RANDALL T. DEVINEY, Appellant, vs. STATE OF FLORIDA, Appellee.
No. SC15-1903
Supreme Court of Florida
[March 23, 2017]
This case is before the Court on appeal from the conviction and sentence of death of Randall Deviney for the first-degree murder of Delores Futrell.1 A jury recommended death by an eight-to-four vote. The trial court accepted that recommendation and sentenced Deviney to death. We have jurisdiction. See
FACTS
On August 5, 2008, at 10:01 p.m., a Jacksonville police dispatcher received an unverified 911 call from Futrell‘s residence.2 Along with another officer, Officer Milowicki of the Jacksonville Sheriff‘s Office responded to the call.
As the officers approached Futrell‘s townhome at approximately 10:40 p.m., they noticed that the interior lights were on and heard a television playing. They knocked on the door while calling into an open window; they received no response. Then, the officers attempted to access the backyard, but a tall, locked fence blocked their entrance. Returning to the front, the officers proceeded into the home through the unlocked front door.
Milowicki found Futrell lying on the carpet in front of her television. She recalled:
It was a petite, elderly female. She was cut ear-to-ear and the cut was so deep that it was hanging by just skin on the back of her neck. Her shirt was pulled over her torso exposing her torso. And her underwear, she just had underwear on and the underwear was sliced at the crotch area and pulled up by her hips. So she was nude from the
waist down. And her legs had appeared to be posed in a sexual manner showing her genitalia.
Strangely, there was little blood inside the home. Milowicki observed a small table in the dining room with objects knocked over beside a cordless phone base. The phone was on the dining room table and, based on the call log, the police determined that it had been previously used to dial 911. The contents of a purse were emptied onto Futrell‘s couch; however, Futrell‘s wallet was across the room on an ironing board. Credit cards laid scattered beside the wallet, which contained a total of fifty-six cents. Behind the ironing board, near the back door, Milowicki saw a pair of bloody blue jeans.
While walking in the backyard, Milowicki heard “what sounded like a squeegee noise around [her] feet.” Her flashlight confirmed that she was standing in a pool of blood that engulfed her shoes. From that vantage, in the center of the backyard, Milowicki noticed blood stains on and near a koi pond in the corner along the fence. Further, she noted that although the pond was lit by a white light, the water was “bright red.” A blood trail led from the pool of blood toward Futrell‘s home. Along that path, beside the back door, was a chair with a blood stain on its armrest.3 The police found no signs of forced entry.
Inside the home, Gray examined Futrell‘s body, noting blood on the bottoms of her feet along with grass in her hair and on her left arm. Futrell‘s bra, shirt, and underwear were cut. There were abrasions and scrapes on Futrell‘s lower back consistent with being dragged. Gray opined that, based on the evidence, Futrell was killed in the backyard, dragged inside her home, and—possibly—posed in an explicit position to resemble a sexual battery. However, Gray was unsure whether Futrell‘s clothing was cut and removed outside or inside her home. None of the latent fingerprints lifted from Futrell‘s home belonged to Deviney.
Dr. Giles, M.D., a forensic pathologist, conducted an autopsy on Futrell‘s body. Futrell was sixty-five inches tall (5‘5“), 138 pounds, and sixty-five years old. Dr. Giles determined that the cause of death was hypovolemic shock with asphyxiation due to an incised wound of the neck, laryngeal transection: “In
On the left side of Futrell‘s head were various blunt-force injuries: contusions and abrasions around her eye, forehead, and temple, plus abrasions around the nose and mouth. On the right side of Futrell‘s head, near her mouth and eye, were different types of abrasions than those on the left. Dr. Giles opined that these particular abrasions occurred later in the course of events, either when Futrell was nearly or already dead, because they were yellow.4
According to Dr. Giles, the large cut across Futrell‘s neck went from right to left. It sliced through Futrell‘s veins, but not her deeper arteries. However, it partially severed the jugular vein, the major vein on the right side of the neck, which meant that it could not snap shut and continued to bleed. Dr. Giles noted that the incision “completely separated” the upper and lower larynx between the vocal cords. Behind that, the esophagus was partially cut. Taking these together,
Coupled with that injury, Dr. Giles found a major blunt-force injury to Futrell‘s neck. Specifically, Dr. Giles observed evidence of crushing blunt force applied to Futrell‘s upper neck, fracturing her hyoid bone.5 The larynx was fractured above the cut as well. Because these fractures stopped at the cut, and there was little hemorrhaging in the fractures, this injury likely occurred after Futrell‘s neck was cut. In Dr. Giles’ opinion, the crushing-type force was applied on both sides of Futrell‘s neck, consistent with strangulation or a choke hold. Dr. Giles testified that this injury occurred prior to Futrell‘s death; however, it was late in the process.
Aside from the fatal neck injuries, on Futrell‘s chest were various blunt- and sharp-force injuries. There were superficial incisions. Further, small pricks indicated where Futrell was poked with a sharp object. Some of the injuries on her
On Futrell‘s left arm were abrasions and sharp-force injuries. Various contusions and bruises on Futrell‘s hands and arms appeared to be defensive wounds. However, there was little to no blood on Futrell‘s hands. Futrell‘s lower back had a large abrasion, which indicated that she had been dragged. Another abrasion on her lower back suggested that Futrell had a garment on when the injury occurred.
When Dr. Giles conducted the autopsy, Futrell‘s shirt was still rolled up. There were cuts on the shirt, but when the shirt was rolled down one cut did not align with the injuries on her body; thus, Dr. Giles concluded that the particular injury occurred when Futrell‘s shirt was rolled up. A sexual battery kit was used to test Futrell‘s oral, vaginal, anal, and breast areas. There were no injuries to Futrell‘s sexual organs. This led Dr. Giles to the conclusion that no sexual activity occurred; however, he could not rule out the possibility that attempted sexual
Evidence was sent to the Florida Department of Law Enforcement (FDLE) for DNA testing. FDLE conducted tests on the blue jeans from Futrell‘s house, which tested positive for blood and negative for semen. The test on Futrell‘s bra yielded the same results. All of the swabs taken as part of the sexual battery kit tested negative for semen. A swabbing from a flashlight found in Futrell‘s home was tested, but Deviney was excluded as a contributor to the DNA mixture on the flashlight. Preliminary DNA testing of Futrell‘s right fingernail clippings matched Deviney. When the DNA profiles of Deviney and Futrell were analyzed, FDLE concluded that there was a 1 in 40 billion chance that anyone other than Deviney left the DNA sample.
These results were forwarded to the Jacksonville Sheriff‘s Office, which necessitated a confirmation sample. So, detectives brought Deviney to the police station to be questioned, tested, and subsequently arrested.6 In the days following his arrest, Deviney placed two calls to his father, Michael Deviney. The State introduced recordings of these calls into evidence. In one call, Deviney confessed to the murder, saying, “I lost it. It wasn‘t me. It was another person inside me.”
After the State completed the presentation of its case, Deviney waived his right to remain silent and testified. During his testimony, Deviney admitted to killing Futrell.
Deviney testified that Futrell‘s house was a safe place for him growing up. With Futrell, Deviney could discuss personal problems, which included speaking about the physical and sexual abuse that he purportedly suffered as a child. Deviney claimed that Mullins abused him and that she would dig her nails into his arm before beating him into submission. On the night of Futrell‘s death, Deviney
Deviney explained that Futrell fell and struck the ledge of the koi pond. Then, he pulled her to the middle of the backyard and placed pressure on her neck. Moreover, he admitted that Futrell was aware of her impending death and that he caused it. Deviney testified that—after Futrell died—he attempted to divert suspicion by staging an attempted sexual battery; so, he pulled Futrell into her home and cut off her clothes with his knife. Then, Deviney claimed that he dialed 911 and walked out the front door without touching Futrell‘s purse.
There were various inconsistencies that the State raised surrounding Deviney‘s story. For instance, there was no blood on Futrell‘s underwear, which he claimed to have cut with the broken knife that he used to cut her throat. Also, he testified that there was no struggle involved in the death, directly conflicting with Dr. Giles’ opinion. Finally, Deviney testified that Futrell placed her hands over her throat after it was cut; yet, the pictures entered into evidence show that there was little to no blood on her hands.
Following a penalty phase proceeding, the jury recommended that Deviney be sentenced to death by an eight-to-four vote. The trial court did not provide the jury with a special interrogatory verdict form; thus, the recommendation merely reflected the eight-to-four outcome. In its sentencing order, the trial court found three aggravating circumstances,7 one statutory mitigating circumstance,8 and twenty-three nonstatutory mitigating circumstances.9 After weighing the jury
On appeal, Deviney raised one guilt phase issue,10 along with various penalty phase and death sentence issues. We have reviewed all of Deviney‘s contentions on appeal. In light of this Court‘s decision in Hurst v. State, the penalty phase and sentencing challenges are rendered moot because Deviney is entitled to a new penalty phase. Therefore, we affirm the conviction, but remand to the trial court for a new penalty phase proceeding.
ANALYSIS
Deviney contends that Florida‘s capital sentencing scheme is unconstitutional in light of Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016) (Hurst v. Florida), because the jury, which recommended death, failed to find the facts necessary to impose that sentence. We agree. See Hurst v. State, 202 So. 3d at 43-44.
As this Court held in Hurst v. State, such a sentencing error is capable of harmless error review. Id. at 67. Therefore, “[i]n the context of a sentencing error, the relevant question is whether ‘there is a reasonable possibility that the error contributed to the sentence.’ ” Johnson v. State, 205 So. 3d 1285, 1290 (Fla. 2016) (quoting Zack v. State, 753 So. 2d 9, 20 (Fla. 2000)). Considering the nonunanimous jury recommendation and reasoning below, we reject the State‘s contention that any Hurst v. Florida error was harmless.
To be sure, Deviney‘s actions were substantially aggravated. During his childhood, Futrell treated Deviney like her own grandchild. However, on the night of August 5, 2008, Deviney walked into Futrell‘s home and cut her throat. It is undisputed that Futrell, a sixty-five-year-old woman with MS, was aware of her impending death and that the boy she helped raise brought it about.
As in Hurst v. State and Johnson, we cannot conclude—beyond a reasonable doubt—that a Hurst v. Florida error did not contribute to Deviney‘s sentence. See id.; Johnson, 205 So. 3d at 1290-91. This Court explained in Hurst v. State,
Because there was no interrogatory verdict, we cannot determine what aggravators, if any, the jury unanimously found proven beyond a reasonable doubt. We cannot determine how many jurors may have found the aggravation sufficient for death. We cannot determine if the jury unanimously concluded that there were sufficient aggravating factors to outweigh the mitigating circumstances.
202 So. 3d at 68. Such concerns apply with equal force here. We can merely conclude that four jurors, for whatever reason, determined that a life sentence was appropriate. This record, coupled with an eight-to-four jury recommendation and
Moreover, we reject the State‘s assertion that Deviney‘s conviction for felony murder was sufficient to insulate his death sentence from Hurst v. Florida error. See Hurst v. State, 202 So. 3d at 53 n.7. Likewise, in Hurst v. State, this Court already rejected Deviney‘s argument that
With regard to Deviney‘s guilt phase claim, we affirm the denial of Deviney‘s motion for judgment of acquittal. Because we found no error in the guilt phase, no further discussion is necessary.
CONCLUSION
Accordingly, we affirm Deviney‘s conviction for first-degree murder, vacate his death sentence, and remand for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. POLSTON, J., concurs as to the conviction and dissents as to the sentence. CANADY, J., concurs in result as to the conviction and dissents as to the sentence. LAWSON, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County, Mallory Durden Cooper, Judge - Case No. 162008CF012641AXXXMA
for Appellant
Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida,
for Appellee