Kenneth Allen Stewart

Case information

Kenneth Allen Stewart was sentenced to death on October 3, 1986, and was resentenced to death in 1990 and 2001.

Stewart was sentenced by The Honorable John P. Griffin. Resentencing judges were The Honorable William Fuente (Resentencing Judge (I)) and The Honorable Barbara Fleisher (Resentencing Judge (II)).

The trial and resentencing attorney was Michael Jones, described as court-appointed. The direct appeal attorney was A. Anne Owens, described as Assistant Public Defender. Collateral appeals were represented by Daphney E. Gaylord & Robert T. Strain, described as CCRC-Middle.

Stewart’s date of birth was 08/26/63.

The date of offense was 12/06/84. The case was in the Thirteenth Judicial Circuit, Hillsborough County. The case number was 85-5667. The related capital case identifier referenced was DC# 479774.

Timeline

• 12/06/84 — Ruben Diaz was found dead in connection with the first-degree murder and second-degree arson.
• 10/03/86 — Stewart was sentenced to death for first-degree murder and to 15 years for second-degree arson.
• 11/21/90 — Stewart was resentenced to death and again received 15 years for second-degree arson.
• 03/20/87 — Stewart filed a direct appeal to the Florida Supreme Court.
• 03/15/90 — The Florida Supreme Court affirmed Stewart’s conviction of second-degree arson, but reversed the death sentence and remanded for resentencing.
• 01/14/91 — Stewart filed a direct appeal (Resentence I) to the Florida Supreme Court.
• 05/13/93 — The Florida Supreme Court affirmed the death sentence.
• 05/27/93 — Stewart filed a motion for rehearing.
• 06/23/93 — The motion for rehearing was denied.
• 07/23/93 — A mandate was issued.
• 09/20/93 — Stewart filed a petition for a Writ of Certiorari to the United States Supreme Court.
• 11/15/93 — The United States Supreme Court denied the petition.
• 06/09/95 — Stewart filed a 3.850 motion in the State Circuit Court.
• 11/15/95 — The 3.850 motion was amended.
• 02/18/99 — The 3.850 motion was again amended.
• 05/04/00 — The State agreed to a new penalty phase.
• 05/14/00 — The State agreed to a new penalty phase.
• 03/21/01 — The penalty phase was filed.
• 03/31/01 — The trial court held a Spencer hearing and the jury returned a recommendation for death by a vote of 12-0.
• 08/06/01 — Stewart was resentenced to death.
• 09/10/01 — Stewart filed another direct appeal (Resentence II) to the Florida Supreme Court.
• 09/11/03 — The Florida Supreme Court affirmed the denial of the death sentence on Resentence II appeal.
• 06/21/04 — Stewart filed a petition for a Writ of Habeas Corpus to the Florida Supreme Court.
• 03/18/05 — The Florida Supreme Court denied the Writ of Habeas Corpus petition.
• 05/31/05 — Stewart filed a Habeas Appeal in the United States District Court, Middle District.
• 07/25/05 — Stewart filed a 3.851 Motion in the Circuit Court.
• 02/06/06 — The 3.851 Motion was amended.

The offence

On 12/06/84, Ruben Diaz was found dead on the morning of 12/06/84. Diaz had been shot twice in the head, from a distance of one foot or less, once in front of the head and the other behind the right ear.

A resident of a nearby neighborhood told officers that he heard gunshots around 12:15 a.m.

Later that day, police officers discovered Diaz’s car, which had been set on fire at a shopping mall parking lot.

During the trial, the state obtained testimony describing Stewart and his accomplice approaching Diaz while Diaz was inside a bar, convincing him to give them a ride, and then robbing and shooting Diaz.

Stewart’s accomplice remained unnamed during the trial.

Stewart was also described as being sentenced to death for the 04/14/88 murder of Mark Harris (CC# 85-4825).

Investigation and arrest

Several months after police officers discovered Diaz’s car set on fire, officers arrested Stewart in connection to similar offenses.

While Stewart was in custody, officers charged him with first-degree murder and second-degree arson for the 12/06/84 offenses.

Stewart’s connections with the offenses of 12/06/84 were described as not yet discovered until he was apprehended for a later offense (CC# 85-4825) that was similar.

Trial

Stewart was indicted on 06/05/85 as follows:

• Count I: First-Degree Murder
• Count II: Second-Degree Arson

On 09/24/86, the jury returned guilty verdicts on all counts of the indictment.

On 09/25/86, the jury recommended death by a vote of 12-0.

Witness testimony

The state employed two key witnesses to testify against Stewart: Randall Bilbrey and Terry Smith.

Randall Bilbrey

Bilbrey shared a trailer with Stewart for about ten days. Bilbrey testified that Stewart admitted robbing a man matching Diaz’s description.

Bilbrey testified that on the night of the murder, Stewart and his accomplice targeted the driver of a big, expensive-looking car parked outside a bar, intended to rob the driver, approached and conversed with Diaz, who was inside the bar, convinced Diaz to give them a ride, and then proceeded as follows:

• Stewart, sitting in the back seat, pulled out a gun and demanded that Diaz drive to a wooded area.
• At the site, Stewart ordered Diaz to get out of the car, lie on the ground, and place his hands on his head.
• Stewart took Diaz’s wallet, which contained $50, and a small vial of cocaine.
• Stewart shot Diaz twice in the head, as the second man was urging him to do so.
• The two men left Diaz’s body at the site, drove to a nearby shopping mall, parked the car, and set the car on fire to destroy fingerprints.

Terry Smith

Terry Smith testified that Stewart told him that a man picked him up as he was hitchhiking.

Smith testified that Stewart pulled out a gun and ordered the man to drive to a certain location. Smith further testified that Stewart ordered the man out of the car, made him lie on the ground, robbed him, and shot him twice.

Sentencing

On 10/03/86, Stewart was sentenced as follows:

• Count I: First-Degree Murder — Death
• Count II: Second-Degree Arson — 15 Years

After reversal and remand, on 11/21/90 Stewart was resentenced as follows:

On 03/21/01, the penalty phase was filed.

On 03/31/01, the trial court held a Spencer hearing and the jury returned a recommendation for death by a vote of 12-0.

On 08/06/01, Stewart was resentenced to death.

A State agreement to a new penalty phase was referenced on 05/04/00 and again as 05/14/00.

Appeals

Stewart filed a direct appeal to the Florida Supreme Court on 03/20/87. Stewart raised numerous issues, including:

• Stewart claimed the trial court deprived him of an effective defense.
• Stewart claimed the trial court wrongly allowed a police investigator to testify as to what Stewart told Smith about the shootings.
• Stewart claimed the trial court erred by allowing into evidence testimony by victims of crimes for which he earlier had been convicted.
• Stewart claimed the jury should not have been advised to consider the “cold, calculated, premeditated” factor since the judge made no mention of this factor when he was sentenced.
• Stewart claimed ample evidence was presented to support that the crimes he committed, while under the influence of extreme mental or emotional disturbance, allowed him to appreciate the criminality of his conduct.

On 03/15/90, the Court affirmed Stewart’s conviction of second-degree arson, but reversed the death sentence and remanded for resentencing because the trial court failed to instruct the jury on the impaired capacity mitigating factor.

On 01/14/91, Stewart filed a direct appeal (Resentence I) to the Florida Supreme Court. The Court affirmed the death sentence on 05/13/93.

Stewart filed for a motion for a rehearing on 05/27/93, which was denied on 06/23/93. A mandate was issued on 07/23/93.

Stewart filed a petition for a Writ of Certiorari to the United States Supreme Court on 09/20/93, which was denied on 11/15/93.

On 09/10/01, Stewart filed another direct appeal (Resentence II) to the Florida Supreme Court, which was affirmed on 09/11/03.

On 06/21/04, Stewart filed a petition for a Writ of Habeas Corpus to the Florida Supreme Court, which was denied on 3/18/05.

On 05/31/05, Stewart filed a Habeas Appeal in the United States District Court, Middle District. The appeal was described as currently pending.

On 07/25/05, Stewart filed a 3.851 Motion in the Circuit Court and amended the motion on 02/06/06. The motion was described as currently pending.

Stewart filed a 3.850 motion on 06/09/95 in the State Circuit Court. The motion was amended on 11/15/95 and again on 02/18/99.

Outcome

The jury returned guilty verdicts on all counts of the indictment on 09/24/86.

The jury recommended death by a vote of 12-0 on 09/25/86.

The Court affirmed Stewart’s conviction of second-degree arson on 03/15/90 while reversing the death sentence and remanding for resentencing for failure to instruct the jury on the impaired capacity mitigating factor.

After resentencing proceedings, Stewart was resentenced to death on 11/21/90 and again on 08/06/01.

Other details

Codefendant information described an accomplice to Stewart whose identity remained unnamed during the duration of the trial.

Stewart was also said to have been tried separately as capital cases for the 12/06/84 offenses and the 04/14/88 murder of Mark Harris (CC# 85-4825).