Broward County jury recommends death for Peter Avsenew
This week, a Broward County jury recommended that Peter Avsenew be sentenced to death on two counts of first-degree murder, of which he was convicted for crimes that occurred in 2010.
This week, according to the Sun Sentinel, a Broward County jury recommended that Peter Avsenew be sentenced to death on two counts of first-degree murder, of which he was convicted for crimes that occurred in 2010. It was the first death sentence recommended by a Broward County jury under Florida’s 2023 capital sentencing statute. Two prior cases have been tried in Broward County under the new statute—(1) YNW Melly’s case, which resulted in a mistrial, and (2) Clarck Paul’s case, which resulted in a recommendation for life without parole (LWOP).
Background
In January 2018, a Broward County jury convicted Paul Avsenew was two counts of first-degree murder, among other charges, for crimes that occurred in 2010. After a penalty phase, in which Avsenew represented himself according to the Sun Sentinel, the jury unanimously recommended a sentence of death on both counts. The original verdict form can be downloaded here. The trial court followed the jury’s recommendation and sentenced Avsenew to two sentences of death.
On direct appeal, in a decision dated January 13, 2022, the Florida Supreme Court overturned Avsenew‘s convictions and sentences based on an error during trial related to his mother’s testimony:
Due to serious health problems that rendered her unable to travel to Broward County to testify at Avsenew's trial, the trial court granted the State's motion to perpetuate the testimony of Ms. Avsenew pursuant to rule 3.190(i), Florida Rules of Criminal Procedure.
At the time of the perpetuated testimony in August 2017, Ms. Avsenew was located in Polk County. Avsenew, defense counsel, the prosecutor, and the judge were in a Broward County courtroom. The two locations were connected remotely by audio-visual equipment. Ms. Avsenew's testimony was recorded on video, and the video of her testimony was played for the jury at Avsenew's trial in November 2017.
The Court determined that the trial court did not abuse its discretion by allowing this virtual testimony. However, the setup of the virtual testimony violated Florida Rule of Criminal Procedure 3.190(i)(3), which provides:
If the deposition is taken on the application of the state, the defendant and the defendant's attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep the defendant in the presence of the witness during the examination.
During her testimony, when asked by defense counsel, Ms. Avsenew confirmed she could not see her son. Because Ms. Avsenew could not see her son during her testimony, the Court held that the testimony clearly violated Rule 3.190(i)(3).
Further, the Court determined that this error was not harmless:
We cannot overstate the harmful effect of this testimony having come from not just anyone, but defendant Avsenew's own mother. Indeed, the jury heard a recording of a phone call placed by Avsenew while he was in jail awaiting trial, wherein he mentioned that the “lead witness against me is my mom.” Without question, the impact of Ms. Avsenew's incriminating testimony on the jury would have been even greater because she is Avsenew's mother.
The State cannot demonstrate that there is no reasonable possibility that the testimony of Ms. Avsenew—a material State witness—contributed to the jury's guilty verdicts. In other words, the State cannot demonstrate harmless error because there is a reasonable possibility that the material testimony of Ms. Avsenew contributed to the jury's guilty verdicts. As a result, the admission of Ms. Avsenew's testimony against Avsenew was harmful error which requires reversal.
The Court’s decision was unanimous.
First Retrial
Avsenew’s first retrial started on May 2, 2022. On June 10, 2022, the jury again convicted Avsenew of two counts of first-degree murder. On October 11, 2022, after a penalty phase, the jury again unanimously recommended a sentence of death on both counts. The verdict form can be downloaded here.
Ultimately, the Court granted Avsenew a resentencing, however, because correspondence from a juror indicated misconduct by the jurors during the penalty phase. Specifically, jurors were discussing the case outside of the courtroom and viewed a documentary about Avsenew. (This history is explained further in this court filing and this CBS News article.)
Resentencing
Ahead of Avsenew’s resentencing, after litigation, the Court allowed Avsenew to proceed pro se.
There was also litigation regarding the application of Florida’s 2023 statute to his case. On October 9, after a hearing, the trial court entered an Order denying Avsenew’s motion to preclude the application of the 2023 statute to his resentencing. The Order cited the Fifth District Court of Appeal’s decision in Hunter/Victorino.1
Avsenew’s resentencing commenced on October 11. The jury verdict is not yet on the docket, but the Sun Sentinel reported that the jury unanimously recommended that Avsenew be sentenced to death on both counts after deliberating for “less than an hour.”
Under the 2023 capital sentencing statute, the judge still has the discretion to impose a sentence of LWOP on both counts. A status conference is set for Monday.