KEATON, Dave Roby (B/M)
DC# 030350
DOB: 02/05/52
Second Judicial Circuit, Leon County, Case # 6366
Sentencing Judge: The Honorable Guyte P. McCord, Jr.
Trial Attorney: Harry L. Michaels, Private
Attorneys, Direct Appeal: Kent Spriggs, Paul L. Ross, JamesReif, Morton Stavis,
MargaretRatner, Private
Date of Offense: 09/18/70
Date of Sentence: 05/11/71
Circumstances of the Offense:
At approximately 2:30 p.m. on September 18, 1970, two deputy sheriffs assigned as jailors in Leon County, Thomas Revels and Hallie M.Carroll, entered Luke’s Grocery Store to make a purchase. Three armed blackmales, who were in the process of robbing the store, ordered the two unarmedofficers to the east side of the building and directed them to lie down on thefloor with the four other victims of the robbery. After taking the deputies’money, one of the black males stated, “We are going to kill everybody in hereand start with the women.” Deputy Revels jumped to his feet and grabbed one ofthe assailants and a struggle ensued. Deputy Revels was shot under the leftarmpit and in the back of the head. Deputy Carroll attempted to aid DeputyRevels, and he was shot once in the stomach and once in the mouth. DeputyCarroll survived the attack; however, Deputy Revels died as a result of hisinjuries.
The following five defendants were indicted for the felonymurder described above: Dave Keaton, Johnny Frederick, Alphonso Figgers, JohnnyLee Burns, and David Charles Smith, Jr. These five defendants were referred toas “the Quincy Five.”
Keaton was initially brought in for questioning in theunrelated armed robbery of a Colonial Food Store that occurred on 09/10/70.
Keaton later gave three separate confessions regarding theLuke’s Grocery robbery to different officers on different days- two of whichwere recorded. He gave a taped statementinitially to Lt. Terry and made a subsequent taped statement to Captain Pitts.Both of the confessions that were played during the trial provided a detaileddescription of how Keaton and his codefendants committed the robbery. In ataped interrogation, Keaton was asked if during the commission of the robbery heremembered any “colored people” entering the store. Keaton’s taped reply was,“Yeah, there was an elderly man, come in with some bottles or something.” Thisinformation matched the trial testimony of witness, Eddy Davis, who claimedthat, although he was unable to identify the assailants, he had, in fact,entered Luke’s grocery with glass bottles to return.
Keaton recanted his confession at trial. He testified that,although he had given taped statements confessing the crime to the officers, hewas coerced into admitting that he was involved in the robbery at Luke’sGrocery. Keaton stated that he was brought in for questioning on anotherrobbery case and was later asked about the Luke’s Grocery Store robbery. Keatontestified that, when he denied his involvement in the robbery of Luke’sGrocery, Lt. Terry told him that he was lying and claimed they had ways toprove that he was at the store on the night of the robbery. Keaton statedinvestigators refused to allow him to call anyone for five days. He claimedthat he made repeated requests to phone his mother, so that she could obtain anattorney for him. He also claimed that he was driving his mother to work at the Sunland Hospital on the day of the offense.
Keaton testified that Lt. Perry directed him as how toanswer all of the questions and provided him with all of the answers heard onthe tape. He stated that he was subject to lengthy interrogations and claimedhe finally decided to give them the statement that they wanted. Keaton statedthat, although he had confessed, he assumed that at trial he would be found notguilty, since he was never present during the offense. At trial, both Lt. Terryand Capt. Pitts denied forcing Keaton to confess.
Keaton and Frederick were tried together while a severancewas granted for separate trials for the other three defendants because Keatonand Frederick had given written statements that implicated Smith, Burns, andFiggers.
Frederick also gave an oral confession to law enforcementofficers. Frederick reenacted the crime and explained how he, Keaton, and theother defendants committed the robbery. Frederick stated that the car belongingto ‘the Quincy Five’ was parked around the side of Luke’s Grocery Store priorto the robbery.
After the trial of Keaton and Frederick, but before Smith’strial, three more defendants were indicted for the murder of Deputy SheriffThomas Revels based on latent fingerprints found at the scene. Theseindividuals were John Allen Mitchell, James Fussell, and Jessie Henry Damon.These defendants were called “the Jacksonville Three.” The evidence presentedat “the Jacksonville Three’s” trial was exculpatory to the trials of “theQuincy Five.” Due to the fact that Smith had not yet been tried, the evidenceimplicating three additional suspects was used in his defense. No fingerprintsfrom any of “the Quincy Five” defendants were found at the scene. Keatonexplained the lack of fingerprints in his confession by claiming that he andSmith wore gloves.
During the original trial, Keaton, Frederick, Burns, andSmith were identified by eyewitnesses as participants of the robbery. DeputyCarroll identified Smith as the shooter. The same eyewitnesses identified fourof the “Quincy Five” at all of the trials as participating in the robbery, twoof which specifically identified Keaton as one of the robbers.
Additional Information:
Keaton was indicted on unrelated charges of two counts ofArmed Robbery and one count of Assault with Intent to Commit First-DegreeMurder on January 18, 1971. On 10/13/72, he pled no contest to the charges andwas sentenced to two concurrent twenty- year sentences. In his statement,Keaton admitted his guilt. He was released and paroled on 07/24/79 and his parole was terminated on 09/09/81.
Codefendant Information:
Quincy Five:
Johnny Fredrick was tried with Keaton and found guilty. Thejury recommended mercy for Fredrick, who, consequently was sentenced to life.The sentence and conviction were overturned.
Johnny Lee Burns was found incompetent and did not standtrial. He was committed to the State Hospital.
Alphonso Figgers’ case was nolle prossed due to insufficientevidence. Figgers was sentenced to Life on 10/27/70 for Robbery with a Firearm.
A jury tried David Charles Smith, Jr. after the convictionof “the Jacksonville Three.” Smith was acquitted of all charges.
Jacksonville Three:
John Allen Mitchell was tried by a jury and found guilty on January 14, 1972. The jury recommended mercy; therefore, Mitchell was sentenced to life.
Jessie Henry Damon was tried by a jury and found guilty on December 16, 1971. The jury recommended mercy; therefore, Damon was sentenced to life.
A jury tried James Fussell. He was found guilty andsentenced to Life on April 21, 1972. Fussell passed away on 10/23/01, while in the custody of the Department of Corrections.
Trial Summary:
01/28/71 The defendant was indicted forFirst-Degree Murder. The defendant pled
not guilty.
05/06/71 The defendant was found guilty.
05/11/71 A majority of the jury did not recommendmercy; therefore, the defendant
received anautomatic death sentence due to the law at the time.
Retrial Information:
02/21/73 FSC remanded the case for a new trial
07/19/73 The State Attorney nolle prossed the case
Appeal Summary:
Florida State Supreme Court, Direct Appeal
FSC# 41231
273 So. 2d 385
05/28/71 Appeal filed.
07/21/72 FSC relinquished jurisdiction to theCircuit Court for an evidentiary
hearing.
09/08/72 Defendant’s sentence was converted tolife, as per Anderson v. Florida .
11/14/72 Circuit Court stated that a new trial wasneeded.
02/21/73 FSC remanded for new trial.
03/15/73 Mandate issued.
Case Information:
Keaton filed a Direct Appeal with the Florida Supreme Courton 05/28/71. Keaton’s sentence was converted to life based upon the rulings of Furmanv. Georgia and Anderson v. Florida1. Frederick filed a3.850 Motion in the Circuit Court alleging that the existence of newlydiscovered evidence was withheld by the State. The evidence connected the“Jacksonville Three” to the crime. This evidence was presented by the defensein the trial of a codefendant, Smith. The state made a motion to the FloridaSupreme Court to relinquish jurisdiction of Keaton’s case to the Circuit Courtfor consolidation with Frederick’s motion. On 07/22/72, the Florida SupremeCourt relinquished jurisdiction of the case and, on 11/14/72, the Circuit Courtruled that a new trial was needed. On 02/21/73, the Florida Supreme Courtadopted the Circuit Court’s recommendation and vacated Keaton’s judgment andsentence.
The Florida Supreme Court remanded the case for a new trial;subsequently, the State Attorney decided to nolle prosse the case. The Stateclaimed the factors contributing to the decision not to prosecute were asfollows: (a) the crime was no longer a capital crime due to a change inlegislation, (b) Keaton, who was not the triggerman, was already serving 20years for another robbery case, and (c) several of the eyewitnesses werephysically ill and further trials could possibly contribute to the additionaldeterioration of their health.
Prosecution/Law EnforcementStatement:
Harry Morrison, the State Attorney who tried the case,passed away in 1980. The following are excerpts from the Nolle Prosequi thatMr. Morrison filed when he chose not to retry the case. The format has beenaltered to improve readability:
In the course of this first trialthe confessions of Keaton and Frederick were duly admitted into evidence. Mr.Keaton implicated himself and the four other defendants. Mr. Frederickimplicated himself and the four other defendants. Mr. Keaton first gave anoral, confession to a State officer, namely special ‑ agent Joe Townsendof the Florida Department of Law Enforcement. This statement was given onJanuary 13, 1971. Almost immediately thereafter, on the same date, Keaton gavea detailed recorded confession to Lt. Melvin Terry of the Leon County Sheriff'soffice. This statement was witnessed by deputy sheriff Charles Landrum. On thenext day, January 14, 1971, Capt. Lavelle Pitts of the Leon County Sheriff’stook an even more detailed recorded confession from the defendant Keaton. Inone of his statements Keaton indicated that he and Smith wore gloves so as toleave no fingerprints.
The defendant Frederick also firstorally confessed to the same officer, Mr. Townsend, on January 14, 1971, thedefendant Frederick also gave a recorded statement in detail to Lt. Terry,which was witnessed by Capt. Pitts. In his statement Frederick stated that thecar they were riding in was parked around the side of Luke’s Store prior to therobbery. Lt. Terry testified how in January 15, 1971, he and deputy sheriffLandrum were accompanied by Johnny Frederick who reenacted in minute detail theroute by which Frederick and the other named defendants came to Tallahasseefrom Quincy on the afternoon of the robbery.
Lt. Terry testified how Frederick located and pointed out the Jr. Food Store quick service center, 2411 Jackson Bluff Road, where the tape used to bind the victims was purchased. Mrs.Dorothy Lindsay, manager of this Jr. Food Store, identified the tape found inthe Luke Store and testified at the trial that it was purchased from her byfour black males about the time of the robbery.
In the course of this first trialdefendants Keaton and Frederick, as well as defendants Burns and Smith, weredefinitely identified by witnesses as participants in the robbery resulted inthe death of deputy sheriff Revels. In this first trial, and in four subsequentseparate trials of other defendants charged with the same crime, defendantDavid Charles Smith was identified by Mr. Carroll as the trigger man whoactually pulled the trigger of the pistol which killed Mr. Revels.
It will be noted that manyunidentified fingerprints were developed in the Luke store during the originalinvestigation of this robbery and murder. Later, during the year 1971, theState Attorney was given the name of three additional suspects for fingerprintcomparison with these latents developed and listed at the scene of the crime.The fingerprints of these suspects were compared with certain latents at thespecific locations in the store, and on articles, which were obviously handledby the robbers in the store. The latent fingerprints of one Henry Damon weredeveloped from scattered cartons of cigarettes found in the floor under thecash register; also Damon’s prints were lifted from a jar of pennies in thestore office and from the filing cabinet in the same office. The latent palmprints of one John Allen Mitchell were developed from an outside wrapper of apack of hose found among several packages of scattered hose recovered from theeast aisle of the store. Also Mitchell’s fingerprints were on the outsidecover of an unopened package of hose found in the floor at another locationfurther back in the same east aisle. The latent fingerprints of John AllenMitchell and James Fussell were developed from a brown paper sack containingtwo rolls of tape found on the frozen food counter adjacent to the east aisle. The latent fingerprints of Fussel were also found on one of four differentpackages of hose picked up by an officer who originally investigated the crimescene (All of the above allegations with reference to the fingerprints ofDamon, Mitchell and Fussell were later brought out by sworn testimony at theirsubsequent trials.)
Further investigation developedevidence indicating that John Allen Mitchell,
James Fussell and Jessie HenryDamon were traveling together in Tallahassee at the time of the robbery andwere prime suspects in the same robbery resulting in the death of Mr. Revels. TheState proved "The Jacksonville 3" guilty by circumstantial evidence,and beyond a reasonable doubt they were all personally present andparticipating in the same robbery even though they were not actually seen orrecognized by eye witnesses.
The evidence in all of these trialsreflected that Luke's store contained an estimated 4000 square feet of floorspace with various entrances including doors on the east, north and south; thatit was heavily loaded with aisles of merchandise making it impossible forpersons in the store to see everyone else who may be moving about in thisstore. The evidence at each trial clearly reflected that the various eyewitnesses saw different robbers at different times ranging in different numbersfrom 1 to 5. The number they saw depended on the location of the witnesses andthe restrictions imposed on them by these robbers who were armed andthreatening to kill the witnesses if they attempted to look up and identify therobbers.
In all of the above cases,beginning with the first trial, of Keaton and Frederick, of, the "Quincy5" and in each of the three separate trials of "The Jacksonville3" substantially the same eye witnesses appeared and testified under oathand definitely identified four of the "Quincy 5" defendants as alsoparticipating in the same robbery which resulted in the murder of Mr. Revels. Thesewitnesses included Mrs. Gwynn Phillips, Mrs. P. B. Deter, Mr. Hallie M.Carroll, Mr. Luther W. Adamson, Mr. Cleo Simmons and Mrs. Dorothy Lindsay.
These same witnesses gave sworntestimony in five separate trials that put four of the "Quincy 5"defendants, including Keaton and Frederick, at the scene and participating inthe robbery that led to the death of Mr. Revels. The fifth man in the"Quincy 5" group, namely, Alphonso Figgers, was tentativelyidentified by Mrs. Phillips as also being there and this defendant Figgers wasalso implicated in the confessions of Keaton and Frederick which were receivedin evidence at their first trial.
It was the State's theory andargument to the court and jury in each trial of "the Jacksonville 3'” andin the later trial of David Charles Smith, Jr. that the subsequentidentification of additional defendants did not exonerate the "Quincy5"; that this was simply additional evidence leading to the identificationof additional participants in the same crime and did not affect the guilt orinnocence of the "Quincy 5"; that the evidence showed that the car of“The Jacksonville 3” was backed into a side street east of the store; both theQuincy 5” and “the Jacksonville 3” were all there in two automobiles in whichthey made their escape following the robbery. That was also this StateAttorney’s contention in all other proceedings dealing with the question of anew trial for defendants Keaton and Frederick.
In making the decision to enterthis nolle prosequi in the case of Keaton and Frederick, it should be notedthat the State Attorney is not obliged to present all charges which theevidence might support; neither is he obliged to prosecute all defendantsagainst whom evidence exists which would support a conviction.
It is well established that theprosecutor may in some circumstances and for good cause decline to prosecute adefendant notwithstanding that evidence exists which would support hisconviction.
It is interesting to note that thisparticular case is no longer a capital crime. While the legislature has sinceenacted a new capital crimes law, this particular case falls within thecategory of a non‑capital. If it was tried it would be before a six‑mayjury. Keaton, who was not the triggerman, is already serving 20 years forrobbery in another case imposed in Leon County, October 13, 1972.
So the question arises as towhether further prosecution of Keaton would serve any good purpose consistentwith the public interest since he is already serving 20 years in the Stateprison. In fact, all eight of the defendants charged with the murder of Mr.Revels have been removed from society for some time as follows:
1. Dave Roby Keaton is currentlyserving a sentence 20 years imposed 10/13/72 in Leon County for robbery.
2. Alphonso Figgers is currentlyserving a sentence of life on one count of robbery and 15 years on a secondcount of robbery, both to run concurrently; he was sentenced from JacksonCounty 10/13/72; still wanted by U.S Government for violation of gun law;detainer placed.
3. David Charles Smith, Jr. iscurrently serving two sentences of 25 years each from Leon County for robbery, and 10 years from Gadsden County for bombing a power plant; all of saidsentences will run concurrently but will not run concurrently with any othersentences he may receive in the Federal court. He is presently wanted by USGovernment for violation of gun law; detainer placed; also wanted by Jackson County for robbery; detainer placed.
4. Johnny Lee Burns is reported incurablyinsane and has been committed to the State Hospital at Chattahoochee sinceearly 1971.
5. Jessie Damon is currentlyserving a sentence of life in the State prison from Leon County for the murderof Mr. Revels.
6. John Allen Mitchell is currentlyserving a sentence of life in the State prison from Leon County for the murderof Mr. Revels.
7. James Fussell is currentlyserving a sentence of life in the State prison from Leon County for the murderof Mr. Revels.
8. Johnny Frederick is currentlyserving a sentence of life in the State prison imposed May 1, 1971, for themurder of Mr. Revels, he has been granted a new trial and this nolle prosequiwill have the effect of releasing him. It as noted, however, that JohnnyFrederick has not been identified as a member of the gang that Smith, Keaton,Burns and Figgers were associated with. He has no known criminal record. In hisconfession he declared he was outside in the car and was not actuallyparticipating in the robbery as such which resulted in the death of Mr.Revels. There is no evidence that his release at this time would necessarilybe against the public interest.
Another factor to consider is thecontinuing expense to the State. This case will obviously be appealed byattorneys for the defendants in the event of a second conviction of either ofthem.
But a most important factor whichthe prosecutor may properly consider in exercising his discretion deal withwitnesses. These cases have already been tried five times in two years, orsince May 3, 1971. Each trial was about one week: this retrial could bestretched longer than that. Many of the same witnesses have been summoned foreach trial; on each of these occasions they have been very willing, cooperativeand patient, although their appearance was always at great discomfortinconvenience and expense to themselves. One had a heart attack before thefirst trial, although she has since appeared at subsequent trials. Two othervery material eyewitnesses are ill. The latter two have testified in fivetrials and were ill when they testified in the last trial. A continuance of theKeaton and Frederick re-trial to permit their recovery would serve little ifany purpose. The doctor for one of them has advised that his patient is unableto testify even though she has [to] agree to cooperate and try to do so. Anaffidavit from the doctor for one material eyewitness reflects that her furtherappearances in his opinion will deteriorate her existing condition and damageher physical and mental health. It is doubtful if a conviction could beobtained without her. While she is willing to try to do so, she cannot assurethe State that she will be able to do so. The undersigned State Attorney feelsan obligation to these witnesses in making the decision to enter this nolleprosequi. The conviction of Keaton and Frederick for any of the severaloffenses embraced within the indictment is not worth taking a chance ofinjuring the health of one single witness.
THEREFORE, the undersigned StateAttorney respectfully says that the case of State of Florida vs. Dave RobyKeaton and Johnny Frederick is nolle prosequi.
Law Enforcement Statements:
Defense Statement:
Trial attorney (defense), Harry Lewis Michaels, made thefollowing comments in regard to the Dave Roby Keaton case:
I never did believe that the eyewitness testimony was that strong and convincing. It was confusing. However,even without the confessions, the testimony probably would have been sufficientto convict.
The lack of fingerprints of any ofthe five defendants was, of course, strongly argued by the defense.
The confessions bothered me fromthe outset. Keaton did not present the usual accusations, such as threats, beatings,etc. He said that after awhile he just threw up his hands and said: “if you sayit was that way, it must have been.” It was not until the trial that I got therevelation as to what occurred during the interrogation.
The polygraph operator is the onewho obtained the confession. It was through trickery, chicanery, lying by theoperator, deviousness and just plain unethical conduct, that a confession wasobtained. I had nothing but contempt for this state witness. Judge McCordexpressed concern over the methods used in obtaining the confession, but, afterconsiderable deliberation, did allow the confession into evidence.
Up until the trial I had believedthe confessions were probably voluntary. Keaton and his mother at one pointexpressed concern that I did not believe in his innocence and questionedwhether I should be representing him. I devoted five months almost exclusivelyto this court appointed task. My partners took over my workload at my law firm.So regardless of Keaton’s concern, I gave it all I had on his behalf. As thetrial progressed, coerced through fraud and trickery, no fingerprints and shakyeye witness testimony.
I followed the “Jacksonville Three”case with great interest. The fact that not any of the “Quincy Five” were onthe premises all were innocent of that robbery and murder, shows how ourcriminal justice system just fails us at times. The confession should not havebeen admitted into evidence. The death penalty should not be given on shaky eyewitness testimony.”
Current status:
Subsequent to his release, Keaton was arrested on a DUIcharge. NCIC does not show any other arrests.
Updated: 10/05/06 JFL