Donald William Dufour was convicted in two states of murders committed during robberies in the late summer and fall of 1982. In Mississippi, a Hinds County jury found him guilty of the capital murder of Earl Wayne Peeples, who was stabbed to death in Jackson on October 14, 1982, and sentenced him to death. In Florida, an Orange County jury convicted him in May 1984 of the first-degree murder of Zack Miller, who was shot and killed in Orlando in September 1982, and a judge sentenced him to death on July 3, 1984. In 1986 he pleaded no contest to the first-degree murder of a third man, Edward Wise, killed in Orlando on July 4, 1982, and received a life sentence. A murder charge over the death of Wise's companion, John Stinson, was dropped as part of that plea.
A fifth man, Daniel King, was killed in Jackson alongside Earl Peeples. The Florida Supreme Court has described Dufour as "involved in the robberies and murders" of both men, and his companion that night testified that he himself stabbed King. The court record shows no conviction of Dufour for King's death.
Dufour's appeals ran from 1983 into 2011. Two United States Supreme Court justices dissented when the court refused to hear his Mississippi appeal in 1986, and in Florida he argued for years that he was intellectually disabled and could not be executed. The Florida Supreme Court rejected that claim in 2011.
Dufour was born on March 22, 1956, according to the Florida Commission on Capital Cases. He was the youngest of four brothers. His family background was set out in detail in later court hearings, when his lawyers looked for evidence that might spare his life.
His father was a long-distance truck driver who had polio and was later hurt in accidents, one of which left a steel plate in his head. After that injury he lost his trucking license, and the oldest brother testified in 2002 that their father became violent and drank. The family moved often and money was short. One brother told a jury in 1984 that their father was "a mean and aggressive alcoholic." The Florida Supreme Court, summarizing the evidence in 2011, described a childhood marked by an alcoholic and abusive father, frequent violence in the home, other abuse, and heavy use of drugs and alcohol that started when Dufour was young.
He went to school in Lockhart, in Orange County. School records and his former teachers, called as witnesses decades later, painted a picture of a boy who struggled from the start. He had to repeat the second grade, and after that he was moved along through elementary school rather than promoted on his grades. A former English teacher testified that she had placed him in a basic class in seventh grade, the lowest level of coursework the school offered, and called him "probably one of the most immature students" she had taught. After two years of junior high he went to a vocational school, and he withdrew from school in the spring of 1971, according to his lawyers' 2009 brief.
His work history was thin. The Florida Supreme Court recorded that he found jobs with roofing and painting companies but kept them only a few months at a time. His lawyers wrote that he never held a job for more than a few months and that the jobs were menial. A stepsister said he had lived with her for about two years before he turned 18.
By the late 1970s Dufour was in the Florida prison system. What he had been convicted of has not been reported, but the Commission on Capital Cases lists four disciplinary entries from that time: disobeying an order at Lantana Correctional Institution in September 1978, and possessing negotiables and being in an unauthorized area at Marion Correctional Institution in 1980 and 1981. He lost 60 days of gain time in all.
He also earned a General Educational Development diploma while in prison in the 1970s and took a small-engine repair course. Those two facts became important decades later. The state argued that they showed he could learn and work, and so was not intellectually disabled; a court-appointed psychologist testified that Dufour had admitted cheating on the GED examination. When the case reached the Florida Supreme Court in 2011, the trial records also showed that prison staff had described him as an aide in a small-engine repair course and as having helped to develop a motorcycle repair course.
Edward Wise was killed in Orlando on July 4, 1982, the offense date given for the murder charge later brought against Dufour. John Stinson died in what the Florida Supreme Court later described as a double homicide. Dufour was charged with both killings. Little is known about either man, and the details of their deaths were never set out in the court opinions.
The case did not come to trial. On March 6, 1986, after he had already been sentenced to death for the murder of Zack Miller, Dufour pleaded no contest to the first-degree murder of Edward Wise and received a life sentence, according to the Commission on Capital Cases. The state dropped the charge for John Stinson's death as part of the plea. The Florida Supreme Court's 2011 opinion also records that he "pled no contest to the murder of Edward Wise." Its 2005 opinion, in a footnote, describes the Wise and Stinson killings as a double homicide committed in Florida before the Miller murder, and says he pleaded guilty to them after the penalty phase of the Miller trial.
Zack Miller died in Orlando on September 4, 1982. Little is known of him beyond his name; the court opinions give neither his age nor his work, and accounts of where he came from differ.
The evidence of what happened to him came from people around Dufour. His former girlfriend testified that on the evening of September 4, Dufour announced that he meant to rob and kill a man. The Florida Supreme Court later set out what the evidence at trial showed: Dufour robbed Miller and shot him, and took his car and jewelry.
The same witness testified that Dufour asked her to pick him up afterward and that he was wearing Miller's jewelry and going through the trunk of Miller's car. She helped him abandon the car. Robert Taylor, a close associate of Dufour's, bought some of the jewelry. A second associate heard Dufour describe the killing. He also quoted Dufour as saying that "anybody hears my voice or sees my face has got to die." Taylor helped him take the gun apart, and the second associate watched. Asked about the jewelry, Dufour told one acquaintance, "You couldn't afford it. It cost somebody a life," according to testimony quoted by the Florida Supreme Court.
The Florida case would take nearly two years to reach a jury. By then Dufour was already under sentence of death in another state.
Six weeks after Zack Miller's death, Dufour and Robert Taylor drove to Jackson, Mississippi. Taylor, who was wanted in Florida for armed robbery, later told a Mississippi jury that the two of them arrived around midnight on October 13, 1982, coming from Florida by way of Georgia. He said Dufour told him they were going to rob two men. Those men were later identified as Earl Wayne Peeples and Daniel King.
In the early hours of October 14, Peeples and King were stabbed to death in Jackson. Taylor, Dufour's admitted companion, testified that Dufour stabbed Peeples and that he himself stabbed King. He said Dufour demanded to know where Peeples kept his money. The Mississippi Supreme Court later pointed to that demand, to what Dufour had said beforehand and to the search for money to find that the killing happened during a robbery, the element that made it a capital crime.
A 16-year-old also testified about the evening.
Taylor was arrested while walking barefoot on a Jackson street. He admitted his part and was given a court-appointed lawyer. His plea agreement with prosecutors was put before the jury at Dufour's trial.
Dufour stayed in Jackson. He testified at his trial that he had slept in a car, then found a room in a boarding house, dyed his hair blond and kept out of sight. The 2011 Florida opinion describes the same step, saying he arranged to change his identity by having his dark hair cut and dyed.
On the night of October 29, 1982, a security guard at a lounge recognized his voice and called the police. City officers arrested Dufour at about 11:30 p.m., according to the Mississippi Supreme Court. He was held in Mississippi before the Florida charges went forward.
A Hinds County jury later convicted him.
A grand jury for the First Judicial District of Hinds County indicted Dufour for the capital murder of Earl Wayne Peeples. The indictment charged that he killed Peeples while committing a robbery, in the early morning of October 14, 1982. He was not charged in that indictment with Daniel King's death.
The trial was held in 1983 in two stages, one on guilt and one on sentence. Robert Taylor was the state's principal witness. The trial court excused a prospective juror who said she would not vote for death on the testimony of a co-defendant, a ruling Dufour later challenged on appeal. The jury found Dufour guilty. At the sentencing stage it found two aggravating circumstances, that the killing was committed during a robbery for pecuniary gain and that it fell within the statutory factor for killings that are especially atrocious or cruel, and it sentenced him to death. His lawyers filed a motion for a new trial on April 11, 1983, raising 21 grounds; it was denied.
Dufour's appointed lawyers called no evidence in mitigation at the penalty stage. A court-appointed psychiatrist had examined him only to decide whether he was competent to stand trial. That gap would be the basis of his later appeals.
The Supreme Court of Mississippi, sitting en banc, affirmed the conviction and death sentence on June 6, 1984, in an opinion by Justice Bowling. It rejected seven assignments of error: the refusal to pay for a defense investigator, the excusal of two prospective jurors who said they could not vote for death, the refusal to excuse a juror who had glanced at a newspaper article, the admission of photographs, and the claim that the state had not proved a robbery. On that last point the court found enough evidence in Dufour's statement before the killings, and in the search for money. Dufour raised no error in the sentencing phase. The court found that the evidence supported both aggravating circumstances and that the sentence was not disproportionate. It set Wednesday, July 11, 1984, as the date of execution. Rehearing was denied on July 25, 1984.
The United States Supreme Court declined to review the case on February 19, 1985. Dufour then filed a motion under Mississippi's new post-conviction statute on June 17, 1985. He argued that his lawyers had failed him in nine ways, among them by not finding mitigation witnesses and not asking for money for a psychological evaluation. The court found that his brothers in Florida had declined to come to Jackson or to become involved, that an examination had been ordered, and that he had not shown how any of the failings had changed the result. It denied the motion on December 18, 1985, in an opinion by Presiding Justice Roy Noble Lee, and denied rehearing on February 26, 1986.
On October 14, 1986, the United States Supreme Court again refused to take the case. Justices Brennan and Marshall dissented. Both repeated their view that the death penalty is always unconstitutional, and Marshall wrote separately on the facts. He argued that a poor defendant whose lawyer never sought a psychiatrist cannot prove what a psychiatrist would have found, so that the test for prejudice set by Strickland v. Washington becomes all but impossible to meet. He pointed to the affidavit of the psychiatrist who had examined Dufour for competency, who said that his examination had nothing to do with the far more extensive work needed to prepare mitigation evidence. Marshall added that a lawyer's failure to present any mitigating evidence at all is, in most cases, ineffective assistance.
The Mississippi death sentence did not stand. A list of Mississippi death-penalty appeals compiled by the state's Office of the State Public Defender records that Dufour was later granted post-conviction relief over the jury instruction on that atrocious-or-cruel aggravating circumstance and that he agreed to a sentence of life without parole. When that relief was granted is not known.
While Dufour was held in Mississippi, the Orange County case against him took shape. One of the associates who had heard him talk about the Miller killing became a named source in the affidavit for a search warrant, and the Florida Supreme Court later held that the affidavit established probable cause because the source was named and the detective had checked what he said independently. The lead detective in the case was Diane Payne. Dufour was charged with Miller's first-degree murder on January 20, 1983, and was arrested by Florida officers.
Evidence from the Orange County jail was also used against him. A fellow inmate, Henry Miller, who was held in the isolation cell next to Dufour's, went to the authorities on his own. He testified that Dufour had told him about the murder "in some detail" and had tried to arrange through him for the former girlfriend to be killed for $5,000. In return for his testimony Henry Miller received immunity from several armed robbery charges. He also passed on information about an escape attempt Dufour had planned from the jail, which the trial judge later cited when ordering him kept in leg shackles in court.
Before trial Dufour went on a hunger strike that ended with his being taken to a hospital while a pretrial hearing went on without him. The Florida Supreme Court held that he had chosen to be absent.
The trial in the Circuit Court for the Ninth Judicial Circuit took place in May 1984. Raymond Dvorak represented Dufour in the guilt phase, and Jay Cohen, a former prosecutor in private practice, handled the penalty phase. Frank Tamen led the prosecution with Dorothy Sedgwick as second chair.
Four witnesses carried the state's case: the former girlfriend, Robert Taylor, the associate who had become the detective's source, and Henry Miller. The defense theory was that Taylor, whom it described as the leader of Dufour's gang, had killed Zack Miller himself. The defense tried to question Taylor about his own pending charges and other crimes, and the trial court limited those questions; the state was allowed to use a statement Taylor had given in 1982 to answer the claim that he had made up his story later.
On May 31, 1984, the jury found Dufour guilty of first-degree murder.
At the penalty phase the state put the Mississippi case before the jury. Robert Taylor, over defense objection, described the killing of Earl Peeples in detail, and the Mississippi prosecutor, Thomas Mayfield, testified about the Mississippi trial, including a summary of the pathologist's evidence there. Photographs from Mississippi were admitted. The defense called one of Dufour's brothers, who described their father's drinking and violence and Dufour's early drug use, and the former girlfriend, whose testimony Dvorak hoped would have a "tremendous psychological impact on the jury." A psychiatrist the defense had retained before trial was not called, because his findings would not help and might open the door to evidence of the Florida killings.
The jury recommended death by a vote of 12 to 0. On July 3, 1984, Judge Michael F. Cycmanick sentenced Dufour to death. He found four aggravating circumstances: a prior conviction for a capital felony, the Mississippi murder; that the murder was committed during an armed robbery; that it was committed to avoid arrest; and that it was cold, calculated and premeditated. He found nothing in mitigation.
The Supreme Court of Florida affirmed the conviction and the death sentence on September 4, 1986, in an opinion by Justice Adkins. The court rejected challenges to the search warrant, to Henry Miller's testimony as a jailhouse informant, to the shackles, to the limits on cross-examining Taylor, to the prosecutor's closing argument and to the details of the Mississippi murder at the penalty phase.
It agreed with Dufour on one point. The evidence did not show that eliminating a witness was the dominant motive for the killing, so the "avoid arrest" aggravating circumstance had been wrongly found. The other three stood. Dufour's announcement that he intended to commit a murder, followed by what the court called an "execution-style" shooting, was enough to prove that the murder was cold, calculated and premeditated. With three valid aggravating circumstances and none in mitigation, the court upheld the death sentence. Rehearing was denied on October 27, 1986, and the United States Supreme Court declined review on February 23, 1987.
In March 1986, with his Florida appeal still pending, Dufour settled the remaining Orlando case. He pleaded no contest to the first-degree murder of Edward Wise and was sentenced to life imprisonment, and the charge over John Stinson's death was dropped. The plea added a third murder judgment to the two death sentences.
Dufour filed his first motion for postconviction relief in the Orange County circuit court on September 21, 1992. It was amended on October 16, 2001. The Commission on Capital Cases, in its review of delays in the case, pointed to the gap between the end of the direct appeal in 1987 and the 1992 filing, and to the more than ten years the motion then spent in the circuit court.
The court held an evidentiary hearing from November 18 to 21, 2002, on three claims: that his trial lawyers had been ineffective, that he had not received an adequate mental health evaluation, and that the authorities had destroyed evidence in bad faith. Both trial lawyers testified, as did both trial prosecutors, the former lead detective and the oldest Dufour brother, who had refused to take part in the 1984 trial.
The defense experts gave new opinions. Dr. Jonathan Lipman, a neuropharmacologist, described chronic intoxication and a possible organic brain syndrome. Dr. Robert Berland, a forensic psychologist, said Dufour had been under extreme emotional disturbance and less able to conform his conduct to the law, though he worked from incomplete records. Dr. Sherry Burg-Carter, a psychologist, could not say how substance abuse had affected the crime. For the state, Dr. Sidney Merin found only a mild neurocognitive impairment, not enough to leave Dufour unable to plan. All three experts diagnosed antisocial personality.
Dvorak testified that the psychiatrist he had hired before trial, Dr. Gutman, had found antisocial behavior, average intelligence and competence, and that his views were so firm there seemed no prospect of a better opinion elsewhere. The defense had also worried that calling a mental health expert would open the door to the Florida killings. Prison records from Lantana, which postconviction counsel said would have shown good behavior, in fact showed disciplinary problems and planned escape attempts.
On the evidence claim, Dufour's lawyers said that a hair found on a stick had been destroyed. The courts held that bad faith requires officers to destroy evidence they know would clear the defendant, and that neither the prosecutors nor the lead detective had any such knowledge.
The circuit court denied every claim on May 30, 2003. On April 14, 2005, the Florida Supreme Court affirmed in an unsigned opinion and, in the same decision, denied a separate habeas corpus petition claiming that his appellate lawyer had been ineffective. It found that the choices Dufour's trial lawyers made were reasonable strategy, that the new family and drug-abuse evidence repeated what the jury had already heard, and that the new expert opinions were not strongly favorable when set against aggravating circumstances that included a cold, calculated and premeditated murder. It held that testimony at trial about Dufour's personal life was relevant to motive and state of mind, and that any error in admitting it was harmless. The court had heard oral argument on October 6, 2004.
The courts of the time used the term "mental retardation." On November 24, 2004, Dufour filed a motion under the new Florida rule, Rule 3.203, asking the court to find that he was intellectually disabled. He amended it on August 9, 2005.
The Orange County circuit court held partial evidentiary hearings in August and October 2007, and his lawyers described a hearing that ran for eight days between August 2007 and February 2008. Former teachers from Lockhart described his school record. Former neighbors and relatives described a young man of limited ability. A death row neighbor said he "seemed slow"; a corrections officer said he was quiet and kept to himself. A prison librarian found no record of his asking for books.
The intelligence tests gave scores near the line. Dr. Valerie McClain, appointed by the court, measured a full-scale IQ of 67. Dr. Harry McClaren, also appointed by the court, measured 62, but the trial court found he did not trust his own result, since it fell below an earlier score when retesting would usually raise it, which suggested Dufour was not trying his best. Dr. Merin's 2002 test had given a full-scale score of 74; every expert found errors in how that test was given or scored, and the defense expert Dr. Denis Keyes put the corrected figure at 73. Keyes and McClain concluded that Dufour was intellectually disabled. McClaren and Merin concluded that he was not.
The state's case rested largely on Dufour's own record. It pointed to the GED, the small-engine repair course, his handling of an apartment lease and rent, household chores and personal hygiene. Prison records showed paperback books, playing cards and dictionaries among his property, and that he had filled out medical requests for a special diet and medicine to treat hepatitis C, though the evidence conflicted on whether others helped him. The trial court noted that some results suggested the possibility of malingering and found that he had good reason to do poorly on the tests to avoid execution.
On December 19, 2008, the circuit court denied the motion. It found that Dufour had not proved intellectual disability by clear and convincing evidence or even by a preponderance of the evidence, and that the problems in his adaptive functioning were explained by drug use and his home life rather than by disability.
The Florida Supreme Court heard argument on April 7, 2010, and decided the appeal, case SC09-262, on February 3, 2011. The court found that the trial court had made a mistake in the IQ analysis, by applying the standard error of measurement to Dr. McClain's score of 67, and that the mistake was not harmless on that point. But it upheld the separate finding that Dufour had not shown significant deficits in adaptive behavior, the second requirement for the claim, and so affirmed the denial. It did not decide whether the condition had begun before age 18, the third requirement, or his challenge to the state statute.
The vote was divided. Justices Lewis, Polston and Labarga joined the unsigned opinion, and Chief Justice Canady concurred in the result. Justice Pariente, joined by Justices Quince and Perry, concurred in part and dissented in part. She would have sent the case back for the trial court to look again, writing that it had concentrated on his strengths rather than his limitations, relied on information about the GED that was not in the record, and wrongly treated other possible causes of his deficits as ruling out disability. Dufour moved for rehearing on February 18, 2011; a revised opinion was issued.
On March 18, 2011, the Florida Commission on Capital Cases listed Dufour as under sentence of death for the murder of Zack Miller, with his motion for rehearing pending. The commission's record named his collateral counsel at the Capital Collateral Regional Counsel for the Middle Region. The commission gives his Department of Corrections number as 061222.
In Mississippi, the death sentence for the murder of Earl Wayne Peeples was later set aside on the sentencing instruction and replaced by an agreed sentence of life without parole, according to the state public defender's case list.
Robert Taylor, who testified against him in both states, was himself sentenced to death for a separate murder, according to the Commission on Capital Cases.
Daniel King. The Florida Supreme Court described Dufour as involved in the robbery and murder of King as well as Peeples, but the Mississippi indictment charged only the Peeples killing. Robert Taylor testified that he stabbed King himself. No judgment against Dufour for King's death appears in the court record.
John Stinson. Dufour was charged with Stinson's murder, but the charge was dropped when he pleaded no contest to the murder of Edward Wise. A footnote in the 2005 Florida opinion says he pleaded guilty to both killings; the Commission on Capital Cases says the Stinson charge was dropped. Without a conviction, Stinson's death is attributed to him by the charge alone.
The plea in the Wise case. The commission's record and the 2011 opinion call it a plea of no contest. The 2005 opinion calls it a guilty plea.
Zack Miller's home. Testimony at the Florida trial, recounted in the state's 2003 brief, described Miller as a man from Tennessee. The court opinions do not give his home town.
Who killed Zack Miller. At trial the defense argued that Robert Taylor, not Dufour, was the killer. The jury rejected that, and every appeal upheld the verdict.
Mental condition. The courts found Dufour competent and not intellectually disabled, but three Florida Supreme Court justices would have ordered the trial court to look at the disability claim again, and IQ scores ranged from 62 to 74.
March 22, 1956: Donald William Dufour born (Florida Commission on Capital Cases).
Spring 1971: withdraws from school, after attending school in Lockhart, Orange County, Florida.
1978 to 1981: in Florida prisons at Lantana and Marion correctional institutions; earns a GED while in prison in the 1970s.
July 4, 1982: Edward Wise killed in Orlando (offense date); John Stinson killed in the same double homicide, as the Florida Supreme Court described it.
September 4, 1982: Zack Miller killed in Orlando.
October 14, 1982: Earl Wayne Peeples and Daniel King killed in Jackson, Mississippi.
October 29, 1982: Dufour arrested by Jackson police at about 11:30 p.m.
January 20, 1983: charged in Orange County with Miller's first-degree murder.
1983: convicted in Hinds County of the capital murder of Peeples and sentenced to death; new-trial motion filed April 11, 1983.
May 31, 1984: Orange County jury finds him guilty of Miller's murder.
June 6, 1984: Mississippi Supreme Court affirms; rehearing denied July 25, 1984.
July 3, 1984: sentenced to death in Florida by Judge Michael F. Cycmanick, after a 12 to 0 jury recommendation.
February 19, 1985: United States Supreme Court declines to review the Mississippi conviction.
December 18, 1985: Mississippi Supreme Court denies post-conviction relief.
March 6, 1986: pleads no contest to the first-degree murder of Edward Wise; life sentence; Stinson charge dropped.
September 4, 1986: Florida Supreme Court affirms the Miller conviction and death sentence.
October 14, 1986: United States Supreme Court declines to review the Mississippi post-conviction case; Justices Brennan and Marshall dissent.
February 23, 1987: United States Supreme Court declines to review the Florida case.
September 21, 1992: first Florida postconviction motion filed.
November 18 to 21, 2002: evidentiary hearing in Orange County.
May 30, 2003: circuit court denies relief.
November 24, 2004: intellectual disability motion filed.
April 14, 2005: Florida Supreme Court affirms the denial of postconviction relief and denies habeas corpus.
December 19, 2008: circuit court rejects the intellectual disability claim.
April 7, 2010: oral argument in the Florida Supreme Court.
February 3, 2011: Florida Supreme Court affirms; three justices dissent in part.
March 18, 2011: listed as under sentence of death in Florida, with rehearing pending.
Date unknown: Mississippi post-conviction relief on the sentencing instruction; agreed sentence of life without parole.