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Supreme Court of Florida
John HESS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
Decided: May 17, 2001
We have on appeal the judgment and sentence of the trial court imposing the death sentence upon John Hess. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Hess’s conviction for first-degree murder, but vacate his sentence of death.
Appellant was convicted of the murder of John Galloway. Although an initial suspect, appellant was not arrested for the crime until over two years after the murder. The circumstances of the crime and the appellant’s involvement as reflected in the evidence presented at trial may be characterized as unusual, if not bizarre. The victim was a security guard at Lake Fairways, a residential community in Fort Myers. On the evening of May 11, 1993, Mr. Galloway was on duty at the post that guarded the entrance to the community. Another guard found Mr. Galloway’s dead body just outside the guard post at 1:15 a.m. Mr. Galloway had been killed by a gunshot.
The State presented evidence to establish that the shooting occurred near midnight. The medical examiner testified that the cause of death was a gunshot wound to the chest and that death would have followed almost immediately. The path of the bullet was back-to-front and left-to-right, with very little vertical movement. In addition to the projectile located in Mr. Galloway’s chest, a second copper-colored projectile was located close to the body and a ricochet mark was located on the wall of the guardhouse. The gun used in the murder was never discovered. Mr. Galloway’s left front pants pocket was pulled out.
The victim’s widow testified that a camel-colored, tri-fold wallet which Mr. Galloway regularly carried was missing. In the wallet were several credit cards including a Shell gasoline credit card, an automated teller machine (ATM) card, and a MasterCard. The Shell credit card was used a short time after the homicide at a Shell station in Fort Myers where appellant’s wife worked. An unsuccessful attempt was made to use the ATM card at a bank in south Fort Myers shortly after 1 a.m. and the MasterCard was used to rent a motel room at approximately 4 a.m. in Everglades City.
On May 10, 1993, two days before the homicide, appellant began working at Omar Security. Michael Warren, a manager at Omar Security, testified that on that date appellant told him about a security guard who was shot while on duty the previous evening at a bus garage for the Lee County school system in Fort Myers. Geraldine Lindsay, a security guard who overheard the conversation from another room, testified that her recollection was that appellant said the guard was shot at a security booth in Lee County rather than at the bus garage. Warren also testified that Hess told him many stories which Warren paid little attention to.
On May 12, 1993, when Michael Warren read about Mr. Galloway’s death, he contacted the Lee County Sheriff’s Department and spoke with Gil Allen, the deputy in charge of the Galloway homicide investigation. Deputy Allen arranged for Mr. Warren and an undercover agent from the sheriff’s office, equipped with an electronic recording device, to get appellant to repeat the statements he had made to Mr. Warren. The appellant repeated the statements to Warren at a Target store where appellant was performing security services and a recording of this conversation was admitted into evidence at trial.
Appellant also gave numerous conflicting and confusing statements to the police about the shooting. The first occurred on May 14, 1993, with Deputy Allen at the Lee County Sheriff’s Department where appellant stated that he was home with his wife on the night of the murder and had heard two gunshots that night from his home. Deputy Allen knew this was not possible since appellant lived approximately eight miles from Lake Fairways. Appellant also stated that he monitored the guards’ routine at Lake Fairways and he described in detail the entrance guard post and surrounding area. He also stated that Mr. Galloway was not armed while on duty. During the course of the interview, Deputy Allen asked appellant to hypothesize his opinion as to what might possibly have happened. Appellant opined: (1) that the guard would have come outside of his shack to address the intruder; (2) that two shots were fired; (3) that the guard was shot in the chest, dying instantly; and (4) that the guard fell straight on his back.1
Appellant also told Allen that he learned of Mr. Galloway’s death on a citizens band (CB) radio. However, when Allen confronted appellant about his prior statements to Mr. Warren, appellant changed his story and said that another security guard had told him about the killing. When Deputy Allen challenged this statement, appellant said that he believed Lloyd Sawyer, a security guard who worked with him at his previous employment, killed Mr. Galloway in a competitive effort to scare away the current security service. On May 15, 1993, appellant contacted Allen and recounted the statement he had made about the CB and Mr. Sawyer. He also told Allen that he had made up the story he originally told Warren.
Some time later appellant again contacted the police and told them of dreams he had of the murder. In these dreams, appellant saw someone pull a gun on the victim and demand money. The guard then gave the robber his wallet and when the guard made a move toward a phone the killer shot at him. When the two began to struggle, another shot was fired that hit the guard in the chest. According to appellant, after the murder the killer ran to his car, where he met with his partner, a male. The two left in a car together. Appellant indicated that the guard’s wallet was a tri-fold wallet. Inside the wallet they found an ATM card. The killer cut the ATM card into several pieces after several unsuccessful attempts to use the card. The killer dropped his partner off at an undisclosed location and gave him the wallet with the remaining credit cards. Appellant agreed to conduct a walk-through of the crime as seen in his dreams and an audiotape of the walk-through was admitted in evidence at trial.
Despite his suspicious and conflicting statements, appellant was not arrested or charged with the killing…
However, approximately two years after the Galloway death, appellant was arrested in Michigan on unrelated charges involving misconduct allegedly occurring in Florida and he agreed to return to Florida.2 Upon returning to Lee County, Deputy Crone, who had since replaced Deputy Allen in the investigation, again interviewed appellant about the Galloway homicide after first advising him of his Miranda 3 rights. In this interview appellant gave yet another confusing story that he and a person named Sawyer traveled to Lake Fairways to harass the security guard on duty in order to get the security contract for Lake Fairways. However, appellant stated that he stayed in the back seat of the car while Sawyer approached Galloway, shot him twice, and took his wallet. In a subsequent interview, appellant told a somewhat similar story with other details about witnessing the shooting.
On April 10, while at the Criminal Investigation Division of the Sheriff’s Office, appellant asked to speak to Deputy Crone again for the purpose of “telling him the truth” about the Galloway murder.4 Shortly thereafter, Deputy Crone took a recorded statement from appellant after first advising him of his Miranda rights. Appellant indicated that he understood his rights and wanted to talk to Deputy Crone without a lawyer. In this statement, appellant admitted to shooting Mr. Galloway but described a shooting which was accidental, and claimed that Sawyer was not involved. Appellant told Deputy Crone that he had previously implicated Sawyer because he held a grudge against him. Appellant again agreed to do a walk-through of what happened. This walk-through was videotaped and shows that Deputy Crone began by reading appellant his Miranda rights. Appellant acknowledged his rights and then waived them. Appellant then stated that on the night of the murder he was wearing his security uniform from Omar Security and was on his way to relieve Mr. Galloway.5 Appellant had a gun in his left front pants pocket. When appellant reached the guard post he told Mr. Galloway that he was there to relieve him. Mr. Galloway told appellant he was crazy and pushed him down. Galloway then attempted to physically oust appellant. Galloway grabbed appellant’s front left pants pocket, and the gun discharged with one shot hitting Galloway in the chest. Appellant then searched Galloway’s pockets and found a “three-way fold” wallet in his back pocket. He took the wallet and left, heading southbound on Highway 41.
On April 12, 1995, appellant again spoke with Deputy Crone. This time he stated that on the night of the crime he picked Ms. Hess up at work and the two went to dinner at a Denny’s restaurant. Afterwards, they drove to Lake Fairways because appellant wanted to talk to the security guard there about changing jobs. When the guard called him an idiot an altercation ensued between the two. When appellant moved his hand into his pants pocket where he had a gun, the guard also reached for the pocket. At this time, the gun discharged while still in appellant’s pocket, leaving a burn mark on his leg and a hole in his pants. The guard grabbed his chest and fell backwards. Appellant then went through the guard’s pocket and found a wallet. Appellant ran back to his car, where he told Ms. Hess what happened and gave her the wallet. They stopped at a bridge and threw the gun into the river, and continued traveling south on Highway 41 to a Shell service station where Ms. Hess worked. After that, they drove south on Highway 41 to Everglades City, where they rented a motel room using Mr. Galloway’s credit card. Ms. Hess signed the register in Mr. Galloway’s name. Appellant stated that he bought the gun he used from a clerk named Carl at a pawn shop across the street from where he lived.
Juli Hess, who was married to appellant at the time of the homicide, testified at the trial that she was with appellant the night of the shooting and her testimony generally supported appellant’s April 12 statement to Crone about how the killing took place.7 However, she stated that she did not actually witness the shooting and she did not testify as to any advance plans for a robbery or shooting. According to her testimony at trial, she remained in the car while appellant was at the guard shack, and listened to music with the windows up. At the time of trial she had been living with another man for a year and a half and she had asked her husband, Hess, for a divorce. She testified that she was threatened with arrest by Crone if she did not testify against Hess, and also admitted that she had given numerous previous statements denying any knowledge of the crime.
At trial, appellant testified that he was innocent and his only concern was protecting his wife. He said that after coming to Florida in 1991, he worked for several security companies and his goal was to become a police officer. He stated that on the night of the homicide he was working as a security guard. After his security shift ended, he picked up his wife at the Shell station at around 12:15 a.m. and they went to Denny’s, where they had dinner and remained for about an hour and a half. After leaving Denny’s, they drove back to the Shell station for coffee, and then went home. Appellant stated that he first learned of the murder the following day on the midday news. Appellant testified that he did not remember making any statement prior to the murder about a security guard being shot. Appellant also stated that he was a good talker and he invented the earlier statements he made because he was seeking employment with the sheriff’s department, and he thought that if he were helpful in solving the Galloway homicide then Deputy Allen would write him a letter of recommendation. He stated that his statements beginning with those on April 10, 1995, were coerced. He also stated that the police had deprived him of the medication he was taking for depression and other mental problems. He said the police told him that people like him go to mental hospitals, not prison, and that if he did not cooperate his wife could go to prison.
The jury convicted appellant of first-degree murder and robbery with a firearm. At the penalty phase the State presented Betty Galloway and Linda Crosby. Galloway was the victim’s spouse. Her testimony was brief and focused on victim impact. Crosby was a sheriff’s deputy for the Lee County Sheriff’s Office. During her testimony, the State introduced a certified copy of appellant’s prior convictions on two counts of sexual activity with a child and lewd assault on a child.
Defense counsel presented appellant’s sister, Julie Ann Teachworth, and appellant. Hess’s sister testified in detail about appellant’s mental problems, troubled childhood, his first marriage, and the impact on appellant of social services taking his two boys away from him. She testified that Hess had serious and chronic mental problems since he was an infant and that he was borderline retarded as an adult. Appellant’s testimony corroborated much of Teachworth’s testimony. Appellant also stated that in 1993 he was taking 600 milligrams of Lithium and 100 milligrams of Klonopin for depression. He claimed that he would “not hurt a fly” and expressed sympathy for the victim’s family. After closing arguments, the case was submitted to the jury. The jury, after deliberating for one hour, recommended by an eight-to-four vote that appellant be sentenced to death.
Particularly noteworthy is the evidence that appellant has a history of learning disabilities, was considered ten years behind his chronological age, was considered borderline retarded during his school years and was placed in special education classes as a result of his mental or emotional infirmities. The record also reflects that appellant was diagnosed in 1991 as being chronically depressed and suffering from substantial mood swings, for which he was placed on prescription medication. As of the time of the penalty phase proceeding, appellant was still taking medication for depression and had been receiving counseling in jail since October of 1995. Based on this evidence, the trial court found that appellant was suffering from some mental or emotional disturbance at the time of the murder, to which it gave moderate weight. This finding is bolstered by the bizarre circumstances of this crime and appellant’s numerous confusing statements.
Accordingly, we affirm appellant’s convictions of first-degree murder and robbery with a firearm. However, we vacate appellant’s sentence of death and remand this case to the trial court to impose a sentence of life imprisonment without possibility of parole for twenty-five years.