DC# 082284
DOB: 07/02/61
Seventh Judicial Circuit,
Volusia County Case # 81-1957
Sentencing Judge: The Honorable
S. James Foxman
Trial Attorney: Peyton Quarles –
Assistant Public Defender
Attorney, Direct Appeal: Michael
Becker – Assistant Public Defender
Collateral Attorney: Jeremy
Epstein, John Hamilton, & Leon Handley – Private
Date of Offense:
05/29/81
Date of Sentence:
03/01/82
Circumstances of the Offense:
On May 29th, 1981, a
customer entered a convenience store in Daytona Beach shortly after 3
a.m. and found the store clerk’s dead body lying on the floor behind the
front register counter.
A newspaper distribution man arrived at the
store shortly after the customer and together, they called the police.
When the police arrived, they discovered a hold-up note requesting
money.
The store clerk was shot three times and the medical examiner
testified that the clerk was only alive for about one minute after he
was shot. The total amount missing from the cash register was $23.34.
Two weeks after the
aforementioned robbery and murder, Herring was observed entering and
exiting a car that had been stolen in a different convenience store
robbery.
Herring was subsequently arrested and taken to the Daytona
Beach Police Department where he was interrogated. Herring was
questioned about several other robberies, including the robbery on May
29th.
Herring claimed in his first statement that he had
premeditated the robbery and prepared a hold-up note, but things did not
go as planned. He stated that when he was approaching the counter, a
different man proceeded to the counter with a gun and asked the clerk
for money. Once the money was given to him, he demanded that the clerk
lie on the floor.
Herring claims that as all of this was occurring, he
backed down the aisle looking for cover, and then the other man shot and
killed the clerk and promptly left the store. This statement was taped.
An investigating officer
testified that Herring asked to speak with him privately after he made
his first statement. Herring admitted to the officer that he did indeed
kill the clerk and that the story he had just told them was false.
Herring also told the officer that he shot the clerk a second time to
keep him from testifying against him. Herring denied at trial that the
conversation ever took place.
Herring made a third statement
later in the investigation, which was also taped. This time, Herring
stated that upon entering the store, he asked the clerk for cigarettes,
and then gave him the hold-up note. Herring said that the clerk made a
movement that looked as if he was going to grab for the gun. Herring
then admitted to shooting the clerk once in the head and a second time
when he hit the floor.
During trial, Herring testified
that the last statement was made only to appease the police officers
because they were harassing him. Herring did testify that he wrote the
hold-up note and experts identified his fingerprints on the note.
Additional Information:
Herring was found guilty of a
May 11th, 1981 robbery and sentenced to 25 years in prison.
Trial Summary:
06/30/81 Defendant
indicted with the following:
Count I: First-Degree Murder
Count II: Robbery with a Deadly Weapon
02/25/82 Defendant was
found guilty by the trial jury on both counts
02/26/82 The jury
recommended Death by a vote of 8 to 4
03/03/82 Defendant was
sentenced as follows:
Count I: First-Degree Murder –
Death
Count II: Robbery with a Deadly Weapon
– 99 years
Case
Information:
A Direct Appeal was filed with
the Florida Supreme Court (FSC) on 04/26/82. Some of the issues raised
included: (1) whether the trial court erred by excusing one of the
prospective jurors for cause; (2) whether the trial court erred by
refusing to allow testimony by attorneys who represented other murder
defendants in similar cases that were able to obtain life sentences.
The FSC found all of the claims either without merit or harmless and
affirmed the conviction and sentence of death on 02/02/84.
A Petition for Writ of
Certiorari was filed with the United States Supreme Court (USSC) on
06/11/84 and denied on 11/05/84.
A 3.850 motion was filed with
the circuit court on 04/04/85 and denied on 07/24/85.
A 3.850 Appeal was filed with
the FSC on 08/15/85. The FSC deemed that all of the issues raised were
improper for a 3.850 Appeal and thus affirmed the trial court’s denial
of relief on 12/30/86.
A Petition for Writ of Habeas
Corpus was filed with the FSC on 03/10/87. Issues raised included: (1)
whether the trial court erred in allowing the admission of statements
made by Herring to a probation officer while in custody; (2) whether the
cold, calculated, and premeditated aggravating circumstance applied to
Herring’s case. The FSC found all of the claims either without merit or
harmless, thus denying the Habeas Corpus on 06/23/88.
A Petition for Writ of Habeas
Corpus was filed with the United States District Court on 09/09/88, but
the petition was dismissed on 02/16/89.
A 3.850 was filed with the
circuit court on 03/10/89 and denied on 11/05/89.
A 3.850 Appeal was filed with
the FSC on 12/26/89. The FSC remanded the case to the circuit court for
an evidentiary hearing on the grounds of whether Herring’s public
defender’s service as a special duty sheriff affected his ability to
provide effective legal assistance. Relief was denied on all other
grounds on 05/02/91.
Another 3.850 Appeal was filed
with the FSC on 04/26/93. The circuit court’s denial of the 3.850 was
vacated on 03/07/96. The FSC determined the trial court erred in not
allowing Herring an individual hearing in addition to other due process
violations.
The circuit court received the
3.850 on remand on 08/09/96 and denied the motion on 01/31/97.
A 3.850 Appeal was filed with
the FSC on 02/21/97. The FSC affirmed the trial court’s denial of the
3.850 on 09/24/98.
A Petition for Writ of
Certiorari was filed with the USSC on 03/18/99 and denied on 06/14/99.
A Petition for Writ of Habeas
Corpus was filed with the USDC on 11/03/99 and denied on 04/14/03.
A Habeas Appeal was filed with
the United States Court of Appeals on 05/14/03. On 01/31/05, the USCA
affirmed the denial of the Petition.
A 3.851 Motion was filed with
the circuit court on 06/20/03, and an Evidentiary Hearing was held on
11/02/05. The motion is currently pending.
A Petition for Writ of Habeas
Corpus was filed with the FSC on 06/24/03 and was denied on 12/10/03.
A Petition for Writ of
Certiorari was filed with the U.S. Supreme Court on 03/09/04 and denied
on 05/17/04.
A Petition for Writ of
Certiorari was filed with the U.S. Supreme Court on 06/27/05 that was
denied on 10/03/05.
FloridaCapitalCases.state.fl.us
