January 05, 2010
Death row inmate's sentence vacated
IQ too low for execution of man who killed clerk in 1982
By JAY STAPLETON
DAYTONA BEACH -- A local judge vacated the sentence of one of Volusia County's oldest death penalty cases, finding that Ted Herring's IQ is too low for him to be executed for killing a convenience store clerk in 1981.
Last month, Circuit Judge Joseph Will signed the order setting aside the death sentence, which had been handed down after Herring's trial in February 1982.
Circuit Judge S. James Foxman followed a jury's 8-4 recommendation that Herring be executed for shooting Norman Dale Hoeltzel in the left side of the head with a .22-caliber bullet.
Herring killed the clerk for $23.84 at the 7-Eleven at 705 S. Ridgewood Ave.
The store is still there, but much has changed in the law over the past 28 years, lawyers say, including the 2002 law that prohibits execution of any person with an IQ below 70.
"There is ample evidence in the record that throughout his life, Herring has suffered from significant limitations in adaptive functioning in multiple areas," Will wrote in the ruling.
The state Attorney General's Office, which argued against the order, has appealed the decision to the Florida Supreme Court. A call to the office was not returned Monday.
Hoeltzel, 29, was working the nightshift when he was killed. Two men found his body on the floor in the store. In addition to the bullet wound to the head, he also was shot through his left hand and neck.
During the trial, prosecutor Gayle Graziano showed jurors testimony that Herring fired the second shot because Hoeltzel was still alive and he wanted no witnesses. Herring was suspected in several other armed robberies of convenience stores at the time.
In asking for the electric chair, Graziano reminded the jury of testimony that Herring told a parole officer Hoeltzel "got what he deserved for trying to play here; now there's one less cracker."
Herring will remain on death row while appeal is pending.
If the order is affirmed, he'll be sentenced to life in prison. If the state wins its appeal, he could be put to death.
Peyton Quarles, who as a young assistant public defender represented Herring at trial, said the defense had indications at the time that "he suffered from some mental illness."
Quarles did put Dorothy Myers, Herring's mother, on the stand to testify about his upbringing in the Harlem section of New York City. She said he had a difficult childhood: that his father left the family when Herring was four, he was hyperactive, had learning disabilities and quit school in the fifth grade.
"I love Ted with all my heart," she said back then. "He's not really the person he's pictured to be."
At the time, Herring's IQ was not itself an issue that could keep him from execution, Quarles noted. "Here, it has given Mr. Herring release."