Henyard v. McDonough, 05-15110.
| Decision Date | 11 August 2006 |
| Docket Number | No. 05-15110.,05-15110. |
| Citation | 459 F.3d 1217 |
| Parties | Richard HENYARD, Petitioner-Appellant, v. James McDONOUGH, Secretary, Florida Department of Corrections, Charlie Crist, Florida Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Stephen D. Ake, Tampa, FL, for Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BIRCH, BARKETT and HULL, Circuit Judges.
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.
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.
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.1
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...
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