          Supreme Court of Florida
                                  ____________

                                  No. SC15-2136
                                  ____________

                             BESSMAN OKAFOR,
                                 Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  [June 8, 2017]

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


                                        -2-
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

children1 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




       1. Sherria was seven months pregnant with Okafor’s child at the time and
had a six-year-old daughter with him and another daughter from a previous
relationship.


                                         -3-
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.




       2. Candace is Okafor’s sister. Emmanuel is Bernard’s cousin.
Additionally, Okafor had two children with Emmanuel’s sister, Pearl Wallace, a
son who died as an infant from SIDS and a daughter who died the week before trial
at the age of eleven. Donnell Godfrey has a child with Bernard’s sister.


                                         -4-
      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


                                        -5-
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 started

blocking his vision. The assailants left and Brienna and Remington climbed over

their back fence to their neighbors’ home. Amy Scott answered the door and saw

the two of them covered in blood. Brienna used the Scotts’ phone to call police,

who responded at 5:24 a.m.

      Video surveillance captured the white Impala leaving the neighborhood

around the same time. Sherria testified that Okafor called her and told her to return

to the abandoned house. When she arrived, the other two cars were there. Nesly

testified that he left his location before he was instructed but nevertheless returned

to the abandoned house to await the others’ return. He testified that he was the

first car to arrive back, followed by the Impala, followed by Sherria in the Malibu.

Nesly testified that Godfrey was driving the Impala on the return trip and that

Okafor got out of the Impala and into the car with Nesly who then drove Okafor

home. Sherria testified that Godfrey got into the car with her and she drove him

down the street until he indicated where to let him out. She then returned to


                                         -6-
Takeethia’s house, where Okafor was already standing outside. She and Okafor

then went to bed.

      Okafor’s jury trial commenced on August 10, 2015. At the end of the trial,

the jury convicted him of one count of first-degree premeditated murder, two

counts of attempted first-degree murder, and one count of armed burglary of a

dwelling with explosives or a dangerous weapon. The penalty phase commenced

on August 27, 2015.

      At the penalty phase, the State presented testimony from Brienna Campos,

Remington Campos, Denise Zaldivar, Richard Zaldivar, Kyoko Zaldivar, and

Rafael Saldivar. Okafor presented testimony from Trenton James, Catalina Ruffin

Sinclair, Trevor Sinclair, Marcia Pete, Dr. Edward Taylor, and Dr. Stephen Gold.

The jury voted eleven to one to sentence Okafor to death. The Spencer3 hearing

occurred on October 13, 2015, where the State presented testimony from Kyoko,




      3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).


                                       -7-
Rafael, and Brienna. Afterwards, the trial court found four aggravating

circumstances,4 thirteen mitigating circumstances,5 and sentenced Okafor to death.

      First, Okafor argues that the trial court erred in striking Juror 105 for cause

based on his allegedly equivocal responses to whether he would be able to impose

the death penalty after determining it was the appropriate punishment. We

conclude that there was no error.

             A trial court has great discretion when deciding whether to
      grant or deny a challenge for cause based on juror competency.
      Barnhill v. State, 834 So. 2d 836, 844 (Fla. 2002), cert. denied, 539
      U.S. 917 (2003). This is because trial courts have a unique vantage
      point in their observation of jurors’ voir dire responses. Therefore,
      this Court gives deference to a trial court’s determination of a


       4. The trial court found the following aggravating circumstances: (1) Okafor
was previously convicted of another felony involving the use or threat of force or
violence to the person; (2) the capital felony was committed to disrupt or hinder
the lawful exercise of any governmental function or the enforcement of laws; (3)
the murder was especially heinous, atrocious, or cruel; (4) the murder was
committed in a cold, calculated, and premeditated manner without any pretense of
moral or legal justification.
        5. The trial court found the following nonstatutory mitigating
circumstances: (1) codefendants received lower sentences (little weight); (2)
untreated learning disability (some weight); (3) being abandoned, neglected, and
separated from paternal family (some weight); (4) difficult childhood and
upbringing (some weight); (5) anxiety, aggression, and poor impulse control (some
weight); (6) suffered the loss of a son and daughter (some weight); (7) suffered the
loss of a parent (some weight); suffered physical, verbal, and emotional abuse
(moderate weight); (8) suffered sexual abuse and provided no counseling
(significant weight); (9) emotionally and physically neglected (some weight); (10)
suffered domestic violence (little weight); (11) suffered from household alcoholism
(little weight); (12) household member was incarcerated (little weight); and (13)
exhibited exemplary courtroom behavior (very little weight).


                                         -8-
      prospective juror’s qualifications and will not overturn that
      determination absent manifest error. Hertz v. State, 803 So. 2d 629,
      638 (Fla. 2001), cert. denied, 536 U.S. 963 (2002). Where a
      prospective juror is challenged for cause on the basis of his or her
      views on capital punishment, the standard that a trial court must apply
      in determining juror competency is whether those views would
      prevent or substantially impair the performance of a juror’s duties in
      accordance with the court’s instructions and the juror’s oath. Id.
      (citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)). “In a death
      penalty case, a juror is only unqualified based on his or her views on
      capital punishment, if he or she expresses an unyielding conviction
      and rigidity toward the death penalty.” Barnhill, 834 So. 2d at 844.

Conde v. State, 860 So. 2d 930, 939 (Fla. 2003); see Fernandez v. State, 730 So. 2d

277, 281 (Fla. 1999). We have previously held that a juror’s “[p]ersistent

equivocation or vacillation . . . on whether he or she can set aside biases or

misgivings concerning the death penalty in a capital penalty phase supplies the

reasonable doubt as to the juror’s impartiality which justifies dismissal.” Hurst v.

State, 202 So. 3d 40, 62 (Fla. 2016) (quoting Johnson v. State, 969 So. 2d 938,

947-48 (Fla. 2007)).

      The record demonstrates that Juror 105 never clearly stated that he could

follow the law. Even when directed to assume that he had determined that the

death penalty was appropriate in this case, Juror 105 stated he was unsure that he

could vote to recommend it. Accordingly, the trial court did not err in dismissing

Juror 105 for cause.

      Next, Okafor argues that the trial court erred in permitting the State to

introduce evidence of high capacity .22 and .223 caliber magazines recovered from


                                         -9-
Emmanuel Wallace’s residence. The State argues that the magazines were relevant

to establish that it was Wallace who carried the AK-47 described in Remington

Campos’ testimony. We conclude that the trial court erred in admitting the

evidence, but that the error was harmless.

      In order to be admissible, evidence must be relevant. That is, the
      evidence must “tend [ ] to prove or disprove a material fact.”
      § 90.401, Fla. Stat. (2012). While relevant evidence is generally
      admissible, such evidence “is inadmissible if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of issues, misleading the jury, or needless presentation of cumulative
      evidence.” §§ 90.402-403, Fla. Stat. (2012). “A trial court has broad
      discretion in determining the relevance of evidence and such a
      determination will not be disturbed absent an abuse of discretion.”
      Jorgenson v. State, 714 So. 2d 423, 427 (Fla. 1998) (citing Heath v.
      State, 648 So. 2d 660, 664 (Fla. 1994)).
Davis v. State, 207 So. 3d 177 (Fla. 2016), petition for cert. filed, No. 16-8570

(U.S. Mar. 31, 2017).

      The evidence here was not relevant. Despite the State’s argument, the

magazines did not tend to establish the identity of the assailant carrying the AK-47

because an AK-47 does not fire .22 caliber or .223 caliber rounds. Accordingly,

the discovery of high capacity magazines of those calibers did not corroborate

Remington’s testimony that one of the assailants carried an AK-47, nor did it

establish that Wallace was that assailant. See Huhn v. State, 511 So. 2d 583, 589

(Fla. 4th DCA 1987) (finding a gun not relevant when there was nothing unlawful

about owning the gun itself and nothing connecting that particular gun to the



                                        - 10 -
crime). However, such error was harmless because Wallace’s ownership of .22

and .223 caliber high-capacity magazines was not prejudicial to Okafor. See

Herman v. State, 396 So. 2d 222, 229 (Fla. 4th DCA 1981) (“There being no

reasonable basis upon which a different verdict could have been reached, if

admission of the shotgun[, where the State’s expert testified it was not likely the

gun used in the crime,] was error, it was harmless.”).

      Next, even though not challenged by Okafor, we have an independent duty

to review the evidence to determine whether there is competent, substantial

evidence to sustain the conviction in this case. We conclude that the record

contains competent, substantial evidence to support this conviction. The evidence

presented at trial demonstrated that on May 9, 2012, Bessman Okafor and Bernard

entered the Camposes’ home while armed and took money and electronics. After

their arrest, trial was scheduled to begin on September 11, 2012.

      The day before trial, Brienna, Remington, and Alex were asleep in their

home. Brienna awoke to the sound of her dog barking and was pulled out of bed

by a tall, lanky man carrying a pistol. Remington awoke to the sound of both his

siblings’ dogs barking and was pulled out of bed by a short, heavy-set man with

short dreads carrying a Glock. Remington also saw a tall, lanky man with long

dreads carrying an AK-47.




                                        - 11 -
      Brienna, Remington, and Alex were placed face down next to each other, so

close that their heads were touching. Brienna testified that she heard the first shot

fire, thought it was an accident, and then felt herself be shot. Remington testified

that he heard Brienna and Alex being shot before he felt himself shot. The State

presented testimony from a firearms expert who testified that the projectiles

recovered were from a .38 caliber handgun that could not have been a Glock. She

further testified that because no shell casings were recovered, the handgun was

likely a revolver and not a semi-automatic.

      Testimony demonstrated that Okafor arranged for Sherria and Nesly to serve

as lookouts. Okafor, Wallace, and Godfrey were filmed by the neighbor’s

surveillance camera arriving at the crime scene. Text messages, cellular data, and

Okafor’s ankle monitor all demonstrate that he coordinated the crime and was at

the crime scene during the time the murder took place.

      While neither Brienna nor Remington testified that they saw a man who fit

Okafor’s description, and were only able to describe Wallace and Godfrey, they

both testified that one of the assailants asked questions that would only make sense

if he had been present at the May 9 incident. Specifically, they testified that the

unidentified assailant asked “where are the other two” presumably referring to

Brandon and William who were present at the May 9 incident but not at the

September 10 incident. He also asked “who is the naked guy?” presumably


                                        - 12 -
referring to Remington, who was present at the September 10 incident, but not the

May 9 incident. The unidentified assailant would likely have only been able to

identify the victims this way if he had been physically present at both incidents and

the only other person other than Okafor who was at the May 9 incident, Nolan

Bernard, was in jail awaiting trial.

      The jury could reasonably conclude that Okafor planned, coordinated, and

executed the murder and attempted murders in this case. Accordingly, we find

competent, substantial evidence in the record to affirm Okafor’s conviction for the

first-degree murder of Alex Zaldivar.

      Lastly, Okafor argues that because the jury did not unanimously find the

facts necessary to sentence him to death and did not unanimously recommend the

death sentence, Florida’s capital sentencing scheme and his death sentence are

unconstitutional in light of the United States Supreme Court’s decision in Hurst v.

Florida, 136 S. Ct. 616 (2016), and this Court’s decision in Hurst v. State, 202 So.

3d 40 (Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017). We agree. See

Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (citing Hurst, 202 So. 3d at

41). We explained in Hurst “that the Supreme Court’s decision in Hurst v. Florida

requires that all the critical findings necessary before the trial court may consider

imposing a sentence of death must be found unanimously by the jury.” Hurst, 202

So. 3d at 44. We also held, “based on Florida’s requirement for unanimity in jury


                                        - 13 -
verdicts, and under the Eighth Amendment to the United States Constitution, that

in order for the trial court to impose a sentence of death, the jury’s recommended

sentence of death must be unanimous.” Id. Because the jury vote in this case was

eleven to one, and the aggravating factors required factual determinations by the

jury, the Hurst error in this case was not harmless beyond a reasonable doubt. See,

e.g., Franklin, 209 So. 3d at 1248.

      In Hurst, this Court determined that Hurst v. Florida error is capable of

harmless error review and set forth the following test:

             The harmless error test, as set forth in Chapman[v. California,
      386 U.S. 18 (1967),] and progeny, places the burden on the state, as
      the beneficiary of the error, to prove beyond a reasonable doubt that
      the error complained of did not contribute to the verdict or,
      alternatively stated, that there is no reasonable possibility that the
      error contributed to the conviction.

Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.

1986)). We stated that a sentencing error is only harmless “if there is no

reasonable probability that the error contributed to the sentence.” Id. (citing Zack

v. State, 753 So. 2d 9, 20 (Fla. 2000)). To find the error harmless in this case, we

would be required to speculate why one juror was “persuaded that death was not

the appropriate penalty.” Id. at 69. We therefore find that the Hurst error in this

case is not harmless beyond a reasonable doubt and Okafor is entitled to a new

penalty phase. See id.




                                        - 14 -
      Because we find that Hurst requires that Okafor receive a new penalty phase,

we decline to address the remaining issues on appeal. We affirm Okafor’s

conviction and remand for a new penalty phase proceeding.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
LAWSON, J., concurs specially with an opinion.
CANADY and POLSTON, JJ., concur as to the conviction and dissent as to the
sentence.

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

LAWSON, J., concurring specially.

      I fully concur in the majority’s decision to affirm Okafor’s conviction. I

have also elected to concur in the majority’s decision to vacate Okafor’s death

sentence now that the United States Supreme Court has denied certiorari in Hurst

v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-998, 2017 WL

635999 (U.S. May 22, 2017). Although I continue to view this Court’s decision in

Hurst as misguided for the reasons expressed in Justice Canady’s Hurst dissent, see

Hurst, 202 So. 3d at 77-83 (Canady, J., dissenting), the Supreme Court’s denial of

certiorari renders Hurst final, solidifying it as this Court’s precedent.

      While I recognize that I am not necessarily bound by our precedent and

could continue to dissent and express my disagreement, my duty is to faithfully

apply Florida law to the issues raised by those litigants whose sole state court


                                         - 15 -
appeal right is in our Court. At this point, Hurst is the law in Florida—whether I

agree with it or not—and issues governed by our Hurst precedent will continue to

be decided by our Court in pending death penalty proceedings for at least several

more months. Accordingly, I concur in the decision to grant Hurst relief because

that is what a faithful application of now-settled Florida law requires in this case.

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




                                        - 16 -
