Hess v. State

• Decision Date: 17 May 2001
• Docket Number: No. SC90026.,SC90026.
• Citation: 794 So.2d 1249
• Parties: John HESS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

794 So.2d 1249

John HESS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. SC90026.

Supreme Court of Florida.

May 17, 2001.

Rehearing Denied August 30, 2001.

James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant/Cross-Appellee.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee/Cross-Appellant.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death sentence upon John Hess. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Hess's conviction for first-degree murder, but vacate his sentence of death.

I. FACTS

Appellant was convicted of the murder of John Galloway. Although an initial suspect, appellant was not arrested for the crime until over two years after the murder. The circumstances of the crime and the appellant's involvement as reflected in the evidence presented at trial may be characterized as unusual, if not bizarre. The victim was a security guard at Lake Fairways, a residential community in Fort Myers. On the evening of May 11, 1993, Mr. Galloway was on duty at the post that guarded the entrance to the community. Another guard found Mr. Galloway's dead body just outside the guard post at 1:15 a.m. Mr. Galloway had been killed by a gunshot.

The State presented evidence to establish that the shooting occurred near midnight. The medical examiner testified that the cause of death was a gunshot wound to the chest and that death would have followed almost immediately. The path of the bullet was back-to-front and left-to-right, with very little vertical movement. In addition to the projectile located in Mr. Galloway's chest, a second copper-colored projectile was located close to the body and a ricochet mark was located on the wall of the guardhouse. The gun used in the murder was never discovered. Mr. Galloway's left front pants pocket was pulled out.

The victim's widow testified that a camel-colored, tri-fold wallet which Mr. Galloway regularly carried was missing. In the wallet were several credit cards including a Shell gasoline credit card, an automated teller machine (ATM) card, and a MasterCard. The Shell credit card was used a short time after the homicide at a Shell station in Fort Myers where appellant's wife worked. An unsuccessful attempt was made to use the ATM card at a bank in south Fort Myers shortly after 1 a.m. and the MasterCard was used to rent a motel room at approximately 4 a.m. in Everglades City.

On May 10, 1993, two days before the homicide, appellant began working at Omar Security. Michael Warren, a manager at Omar Security, testified that on that date appellant told him about a security guard who was shot while on duty the previous evening at a bus garage for the Lee County school system in Fort Myers. Geraldine Lindsay, a security guard who overheard the conversation from another room, testified that her recollection was that appellant said the guard was shot at a security booth in Lee County rather than at the bus garage. Warren also testified that Hess told him many stories which Warren paid little attention to.

On May 12, 1993, when Michael Warren read about Mr. Galloway's death, he contacted the Lee County Sheriffs Department and spoke with Gil Allen, the deputy in charge of the Galloway homicide investigation. Deputy Allen arranged for Mr. Warren and an undercover agent from the sheriffs office, equipped with an electronic recording device, to get appellant to repeat the statements he had made to Mr. Warren. The appellant repeated the statements to Warren at a Target store where appellant was performing security services and a recording of this conversation was admitted into evidence at trial.

Appellant also gave numerous conflicting and confusing statements to the police about the shooting. The first occurred on May 14, 1993, with Deputy Allen at the Lee County Sheriff's Department where appellant stated that he was home with his wife on the night of the murder and had heard two gunshots that night from his home. Deputy Allen knew this was not possible since appellant lived approximately eight miles from Lake Fairways. Appellant also stated that he monitored the guards' routine at Lake Fairways and he described in detail the entrance guard post and surrounding area. He also stated that Mr. Galloway was not armed while on duty. During the course of the interview, Deputy Allen asked appellant to hypothesize his opinion as to what might possibly have happened. Appellant opined: (1) that the guard would have come outside of his shack to address the intruder; (2) that two shots were fired; (3) that the guard was shot in the chest, dying instantly; and (4) that the guard fell straight on his back.¹

Appellant also told Allen that he learned of Mr. Galloway's death on a citizens band (CB) radio. However, when Allen confronted appellant about his prior statements to Mr. Warren, appellant changed his story and said that another security guard had told him about the killing. When Deputy Allen challenged this statement, appellant said that he believed Lloyd Sawyer, a security guard who worked with him at his previous employment, killed Mr. Galloway in a competitive effort to scare away the current security service. On May 15, 1993, appellant contacted Allen and recounted the statement he had made about the CB and Mr. Sawyer. He also told Allen that he had made up the story he originally told Warren.

Some time later appellant again contacted the police and told them of dreams he had of the murder. In these dreams, appellant saw someone pull a gun on the victim and demand money. The guard then gave the robber his wallet and when the guard made a move toward a phone the killer shot at him. When the two began to struggle, another shot was fired that hit the guard in the chest. According to appellant, after the murder the killer ran to his car, where he met with his partner, a male. The two left in a car together. Appellant indicated that the guard's wallet was a tri-fold wallet. Inside the wallet they found an ATM card. The killer cut the ATM card into several pieces after several unsuccessful attempts to use the card. The killer dropped his partner off at an undisclosed location and gave him the wallet with the remaining credit cards. Appellant agreed to conduct a walk-through of the crime as seen in his dreams and an audiotape of the walk-through was admitted in evidence at trial.

Despite his suspicious and conflicting statements, appellant was not arrested or charged with the killing. Indeed, at trial, Deputy Allen testified that at that point in time he felt there was insufficient evidence linking appellant to the Galloway murder beyond appellant's statements. In fact, there was evidence that someone else driving a car unconnected to Hess may have been the killer. Deputy Allen testified that on June 17, 1993, he spoke with the night clerk of the Everglades City hotel where Mr. Galloway's credit card was used. Based on a description provided by the clerk, police distributed fliers looking for a white male in his late thirties or forties, approximately six feet tall, 190 pounds, with brown, slightly graying hair. The fliers noted that the suspect was driving a classic red Mustang. Deputy Allen stated that he followed up on this lead, but that it did not result in anything substantial. There were no witnesses to the shooting and none of the physical evidence obtained during the ensuing criminal investigation linked appellant to the crime. Further testing performed on handwriting samples taken from both appellant and his wife, as well as the gas station receipt and the motel receipt yielded inconclusive results. In addition, no wallet, credit cards, or weapon were ever located.

However, approximately two years after the Galloway death, appellant was arrested in Michigan on unrelated charges involving misconduct allegedly occurring in Florida and he agreed to return to Florida.² Upon returning to Lee County, Deputy Crone, who had since replaced Deputy Allen in the investigation, again interviewed appellant about the Galloway homicide after first advising him of his Miranda³ rights. In this interview appellant gave yet another confusing story that he and a person named Sawyer traveled to Lake Fairways to harass the security guard on duty in order to get the security contract for Lake Fairways. However, appellant stated that he stayed in the back seat of the car while Sawyer approached Galloway, shot him twice, and took his wallet. In a subsequent interview, appellant told a somewhat similar story with other details about witnessing the shooting.

On April 10, while at the Criminal Investigation Division of the Sheriffs Office, appellant asked to speak to Deputy Crone again for the purpose of "telling him the truth" about the Galloway murder.⁴ Shortly thereafter, Deputy Crone took a recorded statement from appellant after first advising him of his Miranda rights. Appellant indicated that he understood his rights and wanted to talk to Deputy Crone without a lawyer. In this statement, appellant admitted to shooting Mr. Galloway but described a shooting which was accidental, and claimed that Sawyer was not involved. Appellant told Deputy Crone that he had previously implicated Sawyer because he held a grudge against him. Appellant again agreed to do a walk-through of what happened. This walk-through was videotaped and shows that Deputy Crone began by reading appellant his Miranda rights. Appellant acknowledged his rights and then waived them. Appellant then stated that on the night of the murder he was wearing his security uniform from Omar Security and was on his way to relieve Mr. Galloway.⁵ Appellant had a gun in his left front pants pocket. When appellant reached the guard post he told Mr. Galloway that he was there to relieve him. Mr. Galloway...