AKA: Johnny L. Hill

DC #021641
DOB: 06/14/51

Seventh Judicial Circuit, Volusia County, Case #86-4473-A
Sentencing Judge: The Honorable Uriel Blount Jr.
Attorney, Trial: David R. Miller – Private
Attorney, Direct Appeal: Larry B. Henderson – Private
Attorney, Collateral Appeals: Linda McDermott – Registry

Date of Offense: 06/28/86

Date of Sentence: 09/26/87

Circumstances of Offense:

The defendant, Roger Lee Cherry, murdered an elderly couple during the commission of a burglary.

Around noon on June 28, 1986, the son of Leonard Wayne and Esther Wayne arrived at his parents’ home in Deland for a visit.  He noticed that the couple’s car was gone and the door to the house was ajar.  Upon entering the bedroom he discovered his parents lying on the floor, dead.  Autopsies revealed that Mrs. Wayne died of multiple blows to the head and that Mr. Wayne died of cardiac arrest.

At Cherry’s trial, state’s witness Lorraine Neloms testified that the defendant left the apartment they shared between 11 and 11:30 p.m. on June 27, saying that he needed some money.  He returned about an hour later with two or three rifles and a wallet containing a bankcard and a license identifying a man named Wayne.  She asked where he had been, and he responded that he went inside a home near the armory. 

She said Cherry told her that after entering the home Mrs. Wayne tried to fight him and that he pushed Mr. Cherry who then clutched his chest.  Neloms also testified that Cherry bled from a wound on his right thumb, which he stated was the result of cutting a line.

Cherry left the apartment twice more that evening.  The first time, he went to a bank and upon his return stated that a card was stuck in the automatic teller machine.  The second time, he left “to ditch the car he stole.”

A Sunbank supervisor testified that the ATM three blocks from the Wayne home captured a Master Card and a Sun Bank Card belonging to the Waynes on June 28, 1986.  An audit revealed that five or six transactions were unsuccessfully attempted between 1:55 and 2 a.m.

Police testimony indicated that the telephone wire outside the house has been cut and that blood had been discovered on a piece of discarded paper near the wire, on the walkway leading to the rear of the home, and on at least one of three jalousie panes found in a wooded thicket to the rear of the home.  The panes had been removed form the rear porch window.  Cherry’s blood was consistent with the blood found on the paper and the jalousie.

Cherry was arrested on July 2 at this home.  Police noted at that time that Cherry had a cut on his thumb, which he said was the result of having cut the head off a fish.

Additional information:

Cherry was previously convicted of numerous offenses, including that of robbery in 1971 and 1979.

09/25/87          As charged in the indictment, the defendant was convicted as followed: 

Count I: Burglary – guilty
Count II: Second-Degree Grand Theft – guilty
Count III: First-Degree Murder – guilty
Count IV: First-Degree Murder – guilty

09/26/87          Upon advisory sentence, the jury by a vote of 7 to 5 recommended the death penalty for the murder of Leonard Wayne, and by a vote of 9 to 3 recommended the death penalty for murder of Esther Wayne.

09/26/87          The defendant was sentenced as followed: 

Count I: Burglary – Life
Count II: Grand Theft (Second-Degree) - 5 years
Count III: First-Degree Murder – Death
Count IV: First-Degree Murder – Death. 

Cherry filed a Direct Appeal in the Florida Supreme Court in 1987.  In 1989, FSC affirmed the conviction and sentences.  The U.S. Supreme Court denied certiorari in 1990.

In 1992, the defendant filed a 3.850 motion with the trial court.  The court denied the motion in 1993.  Cherry appealed the order to the Florida Supreme Court in 1994.  The court rejected all of his 19 claims except for his argument that his trial counsel was ineffective during the penalty phase. 

In 1995, the court remanded for an evidentiary hearing on that claim.  After conducting a hearing, the trial court in 1997 again denied relief.  On appeal, the Florida Supreme Court affirmed.

In 1997, Cherry filed his second 3.850 Motion with the trial court.  The court denied the motion on 10/16/01, but granted an order for rehearing on 10/31/01. 

In 2001, Cherry was denied Certiorari by the United States Supreme Court.

On 12/28/01, Cherry filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court that was denied on 10/03/02.

After a rehearing was granted in Cherry’s second 3.850 Motion, the trial court held an evidentiary hearing on 06/24/02, and subsequently denied the motion on 08/12/02.  Cherry then filed an appeal in the Florida Supreme Court, which is currently pending.  On 11/19/04, the FSC relinquished jurisdiction to the Circuit Court to determine if Cherry is mentally retarded.