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Supreme Court of Florida
STATE OF FLORIDA,
[October 31, 2013]
This case is before the Court on appeal from an order denying a successive
motion to vacate a judgment of conviction of first-degree murder and a sentence of
death under Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconviction relief from a capital conviction for which a sentence of death was
imposed, this Court has jurisdiction under article V, section 3(b)(1), Florida
Constitution. For the reasons set forth below, we affirm.
Robert Henry was convicted of the November 1987 first-degree murders of
Phyllis Harris and Janet Thermidor at a fabric store in Deerfield Beach, Florida.
We affirmed the conviction and sentence on direct appeal in Henry v. State, 613
So. 2d 429 (Fla. 1992) (on remand from the United States Supreme Court). 1 The
pertinent facts are as follows:
Around 9:30 p.m. on November 1, 1987 fire fighters and police
officers responded to a fire at a fabric store in Deerfield Beach. Inside
they found two of the store’s employees, Phyllis Harris, tied up in the
men’s restroom, and Janet Thermidor, on the floor of the women’s
restroom. Each had been hit in the head with a hammer and set on
fire. Harris was dead when found. Although suffering from a head
wound and burns over more than ninety percent of her body,
Thermidor was conscious. After being taken to a local hospital, she
told a police officer that Henry, the store’s maintenance man, had
entered the office, hit her in the head, and stolen the store’s money.
Henry then left the office, but returned, threw a liquid on her, and set
her on fire. Thermidor said she ran to the restroom in an effort to
extinguish the fire. She died the following morning.
Based on Thermidor’s statement, the police began looking for
Henry and found him shortly before 7:00 a.m. on November 3, at
which time they arrested him. Henry initially claimed that three
unknown men robbed the store and abducted him, but later made
statements incriminating himself. A grand jury indicted Henry for
two counts of first-degree murder, armed robbery, and arson. The
jury convicted him as charged and recommended the death sentence
for each of the murders, which the trial court imposed.
1. The original direct appeal opinion affirming Henry’s convictions and
sentences, Henry v. State, 586 So. 2d 1033 (Fla. 1991), was vacated by the United
States Supreme Court in Henry v. Florida, 505 U.S. 1216 (1992), and remanded for
reconsideration in light of Espinosa v. Florida, 505 U.S. 1079 (1992), and Sochor
v. Florida, 504 U.S. 527 (1992). In those cases, the Supreme Court held that a
former standard jury instruction on the heinous, atrocious, or cruel aggravating
circumstance was inadequate. On remand, this Court noted that in Henry’s trial, a
special expanded instruction had been given which was not unconstitutionally
vague. Thus, the death sentences were reaffirmed. See Henry v. State, 613 So. 2d
429, 434 (Fla. 1992), cert. denied, Henry v. Florida, 510 U.S. 1048 (1994).
After being arrested, Henry made a total of six oral and taped
statements. In the first two he claimed that unknown robbers forced
their way into the store and denied any personal involvement. In the
other statements he confessed that he acted alone.
Henry, 613 So. 2d at 430-31. Even though Henry had been examined for
competency by Dr. Trudy Garfield-Block and found to be competent to stand trial,
Henry’s counsel moved the court to appoint two additional experts, Drs.
Livingston and Spencer, to examine Henry. Both doctors found him to be
competent to stand trial. After the guilt phase of trial, Henry waived presentation
of all mitigation in the penalty phase. He directed his counsel not to subpoena
family members, and did not want a psychiatrist to testify. Id. at 433. He also
denied to his counsel and to the doctors who examined him that he had any
substance abuse problems or addiction, which his trial counsel believed could have
been mitigating. Based on Henry’s demand that no mitigation be presented, no
evidence was submitted during the penalty phase.
The jury recommended death for the murder of victim Harris by a vote of
eight to four, and recommended death for the murder of victim Thermidor by a
vote of nine to three. The trial court imposed the two death sentences after finding
as aggravating factors that the murders were committed during the commission of
robbery and arson; to avoid or prevent arrest; for pecuniary gain; in a cold,
calculated, and cruel manner; and were heinous, atrocious, or cruel. Id. at 432.
The mitigators found by the trial court were that Henry had no significant prior
criminal history and that he served in the United States Marine Corps. Id. Henry
was also sentenced to two concurrent life sentences for armed robbery and arson.
On direct appeal, Henry argued that he should not have been allowed to
waive mitigation. 2 Id. at 433. We found no error and explained, “The [trial] court
questioned Henry about waiving the presentation of mitigating evidence. Henry
persisted in his desire that no such evidence be introduced and made a formal
sworn waiver of his right to present evidence at the penalty proceeding.” Id. We
held that “the instant trial court carefully and conscientiously considered this case,
as evidenced by the finding of two mitigators in spite of Henry’s refusal to allow
presentation of more testimony. Thus, we see no error arising from Henry’s
knowing and voluntary waiver . . . .” Id.
2. The issues raised on direct appeal also included admission of the victim’s
dying declaration, the voluntary nature of Henry’s statements to police, admission
of photographs, alleged discovery violations, denial of certain jury instructions,
whether the aggravators were proven, whether the trial court used an improper
standard of proof for the mitigators, sufficiency of the evidence to prove
aggravators, challenges to the constitutionality of the death penalty statutes, and
propriety of consideration of presentence investigation reports. All these claims
were found to be without merit. We also found certain claims were not preserved
and not fundamental error: failure to give an instruction on duress; improper
prosecutorial comments; the requirement that to preserve first and last arguments, a
defendant must forego presenting evidence; improper presentation of victim impact
evidence; and allowing the State to proceed on alternative theories of premeditated
and felony murder. See Henry, 613 So. 2d at 432.
In Henry’s initial postconviction proceeding filed in 1998, he raised fiftyone claims. The postconviction court held a Huff 3 hearing on June 3, 1999, and
granted an evidentiary hearing on his claim alleging ineffective assistance of
counsel for failure to have qualified expert mental health professionals assist with
the penalty phase defense, including a portion of a sub-claim that trial counsel did
not make adequate use of Florida Rule of Criminal Procedure 3.216 authorizing
appointment of a mental health expert for the penalty phase. The postconviction
court also granted an evidentiary hearing on a portion of Henry’s claim regarding
trial counsel’s alleged failure to ask the defense expert to address the mitigating
factors of alleged organic brain problems and substance abuse. An evidentiary
hearing was held October 18, 2000, with continued hearings on August 6-8, 2001.
On January 22, 2003, the trial court entered an order denying all claims in Henry’s
amended motion for postconviction relief. 4
3. Huff v. State, 622 So. 2d 982 (Fla. 1993).
4. On April 17, 2003, Henry filed a Supplement to his Motion to Vacate,
raising two issues: (1) Ring v. Arizona, 536 U.S. 584 (2002), renders the Florida
capital sentencing scheme unconstitutional; and (2) execution by lethal injection is
cruel and/or unusual punishment and violates Henry’s rights under the Eighth and
Fourteenth Amendments to the United States Constitution. Both issues were
appealed. This Court specifically addressed the Ring claim, finding it to be
without merit because Ring is not retroactive in collateral proceedings. See Henry
v. State, 937 So. 2d 563, 575 (Fla. 2006). Denial of the lethal injection claim was
affirmed as part of the Court’s rejection of Henry’s general claim that Florida’s
death penalty scheme is unconstitutional. See id. at 568 n.4.
On appeal of the postconviction order, we affirmed the denial of
postconviction relief and we also denied Henry’s petition for a writ of habeas
corpus alleging ineffective assistance of appellate counsel. See Henry v. State, 937
So. 2d 563, 577 (Fla. 2006). We noted that Henry claimed his trial counsel was
ineffective for failing to develop a strategy emphasizing his drug addiction, both to
demonstrate the effects of his long-term polysubstance abuse and to show Henry
was operating under a cocaine-induced psychosis at the time of the crimes. Henry,
937 So. 2d at 568. In resolving this claim, we explained:
First, as to Henry’s claim that trial counsel was ineffective for
failing to pursue and present evidence of his drug addiction, the record
is clear that Henry was adamant that trial counsel not rely on any
evidence of intoxication or addiction in Henry’s defense, in either the
guilt or penalty phases. “When a defendant preempts his attorney’s
strategy by insisting that a different defense be followed, no claim of
ineffectiveness can be made.” Rose v. State, 617 So. 2d 291, 294
(Fla. 1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.
In attempting to show that trial counsel missed obvious signs
that his client had a drug problem at the time of his crime,
postconviction counsel produced evidence tending to show that Henry
was struggling with a crack cocaine addiction in 1987. However, this
does not vitiate Henry’s role in firmly and consistently insisting that
counsel not pursue such a strategy during trial. It seems clear that trial
counsel met with stiff resistance from his client at every turn
regarding any efforts to piece together a drug defense for either the
guilt phase or for mitigation. Trial counsel’s testimony at the
evidentiary hearings illustrates that Henry was vehemently opposed to
any approach that relied on his drug use. He also made repeated
denials of drug use both to counsel and to all three pretrial
investigating mental health experts. Accordingly, we conclude that
the trial court did not err in finding that trial counsel’s assistance was
not ineffective in this regard.
Henry, 937 So. 2d at 570-71.
We also noted that the issue of Henry’s waiver of mitigation had been raised
in the direct appeal, where we held that the trial court “carefully and
conscientiously” considered the case for mitigation, finding two mitigators. Id. at
572 (quoting Henry, 613 So. 2d at 433). We noted that although counsel can in
some cases be ineffective in failing to pursue mental mitigation in spite of a
waiver, such did not occur here because Henry had already been examined by an
expert when counsel took over the case, and counsel further obtained the
appointment of two additional experts. Henry, 937 So. 2d at 573. Even though
Henry requested that family members not be called to testify, counsel still
contacted and subpoenaed five mitigation witnesses in case Henry changed his
mind. Id. Thus, we found no reason to depart from our earlier ruling that the trial
court did not err in accepting Henry’s waiver of mitigation; and we further held
that trial counsel’s representation was not deficient under the circumstances. Id.
We stated, “Given Henry’s adamant, informed refusal to participate in the
investigation and preparation of any type of mitigation, we conclude that counsel’s
preparation and Henry’s decision to waive his rights did not deny him of a reliable
penalty phase proceeding.” Henry, 937 So. 2d at 573.
Subsequent to the denial of his initial motion for postconviction relief,
Henry filed a motion for DNA testing pursuant to Florida Rule of Criminal
Procedure 3.853. That motion was denied in October 2007 and Henry failed to file
a timely appeal of that ruling. In 2008, Henry filed a motion for belated appeal in
this Court, which was treated as a habeas petition and remanded to the circuit court
for a hearing to determine if a belated appeal was warranted. The circuit court
found Henry was not entitled to a belated appeal and, in February 2010, this Court
denied the petition for belated appeal. See Henry v. State, 43 So. 3d 690 (Fla.
2010) (table decision).
Henry also filed a petition for a writ of habeas corpus in federal court,
challenging his conviction and death sentences on six grounds: (1) erroneous
admission of statements under Miranda v. Arizona, 384 U.S. 436 (1966);
(2) ineffective assistance of trial counsel; (3) erroneous admission of hearsay by a
victim; (4) failure to allow DNA testing of a beer can used to smoke crack, which
was found twelve days after the murders behind a toilet in the men’s restroom
where one of the victims was found, in order to prove voluntary drug intoxication;
(5) ineffective assistance of appellate counsel; and (6) that the sentence was
disproportionate. See Henry v. McDonough, No. 07-61281-CIV, 2009 WL
762219 at *2 (S.D. Fla. Mar. 19, 2009). In that case, the federal court denied
Henry’s motion to hold the case in abeyance in order for him to return to state
court to conduct DNA testing on crime scene evidence and to pursue other claims
against his trial counsel, his postconviction counsel, and the Attorney General. Id.
at *1. Henry’s federal petition was denied, as was his application for a certificate
of appealability. The United States Supreme Court denied certiorari review. See
Henry v. Florida Dept. of Corrs., 559 U.S. 1050 (2010).
We turn next to the successive postconviction claim Henry raises in this
case. Henry claims in this appeal that the circuit court erred in summarily denying
his successive postconviction claim that the American Society of Addiction
Medicine (ASAM) 2011 Public Policy Statement defining addiction as a brain
disorder is newly discovered evidence which, if presented to a jury, would
probably result in a life sentence. When a claim of newly discovered evidence is
asserted, a defendant must establish two things: First, the defendant must establish
that the evidence was not known by the trial court, the party, or counsel at the time
of trial and that the defendant or defense counsel could not have known of it by the
use of diligence. However, not all new evidence is the equivalent of newly
discovered evidence for the purposes of establishing a postconviction claim. Gore
v. State, 91 So. 3d 769, 775 (Fla.), cert. denied, Gore v. Florida, 132 S. Ct. 1904
(2012). Second, the newly discovered evidence must be of such nature that it
would “probably produce an acquittal on retrial.” See Jones v. State, 709 So. 2d
512, 521 (Fla. 1998) (quoting Jones v. State, 591 So. 2d 911, 915 (Fla. 1991)).
“Newly discovered evidence satisfies the second prong of this test if it ‘weakens
the case against [the defendant] so as to give rise to a reasonable doubt as to his
culpability.’ ” Heath v. State, 3 So. 3d 1017, 1023-24 (Fla. 2009) (quoting Jones,
709 So.2d at 526). Where, as here, the newly discovered evidence claim pertains
to the penalty phase of trial, the evidence must be of such a nature that it would
“probably yield a less severe sentence” on retrial. Schwab v. State, 969 So. 2d
318, 325 (Fla. 2007) (citing Jones, 591 So. 2d at 915).
The ASAM Public Policy Statement on the definition of addiction describes
the revised definition as the result of a compilation of two decades of
advancements in neurosciences. Thus, it is in the nature of new opinions or
research studies based on a compilation or analysis of previously existing data and
scientific information. As the circuit court recognized in denying this claim, we
held in Schwab that new opinions or new research studies have not been
recognized as newly discovered evidence. See Schwab, 969 So. 2d at 325-26. We
held in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006), that an American
Bar Association report titled Evaluating Fairness and Accuracy in the State Death
Penalty System: The Florida Death Penalty Assessment Report (Sept. 2006) was
not newly discovered evidence because it was “a compilation of previously
available information.” Id. at 1117-18. Similarly, in Johnston v. State, 27 So. 3d
11, 20-21 (Fla. 2010), we held that a report by the National Academy of Sciences,
titled Strengthening Forensic Science in the United States: A Path Forward (2009),
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was not newly discovered evidence because the report cited to existing
publications, some of which were published before the murder occurred in
Johnston. Because the revised ASAM definition is the culmination of several
decades of advancement in neuroscience, it falls into the same category as the
above studies and articles, and thus is not newly discovered evidence.
Henry contends, however, that this ASAM policy statement setting forth a
revised definition of addiction falls into the same category as the Federal Bureau of
Investigation (FBI) letters that were the subject of our decision in Smith v. State,
75 So. 3d 205, 206 (Fla. 2011). We disagree. In a letter sent some time after
Smith’s trial, the FBI disavowed the testimony of the FBI agent who testified at
Smith’s trial on the issue of comparative bullet lead analysis. We remanded for an
evidentiary hearing on the claim.
Similarly, in Wyatt v. State, 71 So. 3d 86 (Fla. 2011), we found that the
“case-specific letter authored by the FBI” explicitly stating that the FBI agent’s
testimony at Wyatt’s trial concerning comparative bullet lead analysis “exceed[ed]
the limits of science and [could not] be supported by the FBI” was newly
discovered evidence. Id. at 100. Even so, we concluded in Wyatt that the letter
did not meet the second prong of the newly discovered evidence test because it was
not of such nature that it would probably produce an acquittal on retrial when
considered with the other evidence in the case. Id. at 101. These examples are
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distinguishable from the instant case because the letters in Wyatt and Smith
pertained to the unreliability of expert testimony actually given at the defendants’
In this case, the ASAM policy statement and revised definition did not
involve faulty testimony actually given at Henry’s trial, as occurred in Wyatt and
Smith. Rather, it is more in the nature of new opinions or research studies based
on a compilation or analysis of previously existing data and scientific information.
Thus, based on this Court’s precedent in Schwab, Rutherford, and Johnston, the
circuit court was correct in holding that the ASAM policy statement setting forth a
revised definition of addiction, relating it to a brain disorder rather than a
behavioral disorder, is not newly discovered evidence. The circuit court further
concluded that the claim was an attempt to relitigate the claim that trial counsel
was ineffective for failing to present Henry’s drug addiction or abuse as mitigation.
That issue was heard and decided adversely to Henry in the first postconviction
The circuit court also held that even if the ASAM policy statement was
considered to be newly discovered evidence, it would not meet the second prong of
the newly discovered evidence test—that it would probably result in a life
sentence. We agree. First, Henry waived introduction of any mitigation at his
penalty phase trial. This waiver was affirmed on direct appeal. Henry now argues
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that he did not want to introduce evidence of drug use or drug addiction at trial
because it was viewed unfavorably at that time, but now would be viewed as
favorable mitigation. However, because Henry consistently denied drug use and
claimed that those who reported his drug use were liars, there is no indication that
he rejected introduction of drug addiction at trial because it would have been
viewed unfavorably. He also rejected introduction of any favorable mitigation that
his family members and friends could have provided. Moreover, his trial counsel
testified in the initial postconviction hearing that he personally believed drug
addiction could be mitigating, that he attempted on more than one occasion to
convince Henry that mitigation evidence was necessary, and he believed that the
witnesses he subpoenaed would provide favorable mitigation for Henry. These
attempts to present any favorable mitigation were flatly rejected.
Finally, even if the penalty phase jury were presented with evidence that
Henry was addicted to crack cocaine or other substances, and that such addiction
was a brain disorder, the circuit court was correct that the evidence would not
probably produce a life sentence on retrial. Henry was convicted of two brutal
murders in which he bludgeoned and burned the victims to death in a robbery.
Against the advice of counsel, he took the stand and denied his guilt during trial—
retelling his version of events involving masked gunmen—which version was
clearly in conflict with his confession that he acted alone in killing the two victims.
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It was also inconsistent with the dying declaration of one of the victims that Henry
was the assailant. The trial court found five strong aggravators, including HAC
and CCP. Thus, the circuit court was correct that even if Henry’s drug addiction
and the revised ASAM definition of addiction as a brain disorder were admitted at
trial, it is not probable that he would receive a life sentence.
Based on the foregoing, we affirm the circuit court’s order denying Henry’s
successive motion for postconviction relief.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Broward County,
Andrew L. Siegel, Judge - Case No. 87-018628CF10A
Kevin J. Kulik, Fort Lauderdale, Florida,
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia Terenzio, Assistant
Attorney General, West Palm Beach, Florida,
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Appellant was convicted of two counts of first-degree murder. The trial court imposed two death sentences after finding several aggravating factors. The Supreme Court affirmed on direct appeal. After Appellant's initial motion for postconviction relief was denied, Appellant filed a motion for DNA testing, which was also denied. Appellant subsequently filed in federal court a petition for a writ of habeas corpus, which was denied. Appellant then filed a successive postconviction motion, claiming that the American Society of Addiction Medicine (ASAM) Public Policy Statement defining addiction as a brain disorder was newly discovered evidence which, if presented to a jury, would probably result in a life sentence. The circuit court summarily denied the claim. The Supreme Court affirmed, holding that the ASAM definition was not newly discovered evidence, and even if the ASAM policy statement was considered to be newly discovered evidence and it was admitted at trial, it was not probable Appellant would receive a life sentence.Receive FREE Daily Opinion Summaries by Email