Henry v. State, 78934

• Decision Date: 15 December 1994
• Docket Number: No. 78934,78934
• Parties: 19 Fla. L. Weekly S653 John Ruthell HENRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1366

649 So.2d 1366

19 Fla. L. Weekly S653

John Ruthell HENRY, Appellant, v. STATE of Florida, Appellee.

No. 78934.

Supreme Court of Florida.

Dec. 15, 1994.

Rehearing Denied Feb. 9, 1995.

James Marion Moorman, Public Defender, and Allyn Giambalvo, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

John Ruthell Henry appeals his conviction for the first-degree murder of Suzanne Henry and his resulting sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Henry was married to Suzanne Henry but they were separated. Shortly before Christmas 1985, he returned home in Pasco County to talk with his wife. The couple began to argue and the dispute ended with Henry killing Suzanne by stabbing her repeatedly in the throat. Henry then took Eugene Christian, Suzanne's five-year-old son from a previous marriage, from the house and drove to Hillsborough County where, some nine hours later, he killed Christian by stabbing him in the throat. Henry was convicted of the first-degree murders of Suzanne Henry and Eugene Christian in separate trials and received a sentence of death for each murder. Subsequently, this Court reversed both convictions and sentences. Henry v. State, 574 So.2d 73 (Fla.1991); Henry v. State, 574 So.2d 66 (Fla.1991). Regarding the murder of Suzanne Henry, we found that the trial court erred in admitting extensive testimony and documentary evidence concerning Eugene Christian's murder. Henry, 574 So.2d at 75. On retrial, Henry was again convicted of the first-degree murder of Suzanne Henry. ¹ The jury recommended the death penalty by a vote of twelve to zero and the trial court followed the jury's recommendation. The court found two aggravating circumstances ² and no mitigating circumstances. This appeal followed.

Henry argues that the trial court erred in allowing any testimony concerning the murder of Eugene Christian. Prior to the State's case-in-chief, defense counsel made a motion in limine to exclude any mention whatsoever of the killing of Eugene Christian. The trial court refused the defense's request to disallow any mention of Christian or his death. However, the court did prohibit the State from presenting in-depth testimony about the search for Christian's body, the autopsy photo, or the manner in which he was killed. The court also gave a limiting instruction for the jury's consideration of the evidence admitted pertaining to Christian.

During the course of the trial, reference was made to the following facts: Christian was last seen at Suzanne Henry's house on the day of her murder; Christian was missing from the house the day her body was found; Christian left Suzanne Henry's house on the day of her murder with an unknown person; Henry led police to the place where Christian's body was found; and Henry confessed to killing Christian. Henry argues that this evidence was not relevant to any material fact in issue and therefore should not have been admitted. We disagree.

The facts in question relating to Eugene Christian's murder were inextricably intertwined with facts pertaining to Suzanne Henry's murder. To try to totally separate the facts of both murders would have been unwieldy and likely have led to confusion. See Henry, 574 So.2d at 70-71; Griffin v. State, 639 So.2d 966 (Fla.1994); Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA), review denied, 496 So.2d 144 (Fla.1986). As we stated in our opinion in Henry's first appeal, "[s]ome reference to the boy's killing may have been necessary to place the events in context, to describe adequately the investigation leading up to Henry's arrest and subsequent statements, and to account for the boy's absence as a witness." Henry, 574 So.2d at 75. We find that the evidence relating to Eugene Christian's whereabouts during and after his mother's murder, as well as the fact that Henry admitted killing Christian, was indeed necessary to establish the context of events and to describe the investigation leading up to Henry's arrest for Suzanne Henry's murder and the subsequent confession. The evidence was relevant to prove Henry's presence at the scene of the murder. The evidence concerning the briar bushes where Christian's body was found refuted Henry's claim that the cuts on his arms came from Suzanne Henry's attack with a knife. The act of removing the only person present in the house where Christian was killed also tended to prove guilty knowledge. Because the facts regarding Christian were inseparable crime evidence, we find that no error was made in their admission.

Henry also raises several issues pertaining to the penalty phase of his trial. He first asserts that the trial court erred by allowing certain hearsay testimony relating to the murder of his first wife, Patricia Roddy. ³ At the trial, the State introduced the transcript of testimony of Deborah Fuller, who had been a witness at Henry's first murder trial. At the time of the trial in the instant case, Fuller was unavailable and incarcerated in another state. Henry argues that because he had no opportunity to cross-examine Fuller in this instance, it was error to admit the transcript. He also argues that the transcript of testimony was irrelevant and highly prejudicial and therefore error pursuant to Rhodes v. State, 547 So.2d 1201 (Fla.1989). In Rhodes, we held that playing a tape recording of a prior victim, who was unavailable for cross-examination, describing her physical and emotional trauma and suffering was irrelevant, highly prejudicial and, therefore, inadmissible. Rhodes, 547 So.2d at 1205.

The transcript of Fuller's testimony was admissible for two reasons. First, the transcript qualifies under the former testimony exception to the hearsay rule. Sec. 90.804(2)(a), Fla.Stat. (1991). Under this exception, if a declarant is unavailable as a witness, testimony given by the declarant at another proceeding is admissible if the party against whom the testimony is now offered had an opportunity to cross-examine the declarant. Since Fuller was unavailable as a witness at the trial in this case, and Henry had an opportunity to rebut her testimony during the first trial, we find that the transcript falls within this exception. Next, this Court has specifically held that details of prior felony convictions involving the use of violence to the victim are admissible in the penalty phase of the trial. Waterhouse v. State, 596 So.2d 1008 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992). Fuller was an eyewitness to the altercation between Henry and Roddy which led up to Roddy's murder as well as to the murder itself. Such testimony is unlike the emotionally charged hearsay testimony made by a prior victim who was unavailable for cross-examination and found inadmissible in Rhodes. Therefore, we do not find that the trial court abused its discretion in admitting the transcript.

Henry further argues that the testimony concerning the autopsy report of the Roddy murder was unnecessary to establish the aggravating factor of prior violent felony. We are inclined to agree with Henry on this point. Other testimony concerning the Roddy murder was more than sufficient to establish the aggravating circumstance that Henry had previously been convicted of a violent felony. ⁴ See Rhodes, 547 So.2d at 1205 n. 6. However, because there is no reasonable possibility that the outcome of the trial would have been different in the absence of this error, we find it to be harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Henry next argues that since the trial court did not find that the murder was committed during the course of a felony, the court erred in instructing the jury on this aggravating factor. We reject Henry's argument. If evidence of an aggravating factor has been presented to a jury, an instruction on the factor is required. Bowden v. State, 588 So.2d 225, 231 (Fla.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1596, 118 L.Ed.2d 311 (1992). The fact that the aggravator was not ultimately found to exist does not mean there was insufficient evidence to allow the jury to consider the factor. Id...