Appeals court orders halt to Xbox mass murder trial while it considers death penalty dispute

The 5th District Court of Appeal has ordered a halt to the Xbox mass murder trial as it considers the prosecution's request to overturn the judge's decision barring the use of the new death penalty statute which makes it easier to get a death sentence.

Troy Victorino, 46, and Jerone Hunter, 35, were already convicted and sentenced to death for the 2004 murders. Two other men, Michael Salas and Robert Cannon, were sentenced to mandatory life in prison.

But the death sentences for Victorino and Hunter were subsequently struck down. The State Attorney’s Office is now hoping to again convince a jury to recommend the two men be sentenced to death.

The Deltona mass murder: Here's what you need to know

Xbox murders: Troy Victorino, Jerone Hunter begin penalty phase retrial in Deltona murders

Killed in the massacre were Erin Belanger, 22; Michelle Nathan, 19; Roberto "Tito" Gonzalez, 28; Jonathan Gleason, 17; Francisco "Flaco" Ayo-Roman, 30; and Anthony Vega, 34. A dog was also killed.

There is no timetable for when the District Court of Appeal in Daytona Beach will rule on the issue. It's likely more legal documents must now be filed and the appeals court could schedule arguments.

Circuit Judge Randell Rowe III sent the panel of 15 jurors home Thursday morning.

"Good morning ladies and gentlemen," Rowe said after the jurors had taken their seats in the jury box.

"Would you like to go home?" the judge asked.

"Yep," said one of the jurors.

"Ok, I got a stay to read to you," Rowe said.

Rowe told jurors that the attorneys had agreed on a statement for him to read and that the attorneys did not want him to say anything else beyond that.

"Good morning. An emergency beyond the control of the parties and the court requires us to take a pause in this trial," Rowe read. "You are instructed to continue to follow my order to not research anything about the case or discuss the case or your jury service with anyone. We will contact you to let you know when you need to return as soon as we know. I cannot tell you when that may be but everyone is working hard to resume trial as quickly as possible."

One juror, a woman, seemed to smile to herself as she stood up and prepared to leave. A male juror shook his head. But most showed no reaction as they filed out of the courtroom through a backdoor.

A man and a woman, who were sitting in an area designated for the victims' families, declined to comment as they left the courtroom.

Xbox mass murder: What to tell jurors?

Before reading the statement Rowe said he was concerned that bringing the jury into the courtroom could be construed as a violation of the appellate order to stay the proceedings. He suggested simply going to the jury waiting area and telling them the proceedings had been stayed because the appellate court was considering an order. But lawyers disagreed.

Defense attorney Allison Miller, who represents Hunter, said it would be considered a ministerial matter so it would not be a violation of the order. She said she preferred what the judge tells the jury to be in the presence of the attorneys and on the record.

Defense attorney Ann Finnell, who represents Victorino, said that she agreed it should be on the record.

Assistant State Attorney Heatha Trigones also agreed it should be on the record and that the trial was "paused."

Rowe then read the statement which was prepared by Craig Whisenhunt, an attorney representing Hunter.

Xbox killers: Old death penalty law versus new law.

Rowe had ordered that prosecutors must use the previous law which requires a unanimous jury recommendation.

Prosecutors and the Attorney General’s Office asked the the 5th District Court of Appeal to stop the trial so they can challenge the judge’s denial of their motion to use the new death penalty statute.

Gov. Ron DeSantis signed Senate Bill 450 on Thursday, the same day attorneys finished picking a jury to hear Victorino's and Hunter's penalty phase retrial.

The new law did away with the requirement for the unanimous jury recommendation for death. Instead, the law requires at least eight jurors recommend death for the judge to have the option of sentencing someone to death.

The new death penalty law took effect when DeSantis signed it; the jury in this case had not been sworn in yet, so the trial should proceed under the new law, according to the motion by the Attorney General's Office.

Rowe, in his earlier order denying the prosecutor’s request to use the new law, wrote that according to the law, a trial begins with jury selection. He wrote that jury selection had started 10 days before the new death penalty statute was signed into law.

Rowe also wrote that the jury was selected and questioned based on the existing law at the time which would require unanimity. He wrote it would be unfair to change the rules now. Rowe also wrote it could lead to juror confusion.

Prosecutors argued that the 15-member panel was not sworn in until after DeSantis signed the new death penalty statute into law, according to a motion filed by Assistant State Attorney Andrew Urbanak.

Potential jurors also are sworn to follow the law as instructed by the judge, the motion states.

And Urbanak argued that a panel is not sworn in for the trial until the final jury is selected.

The defense had the chance to question potential jurors about the new law and both defendants declined, the motion states.

The motion also states that Rowe declined the state’s request to question the jurors about the new law and also declined the state’s request not to swear in the jury until he ruled on whether prosecutors could use the new law.

After the jurors were dismissed, the proceedings ended and the judge left. Defense attorneys briefly talked to Victorino and Hunter before they were led out of the courtroom.

This article originally appeared on The Daytona Beach News-Journal: Appeals court orders halt to Delton Xbox murder trial