Death row inmate asks state Supreme Court to overturn conviction

FLORIDA:

Death row inmate asks state Supreme Court to overturn conviction

Mark Twilegar never contested the penalty phase of his 2007 murder conviction.

Now, the death row inmate 1 of 8 from Lee County is challenging his conviction and death sentence in the highest court in the state, asking the Florida Supreme Court to throw out a jury's guilty verdict in the 2002 murder of North Fort Myers attorney David Thomas.

Prosecutors said Twilegar shot Thomas in the back with a shotgun, buried him while still alive and stole the $25,000 the attorney had recently withdrawn.

On Tuesday, the panel of seven justices listened to oral arguments from Twilegars attorney, who claimed the evidence for conviction was insufficient, and a state prosecutor, who asked that jurors' 2007 decision stand, despite a potential evidence error.

The review comes as Twilegar's direct appeal; all death row inmates are automatically required to appeal to the Florida Supreme Court.

During the penalty phase of Twilegar's trial in which jurors were asked to weigh sentencing him to life in prison versus death by execution

Twilegar never offered a mitigating factor to save his life. Jurors recommended death, and a judge agreed.

"This is a circumstantial evidence case," Cynthia J. Dodge, Twileger'sattorney, told the justices on Tuesday.

Twilegar, a handyman who lived in a tent on a friend's Fort Myers property, was building a deck on Thomas' Alabama home at the time of the murder. After Thomas bank withdrawal, the reason for which was never clear, the pair drove back down to Fort Myers on August 6, 2002.

Thomas' body was found weeks later, buried in a shallow grave besideTwilegar's tent site. Twilegar, who hit the road soon after Thomas went missing, was later arrested in Tennessee.

A judge in his trial allowed prosecutors to present Twilegar's cash receipts from a 7-11 and Wal-Mart as evidence, records intended to show the defendant purchased items he couldn't afford before Thomas went missing.

On Tuesday, justices called that evidence potential hearsay and thus, potentially problematic. Although the receipts were found on Twilegar at arrest, there was no foundation of evidence to tie them to him.

"I'm sort of surprised that the state would take a risk of introducing these receipts that are very indicative not only of the amount (of purchases), but of the timeline, through a deputy that could not establish the foundation," Justice Barbara J. Pariente told Assistant AttorneyGeneral Candance Sebella.

Sebella said other witnesses tied Twilegar to the shopping trips, but she admitted the admission could be an error.

"I'm saying, your honor, if there was error, it was harmless, absolutely."

Twilegar's attorney, Dodge, found less sympathy during the hearing.

"All I think you're doing here is saying there might be some holes in the state's case," Pariente told the attorney, who attacked the state's evidence as insufficient.

Dodge said she wasn't. "What I'm saying is, 'Go back to the circumstantial evidence case," she said. "Suspicious circumstances are not enough. That evidence has to be inconsistent with the theory of innocence."

And what was the defense's theory of innocence, Chief Justice Peggy Quince asked.

"That somebody else did it. We don't know who," Dodge said. "And that is a perfectly legitimate..."

Quince cut in: "Somebody else came to the same place where Mr. Twilegar was, dug a hole and put Mr. Thomas in it?"

The property was not fenced, Dodge offered.

Justices will likely return an opinion in the coming months.

(source: Naples Daily News)