Henyard v. State

• Decision Date: 27 May 2004
• Docket Number: No. SC02-2538., No. SC02-1105
• Citation: 883 So.2d 753
• Parties: Richard HENYARD, Jr., Appellant, v. STATE of Florida, Appellee. Richard Henyard, Jr., Petitioner, v. James V. Crosby, Jr., etc., Respondent.
• Court: Florida Supreme Court

883 So.2d 753

Richard HENYARD, Jr., Appellant, v. STATE of Florida, Appellee.

Richard Henyard, Jr., Petitioner, v. James V. Crosby, Jr., etc., Respondent.

Nos. SC02-1105, SC02-2538.

Supreme Court of Florida.

May 27, 2004.

Rehearing Denied September 22, 2004.

Bill Jennings, Capital Collateral Regional Counsel — Middle Region, Robert T. Strain, Assistant CCRC, and Frank Lester Adams, III, Assistant CCRC, Tampa, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.

PER CURIAM.

Richard Henyard, Jr. appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the trial court's denial of Henyard's postconviction motion and deny the petition for writ of habeas corpus.

FACTUAL BACKGROUND

The facts of this case are set out in detail in our previous opinion. See Henyard v. State, 689 So.2d 239 (Fla.1996). Richard Henyard (Henyard), at the age of eighteen, took a gun that belonged to a family friend and decided he was going to steal a car, kill the owner, and put the victim in the trunk so he could go see his father. Henyard convinced a younger, fourteen-year-old friend, Alfonza Smalls, to help him rob someone. On January 30, 1993, Henyard and Smalls waited outside of a Winn-Dixie store in Eustis, Florida. Their victims were Mrs. Dorothy Lewis and her daughters, Jasmine, age three, and Jamilya, age seven, who were shopping at the Winn-Dixie. As the three left the store and returned to their car, Smalls approached Lewis with a gun and ordered her and her daughters in the back of the car. Henyard drove the car out of town.

Henyard stopped the car at a deserted location where the two boys raped Lewis on the trunk of the car while her daughters remained in the back seat. Afterward, Henyard shot Lewis four times, wounding her in the leg, neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls rolled Lewis's unconscious body off to the side of the road and got back in the car. Jamilya and Jasmine were then driven to a separate location and taken from the car into a grassy area where they were each shot in the head and killed. Lewis survived and was able to make it to a nearby house where the police were called.

At trial, Richard Henyard, Jr. was convicted of three counts of armed kidnapping, one count of sexual battery with the use of a firearm, one count of attempted first-degree murder, one count of robbery with a firearm, and two counts of first-degree murder. After the penalty phase hearing, the jury recommended the death sentence for each of the murder counts by a vote of twelve to zero. The court found four aggravating factors,¹ three statutory mitigating factors,² and six nonstatutory mitigating factors.³ The court found that the mitigating circumstances did not outweigh the aggravating circumstances and sentenced Henyard to death.

This Court rejected all eleven⁴ of Henyard's claims on direct appeal and affirmed his conviction and sentence. Henyard then filed the postconviction motion that is the subject of this appeal, wherein he made nine claims.⁵ After holding a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), the trial court conducted an evidentiary hearing on Henyard's ineffective assistance of counsel claim.⁶ Both Henyard and the State introduced the testimony of a number of witnesses. Subsequently, the trial court entered an order denying relief. Henyard now appeals, claiming that the trial court erred in denying him relief on his postconviction motion.

ANALYSIS

3.850 APPEAL

Henyard's claims on appeal are rooted in his claim from his postconviction motion that trial counsel was ineffective in investigating and presenting different types of mitigating evidence. On appeal, Henyard divided his claim on ineffective assistance of counsel into six subclaims, alleging that his trial counsel did not adequately investigate or present the following nonstatutory mitigating circumstances: (1) Henyard's lack of stable parental contact and supervision; (2) Henyard suffered physical abuse at the hands of his father's common law wife, Edith Ewing; (3) Henyard's pattern of seeking out younger children as companions due to his lower IQ and "mental" age and to avoid harassment from children his own age; (4) Henyard suffered sexual abuse as a child; (5) Henyard's chronic use of alcohol; (6) Henyard's mental state as characterized by his suicidal feelings. Additionally, Henyard argues that counsel was deficient in preparing one of Henyard's mental health experts for trial. We consider each of Henyard's subclaims in turn.

Investigation and Presentation of Mitigation

In order to prove an ineffective assistance of counsel claim, a defendant must establish two elements:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Wike v. State, 813 So.2d 12, 17 (Fla.2002); Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998); Rose v. State, 675 So.2d 567, 569 (Fla.1996). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings. See id.

Henyard alleges that trial counsel's performance was deficient in investigating potential nonstatutory mitigating circumstances. Under Strickland, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. However, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. While trial counsel has a duty to investigate, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.

Following this standard from Strickland, this Court has held that "[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Rose, 675 So.2d at 571. Moreover, this Court has also recognized that "[t]he failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so." Id.⁷

Parental Contact and Supervision

First, Henyard argues that trial counsel was ineffective for not presenting four witnesses to show Henyard suffered from a lack of parental contact and supervision. Initially, we would note that this specific claim was not made in Henyard's postconviction motion, and therefore it is procedurally barred. However, even if we were to address the merits, we would conclude that Henyard has not demonstrated a basis for relief. These four witnesses testified at the evidentiary hearing and, in general, their testimony demonstrated that Henyard had a difficult childhood. It was not clear from the evidentiary hearing whether the names of each of these individuals was given to Henyard's defense counsel. Although there was some dispute over trial counsel's attempts to contact one of the witnesses, all four testified that no one from Henyard's defense team had talked to them at the time of Henyard's trial.

Nevertheless, even if we were to assume that Henyard's attorneys performed deficiently by failing to track down these four witnesses and present their testimony at the penalty phase, pursuant to the second prong of the Strickland test, Henyard did not suffer any prejudice because the testimony of the four witnesses was substantially similar to and cumulative with testimony that was actually presented during the penalty phase.⁸See Gudinas v. State, 816 So.2d 1095, 1106 (Fla.2002) (finding that trial counsel was not ineffective for failing to present evidence in mitigation that was cumulative to evidence already presented in mitigation). The various witnesses at both proceedings testified to the fact that Henyard had a difficult childhood, often living in multiple households because his mother was not an adequate caregiver. Thus, even assuming that trial counsel was ineffective in failing to locate the additional witnesses that could have provided additional confirmation to the testimony that was presented at the penalty phase, Henyard has failed to meet the prejudice prong of Strickland, and hence is not entitled to relief on this subclaim. See, e.g., Sweet v. State, 810 So.2d 854, 863-64 (Fla.2002) (noting that the Court did not need to reach the issue of whether trial counsel was...