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If jurors want to deliver the death sentence against two-time convicted killer Kendrick Silver, they’ll have to agree unanimously — something that up until now, no Miami jury has ever been required to do.
Against that legal backdrop, those 12 jurors heard starkly different descriptions of Silver.
For prosecutors, he was a callous criminal who murdered two men in separate robberies. Silver is being sentenced for his first victim, a restaurant security guard shot dead at point-blank. The second victim was Coral Gables jogger Jose Marchese-Berrios, shot by Silver in the chest in May 2007.
“Mr. Marchese’s lungs filled with his own blood, causing him to drown to death in the arms of his 15-year-old son,” Assistant State Attorney Tammy Pitiriciu told jurors.
Defense attorneys, hoping jurors will spare his life, depicted the 29-year-old Silver as the product of a troubled childhood and a mother who repeatedly abused and neglected him.
“This was a life that was scarred by circumstances that were outside of his control,” Assistant Public Defender Annemarie Block told the jury.
Silver’s sentencing marks the first time in Miami-Dade County that jurors have been asked to be unanimous in considering the death sentence.
For decades in Florida, prosecutors only needed at least a majority seven votes for a death-penalty recommendation, with the judge ultimately meting out the punishment.
Then in January 2016, the U.S. Supreme Court ruled that Florida’s sentencing scheme was unconstitutional because defendants have a right to a trial by jury. State lawmakers rewrote the law, replacing the judge’s override and requiring a vote of at least 10 of 12 jurors to sentence someone to death.
Death-penalty litigation ground to a halt as the Florida Supreme Court then ruled that the new law was unconstitutional because jury verdicts need to be unanimous. Finally in March, the Legislature passed a new law requiring jurors to unanimously agree on a death sentence.
Since then, a handful of killers formerly on Death Row have been re-sentenced to life in prison under plea deals. Not so in one high-profile case in Orlando, where a jury unanimously sentenced Juan Rosario to death for murdering an 83-year-old woman.
As for Silver, he is being sentenced for the December 2006 murder of 62-year-old Solmeus Accimeus, a security guard shot dead as he sat in his car at closing time outside Esther’s Restaurant in North Miami-Dade.
Intending to rob the guard, Silver walked up to the car and fired at the guard, penetrating the man’s aorta, spraying blood all over the gunman, prosecutors said. Moments later, as he fled, Silver threw away the ski mask, which had Accimeus’ blood on the outside, and Silver’s DNA on the inside, prosecutors told jurors.
The 12-person jury, in June, convicted Silver of first-degree murder. The group reconvened on Tuesday, hearing for the first time that Silver was already convicted of another murder, the killing of Marchese-Berrios, which took place five months after Accimeus was gunned down.
Prosecutors recounted the killing, saying Silver wanted the jogger’s flip-top phone. Silver took the phone, stepped back and fired one shot directly into his chest, prosecutor Pitiriciu said.
Mortally wounded, Marchese-Berrios somehow walked back to the small Coral Gables apartment he shared with his wife and teenage son, also named Jose Marchese.
“As I was dressing, I heard my dad come inside the house screaming my mom’s name. He was saying he just got shot. My mother started panicking and I just grabbed my dad. I saw his gunshot and I grabbed a towel or whatever I could find to cover it,” his son, now 25, testified to jurors on Tuesday.
Miami-Dade detectives later traced the phone back to Silver, who gave it to his girlfriend and confessed he shot the jogger. Pitiriciu told jurors Silver deserved the death penalty for claiming “two lives in cold blood.”
But defense lawyers say Silver should be spared because his childhood was marked by abuse and a mother who was a “damaged, unstable person.” Since he has been in jail, Silver has also been been entrusted to help corrections officer doing chores, handing out food – and even speaking to troubled kids who visit the jail, Block said.
“The most stability and structure Kendrick ever had was in jail,” Block said, adding: “This is not the kind of case that the death penalty was designed for.”
The sentencing continues Wednesday before Miami-Dade Circuit Judge Marisa Tinkler Mendez.