Henderson v. Dugger
| Decision Date | 20 February 1991 |
| Docket Number | No. 88-3680,88-3680 |
| Citation | 925 F.2d 1309 |
| Parties | Robert Dale HENDERSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Billy H. Nolas, Larry H. Spalding, Martin J. McClain, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.
Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY, HATCHETT and CLARK, Circuit Judges.
Robert Dale Henderson appeals the district court's refusal to grant the writ of habeas corpus. Henderson asserts nine grounds for reversal: the violation of his right to counsel during the taking of his confessions, prejudicial pretrial publicity, the ineffectiveness of his mental health expert, his involuntary absence from several proceedings, the overbroad construction of certain aggravating factors, an erroneous charge to the jury concerning the presumptions they were to apply in the case that they found at least one aggravating factor, the use of nonstatutory aggravating circumstances in setting his sentence of death, the refusal of the trial judge to instruct the jury as to their merciful discretion, and ineffective assistance of counsel on direct appeal to the state supreme court. We find none of these claims compelling, and we affirm.
The Charlotte County, Florida, police received a call on February 6, 1982, reporting an auto burglary. When officers arrived at the scene, appellant Henderson surrendered himself and stated that he was wanted for murder in several states. Henderson had apparently made the call to the police in order to facilitate his surrender. During questioning by the Charlotte County authorities, Henderson implicated himself in two murders that had occurred in Putnam County, Florida. Henderson soon invoked his right to counsel, and the Charlotte County public defender's office was contacted.
As a result of the statements to the Charlotte County police, Putnam County Officers Bakker and Hord arrived to transport Henderson to their jurisdiction on February 10, 1982. At a formal hearing during which Henderson was turned over to Bakker and Hord, the Putnam County officers were presented with a form that Henderson had executed, invoking his right to counsel and stating that he would not talk to the police under any circumstances without his attorney present.
At the end of the approximately five-hour trip to Putnam County, Bakker and Hord obtained a written waiver of Henderson's previously invoked rights to counsel and silence, and Henderson confessed to killing three hitchhikers in Hernando County. Henderson also agreed to show the officers where the bodies were.
On June 2, 1982, Henderson pled guilty to the Putnam County charges, for which he received two life sentences. Afterwards, he was transported to Hernando County. During the trip, Officer Perez, the transporting officer, encouraged Henderson to make further incriminating statements. Henderson at first refused but eventually talked to Perez about the Hernando County murders.
Due to excessive pretrial publicity, Henderson's trial on the Hernando County charges was moved to Lake County, Florida, approximately thirty miles from Hernando County. The prosecution's case in the guilt phase was based on the testimony of Officers Bakker, Hord, and Perez. The defense presented no evidence. Henderson was found guilty by the jury on November 20, 1982.
Evidence introduced by the prosecution during the sentencing phase included copies of the Putnam County judgments and the testimony of Officer Perez as to a statement made by Henderson allegedly showing lack of remorse. Henderson called a reporter to testify as to Henderson's personal history.
The jury recommended death, and the trial judge imposed a sentence of capital punishment, finding three statutory aggravating circumstances and unspecified nonstatutory mitigating circumstances. On direct appeal, the Florida Supreme Court affirmed Henderson's conviction and sentence. 1 Henderson's state habeas proceedings were unsuccessful. 2 The United States District Court for the Middle District of Florida denied Henderson's application for the writ on June 21, 1988.
Henderson's primary claim for relief on appeal is that his inculpatory statements to Officers Bakker, Hord, and Perez were obtained in violation of Edwards v. Arizona. 3 Edwards holds that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." 4 Henderson argues that it was the police who initiated the conversations that led to his confessions. There are two relevant confessions, one to Officers Bakker and Hord, the other to Officer Perez. We will discuss each in turn.
Prior to being turned over to the Putnam County officers, Henderson through counsel gave the officers an "Invocation of Right to Counsel" form that expressed his desire not to talk with the police without an attorney present. During the car trip from Charlotte County to Putnam County, Henderson and Officers Bakker and Hord exchanged casual conversation, covering such topics as Henderson's marksmanship skills and his frequent headaches and insomnia. No subjects touching on Henderson's crimes were broached. When the police vehicle reached Crescent City, Florida, inside the Putnam County line, the officers stopped the car at the city police station to call their supervisor and inform him of their arrival within the jurisdiction. When Bakker went inside to make the phone call, Henderson asked Hord what was going to happen next. Hord testified:
I explained to him that we were in Putnam County, that Sergeant Bakker was calling the chief of detectives just to tell him that we were here. [Henderson] wanted to know what we would do then.... I told him it was up to the captain, but more than likely we'd be heading to the Putnam County Sheriff's Department to the detention facility. He kind of looked at me like it was just, "Is that all," and I asked him what it was he was trying to tell me. He indicated that he wanted--he thought he wanted to assist me in finding some bodies. I told him that he was not in a position to think he wanted to do something, that he had to make up his mind, and he said that he did want to help me in my investigations.
Hord further explained the expression on Henderson's face:
Well, it was just kind of a look on his face like, "You've got to be kidding," you know. It's hard to describe an expression.
Following this conversation, Officer Bakker was called back to the car, and he testified:
I went back out there and I re-advised him of his rights. I told him in great detail that he did not have to discuss that with me, and that if he did, he was going against the advice of the Public Defender Woodard. He said he wanted to discuss that matter and that he was concerned about the proper burial of the three.
In front of four witnesses, Henderson signed a waiver form that the officers had prepared prior to the trip. Henderson then led the officers to Hernando County and the bodies of three previously undiscovered murder victims. Because Henderson asked not to talk about the details of the murders, the officers did not question him further.
These facts support the conclusion that Henderson "evinced a willingness and a desire for a generalized discussion about the investigation." 5 Prior to their arrival in Crescent City, Henderson and the officers had been having a casual, nonthreatening conversation. As in Oregon v. Bradshaw, Henderson then asked Hord an initial question that was to the effect of, "[W]hat is going to happen to me now?" 6 In Bradshaw, the Supreme Court held that this question was sufficient to open up the suspect to more direct questioning (via a lie detector test). The Court stated that Bradshaw's question "could reasonably have been interpreted by the officer as relating generally to the investigation." 7 Similarly, this circuit has held that the question, "Where are we going?" by a suspect allows police to make statements that could encourage the suspect to confess. 8
A second factor in our conclusion that Henderson's statement was voluntarily given is that Hord did not directly question Henderson or bring up the ongoing criminal investigation; instead, he asked a broad question to which Henderson could have given many replies. When Officer Hord asked what Henderson was attempting to communicate to him, Henderson could have as easily replied that he was in some sort of physical discomfort as that he wanted to show Hord the bodies. This was clearly not a case where the police were repeatedly asking the suspect to come clean. The fact that the question asked was open-ended lends credence to Hord's claim that Henderson was trying to tell him something, and that Hord's question was merely the catalyst. Had Hord asked a more direct question, our conclusion might well be different. In that case, we would not possess the reliability derived from the fact that Henderson gave a specifically incriminating answer in response to a very broad question; in that case, the police would be directly suggesting that Henderson should confess despite his attorney's specific instructions not to talk further. 9
As an aside, we note that Henderson has referred us to the recent Supreme Court case of Minnick v. Mississippi 10 as possibly informing our opinion. Minnick is not applicable, because it only holds that--following a request for counsel--an...
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