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Kirkman v. State

Supreme Court of Florida

January 11, 2018

VAHTIECE ALFONZO KIRKMAN, 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 Brevard County, Jeffrey Francis Mahl, Judge - Case No. 052012CF032155AXXXXX

          James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee

          PER CURIAM.

         Vahtiece Alfonzo Kirkman appeals his conviction and sentence of death for the first-degree murder of Darice Knowles. The trial judge sentenced Kirkman to death for the first-degree murder conviction after a jury recommended the death penalty by a vote of ten to two. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm Kirkman's conviction, but we vacate the death sentence and remand for a new penalty phase based on the United States Supreme Court's opinion in Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616 (2016), and this Court's opinion on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017).

         FACTS AND PROCEDURAL HISTORY

         On July 30, 2010, approximately four years after first being made aware of her murder, the Cocoa Police Department found the skeletonized remains of Darice Knowles, a Bahamian citizen, in a heavily wooded and swampy area in Cocoa, Florida. The examination of Darice's remains revealed that her hands and feet had been bound with duct tape, her mouth had been covered with duct tape, and she had been buried alive by being covered with concrete and dirt.

         Cocoa police were led to the burial site a few days earlier by Christopher "Dread" Pratt, who had been Darice's on-again, off-again boyfriend. Pratt, also a Bahamian citizen, led police to the burial site as part of a plea agreement he entered into while awaiting trial for his involvement in the separate murder of Willie Parker. For the Parker murder, Pratt had been indicted years before-in October 2006-along with Kirkman and a third individual, Jonathan Page.

         Under the plea agreement, Pratt would receive a ten-year sentence for the second-degree murder of Parker, as well as a ten-year sentence for the second-degree murder of Darice, followed by ten years of probation. The plea agreement was conditioned on Pratt showing the police where Darice's body could be located and on Pratt testifying truthfully against Kirkman in both murder cases. Pratt led the investigators to the burial area, and on the fifth day of searching, Darice's remains were found.

          On January 23, 2012, Kirkman was indicted for the first-degree premeditated murder of Darice Knowles. At trial, Pratt testified that on March 17, 2006, he (Pratt) bound Darice's hands and feet, taped her mouth, dug a hole, and buried her alive in a shallow grave in a swampy area off of a dirt road in Cocoa by covering her with cement[1] and dirt. Pratt explained that he did so all at the direction of, and while in the presence of, Kirkman. Pratt also explained that Kirkman wanted Darice dead because she had spent the previous night with a police officer, and Kirkman was concerned she was talking to the police about his criminal conduct. Pratt further explained that the shovel, cement, and duct tape used in the murder were all supplied by Kirkman and that Kirkman drove Pratt and Darice around in Pratt's rented minivan for approximately thirty to forty minutes until Kirkman selected the burial location.

         On April 8, 2016, the jury convicted Kirkman of first-degree murder. On April 12, 2016, the jury, by a vote of ten to two, recommended a death sentence. On April 29, 2016, the trial court sentenced Kirkman to death.

         Guilt Phase

         The evidence presented at the guilt phase primarily consisted of the following: codefendant Pratt's testimony; the testimony of Jovonnie Freeman, the former law enforcement officer with whom Darice spent her final night; the testimony of Kirkman's girlfriend, Tamiko Smith; four recorded jailhouse phone calls made by Kirkman to Tamiko; the testimony of Officer Eric Austin of the City of Cocoa Police Department; Kirkman's recorded interview with Officer Austin; and video and receipt information from the Home Depot showing Kirkman purchasing a bag of concrete mix, a shovel, and duct tape on the day of Darice's murder.[2] The evidence established the following relevant pre- and post-murder events.

         In November 2005, Pratt came to Brevard County, Florida, from the Bahamas for the specific purpose of dealing in narcotics. When Pratt arrived in Florida, he rented a gold Chrysler minivan. He then met up with Kirkman, whom he had previously met through Kirkman's mother. Pratt saw Kirkman on a daily basis, which included staying with Kirkman for about two months in Melbourne at the home of the mother of Kirkman's child, as well as occasionally staying with Kirkman in Rockledge at Tamiko's home. During his time in Florida, Pratt was introduced by Kirkman to Carlos "Los" Buckner and Tony "Bang" Rogers. Pratt also had a brother, Patrick "Bongo" Pratt, who came to Florida from the Bahamas at the end of March 2006, not long after Darice's murder.

         In the middle of February 2006, Darice, who was twenty-two years old at the time, came to Florida from the Bahamas to visit Pratt. According to Pratt, he and Darice used to date when they were in the Bahamas and although they were no longer boyfriend and girlfriend at the time, they continued a sexual relationship. Darice stayed with Pratt and Kirkman at the home of Kirkman's baby's mother.

         On February 28, 2006, two weeks after Darice arrived in Florida, Pratt participated in a robbery with Kirkman and another individual (Page). During the course of the robbery, one of the victims, Parker, was murdered.

         On or around March 14, 2006, Pratt and Darice moved together to the Dixie Motel in Cocoa. Soon thereafter, on the night of March 16, 2006, Darice went out to a local bar where she created a disturbance that prompted a phone call to the police regarding her disorderly behavior. Officer Freeman of the City of Cocoa Police Department responded to the call and issued a trespass warning to Darice.[3]Officer Freeman then drove Darice back to the Dixie Motel and the two exchanged phone numbers. After getting off work at 11 p.m. later that same night, Officer Freeman called Darice and she agreed to go out with him. Officer Freeman changed into civilian clothes and returned to the Dixie Motel in his personal vehicle to pick up Darice. Pratt returned to the Dixie Motel around that same time and saw Darice and Officer Freeman in the vehicle together. Although he did not know Officer Freeman's name, Pratt recognized him as the police officer who had recently conducted a traffic stop in which Kirkman, Rogers, and Pratt were in the stopped vehicle and during which Rogers fled the scene. Pratt approached Officer Freeman's personal vehicle and asked Darice what she was doing with the man. After Darice explained to Officer Freeman that Pratt was her ex-boyfriend and that everything was fine, Darice and Officer Freeman left the Dixie Motel and spent the night together. Pratt admitted to being upset at seeing Darice leave with Officer Freeman.

         Pratt then left the Dixie Motel because he was locked out of the room. He went to the Ramada on Merritt Island and called Kirkman to tell him what Pratt had witnessed back at the Dixie Motel. During the call, Kirkman asked Pratt for the officer's name but Pratt did not know. Pratt then went to Tamiko's house to meet with Kirkman sometime around 2 a.m. on March 17, 2006, the day of Darice's murder. There, Kirkman continued to ask Pratt questions regarding the officer's identity. Tamiko, who was home at the time, testified that when Kirkman received Pratt's late-night phone call, Kirkman got up and was pacing around. Tamiko also testified that after Pratt arrived, she was told that Darice had been drinking and causing problems. Later that morning, Kirkman told Tamiko that he and Pratt were going to take Darice to the airport.

         Pratt left Tamiko's house and went back to the Dixie Motel where he found the room door slightly open with no one inside. After resting briefly, Pratt packed up his and Darice's belongings. Pratt testified that he was afraid of Darice's involvement with the police, and he felt that he needed to move from that location because of the narcotics dealing going on there.

         Later that same morning of March 17, 2006, Pratt watched Officer Freeman and Darice return to the Dixie Motel. At that time, Officer Freeman recognized Pratt as one of the individuals with whom he had previously made contact on a traffic stop. Officer Freeman left Darice at the Dixie Motel and then left the area. Darice went up to the room, where Pratt told her that it was time to leave and that he did not feel safe. Pratt then loaded up the van with their personal belongings. Darice told Pratt that she was only out having a little fun and that she had met the officer after he responded to a disturbance she had caused at a local bar and grill. Darice, who had been using Tamiko's name, then showed Pratt a pink slip of paper from the Cocoa Police Department indicating the disturbance at the bar.

         Pratt and Darice left the Dixie Motel and drove to Tamiko's house. During the drive, Pratt called Kirkman to tell him he was on his way. When Pratt and Darice arrived at Tamiko's house, Kirkman came out through the garage. Pratt saw Tamiko standing in the doorway that leads from the garage into the house, and Tamiko saw Pratt and Darice sitting in the van outside the house. Kirkman then got into the van and left with Pratt and Darice. Tamiko testified that this was the last time she ever saw Darice.

         From Tamiko's house, Pratt continued to drive and the three headed toward I-95. Pratt testified that he intended to drop Darice off at the airport but after Kirkman made a phone call, Kirkman instructed Pratt to drive to the home of Rogers' girlfriend. Pratt obeyed. During the drive, they discussed what happened the night before, and Pratt attempted to explain to Kirkman that nothing was going on with Darice and the officer.

         Upon arriving at Rogers' girlfriend's home, Pratt parked the van in the backyard by a tree. He and Darice never got out of the van. Instead, Kirkman went inside the house and eventually came back outside with Buckner. Rogers also later came outside. Kirkman approached the van and stated that he did not believe there was nothing going on with Darice and the police officer. Kirkman then instructed Pratt and Darice to stay in the van while Kirkman, Buckner, and Rogers all left together in a car. Certain receipt and store video information provided by the Home Depot shows Kirkman shortly thereafter walking into the Home Depot store on Merritt Island and, at approximately 12:20 p.m. on March 17, 2006, purchasing an eighty-pound bag of concrete mix, a shovel, and a roll of duct tape.[4] The remaining events leading up to Darice's murder are based solely on the testimony of Pratt.

         While Pratt and Darice were sitting in the van awaiting Kirkman's return to Rogers' girlfriend's house, Pratt struck Darice in the face several times because he was angry that she had put the two of them in a life-or-death situation. Kirkman then returned with a shovel, a bag of cement, and a roll of duct tape, all of which Kirkman placed in the front passenger seat area of the van. Kirkman got into the van, took the keys, and did the driving.

         Kirkman instructed Pratt to tie Darice's hands together with the duct tape, which Pratt did, and Kirkman then drove the van around for approximately thirty to forty minutes until reaching a dirt road off State Road 524. During the drive, Pratt and Darice attempted to explain to Kirkman that she was not cooperating with the police, but Kirkman informed Pratt that it had to either be Darice's life or the lives of both Pratt and Darice. Pratt was scared of Kirkman.

         When Kirkman finally stopped the van off the dirt road, Kirkman, who was carrying a gun, ordered Pratt to use the duct tape to tie up Darice's feet and to cover her mouth. Pratt complied. Kirkman then instructed Pratt to carry Darice towards the woods, to dig a hole to Kirkman's specifications, and to get water from a nearby pond and then mix up the cement, all of which Pratt did. Pratt fetched the water by using a plastic storage bin from the back of the van, and he used the shovel to mix the cement. Kirkman then ordered Pratt to throw Darice in the hole. Pratt complied. Darice was alive and terrified, and her positioning in the hole was such that her upper body was lower than her legs, with her toes extending up out of the hole. While Darice was in the hole, Kirkman pointed his gun at her but did not shoot. Kirkman then ordered Pratt to cover Darice with cement and dirt. Pratt complied. After noticing that Darice's toes were sticking out, Kirkman ordered Pratt to cover her toes with cement. Pratt complied. Kirkman never left the burial scene during this time, and after Pratt finished burying Darice, he and Kirkman left together. They then discarded Darice's clothes at different garbage disposal areas and placed the shovel and duct tape in Tamiko's garage.

         In May 2006, Pratt, Kirkman, and Buckner were arrested in South Carolina on unrelated federal charges. Soon thereafter, Florida investigators, acting on leads in the Willie Parker murder investigation, traveled to South Carolina and interviewed all three men. During their interview of Buckner, the investigators first became aware of Darice's murder. They then returned to Florida and began searching for Darice's body in the same remote, swampy area in Cocoa where Darice's remains would eventually be found four years later. The investigators also went to Tamiko's home. There, they asked Tamiko about Darice and about a minivan that Pratt had rented. They also removed two shovels from Tamiko's garage and requested that Tamiko not tell Kirkman about their visit to her house. But Tamiko promptly told Kirkman about the visit, during several jailhouse calls she received from Kirkman later that same day. The recorded calls were introduced into evidence and played for the jury in their entirety.

         During the calls, Tamiko told Kirkman all of the following regarding the visit by police: they were looking for some "stolen goods" in her garage; they asked if she knew Kirkman; they talked about Pratt and wanted to get in touch with Darice; they knew about the van (but the van was not at her house at the time); and they took two shovels from her garage. Kirkman repeatedly instructed Tamiko to remove his belongings from her house. Also, using code language, Kirkman repeatedly instructed Tamiko to have Pratt's brother, Bongo, "torch" the van.[5]Tamiko testified at trial that after Kirkman's third phone call, she followed Bongo to an industry road close to the salvage yard in Cocoa, where Bongo burned the van.[6] She later testified that the van burned by Bongo was the same van in which she last saw Darice.

         In June 2006, Cocoa police spoke with Pratt about Darice (and about Parker).[7] Pratt lied about Darice's whereabouts by telling the investigators that he had dropped Darice off at the airport on March 17, 2006. The investigators also interviewed Kirkman. Prior to interviewing Kirkman, the investigators-based on information received as well as a bar code on one of the shovels they removed from Tamiko's house-were able to obtain video and receipt information from the Home Depot on Merritt Island correlating to the purchase of that shovel on March 17, 2006, along with the purchase of duct tape and a bag of concrete mix.[8]Kirkman's recorded interview with investigators was introduced into evidence and played for the jury in its entirety.

         During his one-hour interview with investigators, Kirkman admitted to telling Tamiko and Bongo to "torch" Pratt's rented van but stated that he did so because he knew that the van had been reported as stolen by the rental company and that investigators had asked Tamiko about the van. Kirkman also watched the Home Depot video and admitted to purchasing the items but stated that he did so for his employer, a company called Rainbow Concrete, and that the owner of the company eventually told Kirkman to keep the shovel. The owner of Rainbow Concrete testified at trial that he never purchased any concrete from Home Depot, that he and his ex-girlfriend were the only individuals who purchased concrete for the business, that he knew Kirkman but Kirkman never worked for him, that he never asked Kirkman to buy any materials for any job, and that he never told Kirkman to keep any shovel.

         At the conclusion of the guilt phase, the jury was instructed on both first-degree premeditated murder and first-degree felony murder. On April 8, 2016, the jury returned a ...


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