florida Supreme Court has held this aggravating circumstance would
`
`apply "only in torturous murders-those that evince extreme and outrageous
`
`depravity as exemplified either by the desire to inflict a high degree of pain or utter
`
`indifference to or enjoyment ofthe suffering of another." Chesire v. State, 568 So.2d
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`908, 912 (Fla. 1990); Robertson v. State, 611 So.2d 1228, 1232 (Fla. 1993); Rogers,
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`783 So.2d at 994. For this aggravating factor to apply, the crime must be both
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`conscienceless or pitiless and unnecessarily torturous to the victim. Nelson v. State,
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`748 So.2d 237, 245 (Fla. 1999). The Florida Supreme Court has stated this
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`aggravating factor "focuses on the means and manner in which the death was
`
`inflicted and the immediate circumstances surrounding the death, where a victim
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`experiences the torturous anxiety and fear of impending death; thus, the trial court
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`[and jury] considers the victim's perceptions of the circumstances as opposed to
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`those of the perpetrator." Allred v. State, 55 So.3d 1267 (Fla. 2010). Together with
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`a prior violent felony conviction, the Florida Supreme Court has expressed the
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`heinous, atrocious, or cruel aggravating factor as "the most weighty in Florida's
`
`sentencing calculus." Sireci, 825 So.2d at 887.
`
`13
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`The evidence at trial revealed Nicole was conscious during the entire brutal
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`attack on her by the Defendant, as she was shot six times, including a shot that caused
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`instant blindness in an eye, beaten multiple times with a baseball bat, and finally
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`stabbed multiple times. Nicole's consciousness during the brutal attack was evident
`
`from many factors, including but not limited to defensive wounds observed during
`
`her autopsy. See Campbell v. State, 159 So.3d 814 (Fla. 2015)("As noted, an
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`important factor in determining ifthe victim was conscious and aware of impending
`
`death has been the presence of defensive wounds."); King v. State, 130 So.3d 676,
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`684 (Fla. 2013)("this court has affirmed findings of HAC where defensive wounds
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`revealed awareness of impending death"). Further, immediately after the attack
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`Nicole was able to call her friend Tracie Walker to summon help and requested help
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`from her friend Lenora Jerry. Moreover, upon the arrival of police and EMS
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`personnel at the townhome they found Nicole still conscious. Additionally, the
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`medical examiner opined she was conscious during the attack.
`
`The Florida Supreme Court has found the heinous, atrocious, or cruel (HAC)
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`aggravating factor to apply in numerous circumstances where a victim suffered
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`numerous stab wounds while alive. See e.g. Matthews v. State, 124 So.3d 811 (Fla.
`
`2013); Aguirre-Jarquin v. State, 9 So.3d 593 (Fla. 2009); Simmons v. State, 934
`
`So.2d 1100 (Fla. 2006); Schoenwetter v. State, 931 So.2d 857 (Fla. 2006); Perez v.
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`State, 919 So.2d 347 (Fla. 2006); Cox v. State, 819 So.2d 705 (Fla. 2002); Francis
`
`14
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`

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`v. State, 808 So.2d 110, 134-35 (Fla. 2002); Pittman v. State, 646 So.2d 167, 172-
`
`73 (Fla. 1994); Davis v. State, 620 So.2d 152, 153 (Fla. 1993). The Florida Supreme
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`Court has likewise found the HAC aggravating factor to apply where a murder victim
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`was beaten to death and remained conscious during all or part of the beating. See
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`e.g. Bright v. State, 90 So.3d 249 (Fla. 2012); Guardado v. State, 965 So.2d 108
`
`(Fla. 2007); Buzia v. State, 926 So.2d 1203 (Fla. 2006); Douglas v. State, 878 So.2d
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`1246 (Fla. 2004); Zakrzewski v. State, 717 So.2d 488 (Fla. 1998); Lawrence v. State,
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`698 So.2d 1219, 1221-22 (Fla. 1997); Whitton v. State, 649 So.2d 861, 867 (Fla.
`
`1994); Dennis v. State, 817 So.2d 741 (Fla. 2002). This murder, in which Nicole
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`was shot six times, brutally beaten and then stabbed multiple times, while she
`
`remained conscious throughout, was particularly torturous supporting this
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`aggravating factor.
`
`The jury unanimously found this aggravating factor had been proven beyond
`
`a reasonable doubt. (Question A.4 in the Jury's Verdict As To Sentence) This Court
`
`agrees with the jury's finding regarding this aggravating factor. Considering the
`
`facts and circumstances supporting this aggravating factor, as elicited during the
`
`trial, this Court gives this aggravating factor GREAT WEIGHT.
`
`v.
`
`The capital felony was a homicide and was committed in a cold,
`calculated, andpremeditated manner without anypretense ofmoral or
`legaljustification. Fla. Stat. §921.141(6)(i)(2017)
`
`15
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`The Florida Supreme in Baker v. State, 71 So. 3d 802 (Fla. 2011) explained
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`the cold, calculated, and premeditated aggravating factor (CCP) as follows:
`
`Whether the CCP aggravator applies in a given case is subject to a four-
`part test: (1) The killing must have been the product of cool and calm
`reflection and not an act prompted by emotional frenzy, panic, or a fit
`of rage (cold); and (2) the defendant must have had a careful plan or
`prearranged design to commit murder before the fatal
`incident
`(calculated); and (3) the defendant must have exhibited heightened
`premeditation (premeditated); and (4) there must have been no pretense
`of moral or legal justification.
`
`Id. at 818-19 (citing Lynch v. State, 841 So.2d 362, 371 (Fla.2003)).
`
`Sharon Bennett testified during the penalty phase that approximately one year
`
`prior to Nicole's murder, the Defendant came to her expressing a desire to kill Nicole
`
`and asked Ms. Bennett to obtain a gun for him, which she refused. At some point
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`prior to the murder, the Defendant obtained a .22 firearm. According to the forensic
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`examination of the Defendant's computer, months prior to the murder he conducted
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`internet research on how to create a homemade suppressor for a .22 firearm-the
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`same type of firearm used to shoot Nicole. The Defendant came up with a plan to
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`have his two sons and their dog spend the night of May 30, 2011, with him so they
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`would not be present at Nicole's townhome when he went to kill her. The Defendant
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`left his residence in the early morning hours, leaving his sons sleeping in bed, to kill
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`Nicole.
`
`It took the Defendant approximately 30 minutes to drive from his residence
`
`to Nicole's, during which time he could reflect on the murder he was about to
`
`commit. When the Defendant arrived in the area of Nicole's townhome, he parked
`
`16
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`

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`his vehicle some distance away and walked to the townhome in the pre-dawn
`
`darkness, since his vehicle was not observed on any of the operational surveillance
`
`cameras at the entrance to Nicole's neighborhood. The Defendant then took the time
`
`to enter the garage touchpad code, retrieve a hidden key and enter the alarm master
`
`code to enter the townhome. The Defendant then ascended the stairway to Nicole's
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`bedroom where he shot, beat, and stabbed her.
`
`The Defendant hid Nicole's
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`computer, jewelry, and the bat he used to beat her, before leaving the residence.
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`After driving back to his residence, the Defendant then took his two sons to school.
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`This evidence demonstrates that the Defendant had a long, thought-out plan
`
`to kill Nicole, which was the product of cool and calm reflection. The murder of
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`Nicole was committed with heightened premeditation for which there was no
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`pretense of legal or moral justification. The jury unanimously determined that the
`
`State established this aggravating factor beyond a reasonable doubt. (Question A.5
`
`in the Jury's Verdict As To Sentence) This Court agrees with the jury's finding
`
`regarding this aggravating factor.
`
`Considering the facts and circumstances
`
`supporting this aggravating factor, as elicited during the trial, this Court gives this
`
`aggravating factor GREAT WEIGHT.
`
`iv.
`
`Conclusion - Aggravating Factors
`
`Following the jury's unanimous determination of the existence of the
`
`aforementioned five aggravating factors beyond a reasonable doubt, the jury was
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`asked whether the aggravating factors are sufficient to warrant a possible sentence
`
`of death. The jury unanimously found the aggravating factors are sufficient to
`
`warrant a death sentence. (Section B in the Jury's Verdict As To Sentence) This
`
`Court agrees with the jury's finding.
`
`B. Mitigating Circumstances
`
`Fla. Stat. §921.141(7)(2017)
`
`sets
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`forth seven statutorily enumerated
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`mitigating circumstances and additionally provides for consideration of non-
`
`statutory mitigating circumstances: "[t]he existence of any other factors in the
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`defendant's background that would mitigate against
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`imposition of the death
`
`penalty." §921.141(7)(h)(2017) During the penalty phase ofthe trial, the Defendant
`
`relied on no statutorily enumerated mitigating circumstances, but relied upon 34
`
`non-statutory mitigating circumstances. During the penalty phase,
`
`the jury
`
`considered physical evidence introduced by the defense and heard testimony from
`
`defense witnesses Mark Bush, the Defendant's brother; Amir Bush, the Defendant's
`
`son and eldest child; Noel Chambers, the Defendant's cousin; Brenda Daniels, the
`
`Defendant's friend; Juliet Hart, a teacher of the Defendant and Nicole Bush's son
`
`Malik Bush; Jack Lalonde, the father of an inmate who was in the St. Johns County
`
`Jail with the Defendant; James Aiken, a corrections expert; Amy Nguyen, a
`
`Geographic Information Systems (GIS) analyst; Dr. Jethro Toomer, a psychologist;
`
`and Dr. Janice Wilmoth, a neuropsychologist.
`
`The jury was instructed that
`
`18
`
`

`

`mitigating circumstances only need to be established by the greater weight of the
`
`evidence. The jury found certain mitigating circumstances had been established by
`
`the greater weight of the evidence and others had not.
`
`Additionally,
`
`the Court considered mitigating circumstances during the
`
`Spencer hearing. At the Spencer hearing, the Court heard testimony from St. Johns
`
`County Deputy Dustin Johnson, a jail corrections officer; Deputy Graham Harris,
`
`the first officer on the scene of the murder; Ronald McAndrew, a prison and jail
`
`consultant; and Suzanne Bosler, a death penalty opponent. The Court also heard
`
`from the Defendant.
`
`The non-statutory mitigating circumstances are discussed below; however,
`
`they are not discussed in the same order presented on the verdict form-for the sake
`
`of ease, the Court will first address those mitigating circumstances asserted dealing
`
`with the Defendant's childhood followed by those dealing with his post-childhood.
`
`Lastly, the Court will discuss the additional purported non-statutory mitigation set
`
`forth by the defense at the Spencer hearing in section xxv below.
`
`i.
`
`Sean Bush was subjected to chronic poverty, improper clothing,
`homelessness including but not limited to sleeping in a train station,
`hunger; he had a chaotic and unstable childhood, in part because of
`evictions, fire, poverty and moving.
`
`During the penalty phase, testimony was presented describing the Defendant's
`
`difficult upbringing. The Defendant grew up in Newark, New Jersey,
`
`in a
`
`neighborhood riddled with poverty, drugs and violent crime. The Defendant was
`
`19
`
`

`

`raised by a single mother who suffered from mental illness. The Defendant never
`
`knew his father. As a result of the poverty, the Defendant, his brother Mark Bush
`
`and his mother moved frequently. At times they were homeless, spending the night
`
`in hallways, train stations, abandoned buildings, or wherever they could find a place
`
`to sleep. The Defendant and his brother were constantly in fear for their safety,
`
`including at school, due to the violent crimes they witnessed in the area. During his
`
`childhood the Defendant was often hungry, wondering where his next meal would
`
`come from. Additionally, at times the Defendant had improper clothing to deal with
`
`the cold New Jersey winters.
`
`According to defense psychologist, Dr. Jethro Toomer,
`
`these adverse
`
`childhood experiences created great stressors for the Defendant that have long-term
`
`effects including but not limited to depression, anxiety, difficulty sleeping, and
`
`difficulty learning. Dr. Toomer described these adverse effects from such negative
`
`childhood experiences as "Toxic Stress Syndrome." According to Dr. Toomer, the
`
`adverse childhood experiences can have lifelong impact without intervention. The
`
`Defendant never received any psychological counseling to deal with these issues.
`
`The jury, by a vote of 12 to 0,
`
`found this non-statutory mitigating
`
`circumstance was established by the greater weight of the evidence. (Question C.2
`
`in the Jury's Verdict As To Sentence) The Court likewise concludes this non-
`
`20
`
`

`

`statutory mitigating circumstance has been proven by the greater weight of the
`
`evidence. The Court gives this mitigating circumstance MODERATE WEIGHT.
`
`ii.
`
`Sean Bush experienced chaoticfrequent changes ofchildhood homes
`and schools.
`
`As discussed above, due to the difficult childhood experienced by Sean Bush,
`
`including being raised in poverty by a single mother with mental health issues, in an
`
`area infested with violent crime and drugs, the Defendant experienced chaotic and
`
`confusing frequent changes of childhood homes and schools. The Defendant, his
`
`brother and his mother, were evicted from residences, had fires cause them to leave
`
`residences, and were at times homeless living in hallways, abandoned buildings,
`
`train stations or wherever they could find a place to sleep.
`
`The jury, by a vote of 12 to 0,
`
`found this non-statutory mitigating
`
`circumstance was established by the greater weight of the evidence. (Question C.6
`
`in the Jury's Verdict As To Sentence) The Court likewise concludes this non-
`
`statutory mitigating circumstance has been proven by the greater weight of the
`
`evidence. The Court gives this mitigating circumstance MODERATE WEIGHT.
`
`m.
`
`Sean Bush was raised and witnessed ongoing violence in drug and
`crime infested neighborhoods ofNewark, New Jersey; he often had
`to watch over his shoulderfor crime.
`
`As discussed above, Sean Bush was raised in drug and crime infested
`
`neighborhoods of Newark, New Jersey. Noel Chambers referred to the areas where
`
`his cousin Sean Bush grew up as the "ghetto" or the "slums." The Defendant's
`
`21
`
`

`

`brother Mark testified how they got robbed of their belongings once while moving
`
`using a shopping cart. Mark Bush described how they never felt safe in the
`
`neighborhood,
`
`including at school, and they often witnessed violent crimes,
`
`including robberies and assaults. As discussed above, Dr. Toomer testified this can
`
`have a long-lasting detrimental impact on a person without proper intervention.
`
`The jury, by a vote of 11 to 1,
`
`found this non-statutory mitigating
`
`circumstance was established by the greater weight of the evidence. (Question C.9
`
`in the Jury's Verdict As To Sentence) The Court likewise concludes this non-
`
`statutory mitigating circumstance has been proven by the greater weight of the
`
`evidence. The Court gives this mitigating circumstance MODERATE WEIGHT.
`
`iv.
`
`Sean Bush sufferedfrom physical abuse, emotional depr

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