Defense attorneys for a Hollywood man convicted in September of murdering a former Key West High School athlete want a new trial for their client.
Nicholas Ferro's attorneys, Edward O'Donnell and Edward O'Donnell IV, said in a recent motion for a new trial filing that prosecutors "were guilty of misconduct" during the trial, and that one of the jurors was not qualified to serve.
Specifically, O'Donnell IV said prosecutors improperly allowed Key West Police Department Lt. David Smith to imply that Ferro may have been involved in gang activity based on some of his tattoos. That prompted defense attorneys to move for a mistrial. Instead, Circuit Court Judge Luis Garcia instructed jurors to disregard any statements that Ferro was ever involved with gangs.
An Upper Keys jury took less than two hours on Sept. 27 to convict Ferro, 27, of second-degree murder. He faces life imprisonment when he goes before Garcia for sentencing on Feb. 7. He had been scheduled for sentencing this past Monday but was granted a delay.
Ferro stabbed Marquese Butler, 23, in the early morning hours of Oct. 31, 2009.
Ferro's tattoos again became part of the trial when prosecutors told him to show them to jurors during closing arguments. According to the defense motion, Garcia ruled prior to the trial that Ferro's tattoos would not be an issue.
"Nevertheless, despite the limitations imposed by the court prior to the trial, Mr. Ferro's tattoos did in fact play a prominent role in this trial," the defense attorneys wrote.
O'Donnell also took issue with Assistant State Attorney Breezye Telfair telling jurors during closing arguments that they spoke for the victim with their verdict.
"They implied Nick was in a gang, when he is not," O'Donnell IV said in an interview this week. "The prosecutors also told the jurors during closing arguments that 'you speak for the victim.' This is closing argument 101. You're not allowed to do that."
Ferro and Butler were involved in a street brawl near Duval Street involving several young men from both groups. The fight happened during the popular Fantasy Fest celebration.
Butler died later that morning on a Lower Keys Medical Center operating table. The knife's blade penetrated 6 inches into his abdomen and sliced a major artery in his pancreas.
Ferro claimed self defense, saying he stabbed Butler with his 2.5-inch pocket knife after being hit from behind while trying to pull his friend, Jorge Averoff, from a group beating at the hands of the Key West men. During the September trial, Ferro and his friends testified they were waiting for a cab when they were attacked by Butler and his friends.
The fact that Butler and Ferro did not know each other before the fight is another reason why the O'Donnells feel their client deserves a new trial.
Part of the definition of second-degree murder is that the perpetrator must have had a "depraved mind regardless of human life." To have a depraved mind toward someone implies that one knows the other person, the O'Donnells wrote.
"The case law is clear that evidence of a depraved mind typically requires proof that the victim and the accused knew each other for some period of time," reads the motion for a new trial.
If Garcia grants Ferro another trial, it would be the third time he defends himself in this case. A March 2012 trial ended in a hung jury. Circuit Court Judge David Audlin declared a mistrial. It was then decided to move the next trial to the Upper Keys because the Butler family is too well known in Key West.
Prosecutors Telfair and Miesha Darrough from the Miami-Dade State Attorney's Office took the place of Monroe County prosecutors because several staff members here had ties to the Butler family. Between his trials, Ferro was released on $750,000 bond.