The imminent resentencing trial of Troy Victorino and Jerone Hunter, already an atypical case, took an even more bizarre turn April 20, when Gov. Ron DeSantis signed into law a new death penalty bill, which would require that only eight of 12 jurors vote in favor to impose a death sentence in murder trials. The bill was effective immediately.
What “immediately” means in the case of an ongoing trial, however, is the matter of some contention.
Troy Victorino and Jerone Hunter were both found guilty in 2006 of six counts of first-degree murder for the killings known as the Deltona massacre or Xbox murders, a horrific revenge killing that left six people bludgeoned and stabbed to death and one dog trampled to death in a Deltona home. Two co-defendants, Robert Cannon and Michael Salas, were sentenced to life in prison.
A 2017 law requiring juries to be unanimous in death penalty recommendations led to reconsideration of Victorino and Hunter’s sentences by a new jury. The trial is set to begin Tuesday, April 25.
Read more: Deltona murderers’ execution caught in legal snarl
Over the course of about five hours on the final day of jury selection April 20 — 288 jurors having been called to court over the course of nine days — several things happened in quick succession.
As prosecutors began their questioning of the remaining 21 potential jurors that morning, Senate Bill 450, passed by both Florida chambers, was presented to the governor, who signed it into law about an hour later, around 10:08 a.m. About 40 minutes after that, the prosecutors concluded their questioning, as did the defense.
The state then quickly filed a motion to apply the new law in the sentencing case, and requested a delay in swearing in the jury.
Judge Randell Rowe declined to delay swearing in the jury, whose members were officially impaneled around 1:30 p.m. April 20.
By Monday morning, April 24, one day before opening arguments were scheduled to begin, the 19-year-old case had several last-minute motions and counter motions filed by the prosecutors and defense.
The state is asking that the new law be applied — ironically undercutting the reason there is a new sentencing at all for the two defendants — and also asking that Judge Rowe recuse himself, arguing that swearing in the jury over the objections of the state was biased in favor of the defendants. The latter motion was denied by Rowe.
For their part, the defense argues the state was lazy in not earlier arguing motions to continue the trial based on the imminent new law, among other things, writing that “… [The state] sat on its hands. The State’s inaction leaves this Court faced with a decision whether to change horses in midstream, whether to change the rules midway through the game.”
The defense is arguing that due process requires that “… all parties know the rules of the game when the game starts, and the rules cannot thereafter be changed,” later adding that “The metaphor breaks down because this is not a game. The Court’s decision will influence whether Mr. Hunter gets to live or must die. If it is a game, it is a deadly one.”
At the core of the myriad arguments is one thing the judge has not yet ruled on: what law will actually be in effect during the resentencing; in other words, whether the jury will be required to be unanimous to impose the death penalty again. Rowe has indicated that, based on case law, the law that was in effect when the trial started, i.e., the older law requiring unanimous jury decisions, would apply.
The state is sure to hotly contest that, and the issue may reach the Florida Supreme Court in a request for an emergency stay.
“I think if the Supreme Court wants to say these guys down in DeLand really screwed things up, they’re applying the wrong law, we’re going to stop it, I think they could certainly do that if they want to do it,” Judge Rowe said in court April 20.
As far as anyone knows, according to discussions by the judge and attorneys, the Deltona Massacre case is the only death-penalty case in Florida in this situation.
A case in Miami has already concluded its jury trial, and a case in Broward isn’t scheduled for trial until June. Another death-penalty case in Volusia that was triggered for resentencing under the 2016-23 death-penalty law did not yet have a trial date set.