Xbox mass murder resentencing to proceed under new non-unanimous death penalty law
In a 2-1 decision Thursday, the 5th District Court of Appeal in Daytona Beach ordered a judge to apply Florida's new non-unanimous death penalty recommendation law to the Xbox mass murder resentencing. That means prosecutors need only convince eight jurors to recommend death as opposed to all 12.
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 5th District Court of Appeal granted a prosecution request to stop the proceedings. Jurors were sent home and told to await word from the court on when to return.
Brian D. Lambert, the chief judge of the 5th DCA, and Judge Harvey L. Jay granted the petition from the state and prosecutors while Judge John M. Harris denied the petition, according to the order. The appeals court stated an opinion would follow from the three-judge panel.
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Prosecutors were 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 on the same day that a 15-member jury was sworn in for the resentencing trial at the Volusia County Courthouse in DeLand.
Court Administrator Mark Weinberg wrote in an email that a date to restart the sentencing had not yet been determined.
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.
The four men used metal baseball bats to beat to death six people: 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.
Ruling makes Xbox death recommendation likelier
The ruling means that prosecutors will be much more likely to succeed in getting death recommendations for both men.
When a jury in 2006 made its death recommendations, an 8 to 4 requirement was enough for nearly all the votes by the jury to recommend death for Victorino and Hunter.
In 2006, jurors recommended death for Victorino by a vote of 10-2 for Belanger's murder; 10-2 for Ayo-Roman's; 9-3 for Gonzalez's; and 7-5 for Gleason's. They recommended life for the murders of Nathan and Vega.
Jurors recommended Hunter get a death sentence for Gleason's murder by a vote of 10-2; for Gonzalez's murder by a vote of 9-3; for Nathan's murder by a vote of 10-2; and for Vega's murder by 9-3. Jurors recommended life sentences for Belanger's and Ayo-Roman's murders.
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.
Defense: Changing laws after jury selection would violate rights
Hunter’s defense attorneys, Allison Miller and Garry Wood, and Victorino’s attorneys, Ann Finnell and Gonzalo Andux, filed a response 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.
Attorney general: New death penalty statute should apply
The 5th District Court Appeal should order Rowe to use Florida’s new non-unanimous death penalty sentencing law rather than the previous stricter law, according to a response filed by the Attorney General’s Office. The response argues that using the old law may leave the state no resource if the two men are sentenced to life.
Rowe is proceeding under the previous statute, which is a stricter standard that is no longer the law, according the response filed May 2 by Doris Meacham, an assistant attorney general. The office of Attorney General Ashley Moody handles appeals for state attorneys.
“Because the court is applying an outdated law and stricter standard that requires a unanimous jury recommendation for a sentence of death, the State may have no recourse if a life sentence is imposed,” the state’s response argues.
The state asked the 5th District Court of Appeal to quash the judge's order denying the state's motion to use the new death penalty law or order the judge to use the new law, according to the response.
This article originally appeared on The Daytona Beach News-Journal: Deltona mass murder resentencing to proceed under new death penalty law
