DeLand killer's appeal: IQ too low to execute
By JAY STAPLETON, Staff writer 
Cherry
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.
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