FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Duval County,
Lawrence Page Haddock, Jr., Judge - Case No.
Richard Randall Kuritz, Jacksonville, Florida, for Appellant.
Jo Bondi, Attorney General, Carolyn Marie Snurkowski,
Associate Deputy Attorney General, and Berdene Bevione
Beckles, Assistant Attorney General, Tallahassee, Florida;
and Lisa-Marie Krause Lerner, Assistant Attorney General,
West Palm Beach, Florida, for Appellee.
January 3, 2007, Rasheem Dubose was charged by indictment in
Duval County with first-degree murder for the killing of
Drewshawna Washington-Davis and with shooting into a
building. The charge of one count of possession of a firearm
by a convicted felon was later added. The State sought the
death penalty. The State originally tried Dubose along with
his two brothers, who were charged with the same crimes
stemming from the same incident. Though the three brothers
were tried together, Dubose had a separate jury. Dubose's
first trial resulted in a hung jury and a mistrial was
declared. His brothers were convicted on all counts and
sentenced to life in prison.
second trial began in February 2010. The jury found Dubose
guilty of both first-degree premeditated murder and felony
murder, with burglary as the underlying felony. He was also
found guilty of shooting into a building. The jury voted for
imposition of the death penalty by a vote of eight to four.
On December 9, 2010, the trial court followed the jury's
recommendation and sentenced Dubose to death.
now appeals his convictions and sentences. We have
jurisdiction. See art. V § 3(b)(1), Fla. Const.
For the reasons set forth in this opinion, we affirm
Dubose's convictions and vacate his sentence of death.
STATEMENT OF THE CASE & FACTS
26, 2006, at approximately 4:00 p.m., Willie Davis, Jr.,
drove his girlfriend, Cinee Tinsley, to the home where she
lived with her mother and siblings. As Davis turned onto
Tinsley's street, he noticed Dubose's younger brother
walking in the street. Davis swerved in an attempt to hit
Dubose's younger brother with the car, but was
unsuccessful. Dubose's younger brother continued down the
street, away from Tinsley's home. Dubose had been on
Tinsley's porch with Tinsley's brother and had
witnessed the incident. When Davis pulled into Tinsley's
yard, Dubose walked toward the car, speaking
to Davis through the car window. Davis got out of the car and
argued with Dubose for approximately one minute and then
returned to the car. Davis quickly drove away from
Tinsley's home with Tinsley still inside the car. Davis
drove to his father's house, retrieved a gun, and drove
back toward Tinsley's home. On the way back to
Tinsley's home, Davis told Tinsley "I'm going to
make him get naked in the street."
returned to Tinsley's home and saw Dubose still in the
front yard with Tinsley's older brother. Davis got out of
the car, grabbed Dubose by his shirt, pushed him against a
wall, put the gun to the back of his head, and screamed at
him to empty his pockets. Dubose complied and emptied his
pockets as commanded, after which Davis ridiculed him for not
having any money in his pockets. Davis then ordered Dubose to
pull his pants down; again, Dubose complied. Tinsley's
mother came out of the house and asked Davis to stop what he
was doing. He stopped, but Dubose said something that caused
Davis to re-engage with him. Tinsley's mother grabbed
Dubose and pulled him into her home. Davis and Tinsley left
the scene in Davis's car. Dubose left the Tinsley home a
short time later on foot.
went home and told his two younger brothers that Davis had
attempted to rob him. After Dubose made a phone call, he
threw and shattered his brother's phone and said,
"I'm going to kill this nigger." Dubose left
his home shortly thereafter. Dubose's younger brother
continuously made phone calls to Maxie Wilson, the
brothers' cousin, who is a known drug dealer. That day,
Maxie Wilson was driving a white Impala rental car, with his
friend Sherman Eley in the passenger seat. After finally
answering the phone and speaking with Dubose's younger
brother, Maxie Wilson drove to the home of the Dubose
brothers. Upon arrival, Dubose's brothers got into the
back seat of Wilson's car. One of them was armed with a
nine-millimeter firearm. Maxie Wilson drove around the corner
where Dubose was standing in front of a house. Dubose got
into the back seat of the car.
Dubose instructed Maxie Wilson to drive around the corner to
where Davis's mother lived. Once they arrived at the
house, they saw Davis's car parked in the front yard. One
of the brothers initially prepared to shoot at Davis's
car, but was instructed not to by Sherman Eley. The brothers
circled the house again and pulled onto a dirt road behind
the house. Maxie Wilson parked the car near the backyard
fence line of the victim's house and provided the
brothers with two more guns, a .45 caliber pistol and a
Glock-nine with an extended magazine, which were both in the
car with him prior to the incident. Dubose's brothers
armed themselves with the nine-millimeter gun and the .45
caliber gun. Dubose armed himself with the Glock-nine. The
Dubose brothers exited the vehicle then jumped a fence to
enter Davis's mother's backyard.
and Tinsley had gone to his mother's house after the
incident. When they arrived, Davis's mother and
stepfather were in the dining area of the residence. Davis
was seated on a couch by the window on the side of the house.
Three children, including Davis's eight-year-old niece,
Drewshawna, were in the bedroom. When the gunfire began, the
initial shots were sporadic and then became more continuous.
Immediately after the shooting stopped, Tinsley ran to the
bedroom to check on the welfare of the children. Drewshawna,
who had been shot in the back, lay on top of her younger
cousins in a protective position.
the shooting, the Dubose brothers returned to Maxie
Wilson's white Impala. During the car ride, one of the
brothers received a phone call that a child had been killed
in the shooting. With Sherman Eley still in the passenger
seat, Maxie Wilson drove the brothers to a house owned by
David Craighton in a secluded, wooded area. Maxie Wilson had
previously requested permission to reside at Craighton's
home, under the auspices that he needed a place to live with
his girlfriend and young child. While at the house, the
brothers gave their clothing and weapons to Maxie Williams.
Maxie Williams left the brothers at the house, drove Sherman
Eley back to his car, which had been parked at an apartment
complex in a different neighborhood, and disposed of the
clothes and weapons in a dumpster at that apartment complex.
The firearms were never recovered. On the evening of July 30,
2006, Craighton came to his house to find the Dubose brothers
occupying it. Craighton used a large stick to hold the
brothers in the house until the police arrived and arrested
of the bullet trajectories revealed that twenty-nine bullets
struck the residence, some from the side and some from the
rear. Twenty-three of these shots were fired from
Dubose's Glock-nine, including the gunshot that killed
Drewshawna. The fatal bullet entered the residence through
the window on the side of the house, traveled through at
least two walls, and entered the bedroom. Someone looking
through this window would not have seen the victim in the
bedroom, but possibly would have seen someone sitting on the
couch near the dining area.
Phase: State's Witnesses
penalty phase began on March 9, 2010. The State offered
victim impact statements from the victim's grandmothers,
the victim's aunt, and the victim's third-grade
teacher. The State also offered testimony from Officer Scott
Medlock, the officer involved in Dubose's conviction for
resisting arrest with violence. Officer Medlock explained his
pursuit and subsequent physical altercation with Dubose after
he fled following a suspicious person stop. The officer also
explained that Dubose apologized and stated that he was not
attempting to harm the officer, he just wanted to be free.
The officer testified that in hindsight he believed that the
defendant was not attempting to harm him, but that belief
does not, however, lessen the seriousness of Dubose's
Phase: Defense Witnesses
addition to Dubose's family members, who testified on his
behalf, Clinical Psychologist and Neurologist, Dr. Hyman
Eisenstein, testified as an expert. Dr. Eisenstein testified
that Dubose's results on the Comprehensive Test of Basic
Skills (CTBS) from first through eighth grade indicate that
he scored between the 2nd and 18th percentile (on the low
end, 98 percent of the population scored better than him, and
on the high end, 82 percent of the population scored better
than him). He testified Dubose had academic impairment
disability from the first grade through the ninth grade. The
doctor also testified that Dubose quit school in the ninth
grade but prior to that may have been promoted through
special programs or simply promoted despite the fact that he
had been failing. Dr. Eisenstein stated there was no
indication at all that Dubose was malingering.
Eisenstein indicated that at the age of 25 years and 11
months, Dubose received an IQ Score of 73 on the Peabody
Picture Vocabulary, which is equivalent to a ten year old
child. He also testified that Dubose received a grade
equivalent to a four year old on the WRAT4 (Wide Range
Achievement Test, Fourth Edition); he scored in the
sixty-ninth percentile on the reading comprehension portion,
with anything below the seventieth percentile being
considered mild mental retardation. Dubose's verbal
comprehension scores on the WAIS-IV (Wechsler Adult
Intelligence Scale, Fourth Edition) equaled 70. A new feature
of the WAIS-IV is the GAI (general ability index), upon which
the defendant scored a 75, in the borderline range. Dr.
Eisenstein concluded that Dubose's full scale IQ score
was 82, which placed him in the low average range. A PET scan
was not conducted, but Dr. Eisenstein stated that other
factors present in Dubose's life indicated the
possibility that he has sustained some brain damage. Dr.
Eisenstein assumed that Dubose has frontal lobe damage, which
may have made it difficult for him to get over being
humiliated by Davis. On cross-examination, Dr. Eisenstein
acknowledged that Dubose actually began the tenth grade
before he dropped out, and that there were various behavior
problem reports in elementary school. On redirect, Dr.
Eisenstein opined that Dubose's three-year participation
in football and his participation in boxing could have caused
Alan Fox, professor at Northeastern University, also
testified as an expert for the defense. Dr. Fox explained
that poor neighborhoods such as the one where Dubose was
raised sometimes have a "code, " which is the idea
of being respected and important, despite the lack of
education or employment. He further explained that in this
type of environment, "violence is seen as an
appropriate, virtually a required response to being
disrespected, being humiliated." Dr. Fox reviewed the
thirteen DCF reports which contained information that
Dubose's father was arrested for abuse; he determined
that Dubose always tried to protect the rest of the family
from their father. Dr. Fox testified that because Dubose had
no positive role models in his life and because his
grandmother worked so much, he modeled himself after other
young men in the neighborhood. Associating himself with the
people in his neighborhood, opined Dr. Fox, is what taught
Dubose the necessity of fighting.
cross-examination, Dr. Fox acknowledged that on the date of
the shooting, Dubose knew right from wrong, he knew that
killing was wrong, and that at every step in the events of
the day, he could have made different decisions. He also
explained that the code of the street may have a different
definition of right from wrong than the conventional meaning.
Dr. Fox further acknowledged that persons who grow up in
rough neighborhoods, may have a better appreciation for the
consequences of violence. Dr. Fox stated that the combination
of the risk factors in Dubose's life were
"tremendous." Dr. Fox opined that the message
Dubose may have intended to send was one of deterrence,
"Don't mess with us. We're not weak. We
won't take it lying down[, ]" as opposed to
retribution which could have been accomplished by finding
Davis and doing something to him personally, one-on-one. Dr.
Fox acknowledged that he met with Dubose for a total of
forty-five minutes to an hour.
conclusion of the penalty phase, the jury recommended by a
vote of eight to four that Dubose be sentenced to death for
the murder of Drewshawna. Prior to sentencing, the court held
a Spencer hearing on November 10, 2010. In
consideration of the time between the penalty phase and the
Spencer hearing, some of the witnesses repeated
their testimony from the penalty phase. Multiple family
members and mental health experts testified at the
Spencer hearing, including Dr. Eisenstein and Dr.
Eisenstein and Dr. Waldman restated their conclusions that
Dubose suffered from frontal lobe damage that significantly
impaired his ability to control his impulses. As further
mitigation, the defense offered a report that evaluated the
results of Dubose's PET scan. Dubose was administered the
PET scan in anticipation of the Spencer hearing. Dr.
Ruben C. Gur, who evaluated the results and wrote the report
that was admitted into evidence, concluded that Dubose
suffered abnormalities in regions of the brain that play a
significant role in regulating behavior.