Okafor v. State

• Decision Date: 08 June 2017
• Docket Number: No. SC15-2136.,SC15-2136.
• Citation: 225 So.3d 768
• Court: Florida Supreme Court
• Parties: Bessman OKAFOR, Appellant, v. STATE of Florida, Appellee.

225 So.3d 768

Bessman OKAFOR, Appellant,

v.STATE of Florida, Appellee.

No. SC15-2136.

Supreme Court of Florida.

[June 8, 2017]

Valarie Linnen, Atlantic Beach, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Vivian Singleton, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

Bessman Okafor appeals his conviction for the September 10, 2012, first-degree murder of Alex Zaldivar and his resultant sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm Okafor's conviction but, because the jury did not unanimously find the facts necessary to impose death and did not render a final unanimous verdict to recommend the death penalty, we vacate his death sentence and remand for a new penalty phase.

STATEMENT OF THE CASE AND FACTS

The testimony presented at trial demonstrated that Brienna Campos, Remington Campos, Brandon Campos, and Alex Zaldivar resided at a home owned by the Camposes' parents in Ocoee, Florida. At around noon on May 9, 2012, Brienna, Brandon, and a friend, William Harrington, were watching television in the living room. Alex was asleep in his room and Remington was at work. Brienna, Brandon, and William saw a blue or purple Monte Carlo drive up and down the street and assumed that someone was lost. Subsequently, two men rang the doorbell and Brandon answered. They put guns in Brandon's face and ordered him back inside. The men followed Brandon in, ordered Brienna, Brandon, and William to lie face down and found Alex in his room and ordered him out to join the others. They used video game controllers and costume handcuffs to tie the victims up. The men asked whether the home was a grow house and inquired where the drugs and money were. When they found neither, the men took some bags, some smaller electronic items, a small amount of cash, and Brandon's house keys and left. William was able to release himself from the costume handcuffs and untie the Camposes. They were able to then call the police. William was able to use the find my phone feature on his cellular phone to help the police track the assailants. Brienna, Brandon, and William rode with police to another location and identified Okafor and Nolan Bernard as the two men who had just invaded their home as well as the Monte Carlo the men had driven.

Bernard and Okafor were arrested and the stolen items were returned. Bernard was jailed awaiting trial, but Okafor was fitted with an ankle monitor and released on home confinement to the residence owned by his sister, Takeethia Ruffin. Okafor's trial for the May 9 home invasion was set for September 11, 2012. Brienna, Brandon, Alex, and William were scheduled to testify.

On August 24, 2012, Okafor sent a text message to someone named "Dorey" asking "did you get that?" to which Dorey responded "it's here with a full clip." Okafor also told Dorey that his lawyer had informed him that all the witnesses were planning to show up. On September 9, 2012, Okafor exchanged text messages with a friend, Antoine McLaren. Okafor texted that he was worried about his case and asked McLaren to procure a hoodie and gloves because he was worried about returning to jail. Okafor texted "I can't let them show up." McLaren declined to procure the items.

On September 10, 2012, at approximately 3:45 a.m., Okafor called Sherria Gordon and told her to get ready because he was coming to pick her and her children¹ up. Okafor picked Sherria up from her home in Takeethia's white Malibu and dropped the children off to continue sleeping at Takeethia's house. Okafor's ankle monitor corroborated this evidence, showing him away from his home from 3:49:27 to 4:08:28 a.m. Sherria and Okafor drove to Nesly Ciceron's house, where Okafor woke Nesly, handed him the keys to a white Taurus, and instructed him to follow Okafor. As they were driving, Nesly pulled up beside Okafor and indicated that the Taurus needed gas. Both cars stopped at a Marathon gas station where Sherria was filmed paying for the gas purchase at 4:45 a.m. After refueling, both cars continued to an abandoned house where they met Donnell Godfrey and Emmanuel Wallace who were driving Candace Ruffin's white Impala.²

Okafor handed Emmanuel's phone to Nesly and asked him to remain at a described location and to call if he heard police approaching. Okafor likewise instructed Sherria to wait at a location and to call if she heard police approaching. Okafor, Donnell, and Emmanuel drove the Impala to the Camposes' neighborhood. They were filmed by three surveillance cameras located at a house on the corner near the crime scene. The footage showed a white Impala passing by one of the cameras at 5:07 a.m. The video recording contained audio of four gunshots, with the first occurring at 5:21 a.m. followed by three consecutive shots. The cameras then showed the Impala heading in the opposite direction at 5:24 a.m.

At the Camposes' residence, Brienna and Remington were awakened by the sound of Brienna and Brandon's dogs barking. Brienna testified that she was pulled out of her room by a tall, lanky man who wore a long-sleeved shirt, pants, and a t-shirt covering his head so that she could only see his eyes and hairline. The unidentified man showed her his pistol and forced her out of her bedroom to the living room and had her lie face down. Alex was already lying face down and she was placed so close that their heads touched. Remington testified that he was removed from his bedroom by a heavy-set man with short dreads carrying a Glock pistol. On his way to the living room, Remington observed a tall, thin man with long dreads carrying an AK–47 assault rifle. Both Brienna and Remington testified to seeing only two assailants.

One of the assailants did all the talking. He asked "where are the other two?" presumably referring to Brandon and William who were present at the May 9 home invasion. He also asked "who is the naked guy?" referring to Remington who had not been present for the May 9 home invasion. He asked about the drugs and money and Brienna said "you're going to be disappointed just like you were before." Both Brienna and Remington testified that he said "someone is going to get shot tonight." Brienna testified that she thought the statement was just made to scare them. Brienna and Remington both testified that they heard the sound of rubber gloves snapping into place before hearing the first shot. Brienna testified that after she heard the first shot, she thought it had been a mistake due to adrenaline. She felt the pressure on the left side of her head. She then heard two more gunshots. Remington heard the first shot and said he knew Brienna had been hit because he knew it wasn't right next to him or himself. Remington heard the second shot and heard Alex stop breathing. He then heard the third shot and said it felt like someone had dropped bricks on the back of his head and blood started blocking his vision. The assailants left and Brienna and Remington climbed over their back fence to their neighbors' home. Amy Scott answered the door and saw the two of them covered in blood. Brienna used the Scotts' phone to call police, who responded at 5:24 a.m.

Video surveillance captured the white Impala leaving the neighborhood around the same time. Sherria testified that Okafor called her and told her to return to the abandoned house. When she arrived, the other two cars were there. Nesly testified that he left his location before he was instructed but nevertheless returned to the abandoned house to await the others' return. He testified that he was the first car to arrive back, followed by the Impala, followed by Sherria in the Malibu. Nesly testified that Godfrey was driving the Impala on the return trip and that Okafor got out of the Impala and into the car with Nesly who then drove Okafor home. Sherria testified that Godfrey got into the car with her and she drove him down the street until he indicated where to let him out. She then returned to Takeethia's house, where Okafor was already standing outside. She and Okafor then went to bed.

Okafor's jury trial commenced on August 10, 2015. At the end of the trial, the jury convicted him of one count of first-degree premeditated murder, two counts of attempted first-degree murder, and one count of armed burglary of a dwelling with explosives or a dangerous weapon. The penalty phase commenced on August 27, 2015.

At the penalty phase, the State presented testimony from Brienna Campos, Remington Campos, Denise Zaldivar, Richard Zaldivar, Kyoko Zaldivar, and Rafael Saldivar. Okafor presented testimony from Trenton James, Catalina Ruffin Sinclair, Trevor Sinclair, Marcia Pete, Dr. Edward Taylor, and Dr. Stephen Gold. The jury voted eleven to one to sentence Okafor to death. The Spencer ³ hearing occurred on October 13, 2015, where the State presented testimony from Kyoko, Rafael, and Brienna. Afterwards, the trial court found four aggravating circumstances,⁴ thirteen mitigating circumstances,⁵ and sentenced Okafor to death.

First, Okafor argues that the trial court erred in striking Juror 105 for cause based on his allegedly equivocal responses to whether he would be able to impose the death penalty after determining it was the appropriate punishment. We conclude that there was no error.

A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror competency.

Barnhill v. State, 834 So.2d 836, 844 (Fla. 2002), cert. denied, 539 U.S. 917, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003). This is because trial courts have a unique vantage point in their observation of jurors' voir dire responses. Therefore, this Court gives deference to a trial court's determination of a prospective juror's qualifications and will not overturn that determination absent manifest error. Hertz v. State, 803 So.2d 629, 638 (Fla. 2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 846 (2002). Where a prospective juror is challenged for

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