Herring v. State

730 So. 2d 1264, 1998 WL 650583
CourtSupreme Court of Florida
DecidedSeptember 24, 1998
Docket89937
StatusPublished
Cited by24 cases

This text of 730 So. 2d 1264 (Herring v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herring v. State, 730 So. 2d 1264, 1998 WL 650583 (Fla. 1998).

Opinion

730 So.2d 1264 (1998)

Ted HERRING, Appellant,
v.
STATE of Florida, Appellee.

No. 89937.

Supreme Court of Florida.

September 24, 1998.
Rehearing Denied January 14, 1999.

Leon H. Handley of Gurney & Handley, P.A., Orlando, Jon M. Wilson and John R. Hamilton of Foley & Lardner, Orlando, and Jeremy G. Epstein, Alan S. Goudiss, James R. Warnot, Jr., Kathryn Tabner, Daniel Schimmel, and Steven M. Davidoff of Shearman *1265 & Sterling, New York City, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Ted Herring, a prisoner under sentence of death, appeals the trial court's denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The issue in this appeal is whether Herring's public defender had an actual conflict of interest that adversely affected his performance. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the ruling of the trial court.

On May 29, 1981, a convenience store in Daytona Beach was robbed and the store clerk was found dead from two gunshot wounds. A hold-up note with a fingerprint on it was recovered from the store, and the fingerprint was subsequently determined to be that of Ted Herring. Herring was arrested and interrogated regarding the crimes. Herring waived his Miranda rights and made statements to police officers William Anderson, Dozell Varner, and Martin White. In his first statement to the officers, which was taped, Herring said that he went to the store with the intent to commit a robbery, but that prior to committing the crime a second man robbed the store and killed the clerk. In a second unrecorded statement made privately to Officer Varner, Herring confessed that he shot the clerk in the head and then, while the clerk was lying on the ground, shot the clerk a second time to eliminate him as a possible witness. In a final taped statement to the officers, Herring claimed that he robbed the store but accidentally shot the clerk twice after the clerk tried to grab his gun.

In February 1982, Herring was tried in Volusia County for armed robbery and first-degree murder. Herring was represented at the trial by two public defenders, Howard Pearl and Peyton Quarles. Pearl conducted the guilt phase of the trial and Quarles handled the penalty phase. Officer Varner testified at the trial regarding Harrison's unrecorded statement. At the time of his testimony, Officer Varner had received twenty-two oral reprimands for minor misconduct, one written reprimand for tardiness, and a one-day suspension for an accident involving a city vehicle. Officer Varner had also received eight commendations for his police work, including a commendation for the arrest of Ted Herring. Following the direct examination of Officer Varner, Pearl's cross-examination focused only on whether Herring received food and water during his interrogation. Pearl's cross-examinations of officers Anderson and White were also limited to the topics of food and rest.

Herring testified at trial that his first statement to the officers was accurate—that the robbery and murder were committed by a second gunman. Herring denied having a private conversation with Officer Varner and claimed that the second taped confession was coerced. In closing arguments, Pearl, consistent with Herring's testimony, told the jury that a second gunman robbed the store and killed the clerk. Pearl asked the jury to question the testimony of the interrogating officers. Pearl also informed the jury that "[policemen] do a very difficult and dangerous job of community service, and the policemen that you saw, Mr. Varner and Mr. Anderson, Mr. White, are all good policemen, good detectives."

Herring was convicted of first-degree murder and sentenced to death. In aggravation, the trial judge found that Herring (1) was previously convicted of an unrelated armed robbery; (2) committed the murder in the course of a robbery; (3) committed the murder for the purpose of avoiding arrest; and (4) committed the murder in a cold, calculated and premeditated manner (CCP). The judge's sentencing order reflects that the "avoiding arrest" aggravator was based on Officer Varner's testimony. In mitigation, the judge found that Herring was nineteen years of age at the time of the crime and that he had a difficult childhood and learning disabilities. This Court affirmed Herring's convictions and death sentence in Herring v. State, 446 So.2d 1049 (Fla.1984), but subsequently struck down the application of the *1266 CCP aggravator. Rogers v. State, 511 So.2d 526, 533 (Fla.1987). We rejected a motion to vacate Herring's death sentence that was predicated on our decision to recede from the application of the CCP aggravator. Herring v. State, 580 So.2d 135 (Fla.1991).

In his first rule 3.850 motion, Herring raised an ineffective-assistance-of-counsel claim based on deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial judge denied the motion and we affirmed. Herring v. State, 501 So.2d 1279 (Fla.1986).[1] Herring filed a second rule 3.850 motion and claimed, among other things, that he received ineffective assistance of counsel due to a conflict of interest between Pearl's status as a special deputy sheriff and Pearl's responsibilities owed to Herring.[2] The trial judge denied the motion, but this Court remanded the ineffectiveness issue for an evidentiary hearing. Herring v. State, 580 So.2d 135 (Fla.1991). Herring's hearing was consolidated with the hearings of eight other defendants who had raised similar "Howard Pearl claims."[3] The judge held that none of the defendants were adversely affected by Pearl's special deputy status. However, in Teffeteller v. Dugger (Herring v. State), 676 So.2d 369 (Fla.1996), this Court remanded four of the cases, including Herring's case, for individual evidentiary hearings solely on Pearl's status as a special deputy sheriff. As directed by this Court, a second evidentiary hearing was held, and Herring's motion was again denied. Herring now appeals the trial judge's ruling and raises the following issues: (1) whether the trial judge erred in finding that Pearl was not encumbered by an actual conflict of interest; (2) whether Pearl's failure to testify regarding a strategic rationale for his trial actions or omissions preludes the State from showing that his performance was not adversely affected by his conflict; and (3) whether the trial judge's findings of fact regarding Dr. Spitz's testimony are clearly erroneous.

In his first claim, Herring challenges the trial judge's denial of his ineffective-assistance-of-counsel claim. Herring argues that Pearl's personal interest in maintaining his special deputy sheriff status required him to remain in the good graces of law enforcement personnel. Herring asserts that Pearl's need to ingratiate himself to law enforcement officials was an actual conflict of interest with his obligations to Herring.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Flaherty v. State
221 So. 3d 633 (District Court of Appeal of Florida, 2017)
Dennis v. State
109 So. 3d 680 (Supreme Court of Florida, 2012)
Keyes v. State
95 So. 3d 280 (District Court of Appeal of Florida, 2012)
State v. Herring
76 So. 3d 891 (Supreme Court of Florida, 2011)
Rimmer v. State
59 So. 3d 763 (Supreme Court of Florida, 2010)
State v. Larzelere
979 So. 2d 195 (Supreme Court of Florida, 2008)
Alessi v. State
969 So. 2d 430 (District Court of Appeal of Florida, 2007)
Bell v. State
965 So. 2d 48 (Supreme Court of Florida, 2007)
Sliney v. State
944 So. 2d 270 (Supreme Court of Florida, 2006)
Mungin v. State
932 So. 2d 986 (Supreme Court of Florida, 2006)
Jacobs v. State
925 So. 2d 430 (District Court of Appeal of Florida, 2006)
Pedro v. State
923 So. 2d 1226 (District Court of Appeal of Florida, 2006)
Carter v. State
919 So. 2d 583 (District Court of Appeal of Florida, 2006)
Elledge v. State
911 So. 2d 57 (Supreme Court of Florida, 2005)
Ted Herring v. Secretary, Department of Correction
397 F.3d 1338 (Eleventh Circuit, 2005)
Brown v. State
894 So. 2d 137 (Supreme Court of Florida, 2004)
Gamble v. State
877 So. 2d 706 (Supreme Court of Florida, 2004)
Wright v. State
857 So. 2d 861 (Supreme Court of Florida, 2003)
Davis v. State
837 So. 2d 476 (District Court of Appeal of Florida, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
730 So. 2d 1264, 1998 WL 650583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herring-v-state-fla-1998.