Executed September 23, 2008 08:16 p.m. EST by Lethal Injection in Florida
23rd murderer executed in U.S. in 2008
1122nd murderer executed in U.S. since 1976
2nd murderer executed in Florida in 2008
66th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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| |
Richard Henyard B / M / 18 - 34 |
Jamilya Lewis B / F / 7 Jasmine Lewis B / F / 3 |
Citations:
Henyard v. State, 689 So.2d 239 (Fla. 1996) (Direct Appeal).
Henyard v. State, 883 So.2d 753 (Fla. 2004) (PCR).
Henyard v. McDonough, 459 F.3d 1217 (11th Cir. 2006) (Habeas).
Final / Special Meal:
Two fried-chicken breasts, turkey sausage, fried rice, prison-made chocolate-chip cookies and Coca-Cola.
Final Words:
None
Internet Sources:
Florida Department of Corrections
DC Number: 225727"Lake killer of 2 girls executed; also raped and shot the children's mom," by Stephen Hudak. (September 24, 2008)
STARKE - Lake County child killer Richard Henyard lived two hours and six minutes longer than scheduled. But in the end Tuesday he died a more peaceful death than his victims, 7-year-old Jamilya Lewis and her 3-year-old sister, Jasmine. Terrified after their mother, Dorothy Lewis, was shot, raped and left for dead Jan. 30, 1993, the girls died after being shot in the head at close range.
Gov. Charlie Crist held up the execution by lethal injection while awaiting a decision from the U.S. Supreme Court on a last-ditch appeal. After word came that the appeal had been denied, Henyard, 34, of Eustis was asked if he had any last words. "No, sir," he said. He was pronounced dead at 8:16 p.m.
"Taking the life of Mr. Henyard is not going to revive my daughters," Dorothy Lewis, who did not attend the execution at Florida State Prison, said in a statement read by her husband, Hugh Brockington. "I do not consider this event as a joyous occasion, and I am sorry that this execution had to take place. But Romans 6:23 clearly states, 'The wages of sin is death . . . I pray that Mr. Henyard had enough sense to ask God to forgive him of his sins."
Henyard's lips moved for two minutes after the lethal mixture of chemicals was administered. Gretl Plessinger, spokeswoman for the state Department of Corrections, said she assumed Henyard was praying because his spiritual adviser, a Muslim cleric from Jacksonville, had inquired about the procedure earlier in the day. Henyard had become a Muslim while in prison, Plessinger said.
He was 18 when he and a 14-year-old accomplice, Alfonza Smalls, carjacked and kidnapped Lewis and her daughters from the parking lot of the Winn-Dixie in Eustis. Lewis and her girls had gone to shop for ingredients to make a strawberry-pretzel salad for a church picnic.
Henyard, who had stolen the gun that Smalls carried in his waistband, wanted a car to drive to a dance club in Orlando and then to visit his father in Pahokee. He and Smalls drove the mother, now 51, and her frightened children to Hicks Ditch Road, where the two teens took turns raping Lewis on the trunk of the car in view of her daughters. Henyard then suddenly shot the mother. She was shot four times -- once in the middle of the forehead. Lewis quietly prayed to Jesus, but Henyard said: "This ain't Jesus; this is Satan."
As Circuit Judge Mark Hill wrote in an order denying Henyard a new hearing, "Miraculously, for there is no better word to describe it, Ms. Lewis survived and when she gained consciousness several hours later, [she] dragged herself to a house for help . . . Meanwhile, Henyard and Smalls continued on their nightmarish joy ride with the children in the back seat. The little girls were crying and calling out for their mommy."
Both children were shot in the head by someone who stood less than four feet away and faced them. Jasmine's eyes were wide open when she was shot, a forensic examination showed. Henyard has denied shooting them. Smalls, ineligible for the death penalty because of his age at the time of the murders, is serving eight consecutive life sentences in prison. Henyard's appellate lawyers argued that Smalls has boasted he was the killer. But prosecutors contend Henyard shot the girls.
In his failed, final-day appeal -- a hand-written, civil-rights complaint filed in federal court in Jacksonville -- Henyard assailed the state's lethal-injection protocol, arguing that the lack of training and absence of medical personnel in the execution "will likely cause me to suffer cruel and unusual punishment." The delay in carrying out the sentence was believed to be the longest at the last minute without a stay being granted. During the wait, he was taken back to his death-watch cell and told that the Supreme Court was considering his case. "He was praying, he was deep in thought," Plessinger said.
When the time finally came, he lay on a gurney, arms spread apart, with only his head and left arm visible to 28 witnesses including 10 media members, Brockington -- who serves as co-pastor with his wife at a Marion County church -- and Eustis Deputy Police Chief R.A. Robinson. Brockington thanked law enforcement and the Eustis Police Department in particular, noting that the agency has remained close to Lewis' family through the long ordeal.
The execution attracted 70 death-penalty protesters, said Mark Elliott, executive director of the Floridians for Alternatives to the Death Penalty. Henyard's godmother, Jacquelyn Turner of Mount Dora, who visited him Friday, broke down when told Henyard was dead. "He's out of his misery," she said through tears.
Henyard's final meal consisted of two fried-chicken breasts, turkey sausage, fried rice, prison-made chocolate-chip cookies and Coca-Cola. He ate most of it, Plessinger said.
"Florida executes man who killed 2 sisters." (Associated Press September 23, 2008
STARKE, Fla.- A Florida man convicted of shooting two young sisters in the head after raping and shooting their mother was executed Tuesday after a two-hour delay while authorities awaited final rulings from the U.S. Supreme Court.
Richard "Ric Ric" Henyard, 34, was pronounced dead at 8:16 p.m. He had been condemned for the death of 7-year-old Jamilya Lewis and her 3-year-old sister, Jasmine. The execution had been scheduled for 6 p.m. but did not start until 8:06 p.m. The doctor pronounced him dead 10 minutes later.
Henyard kept his eyes closed and appeared to be mouthing some words as the execution began, but he declined to make any final statement. He appeared to be shaking and having a hard time breathing after the lethal injection was administered, and stopped moving a minute later. The execution was the second under Gov. Charlie Crist.
Dorothy Lewis, the mother of the murdered girls, wrote in a prepared statement read by her husband that she still does "not have a feeling of resolution." "This day has not brought any closure to my life," her husband, Hugh Brockington read. "Taking the life of Mr. Henyard is not going to revive my daughters."
Henyard and a younger accomplice carjacked Lewis and her daughters outside a grocery store in the Central Florida town of Eustis on the night of Jan. 30, 1993. Henyard, then 18, raped Lewis and then shot her multiple times at close range, but she survived. He then participated in the shooting deaths of her daughters after they cried out for their mother.
Henyard ate most of his last meal — two fried chicken breasts, turkey sausage, fried rice, chocolate chip cookies and a Coke, said Gretl Plessinger, a spokeswoman for the Florida Department of Corrections.
In his 15 years on death row, Henyard only had one visitor. His godmother, Jacqueline Turner of Eustis, first visited him Friday but did not visit him as scheduled Tuesday, Plessinger said. Instead, a Muslim cleric visited Henyard. "I pray that Mr. Henyard had sense enough to ask God to forgive him," Brockington read. "The question I would like to ask Mr. Henyard is, 'Why did you kill my babies? You shot them down like they were wild animals. Why?'"
Lewis, who talks about her ordeal as a pastor and motivational speaker in the Ocala area, did not responded to e-mails or telephone calls seeking comment before Henyard's execution. "Today, I can truly say that I am no longer a victim, but I am victorious through the love of God," Lewis, now 51, wrote on a Web site, www.prayerforsexualtrauma.org.
Lewis and her daughters had gone to a Winn-Dixie about 10 p.m. when they were carjacked by Henyard and 14-year-old Alfonza Smalls. Smalls repeatedly demanded that Lewis "shut the girls up" because they were crying. At one point, Lewis beseeched Jesus for help and Henyard replied, "This ain't Jesus, this is Satan."
Henyard and Smalls raped Lewis before Henyard shot her in the leg, neck, mouth and between the eyes. She was rolled off the side of the road and left for dead. As they were driven away by Henyard and Smalls, the girls yelled: "I want my Mommy! Mommy, Mommy!" A short time later, the girls were taken from the car and killed with gunshot wounds to the head.
The day after the shooting, Henyard went to the Eustis Police Department and initially told a story implicating Smalls and another man. When police noticed bloodstains on his sock, he admitted helping abduct Lewis and her children. He also said he raped her and shot her. He said that he was present when the children were shot, but that he did not shoot them.
The Florida Supreme Court rejected all of Henyard's appeals Sept. 10, including his claim that Smalls was the shooter. The U.S. Supreme Court also denied two appeals filed last week.
A handwritten civil rights appeal filed by Henyard in federal court in Jacksonville was denied Tuesday. The appeal alleged the state's execution team lacks training and could cause a painful death if the IVs aren't properly inserted. That was the case during the December 2006 execution of Angel Diaz, who took more than twice as long as normal to die, triggering a moratorium that ended this year with new procedures for lethal injection. The ruling was appealed to the U.S. 11th Circuit Court of Appeals, which affirmed the lower court's decision and denied a stay of execution.
Small was too young to face execution. He was sentenced to eight consecutive life sentences for the kidnapping, rape and murders.
Florida has executed 65 inmates since the execution of John Spenkelink in 1979, 21 by lethal injection and 44 by the electric chair. Pedophile Mark Dean Schwab was executed July 1 for the 1991 slaying of 11-year-old Junny Rios-Martinez. There are 387 men and one woman on Florida's death row, and Crist has said he wants to begin executing those who committed the most heinous crimes after they complete their appeals.
In June 1994, a jury in the Circuit Court of Lake County, Florida, convicted Richard Henyard of multiple crimes, including the carjacking of Dorothy Lewis and her two children, Jasmine, age 3, and Jamilya, age 7; the first degree murder of Jasmine and Jamilya Lewis; and the rape and attempted murder of Dorothy Lewis. The jury unanimously recommended, and the trial court imposed, a sentence of death.
The record reflects that one evening in January, 1993, eighteen-year-old Richard Henyard stayed at the home of a family friend and stole a gun that belonged to the man. Several friends of Henyard's testified they had seen him with a gun after that date. He showed one friend a small black gun and said that, in order to make his trip, he would steal a car, kill the owner, and put the victim in the trunk. A woman testified that around 10 p.m. on January 30, she went to the Winn Dixie store in Eustis. She saw Henyard and a younger man sitting on a bench near the entrance of the store. When she left, Henyard and his companion got up from the bench; one of them walked ahead of her and the other behind her. As she approached her car, the one ahead of her went to the end of the bumper, turned around, and stood. The woman quickly got into the car and locked the doors. As she drove away, she saw Henyard and the younger man walking back towards the store.
At the same time, the eventual survivor and victims in this case, Ms. Dorothy Lewis and her daughters, Jasmine, age 3, and Jamilya, age 7, drove to the Winn Dixie store. Dorothy noticed a few people sitting on a bench near the doors as she and her daughters entered the store. When she left the store, she went to her car and put her daughters in the front passenger seat. As she walked behind the car to the driver’s side, Dorothy noticed Alfonza Smalls coming towards her. As Smalls approached, he pulled up his shirt and revealed a gun in his waistband. Smalls ordered Dorothy and her daughters into the back seat of the car, and then called to Henyard. Henyard drove the Lewis car out of town as Smalls gave him directions. The Lewis girls were crying and upset, and Smalls repeatedly demanded that their mother “shut the girls up.”
As they continued to drive out of town, Dorothy beseeched Jesus for help, to which Henyard replied, “this ain’t Jesus, this is Satan.” Later, Henyard stopped the car at a deserted location and ordered Dorothy out of the car. Henyard raped Dorothy Lewis on the trunk of the car while her daughters remained in the back seat of the car. Dorothy attempted to reach for the gun that was lying nearby on the trunk. Smalls grabbed the gun from her and shouted, “you’re not going to get the gun, bitch.” Smalls also raped Dorothy on the trunk of the car. Henyard then ordered her to sit on the ground near the edge of the road. When she hesitated, Henyard pushed her to the ground and shot her in the leg. Henyard shot her at close range three more times, wounding her in the neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls rolled Dorothy’s unconscious body off to the side of the road, and got back into the car. The last thing Dorothy remembers before losing consciousness is a gun aimed at her face.
Miraculously, Dorothy survived and, upon regaining consciousness a few hours later, made her way to a nearby house for help. The occupants called the police and Dorothy, who was covered in blood, collapsed on the front porch and waited for the officers to arrive. As Henyard and Smalls drove the Lewis girls away from the scene where their mother had been shot and abandoned, Jasmine and Jamilya continued to cry and plead: “I want my Mommy,” “Mommy,” “Mommy.” Shortly thereafter, Henyard stopped the car on the side of the road, got out, and lifted Jasmine out of the back seat while Jamilya got out on her own. The Lewis girls were then taken into a grassy area along the roadside where they were each killed by a single bullet fired into the head.
Henyard and Smalls threw the bodies of Jasmine and Jamilya Lewis over a nearby fence into some underbrush. The autopsies of Jasmine and Jamilya Lewis showed that they both died of gunshot wounds to the head and were shot at very close range. Powder stippling around Jasmine’s left eye, the sight of her mortal wound, indicated that her eye was open when she was shot. One of the blood spots discovered on Henyard’s socks matched the blood of Jasmine Lewis. “High speed” or “high velocity” blood splatters found on Henyard’s jacket matched the blood of Jamilya Lewis and showed that Henyard was less than four feet from her when she was killed. Smalls’ trousers had “splashed” or “dropped blood” on them consistent with dragging a body.
DNA evidence was also presented at trial indicating that Henyard raped Dorothy Lewis. The day after the crimes, Henyard went to the Eustis police and told them a story blaming the crime on Smalls and another man. When detectives noticed bloodstains on his sock, he admitted that he helped abduct Dorothy and her daughters, and that he raped and shot Dorothy. He told police that he was there when the girls were killed but that he did not shoot them. Smalls was 14 years old at the time of the crimes and could not be sentenced to death. He received 8 consecutive life sentences for the kidnappings, rape and murders.
Today, Dorothy Lewis is a pastor and motivational speaker, and speaks about her ordeal. On a web site, she says, "Today I can truly say that I am no longer a victim, but I am victorious through the love of God."
Richard Henyard (June 26, 1974 – September 23, 2008) was an American murderer on death row in Florida, USA, convicted for the double murder of 7-year-old Jamilya Lewis and 3-year-old Jasmine Lewis in January 1993 in Eustis, and the rape of the sisters' mother during the same day.[1] Henyard was sentenced to death on August 19, 1994, and had been in lockdown. Henyard's death warrant was signed on June 9, 2008.[2] Henyard was the 66th execution in the state since the death penalty was reinstated in the United States in 1976.
Henyard was executed on September 23, 2008, by lethal injection. The execution was delayed by two hours as Henyard had two appeals before the U.S. Supreme Court trying to block the execution; both were denied.[3]
Crime
On the evening of January 30, 1993,[4] Dorothy Lewis and her daughters arrived at the Winn-Dixie. As Lewis, the eventual survivor, and her daughters, the victims, were entering the Winn-Dixie, she noticed a few people sitting on a bench near the doors. After Lewis exited the store with Jamilya, age 7, and Jasmine, age 3, she walked to her car and proceeded to place her daughters in the front passenger seat. As Lewis crossed the rear of the car to get to the driver’s side, she noticed Alfonza Smalls approaching her. As Smalls neared, he revealed a gun tucked into his waistband. Lewis and her daughters were ordered into the back of the car as Smalls and Henyard entered the front. The Lewis car left town with Henyard driving and Smalls issuing directions. Prior to the abduction of Lewis and her daughters, a female witness observed Henyard and Smalls loitering outside of the Winn-Dixie. During the drive, Smalls repeatedly demanded that Lewis keep her daughters quiet since they were crying and upset. Later, Henyard pulled the car over at a remote area and pulled Lewis from the car. Henyard forced Lewis against the trunk and raped her. Smalls then raped Ms. Lewis. Henyard told Lewis to sit on the ground. She hesitated, and Heynard shot her in the leg and forced her to the ground. She was also shot by Henyard three more times at close range and was wounded in the mouth, neck, and on the forehead between the eyes. After she was unconscious, Henyard and Smalls rolled her over to the shoulder of the road. Lewis survived and several hours later regained consciousness and went to a nearby house for help. The occupants contacted the police and Lewis collapsed and waited for the officers to arrive. As Henyard and Smalls drove away from the scene of the shooting, Jamilya and Jasmine Lewis repeatedly asked for their mother. Henyard pulled the car over after a short period of time and removed the girls from the car. Henyard and Smalls took the girls away from the road, out of the clear view of passers by, and killed both Jamilya and Jasmine with a single bullet to the head.[5] Henyard and Smalls then threw their bodies into some brush over a fence. Smalls, Henyard, and a third individual arrived at the home of Bryant Smith in a blue car. Henyard proceeded to boast about raping Lewis and about her subsequent murder. He also showed Smith the gun that was used. Later in the evening, Henyard went by the Smalls’ residence where Colinda Smalls, Alfonza’s sister, noticed blood on Henyard's hands. He explained that the blood was from a minor knife accident. On January 31, the next day, Henyard's Aunt, Linda Miller, agreed to drive Henyard to Small's residence so that Henyard could speak with Smalls. Henyard made a trip to the Eustis Police Department that same Sunday claiming to have information concerning the Lewis case. He offered knowledge of the crime, and claimed that he was present at the scene of the crime. Henyard’s initial story pointed to Smalls and another individual as the perpetrators. However, when an officer noticed blood spots on Henyard’s socks, he admitted to the abduction, rape, and shooting of Lewis, yet maintained that he did not shoot the Lewis girls. The police apprehended Smalls and discovered the murder weapon after a search of his bedroom. The autopsies of the girls confirmed that they were killed by a single gunshot wound at close range and that Jasmine’s eyes were open when she was shot. Analysis of the blood spots indicated that Henyard was less than four feet from the victims when they were shot.
Post mortem of victims The autopsies of Jasmine and Jamilya Lewis showed that both girls died of gunshot wounds to the head and were shot at very close range. Powder stippling around Jasmine’s left eye, the site of her mortal wound, indicated that her eyes were open when she was shot. One of the blood spots discovered on Henyard’s socks matched the blood of Jasmine Lewis. “High speed” or “high velocity” blood splatters found on Henyard’s jacket matched the blood of Jamilya Lewis and showed that Henyard was less than four feet from her when she was killed. Smalls’ trousers had “splashed” or “dropped blood” on them consistent with dragging a body. DNA evidence was also presented at trial indicating that Henyard raped Ms. Lewis.
References
http://off2dr.com/modules/extcal/event.php?event=221
http://tcadp.net/2008/07/09/richard-henyard-death-warrent-signed/
http://www.myfoxorlando.com/myfox/pages/News/Detail?contentId=7491239&version=12&locale=EN-US&layoutCode=TSTY&pageId=3.2.1
http://www.floridacapitalcases.state.fl.us/index-henyard.cfm
http://www.topix.com/forum/news/death-penalty/TRS82GTJBSV96V79J
Florida Commission on Capital Cases
HENYARD, Richard (B/M)
Fifth Judicial Circuit, Lake County Case # 93-159
Date of Offense: 01/30/93
Circumstances of the Offense:
One day in January of 1993, Richard Henyard went into the bedroom of family friend Luther Reed and took Reed’s gun. On January 29th, 18-year-old Henyard showed the gun to a long-time acquaintance, Dikeysha Johnson, when he was in Eustis, Florida. That same evening, Henyard showed the gun to Shenise Hayes and told her of his plan to steal a car, kill the owner, and put the victim in the trunk in order for him to have transportation to an Orlando nightclub and to visit his father in South Florida.
Henyard tried to persuade William Pew to participate in the robbery when he saw him the last week in January. Pew saw Henyard later that same day with Alfonza Smalls, a 14-year-old friend of Henyard’s. Henyard showed Pew the gun and told him that in order to get the car he needed, Henyard was going to rob someone at either the Winn-Dixie or the hospital.
On the evening of January 30, 1993, Ms. Lewis and her daughters arrived at the Winn-Dixie. As Lewis, the eventual survivor, and her daughters, the victims, were entering the Winn-Dixie, she noticed a few people sitting on a bench near the doors. After Lewis exited the store with Jamilya, age 7, and Jasmine, age 3, she walked to her car and proceeded to place her daughters in the front passenger seat. As Lewis crossed the rear of the car to get to the driver’s side, she noticed Alfonza Smalls approaching her. As Smalls neared, he revealed a gun tucked into his waistband. Lewis and her daughters were ordered into the back of the car as Smalls and Henyard entered the front. The Lewis car left town with Henyard driving and Smalls issuing directions. Prior to the abduction of Lewis and her daughters, a female witness observed Henyard and Smalls loitering outside of the Winn-Dixie.
During the drive, Smalls repeatedly demanded that Lewis keep her daughters quiet since they were crying and upset. Later, Henyard pulled the car over at a remote area and pulled Lewis from the car. After Henyard forced her against the trunk and raped her, Smalls raped Ms. Lewis as well. Henyard told her to sit on the ground and when she hesitated, he shot her in the leg and forced her to the ground. She was also shot by Henyard three more times at close range and was wounded in the mouth, neck, and on the forehead between the eyes. After she was unconscious, Henyard and Smalls rolled her over to the shoulder of the road. Lewis survived and several hours later regained consciousness and went to a nearby house for help. The occupants contacted the police and Lewis collapsed and waited for the officers to arrive.
As Henyard and Smalls drove away from the scene of the shooting, the Lewis girls were repeatedly asking for their mother. Henyard pulled the car over after a short period of time had passed and removed the girls from the car. Henyard and Smalls took the girls further off the road and killed both Jamilya and Jasmine with a single bullet to the head. Henyard and Smalls then threw their bodies into some underbrush over a fence.
Smalls, Henyard, and a third individual arrived at the home of Bryant Smith in a blue car. Henyard proceeded to boast about raping Lewis and about her subsequent murder. He also showed Smith the gun that was used. Later in the evening, Henyard went by the Smalls’ residence where Colinda Smalls, Alfonza’s sister, noticed blood on hands of Henyard. He explained the blood as a minor knife accident. On January 31st, the next day, Henyard was driven to the Smalls’ residence by his “auntie”, Linda Miller because he said he needed to speak with Smalls.
Henyard made a trip to the Eustis Police Department that same Sunday claiming to have information concerning the Lewis case. He offered that he knew what events transpired because he was present at the scene of the crime. Henyard’s initial story pointed to Smalls and another individual as the perpetrators; however, when an officer noticed blood spots on Henyard’s socks, he admitted to the abduction, rape, and shooting of Lewis, yet maintained that he did not shoot the Lewis girls. The police apprehended Smalls and discovered the murder weapon after a search of his bedroom.
The autopsies of the girls confirmed that they were killed by a single gunshot wound at close range and also that Jasmine’s eyes were open when she was shot. Analysis of the blood spots indicated that Henyard was less than four feet from the victims when they were shot.
Codefendant Information:
Trial Summary:
02/16/93 Defendant indicted with the following:
Count I: Kidnapping while armed
Count II: Kidnapping while armed
Count III: Kidnapping while armed
Count IV: Sexual Battery while armed
Count VI: Attempted First-Degree Murder
Count VII: Robbery with a firearm
Count VIII: First-Degree Murder
Count IX: First-Degree Murder
06/03/94 Defendant was found guilty by the trial jury on all counts
06/03/94 The jury recommended Death for both counts by a vote of 12 to 0
08/19/94 Defendant was sentenced as follows:
Count I: Kidnapping while armed- life sentence
Count II: Kidnapping while armed – life sentence
Count III: Kidnapping while armed – life sentence
Count IV: Sexual Battery while armed – life sentence
Count VI: Attempted First-Degree Murder – life sentence
Count VII: Robbery with a firearm – life sentence
Count VIII: First-Degree Murder – Death
Count IX: First-Degree Murder – Death
*Please note, sentences are to run consecutively
Appeal Summary:
Florida State Supreme Court – Direct Appeal
09/06/94 Appeal filed.
Florida Supreme Court – 3.850 Appeal
Florida Supreme Court – 3.850 Appeal
Florida Supreme Court – Petition for Writ of Habeas Corpus
U.S. District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 04-621
Circuit Court – 3.851 Motion
Florida Supreme Court – 3.851 Motion Appeal
U.S. Court of Appeals, 11th Circuit – Petition for Writ of Habeas Corpus Appeal
U.S. Supreme Court – Petition for Writ of Certiorari
Florida Supreme Court - 3.850 Appeal
Florida Supreme Court – Petition for All Writs
Florida Supreme Court - 3.850 Appeal
U.S. Supreme Court – Petition for Writ of Certiorari
U.S. District Court, Middle District – Civil Rights Complaint/Motion to Stay Execution
U.S. Court of Appeals, 11th Circuit – Motion to Stay Appeal
07/09/08 Death Warrant signed by Governor Crist.
09/23/08 Henyard executed by lethal injection at 8:16 P.M.
Factors Contributing to the Delay in Imposition of Sentence:
Case Information:
A Direct Appeal was filed with the Florida Supreme Court on 09/06/94. The Florida Supreme Court considered a nonstatutory mitigating factor and accorded “little weight” to the fact that the defendant functions is of low intelligence and functions at the emotional level of a 13-year-old. Issues that were raised included whether the trial court erred in not granting Henyard’s motion for a change in venue; whether the trial court erred when it granted the state’s challenge for cause of one prospective juror; and whether the trial court erred in denying the motions to suppress his statement to the police because the interrogating officers failed to honor Henyard’s request to cease questioning in violation of his right to remain silent. The Florida Supreme Court found all of the claims either without merit or harmless and affirmed the conviction and sentence of death on 12/19/96.
A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 06/09/97 and denied on 10/06/97.
A 3.850 Motion was filed with the Circuit Court on 08/05/98 and was denied on 12/16/98.
A 3.850 Motion Appeal was filed with the Florida Supreme Court on 01/25/99 and was voluntarily dismissed on 06/07/99. Issues that were raised included whether counsel provided ineffective assistance during both the guilt phase and the penalty phase. The Florida Supreme Court subsequently denied all the claims.
A 3.850 Motion Appeal was filed with the Florida Supreme Court on 05/10/02, citing allegations of ineffective assistance of counsel. The FSC affirmed the denial of the 3.850 Motion on 05/27/04.
A Petition for Writ of Habeas Corpus was filed with the Florida Supreme Court on 12/05/02, citing allegations of ineffective assistance of counsel, Ring violations, and incompetency. The FSC denied the Petition on 05/27/04.
A Petition for Writ of Habeas Corpus was filed with the U.S. District Court, Middle District, on 12/20/04 that was denied on 08/02/05.
A 3.851 Motion was filed with the Circuit Court on 04/14/05 and amended on 05/05/05. On 06/21/05, the motion was denied.
A 3.851 Motion Appeal was filed with the Florida Supreme Court on 07/27/05, and on 04/11/06, the FSC affirmed the denial of the motion.
A Petition for Writ of Habeas Corpus Appeal was filed with the U.S. Court of Appeals, 11th Circuit on 09/02/05. On 09/21/07, the USCA affirmed the denial of the petition.
A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 01/02/07 and was denied on 03/19/07.
On 10/18/07, Henyard filed a successive 3.851 Motion in the Circuit Court that was denied on 01/10/08.
On 02/13/08, Henyard filed a 3.851 Motion Appeal with the Florida Supreme Court that was denied on 09/10/08.
On 07/09/08, Governor Crist signed a Death Warrant for Henyard. The execution is scheduled for 09/23/08.
On 08/15/08, Henyard filed a 3.850 Motion Appeal with the Florida Supreme Court that was denied on 09/10/08.
On 09/02/08, Henyard filed a Petition to Invoke All Writs Jurisdiction with the Florida Supreme Court that was denied on 09/10/08.
On 09/18/08, Henyard filed a Petition for Writ of Certiorari with the U.S. Supreme Court that was denied on 09/23/08.
On 09/18/08, Henyard filed a Civil Rights Complaint with the United States District Court, claiming the administrators of the lethal injection procedure are not adequately trained. This petition was denied on 09/23/08. Henyard filed an appeal with the U.S. Court of Appeals that was denied on 09/23/08.
Henyard was executed via lethal injection on 09/23/08.
"Florida has executed 59 inmates since 1979." (The Associated Press Posted April 5 2005)
Following is a list of 59 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 execited 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.
Henyard v. State, 689 So.2d 239 (Fla. 1996) (Direct Appeal).
Defendant was convicted in the Circuit Court, Lake County, Mark Hill, J., of sexual battery, kidnapping, and murder. Defendant appealed. The Supreme Court held that: (1) trial court did not abuse its discretion in denying motions for change of venue; (2) trial court's error in instructing prospective jurors during voir dire was harmless; (3) one victim's statements to police officer were admissible under excited utterance hearsay exception; and (4) evidence was sufficient to support death sentence. Affirmed.
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Richard Henyard. We have jurisdiction, art. V, § 3(b)(1), Fla. Const., and affirm the convictions and sentence.
FACTS
The record reflects that one evening in January, 1993, eighteen-year-old Richard Henyard stayed at the home of a family friend, Luther Reed. While Reed was making dinner, Henyard went into his bedroom and took a gun that belonged to Reed. Later that month, on Friday, January 29, Dikeysha Johnson, a long-time acquaintance of Henyard, saw him in Eustis, Florida. While they were talking, Henyard lifted his shirt and displayed the butt of a gun in the front of his pants. Shenise Hayes also saw Henyard that same evening. Henyard told her he was going to a night club in Orlando and to see his father in South Florida. He showed Shenise a small black gun and said that, in order to make his trip, he would steal a car, kill the owner, and put the victim in the trunk.
William Pew also saw Henyard with a gun during the last week in January and Henyard tried to persuade Pew to participate in a robbery with him. Later that day, Pew saw Henyard with Alfonza Smalls, a fourteen-year-old friend of Henyard's. Henyard again displayed the gun, telling Pew that he needed a car and that he intended to commit a robbery at either the hospital or the Winn Dixie.
Around 10 p.m. on January 30, Lynette Tschida went to the Winn Dixie store in Eustis. She saw Henyard and a younger man sitting on a bench near the entrance of the store. When she left, Henyard and his companion got up from the bench; one of them walked ahead of her and the other behind her. As she approached her car, the one ahead of her went to the end of the bumper, turned around, and stood. Ms. Tschida quickly got into the car and locked the doors. As she drove away, she saw Henyard and the younger man walking back towards the store.
At the same time, the eventual survivor and victims in this case, Ms. Lewis and her daughters, Jasmine, age 3, and Jamilya, age 7, drove to the Winn Dixie store. Ms. Lewis noticed a few people sitting on a bench near the doors as she and her daughters entered the store. When Ms. Lewis left the store, she went to her car and put her daughters in the front passenger seat. As she walked behind the car to the driver's side, Ms. Lewis noticed Alfonza Smalls coming towards her. As Smalls approached, he pulled up his shirt and revealed a gun in his waistband. Smalls ordered Ms. Lewis and her daughters into the back seat of the car, and then called to Henyard. Henyard drove the Lewis car out of town as Smalls gave him directions.
The Lewis girls were crying and upset, and Smalls repeatedly demanded that Ms. Lewis “shut the girls up.” As they continued to drive out of town, Ms. Lewis beseeched Jesus for help, to which Henyard replied, “this ain't Jesus, this is Satan.” Later, Henyard*243 stopped the car at a deserted location and ordered Ms. Lewis out of the car. Henyard raped Ms. Lewis on the trunk of the car while her daughters remained in the back seat. Ms. Lewis attempted to reach for the gun that was lying nearby on the trunk. Smalls grabbed the gun from her and shouted, “you're not going to get the gun, bitch.” Smalls also raped Ms. Lewis on the trunk of the car. Henyard then ordered her to sit on the ground near the edge of the road. When she hesitated, Henyard pushed her to the ground and shot her in the leg. Henyard shot her at close range three more times, wounding her in the neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls rolled Ms. Lewis's unconscious body off to the side of the road, and got back into the car. The last thing Ms. Lewis remembers before losing consciousness is a gun aimed at her face. Miraculously, Ms. Lewis survived and, upon regaining consciousness a few hours later, made her way to a nearby house for help. The occupants called the police and Ms. Lewis, who was covered in blood, collapsed on the front porch and waited for the officers to arrive.
As Henyard and Smalls drove the Lewis girls away from the scene where their mother had been shot and abandoned, Jasmine and Jamilya continued to cry and plead: “I want my Mommy,” “Mommy,” “Mommy.” Shortly thereafter, Henyard stopped the car on the side of the road, got out, and lifted Jasmine out of the back seat while Jamilya got out on her own. The Lewis girls were then taken into a grassy area along the roadside where they were each killed by a single bullet fired into the head. Henyard and Smalls threw the bodies of Jasmine and Jamilya Lewis over a nearby fence into some underbrush.
Later that evening, Bryant Smith, a friend of Smalls, was at his home when Smalls, Henyard, and another individual appeared in a blue car. Henyard bragged about the rape, showed the gun to Smith, and said he had to “burn the bitch” because she tried to go for his gun. Shortly before midnight, Henyard also stopped at the Smalls' house. While he was there, Colinda Smalls, Alfonza's sister, noticed blood on his hands. When she asked Henyard about the blood, he explained that he had cut himself with a knife. The following morning, Sunday, January 31, Henyard had his “auntie,” Linda Miller,FN1 drive him to the Smalls' home because he wanted to talk with Alfonza Smalls. Colinda Smalls saw Henyard shaking his finger at Smalls while they spoke, but she did not overhear their conversation. FN1. Linda Miller is not actually Richard Henyard's aunt.
That same Sunday, Henyard went to the Eustis Police Department and asked to talk to the police about the Lewis case. He indicated that he was present at the scene and knew what happened. Initially, Henyard told a story implicating Alfonza Smalls and another individual, Emmanuel Yon. However, after one of the officers noticed blood stains on his socks, Henyard eventually admitted that he helped abduct Ms. Lewis and her children, raped and shot her, and was present when the children were killed. Henyard continuously denied, however, that he shot the Lewis girls. After being implicated by Henyard, Smalls was also taken into custody. The gun used to shoot Ms. Lewis, Jasmine and Jamilya was discovered during a subsequent search of Smalls' bedroom.
The autopsies of Jasmine and Jamilya Lewis showed that they both died of gunshot wounds to the head and were shot at very close range. Powder stippling around Jasmine's left eye, the sight of her mortal wound, indicated that her eye was open when she was shot. One of the blood spots discovered on Henyard's socks matched the blood of Jasmine Lewis. “High speed” or “high velocity” blood splatters found on Henyard's jacket matched the blood of Jamilya Lewis and showed that Henyard was less than four feet from her when she was killed. Smalls' trousers had “splashed” or “dropped blood” on them consistent with dragging a body. DNA evidence was also presented at trial indicating that Henyard raped Ms. Lewis.
Henyard was found guilty by the jury of three counts of armed kidnapping in violation of section 787.01, Florida Statutes (1995), one count of sexual battery with the use of a firearm in violation of section 794.011(3), Florida Statutes (1995), one count of attempted first-degree murder in violation of sections 782.04(1)(a)(1) and 777.04(1), Florida Statutes (1995), one count of robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (1995), and two counts of first-degree murder in violation of section 782.04(1)(a), Florida Statutes (1995).
After a penalty phase hearing, the jury recommended the death sentence for each murder by a vote of 12 to 0. The trial court followed this recommendation and sentenced Henyard to death. The court found in aggravation: (1) the defendant had been convicted of a prior violent felony, see section 921.141(5)(b); (2) the murder was committed in the course of a felony, see section 921.141(5)(d); (3) the murder was committed for pecuniary gain, see section 921.141(5)(f) and, (4) the murder was especially heinous, atrocious or cruel, see section 921.141(5)(h).
The court found Henyard's age of eighteen at the time of the crime as a statutory mitigating circumstance, see section 921.141(6)(g), and accorded it “some weight.” The trial court also found that the defendant was acting under an extreme emotional disturbance and his capacity to conform his conduct to the requirements of law was impaired,FN2 see section 921.141(6)(b), (f), and accorded these mental mitigators “very little weight.” As for nonstatutory mitigating circumstances, the trial court found the following circumstances but accorded them “little weight”: (1) the defendant functions at the emotional level of a thirteen year old and is of low intelligence; (2) the defendant had an impoverished upbringing; (3) the defendant was born into a dysfunctional family; (4) the defendant can adjust to prison life; and (5) the defendant could have received eight consecutive life sentences with a minimum mandatory fifty years. Finally, the trial court accorded “some weight” to the nonstatutory mitigating circumstance that Henyard's codefendant, Alfonza Smalls, could not receive the death penalty as a matter of law.FN3 The court concluded that the mitigating circumstances did not offset the aggravating circumstances.
FN2. In its sentencing order, the trial court incorrectly characterized these “mental mitigators” as nonstatutory mitigating circumstances.
FN3. In Allen v. State, 636 So.2d 494 (Fla.1994), we held that the death penalty is either cruel or unusual punishment under article I, section 17 of the Florida Constitution if imposed upon a person who is under the age of sixteen when he or she commits a capital crime. Id. at 497. Because Alfonza Smalls was fourteen years of age at the time of the offense, he is ineligible to receive the death penalty as a matter of law.
* * *
Admissibility of Henyard's Confession
Next, Henyard argues that his right against self-incrimination under article I, section 9 of the Florida Constitution was violated during his interrogation at the Eustis Police Department when he indicated to the officers his desire to terminate questioning. Because the officers failed to terminate the interrogation or clarify his requests to cease questioning, Henyard maintains that the trial court erred in admitting his first confession against him at trial.FN7
FN7. Henyard made three, independent confessions to law enforcement officers on the day after the Lewis children were murdered. At the suppression hearing, the trial court deemed all three of Henyard's statements to be admissible against him, but only Henyard's initial confession was admitted against him at trial. Henyard contends that all three confessions were obtained in violation of his right to remain silent, and urges us to address the trial court's alleged error in finding his second and third statements to be admissible, even though he was not prejudiced by the ruling. Because we affirm his convictions and sentences, we decline to address whether the trial court erred in finding admissible Henyard's last two statements which the state did not offer into evidence at trial.
In Owen v. State, 560 So.2d 207 (Fla.), cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990), we reversed a defendant's convictions, concluding that his statements were erroneously admitted into evidence contrary to Miranda and that his confession was the “essence” of the state's case against him. Id. at 211. During his interrogation, Owen never requested counsel, but expressly stated: “I'd rather not talk about it.” Id. Subsequently, we held in Traylor v. State, 596 So.2d 957 (Fla.1992), that a suspect's request to cease interrogation is also protected under the Florida Constitution. Thus, our decisions in Owen and Traylor give effect to an individual's right to remain silent.
In this case, Henyard voluntarily went to the Eustis Police Department to provide information about the murders of the Lewis children. He saw Sergeant Wayne Perry in the parking lot when he arrived, and immediately told him he had been present when the children were killed but that he did not do it. Henyard voluntarily accompanied Sergeant Perry inside the stationhouse where the officers investigating the Lewis murders were advised that Henyard had come to the police station with information about the crime. Henyard talked with the investigating officers in an interview room at the Eustis Police Department.
Initially, Henyard contends that the officers should have ceased their interrogation of him when he asked how long the questioning would last. He cites the following exchange:
HENYARD: Can I go home soon, man?
OFFICER: Soon. You know how these federal people are though. They're not like us local boys.
....
HENYARD: Excuse me, sir. How long [am] I gonna have to stay here?
FBI AGENT: Huh?
HENYARD: How long do I have to stay here?
FBI AGENT: Ah, just a few more minutes.
We find that Henyard's queries do not constitute even an equivocal indication that he wished to cease questioning. See Moore v. Dugger, 856 F.2d 129 (11th Cir.1988)(holding defendant's request during interrogation for information about when, in the future, he would be allowed to leave was not attempt to exercise right under Miranda to terminate questioning and remain silent); see also Delap v. Dugger, 890 F.2d 285, 291-93 (11th Cir.1989)(holding defendant's questions to interrogating officers concerning how long it would be before he could go home did not constitute equivocal invocation of Fifth Amendment right to terminate questioning), cert. denied, 496 U.S. 929, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990). Rather, Henyard asked for a time frame, inquiring as to how long the questioning would take. Moreover, immediately after this exchange, Henyard was provided with a written “ Miranda ” form explaining his Fifth Amendment rights and was also orally advised of his rights. When asked if he understood his rights, Henyard not only indicated that he did, but he expressly waived them and continued answering questions about his activities on the preceding evening.
Henyard also asserts that he made a second request to terminate the questioning. After the initial interrogation, an FBI agent asked Henyard if he would be willing to take a polygraph test. Henyard responded that he would not do so without the presence of his aunt. When told that his aunt could be contacted but she could not sit next to him during the test, he refused to submit to the test. A discussion ensued concerning the whereabouts of Henyard's “auntie” so that she could be contacted and brought to the station for his support:
FBI AGENT: After you talk to her-Don't you want to resolve this right now?
HENYARD: Yes, I do.
FBI AGENT: Okay, you just hang out here. What else you going to do? You going to hang out at the Manors, you can hang out here, okay?
HENYARD: Huh?
FBI AGENT:You just stay here a minute-you know, we can't force you to stay here (Inaudible.)
HENYARD: Take me to my auntie's house.
FBI AGENT:We're going to have your aunt come down here.
HENYARD: Ya'll (Inaudible.)
FBI AGENT: Yeah, we're going to have-
HENYARD: Superbowl, man. I'm missing my game.
FBI AGENT: Well, it's 6:00. You've got a couple of [sic] three hours yet. I mean you're equivocating [sic] a Superbowl to two kids, two innocent children being killed?
In this instance, Henyard's request to be taken “to his auntie's house” was made incidental to securing her presence during the polygraph test, and as an aside from the interrogation. Henyard's discussion with the officers at this point did not concern his activities on the preceding evening or his involvement in the offense, but rather focused on whether he would be willing to take a polygraph test if his aunt could be with him at the police station. In this context, and in light of Henyard's voluntary presence at the police station for the purpose of disclosing information he had concerning the offense, we find no error in the trial court's conclusion that this discussion did not constitute a request to end the interrogation. Cf. Delap; Moore.
Even assuming arguendo that Henyard's request to be taken to his aunt's house was an equivocal invocation of his right to terminate questioning, we find that any error in admitting these statements did not contribute to the outcome in this case and would be harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Unlike our decision in Owen where we explained that “[e]ven though there was corroborating evidence, Owen's statements were the essence of the case against him,” 560 So.2d at 211, Henyard's statements to police certainly were not the “essence” of the state's case here. Rather, the other evidence presented at trial of Henyard's guilt was extensive and overwhelming, to include: (1) the “motive” and “intent” testimony of several of Henyard's acquaintances who, during the week preceding the offense, saw him with the gun later shown to have killed the Lewis girls to the exclusion of all others, and heard him brag that he was going to steal a car, kill the owner, and put the victim in the trunk; (2) the testimony of the surviving victim, Ms. Lewis, who identified Henyard and Smalls, and detailed the sequence of events leading up to her daughters' deaths; (3) DNA evidence establishing that Henyard raped Ms. Lewis and had blood on his clothes that matched the blood of Jasmine and Jamilya Lewis; (4) the gun found in a search of Smalls' bedroom was the same one used to shoot Ms. Lewis and kill the Lewis children; and (5) the testimony of several witnesses who saw and heard Henyard implicate himself in the crime after its commission.
Moreover, Henyard consistently denied any role in killing the Lewis girls, and, at trial, Henyard's trial strategy was, in essence, to concede his participation in the crimes except as to the killing of the children. Hence, his statements were consistent with this strategy.
* * *
The Admissibility of Ms. Lewis's Hearsay Statements
Henyard contends that the trial court erred by allowing a Eustis police officer to testify to statements Ms. Lewis made to him under the excited utterance exception to the hearsay rule because her statements were inadmissible hearsay. We again disagree.
In order for a hearsay statement to be admissible as an excited utterance under section 90.803(2), Florida Statutes (1995) the statement: (1) must have been made regarding an event startling enough to cause nervous excitement; (2) must have been made before there was time to contrive or misrepresent; and (3) must have been made while the person was under the stress or excitement caused by the event. State v. Jano, 524 So.2d 660, 661 (Fla.1988). While the length of time between the event and the statement is a factor to be considered in determining whether the statement may be admitted under the excited utterance exception, id. at 662, the immediacy of the statement is not a statutory requirement. See § 90.803(2).
In the early morning hours of Sunday, January 31, a Eustis police officer responded to a call for help concerning a woman covered with blood who had collapsed on the front porch of a home near Hicks Ditch Road. When the officer arrived, he found Ms. Lewis, who was hysterical but coherent. At trial, the officer was permitted to recount statements Ms. Lewis made to him on the front porch immediately after his arrival. The police officer testified that Ms. Lewis told him she had been raped and shot, identified her assailants as two young black males who fit the description of Henyard and Smalls, and said they had taken her children. Given these circumstances, we find that Ms. Lewis was still experiencing the trauma of the events she had just survived when she spoke to the officer and her statements were properly admitted under the excited utterance exception to the hearsay rule.
Even assuming arguendo that Ms. Lewis's statements were not properly admitted, we find the error harmless. Ms. Lewis also testified at length at Henyard's trial, identifying him as one of her assailants and describing the clothing he was wearing when he abducted her and her children. Because the officer's testimony concerning Ms. Lewis's statements was nothing more than a generalization of specific information which Ms. Lewis testified to at trial from her own personal knowledge, we find that any error in allowing him to testify to Ms. Lewis's statements is harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
The Admissibility of Penalty Phase Evidence
First, Henyard claims that the trial court erred in allowing the state at the penalty phase to present evidence of his prior juvenile adjudication for armed robbery with a weapon which the trial court specifically relied on to find the prior violent felony aggravating circumstance. See § 921.141(5)(b), Fla. Stat. (1995).FN13 We agree.
FN13. Section 921.141(5) states:AGGRAVATING CIRCUMSTANCES.-Aggravating circumstances shall be limited to the following:
....(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
In Merck v. State, 664 So.2d 939 (Fla.1995), the defendant was convicted of first-degree murder, and at his sentencing trial the State introduced evidence of Merck's prior juvenile adjudication in North Carolina for assault with a deadly weapon. Id. at 943-44. The jury recommended death and the trial court followed the recommendation, finding Merck's juvenile adjudication to be an aggravating factor under section 921.141(5)(b). Id. at 941, 943. We reversed the death sentence and explained:
[W]e agree with Merck that the juvenile adjudication was not a conviction within the meaning of section 921.141(5)(b), Florida Statutes (1993). This is expressly mandated in section 39.053, Florida Statutes (1993).... Despite correctly sustaining the objection to the admissibility of the North Carolina judgment, the trial court erred in stating in her sentencing order, “This is also a proper aggravating factor under [section] 921.141(5)(b).” We find the inclusion of this juvenile adjudication similar to the erroneous inclusion of community control as an aggravating factor in Trotter v. State, 576 So.2d 691 (Fla.1990). As noted in Trotter, penal statutes must be strictly construed in favor of the one against whom a penalty is imposed. Id. at 694. We therefore conclude as we did in Trotter, that a resentencing before a jury is required.
... We acknowledge that there was other substantial evidence to support the aggravating factor in section 921.141(5)(b). Nevertheless, from our review of the record we cannot say that the dramatic testimony concerning the North Carolina shooting did not taint the recommendation of the jury. Id. at 944. As we indicated in Merck, section 39.053(4), Florida Statutes (1995), expressly states: “Except as the term ‘conviction’ is used in chapter 322, and except for use in a subsequent proceeding under this chapter, an adjudication of delinquency by a court with respect to any child who has committed a delinquent act or violation of law shall not be deemed a conviction....” Thus, Henyard's prior juvenile adjudication for robbery with a weapon is not a “conviction” for a prior violent felony. Consequently, in light of our recent decision in Merck, and the plain language of section 921.141(5)(b), which requires that the defendant be “previously convicted” of a violent felony for it to be considered in aggravation, we find the trial court erred in relying upon Henyard's juvenile adjudication for robbery to support the prior violent felony aggravating factor.
Nevertheless, we reject Henyard's claim that the trial court's improper consideration of Henyard's prior juvenile adjudication as a violent felony entitles him to a new sentencing hearing. Unlike the violent felony adjudication at issue in Merck, the testimony concerning Henyard's juvenile adjudication was modest and served to minimize his role in the prior offense. FN14 Moreover, the record reflects without dispute the presence of six other contemporaneous felony convictions of Henyard to support the prior violent felony aggravator for each death sentence even absent Henyard's juvenile adjudication for robbery with a weapon.FN15 Accordingly, we find the trial court's improper admission into evidence and consideration of Henyard's juvenile adjudication for robbery with a weapon to be harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d at 1129.
FN14. Henyard's court-appointed attorney in the juvenile matter testified in pertinent part:The circumstances were it was a strong armed robbery that had a weapon involved, as far as like a broomstick, of a convenience store. And it was Larry Hayes who was the one who actually accosted the lady and who threatened her with the stick and grabbed the money. It was Mr. Henyard and Columbus Connley who were out there by the door just as a lookout at most. I thought Mr. Henyard was the least culpable of the three.
FN15. In conclusory fashion, Henyard argues that, to the extent that the contemporaneous convictions are considered under the prior violent felony aggravator, the trial court has improperly doubled this aspect with the aggravating circumstance that the murder was committed in the course of a kidnapping. See Provence v. State, 337 So.2d 783, 786 (Fla.1976) (evidence used to support two independent aggravating circumstances cannot refer to the same aspect of defendant's crime), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). In this case, the trial court imposed death sentences for the murders of both Jasmine and Jamilya Lewis. For each death sentence, the trial court considered the contemporaneous conviction for the kidnapping of the other sister under the prior violent felony aggravating factor, and considered the victim's kidnapping under the murder in the course of a felony aggravating factor. See § 921.141(5)(d). That is, the trial court considered different aspects of Henyard's crime in finding these two aggravators for each murder. Thus, the presence of these aggravators does not constitute improper doubling and Henyard's claim is without merit.
Second, Henyard contends that the trial court erred in allowing Ms. Lewis to testify during the penalty phase that Henyard, upon hearing Ms. Lewis' prayers to Jesus, stated, “You might as well stop calling Jesus, this ain't Jesus this is Satan.” Henyard claims his statement is not relevant to prove the existence of any aggravating circumstance. We disagree.
Under Florida law, the heinous, atrocious, or cruel aggravating circumstance may be proven in part by evidence of the infliction of “mental anguish” which the victim suffered prior to the fatal shot. See, e.g., Preston v. State, 607 So.2d 404, 409-10 (Fla.1992); Phillips v. State, 476 So.2d 194, 196 (Fla.1985); Routly v. State, 440 So.2d 1257, 1265-66 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984). In this case, Ms. Lewis testified that she was sitting in the back seat between her daughters, that her girls were quiet at the time Henyard made the statement at issue, and that Henyard spoke loudly enough for all to hear. Ms. Lewis explained that neither child had trouble hearing and she believed her daughters heard Henyard's statement. Thus, Henyard's statement, which the trial court characterized as the “harbinger” of the agonizing events to come, was relevant to show the mental anguish inflicted upon the Lewis girls before they were killed, and as evidence of the heinous, atrocious and cruel aggravating circumstance. Consequently, we find that the trial court properly admitted the statement into evidence during the penalty phase of Henyard's trial.
Finally, Henyard claims the trial court erred in admitting the testimony of a blood stain pattern analyst because it was not relevant to prove the existence of any aggravating circumstance. The analyst testified that, based on the blood splatters found on Henyard's clothing, Henyard was approximately four feet from Jamilya Lewis when she was shot.
In this case, Henyard offered evidence that he was not the triggerman in these murders and argued that lingering doubt as to whether he actually shot the Lewis girls should be considered in mitigation. Consequently, the testimony of the State's witness concerning blood-splatter evidence was proper to rebut Henyard's continued assertion that he did not actually kill the Lewis girls. Moreover, testimony concerning the close proximity of the defendant to the victim was relevant to show the “nature of the crime.” See § 921.141(1), Fla. Stat. (1995). Thus, we find that the trial court did not abuse its discretion in allowing the blood stain analyst to testify at the penalty phase of Henyard's trial.
The Pecuniary Gain and Heinous, Atrocious, or Cruel Aggravating Factors
Henyard claims that the trial court erred in finding the pecuniary gain aggravating circumstance in this case because the evidence was insufficient to prove this aggravating factor beyond a reasonable doubt. In Hardwick v. State, 521 So.2d 1071, 1076 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988), we held that in order for the pecuniary gain aggravating factor to be present, there must be proof beyond a reasonable doubt that the murder was an “integral step in obtaining some sought-after specific gain.”
Here, the trial court found that, during the week preceding the murders, Henyard “stated he was going to get himself a car,” and “foretold or bragged on Friday evening[,] January 29, 1993[,] that he would steal someone's car, kill the owner and use the car to drive to Pahokee to see his father.” The following evening, Henyard and his codefendant stole Ms. Lewis's car and abducted the Lewis family, raped and attempted to murder Ms. Lewis, and killed her children, Jasmine and Jamilya Lewis. Henyard's admissions and the facts of this case support a finding that the murders of Jasmine and Jamilya Lewis were “an integral step in obtaining some sought after specific gain.” See Hardwick, 521 So.2d at 1076. Thus, the trial court did not err in finding the pecuniary gain aggravating factor to be proved beyond a reasonable doubt in this case. See also Gamble v. State, 659 So.2d 242 (Fla.1995)(pecuniary gain aggravator found when codefendants stole victim's car after murdering him), cert. denied, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d 860 (1996); Hall v. State, 614 So.2d 473 (Fla.) (pecuniary gain aggravator found when victim was abducted, beaten, raped, and murdered and car was stolen), cert. denied, 510 U.S. 834, 114 S.Ct. 109, 126 L.Ed.2d 74 (1993).
Second, Henyard contends that the trial court erred in finding the heinous, atrocious, or cruel aggravating circumstance in this case because each child was killed with a single gunshot, and “if the victims were adults, heinous, atrocious, [or] cruel would not be present on this record.” We disagree.
We have previously upheld the application of the heinous, atrocious, or cruel aggravating factor based, in part, upon the intentional infliction of substantial mental anguish upon the victim. See, e.g., Routly v. State, 440 So.2d 1257, 1265 (Fla.1983), and cases cited therein. Moreover, “[f]ear and emotional strain may be considered as contributing to the heinous nature of the murder, even where the victim's death was almost instantaneous.” Preston v. State, 607 So.2d 404, 410 (Fla.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993). In this case, the trial court found the heinous, atrocious or cruel aggravating factor to be present based upon the entire sequence of events, including the fear and emotional trauma the children suffered during the episode culminating in their deaths and, contrary to Henyard's assertion, not merely because they were young children.FN16 Thus, we find the trial court properly found that the heinous, atrocious, or cruel aggravating factor was proved beyond a reasonable doubt in this case.
FN16. The sentencing order reads in pertinent part:After shooting Ms. Lewis, Henyard and Smalls rolled Ms. Lewis' unconscious body off to the side of the road. Henyard got back into Ms. Lewis' car and drove a short distance down the deserted road, whereupon Henyard stopped the car.Jasmine and Jamilya, who had been in continual close approximation and earshot of the rapes and shooting of their mother, were continuing to plead for their mother; “I want my Mommy,” “Mommy,” “Mommy.”After stopping the car, Henyard got out of Ms. Lewis' vehicle and proceeded to lift Jasmine out of the back seat of the car, Jamilya got out without help. Then both of the pleading and sobbing sisters, were taken a short distance from the car, where they were then executed, each with a single bullet to the head.
The Proportionality of the Death Penalty
As his final claim, Henyard argues that his death sentences are disproportionate to the sentence received by his codefendant, Alfonza Smalls, and that the mitigating factors in his case outweigh the aggravating factors.
Under Florida law, when a codefendant is equally culpable or more culpable than the defendant, disparate treatment of the codefendant may render the defendant's punishment disproportionate. Downs v. State, 572 So.2d 895 (Fla.1990), cert. denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 72 (1991); Slater v. State, 316 So.2d 539 (Fla.1975). Thus, an equally or more culpable codefendant's sentence is relevant to a proportionality analysis. Cardona v. State, 641 So.2d 361 (Fla.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).
Like Henyard, Alfonza Smalls was tried on the same charges and convicted, but he was not subject to the death penalty because his age of fourteen at the time of the offense prevented him from receiving the death penalty as a matter of law. Rather, Smalls received the maximum sentence possible for his crimes-eight consecutive life sentences, with a fifty-year mandatory minimum for the two first-degree murder convictions.
In Allen v. State, 636 So.2d 494, 497 (Fla.1994), we held that the death penalty is either cruel or unusual punishment under article I, section 17 of the Florida Constitution if imposed upon a person who is under the age of sixteen when committing the crime. That is, when a defendant is under the age of sixteen, his or her youth is such a substantial mitigating factor that it cannot be outweighed by any set of aggravating circumstances as a matter of law.
In this context, then, Smalls' less severe sentence is irrelevant to Henyard's proportionality review because, pursuant to Allen, the aggravation and mitigation in their cases are per se incomparable. Under the law, death was never a valid punishment option for Smalls, and Henyard's death sentences are not disproportionate to the sentence received by his codefendant. Cf. Larzelere v. State, 676 So.2d 394 (Fla.1996)(holding that codefendant's acquittal was irrelevant to proportionality review of defendant's death sentence because codefendant was exonerated from culpability as a matter of law).
We also find that the evidence in Henyard's case supports the trial court's conclusion that the four aggravating factors outweighed the mitigating factors set forth in the sentencing order.FN17 Finally, upon consideration of all of the circumstances, we further conclude that Henyard's death sentences are not disproportionate to death sentences imposed in other cases. See, e.g., Walls v. State, 641 So.2d 381, 391 (Fla.1994)(death sentence upheld for execution-style killing of woman after she witnessed boyfriend's murder), cert. denied, 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); Cave v. State, 476 So.2d 180 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986)(death sentence proportionate where co-perpetrators abducted, raped, and killed victim; defendant not actual killer).
FN17. Henyard does not contend that the trial court failed to consider any mitigating evidence presented in this case.
Accordingly, we affirm Henyard's convictions and the imposition of the sentences of death in this case. It is so ordered.
Henyard v. State, 883 So.2d 753 (Fla. 2004) (PCR).
Background: Following final appellate affirmance of his convictions of three counts of armed kidnapping, sexual battery with use of a firearm, attempted first-degree murder, robbery with a firearm, and two counts of first-degree murder, and of his sentence of death, petitioner sought post-conviction relief. The Circuit Court, Lake County, Mark J. Hill, J., denied relief, and petitioner appealed, in addition filing original petition for writ of habeas corpus.
Holdings: The Supreme Court held that:
PER CURIAM.
Richard Henyard, Jr. 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 set forth below, we affirm the trial court's denial of Henyard's postconviction motion and deny the petition for writ of habeas corpus.
FACTUAL BACKGROUND
The facts of this case are set out in detail in our previous opinion. See Henyard v. State, 689 So.2d 239 (Fla.1996). Richard Henyard (Henyard), at the age of eighteen, took a gun that belonged to a family friend and decided he was going to steal a car, kill the owner, and put the victim in the trunk so he could go see his father. Henyard convinced a younger, fourteen-year-old friend, Alfonza Smalls, to help him rob someone. On January 30, 1993, Henyard and Smalls waited outside of a Winn-Dixie store in Eustis, Florida. Their victims were Mrs. Dorothy Lewis and her daughters, Jasmine, age three, and Jamilya, age seven, who were shopping at the Winn-Dixie. As the three left the store and returned to their car, Smalls approached Lewis with a gun and ordered her and her daughters in the back of the car. Henyard drove the car out of town.
Henyard stopped the car at a deserted location where the two boys raped Lewis on the trunk of the car while her daughters remained in the back seat. Afterward, Henyard shot Lewis four times, wounding her in the leg, neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls rolled Lewis's unconscious body off to the side of the road and got back in the car. Jamilya and Jasmine were then driven to a separate location and taken from the car into a grassy area where they were each shot in the head and killed. Lewis survived and was able to make it to a nearby house where the police were called.
At trial, Richard Henyard, Jr. was convicted of three counts of armed kidnapping, one count of sexual battery with the use of a firearm, one count of attempted first-degree murder, one count of robbery with a firearm, and two counts of first-degree murder. After the penalty phase hearing, the jury recommended the death sentence for each of the murder counts by a vote of twelve to zero. The court found four aggravating factors,FN1 three statutory mitigating factors,FN2 and six nonstatutory mitigating factors. FN3 The court found that the mitigating circumstances did not outweigh the aggravating circumstances and sentenced Henyard to death.
FN1. The trial court found the following aggravating factors: (1) the defendant had been convicted of a prior violent felony; (2) the murder was committed in the course of a felony; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious or cruel.
FN2. The trial court found the following statutory mitigating factors: (1) Henyard's age of eighteen at the time of the crime; (2) evidence that Henyard was acting under an extreme emotional disturbance; and (3) Henyard's capacity to conform his conduct to the requirements of law was impaired.
FN3. The trial court found the following nonstatutory mitigating circumstances: (1) the defendant functions at the emotional level of a thirteen-year-old and is of low intelligence; (2) the defendant had an impoverished upbringing; (3) the defendant was born into a dysfunctional family; (4) the defendant can adjust to prison life; (5) the defendant could have received eight consecutive life sentences with a minimum mandatory of fifty years; and (6) Henyard's codefendant, Smalls, could not receive the death penalty as a matter of law.
This Court rejected all eleven FN4 of Henyard's claims on direct appeal and affirmed his conviction and sentence. Henyard then filed the postconviction motion that is the subject of this appeal, wherein he made nine claims.FN5 After holding a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), the trial court conducted an evidentiary hearing on Henyard's ineffective assistance of counsel claim.FN6 Both Henyard and the State introduced the testimony of a number of witnesses. Subsequently, the trial court entered an order denying relief. Henyard now appeals, claiming that the trial court erred in denying him relief on his postconviction motion.
FN4. The eleven claims were: (1) the trial court abused its discretion in failing to grant Henyard's motions for a change of venue; (2) the trial court erred when it (a) granted the State's challenge for cause of one prospective juror (who stated he could not, under any circumstances, recommend a death sentence for Henyard because of his youth), and (b) refused to excuse three prospective jurors Henyard challenged for cause; (3) the trial court erred in denying Henyard's motions to suppress his statement to the police because the interrogating officers failed to honor Henyard's request to cease questioning in violation of his right to remain silent under article I, section 9 of the Florida Constitution; (4) the trial court abused its discretion in admitting DNA evidence which was not supported by a proper predicate of reliability; (5) the trial court erred by (a) allowing the State, during voir dire, to tell prospective jurors that if the evidence of aggravators outweighed the evidence of mitigators then the jury's sentence recommendation must be for death as a matter of law, and (b) suggesting during closing argument that Henyard never admitted to raping Lewis when, in fact, he did confess to raping her in his third confession to police on the day after the murders; (6) the trial court erred in allowing a police officer to testify as to hearsay statements Lewis made to him when he came to her aid after the offense; (7) the trial court erred by giving the standard jury instructions on premeditated murder and reasonable doubt, and by failing to give the jury a special verdict form on the theory of guilt; (8) the trial court erred during the penalty phase by (a) instructing the jury on the avoid arrest aggravator, (b) expressly considering as an aggravator, and allowing the jury to hear, evidence of Henyard's prior juvenile adjudication for robbery with a weapon, and (c) allowing Lewis and Leroy Parker to testify at the penalty phase because their testimony did not tend to prove any statutory aggravating circumstance; (9) the trial court abused its discretion in denying Henyard's specially requested penalty-phase jury instruction on the heinous, atrocious or cruel aggravating circumstance, which instructed on “tortuous [sic] intent,” and further erred by giving the standard heinous, atrocious or cruel instruction, which is unconstitutionally vague and overbroad; (10) the trial court erred by relying upon two aggravating circumstances-pecuniary gain and heinous, atrocious or cruel-as support for Henyard's death sentences because they were not proven beyond a reasonable doubt; and (11) the death penalty is not proportionally warranted in this case.
FN5. The nine claims raised in Henyard's motion were: (1) ineffective assistance of counsel during penalty phase because trial counsel failed to adequately investigate and prepare mitigating evidence and to adequately challenge the State's case; (2) trial counsel was ineffective for failing to interview the jurors about any changes in their penalty phase voting; (3) trial counsel was ineffective for failing to ask jurors various questions; (4) the jury instructions violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (5) the Florida death penalty statute is unconstitutional on its face and as applied; (6) electrocution is unconstitutional; (7) entitlement to relief because of “cumulative error;” (8) the death sentence rests on an unconstitutionally automatic aggravating circumstance; (9) the death sentence is unconstitutional because Henyard has the intellectual capacity of a thirteen-year-old child.
FN6. The evidentiary hearing was held only as to portions of Henyard's first claim regarding ineffective assistance of counsel.
ANALYSIS
Henyard's claims on appeal are rooted in his claim from his postconviction motion that trial counsel was ineffective in investigating and presenting different types of mitigating evidence. On appeal, Henyard divided his claim on ineffective assistance of counsel into six subclaims, alleging that his trial counsel did not adequately investigate or present the following nonstatutory mitigating circumstances: (1) Henyard's lack of stable parental contact and supervision; (2) Henyard suffered physical abuse at the hands of his father's common law wife, Edith Ewing; (3) Henyard's pattern of seeking out younger children as companions due to his lower IQ and “mental” age and to avoid harassment from children his own age; (4) Henyard suffered sexual abuse as a child; (5) Henyard's chronic use of alcohol; (6) Henyard's mental state as characterized by his suicidal feelings. Additionally, Henyard argues that counsel was deficient in preparing one of Henyard's mental health experts for trial. We consider each of Henyard's subclaims in turn.
Investigation and Presentation of Mitigation
In order to prove an ineffective assistance of counsel claim, 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); see also Wike v. State, 813 So.2d 12, 17 (Fla.2002); Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998); Rose v. State, 675 So.2d 567, 569 (Fla.1996). To establish prejudice, “[t]he defendant 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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings. See id.
Henyard alleges that trial counsel's performance was deficient in investigating potential nonstatutory mitigating circumstances. Under Strickland, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. However, “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Id. While trial counsel has a duty to investigate, “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.” Id.
Following this standard from Strickland, this Court has held that “[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence.” Rose, 675 So.2d at 571. Moreover, this Court has also recognized that “[t]he failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” Id. Recently, the United States Supreme Court in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), applied the Strickland standard with regard to the adequacy of counsel's investigation into mitigating evidence. The Court reiterated:[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, 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, 123 S.Ct. at 2535 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). The Court determined that the principal concern about whether the attorneys in the case exercised reasonable professional judgment hinged on whether the investigation supporting counsel's decision not to introduce mitigating evidence was itself reasonable. Id. at 2536. The Court concluded that the attorneys' investigation, which was limited to obtaining two documents that indicated that the defendant had a troubled social and family history, fell short of the prevailing standards in place at the time of the trial. Id. at 2536.
Parental Contact and Supervision
First, Henyard argues that trial counsel was ineffective for not presenting four witnesses to show Henyard suffered from a lack of parental contact and supervision. Initially, we would note that this specific claim was not made in Henyard's postconviction motion, and therefore it is procedurally barred. However, even if we were to address the merits, we would conclude that Henyard has not demonstrated a basis for relief. These four witnesses testified at the evidentiary hearing and, in general, their testimony demonstrated that Henyard had a difficult childhood. It was not clear from the evidentiary hearing whether the names of each of these individuals was given to Henyard's defense counsel. Although there was some dispute over trial counsel's attempts to contact one of the witnesses, all four testified that no one from Henyard's defense team had talked to them at the time of Henyard's trial.
Nevertheless, even if we were to assume that Henyard's attorneys performed deficiently by failing to track down these four witnesses and present their testimony at the penalty phase, pursuant to the second prong of the Strickland test, Henyard did not suffer any prejudice because the testimony of the four witnesses was substantially similar to and cumulative with testimony that was actually presented during the penalty phase.FN8 See Gudinas v. State, 816 So.2d 1095, 1106 (Fla.2002) (finding that trial counsel was not ineffective for failing to present evidence in mitigation that was cumulative to evidence already presented in mitigation). The various witnesses at both proceedings testified to the fact that Henyard had a difficult childhood, often living in multiple households because his mother was not an adequate caregiver. Thus, even assuming that trial counsel was ineffective in failing to locate the additional witnesses that could have provided additional confirmation to the testimony that was presented at the penalty phase, Henyard has failed to meet the prejudice prong of Strickland, and hence is not entitled to relief on this subclaim. See, e.g., Sweet v. State, 810 So.2d 854, 863-64 (Fla.2002) (noting that the Court did not need to reach the issue of whether trial counsel was deficient in failing to have additional penalty phase witnesses testify, because the testimony of the witnesses at the evidentiary hearing did not establish prejudice where the majority of the testimony was cumulative with other witnesses' trial testimony).
FN8. At the evidentiary hearing, the four witnesses testified that Henyard had to live with people in the neighborhood because his mother did not take good care of him. They also testified that Henyard's mother was promiscuous and was addicted to drugs and alcohol. Although these witnesses may have provided some evidence as to Henyard's difficult childhood, this evidence would have been cumulative with the evidence that was presented during the penalty phase. At the penalty phase of the trial, Jacqueline Turner, Henyard's godmother, who also testified at the evidentiary hearing, testified in some detail about Henyard's upbringing and childhood. She testified that Henyard's mother had a chronic problem with alcohol and drug abuse during Henyard's entire life. Henyard's mother also testified that she constantly drank heavily and did other drugs while Henyard was young. She also testified that Henyard lived with his godmother and his father most of the time while he was young and she rarely stayed in contact with him when he was not staying with her. Henyard's father also testified that he had to take custody of Henyard because Henyard's mother was not taking care of him. Henyard's father testified that he could not spend much time with his son either because of his work schedule. During the penalty phase of the trial, Henyard's godsister also testified that Henyard had to stay with her mother because his mother was not taking care of him. This testimony was stressed in some detail in the defense's closing argument.
Physical Abuse
Second, Henyard alleges that trial counsel was ineffective for not presenting evidence that Henyard's stepmother, Edith Ewing, physically abused him as a youth. Initially, any evidence of physical abuse presented at the hearing was extremely limited. The allegations of any significant amount of physical abuse came during the testimony of Henyard's “sister,” Trena Lenon. FN9 All of Lenon's testimony was confined to information that Henyard told her on the phone. She admitted that she was never present for any physical abuse, and that she had no knowledge of whether what Henyard told her was true or not. Other than this, the only other testimony or evidence that might support Henyard's claim was Ewing's own testimony that she spanked Henyard on one or two occasions on the legs with a belt. However, she testified that she did so after Henyard stole a pistol and a VCR.
FN9. Although they were not biologically related, Lenon testified that she and Henyard were raised in the same household for a time and she referred to him as a brother.
The trial court rejected Henyard's claim, in part stating that “Ms. Ewing provided a loving and stable home for the defendant, and treated him as one of her own” and that counsel made a strategic decision not to introduce any evidence of the spankings. Notably, the trial court cites Ewing's own testimony from the penalty phase of trial in support of the statement that she provided a loving and stable home. However, there was other testimony from the evidentiary hearing that the relationship between Henyard and Ewing may have been strained.FN10
FN10. For example, T. Michael Johnson, Henyard's lead trial counsel, in explaining that there were strategic decisions not to have certain witnesses testify stated, “His stepmother and he did not get along. And she was of the opinion that she had been a great stepmom and he was a little thief when he came down there so we did not want that to come in.” Dr. Russell Bauers, an expert witness in the field of neuropsychology and clinical psychology, testified that Henyard felt his stepmother treated her own son preferentially and would get things for her son that would be denied to Henyard. Henyard told Dr. Bauers that he decided that if he really wanted something he would have to go out and get in on his own by stealing it.
Nevertheless, even if Henyard's relationship with his stepmother may not have been ideal, his lead counsel, T. Michael Johnson, stated that the defense team did not want to present any evidence that Henyard was abused by Ewing because that would have opened the door to other evidence that Henyard had been involved in various thefts. Moreover, Mark Nacke, another member of Henyard's trial team, specifically testified that the defense looked into Henyard's claims of Ewing's physical abuse and had asked both Henyard's stepmother and his father about these allegations. Nacke said both denied any such abuse and that ultimately the defense team decided not to call Ewing because of evidence that Henyard had stolen money from her.
Therefore, trial counsel made a tactical choice not to discuss the spankings, alleged abuse, or strained relationship with Ewing at the penalty phase in order to prevent evidence of any thefts from being introduced. Henyard's collateral counsel's claim that this evidence should have been introduced despite trial counsel's fears about negative repercussions does not amount to ineffective assistance of counsel in this case, and we find no error in the trial court's rejection of this claim. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions.”).
Mental Age
Third, Henyard contends that trial counsel was ineffective for failing to call Angellette Wiley to testify at the penalty phase of the trial because she would have given a clear account of incidences where Henyard's behavior proved he preferred to be around younger children. The trial court rejected this claim correctly noting that this evidence was presented to the jury.
Specifically, to the extent any testimony from Angellette Wiley was helpful in showing Henyard's “mental” age, it was cumulative with the statements of her mother, Jacqueline Turner, and her sister, Nyoka Wiley, both of whom testified during the penalty phase of trial.FN11 Moreover, the trial testimony of Dr. Jethro Toomer, the psychologist who testified for the defense in the penalty phase, that Henyard was functioning on the level of a thirteen-year-old would have indicated Henyard's mental age to the jury. In fact, the trial court specifically found that Henyard “functions at the emotional level of a thirteen year old and is of low intelligence” as a nonstatutory mitigating factor. See Henyard, 689 So.2d at 244. Because Wiley's evidentiary hearing testimony was cumulative with the arguably more extensive evidence and testimony that trial counsel did present at the penalty phase, we find no error in the trial court's conclusion that Henyard has not satisfied either prong of Strickland.
FN11. For example, at trial, Nyoka specifically testified that most of Henyard's friends were younger than he was and she recounted an incident where Henyard did not want to go to the ninth grade because he wanted to return to middle school to be with younger people. At the evidentiary hearing, Angellette Wiley and Jacqueline Turner testified regarding the same incident, and this was the only indication that Henyard preferred the company of younger children.
Alleged Sexual Abuse
Fourth, Henyard claims that trial counsel was ineffective because the defense conducted no investigation and presented no testimony regarding childhood sexual abuse during the penalty phase. Several witnesses at the evidentiary hearing testified that Henyard told them he was molested. However, none of these individuals said they informed defense counsel of Henyard's allegations. Additionally, there is some question about the extent to which Henyard relayed this information to his defense team. J.T. Williams, an investigator for the Public Defender's Office, testified that he asked Henyard in a questionnaire soon after the arrest if he had ever been sexually abused and Henyard wrote that he did not remember ever being sexually abused. According to lead counsel T. Michael Johnson's notes, Henyard also denied ever being sexually abused to a jail psychiatrist. However, although Johnson could not recall what effort he made in investigating the alleged sexual abuse, the notes also indicated that Henyard had told him that he had been fondled by an older man when he was eight or nine, roughly a decade before the murders.
Initially, we would note that the evidence of abuse introduced at the evidentiary hearing came from witnesses who were repeating what Henyard had told them and there was no indication that these witnesses shared this information with Henyard's trial counsel. Moreover, defense counsel was aware of at least two instances where Henyard had specifically said that he was not sexually abused. As noted above, according to Strickland, the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. 466 U.S. at 691, 104 S.Ct. 2052. Strickland further states, “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.” Id. When determining reasonableness, there is a “heavy measure of deference to counsel's judgments.” Id. Although we recognize the difficulty individuals may have in reporting such abuse, in this situation where Henyard had specifically denied on at least two occasions that he had been sexually abused, it is not clear that trial counsel's failure to investigate the conflicting evidence that Henyard may have been molested amounts to ineffective assistance of counsel.
Of course, Henyard was able to introduce evidence that at least one member of his defense team was aware that Henyard claimed he had been abused. Nevertheless, even if we were to determine that trial counsel should have conducted further investigations into the allegations of molestation, the evidence that Henyard introduced at the evidentiary hearing does not demonstrate that he was prejudiced in this case. The only information introduced at the hearing consisted of brief, second-hand accounts by witnesses of what Henyard had told them. There was no additional evidence that the alleged molestation had in fact occurred. Likewise, there was no testimony from mental health experts as to how the alleged molestation, which occurred a decade before the crime, had affected Henyard. Therefore, the trial court did not err in finding that Henyard has not demonstrated prejudice on this claim.
Use of Alcohol and Drugs
Fifth, Henyard alleges that trial counsel was ineffective for failing to investigate or present evidence to the jury regarding his “chronic use of alcohol.” The trial court in its order noted that the only germane evidence at the evidentiary hearing came from the testimony of Henyard's expert witness, Dr. Bauers. Moreover, the trial court concluded that the first prong of Strickland had not been met because Henyard had not shown that the failure to present the alleged evidence of his history of chronic alcohol and marijuana use was based on trial counsel's deficient performance.
We agree with the trial court's assessment of this claim. During the evidentiary hearing, Dr. Bauers testified that Henyard told him he started drinking beer and smoking marijuana between the ages of eight and ten, but he denied ever being seriously intoxicated or using hard drugs. He also told Dr. Bauers that his use of alcohol and marijuana decreased when he went to live with his father at the age of eleven. There was no other evidence presented during the evidentiary hearing regarding Henyard's chronic use of alcohol. Therefore, based on the fact that this issue was not addressed in any detail at the evidentiary hearing, Henyard has not demonstrated error in the trial court's conclusion that he has not shown his counsel's performance was deficient.
Suicide Attempt
Sixth, Henyard contends that trial counsel was ineffective for not presenting evidence to the jury during the penalty phase of the trial of his mental state as characterized by his suicidal ideations. Although Jacqueline Turner, Henyard's godmother, testified that Henyard told her he did not want to live after he had been arrested, the primary evidence related to suicidal tendencies that came out at the evidentiary hearing centered on an alleged suicide attempt in the Lake County Jail after Henyard had been arrested for the murders. Trial counsel was made aware of Henyard's suicide attempt by the medical department supervisor from the Lake County Jail, Dan Pincus. Pincus also advised trial counsel that Henyard was placed on suicide watch because it was possible that Henyard would try to commit suicide again. However, Pincus also informed Henyard's trial counsel that he did not believe the suicide attempt to be legitimate because Henyard was purposely keeping his eyes shut as Pincus was trying to examine him.FN12 Additionally, although Henyard was placed on suicide watch, the standard procedure when there was any threat of suicide, whether legitimate or not, was to place the prisoner on suicide watch. When trial counsel, T. Michael Johnson, asked Henyard about the suicide attempt, Henyard indicated that he wanted to go back in the medical wing of the jail.
FN12. Pincus also did not believe Henyard's suicide attempt was legitimate because the method Henyard used was a difficult and rare way to attempt suicide.
The circuit court found that Henyard's suicide attempt could have potentially been viewed as manipulative. We agree with the trial court's finding that trial counsel was not deficient in not introducing this evidence. Rather, the decision not to present evidence of this suicide attempt to the jury was a reasonable strategic decision by Henyard's counsel given what counsel knew about the attempt, and therefore Henyard's claim does not satisfy the first prong of Strickland.
Preparation of Mental Health Expert
Finally, Henyard claims trial counsel was ineffective for failing to adequately prepare one of his mental health experts, Dr. Jethro Toomer, for his testimony at the penalty phase.FN13 Henyard attempted to prove Dr. Toomer was not adequately prepared by comparing Dr. Toomer's results with the evidentiary hearing testimony of Dr. Bauers' results.
FN13. Henyard argues that Dr. Toomer was not prepared because he did not speak with Richard Henyard, Sr., Edith Ewing, or Jacqueline Turner's husband or review any of Henyard's hospital records.
We find Henyard's claim to be without merit. The trial court found nothing in Dr. Bauers' testimony that was any more favorable to Henyard than the testimony Dr. Toomer provided at trial and also rejected this claim as legally insufficient because Henyard did not specify the mitigation that trial counsel failed to call to Dr. Toomer's attention. Moreover, the trial court noted that the defense team consulted two mental health experts and that there was no evidence presented at the evidentiary hearing that Dr. Toomer was inadequately prepared.
We agree with the trial court's decision on this claim. At the evidentiary hearing, Dr. Bauers testified that he did not believe that Dr. Toomer did anything improper or that he in any way mishandled his examination or testimony. In fact, Dr. Bauers characterized Henyard's neuropsychological abilities as exhibiting some strengths and some weaknesses, but indicated that the weaknesses were relatively mild and that they were consistent with what Dr. Bauers knew about Henyard's educational, occupational, and sociocultural background. Therefore, we conclude the trial court did not err in finding that Henyard was not entitled to relief on this issue.
HABEAS PETITION
Henyard's petition for writ of habeas corpus raises three claims: (1) appellate counsel rendered ineffective assistance for not raising on direct appeal the improper ruling on trial counsel's motion to withdraw; (2) under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Florida's capital sentencing statute violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the corresponding provisions of the Florida Constitution; and (3) Henyard's right preventing cruel and unusual punishment will be violated as he may be incompetent at the time of his execution.
Ineffective Assistance of Appellate Counsel
Henyard argues that appellate counsel was ineffective for failing to raise the trial court's denial of his public defender's motion to withdraw. Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, in order to grant habeas relief based on ineffectiveness of counsel, this Court must determine:
[W]hether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069. Moreover, appellate counsel cannot be deemed ineffective for failing to pursue a meritless claim. See Johnson v. Singletary, 695 So.2d 263, 266-67 (Fla.1996).
The facts underlying this claim are as follows. Before trial, Henyard's public defender filed a motion to withdraw on the grounds that the State had listed a former client as a witness in the case. The motion stated that the public defender's office had represented the witness a number of times in the past and if Henyard was represented by the office of the public defender it would put the public defender's office in the “untenable position of having to cross-examine a former client.” Subsequently, the public defender filed an addendum to the motion to withdraw. No additional argument was offered, but the addendum listed nine additional witnesses that had previously been represented. Of these nine individuals, only one ultimately testified at trial.
At the hearing on the motion to withdraw, the State argued that the witness listed on the original motion to withdraw had not been represented recently because all of her cases had been closed. The State had not checked each of the witnesses on the addendum, but opined that based on the case numbers other witnesses' cases were also closed. After defense counsel volunteered that none of the witnesses were being represented the trial court denied the motion.
In his reply brief, Henyard argues that the governing law at the time of trial, notably section 27.53(3), Florida Statutes (1993), as interpreted by Guzman v. State, 644 So.2d 996 (Fla.1994), presumed that a conflict existed upon the filing of the motion to withdraw and that the trial court judge had no discretion other than to grant the motion. In other words, Henyard is arguing that the trial court's questioning surrounding the motion was inappropriate. In relevant part, section 27.53(3) stated:
If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to move the court to appoint other counsel. § 27.53(3), Fla. Stat. (1993). Notably, trial counsel's motion to withdraw made no reference to section 27.53(3). Moreover, the motion did not allege that the public defender had determined that Henyard and the potential witnesses had interests that were so adverse or hostile that they could not be counseled by the public defender's office, as required by Guzman. See 644 So.2d at 999. Rather, the motion stated, as to potential witness Neal, that the public defender's office would be placed “in the untenable position of having to cross-examine a former client.” The addendum in which the only witness that actually testified at trial was listed contained no reference to section 27.53(3) or additional legal argument either. Under these specific circumstances, we conclude that the motion did not satisfy the requirements of section 27.53(3), and therefore appellate counsel cannot be deemed ineffective for failing to raise this issue on appeal. See Johnson v. Singletary, 695 So.2d 263, 266-67 (Fla.1996).
Ring Claim
Next, Henyard asserts that Florida's capital sentencing scheme violates the United States and Florida Constitutions. This Court addressed similar contentions in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and, while there was no single majority view expressed, we denied relief. We have since rejected similar claims on other occasions and find that Henyard is likewise not entitled to relief on this claim. See, e.g., Rivera v. State, 859 So.2d 495 (Fla.2003); Jones v. State, 855 So.2d 611, 619 (Fla.2003); Chandler v. State, 848 So.2d 1031, 1034 n. 4 (Fla.2003).
Moreover, we note that the jury unanimously recommended the death penalty in this case, and respective to each murder the trial court found the aggravating circumstances of previous conviction of seven prior violent felonies, six of which included the contemporaneous convictions for crimes against the victims in this case, and that the commission of the murders was in the course of an enumerated felony (kidnapping). These two aggravating circumstances were charged in the indictment and found by the jury, and therefore Henyard is not entitled to relief on this claim. See Banks v. State, 842 So.2d 788, 793 (Fla.2003).
Incompetence to be Executed
Finally, Henyard argues that it would violate the Eighth Amendment's prohibition against cruel and unusual punishment to execute him since he may be incompetent at the time of execution. Because this issue is being raised to preserve federal claims, Henyard concedes that it is premature and that he cannot legally raise the issue of his competency to be executed until after a death warrant is issued. See Hall v. Moore, 792 So.2d 447, 450 (Fla.2001); Fla. R.Crim. P. 3.811(c). As no death warrant for Henyard has been signed, Henyard's claim is not yet ripe for review by this Court.
CONCLUSION
For the reasons discussed above, we affirm the lower court's denial of Henyard's motion for postconviction relief and we also deny his petition for writ of habeas corpus. It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion. CANTERO, J., concurs with an opinion, in which BELL, J., concurs.
ANSTEAD, C.J., specially concurring.
CANTERO, J., concurring.
Henyard v. McDonough, 459 F.3d 1217 (11th Cir. 2006) (Habeas).
Background: Florida state court defendant who had been convicted of multiple crimes, including murder, rape and attempted murder, and carjacking filed petition for federal habeas relief. The United States District Court for the Middle district of Florida, No. 04-00621-CV-OC-10GRJ, Wm. Terrell Hodges, J., denied petition, 2005 WL 1862694, and appeal was taken.
Holdings: The Court of Appeals held that:
PER CURIAM:
In this capital case, Richard Henyard appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We review this petition on the three grounds specified in our Certificate of Appealability: (1) whether the state trial court's denial of petitioner's motion to suppress certain statements violated his right against self-incrimination; (2) whether the trial court's denial of petitioner's request for a change of venue denied him a fair trial by an impartial jury; and (3) whether trial counsel's failure to present certain mitigating evidence during the penalty phase constituted ineffective assistance of counsel. After review and oral argument, we affirm.
I. BACKGROUND
In June 1994, a jury in the Circuit Court of Lake County, Florida, convicted Henyard of multiple crimes, including the carjacking of Dorothy Lewis and her two children, Jasmine, age 3, and Jamilya, age 7; the first degree murder of Jasmine and Jamilya Lewis; and the rape and attempted murder of Dorothy Lewis. The jury unanimously recommended, and the trial court imposed, a sentence of death.
The Florida Supreme Court denied Henyard's direct appeal and affirmed Henyard's conviction and death sentence in 1996. Henyard v. State, 689 So.2d 239 (Fla.1996). In so doing, the Florida Supreme Court summarized the trial evidence of Henyard's crimes as follows:
The record reflects that one evening in January, 1993, eighteen-year-old Richard Henyard stayed at the home of a family friend, Luther Reed. While Reed was making dinner, Henyard went into his bedroom and took a gun that belonged to Reed. Later that month, on Friday, January 29, Dikeysha Johnson, a long-time acquaintance of Henyard, saw him in Eustis, Florida. While they were talking, Henyard lifted his shirt and displayed the butt of a gun in the front of his pants. Shenise Hayes also saw Henyard that same evening. Henyard told her he was going to a night club in Orlando and to see his father in South Florida. He showed Shenise a small black gun and said that, in order to make his trip, he would steal a car, kill the owner, and put the victim in the trunk.
William Pew also saw Henyard with a gun during the last week in January and Henyard tried to persuade Pew to participate in a robbery with him. Later that day, Pew saw Henyard with Alfonza Smalls, a fourteen-year-old friend of Henyard's. Henyard again displayed the gun, telling Pew that he needed a car and that he intended to commit a robbery at either the hospital or the Winn Dixie.
Around 10 p.m. on January 30, Lynette Tschida went to the Winn Dixie store in Eustis. She saw Henyard and a younger man sitting on a bench near the entrance of the store. When she left, Henyard and his companion got up from the bench; one of them walked ahead of her and the other behind her. As she approached her car, the one ahead of her went to the end of the bumper, turned around, and stood. Ms. Tschida quickly got into the car and locked the doors. As she drove away, she saw Henyard and the younger man walking back towards the store.
At the same time, the eventual survivor and victims in this case, Ms. Lewis and her daughters, Jasmine, age 3, and Jamilya, age 7, drove to the Winn Dixie store. Ms. Lewis noticed a few people sitting on a bench near the doors as she and her daughters entered the store. When Ms. Lewis left the store, she went to her car and put her daughters in the front passenger seat. As she walked behind the car to the driver's side, Ms. Lewis noticed Alfonza Smalls coming towards her. As Smalls approached, he pulled up his shirt and revealed a gun in his waistband. Smalls ordered Ms. Lewis and her daughters into the back seat of the car, and then called to Henyard. Henyard drove the Lewis car out of town as Smalls gave him directions.
The Lewis girls were crying and upset, and Smalls repeatedly demanded that Ms. Lewis “shut the girls up.” As they continued to drive out of town, Ms. Lewis beseeched Jesus for help, to which Henyard replied, “this ain't Jesus, this is Satan.” Later, Henyard stopped the car at a deserted location and ordered Ms. Lewis out of the car. Henyard raped Ms. Lewis on the trunk of the car while her daughters remained in the back seat. Ms. Lewis attempted to reach for the gun that was lying nearby on the trunk. Smalls grabbed the gun from her and shouted, “you're not going to get the gun, bitch.” Smalls also raped Ms. Lewis on the trunk of the car. Henyard then ordered her to sit on the ground near the edge of the road. When she hesitated, Henyard pushed her to the ground and shot her in the leg. Henyard shot her at close range three more times, wounding her in the neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls rolled Ms. Lewis's unconscious body off to the side of the road, and got back into the car. The last thing Ms. Lewis remembers before losing consciousness is a gun aimed at her face. Miraculously, Ms. Lewis survived and, upon regaining consciousness a few hours later, made her way to a nearby house for help. The occupants called the police and Ms. Lewis, who was covered in blood, collapsed on the front porch and waited for the officers to arrive.
As Henyard and Smalls drove the Lewis girls away from the scene where their mother had been shot and abandoned, Jasmine and Jamilya continued to cry and plead: “I want my Mommy,” “Mommy,” “Mommy.” Shortly thereafter, Henyard stopped the car on the side of the road, got out, and lifted Jasmine out of the back seat while Jamilya got out on her own. The Lewis girls were then taken into a grassy area along the roadside where they were each killed by a single bullet fired into the head. Henyard and Smalls threw the bodies of Jasmine and Jamilya Lewis over a nearby fence into some underbrush.
The autopsies of Jasmine and Jamilya Lewis showed that they both died of gunshot wounds to the head and were shot at very close range. Powder stippling around Jasmine's left eye, the sight of her mortal wound, indicated that her eye was open when she was shot. One of the blood spots discovered on Henyard's socks matched the blood of Jasmine Lewis. “High speed” or “high velocity” blood splatters found on Henyard's jacket matched the blood of Jamilya Lewis and showed that Henyard was less than four feet from her when she was killed. Smalls' trousers had “splashed” or “dropped blood” on them consistent with dragging a body. DNA evidence was also presented at trial indicating that Henyard raped Ms. Lewis. Henyard v. State, 689 So.2d at 242-45.
A. Henyard's Confession
At 9 a.m. on January 31, 1993, the petitioner Henyard went with his “auntie” Linda Miller and her friend Annie Neal to a laundromat. The laundromat was located next door to the Winn Dixie supermarket where Henyard and Smalls, roughly eleven hours earlier, had abducted the victims. Before washing their clothes, Neal and Miller went into that Winn Dixie to buy laundry supplies.
In the Winn Dixie, police officer Adam Donaldson was asking patrons if they knew anything about the double murder and rape from the night before. Officer Donaldson recognized Neal because she previously had provided information to the police, at times for money. Officer Donaldson summoned Neal to him, told Neal about the murders and mentioned that there was a reward for any information about the crime. Officer Donaldson asked Neal “to keep her ears open.”
After returning to the laundromat, Neal and Miller spoke about the double murder investigation in the presence of Henyard. Neal mentioned some of what she had learned from Officer Donaldson, including that the mother had survived the shooting. Henyard then volunteered that he knew something about the crime. Neal responded by telling Henyard, “let's go out and investigate because they got a thousand-dollar reward.” Henyard agreed.
Neal and Henyard drove from the laundromat to Neal's house. After they dropped Neal's clothes off, Henyard asked Neal to drive him to Alfonza Smalls's house “because they found the car and they [are] dusting for fingerprints.” Neal drove Henyard to Smalls's house, where the two had a conversation that Neal did not overhear.
On the drive away from Smalls's house, Neal and Henyard passed near the crime scene and saw police officers investigating the murders. Unprompted by Neal, Henyard asked Neal to drive him to the police station. At the police station, Henyard got out of the car of his own accord. In the parking lot, Neal spotted Officer Wayne Perry, an officer she recognized. Neal then “hollered Wayne down,” telling him that “Rick [Henyard] got something to tell you.”
Henyard approached Officer Perry, telling him without prompting that he had witnessed the Lewis murders but that he “didn't do it.” Officer Perry escorted Henyard inside the police station for further questioning. Henyard was not placed under arrest or handcuffed, and he followed Officer Perry into the station on his own volition.FN1
FN1. In his brief, Henyard asserts that Neal, a police informant, “tricked” him into visiting the police station. We reject this allegation. At the suppression hearing, Neal testified that Henyard himself proposed the visit to the police and directed her to take him to the police station. Moreover, during the interrogation, Henyard himself acknowledged that he had approached the police voluntarily.
Henyard was questioned for three and a half hours by a number of law enforcement officers, including Donald Dowd and other FBI agents, Robert O'Connor of the Florida Department of Law Enforcement, and Robert Hart and Scott Barker of the Eustis Police Department. Initially, the officers considered Henyard a witness and not a suspect because he had arrived at the police station voluntarily and had claimed not to have committed the crimes. Consequently, the officers did not read Henyard his rights at this time. However, the officers' suspicions quickly grew that Henyard was responsible for the murders.
Henyard's meeting with the officers at the police station began at about 1:00 p.m. on January 31, 1993. Henyard initially told the officers that at 1:00 a.m. that morning, Emmanuel Yon and Alfonza Smalls had picked Henyard up in a blue Chrysler and the three had driven to a night club. Henyard stated that at the club, Yon and Smalls confessed to him that they “had went down to Winn Dixie and stole a car and shot the lady and her two children.” Henyard claimed that because he had no other way to get home from the club, he had remained at the club for a while with Yon and Smalls, and then drove them home in the car at around 4:30 or 5:00 a.m.
As soon as Henyard told the police that he had driven Ms. Lewis's car, one of the FBI agents suggested that Henyard could be charged as an accessory after the fact. The agent told Henyard, “you've got to stand up and do the right thing.” Henyard agreed with the officer and commented that he felt the need to talk to the police “because I know my fingerprints in that car and I'm on probation.” The agent responded that “the best thing you can do right now is-is to come clean with the whole thing.”
At the officers' prompting, Henyard retold in greater detail his fabricated story about Yon and Smalls. Apparently suspecting that Henyard was not being truthful, one of the agents interrupted him, and this exchange occurred:
FBI Agent: All right. Look, let me tell you something right now. Are you involved in a murder?
Henyard: No, I am not.
Agent: Huh? Are you sure you're not involved in a murder? Huh?
Henyard: Yes, Sir.
Agent: Absolutely certain you're not involved in a murder?
Henyard: Yes, Sir.
Agent: The first one that talks gets the best deal in every case, you know that, okay?
Because Henyard steadfastly denied involvement in the murder, the agent asked if Henyard would be willing to take a polygraph test. Henyard said that he “would not take one without the presence of my auntie.”
At the officers' prompting, Henyard continued to add details to his fabricated story, mostly concerning who Yon and Smalls were, how Henyard knew them, and where they lived and “hung out.” At about 1:30 p.m., the officers decided that Henyard would need to remain in police custody, as indicated by this colloquy:
FBI Agent: Is there any place we can put him that we can put somebody with him?
Off. Hart: Uh-huh.
Agent: Why don't we do that.
Henyard: What's that?
Agent: You're going to have to stay here for awhile, okay?
Henyard: How long is a while?
Agent: Just for a little while, because we're going to talk to you some more, okay, but we've got to talk among ourselves first and then we've got to talk to you, okay?
Henyard then inquired twice more about the possibility of leaving:
Henyard: Can I go home soon, man?
Off. Hart: Soon. You know how these federal people are, though. They're not like us local boys.
...
Henyard: Excuse me, sir. How long am I gonna have to stay here?
Agent: Huh?
Henyard: How long do I have to stay here?
Agent: Ah, just a few more minutes.
Immediately after these exchanges, the law enforcement officers confirmed that Henyard could read and write, had reached the eleventh grade in school, and was eighteen years old. The officers then read Henyard his Miranda rights. At about 1:30 p.m., Henyard affirmed that he understood his rights and that he wished to waive his rights, and he signed the rights waiver form.
Shortly after Henyard's Mirandized interrogation began, the law enforcement officials again asked Henyard if he would be willing to take a polygraph test. Henyard said that he would not do so “[w]ithout the presence of my auntie.” The officers offered to bring Henyard's auntie into the station, but told Henyard that “[s]he can't stay in here while you're taking a polygraph.” Henyard responded, “[t]hen I won't take it. I want my auntie sitting right beside me when I take it.”
The officers promised to try to find Henyard's auntie and bring her to the station. This exchange then transpired:
Agent: After you talk to [your auntie]-Don't you want to resolve this right now?
Henyard: Yes, I do.
Agent: Okay. You just hang out here. What else you going to do? You going to hang out at the Manors, you can hang out here, okay?
Henyard: Huh?
Agent: You just stay here a minute-you know, we can't force you to stay here (inaudible).
Henyard: Take me to my auntie's house.
Agent: We're going to have your aunt come down here.
Henyard: Y'all (Inaudible).
Agent: Yeah, we're going to have-
Henyard: Superbowl, man. I'm missing my game.FN2
FN2. The interrogation occurred on the day of the Super Bowl.
Agent: Well, it's 6:00. You've got a couple of [sic] three hours yet.
The officers continued the interrogation after this exchange. At around 2:30 p.m., Robert O'Connor of the Florida Department of Law Enforcement arrived and continued the interrogation. Before asking Henyard any questions, O'Connor reminded Henyard of his Miranda rights and asked him again whether he wanted to talk:
O'Connor: Okay. A little while ago, some FBI agents read you your rights. Do you remember those rights?
Henyard: Uh-huh.
O'Connor: Do you remember signing this piece of paper that says Waiver of Rights, right where it says there?
Henyard: Yes, sir.
O'Connor: Okay. How old are you, Richard?
Henyard: Eighteen.
O'Connor: Eighteen? How far did you go in school?
Henyard: Eleventh grade.
O'Connor: Can you read and write the English language?
Henyard: Yes, sir.
O'Connor: You understand what we're talking about here today?
Henyard: Yes, sir.
O'Connor: You've been talking to some other people here earlier today and they've been talking to you about a very serious situation. Do you understand what they're talking about?
Henyard: Yes, sir.
O'Connor: Okay. There's no question in your mind what we're talking about here today?
Henyard: No.
O'Connor: About a killing?
Henyard: Huh-uh.
O'Connor: Okay. As long as we all know where we're coming from before we get started here today, okay?
Henyard: (Inaudible).
O'Connor: All right. I want you to go ahead and tell me-You did say you understood all these, right?
Henyard: Uh-huh.
O'Connor: All these rights? I'm not going to read them again to you because you've already been read them, okay?
Henyard: Uh-huh.
O'Connor: They've been read to you, you understand them. They were read to you at 1:33 p.m., and it's now 2:35. They were-just about an hour ago they were read to you, okay?
Henyard: Uh-huh.
O'Connor: Do you still have-do you still want to talk to us?
Henyard: Yes, sir.
O'Connor: Okay, great ....
Following this exchange, O'Connor continued interrogating Henyard.
At some point in the ongoing interrogation, Officer Hart noticed blood on Henyard's shoes and socks. Officer Hart confronted Henyard about the blood, and Henyard immediately recounted a different story of what had transpired the previous night, saying, “I'm being straight up this time.”
Henyard began by telling the officers that he and Smalls had gone to Winn Dixie and had carjacked Dorothy Lewis at gunpoint. Henyard admitted that he and Smalls then had driven down a dirt road and parked Lewis's car at the side of the road. Henyard asserted that Smalls told Dorothy Lewis to exit the car and sit on the trunk, where Smalls raped her while her children and Henyard sat in the back seat. Henyard admitted that he then joined Smalls behind the vehicle, intending to rape Lewis as well. Henyard stated that when he started to have sex with Lewis, she grabbed at the gun, which was sitting on the trunk of the car.
Henyard claimed that while struggling with Dorothy Lewis for the gun, he inadvertently shot her in the leg. Henyard eventually admitted, however, that he shot Dorothy Lewis at least two more times in the face and left her at the side of the road. Henyard explained that he and Smalls got back in the car and drove further down the road with the Lewis children still in the back seat, crying for their mother.
Henyard insisted that Smalls then took the children out of the back seat and shot them each in the head, while Henyard remained in the car. However, Henyard eventually acknowledged that he helped Smalls carry the bodies of the two Lewis children a short ways from the road, where he and Smalls discarded the bodies behind a barbed wire fence.
Prior to trial, Henyard moved to preclude from trial all statements he made to law enforcement officers on January 31, 1993. Henyard contended that he had not knowingly and voluntarily waived his Miranda rights, and that to whatever extent he had consented to the interrogation, he subsequently revoked his consent and questioning should have ceased.
On May 11, 1994, the state trial court held a lengthy hearing concerning Henyard's motion to suppress. The trial court heard from numerous witnesses, including Donaldson, Neal, Perry, and at least four of the officers involved in questioning Henyard. In considering the motion to suppress, the trial judge also read the transcript of Henyard's interrogation multiple times and watched the videotaped portion of Henyard's statements.
The state trial court precluded all of Henyard's statements made between pages 4 and 32 of the transcript-from when the officers suggested Henyard might be guilty of accessory after the fact to when Henyard waived his rights and consented to talk. During this pre- Miranda portion of the interview, Henyard denied participating in the carjacking, rape, attempted murder and murders. The suppression issue on appeal thus involves only Henyard's contention that the trial court also should have precluded Henyard's confessions after he received the Miranda warnings and waived his Miranda rights. The state trial court concluded that these statements were admissible because Henyard made them after knowingly and voluntarily waiving his Miranda rights.
In support of its conclusion that Henyard understood his rights, the state trial court cited in particular that: (1) Henyard understands the English language well; (2) Henyard was advised of his rights multiple times, and in each case waived them, at least once in writing; (3) Henyard has an eleventh grade education; (4) Henyard's I.Q. of eighty-five is not substantially below average; and (5) Henyard had been advised of his rights on previous occasions. The state trial court also found that Henyard's statements were given voluntarily, citing in particular that: (1) the record showed no evidence that Henyard confessed under duress, threats, or false promises; (2) after consenting to be questioned, Henyard never revoked that consent; and (3) the record demonstrated Henyard's capacity for abstract reasoning, as shown by the fact that Henyard was aware that his actions carried serious consequences and that he initially lied as to what had transpired.
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C. Guilt Phase
At trial, the government presented overwhelming evidence of Henyard's guilt, including the video of Henyard's confession to carjacking the Lewises, raping and shooting Dorothy Lewis, and discarding the bodies of Jasmine and Jamilya Lewis. Among the many witnesses was Dorothy Lewis herself, who testified that Henyard carjacked her and her children, raped her on the trunk of her car while her children sat in the back seat, and shot her in the leg and face. Forensic evidence established that Henyard shot Dorothy Lewis with the gun he stole from Luther Reed and that the same gun was used in the murders of Jasmine and Jamilya Lewis. The government also introduced expert blood spatter testimony. That testimony established that the blood on Henyard's clothing indicated he was within four feet of Jasmine and Jamilya Lewis at the time they were executed, whereas the blood on Smalls's clothing was consistent not with the spatter from a gunshot wound, but rather with blood stains from moving a bloody body. After deliberation, the jury found Henyard guilty of all charges, including the capital murder of Jasmine and Jamilya Lewis.
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D. Penalty Phase
Because Henyard asserts that his counsel was ineffective during the penalty phase of his trial, we review that phase in detail.
1. Aggravating Evidence
The government put on three witnesses during the penalty phase of the trial to augment the guilt-phase evidence of aggravating circumstances justifying a sentence of death. First, Dorothy Lewis augmented her testimony by reciting a specific incident during the crime. Lewis testified that while she was in the back seat of the car with her two daughters, she began to pray audibly to Jesus. When Henyard heard her praying to Jesus, Henyard turned to her and said, “You might as well stop calling Jesus, this isn't Jesus, this is Satan.” This testimony supported the government's contention that Henyard terrorized his victims and that the crime was especially heinous, atrocious and cruel.
Carol Custar, a court clerk for the Juvenile Division of the courthouse, testified to verify the court's record of Henyard's juvenile conviction, and thus the presence of the aggravating factor of a past conviction for a violent felony. The government then introduced into evidence the authenticated record of Henyard's 1989 charge and guilty plea to robbery with a weapon. At the time of that crime, Henyard was 14 years old.
Finally, the government called Leroy Parker, the same expert in blood spatter analysis who had testified at trial. Parker was called to refute any claim by Henyard that his role in the murders of Jamilya and Jasmine Lewis was minor. Parker testified that he examined Henyard's and Smalls's clothing and found high velocity blood spatter on only Henyard's clothing. This blood evidence suggested that Henyard was within four feet of Jasmine and Jamilya Lewis at the time they were shot in the head.
2. Mitigating Evidence
Henyard called eight witnesses on his behalf during the penalty phase.
Jeff Pfister, an attorney, testified by deposition that he represented Henyard in Henyard's 1989 juvenile case for robbery with a weapon. According to Pfister, Henyard and two friends had robbed a convenience store of roughly $70. Henyard acted only as a lookout, but because one of Henyard's accomplices wielded a stick, Henyard was charged with robbery with a weapon. Pfister acknowledged that the adult equivalent charge for Henyard's conduct would have been armed robbery.
Henyard next called Michael Graves, an attorney and criminal justice expert. Graves testified about the Florida Sentencing Guidelines. Graves testified that if Henyard were sentenced to consecutive life sentences rather than death, Henyard would effectively have no hope of ever being released or paroled.
Nyoka Wiley, Henyard's Godsister, testified on his behalf. Wiley explained that she had grown up in the same house with Henyard in Eustis, Florida, until Henyard was eleven, and that both were raised by Wiley's mother and Henyard's Godmother, Jacqueline Turner. Wiley explained that Turner took good care of Henyard, took him to church, and taught him right from wrong. Wiley told the jury that Henyard always gave Turner “the utmost respect, ... just like she was his mother.” Wiley stated that she and Henyard were very close, and that she loved him despite what he had done.
Wiley noted that Henyard “never really spent time” with his biological mother, Hattie Gamble. Wiley also testified that most of Henyard's friends when he was growing up were younger than he, and that he had resisted going to ninth grade because he wanted to remain with his younger friends.
Edna McClendon, a former teacher of Henyard, was called. McClendon testified that during Henyard's ninth grade year, his school was unable to register him because no parent would come to register him. McClendon never saw Henyard's mother, and Henyard told her that his mother was dead. McClendon remarked that Henyard never had disciplinary problems in school.
The fifth mitigating witness was Henyard's biological father, Richard Henyard, Senior (“Senior”). Senior testified that he had held a steady job as a truck driver for twenty-eight consecutive years, since before Henyard was born. Senior met Hattie Gamble, Henyard's biological mother, in 1973, and lived with her only briefly in Eustis, Florida. Senior subsequently moved from Eustis to Pahokee, Florida, and his job as a truck driver required that he travel frequently. However, Senior stated that he would visit Henyard “[a]s often as I could, every chance I got.” Senior acknowledged having “lost contact” with Henyard when Henyard was seven or eight. Senior also acknowledged that before that time, Henyard spent the night at Senior's house on only one occasion, for two or three weeks.
Senior did not see Henyard again until he was eleven, when Senior tracked Henyard to Jacqueline Turner's home in Eustis. Senior stated that when he found Henyard, Henyard looked “[d]irty, nasty” and was not dressed appropriately. Senior decided to take Henyard from Turner, and brought Henyard into his home in Pahokee, Florida, with Edith Ewing, Senior's common law wife. Aside from a brief period when Henyard returned to live with Turner, Henyard lived with Senior and Ewing until he was seventeen. However, Senior's heavy workload made it difficult for him to have a one-on-one relationship with his son. For instance, Senior was never involved in Henyard's education in any way, never met Henyard's friends or teachers, and never took him to ball games or other social activities. Senior had no history of drug use or alcohol abuse.
Jacqueline Turner, Henyard's Godmother, was Henyard's sixth witness. Turner testified that she had been friends with Henyard's biological mother, Hattie Gamble, since both were fourteen. Turner related that Gamble had drug and alcohol problems before she became pregnant with Henyard, but that Gamble did not use substances during the pregnancy.FN5 Turner also stated that Gamble had a difficult time giving birth to Henyard. After Henyard's birth, Gamble began drinking heavily again, to the point that she was drunk every day. When Turner found Gamble naked, drunk, and having sex with multiple men, she decided to take Henyard from Gamble. Henyard was ten months old at the time. Turner cared for him exclusively until he was three. Between the ages of three and eleven, Henyard continued to stay with Turner but returned periodically to stay with his mother.
FN5. As Dr. Toomer later testified, there is no evidence that Henyard suffered from fetal alcohol syndrome. However, Gamble herself acknowledged abusing substances during her pregnancy.
Turner testified that other children would ridicule Henyard, teasing that his mother was a lesbian. Even so, Henyard often wanted to be with his mother, in part because Turner disciplined him while his mother did not. When Henyard stayed with Turner, Turner imposed rules on him, took him to church, and treated him like one of her own. Turner acknowledged that by the time Henyard turned eleven, he was becoming too much for her to control, he stayed out late at night, and he frequently skipped school.
Henyard's seventh mitigation witness was Dr. Jethro Toomer, an expert in psychology and forensic psychology. Dr. Toomer met with Henyard in prison on two occasions, in February 1993 and October 1993. Dr. Toomer administered several machine-scored psychological tests and other, subjective psychological tests to assess Henyard's intelligence and personality. Dr. Toomer also interviewed Jacqueline Turner and Hattie Gamble by phone, and reviewed the transcripts of Henyard's confessions to police and other records from the case. FN6
FN6. Dr. Toomer never spoke with Henyard's father because Dr. Toomer “was not aware that he was involved in his son's life.”
Based on the series of tests he administered, Dr. Toomer testified that Henyard had an I.Q. of 85, placing him in the twenty-fifth percentile, a level which Dr. Toomer described as “low average.”FN7 Dr. Toomer assessed that Henyard had certain deficiencies in visual motor coordination and perception and showed patterns of insecurity and impulsivity. According to the test results, Henyard also placed in approximately the ninetieth percentile on scales measuring his likelihood for susceptibility to substance abuse and thought disturbance. Henyard showed extremely low self-esteem, and the tests indicated to Dr. Toomer that Henyard had impaired emotional responses and a chronic inability to handle stress and responsibility. Dr. Toomer also noted that Henyard had faced learning disabilities and irregular attendance at school, and eventually had dropped out in the ninth or tenth grade. Dr. Toomer testified that Henyard had “blunted affect,” meaning a low level of emotionality with a mood that “tends to be very flat and very sober.”
FN7. On cross-examination, Dr. Toomer acknowledged that Henyard had taken a scholastic achievement test in school and obtained a “skill achieved” rating in all but three of a number of areas of reading and writing proficiency. Dr. Toomer admitted that these test results were “incompatible” with his assessment of Henyard's I.Q., but asserted that the school test was “not really that sophisticated” and asserted that these school results should be discounted.
Dr. Toomer also acknowledged, however, that Henyard did not show psychosis and that “there was nothing to indicate any severe psychopathology in terms of [Henyard's] functioning.” Dr. Toomer stated that he found no evidence that Henyard had suffered from fetal alcohol syndrome. Dr. Toomer also verified on cross-examination that while he believed Henyard had an impaired capacity for appreciating the criminality of his conduct, that impairment was not substantial and did not rise to the level of being a statutory mitigating factor.
Based on the test results and his observations, Dr. Toomer gave his opinion that Henyard was functioning at the intellectual, emotional and mental level of a thirteen-year-old. Dr. Toomer attributed many of Henyard's deficiencies to the fact that, in Dr. Toomer's estimation, Henyard was raised “with an absence of nurturing.” Dr. Toomer particularly emphasized that Henyard had moved from a stable to a non-stable environment on multiple occasions, and that his father had been mostly absent until he turned eleven. Dr. Toomer concluded that Henyard was unable to foresee consequences with the same capacity as a normal eighteen- or nineteen-year-old, and that he was under “some emotional disturbance” at the time of the murders. However, Dr. Toomer acknowledged on cross-examination that at the time of the crimes Henyard concretely knew that it is wrong to kill someone.
Finally, Henyard called his biological mother, Hattie Mae Gamble, to testify. Gamble testified that she drank constantly at the time she was pregnant with Henyard and continued to drink heavily after he was born. Gamble also began abusing cocaine and marijuana by the time Henyard was eight. Gamble recounted that due to her substance abuse, she often lost track of Henyard even when he was an infant, when he would sometimes leave the house without her noticing. Gamble acknowledged that she had been arrested ten or eleven times for shoplifting. Gamble also testified that before Henyard moved to live with his father, Senior came around only once or twice a year, and she had no contact with him. Finally, Gamble emphasized that Henyard lived for the majority of his early childhood with Turner and that Turner took good care of him.
3. Government's Rebuttal
The government called three witnesses to rebut Henyard's mitigating evidence. First, the government recalled Dr. Toomer. The government highlighted a number of Henyard's answers on the tests Dr. Toomer had administered. Dr. Toomer acknowledged that in his test responses, Henyard had stated that both his father and mother were good people and that he loved them both; that he had not gotten “a raw deal in life”; and that his life was “as pleasant as that of most people I know.” Dr. Toomer acknowledged a series of other answers by Henyard that indicated his feelings that his family was neither unloving nor unsupportive.FN8 Dr. Toomer also acknowledged that the tests he administered were machine-scored and that the test designers themselves cautioned against drawing any firm conclusions based upon the test results.
FN8. In particular, Henyard answered (1) “false” to the statement, “There is very little love and companionship in my family as compared to other homes”; (2) “true” to the statement, “When I feel really bad, I know I can count on my family to help”; (3) “true” to the statement, “The members of my family and my relatives get along well”; (4) “false” to the statement, “I hate my whole family”; and (5) “false” to the statement, “I have little to do with my relatives now.”
The government next recalled Jacqueline Turner. Turner confirmed that when Henyard was young, he frequently had moved between her house and Gamble's, which were within walking distance. Turner testified that for the majority of the time, Henyard lived with her, and that when Henyard stayed with his biological mother, it was because Henyard wanted to do so.
Finally, the government called Edith Ewing, Senior's common law wife. Ewing testified that Henyard had lived with her since he was eleven. Ewing asserted that she loved Henyard and had treated him as one of her own children. Ewing stated that she provided Henyard with a loving home with rules and guidance, but that Henyard did not always obey her rules and instructions. Ewing acknowledged that Henyard's father was infrequently home because of his long work hours.
4. Closing Arguments
At closing, the government began by disputing the presence of significant mitigating factors. The government acknowledged that Henyard was only eighteen at the time of the crime. However, the government argued that: (1) Henyard's efforts to lie to the police and his demeanor during his recorded statement indicated his understanding of the wrongfulness of his actions as well as his relative intelligence; (2) although Henyard's biological parents were not always present, Henyard was raised in loving, relatively stable environments by Turner and Ewing; (3) there was no evidence that Henyard was under the substantial influence of drugs or alcohol at the time of the crime; (4) the evidence overwhelmingly pointed to Henyard as the planner and leader of the crimes and the shooter of the two children, Jamilya and Jasmine; and (5) Dr. Toomer's conclusions that Henyard was emotionally disturbed and incapable of abstract reasoning were not credible in light of his reliance on machine-scored tests and his dismissal of other trial evidence of Henyard's capacities.
The government then argued for four aggravating factors: (1) Henyard had committed the crimes in part for pecuniary gain, i.e. to steal Ms. Lewis's car; (2) Henyard killed the two children, Jamilya and Jasmine, to avoid arrest and eliminate witnesses to his other crimes that night; (3) Henyard had multiple prior felony convictions, in particular his 1989 robbery conviction and the additional counts charged with the Lewis murders; and (4) Henyard's crime terrorized the Lewises and was particularly heinous, atrocious or cruel.
In closing, Henyard first addressed the aggravating factors mentioned by the government, arguing: (1) there was no evidence that the capital offenses-the murders of Jamilya and Jasmine-were committed for pecuniary gain; (2) there was no evidence that Henyard murdered Jamilya and Jasmine to silence witnesses; (3) Henyard's only true “prior” conviction was for his minor role in a minor robbery; and (4) although all murders are heinous, Jamilya and Jasmine were killed instantly and without special pain.
Henyard then focused on mitigating factors, including: (1) Henyard was eighteen at the time of the crime; (2) Henyard was mentally and emotionally young even for that age, as evidenced by his preference for younger friends and for being held back in school; (3) Henyard's judgment at the time of the crime was impaired by drugs and/or alcohol; (4) Henyard lacked a nurturing childhood because his mother was a substance abuser and his father was mostly absent from his life; (5) Henyard behaved well in school; (6) Henyard would be sentenced to six life sentences if a death penalty were not imposed; and (7) the evidence indicated that Smalls was the one who shot Jamilya and Jasmine. Henyard suggested that the jury recommend sentences of life imprisonment.
5. Sentence
After deliberation, the jury unanimously recommended that Henyard be sentenced to death. The state trial court held a sentencing hearing on August 19, 1994, and announced its factual and legal findings.
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II. POST-CONVICTION HISTORY
A. Direct Appeal
Henyard timely appealed his conviction and death sentence, raising eleven assignments of error. In relevant part, Henyard argued that (1) his statements to the police were improperly admitted; and (2) the trial court erred by denying his motion to change venue. On December 19, 1996, the Supreme Court of Florida denied Henyard's appeal. Henyard v. State, 689 So.2d 239 (Fla.1996).
After reviewing Henyard's confession, the Florida Supreme Court found that during the duration of his police interrogation, Henyard had not made even an equivocal request to cease questioning. Id. at 247. Even assuming arguendo that Henyard had requested to cease questioning, the Florida Supreme Court held that the admission of Henyard's statements represented harmless error in light of the overwhelming evidence against him. Id. at 248.
With respect to Henyard's venue argument, the Florida Supreme Court reviewed the trial record and concluded that “[d]uring the actual voir dire here, each prospective juror was questioned thoroughly and individually about his or her exposure to the pretrial publicity surrounding the case.” Id. at 245-46. The Florida Supreme Court emphasized that “[w]hile the jurors had all read or heard something about the case, each stated that he or she had not formed an opinion and would consider only the evidence presented during the trial in making a decision.” Id. at 246. The Florida Supreme Court concluded that “the record demonstrates that the members of Henyard's venire did not possess such prejudice or extensive knowledge of the case as to require a change of venue,” and that therefore “the trial court did not abuse its discretion in denying Henyard's motions for a change of venue.” Id.
B. State 3.850 Proceedings
Pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, on August 5, 1998, Henyard filed in the Circuit Court of Lake County, Florida, a motion to vacate his conviction and sentence (the “3.850 motion”). Henyard's 3.850 motion raised nine claims, including a claim of ineffective assistance of counsel during the penalty phase of his trial. On October 14, 1999, the state 3.850 court held an evidentiary hearing.
1. Henyard's 3.850 Witnesses
Henyard called seven witnesses in support of his claim of ineffective assistance of counsel. Henyard's first two witnesses, Rosa Lee Adams and Lula Bell Davis, were neighbors of Henyard's who had observed Henyard growing up. Adams and Davis testified that Henyard's mother abused drugs and alcohol, was promiscuous and was minimally involved in caring for Henyard. Both witnesses averred that Henyard effectively was raised by many people in the neighborhood and often went from home to home. On cross-examination, Adams acknowledged that on the day of the murders, Henyard had a gun in his possession while at Adams's house. Neither witness had been contacted by Henyard's trial counsel prior to his sentencing.
Henyard next called Jacqueline Turner. Turner's testimony was entirely consistent with her testimony during sentencing at trial, but she added certain details to which she had not testified at trial. These details included: (1) Gamble was promiscuous; (2) Henyard had tried to set fire to Turner's house on two occasions when he was seven; (3) while Henyard lived with his father, his father would periodically put him out of the house; (4) Henyard threw “a temper tantrum” when Turner tried to register him for the ninth grade because he wanted to stay in middle school; (5) Henyard frequently skipped school, despite Turner's efforts to keep him there; was difficult to control; stole from Turner; and committed other thefts and crimes; and (6) when Turner visited Henyard in jail prior to trial, Henyard broke down crying and related that as a child a man named Bruce Kyle had raped him. Turner admitted that the first time Henyard told her that Kyle raped him was while he was in jail awaiting trial. Turner testified that she told Henyard's counsel, Michael Johnson, about Henyard's report of sexual abuse.
Henyard next called Angelette Wiley, Turner's daughter, who knew Henyard “all his life” and considered him like a younger brother. Wiley testified that: (1) Henyard's mother had frequent affairs with both men and women when Henyard was growing up; (2) neighborhood children would pick on Henyard and beat him up because of his mother's behavior; (3) Henyard was in the choir at church at some point as a child; (4) Turner took good care of Henyard and treated him as one of her own; and (5) Henyard had told Wiley that he was molested and raped by Bruce Kyle when he was about seven.
Wiley stated that Henyard's trial counsel never talked to her and she never conveyed any information to Henyard's lawyers prior to trial. Wiley was inconsistent as to whether Henyard's trial counsel tried to contact her. At first, Wiley acknowledged that before the trial, Henyard's counsel had left messages for her with Turner and that she had made little effort to return the messages. Wiley tried to retract this testimony later, stating that she had never been aware of any efforts by Henyard's counsel to contact her.
Henyard's fifth witness was Dr. Russell Bowers, an expert in neuropsychology and clinical psychology. Dr. Bowers had conducted a neuropsychological evaluation and clinical interview of Henyard five years after the trial. Dr. Bowers related what Henyard had told him about his upbringing, including his mother's problems and his moving between households. Dr. Bowers also mentioned that Henyard had asserted that (1) Henyard was hyperactive and was placed in emotionally handicapped classes in the first grade; (2) Henyard never got along with Ewing, his father's common law wife, and began stealing because she treated him poorly; and (3) he began using marijuana and alcohol when he was eleven, although he was never seriously intoxicated. Dr. Bowers gave no indication that Henyard had reported any history of sexual abuse.
Dr. Bowers also administered psychological tests. The test results and Dr. Bowers's interaction with Henyard led Dr. Bowers to conclude that (1) Henyard's intelligence was “low average to average”; (2) Henyard showed mild slowing in one test of attention, but also performed normally on other tests, including tests for abstract thinking and motor skills; and (3) Henyard showed no evidence of excessive cognitive impairment that might be indicative of fetal alcohol syndrome, and the tests did not support such a diagnosis.
Henyard's sixth witness was Katherine Ann McCoy, who was roughly Henyard's age and grew up across the street from Henyard's mother's home. McCoy testified that her mother would not allow her to go over to Henyard's mother's place because Henyard's mother dated women. McCoy acknowledged that she did not know what Henyard's home life had been like and denied that Henyard suffered teasing or harassment at the hands of other neighborhood children.
Finally, Henyard called Trena Lenon, who considered herself Henyard's sister. Lenon moved into Jacquelyn Turner's home in Eustis, Florida, when she and Henyard were about fourteen years old. Lenon stated that Henyard told her that when Henyard stayed with his father and Ewing in Pahokee, Florida, Ewing and Henyard did not get along, and that Ewing beat him and cussed at him. Lenon, however, never observed those interactions directly. Lenon also testified that while Henyard was in jail awaiting trial, Henyard had told her during a phone conversation that he had been sexually abused as a child by Bruce Kyle.
Lenon stated that Henyard's trial counsel had never spoken to her before he was tried and sentenced. However, Lenon also stated that she was living in Saint Petersburg at a women's residence for about four months at the time that Henyard was tried and sentenced.
2. Government's 3.850 Witnesses
The government called six witnesses. The government's first witnesses were Henyard's father, Senior, and Senior's common law wife, Ewing. Senior testified that to his knowledge, Ewing had never spanked, beaten, or thrown anything at Henyard. Ewing testified that she had spanked Henyard once or twice with a belt, but otherwise had not beaten him or thrown anything at him. Ewing explained that she had punished Henyard because he had stolen from her multiple times, including stealing a VCR and a gun. Ewing testified that she loved Henyard.
The government's next three witnesses were all involved in Henyard's defense at trial: Henyard's lead trial counsel, Thomas Michael Johnson, co-counsel Mark Nacke,FN10 and investigator J.T. Williams. Johnson testified that he had been a public defender for nearly his entire career between 1981 and 1995, at which point Johnson became a circuit judge. At the time of Henyard's trial, Johnson had previously tried five capital cases and perhaps 60 to 80 major felony cases.
FN10. Bill Stone also acted as co-counsel and participated in the collection of mitigation evidence. Stone did not testify at the hearing.
Johnson and the other witnesses recounted the investigation they did on Henyard's case. Johnson and the defense team met with Henyard in jail on many occasions, asking him to identify any individuals who were significant or even insignificant in his life in order to develop a mitigation case. Johnson met with Henyard's mother and Turner on many occasions, as well as with numerous family members. Johnson went to Pahokee, met with Ewing and Henyard's father, and met with all of Henyard's school teachers. Johnson retained two psychiatrists, Dr. ToomerFN11 and Dr. Elizabeth McMann,FN12 to evaluate Henyard. Johnson reviewed Henyard's school and medical records.
FN11. Johnson recounted that he prepared Dr. Toomer by providing him with depositions of Gamble and Turner, with Henyard's recorded interrogation with police, and with other trial documents. He also consulted Dr. Toomer on a number of occasions.
FN12. Dr. McMann did not testify at sentencing. Johnson testified that Dr. McMann herself stated that it would not be wise to call her as a witness because she saw insufficient evidence to support any of the three statutory mitigating circumstances that are psychological in nature.
Other investigators assisted Johnson in meeting yet more potential witnesses. Johnson's notes, for example, indicate that Steve Bevill (an investigator who did not testify at the hearing) visited Pahokee, Florida, and met with Ewing, with Henyard's grandmother, with Ewing's next-door neighbor, and with multiple officials at Henyard's school, including staff in the cafeteria. Investigator Michael Upton went to Eustis High School and the school board office to speak with witnesses and obtain records. Johnson stated that it was difficult to track down many people, but that he and the defense team made a concerted, good faith effort to find everyone Henyard and others mentioned as possibly possessing mitigating evidence.
Johnson explained one of his tactical decisions during the penalty phase. Johnson explained that he decided not to introduce evidence that Henyard and Ewing did not get along, because Ewing regarded Henyard as a “little thief” and Johnson did not want to open the door to introduction of that evidence.
Johnson did not remember Henyard telling him about being sexually abused. Johnson acknowledged that in his trial notes, Johnson had recorded that Henyard had told the defense that Bruce Kyle sexually abused him when he was eight or nine. However, Johnson also affirmed that his case file included the notes of a jailhouse doctor who evaluated Henyard prior to trial, and that these notes stated that Henyard had told the doctor he had no history of sexual abuse. Co-counsel Nacke and investigator Williams also could not remember any claim by Henyard that he had been sexually abused, and their notes showed no such statements by Henyard. In fact, Williams's notes indicated that, prior to trial, he had asked Henyard whether he had suffered sexual abuse, and Henyard had stated that he had not been sexually abused. Because none of Henyard's team could recall ever being advised about the sexual abuse, they could not state why they did not use that evidence during the penalty phase.
Johnson did not recall whether Henyard had been placed on suicide watch when first jailed. Johnson also stated that he had never seen any reason to investigate further the possibility that Henyard suffered from fetal alcohol syndrome.FN13
FN13. Defense counsel did, however, contact Henyard's birth hospital and obtain his birth records.
Finally, the government called Dan Pincus, a registered nurse. In 1994, Pincus was the medical department supervisor at the Lake County jail, where Henyard was in custody awaiting trial. Pincus testified that he had treated Henyard at the time of his purported suicide attempt by tying the cord of his laundry bag around his neck. Pincus testified that he did not believe it was a legitimate suicide attempt because the knot was not tight and because Henyard pretended to be unconscious when he clearly was not.
3. 3.850 Court's Ruling
On April 11, 2002, the state 3.850 court denied Henyard's motion for post-conviction relief. The 3.850 court found, in relevant part, that: (1) although evidence existed that Ewing had spanked Henyard, Ewing provided him a loving and stable home, and trial counsel wisely chose not to introduce this evidence because it would have allowed the jury to hear about Henyard's frequent acts of theft; (2) the evidence that neighborhood children teased Henyard and beat him was not proof of ineffective assistance of counsel because the jury was presented with such evidence at sentencing; (3) there was no strong evidence that Henyard abused drugs or alcohol, and trial counsel made a reasonable decision not to introduce such evidence at sentencing; (4) counsel made a wise choice not to introduce evidence of Henyard's suicide attempt in jail because it appeared insincere and manipulative; (5) no evidence supported Henyard's claim that his counsel inadequately prepared Dr. Toomer to testify; and (6) no evidence supported Henyard's claim that he suffered from fetal alcohol syndrome, so his counsel's decision not to introduce such evidence was not ineffective assistance of counsel.
With respect to Henyard's argument that his trial counsel should have investigated whether he was sexually abused and should have introduced evidence of the abuse at sentencing, the 3.850 court found that (1) the evidence was inconsistent with regard to whether Henyard was sexually abused and particularly with regard to whether trial counsel had reason to know that Henyard had told Turner, Lenon and Wiley that he had been sexually abused, and thus his trial counsel had not performed unreasonably; and (2) even had Henyard's counsel introduced the hearsay evidence that Henyard had suffered sexual abuse, that evidence would not have affected the jury's sentencing recommendation.
4. Florida Supreme Court 3.850 Ruling
Henyard timely appealed the trial court's denial of his 3.850 motion. On May 27, 2004, the Florida Supreme Court affirmed the denial of post-conviction relief. Henyard v. State, 883 So.2d 753 (Fla.2004). With respect to Henyard's claim of ineffective assistance of counsel during the penalty phase, Henyard argued that trial counsel was deficient for failing to present evidence of (1) his difficult childhood, as described by Adams, Davis, Wiley and Turner; (2) his physical abuse by Ewing; (3) his preference for younger friends and the harassment he suffered at the hands of other children; (4) his sexual abuse by Kyle; (5) his drug and alcohol use; and (6) his suicide attempt in jail.
With respect to the first claim, the Florida Supreme Court found that while Henyard presented four new witnesses to testify to Henyard's difficult childhood, their testimony “was substantially similar to and cumulative with testimony that was actually presented during the penalty phase.” Id. at 759.
Regarding the alleged abuse by Ewing, the Florida Supreme Court found little evidence to suggest that Henyard suffered continual abuse by Ewing. Id. at 760-61. In any event, the Florida Supreme Court concluded that Henyard's counsel made a reasonable strategic choice not to introduce this evidence in order to prevent evidence of any thefts from being introduced. Id. at 761.
The Florida Supreme Court found Wiley's testimony regarding Henyard's mental age and his preference for younger friends cumulative with the more extensive similar testimony presented at sentencing by Turner, Nyoka Wiley, and Dr. Toomer. Id.
With respect to sexual abuse, the Florida Supreme Court initially observed that all evidence that Henyard was sexually abused came from hearsay witnesses repeating what Henyard had told them. Id. at 762. The Florida Supreme Court also noted that prior to trial, Henyard twice had denied experiencing sexual abuse, first when he was asked by Williams and later when he was interviewed by the jailhouse doctor. Id. Under these circumstances, the Florida Supreme Court found that his trial counsel had not clearly performed deficiently by failing to introduce this evidence at sentencing. Id. Alternatively, the Florida Supreme Court found that second-hand evidence of sexual abuse a decade prior to the crimes would not have affected the jury's sentencing recommendation. Id.
The Florida Supreme Court rejected Henyard's argument that his trial counsel should have introduced evidence of his chronic use of alcohol, finding no evidence to support the allegation that Henyard did, in fact, abuse alcohol or drugs. Id. at 762-63.
Finally, the Florida Supreme Court found that trial counsel had not performed deficiently by choosing not to introduce evidence of Henyard's suicide attempt in light of the fact that the attempt might have been viewed as manipulative. Id. at 763.
C. Federal Habeas Petition
Henyard timely filed a petition for a writ of habeas corpus in the District Court for the Middle District of Florida. See 28 U.S.C. § 2254. On August 1, 2005, the district court denied Henyard's § 2254 petition. Henyard timely appealed to this Court, and we granted a Certificate of Appealability on the three issues identified above.
* * *
In sum, none of the evidence presented in Henyard's 3.850 hearing suggested the presence of any additional statutory mitigating factors or the absence of any of the aggravating factors found at trial. None of Henyard's evidence leads us to doubt that his trial counsel diligently and strenuously worked to develop as complete a mitigation case as possible. Nor does any of the new testimony counter the overwhelming evidence of the brutal, gruesome, and aggravated nature of Henyard's crimes, in which Henyard carjacked and kidnaped a mother and her two young children, raped the mother in her children's presence, shot her four times, and then executed her children from close range.
VII. CONCLUSION
For the foregoing reasons, the Florida Supreme Court's denial of habeas relief was neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the district court's denial of Henyard's § 2254 petition. AFFIRMED.
DC # 225727
Sentencing Judge: The Honorable Mark J. Hill
Trial Attorneys: T. Michael Johnson & Mark Nacke – Assistant Public Defenders
Attorney, Direct Appeal: Michael S. Becker – Assistant Public Defender
Attorney, Collateral Appeals: Mark Gruber & Maria Perinetti – CCRC-M
Date of Sentence: 08/19/94
Alfonza Smalls was sentenced to eight consecutive life sentences for the abduction, rape, and murders that took place on January 30, 1993.
FSC #84,314; 689 So. 2d 239
12/19/96 FSC affirmed the convictions of First-Degree Murder and the sentences of Death.
03/11/97 Rehearing denied.
04/10/97 Mandate issued.
U.S. Supreme Court – Petition for Writ of Certiorari
USSC #96-9391
522 U.S. 846
06/09/97 Petition filed.
10/06/97 USSC denied petition.
FSC #94,755; 733 So. 2d 515
01/25/99 Appeal filed.
06/07/99 Appeal dismissed.
FSC #02-1105; 883 So. 2d 753
05/10/02 Appeal filed.
05/27/04 FSC affirmed the denial of the 3.850 Motion.
09/22/04 Rehearing denied.
10/22/04 Mandate issued.
FSC #02-2538; 883 So. 2d 753
12/05/02 Petition filed.
05/27/04 FSC denied Petition.
09/22/04 Rehearing denied.
10/22/04 Mandate issued.
12/20/04 Petition filed.
08/02/05 USDC denied Petition.
CC #93-159
04/14/05 Motion filed.
05/05/05 Motion amended.
06/21/05 CC denied Motion.
10/18/07 Successive Motion filed.
01/10/08 Motion denied.
FSC# 05-1337; 929 So. 2d 1052
07/27/05 Appeal filed.
04/11/06 FSC affirmed denial of motion.
USCA# 05-15110; 459 F. 3d 1217
09/02/05 Appeal filed.
09/21/07 USCA affirmed denial of petition.
USSC# 06-8706; 127 S. Ct. 1818
01/02/07 Petition filed.
03/19/07 Petition denied.
FSC# 08-222
FSC# 08-1544
FSC# 08-1653
USSC# 08-6392
USDC# 08-903
USCA# 08-15396
The case progression appears to be within acceptable time parameters.
(1) petitioner did not receive ineffective assistance of trial counsel;
(2) public defender's motion to withdraw did not satisfy statutory requirements and was properly denied; and
(3) imposition of death penalty did not implicate petitioner's constitutional right to due process. Denial of post-conviction relief affirmed; habeas petition denied. Anstead, C.J., concurred specially with opinion.
3.850 APPEAL
I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
I concur in the majority opinion. Moreover, regarding Henyard's claim that Florida's capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, 29 Fla. L. Weekly S191, S197-203 (Fla. May 6, 2004), that Ring does not apply retroactively. BELL, J., concurs.
(1) Florida Supreme Court's determination, on direct appeal, as to voluntariness of 18-year-old capital murder defendant's confession was neither “contrary to,” nor “an unreasonable application” of, United States Supreme Court precedent;
(2) state court's determination, that pretrial publicity surrounding capital murder defendant's crime was not such as to require change of venue in order to protect defendant's right to trial by panel of impartial jurors, was neither “contrary to,” nor “an unreasonable application” of, United States Supreme Court precedent;
(3) defense counsel's decision, at penalty phase of capital murder case, not to introduce evidence of corporal punishment that he had received at hands of his father's common law wife was reasonable strategic decision, which did not rise to level of deficient performance; and
(4) state court's determination, in upholding trial court's denial of capital murder defendant's motion for postconviction relief, that defense counsel had not performed deficiently at penalty phase of case in failing to present evidence of possible sexual abuse of defendant as child, was neither “contrary to,” nor “an unreasonable application” of, United States Supreme Court precedent. Affirmed.