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.
On 11/19/04, the
Florida Supreme Court relinquished jurisdiction for a mental retardation
determination. On 10/12/05, the Circuit Court determined that Cherry
was not mentally retarded.
Trial Summary:
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.
The sentences
for Counts I and II were to run concurrent with each other.
Case
Information:
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.
On 4/19/02,
Cherry filed a third 3.850 Motion in the State Circuit Court and amended
the motion on 11/30/04, which is currently pending.
Floridacapitalcases.state.fl.us
