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Justice in hit-and-run cases runs gamut

Even as penalties toughen, subjective factors contribute to a disparity in sentencing.

By Colleen Jenkins, Times Staff Writer
Published March 9, 2008


TAMPA - She was a teacher represented by one of the city's top lawyers. He was an illegal immigrant whose attorney had four years' experience.

Both drivers struck and killed two pedestrians near sunset. Both pleaded guilty to leaving the scene of a crash involving death. Neither had been drinking, driving recklessly or excessively speeding.

And now?

She completed two years of house arrest and is serving three years' probation. She teaches private dance lessons.

He will sit in prison until 2036.

She is Jennifer Porter, and her case made headlines for months. He is Armando Lopez-Canada, one of the many hit-and-run defendants who pass with little notoriety through the courtrooms of Hillsborough County.

Their cases reflect the broad discretion that prosecutors and judges have in recommending and handing down sentences for defendants who hit someone and flee.

That discretion widened in 2006, when lawmakers increased the penalty.

A St. Petersburg Times look at a sampling of Hillsborough cases from the past four years indicates a wide disparity in hit-and-run sentences, with habitual felony offenders sometimes receiving less prison time than a person charged with his first offense.

The outcome can boil down to this:

How good is your lawyer?

How sympathetic was the judge?

How angry is the victim's family?

Two years ago, Florida lawmakers raised the charge of leaving the scene of a crash involving death from a second-degree felony to a first-degree felony. The maximum prison sentence increased from 15 to 30 years.

The law is meant to discourage people from fleeing because they are intoxicated or wanted by authorities.

Becky Gage, a victims' advocate for Mothers Against Drunk Driving in Hillsborough, says the penalties are appropriately tough for a crime she calls heinous.

Leaving the scene, she said, "was becoming almost the normal thing to do, which is so incredibly senseless."

Defense attorneys argue that otherwise law-abiding individuals flee out of panic or fear.

Judges do have leeway. Of the 31 people charged with this crime in Hillsborough since 2004, 20 cases have been resolved. Eleven defendants received prison time. Seven defendants received community control and/or probation.

Lopez-Canada, 27, is only the third Hillsborough defendant charged with the crime since 2004 to be sentenced to 30 years in prison.

The others: an intoxicated man who ran a stoplight before causing a fatal crash, and a convict who twice led police on high-speed chases that ended with innocent bystanders getting hurt or killed.

Though both of those individuals' cases occurred before the potential prison penalty increased, they had extra charges that allowed judges to send them to prison for so long.

Four fatal hit-and-run cases have been resolved since the higher penalty took effect.

Two people received house arrest and probation, and another - a habitual felony offender - was sentenced to 23 years in prison.

Lopez-Canada, who would have been charged with driving on an expired license had he remained at the scene, was the only individual to get the maximum.

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Clearwater attorney Richard Joyner calls his client's sentence excessive. He has filed an appeal.

He was hired by Lopez-Canada's family in Mexico. An attorney since 2003, he had handled other serious felonies but never this particular charge.

He had a tough case to defend. Eyewitnesses identified Lopez-Canada as the driver who hit Ronald Bishop Jr., 42, and Joshua Angel Morrow, 4, as they tried to cross the Courtney Campbell causeway on Dec. 28, 2006. So did the passengers in his car.

Lopez-Canada admitted to police that he ran because he was scared of getting deported.

A plea deal wasn't an option. The victims' families wanted the maximum sentence, and Kim Seace, chief of the state attorney's traffic homicide division, heeded their wishes.

Lopez-Canada would take his chances with a judge.

Porter had done the same. But first, her attorney, Barry Cohen, secured an agreement with Seace for a three-year prison cap. Then he lined up character witnesses and experts who could speak about the psychological trauma Porter endured immediately after the accident. At sentencing, he also talked about how the children she hit had jumped out in front of her car.

Seace argued for the full three years, but Cohen made a strong case for why that wasn't a just punishment.

Joyner did none of that. He took no depositions - the case was "pretty much a cut-and-dry situation," he said - and he did not present expert testimony.

He did not address the victims' decision to cross a busy highway at dusk.

"I didn't want to put the victims on trial," he explained.

He noted his client's clean record, asked for mercy and called two of Lopez-Canada's friends and his brother to testify. Later, he said he hoped the judge would follow the Corrections Department's recommendation of a 10-year prison sentence.

Joyner didn't call Jim Weber, the key eyewitness who helped police track Lopez-Canada after the crash. Weber hadn't thought it was right for the driver to take off, but he would have told the judge that it was getting dark and that the victims ran right in front of Lopez-Canada's car.

Weber learned about Lopez-Canada's prison sentence from news reports.

"I thought it was really, really severe," he said.

"I know people who are in prison for a lot less for intentionally killing somebody," he said. "I can't understand 30 years."

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A hit-and-run death is a demeaning end. Families often bemoan how a loved one was left to die in the road like an animal.

How strongly they express those feelings carries great weight with prosecutors and judges.

At Lopez-Canada's Feb. 8 sentencing, seven family members and friends of the victims asked Hillsborough Circuit Judge Mark Wolfe to impose the maximum sentence.

With angrysobs punctuating their words, they spoke of a child's life cut short. They wanted the judge to send a strong message to illegal immigrants who broke the law.

"The devil will do worse to you than this system will ever do," said Joshua's mother, Heather Morrow.

The families questioned whether Bishop and Morrow might have lived had Lopez-Canada stuck around. Medical professionals who stopped and offered immediate aid were unable to save them.

Wolfe did not respond to a request for comment, but both Seace and the defense atztorney suspect that the judge found the emotional testimony compelling.

Cohen takes issue with prosecutors and judges allowing survivors' wishes to sway their decisions.

"It may be a good policy politically, but it's not good policy for the same reason that we don't let a family member sit on juries," Cohen said.

Elected officials, he said, must rise above emotion.

"The right thing isn't always what the family wants," Cohen said. "So many of these judges think it's politically correct to satisfy these families' urge for vengeance."

Families sometimes help defendants get a break.

A victim's family in another hit-and-run case wanted no part in the legal proceedings. In Porter's case, the mother of the two dead children and two injured children wavered between wanting to forgive and wanting Porter to serve hard time.

Both defendants received house arrest and probation. So did Tracie Ann Elder, who was accused of driving away from a fatal wreck that she caused.

The week before Lopez-Canada's sentencing, Wolfe accepted a negotiated plea agreement for Elder. Gwen Lewis met with Elder before sentencing and decided that she could do more good helping with fundraisers in Lewis' daughter's memory than sitting in jail.

"It's not like she intentionally set out to do this to my daughter," Lewis said recently. "If it was an intentional act, I would probably wish the death sentence on her. But that's not how it was."

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In Porter's case, Circuit Judge Emmett Lamar Battles said he was ordering a downward departure in sentencing after giving great weight to Porter's lack of a prior record, her emotional distress, the unsophisticated and isolated manner of the crime and her remorse.

Wolfe, too, said he understood that Lopez-Canada was scared and, being from Mexico, didn't know what to do.

"But," the judge said, "wherever you're from, you should know to stop."

Veteran prosecutor Seace has handled the majority of the fatal hit-and-run cases filed since 2004.

With so many factors influencing their outcomes, she cautions against comparisons.

"Every judge is different," she said. "Sentencing is going to be different depending on who is listening to the evidence. It's apples and oranges when you start comparing these cases."

But Cohen says Lopez-Canada's punishment is unfair on its own.

"That's abominable what happened in this case," he said. "This is not a guy going out shooting people or robbing people. He showed some bad judgment."

Times researcher John Martin contributed to this report. Colleen Jenkins can be reached at cjenkins@sptimes.com or 813 226-3337.

 

How other fatal hit-and-run cases compare

Mark Joseph Doyle got 15 years in prison for killing a University of South Florida senior who was skating Jan. 12, 2004, with friends on Apollo Beach Boulevard. He drove despite having no license, being legally blind, suffering from seizures and being a declared alcoholic. He had a prior DUI.

Karen Ann Hartley received the lightest sentence during the past four years - a negotiated plea of about two years' probation and a formal finding of guilt withheld. She told detectives that she thought she hit a mailbox on Feb. 19, 2006. Authorities didn't buy it, but acknowledged the victim had some responsibility in the early morning crash. Hartley had no prior criminal record or driving offenses.

Micah Steven Azbill got 12 years for driving off after hitting a 16-year-old girl on March 17, 2006. He was previously convicted of habitually driving with a suspended license.

Cornie Antwana Johnson got 23 years after his Oldsmobile rammed a Honda Civic, causing it to spin and strike a utility pole on Christmas Eve 2006. A 16-year-old boy died and two others were injured. A habitual felony offender, Johnson was driving with a suspended license.

Dwayne Devon Brown got 30 years after leading Temple Terrace police on a high-speed chase Jan. 5, 2005, that ended when he smashed into a family's Buick. One person died, two were injured. Brown had already served prison time for another chase involving a stolen car and a crash that injured a 79-year-old man.

Jose Luis Espinoza got 30 years after a jury convicted him of DUI-manslaughter and leaving the scene of a fatal crash. On Feb. 25, 2006, he ran a red light, hitting and killing Tampa Mayor Pam Iorio's bodyguard. Caught two hours later, Espinoza had a blood alcohol content of 0.16, twice the level at which Florida law presumes a driver impaired.