The Latest Death Warrant: Darryl Barwick
On April 3, 2023, Gov. DeSantis issued the third death warrant of 2023, scheduling Darryl Barwick's execution for May 3, 2023. Here's the background on his case.
Yesterday, Governor DeSantis signed a death warrant for Darryl Barwick—the third warrant in Florida for 2023. The execution is scheduled for May 3, 2023, at 6:00 p.m.
The full warrant package is available on the Supreme Court of Florida website under case number 1960-80446.
Here are a few news articles about the warrant:
Crimes
The crimes at issue in Barwick’s case occurred in March 1986.
In its 1995 decision in Barwick’s case, the Florida Supreme Court described the crimes underlying Barwick’s sentence as follows:
On the morning of March 31, 1986, Michael Ann Wendt left her apartment in Panama City to travel to Fort Walton Beach. Rebecca Wendt, Michael Ann's sister and roommate, remained at the apartment complex and lay outside sunbathing until approximately 11:45 a.m. Another resident of the complex who was also outside sunbathing observed a man walking around the complex at about 12:30 p.m. The witness indicated that she saw the man walk toward the Wendts' apartment and later walk from the Wendts' apartment into the woods. She subsequently identified that man as Darryl Barwick.
On the evening of March 31, Michael Ann returned to the apartment and found Rebecca's body in the bathroom wrapped in a comforter. Investigators called to the scene observed bloody footprints at various places throughout the apartment and bloody fingerprints on the victim's purse and wallet. Rebecca's bathing suit had been displaced, and she had been stabbed numerous times. An autopsy revealed that she sustained thirty-seven stab wounds on her upper body as well as a number of defensive wounds on her hands. The medical examiner concluded that the potentially life-threatening wounds were those to the neck, chest, and abdomen and that death would have occurred within three to ten minutes of the first stab wound. The examiner found no evidence of sexual contact with the victim, but a crime laboratory analyst found a semen stain on the comforter wrapped around the victim's body. After conducting tests on the semen and Barwick's blood, the analyst determined that Barwick was within two percent of the population who could have left the stain.
Original Trial & Direct Appeal
Barwick’s original trial occurred in November 24, 1986, where a Dade County jury convicted him of first-degree murder and other charges. He was sentenced to death after a jury voted 9-3 to recommend death.
On direct appeal, in a decision dated June 15, 1989, the Supreme Court of Florida (FSC) vacated Barwick’s sentences, reversed his convictions, and remanded for a new trial due to racial prejudice in jury selection. Essentially, the state had improperly “used peremptory challenges to excuse three black prospective jurors . . . solely because of their race.”
NOTE: This rule was based on the FSC’s decision in State v. Neil (1984), from which the Court later receded in State v. Johans (1993), in which the Court held: “[F]rom this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. We recede from Neil and its progeny to the extent that they are inconsistent with this holding.”
The Court clarified that “a defendant need not be black to object to peremptory challenges directed to prospective black jurors, even though their respective races may be relevant in determining whether the challenges are being unconstitutionally exercised because of racial bias,” as it had recently held in Kibler v. State (1989).
Justice McDonald dissented.
Retrial
Based on the FSC’s decision, Barwick was retried in Bay County.
As to the change in venue, the Court’s decision on direct appeal after retrial says:
The retrial was assigned to Judge Clinton E. Foster, after Judge W. Fred Turner, the judge initially assigned to the case, retired and a second judge assigned to the case recused himself. Barwick moved to disqualify Judge Foster claiming that the judge's conduct and statements indicated he had prejudged psychological issues critical to the defense and that the judge's concern for county finances had hindered Barwick in preparing his defense. Judge Foster denied the motion as well as a subsequent motion to disqualify.
The first retrial ended in a mistrial. Another new trial began on July 6, 1992. After retrial, Barwick was again convicted and sentenced to death following the jury’s unanimous recommendation for death. The judge followed the jury’s recommendation and imposed a sentence of death after weighing the aggravation and mitigation, which the Court explained as:
In support of the death sentence, Judge Foster found six aggravators: (1) previous convictions for the violent felonies of sexual battery with force likely to cause death or great bodily harm and burglary of a dwelling with an assault; (2) the murder was committed during an attempted sexual battery; (3) the murder was committed to avoid arrest; (4) the murder was committed for pecuniary gain; (5) the murder was especially heinous, atrocious, or cruel; and (6) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral justification [CCP]. In its sentencing order, the court set out the statutory mitigating circumstances proposed by the defense but found that each potential mitigator was either not established by the evidence or was not a significant mitigating circumstance. With regard to nonstatutory mitigating circumstances, the court recognized that Barwick suffered abuse as a child and considered expert testimony indicating that Barwick had some mental deficiencies, but determined that these were not mitigating circumstances in this case.
Direct Appeal
On direct appeal after retrial, Barwick raised 5 issues related to the gilt phase of his trial and 9 issues related to the penalty phase.
In a decision dated July 20, 1995, the FSC only discussed some of the issues, several of which related to Barwick’s claim that the judge should have been disqualified. Upon review, the Court affirmed Barwick’s death sentence despite striking the CCP aggravating factor.
Justice Wells concurred in part and dissented in part.
NOTE: The FSC receded from its 1995 decision in Barwick’s case in Topps v. State (2004), in which it held, prospectively, that “unelaborated denials entered in connection with all extraordinary writ petitions filed in any Florida court shall not be considered decisions on the merits which would bar the litigant from presenting the same or a substantially similar issue on appeal or by a subsequent writ petition, or by other means, in the same or a different Florida court.”
The U.S. Supreme Court denied certiorari, making Barwick’s sentence final in 1996.
Postconviction & State Habeas (2011)
On March 17, 1997, Barwick filed an initial motion for postconviction relief. He filed an amended motion on August 26, 2002, raising 21 claims. On December 4, 2003, the trial court granted an evidentiary hearing on 4 of the claims. In a second amended motion, Barwick realleged the original 21 claims and added 2 claims. The trial court summarily denied the new claims on September 8, 2005.
The trial court held an evidentiary hearing in November 2006, where Barwick presented two witnesses. The main witness for Barwick was Dr. Eisenstein, who testified as to Barwick’s mental illness:
At the evidentiary hearing held on his rule 3.851 motion, Barwick presented the testimony of Dr. Hyman Eisenstein, a psychiatrist. Dr. Eisenstein testified that the difference between Barwick's verbal and performance IQ scores indicated possible neurological or neuropsychological impairment of the left hemisphere of his brain. Dr. Eisenstein further testified that Barwick's mother fell down a flight of stairs while pregnant with Barwick, and that he was an unwanted child. With respect to childhood abuse, Dr. Eisenstein reported that Barwick was subject to constant beatings by his father and had been knocked unconscious a number of times as a child, and that he suffered severe emotional abuse. Consequently, Barwick's brain deficiencies would affect his ability to interact with people; Barwick also would not know how to deal with sexually charged situations.
On August 28, 2007, the trial court issued its final order denying Barwick’s claims. Barwick appealed to the Florida Supreme Court, raising 11 claims. He also filed a petition for writ of habeas corpus, raising 9 claims.
Postconviction
Upon review, the FSC put Barwick’s claims into three categories: (1) ineffective assistance of trial counsel, (2) Brady, Giglio, and prosecutorial misconduct claims, and (3) cumulative error.
On the first category, the Court found that all claims were either without merit or waived.
On the second category:
Barwick [argued] that with respect to exculpatory evidence not disclosed to the defense and certain testimony pertaining to the attempted sexual assault of which he was charged and convicted, the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Barwick also argue[d] that the prosecutor violated Giglio when he elicited testimony from Ms. Capers describing her impression of Barwick when she saw him walking around the apartment complex.
The Court denied relief on these claims as well.
Further, Barwick argued that “the prosecutor engaged in misconduct, having had a conversation with a confidential defense expert appointed to assist the defense, without the consent and presence of the defendant.” The Court denied relief on this claim, writing: “At the evidentiary hearing Barwick neither called his former confidential expert to testify concerning the nature of his conversation with the State, nor questioned the assistant state attorney who prosecuted the case about the issue during cross-examination of the witness.”
Finally, as to Barwick’s claim of cumulative error, the Court denied relief because the individual errors alleged were themselves without merit.
Chief Justice Canady concurred in result without an opinion.
State Habeas
In his petition for writ of habeas corpus, Barwick raised the following claims:
(1) as a brain-damaged, mentally retarded person with a mental and emotional age less than eighteen years, Barwick's execution would be unconstitutional; (2) use of a prior conviction involving an offense that occurred before Barwick was eighteen years old violates the federal constitution pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); (3) direct appeal counsel's failure to argue against the “avoid arrest” aggravator constituted ineffective assistance; (4) direct appeal counsel rendered ineffective assistance having failed to raise the issue of omissions in the record; (5) counsel's failure to argue on direct appeal that the jury was misled during the penalty phase by improper comments and instructions was ineffective assistance; (6) ineffective assistance of direct appeal counsel based upon counsel's failure to argue that the prosecutor presented to the jury at sentencing impermissible matters for consideration; (7) the “during the commission of a felony” aggravating circumstance operates as an impermissible automatic aggravator; (8) appellate counsel on direct appeal rendered ineffective assistance having failed to argue that the penalty phase jury instructions improperly shifted the burden of proof to the defendant; and (9) the Court erred in failing to remand the case to the trial court for resentencing, having struck an aggravating circumstance.
On the first and second claims, the Court denied the claim because the rule in Roper v. Simmons was that 18 is the cutoff for the age of majority and ineligibility for execution, and Barwick was 19 at the time of the crime.
On the claims of ineffective assistance of counsel, the Court denied each claim—either determining the claim was without merit or procedurally barred.
On the seventh and eighth claims, the Court found the claim was procedurally barred because it had not been raised on direct appeal.
Thus, the Court denied relief.
Federal Habeas (2014)
District Court
Barwick later filed a federal habeas petition, in which he asserted seven claims, which are similar to the claims presented in the state habeas:
(1) his attorney rendered ineffective assistance in the trial's penalty phase by failing to adequately investigate and present mitigating evidence; (2) his attorney rendered ineffective assistance in the guilt phase by failing to cross-examine a witness, Suzanna Capers; (3) the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and presented false or misleading evidence in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); (4) the prosecutor made improper arguments to the jury, and Mr. Barwick's appellate attorney rendered ineffective assistance by failing to raise this issue on appeal; (5) the trial judge improperly rejected Mr. Barwick's abuse as a child as a nonstatutory mitigator; (6) the prosecutor improperly considered race in exercising peremptory challenges; and (7) the Constitution prohibits Mr. Barwick's execution because he is brain damaged and mentally impaired.
As to the first claim, after reviewing the evidence presented at the postconviction phase, the Court determined it did not change the ultimate result:
Mr. Barwick argues with some force that Dr. Eisenstein's testimony went beyond that of the seven penalty-phase experts and was not merely cumulative. But the testimony would not have changed the central facts. Mr. Barwick endured substantial abuse and suffered from mental illness. The abuse and illness contributed to this murder. Still, Mr. Barwick's criminal history included a sexual-battery conviction, and he murdered this victim—a woman he did not know—for his own gratification. He committed the murder in an especially cruel manner. Even with Dr. Eisenstein's testimony, the jury probably would have recommended the death sentence. And the judge still would have imposed the death sentence, as shown by his denial of collateral relief.
The Court determined that Barwick did not meet his burden to establish entitlement to relief, concluding that “[t]he Florida Supreme Court properly set out the law and concluded that Mr. Barwick had shown neither deficient performance nor prejudice.” The conclusions were similar for the next few claims.
On the sixth claim, which was related to the reason Barwick was granted a retrial, the Court agreed with the Florida Supreme Court that the claim was due to be denied on “both procedural grounds and the merits.”
On the seventh claim, Barwick argued he was ineligible for execution because he was 19 at the time of the crimes. Like the FSC, the Court denied Barwick’s claim because of the “bright line” rule established in Roper v. Simmons that 18 is the cutoff for the age of majority and ineligibility for execution:
The Florida Supreme Court's rejection of Mr. Barwick's claim also was not an unreasonable application of Roper. In Roper, the United States Supreme Court drew a bright line—age 18. The Court squarely held that executing a defendant for committing a crime before age 18 is always unconstitutional, no matter how mature the defendant. A reasonable application of Roper is that the bright line works the other way, too—executing an individual for committing a crime after age 18 is not, just because of age, unconstitutional. Mental or emotional age may be a mitigating factor, but it does not necessarily preclude the death penalty.
Circuit Court of Appeals
Barwick appealed the District Court’s decision to the U.S. Court of Appeals for the Eleventh Circuit. Upon review, the Eleventh Circuit affirmed the District Court’s decision denying Barwick’s claims.
Postconviction (2018)
Like almost everyone on Florida’s death row at the time, Barwick filed a claim seeking relief under Hurst v. Florida.1 The claim was denied because Barwick's sentence became final before Ring v. Arizona in 2002. The Court also noted that the jury unanimously recommended a sentence of death—meaning Barwick would not have been eligible for Hurst relief notwithstanding retroactivity.
Justice Pariente concurred in result with an opinion.
Justices Lewis and Canady concurred in result without an opinion.
The U.S. Supreme Court denied certiorari.
Two on Death Watch
Barwick's warrant comes while Louis Gaskin remains on death watch with his execution scheduled for April 12, 2023. He has several claims pending at the Supreme Court of Florida, as
explained yesterday.It has been a long time since more than one person was on death watch at one time. From what I can tell, the last time more than one person was on death watch was late 2015 when Michael Lambrix was put on death watch with Oscar Ray Bolin, Jr., as Lambrix wrote about here.2 Bolin was executed on January 7, 2016—five days before the U.S. Supreme Court’s decision in Hurst v. Florida. Lambrix’s execution was stayed at that time, but he was later executed (as discussed below).
There has not been more than one person on death watch at one time since executions resumed after Hurst v. Florida in 2017. Even though executions were fairly close in time, Governor Scott issued each new warrant just after an execution was completed so there was no overlap:
August 24, 2017: Mark Asay was executed.
September 1, 2017: Governor Scott issued a warrant for Michael Lambrix’s execution.
October 5, 2017: Lambrix was executed.
October 6, 2017: Governor Scott issued a warrant for Patrick Hannon’s execution.
November 8, 2017: Hannon was executed.
January 9, 2018: Governor Scott issued a death warrant for Eric Branch’s execution.
February 22, 2018: Branch was executed.
As I explained in this article published by City and State Florida (based on information from Michael Lambrix and the Lethal Injection Protocol published by DOC), when there is more than one person on death watch, they are shuffled between cells as they approach execution. Darryl Barwick will be placed in Cell 2 on death watch. After Louis Gaskin is executed or removed from death watch if he receives relief from the execution, Barwick will be moved up to Cell 1—the closest to the execution chamber.
My thoughts are with everyone involved in these warrant periods.
I reached out to DOC to confirm, but they could not verify.