J.M.H. v. State

311 So.3d 903

J.M.H., Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-3721

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2020.

Marie-Louise Samuels Parmer and Maria DeLiberato of Palmer DeLiberato, P.A, Tampa; and Brian D. Netter of Mayer Brown LLP, Washington, D.C., for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.

Roseanne Eckert of FIU College of Law, Miami; and Whitney Untiedt Akerman, LLP, Miami, for Amici Curiae National Center on Domestic and Sexual Violence, Florida National Organization for Women, and Florida Juvenile Sentencing and Review Project on behalf of Appellant J.M.H.

MORRIS, Judge.

J.M.H.¹ appeals her new sentences of life in prison with review after twenty-five years for the offenses of first-degree murder and armed robbery. J.M.H. was seventeen years old when she committed the offenses in 2001. She originally pleaded no contest in exchange for concurrent sentences of life in prison, without the possibility of parole, in order to avoid the death penalty. In 2014, J.M.H. was granted a new sentencing hearing under Florida's juvenile sentencing statutes that were enacted in response to Supreme Court decisions addressing juvenile sentences. See §§ 921.1401, 921.1402, 775.082, Fla. Stat. (2014). In this appeal, J.M.H. argues, among other things, that the trial court abused its discretion in sentencing her to life in prison. We agree but find her other issues to be without merit.²

I. Facts

The following facts were presented at the three-day resentencing hearing held in May 2017. J.M.H. and two others, Hershel Upshaw and Tessa Robinson, robbed and killed Paul Townsend in his Ft. Myers home in 2001.³ J.M.H. was seventeen. Townsend was a seventy-seven-year-old man who had sexually abused J.M.H. for a period of five years, beginning when she was eleven years old.

The three planned the robbery together and then drove and parked in a field about fifty yards from Townsend's home. J.M.H. went to the front door while Tessa and Hershel waited nearby out of sight. J.M.H. initially entered the house alone. After about eight minutes, Hershel and Tessa entered, grabbed Townsend, put him on the ground, and bound and blindfolded him. Hershel demanded money. Townsend told them it was in his truck, and J.M.H. retrieved his things from the truck. Tessa went to the bank to use the ATM cards, but she was unable to retrieve any money from the ATM. After they loaded Townsend's property into their car, the three decided to leave. As Hershel and Tessa were leaving the home, they heard three shots. Hershel turned and saw J.M.H. standing by Townsend with a gun in her hand.

Hershel testified that after the offenses, he heard that Townsend had molested J.M.H. when she was young. In a prior statement, Hershel stated that J.M.H. told them that she planned to rob and kill Townsend but that he and Tessa did not think she meant it. In that prior statement, Hershel stated that as they were driving away from the murder, J.M.H. stated that she had been waiting a while to kill Townsend.

J.M.H. was born in 1983; she is the fourth of five children. The two oldest children shared a father, and the three youngest shared another father, who was married to a woman other than J.M.H.'s mother. J.M.H.'s mother, Mary, smoked crack cocaine while she was pregnant with J.M.H. After the youngest child was born, J.M.H.'s father's wife learned of his affair with Mary, and J.M.H.'s father stopped providing financial support. The family moved into a motel where most of the residents were substance-addicted. After Mary began an affair with another man, child protection services intervened and transferred the children into foster care. A report from 1989 indicates the following:

Mom is on crack. Children are not cared for by Mom; they are dirty and unkempt. Mom lives with a 76-year-old man (no relation) who babysits. He has been fondling the girls underneath their clothes, in their private areas, according to [the older sister]. This has been going on since children were placed back with mom this past year. HRS had taken children away for 2 years.

The children were placed with the maternal grandmother but were later returned to Mary. In 1992, the children were again removed from the mother's care due to lack of food, lack of clothes, and filthy home conditions. The three youngest children, including J.M.H., were placed in foster care.

Mary turned to prostitution and drugs. Eventually, she successfully completed a drug program and regained custody of her children. She moved to Ft. Myers and obtained a job at Wendy's, where she met Townsend. He befriended her and gave her rides to work. Mary began using drugs again and was evicted from her home. She moved in with Townsend and began a romantic relationship with him. He moved the family into a larger trailer. They had plenty of food, and he took care of all the bills.

Mary would leave her children home with Townsend. Townsend soon developed an interest in J.M.H., and he and Mary stopped sharing a bedroom. On one occasion, Mary walked in on Townsend on top of J.M.H. in a sexual position and J.M.H. was not wearing any underwear. Townsend denied that anything inappropriate happened, but J.M.H. told Mary otherwise. Mary did not report the incident because she did not want her children taken away again. On another occasion, Mary planned to be intimate with Townsend. She and J.M.H. were in the bedroom with Townsend. Mary went into the bathroom, and when she returned, "he was grinning and wiping himself off and he said, ‘Oh, you too late.’ " Mary did not do anything about the abuse; rather, she used drugs to cope with the situation.

J.M.H.'s younger sister, M.H., testified that J.M.H. would often be alone with Townsend in his bedroom watching television. M.H. was aware that Townsend was having sex with J.M.H. based on "the time they spent together behind his door in his bedroom or long trips in his truck," since he was a truck driver. He took J.M.H. to the Bahamas. M.H. was a gifted student, involved in extracurricular activities. J.M.H., on the other hand, struggled in school and was not involved in any activities. J.M.H. dropped out of school in the ninth grade, and she smoked weed and drank alcohol. Townsend provided alcohol to both girls when they lived with him. M.H. observed that Townsend favored J.M.H. by giving her hair products, makeup, and clothing, which he did not give to the other sisters. J.M.H. was protective of M.H. After the family moved out of Townsend's house, M.H. would still go over and help Townsend with projects. He would pick her up and drop her off.

One of J.M.H.'s former teachers, Peggy Leis, testified that J.M.H. was very bright but very reserved. She developed a close student-teacher relationship with J.M.H. when J.M.H. was in middle school. Leis filed a report that J.M.H. had missed three consecutive days of school, and J.M.H. explained that she had been staying with her boyfriend during those days. After J.M.H. left middle school, J.M.H. and Leis kept in contact through email or phone call. J.M.H. asked Leis for help obtaining her GED. Leis met J.M.H. at registration and paid her fee to take the test. Leis next heard from J.M.H. on the night of the murder. J.M.H. called Leis and with a shaky voice said, "I did something. I finally had to do it." J.M.H. told Leis that she had killed Townsend: "She said that she had to take care of this. She couldn't take it anymore and that she shot him." J.M.H. sounded petrified. Leis called law enforcement.

J.M.H. was thirty-three at the time of the new sentencing hearing. She testified that Townsend began touching her when they lived in the small trailer. When her mother was working, Townsend would come and get J.M.H. where she was sleeping. They would "do things," and then she would go back to sleeping with her sisters. She testified: "[A]t first we would--we would do stuff and then he would bring a gift. And afterwards, it would be him knowing I wanted something and then I would promise that I would do something with him and he would get it." One time, her mother walked in when Townsend was having sexual intercourse with her. The sexual abuse began when she was eleven. Townsend provided their food, their clothes, and the roof over their head. Townsend would keep J.M.H. home from school, and the sexual abuse would happen on a regular basis. At one point, someone reported the abuse, but J.M.H. denied it because she was worried that they would no longer have the things they needed and that they would be placed in foster care again and separated from each other and their mother.

J.M.H. testified that she ran away to Georgia when she was in sixth grade. She called home, and Townsend told her that he was going to buy her little sister, M.H., a cell phone. J.M.H. understood that to mean that "he wanted [M.H.] to do things for him for gifts like [she] was doing." So J.M.H. returned home. If J.M.H. wanted something from the store, Townsend would get it for her and then ask if she would "take care of him or make him feel good." Once her mother was incarcerated and needed $2000 to bond out, so Townsend took J.M.H. to Key West on one of his trucking trips, where he had anal sex with J.M.H. He then bonded her mother out. He also took her on a trip to the Bahamas when she was thirteen, where more sexual abuse happened. She did not hate Townsend at first; there were times when she loved him.

J.M.H.'s family eventually moved out from Townsend's house. J.M.H. began using drugs and alcohol regularly, "mainly to not think or feel." She thought about the abuse a lot, especially when she was doing drugs. Sometimes she stayed with her mom, and sometimes she stayed with her friends. She did not stay with her mother and sister because she felt different from her sisters, who were doing really well. She testified as follows: "I was into drugs and alcohol, being...