With a 7-5 vote, a jury recommends the death penalty for Brandon Scott Ware in a 2002 home-invasion killing.
By CHRIS TISCH
Published October 23, 2004
LARGO - A jury on Friday recommended that Brandon Scott Ware be sentenced to death for shooting and killing an elderly man during a home-invasion robbery in 2002.
The 12-person panel voted 7-5 to recommend that Judge Brandt Downey give Ware the death penalty instead of a life sentence without the chance of parole. Downey has not set a date for sentencing.
The judge must give the jury's recommendation great weight. Though judges have strayed from jury recommendations before, it's relatively rare.
The same jury convicted Ware, 21, of first-degree murder and home-invasion robbery on Thursday.
Prosecutors said Ware followed Vernon Gilbert, 88, and his wife, Helen, 86, home from a Publix near their Largo condo on Nov. 26, 2002.
Armed with a stick, he forced the couple inside and began rummaging through their things. Mr. Gilbert grabbed a loaded gun out of his dresser drawer and shot Ware in the face and back. But Ware got the gun away from Gilbert and shot him in the head, killing him instantly.
Police arrived at the condo to find Ware with the gun in his hand and the couple's jewelry in his pockets.
Mrs. Gilbert, who suffered from Alzheimer's, sustained a head injury in the attack. She died earlier this year of natural causes.
Prosecutors said the case qualified for the death penalty for a number of reasons. First, Ware at the time was on probation for a felony cocaine charge. In addition, the murder occurred during the commission of another felony, a robbery.
Perhaps most important: Prosecutors said Mr. Gilbert was a particularly vulnerable victim. He weighed just 113 pounds, limped from a recent broken hip and wore a leg brace.
Defense attorneys argued Ware deserved a life sentence instead. Besides the drug charge, his criminal record was clean. His family members also testified that Ware, who was 19 at the time of the shooting, had a troubled childhood.
When jurors announced their recommendation, his family members wept.
"We do send our condolences to the Gilberts, but I don't believe you should take a life for another," said Ware's sister, Brandi Didcoct. "It's not up to us to stand in judgment. That's God's duty."
But Ware's fate isn't yet set.
Defense attorneys will have another opportunity to present mitigating evidence to Judge Downey at a hearing Nov. 19.
And if Downey agrees to sentence Ware to death, his attorneys will appeal based on a comment the judge made to jurors after they asked a question during deliberations.
Jurors sent Downey a note asking if a defendant sentenced to life would ever be eligible for parole.
The short answer is no.
Prior to 1994, defendants sentenced to life in prison could become eligible for parole after 25 years. That law was changed 10 years ago so that someone convicted of first-degree murder can face only two sentences: the death penalty or life without the chance for parole - ever.
Downey conferred with prosecutors and defense attorneys about the jury's question and agreed to refer them to the written law they were provided with, which is clear. But when jurors were brought in to hear the answer, Downey commented that he couldn't predict what laws the state legislature would pass in years to come.
Lawyers on both sides of the aisle looked stunned by the remark. Defense attorneys objected to the comment and requested a mistrial, a motion Downey denied. Saying the case is still ongoing, Downey declined to comment on his remark after the hearing.
Through prosecutors also declined to comment about the judge's remarks, defense attorneys said they expect an appeals court would order another trial because of what Downey said.
They said the remark may have led jurors to believe that Ware could someday be released on parole, which could have swayed them to vote for the death penalty.
"He basically re-instituted the possibility of parole," said defense attorney John Swisher. "He just created an appellate issue if he is sentenced to death."
A number of jurors contacted by the Times Friday afternoon declined to speak about the deliberations, making it difficult to gauge the affect of Downey's comment on their decision.
But defense attorney Michael Schwartzberg said if the comment swayed just one juror, it shifted the jury recommendation from life to death (A 6-6 tie among jurors is a vote for a life sentence).
Those developments were another hairpin turn in a case that has been anything but normal.
Ware first went to trial in August, but stood up during the second day of testimony to complain that his attorney, Dyril Flanagan, had admitted elements of his guilt in opening statements. Downey ordered a mistrial and Schwartzberg was named his new lawyer.
Flanagan said evidence against Ware was so overwhelming that he didn't want to insult jurors by contesting it. But he hoped to persuade a jury to convict Ware of a lesser crime, such as second-degree murder.
Ware said Flanagan also had talked to him about pleading guilty to the charge and accepting a life sentence, which Ware refused.
Months ago, prosecutors also had asked the Gilberts' closest family member, Michelle Rowley, their granddaughter, if she would accept a plea deal and a life sentence if Ware offered it.
Rowley, who supports the death penalty and initially wanted the punishment pursued, said she would accept such a deal.
But when Ware decided to head to trial, Rowley said he appeared arrogant and smug. Rowley became more upset when Ware earned a second trial, making family members endure another round of testimony.
"Not only has he put me through this twice, he also has done that to his own family," she said.
Rowley then changed her mind and wanted death. Other members of her family oppose death.
After all that happened Friday, Rowley said she now would accept a life sentence. She said the jury's recommendation alone gave her satisfaction.
She also doesn't want to go through a third trial, which she fears will happen if defense attorneys appeal based on Downey's comments to the jury.
"I'm comfortable with whatever Judge Downey decides," she said. "I just don't want to go through this again."
