Appendix — Herring v. Crosby

Stee

Gta

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix |

Appendix J

Appendix K

i

APPENDICES

3.5, Come, GONG. FY oc ci.s ccnecteces

U.S. Comet, Q0NME. V4 o5. 06s sveeaces

U.S. Const. amend. VIT] ............

U.S. Const. amend. XIV............

po BIR Some ye . | erry eye

FON, Gs OF TPR i cicccavessdevess

Pam. BOM. OF25 IGE on ccscasccenscaves

Herring v. Crosby, SC03-1144

CPU. SURED vcs svscnanasuceeeueerons

Findings Pursuant to F.S. 921.141 in

State v. Herring, No. 81-1957-CC

(Fla. Cir. Ct. Mar. 1, 1982) .........

Indictment in State v. Herring,

No. 81-1957-CC (Fla. Cir. Ct.

PUNE FG. TRE? Hi ritwioteecs,

February 26, 1982 Transcript of

Proceedings, Circuit Court, Seventh

Judicial District, In and For Volusia

County, Florida

10a

lla

18a

il

Appendix L Herring v. State, 580 So. 2d 135

Ei TOR ka nndlsestteorskaneoeenss 33a

Appendix M Petition for Writ of Habeas Corpus

in Herring v. Crosby, No. SC03-1144

CF UR. FUE 27) Bs vices devctexesce 43a

Appendix N Fla. Const. art. 1, § 22.............. 75a

Appendix O State v. Herring, No. 81-1957-CC,

slip. op. (Fla. Cir. Ct. July 24,

POE bc $k + kbdekssauereterenase eres 76a

la

APPENDIX A

The U.S. Constitution

Amendment V—Trial and Punishment, Compensation

for Takings.

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be sub-

ject for the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

2a

APPENDIX B

The U.S. Constitution

Amendment VI—Right to speedy trial, confrontation

of witnesses. ;

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of Counsel for his

defence.

3a

APPENDIX C

The U.S. Constitution

Amendment VIII—Cruel and Unusual punishment.

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

4a

APPENDIX D

The U.S. Constitution

Amendment XIV—Citizenship rights.

1. Alf persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the sev-

eral States according to their respective numbers, counting

the whole number of persons in each State, excluding Indi-

ans not taxed. But when the right to vote at any election for

the choice of electors for President and Vice-President of

the United States, Representatives in Congress, the Execu-

tive and Judicial officers of a State, or the members of the

Legislature thereof, is denied to any of the male inhabitants

of such State, being twenty-one years of age, and citizens

of the United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of rep-

resentation therein shall be reduced in the proportion which

the number of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in such

State.

3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice-President, or

Sa

hold any office, civil or military, under the United States,

or under any State, who, having previously taken an oath,

as a member of Congress, or as an officer of the United

States, or as a member of any State legislature, or as an

executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a

vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrec-

tion or rebellion, shall not be questioned. But neither the

United States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion against

the United States, or any claim for the loss or emancipation

of any slave; but all such debts, obligations and claims shall

be held illegal and void.

5. The Congress shall have power to enforce, by appro-

priate legislation, the provisions of this article.

6a

APPENDIX E

28 U.S.C. § 1257 states in relevant part:

(a) Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari where

the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being repug-

nant to the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or the

treaties or statutes of, or any commission held or authority

exercised under, the United States.

7a

APPENDIX F

Section 775.082 of the Florida Statutes states in relevant part:

(1) A person who has been convicted of a capital felony

shall be punished by death if the proceeding held to determine

sentence according to the procedure set forth in s. 921.141

results in findings by the court that such person shall be

punished by death, otherwise such person shall be pun-

ished by life imprisonment and shall be ineligible for

parole.

8a

APPENDIX G

Section 921.141 of the Florida Statutes states in relevant part:

(2) Advisory sentence by the jury.—After hearing all the

evidence, the jury shall deliberate and render an advisory

sentence to the court, based upon the following matters:

(a) Whether sufficient aggravating circumstances exist as

enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances exist which

outweigh the aggravating circumstances found to exist;

and

(c) Based on these considerations, whether the defendant

should be sentenced to life imprisonment or death.

(3) Findings in support of sentence of death.—Notwith-

standing the recommendation of a majority of the jury, the

court, after weighing the aggravating and mitigating cir-

cumstances, shall enter a sentence of life imprisonment or

death, but if the court imposes a sentence of death, it shall

set forth in writing its findings upon which the sentence of

death is based as to the facts:

(a) That sufficient aggravating circumstances exist as enu-

merated in subsection (5), and

(b) That there are insufficient mitigating circumstances to

outweigh the aggravating circumstances.

In each case in which the court imposes the death sentence,

the determination of the court shall be supported by spe-

cific written findings of fact based upon the circumstances

in subsections (5) and (6) and upon the records of the trial

and the sentencing proceedings. If the court does not make

9a

the findings requiring the death sentence within 30 days

after the rendition of the judgment and sentence, the court

shall impose sentence of life imprisonment in accordance

with s. 775.082.

10a

APPENDIX H

SUPREME COURT OF FLORIDA

WEDNESDAY, DECEMBER 10, 2003

No. SC03-1144

TED HERRING,

Petitioner(s)

VS.

JAMES V. CROSBY, JR., ETC., ET AL.,

Respondent(s)

The petition for writ of habeas corpus is hereby denied.

WELLS, PARIENTE, LEwIS, QUINCE, CANTERO and BELL,

JJ., concur.

ANSTEAD, C.J., would deny without prejudice to file in

the trial court.

A True Copy

Test:

/s)_ THOMAS D. HALL [Round Stamp]

Thomas D. Hall SUPREME COURT OF THE

Clerk, Supreme Court STATE OF FLORIDA

|

lla

APPENDIX I

IN THE CIRCUIT COURT,

SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, FLORIDA

CASE NO. 81-1957-CC

Filed in open Court March 1, 1982

STATE OF FLORIDA,

——

TED HERRING,

Defendant.

a

FINDINGS PURSUANT TO EF. S. 921.141

I. On February 25, 1982 at Daytona Beach, Florida, the

jury returned a verdict of guilty as to Murder in the First

Degree and Robbery With a Firearm. On February 26,

1982 the jury returned an advisory opinion recommending

imposition of the death penalty. The Defendant was sen-

tenced to death by electrocution by this Court on March 1,

| 1982, and their findings are filed concurrent with sentenc-

| ing. While these findings concern the application of the

| death penalty the Court does note with regard to the rob-

| bery sentence that there was abundant evidence to support

12a

a finding of premeditated murder. It is not a situation

where there was only evidence to support felony murder

(see Mahaun vs. State, 377 So. 2nd 1158 (Fla. 1979) and

Hillery vs. State, 391 So. 2nd 777 (4th DCA 1980).

Il. Aggravating circumstances (must be established

beyond a reasonable doubt)

1. The crime for which the defendant is to be sentenced

was committed while he was under sentence of imprison-

ment. The evidence does not establish this circumstance.

2. The Defendant has been previously convicted of

another capital offense or of a felony involving the use of

threat of violence to some person. As conceded by the

defense the Defendant was convicted and sentenced by this

Court in January of 1982 for an unrelated robbery with a

firearm. This factor is established.

3. The Defendant, in committing the crime for which he

is to be sentenced, knowingly created a great risk of death

to many persons. There is no evidence to support this cir-

cumstance.

4. The crime for which the Defendant is to be sentenced

was committed while he was engaged in the commission of

the crime of robbery. As conceded by the defense the mur-

der was committed by the Defendant during the course of

a robbery. This circumstance is established.

5. The crime for which the Defendant is to be sentenced

was committed for the purpose of avoiding or preventing a

lawful arrest or effecting an escape from custody. The

Court accepts Detective Varner’s testimony wherein the

Defendant said he fired the second shot into Norman Dale

Hoeltzel because he was still alive and the Defendant did

1

Seiten RA MER GLI et paar R

13a

not want a witness to his crime. By his own admission the

Defendant clearly established this circumstance. The case

of Riley vs. State, 366 So. 2nd 19 (Fla. 1979) supports the

proposition that this circumstance applies to the elimina-

tion of witnesses to a crime as well as law enforcement

officers.

6. The crime for which the Defendant is to be sentenced

was committed for financial gain. While the facts of the

case fit this circumstance it cannot be counted because this

Court already has counted as an aggravating circumstance

the fact that the crime was committed during the felony of

robbery.

7. The crime for which the Defendant is to be sentenced

was committed to disrupt or hinder the lawful exercise of

any governmental function or the enforcement of laws. The

evidence does not establish this circumstance.

8. The crime for which the Defendant is to be sentenced

was especially wicked, evil, atrocious or cruel. This cir-

cumstance comes close to being established. The Defen-

dant gave no indication of any remorse during the trial. In

fact, probation officer Mary White testified Defendant

stated the death of Norman Dale Hoeltzel meant “one less

cracker.” Lack of remorse can be considered in determin-

ing this criteria (Sireci vs. State, 399 So. 2nd 964 (Fla.

1981). Still this Court believes however brutal and sense-

less this crime is, it does not meet this extreme criteria.

9. The crime for which this Defendant is to be sentenced

was committed in a cold, calculated, and premeditated

manner without any pretense of moral or legal justifica-

tion. Norman Dale Hoeltzel was shot in the side of the

head at close range. The bullet first passed through his

l4a

hand. While he lay on the floor wounded, but still alive,

the Defendant shot him again in he neck to eliminate any

possible witness. The victim was killed because he may

have been a possible witness to the robbery. There is no

evidence Norman Dale Hoeltzel and the Defendant knew

one another or had any contact prior to the shooting. There

is only some slight evidence Norman Dale Hoeltzel was

making a move towards the armed Defendant. There cer-

tainly was no affray. This Court finds beyond a reasonable

doubt that this murder was cold, calculated, and premedi-

tated; and without any pretense of moral or legal justifica-

tion. This circumstance is established.

III. Mitigating circumstances (do not have to be estab-

lished beyond a reasonable doubt)

1. Defendant has no prior significant history of prior

criminal activity. Pursuant to Maggard vs. State, 399 So.

2nd 973 (Fla. 1981) the defense conceded this mitigating

circumstance did not exist; and the court prohibited the

State from playing the full confession tape which would

have disclosed the Defendant’s participation in several

convenience store robberies. This mitigating circumstance

does not exist (with the exception of the one convenience

story [sic] robbery for which the Defendant was previous-

ly tried and convicted, this Court did not take into consid-

eration the three convenience store robberies now pending

before this Court.)

2. The crime for which the Defendant is to be sentenced

was committed while he was under the influence of extreme

mental or emotional disturbance. The evidence does not

establish this circumstance.

OR ae ee Ie oE ee eee

lSa

3. The victim was a Participant in the Defendant's con-

duct or consented to the act. The evidence does not estab-

lish this circumstance.

4. The Defendant was an accomplice in the offense for

Which he is to be sentenced but the offense was committed

by another person and the Defendant's Participation was

relatively minor. The evidence does not establish this cir-

cumstance.

5. The Defendant acted under extreme duress or under

the substantial domination of another person. The evi-

dence does not establish this circumstance.

evidence Strongly indicates the murder was coldly calcu-

lated to eliminate a witness. The Defendant’s mother did

indicate the Defendant had learning disability, was hyper-

active, and had a low IQ of 80. But this Court had ample

Opportunity to closely observe the Defendant. He is alert,

responsive, and reasonably articulate. At worst, he is of

slightly below average intelligence. This mitigating factor

is not established by the evidence.

7. The age of the Defendant at the time of the crime. The

State and the defense indicate the Defendant was 19 at the

age [sic] of the crime. Although the Florida Supreme Court

has said there is no per se rule Pinpointing a Particular age

as an automatic mitigation factor (Perry vs. State, 395 So.

2nd 170 (Fla. 1981), nineteen seems to be right at the pivot

l6a

point. The Defendant in Perry was 20, and yet that age was

not counted as a mitigating circumstance under the facts of

that case. In this case age does not seem to be a factor.

After observing the Defendant closely over a period of

time the Court believes the Defendant would continue the

same course of criminal conduct at age 20, and beyond.

Nonetheless, the Court feels the Defendant should be

given the benefit of the doubt as to this mitigating factor.

This mitigating factor is established but it is not a strong

mitigating factor.

8. Any other aspect of the Defendant's character of

record and any other circumstance of the of the offense.

The Court accepts as a mitigating circumstance the fact

that as Defendant had a difficult childhood (see Neary vs.

State, 384 So.2nd 881 (Fla. 1980). His mother indicated

the Defendant was raised essentially without a father, was

hyperactive, had learning disabilities, and had trouble in

school.

SUMMARY

The Court finds that four (4) aggravating circumstances

exist; only two (2) mitigating factors have been estab-

lished. This Court is aware however that the Court should

go beyond mere mechanical tabulation (Brown vs. State,

381 So.2nd 690 (Fla. 1980). In this case, not only do the

established aggravating factors numerically outweight [sic]

the mitigating factors, but the aggravating factors are

stronger and carry more weight and relevancy than the mit-

igating factors. The Defendant’s age and difficult child-

hood are not sufficient mitigating factors to block

imposition of the death penalty in a case where a Defen-

a

17a

dant, now with a prior violent felony conviction, murders

an innocent clerk during a robbery so that the clerk will not

testify against him. Further, this Court must also give due

weight to the jury’s recommendation of death. After hav-

ing carefully reviewed all evidence in this case and Care-

fully reviewing the evidence in mitigation and

aggravation, the Court finds imposition of the death penal-

ty is warranted.

/s/_ S. JAMES FOXMAN

S. JAMES FOXMAN CIRCUIT JUDGE

March 1, 1982

COPIES TO: Gayle Graziano, Assistant State Attorney

J. Peyton Quarles, Assistant Public Defender

18a

APPENDIX J

IN THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA,

IN THE YEAR OF OUR LORD

ONE THOUSAND NINE HUNDRED AND EIGHTY-ONE

Florida Statute No. 782.04 & 812.13

Filed in open Court June 20, 1981

STATE OF FLORIDA,

—

TED HERRING

oo

INDICTMENT

THE SPRING TERM GRAND Jury in and for Volusia Coun-

ty, Florida, empaneled and sworn to inquire and true pre-

sentment make, hereby, in the name of and by the authority

of the State of Florida, bring this prosecution and make the

following charge or charges in two (2) count(s):

COUNT I

CHARGE: FIRST DEGREE MURDER, in Violation of F.S.

782.04

neh eee

19a

SPECIFICATIONS OF CHARGE: In that TED HERRING, on or

about the 29th day of May, 1981, at or near Daytona Beach

within Volusia County, Florida, then and there unlawfully,

while engaged in the perpetration of or attempt to perpe-

trate a robbery, or from a premeditated design to effect the

death of one Norman Dale Hoeltzel, a human being, did

kill and murder Norman Dale Hoeltzel by shooting him

with a gun.

C TI

CHARGE: ROBBERY, in Violation of FS. 812.13(1) &

(2)(a)

SPECIFICATIONS OF CHARGE: In that TED HERRING, on or

about the 29th day of May, 1981, at or near Daytona Beach

within Volusia County, Florida, did unlawfully by force,

violence, assault or putting in fear, take certain property,

to-wit: U.S. currency, of a value more than One ($1.00)

Dollar, the property of the Southland Corporation or Nor-

man Dale Hoeltzel as owner or custodian, from the person

or custody of Norman Dale Hoeltzel, and in the course of

committing said robbery, carried a firearm, to-wit: a revolver.

A TRUE BILL

/s/_ [Illegible]

Foreman of the Grand Jury

I, the undersigned State Attorney or Assistant State

Attorney, as authorized and required by law, have advised

the Grand Jury returning this indictment.

/s/_ [Illegible]

Assistant State Attorney

Seventh Judicial Circuit of Florida

20a

This indictment presented by the aforesaid Grand Jury

in open court this 20th day of June, 1981, and on the 30th

day of June, 1981, at the hour of 6:30PM was filed by me.

/s/_ [Illegidle]

Deputy Clerk of the Circuit Court

2la

APPENDIX K

IN THE CIRCUIT COURT,

SEVENTH JUDICIAL CIRCUIT OF FLORIDA,

IN AND FOR VOLUSIA COUNTY

CASE No. 81-1957, DIVISION CC

Filed August 2, 1982

STATE OF FLORIDA,

a

TED HERRING,

Defendant.

Mets

Volusia County Courthouse

DeLand, Florida

February 26, 1982

8:30 A.M.

TRANSCRIPT OF PROCEEDINGS

The above-styled cause came on to be heard before the

Honorable S. James Foxman, Circuit Judge, and a duly

impaneled jury at the time and place above indicated.

PRESENT: GAYLE GRAZIANO, Esquire

Assistant State Attorney

on behalf of the State of Florida

as

EEE, EET Ee

22a

PEYTON QUARRLES, Esquire

Assistant Public Defender

for defendant

HOWARD B. PEARL, Esquire

Assistant Public Defender

for Defendant

TRACY L. ROMANO

Deputy Official Court Reporter

Seventh Judicial Circuit of Florida

Others as may appear in the transcript.

WHEREUPON the following proceedings were had:

* * *

[60] it’s just so bad, the electric chair is what is called for.

Is this that kind of a case? Certainly not.

Ted’s mother indicated that he had problems one time

and he was sent to St. Luke’s Hospital to be evaluated for

psychological problems and learning disabilities. While he

was there, Ted was checked by a lot of people and tested

by a lot of people. And, as far as learning was concerned,

he was asked to write something. And this is one of the

things he wrote. This is, as you will be able to hear, this is

not grammatically perfect language.

Ms. GRAZIANO: Your Honor, I’m going to object. This is

not in evidence.

THE COURT: Objection is sustained.

MR. QUARRLES: Ted Herring is a human being. Dale

Hoeltzel was a human being. Killing Ted Herring isn’t

going to bring Mr. Hoeltzel back. It’s not going to do any-

body any good. Don’t vote for Ted Herring’s life..

THE Court: Thank you, counsel.

23a

Ladies and gentlemen of the jury:

It’s now your duty to advise the Court as to what pun-

ishment should be imposed upon the Defendant for this

crime of first degree murder.

As you’ve been told, the final decision as to what pun-

ishment shall be imposed, is the responsibility of [61] the

Judge. However, it’s your duty to follow the law that will

now be given you be [sic] the Court and render to the Court

an advisory sentence based upon your determination as to

whether sufficient aggravating circumstance exist to justi-

fy the imposition of the death penalty. And whether suffi-

cient mitigating circumstance exist, outweigh the aggravating

circumstance found to exist.

Your advisory sentence should be based upon the evi-

dence that you’ve heard while trying the guilt or innocence

of the Defendant and evidence that has been presented to

you in these proceedings.

The aggravating circumstance that you may consider are

limited to any of the following that are established by the

evidence.

The crime for which the Defendant is to be sentenced

was committed while he was under the sentence of impris-

onment.

The Defendant has been sreviously convicted of anoth-

er capital offense or of a fe wny involving the use of threat

or violence to some persoii.

The crime of robbery with a firearm is a felony involv-

ing the use of violence to another person.

The Defendant, in committing the crime for which he 1S

to be sentenced, knowingly created a great risk of death to

many persons.

ee

ea a es Sey amare renee weer gieany enter ee

24a

{62]The crime for which the Defendant is to be sen-

tenced, was committed while he was engaged in the com-

mission of the crime of robbery.

The crime for which the Defendant is to be sentenced

was committed for the purpose of avoiding or preventing

the lawful arrest or effecting excape from custody.

The crime for which the Defendant is to be sentenced

was committed for financial gain.

The crime for which the Defendant is to be sentenced

was committed to disrupt or hinder the lawful execution of

any governmental function or enforcement of laws.

You’re instructed that if you find beyond a reasonable

doubt that the capital crime was committed for pecuniary

gain. [sic] And also, beyond a reasonable doubt that the

capital crime was committed while the Defendant was

engaged in the commission of a robbery, the law in the

State of Florida is such that you may consider these as only

one aggravating circumstance.

The crime for which the Defendant is to be sentenced

was especially wicked, evil, atrocious, or cruel.

The crime for which the Defendant is to be sentenced

was committed in a cold, calculated, premeditated manner,

without any pretense of moral or legal justifi-[63]cation.

If you find the aggravating circumstance do not justify

the death penalty, your advisory sentence should be one of

life imprisonment without the possibility of parole for twen-

ty-five years.

Should you find sufficient aggravating circumstance do

exist, it will then be your duty to determine whether the

mitigating circumstance exist, that outweigh the aggravat-

ing circumstance.

Among the mitigating circumstance you may consider if

established by the evidence, are:

25a

The crime for which the Defendant is to be sentenced

was committed while he was under the influence of

extreme mental or emotional disturbance.

The victim was a participant in the Defendant’s conduct

or consented to the act.

The Defendant was an accomplice in the offense for

which he is to be sentenced. But, the offense was commit-

ted by another person and the Defendant’s participation

was relatively minor.

The Defendant acted under extreme duress or under the

substantial domination of another person.

The capacity of the Defendant to appreciate the crimi-

nality of the conduct or conform his conduct to the require-

ments of law, was substantially impaired.

[64]The age of the Defendant at the time of the crime.

Any other aspect of the Defendant’s character or record

in any other circumstance of the offense.

Each aggravating circumstance must be established

beyond a reasonable doubt before it may be considered by

you in arriving at your decision.

If one or more aggravating circumstance are established,

you should consider all the evidence tending. to establish

one or more mitigating circumstance.

And give the evidence such weight as you feel it should

receive in reaching your conclusion as to the sentence that

should be imposed.

Mitigating circumstance need not be proved beyond a

reasonable doubt by the Defendant. If you’re reasonably

convinced that mitigating circumstance exist, you may

consider it as evidence.

The sentence that you recommend to the Court must be

based upon the facts as you find them from the evidence

and the law. You should weigh the aggravating circum-

26a

stance against the mitigating circumstance, and your advi-

sory sentence must be based on these considerations.

In these proceedings, it’s not necessary that the adviso-

ry sentence of the jury be unanimous. Your decision may

be made by a majority of the jury.

[65] The fact that the determination of whether the

majority of you recommend the sentence of death or the

sentence of life imprisonment in this case, can be reached

by you by a single ballot. It should not influence you to act

hastily or without due regard to the gravity of these pro-

ceedings.

Before you ballot, you should carefully weigh, sift and

consider the evidence, and all of it, realizing that human

life is at stake. Bring to bear your best judgement in reach-

ing your advisory sentence.

If a majority of the jury determine that the Defendant

should be sentenced to death, your advisory sentence will

be:

The majority of the jury by vote . . . whatever the vote

is.

Advise and recommend to the Court that it impose the

death penalty upon the Defendant.

On the other hand, if by six or more votes, the jury

determines that the Defendant should not be sentenced to

death, your advisory sentence will be:

The jury advises and recommends to the Court that it

impose the sentence of life imprisonment upon the Defen-

dant without the possibility of parole for twenty-five years.

You’ll now retire to consider your recommendation. [66]

When seven or more of you are in agreement as to what the

sentence should be recommended to the Court, that form of

recommendation should be signed by your foreman and

returned to the Court.

f

27a

I'll send back both recommendations. Return the appro-

priate recommendation.

Counsel, any corrections or additions to the instructions

as read?

Ms. GRAZIANO: No, Your Honor.

MR. QUARRLES: Yes, sir.

THE Court: Yes, sir.

Should they be made outside the jury?

MR. QUARRLES: Yes.

THE COURT: We need to have you go out for a second,

please.

THE BAILIFF: The jury is out of hearing.

THE Court: Thank you.

Mr. Quarrles.

MR. QUARRLES: I apologize, Your Honor. But, this morn-

ing we discussed that I indicated I would object to Aggra-

vated Circumstance number 9. And we didn’t cover that

when we reconvened downstairs just before coming up.

And I wanted to renew that or object to that particular

instruction.

THE Court: All right. For the record, what’s [67] hap-

pened is that number 9, the aggravated circumstance which

is the crime for which the Defendant is to be sentenced,

was committed in cold, calculated, premeditated manner

without any pretense of moral or legal justification. Coun-

sel is objecting to that being read to the jury.

I guess you have Constitutional problems with it?

MR. QUARRLES: Yes, sir.

THE Court: In essence, that’s your objection? All right.

That objection is noted for the record.

Bring the jury back in.

Counsel, take a look at the pencils and paper, if you

would like.

)

28a

Ms. GRAZIANO: No.

MR. QUARRLES: No.

THE CourT: Okay. Ben, put the one item admitted into

evidence, over there, as well.

Ben, also, these two items.

THE BAILIFF: The jury is seated, Your Honor.

THE Court: Thank you.

Ladies and gentlemen of the jury:

I’ll have the bailiff hand Mrs. Flannagan at this time, the

following items.

Pencils and paper to help you with your deliberations, if

you need it. Two possible verdict forms. [68] The one

piece of evidence that was admitted during these proceed-

ings. And the instructions in writing that I just read to you.

You may now retire to reach your verdict or an advisory

opinion to the Court. Just as soon as you have, knock on

the door and we’ll bring you out here and we will receive

your advisory opinion.

You may now go back and have full and free discussion

of this matter.

THE BAILIFF: The jury is out of hearing.

[Recess. ]

THE COurRT: Let’s bring back the jury.

THE BAILIFF: The jury is seated, Your Honor.

THE COURT: Miss Flannagan, have you reached an advi-

sory opinion?

JUROR #3: Yes, we have.

THE CourRT: Would you please hand it to the bailiff who

will hand it to me.

All right. Mr. Herring, please stand. Counsel.

Publish the verdict.

29a

THE CLERK: Advisory opinion. Circuit Court, Seventh

Judicial Circuit, in and for Volusia County, Florida. Case

No. 81-1957-CC.

State of Florida versus Ted Herring, Defendant.

The majority of the jury by a vote of eight, advise [69]

and recommend to the Court that it impose the death penal-

ty upon Ted Herring.

So say the majority of us, dated this 26th day of Febru-

ary, 1982, at Daytona Beach, Volusia County, Florida. Lor-

raine Flannagan, Foreperson.

THE Court: Is there anything else to come before the

Court, at this time?

MS. GRAZIANO: Nothing from the State, Your Honor.

THE Court: Defense.

MR. QUARRLES: No, sir.

THE Court: I’m going to postpone the sentencing in this

case until twelve o’clock Monday, to consider the recom-

mendation of the jury. I'll impose sentence at twelve

o’clock in this courthouse Monday.

Mr. Quarrles, I intend to discharge the jury now. They

do not have to be present when the sentence is imposed.

Do you object to that procedure?

MR. QUARRLES: I would like the jury polled, as far as the

majority. :

THE Court: You have the right to have the jury polled.

As to that procedure, do you have any objections?

MR. QUARRLES: I don’t understand.

THE Court: I’m not going to have the jury present [70]

unless they want to be. I’m discharging the jury now and

sentence the Defendant without the jury being present on

Monday.

MR. QUARRLES: No. I have no objection to that.

THE Court: State.

30a

Ms. GRAZIANO: No objection.

THE Court: Mr. Clerk, come over here, please.

THE CLERK: Do you, Miss Vve Carter, agree and confirm

that a majority of the jury joined in the advisory sentence

that you have just heard read by the clerk?

JUROR #1: Yes.

THE CLERK: Do you, Miss Thelma Crawford, agree and

confirm that a majority of the jury joined in the advisory

sentence that you have just heard read by the clerk?

JUROR #2: Yes, I do.

THE CLERK: Do you, Miss Lorraine Flannagan, agree

and confirm that a majority of the jury joined in the advi-

sory sentence that you have just heard read by the clerk?

JUROR #3: Yes.

THE CLERK: Do you, Mr. Nelson Burnham, agree and

confirm that a majority of the jury joined in the advisory

sentence that you have just heard read by the [71] clerk?

JUROR #4: Yes.

THE CLERK: Do you, Miss Helen Wickham, agree and

confirm that a majority of the jury joined in the advisory

sentence you have just heard read by the clerk?

JUROR #5: Yes.

THE CLERK: Do you, Alice Reede, agree and confirm

that a majority of the jury joined in the advisory sentence

that you have just heard read by the clerk?

JUROR #6: Yes. .

THE CLERK: Do you, Miss Rilla Painter, agree and con-

firm that a majority of the jury joined in the advisory sen-

tence that you have just heard read by the clerk?

JUROR #7: Yes.

THE CLERK: Do you, Miss Elvira Newcombe, agree and

confirm that a majority of the jury joined in the advisory

sentence you have just heard read by the clerk?

31a

JUROR #8: Yes.

THE CLERK: Do you, Mr. Robert Russ, agree and confirm

that a majority of the jury joined in the advisory sentence

that you have just heard read by the clerk?

JUROR #9: Yes.

THE CLERK: Do you, Miss Felicia Wroniak, agree [72]

and confirm that a majority of the jury joined in the advi-

sory sentence that you have just heard read by the clerk?

JUROR #10: Yes.

THE CLERK: Do you, Miss May Johnson, agree and con-

firm that a majority of the jury joined in the advisory sen-

tence you have just heard read by the clerk?

JUROR #11: Yes.

THE CLERK: Do you, Miss Helen Conrad, agree and con-

firm that a majority of the jury joined in the advisory sen-

tence that you have just heard read by the clerk?

JUROR #12: Yes.

THE CLERK: All affirmative, Your Honor.

THE Court: Thank you.

Ladies and gentlemen of the jury:

I wish to thank you for your time and consideration of

the case. I also wish to advise you of some very special

privileges enjoyed by jurors. No juror can ever be required

to talk about the discussions that occurred in the jury

room, except by Court Order.

For many centuries, our society has relied upon juries

[sic] considerations of difficult cases. We’ve recognized

for hundreds of years that a jury’s deliberations, discus-

sions and votes, should remain their private affair [73] as

long as they wish it.

Therefore, the law gives you the unique privilege not to

speak about the jury’s work. Although, you’re at liberty to

32a

speak with anyone about your deliberations, you’re also at

liberty to refuse to speak to anyone.

The request may come from those who are simply curi-

ous or those who might seek to find fault with you. It will

be up to you to decide whether to preserve your privacy as

a juror.

I would like the rest of the court to stay where they are.

Mr. Vayo, escort the jury out that door. You may leave.

Thank you, again.

[Jury excused]

THE Court: Is there anything else to come before the

Court, at this time?

MS GRAZIANO: Nothing from the State, Your Honor.

MR. QUARRLES: I have some matters that I brought to the

Court’s attention earlier. The proffer.

THE CourT: Okay. We’ll go down in chambers with the

court reporter.

Do you wish the Defendant to be present at the proffer?

MR. QUARRLES: No, sir.

THE Court: All right. You waive his presence at the

proffer?

* * *

33a

APPENDIX L

580 So.2d 135

SUPREME COURT OF FLORIDA

Ted HERRING,

Appellant,

—_vV.—

STATE of Florida,

Appellee.

No. 75209.

May 2, 199].

Rehearings Denied June 12, 1991].

Motion was filed for Postconviction relief. The Circuit

Court, Volusia County, S. James Foxman, J., denied

factor in death penalty cases did not entitle movant to new

Remanded.

Barkett and Kogan, JJ., dissented as to Part I.

34a

McDonald, J., dissented as to Part II and filed a concur-

ring and dissenting opinion.

Barkett, J., filed a concurring and dissenting opinion in

which Kogan, J., concurred.

[*136] Jon. M. Wilson of Foley & Lardner, Van Den

Berg, Gay, Burke, Wilson & Arkin, Orlando,

and Jeremy G. Epstein, Dennis P. Orr, David

Sorokoff and Alan S. Goudiss of Shearman &

Sterling, New York City, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C.

Davis, Asst. Atty. Gen., Daytona Beach, for

appellee.

PER CURIAM.

Ted Herring appeals the trial court’s denial of his motion

for postconviction relief under rule 3.850, Florida Rules of

Criminal Procedure. The motion sets forth two claims: (1)

that our decision in Rogers v. State, 511 So.2d 526 (Fla.

1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98

L.Ed.2d 681 (1988), receding from the application of the

cold, calculated, and premeditated aggravating factor, as

we applied it in Herring’s direct appeal,' requires a vaca-

tion of Herring’s death sentence; and (2) that Herring’s

trial counsel’s appointment as a special deputy sheriff

resulted in ineffective assistance of counsel in Herring’s

trial proceeding.” For the reasons expressed, we affirm the

| Herring vy. State, 446 So.2d 1049 (Fla.), cert. denied, 469 U.S.

989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

2 We have jurisdiction. Art. V, § 3(b)(1) Fla.Const.

35a

denial of relief on the first claim and remand to the trial

court for an evidentiary hearing on the second claim.

This case has an extensive history before this Court. In

1981, Herring was charged with the murder of a conven-

lence store clerk. We affirmed Herring’s conviction for

first-degree murder and his sentence of death in Herring v.

State, 446 So.2d 1049 (Fla. 1984) [Herring I]. The facts

are detailed in that opinion. In affirming that sentence, we

held that the trial judge properly found four aggravating

circumstances: (1) that Herring had previously been con-

victed of another armed robbery; (2) that the murder was

committed while engaged in the commission of a robbery;

(3) that the murder was committed for the purpose of

avoiding lawful arrest; and (4) that the [*137] murder was

committed in a cold, calculated, and premeditated manner.

In doing so, we expressly discussed the application of this

last aggravating factor in that opinion. We also agreed with

the trial judge that the following mitigating factors were

present: (1) that Herring was nineteen years old at the time

of the crime; (2) that he had a low intelligence quotient and

learning disabilities; and (3) that he had had a difficult

childhood.

In 1985, Herring filed a motion to vacate judgment and

sentence under rule 3.850. The trial court denied the

motion and we affirmed. Herring v. State, 501 So.2d 1279

(Fla. 1986) [Herring II]. Subsequently, in 1987, Herring

filed a petition for writ of habeas corpus, claiming that his

appellate counsel rendered ineffective assistance. This

Court denied relief in Herring v. Dugger, 528 So.2d 1176

(Fla. 1988) [Herring IIT].

In 1988, Herring filed a petition for writ of habeas cor-

pus in the United States District Court for the Middle Dis-

trict of Florida. In his petition, Herring asserted that this

36a

Court’s decision in Rogers required vacation of Herring’s

death sentence. Herring claimed that, since Rogers

expressly overrules the application of the cold, calculated,

and premeditated aggravating circumstance in our decision

in Herring I, he is entitled to a new sentencing hearing.

The state moved to dismiss Herring’s petition because this

issue had not been heard by a state court. Herring consent-

ed to the state’s motion and filed the present motion under

rule 3.850, asserting that our decision in Rogers was a

change in the law. The trial court denied the motion on this

ground, holding:

[T]his matter is procedurally defaulted in that it is

untimely presented in violation of the filing deadline

set forth in Florida Rule of Criminal Procedure 3.850

and constitutes an abuse of the writ. As noted by the

Florida Supreme Court in Eutzy v. State, [541 So.2d

1143 (Fla. 1989)], its decision in Rogers v. State, 511

So.2d 526, 533 (Fla. 1987), restricting the applicabil-

ity of the cold, calculated, and premeditated aggravat-

ing factor was not a fundamental change in the law

which “should be given retroactive effect” but was a

mere “evolutionary refinement” in the law which

should not be utilized to abridge the finality of judg-

ments.

After so holding, the trial court allowed Herring to amend

his 3.850 motion to assert an additional claim regarding

his trial counsel’s undisclosed conflict of interest. In that

claim, Herring asserted that Howard Pearl, an assistant

public defender of Volusia County and chief of the capital

division, who had been appointed as his trial counsel, was

also serving as a special deputy sheriff in Marion County

while he represented Herring. Herring contends that,

37a

although Pearl had held this position for more than fifteen

years, he had never disclosed this fact to Herring. Herring

claims that Pearl’s undisclosed conflict of interest pre-

sumptively denied him effective assistance of counsel and

entitles him to a new trial. In considering this part of the

motion, the trial court denied relief without an evidentiary

hearing, stating:

1. The Defendant’s motion relies entirely upon the

same factual assertions and legal argument presented

to and rejected by this court after evidentiary hearing

in State of Florida vs. Roy Allen Harich, Case Num-

ber 81-1894-BB; in fact, the Harich case as well as the

appendices submitted in support of the Harich motion

are incorporated by reference in this Defendant’s

motion. . . . [T]he Defendant’s motion merely restates

the factual allegations of Harich’s motion (most of

which have already been rejected by this court in its

order denying relief in Harich’s Case) and no new fac-

tual allegations or legal argument are presented in

support of the special deputy sheriff/actual conflict of

interest issue first raised by Harich and now regurgi-

tated by every capital defendant who was represented

by Assistant Public Defender Howard Pearl. Accord-

ingly, for the same reasons outlined in this court’s

order denying relief in Harich and for the reasons out-

lined in the State’s Rule 3.850 response, the instant

motion is denied... .

[*138] 2. The various substantive allegations of con-

flict of interest raised in the Harich petition and now

duplicated by the defendant were rejected in Harich.

This court’s factual and legal conclusions in Harich

necessarily control in this case especially given the

38a

lack of any additional factual allegations in support of

his claim by the defendant. The issues presented hav-

ing already been fully and fairly litigated in the Harich

proceeding, and this court having already determined

as a matter of fact and law that Howard Pearl was not

a regular deputy sheriff but was in fact a “special” or

“honorary” deputy sheriff in Marion County for the

sole purpose of permitting him to carry a firearm and

that that status did not create a conflict of interest in

his position as an assistant public defender in Volusia

County, the instant motion is summarily denied.

PART I

Invalid Aggravating Factor

[1] With regard to Herring’s first claim, we find that our

Rogers decision does not mandate relief under the circum-

stances of this case. There were four aggravating factors

found applicable to this murder: (1) prior conviction of

another armed robbery; (2) that the murder was committed

while engaged in the commission of a robbery; (3) that the

murder was committed for the purpose of avoiding lawful

arrest; and (4) the aggravating circumstance in issue, that

this murder was committed in a cold, calculated, and pre-

meditated manner. As noted by this Court in Eutzy v. State,

541 So.2d 1143, 1147 (Fla. 1989), our decision in Rogers,

restricting the applicability of the cold, calculated, and pre-

meditated aggravating factor, was not a fundamental change

in the law that should be given retroactive effect but was

“a mere evolutionary refinement in the law,” which should

not be utilized to abridge the finality of our judgments.

Although we have held in Eutzy that Rogers is not retroac-

39a

tive, we have chosen to address this issue on the merits

because we expressly receded from our approval of the

cold, calculated, and premeditated aggravating factor in

Herring I in our Rogers decision.

While the cold, calculated, and premeditated aggravat-

ing factor no longer applies to the circumstances in Her-

ring, we find that this is not a change that requires a new

sentencing hearing in this case. None of the facts and cir-

cumstances that were before the jury regarding how Her-

ring committed the murder are changed. If the aggravating

circumstance of a “conviction of a prior crime of violence”

had been eliminated, that would have changed the facts

and circumstances before the jury.

The evidence before the jury established that Herring

shot the clerk once in the head and again after the clerk fell

to the floor and that the second shot was to prevent the

clerk from being a witness against him. Herring J at 1057.

Given the other aggravating and mitigating factors that

went into the weighing process in the sericncing phase of

this case, we find that the result of the weighing process

would not have been different had this aggrav’ (ng cir-

cumstance not been articulated as a factor in the . *ntenc-

ing. We find that the elimination of this factor, under the

circumstances of this case, does not compromise the weigh-

ing process of either the judge or jury. See Hill v. State, 515

So.2d 176 (Fla. 1987), cert. denied, 485 U.S. 993, 108

S.Ct. 1302, 99 L.Ed.2d 512 (1988).

40a

PART II

Ineffective Assistance of Counsel

[2] With regard to Herring’s public defender’s service as a

special deputy, we hold that due process principles require

an evidentiary hearir~. In Harich v. State, 542 So.2d 980

(Fla. 1989), we found that this same public defender’s

service as a special deputy was sufficient to require an evi-

dentiary hearing on the issue of whether his relationship to

law enforcement officials affected his ability to provide

effective legal assistance. After the evidentiary hearing in

Harich, the trial judge made detailed findings of fact and

denied relief. We affirmed the trial judge, holding that the

fact that this public defender was a special deputy [*139]

in an adjacent jurisdiction, particularly given the circum-

stances of the duties and status of such deputy sheriff, did

not result in a per se conflict of interest. Harich v. State,

573 So.2d 303 (Fla. 1990).

The trial judge in this case concluded that it was not

necessary to duplicate the evidentiary hearing regarding

this issue because he had previously made factual findings

on this identical issue in Harich. We find that due process

principles do not allow the trial judge to adopt factual find-

ings made in a prior case involving a different defendant,

even though it concerns the same issue. Herring must be

afforded an opportunity to present evidence and examine

and cross-examine witnesses on this issue. Although we

recognize that the evidence presented may be duplicative,

due process requires that Herring be afforded an opportu-

nity for a hearing on this matter. If other defendants raise

this same claim, however, we find that it would be proper

4la

for the chief judge to consolidate the cases for one hearing

on this single issue.

Accordingly, we remand this cause to the trial judge to

have an evidentiary hearing to determine whether Her-

ring’s public defender’s service as a special deputy sheriff

affected his ability to provide effective legal assistance.

We deny relief on all other grounds.

It is so ordered.

SHAW, C.J., and OVERTON, GRIMES and MCDONALD, JJ.,

concur as to Part I.

BARKETT and KOGAN, JJ., dissent as to Part I.

SHAW, Oe Ie and OVERTON, BARKETT, GRIMES and

KOGAN, JJ., concur as to Part II.

MCDONALD, J., dissents as to Part II.

MCDONALD, J., concurs in part and dissents in part with

an opinion.

BARKETT, J., concurs in part and dissents in part with an

opinion, in which KOGAN, J., concurs.

McDONALD, Justice, concurring in part, dissenting in part.

I would approve the trial judge’s order denying relic * in

full. I have never felt that the alleged claim of a conflict of

interest by the assistant public defender, simply because he

was an honorary deputy sheriff in an adjoining county, had

adequate merit to require an evidentiary hearing on this

issue.

42a

BARKETT, Justice, concurring in part, dissenting in part.

I agree that Herring is entitled to a hearing on the con-

flict-of-interest question. However, I would also require, at

the very least, a new sentencing hearing. I am dubious

about the reliability and proportionality of a death sen-

tence under the circumstances presented here and under

current law. As the majority notes, Herring was nineteen

years old at the time of the crime; he had a low IQ; a learn-

ing disability; and an abused childhood. These were all

deemed to be mitigating circumstances. On the other hand,

we have found that the weightiest aggravating circum-

stance, that of cold, calculated, and premeditated murder,

is no longer valid in this case. With the remaining aggra-

vating circumstances weighed against the significant miti-

gating factors and the fact that this robbery/murder differs

little from many others wherein the death penalty was

deemed inappropriate, I would remand for a new sentenc-

ing hearing.

KOGAN, J., concurs.

580 So.2d 135, 16 Fla. L. Weekly 293

43a

APPENDIX M

IN THE

SUPREME COURT OF FLORIDA

Case No.

TED HERRING,

Petitioner.

—V.—

JAMES V. CROSBY, JR., Secretary, Department

of Corrections, State of Florida, BRADLEY D.

CARTER, Warden, Union Correctional Institu-

tion, CHARLES CRIST, Attorney General, State

of Florida.

Respondents.

PETITION FOR WRIT OF HABEAS CORPUS

Petitioner TED HERRING, through his undersigned coun-

sel, pursuant to Florida Rules of Appellate Procedure

9.030(a)(3) and 9.100, petitions this Court to issue a writ

of habeas corpus. In light of the United States Supreme

Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002),

Herring’s death sentence is in violation of his rights under

the United States Constitution and under the Constitution

and laws of the State of Florida. Herring respectfully

requests oral argument in support of his petition.

44a

In support of his petition, in accordance with Florida

Rule of Appellate Procedure 9.100(e), Herring states as

follows:

I.

URISDICTION

This is an original action under Florida Rule of Appel-

late Procedure 9.100(a). This Court has jurisdiction pur-

suant to Rule 9.030(a)(3) thereof and Article V, Section

3(b)(9) of the Florida Constitution.

I.

STATEMENT OF FACTS

On May 29, 1981, a convenience store clerk in Daytona

Beach, Florida was shot and killed during a robbery at the

store. On June 12, 1981, Herring was arrested while in

possession of a stolen car. Herring was taken to the police

station and interrogated, at which time he confessed to the

killing of the store clerk during the May 29, 1981 robbery.

Herring v. State, 446 So. 2d 1049, 1051-52 (Fla. 1984)

(“Herring I’).

In February 1982, Herring was tried for armed robbery

and murder in the first degree arising out of the May 29,

1981 incident in the Circuit Court of the Seventh Judicial

Circuit, in and for Volusia County, Florida (the “trial

court”). On February 25, 1982, the jury returned a verdict

of guilty on both counts. The sentencing phase of Her-

ring’s trial was held on February 26, 1982, immediately

following the conclusion of the guilt phase. The jury

returned an advisory recommendation of death by an eight-

bie ss .

i

45a

to-four vote. The trial judge found that four aggravating

and two mitigating circumstances applied and sentenced

Herring to death. /d. at 1052-53.

The aggravating circumstances that the trial judge found

explicitly were: (1) Herring previously had been convicted

of an unrelated robbery with a firearm; (2) the murder was

committed while Herring was engaged in the commission

of a robbery; (3) the murder was committed for the pur-

pose of avoiding or preventing a lawful arrest; and (4) the

murder was committed in a cold, calculated, and premedi-

tated manner without any pretense of moral or legal justi-

fication. The mitigating circumstances the trial judge

found were that: (1) Herring had a difficult childhood and

had learning disabilities; and (2) Herring was nineteen

years old at the time of the crime. Jd. at 1053; (see also

Petitioner’s Appendix, filed concurrently herewith (“Pet.

App.”) Ex 1.)

During post-conviction proceedings pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure, howev-

er, the trial judge explained the true—and entirely improp-

er—reason he sentenced Herring to death:

The Defendant not only initially gave conflicting sto-

ries to police but perhaps most damaging of all he told

the jury the preposterous story of how a second rob-

ber “beat him to the punch” [the trial judge’s words,

not Herring’s]; robbed and shot the clerk. Frankly,

this preposterous story doomed the Defendant not

only as to a conviction but as to sentence as well

State v. Herring, No. 81-1957-CC, slip. op. at 5-6 (Fla. Cir.

Ct. July 24, 1985) (emphasis added); (see also Pet. App.

Ex 2 at 5-6.) The trial judge’s written findings with respect

46a

to sentencing did not disclose that he relied on a “perjury

aggravator” in sentencing Herring to death. (Pet. App. Ex.

By

IT].

NATURE OF RELIEF SOUGHT

Herring seeks an order of this Court vacating his death

sentence.

IV.

POST-CONVICTION PROCEDURAL HISTORY

Herring appealed from his judgment and sentence to this

Court, which affirmed his judgment and sentence on Feb-

ruary 2, 1984 and denied rehearing on April 11, 1984. Her-

ring I, 446 So. 2d at 1049.

On March 5, 1982, Herring filed a motion for a new trial

and a motion for a new penalty phase pursuant to Rules

3.580, 3.590 and 3.600 of the Florida Rules of Criminal

Procedure in the trial court. As grounds therefor, Herring

claimed that: (a) the verdict was contrary to law; (b) the

verdict was contrary to the weight of the evidence; (c) the

trial court erred in excusing for cause a prospective juror

because of his views on capital punishment; (d) the trial

court erred in allowing into evidence a taped statement

made by Herring over Herring’s objection; (e) the trial

To the greatest extent permissible under the law and the Court’s

rules, Herring incorporates by reference in this Petition the entire con-

tents of his record on appeal, all supplements thereto, and any and all

other appendices, appeals, petitions, and documents previously trans-

ferred to or filed with this Court.

47a

court erred during the penalty phase in refusing to allow

Herring to introduce into evidence testimony regarding

other first degree murder cases handled in Volusia County;

and (f) the trial court erred during the penalty phase in not

allowing defense counsel to read during his final argument

to the jury poems Herring composed. On March 11, 1989,

the trial court denied both motions. No evidentiary hearing

was held.

On April 1, 1985, Herring filed a motion to vacate the

judgment and sentence against him pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure in the trial

court. As grounds therefor, Herring claimed that: (a) the

“heightened premeditation” aggravating circumstance was

erroneously and unconstitutionally applied; (b) the “avoid-

ance of arrest” aggravating circumstance was erroneously

and unconstitutionally applied; (c) both the “cold, calculat-

ed and premeditated” and the “avoidance of arrest” aggra-

vating circumstances were applied on the basis of the same

aspect of the crime and thus were improperly doubled; (d)

the admission of a probation officer’s testimony was erro-

neous and unconstitutional; (e) Herring’s appointed coun-

sel at sentencing rendered ineffective assistance of counsel;

(f) the jury instructions regarding sentencing were consti-

tutionally inadequate; (g) the trial judge failed to consider

the proportionality of the death sentence in this case as

compared with other cases in which the death penalty had

been imposed; (h) the trial judge unconstitutionally sur-

rendered to the jury his obligation to act as final arbiter in

imposing the sentence; (i) Herring was sentenced pursuant

to an arbitrary and racially discriminatory Capital sentenc-

ing scheme; (j) the prosecutor improperly Suggested that

Herring might be granted parole if given life imprisonment

during her closing argument; (k) the exclusion for cause of

4

Aeearencastennsene narrows ean emanate ecnresnceem

48a

a prospective juror because of his views on capital punish-

ment violated Herring’s constitutional rights; (1) Herring’s

trial jury did not constitute a representative cross-section

of the community because of the exclusion of persons with

conscientious or religious scruples against the death penal-

ty; (m) Herring’s trial jury was biased in favor of the state

on issues of guilt or innocence; and (n) Herring’s confes-

sion was improperly admitted into evidence. On July 24,

1985, the trial court denied the motion. No evidentiary

hearing was held. Herring appealed to this Court, which

affirmed the trial court’s decision on December 30, 1986,

and denied rehearing on March 2, 1987. Herring v. State,

501 So. 2d 1279 (Fla. 1986) (“Herring IT’).

On March 9, 1987, Herring filed a petition for a writ of

habeas corpus pursuant to Rule 9.030(a)(3) of the Florida

Rules of Appellate Procedure in this Court. As grounds

therefor, Herring claimed his appellate counsel rendered

ineffective assistance of counsel for failing to raise the fol-

lowing claims: (a) the admission of the probation officer’s

testimony was constitutional error and impermissible

under Florida law; (b) Herring’s confession was constitu-

tionally inadmissible; (c) the trial court impermissibly

applied two aggravating circumstances on the basis of the

same aspect of the shooting; (d) the jury instructions

regarding the imposition of the death penalty were consti-

tutionally inadequate; and (e) the prosecutor, in her closing

argument, improperly argued that Herring was young

enough to be out on the streets “to kill and rob again” if

given life imprisonment. On June 23, 1988, this Court

denied relief on the petition and denied rehearing on

August 25, 1988. See Herring v. Dugger, 528 So. 2d 1176

(Fla. 1988) (“Herring IIT’).

49a

On March 9, 1989, Herring filed a successive motion to

vacate his sentence in the trial court pursuant to Florida

Rule of Criminal Procedure 3.850. As grounds therefor,

Herring claimed that his death sentence was illegal under

Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987), because

Rogers requires that the heightened premeditation agegra-

vating circumstance include proof beyond a reasonable

doubt of calculation, which consists of a careful plan or

prearranged design to kill. On May 25, 1989, the trial court

denied relief under Rogers but granted Herring leave to

amend his 3.850 motion to claim that Herring’s trial coun-

sel harbored a conflict of interest in violation of the Sixth

and Fourteenth Amendments of the United States Consti-

tution.

On November 5, 1989, the trial court summarily denied

the amended motion without granting leave to take deposi-

tions and without conducting an evidentiary hearing. On

March 8, 1990, Herring appealed to this Court, and, on

May 2, 1991, the Court held that the heightened-premedi-

tation aggravating factor should not have been applied to

Herring at sentencing. Nevertheless, the Court declined to

grant a new sentencing hearing. The Court did, however,

remand the case for an evidentiary hearing with respect to

Herring’s trial counsel’s conflict of interest. Sze Herring v.

State, 580 So. 2d 135, 138 (Fla. 1991) (“Herring IV’).

On remand, and after a hearing held on December 15-

18, 1992, the trial court again denied Herring’s motion

pursuant to an April 2, 1993 decision. On April 21, 1993,

Herring again appealed to this Court, and, on March 7,

1996, the Court vacated the trial court’s ruling on the

ground that the 3.850 evidentiary hearing was procedural-

ly flawed. See Teffeteller v. Dugger (Herring v. State), 676

50a

So. 2d 369 (Fla. 1996) (“Herring V’). A new hearing was

then conducted in the trial court on November 25-27,

1996, and Herring’s motion was again denied. Herring

again appealed to this Court, which, on September 24,

1998, affirmed the denial of the 3.850 motion. See Herring

v. State, 730 So. 2d 1264 (Fla. 1998) (“Herring VI’).

On October 22, 1999, Herring filed a petition for a writ

of habeas corpus in the United States District Court for the

Middle District of Florida. As grounds therefor, Herring

claimed that: (a) in summarily upholding Herring’s sen-

tence despite the elimination of the heightened-premedita-

tion aggravating circumstance, this Court’s rulings were

contrary to Clemons v. Mississippi and in violation of the

Eighth and Fourteenth Amendments; (b) the trial court’s

application of a constitutionally impermissible non-statu-

tory aggravating circumstance in sentencing Herring to

death entitles Herring to a new sentencing hearing; (c) this

Court erroneously applied the “avoidance of arrest” aggra-

vating circumstance in violation of the Eighth and Four-

teenth Amendments; (d) Herring’s death sentence resulted

from the improper doubling of aggravating circumstances

in violation of the Eighth and Fourteenth Amendments; (e)

this Court erred in admitting Probation Officer Mary

White’s testimony because Herring was not given Miranda

warnings prior to his interview with the officer; (f) the

surprise use of Officer White’s testimony violated the

Fifth, Sixth, Eighth and Fourteenth Amendments; (g) the

use of Officer White’s testimony improperly injected racial

bias into the sentencing proceeding and was motivated by

impermissible racial considerations; (h) in evaluating

Howard Pearl’s conflicts of interest under the Sixth and

Fourteenth Amendments, the courts unreasonably applied

Cuyler v. Sullivan to the facts of Herring’s case; (i) Her-

Sla

ring’s court-appointed counsel at the guilt and sentencing

phases provided ineffective assistance in violation of Her-

ring’s Sixth and Fourteenth Amendment right to counsel;

G) Herring received ineffective assistance of appellate

counsel in violation of the Sixth, Eighth and Fourteenth

Amendments; (k) the instructions regarding the imposition

of the death penalty were constitutionally inadequate; (1)

the trial court erroneously excluded evidence properly

offered by Herring in mitigation; and (m) the petitioner’s

rights under the Sixth and Fourteenth Amendments were

violated by the exclusion of a prospective juror for cause,

because of his views on the death penalty.

On April 14, 2003, the federal district court denied Her-

ring’s petition. On May 14, 2003, Herring filed a notice of

appeal and an application for a certificate of appealability

So his appeal from the denial of his federal habeas corpus

petition may be heard by the United States Court of

Appeals for the Eleventh Circuit. On June 19, 2003, the

District Court denied the application for a certificate of

appealability.

On June 20, 2003, Herring filed a motion in the trial

court to vacate his death sentence pursuant to sections

3.850 and 3.851 of the Florida Code of Criminal Proce-

dure. Specifically, Herring argues that his death sentence

violates the Eighth and Fourteenth Amendments of the

United States Constitution as interpreted in Atkins v. Vir-

ginia, 536 U.S. 304 (2002). The motion establishes Clear-

ly—through the report of a leading neuropsychologist, IQ

testing, and school and medical records—that Herring is a

Person with mental retardation and that, therefore, he is

ineligible for the death penalty. The motion is pending

response by the State of Florida.

52a

V.

HERRING’S DEATH SENTENCE IS

UNCONSTITUTIONAL DER RING V._ ARIZONA

A. Ring invalidated Florida’s capital sentencing scheme

In Ring v. Arizona, 536 U.S. 584 (2002), the United

States Supreme Court held that the “Sixth Amendment’s

jury trial guarantee, made applicable to the States by the

Fourteenth Amendment, requires that the aggravating fac-

tor determination be entrusted to the jury.” Jd. at 597.

Specifically, the Court held that Arizona’s death sentenc-

ing statute was unconstitutional because it assigned the

fact finding necessary to put the defendant to death to the

judge and not the jury. Jd. at 609.

Florida’s death sentencing statute—under which Herring

was sentenced—suffers from precisely the same constitu-

tional flaw. Like the Arizona statute addressed in Ring,

Florida’s statute provides specifically that the judge, and

not the jury, makes the factual findings necessary to put a

defendant to death.

The statute itself provides explicitly that the trial judge—

and not the jury—must make the necessary factual find-

ings for a death sentence. Fla. Stat. § 921.141. Moreover,

the United States Supreme Court has held repeatedly that

under the Florida capital sentencing scheme, the trial judge

alone makes the findings of fact necessary to impose

death. See, e.g., Hildwin v. Florida, 490 U.S. 638 (1989).

Indeed, in Walton v. Arizona, the Supreme Court held

that for Sixth Amendment purposes the Florida statute is

indistinguishable from the very statute the Supreme Court

later struck down in Ring:

53a

The distinctions Walton attempts to draw between the

Florida and Arizona Statutory schemes are not persua-

sive. It is true that in Florida the jury recommends a

sentence, but it does not make specific factual find-

ings with regard to the existence of mitigating or

aggravating circumstances and its recommendation is

not binding on the trial judge. A Florida trial court no

more has the assistance of jury's findings of fact with

respect to sentencing issues than does a trial Judge in

Arizona.

497 U.S. 639, 648 (1990) (emphasis added). Accordingly,

when the Supreme Court struck down the Arizona statute,

it implicitly invalidated the Florida sentencing scheme as

well.

This conclusion is confirmed by this Court’s ruling in

Mills v. Moore, 786 So. 2d 532 (Fla. 2001). In Mills, this

Court noted that in Walton, the Supreme Court “addressed

a capital sentencing scheme and held that the presence of

an aggravating circumstance in a capital case may consti-

tutionally be determined by a judge rather than a jury.

Because Apprendi did not overrule Walton, the basic

scheme in Florida is not overruled either.” Jd. at 536-37.

But in Ring, the Supreme Court did hold that the Sixth

Amendment right recognized in Apprendi extends to Capi-

tal Sentencing and overruled Walton. Thus, as this Court

recognized in Mills, if Walton is unconstitutional, so too is

the Florida capital sentencing scheme.

In addition to Mills, the Florida courts have held repeat-

edly that a Florida jury’s Participation in capital sentencing

is only advisory and that the trial judge alone makes the

findings of fact necessary to impose death. See, e.g., Pope

v. Wainwright, 496 So. 2d 798, 805 (Fla. 1986) (the jury

54a

does not “bear[ ] the same degree of responsibility as that

brought on a by a ‘true sentencing jury’”); Odom v. State,

403 So. 2d 936, 942 (Fla. 1981) (jury’s role restricted to

announcing “the judgment of the community as to whether

the death penalty is appropriate”); Johnson v. State, 393

So. 2d 1069, 1074 (Fia. 1980) (“[t]he function of the jury

in the sentencing phase [i.e., recommending] . . . is not the

same as the function of the jury in the guilt phase [i.e., fact

finding])”); accord Van Royal v. State, 497 So. 2d 625, 628

(Fla. 1986); Engle v. State, 438 So. 2d 803, 813 (Fla.

1983); Davis v. State, 703 So. 2d 1055, 1061 (Fla. 1997);

Grossman vy. State, 525 So. 2d 833, 840 (Fla. 1988); Mor-

ton v. State, 789 So. 2d 324, 333 (Fla. 2001). Or, as Justice

Shaw put it in Combs v. State, “the jury’s recommendation

is merely advisory [and] not supported by findings of fact.”

525 So. 2d 853, 859 (Fla.1988) (Shaw, J., concurring)

(emphasis added).

Finally, post-Ring, the Florida capital sentencing

scheme can no longer coexist with the United States

Supreme Court’s ruling in Caldwell v. Mississipi, where

the Court held that “it is constitutionally impermissible to

rest a death sentence on a determination made by a sen-

tencer who has been led to believe that the responsibility

for determining the appropriateness of the defendant’s

death rests elsewhere.” 472 U.S. 320, 328-29 (1985). Her-

ring’s jurors were not only “led to believe” that the respon-

sibility for determining his death rested elsewhere, they

were formally instructed that “the final decision as to what

punishment shall be imposed, is the responsibility of the

Judge.” (App. Ex C. at 815-16) (emphasis added). Thus,

the Florida statute, as applied to Herring, could not have

satisfied both the requirements of Ring and the require-

ments of Caldwell at once.

55a

This Court first addressed the constitutionality of Flori-

da’s capital sentencing scheme in the wake of Ring in Bot-

toson v. Moore, 833 So. 2d 693 (Fla.) (per curiam), cert.

denied, 123 S. Ct. 622 (2002). There, the Court held that it

is for the United States Supreme Court to instruct Florida

that its capital sentencing scheme violates Ring and that, in

the absence of such an instruction, the Court would not

vacate Bottoson’s sentence. /d.

Notwithstanding the Court’s per curiam ruling in Botto-

son, the concurring opinions of individual justices expressed

grave doubt that the Florida scheme can be reconciled with

Ring. Chief Justice Anstead expressed “concerns that Flori-

da’s scheme may not comply with the Sixth Amendment as

now construed in Ring” because in Florida the trial judge

alone determines the existence of aggravators and thus

makes the findings necessary for the death penalty to be

imposed. /d. at 704-05. Similarly, Justice Pariente wrote

that “Ring does raise serious concerns as to potential con-

Stitutional infirmities in our present capital sentencing

scheme” because, among other things, “[t]he jury does not

find specific aggravating factors. Thus, it is the jury that

recommends a sentence and the judge who finds the spe-

cific aggravators.” Jd. at 719. In addition, Justice Shaw

concluded that Ring “has a direct impact on Florida’s Cap-

ital sentencing statute” because Florida law requires a unan-

imous jury finding for any element of criminal offense, and

“[nlowhere in Florida [capital sentencing] law is there a

requirement that the finding of an aggravating circum-

stance must be unanimous.” /d. at 717.

To date, neither the United States Supreme Court nor

any other federal court has issued a decision answering the

question of whether Florida’s capital sentencing scheme

56a

survived Ring. This Court thus far has adhered to its per

curiam decision in Bottoson—but not without dissent. See,

e.g., Butler v. State, 842 So. 2d 817, 840 (Fla. 2003) (Pari-

ente, J., dissenting in pertinent part); see also id. at 835

(Anstead, C.J., dissenting in pertinent part); id. at 834

(Shaw, J., dissenting in pertinent part).

Herring respectfully submits that it is error for this

Court to uphold Florida death sentences post-Ring while

awaiting definitive guidance from the United States

Supreme Court. State courts routinely apply their judg-

ment and discretion to questions of constitutional law

without specific instructions from the federal courts. The

Court need not and should not refrain from doing so

where, as here, a person’s life is at stake.

Accordingly, because the trial judge, and not the jury,

made the findings of fact necessary to impose death, Her-

ring’s sentence should be vacated pursuant to Ring.

B. Even if Florida’s capital sentencing scheme remains

constitutional, Herring’s death sentence still cannot

be reconciled with Ring

As will be shown below, even if the Court adheres to its

decision in Bottoson, there are ample grounds to vacate

Herring’s sentence based on the specific circumstances of

this case.

1. The 8-4 split in Herring’s jury renders his sentence

unconstitutional under Ring

To the extent the Florida capital sentencing scheme sur-

vives Ring, it is because the jury plays a role. See Botto-

son, 833 So. 2d at 701 (Quince, J. concurring) (“the basic

premise of Ring has been fulfilled under the Florida

S7a

statute. That is, the trial judge does not make the sentenc-

ing decision alone.”) Indeed, there is no other basis to dif-

ferentiate the Florida statute from the Arizona Statute

struck down in Ring.

If it is jury participation that saves the Florida scheme,

then such participation must conform to the requirements

of the Florida Constitution and the United States Constitu-

tion as interpreted in Ring and Apprendi v. New Jersey, 530

U.S. 466 (2000). As Justice Pariente explained in the

recent Butler case, “Ring, considered in tandem with the

jury-trial guarantee [requiring unanimity] in article I, sec-

tion 22 of the Florida Constitution” requires ihe reversal of

a death sentence where the jury’s advisory sentence is non-

unanimous. Butler, 842 So. 2d at 836.

Prior to Apprendi and Ring, the absence of unanimity

did not appear to be a problem because the United States

Supreme Court had not yet recognized a “Sixth Amend-

ment right to jury sentencing, even where the sentence

turns on specific findings of fact.” Hildwin, 490 U.S. at

640 (citations omitted) (pre-Ring decision upholding Flori-

da capital sentencing scheme). When the Supreme Court

overruled that principle in Apprendi, and later Ring, jury

unanimity became a sine gua non for valid Capital sen-

tencing. See Bottoson, 833 So. 2d at 710 (Anstead, C.J.,

concurring) (“However, in Florida, the jury’s advisory rec-

ommendation in a capital case is not statutorily required to

be by unanimous vote... . This would appear to constitute

another visible constitutional flaw in Florida’s scheme

when the Sixth Amendment right to a jury trial is applied

as it was in Apprendi and Ring.”)

58a

A full third of Herring’s jury voted against death. The

recommendation of so deeply divided a panel simply can-

not serve as the basis for a death sentence in light of Ring.

As Justice Scalia explained, “the fundamental meaning of

the jury-trial guarantee of the Sixth Amendment is that all

facts essential to imposition of the level of punishment that

the defendant receives—whether the statute calls them ele-

ments of the offense, sentencing factors, or Mary Jane—

must be found by the jury beyond a reasonable doubt.”

Ring, 536 U.S. at 610. Thus, under Ring, the predicates for

death must be found by the jury, and, under Florida law,

the jury must be unanimous. Fla. Const. Art. 1, § 22; accord

Jones v. State, 92 So. 2d 261 (Fla. 1956); see also Appren-

di, 530 U.S. at 498 (Scalia, J., concurring) (key principal

of American criminal justice system is that defendant’s

guilt will be “determined beyond a reasonable doubt by the

unanimous vote of 12 of his fellow citizens”)

Because Herring’s panel was divided eight to four, his

death sentence violated his right under the Florida and

United States constitutions to unanimous jury findings

beyond a reasonable doubt on all factors necessary to sen-

tence him to death.

2. The trial j ’s relian n_an unchar statuto-

ry aggravator violated Herring’s rights under Ring

Ring requires that the jury make all of the factual find-

ings necessary to impose death. Even assuming, arguendo,

that the Florida capital sentencing scheme meets this

requirement, a death sentence obviously cannot be based

on findings that the jury did not make. Here, the trial judge

has admitted that the basis of his decision to impose death

was not the recommendation of the jury but rather his con-

Bie en er s,s a

59a

clusion that Herring committed perjury. (Pet. App. Ex. B at

5-6.) None of the trial court’s instructions to the jury

advised them that perjury was an appropriate consideration

in determining either guilt or the appropriate sentence

because it obviously was an improper consideration. (Pet.

App. Ex. C at 815-21.)

Thus, even if in its formulation the Florida scheme pro-

vides for the judge and jury to decide death “together,”

there is conclusive factual evidence that here trial judge

decided death alone. The jury was not told that perjury was

a relevant consideration, and assuming, as one must, that

the jury adhered faithfully to the court’s instructions, there

was no jury consideration of Herring's perjury. Accord-

ingly, Herring was deprived of his right under the Sixth

and Fourteenth Amendments of the United States Consti-

tution to have a jury determine (or, at a minimum, partici-

pate in the determination of) all of the factual predicates to

his death sentence.”

3. The trial court’s con titutionally inadequate jur

instructions deprived Herring of his right under

Ring to have the jury make the factual determina-

tions necessary to his sentence

The failure of a trial judge to properly charge an adviso-

ry jury in a death penalty case was a serious error before

Ring. In light of the newly recognized constitutional

requirement that jurors make the predicate findings, how-

2 The trial judge’s consideration of perjury also was improper

because it treated constitutionally protected conduct U.e., testifying)

as the basis of an aggravating factor, see Zant v. Stephens, 462 U.S.

862 (1983), and impermissibly considered a non-statutory aggravating

factor. Kormondy v. State, 703 So. 2d 454, 463 (Fla. 1997).

60a

ever, such instructions are far more significant now. Here,

even assuming the constitutionality of the Florida capital

sentencing scheme, the jury did not and could not dis-

charge its obligations because the trial judge provided

inadequate instructions at sentencing.

The jury instructions regarding aggravating circum-

stances were presented with so little guidance that the

aggravating circumstances in this case could conceivably

have been interpreted to cover every first-degree murder.

(Pet. App. Ex C at 815-21.) The Supreme Court repeated-

ly has emphasized that the Constitution requires that a cap-

ital sentencing jury’s discretion in recommending the

imposition of the death penalty be guided and channeled

by requiring examination of specific factors that argue in

favor of or against imposition of the death penalty in order

to eliminate arbitrariness and capriciousness. Maynard v.

Cartwright, 486 U.S. 356 (1988); Zant, 462 U.S. at 890.

“Because the channeling function of an aggravating cir-

cumstance requires an objective determination by the sen-

tencer, an aggravating circumstance must be described in

‘terms that are commonly understood, interpreted and

applied.’” Newlon v. Armontrout, 885 F.2d 1328, 1334 (8th

Cir. 1989) (quoting Cartwright v. Maynard, 822 F.2d 1477,

1485 (10th Cir. 1987), aff’d, 486 U.S. 356 (1988)).

Unless aggravating circumstances are sufficiently

explained, the “standard may be so vague that it would

‘fail adequately to channel the sentencing decision pat-

terns of juries with the result that a pattern of arbitrary and

capricious sentencing like that found unconstitutional in

Furman ... could occur.’” Jd. at 1334 (quoting Zant, 462

U.S. at 877). The instructions given to the jury in Herring’s

case were contrary to clearly established Supreme Court

6la

precedent. Maynard, 486 U.S. at 356. Accordingly, the

jury could not have fulfilled its constitutionally mandated

finding of all facts necessary for the imposition of death.

In this case, the trial judge’s sentencing charge—which

was derived from but did not constitute the full set of stan-

dard jury instructions in effect in Florida at the time—

failed to provide the clear, precise guidance that is

constitutionally mandated and failed to give any guidance

on the meaning of the agyravators. The instructions began

with the following remarks:

It is now your duty to advise the Court as to what pun-

ishment should be imposed upon the Defendant for

his crime of first degree murder.

As you have been told, the decision as to what pun-

ishment shall be imposed, is the responsibility of the

Judge. However, it’s your duty to follow the law that

will now be given to you by the Court and render an

advisory sentence based upon your determination as

to whether sufficient aggravating circumstances exist

to justify the imposition of the death penalty. And

whether sufficient mitigating circumstances exist,

outweigh the aggravating circumstance found to exist.

Your advisory sentence should be based upon the evi-

dence that you’ve heard while trying the guilt or inno-

cence of the Defendant and evidence that has been

presented to you in these proceedings.

(Pet. App. Ex. C at 815-16.) The trial judge then simply

read certain of the aggravating and mitigating circum-

Stances listed in the statute. The entire charge consists of

only six pages of transcript. (/d. at 815-21.)

62a

The quoted portion of the instructions was deficient in

several respects. First, the court failed to define the terms

“aggravating circumstance” and “mitigating circumstance”

in charging the jury, or to explain their nature or function

in the sentencing process. “{I]f ‘an aggravating circum-

stance is defined and applied so broadly that it conceivably

could cover every first degree murder, then it obviously

cannot fulfill its constitutional responsibilities to eliminate

the consideration of impermissible factors and to provide a

recognizable and meaningful standard for choosing the

few who are to die.’” Cartwright, 822 F.2d at 1485 (cita-

tion omitted). Here, the trial judge gave no indication that

the aggravating circumstances were factors which distin-

guished this particular capital felony from most other

homicides, and that, before an advisory verdict of death

could be rendered, the jury had to find the existence of at

least one of the statutory aggravating circumstances

beyond a reasonable doubt. Because of the critical impor-

tance of these terms in the sentencing scheme, it was

unfair to use the terms without explanation, or to assume

that a jury would immediately comprehend their nature or

function in the sentencing process.

The trial judge’s instructions also failed to explain the

nature of the balancing process, and were thus similar to

the instructions struck down by the Eleventh Circuit in

Moore v. Kemp, 809 F.2d 702, 730-33 (11th Cir. 1987).

Although the trial judge indicated that the aggravating and

mitigating circumstances had to be “weighed” against one

another, he did not clearly explain how the jury was to

undertake such an analysis. The jury was never told direct-

ly that they could vote for life even if they found that an

aggravating circumstance had been proven. Nor was the

jury told that they could vote for life even if they did not

63a

find that any of the statutory mitigating circumstances had

been proven. Thus, the jury “could easily have gotten the

impression that the existence of an aggravating circum-

stance necessitated a death sentence.” /d. at 733. Notably,

the trial judge also omitted any reference to Florida’s well-

settled rule that the weighing process is not a mere

“mechanical tabulation” of aggravating versus mitigating

circumstances. See Brown vy. State, 381 So. 2d 690, 696

(Fla. 1980); State v. Dixon, 283 So. 2d 1, 5 (Fla. 1973).

Nor did he explain to the jury how aggravating circum-

stances could “outweigh” mitigating circumstances, or vice

versa.

The trial judge also failed to give any common sense

examples of each aggravating circumstance, and he did not

provide any explanation or guidance as to the meaning of

the particular aggravating circumstances. The judge made

no reference to the salient points of law developed by the

Florida courts in construing these circumstances. Specifi-

cally, the trial judge did not explain to the jury that the

avoidance of arrest aggravating circumstance requires a

demonstration that avoidance of arrest was the dominant

or sole motive for the capital felony. The judge also did not

explain that the “cold, calculated and premeditated” aggra-

vating circumstance requires a showing of heightened pre-

meditation beyond that required for a first-degree murder

conviction. The meaning of these circumstances is not

readily apparent to the layman without some further expla-

nation, and the jury was given no guidance as to their

meaning. They were thus left to interpret these circum-

stances in ways inconsistent with constitutional require-

ments.

64a

As a result, the court deprived Herring of a valid deter-

mination by the jury of all elements necessary for his con-

viction as required by Ring.?

4. Herring’s sentence must be vacated because the

trial rt_char the j with an improper

aggravator

In response to Herring’s second 3.850 motion, the Flori-

da Supreme Court struck down the cold, calculated and

premeditated aggravating factor, holding that it “no longer

applies to the circumstances in Herring.” Herring IV, 580

So. 2d 135, 138 (Fla. 1991). Nevertheless, at that time, this

Court declined to vacate Herring’s sentence. /d. The Ring

decision, however, casts the issue in an entirely new light.

In Clemons v. Mississippi, 494 U.S. 738 (1990), the

United States Supreme Court held that an appellate court

can cure error resulting from improper application of an

aggravating circumstance by either reweighing the sen-

tence or by conducting a harmless error analysis. Jd. Even

assuming that this Court properly conducted the Clemons

review, it is clear after Ring that the review violated Her-

ring’s constitutional rights under the Sixth and Fourteenth

Amendments. In Clemons, the Supreme Court stated:

Nothing in the Sixth Amendment as construed by our

prior decisions indicates that a defendant’s right to a

jury trial would be infringed where an appellate court

invalidates one of two or more aggravating circum-

stances found by the jury, but affirms the death sen-

tence after itself finding that the one or more valid

3 Moreover, as Justice Shaw noted in Bottoson, in light of Ring,

Florida’s sentencing instructions in capital cases may “no longer be

valid” in any event. 833 So. 2d at 730 (Shaw, J., concurring).

6Sa

remaining aggravating factors outweigh the mitigat-

| ing evidence. Any argument that the Constitution

requires that a jury impose the sentence of death or

make the findings prerequisite to imposition of such a

sentence has been soundly rejected by prior decisions

of this Court.

494 U.S. at 745. But Ring held that capital defendants are

“entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum pun-

ishment.” Ring, 536 U.S. at 589 (citing Apprendi v. New

Jersey, 530 U.S. 466, 482-83 (2000)). The rationale per-

mitting this Court to reweigh the aggravating and mitigat-

ing circumstances thus no longer exists.

This Court struck down one of the aggravating factors

considered by the jury. Even if the Court’s reweighing or

harmless error analysis previously was sufficient under

Clemons, Ring invalidated the analysis as there is no

telling how this factor implicated the jury’s recommenda-

tion of death. Unlike “automatic aggravator” states where

the presence of a single aggravator is the only fact required

to support a death sentence, in Florida there must be a sep-

arate factual finding that the aggravators are “sufficient,”

and yet another factual finding that these aggravators “out-

weigh” the mitigating circumstances. Fla. Stat. § 921.141.

Accordingly, where, as here, an aggravator that the jury

relied on has been Stricken, it violates Ring for this Court

to substitute its judgment for that of the jury in deciding

whether the remaining aggravators were sufficient to war-

rant a recommendation of death. Cf. Stromberg v. Califor-

nia, 283 U.S. 359, 367-68 (1931) (“The verdict against the

appellant was a general one. It did not specify the ground

upon which it rested. As there were three purposes set

66a

forth in the statute, and the jury was instructed that their

verdict might be given with respect to aiiy one of them,

independently considered, it is impossible to say under

which clause of the statute the conviction was obtained. If

any one of these clauses, which the state court has held to

be separable, was invalid, it cannot be determined upon

this record that the appellant was not convicted under that

clause.”)*

When this Court decided the Clemons issue in Herring

IV, it admittedly was not clear that the Court was intruding

upon a function constitutionally reserved for the jury. After

Ring, however, it is perfectly clear that this Court’s strik-

ing of the cold, calculated and premeditated aggravator

required that Herring’s sentence be vacated.°

5. Herring’s felon nviction not preclude a

Ring claim

As noted previously, among the aggravators found in

this case were prior and contemporaneous felony convic-

tions. In its post-Bottoson opinions, this Court has sug-

gested that the presence of such convictions may preclude

4 In Duckett v. Mullin, 306 F.3d 982, 1002 n.11 (11th Cir. 2002),

the court noted that there is a question as to “whether the Court’s hold-

ing in Clemons will survive in light of the recent decision in Ring v.

Arizona... .”)

5 Indeed, this Court’s jurisprudence strongly suggests that cold,

calculated and premeditated aggravator is given comparatively great

weight by judges and advisory juries alike. See, e.g., Bowles v. State,

804 So. 2d 1173, 1176 (Fla. 2001) (trial court assigned “great weight”

to cold, calculated and premeditated aggravator). Accordingly, allow-

ing Herring’s sentence to stand where the jury more likely than not

gave great weight to this stricken factor would be particularly incon-

sistent with Herring’s rights under Ring.

67a

relief under Ring. See, e.g., Banks v. State, 842 So. 2d 788,

793 (Fla. 2003).

The rationale for these opinions appears to be the so-

called “prior conviction exception” originating from

Almendarez-Torres v. United States, 523 U.S. 224 (1998).

In substance, this Court’s rationale for rejecting Ring claims

by petitioners with prior or contemporaneous felony con-

victions appears to be that, because a jury has found the

commission of such a felony unanimously and beyond a

reasonable doubt during the guilt phase, the jury has also,

by definition, found an aggravator sufficient to impose

death. For the reasons set forth below, this reasoning does

not satisfy-Ring.

First, applying a prior or contemporaneous felony

exception ignores Ring’s requirement that the jury make

every factual finding necessary to impose death. Ring, 536

U.S. at_597. Unlike states where the finding of a single

aggravator renders a defendant death-eligible, the Florida

Statute makes clear that a series of independent factual

findings are necessary to impose death. Specificaily, the

Florida statute requires a factual finding of (a) “sufficient

aggravating circumstances;” and (b) “insufficient mitigat-

ing circumstances to outweigh the aggravating circum-

stances.” Fla. Stat. § 921.141. In other words, the fact-finder’s

role does not end when it determines that an aggravator

exists. It must also make a factual determination as to

whether the aggravators are “sufficient.” If the aggravators

are sufficient, the fact-finder then must make factual find-

ings as to any applicable mitigating circumstances. Once

that is done, the fact-finder must make a determination as

68a

to whether the mitigating circumstances are sufficient to

outweigh the aggravating circumstances.°

Accordingly, the fact that the jury has made the predi-

cate factual finding for a-violent felony aggravator does

not strip the defendant of his right to have the jury deter-

mine whether the aggravator is “sufficient,” nor does it

deprive the defendant of his right to have the jury deter-

mine (i) whether mitigating circumstances are present; and

(ii) if so, whether those circumstances are sufficient to out-

weig.1 the aggravators. Here, there is no dispute that the

Court, and not the jury, made the factual finding that Her-

ring’s aggravators were “sufficient” and made all of the

factual findings with respect to mitigating circumstances.

As such, Herring’s conviction violates Ring regardless of

whether the jury found prior and contemporaneous violent

felonies. Nothing in Ring or Apprendi is to the contrary.

This interpretation is consistent with Nevada’s interpre-

tation of its own, similar death penalty statute. As the

Nevada Supreme Court explained:

Nevada statutory law requires two distinct findings to

render a defendant death—eligible: “The jury or the

panel of judges may impose a sentence of death only

if it finds at least one aggravating circumstance and

further finds that there are no mitigating circum-

stances sufficient to outweigh the aggravating circum-

stance or circumstances found.” NRS 175.554(3).

This second finding regarding mitigating circum-

stances is necessary to authorize the death penalty in

6

In appropriate cases, this Court has held that a felony aggrava-

tor standing alone may be insufficient for the imposition of death. Cf

Chaky v. State, 651 So. 2d 1169, 1173 (Fla. 1995); Jorgenson v. State,

714 So. 2d 423, 428 (Fla. 1998).

69a

~—

Nevada, and we conclude that it is in part a factual

determination, not merely discretionary weighing.

Johnson v. State, 59 P.3d 450, 460 (Nev. 2002).

Similarly, on remand after the Supreme Court’s decision

in Ring, the Arizona Supreme Court clarified that “Ari-

zona’s statutes require more than the presence of one or

more statutorily defined aggravating factors .. . [and] the

trier of fact must determined whether mitigating circum-

stances call for leniency.” State v. Ring, 65 P.3d 915, 915-

16 (Ariz. 2003) (emphasis added). A system whereby the

jury determines the aggravator (i.e., a prior felony), and

the judge makes factual findings as to mitigating circum-

stances, cannot satisfy Ring. All such facts must be deter-

mined by the jury. Thus, the presence of a prior or

contemporaneous felony simply cannot shield a death sen-

tence from Ring scrutiny.

Second, the Supreme Court’s decision in Almendarez-

Torres, which is the root source of the so-called violent

felony exception to the Sixth Amendment, is neither good

law nor applicable here. A/mendarez-Torres “stands for the

proposition that not every fact expanding a penalty range

must be stated in a felony indictment, the precise holding

being that recidivism increasing the maximum penalty

need_not be not so charged.” Jones v. United States, 526

U.S. 227, 248 (1999).

Almendarez-Torres rests on the now-discredited proposi-

tion that a legislature may determine whether_a particular

requirement for sentencing constitutes a mere sentencing

factor or an element of the crime. Almendarez-Torres, 523

U.S. at 228. Ring eviscerated this notion by making clear

that these labels do not matter. Ring, 536 U.S. at 605

70a

(aggravating circumstance necessary for imposition of a

death sentence operates as the “functional equivalent” of

an element of a greater offense and must be found by the

jury.) (emphasis added); id. at 610 (Scalia, J., concurring)

(“whether the statute calls them elements of the offense,

sentencing factors, or Mary Jane—([they] must be found by

the jury beyond a reasonable doubt”).

Moreover, even before Ring, the Supreme Court’s deci-

sions in Jones and Apprendi had all but buried Al/men-

darez-Torres. In Apprendi, the majority noted that “it is

arguable that A/mendarez-Torres was incorrectly decided”

but because the defendant in Apprendi did not contest the

application of the exception, the Court did not need to

“revisit” Almendarez-Torres at that time. Apprendi, 530

U.S. at 489. In Jones, which pre-dated the Court’s decision

in Apprendi, the Court noted that Almendarez-Torres was

limited it to its facts, which involved Fifth Amendment

indictment-related rights, rather than the Sixth Amendment

right to a jury. Jones, 526 U.S. at 248 (1999) (Almendarez-

Torres was limited to the “rights to indictment and notice”

and is perhaps not applicable in a case “concerned with the

Sixth Amendment right to jury trial.”) Accordingly, Her-

ring’s felony convictions do not preclude relief under

Ring.

v.

IN LIGHT OF RING, HERRING’S ©

INDICTMENT I TITUTI LLY DEFECTIVE

Herring’s death sentence also must be vacated because

all elements of the offense necessary to establish the crime

of which he was convicted were not charged in the indict-

Tla

ment. (Pet. App. Ex D.) In Jones, the Supreme Court made

clear that once the determination of a fact is elevated to an

element of an offense, it must be charged in the indictment.

526 U.S. at 232 (“[m]Juch turns on the determination that a

fact is an element of an offense rather than a sentencing

consideration, given that elements must be charged in the

indictment, submitted to a jury, and proven by the Govern-

ment beyond a reasonable doubt.”)

In Ring, the Supreme Court held that where a statute’s

sentencing scheme makes aggravating factors a prerequi-

site to the imposition of the death penalty those “aggravat-

ing factors operate as ‘the functional equivalent of an

element of a greater offense. . .’” Ring, 536 U.S. at 609

(quoting Apprendi, 530 U.S. at 494 n.19). Accordingly,

since the aggravating factors that elevated Herring’s sen-

tence to death were not included in his indictment, Her-

ring’s sentence is in violation of his constitutional rights as

illuminated by Ring.

Shortly after the Court’s decision in Ring, the Supreme

Court vacated the judgment of the United States Court of

Appeals for the Eighth Circuit in United States v. Allen,

247 F.3d 741 (8th Cir. 2001), vacated, 536 U.S. 953

(2002), in light of Ring’s holding that aggravating factors

that are prerequisites of a death sentence must be treated as

elements of the offense. The Eighth Circuit previously had

rejected the argument that aggravating factors must be

alleged in the indictment because it held that aggravators

are not elements of federal capital murder but rather they

are “sentencing protections that shield a defendant from

automatically receiving the Statutorily authorized death

sentence.” United States v. Allen, 247 F.3d at 763. Similar-

ly to the statutes in question in Allen, Florida’s death

72a

penalty statute makes imposition of the death penalty con-

tingent upon the government proving the existence of

aggravating circumstances, that those aggravators are suf-

ficient to warrant the death penalty, and that the mitigating

circumstances are insufficient to outweigh the aggravating

circumstances. See Fla. Stat. § 921.141(3). Accordingly,

Herring’ sentence must be vacated for the same reasons the

sentence in Allen was vacated.

The Florida Constitution also provides that, “[nJo per-

son shall be tried for capital crime without presentment or

indictment by a grand jury.” Fla. Const. art. 1, § 15. More-

over, this Court has held repeatedly that Florida law

requires every “element of the offense” to be alleged in the

information or indictment. State v. Dye, 346 So. 2d 538,

541 (Fla. 1977) (“[aJ]n information must allege each of the

essential elements of a crime to be valid. No essential ele-

ment should be left to inference.”); State v. Gray, 435 So.

2d 816, 818 (Fla. 1983) (“[w]here an indictment or infor-

mation wholly omits to allege one or more of the essential

elements of the crime, it fails to charge a crime under the

laws of the state” and is subject to attack on petition for

writ of habeas corpus); Chicone v. State, 684 So. 2d 736,

744 (Fla. 1996) (“[a]s a general rule, an information must

allege each of the essential elements of a crime to be

valid.”). Accordingly, because Ring made the statutory

aggravating and mitigating circumstances elements of Her-

ring’s offense, the State’s failure to include them in the

indictment clearly violated Florida law-

Moreover, while the Supreme Court has noted that the

Grand Jury clause of the Fifth Amendment has not been

held to apply to the states, Apprendi, 530 U.S. at 477 n.3,

the Sixth and Fourteenth Amendments to the United States

Constitution clearly require that “[i]n all criminal prosecu-

73a

tions, the accused shall . . . be informed of the nature and

cause of the accusation... .” State v. Gray, 435 So. 2d at

816.

VI.

RING APPLIES RETROACTIVELY

Ring applies retroactively to Herring. This Court set the

criteria by which a change in law should be applied

retroactively in Witt v. State, 387 So. 2d 922 (Fla. 1980). A

change in law, according to Witt, applies retroactively in

post-conviction capital proceedings when “the change: (a)

emanates from this Court or the United States Supreme

Court, (b) is constitutional in nature, and (c) constitutes a

development of fundamental significance.” Jd. at 931.

Ring easily satisfies each of these requirements. F irst, it

was decided by the United Statpe Supreme Court. Second,

it is constitutional in nature. Third, there can be no ques-

tion that it constitutes a development of fundamental sig-

nificance. The right to trial by jury in a capital proceeding

is perhaps the most sacrosanct right in our system of jus-

tice. As Justice Shaw explained in his concurring opinion

in Bottoson, Ring “is of ‘fundamental significance’ for its

purpose is to safeguard the basic protections guaranteed by

the right to trial by jury.” 833 So. 2d at 717. As Justice

Shaw also pointed out, prior to Ring, this Court repeatedly

has applied significant capital sentencing decisions

retroactively. /d. at 717 n.50 (citing cases).

In addition, in all of the reported cases raising Ring

claims, this Court addressed the claim on its merits.

Apprendi and Ring (with Walton intervening) were decid-

ed approximately 20 years after Herring was sentenced.

74a

Absent prescience, there was no reason for him to raise a

Ring claim earlier.

VII.

CONCLUSION

For all of the foregoing reasons, Petitioner Ted Herring

respectfully requests this Court to issue a writ of habeas

corpus vacating his sentence.

Dated: June 23, 2003

Jeremy G. Epstein Respectfully submitted,

Alan S. Goudiss

James R. Warnot, Jr. Jon M. Wilson

Kathryn L. Tabner Florida Bar No. 0139892

Daniel Schimmel John R. Hamilton

Adam S. Hakki Florida Bar. No. 0774103

Aharon J. Friedman FOLEY & LARDNER

(Admission Pending) 111 N. Orange Avenue

SHEARMAN & STERLING LLP Post Office Box 2193

599 Lexington Avenue Orlando, Florida 320802

New York, New York 10022 (407) 423-7656

(212) 848-4000 Fax: (407) 648-1743

Fax: (212)848-7179H

Leon H. Handley

GURNEY & HANDLEY, PA

225 East Robinson Street

Suite 450

Orlando, Florida 32807

(407) 843-9500

Attorneys for Petitioner

Ted Herring

75a

APPENDIX N

CONSTITUTION

OF THE

STATE OF FLORIDA

AS REVISED IN 1968

AND SUBSEQUENTLY AMENDED

ARTICLE I

DECLARATION OF RIGHTS

SECTION 22. Trial by jury.—The right of trial by jury

shall be secure to all and remain inviolate. The qualifica-

trons and the number of jurors, not fewer than six, shall be

fixed by law.

76a

APPENDIX O

IN THE CIRCUIT COURT,

SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, FLORIDA

CASE No. 81-1957-CC

STATE OF FLORIDA,

a

TED HERRING,

Defendant.

ORDER

THIS CAUSE coming on to be heard upon Defendant’s

Motion for 3.850 relief; and the Court having read the

Defendant’s Motion (pages 1-102, and exhibits), and the

response of the State thereto; the Court file; the trial tran-

script; and the decision of Herring vs. State, 446 So.2d

1049 (FL. 1984); and the Court being otherwise fully

advised in the premises finds as follows:

1. The Defendant was found guilty by a jury of first

degree murder and robbery with a firearm. By a vote of

eight (8) to four (4) the jury recommended the Defendant

be sentenced to death. On March 1, 1982 this Court did

F

77a

sentence the Defendant to death for the murder, and

imposed a 99 year sentence for the robbery.

2. The Florida Supreme Court affirmed the conviction

and sentence (Herring vs. State, 446 So.2d 1049 (FL.

1984)). Certiorari was denied by the United States Supreme

Court (Herring vs. State of Florida, 1055 S.Ct. 396, 83

L.Ed. 330 (1984).

3. The Florida Supreme Court decision at 446 So.2d

1049 dealt with the following issues:

A. Whether the trial court erred in excusing a death-

scrupled juror.

B. Whether the trial court should have allowed defense

counsel for other first degree murder defendants to testify

that their client received life sentences for similar crimes.

C. Whether the trial court correctly excluded defense

counsel from reading poems of the Defendant contained in

a Clinical report.

D. Whether the trial court improperly found as an

aggravating circumstance that the murder was committed

for the purpose of avoiding or preventing a lawful arrest.

E. Whether the trial court improperly found the aggra-

vating circumstance that the murder was committed in a

cold, calculated and premeditated manner without any pre-

tense of moral or legal justification.

F. Whether the death sentence is appropriate in light

of other decisions.

4. This Court does agree with the State of Florida that

many of the matters complained of in Defendant’s motion

were or could have been raised on direct appeal. This

78a

Court will not consider these matters as a basis for 3.850

relief. Specifically, the following matters were or could

have been raised on direct appeal:

A. The applicability of the cold and calculating aggra-

vating factor.

B. The applicability of the avoiding arrest aggravating

factor.

C. That the heightened premeditation and the avoid-

ance of arrest aggravating circumstances were applied on

the basis of the same aspect of the shooting, and were thus

improperly doubled.

D. The admission of the probation officer’s testimony

was constitutional error.

E. The jury instructions regarding the imposition of

the death penalty were constitutionally inadequate.

F. The trial judge failed to consider the proportionali-

ty of the death sentence with sentences imposed in other

cases.

G. The trial judge unconstitutionally surrendered to

the jury his obligation to act as final arbiter in imposing

the sentence.

H. The Defendant was sentenced by an arbitrary and

racially discriminating capital sentence scheme.

I. The prosecutor improperly suggested that petitioner

might be granted parole if given a life sentence.

J. The exclusion of the death-scrupled jurors.

K. That Defendant’s confession was improperly

admitted into evidence.

79a

5. The real nub of Defendant’s motion is the claim of

ineffective trial counsel. Despite the standards set forth in

Knight and Strickland it is very difficult to go back and

determine whether trial counsel’s actions or inactions

amounted to ineffective assistance of counsel. The Court

will attempt to deal with the allegations of ineffectiveness

and analyze them in light of Knight and Strickland.

A. In Paragraph “85” of the 3.850 the Defendant

alleges there were reports (see Defendant’s exhibits “3”

and “4”) that the Defendant had serious mental and emo-

tional problems. The Defendant now complains these

reports should have been introduced. First it should be

noted that at least one of the reports was a result of an

interview done when the Defendant was 13 years old. Sec-

ondly, the defense did establish learning disabilities and

psychological problems through the testimony of the

Defendant’s mother. Thirdly, one of the reports indicates

the mother, who was a defense witness and represented to

be a concerned mother, was not keeping the child’s

appointments with the counselor. Lastly, the reports indi-

cate the Defendant was of dull normal intelligence. Taking

this all into consideration this Court does not find the fail-

ure to introduce these reports was a professional deficien-

cy.

B. In Paragraph “86” of the 3.850 the defense claims

trial counsel failed to adequately present other readily

available mitigation evidence. This is perhaps the most

difficult assertation to analyze. Here more than any other

area there is tendency to second guess. In every case that

is lost counsel may go back, with the advantage of hind-

sight, and say this or that should or could have been done.

80a

The defense had the Defendant’s mother testify

during the sentencing phase. She did establish the Defen-

dant’s home life was not good; his parents were separated;

he was hyperactive with a low IQ and a learning disabili-

ty; he had psychological problems; that his mother loved

Ted. The psychological reports would have been cumula-

tive to the mother’s testimony. It also most be stressed that

the trial court did list and consider these matters as miti-

gating factors.

As to the information set forth in exhibits “7” and

“8” the Court questions the importance of the information

from the Defendant’s former teachers. Obviously much

time had passed since they had contact with the Defendant.

Their testimony was of doubtful value.

Perhaps the defense should have had the Defen-

dant’s other relatives testify on his behalf. While to a large

degree it may have been cumulative to that of the mother,

perhaps it may in someway have helped the Defendant.

But this Court cannot conclude that trial counsel was defi-

cient in presenting the mother alone. It must be remem-

bered that the area of who trial counsel selects to testify if

frought with peril. Even the mother, who was an effective

defense witness, did admit her son was involved in drug

related problems in New York. So trial counsel is caught in

a dilemma. He must try to put on mitigating evidence yet

not let the State have an opportunity to further damage the

Defendant either by cross or rebuttal. This is especially

true where the Defendant was charged with several other

armed robberies and apparently was having drug related

problems in New York City. All in all the Court finds trial

counsel was not deficient in only presenting the mother’s

testimony. This is a matter of trial strategy and should not

be second guessed.

8la

C. The defense now contends that trial counsel should

have challenged the State’s argument that the murder was

cold, calculated and premeditated. Yet the Defendant

denied he was the one who shot Dale Hoeltzel. He claimed

another person murdered the clerk. In any case, the Flori-

da Supreme Court did ultimately determine the murder to

be cold, calculating and premeditated.

D. As to the testimony of the probation officer, Mary

White, defense counsel did object to statements allegedly

made by the Defendant to White. The defense now claims

he did not object for the right reasons nor cite proper case

law. This contention may be correct in light of Sireci vs.

State, 399 So.2d 964. Yet counsel did object to and oppose

the testimony. Also the State had yet to concede that the

murder was not heinous, atrocious, and cruel. The Court

finds this act or omission was not a substantial and serious

deficiency measurably below the standard of performance

expected of a competent attorney.

E. Paragraph 104 complains that trial counsel did not

object to cross by the State as to why the Defendant's

mother sent Herring to Florida. Yet the door was opened to

this cross because on direct the mother testified she sent

him to Florida about two years ago. The State had the right

and duty to ask why he was sent to Florida. A defense

objection to this line of questioning would have been over-

ruled. Again this particular complaint in the 3.850 shows

how trial counsel is “damned if he does and damned if he

doesn’t.” Most certainly the 3.850 would complain if the

mother were not called to testify; now the 3.850 complains

about matters her testimony opened the door to.

82a

F. Paragraph 109 complains about trial counsel’s fail-

ure to properly introduce Defendant’s poems (see 3.850

exhibit “3”). Essentially trial counse! tried to “sneak” in

the poems. He was caught and prevented from doing it.

Had he introduced the St. Luke’s Hospital report contain-

ing the poems it would have shown the poems were not

original but rather based on popular songs. Also the second

page of the report again indicates the mother of the Defen-

dant was not keeping appointments. This would have con-

tradicted her testimony that she did all she could for Ted.

Trial counsel did not correctly try to introduce the

poems. But again the Court cannot say this was a serious

professional deficiency. Finally, the Court cannot say the

Defendant was prejudiced by not having the poems intro-

duced, or if they were introduced the result would be any

different.

G. Paragraph 112 complains of trial counsel’s failure

to properly and successfully argue that testimony should

be allowed showing that similar cases resulted in non-

death sentences. The Florida Supreme Court specifically

held this testimony was not admissible (see Herring at

Pages 1056 and 1057). Despite what arguments the

defense now makes, that type of testimony was not admis-

sible. ie

H. Paragraph 119 and 120 complain trial counsel told

the jury not to consider the age of the Defendant as a mit-

igating factor. This Court accepts the State’s version (see

Page 10 of State’s response). Mr. Quarles definitely did

argue to the jury that age was a mitigating factor, and this

Court found it to be so.

83a

6. This court must view trial counsel’s alleged errors and

omissions in light of the case as a whole. It was a difficult

case from the defense standpoint. The Defendant con-

fessed to the crime. Efforts to suppress the confession

failed. The Defendant not only initially gave conflicting

stories to police but perhaps most damaging of all he told

the jury the preposterous story of how a second robber

“beat him to the punch”; robbed and shot the clerk.

Frankly, this preposterous story doomed the Defendant not

only as to a conviction but as to sentence as well. There

was little the defense could do to save the Defendant after

that.

Additionally, the aggravating factors in this case strong-

ly outweighed the mitigating factors. There were four

aggravating and only two mitigating factors. The mitigat-

ing factor of age was not strong. The Defendant was at the

point where his age was not that much of a consideration.

Other non-statutory mitigating factors were in fact estab-

lished by the defense. They were considered by the jury

and the court. These mitigating factors were not particu-

larly significant. This Court finds that even if the non-

statutory mitigating factors were bolstered by teacher’s

statements, comments of relatives, and poems of the

Defendant, the result would be no different.

7. The Court concludes that the Knight/Strickland tests

are not met. The trial defense was not deficient, nor did it

prejudice the Defendant. The Defendant received a fair

trial and a fair sentence hearing.

8. The Court carefully considered holding an evidentiary

hearing on this matter. The Court is aware that normally

ailegations of ineffective assistance of counsel, especially

in capital cases, require a hearing. However, after careful-

84a

ly reviewing the record, the court file, the 3.850 motion,

and the State’s response, all matters necessary for this

court or any other reviewing court to fairly rule on the

defense allegations are set forth in the existing records.

There is no need for further hearings or evidence. The

Court also finds the above records conclusively demon-

strate the Defendant is not entitled to relief, and the motion

may be denied without an evidentiary hearing.

WHEREFORE, it is ORDERED that Defendant’s Motion for

3.850 relief is denied.

DONE AND ORDERED this 24 day of July, 1985, at Day-

tona Beach, Volusia County, Florida.

Defendant has 15 days from the date hereof to file his

Motion for Rehearing, and 30 days to file his Notice of

Appeal.

/s) S.JAMESFOXMAN

S. JAMES FOXMAN CIRCUIT JUDGE

CERTIFICATE OF SERVICE

] HEREBY CERTIFY that copies of the foregoing Order

have been mailed and/or delivered to the following per-

sons this 25 day of July, 1985:

Lewis R. Stark, Assistant State Attorney, Courthouse

Annex, 125 East Orange Avenue, Daytona Beach, FL

32014;

Jeremy G. Epstein, Attorney for Defendant, Shearman

and Sterling, 53 Wall Street, New York, NY 10005.

/s/_ VICKY L. MYERS __

JUDICIAL ASSISTANT