Henry v. State

• Decision Date: 14 March 2014
• Docket Number: No. SC14–398.,SC14–398.
• Citation: 134 So.3d 938
• Parties: Robert L. HENRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

134 So.3d 938

Robert L. HENRY, Appellant,

v.STATE of Florida, Appellee.

No. SC14–398.

Supreme Court of Florida.

March 14, 2014.

Melodee A. Smith, Offices of Melodee A. Smith, and Kevin James Kulik of Kevin J. Kulik, PA, Fort Lauderdale, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, West Palm Beach, FL, for Appellee.

PER CURIAM.

Robert Henry is a prisoner under sentences of death for whom a death warrant has been signed and execution set for March 20, 2014. In 1988, Henry was convicted of the first-degree murders of Phyllis Harris and Janet Thermidor, armed robbery with a deadly weapon, and arson. Henry now appeals the denial of his second successive motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.851; the denial of his motion to declare section 922.052, Florida Statutes (2013), unconstitutional; and his motion to dismiss his death warrant. For the reasons explained below, we affirm the postconviction court's denial of relief. In addition, we deny Henry's motion for a stay of execution, filed March 12, 2014.

I. BACKGROUND

On November 1, 1987, Henry tied up his coworkers Harris and Thermidor, hit each of them on the head with a hammer, and set them on fire. Harris was found dead, but Thermidor survived until the next day and identified Henry as the perpetrator. When interviewed by law enforcement officers, Henry initially claimed that he was forced to attack his coworkers by unknown robbers but later confessed that he acted alone. Henry v. State, 613 So.2d 429, 430–31 (Fla.1992).

The jury recommended a death sentence for the murder of Harris by a vote of eight to four and for the murder of Thermidor by a vote of nine to three. The trial court imposed a life sentence for the armed robbery, a life sentence for the arson, and a death sentence for each murder. In imposing death sentences for both murders, the trial court concluded that five aggravating factors were applicable to each murder: (1) the murder was committed during the commission of a robbery and arson; (2) the murder was committed to avoid arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel (HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner (CCP). Despite Henry's decision to waive the presentation of mitigating evidence, the trial court also found two mitigating factors: (1) Henry had no significant prior criminal history; and (2) Henry served in the United States Marine Corps. State v. Henry, No. 88–18628 CF 10 (Fla. 17th Jud. Cir. Ct. order filed Nov. 9, 1988).

On direct appeal, Henry argued that: (1) the trial court erred in partially denying Henry's motion to suppress his statements; (2) the trial court erred in denying Henry's motion to suppress Thermidor's statement; (3) the trial court erred by failing to give an instruction on duress; (4) a discovery violation occurred; (5) the prosecutor made improper comments; (6) Florida's rule requiring a defendant to forego presenting witnesses to preserve first and last arguments is unconstitutional; (7) the presentation of victim impact evidence was improper; (8) the trial court erred by admitting irrelevant and cumulative photographs; (9) the State presented false testimony; (10) the trial court erred by allowing the State to argue alternative theories of premeditated and felony murder; (11) the trial court applied the wrong standard of proof to the mitigating factors and erred by allowing Henry to waive the presentation of mitigating evidence; (12) the trial court gave improper penalty phase instructions; (13) the aggravating factors were not established beyond a reasonable doubt or were unconstitutional, and the trial court considered nonstatutory aggravating factors; (14) Florida's death penalty scheme is unconstitutional; (15) Henry's right to be present during all stages of the trial was violated; (16) the presentence investigation report violated Henry's rights under the Confrontation Clause of the United States Constitution; and (17) the trial court erred by departing from the sentencing guidelines when sentencing Henry on the arson and robbery convictions.

In Henry v. State, 586 So.2d 1033, 1034–35 (Fla.1991), this Court concluded that each of Henry's claims was without merit or unpreserved and affirmed the convictions and sentences. That decision was vacated, however, by the United States Supreme Court in Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). The Supreme Court remanded Henry's case to this Court for further consideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) (concluding that the standard jury instruction given on the HAC aggravating factor was unconstitutionally vague), and Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (concluding that the defendant failed to preserve for appeal his argument that the standard jury instruction given on the HAC aggravating factor was unconstitutional). On remand, this Court issued a revised opinion and again affirmed Henry's convictions and sentences. This Court explained that although Florida's former standard jury instruction on the HAC aggravating factor had been determined to be unconstitutional, in Henry's case, the trial court gave an expanded instruction that was not unconstitutionally vague. Henry, 613 So.2d at 434.

In 1998, Henry filed an amended initial motion for postconviction relief, raising fifty-one claims, which was denied by the postconviction court. Henry appealed and filed a petition for a writ of habeas corpus. This Court affirmed the denial of Henry's postconviction motion; determined that the postconviction court did not commit reversible error by limiting the evidentiary hearing to the deficiency prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and concluded that “only the postconviction claims that were considered at the evidentiary hearing merit discussion.”Henry v. State, 937 So.2d 563, 568 (Fla.2006). Those claims were: (1) trial counsel was ineffective for failing to develop a mitigation strategy that emphasized Henry's drug addiction; (2) trial counsel was ineffective for failing to follow Henry's initial psychological screening with a full mental health mitigation evaluation; and (3) Henry's waiver of the presentation of mitigating evidence was not knowingly and intelligently made due to trial counsel's inadequate penalty phase investigation. Id. at 571–75. This Court also denied Henry's habeas petition, which alleged that: (1) appellate counsel failed to raise numerous meritorious issues due to the page number limitation imposed on appellate briefs; (2) appellate counsel failed to raise claims on direct appeal concerning the record being incomplete and the need for a change of venue; and (3) the constitutionality of the indictment must be revisited in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In 2003, Henry filed a motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. That motion was denied in October 2007, and Henry failed to file a timely appeal. In 2008, Henry filed a motion for belated appeal, which was treated as a petition for a writ of habeas corpus. This Court relinquished jurisdiction to the circuit court to determine if a belated appeal was warranted. The circuit court concluded that Henry was not entitled to a belated appeal, and in 2010, this Court denied Henry's petition. Henry v. State, 43 So.3d 690 (Fla.2010) (Table).

In 2007, Henry filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. Henry raised six claims: (1) the trial court erred by admitting Henry's statements; (2) trial counsel was ineffective for failing to attach the search warrant used to obtain incriminating evidence; (3) the trial court erred by admitting victim Thermidor's statement; (4) the trial court erred by failing to allow DNA testing of a beer can found at the crime scene; (5) appellate counsel was ineffective; and (6) Henry's death sentences are excessive. While his habeas petition was pending, Henry filed a motion to hold his habeas petition in abeyance in order to litigate some of his claims in state court, a pro se supplemental motion to hold his petition in abeyance, and a motion to stay. On March 19, 2009, the federal court issued an order denying Henry's motions. The federal court concluded that several of Henry's claims had not been exhausted in the state courts and that Henry failed to establish the requirements for a stay and abeyance to finish litigating those claims. The federal court thus ruled that unless Henry withdrew his unexhausted claims by April 1, 2009, his habeas petition would be dismissed. Henry v. McDonough, No. 07–61281–CIV–HUCK, 2009 WL 762219 (S.D.Fla. Mar. 19, 2009).

In 2012, Henry filed a pro se successive motion for postconviction relief, alleging that newly discovered evidence will show that his chronic drug addiction is now scientifically recognized as a brain disease. The postconviction court summarily denied the motion, and this Court affirmed the denial. Henry v. State, 125 So.3d 745, 752 (Fla.2013).

Most recently, following the signing of his death warrant on February 13, 2014, Henry filed a second successive postconviction motion. Henry alleged that Florida's lethal injection protocol is unconstitutional because: (1) midazolam hydrochloride (midazolam) should not be used as the first drug of the protocol; (2) due to Henry's specific health concerns, the use of midazolam creates a substantial risk of harm to him; (3) the consciousness check in the protocol is inadequate; (4) the execution team is inadequately trained and might not follow the...