Current Prison Sentence History:

08/01/1990 1ST DG MUR/PREMED. OR ATT.(CONSPIRACY TO COMMIT) 11/04/1991 LAKE 9001297 30Y 0M 0D
08/01/1990 1ST DG MUR/PREMED. OR ATT.(CONSPIRACY TO COMMIT) 11/04/1991 LAKE 9001297 30Y 0M 0D
08/27/1990 1ST DEG MUR,COM.OF FELONY 11/04/1991 LAKE 9001297 DEATH SENTENCE
08/27/1990 1ST DEG MUR,COM.OF FELONY 11/04/1991 LAKE 9001297 DEATH SENTENCE
08/27/1990 BURGLARY,ARMED W/EXP. OR WEAPO 11/04/1991 LAKE 9001297 SENTENCED TO LIFE

Incarceration History: 10/28/1986 to 01/28/1988 - 11/06/1991 to 04/23/2014

Miami Herald

"Florida executes man convicted of murdering two," by Brendan Farrington. (Associated Press Wednesday, 04.23.14)

STARKE, Fla. -- Florida executed a man on Wednesday who was convicted of murdering two relatives to prevent one of them from testifying against him in a burglary trial. Robert Hendrix was pronounced dead at 6:21 p.m. at Florida State Prison in Starke, shortly after the lethal injection procedure began. He made no final statement. Hendrix was the fourth person executed in Florida this year and the 16th since Gov. Rick Scott took office in 2011.

Hendrix was convicted of the 1990 murders of Elmer and Michelle Scott at their Lake County home. Prosecutors said Hendrix killed the couple because Elmer Scott intended to testify against him. But Hendrix's attorney said no forensic evidence links his client to the murders, and the witnesses against him were unreliable.

The victims' daughter, Rachel Scott, was only 5 months old when her parents were killed. She was home in her crib but was not harmed, and said she hopes her parents are remembered for who they were as people. "I plan on keeping them alive in my heart and suggest everyone else do the same. I will always continue to tell their story," she said. Elmer Scott's sister, Lisa Hunt, said the execution brought a sense of relief. Lisa is also a cousin of Hendrix. "I feel today, as we watched my cousin die, justice, only because he is finally dead," she said.

Evidence in the case showed Hendrix shot Scott in the face in his trailer home, hit him in the head with the gun and stabbed him in the neck the night before Hendrix's trial in the armed burglary case was to begin in August 1990. Hendrix then used a knife to cut the throat of Scott's wife, Michelle, who fought back before Hendrix shot her three times, they added.

Scott had already made a plea deal with prosecutors in the armed burglary case in which he and Hendrix broke into a house but only Scott was caught. His cooperation led investigators to arrest Hendrix. In the weeks leading up to his trial, prosecutors say, Hendrix told friends he would kill Scott rather than return to prison Prosecutors say that on the night of the murders, Hendrix's live-in girlfriend — Denise Turbyville — drove him from Orange County, where they lived, to the Scotts' trailer in neighboring Lake County and dropped him off. Michelle Scott welcomed Hendrix into the trailer, and told him Elmer Scott was in the bathroom shaving and would be out shortly. When Elmer Scott came out, Hendrix asked to use the bathroom. When he left the bathroom, Hendrix fired shots at Elmer Scott and then grabbed a knife and attacked Michelle Scott, according to prosecutors.

Turbyville pleaded guilty to two counts of second-degree murder and was sentenced to 75 years in prison. Another witness against Hendrix, Roger LaForce, was a confidential informant for a narcotics task force and stood to gain a lighter sentence for his assistance, Hendrix's attorneys say.

Hendrix attorney Harry Brody also said the presiding judge had a conflict of interest, Hendrix's trial lawyer was ineffective at presenting mitigating circumstances during sentencing and that Hendrix was shackled during his trial, leading jurors to a biased impression that he was dangerous. During sentencing, Hendrix's attorneys failed to call witnesses who could have testified that Hendrix was regularly beaten by his father and had a serious drug addiction, factors that could explain his unbalanced mental state, according to court papers filed by Hendrix.

Earlier Wednesday, the U.S. Supreme Court denied Hendrix's last-minute request for a stay without comment. He ate a last meal of pork chops, sausage gravy and biscuits, German chocolate cake and a soft drink, state corrections officials said.

Reuters News

"Florida executes man convicted in 1990 murder of two relatives," by Bill Cotterell. (Wed Apr 23, 2014 7:17pm)

TALLAHASSEE, Florida (Reuters) - A man convicted of killing his cousin and the man's wife to prevent his cousin from testifying against him in a burglary case was executed in Florida on Wednesday, a state prison official said. Robert Eugene Hendrix, 47, was pronounced dead at 6:21 p.m. local time from a lethal injection, said Jessica Cary, a spokeswoman for the Florida Department of Corrections.

Hendrix was convicted of shooting, stabbing and beating Elmer Scott and his wife, Michelle Scott, at their mobile home in Sorrento, central Florida. Hendrix and Elmer Scott had been involved in a home burglary, for which Scott was caught and given a reduced sentence in exchange for his testimony against Hendrix. On August 27, 1990, the eve of his trial, Hendrix and his girlfriend, Denise Turbyville, shot his cousin, beat his head with a pistol and stabbed him in the neck, prosecutors said. When Michelle Scott intervened, she was stabbed and shot. Turbyville, who received 75 years in prison for second-degree murder, testified against Hendrix to avoid the death penalty. She said Hendrix had discussed his plans to kill Scott and avert going back to prison, where he served 15 months for grand theft, burglary and dealing in stolen property in the Orlando area.

Defense attorneys contended Turbyville and a former cellmate of Hendrix were unreliable witnesses because they were seeking sentence reductions. They also said the trial judge had a conflict of interest because before becoming a judge he had consulted with Turbyville's defense lawyer, and that trial jurors had seen Hendrix shackled in the courtroom, creating a bias affecting his right to a presumption of innocence. His appellate lawyers also contended that Hendrix received poor representation in the sentencing phase of his trial because his counsel did not produce evidence that he was addicted to drugs and had been severely beaten by his father. The Florida Supreme Court rejected those arguments.

Florida Governor Rick Scott has overseen 15 previous executions since becoming governor in early 2011.

(Editing by David Adams, Kevin Gray and Steve Orlofsky)

Huffington Post

"Robert Hendrix Executed In Florida For Murdering Two," by Brendan Farrington. (AP 04/23/2014 7:21 pm EDT)

STARKE, Fla. (AP) — Florida has executed a man convicted of murdering two relatives to prevent one of them from testifying against him in a burglary trial. Robert Hendrix was pronounced dead at 6:21 p.m. at Florida State Prison in Starke, shortly after the lethal injection procedure began.

Prosecutors say that in August 1990, Hendrix shot, hit and stabbed his cousin, Elmer Scott, in his Lake County trailer home. They say he then cut the throat of Scott's wife, Michelle, and shot her. Elmer Scott had planned to testify the next day at Hendrix's burglary trial. Scott had been his partner in the crime but had reached a plea deal. The 47-year-old Hendrix was the fourth inmate executed by Florida this year and the 16th since Gov. Rick Scott took office in 2011.

Sun-Sentinel

"Robert Hendrix executed for brutal Lake killings," by Susan Jacobson. (8:22 p.m. EDT, April 23, 2014)

RAIFORD — Nearly 24 years after he murdered a young Lake County couple, Robert Hendrix was executed Wednesday evening by lethal injection at Florida State Prison. Hendrix, who made no final statement, died at 6:21 p.m., 10 minutes after being injected with the first of three lethal drugs.

He was put to death for the brutal slayings of his cousin Elmer Bryant Scott Jr., 25, and his wife, Michelle Scott, 18. Hendrix slashed Scott's throat, put a bullet in his head and clubbed him with the gun so many times that the trigger broke off in the victim's scalp. Then he shot Michelle Scott twice in the head, stabbed her more than 30 times and cut her throat. He left the couple's 5-month-old baby, Rachel, unharmed in her crib.

Rachel, now 24, joined relatives of the victims in the front row of Florida State Prison's viewing room, separated from Hendrix by a long window. When the curtain was opened, Hendrix was lying on his back, his feet to the witnesses. He was strapped to a gurney and covered by a white sheet. Only a portion of his left arm was visible. His left hand was bandaged and secured to an armrest. The bandages are used to prevent condemned killers from flashing gang signs or making obscene gestures, Florida Department of Corrections spokeswoman Jessica Cary said. Hendrix's breathing was visible during the first five minutes. Then his chest stopped moving. Minutes later, a doctor examined him briefly before a corrections official announced that the death sentence had been carried out. Hendrix's fate was sealed earlier in the day when the U.S. Supreme Court rejected his appeal. He ate a last meal of pork chops, sausage gravy, biscuits, German chocolate cake and Mountain Dew.

After the execution, Rachel Scott said she will keep the memory of her parents alive in her heart. "May they rest in peace," she said. "Thank you for never allowing them to be forgotten."

Hendrix's attorney argued to the end in court motions that the evidence and witnesses were unreliable and his client deserved a new trial. But retired Lake County Assistant State Attorney Bill Gross said there was no doubt about Hendrix's guilt. Hendrix went to the Scotts' mobile home in Sorrento on Aug. 27, 1990, with a .22-caliber Magnum revolver equipped with a homemade silencer and emerged after the killings wearing a mask, gloves and a cap, court records show. Scott's mother found the bodies the evening of Aug. 28 after he didn't show up for his job as a truck driver and no one could reach him. "This is the bloodiest murder scene I've ever been to," Gross said.

Hendrix killed Scott to prevent him from testifying against him in a burglary case. In the late 1980s, the cousins had broken into a home east of Eustis, and Scott got caught. Law officers found a cartridge for a .22-caliber Magnum in the closet of the bedroom Hendrix and his 19-year-old girlfriend shared just outside Apopka. In a fire pit out back, more cartridges were found in the pocket of a shirt that had been burned along with more of Hendrix's clothes, Gross said. More than a dozen witnesses testified that Hendrix had asked to borrow a gun, that they heard him threaten Scott or that Hendrix's girlfriend, Alma Denise Turbyville, told them the details of the killings. Turbyville, 43, cut a plea deal and has 10 more years on her prison sentence.

Rachel Scott said she doesn't harbor the harsh feelings for Hendrix that people who knew her parents do. Now raising two young sons in upstate New York, Scott said she hopes to find peace by learning about her parents from their friends and relatives. "It's been a tough time for everyone, and I'm glad everyone will find closure in their own way," she said.

Hendrix was visited in the morning by his parents, who are in their 70s, and a Catholic spiritual adviser, Cary said. His execution was the fifth in Florida in the last year. The state executed seven people in 2013.

Wikipedia

Following is a list of inmates executed since Florida resumed executions in 1979:

1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.

2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor

62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon

63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules

64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy

65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.

66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis

67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr

68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons

69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park

70. Manuel Valle 28 September 2011 lethal injection Louis Pena

71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers

72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer

73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott

74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.

75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson

76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan

77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis

78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson

79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)

80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley

81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins

82. Thomas Knight a/k/a Askari Abdullah Muhammad 7 January 2014 lethal injection Sydney and Lillian Gans, Florida Department of Corrections officer Richard Burke

83. Juan Carlos Chavez 12 February 2014 lethal injection Samuel James Ryce

84. Paul Augustus Howell 26 February 2014 lethal injection Trooper Jimmy Fulford

85. Robert Lavern Henry 20 March 2014 lethal injection Phyllis Harris, Janet Cox Thermidor

86. Robert Eugene Hendrix 23 April 2014 Elmer Bryant Scott Jr., Michelle Scott

ProDeathPenalty.Com

Robert Eugene Hendrix was sentenced to die for the murders of his cousin Elmer Scott and Elmer's wife Michelle. Hendrix broke into a house with his cousin, Elmer Scott. Elmer was caught and entered into a plea agreement with the State wherein he would plead no contest to a reduced charge of simple burglary, adjudication would be withheld, and he would serve two years' community control. As a condition of the plea, Elmer agreed to testify truthfully against Hendrix. Based on Elmer's deposition, Hendrix was arrested and charged with armed burglary of the dwelling. The State offered a plea agreement to Hendrix wherein he would receive four years' imprisonment and five years' probation. The court date was set for August 28, 1990.

Hendrix did not want to accept a plea and told several friends prior to his court date that he was going to kill Elmer to keep him from testifying. Hendrix discussed with his live-in girlfriend, Denise Turbyville, various plans to kill Elmer. Hendrix also tried to secure from a number of people a "throw-away" pistol that could not be traced to him. On August 27, 1990, the day before his court date, he came home with a handgun, attempted to construct a silencer for it, and test-fired it. At some time after 11 p.m. that night, he told Denise to get ready, that they were going to Elmer's. He had a mask, gloves, and hat. She drove to the vicinity of Elmer's mobile home, dropped him off, drove to the county line, and pulled over to wait.

Denise heard a number of shots and then several minutes later Hendrix got in the car, saying "Don't look, just go." When they arrived home, they did not turn on the lights. Hendrix took a shower and burned his clothes out back. He gave Denise an account of the murders: He shot Elmer Scott in the head, and when Elmer's wife, Michelle, tried to fight him, he slashed her throat with a knife. He then hit Elmer over the head with the gun butt and slashed his throat "for insurance." As he shot Elmer, he swore -- "I'll see you in hell!"

The next day, Elmer's mother Thelma Scott found the bodies of her son and his wife. She had to step over her son's face-down body in the hallway and walk past Michelle in order to get to her 5-month-old granddaughter Rachel. Hendrix was arrested and tried for the crimes. The medical examiner testified that each victim had been shot, bludgeoned, and stabbed. Several witnesses, including Denise, testified that Hendrix admitted committing the murders to silence Elmer.

He was convicted of two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed burglary. Dr. Manuel Leal, assistant medical examiner, testified it probably took Hendrix about three minutes to ''take Elmer out of the picture'' by shooting him once in the head and pounding him on the skull 10 times with the pistol. It probably took anywhere from five to eight minutes for Michelle Scott to die, Leal said.

The jury deliberated for less than one hour in delivering a recommendation of a sentence of death. Alma Denise Turbyville pleaded guilty to two counts of second-degree murder, two counts of conspiracy to commit murder, armed burglary of a dwelling and perjury. She originally was charged with two counts of first-degree murder, which could have resulted in a death sentence. Because of concurrent sentences, her total sentence was 75 years in prison of which she will serve less than half before being eligible for parole.

Thelma Scott's sister Doris is the mother of Robert Hendrix. A 1993 story in the Orlando Sentinel said that Thelma and Doris had talked on the telephone twice during the previous year. ''This tore me and her apart. It tore both our hearts out,'' Thelma Scott said. ''She's been through hell, too, just like I have. I still love her, and I know deep in her heart she still loves me.'' But that beloved sister's boy is sitting on death row for the murders. His father cannot forgive Thelma Scott for pushing for the death penalty. They no longer speak. She has a court injunction forbidding him from having contact with her. ''We used to be a close family,'' Thelma Scott said. ''Bobby knew how much I loved Elmer Bryant. He knew it would kill me. ''The way I figure it, he really killed six people: He killed me and Elmer, his mama and his daddy, and them two kids. We'll never get over it, as long as we live. ''And it won't be the same even after they kill Bobby.'' Thelma has since passed away and she and her husband Elmer are buried next to the murdered couple.

Florida Commission on Capital Cases

The Commission on Capital Cases was not funded in the FY 2011-2012 General Appropriations Act, and the Commission ceased operations on June 30, 2011. This site and the Commission website are being retained to provide access to historical materials. The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.

Robert Hendrix
Current Attorney: Harry P. Sarasota, FL P.O. Box 5039 34277-5039 941/350-4376

Last Updated: 2008-01-10

HENDRIX, Robert E. (W/M)
DC# 104721
DOB: 10/21/66

Fifth Judicial Circuit, Lake County Case # 90-1297 CFA
Sentencing Judge: The Honorable Jerry Lockett
Trial Attorneys: Thomas Turner & Edward Kirkland
Attorney, Direct Appeal: Michael S. Becker – Assistant Public Defender
Attorney, Collateral Appeals: Harry Brody – Registry
Date of Offense: 08/27/90
Date of Sentence: 11/04/91

Circumstances of the Offense: The defendant, Robert Hendrix, and his cousin, Elmer Scott, broke into a house. Soon after the incident, Scott was apprehended by the police and entered into a plea agreement with the State. In exchange for the withholding of adjudication and a two-year sentence of community control, Scott agreed to plead no contest to a lesser charge of simple burglary. Scott’s agreement to testify truthfully against Hendrix was a condition of the plea. Hendrix was arrested and charged with armed burglary of the dwelling as a result of Scott’s deposition. The plea agreement that was offered to Hendrix was a sentence of four years’ imprisonment and five years’ probation. The official court date was set to be August 28, 1990.

Prior to his court date, Hendrix told several friends that he intended to kill Scott to prevent him from testifying because he did not want to accept a plea. Hendrix also discussed different plans to kill Scott with Denise Turbyville, his live-in girlfriend. Hendrix approached several people and attempted to get a “throw-away” pistol that was not traceable back to him. The day before his court date, August 27th, Hendrix arrived at his residence with a handgun and test-fired it after attempting to construct a silencer for it.

At some point after 11 p.m., Hendrix decided to go to Scott’s residence and he told Denise to get ready. He took with him gloves, a mask, and a hat. Denise drove the vehicle near Scott’s mobile home and dropped off Hendrix after which she drove to the county line to wait for him. Denise heard several shots fired and a short period of time later, Hendrix returned to the car and prompted her to quickly leave the scene. When they returned to their residence, they elected to leave to lights off, and Hendrix proceeded to shower and to burn his clothing behind the residence. Hendrix told Denise how he killed Scott and Scott’s wife, Michelle. Hendrix relayed to her that he shot Scott in the head and, when Michelle tried to fight him, Hendrix used a knife to slash her throat. Hendrix then used the gun to hit Scott over the head, and he slashed his throat with the knife as well.

The police arrested Hendrix and he was subsequently tried for his crimes. Denise, in addition to several other witnesses, testified that Hendrix admitted committing the murders to prevent Scott from testifying against him.

Trial Summary:

09/18/90 Indicted as follows: Count I: Conspiracy to Commit Murder Count II: Conspiracy to Commit Murder Count III: First-Degree Murder Count IV: First-Degree Murder Count V: Armed Burglary

09/20/91 Defendant was found guilty by the trial jury on all counts

09/23/91 The jury unanimously recommended Death for both counts of First-Degree Murder

11/09/91 Defendant was sentenced as follows: Count I: Conspiracy to Commit Murder- 30 years Count II: Conspiracy to Commit Murder- 30 years Count III: First Degree Murder - Death Count IV: First Degree Murder- Death Count V: Armed Burglary- Life

* Please note: On Direct Appeal, the Florida Supreme Court reversed the conviction and vacated the sentence for one of the Conspiracy charges.

Appeal Summary:

Florida State Supreme Court – Direct Appeal
FSC #79,048
637 So. 2d 916
12/09/91 Appeal filed.
04/21/94 FSC affirmed the conviction of First Degree Murder and the sentence of Death.
06/21/94 Rehearing denied.
07/21/94 Mandate issued.

United States Supreme Court – Petition for Writ of Certiorari
USSC #94-6168
513 U.S. 1004
09/19/94 Petition filed.
11/14/94 USSC denied petition.

State Circuit Court – 3.850 Motion
CC #90-1297
02/29/96 Motion filed.
12/11/03 Motion denied.

Florida Supreme Court – 3.850 Appeal
FSC#04-54
908 So. 2d 412
01/12/04 Appeal filed.
07/07/05 FSC affirmed denial of 3.850 Motion.
07/28/05 Mandate issued.

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 04-1641
908 So. 2d 412
08/31/04 Petition filed.
07/07/05 FSC denied Habeas Petition.
07/28/05 Mandate issued.

U.S. District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 06-267
07/27/06 Petition filed.
05/03/07 USDC denied petition.
07/25/07 Certificate of Appealability filed.
08/08/07 COA granted.

United States Court of Appeals, 11th Circuit- Habeas Appeal
USCA# 07-13117
527 F. 3d 1149
07/06/07 Appeal filed.
06/16/08 Appeal denied.

United States Supreme Court – Petition for Writ of Certiorari
USSC# 08-6315
129 S. Ct. 509
08/11/08 Petition filed.
11/03/08 Petition denied.

Factors Contributing to the Delay in Imposition of Sentence: The Direct Appeal took three years for a decision to be rendered. The Circuit Court 3.850 was pending for nearly eight years.

Case Information:

A Direct Appeal was filed on 12/09/91. Issues that were raised included whether the trial court erred in refusing to grant his motion to disqualify the judge, and whether or not the trial court erred in denying his motion for judgment of acquittal on the conspiracy counts. The Florida Supreme Court found merit to the claim that one count of conspiracy was not supported by evidence, and they therefore reversed the conviction and vacated the sentence for that count. The Florida Supreme Court found the rest of the claims either without merit or harmless and affirmed the conviction and sentence of death on 04/21/94.

A Petition for Writ of Certiorari was filed on 09/19/94 and denied on 11/14/94.
A 3.850 motion was filed with the circuit court on 02/29/96 and was denied on 12/11/03.
A 3.850 appeal was filed with the Florida Supreme Court on 01/12/04, citing allegations of a non-impartial judge, improper shackling, ineffective assistance of counsel, and Brady violations. On 07/07/05, the FSC affirmed the denial of the 3.850 Motion.

A Petition for Writ of Habeas Corpus was filed with the Florida Supreme Court on 08/31/04, citing claims of ineffective assistance of counsel. On 07/07/05, the FSC denied the Habeas Petition.

A Petition for Writ of Habeas Corpus was filed with the U.S. District Court, Middle District, on 07/27/06. On 05/03/07, the USDC denied the petition. A Certificate of Appealability was filed on 07/25/07 and was granted on 08/08/07.

An appeal of the United States District Court’s denial of the Habeas was filed on 07/06/07. The appeal was denied on 06/16/08.
Hendrix filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/11/08. This petition was denied on 11/03/08.

Updated: 02/20/09 klh

Hendrix v. State, 637 So.2d 916 (Fla. 1994). (Direct Appeal)

Appeal was taken from judgment and sentence imposing death entered in the Lake County Circuit Court, Jerry T. Lockett, J., for two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed robbery. The Supreme Court held that: (1) trial judge did not have to recuse himself due to fact that he had brief contact with accomplice's attorney while judge was still in private practice; (2) voter registration lists were permissible means of selecting venirepersons; (3) evidence did not support convictions for two counts of conspiracy, but only one count; and (4) any error in instruction on aggravating circumstance that murder was committed in cold, calculated, and premeditated manner was harmless. Affirmed in part; reversed and vacated in part.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Robert Eugene Hendrix. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

The defendant, Robert Hendrix, broke into a house with his cousin, Elmer Scott. Scott was caught and entered into a plea agreement with the State wherein he would plead no contest to a reduced charge of simple burglary, adjudication would be withheld, and he would serve two years' community control. As a condition of the plea, Scott agreed to testify truthfully against Hendrix. Based on Scott's deposition, Hendrix was arrested and charged with armed burglary of the dwelling. The State offered a plea agreement to Hendrix wherein he would receive four years' imprisonment and five years' probation. The court date was set for August 28, 1990. Hendrix did not want to accept a plea and told several friends prior to his court date that he was going to kill Scott to keep him from testifying. Hendrix discussed with his live-in girlfriend, Denise Turbyville, various plans to kill Scott. Hendrix also tried to secure from a number of people a “throw-away” pistol that could not be traced to him. On August 27, 1990, the day before his court date, he came home with a handgun, attempted to construct a silencer for it, and test-fired it.

At some time after 11 p.m. that night, he told Denise to get ready, that they were going to Scott's. He had a mask, gloves, and hat. She drove to the vicinity of Scott's mobile home, dropped him off, drove to the county line, and pulled over to wait. Denise heard a number of shots and then several minutes later Hendrix got in the car, saying “Don't look, just go.” When they arrived home, they did not turn on the lights. Hendrix took a shower and burned his clothes out back. He gave Denise an account of the murders: He shot Elmer Scott in the head, and when Elmer's wife, Michelle, tried to fight him, he slashed her throat with a knife. He then hit Elmer over the head with the gun butt and slashed his throat “for insurance.” As he shot Elmer, he swore-“I'll see you in hell!”

Hendrix was arrested and tried for the crimes. The medical examiner testified that each victim had been shot, bludgeoned, and stabbed. Several witnesses, including Denise, testified that Hendrix admitted committing the murders to silence Scott. He was convicted of two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed burglary. During the penalty phase, Dr. Tell testified that he interviewed Hendrix and found him to be in the middle range of intellectual functioning, with no learning disability or psychosis but harboring feelings of anger and aggression. Dr. Paskewicz testified that Hendrix's anger and aggression may have been caused by beatings at the hands of his father. His father testified that Hendrix worked hard as he was growing up. His sister testified that the father had a bad temper, had been hard on the boys, and had beat them with belts. A second sister testified that Hendrix was a good brother and wonderful uncle to her daughter.

The jury unanimously recommended death for each murder and the judge imposed the death penalty for each, finding five aggravating circumstances FN1 and several nonstatutory mitigating circumstances FN2 that applied to each murder. He was sentenced to thirty-year terms on each of the conspiracy convictions and life on the armed burglary conviction. He appeals his convictions and sentences, raising nine issues.FN3

FN1. The judge found in the case of each murder that the crime had been committed in a cold, calculated, and premeditated manner; was committed to avoid lawful arrest; was committed in the course of an armed burglary; was committed in an especially heinous, atrocious, or cruel manner; and that the defendant had been convicted of a prior capital felony. FN2. The judge found the following as nonstatutory mitigating circumstances: The Defendant's family history, juvenile history, and close relationship with his mother and sisters, as well as the sentence of his co-defendant herein, Alma Denise Turbyville, to seventy-five (75) years in the Department of Corrections as a result of her plea negotiated with the State in return for her cooperation herein, give rise to non-statutory mitigating circumstances, which have been given weight by this court.

FN3. Hendrix raises a number of claims in his present appeal: 1. The trial court erred in denying Hendrix's motion to disqualify the judge. 2. The trial court erred in denying his motion to strike the jury panel on the grounds that the selection process resulted in under-representation of African-Americans. 3. The trial court erred in denying his motions for mistrial on the basis of various comments made by the prosecutor during opening and closing. 4. The trial court erred in denying his motion for mistrial based on the prejudicial effect of the emotional outburst by the victim's father. 5. The trial court erred in allowing admission of inflammatory and irrelevant photos of the victim. 6. The trial court erred in denying his motion for judgment of acquittal on the conspiracy counts. 7. The trial court erred in refusing to give limiting instructions on the aggravating circumstances of heinous, atrocious or cruel, and cold, calculated, and premeditated. 8. Florida's death penalty statute is unconstitutional because the Florida Supreme Court's interpretation and application of the aggravating factor of cold, calculated, and premeditated as set forth in Florida Statutes has resulted in an arbitrary and capricious application of the death penalty. 9. The aggravating factor of heinous, atrocious, or cruel is unconstitutionally vague.

The State raises a single issue on cross-appeal: The trial court erred in refusing to allow the State to present as an aggravating factor the fact that Hendrix had a prior conviction for a violent felony as a juvenile.

Hendrix first claims that the judge erred in refusing to recuse himself. After Hendrix's live-in girlfriend, Denise, was arrested for her part in the crimes, she was subpoenaed to testify before the grand jury. The night before she was to testify, Denise told her lawyer, Ms. Morley, new information concerning the crime. Ms. Morley was uncertain how to advise her client concerning the grand jury investigation, so she consulted with Jerry Lockett, a lawyer in private practice. She told Lockett everything that Denise had told her, and Lockett told her that if he were Denise's lawyer he would not let her testify. Ms. Morley accepted this advice and advised Denise not to testify. (Notwithstanding this advice, Denise did eventually testify.)

When it became apparent that the State might seek the death penalty against Denise, Ms. Morley again went to Lockett to see if he would be her associate on Denise's case. Lockett expressed interest. By the time the court considered the appointment, however, Lockett was a candidate for circuit court judge and the court declined to appoint him. Lockett later became trial judge on the present case and defense counsel filed a motion for disqualification of the judge, claiming that Lockett's prior connection with Denise created a conflict, or appearance of conflict, of interest since Denise was to be a major witness in the Hendrix trial. Judge Lockett held a hearing on the motion and Ms. Morley testified, giving her account of events. The judge accepted the factual allegations as true, but ruled the motion legally insufficient. Denise eventually testified against Hendrix in the present trial.

Hendrix claims that the judge erred in refusing to recuse himself in violation of section 38.02, Florida Statutes (1989),FN4 and Canon 3(C) of the Florida Code of Judicial Conduct.FN5 He does not claim, nor has he ever claimed, that the judge was biased in any way (“We are not alleging bias. We are not alleging anything improper....”), nor does he point to a single instance in the entire proceeding wherein the judge displayed partiality. Rather, he claims only that there was an “appearance” of conflict of interest. The record, however, fails to show that an improper interest of any kind-or appearance of such interest-was present. It is uncontroverted that the judge never represented Denise, never met her, never spoke to her, that he discussed the matter with Ms. Morley for only several minutes, and was not paid for his advice. Further, at one point in the trial, defense counsel asked the judge to read the grand jury minutes, and this included Denise's entire testimony before that body. Neither the statute nor rule were violated. Cf. Walton v. State, 481 So.2d 1197 (Fla.1985) (Defendant failed to show bias where trial judge presided over co-perpetrator's trial wherein additional evidence inculpating defendant was adduced.).

FN4. Section 38.02, Florida Statutes (1989) provides in relevant part: 38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect.-In any cause in any of the courts of this state any party to said cause ... may at any time before final judgment ... show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to the judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in said cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to said cause.... FN5. Canon 3(C) of the Florida Code of Judicial Conduct provides in relevant part:

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (c) he knows that he individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy ... (d) he or his spouse ... (i) is a party to the proceeding ... (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding.

Hendrix further claims that by refusing to recuse himself the judge violated the due process principles articulated in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). There, the jury returned a verdict of guilty of first-degree murder against Gardner and recommended life imprisonment. The judge nevertheless overrode the jury recommendation and imposed death, explaining in his sentencing order that he was taking into account a presentence investigation report (PSI) that was unavailable to the jury. The United States Supreme Court vacated the death sentence for two reasons: The judge failed to give the defense an opportunity to explain the information contained in the PSI; and the complete PSI had not been made a part of the record for the Florida Supreme Court to review on appeal. The present case differs from Gardner in several key respects. First, while the judge in Gardner expressly said in his sentencing order that the nonrecord evidence played a role in his decision to impose death, the judge here said just the opposite-that his findings were based solely on proof presented “during the guilt and penalty phase of the trial.” Second, while the jury there recommended life and the judge overrode that recommendation based in part on the nonrecord evidence, here the jury recommended death unanimously for each murder and the judge complied. And third, while only a single aggravating factor supported the death penalty in Gardner, five aggravators for each of two murders are applicable here. We find Gardner inapposite.

Hendrix next claims that African-Americans were underrepresented in the pool from which the jury was selected. Lake County selects prospective jurors from voter registration lists, and Hendrix presented statistical evidence prior to trial showing a disparity between the percentage of African-American residents in Lake County and the percentage of African-American registered voters. Hendrix's conclusions, however, are based in part on estimates and projections, and this Court has previously ruled that voter registration lists are a permissible means of selecting venirepersons, even where minor variations between the number of residents and registered voters exist. Bryant v. State, 386 So.2d 237 (Fla.1980). We find no error.

Hendrix argues that the evidence is insufficient to support convictions for two counts of conspiracy. We agree. There was a single express agreement between Hendrix and Denise to commit a criminal act-the murder of Elmer Scott. Because Michelle Scott happened to be at the scene and was also killed does not in itself render the agreement a double conspiracy. See Epps v. State, 354 So.2d 441, 442 (Fla. 1st DCA 1978) (“A single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses.”). We reverse the conviction for one count of conspiracy and vacate the sentence on that count.

Hendrix also claims that the brief instruction given on the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner was unconstitutionally vague. We need not decide this question because any error in instruction would have been harmless on this present record. Vast evidence was adduced showing that the murders were executed with heightened planning and premeditation: Hendrix planned extensively for the murders, discussed his plans with others, and enlisted the help of his live-in girlfriend. The jury voted unanimously for death for each of two murders. Regardless of the form of the instruction, there is no reasonable possibility that any error contributed to the jury's recommended sentence. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Hendrix claims that the instruction given on the aggravating circumstance that the murder was committed in a heinous, atrocious, or cruel manner was unconstitutionally vague. The judge, however, gave the current standard instruction on this circumstance, and each term was adequately defined. We find no error. FN6. We find the remainder of Hendrix's claims to be either without merit (Claims 4, 5, 8 and 9) or harmless error (Claim 3). The State's cross-appeal is moot.

We affirm the following: the first-degree murder convictions and death penalties; the armed burglary conviction and life sentence; one conspiracy conviction and thirty-year sentence. We reverse the second conspiracy conviction and vacate the corresponding thirty-year sentence. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

Hendrix v. State, 908 So.2d 412 (Fla. 2005). (PCR)

Background: Following affirmance of his convictions for two counts of first-degree murder and sentence of death, 637 So.2d 916, defendant filed a motion for postconviction relief. The Circuit Court, Lake County, Mark J. Hill, J., denied motion. Defendant appealed and petitioned for writ of habeas corpus.

Holdings: The Supreme Court held that: (1) defendant received effective assistance of trial counsel; (2) State's failure to disclose witness's prior assistance as a cooperating defendant did not constitute a Brady violation; and (3) defendant received effective assistance of appellate counsel. Affirmed; petition denied.

PER CURIAM.

Robert Eugene Hendrix, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the denial of Hendrix's postconviction motion and deny his petition for a writ of habeas corpus.

I. FACTS

Hendrix was found guilty of first-degree murder and sentenced to death based on the following facts.

The defendant, Robert Hendrix, broke into a house with his cousin, Elmer Scott. Scott was caught and entered into a plea agreement with the State wherein he would plead no contest to a reduced charge of simple burglary, adjudication would be withheld, and he would serve two years' community control. As a condition of the plea, Scott agreed to testify truthfully against Hendrix. Based on Scott's deposition, Hendrix was arrested and charged with armed burglary of the dwelling. The State offered a plea agreement to Hendrix wherein he would receive four years' imprisonment and five years' probation. The court date was set for August 28, 1990. Hendrix did not want to accept a plea and told several friends prior to his court date that he was going to kill Scott to keep him from testifying. Hendrix discussed with his live-in girlfriend, Denise Turbyville, various plans to kill Scott. Hendrix also tried to secure from a number of people a “throw-away” pistol that could not be traced to him. On August 27, 1990, the day before his court date, he came home with a handgun, attempted to construct a silencer for it, and test-fired it.

At some time after 11 p.m. that night, he told Denise to get ready, that they were going to Scott's. He had a mask, gloves, and hat. She drove to the vicinity of Scott's mobile home, dropped him off, drove to the county line, and pulled over to wait. Denise heard a number of shots and then several minutes later Hendrix got in the car, saying “Don't look, just go.” When they arrived home, they did not turn on the lights. Hendrix took a shower and burned his clothes out back. He gave Denise an account of the murders: He shot Elmer Scott in the head, and when Elmer's wife, Michelle, tried to fight him, he slashed her throat with a knife. He then hit Elmer over the head with the gun butt and slashed his throat “for insurance.” As he shot Elmer, he swore-“I'll see you in hell!”

Hendrix was arrested and tried for the crimes. The medical examiner testified that each victim had been shot, bludgeoned, and stabbed. Several witnesses, including Denise, testified that Hendrix admitted committing the murders to silence Scott. He was convicted of two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed burglary. During the penalty phase, Dr. Tell testified that he interviewed Hendrix and found him to be in the middle range of intellectual functioning, with no learning disability or psychosis but harboring feelings of anger and aggression. Dr. Paskewicz testified that Hendrix's anger and aggression may have been caused by beatings at the hands of his father. His father testified that Hendrix worked hard as he was growing up. His sister testified that the father had a bad temper, had been hard on the boys, and had beat them with belts. A second sister testified that Hendrix was a good brother and wonderful uncle to her daughter. Hendrix v. State, 637 So.2d 916, 917-18 (Fla.1994). The jury convicted Hendrix of conspiracy, armed burglary, and two counts of first-degree murder and unanimously recommended a sentence of death for each murder. Judge Jerry Lockett, the presiding judge, followed the jury's unanimous recommendation and imposed a death sentence for each murder, finding five aggravating circumstances FN1 and several nonstatutory mitigating circumstances.FN2

FN1. The following aggravators were found: (1) Hendrix committed the murders in a cold, calculated, and premeditated manner (CCP); (2) the murders were committed by Hendrix to avoid lawful arrest; (3) he committed the murders in the course of an armed burglary; (4) the murders were committed in an especially heinous, atrocious, or cruel manner (HAC); and (5) Hendrix had been convicted of a prior capital felony. FN2. The following nonstatutory mitigating circumstances applied: The Defendant's family history, juvenile history, and close relationship with his mother and sisters, as well as the sentence of his co-defendant herein, Alma Denise Turbyville, to seventy-five (75) years in the Department of Corrections as a result of her plea negotiated with the State in return for her cooperation herein, give rise to non-statutory mitigating circumstances, which have been given weight by this court. Hendrix, 637 So.2d at 918 n. 2.

On direct appeal to this Court, Hendrix raised nine claims.FN3 The State cross-appealed, contending that the trial court erred in refusing to allow the State to present as an aggravating factor the fact that Hendrix had a prior conviction for a violent felony as a juvenile. This Court rejected all of Hendrix's arguments except for his argument relating to his conviction for conspiracy to murder Michelle Scott. The United States Supreme Court denied Hendrix's petition for a writ of certiorari. Hendrix v. Florida, 513 U.S. 1004, 115 S.Ct. 520, 130 L.Ed.2d 425 (1994).

FN3. On appeal, Hendrix claimed the trial court erred by: (1) denying his motion to disqualify the judge; (2) denying his motion to strike the jury panel on the grounds that the selection process resulted in under-representation of African-Americans; (3) denying his motions for mistrial on the basis of allegedly improper comments made during the opening and closing statements; (4) denying his motion for mistrial based on the prejudicial effect of the emotional outburst by the victim's father; (5) permitting the admission of inflammatory photos of the victim; (6) denying his motion for judgment of acquittal on the conspiracy counts; (7) failing to give limiting instructions on the aggravating circumstances of HAC and CCP; (8) failing to hold that Florida's death penalty statute is unconstitutional; and (9) failing to hold that the aggravating factor of HAC is unconstitutionally vague.

Hendrix filed a timely motion for postconviction relief, which he later amended, and raised twenty-five claims. Judge Lockett summarily denied several of his claims and granted an evidentiary hearing for claims 4, 12, and 24. He deferred ruling on nine of the claims until after the hearing. Prior to the evidentiary hearing, Judge Lockett retired, and Judge Law was assigned to the case. Hendrix requested an opportunity to depose Judge Lockett and the codefendant's attorneys. Hendrix later moved to disqualify Judge Law, which the court granted, and Judge Hill was assigned to the case. Judge Hill allowed Hendrix to depose Judge Lockett but only relating to whether Hendrix's shackles were visible to the jury.

A multi-day evidentiary hearing was held at which counsel presented evidence regarding: (1) mitigation evidence that could have been presented by lay witnesses, including information regarding Hendrix's significant drug abuse problems from a very early age, the emotional and physical abuse he suffered at home, and a head injury he sustained; (2) mitigation evidence that could have been presented by mental health experts; (3) undisclosed information relating to the fact that trial witness Roger LaForce had a prior record of being a confidential informant; (4) expert testimony that would have challenged whether the HAC aggravator was present; (5) evidence that Hendrix was shackled during the trial; and (6) ineffective assistance of counsel. During the evidentiary hearing, twenty-three witnesses testified. First, Hendrix's counsel presented numerous family members and friends who testified that Hendrix had a significant drug abuse problem which began at a very early age. Many witnesses also testified regarding the emotional and physical abuse Hendrix suffered at home, and his family testified that Hendrix was once hit in the head.

Next, counsel presented evidence to show that one of the State's witnesses at trial, Roger LaForce, had been a confidential informant with a drug task force for a brief period of time prior to his involvement in this case-information about which defense counsel alleged they were not informed. Counsel also presented the testimony of two mental health experts to show that experts could have testified to certain statutory mitigators. Dr. Barry Crown, a licensed psychologist, testified that based on testing, he believed that Hendrix had frontal lobe brain damage at the time of the murders. Dr. Jonathan Joseph Lipman, a neuropharmacologist, testified that the drugs Hendrix abused had significant effects on his brain and his behavior. He stated that Hendrix suffered from paranoid projection, meaning that he saw nonthreatening things to be threatening. Moreover, based on the types of drugs he took and the reactions he had from them, he also could have been suffering from the rare effects of “benzodiazepine rage.” Dr. Lipman further asserted that any frontal lobe damage to the brain would make Hendrix even more vulnerable to benzodiazepine rage. The State presented one witness to rebut Hendrix's evidence regarding whether this mitigation applied: Dr. Harry McLaren, a forensic psychologist, who believed that no statutory mental-health mitigation applied. While Dr. McLaren did not disagree with Dr. Crown that there could be some mild degree of brain damage, he did not believe that Hendrix was under the influence of an extreme emotional disturbance because the evidence showed that Hendrix went through a very detailed plan to prevent leaving evidence.

Hendrix's counsel presented evidence from Dr. Willey, a physician and a pathologist, who disagreed with some of the medical examiner's testimony as to whether HAC applied. Postconviction counsel also called Judge Lockett and Arthur Newcombe, a bailiff from Hendrix's trial, to establish that Hendrix was shackled during the trial. Both testified that the jurors never would have been able to see the shackles and that they both were aware that Hendrix had been suspected of planning an effort to escape. Counsel called other attorneys who were present during the trial, but none had any specific recollections of hearing Hendrix's chains when the jury was present.

Donald Eisenberg, an investigator for Hendrix, testified as to his involvement in the case, including his interviews of Chris Wood, Lisa Allen, Tony Drennan, Hendrix's parents, and Hendrix's two sisters. He also obtained transcripts from Hendrix's prior schools, obtained records from the prison, and delivered a packet of information to Hendrix's mental health doctor. Finally, collateral counsel called trial defense counsel, Thomas Turner, who is currently a circuit judge in the Ninth Judicial Circuit of Florida. During Turner's representation of Hendrix, Turner learned that Hendrix had been examined by Dr. Krop, but Turner made a strategic decision not to call him because Dr. Krop believed that the murders were cold, calculated acts that were not the result of any mental illness or defect. Moreover, this decision would prevent the jury from hearing the details of the crime, since Turner believed that if the jury heard the details, they would not “buy a psychiatric defense” or any defense at all. As to the penalty phase, Turner did not want to present evidence regarding Hendrix's voluntary use of drugs and alcohol because he did not believe that to be a viable defense in light of the fact that Hendrix was clear-headed when he committed the murder. Further, he did not want to mention drug use because he did not want to alienate the jurors, who he believed were “very conservative.” Instead, he chose to present the argument that Hendrix had a lot of problems and was crying out for help, but that the help that he needed was never provided to him. Turner did concede the HAC aggravator because the evidence was clear that it was an extremely brutal murder.

In an extremely thorough order, the postconviction court denied the remaining claims in Hendrix's postconviction motion. Hendrix appeals this order and further has filed a petition for a writ of habeas corpus.

II. RULE 3.850 APPEAL

Hendrix raises four claims: (1) whether the postconviction court erred in denying his claim that newly discovered evidence concerning witness LaForce and Judge Lockett demonstrates that Hendrix was denied a neutral and impartial judge; (2) whether the postconviction court erred in holding that shackling did not deny Hendrix his right to a fair trial; (3) whether the postconviction court erred in denying relief on Hendrix's ineffective assistance of counsel claims; and (4) whether the postconviction court erred in denying relief on the claim that the State failed to disclose BradyFN4 information relating to witness LaForce. We summarily dispose of his first claim because this issue has not been properly preserved for this Court to rule upon. FN5

FN4. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). FN5. As we have previously stressed, “[i]n order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.” Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987). Because Hendrix failed to present this specific claim below, it is procedurally barred.

In the first issue that we address, Hendrix contends that his trial counsel was ineffective in both the guilt phase and the penalty phase. In order to prove that counsel was ineffective, a defendant must establish two elements: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that counsel's deficient performance prejudiced his defense, he “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. As this Court has held, “[i]neffective assistance of counsel claims are mixed questions of law and fact, and are thus subject to plenary review based on the Strickland test. Under this standard, the Court conducts an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings.” Hodges v. State, 885 So.2d 338, 346 (Fla.2004) (citation omitted).

First, Hendrix alleges that his counsel was ineffective because he failed to object to the relevance of Juan Perez's testimony that Perez saw a blond man leave the crime scene, especially in light of the fact that Perez could not say the man he saw was the defendant. Hendrix provides no explanation as to how a witness's statement regarding the description of a person leaving the crime scene could be excluded from the trial based on relevancy simply because the witness did not state explicitly that he saw Hendrix. Relevant evidence is defined as “evidence tending to prove or disprove a material fact.” See § 90.401, Fla. Stat. (2004). Describing a person leaving a crime scene would clearly be relevant since it would be either consistent or inconsistent with the person accused of the crime. In fact, Hendrix's original trial attorney asserted that he did not object because it furthered his trial strategy in establishing reasonable doubt, particularly since the description did not match Hendrix. We find no error in the postconviction court's conclusion that Hendrix failed to demonstrate that his counsel was ineffective or that he suffered any prejudice from this alleged deficiency. Therefore, Hendrix is not entitled to relief on this claim.

Next, Hendrix asserts that his counsel was ineffective because he did not discover LaForce's history of working as an informant for the State and thus did not impeach LaForce on this basis. The testimony elicited during the evidentiary hearing shows that LaForce's activity as an informant began and ended a significant time before the instant trial and was conducted only for the drug task force team. Again, Hendrix has failed to provide any argument as to how his counsel was deficient in failing to discover this evidence. Moreover, he has failed to show how he was prejudiced by this “deficiency” since the jury was clearly aware that LaForce was in jail at the time and that LaForce contacted the State himself, asking for a deal. Any impact relating to this prior involvement as a confidential informant would have had a minimal effect when compared to LaForce's recent attempt to receive benefits by coming forward with Hendrix's in-jail confession. As we find no error in the postconviction court's conclusion that Hendrix failed to show prejudice, we deny this claim.

Hendrix also contends that his counsel was ineffective in “failing to show the link between Judge Lockett and the prosecution to a witness.” Besides this conclusory allegation, Hendrix completely fails to show how his counsel was ineffective or how he was prejudiced by counsel's failure to discover that the trial judge had previously accepted a plea from LaForce in a completely unrelated case. As Hendrix has failed to meet his burden, we deny this claim.

Next, Hendrix contends that his counsel was ineffective in failing to present: (1) testimony from his family and friends concerning his drug addiction, physical abuse at home, the impact of the death of his brother, and the head trauma he suffered; and (2) testimony from expert witnesses regarding Hendrix's brain damage, the effect of drugs on his brain, and statutory mitigators. The postconviction court denied these claims after first noting that most of the claims were “Monday morning quarterbacking” that simply disagreed with trial counsel's strategies:

The instant case is like Banks [v. State, 842 So.2d 788 (Fla.2003),] in that trial counsel herein also consulted with a mental health expert, Dr. Krop, a forensic psychologist. Dr. Krop interviewed the Defendant after his arrest. According to trial counsel, when he consulted with Dr. Krop, the doctor told him that during his interview with Mr. Hendrix, Mr. Hendrix disclosed, in cold, clear detail, how and why he had murdered the victims. Dr. Krop advised counsel that these were cold, calculated acts that were not the result of any mental defect; that Mr. Hendrix was in clear command of his faculties at the time of the offenses; and that Mr. Hendrix made a clear, conscious decision to kill because he did not want to go back to prison. Interestingly, the jury reached the same conclusions as Dr. Krop, and these good folks did so without the advantage [of] going to medical school. Further, Dr. Krop indicated he could offer no professional opinion that would be helpful. The recitation of the events of the murders as told to Dr. Krop comported with the description and admission the Defendant had made to trial counsel. Like the trial attorney in Banks, Judge Turner wisely made a strategic decision not to call Dr. Krop at trial. The Supreme Court has denied defendants relief where counsel consulted with a mental health expert, but made a strategic decision not to present such evidence. Rose v. State, 617 So.2d 291, 294 (Fla.1993) (ineffective assistance of counsel claim denied where a psychologist determined the defendant had an antisocial personality disorder, but not an organic brain disorder, and counsel conduct[ed] no further investigation). .... Collateral counsel faults trial counsel for not presenting evidence that Mr. Hendrix was substantially impaired and acting under extreme disturbance as contemplated in Florida Statute § 921.141, by showing Mr. [Hendrix] has some brain damage and the combined effect of his abuse of alcohol and diazepam with the frontal lobe damage created a condition referred to as Benzodiazepine rage. To support this theory, Dr. Lipman, a neuropharmacologist, and Dr. Crown, a licensed psychologist, were called at the evidentiary hearing. Dr. Lipman testified that using alcohol and diazepam, or more potently, a combination of the two, can produce disinhibiting effects. A subject, like Mr. Hendrix, who also has frontal lobe damage, (as determined by Dr. Crown) tends to be more impulsive and perservating [sic], and the drugs magnify this effect. Dr. Lipman testified that Mr. Hendrix was one of the anomaly subjects that exhibit a seething rage when taking the diazepam rather than the tranquil, calming effect for which it is therapeutically prescribed....

Dr. Crown testified regarding the Defendant's alleged brain damage. Dr. Crown examined the Defendant seven years after the offenses and determined that the Defendant was afflicted with frontal lobe damage. This type of damage, according to Dr. Crown, causes impaired executive functioning. Executive functioning involves reasoning, judgment, impulsivity and control of impulsivity. It also involves conceptual flexibility or the ability to shift smoothly from one concept to another. It was Dr. Crown's opinion that not only was Mr. Hendrix suffering from frontal lobe damage at the time of the interview, (seven years after the murder) but that nothing indicated newly inflicted trauma, so the Defendant was suffering from the frontal lobe damage at the time of the murders. Dr. Crown opined that the Defendant was under the influence of extreme mental or emotional disturbance at the time of the murders and that his ability to conform his conduct to the requirements of the law was substantially impaired at the time of the murders. Compare this to the Defendant's cold, detailed description of the planning and execution of these murders he made to Dr. Krop.

There was no indication that Mr. Hendrix's self-reported abuse of diazepam was made known to trial counsel before or during the penalty phase. Further, Mr. Hendrix had been examined by one psychologist several years before the murder, and two more psychologists saw him between the time of the murders and trial. There is no evidence that these evaluations ignored any clear indications of mental health problems or brain damage. “This case is similar to Jones, where the defendant had been examined prior to trial by a mental health expert who gave an unfavorable diagnosis. As we concluded in Jones, the first evaluation is not rendered less than competent ‘simply because appellant has been able to provide testimony to conflict’ with the first evaluation.” Asay v. State, 769 So.2d 974, 985-86 (Fla.2000) (quoting Jones v. State, 732 So.2d 313, 320 (Fla.1999)). As quoted in Banks, the new opinion testimony gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking. Herein, only one doctor has determined Mr. Hendrix suffers from frontal lobe damage, and his examination took place seven years after the murders. The neuropharmacologist based his opinion on the Defendant's self reported drug use. There is nothing in the record to corroborate the use of diazepam on the night of the murders.

Finally, Judge Turner, while unaware of the Defendant's Valium use, was aware the Defendant had a history of other drug use. When asked if he made a decision about whether to present that evidence to the jury, he stated, “The decision was that Lake County jurors, being very conservative, I did not feel that they would-that to bring up prior drug use would probably alienate them more towards the Defendant, as opposed to make them favorably disposed toward him.... In listening to his explanation of what he did and why, he did it, it was clear to me that it wasn't caused by the drugs, that his judgment wasn't impaired by drugs. He had poor judgment, obviously, but that it was a very well-thought out, calculated decision and I didn't think that we would get anywhere, that we would lose ground as opposed to gain ground by presenting evidence of drug use and trying to justify that as a basis for the homicide.”

Based upon the foregoing, the Court finds counsel was not ineffective for failing to retain the services of a mental health expert to testify to Mr. Hendrix's brain damage and drug and alcohol abuse. Further, counsel was not ineffective for presenting the testimony of Dr. Tell at trial. These were strategic decisions, made upon thorough investigation and within the norm of professional standards. Finally, even if the new opinion evidence had been presented as the Defendant now wishes, the Court does not find that the new testimony would have in anyway changed the result in this case in light of the “[v]ast evidence adduced showing that the murders were executed with heightened planning and premeditation.” Hendrix v. State, 637 So.2d 916, 920 (Fla.1994). State v. Hendrix, No. 90-1297-CF (Fla. 5th Cir. order filed Dec. 11, 2003). The fact that Hendrix has now found mental health experts who have more favorable testimony does not invalidate the testimony of the mental health experts that his counsel relied upon during the penalty phase. See Asay v. State, 769 So.2d 974, 985-86 (Fla.2000). Moreover, in Pace v. State, 854 So.2d 167, 173-74 (Fla.2003), this Court rejected a claim that counsel was ineffective for making a strategic decision not to present evidence regarding drug usage. In this case, counsel was well aware that Hendrix carefully and coldly planned the murders, evidence which is contrary to the current testimony that Hendrix's drug usage caused him to be substantially impaired at the time of the crimes. Counsel cannot be considered ineffective for failing to present evidence of drug usage, particularly in light of the other evidence which showed that Hendrix was quite capable of reasoning. There is competent, substantial evidence to support the postconviction court's factual findings, and Hendrix has failed to show that the lower court made any legal errors in its conclusions regarding prejudice. Thus, we deny this claim.

In the final ineffective assistance claim, Hendrix alleges that his counsel was ineffective in failing to secure an independent medical examiner who could challenge Dr. Leal's testimony concerning the heinous, atrocious, and cruel aggravator. In support of this claim, Hendrix called Dr. Edward Willey, a forensic pathologist and past medical examiner, to testify at the evidentiary hearing. Dr. Willey never stated that the deaths were not heinous, atrocious, and cruel. Instead, he merely disagreed with whether Dr. Leal's opinion was opinion or fact, concluding that many of the statements Dr. Leal made during the original trial could not be proven absolutely. For example, Dr. Willey stated that Dr. Leal merely speculated that the wounds on Michelle Scott's arms were defensive wounds but later stated that this was a reasonable speculation. Dr. Willey presented no evidence to show that the victims died quickly or were rendered unconscious immediately. While he disagreed as to the exact manner in which Elmer Scott died, Dr. Willey also characterized any errors in the medical examiner's conclusions as harmless errors that would not make much difference. We find no error as to the postconviction court's conclusions that Hendrix failed to show ineffective assistance and failed to demonstrate prejudice. Thus, this claim is likewise denied.

Next, Hendrix contends that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it failed to disclose that one of the witnesses was a confidential informant for the State. In order to establish a Brady violation, a defendant must demonstrate “(1) that the evidence at issue is favorable to him, either because it is exculpatory or because it is impeaching; (2) that the evidence was suppressed by the State, either willfully or inadvertently; and (3) that the suppression resulted in prejudice.” Sochor v. State, 883 So.2d 766, 785 n. 23 (Fla.2004). As this issue presents mixed questions of law and fact, this Court will defer to the factual findings made by the trial court so long as they are supported by competent, substantial evidence, but review de novo the application of the law to those facts. Id. The postconviction judge denied the claim as follows:

During the guilt phase of the Defendant's trial, the State presented the testimony of a jailhouse snitch. This witness, Roger LaForce, was privy to certain statements about the murders, made by the Defendant, including an admission that the Defendant had made sure the police would only have a circumstantial case, and that he had tried to make the murders look like a revenge killing because the wife was an informant for the Sheriff's office. The Defendant's post conviction claim is that the State failed to provide him with exculpatory or impeachment evidence when it failed to disclose that Roger LaForce had a history as a confidential informant and was given favorable treatment in exchange for his testimony. To the extent the claim alleges that Mr. LaForce was treated favorably or given anything in exchange for his testimony at the Defendant's trial, this is refuted by the record. The transcript reflects Mr. LaForce did not receive anything in exchange for testifying.... No evidence was presented at the evidentiary hearing to contradict this. However, it does appear that Mr. LaForce had previously been involved with the State attorney's office as a cooperating defendant.

Noel Griffin, a special agent with the Florida Department of Law Enforcement, testified that from 1986 until 1989 he headed a narcotics task force in Lake and Sumter Counties. Sometime during that period, the task force had made a case against Roger LaForce, and in the hope of substantial assistance with his own case, Mr. LaForce agreed to assist the task force with additional investigations. Mr. Griffin did not know to what extent, if any, ... Mr. LaForce actually received assistance with his case. He could not recall on how many cases Mr. LaForce cooperated, and had no recollection of telling the prosecutors in the Defendant's case that Mr. LaForce was a cooperating defendant. Mr. Griffin further testified that once Mr. LaForce had been sentenced, his relationship with law enforcement would have ended. The records show that Mr. LaForce was arrested in 1987 and sentenced in February of 1988. The Defendant was arrested in August of 1990, and his trial commenced in September of 1991.

The prosecutor, Bill Gross, was also called to testify during the evidentiary hearing. It was the prosecutor's testimony that he did not know that Mr. LaForce had ever been an informant, or cooperating defendant, when Mr. LaForce testified at the Defendant's trial. The prosecutor only became aware of the fact during the post conviction proceedings when Mr. Hendrix's counsel made the allegations. .... Herein, information regarding Roger LaForce's prior cooperation with the Lake County drug task force should have been disclosed as impeachment evidence favorable to the Defendant. However, in the context of the entire record, this information would not likely have put the case “in such a different light as to undermine confidence in the verdict.” Mr. LaForce testified that he was receiving nothing and gained nothing from testifying in the Defendant's trial. That he had previously received some benefit for cooperating with law enforcement may have been used to impeach Mr. LaForce's testimony, but even without the defense being aware of this information, Mr. LaForce admitted he hoped the State attorney's office would cut him a deal for coming forward with the information. Order at 3-4. The court correctly determined that this was impeachment evidence that should have been disclosed. Hendrix does not challenge the findings of fact; nor does he contend that the postconviction court applied the law incorrectly. Instead, he disagrees with the lower court's conclusions because he believes the withheld information was more important than the judge concluded. Hendrix, however, has failed to show that the postconviction court erred in concluding no prejudice occurred. LaForce's prior assistance as a cooperating defendant, which occurred over a year prior to Hendrix's arrest, would have had a minimal impact, if any. The more damaging evidence regarding LaForce, that he heard the confession while in prison and contacted the State because he was seeking a deal, had already been presented to the jury. Thus, Hendrix is not entitled to relief on this claim.

In his last remaining postconviction claim, Hendrix argues that his constitutional rights were violated by the court's actions in physically restraining him through the use of shackles without first making any findings that shackles were absolutely necessary to further a State interest and were the least prejudicial method of restraint.FN6 To the extent that Hendrix claims his counsel was ineffective for failing to object, this Court can review such claims. See, e.g., Sims v. State, 602 So.2d 1253, 1256 (Fla.1992) (addressing on the merits whether counsel was ineffective for failing to object to restraints used during trial); Marquard v. State, 850 So.2d 417, 431 (Fla.2002) (same).

FN6. The State contends that this claim is procedurally barred because it should have been addressed on direct appeal. We have addressed this issue below, in handling Hendrix's sole habeas claim: whether appellate counsel was ineffective for failing to raise the shackling claim on direct appeal.

The postconviction court found the relevant facts as follows. At the evidentiary hearing Judge Lockett, the Judge who presided over the trial, and Art Newcombe, the bailiff in charge of security during the Defendant's trial, as well as the testimony of various attorneys and even a witness who was present at the trial all testified that the jury would not have been able to see Mr. Hendrix's shackles. Further, Mr. Newcombe testified that he was aware, prior to trial from the deputies at the Lake County Jail, that a shank made from an air conditioning louver was found in the Defendant's cell approximately two and a half months before the trial. He also said that about a month after finding the shank, Mr. Hendrix asked [one] of the cleanup men at the jail to get him a louvered slat from an air conditioning unit. The Defendant had also been implicated in an escape plot with another prisoner, just three weeks before trial.

The Court finds that the shackling of Mr. Hendrix was necessary in this case, and that no prejudice has been demonstrated by the Defendant because of his shackling. The Defendant was seated behind counsel table where his feet would be shackled to the table by an anchor near the floor. The table has a floor length façade on the front and both sides. Order at 22. Hendrix has not met either of the Strickland prongs. First, he failed to show that his counsel's performance was deficient for not objecting to shackling. It is highly unlikely that objecting to the shackles would have produced any results, particularly where both the judge and the bailiff knew that Hendrix was an escape risk and was found with a weapon in his cell. Moreover, the court undertook very careful methods to ensure that the jury was not aware of the shackles. Second, Hendrix has failed to show any prejudice. As the postconviction court found, all witnesses testified that the shackles were not visible to the jury, and no testimony was presented to show that the jury or anybody else even heard Hendrix's shackles during the trial. As there is competent, substantial evidence to support the postconviction court's factual findings and, further, as Hendrix has failed to show that the court erred relative to its legal conclusions, we deny this claim.

III. HABEAS CORPUS PETITION

In his sole petition for a writ of habeas corpus claim, Hendrix contends that his appellate counsel was ineffective for failing to raise the shackling claim on direct appeal. First, appellate counsel may not be deemed ineffective for failing to challenge an unpreserved issue on direct appeal unless it resulted in fundamental error. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000). Moreover, Hendrix has failed to allege any fact to show that his appellate counsel was even aware that Hendrix was shackled during the trial. As noted above, evidence from the postconviction proceedings establishes that Hendrix was shackled solely because that was the trial court's unspoken policy as to all criminal defendants. Defense counsel never objected to the shackling issue with the trial court, so there would be no information in the record as to whether Hendrix was shackled during the trial. All of the information that Hendrix relies upon in raising this issue comes from testimony that was elicited during the postconviction evidentiary hearing. Neither party cites to any portion of the record from the original trial proceedings where shackling was discussed. Accordingly, this Court would not be able to confirm whether Hendrix was indeed shackled at his trial until after such matters were established in a postconviction proceeding. As this Court has held, appellate counsel is not considered ineffective for failing to present evidence which was outside of the appellate record on review. Rutherford, 774 So.2d at 646. Since this Court would not be able to address such a matter on direct appeal, we deny this claim.

IV. CONCLUSION

Accordingly, we affirm the postconviction court's denial of Hendrix's rule 3.850 motion for postconviction relief and deny his petition for a writ of habeas corpus. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

Hendrix v. Secretary, 527 F.3d 1149 (11th Cir. 2008). (Habeas)

Background: Following affirmance of his convictions for two counts of first-degree murder and his sentence of death, 637 So.2d 916, and denial of his state collateral challenge to his convictions and sentences, 908 So.2d 412, petitioner sought habeas corpus relief. The United States District Court for the Middle District of Florida, Wm. Terrell Hodges, J., No. 06-00267-CV-OC-10GRJ, 2007 WL 1303034, denied relief. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) state court's decision that judge's failure to recuse himself from murder trial did not violate Gardner was not contrary to, or unreasonable application of, clearly established federal law; (2) state court's decision that petitioner's due process rights were not violated by judge's refusal to recuse himself did not warrant habeas relief; (3) state court's decision that defense counsel's investigation and presentation of mitigating circumstances were reasonable did not warrant habeas relief; (4) state court's decision that defense counsel's decision not to call forensic psychologist did not constitute ineffective assistance did not warrant habeas relief; and (5) state court's decision that state did not violate Brady did not warrant habeas relief. Affirmed.

PER CURIAM:

Robert Hendrix and his cousin, Elmer Scott, were charged with burglary. Hendrix v. State ( Hendrix I), 637 So.2d 916, 917 (Fla.1994). Scott agreed to testify against Hendrix in exchange for a reduced charge. Id. To prevent him from testifying, Hendrix brutally murdered Scott on the eve of the trial. Id. at 918. He also brutally murdered Scott's wife who had the misfortune of being present when her husband was killed. Id.

As a result of the crimes, Hendrix was convicted of two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed burglary. Id. He was sentenced to thirty years on each of the conspiracy counts and life on the armed burglary count. Id. The jury unanimously recommended a death sentence for each murder conviction, and the trial judge followed that recommendation. Id. On direct appeal, the Florida Supreme Court reversed one of the conspiracy convictions and the sentence that went with it, but the Court affirmed the remaining convictions and sentences. Id. at 921. The United States Supreme Court denied Hendrix's petition for a writ of certiorari. Hendrix v. Florida ( Hendrix II), 513 U.S. 1004, 115 S.Ct. 520, 130 L.Ed.2d 425 (1994). Following an evidentiary hearing at which twenty-three witnesses testified, Hendrix v. State ( Hendrix III), 908 So.2d 412, 418 (Fla.2005), the state trial court issued a detailed order denying Hendrix's Rule 3.850 state collateral challenge to his convictions and sentences. Id. That denial was affirmed by the Florida Supreme Court, which also denied a petition for a state writ of habeas corpus that Hendrix had filed. Id. at 426.

Hendrix then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. Hendrix v. McDonough ( Hendrix IV), No. 5:06-cv-267-Oc-10GRJ, 2007 WL 1303034, at *1 (M.D.Fla. May 3, 2007). Although that court denied the petition, id. at *6, it did issue a certificate of appealability permitting Hendrix to appeal to this Court three of the issues he had raised. Hendrix v. McDonough ( Hendrix V), No. 5:06-cv-267-Oc-10GRJ, slip op. at 3 (M.D.Fla. Aug. 13, 2007). This is that appeal.

The first issue before us involves the refusal of Judge Jerry Lockett, who presided over the state trial and sentence proceedings, to recuse or disqualify himself (we use the terms “recuse” and “disqualify” interchangeably because the Florida Supreme Court did so in its opinion, see Hendrix I, 637 So.2d at 919-20 & n. 3-5). Hendrix filed a motion raising this issue at the trial. Although the trial judge denied the motion, he did allow Hendrix to put on evidence about the matter to perfect the record for purposes of appeal. Id. at 919. Hendrix did so. Id. We will not repeat here the facts relating to this issue, which are adequately set out in the Florida Supreme Court's direct appeal opinion. See id.

The certificate of appealability granted for this issue focused on whether by failing to recuse himself Judge Lockett violated the rule announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Hendrix V, No. 5:06-cv-267-Oc-10GRJ, slip op. at 3, which prohibits a judge from making a capital sentencing decision based on information not disclosed to the defendant. Gardner, 430 U.S. at 362, 97 S.Ct. at 1207. Because of the standard set out in 28 U.S.C. § 2254(d), the actual issue for us is whether the Florida Supreme Court's decision that there was no Gardner violation “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). It was not and did not.

There is no Gardner violation unless the judge is both aware of, and actually considers in sentencing, information that is not disclosed to the defendant. Gardner, 430 U.S. at 358, 97 S.Ct. at 1205. Unlike the sentencing judge in Gardner, the one in this case did not state that he was considering confidential information. Compare id. at 353, 97 S.Ct. at 1202, with Hendrix I, 637 So.2d at 920. Instead, “the judge here said just the opposite-that his findings were based solely on proof presented ‘during the guilt and penalty phase of the trial.’ ” Hendrix I, 637 So. 2d at 920. The Florida Supreme Court's finding of fact that Judge Lockett did not consider any confidential information in sentencing Hendrix is not “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Hendrix had a full and fair opportunity to present any evidence he wished on the Gardner issue at the hearing that was held during the trial for purposes of perfecting the record on appeal. At that hearing Hendrix called as a witness the attorney for his co-defendant, the lawyer whom Lockett had briefly advised before he became a judge. Hendrix did not, however, ask her what she had told Lockett or, more specifically, whether she had told Lockett anything relevant to Hendrix's sentencing. The burden was on Hendrix to prove his claimed violation, see Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.2001); Delap v. Dugger, 890 F.2d 285, 311 (11th Cir.1989); cf. Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc), and he has failed to do so. The Florida Supreme Court's decision on this issue is entirely in keeping with the Gardner decision.

Hendrix also contends that Judge Lockett's refusal to recuse himself violated Hendrix's due process right to a fair and impartial judicial officer. It is not clear that this issue is within the COA, but even if it is the issue is not one on which Hendrix can prevail. To the extent that Hendrix argues recusal or disqualification was required under Florida statutory law or its Code of Judicial Conduct, the Florida Supreme Court held to the contrary, Hendrix I, 637 So.2d at 919-20, and we are bound by its interpretation of state law, Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”). In any event, a violation of state law is not a ground for federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law ....”); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”).

The Florida Supreme Court stated that Hendrix “does not claim, nor has he ever claimed, that the judge was biased in any way.” Hendrix I, 637 So.2d at 919. There is no evidence at all in the record of any bias. The absence of any evidence of bias, and Hendrix's failure to even claim bias while pursuing this claim in the state courts, bar him from asserting here that the trial judge was biased. Although it is not entirely clear, Hendrix apparently contends that the Constitution requires disqualification or recusal of even an unbiased judge if there is an appearance of bias and partiality. Putting aside the question of whether there was such an appearance in this case, there is no Supreme Court decision clearly establishing that an appearance of bias or partiality, where there is no actual bias, violates the Due Process Clause or any other constitutional provision.

Our circuit law runs to the contrary. In Davis v. Jones, 506 F.3d 1325 (11th Cir.2007), the habeas petitioner contended that his due process rights were violated because the juvenile court judge presiding over one of the hearings in his case was the brother of one of the prosecutors. Davis, 506 F.3d at 1326. No actual bias was shown. Id. at 1331. Instead, the petitioner contended that the appearance of partiality-the fact that the judge's impartiality might reasonably be questioned in those circumstances-was enough to make out a due process violation. Id. After surveying Supreme Court decisions in this area, and noting that this Court and at least two other circuits had held that an appearance of bias is not enough to violate the Due Process Clause, id. at 1333-35, we concluded that the state courts' rejection of the petitioner's contention was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, id. at 1337. The same is true in this case.

The district court also granted a COA on the issues of whether Hendrix's trial counsel rendered ineffective assistance at the guilt and sentence stages. Hendrix has abandoned his guilt stage ineffective assistance of counsel claims by failing to raise them in his brief to us. See Fed. R.App. P. 28(a)(5), (9); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.2004); Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1481 n. 12 (11th Cir.1997). He has continued to raise his penalty stage ineffectiveness claims.

The Florida trial court conducted an extensive evidentiary hearing on Hendrix's penalty stage ineffective assistance claims, and after hearing testimony from numerous witnesses, including trial counsel, issued an order thoroughly discussing the claims and denying them. Hendrix III, 908 So.2d at 417-18. In affirming, the Florida Supreme Court repeated and adopted the trial court's findings and discussion and added some of its own. Id. at 420-23.

It is, of course, clearly established by Supreme Court decisions that in a capital case “counsel has a duty to make reasonable investigations” into the existence of mitigating circumstances, “or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)); see also Williams v. Taylor, 529 U.S. 362, 395-96, 120 S.Ct. 1495, 1514-15, 146 L.Ed.2d 389 (2000). “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation,” and “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Wiggins, 539 U.S. at 521-22, 123 S.Ct. at 2535 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066).

After carefully considering the evidence presented in the guilt and penalty stages of Hendrix's trial, and in his state collateral proceeding, the Florida Supreme Court decided that trial counsel's investigation and presentation of mitigating circumstances were reasonable. Hendrix III, 908 So.2d at 420-23. That decision is not an unreasonable application of Wiggins, Williams, or any other Supreme Court precedent.

We add a comment about an aspect of one of the ineffective assistance claims. Hendrix produced at the state collateral proceeding mental health experts who testified that they would have appeared on his behalf at the penalty stage of Hendrix's trial. The emergence of such witnesses is not at all unusual. It happens a lot, and claims based on such witnesses are made seemingly without regard to the trial counsel's actual investigation and the basis for his strategic decisions. Hendrix was examined by one psychologist several years before the murders and by two psychologists between the time of the murders and his trial. Hendrix III, 908 So.2d at 422. In this appeal, neither Hendrix nor the State contends that the evaluations or findings of two of those experts are particularly helpful to its side of the argument.

The evaluation and findings of the third expert, Dr. Henry Krop, are another matter. He is a respected forensic psychologist who frequently testifies for the defense on mental state mitigating circumstances in Florida capital cases. See, e.g., Marquard v. Sec'y for Dep't of Corr., 429 F.3d 1278, 1284-85 (11th Cir.2005); Robinson v. Moore, 300 F.3d 1320, 1328-29 (11th Cir.2002); Kight v. Singletary, 50 F.3d 1539, 1542 (11th Cir.1995). He was appointed by the trial court to evaluate Hendrix's mental state at the time of the offense. Hendrix III, 908 So.2d at 421. The order of appointment called on Dr. Krop to issue a report to defense counsel containing a “description of the mental condition and mental impairment and its relationship to the actions and state of mind of the Defendant at the time of the offense.”

This is how the state collateral court, which heard all of the evidence relating to this issue, summarized what trial counsel learned from Dr. Krop: Dr. Krop interviewed the Defendant after his arrest. According to trial counsel, when he consulted with Dr. Krop, the doctor told him that during his interview with Mr. Hendrix, Mr. Hendrix disclosed, in cold, clear detail, how and why he had murdered the victims. Dr. Krop advised counsel that these were cold, calculated acts that were not the result of any mental defect; that Mr. Hendrix was in clear command of his faculties at the time of the offenses; and that Mr. Hendrix made a clear, conscious decision to kill because he did not want to go back to prison .... Further, Dr. Krop indicated he could offer no professional opinion that would be helpful. The recitation of the events of the murders as told to Dr. Krop comported with the description and admission the Defendant had made to trial counsel. Id. (quoting the trial court findings); see also id. at 418-19; Hendrix I, 637 So.2d at 918 & n. 2 (listing the witnesses trial counsel did call at the penalty stage and the mitigating circumstances he established). The Florida Supreme Court's decision that counsel's investigation into mental health mitigating circumstances and his decision not to call Dr. Krop to testify on any issue at the penalty stage were reasonable is not contrary to, or an unreasonable application of, Supreme Court precedent. Nor are any of that court's other decisions rejecting Hendrix's penalty stage ineffective assistance of counsel claims.

Finally, a COA was issued on whether the State's failure to disclose that one of its witnesses had been a confidential informant for a drug task force a few years before the trial violated Hendrix's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Both the state collateral trial court and the Florida Supreme Court rejected this claim on the grounds that this undisclosed fact was not material, which under Brady means that Hendrix has failed to show a reasonable probability of a different result had the fact been disclosed. Hendrix III, 908 So.2d at 419, 423-25. The witness in question was Roger LaForce. He was, as the state collateral court put it, “a jailhouse snitch” who testified about inculpatory statements that Hendrix had made to him while in jail. Id. at 423. The jury knew that LaForce was in jail at the time he testified, it knew that he was a snitch, and he candidly admitted to the jury that he was testifying against Hendrix in the hope that he would get something out of it. Id. at 424-25. In view of those facts any additional damage to LaForce's credibility stemming from the fact that he had served as a confidential informant in unrelated matters three years earlier is minimal. See id. at 424.

Not only that, but as the Florida Supreme Court put it, there was “[v]ast evidence” not only that Hendrix committed the murders but also that he did so with “heightened planning and premeditation.” Hendrix I, 637 So.2d at 920. The adjective “vast” is apt. Three witnesses each testified that, in separate instances, Hendrix had indicated that he was going to harm or kill Scott. Hendrix told the first one that “he had to do something” about the person who had “turn[ed] State's evidence against him.” He told the second one that “he was going to kill” Scott. And he rhetorically asked the third one: “Wouldn't it be a shame if Elmer [Scott] didn't show up for court?” Another witness testified that Hendrix had threatened Scott. More specifically, he heard Hendrix tell Scott: “I'm going to be tearing up some mother fucken ass, your ass, mother fucker. I will tear up your ass. If you do this or you do that, I will tear up some ass, I promise you that.” Added to the testimony of those four witnesses, four others testified that Hendrix had asked them about getting him a firearm; two of them recalled that he wanted a throw-away gun.

In addition to those eight witnesses, Hendrix's girlfriend testified that he had discussed with her his plans to kill Scott. She described to the jury that she had driven Hendrix to Scott's house the night before Hendrix's trial on the burglary charges was to begin; that she waited outside and heard shots; and that after she drove Hendrix home, he took a shower and burned his clothes. She also conveyed to the jury Hendrix's blow-by-blow description of the two murders, including how he had slashed Scott's throat “for, I guess, insurance” and how, as he shot Scott, he told him “I'll see you in hell!” Id. at 918. The Florida Supreme Court's decision that the undisclosed information was not material, and for that reason there was no Brady violation in this case, is an entirely reasonable application of Brady and other Supreme Court precedents applying that decision.

AFFIRMED.