Supreme Court of Florida
____________
No. SC15-625
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DWAYNE F. WHITE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[March 30, 2017]
PER CURIAM.
Dwayne F. White, who was forty-one years old at the time of the offense,
was convicted of first-degree murder in the death of his estranged wife, Sarah
Yvonne Rucker, who was forty-three years old at the time of her death. By a vote
of eight to four, the jury recommended that White be sentenced to death, and the
trial court imposed a death sentence. This is White’s direct appeal of his
conviction of first-degree murder and sentence of death. We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const.
For the reasons that follow, we affirm White’s conviction of first-degree
murder but vacate his death sentence because we cannot conclude that the Hurst v.
State (Hurst), 202 So. 3d 40 (Fla. 2016), error is harmless beyond a reasonable
doubt. Accordingly, we remand his case to the circuit court for a new penalty
phase.
FACTS
The evidence introduced at trial during the guilt phase established the
following facts. Dwayne Fitzgerald White and the victim, Sarah Yvonne Rucker,
had been involved in a romantic relationship since 1988. Although White and the
victim were married at the time of the murder, they had become estranged and
lived in separate houses. White lived in Orlando, Florida, with his girlfriend of
eight years. The victim lived in a house she owned with White in Deltona, Florida,
with their four children.
At approximately two a.m. on August 29, 2011, White unexpectedly arrived
at the victim’s home. Dwayne White, Jr. (“Dwayne”), the couple’s eldest son, who
was approximately seventeen years old at the time of the incident, awoke to the
sound of the dog barking and went to the window, where he saw his father, White,
walking up the driveway.
Dwayne called to his mother to alert her that White was outside, but White
walked into the house and told Dwayne he wanted to speak with him. White spoke
with Dwayne in his room for a few minutes while the victim went outside.
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At the end of the conversation with White, Dwayne stayed in his room while
White walked outside to see the victim. Dwayne then heard his younger sister
yelling for him. Dwayne went outside in response and observed a beer bottle
flying toward the victim. He saw the victim on her back, with her hands up
holding her cell phone, and White attempting to pry her phone from her hands.
White eventually was able to take the phone and then got in his car and drove
away. Dwayne had to restrain his mother from going after White as he left with
her phone.
Throughout the altercation the victim was on the phone with an emergency
dispatcher, who was reached by dialing 911. She made five calls to 911 between
1:56 and 2:01 a.m. A recording of the calls was entered into evidence and played
for the jury at trial. The victim can be heard on the calls telling White: “Don’t hit
Dwayne, stop the violence. You are so violent. Stop. Just stop.” She also stated:
“He scared me. I’m tired of this. He is always doing this. . . . I just need to get
my phone back.”
The victim told the 911 operator that White came over to the house that
night because he was mad that the victim was no longer romantically interested in
him. At one point, the victim told the operator: “I’m going to have to get me a gun
and blow his head off for coming into my yard.” She continually emphasized how
badly she needed to get her phone back and how important it was to her, even
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stating at one point, “I’m going to go find him myself.” She told the operator that
it was critical that she have her phone because she worked at a surgical center and
was on call that night. She could be called in at a moment’s notice and could be
fired if she did not have her phone. The victim told the 911 operator this was not
the first time this had happened. White had stolen two other phones from her and
gone through all of her phone calls and text messages.
Dwayne also saw White’s pocket knife, which he often carried with him,
clipped to his pants pocket that night. After White left, Dwayne left the house
intending to go down the street to his neighbor’s house to get a shotgun for
protection in the event that White might return. Dwayne did not make it, however,
as the victim went after him and was able to bring him home. Shortly thereafter,
the police arrived at the victim’s residence. White called Dwayne’s phone while
the police were there. Dwayne handed the phone to the officer, who intended to
convince White to come back to the victim’s house and return her phone; however,
White immediately hung up.
After the police left, White called Dwayne’s phone again. When Dwayne
answered the phone, White told him to go in to the bathroom by himself. White
then told Dwayne that it was not Dwayne’s place to be involved in his parents’
business. White told Dwayne that he needed the victim to take back her report of
the crime. At that point, the victim came into the bathroom, snatched Dwayne’s
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phone, and began yelling at White that she needed her phone back. The victim
then walked out the front door with Dwayne’s phone, and that was the last time
Dwayne saw his mother alive.
The evidence is unclear as to exactly what transpired between 2:30 a.m.,
when White left the victim’s house, and approximately four a.m., when her body
was found outside of a Miami Subs near the intersection of Interstate 4 and exit
434 in Orlando. However, the State introduced evidence indicating the relative
locations of White’s phone, the victim’s phone, and Dwayne’s phone during that
time.
Cell phone records indicate that White’s phone and the victim’s phone,
which White had in his possession, were tracked from the victim’s home in
Deltona to the vicinity of White’s girlfriend’s home in Orlando, reaching that
location sometime around 2:47 a.m. At 3:32 a.m., White received a call from
Dwayne’s phone, which was in the victim’s possession, that lasted approximately
nine minutes. By the end of this call, White’s phone was tracked from his
girlfriend’s house toward the location of where the victim’s body was found. By
3:46 a.m. White’s phone was in the vicinity of the cell phone tower serving the
Miami Subs where the victim’s body was found. Dwayne’s phone was also in the
vicinity of the cell phone tower serving the Miami Subs location at 3:46 a.m. At
3:52 a.m., Dwayne’s phone received a five-second call from White’s phone. The
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victim’s car was first spotted in the Miami Subs parking lot by a passerby at
approximately 4:10 a.m.
The victim’s body was discovered outside of the Miami Subs location
between four a.m. and five a.m. by two men meeting there to carpool to work. Her
car was located at the scene, parked, with one door left open. The men called 911,
and the Seminole County Sheriff’s Office crime scene analysts reported to the
scene. The victim was found lying face down on the ground in a pool of her own
blood. White’s palm print was found in the victim’s blood just above the victim’s
head on an exterior window ledge of the Miami Subs.
The victim had been stabbed seven times around her upper chin and neck.
Her throat had also been cut so deeply that her trachea, esophagus, and carotid
artery had been completely severed. The medical examiner testified that it would
have taken at least four separate passes with a knife or similar object to create such
a “gaping wound.” The victim’s body also had several defensive wounds to the
palms of her left and right hands, indicating that some sort of struggle had taken
place that morning. The medical examiner determined the victim’s manner of
death to be homicide and cause of death to be sharp-force injuries to the neck.
Later that day, the police first made contact with White. When White was
informed that Sarah Rucker had been involved in an “incident” and was
“deceased,” his immediate reaction was: “It wasn’t me.”
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Detective Jennifer Spears testified that when she entered White’s home to
question him about the victim’s death, she saw a bottle of household bleach on the
bathroom counter and smelled the strong odor of bleach coming from the bathtub
itself. She also observed some red scratches on White’s chest, which she described
during the trial as consistent with fingernail scratches. When questioned about his
pocket knives that he was known to carry with him, White told Spears that they
would either be in his bedroom or in his van. However, after a thorough search,
the knives were never located.
Investigator William Maxwell transported White from his girlfriend’s house
in Orlando to the Volusia County Sheriff’s Office for questioning. Maxwell
testified that on the way there, when driving by the location of the crime scene,
White hung his head low and appeared to be in distress, stating he had a lot on his
mind. A video recording of White’s interview with the Volusia County Sheriff’s
Department was played during trial for the jury. He consistently denied having
any involvement in the crime or being at the crime scene, even when confronted
with evidence that his palm print was found at the scene in the victim’s blood.
White took the stand at his trial. He admitted that he had five previous
felony convictions. He claimed that he went to the victim’s house that morning
with the intention of speaking with his son, not of causing a fight. When White
went outside, he got into a scuffle with the victim and she lost her footing and fell
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to the ground. When the victim was on the ground, he grabbed her phone and then
left. Though he had a bottle of beer in his possession and had been drinking that
night, he stated he did not throw a beer bottle at the victim. When White left the
victim’s home, he went to his girlfriend’s home in Orlando. He spoke with the
victim on his way back and she seemed angry and irritated with him. They had
planned to meet at the Miami Subs location so he could return her phone. Before
they met, White looked through the victim’s phone and saw that she had been
having romantic relationships and “angry conversations” with a variety of men
through text messaging. When he got to the Miami Subs location, he found the
victim’s body in front of the store and saw a lot of blood. White testified that he
went to the location with the intention only of returning her phone and testified that
he did not have any intention to harm or get in a fight with the victim, as
evidenced, he claimed, by the fact that he did not bring a weapon with him. When
he saw the victim’s body, he went to her and yelled her name trying to elicit a
response. When he realized she was dead, he panicked and then left and went back
home. White did not call the police or tell the detectives during his interview
about discovering the victim’s body or being present at the crime scene because he
did not trust them and knew he would be the prime suspect in the case. The jury
found the defendant guilty of first-degree murder.
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At the penalty phase, the State presented four witnesses: fingerprint analyst
Jerri Cabral; medical examiner Marie Herrmann; Investigator Don Maxwell; and
victim advocate Pam Theiss. The fingerprint analyst testified that the fingerprints
she obtained from White matched fingerprints on three certified prior violent
felony convictions. The medical examiner testified again during the penalty phase
of the trial, adding to her previous testimony information regarding the victim’s
physical and emotional pain, consciousness during the attack, and defensive
wounds. The medical examiner testified that the victim had a total of five
defensive wounds on her hands. She also testified that the victim would have
experienced extreme emotional and physical pain and could have been conscious
for up to sixty seconds after she was first attacked. The investigator, Don
Maxwell, testified that he had reported to the victim’s home in February of 2011,
after she had gotten into an altercation with White. White was charged with felony
battery and domestic violent strangulation following the February 2011 incident.
Finally, the victim advocate read a victim impact statement written by the victim’s
and White’s eldest daughter, Kiara Rucker.
The defense presented three witnesses: White’s brother, Lee White, his sister
Felicia White, and a close family friend and counselor, Richard Danner. White’s
family testified that he had a great personality, was a comedian, played instruments
in middle school, was involved in the Police Explorers, and loved and spent time
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with his children. White’s sister testified that their father was absent in their lives,
though they knew who he was. White’s brother testified that their mother was
strict and used corporal punishment. The defense also introduced family photos of
White growing up. Richard Danner testified that he had known White for a long
time. He had counseled White and convinced him to marry the victim. White
often helped Danner counsel young men to keep them from going down the same
path taken by White. Danner also testified that White loved his children very
much and was very involved in their lives. The State questioned Danner regarding
White’s three previous felony convictions: a 1988 aggravated assault conviction, in
which White pulled a shotgun on a woman in a laundry room; a 1992 aggravated
assault conviction, in which White pulled a gun on a roommate over an argument;
and a 1993 aggravated battery conviction, in which White hit the victim in this
case, Sarah Rucker, over the head with a bottle while she was pregnant with her
and White’s eldest son.
The trial court instructed the jury on three aggravating factors: (1) that White
had a prior violent felony; (2) that the murder was especially heinous, atrocious, or
cruel (HAC); (3) and that White committed the murder to avoid arrest.
Additionally, the trial court instructed the jury on two statutory mitigating
circumstances: (1) extreme emotional disturbance; and (2) other factors in the
defendant’s background that would mitigate against imposition of the death
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penalty, and seven nonstatutory mitigating circumstances based on White’s
character, background, life, and other circumstances of the offense. The jury
recommended death by a vote of eight to four.
At the Spencer1 hearing, which took place on January 6, 2015, White waived
his right to present any new evidence and to make a statement. The State also did
not present additional evidence.
In sentencing White, the trial court found two of the three aggravating
factors on which it instructed the jury: (1) the crime was committed by a person
previously convicted of a prior violent felony (great weight); and (2) the murder
was especially heinous, atrocious, or cruel (great weight). The trial court noted in
particular that White’s prior violent felonies were three separate events, one of
which involved the victim in this case, and one of which the evidence showed that
but for the intervention of White’s brother, he would have shot that victim. The
trial court found that the State failed to prove that the murder was committed for
the purpose of avoiding arrest, and therefore gave that aggravating factor no
weight.
The trial court rejected the statutory mitigating circumstance that the crime
was committed while the defendant was under the influence of extreme emotional
1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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or mental disturbance. However, the court did find the nonstatutory mitigating
circumstance of mental or emotional disturbance, but did not deem the emotional
disturbance “extreme,” and gave it little weight. The trial court found that the
statutory mitigating circumstance that there were other factors in the defendant’s
background that would mitigate against imposition of the death penalty was proven
and gave it little weight.
In addition, the trial court found that White had proven the following non-
statutory mitigating circumstances and gave each little weight: (1) the defendant
was abandoned at an early age by his father; (2) the defendant grew up without his
father and was raised by his mother; (3) the defendant was a good student and
member of the Police Explorers; (4) the defendant has family and friends who care
for him and love him; (5) the defendant participated in the lives of his children; (6)
the defendant helped to counsel young men; (7) the defendant manifested
appropriate courtroom behavior throughout the pendency of the penalty and guilt
phases of the trial. The trial court concluded that the aggravating circumstances
outweighed the mitigating circumstances. Accordingly, the trial court sentenced
White to death.
ANALYSIS
White’s counsel raises four claims on appeal: (1) White’s sentence of death
should be reversed based on Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616
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(2016); (2) the State presented insufficient evidence to support his conviction; (3)
the HAC jury instruction is unconstitutional; and (4) White’s sentence of death is
disproportionate. We address the sufficiency of the evidence and then address
White’s claim under Hurst v. Florida.2 Because we conclude that White’s sentence
should be reversed under Hurst, we do not address the other penalty phase
arguments.
I. Sufficiency of the Evidence
White argues that the evidence presented by the State was insufficient to
support his first-degree murder conviction. “In determining the sufficiency of the
evidence, the question is whether, after viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So. 2d
1100, 1111 (Fla. 2006) (quoting Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).
Here, where the evidence presented by the State is wholly circumstantial, the Court
“must determine not only whether the State has proven the ‘elements of the crime
beyond a reasonable doubt,’ but also whether the record contains ‘competent
substantial evidence which is inconsistent with the defendant’s theory of events.’ ”
2. White filed numerous pretrial motions, including one to declare Florida’s
death penalty unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002).
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Hodgkins v. State, 175 So. 3d 741, 751 (Fla. 2015) (quoting Johnston v. State, 863
So. 2d 271, 283 (Fla. 2003)).
White argues the State did not present a single piece of evidence that clearly
negates White’s hypothesis of innocence that someone else committed the crime
and that he merely found the victim after she was already deceased. He asserts that
this case is analogous to Hodgkins, where the Court reversed Hodgkins’ murder
conviction when the circumstantial evidence of Hodgkins’ DNA being under the
victim’s fingernails was insufficient to overcome Hodgkins’ reasonable hypothesis
of innocence that someone else killed the victim. 175 So. 3d at 750. The defense’s
theory of events is that White was at the murder scene, but, as he testified at trial,
only after the victim was already deceased. White fled and did not call the police
because he knew he would be the prime suspect and did not trust the police. White
testified that when he stole the victim’s phone, he saw “angry conversations” with
other men she had been dating, and the defense offered the theory that perhaps
when the victim left her house that morning she was going to meet another man,
who killed her.
The State has produced competent, substantial evidence that is inconsistent
with White’s theory of events. The State presented evidence that White went to
the victim’s home around two a.m. on the date of the offense. At her home, White
got in an altercation with the victim and stole her cell phone. The victim left the
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home with her son’s phone, traveling towards White’s residence in Orlando, after
emphasizing to the 911 operator how important it was that she have her phone and
that she needed to get it back. Around three a.m., White spoke with the victim in a
call that lasted more than nine minutes and then began traveling towards the Miami
Subs location, which would ultimately be the crime scene. Further, White
admitted to being at the crime scene. White’s palm print was found in the victim’s
blood on a window sill directly above the victim’s head. White always carried a
pocket knife with him, which the police could not find after arresting him. Upon
entering White’s home to interview him, a female detective noticed a bottle of
bleach on the counter in the bathroom and smelled the odor of bleach coming from
the bathroom. White consistently denied being at the crime scene to police during
his interview, and did not admit he was there until trial. Finally, White and the
victim had a history of violence in their relationship.
Taken together, this circumstantial evidence rebuts White’s presumption that
the victim was murdered by an angry lover. There was simply no evidence
adduced at trial, other than White’s testimony, that he saw “angry conversations”
on the victim’s phone that would tend to corroborate White’s theory of the murder.
By contrast, the State presented, as White characterizes it, a “large volume” of
circumstantial evidence that points to White as the murderer, and in doing so,
rebuts his theory. The relationship between White and the victim, the history of
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violence, the altercation within hours of the victim’s death, and the cell phone
records showing calls between White and the victim just minutes before her death
all indicate that it was White, and not some other angry lover, who murdered the
victim.
Hodgkins is distinguishable from this case. In Hodgkins, this Court found
that the evidence under the victim’s fingernails pointed only to the fact that the
defendant had been with the victim at some point before she was murdered. 175
So. 3d at 748. There was, however, no other evidence to put the defendant at the
crime scene around the time of victim’s death or any evidence of animosity
between the defendant and the victim. Id. at 748-49. By contrast, in this case,
there was a pattern of previous violence between White and the victim. Further,
White admits to being at the crime scene in close proximity to the time when the
victim was killed, which is supported by the fact that his palm print was found in
her blood directly above her head. Thus, this case is distinguishable from the facts
in Hodgkins.
II. Hurst v. Florida and Hurst
The next issue addressed is whether White is entitled to Hurst relief. New
rules of law announced by this Court or the United States Supreme Court generally
apply to all cases that are pending on direct review or are otherwise not final. State
v. Johnson, 122 So. 3d 856, 861 (Fla. 2013) (citing Griffith v. Kentucky, 479 U.S.
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314, 328 (1987); Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992)). Therefore,
Hurst applies to this case, which is before this Court on direct appeal.
White filed a pretrial motion seeking relief based on Ring, which the trial
court denied. He now argues that his death sentence was imposed in violation of
Hurst v. Florida, and, as a result, his death sentence must be commuted to a life
sentence pursuant to section 775.082(2), Florida Statutes (2011). Alternatively,
White argues that he must be sentenced to life imprisonment because Hurst v.
Florida error is structural and therefore not amenable to harmless error review.
The State argues that no error occurred at all in this case, but if it did, it was
harmless.
In Hurst, this Court determined that, in order for the trial court to
constitutionally impose a sentence of death, the jury must unanimously find all
facts necessary to impose a sentence of death and unanimously recommend a
sentence of death. Hurst, 202 So. 3d at 44. Thus, there is no question whether
there was Hurst error in White’s case because the jury issued only an advisory
recommendation of death by a vote of eight to four and did not make any of the
factual findings required by this Court in Hurst. Accordingly, the issue before this
Court is whether the Hurst error in White’s case was harmless. On remand, in
Hurst, we held that Hurst error is capable of harmless error review. Id. at 66. As
applied to the right to a jury trial, it must be clear beyond a reasonable doubt that
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the jury’s failure to unanimously find all the facts necessary for imposition of the
death penalty did not contribute to White’s death sentence. See id. at 65-67.
We cannot conclude that the Hurst error in White’s case was harmless
beyond a reasonable doubt. The jury in this case did not make any of the requisite
factual findings and recommended death by only a vote of eight to four.
Additionally, it should be noted that even though White had three prior violent
felony convictions, all of these convictions were between 18 and 24 years prior to
the date of the offense in this case. White was 18, 22, and 23 years old,
respectively, when he committed the previous crimes, and the prior felonies
involved three separate incidents. Although we can conclude that the prior violent
felony aggravating factor was found unanimously, this Court has no way of
knowing if the jury unanimously found HAC, whether the aggravating factors were
sufficient to impose death, or whether the aggravating factors outweighed the
mitigating circumstances. Also of significance in this case is that the trial court
submitted the avoid arrest aggravator to the jury but then did not “find” that the
aggravator was proven and therefore did not consider it, so there is no way of
knowing if the jury found that aggravator because there was no special verdict
form.
Simply put, any attempt by this Court to determine why four jurors voted for
life and eight jurors voted for death is mere speculation without more information
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and certainly does not rise to the level of proof beyond a reasonable doubt. For
these reasons, we conclude that the Hurst error in this case was not harmless
beyond a reasonable doubt and, therefore, White’s case should be remanded for a
new penalty phase.
CONCLUSION
Accordingly, we affirm White’s first-degree murder conviction but vacate
his sentence of death and remand the case to the circuit court for a new penalty
phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, POLSTON, and LAWSON, 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.
An Appeal from the Circuit Court in and for Seminole County,
Kenneth Russell Lester, Judge - Case No. 592011CF004012A000XX
James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender,
Seventh Judicial Circuit, Daytona Beach, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Vivian Singleton,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee
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