Wilcox v. State, No. SC11–1017.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 143 So.3d 359
• Docket Number: No. SC11–1017.
• Decision Date: 10 July 2014
• Parties: Darious WILCOX, Appellant, v. STATE of Florida, Appellee.

143 So.3d 359

Darious WILCOX, Appellant,
v.
STATE of Florida, Appellee.

No. SC11–1017.

Supreme Court of Florida.

May 8, 2014.
Rehearing Denied July 10, 2014.

[143 So.3d 365]

Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Lisa–Marie Krause Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

Darious Wilcox appeals the judgment of his convictions of one count of first-degree murder, four counts of armed kidnapping, and one count of armed robbery, as well as a sentence of death. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the convictions and the death sentence.

[143 So.3d 366]

FACTS AND BACKGROUND

Approximately one week before the murder, which is the subject of the case, occurred, Wilcox called his cousin Richaunda Curry and asked if he could stay at her townhome. Richaunda reluctantly agreed, but told her brother, Terrell Collier, that she had a bad feeling about Wilcox. She also told Collier not to answer the phone if Wilcox called or provide Wilcox with their address. At the time, Richaunda, Collier, their sister Shaquira Curry, and Richaunda's ex-boyfriend, Willie Ward, were living together in a townhome next door to the victim, Nimoy Johnson, in a Lauderhill housing complex located in Broward County, Florida. As neighbors, Richaunda and Johnson had an amicable relationship. Johnson had previously provided Shaquira with money to pay for diapers and food for her child, and had given or sold marijuana to Richaunda and Collier.

On Sunday, January 27, 2008, Wilcox arrived at the townhome complex to stay with Richaunda and Collier. When Richaunda exited her home to leave for work the next day, she witnessed Johnson angrily approach Ward and Ward's friend and shout, “You broke into my fucking house. You drinking champagne. I'm gonna kill all you....” When Richaunda returned home from work later that day, she walked next door to Johnson's townhome to speak with him about his earlier behavior. Johnson told Richaunda that someone had burglarized his townhome on Sunday, January 27. He explained that someone had consumed his champagne and ransacked his house. Marijuana, cash, and a PSP ¹ were also stolen. Johnson suspected that someone from Richaunda's townhome had burglarized his house because he discovered a footprint near a wall that separates the two townhome doors. Richaunda told Johnson that she did not know who committed the crime, but no one living in her house had burglarized his home. She assured Johnson they were friends and that he was a good neighbor. Johnson agreed, apologized, and told Richaunda that he no longer suspected her family members of the crime.

On the evening of Saturday, February 2, 2008, Wilcox, Richaunda, Collier, Shaquira, Ward, and Ward's sister, Jaquinda Wright, were at Richaunda's townhome. Wilcox informed Wright he was considering committing a robbery in Franklin, an area known for drugs and crime. Three or four times during this conversation, Wilcox walked to the back door and looked out onto the balcony. Later in the evening, Collier saw Wilcox leave the townhome around 10 p.m.

The same evening, at approximately 8:30 p.m., Stephanie Hankerson received a phone call from Johnson requesting that she come to his house. Hankerson, who was busy at the time, declined the invitation but agreed to speak with Johnson later in the evening. At 2 a.m. on the morning of February 3, Hankerson received a second call from Johnson, again requesting that she come to his house. Hankerson agreed to visit Johnson and told him she would bring her friends Veronica McMorris and Taneshia Arnold.

At approximately 4 a.m., Hankerson, McMorris, and Arnold arrived at Johnson's townhome in Hankerson's white Chevrolet Tahoe. Hankerson called Johnson from the parking lot and he told her to come inside. The three women, led by McMorris, exited the car and walked toward the townhome. The door to the

[143 So.3d 367]

townhome opened, but the townhome was dark and the women could not see inside. As McMorris crossed the threshold, she was surprised and frightened by the presence of a dark shadowy figure inside the front door. McMorris screamed and ran back to the car, yelling at Hankerson and Arnold to follow her. All three women rushed back to the Tahoe and drove away. However, before they left the housing complex, Hankerson received another phone call from Johnson. He told her that the dark figure was a friend of his and that they should return to his townhome. Hankerson turned the car around, drove back to Johnson's townhome, and called Johnson to tell him that the group was outside. The front door again opened; however, this time only Hankerson exited the car and walked inside. Once Hankerson entered the townhome, she saw a man holding a gun wearing a baseball cap, a black leather jacket, a black shirt, black pants, and a bandana covering his face.

From the car, McMorris observed that Hankerson's facial expression changed as she entered the townhome. Worried and afraid for Hankerson's safety, McMorris picked up Hankerson's cell phone, which had been left in the car, and called the last number dialed. Hankerson answered and told her that the man in the house was Johnson's friend and that she and Arnold should return to Johnson's townhome. After several minutes, the two women exited the Tahoe and entered the townhome. Initially, when McMorris entered the townhome she could see only Johnson and Hankerson. Suddenly the door shut behind her, and the gunman, who was hiding behind the door, screamed and cursed at them for running away and demanded to know if they had any money. The gunman then ordered everyone upstairs to Johnson's bedroom.

Upstairs, the gunman smoked a marijuana cigarette, exited and entered the bedroom several times while he spoke on the phone, and then demanded the keys to the Tahoe because he needed the car to escape. Upon securing the keys, the gunman directed Johnson to bind the hands and feet of the women. The gunman then checked the strength and security of the ligatures, and told them not to attempt to escape. During this process, the gunman covered his hand with a shirt and wiped down places he had touched. He told the women that he knew not to leave fingerprints because he watched the television show “The First 48.” ² The gunman then ordered Johnson back downstairs. The television in Johnson's bedroom was turned on and the volume was elevated to the extent that the women upstairs could only hear faint sounds from downstairs.

Between the hours of 4:30 and 5 a.m., Richaunda, who was sleeping in her bedroom next door, was awakened by a phone call from Wilcox. Wilcox directed Richaunda to give the phone to Collier because he was not answering his cell phone. Richaunda woke Collier and told him that Wilcox wanted to speak with him. Collier looked at his cell phone and realized that he had missed several calls from Wilcox placed at around 4:45 a.m. Collier called Wilcox, who instructed him to bring Wilcox's belongings outside. Collier retrieved Wilcox's bag, walked outside, and called Wilcox to inform him that he was outside. Almost simultaneously, Collier heard the door of Johnson's townhome unlock and he

[143 So.3d 368]

saw Wilcox exit Johnson's townhome wearing all black clothing, including a black leather jacket and a garment covering his mouth. Collier was able to recognize Wilcox as Wilcox removed the material which had covered his mouth. Collier also saw that Wilcox was holding a gun. Wilcox took the bag and unlocked the doors to a white Chevrolet Tahoe with a keyless remote.³ Wilcox placed his bag in the Tahoe, started the ignition, walked back towards Johnson's house, and told Collier to return inside. As Collier walked upstairs to his room, he heard a single gunshot.

Minutes before the gunshot, Arnold, who was still bound and in the upstairs bedroom of Johnson's residence, heard the front door open and close twice. Immediately thereafter, all three women—Hankerson, McMorris, and Arnold—heard a single gunshot followed by the sound of the front door of the townhome opening and closing a third time, along with that which sounded like a car leaving the parking lot. Hankerson untied herself, called the police to notify them that she suspected a murder had occurred, untied McMorris and Arnold, and then exited the bedroom alone to see what had occurred downstairs. Halfway down the stairs Hankerson saw Johnson lying face down on the ground, bound at the wrists and ankles, with a gunshot wound to the back of his head.

Approximately three hours later, at 8 a.m. on Sunday morning, Wilcox called Collier. Wilcox advised Collier that everything would be fine because he had killed Johnson to protect Collier and the rest of his family. Wilcox explained that he killed Johnson because he did not know how Johnson would react “after the burglary” or to the fact that Wilcox was living in Collier and Richaunda's home.

The following Saturday, February 9, 2008, Cleveland Aguilar saw Wilcox at a night club and asked him for a ride home. The two men, along with Wilcox's cousin James Duran, left the club in a white Chevrolet Tahoe with temporary tags. Aguilar asked Wilcox why he was driving the Tahoe, and Wilcox responded that a girl had purchased the car for him. The three men left the club, drove to Aguilar's apartment, then to a second club, and finally to a gas station. While at the gas station, Aguilar noticed several police cars in the parking lot.⁴ Aguilar refused to return to the Tahoe because he knew that there were several handguns in the vehicle, including Wilcox's 9 millimeter, which Aguilar had seen Wilcox carrying earlier that morning. Aguilar advised Wilcox and Duran that they should leave on foot and not return to the Tahoe, but the two men ignored Aguilar's warning and instead ran to...