Mullens v. State

Decision Date16 June 2016
Docket NumberNo. SC13–1824.,SC13–1824.
Citation197 So.3d 16
Parties Khadafy Kareem MULLENS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Howard L. Dimmig, II, Public Defender, and Cynthia Jean Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Timothy Arthur Freeland, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Khadafy Kareem Mullens pleaded guilty to two counts of first-degree murder for the murders of Mohammad Uddin and Ronald Hayworth, and one count of attempted first-degree murder of Albert Barton. After Mullens waived his right to a penalty phase proceeding by a jury, the trial court sentenced Mullens to death for the murders of Uddin and Hayworth and life imprisonment for the attempted murder of Barton. Mullens now appeals his sentences. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

FACTS AND PROCEDURAL HISTORY

The Central Food Mart in St. Petersburg was a convenience store equipped with a visible, but inoperative videocassette recording device (VCR), as well as at least seven other concealed devices that recorded and captured the events that occurred in the store on the evening of August 17, 2008. Spencer Peeples and Mullens entered the store on that evening and initiated a robbery of Uddin, the clerk who was working in the store that evening. Peeples brandished a gun and together with Mullens, demanded money from the cash register. At one point, Peeples tucked his hand into his shirt to prevent his fingerprints from being left on the register. While the three men stood behind the counter as Uddin opened the register, Hayworth entered the store and stood quietly at the counter.

After Peeples and Mullens removed cash from the register, they asked Uddin about the inoperative VCR equipment. Peeples removed the equipment and handed it to Mullens, who placed it in a plastic bag. Peeples returned to the counter, filled another plastic bag with lottery tickets, and handed a small box to Hayworth across the counter at Hayworth's request. Hayworth left the counter to approach the door, but did not exit the store. Peeples and Mullens dragged Uddin from the counter to the entrance of the store and at gunpoint demanded the keys to Uddin's car, but Uddin refused. The three men returned to the counter where Peeples took a green carton of Newport cigarettes and handed it to Mullens, who placed it in a plastic bag. As Peeples continued to demand the keys from Uddin, Mullens walked around the store and spoke to Hayworth before returning to the store entrance. Peeples eventually obtained the keys from Uddin, handed the gun to Mullens, and indicated that he would return shortly with Uddin's car before he exited.

Mullens stood in front of the door and alternatively looked outside the door and back at the counter at Uddin. When Mullens opened the door and leaned outside, Uddin reached for a telephone and dialed a number. Mullens saw the movement and ran toward him with the gun pointed at Uddin. Mullens pushed Uddin back toward the phone and struggled with Uddin before shooting Uddin once in the head.

Mullens then walked away from the counter and grabbed the arm of Hayworth, who had remained in the store but was not standing in front of the door or blocking Mullens's exit. Mullens pushed Hayworth to the floor and shot him in the head as well. As Mullens exited the store, he placed the gun in his pocket. Barton then opened the door of the store, but balked as Mullens attempted to pull him into the store. Barton and Mullens struggled and Mullens fired several shots at Barton. Barton eventually fell to the ground and crawled away, at which point Mullens abandoned Barton and picked up the bag full of lottery tickets before he exited the store.

After reviewing footage from the operative surveillance equipment, officers issued a “Be On The Lookout” notice with a description of Peeples, Mullens, and Uddin's stolen car. Peeples was arrested driving Uddin's car in the early morning of August 18, and he gave a voluntary statement to officers. Officers also recovered from Uddin's car a cylinder from a revolver and a pack of Newport cigarettes. In his statement, Peeples indicated that he only intended to commit a robbery, not murder. Peeples also consented to a search of his apartment, from which officers recovered the lottery tickets, VCR equipment, and clothing that matched that worn by both of the assailants in the video recordings. Detectives Rodney Tower and Brian Taylor later saw Mullens in an alley and arrested him because they recognized him from the surveillance footage. When Mullens was arrested, officers searched him and found lottery tickets with serial numbers that matched those taken from the store.

On September 4, 2008, a grand jury indicted Mullens and Peeples on two counts of first-degree murder and one count of attempted first-degree murder, although the joint indictments were eventually severed. Between July and September 2011, a hearing was conducted to determine whether Mullens was competent to proceed. Dr. Jill Poorman testified that in her opinion, Mullens was competent to proceed, although Dr. Scot Machlus offered an opinion to the contrary. Dr. Peter Bursten, a psychologist, opined that while Mullens suffered from antisocial personality disorder, he did not display any symptoms consistent with an Axis I disorder. Bursten also offered an opinion that Mullens was malingering. However, Dr. Machlus testified that in his opinion it would be difficult for someone of Mullens's intelligence level and behavioral patterns to malinger. The trial court orally found that Mullens was competent to proceed. On April 29, 2013, Mullens pleaded guilty to the first-degree murders of Uddin and Hayworth and the attempted first-degree murder of Barton. During the penalty phase, he waived the right to present evidence to a jury,1 and aggravating and mitigating evidence was received by the trial court.

During the testimony of Detective Tower, the State introduced video recordings and still photographs obtained from the surveillance cameras. Defense counsel objected that the State could not establish a sufficient foundation for this evidence to be admitted through Tower, who did not immediately respond to the crime scene and did not know how the footage was downloaded into an accessible format. Law enforcement personnel from the City of St. Petersburg were initially unable to access the surveillance footage. Tower contacted Robert Dematti of Able Solutions, who assisted law enforcement personnel in retrieving and accessing the surveillance footage. The court admitted the material into evidence over the objections of defense counsel.

The State also presented testimony from Detective Taylor, who interviewed eyewitnesses and supervised the search of Peeples's apartment. One witness, Russell Watson, informed Taylor that an individual, later identified as Peeples, had approached him earlier that day, indicated that Peeples was armed, and invited him to participate in the robbery of the Central Food Mart. Watson declined, but observed Peeples enter the convenience store later that day. Another witness informed Taylor that she watched a driver in Uddin's gray Toyota Camry, which had been parked in front of the store that day, drive away from the store, make a U-turn, and return to the store. Officer Willard Smith also testified that the serial numbers of the lottery tickets found in Mullens's possession matched those registered to the Central Food Mart. Dr. Jon Thogmartin, the medical examiner, also testified that the cause of death for both Uddin and Hayworth was a gunshot wound to the head, and that while Uddin lost consciousness immediately, there was a possibility that Hayworth did not. The State did not present testimony from Dematti, who assisted law enforcement with the surveillance footage, or Barton, the surviving witness.

After the State concluded the presentation of penalty-phase evidence, Mullens presented various witnesses in mitigation. Ali Sultan, another local convenience store owner, testified that he knew Peeples had a reputation for violence and intimidation. He stated that he and Peeples were involved in an ongoing dispute, and on the day of the crimes, Peeples had first come to Sultan's store, looking for Sultan, but Sultan was not there at the time. Sultan also testified that while he did not know Mullens well, he was a known local drug addict who seemed “simple” to Sultan.

Several family members and friends of Mullens also testified with respect to Mullens's childhood and character. During much of Mullens's childhood, Mohammad Ibrahim, his father, was incarcerated, leaving Cassandra Washington, his mother, to care for several children while she completed her education. Cassandra often relied on her oldest child, Shandra, to supervise the children while she worked or attended school. Relatives described Mullens's childhood home as cluttered, decrepit, and lacking food to feed the family. At one point, Cassandra and her family were evicted.

When Ibrahim was released from prison, he offered little support to Mullens, Cassandra, or the rest of the family. He verbally and physically abused Cassandra in front of the children, and when Mullens observed this, he removed his younger sister Kendra from the room. Ibrahim abused drugs and stole food stamps, the household television, and a Mickey Mouse watch from Shandra to purchase drugs. Additionally, he taught both Shandra and Mullens to shoplift when they were children.

During one of the periods of Ibrahim's incarceration, Cassandra married Levi McClendon, who also had problems with substance abuse. Cassandra testified that McClendon was tougher on Mullens than the rest of the children. Sharon Mullens, the sister of Ibrahim and aunt of Mullens, testified that she did not like the interactions between Mullens and McClendon.

Family members and friends described Mullens as a...

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