By PATRICIO G. BALONA Staff Writer
DELAND -- An attorney representing the man convicted of murdering two clerks at a Dollar General Store in Deltona claims the judge who presided over the trial allowed several errors that caused jurors to find his client guilty and recommend the death sentence.
McDuffieMiami appellate attorney Todd G. Scher is scheduled to argue today before the Florida Supreme Court that Roy Lee McDuffie's conviction in early 2005 should be overturned and he should be granted a new trial.
McDuffie, 44, is awaiting execution for the murders of Janice Schneider, 39 and Dawniell Beauregard, 27, on Oct. 25, 2002. The two store clerks were found shot to death with several stab wounds in a back office at the Dollar General Store on Deltona Boulevard.
McDuffie, a manager trainee at the store, was linked to the crime by a partial palm print found on duct tape binding Beauregard. That evidence, Scher wrote in a brief to the Supreme Court, was not sufficient to tie McDuffie to the crime scene.
Scher also wrote that the trial judge, Circuit Judge S. James Foxman, excluded a witness, Anthony Wiggins, who would have testified McDuffie didn't need the money that was stolen because he had loaned money to McDuffie.
Scher also said Foxman allowed a witness, Alex Matias, to identify McDuffie as the person he saw walking out of the store, even though he could not give police enough information to create a sketch and became certain of McDuffie's identity only after seeing him on television. Matias stood by his identification because he did not want to lose a $10,000 reward, Scher wrote.
In addition, Scher argued the judge improperly allowed the jury to consider the contention by prosecutors that the murders were cold, calculated and premeditated in recommending a death penalty, then ruled, in sentencing him to death, that the crime wasn't premeditated.
Scher plans to ask Supreme Court justices to toss out the court's decision to put McDuffie to death, and grant him a new trial.
Scher could not be reached for comment Wednesday.
"I am not worried," said Kelli Jo Lee, sister of murder victim Janice Schneider. "I felt the prosecutor proved his case and (McDuffie) can't bring in any new evidence he may have made up."
Lee said she will not attend the hearing because McDuffie will not be present. She only attends when McDuffie is present because she believes her resemblance to her sister makes McDuffie uncomfortable.
"I kind of like that I have that power over him," Lee said.
Sandi Copes, the state attorney general's press secretary, would not comment on the McDuffie oral arguments because it is set to go before the Supreme Court.
But in a brief by the attorney general's office responding to Scher's arguments, attorney Barbara Davis wrote that Wiggins was not listed by the defense as a witness; and the court did not abuse its discretion by allowing Matias' testimony.
Davis wrote that the jury was not bound to recommend a sentence based on the prosecutors' assertion the crime was premeditated.
Davis asked the Supreme Court to "affirm the convictions and sentences."