Defense in Xbox trial says new death penalty law would violate accused killers' rights
Attorneys in the Xbox mass murder case continue their battle over Florida's new death penalty law with the defense arguing that applying the non-unanimous jury death recommendation would violate the killers' due process rights.
The 5th District Court has set a deadline of 5 p.m. Tuesday for a reply to the latest filing.
The resentencing of Troy Victorino, 46, and Jerone Hunter, 35, for the 2004 murders in which six people were killed was about to enter its third day on April 27 when the appeals court granted a prosecution request to stop the proceedings. Jurors were sent home and told to await word from the court on when to return.
Prosecutors are fighting to apply the new state law, which requires eight jurors to recommend death for a judge to be able to sentence someone to death. The new statute was signed into law on April 20, shortly after the 15-member jury was sworn in for the resentencing trial at the Volusia County Courthouse in DeLand.
Victorino and Hunter were sentenced to death in 2006, but those sentences were overturned because the state Supreme Court later ruled that death recommendations must be unanimous. The state Supreme Court subsequently reversed itself and ruled that unanimity was not required.
Two other men convicted in the killings, Michael Salas and Robert Cannon, were sentenced to mandatory life in prison.
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.
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Assistant State Attorneys Heatha Trigones and Andrew Urbanak asked Circuit Judge Randell Rowe III to apply the new law to the court case. But Rowe declined, saying the trial had already begun and jurors were sworn in. Prosecutors asked the 5th DCA to intervene.
Deltona mass murder legal fight
Hunter’s defense attorneys, Allison Miller and Garry Wood, and Victorino’s attorneys, Ann Finnell and Gonzalo Andux, filed a response Monday stating that "the circuit court found that, to suddenly apply the non-unanimity statute when no one was expecting it, would violate the due process rights of Mr. Hunter and Mr. Victorino."
Their response also stated that prosecutors filed their legal argument in the wrong court because the 5th DCA would not have jurisdiction over any death sentence imposed on Hunter and Victorino.
The defense response accused prosecutors of having “slow-walked” jury selection so they could use the new law.
Despite the legislature’s progress toward approving the new law and Gov. Ron DeSantis saying he supported it, prosecutors “sat silent about the likely change in the law or their desire to have it applied if the statute changed mid-trial,” according to the response.
The judge instructed all three panels of approximately 288 potential jurors that unanimity was required, the defense response stated.
Prosecutors did not weigh in when a potential juror brought up the new law, the defense stated.
Prosecutors in an earlier motion have argued 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.
Prosecutors in an earlier motion argued that the defense had the chance to question potential jurors about the new law and both declined.
Prosecutors also argued that the jury was not sworn in until April 20 when the final panel was selected, as opposed to April 10 when jury selection began.
This article originally appeared on The Daytona Beach News-Journal: Deltona mass murder defense argues death penalty law would violate rights
