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Okafor v. State

Supreme Court of Florida

June 8, 2017

BESSMAN OKAFOR, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         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

          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 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 children[1] 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 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.

         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 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 ...


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