Bessman Okafor v. State of Florida , 225 So. 3d 768 ( 2017 )

Supreme Court of Florida
____________
No. SC15-2136
____________
BESSMAN OKAFOR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 8, 2017]
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
-2-
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
1. Sherria was seven months pregnant with Okafor’s child at the time and
had a six-year-old daughter with him and another daughter from a previous
relationship.
-3-
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.
2. Candace is Okafor’s sister. Emmanuel is Bernard’s cousin.
Additionally, Okafor had two children with Emmanuel’s sister, Pearl Wallace, a
son who died as an infant from SIDS and a daughter who died the week before trial
at the age of eleven. Donnell Godfrey has a child with Bernard’s sister.
-4-
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
-5-
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
-6-
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 Spencer3 hearing
occurred on October 13, 2015, where the State presented testimony from Kyoko,
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
-7-
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 (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
4. The trial court found the following aggravating circumstances: (1) Okafor
was previously convicted of another felony involving the use or threat of force or
violence to the person; (2) the capital felony was committed to disrupt or hinder
the lawful exercise of any governmental function or the enforcement of laws; (3)
the murder was especially heinous, atrocious, or cruel; (4) the murder was
committed in a cold, calculated, and premeditated manner without any pretense of
moral or legal justification.
5. The trial court found the following nonstatutory mitigating
circumstances: (1) codefendants received lower sentences (little weight); (2)
untreated learning disability (some weight); (3) being abandoned, neglected, and
separated from paternal family (some weight); (4) difficult childhood and
upbringing (some weight); (5) anxiety, aggression, and poor impulse control (some
weight); (6) suffered the loss of a son and daughter (some weight); (7) suffered the
loss of a parent (some weight); suffered physical, verbal, and emotional abuse
(moderate weight); (8) suffered sexual abuse and provided no counseling
(significant weight); (9) emotionally and physically neglected (some weight); (10)
suffered domestic violence (little weight); (11) suffered from household alcoholism
(little weight); (12) household member was incarcerated (little weight); and (13)
exhibited exemplary courtroom behavior (very little weight).
-8-
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 (2002). Where a
prospective juror is challenged for cause on the basis of his or her
views on capital punishment, the standard that a trial court must apply
in determining juror competency is whether those views would
prevent or substantially impair the performance of a juror’s duties in
accordance with the court’s instructions and the juror’s oath. Id.
(citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)). “In a death
penalty case, a juror is only unqualified based on his or her views on
capital punishment, if he or she expresses an unyielding conviction
and rigidity toward the death penalty.” Barnhill, 834 So. 2d at 844.
Conde v. State, 860 So. 2d 930, 939 (Fla. 2003); see Fernandez v. State, 730 So. 2d
277, 281 (Fla. 1999). We have previously held that a juror’s “[p]ersistent
equivocation or vacillation . . . on whether he or she can set aside biases or
misgivings concerning the death penalty in a capital penalty phase supplies the
reasonable doubt as to the juror’s impartiality which justifies dismissal.” Hurst v.
State, 202 So. 3d 40, 62 (Fla. 2016) (quoting Johnson v. State, 969 So. 2d 938,
947-48 (Fla. 2007)).
The record demonstrates that Juror 105 never clearly stated that he could
follow the law. Even when directed to assume that he had determined that the
death penalty was appropriate in this case, Juror 105 stated he was unsure that he
could vote to recommend it. Accordingly, the trial court did not err in dismissing
Juror 105 for cause.
Next, Okafor argues that the trial court erred in permitting the State to
introduce evidence of high capacity .22 and .223 caliber magazines recovered from
-9-
Emmanuel Wallace’s residence. The State argues that the magazines were relevant
to establish that it was Wallace who carried the AK-47 described in Remington
Campos’ testimony. We conclude that the trial court erred in admitting the
evidence, but that the error was harmless.
In order to be admissible, evidence must be relevant. That is, the
evidence must “tend [ ] to prove or disprove a material fact.”
§ 90.401, Fla. Stat. (2012). While relevant evidence is generally
admissible, such evidence “is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of issues, misleading the jury, or needless presentation of cumulative
evidence.” §§ 90.402-403, Fla. Stat. (2012). “A trial court has broad
discretion in determining the relevance of evidence and such a
determination will not be disturbed absent an abuse of discretion.”
Jorgenson v. State, 714 So. 2d 423, 427 (Fla. 1998) (citing Heath v.
State, 648 So. 2d 660, 664 (Fla. 1994)).
Davis v. State, 207 So. 3d 177 (Fla. 2016), petition for cert. filed, No. 16-8570
(U.S. Mar. 31, 2017).
The evidence here was not relevant. Despite the State’s argument, the
magazines did not tend to establish the identity of the assailant carrying the AK-47
because an AK-47 does not fire .22 caliber or .223 caliber rounds. Accordingly,
the discovery of high capacity magazines of those calibers did not corroborate
Remington’s testimony that one of the assailants carried an AK-47, nor did it
establish that Wallace was that assailant. See Huhn v. State, 511 So. 2d 583, 589
(Fla. 4th DCA 1987) (finding a gun not relevant when there was nothing unlawful
about owning the gun itself and nothing connecting that particular gun to the
- 10 -
crime). However, such error was harmless because Wallace’s ownership of .22
and .223 caliber high-capacity magazines was not prejudicial to Okafor. See
Herman v. State, 396 So. 2d 222, 229 (Fla. 4th DCA 1981) (“There being no
reasonable basis upon which a different verdict could have been reached, if
admission of the shotgun[, where the State’s expert testified it was not likely the
gun used in the crime,] was error, it was harmless.”).
Next, even though not challenged by Okafor, we have an independent duty
to review the evidence to determine whether there is competent, substantial
evidence to sustain the conviction in this case. We conclude that the record
contains competent, substantial evidence to support this conviction. The evidence
presented at trial demonstrated that on May 9, 2012, Bessman Okafor and Bernard
entered the Camposes’ home while armed and took money and electronics. After
their arrest, trial was scheduled to begin on September 11, 2012.
The day before trial, Brienna, Remington, and Alex were asleep in their
home. Brienna awoke to the sound of her dog barking and was pulled out of bed
by a tall, lanky man carrying a pistol. Remington awoke to the sound of both his
siblings’ dogs barking and was pulled out of bed by a short, heavy-set man with
short dreads carrying a Glock. Remington also saw a tall, lanky man with long
dreads carrying an AK-47.
- 11 -
Brienna, Remington, and Alex were placed face down next to each other, so
close that their heads were touching. Brienna testified that she heard the first shot
fire, thought it was an accident, and then felt herself be shot. Remington testified
that he heard Brienna and Alex being shot before he felt himself shot. The State
presented testimony from a firearms expert who testified that the projectiles
recovered were from a .38 caliber handgun that could not have been a Glock. She
further testified that because no shell casings were recovered, the handgun was
likely a revolver and not a semi-automatic.
Testimony demonstrated that Okafor arranged for Sherria and Nesly to serve
as lookouts. Okafor, Wallace, and Godfrey were filmed by the neighbor’s
surveillance camera arriving at the crime scene. Text messages, cellular data, and
Okafor’s ankle monitor all demonstrate that he coordinated the crime and was at
the crime scene during the time the murder took place.
While neither Brienna nor Remington testified that they saw a man who fit
Okafor’s description, and were only able to describe Wallace and Godfrey, they
both testified that one of the assailants asked questions that would only make sense
if he had been present at the May 9 incident. Specifically, they testified that the
unidentified assailant asked “where are the other two” presumably referring to
Brandon and William who were present at the May 9 incident but not at the
September 10 incident. He also asked “who is the naked guy?” presumably
- 12 -
referring to Remington, who was present at the September 10 incident, but not the
May 9 incident. The unidentified assailant would likely have only been able to
identify the victims this way if he had been physically present at both incidents and
the only other person other than Okafor who was at the May 9 incident, Nolan
Bernard, was in jail awaiting trial.
The jury could reasonably conclude that Okafor planned, coordinated, and
executed the murder and attempted murders in this case. Accordingly, we find
competent, substantial evidence in the record to affirm Okafor’s conviction for the
first-degree murder of Alex Zaldivar.
Lastly, Okafor argues that because the jury did not unanimously find the
facts necessary to sentence him to death and did not unanimously recommend the
death sentence, Florida’s capital sentencing scheme and his death sentence are
unconstitutional in light of the United States Supreme Court’s decision in Hurst v.
Florida, 136 S. Ct. 616 (2016), and this Court’s decision in Hurst v. State, 202 So.
3d 40 (Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017). We agree. See
Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (citing Hurst, 202 So. 3d at
41). We explained in Hurst “that the Supreme Court’s decision in Hurst v. Florida
requires that all the critical findings necessary before the trial court may consider
imposing a sentence of death must be found unanimously by the jury.” Hurst, 202
So. 3d at 44. We also held, “based on Florida’s requirement for unanimity in jury
- 13 -
verdicts, and under the Eighth Amendment to the United States Constitution, that
in order for the trial court to impose a sentence of death, the jury’s recommended
sentence of death must be unanimous.” Id. Because the jury vote in this case was
eleven to one, and the aggravating factors required factual determinations by the
jury, the Hurst error in this case was not harmless beyond a reasonable doubt. See,
e.g., Franklin, 209 So. 3d at 1248.
In Hurst, this Court determined that Hurst v. Florida error is capable of
harmless error review and set forth the following test:
The harmless error test, as set forth in Chapman[v. California,
386 U.S. 18 (1967),] and progeny, places the burden on the state, as
the beneficiary of the error, to prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the
error contributed to the conviction.
Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.
1986)). We stated that a sentencing error is only harmless “if there is no
reasonable probability that the error contributed to the sentence.” Id. (citing Zack
v. State, 753 So. 2d 9, 20 (Fla. 2000)). To find the error harmless in this case, we
would be required to speculate why one juror was “persuaded that death was not
the appropriate penalty.” Id. at 69. We therefore find that the Hurst error in this
case is not harmless beyond a reasonable doubt and Okafor is entitled to a new
penalty phase. See id.
- 14 -
Because we find that Hurst requires that Okafor receive a new penalty phase,
we decline to address the remaining issues on appeal. We affirm Okafor’s
conviction and remand for a new penalty phase proceeding.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
LAWSON, J., concurs specially with an opinion.
CANADY and POLSTON, JJ., concur as to the conviction and dissent as to the
sentence.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LAWSON, J., concurring specially.
I fully concur in the majority’s decision to affirm Okafor’s conviction. I
have also elected to concur in the majority’s decision to vacate Okafor’s death
sentence now that the United States Supreme Court has denied certiorari in Hurst
v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-998, 2017 WL
635999 (U.S. May 22, 2017). Although I continue to view this Court’s decision in
Hurst as misguided for the reasons expressed in Justice Canady’s Hurst dissent, see
Hurst, 202 So. 3d at 77-83 (Canady, J., dissenting), the Supreme Court’s denial of
certiorari renders Hurst final, solidifying it as this Court’s precedent.
While I recognize that I am not necessarily bound by our precedent and
could continue to dissent and express my disagreement, my duty is to faithfully
apply Florida law to the issues raised by those litigants whose sole state court
- 15 -
appeal right is in our Court. At this point, Hurst is the law in Florida—whether I
agree with it or not—and issues governed by our Hurst precedent will continue to
be decided by our Court in pending death penalty proceedings for at least several
more months. Accordingly, I concur in the decision to grant Hurst relief because
that is what a faithful application of now-settled Florida law requires in this case.
An Appeal from the Circuit Court in and for Orange County,
John Marshall Kest, Judge - Case No. 482012CF014950000AO
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
- 16 -