Ted Herring

Case information

• Name: Ted Herring
• Date of birth (DOB): 07/02/61
• DC#: 082284
• Seventh Judicial Circuit: Volusia County
• Case number: 81-1957

Timeline

• 05/29/81 — Ted Herring entered a convenience store in Daytona Beach shortly after 3 a.m.; a store clerk’s dead body was found behind the front register counter.
• 06/30/81 — The trial record notes: “Defendant indicted with the following: Count I: First-Degree Murder; Count II: Robbery with a Deadly Weapon.”
• 05/11/81 — Ted Herring was found guilty of a robbery and sentenced to 25 years in prison.
• 02/25/82 — Ted Herring was found guilty by the trial jury on both counts.
• 02/26/82 — The jury recommended death by a vote of 8 to 4.
• 03/01/82 — Ted Herring was sentenced to death on Count I and 99 years on Count II.
• 04/26/82 — A Direct Appeal was filed with the Florida Supreme Court.
• 02/02/84 — The Florida Supreme Court affirmed the conviction and sentence of death.
• 06/11/84 — A Petition for Writ of Certiorari was filed with the United States Supreme Court.
• 11/05/84 — The Petition for Writ of Certiorari was denied.
• 04/04/85 — A 3.850 motion was filed with the circuit court.
• 07/24/85 — The 3.850 motion was denied.
• 08/15/85 — A 3.850 Appeal was filed with the Florida Supreme Court.
• 12/30/86 — The Florida Supreme Court affirmed the trial court’s denial of relief.
• 03/10/87 — A Petition for Writ of Habeas Corpus was filed with the Florida Supreme Court.
• 06/23/88 — The Florida Supreme Court denied the Habeas Corpus.
• 09/09/88 — A Petition for Writ of Habeas Corpus was filed with the United States District Court.
• 02/16/89 — The petition was dismissed.
• 03/10/89 — A 3.850 was filed with the circuit court.
• 11/05/89 — The 3.850 was denied.
• 12/26/89 — A 3.850 Appeal was filed with the Florida Supreme Court.
• 05/02/91 — The Florida Supreme Court affirmed denial on all other grounds after remand.
• 04/26/93 — Another 3.850 Appeal was filed with the Florida Supreme Court.
• 03/07/96 — The circuit court’s denial of the 3.850 was vacated.
• 08/09/96 — The circuit court received the 3.850 on remand.
• 01/31/97 — The circuit court denied the motion on remand.
• 02/21/97 — A 3.850 Appeal was filed with the Florida Supreme Court.
• 09/24/98 — The Florida Supreme Court affirmed the trial court’s denial of the 3.850.
• 03/18/99 — A Petition for Writ of Certiorari was filed with the U.S. Supreme Court.
• 06/14/99 — The Petition for Writ of Certiorari was denied.
• 11/03/99 — A Petition for Writ of Habeas Corpus was filed with the U.S. District Court.
• 04/14/03 — The petition was denied.
• 05/14/03 — A Habeas Appeal was filed with the United States Court of Appeals.
• 01/31/05 — The United States Court of Appeals affirmed the denial of the Petition.
• 06/20/03 — A 3.851 Motion was filed with the circuit court.
• 11/02/05 — An Evidentiary Hearing was held on the 3.851 Motion; the motion was described as currently pending.
• 12/10/03 — A Petition for Writ of Habeas Corpus filed with the Florida Supreme Court was denied.
• 03/09/04 — A Petition for Writ of Certiorari was filed with the U.S. Supreme Court.
• 05/17/04 — The Petition for Writ of Certiorari was denied.
• 06/27/05 — A Petition for Writ of Certiorari was filed with the U.S. Supreme Court.
• 10/03/05 — The Petition for Writ of Certiorari was denied.

Background

• Ted Herring was a defendant in a case in the Seventh Judicial Circuit, Volusia County (Case # 81-1957).
• The record listed the sentencing judge as The Honorable S. James Foxman.
• The record listed trial attorney as Peyton Quarles – Assistant Public Defender.
• The record listed direct appeal attorney as Michael Becker – Assistant Public Defender.
• The record listed collateral attorneys as Jeremy Epstein, John Hamilton, & Leon Handley – Private.

The offence

On May 29, 1981, a customer entered a convenience store in Daytona Beach shortly after 3 a.m. The customer found the store clerk’s dead body lying on the floor behind the front register counter. A newspaper distribution man arrived shortly after the customer and, together, they called the police. When the police arrived, they discovered a hold-up note requesting money.

The store clerk was shot three times. The medical examiner testified that the clerk was only alive for about one minute after being shot.

The total amount missing from the cash register was $23.34.

Two weeks after the robbery and murder, Herring was observed entering and exiting a car that had been stolen in a different convenience store robbery.

Investigation

Ted Herring was interrogated at the Daytona Beach Police Department after being arrested.

Herring was questioned about several other robberies, including the robbery on May 29.

First statement (taped)

In his first statement, Herring claimed he had premeditated the robbery and prepared a hold-up note, but things did not go as planned. He stated that while he was approaching the counter, a different man proceeded to the counter with a gun and asked the clerk for money. Herring stated that once the money was given to the different man, the different man demanded that the clerk lie on the floor. Herring claimed that as this was occurring, he backed down the aisle looking for cover, and then the other man shot and killed the clerk and promptly left the store. This statement was taped.

An investigating officer testified that Herring asked to speak with him privately after he made his first statement.

Admission to the investigating officer

Herring admitted to the officer that he did indeed kill the clerk and that the story he had just told them was false. Herring also told the officer that he shot the clerk a second time to keep him from testifying against him.

Herring denied at trial that the conversation ever took place.

Third statement (taped)

Herring made a third statement later in the investigation, which was also taped. In this statement, Herring said that upon entering the store he asked the clerk for cigarettes and then gave him the hold-up note. Herring said the clerk made a movement that looked as if the clerk was going to grab for the gun. Herring then admitted to shooting the clerk once in the head and a second time when the clerk hit the floor.

During trial, Herring testified that the last statement was made only to appease the police officers because they were harassing him.

Herring testified that he wrote the hold-up note and that experts identified his fingerprints on the note.

Trial

Counts and jury verdict

The record listed the indictment as follows:

• Count I: First-Degree Murder
• Count II: Robbery with a Deadly Weapon

The record stated that Herring was found guilty by the trial jury on both counts on 02/25/82 and that on 02/26/82 the jury recommended death by a vote of 8 to 4.

Trial testimony

Herring denied at trial that the conversation with the investigating officer took place. Herring testified that the last statement was made only to appease police officers because they were harassing him.

Sentencing

The record stated that on 03/03/82 Herring was sentenced as follows:

• Count I: First-Degree Murder — Death
• Count II: Robbery with a Deadly Weapon — 99 years

The record also listed Date of Sentence: 03/01/82 and Sentenced to death on March 1, 1982 in the case status field.

Additional information (prior robbery)

• Herring was found guilty of a May 11, 1981 robbery and sentenced to 25 years in prison.

Appeals

Direct appeal to the Florida Supreme Court

A Direct Appeal was filed with the Florida Supreme Court on 04/26/82. Issues included:

1. Whether the trial court erred by excusing one of the prospective jurors for cause.
2. Whether the trial court erred by refusing to allow testimony by attorneys who represented other murder defendants in similar cases that were able to obtain life sentences.

The Florida Supreme Court found all claims either without merit or harmless and affirmed the conviction and sentence of death on 02/02/84.

Petition for Writ of Certiorari to the U.S. Supreme Court

A Petition for Writ of Certiorari was filed with the United States Supreme Court on 06/11/84 and denied on 11/05/84.

3.850 motions and appeals

• A 3.850 motion was filed with the circuit court on 04/04/85 and denied on 07/24/85.
• A 3.850 Appeal was filed with the Florida Supreme Court on 08/15/85; the Florida Supreme Court affirmed the trial court’s denial of relief on 12/30/86.

Habeas Corpus petitions

• A Petition for Writ of Habeas Corpus was filed with the Florida Supreme Court on 03/10/87. Issues raised included:

  1. Whether the trial court erred in allowing the admission of statements made by Herring to a probation officer while in custody.
  2. Whether the cold, calculated, and premeditated aggravating circumstance applied to Herring’s case. The Florida Supreme Court denied the Habeas Corpus on 06/23/88.

• A Petition for Writ of Habeas Corpus was filed with the United States District Court on 09/09/88 and dismissed on 02/16/89.

Additional 3.850 proceedings and remand

• A 3.850 was filed with the circuit court on 03/10/89 and denied on 11/05/89.
• A 3.850 Appeal was filed with the Florida Supreme Court on 12/26/89. The Florida Supreme Court remanded the case for an evidentiary hearing on whether Herring’s public defender’s service as a special duty sheriff affected effective legal assistance. Relief was denied on all other grounds on 05/02/91.
• Another 3.850 Appeal was filed with the Florida Supreme Court on 04/26/93. The circuit court’s denial was vacated on 03/07/96.
• The circuit court received the 3.850 on remand on 08/09/96 and denied the motion on 01/31/97.
• A 3.850 Appeal was filed with the Florida Supreme Court on 02/21/97; it was affirmed on 09/24/98.

Further certiorari and habeas proceedings

• A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 03/18/99 and denied on 06/14/99.
• A Petition for Writ of Habeas Corpus was filed with the U.S. District Court on 11/03/99 and denied on 04/14/03.
• A Habeas Appeal was filed with the United States Court of Appeals on 05/14/03; the court affirmed the denial of the Petition on 01/31/05.

3.851 motion (pending at the time described)

• A 3.851 Motion was filed with the circuit court on 06/20/03, and an evidentiary hearing was held on 11/02/05; the motion was described as currently pending.

Additional Habeas and Certiorari petitions

• A Petition for Writ of Habeas Corpus filed with the Florida Supreme Court on 06/24/03 was denied on 12/10/03.
• Supreme Court on 03/09/04 and denied on 05/17/04.
• A Petition for Writ of Certior