Herring v. State
| Decision Date | 02 February 1984 |
| Docket Number | No. 61994,61994 |
| Citation | 446 So.2d 1049 |
| Parties | Ted HERRING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant, Ted Herring, was convicted of armed robbery and the first-degree murder of a convenience store clerk. In accordance with the jury's advisory recommendation, the trial judge imposed the death sentence. We have jurisdiction, 1 and affirm the conviction and sentence of death.
The following are the relevant facts. Shortly after 3:00 a.m. on May 29, 1981, a customer entered a Daytona Beach convenience store and found the store clerk dead. The clerk's body was lying on the floor behind the cash register counter. The customer and a newspaper distribution man who had arrived at the store called the police. In investigating the crime scene, the police found a note on the counter which read:
This is a hole-up put all the money in a papper bag change to then lay flat on the floor are get shot [sic].
A medical examiner testified that the store clerk suffered three gunshot wounds: (1) a wound to the left side of the head just forward of the left ear; (2) a wound to the left side of the neck; and (3) a wound to the palm of the left hand with an exit wound on the back side of the hand. The examiner also testified that the wound which caused the clerk's death was the wound to the head and that the clerk survived for no longer than a minute. It was determined that $23.34 was missing from the cash register.
Approximately two weeks after the robbery-murder, Herring was arrested after he was observed entering and exiting a vehicle which had been stolen in another convenience store robbery. He was taken to the Daytona Beach Police Department, where he was advised of his Miranda rights. Herring signed a written waiver of his Miranda rights and was interrogated by detectives. During the course of the interrogation, he was asked about several armed robberies, including the May 29 convenience store robbery-murder. A judgment of guilty in one of these other armed robberies was entered against appellant on January 8, 1982. Appellant, in his first statement, which was taped, told the detectives that he planned to rob the convenience store and prepared a holdup note which directed the clerk to turn over money or be shot. He claimed that when he proceeded to the counter, a second man came to the counter, pulled a gun, demanded money from the clerk, and then, after he was given the money, told the clerk to lie on the floor. As this occurred, Herring stated, he backed down the aisle of the store seeking cover and, while he was doing so, the other man shot the clerk twice and left the store. He stated he then ran from the store.
One of the investigating officers testified that after making this statement Herring asked to speak to the officer privately; that during this private conversation, Herring admitted that he killed the clerk and that his previous story was untrue. The officer also testified that during this conversation Herring said that he shot the clerk a second time to prevent him from being a witness against him. At trial, Herring denied that this conversation occurred.
Later in the interrogation, Herring made a third statement, which was taped. In this statement Herring confessed that he went to the convenience store with a gun, asked the clerk for cigarettes, and presented the holdup note. According to Herring, the clerk made a movement as if he were going to grab for the gun. Herring admitted that he then shot the clerk once in the head and once again after the clerk fell to the floor.
Herring testified that this third statement was given only because the police were harassing him. He admitted writing the holdup note, however, and one of the fingerprints on the note was identified as the appellant's.
At the conclusion of the guilt phase of the trial, the jury found appellant guilty of armed robbery and first-degree murder.
In the penalty phase of the trial, the state put into evidence a certified copy of the judgment and sentence for the prior unrelated robbery with a firearm, which judgment was entered on January 8, 1982. The state also presented the testimony of a probation and parole officer who had spoken to Herring in June, 1981, concerning the murder. She testified that Herring denied committing the murder but that he also commented that the man "got what he deserved for trying to play hero" and that the victim's death meant "one less cracker."
Appellant's mother testified on his behalf and stated that she and the appellant's father were divorced when the appellant was four years of age; that the appellant was treated for psychological problems and was diagnosed as hyperactive with learning disabilities; and that the appellant, who dropped out of school after completing the fifth grade, has an IQ of eighty. The appellant also attempted to present the testimony of three attorneys who had represented persons charged with first-degree murder who received life sentences after pleading guilty. This testimony was rejected by the trial court. The trial court also rejected the proffer of two poems authored by the appellant which were contained in a clinical report written about him. No testimony was proffered concerning the report, nor was the person who prepared the report called to testify.
By an eight-to-four vote the jury recommended the imposition of the death penalty. The trial judge imposed the death penalty, finding four aggravating and two mitigating circumstances. The aggravating circumstances found by the trial judge were: (1) that appellant had previously been convicted of a robbery with a firearm, a felony involving the use or threat of violence to a person; (2) that the murder was committed while appellant was engaged in the commission of a robbery; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. In mitigation, the trial judge found (1) that the appellant had a difficult childhood and had learning disabilities, and (2) that he was nineteen years old at the time of the crime.
The appellant's only contention of error with regard to the guilt phase of his trial is that the trial judge erred in excusing one of the prospective jurors for cause. Appellant asserts that he is entitled to a new trial because, in excusing this juror, the trial judge incorrectly applied the test for excusing death-scrupled jurors set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree.
The prospective juror, during the course of the voir dire examination, stated that he was opposed to the imposition of the death penalty under any circumstances, and that although he could possibly change his mind, at the moment he did not know of any circumstance which would cause him to change his mind. The prospective juror's specific responses to inquiry by the court and counsel were as follows:
Counsel, I'm going to open it up to question by the State and the Defense.
Imagine, if you will, that the Defendant on trial for murder were Adolph Hitler or Idi Amin who caused the cold-blooded murder and death of millions of people. If that were true and if either one of these people were found guilty of murder in the first degree, would you consider the death penalty?
To continue reading
Request your trial
-
Geralds v. Inch
...the circumstances of the offense in issue." Hess v. State, 794 So. 2d 1249, 1269 (Fla. 2001) (emphasis added) (quoting Herring v. State, 446 So. 2d 1049, 1056 (Fla. 1984), receded from on other grounds by Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987)).Geralds also argues that because of ......
-
Swafford v. State
...419 So.2d 312, 315 n. 2 (Fla.1982). It is not necessary that an arrest be imminent at the time of the murder. See, e.g., Herring v. State, 446 So.2d 1049 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984); Riley v. State, 366 So.2d 19 Although some decisions have appro......
-
Wainwright v. Witt
...954 (CA11 1983); O'Bryan v. Estelle, 691 F.2d 706, 709 (CA5 1982); Burns v. Estelle, 626 F.2d 396, 397-398 (CA5 1980); Herring v. State, 446 So.2d 1049, 1055 (Fla.1984); People v. Velasquez, 28 Cal.3d 461, 171 Cal.Rptr. 507, 622 P.2d 952 (1980); People v. Gaines, 88 Ill.2d 342, 351-352, 58 ......
-
Jackson v. State
...denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). Such cases can be found in most state reporters. See, e.g., Herring v. State, 446 So.2d 1049 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984); Clay v. State, 143 Fla. 204, 196 So. 462 (1940) (upholding a d......