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Thread: Roger Lee Cherry - Florida

  1. #1
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    Roger Lee Cherry - Florida




    Summary of Offense:

    Around noon on June 28, 1986, the son of Leonard Wayne and Esther Wayne arrived at his parents’ home in Deland for a visit. He noticed that the couple’s car was gone and the door to the house was ajar. Upon entering the bedroom he discovered his parents lying on the floor, dead. Autopsies revealed that Mrs. Wayne died of multiple blows to the head and that Mr. Wayne died of cardiac arrest. At Cherry’s trial, state’s witness Lorraine Neloms testified that the defendant left the apartment they shared between 11 and 11:30 p.m. on June 27, saying that he needed some money. He returned about an hour later with two or three rifles and a wallet containing a bankcard and a license identifying a man named Wayne. She asked where he had been, and he responded that he went inside a home near the armory. She said Cherry told her that after entering the home Mrs. Wayne tried to fight him and that he pushed Mr. Cherry who then clutched his chest. Neloms also testified that Cherry bled from a wound on his right thumb, which he stated was the result of cutting a line. Cherry left the apartment twice more that evening. The first time, he went to a bank and upon his return stated that a card was stuck in the automatic teller machine. The second time, he left “to ditch the car he stole.” A Sunbank supervisor testified that the ATM three blocks from the Wayne home captured a Master Card and a Sun Bank Card belonging to the Waynes on June 28, 1986. An audit revealed that five or six transactions were unsuccessfully attempted between 1:55 and 2 a.m. Police testimony indicated that the telephone wire outside the house has been cut and that blood had been discovered on a piece of discarded paper near the wire, on the walkway leading to the rear of the home, and on at least one of three jalousie panes found in a wooded thicket to the rear of the home. The panes had been removed form the rear porch window. Cherry’s blood was consistent with the blood found on the paper and the jalousie. Cherry was arrested on July 2 at this home. Police noted at that time that Cherry had a cut on his thumb, which he said was the result of having cut the head off a fish.

    Cherry was sentenced to death in Volusia County on September 26, 1987.

  2. #2
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    Factors Contributing to the Delay in the Imposition of Sentence:

    Cherry’s first 3.850 Motion was pending for nearly five years. It was originally denied at the trial court level on 03/12/93; however, following FSC’s remand for an evidentiary hearing, the case reentered the trial court in 1995. Cherry’s first 3.850 Motion was again denied in 1997. Additionally, Cherry’s second 3.850 Motion was pending for over five years.

    Case Information:

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

    In 1992, the defendant filed a 3.850 motion with the trial court. The court denied the motion in 1993. Cherry appealed the order to the Florida Supreme Court in 1994. The court rejected all of his 19 claims except for his argument that his trial counsel was ineffective during the penalty phase. In 1995, the court remanded for an evidentiary hearing on that claim. After conducting a hearing, the trial court in 1997 again denied relief. On appeal, the Florida Supreme Court affirmed.

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

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

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

    After a rehearing was granted in Cherry’s second 3.850 Motion, the trial court held an evidentiary hearing on 06/24/02, and subsequently denied the motion on 08/12/02. Cherry then filed an appeal in the Florida Supreme Court, and on 11/19/04, the FSC relinquished jurisdiction to the Circuit Court to determine if Cherry is mentally retarded. On 04/12/07, the FSC affirmed the denial of the motion. On 06/26/07, FSC issued a mandate.

    Cherry filed a 3.203 Motion on 11/30/04 that was denied on 10/14/05. A mandate was issued on 06/26/07

    On 04/19/02, Cherry filed a third 3.850 Motion in the State Circuit Court and amended the motion on 11/30/04, which was denied 10/13/05.

    On 07/19/07, Cherry filed a Writ of Certiorari in the United States Supreme Court. This petition was denied on 10/29/07.

    On 06/20/08, Cherry filed a Petition for Writ of Habeas Corpus in the United States District Court. http://dockets.justia.com/docket/flo...cv01011/215304

    On 10/26/10, Cherry filed a Motion to hold the proceedings in abeyance while the circuit court considered his 3.850 Motion. The Motion to Stay was granted on 11/08/10.

    On 10/07/10, Cherry filed a 3.850 motion in the Circuit Court. That motion is pending.

  3. #3
    Administrator Heidi's Avatar
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    DeLand killer's appeal: IQ too low to execute

    DAYTONA BEACH -- For the fifth time, Roger Lee Cherry will be back in a Volusia County courtroom this week to appeal his death sentence for a DeLand killing more than 25 years ago.

    On Tuesday, Cherry, 60, will argue for the second time that his IQ is too low to be executed under Florida law.

    The hearing comes at a busy time for local death penalty appeals. Troy Victorino, who was sentenced to die for killing six people in Deltona in 2004, was in court last week in his post-conviction appeal.

    With the IQ argument, Cherry is raising an issue that was already argued and denied.

    Back in 2005, a similar motion to overturn Cherry's conviction and sentence was denied by Circuit Judge Julianne Piggotte, who found there was "substantial probability" that Cherry's IQ was higher than the level of 70 required.

    An average IQ is 100.

    What's different now, according to court documents, is the way intelligence tests are given and scored.

    Defense lawyers say Cherry's IQ is in the mentally retarded range.

    Prosecutors, however, argue Cherry is not mentally retarded. They point to books Cherry has kept in his cell at Union Correctional Institution and prior IQ tests, which were as high as 86.

    It will be up to Circuit Judge Frank Marriott to decide. Tuesday's hearing is expected to take all day.

    Cherry was 35 years old when he crept into the South Osceola Avenue home of Leonard and Esther Wayne, 77, and took off with guns, a wallet and the couple's car. In the process, he beat and kicked Esther Wayne to death.

    Leonard Wayne, 80, died of a heart attack when he tried to confront Cherry in their home.

    The police found evidence that led them to Cherry, including the recovery of the couple's ATM card at a nearby bank.

    Their car was found ditched later.

    The killer gained entry by removing jalousie window panes from a rear porch. The broken pieces of glass were found in the woods, with blood that matched Cherry's.

    At his trial, Cherry's girlfriend testified for the state, telling the jury that Cherry had confessed to her.

    "The people was awake and saw him and the lady tried to fight him or something," Lorraine Neloms testified. "And he hit her."

    After he was found guilty of the deaths, the jury recommended death for Cherry for killing Esther Wayne by a vote of 9 to 3.

    The same jury also recommended Cherry get the death penalty for the killing of Leonard Wayne.

    That death sentence was later vacated because Leonard Wayne died of a heart attack.

    Under a 2004 Florida Supreme Court ruling, criminals must have an IQ above 70 to be executed.

    Last year, Daytona Beach convicted killer Ted Herring won a victory in a similar motion, when Circuit Joseph Will vacated his death sentence.

    Judge Will found Herring's IQ was too low to be executed for killing a convenience store clerk in 1982.

    The victory, however, was short lived.

    In October, the Florida Supreme Court ruled that Herring should remain in death row, finding his IQ is higher than the 70 threshold.

    The high court disagreed with Will, finding that Herring's IQ tests had been between 70 and 75.

    "This court has consistently and explicitly held that a defendant must establish an IQ of 70 or below to avoid execution," the Florida Supreme Court wrote in that ruling.

    http://www.news-journalonline.com/ne...o-execute.html

  4. #4
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    Black death row inmate hopes low IQ gets him off death row

    After hearing testimony in a Volusia County courtroom for nearly four hours from three different psychologists in the death row appeal case of Roger Lee Cherry, Judge Frank Marriott on Tuesday ordered attorneys to have their closing arguments to him by Feb. 28, 2012.

    The psychologists were defense witnesses and were called to help prove that Cherry’s last IQ test of 64 is accurate and too low for him to be executed. In Florida, death row inmates must have an IQ above 70 to be executed.

    Cherry previously has appealed his case claiming “that the race discrimination that permeates Volusia County and the Seventh Judicial Circuit … infected his own trial, deprived him of his rights to equal protection and freedom from cruel or unusual punishment under the state and federal constitution.’’

    In September 1987, Cherry was tried and convicted by an all-White jury for the murders of Leonard and Esther Wayne, an elderly White couple.

    “They (the state of Florida) are saying the 64 (IQ score) is not valid. We are saying it is valid,” said Linda McDermott, Cherry’s attorney.

    The different tests taken by Cherry were compared to having an X-ray vs. an MRI by psychologist Gordon Taub, who testified on Cherry’s behalf.

    Psychologist Harry Krop, who analyzed the raw data, said Cherry had no motive to not do well. “No evidence he was putting forth minimum effort, said Krop, during cross-examination by Ken Nunnelley, a Florida assistant attorney general.

    “I did not influence evaluation,” said Krop when asked if he did so by Nunnelley.

    Judge Marriott asked Krop how many death penalty cases her has testified in, to which Krop said a couple of hundred, most of the cases involving defendants, pretrial and post-conviction.

    Cherry, 60, sat emotionless at the Volusia County S. James Foxman Justice Center with hopes that his second appeal for a killing more than 25 years ago is successful.

    Cherry had a previous IQ score of 72. A score must be below 70 to be exempt from death penalty. The average IQ in the United States is set at 100.

    Dr. Frank Gresham, an expert in mental retardation, noted that verbal comprehension can be higher than IQ. Gresham also said certain aspects of intelligence decline with age.

    He admitted that all tests have measurement of error – things like the person taking test when they are tired, sick, feeling good or bad.

    Gresham said there was no evidence of “practice effect,” that is, Cherry being exposed to the material to the point that he has learned the test.

    Gresham also said Cherry’s most recent test “is more valid because of how it was instructed and the changes that were made. It’s a more valid and more accurate test.”

    Prosecutor Nunnelley said tests administered to Cherry in 1992, 1996 and 2005 were the “gold standards at the time.”

    Dr. Gordon Taub testified that Cherry’s 2005 test “was one of the best, not the best.”

    In 2005, a motion to overturn Cherry's conviction and sentence was denied by Circuit Judge Julianne Piggotte, who found there was "substantial probability" that Cherry's IQ was higher than the level of 70 required.

    What's different now, according to court documents, is the way intelligence tests are given and scored.

    Individuals with IQs below 70 have been essentially exempted from the death penalty in the U.S. since 2002.

    According to court documents, Cherry burglarized the home of the Waynes in June 1986. Mrs. Wayne, 77, died of multiple blows to the head and her husband, 80, died of a heart attack.

    http://www.flcourier.com/flflorida/7...off-death-row-

  5. #5
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    Cherry has taken at least four IQ tests since he has been on death row

    Death Row inmate loses appeal in Volusia County

    A man who killed a 77-year-old DeLand woman in 1986 will not get off Death Row, a Circuit Court judge in Volusia County ruled today.

    Roger Cherry, 60, had sought to have his death sentence overturned because of mental retardation.

    Judge Frank Marriott ruled Cherry did not meet the requirements to be declared mentally retarded other than his score on a standard IQ test, State Attorney's spokeswoman Klare Ly said.

    Cherry was sentenced to die for killing 77-year-old Esther Wayne and to life in prison for burglary. The victim's 80-year-old husband, Leonard Wayne, died of a heart attack during the June 28, 1986 burglary.

    Cherry waited until after he lost his prior mental retardation claim to take the new test, Ly said. "Judge Marriott found the validity of the test was suspect because the defendant seemed to be motivated to produce a specific result and did not put on any evidence in his hearing to prove the other two prongs of the test for mental retardation," Ly said.

    The three prongs for proving mental retardation legally are low performance on IQ test approved by the Florida Department of Children and Families, concurrent deficits in adaptive behavior and proof of the onset of mental retardation before age 18, she said.

    Cherry has taken at least four IQ tests since he has been on death row, Ly said.

    http://www.cncpunishment.com/forums/...erry#post24048
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

  6. #6
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    Convicted killer loses appeal to overturn death penalty conviction

    For the fifth time, a convicted killer's appeal to bar his execution has been denied by the Florida Supreme Court.

    Attorneys for 61-year-old Roger Cherry have tried for years to have his death sentence overturned, claiming Cherry is mentally disabled.

    This time, the high court ruled new IQ test scores from a new version of the test are not newly discovered evidence.

    Cherry killed 77-year-old Esther Wayne in her home near DeLand in 1986. The victim's husband died of a heart attack during the burglary.

    http://www.wesh.com/news/central-flo...#ixzz2NReIXyPa
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

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    In today's United States Supreme Court orders, Cherry's petition for writ of certiorari was DENIED.

    Lower Ct: Supreme Court of Florida
    Case Nos.: (SC12-772)
    Decision Date: March 8, 2013
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

  8. #8
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    ROGER LEE CHERRY v JULIE L. JONES

    In today's Florida Supreme Court opinions, the court granted Cherry's petition for a writ of habeas corpus and remanded the case to circuit court for an evidentiary hearing on his claim of intellectual disability.
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

  9. #9
    Administrator Helen's Avatar
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    Roger Lee Cherry has been resentenced to life in prison.

    http://www.dc.state.fl.us/offenderSe...&TypeSearch=AI
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
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    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
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