The increasingly strange legal circumstances surrounding the resentencing of Deltona murderers Troy Victorino and Jerone Hunter took yet another odd turn May 16 when Judge Randall Rowe found he had no other choice but to declare a mistrial.
“The bailiffs have been calling it a massive dumpster fire,” Rowe told the jury.
The circumstances leading to this point have been highly unusual — “uncharted territory,” Rowe called it.
The resentencing of the two men, who were both sentenced to death in 2006, was prompted by a 2016 ruling that required unanimous jury decisions in death-penalty cases.
But then, on April 20, the last day of jury selection in the Victorino/Hunter resentencing, Florida Gov. Ron DeSantis signed into law a new death-penalty standard that requires only eight of 12 jurors to recommend death in death-penalty cases.
Victorino and Hunter’s sentences already were overturned under the 2016-23 law that required unanimity, so they must be sentenced again. But under what law?
By the day the trial began April 25, bizarrely, the state and defense actually did not know which law would be used. Judge Rowe ruled that morning that the trial had already been underway when the new law was signed, and that the trial would continue under the law requiring unanimity.
As the trial got underway, the state quickly filed paperwork with the 5th District Court of Appeal to try and use the new law in the sentencing.
The trial had only two days down — in an expected monthlong process — when a stay order was issued in a 2-1 decision by a three-judge panel. Two weeks later, on May 11, the appellate court granted the request to impose the new law — requiring only eight of 12 jurors to impose death — and lifted the stay.
But by now the trial was, as defense attorney Allison Miller called it, “irrevocably broken.”
Expert witnesses for the defense who had cleared their calendars were now unavailable. Some jurors were experiencing financial hardship from lost hours at work, while others had longstanding travel plans they couldn’t change.
Two jurors couldn’t serve past June 5 because of plans to travel — one to celebrate his grandmother’s 95th birthday — while another had surgery scheduled. A total of four jurors were found to have cause to be excused, leaving the court without the required 12 jurors.
Despite exploring quite a few possibilities — an 11-member jury, recessing and reconvening in July, severing the cases of Victorino and Hunter, who are being sentenced together — Rowe ultimately found moving forward was impossible. The timing did not allow for the cases to be fully argued.
On top of all of that is the total uncertainty of what will happen in the appellate court, which has yet to issue its written opinion. The defense has already challenged the ruling to use the new law, a law which would make it much easier to sentence their defendants to death. Theoretically, another stay could have been imposed as the courts hashed it out, which would almost certainly have resulted in losing the jury.
The trial was not salvageable, Rowe found. A mistrial was declared in court May 16.
The culmination of six years of work to get to the point of trial would end unceremoniously. The jury was excused, and Victorino and Hunter, who have been housed in the Volusia County jail, were sent immediately back to death row in state prison.
Yet their story is not over.
The elements of this case have placed it at the heart of what is nearly sure to be a constitutional argument about the legality of death-penalty decisions writ large — a looming battle that could go beyond the Florida Supreme Court.
The Xbox murders case is the only one in the state in this singular position, and it’s entirely due to timing.
If the trial had ended before the new law was signed, as nearly 100 other resentencing cases have, the death penalty would be imposed only if the jury was unanimous, under the older law.
If the trial had not yet begun — as is the case for more than 50 defendants on death row who were waiting to be resentenced — the two men would have been resentenced under the 2023 law, which has a much lower standard to impose death.
If the trial had continued (and presumably concluded) under either law, it would be much harder for either side to appeal the decision, a process that would take years if not decades.
As it stands now, however, Victorino and Hunter still await resentencing.
Which law will be applied is now beyond the decision of a judge in Volusia County. The ruling by the appellate court that lifted the stay and imposed the new law has already been challenged by the defense, who have requested that the entire 12-member court of judges in the 5th District Court of Appeals review the opinion.
The defense has been clear that their arguments strike at the heart of the constitutionality of Florida’s new death-penalty law, a law that already more easily imposes the death penalty than is possible in all other states. The only other state that currently allows nonunanimous death penalty sentences is Alabama, but Alabama has a higher standard, requiring at least 10 of 12 jury members to vote for death.
The timing of the signing of the bill into law is under scrutiny by the defense. Defense attorneys have filed motions indicating that they believe the State Attorney’s Office and the Florida Attorney General worked together to have Gov. DeSantis sign the bill before the jury was sworn in.
The motions also imply that prosecutors deliberately slowed the pacing of jury selection.
They’ve made public-record requests of both the Attorney General and SAO, which the SAO has yet to fulfill as of May 16.
In a 37-page filing, the defense attorneys for Victorino and Hunter argue that the Florida Supreme Court has eroded the constitutional rights guaranteed under the Eighth Amendment of the United States Constitution. The filing also argues that Florida’s new law, overall, is in fact unconstitutional, and traces the history of the death penalty from juries in the Middle Ages to today.
The legal justification for Florida’s law will almost certainly be fiercely debated in the court system in regards to this case. And the decisions the courts make could have impacts on the law for decades to come.
Six people died that night. Whether two people will die as a result of their roles in those deaths is anything but clear.
The myriad moments that led to this situation — from the night of August 6, 2004, in Deltona, when six people and a dog were brutally murdered, through the original trial in 2006, a six-year process leading up to the resentencing trial, the signing of the new law April 20, to the mistrial on May 16, nearly 19 years after that horrific night — now branch into the unknown.
This article is really well done. Thank you for reporting on this. The conflict of laws is very interesting.