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Richard HENYARD
A.K.A.: "Ric-Ric"
Classification: Murderer
Characteristics: Rape -
Carjacking - Kidnapping
Number of victims: 2
Date of murders:
January 30,
1993
Date of birth: June
26,
1974
Victims profile: Jamilya Lewis,
7, and her sister, Jasmine, 3
Method of murder:
Shooting
Location: Lake County, Florida, USA
Status: Executed
by lethal injection in Florida on September 23,
2008
Henyard was 18 when he and a 14-year-old accomplice, Alfonza Smalls,
carjacked and kidnapped Dorothy Lewis and her daughters from the
parking lot of the Winn-Dixie in Eustis.
Lewis and her girls had gone to shop for
ingredients to make a strawberry-pretzel salad for a church picnic.
Henyard, who had stolen the gun that Smalls carried in his waistband,
wanted a car to drive to a dance club in Orlando and then to visit
his father in Pahokee.
He and Smalls drove the mother and her frightened
children to a deserted area, where the two teens took turns raping
Lewis on the trunk of the car in view of her daughters. Henyard then
suddenly shot the mother.
She was shot four times -- once in the middle of
the forehead. As Lewis quietly prayed to Jesus, Henyard said: "This
ain't Jesus; this is Satan." Miraculously, Lewis survived and later
dragged herself to a nearby house for help.
Meanwhile, Henyard and Smalls continued on their
nightmarish joy ride with the children in the back seat. The little
girls were crying and calling out for their mommy. Both children
were taken from the car and shot in the head at close range.
The day after the shooting, Henyard went to the
Eustis Police Department and initially told a story implicating
Smalls and another man. When police noticed bloodstains on his sock,
he admitted helping abduct Lewis and her children. He also said he
raped her and shot her. He said that he was present when the
children were shot, but that he did not shoot them. Small was too
young to face execution. He was sentenced to eight consecutive life
sentences for the kidnapping, rape and murder.
Citations:
Henyard v. State, 689 So.2d 239 (Fla. 1996) (Direct Appeal). Henyard v. State, 883 So.2d 753 (Fla. 2004) (PCR). Henyard v. McDonough, 459 F.3d 1217 (11th Cir. 2006)
(Habeas).
Final / Special Meal:
Two fried-chicken breasts, turkey sausage, fried rice, prison-made
chocolate-chip cookies and Coca-Cola.
Final Words:
None
ClarkProsecutor.org
Florida Department of Corrections
DC Number: 225727
Name: HENYARD, RICHARD
Race: BLACK
Sex: MALE
Hair Color: BLACK
Eye Color: BROWN
Height: 6'02''
Weight: 170 lbs.
Birth Date: 06/26/1974
Initial Receipt Date: 08/19/1994
Current Release Date: DEATH SENTENCE
DC # 225727
DOB: 06/26/74
Fifth Judicial Circuit, Lake
County Case # 93-159
Sentencing Judge: The Honorable
Mark J. Hill
Trial Attorneys: T. Michael
Johnson & Mark Nacke – Assistant Public Defenders
Attorney, Direct Appeal: Michael
S. Becker – Assistant Public Defender
Attorney, Collateral Appeals:
Mark Gruber – CCRC-M
Date of Offense: 01/30/93
Date of Sentence: 08/19/94
Circumstances of the Offense:
One day in January of
1993, Richard Henyard went into the bedroom of family friend Luther Reed
and took Reed’s gun. On January 29th, 18-year-old Henyard
showed the gun to a long-time acquaintance, Dikeysha Johnson, when he
was in Eustis, Florida. That same evening, Henyard showed the gun to
Shenise Hayes and told her of his plan to steal a car, kill the owner,
and put the victim in the trunk in order for him to have transportation
to an Orlando nightclub and to visit his father in South Florida.
Henyard tried to persuade
William Pew to participate in the robbery when he saw him the last week
in January. Pew saw Henyard later that same day with Alfonza Smalls, a
14-year-old friend of Henyard’s. Henyard showed Pew the gun and told
him that in order to get the car he needed, Henyard was going to rob
someone at either the Winn-Dixie or the hospital.
On the evening of January 30,
1993, Ms. Lewis and her daughters arrived at the Winn-Dixie. As Lewis,
the eventual survivor, and her daughters, the victims, were entering the
Winn-Dixie, she noticed a few people sitting on a bench near the doors.
After Lewis exited the store with Jamilya, age 7, and Jasmine, age 3,
she walked to her car and proceeded to place her daughters in the front
passenger seat.
As Lewis crossed the rear of the car to get to the
driver’s side, she noticed Alfonza Smalls approaching her. As Smalls
neared, he revealed a gun tucked into his waistband. Lewis and her
daughters were ordered into the back of the car as Smalls and Henyard
entered the front. The Lewis car left town with Henyard driving and
Smalls issuing directions. Prior to the abduction of Lewis and her
daughters, a female witness observed Henyard and Smalls loitering
outside of the Winn-Dixie.
During the drive, Smalls
repeatedly demanded that Lewis keep her daughters quiet since they were
crying and upset. Later, Henyard pulled the car over at a remote area
and pulled Lewis from the car. After Henyard forced her against the
trunk and raped her, Smalls raped Ms. Lewis as well.
Henyard told her
to sit on the ground and when she hesitated, he shot her in the leg and
forced her to the ground. She was also shot by Henyard three more times
at close range and was wounded in the mouth, neck, and on the forehead
between the eyes. After she was unconscious, Henyard and Smalls rolled
her over to the shoulder of the road. Lewis survived and several hours
later regained consciousness and went to a nearby house for help. The
occupants contacted the police and Lewis collapsed and waited for the
officers to arrive.
As Henyard and Smalls drove away
from the scene of the shooting, the Lewis girls were repeatedly asking
for their mother. Henyard pulled the car over after a short period of
time had passed and removed the girls from the car. Henyard and Smalls
took the girls further off the road and killed both Jamilya and Jasmine
with a single bullet to the head. Henyard and Smalls then threw their
bodies into some underbrush over a fence.
Smalls, Henyard, and a third
individual arrived at the home of Bryant Smith in a blue car. Henyard
proceeded to boast about raping Lewis and about her subsequent murder.
He also showed Smith the gun that was used. Later in the evening,
Henyard went by the Smalls’ residence where Colinda Smalls, Alfonza’s
sister, noticed blood on hands of Henyard. He explained the blood as a
minor knife accident. On January 31st, the next day, Henyard
was driven to the Smalls’ residence by his “auntie”, Linda Miller
because he said he needed to speak with Smalls.
Henyard made a trip to the
Eustis Police Department that same Sunday claiming to have information
concerning the Lewis case. He offered that he knew what events
transpired because he was present at the scene of the crime. Henyard’s
initial story pointed to Smalls and another individual as the
perpetrators; however, when an officer noticed blood spots on Henyard’s
socks, he admitted to the abduction, rape, and shooting of Lewis, yet
maintained that he did not shoot the Lewis girls. The police
apprehended Smalls and discovered the murder weapon after a search of
his bedroom.
The autopsies of the girls
confirmed that they were killed by a single gunshot wound at close range
and also that Jasmine’s eyes were open when she was shot. Analysis of
the blood spots indicated that Henyard was less than four feet from the
victims when they were shot.
Codefendant Information:
Alfonza Smalls was sentenced to
eight consecutive life sentences for the abduction, rape, and murders
that took place on January 30, 1993.
Trial Summary:
02/16/93 Defendant
indicted with the following:
Count I: Kidnapping while armed
Count II: Kidnapping while armed
Count III: Kidnapping while armed
Count IV: Sexual Battery while armed
Count VI: Attempted First-Degree Murder
Count VII: Robbery with a firearm
Count VIII: First-Degree Murder
Count IX: First-Degree Murder
06/03/94 Defendant was
found guilty by the trial jury on all counts
06/03/94 The jury
recommended Death for both counts by a vote of 12 to 0
08/19/94 Defendant was
sentenced as follows:
Count I: Kidnapping while armed-
life sentence
Count II: Kidnapping while armed – life sentence
Count III: Kidnapping while armed – life sentence
Count IV: Sexual Battery while armed – life sentence
Count VI: Attempted First-Degree Murder – life sentence
Count VII: Robbery with a firearm – life sentence
Count VIII: First-Degree Murder – Death
Count IX: First-Degree Murder – Death
*Please note, sentences are to
run consecutively
Case Information:
A Direct Appeal was filed with
the Florida Supreme Court on 09/06/94. The Florida Supreme Court
considered a nonstatutory mitigating factor and accorded “little weight”
to the fact that the defendant functions is of low intelligence and
functions at the emotional level of a 13-year-old. Issues that were
raised included whether the trial court erred in not granting Henyard’s
motion for a change in venue; whether the trial court erred when it
granted the state’s challenge for cause of one prospective juror; and
whether the trial court erred in denying the motions to suppress his
statement to the police because the interrogating officers failed to
honor Henyard’s request to cease questioning in violation of his right
to remain silent.
The Florida Supreme Court found all of the claims
either without merit or harmless and affirmed the conviction and
sentence of death on 12/19/96.
A Petition for Writ of
Certiorari was filed on 06/09/97 and denied on 10/06/97.
A 3.850 Motion was filed with
the Circuit Court on 08/05/98 and was denied on 12/16/98.
A 3.850 Motion Appeal was filed
with the Florida Supreme Court on 01/25/99 and was voluntarily dismissed
on 06/07/99. Issues that were raised included whether counsel provided
ineffective assistance during both the guilt phase and the penalty
phase. The Florida Supreme Court subsequently denied all the claims.
A 3.850 Motion Appeal was filed
with the Florida Supreme Court on 05/10/02, citing allegations of
ineffective assistance of counsel. The FSC affirmed the denial of the
3.850 Motion on 05/27/04.
A Petition for Writ of Habeas
Corpus was filed with the Florida Supreme Court on 12/05/02, citing
allegations of ineffective assistance of counsel, Ring
violations, and incompetency. The FSC denied the Petition on
05/27/04.
A Petition for Writ of Habeas
Corpus was filed with the U.S. District Court, Middle District, on
12/20/04 that was denied on 08/02/05.
A 3.851 Motion was filed with
the Circuit Court on 04/14/05 and amended on 05/05/05. On 06/21/05, the
motion was denied.
A 3.851 Motion Appeal was filed
with the Florida Supreme Court on 07/27/05, and on 04/11/06, the FSC
affirmed the denial of the motion.
A Petition for Writ of Habeas
Corpus Appeal was filed with the U.S. Court of Appeals, 11th
Circuit on 09/02/05. On 08/11/06, the USCA affirmed the denial of the
petition.
Lake killer of 2 girls executed; also raped
and shot the children's mom
By Stephen Hudak - Orlando Sentinel
September 24, 2008
STARKE - Lake County child killer Richard Henyard
lived two hours and six minutes longer than scheduled. But in the
end Tuesday he died a more peaceful death than his victims, 7-year-old
Jamilya Lewis and her 3-year-old sister, Jasmine. Terrified after
their mother, Dorothy Lewis, was shot, raped and left for dead Jan.
30, 1993, the girls died after being shot in the head at close range.
Gov. Charlie Crist held up the execution by
lethal injection while awaiting a decision from the U.S. Supreme
Court on a last-ditch appeal. After word came that the appeal had
been denied, Henyard, 34, of Eustis was asked if he had any last
words. "No, sir," he said. He was pronounced dead at 8:16 p.m.
"Taking the life of Mr. Henyard is not going to
revive my daughters," Dorothy Lewis, who did not attend the
execution at Florida State Prison, said in a statement read by her
husband, Hugh Brockington. "I do not consider this event as a joyous
occasion, and I am sorry that this execution had to take place. But
Romans 6:23 clearly states, 'The wages of sin is death . . . I pray
that Mr. Henyard had enough sense to ask God to forgive him of his
sins."
Henyard's lips moved for two minutes after the
lethal mixture of chemicals was administered. Gretl Plessinger,
spokeswoman for the state Department of Corrections, said she
assumed Henyard was praying because his spiritual adviser, a Muslim
cleric from Jacksonville, had inquired about the procedure earlier
in the day. Henyard had become a Muslim while in prison, Plessinger
said.
He was 18 when he and a 14-year-old accomplice,
Alfonza Smalls, carjacked and kidnapped Lewis and her daughters from
the parking lot of the Winn-Dixie in Eustis. Lewis and her girls had
gone to shop for ingredients to make a strawberry-pretzel salad for
a church picnic.
Henyard, who had stolen the gun that Smalls
carried in his waistband, wanted a car to drive to a dance club in
Orlando and then to visit his father in Pahokee. He and Smalls drove
the mother, now 51, and her frightened children to Hicks Ditch Road,
where the two teens took turns raping Lewis on the trunk of the car
in view of her daughters. Henyard then suddenly shot the mother. She
was shot four times -- once in the middle of the forehead. Lewis
quietly prayed to Jesus, but Henyard said: "This ain't Jesus; this
is Satan."
As Circuit Judge Mark Hill wrote in an order
denying Henyard a new hearing, "Miraculously, for there is no better
word to describe it, Ms. Lewis survived and when she gained
consciousness several hours later, [she] dragged herself to a house
for help . . . Meanwhile, Henyard and Smalls continued on their
nightmarish joy ride with the children in the back seat. The little
girls were crying and calling out for their mommy."
Both children were shot in the head by someone
who stood less than four feet away and faced them. Jasmine's eyes
were wide open when she was shot, a forensic examination showed.
Henyard has denied shooting them. Smalls, ineligible for the death
penalty because of his age at the time of the murders, is serving
eight consecutive life sentences in prison. Henyard's appellate
lawyers argued that Smalls has boasted he was the killer. But
prosecutors contend Henyard shot the girls.
In his failed, final-day appeal -- a hand-written,
civil-rights complaint filed in federal court in Jacksonville --
Henyard assailed the state's lethal-injection protocol, arguing that
the lack of training and absence of medical personnel in the
execution "will likely cause me to suffer cruel and unusual
punishment." The delay in carrying out the sentence was believed to
be the longest at the last minute without a stay being granted.
During the wait, he was taken back to his death-watch cell and told
that the Supreme Court was considering his case. "He was praying, he
was deep in thought," Plessinger said.
When the time finally came, he lay on a gurney,
arms spread apart, with only his head and left arm visible to 28
witnesses including 10 media members, Brockington -- who serves as
co-pastor with his wife at a Marion County church -- and Eustis
Deputy Police Chief R.A. Robinson. Brockington thanked law
enforcement and the Eustis Police Department in particular, noting
that the agency has remained close to Lewis' family through the long
ordeal.
The execution attracted 70 death-penalty
protesters, said Mark Elliott, executive director of the Floridians
for Alternatives to the Death Penalty. Henyard's godmother,
Jacquelyn Turner of Mount Dora, who visited him Friday, broke down
when told Henyard was dead. "He's out of his misery," she said
through tears.
Henyard's final meal consisted of two fried-chicken
breasts, turkey sausage, fried rice, prison-made chocolate-chip
cookies and Coca-Cola. He ate most of it, Plessinger said.
Florida executes child killer Richard Henyard
NewsPress.com
September 23, 2008
9:12 p.m. update
STARKE -- A Florida man convicted of shooting two
young sisters in the head after raping and shooting their mother was
executed Tuesday after a two-hour delay while authorities awaited
final rulings from the U.S. Supreme Court.
Richard "Ric Ric" Henyard, 34, was pronounced dead
at 8:16 p.m. He had been condemned for the death of 7-year-old Jamilya
Lewis and her 3-year-old sister, Jasmine.
The execution had been scheduled for 6 p.m. but did
not start until 8:06 p.m. The doctor pronounced him dead 10 minutes
later.
Henyard kept his eyes closed and appeared to be
mouthing some words as the execution began, but he declined to make
any final statement.
He appeared to be shaking and having a hard time
breathing after the lethal injection was administered, and stopped
moving a minute later.
The execution was the second under Gov. Charlie
Crist.
Henyard and a younger accomplice carjacked Dorothy
Lewis and her daughters outside a grocery store in the central Florida
town of Eustis on the night of Jan. 30, 1993. Henyard, then 18, raped
Lewis and then shot her multiple times at close range, but she
survived. He then participated in the shooting deaths of her daughters
after they cried out for their mother.
Henyard ate most of his last meal - two fried
chicken breasts, turkey sausage, fried rice, chocolate chip cookies
and a Coke, said Gretl Plessinger, a spokeswoman for the Florida
Department of Corrections.
In his 15 years on death row, Henyard only had one
visitor. His godmother, Jacqueline Turner of Eustis, first visited him
Friday but did not visit him as scheduled Tuesday, Plessinger said.
Instead, a Muslim cleric visited Henyard.
Lewis, who talks about her ordeal as a pastor and
motivational speaker in the Ocala area, has not responded to e-mails
or telephone calls seeking comment on Henyard's pending execution.
"Today, I can truly say that I am no longer a
victim, but I am victorious through the love of God," Lewis, now 51,
wrote.on a Web site.
Lewis and her daughters had gone to a Winn-Dixie
about 10 p.m. when they were carjacked by Henyard and 14-year-old
Alfonza Smalls.
Smalls repeatedly demanded that Lewis "shut the
girls up" because they were crying.
At one point, Lewis beseeched Jesus for help and
Henyard replied, "This ain't Jesus, this is Satan."
Henyard and Smalls raped Lewis before Henyard shot
her in the leg, neck, mouth and between the eyes. She was rolled off
the side of the road and left for dead.
As they were driven away by Henyard and Smalls, the
girls yelled: "I want my Mommy! Mommy, Mommy!"
A short time later, the girls were taken from the
car and killed with gunshot wounds to the head.
The day after the shooting, Henyard went to the
Eustis Police Department and initially told a story implicating Smalls
and another man. When police noticed bloodstains on his sock, he
admitted helping abduct Lewis and her children. He also said he raped
her and shot her. He said that he was present when the children were
shot, but that he did not shoot them.
The Florida Supreme Court rejected all of Henyard's
appeals Sept. 10, including his claim that Smalls was the shooter. The
U.S. Supreme Court also denied two appeals filed last week.
A handwritten civil rights appeal filed by Henyard
in federal court in Jacksonville was denied Tuesday. The appeal
alleged the state's execution team lacks training and could cause a
painful death if the IVs aren't properly inserted. That was the case
during the December 2006 execution of Angel Diaz, who took more than
twice as long as normal to die, triggering a moratorium that ended
this year with new procedures for lethal injection.
The ruling was appealed to the U.S. 11th Circuit
Court of Appeals, which affirmed the lower court's decision and denied
a stay of execution.
Small was too young to face execution. He was
sentenced to eight consecutive life sentences for the kidnapping, rape
and murders.
Florida has executed 65 inmates since the execution
of John Spenkelink in 1979, 21 by lethal injection and 44 by the
electric chair. Pedophile Mark Dean Schwab was executed July 1 for the
1991 slaying of 11-year-old Junny Rios-Martinez.
There are 387 men and one woman on Florida's death
row, and Crist has said he wants to begin executing those who
committed the most heinous crimes after they complete their appeals.
8:11 p.m. update
STARKE — The execution of a man convicted of
shooting two young sisters in the head after raping and shooting their
mother will proceed, now that the U.S. Supreme Court has denied
requests for a stay.
Authorities delayed starting 34-year-old Richard
Henyard’s execution Tuesday while waiting for the final court rulings.
The execution had been scheduled to begin at 6 p.m.
at Florida State Prison. Preparations for the execution began nearly
two hours later.
Henyard had been condemned for the death of 7-year-old
Jamilya Lewis and her 3-year-old sister, Jasmine.
The slayings occurred in January 1993 when Henyard
and a 14-year-old accomplice carjacked Dorothy Lewis and her daughters
outside a grocery store in the central Florida town of Eustis.
7:24 p.m. update
Authorities were waiting Tuesday for a final court
ruling before beginning the execution of 34-year-old Richard Henyard.
The execution had been scheduled to begin at 6 p.m.
at Florida State Prison. It had not begun almost an hour later.
Henyard had been condemned for the death of 7-year-old
Jamilya Lewis and her 3-year-old sister, Jasmine.
The slayings occurred in January 1993 when Henyard
and a 14-year-old accomplice carjacked Dorothy Lewis and her daughters
outside a grocery store in the central Florida town of Eustis.
4:43 p.m. update
STARKE — A man convicted of shooting two young
sisters in the head after raping and shooting their mother is facing
execution today, the second under Gov. Charlie Crist.
Unless a court intervenes, Richard "Ric Ric"
Henyard, 34, will be executed by lethal injection at 6 p.m. at Florida
State Prison for the murders of 7-year-old Jamilya Lewis and her 3-year-old
sister, Jasmine.
Henyard and a younger accomplice carjacked Dorothy
Lewis and her daughters outside a grocery store in the central Florida
town of Eustis on the night of Jan. 30, 1993. Henyard, then 18, raped
Lewis and then shot her multiple times at close range, but she
survived. He then participated in the shootings of her daughters after
they cried out for their mother.
Mark Gruber, one of Henyard's state-paid attorneys,
filed two appeals to the U.S. Supreme Court last week and filed a
final brief Tuesday morning, hoping to postpone the execution.
A handwritten civil rights appeal filed by Henyard
in federal court in Jacksonville was denied. The appeal alleged the
state's execution team lacks training and could cause a painful death
if the IVs aren't properly inserted. That was the case during the
December 2006 execution of Angel Diaz. Diaz took more than twice as
long as normal to die, triggering a moratorium that ended this year
with new procedures for lethal injection.
U.S. District Judge Timothy Corrigan appointed
Henyard a lawyer to press his appeal of the ruling in the U.S. 11th
Circuit Court of Appeals. He also denied Henyard's request to stay the
execution.
There are 387 men and one woman on Florida's death
row, and Crist has said he wants to begin executing those who
committed the most heinous crimes after they complete their appeals.
Henyard ate most of his last meal - two fried
chicken breasts, turkey sausage, fried rice, chocolate chip cookies
and a Coke, said Gretl Plessinger, a spokeswoman for the Florida
Department of Corrections.
In his 15 years on death row, Henyard only had one
visitor. His godmother, Jacqueline Turner of Eustis, first visited him
Friday but did not appear for a scheduled visit Tuesday, Plessinger
said. Instead, a Muslim cleric visited Henyard.
Lewis, who talks about her ordeal as a pastor and
motivational speaker in the Ocala area, has not responded to e-mails
or telephone calls seeking comment on Henyard's pending execution.
"Today, I can truly say that I am no longer a
victim, but I am victorious through the love of God," Lewis, now 51,
wrote on a Web site.
Lewis and her daughters had gone to a Winn-Dixie
about 10 p.m. when they were carjacked by Henyard and 14-year-old
Alfonza Smalls.
Smalls repeatedly demanded that Lewis "shut the
girls up" because they were crying.
At one point, Lewis beseeched Jesus for help and
Henyard replied, "This ain't Jesus, this is Satan."
Henyard and Smalls raped Lewis before Henyard shot
her in the leg, neck, mouth and between the eyes. She was rolled off
the side of the road and left for dead.
As they were driven away by Henyard and Smalls, the
girls yelled: "I want my Mommy! Mommy, Mommy!"
A short time later, the girls were taken from the
car and killed with gunshot wounds to the head.
The day after the shooting, Henyard went to the
Eustis Police Department and initially told a story implicating Smalls
and another man. When police noticed bloodstains on his sock, he
admitted helping abduct Lewis and her children. He also said he raped
her and shot her. He said that he was present when the children were
shot, but that he did not shoot them.
The Florida Supreme Court rejected all of Henyard's
appeals Sept. 10, including his claim that Smalls was the shooter.
Small was too young to face execution. He was
sentenced to eight consecutive life sentences for the kidnapping, rape
and murders.
Florida executes man who killed 2 sisters
Gainesville.com
Associated Press - September 23, 2008
STARKE, Fla.- A Florida man convicted of shooting
two young sisters in the head after raping and shooting their mother
was executed Tuesday after a two-hour delay while authorities
awaited final rulings from the U.S. Supreme Court.
Richard "Ric Ric" Henyard, 34, was pronounced
dead at 8:16 p.m. He had been condemned for the death of 7-year-old
Jamilya Lewis and her 3-year-old sister, Jasmine. The execution had
been scheduled for 6 p.m. but did not start until 8:06 p.m. The
doctor pronounced him dead 10 minutes later.
Henyard kept his eyes closed and appeared to be
mouthing some words as the execution began, but he declined to make
any final statement. He appeared to be shaking and having a hard
time breathing after the lethal injection was administered, and
stopped moving a minute later. The execution was the second under
Gov. Charlie Crist.
Dorothy Lewis, the mother of the murdered girls,
wrote in a prepared statement read by her husband that she still
does "not have a feeling of resolution." "This day has not brought
any closure to my life," her husband, Hugh Brockington read. "Taking
the life of Mr. Henyard is not going to revive my daughters."
Henyard and a younger accomplice carjacked Lewis
and her daughters outside a grocery store in the Central Florida
town of Eustis on the night of Jan. 30, 1993. Henyard, then 18,
raped Lewis and then shot her multiple times at close range, but she
survived. He then participated in the shooting deaths of her
daughters after they cried out for their mother.
Henyard ate most of his last meal — two fried
chicken breasts, turkey sausage, fried rice, chocolate chip cookies
and a Coke, said Gretl Plessinger, a spokeswoman for the Florida
Department of Corrections.
In his 15 years on death row, Henyard only had
one visitor. His godmother, Jacqueline Turner of Eustis, first
visited him Friday but did not visit him as scheduled Tuesday,
Plessinger said. Instead, a Muslim cleric visited Henyard. "I pray
that Mr. Henyard had sense enough to ask God to forgive him,"
Brockington read. "The question I would like to ask Mr. Henyard is,
'Why did you kill my babies? You shot them down like they were wild
animals. Why?'"
Lewis, who talks about her ordeal as a pastor and
motivational speaker in the Ocala area, did not responded to e-mails
or telephone calls seeking comment before Henyard's execution. "Today,
I can truly say that I am no longer a victim, but I am victorious
through the love of God," Lewis, now 51, wrote on a Web site,
www.prayerforsexualtrauma.org.
Lewis and her daughters had gone to a Winn-Dixie
about 10 p.m. when they were carjacked by Henyard and 14-year-old
Alfonza Smalls. Smalls repeatedly demanded that Lewis "shut the
girls up" because they were crying. At one point, Lewis beseeched
Jesus for help and Henyard replied, "This ain't Jesus, this is Satan."
Henyard and Smalls raped Lewis before Henyard
shot her in the leg, neck, mouth and between the eyes. She was
rolled off the side of the road and left for dead. As they were
driven away by Henyard and Smalls, the girls yelled: "I want my
Mommy! Mommy, Mommy!" A short time later, the girls were taken from
the car and killed with gunshot wounds to the head.
The day after the shooting, Henyard went to the
Eustis Police Department and initially told a story implicating
Smalls and another man. When police noticed bloodstains on his sock,
he admitted helping abduct Lewis and her children. He also said he
raped her and shot her. He said that he was present when the
children were shot, but that he did not shoot them.
The Florida Supreme Court rejected all of
Henyard's appeals Sept. 10, including his claim that Smalls was the
shooter. The U.S. Supreme Court also denied two appeals filed last
week.
A handwritten civil rights appeal filed by
Henyard in federal court in Jacksonville was denied Tuesday. The
appeal alleged the state's execution team lacks training and could
cause a painful death if the IVs aren't properly inserted. That was
the case during the December 2006 execution of Angel Diaz, who took
more than twice as long as normal to die, triggering a moratorium
that ended this year with new procedures for lethal injection. The
ruling was appealed to the U.S. 11th Circuit Court of Appeals, which
affirmed the lower court's decision and denied a stay of execution.
Small was too young to face execution. He was
sentenced to eight consecutive life sentences for the kidnapping,
rape and murders.
Florida has executed 65 inmates since the
execution of John Spenkelink in 1979, 21 by lethal injection and 44
by the electric chair. Pedophile Mark Dean Schwab was executed July
1 for the 1991 slaying of 11-year-old Junny Rios-Martinez. There are
387 men and one woman on Florida's death row, and Crist has said he
wants to begin executing those who committed the most heinous crimes
after they complete their appeals.
ProDeathPenalty.com
In June 1994, a jury in the Circuit Court of Lake
County, Florida, convicted Richard 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 record reflects that one evening in January,
1993, eighteen-year-old Richard Henyard stayed at the home of a
family friend and stole a gun that belonged to the man. Several
friends of Henyard's testified they had seen him with a gun after
that date. He showed one friend 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.
A woman testified that around 10 p.m. on January
30, she 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. The woman 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. Dorothy Lewis and her daughters, Jasmine,
age 3, and Jamilya, age 7, drove to the Winn Dixie store. Dorothy
noticed a few people sitting on a bench near the doors as she and
her daughters entered the store. When she 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, Dorothy noticed Alfonza
Smalls coming towards her. As Smalls approached, he pulled up his
shirt and revealed a gun in his waistband. Smalls ordered Dorothy
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 their mother “shut the girls up.”
As they continued to drive out of town, Dorothy
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 Dorothy out of the car. Henyard raped Dorothy
Lewis on the trunk of the car while her daughters remained in the
back seat of the car. Dorothy 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
Dorothy 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 Dorothy’s
unconscious body off to the side of the road, and got back into the
car. The last thing Dorothy remembers before losing consciousness is
a gun aimed at her face.
Miraculously, Dorothy survived and, upon
regaining consciousness a few hours later, made her way to a nearby
house for help. The occupants called the police and Dorothy, 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 Dorothy Lewis. The day after the
crimes, Henyard went to the Eustis police and told them a story
blaming the crime on Smalls and another man. When detectives noticed
bloodstains on his sock, he admitted that he helped abduct Dorothy
and her daughters, and that he raped and shot Dorothy. He told
police that he was there when the girls were killed but that he did
not shoot them. Smalls was 14 years old at the time of the crimes
and could not be sentenced to death. He received 8 consecutive life
sentences for the kidnappings, rape and murders.
Today, Dorothy Lewis is a pastor and motivational
speaker, and speaks about her ordeal. On a web site, she says, "Today
I can truly say that I am no longer a victim, but I am victorious
through the love of God."
Richard Henyard (June 26, 1974 – September
23, 2008) was an American murderer on death row in Florida, USA,
convicted for the double murder of 7-year-old Jamilya Lewis and 3-year-old
Jasmine Lewis in January 1993 in Eustis, and the rape of the sisters'
mother during the same day.
Henyard was sentenced to death on August 19,
1994, and had been in lockdown. Henyard's death warrant was signed
on June 9, 2008. Henyard was the 66th execution in the state since
the death penalty was reinstated in the United States in 1976.
Henyard was executed on September 23, 2008, by
lethal injection. The execution was delayed by two hours as Henyard
had two appeals before the U.S. Supreme Court trying to block the
execution; both were denied.
Crime
On the evening of January 30, 1993, Dorothy Lewis
and her daughters arrived at the Winn-Dixie. As Lewis, the eventual
survivor, and her daughters, the victims, were entering the Winn-Dixie,
she noticed a few people sitting on a bench near the doors. After
Lewis exited the store with Jamilya, age 7, and Jasmine, age 3, she
walked to her car and proceeded to place her daughters in the front
passenger seat.
As Lewis crossed the rear of the car to get to
the driver’s side, she noticed Alfonza Smalls approaching her. As
Smalls neared, he revealed a gun tucked into his waistband. Lewis
and her daughters were ordered into the back of the car as Smalls
and Henyard entered the front. The Lewis car left town with Henyard
driving and Smalls issuing directions. Prior to the abduction of
Lewis and her daughters, a female witness observed Henyard and
Smalls loitering outside of the Winn-Dixie.
During the drive, Smalls repeatedly demanded that
Lewis keep her daughters quiet since they were crying and upset.
Later, Henyard pulled the car over at a remote area and pulled Lewis
from the car. Henyard forced Lewis against the trunk and raped her.
Smalls then raped Ms. Lewis. Henyard told Lewis to sit on the ground.
She hesitated, and Heynard shot her in the leg and forced her to the
ground. She was also shot by Henyard three more times at close range
and was wounded in the mouth, neck, and on the forehead between the
eyes. After she was unconscious, Henyard and Smalls rolled her over
to the shoulder of the road. Lewis survived and several hours later
regained consciousness and went to a nearby house for help.
The occupants contacted the police and Lewis
collapsed and waited for the officers to arrive. As Henyard and
Smalls drove away from the scene of the shooting, Jamilya and
Jasmine Lewis repeatedly asked for their mother. Henyard pulled the
car over after a short period of time and removed the girls from the
car. Henyard and Smalls took the girls away from the road, out of
the clear view of passers by, and killed both Jamilya and Jasmine
with a single bullet to the head.
Henyard and Smalls then threw their bodies into
some brush over a fence. Smalls, Henyard, and a third individual
arrived at the home of Bryant Smith in a blue car. Henyard proceeded
to boast about raping Lewis and about her subsequent murder. He also
showed Smith the gun that was used. Later in the evening, Henyard
went by the Smalls’ residence where Colinda Smalls, Alfonza’s sister,
noticed blood on Henyard's hands. He explained that the blood was
from a minor knife accident.
On January 31, the next day, Henyard's Aunt,
Linda Miller, agreed to drive Henyard to Small's residence so that
Henyard could speak with Smalls. Henyard made a trip to the Eustis
Police Department that same Sunday claiming to have information
concerning the Lewis case. He offered knowledge of the crime, and
claimed that he was present at the scene of the crime. Henyard’s
initial story pointed to Smalls and another individual as the
perpetrators. However, when an officer noticed blood spots on
Henyard’s socks, he admitted to the abduction, rape, and shooting of
Lewis, yet maintained that he did not shoot the Lewis girls.
The police apprehended Smalls and discovered the
murder weapon after a search of his bedroom. The autopsies of the
girls confirmed that they were killed by a single gunshot wound at
close range and that Jasmine’s eyes were open when she was shot.
Analysis of the blood spots indicated that Henyard was less than
four feet from the victims when they were shot.
Post mortem of victims
The autopsies of Jasmine and Jamilya Lewis showed
that both girls died of gunshot wounds to the head and were shot at
very close range. Powder stippling around Jasmine’s left eye, the
site of her mortal wound, indicated that her eyes were 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.
Wikipedia.org
Henyard v. State, 689 So.2d 239 (Fla.
1996) (Direct Appeal).
Defendant was convicted in the Circuit Court,
Lake County, Mark Hill, J., of sexual battery, kidnapping, and
murder. Defendant appealed. The Supreme Court held that: (1) trial
court did not abuse its discretion in denying motions for change of
venue; (2) trial court's error in instructing prospective jurors
during voir dire was harmless; (3) one victim's statements to police
officer were admissible under excited utterance hearsay exception;
and (4) evidence was sufficient to support death sentence. Affirmed.
PER CURIAM.
We have on appeal the judgment and sentence of
the trial court imposing the death penalty upon Richard Henyard. We
have jurisdiction, art. V, § 3(b)(1), Fla. Const., and affirm the
convictions and sentence.
FACTS
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*243 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.
Later that evening, Bryant Smith, a friend of
Smalls, was at his home when Smalls, Henyard, and another individual
appeared in a blue car. Henyard bragged about the rape, showed the
gun to Smith, and said he had to “burn the bitch” because she tried
to go for his gun. Shortly before midnight, Henyard also stopped at
the Smalls' house. While he was there, Colinda Smalls, Alfonza's
sister, noticed blood on his hands. When she asked Henyard about the
blood, he explained that he had cut himself with a knife. The
following morning, Sunday, January 31, Henyard had his “auntie,”
Linda Miller,FN1 drive him to the Smalls' home because he wanted to
talk with Alfonza Smalls. Colinda Smalls saw Henyard shaking his
finger at Smalls while they spoke, but she did not overhear their
conversation. FN1. Linda Miller is not actually Richard Henyard's
aunt.
That same Sunday, Henyard went to the Eustis
Police Department and asked to talk to the police about the Lewis
case. He indicated that he was present at the scene and knew what
happened. Initially, Henyard told a story implicating Alfonza Smalls
and another individual, Emmanuel Yon. However, after one of the
officers noticed blood stains on his socks, Henyard eventually
admitted that he helped abduct Ms. Lewis and her children, raped and
shot her, and was present when the children were killed. Henyard
continuously denied, however, that he shot the Lewis girls. After
being implicated by Henyard, Smalls was also taken into custody. The
gun used to shoot Ms. Lewis, Jasmine and Jamilya was discovered
during a subsequent search of Smalls' bedroom.
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 was found guilty by the jury of three
counts of armed kidnapping in violation of section 787.01, Florida
Statutes (1995), one count of sexual battery with the use of a
firearm in violation of section 794.011(3), Florida Statutes (1995),
one count of attempted first-degree murder in violation of sections
782.04(1)(a)(1) and 777.04(1), Florida Statutes (1995), one count of
robbery with a firearm in violation of section 812.13(2)(a), Florida
Statutes (1995), and two counts of first-degree murder in violation
of section 782.04(1)(a), Florida Statutes (1995).
After a penalty phase hearing, the jury
recommended the death sentence for each murder by a vote of 12 to 0.
The trial court followed this recommendation and sentenced Henyard
to death. The court found in aggravation: (1) the defendant had been
convicted of a prior violent felony, see section 921.141(5)(b); (2)
the murder was committed in the course of a felony, see section
921.141(5)(d); (3) the murder was committed for pecuniary gain, see
section 921.141(5)(f) and, (4) the murder was especially heinous,
atrocious or cruel, see section 921.141(5)(h).
The court found Henyard's age of eighteen at the
time of the crime as a statutory mitigating circumstance, see
section 921.141(6)(g), and accorded it “some weight.” The trial
court also found that the defendant was acting under an extreme
emotional disturbance and his capacity to conform his conduct to the
requirements of law was impaired,FN2 see section 921.141(6)(b), (f),
and accorded these mental mitigators “very little weight.” As for
nonstatutory mitigating circumstances, the trial court found the
following circumstances but accorded them “little weight”: (1) the
defendant functions at the emotional level of a thirteen year old
and is of low intelligence; (2) the defendant had an impoverished
upbringing; (3) the defendant was born into a dysfunctional family;
(4) the defendant can adjust to prison life; and (5) the defendant
could have received eight consecutive life sentences with a minimum
mandatory fifty years. Finally, the trial court accorded “some
weight” to the nonstatutory mitigating circumstance that Henyard's
codefendant, Alfonza Smalls, could not receive the death penalty as
a matter of law.FN3 The court concluded that the mitigating
circumstances did not offset the aggravating circumstances.
FN2. In its sentencing order, the trial court
incorrectly characterized these “mental mitigators” as nonstatutory
mitigating circumstances.
FN3. In Allen v. State, 636 So.2d 494 (Fla.1994),
we held that the death penalty is either cruel or unusual punishment
under article I, section 17 of the Florida Constitution if imposed
upon a person who is under the age of sixteen when he or she commits
a capital crime. Id. at 497. Because Alfonza Smalls was fourteen
years of age at the time of the offense, he is ineligible to receive
the death penalty as a matter of law.
* * *
Admissibility of Henyard's Confession
Next, Henyard argues that his right against self-incrimination
under article I, section 9 of the Florida Constitution was violated
during his interrogation at the Eustis Police Department when he
indicated to the officers his desire to terminate questioning.
Because the officers failed to terminate the interrogation or
clarify his requests to cease questioning, Henyard maintains that
the trial court erred in admitting his first confession against him
at trial.FN7
FN7. Henyard made three, independent confessions
to law enforcement officers on the day after the Lewis children were
murdered. At the suppression hearing, the trial court deemed all
three of Henyard's statements to be admissible against him, but only
Henyard's initial confession was admitted against him at trial.
Henyard contends that all three confessions were obtained in
violation of his right to remain silent, and urges us to address the
trial court's alleged error in finding his second and third
statements to be admissible, even though he was not prejudiced by
the ruling. Because we affirm his convictions and sentences, we
decline to address whether the trial court erred in finding
admissible Henyard's last two statements which the state did not
offer into evidence at trial.
In Owen v. State, 560 So.2d 207 (Fla.), cert.
denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990), we
reversed a defendant's convictions, concluding that his statements
were erroneously admitted into evidence contrary to Miranda and that
his confession was the “essence” of the state's case against him. Id.
at 211. During his interrogation, Owen never requested counsel, but
expressly stated: “I'd rather not talk about it.” Id. Subsequently,
we held in Traylor v. State, 596 So.2d 957 (Fla.1992), that a
suspect's request to cease interrogation is also protected under the
Florida Constitution. Thus, our decisions in Owen and Traylor give
effect to an individual's right to remain silent.
In this case, Henyard voluntarily went to the
Eustis Police Department to provide information about the murders of
the Lewis children. He saw Sergeant Wayne Perry in the parking lot
when he arrived, and immediately told him he had been present when
the children were killed but that he did not do it. Henyard
voluntarily accompanied Sergeant Perry inside the stationhouse where
the officers investigating the Lewis murders were advised that
Henyard had come to the police station with information about the
crime. Henyard talked with the investigating officers in an
interview room at the Eustis Police Department.
Initially, Henyard contends that the officers
should have ceased their interrogation of him when he asked how long
the questioning would last. He cites the following exchange: HENYARD:
Can I go home soon, man? OFFICER: Soon. You know how these federal
people are though. They're not like us local boys. .... HENYARD:
Excuse me, sir. How long [am] I gonna have to stay here? FBI AGENT:
Huh? HENYARD: How long do I have to stay here? FBI AGENT: Ah, just a
few more minutes.
We find that Henyard's queries do not constitute
even an equivocal indication that he wished to cease questioning.
See Moore v. Dugger, 856 F.2d 129 (11th Cir.1988)(holding
defendant's request during interrogation for information about when,
in the future, he would be allowed to leave was not attempt to
exercise right under Miranda to terminate questioning and remain
silent); see also Delap v. Dugger, 890 F.2d 285, 291-93 (11th
Cir.1989)(holding defendant's questions to interrogating officers
concerning how long it would be before he could go home did not
constitute equivocal invocation of Fifth Amendment right to
terminate questioning), cert. denied, 496 U.S. 929, 110 S.Ct. 2628,
110 L.Ed.2d 648 (1990).
Rather, Henyard asked for a time frame, inquiring
as to how long the questioning would take. Moreover, immediately
after this exchange, Henyard was provided with a written “ Miranda ”
form explaining his Fifth Amendment rights and was also orally
advised of his rights. When asked if he understood his rights,
Henyard not only indicated that he did, but he expressly waived them
and continued answering questions about his activities on the
preceding evening.
Henyard also asserts that he made a second
request to terminate the questioning. After the initial
interrogation, an FBI agent asked Henyard if he would be willing to
take a polygraph test. Henyard responded that he would not do so
without the presence of his aunt. When told that his aunt could be
contacted but she could not sit next to him during the test, he
refused to submit to the test. A discussion ensued concerning the
whereabouts of Henyard's “auntie” so that she could be contacted and
brought to the station for his support: FBI AGENT: After you talk to
her-Don't you want to resolve this right now? HENYARD: Yes, I do.
FBI AGENT: Okay, you just hang out here. What else you going to do?
You going to hang out at the Manors, you can hang out here, okay?
HENYARD: Huh? FBI AGENT:You just stay here a minute-you know, we
can't force you to stay here (Inaudible.) HENYARD: Take me to my
auntie's house. FBI AGENT:We're going to have your aunt come down
here. HENYARD: Ya'll (Inaudible.) FBI AGENT: Yeah, we're going to
have- HENYARD: Superbowl, man. I'm missing my game. FBI AGENT: Well,
it's 6:00. You've got a couple of [sic] three hours yet. I mean
you're equivocating [sic] a Superbowl to two kids, two innocent
children being killed?
In this instance, Henyard's request to be taken
“to his auntie's house” was made incidental to securing her presence
during the polygraph test, and as an aside from the interrogation.
Henyard's discussion with the officers at this point did not concern
his activities on the preceding evening or his involvement in the
offense, but rather focused on whether he would be willing to take a
polygraph test if his aunt could be with him at the police station.
In this context, and in light of Henyard's voluntary presence at the
police station for the purpose of disclosing information he had
concerning the offense, we find no error in the trial court's
conclusion that this discussion did not constitute a request to end
the interrogation. Cf. Delap; Moore.
Even assuming arguendo that Henyard's request to
be taken to his aunt's house was an equivocal invocation of his
right to terminate questioning, we find that any error in admitting
these statements did not contribute to the outcome in this case and
would be harmless beyond a reasonable doubt. State v. DiGuilio, 491
So.2d 1129 (Fla.1986). Unlike our decision in Owen where we
explained that “[e]ven though there was corroborating evidence,
Owen's statements were the essence of the case against him,” 560
So.2d at 211, Henyard's statements to police certainly were not the
“essence” of the state's case here.
Rather, the other evidence presented at trial of
Henyard's guilt was extensive and overwhelming, to include: (1) the
“motive” and “intent” testimony of several of Henyard's
acquaintances who, during the week preceding the offense, saw him
with the gun later shown to have killed the Lewis girls to the
exclusion of all others, and heard him brag that he was going to
steal a car, kill the owner, and put the victim in the trunk; (2)
the testimony of the surviving victim, Ms. Lewis, who identified
Henyard and Smalls, and detailed the sequence of events leading up
to her daughters' deaths; (3) DNA evidence establishing that Henyard
raped Ms. Lewis and had blood on his clothes that matched the blood
of Jasmine and Jamilya Lewis; (4) the gun found in a search of
Smalls' bedroom was the same one used to shoot Ms. Lewis and kill
the Lewis children; and (5) the testimony of several witnesses who
saw and heard Henyard implicate himself in the crime after its
commission.
Moreover, Henyard consistently denied any role in
killing the Lewis girls, and, at trial, Henyard's trial strategy was,
in essence, to concede his participation in the crimes except as to
the killing of the children. Hence, his statements were consistent
with this strategy.
* * *
The Admissibility of Ms. Lewis's Hearsay
Statements
Henyard contends that the trial court erred by
allowing a Eustis police officer to testify to statements Ms. Lewis
made to him under the excited utterance exception to the hearsay
rule because her statements were inadmissible hearsay. We again
disagree.
In order for a hearsay statement to be admissible
as an excited utterance under section 90.803(2), Florida Statutes
(1995) the statement: (1) must have been made regarding an event
startling enough to cause nervous excitement; (2) must have been
made before there was time to contrive or misrepresent; and (3) must
have been made while the person was under the stress or excitement
caused by the event. State v. Jano, 524 So.2d 660, 661 (Fla.1988).
While the length of time between the event and the statement is a
factor to be considered in determining whether the statement may be
admitted under the excited utterance exception, id. at 662, the
immediacy of the statement is not a statutory requirement. See §
90.803(2).
In the early morning hours of Sunday, January 31,
a Eustis police officer responded to a call for help concerning a
woman covered with blood who had collapsed on the front porch of a
home near Hicks Ditch Road. When the officer arrived, he found Ms.
Lewis, who was hysterical but coherent. At trial, the officer was
permitted to recount statements Ms. Lewis made to him on the front
porch immediately after his arrival.
The police officer testified that Ms. Lewis told
him she had been raped and shot, identified her assailants as two
young black males who fit the description of Henyard and Smalls, and
said they had taken her children. Given these circumstances, we find
that Ms. Lewis was still experiencing the trauma of the events she
had just survived when she spoke to the officer and her statements
were properly admitted under the excited utterance exception to the
hearsay rule.
Even assuming arguendo that Ms. Lewis's
statements were not properly admitted, we find the error harmless.
Ms. Lewis also testified at length at Henyard's trial, identifying
him as one of her assailants and describing the clothing he was
wearing when he abducted her and her children. Because the officer's
testimony concerning Ms. Lewis's statements was nothing more than a
generalization of specific information which Ms. Lewis testified to
at trial from her own personal knowledge, we find that any error in
allowing him to testify to Ms. Lewis's statements is harmless beyond
a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
The Admissibility of Penalty Phase Evidence
First, Henyard claims that the trial court erred
in allowing the state at the penalty phase to present evidence of
his prior juvenile adjudication for armed robbery with a weapon
which the trial court specifically relied on to find the prior
violent felony aggravating circumstance. See § 921.141(5)(b), Fla.
Stat. (1995).FN13 We agree.
FN13. Section 921.141(5) states:AGGRAVATING
CIRCUMSTANCES.-Aggravating circumstances shall be limited to the
following: ....(b) The defendant was previously convicted of another
capital felony or of a felony involving the use or threat of
violence to the person.
In Merck v. State, 664 So.2d 939 (Fla.1995), the
defendant was convicted of first-degree murder, and at his
sentencing trial the State introduced evidence of Merck's prior
juvenile adjudication in North Carolina for assault with a deadly
weapon. Id. at 943-44. The jury recommended death and the trial
court followed the recommendation, finding Merck's juvenile
adjudication to be an aggravating factor under section
921.141(5)(b). Id. at 941, 943. We reversed the death sentence and
explained:
[W]e agree with Merck that the juvenile
adjudication was not a conviction within the meaning of section
921.141(5)(b), Florida Statutes (1993). This is expressly mandated
in section 39.053, Florida Statutes (1993).... Despite correctly
sustaining the objection to the admissibility of the North Carolina
judgment, the trial court erred in stating in her sentencing order,
“This is also a proper aggravating factor under [section]
921.141(5)(b).” We find the inclusion of this juvenile adjudication
similar to the erroneous inclusion of community control as an
aggravating factor in Trotter v. State, 576 So.2d 691 (Fla.1990). As
noted in Trotter, penal statutes must be strictly construed in favor
of the one against whom a penalty is imposed. Id. at 694. We
therefore conclude as we did in Trotter, that a resentencing before
a jury is required.
... We acknowledge that there was other
substantial evidence to support the aggravating factor in section
921.141(5)(b). Nevertheless, from our review of the record we cannot
say that the dramatic testimony concerning the North Carolina
shooting did not taint the recommendation of the jury. Id. at 944.
As we indicated in Merck, section 39.053(4), Florida Statutes
(1995), expressly states: “Except as the term ‘conviction’ is used
in chapter 322, and except for use in a subsequent proceeding under
this chapter, an adjudication of delinquency by a court with respect
to any child who has committed a delinquent act or violation of law
shall not be deemed a conviction....”
Thus, Henyard's prior juvenile adjudication for
robbery with a weapon is not a “conviction” for a prior violent
felony. Consequently, in light of our recent decision in Merck, and
the plain language of section 921.141(5)(b), which requires that the
defendant be “previously convicted” of a violent felony for it to be
considered in aggravation, we find the trial court erred in relying
upon Henyard's juvenile adjudication for robbery to support the
prior violent felony aggravating factor.
Nevertheless, we reject Henyard's claim that the
trial court's improper consideration of Henyard's prior juvenile
adjudication as a violent felony entitles him to a new sentencing
hearing. Unlike the violent felony adjudication at issue in Merck,
the testimony concerning Henyard's juvenile adjudication was modest
and served to minimize his role in the prior offense. FN14 Moreover,
the record reflects without dispute the presence of six other
contemporaneous felony convictions of Henyard to support the prior
violent felony aggravator for each death sentence even absent
Henyard's juvenile adjudication for robbery with a weapon.FN15
Accordingly, we find the trial court's improper admission into
evidence and consideration of Henyard's juvenile adjudication for
robbery with a weapon to be harmless beyond a reasonable doubt.
State v. DiGuilio, 491 So.2d at 1129.
FN14. Henyard's court-appointed attorney in the
juvenile matter testified in pertinent part:The circumstances were
it was a strong armed robbery that had a weapon involved, as far as
like a broomstick, of a convenience store. And it was Larry Hayes
who was the one who actually accosted the lady and who threatened
her with the stick and grabbed the money. It was Mr. Henyard and
Columbus Connley who were out there by the door just as a lookout at
most. I thought Mr. Henyard was the least culpable of the three.
FN15. In conclusory fashion, Henyard argues that,
to the extent that the contemporaneous convictions are considered
under the prior violent felony aggravator, the trial court has
improperly doubled this aspect with the aggravating circumstance
that the murder was committed in the course of a kidnapping. See
Provence v. State, 337 So.2d 783, 786 (Fla.1976) (evidence used to
support two independent aggravating circumstances cannot refer to
the same aspect of defendant's crime), cert. denied, 431 U.S. 969,
97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977).
In this case, the trial court imposed death
sentences for the murders of both Jasmine and Jamilya Lewis. For
each death sentence, the trial court considered the contemporaneous
conviction for the kidnapping of the other sister under the prior
violent felony aggravating factor, and considered the victim's
kidnapping under the murder in the course of a felony aggravating
factor. See § 921.141(5)(d). That is, the trial court considered
different aspects of Henyard's crime in finding these two
aggravators for each murder. Thus, the presence of these aggravators
does not constitute improper doubling and Henyard's claim is without
merit.
Second, Henyard contends that the trial court
erred in allowing Ms. Lewis to testify during the penalty phase that
Henyard, upon hearing Ms. Lewis' prayers to Jesus, stated, “You
might as well stop calling Jesus, this ain't Jesus this is Satan.”
Henyard claims his statement is not relevant to prove the existence
of any aggravating circumstance. We disagree.
Under Florida law, the heinous, atrocious, or
cruel aggravating circumstance may be proven in part by evidence of
the infliction of “mental anguish” which the victim suffered prior
to the fatal shot. See, e.g., Preston v. State, 607 So.2d 404,
409-10 (Fla.1992); Phillips v. State, 476 So.2d 194, 196 (Fla.1985);
Routly v. State, 440 So.2d 1257, 1265-66 (Fla.1983), cert. denied,
468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984).
In this case, Ms. Lewis testified that she was
sitting in the back seat between her daughters, that her girls were
quiet at the time Henyard made the statement at issue, and that
Henyard spoke loudly enough for all to hear. Ms. Lewis explained
that neither child had trouble hearing and she believed her
daughters heard Henyard's statement. Thus, Henyard's statement,
which the trial court characterized as the “harbinger” of the
agonizing events to come, was relevant to show the mental anguish
inflicted upon the Lewis girls before they were killed, and as
evidence of the heinous, atrocious and cruel aggravating
circumstance. Consequently, we find that the trial court properly
admitted the statement into evidence during the penalty phase of
Henyard's trial.
Finally, Henyard claims the trial court erred in
admitting the testimony of a blood stain pattern analyst because it
was not relevant to prove the existence of any aggravating
circumstance. The analyst testified that, based on the blood
splatters found on Henyard's clothing, Henyard was approximately
four feet from Jamilya Lewis when she was shot.
In this case, Henyard offered evidence that he
was not the triggerman in these murders and argued that lingering
doubt as to whether he actually shot the Lewis girls should be
considered in mitigation. Consequently, the testimony of the State's
witness concerning blood-splatter evidence was proper to rebut
Henyard's continued assertion that he did not actually kill the
Lewis girls. Moreover, testimony concerning the close proximity of
the defendant to the victim was relevant to show the “nature of the
crime.” See § 921.141(1), Fla. Stat. (1995). Thus, we find that the
trial court did not abuse its discretion in allowing the blood stain
analyst to testify at the penalty phase of Henyard's trial.
The Pecuniary Gain and Heinous, Atrocious, or
Cruel Aggravating Factors
Henyard claims that the trial court erred in
finding the pecuniary gain aggravating circumstance in this case
because the evidence was insufficient to prove this aggravating
factor beyond a reasonable doubt. In Hardwick v. State, 521 So.2d
1071, 1076 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102
L.Ed.2d 154 (1988), we held that in order for the pecuniary gain
aggravating factor to be present, there must be proof beyond a
reasonable doubt that the murder was an “integral step in obtaining
some sought-after specific gain.”
Here, the trial court found that, during the week
preceding the murders, Henyard “stated he was going to get himself a
car,” and “foretold or bragged on Friday evening[,] January 29,
1993[,] that he would steal someone's car, kill the owner and use
the car to drive to Pahokee to see his father.” The following
evening, Henyard and his codefendant stole Ms. Lewis's car and
abducted the Lewis family, raped and attempted to murder Ms. Lewis,
and killed her children, Jasmine and Jamilya Lewis. Henyard's
admissions and the facts of this case support a finding that the
murders of Jasmine and Jamilya Lewis were “an integral step in
obtaining some sought after specific gain.” See Hardwick, 521 So.2d
at 1076.
Thus, the trial court did not err in finding the
pecuniary gain aggravating factor to be proved beyond a reasonable
doubt in this case. See also Gamble v. State, 659 So.2d 242 (Fla.1995)(pecuniary
gain aggravator found when codefendants stole victim's car after
murdering him), cert. denied, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d
860 (1996); Hall v. State, 614 So.2d 473 (Fla.) (pecuniary gain
aggravator found when victim was abducted, beaten, raped, and
murdered and car was stolen), cert. denied, 510 U.S. 834, 114 S.Ct.
109, 126 L.Ed.2d 74 (1993).
Second, Henyard contends that the trial court
erred in finding the heinous, atrocious, or cruel aggravating
circumstance in this case because each child was killed with a
single gunshot, and “if the victims were adults, heinous, atrocious,
[or] cruel would not be present on this record.” We disagree.
We have previously upheld the application of the
heinous, atrocious, or cruel aggravating factor based, in part, upon
the intentional infliction of substantial mental anguish upon the
victim. See, e.g., Routly v. State, 440 So.2d 1257, 1265 (Fla.1983),
and cases cited therein. Moreover, “[f]ear and emotional strain may
be considered as contributing to the heinous nature of the murder,
even where the victim's death was almost instantaneous.” Preston v.
State, 607 So.2d 404, 410 (Fla.1992), cert. denied, 507 U.S. 999,
113 S.Ct. 1619, 123 L.Ed.2d 178 (1993).
In this case, the trial court found the heinous,
atrocious or cruel aggravating factor to be present based upon the
entire sequence of events, including the fear and emotional trauma
the children suffered during the episode culminating in their deaths
and, contrary to Henyard's assertion, not merely because they were
young children.FN16 Thus, we find the trial court properly found
that the heinous, atrocious, or cruel aggravating factor was proved
beyond a reasonable doubt in this case.
FN16. The sentencing order reads in pertinent
part:After shooting Ms. Lewis, Henyard and Smalls rolled Ms. Lewis'
unconscious body off to the side of the road. Henyard got back into
Ms. Lewis' car and drove a short distance down the deserted road,
whereupon Henyard stopped the car.Jasmine and Jamilya, who had been
in continual close approximation and earshot of the rapes and
shooting of their mother, were continuing to plead for their mother;
“I want my Mommy,” “Mommy,” “Mommy.”After stopping the car, Henyard
got out of Ms. Lewis' vehicle and proceeded to lift Jasmine out of
the back seat of the car, Jamilya got out without help. Then both of
the pleading and sobbing sisters, were taken a short distance from
the car, where they were then executed, each with a single bullet to
the head.
The Proportionality of the Death Penalty
As his final claim, Henyard argues that his death
sentences are disproportionate to the sentence received by his
codefendant, Alfonza Smalls, and that the mitigating factors in his
case outweigh the aggravating factors.
Under Florida law, when a codefendant is equally
culpable or more culpable than the defendant, disparate treatment of
the codefendant may render the defendant's punishment
disproportionate. Downs v. State, 572 So.2d 895 (Fla.1990), cert.
denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 72 (1991); Slater
v. State, 316 So.2d 539 (Fla.1975). Thus, an equally or more
culpable codefendant's sentence is relevant to a proportionality
analysis. Cardona v. State, 641 So.2d 361 (Fla.1994), cert. denied,
513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).
Like Henyard, Alfonza Smalls was tried on the
same charges and convicted, but he was not subject to the death
penalty because his age of fourteen at the time of the offense
prevented him from receiving the death penalty as a matter of law.
Rather, Smalls received the maximum sentence possible for his crimes-eight
consecutive life sentences, with a fifty-year mandatory minimum for
the two first-degree murder convictions.
In Allen v. State, 636 So.2d 494, 497 (Fla.1994),
we held that the death penalty is either cruel or unusual punishment
under article I, section 17 of the Florida Constitution if imposed
upon a person who is under the age of sixteen when committing the
crime. That is, when a defendant is under the age of sixteen, his or
her youth is such a substantial mitigating factor that it cannot be
outweighed by any set of aggravating circumstances as a matter of
law.
In this context, then, Smalls' less severe
sentence is irrelevant to Henyard's proportionality review because,
pursuant to Allen, the aggravation and mitigation in their cases are
per se incomparable. Under the law, death was never a valid
punishment option for Smalls, and Henyard's death sentences are not
disproportionate to the sentence received by his codefendant. Cf.
Larzelere v. State, 676 So.2d 394 (Fla.1996)(holding that
codefendant's acquittal was irrelevant to proportionality review of
defendant's death sentence because codefendant was exonerated from
culpability as a matter of law).
We also find that the evidence in Henyard's case
supports the trial court's conclusion that the four aggravating
factors outweighed the mitigating factors set forth in the
sentencing order.FN17 Finally, upon consideration of all of the
circumstances, we further conclude that Henyard's death sentences
are not disproportionate to death sentences imposed in other cases.
See, e.g., Walls v. State, 641 So.2d 381, 391 (Fla.1994)(death
sentence upheld for execution-style killing of woman after she
witnessed boyfriend's murder), cert. denied, 513 U.S. 1130, 115 S.Ct.
943, 130 L.Ed.2d 887 (1995); Cave v. State, 476 So.2d 180 (Fla.1985),
cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986)(death
sentence proportionate where co-perpetrators abducted, raped, and
killed victim; defendant not actual killer).
FN17. Henyard does not contend that the trial
court failed to consider any mitigating evidence presented in this
case.
Accordingly, we affirm Henyard's convictions and
the imposition of the sentences of death in this case. It is so
ordered.
Henyard v. State, 883 So.2d 753 (Fla.
2004) (PCR).
Background: Following final appellate affirmance
of his convictions of three counts of armed kidnapping, sexual
battery with use of a firearm, attempted first-degree murder,
robbery with a firearm, and two counts of first-degree murder, and
of his sentence of death, petitioner sought post-conviction relief.
The Circuit Court, Lake County, Mark J. Hill, J., denied relief, and
petitioner appealed, in addition filing original petition for writ
of habeas corpus.
Holdings: The Supreme Court held that:
(1) petitioner did not receive ineffective assistance of trial
counsel;
(2) public defender's motion to withdraw did not satisfy statutory
requirements and was properly denied; and
(3) imposition of death penalty did not implicate petitioner's
constitutional right to due process. Denial of post-conviction
relief affirmed; habeas petition denied. Anstead, C.J., concurred
specially with opinion.
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,FN1 three statutory
mitigating factors,FN2 and six nonstatutory mitigating factors. FN3
The court found that the mitigating circumstances did not outweigh
the aggravating circumstances and sentenced Henyard to death.
FN1. The trial court found the following
aggravating factors: (1) the defendant had been convicted of a prior
violent felony; (2) the murder was committed in the course of a
felony; (3) the murder was committed for pecuniary gain; and (4) the
murder was especially heinous, atrocious or cruel.
FN2. The trial court found the following
statutory mitigating factors: (1) Henyard's age of eighteen at the
time of the crime; (2) evidence that Henyard was acting under an
extreme emotional disturbance; and (3) Henyard's capacity to conform
his conduct to the requirements of law was impaired.
FN3. The trial court found the following
nonstatutory mitigating circumstances: (1) the defendant functions
at the emotional level of a thirteen-year-old and is of low
intelligence; (2) the defendant had an impoverished upbringing; (3)
the defendant was born into a dysfunctional family; (4) the
defendant can adjust to prison life; (5) the defendant could have
received eight consecutive life sentences with a minimum mandatory
of fifty years; and (6) Henyard's codefendant, Smalls, could not
receive the death penalty as a matter of law.
This Court rejected all eleven FN4 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.FN5 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.FN6 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.
FN4. The eleven claims were: (1) the trial court
abused its discretion in failing to grant Henyard's motions for a
change of venue; (2) the trial court erred when it (a) granted the
State's challenge for cause of one prospective juror (who stated he
could not, under any circumstances, recommend a death sentence for
Henyard because of his youth), and (b) refused to excuse three
prospective jurors Henyard challenged for cause; (3) the trial court
erred in denying Henyard's motions to suppress his statement to the
police because the interrogating officers failed to honor Henyard's
request to cease questioning in violation of his right to remain
silent under article I, section 9 of the Florida Constitution; (4)
the trial court abused its discretion in admitting DNA evidence
which was not supported by a proper predicate of reliability; (5)
the trial court erred by (a) allowing the State, during voir dire,
to tell prospective jurors that if the evidence of aggravators
outweighed the evidence of mitigators then the jury's sentence
recommendation must be for death as a matter of law, and (b)
suggesting during closing argument that Henyard never admitted to
raping Lewis when, in fact, he did confess to raping her in his
third confession to police on the day after the murders; (6) the
trial court erred in allowing a police officer to testify as to
hearsay statements Lewis made to him when he came to her aid after
the offense; (7) the trial court erred by giving the standard jury
instructions on premeditated murder and reasonable doubt, and by
failing to give the jury a special verdict form on the theory of
guilt; (8) the trial court erred during the penalty phase by (a)
instructing the jury on the avoid arrest aggravator, (b) expressly
considering as an aggravator, and allowing the jury to hear,
evidence of Henyard's prior juvenile adjudication for robbery with a
weapon, and (c) allowing Lewis and Leroy Parker to testify at the
penalty phase because their testimony did not tend to prove any
statutory aggravating circumstance; (9) the trial court abused its
discretion in denying Henyard's specially requested penalty-phase
jury instruction on the heinous, atrocious or cruel aggravating
circumstance, which instructed on “tortuous [sic] intent,” and
further erred by giving the standard heinous, atrocious or cruel
instruction, which is unconstitutionally vague and overbroad; (10)
the trial court erred by relying upon two aggravating circumstances-pecuniary
gain and heinous, atrocious or cruel-as support for Henyard's death
sentences because they were not proven beyond a reasonable doubt;
and (11) the death penalty is not proportionally warranted in this
case.
FN5. The nine claims raised in Henyard's motion
were: (1) ineffective assistance of counsel during penalty phase
because trial counsel failed to adequately investigate and prepare
mitigating evidence and to adequately challenge the State's case;
(2) trial counsel was ineffective for failing to interview the
jurors about any changes in their penalty phase voting; (3) trial
counsel was ineffective for failing to ask jurors various questions;
(4) the jury instructions violated Caldwell v. Mississippi, 472 U.S.
320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (5) the Florida death
penalty statute is unconstitutional on its face and as applied; (6)
electrocution is unconstitutional; (7) entitlement to relief because
of “cumulative error;” (8) the death sentence rests on an
unconstitutionally automatic aggravating circumstance; (9) the death
sentence is unconstitutional because Henyard has the intellectual
capacity of a thirteen-year-old child.
FN6. The evidentiary hearing was held only as to
portions of Henyard's first claim regarding ineffective assistance
of counsel.
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.
Recently, the United States Supreme Court in Wiggins v. Smith, 539
U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), applied the
Strickland standard with regard to the adequacy of counsel's
investigation into mitigating evidence. The Court reiterated:[S]trategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.
In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments. Wiggins, 123 S.Ct.
at 2535 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).
The Court determined that the principal concern
about whether the attorneys in the case exercised reasonable
professional judgment hinged on whether the investigation supporting
counsel's decision not to introduce mitigating evidence was itself
reasonable. Id. at 2536. The Court concluded that the attorneys'
investigation, which was limited to obtaining two documents that
indicated that the defendant had a troubled social and family
history, fell short of the prevailing standards in place at the time
of the trial. Id. at 2536.
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.FN8 See 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 deficient in failing to have additional penalty phase
witnesses testify, because the testimony of the witnesses at the
evidentiary hearing did not establish prejudice where the majority
of the testimony was cumulative with other witnesses' trial
testimony).
FN8. At the evidentiary hearing, the four
witnesses testified that Henyard had to live with people in the
neighborhood because his mother did not take good care of him. They
also testified that Henyard's mother was promiscuous and was
addicted to drugs and alcohol. Although these witnesses may have
provided some evidence as to Henyard's difficult childhood, this
evidence would have been cumulative with the evidence that was
presented during the penalty phase.
At the penalty phase of the trial, Jacqueline
Turner, Henyard's godmother, who also testified at the evidentiary
hearing, testified in some detail about Henyard's upbringing and
childhood. She testified that Henyard's mother had a chronic problem
with alcohol and drug abuse during Henyard's entire life. Henyard's
mother also testified that she constantly drank heavily and did
other drugs while Henyard was young. She also testified that Henyard
lived with his godmother and his father most of the time while he
was young and she rarely stayed in contact with him when he was not
staying with her.
Henyard's father also testified that he had to
take custody of Henyard because Henyard's mother was not taking care
of him. Henyard's father testified that he could not spend much time
with his son either because of his work schedule. During the penalty
phase of the trial, Henyard's godsister also testified that Henyard
had to stay with her mother because his mother was not taking care
of him. This testimony was stressed in some detail in the defense's
closing argument.
Physical Abuse
Second, Henyard alleges that trial counsel was
ineffective for not presenting evidence that Henyard's stepmother,
Edith Ewing, physically abused him as a youth. Initially, any
evidence of physical abuse presented at the hearing was extremely
limited. The allegations of any significant amount of physical abuse
came during the testimony of Henyard's “sister,” Trena Lenon. FN9
All of Lenon's testimony was confined to information that Henyard
told her on the phone. She admitted that she was never present for
any physical abuse, and that she had no knowledge of whether what
Henyard told her was true or not. Other than this, the only other
testimony or evidence that might support Henyard's claim was Ewing's
own testimony that she spanked Henyard on one or two occasions on
the legs with a belt. However, she testified that she did so after
Henyard stole a pistol and a VCR.
FN9. Although they were not biologically related,
Lenon testified that she and Henyard were raised in the same
household for a time and she referred to him as a brother.
The trial court rejected Henyard's claim, in part
stating that “Ms. Ewing provided a loving and stable home for the
defendant, and treated him as one of her own” and that counsel made
a strategic decision not to introduce any evidence of the spankings.
Notably, the trial court cites Ewing's own testimony from the
penalty phase of trial in support of the statement that she provided
a loving and stable home. However, there was other testimony from
the evidentiary hearing that the relationship between Henyard and
Ewing may have been strained.FN10
FN10. For example, T. Michael Johnson, Henyard's
lead trial counsel, in explaining that there were strategic
decisions not to have certain witnesses testify stated, “His
stepmother and he did not get along. And she was of the opinion that
she had been a great stepmom and he was a little thief when he came
down there so we did not want that to come in.” Dr. Russell Bauers,
an expert witness in the field of neuropsychology and clinical
psychology, testified that Henyard felt his stepmother treated her
own son preferentially and would get things for her son that would
be denied to Henyard. Henyard told Dr. Bauers that he decided that
if he really wanted something he would have to go out and get in on
his own by stealing it.
Nevertheless, even if Henyard's relationship with
his stepmother may not have been ideal, his lead counsel, T. Michael
Johnson, stated that the defense team did not want to present any
evidence that Henyard was abused by Ewing because that would have
opened the door to other evidence that Henyard had been involved in
various thefts. Moreover, Mark Nacke, another member of Henyard's
trial team, specifically testified that the defense looked into
Henyard's claims of Ewing's physical abuse and had asked both
Henyard's stepmother and his father about these allegations. Nacke
said both denied any such abuse and that ultimately the defense team
decided not to call Ewing because of evidence that Henyard had
stolen money from her.
Therefore, trial counsel made a tactical choice
not to discuss the spankings, alleged abuse, or strained
relationship with Ewing at the penalty phase in order to prevent
evidence of any thefts from being introduced. Henyard's collateral
counsel's claim that this evidence should have been introduced
despite trial counsel's fears about negative repercussions does not
amount to ineffective assistance of counsel in this case, and we
find no error in the trial court's rejection of this claim. See
Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“Counsel cannot
be deemed ineffective merely because current counsel disagrees with
trial counsel's strategic decisions.”).
Mental Age
Third, Henyard contends that trial counsel was
ineffective for failing to call Angellette Wiley to testify at the
penalty phase of the trial because she would have given a clear
account of incidences where Henyard's behavior proved he preferred
to be around younger children. The trial court rejected this claim
correctly noting that this evidence was presented to the jury.
Specifically, to the extent any testimony from
Angellette Wiley was helpful in showing Henyard's “mental” age, it
was cumulative with the statements of her mother, Jacqueline Turner,
and her sister, Nyoka Wiley, both of whom testified during the
penalty phase of trial.FN11 Moreover, the trial testimony of Dr.
Jethro Toomer, the psychologist who testified for the defense in the
penalty phase, that Henyard was functioning on the level of a
thirteen-year-old would have indicated Henyard's mental age to the
jury. In fact, the trial court specifically found that Henyard
“functions at the emotional level of a thirteen year old and is of
low intelligence” as a nonstatutory mitigating factor. See Henyard,
689 So.2d at 244. Because Wiley's evidentiary hearing testimony was
cumulative with the arguably more extensive evidence and testimony
that trial counsel did present at the penalty phase, we find no
error in the trial court's conclusion that Henyard has not satisfied
either prong of Strickland.
FN11. For example, at trial, Nyoka specifically
testified that most of Henyard's friends were younger than he was
and she recounted an incident where Henyard did not want to go to
the ninth grade because he wanted to return to middle school to be
with younger people. At the evidentiary hearing, Angellette Wiley
and Jacqueline Turner testified regarding the same incident, and
this was the only indication that Henyard preferred the company of
younger children.
Alleged Sexual Abuse
Fourth, Henyard claims that trial counsel was
ineffective because the defense conducted no investigation and
presented no testimony regarding childhood sexual abuse during the
penalty phase. Several witnesses at the evidentiary hearing
testified that Henyard told them he was molested. However, none of
these individuals said they informed defense counsel of Henyard's
allegations.
Additionally, there is some question about the
extent to which Henyard relayed this information to his defense
team. J.T. Williams, an investigator for the Public Defender's
Office, testified that he asked Henyard in a questionnaire soon
after the arrest if he had ever been sexually abused and Henyard
wrote that he did not remember ever being sexually abused.
According to lead counsel T. Michael Johnson's
notes, Henyard also denied ever being sexually abused to a jail
psychiatrist. However, although Johnson could not recall what effort
he made in investigating the alleged sexual abuse, the notes also
indicated that Henyard had told him that he had been fondled by an
older man when he was eight or nine, roughly a decade before the
murders.
Initially, we would note that the evidence of
abuse introduced at the evidentiary hearing came from witnesses who
were repeating what Henyard had told them and there was no
indication that these witnesses shared this information with
Henyard's trial counsel. Moreover, defense counsel was aware of at
least two instances where Henyard had specifically said that he was
not sexually abused. As noted above, according to Strickland, the
reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or
actions. 466 U.S. at 691, 104 S.Ct. 2052.
Strickland further states, “[W]hen 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. When determining reasonableness, there is a
“heavy measure of deference to counsel's judgments.” Id. Although we
recognize the difficulty individuals may have in reporting such
abuse, in this situation where Henyard had specifically denied on at
least two occasions that he had been sexually abused, it is not
clear that trial counsel's failure to investigate the conflicting
evidence that Henyard may have been molested amounts to ineffective
assistance of counsel.
Of course, Henyard was able to introduce evidence
that at least one member of his defense team was aware that Henyard
claimed he had been abused. Nevertheless, even if we were to
determine that trial counsel should have conducted further
investigations into the allegations of molestation, the evidence
that Henyard introduced at the evidentiary hearing does not
demonstrate that he was prejudiced in this case. The only
information introduced at the hearing consisted of brief, second-hand
accounts by witnesses of what Henyard had told them. There was no
additional evidence that the alleged molestation had in fact
occurred. Likewise, there was no testimony from mental health
experts as to how the alleged molestation, which occurred a decade
before the crime, had affected Henyard. Therefore, the trial court
did not err in finding that Henyard has not demonstrated prejudice
on this claim.
Use of Alcohol and Drugs
Fifth, Henyard alleges that trial counsel was
ineffective for failing to investigate or present evidence to the
jury regarding his “chronic use of alcohol.” The trial court in its
order noted that the only germane evidence at the evidentiary
hearing came from the testimony of Henyard's expert witness, Dr.
Bauers. Moreover, the trial court concluded that the first prong of
Strickland had not been met because Henyard had not shown that the
failure to present the alleged evidence of his history of chronic
alcohol and marijuana use was based on trial counsel's deficient
performance.
We agree with the trial court's assessment of
this claim. During the evidentiary hearing, Dr. Bauers testified
that Henyard told him he started drinking beer and smoking marijuana
between the ages of eight and ten, but he denied ever being
seriously intoxicated or using hard drugs. He also told Dr. Bauers
that his use of alcohol and marijuana decreased when he went to live
with his father at the age of eleven. There was no other evidence
presented during the evidentiary hearing regarding Henyard's chronic
use of alcohol. Therefore, based on the fact that this issue was not
addressed in any detail at the evidentiary hearing, Henyard has not
demonstrated error in the trial court's conclusion that he has not
shown his counsel's performance was deficient.
Suicide Attempt
Sixth, Henyard contends that trial counsel was
ineffective for not presenting evidence to the jury during the
penalty phase of the trial of his mental state as characterized by
his suicidal ideations. Although Jacqueline Turner, Henyard's
godmother, testified that Henyard told her he did not want to live
after he had been arrested, the primary evidence related to suicidal
tendencies that came out at the evidentiary hearing centered on an
alleged suicide attempt in the Lake County Jail after Henyard had
been arrested for the murders. Trial counsel was made aware of
Henyard's suicide attempt by the medical department supervisor from
the Lake County Jail, Dan Pincus. Pincus also advised trial counsel
that Henyard was placed on suicide watch because it was possible
that Henyard would try to commit suicide again.
However, Pincus also informed Henyard's trial
counsel that he did not believe the suicide attempt to be legitimate
because Henyard was purposely keeping his eyes shut as Pincus was
trying to examine him.FN12 Additionally, although Henyard was placed
on suicide watch, the standard procedure when there was any threat
of suicide, whether legitimate or not, was to place the prisoner on
suicide watch. When trial counsel, T. Michael Johnson, asked Henyard
about the suicide attempt, Henyard indicated that he wanted to go
back in the medical wing of the jail.
FN12. Pincus also did not believe Henyard's
suicide attempt was legitimate because the method Henyard used was a
difficult and rare way to attempt suicide.
The circuit court found that Henyard's suicide
attempt could have potentially been viewed as manipulative. We agree
with the trial court's finding that trial counsel was not deficient
in not introducing this evidence. Rather, the decision not to
present evidence of this suicide attempt to the jury was a
reasonable strategic decision by Henyard's counsel given what
counsel knew about the attempt, and therefore Henyard's claim does
not satisfy the first prong of Strickland.
Preparation of Mental Health Expert
Finally, Henyard claims trial counsel was
ineffective for failing to adequately prepare one of his mental
health experts, Dr. Jethro Toomer, for his testimony at the penalty
phase.FN13 Henyard attempted to prove Dr. Toomer was not adequately
prepared by comparing Dr. Toomer's results with the evidentiary
hearing testimony of Dr. Bauers' results.
FN13. Henyard argues that Dr. Toomer was not
prepared because he did not speak with Richard Henyard, Sr., Edith
Ewing, or Jacqueline Turner's husband or review any of Henyard's
hospital records.
We find Henyard's claim to be without merit. The
trial court found nothing in Dr. Bauers' testimony that was any more
favorable to Henyard than the testimony Dr. Toomer provided at trial
and also rejected this claim as legally insufficient because Henyard
did not specify the mitigation that trial counsel failed to call to
Dr. Toomer's attention. Moreover, the trial court noted that the
defense team consulted two mental health experts and that there was
no evidence presented at the evidentiary hearing that Dr. Toomer was
inadequately prepared.
We agree with the trial court's decision on this
claim. At the evidentiary hearing, Dr. Bauers testified that he did
not believe that Dr. Toomer did anything improper or that he in any
way mishandled his examination or testimony. In fact, Dr. Bauers
characterized Henyard's neuropsychological abilities as exhibiting
some strengths and some weaknesses, but indicated that the
weaknesses were relatively mild and that they were consistent with
what Dr. Bauers knew about Henyard's educational, occupational, and
sociocultural background. Therefore, we conclude the trial court did
not err in finding that Henyard was not entitled to relief on this
issue.
HABEAS PETITION
Henyard's petition for writ of habeas corpus
raises three claims: (1) appellate counsel rendered ineffective
assistance for not raising on direct appeal the improper ruling on
trial counsel's motion to withdraw; (2) under Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002), Florida's capital sentencing statute violates the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution
and the corresponding provisions of the Florida Constitution; and
(3) Henyard's right preventing cruel and unusual punishment will be
violated as he may be incompetent at the time of his execution.
Ineffective Assistance of Appellate Counsel
Henyard argues that appellate counsel was
ineffective for failing to raise the trial court's denial of his
public defender's motion to withdraw. Claims of ineffective
assistance of appellate counsel are appropriately raised in a
petition for writ of habeas corpus. See Freeman v. State, 761 So.2d
1055, 1069 (Fla.2000). Consistent with the Strickland standard, in
order to grant habeas relief based on ineffectiveness of counsel,
this Court must determine:
[W]hether the alleged omissions are of such
magnitude as to constitute a serious error or substantial deficiency
falling measurably outside the range of professionally acceptable
performance and, second, whether the deficiency in performance
compromised the appellate process to such a degree as to undermine
confidence in the correctness of the result. Pope v. Wainwright, 496
So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069;
Thompson v. State, 759 So.2d 650, 660 (Fla.2000). “The defendant has
the burden of alleging a specific, serious omission or overt act
upon which the claim of ineffective assistance of counsel can be
based.” Freeman, 761 So.2d at 1069. Moreover, appellate counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
See Johnson v. Singletary, 695 So.2d 263, 266-67 (Fla.1996).
The facts underlying this claim are as follows.
Before trial, Henyard's public defender filed a motion to withdraw
on the grounds that the State had listed a former client as a
witness in the case. The motion stated that the public defender's
office had represented the witness a number of times in the past and
if Henyard was represented by the office of the public defender it
would put the public defender's office in the “untenable position of
having to cross-examine a former client.” Subsequently, the public
defender filed an addendum to the motion to withdraw. No additional
argument was offered, but the addendum listed nine additional
witnesses that had previously been represented. Of these nine
individuals, only one ultimately testified at trial.
At the hearing on the motion to withdraw, the
State argued that the witness listed on the original motion to
withdraw had not been represented recently because all of her cases
had been closed. The State had not checked each of the witnesses on
the addendum, but opined that based on the case numbers other
witnesses' cases were also closed. After defense counsel volunteered
that none of the witnesses were being represented the trial court
denied the motion.
In his reply brief, Henyard argues that the
governing law at the time of trial, notably section 27.53(3),
Florida Statutes (1993), as interpreted by Guzman v. State, 644
So.2d 996 (Fla.1994), presumed that a conflict existed upon the
filing of the motion to withdraw and that the trial court judge had
no discretion other than to grant the motion. In other words,
Henyard is arguing that the trial court's questioning surrounding
the motion was inappropriate. In relevant part, section 27.53(3)
stated:
If at any time during the representation of two
or more indigents the public defender shall determine that the
interests of those accused are so adverse or hostile that they
cannot all be counseled by the public defender or his staff without
conflict of interest, or that none can be counseled by the public
defender or his staff because of conflict of interest, it shall be
his duty to move the court to appoint other counsel. § 27.53(3), Fla.
Stat. (1993). Notably, trial counsel's motion to withdraw made no
reference to section 27.53(3).
Moreover, the motion did not allege that the
public defender had determined that Henyard and the potential
witnesses had interests that were so adverse or hostile that they
could not be counseled by the public defender's office, as required
by Guzman. See 644 So.2d at 999. Rather, the motion stated, as to
potential witness Neal, that the public defender's office would be
placed “in the untenable position of having to cross-examine a
former client.” The addendum in which the only witness that actually
testified at trial was listed contained no reference to section
27.53(3) or additional legal argument either. Under these specific
circumstances, we conclude that the motion did not satisfy the
requirements of section 27.53(3), and therefore appellate counsel
cannot be deemed ineffective for failing to raise this issue on
appeal. See Johnson v. Singletary, 695 So.2d 263, 266-67 (Fla.1996).
Ring Claim
Next, Henyard asserts that Florida's capital
sentencing scheme violates the United States and Florida
Constitutions. This Court addressed similar contentions in Bottoson
v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123
S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143
(Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556
(2002), and, while there was no single majority view expressed, we
denied relief. We have since rejected similar claims on other
occasions and find that Henyard is likewise not entitled to relief
on this claim. See, e.g., Rivera v. State, 859 So.2d 495 (Fla.2003);
Jones v. State, 855 So.2d 611, 619 (Fla.2003); Chandler v. State,
848 So.2d 1031, 1034 n. 4 (Fla.2003).
Moreover, we note that the jury unanimously
recommended the death penalty in this case, and respective to each
murder the trial court found the aggravating circumstances of
previous conviction of seven prior violent felonies, six of which
included the contemporaneous convictions for crimes against the
victims in this case, and that the commission of the murders was in
the course of an enumerated felony (kidnapping). These two
aggravating circumstances were charged in the indictment and found
by the jury, and therefore Henyard is not entitled to relief on this
claim. See Banks v. State, 842 So.2d 788, 793 (Fla.2003).
Incompetence to be Executed
Finally, Henyard argues that it would violate the
Eighth Amendment's prohibition against cruel and unusual punishment
to execute him since he may be incompetent at the time of execution.
Because this issue is being raised to preserve federal claims,
Henyard concedes that it is premature and that he cannot legally
raise the issue of his competency to be executed until after a death
warrant is issued. See Hall v. Moore, 792 So.2d 447, 450 (Fla.2001);
Fla. R.Crim. P. 3.811(c). As no death warrant for Henyard has been
signed, Henyard's claim is not yet ripe for review by this Court.
CONCLUSION
For the reasons discussed above, we affirm the
lower court's denial of Henyard's motion for postconviction relief
and we also deny his petition for writ of habeas corpus. It is so
ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ.,
concur. ANSTEAD, C.J., concurs specially with an opinion. CANTERO,
J., concurs with an opinion, in which BELL, J., concurs.
ANSTEAD, C.J., specially concurring.
I concur in the majority opinion in all respects except for its
discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002).
CANTERO, J., concurring.
I concur in the majority opinion. Moreover, regarding Henyard's
claim that Florida's capital sentencing scheme violates Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I
also would hold, for the reasons stated in my specially concurring
opinion in Windom v. State, 29 Fla. L. Weekly S191, S197-203 (Fla.
May 6, 2004), that Ring does not apply retroactively. BELL, J.,
concurs.
Henyard v. McDonough, 459 F.3d 1217
(11th Cir. 2006) (Habeas).
Background: Florida state court defendant who had
been convicted of multiple crimes, including murder, rape and
attempted murder, and carjacking filed petition for federal habeas
relief. The United States District Court for the Middle district of
Florida, No. 04-00621-CV-OC-10GRJ, Wm. Terrell Hodges, J., denied
petition, 2005 WL 1862694, and appeal was taken.
Holdings: The Court of Appeals held that:
(1) Florida Supreme Court's determination, on
direct appeal, as to voluntariness of 18-year-old capital murder
defendant's confession was neither “contrary to,” nor “an
unreasonable application” of, United States Supreme Court precedent;
(2) state court's determination, that pretrial publicity surrounding
capital murder defendant's crime was not such as to require change
of venue in order to protect defendant's right to trial by panel of
impartial jurors, was neither “contrary to,” nor “an unreasonable
application” of, United States Supreme Court precedent;
(3) defense counsel's decision, at penalty phase of capital murder
case, not to introduce evidence of corporal punishment that he had
received at hands of his father's common law wife was reasonable
strategic decision, which did not rise to level of deficient
performance; and
(4) state court's determination, in upholding trial court's denial
of capital murder defendant's motion for postconviction relief, that
defense counsel had not performed deficiently at penalty phase of
case in failing to present evidence of possible sexual abuse of
defendant as child, was neither “contrary to,” nor “an unreasonable
application” of, United States Supreme Court precedent. Affirmed.
PER CURIAM:
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.
I. BACKGROUND
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.
A. Henyard's Confession
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.FN1
FN1. In his brief, Henyard asserts that Neal, a
police informant, “tricked” him into visiting the police station. We
reject this allegation. At the suppression hearing, Neal testified
that Henyard himself proposed the visit to the police and directed
her to take him to the police station. Moreover, during the
interrogation, Henyard himself acknowledged that he had approached
the police voluntarily.
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 crimes.
Consequently, the officers did not read Henyard his rights at this
time. However, the officers' suspicions quickly grew that Henyard
was responsible for the murders.
Henyard's meeting with the officers at the police
station began at about 1:00 p.m. on January 31, 1993. Henyard
initially told the officers that at 1:00 a.m. that morning, Emmanuel
Yon and Alfonza Smalls had picked Henyard up in a blue Chrysler and
the three had driven to a night club. Henyard stated that at the
club, Yon and Smalls confessed to him that they “had went down to
Winn Dixie and stole a car and shot the lady and her two children.”
Henyard claimed that because he had no other way to get home from
the club, he had remained at the club for a while with Yon and
Smalls, and then drove them home in the car at around 4:30 or 5:00
a.m.
As soon as Henyard told the police that he had
driven Ms. Lewis's car, one of the FBI agents suggested that Henyard
could be charged as an accessory after the fact. The agent told
Henyard, “you've got to stand up and do the right thing.” Henyard
agreed with the officer and commented that he felt the need to talk
to the police “because I know my fingerprints in that car and I'm on
probation.” The agent responded that “the best thing you can do
right now is-is to come clean with the whole thing.”
At the officers' prompting, Henyard retold in
greater detail his fabricated story about Yon and Smalls. Apparently
suspecting that Henyard was not being truthful, one of the agents
interrupted him, and this exchange occurred:
FBI Agent: All right. Look, let me tell you
something right now. Are you involved in a murder? Henyard: No, I am
not. Agent: Huh? Are you sure you're not involved in a murder? Huh?
Henyard: Yes, Sir. Agent: Absolutely certain you're not involved in
a murder? Henyard: Yes, Sir. Agent: The first one that talks gets
the best deal in every case, you know that, okay? Because Henyard
steadfastly denied involvement in the murder, the agent asked if
Henyard would be willing to take a polygraph test. Henyard said that
he “would not take one without the presence of my auntie.” At the
officers' prompting, Henyard continued to add details to his
fabricated story, mostly concerning who Yon and Smalls were, how
Henyard knew them, and where they lived and “hung out.” At about
1:30 p.m., the officers decided that Henyard would need to remain in
police custody, as indicated by this colloquy: FBI Agent: Is there
any place we can put him that we can put somebody with him? Off.
Hart: Uh-huh. Agent: Why don't we do that. Henyard: What's that?
Agent: You're going to have to stay here for awhile, okay? Henyard:
How long is a while? Agent: Just for a little while, because we're
going to talk to you some more, okay, but we've got to talk among
ourselves first and then we've got to talk to you, okay? Henyard
then inquired twice more about the possibility of leaving: Henyard:
Can I go home soon, man? Off. Hart: Soon. You know how these federal
people are, though. They're not like us local boys. ... Henyard:
Excuse me, sir. How long am I gonna have to stay here? Agent: Huh?
Henyard: How long do I have to stay here? Agent: Ah, just a few more
minutes.
Immediately after these exchanges, the law
enforcement officers confirmed that Henyard could read and write,
had reached the eleventh grade in school, and was eighteen years old.
The officers then read Henyard his Miranda rights. At about 1:30 p.m.,
Henyard affirmed that he understood his rights and that he wished to
waive his rights, and he signed the rights waiver form.
Shortly after Henyard's Mirandized interrogation
began, the law enforcement officials again asked Henyard if he would
be willing to take a polygraph test. Henyard said that he would not
do so “[w]ithout the presence of my auntie.” The officers offered to
bring Henyard's auntie into the station, but told Henyard that
“[s]he can't stay in here while you're taking a polygraph.” Henyard
responded, “[t]hen I won't take it. I want my auntie sitting right
beside me when I take it.”
The officers promised to try to find Henyard's
auntie and bring her to the station. This exchange then transpired:
Agent: After you talk to [your auntie]-Don't you want to resolve
this right now? Henyard: Yes, I do. Agent: Okay. You just hang out
here. What else you going to do? You going to hang out at the Manors,
you can hang out here, okay? Henyard: Huh? Agent: You just stay here
a minute-you know, we can't force you to stay here (inaudible).
Henyard: Take me to my auntie's house. Agent: We're going to have
your aunt come down here. Henyard: Y'all (Inaudible). Agent: Yeah,
we're going to have- Henyard: Superbowl, man. I'm missing my
game.FN2 FN2.
The interrogation occurred on the day of the
Super Bowl. Agent: Well, it's 6:00. You've got a couple of [sic]
three hours yet. The officers continued the interrogation after this
exchange. At around 2:30 p.m., Robert O'Connor of the Florida
Department of Law Enforcement arrived and continued the
interrogation. Before asking Henyard any questions, O'Connor
reminded Henyard of his Miranda rights and asked him again whether
he wanted to talk: O'Connor: Okay. A little while ago, some FBI
agents read you your rights. Do you remember those rights? Henyard:
Uh-huh. O'Connor: Do you remember signing this piece of paper that
says Waiver of Rights, right where it says there? Henyard: Yes, sir.
O'Connor: Okay. How old are you, Richard? Henyard: Eighteen.
O'Connor: Eighteen? How far did you go in school? Henyard: Eleventh
grade. O'Connor: Can you read and write the English language?
Henyard: Yes, sir. O'Connor: You understand what we're talking about
here today? Henyard: Yes, sir. O'Connor: You've been talking to some
other people here earlier today and they've been talking to you
about a very serious situation. Do you understand what they're
talking about? Henyard: Yes, sir. O'Connor: Okay. There's no
question in your mind what we're talking about here today? Henyard:
No. O'Connor: About a killing? Henyard: Huh-uh. O'Connor: Okay. As
long as we all know where we're coming from before we get started
here today, okay? Henyard: (Inaudible). O'Connor: All right. I want
you to go ahead and tell me-You did say you understood all these,
right? Henyard: Uh-huh. O'Connor: All these rights? I'm not going to
read them again to you because you've already been read them, okay?
Henyard: Uh-huh. O'Connor: They've been read to you, you understand
them. They were read to you at 1:33 p.m., and it's now 2:35. They
were-just about an hour ago they were read to you, okay? Henyard:
Uh-huh. O'Connor: Do you still have-do you still want to talk to us?
Henyard: Yes, sir. O'Connor: Okay, great .... Following this
exchange, O'Connor continued interrogating Henyard.
At some point in the ongoing interrogation,
Officer Hart noticed blood on Henyard's shoes and socks. Officer
Hart confronted Henyard about the blood, and Henyard immediately
recounted a different story of what had transpired the previous
night, saying, “I'm being straight up this time.”
Henyard began by telling the officers that he and
Smalls had gone to Winn Dixie and had carjacked Dorothy Lewis at
gunpoint. Henyard admitted that he and Smalls then had driven down a
dirt road and parked Lewis's car at the side of the road. Henyard
asserted that Smalls told Dorothy Lewis to exit the car and sit on
the trunk, where Smalls raped her while her children and Henyard sat
in the back seat. Henyard admitted that he then joined Smalls behind
the vehicle, intending to rape Lewis as well. Henyard stated that
when he started to have sex with Lewis, she grabbed at the gun,
which was sitting on the trunk of the car.
Henyard claimed that while struggling with
Dorothy Lewis for the gun, he inadvertently shot her in the leg.
Henyard eventually admitted, however, that he shot Dorothy Lewis at
least two more times in the face and left her at the side of the
road. Henyard explained that he and Smalls got back in the car and
drove further down the road with the Lewis children still in the
back seat, crying for their mother.
Henyard insisted that Smalls then took the
children out of the back seat and shot them each in the head, while
Henyard remained in the car. However, Henyard eventually
acknowledged that he helped Smalls carry the bodies of the two Lewis
children a short ways from the road, where he and Smalls discarded
the bodies behind a barbed wire fence.
Prior to trial, Henyard moved to preclude from
trial all statements he made to law enforcement officers on January
31, 1993. Henyard contended that he had not knowingly and
voluntarily waived his Miranda rights, and that to whatever extent
he had consented to the interrogation, he subsequently revoked his
consent and questioning should have ceased.
On May 11, 1994, the state trial court held a
lengthy hearing concerning Henyard's motion to suppress. The trial
court heard from numerous witnesses, including Donaldson, Neal,
Perry, and at least four of the officers involved in questioning
Henyard. In considering the motion to suppress, the trial judge also
read the transcript of Henyard's interrogation multiple times and
watched the videotaped portion of Henyard's statements.
The state trial court precluded all of Henyard's
statements made between pages 4 and 32 of the transcript-from when
the officers suggested Henyard might be guilty of accessory after
the fact to when Henyard waived his rights and consented to talk.
During this pre- Miranda portion of the interview, Henyard denied
participating in the carjacking, rape, attempted murder and murders.
The suppression issue on appeal thus involves only Henyard's
contention that the trial court also should have precluded Henyard's
confessions after he received the Miranda warnings and waived his
Miranda rights. The state trial court concluded that these
statements were admissible because Henyard made them after knowingly
and voluntarily waiving his Miranda rights.
In support of its conclusion that Henyard
understood his rights, the state trial court cited in particular
that: (1) Henyard understands the English language well; (2) Henyard
was advised of his rights multiple times, and in each case waived
them, at least once in writing; (3) Henyard has an eleventh grade
education; (4) Henyard's I.Q. of eighty-five is not substantially
below average; and (5) Henyard had been advised of his rights on
previous occasions. The state trial court also found that Henyard's
statements were given voluntarily, citing in particular that: (1)
the record showed no evidence that Henyard confessed under duress,
threats, or false promises; (2) after consenting to be questioned,
Henyard never revoked that consent; and (3) the record demonstrated
Henyard's capacity for abstract reasoning, as shown by the fact that
Henyard was aware that his actions carried serious consequences and
that he initially lied as to what had transpired.
* * *
C. Guilt Phase
At trial, the government presented overwhelming
evidence of Henyard's guilt, including the video of Henyard's
confession to carjacking the Lewises, raping and shooting Dorothy
Lewis, and discarding the bodies of Jasmine and Jamilya Lewis. Among
the many witnesses was Dorothy Lewis herself, who testified that
Henyard carjacked her and her children, raped her on the trunk of
her car while her children sat in the back seat, and shot her in the
leg and face. Forensic evidence established that Henyard shot
Dorothy Lewis with the gun he stole from Luther Reed and that the
same gun was used in the murders of Jasmine and Jamilya Lewis.
The government also introduced expert blood
spatter testimony. That testimony established that the blood on
Henyard's clothing indicated he was within four feet of Jasmine and
Jamilya Lewis at the time they were executed, whereas the blood on
Smalls's clothing was consistent not with the spatter from a gunshot
wound, but rather with blood stains from moving a bloody body. After
deliberation, the jury found Henyard guilty of all charges,
including the capital murder of Jasmine and Jamilya Lewis.
* * *
D. Penalty Phase
Because Henyard asserts that his counsel was
ineffective during the penalty phase of his trial, we review that
phase in detail.
1. Aggravating Evidence
The government put on three witnesses during the
penalty phase of the trial to augment the guilt-phase evidence of
aggravating circumstances justifying a sentence of death. First,
Dorothy Lewis augmented her testimony by reciting a specific
incident during the crime. Lewis testified that while she was in the
back seat of the car with her two daughters, she began to pray
audibly to Jesus. When Henyard heard her praying to Jesus, Henyard
turned to her and said, “You might as well stop calling Jesus, this
isn't Jesus, this is Satan.” This testimony supported the
government's contention that Henyard terrorized his victims and that
the crime was especially heinous, atrocious and cruel.
Carol Custar, a court clerk for the Juvenile
Division of the courthouse, testified to verify the court's record
of Henyard's juvenile conviction, and thus the presence of the
aggravating factor of a past conviction for a violent felony. The
government then introduced into evidence the authenticated record of
Henyard's 1989 charge and guilty plea to robbery with a weapon. At
the time of that crime, Henyard was 14 years old.
Finally, the government called Leroy Parker, the
same expert in blood spatter analysis who had testified at trial.
Parker was called to refute any claim by Henyard that his role in
the murders of Jamilya and Jasmine Lewis was minor. Parker testified
that he examined Henyard's and Smalls's clothing and found high
velocity blood spatter on only Henyard's clothing. This blood
evidence suggested that Henyard was within four feet of Jasmine and
Jamilya Lewis at the time they were shot in the head.
2. Mitigating Evidence
Henyard called eight witnesses on his behalf
during the penalty phase.
Jeff Pfister, an attorney, testified by
deposition that he represented Henyard in Henyard's 1989 juvenile
case for robbery with a weapon. According to Pfister, Henyard and
two friends had robbed a convenience store of roughly $70. Henyard
acted only as a lookout, but because one of Henyard's accomplices
wielded a stick, Henyard was charged with robbery with a weapon.
Pfister acknowledged that the adult equivalent charge for Henyard's
conduct would have been armed robbery.
Henyard next called Michael Graves, an attorney
and criminal justice expert. Graves testified about the Florida
Sentencing Guidelines. Graves testified that if Henyard were
sentenced to consecutive life sentences rather than death, Henyard
would effectively have no hope of ever being released or paroled.
Nyoka Wiley, Henyard's Godsister, testified on
his behalf. Wiley explained that she had grown up in the same house
with Henyard in Eustis, Florida, until Henyard was eleven, and that
both were raised by Wiley's mother and Henyard's Godmother,
Jacqueline Turner. Wiley explained that Turner took good care of
Henyard, took him to church, and taught him right from wrong. Wiley
told the jury that Henyard always gave Turner “the utmost respect,
... just like she was his mother.” Wiley stated that she and Henyard
were very close, and that she loved him despite what he had done.
Wiley noted that Henyard “never really spent
time” with his biological mother, Hattie Gamble. Wiley also
testified that most of Henyard's friends when he was growing up were
younger than he, and that he had resisted going to ninth grade
because he wanted to remain with his younger friends.
Edna McClendon, a former teacher of Henyard, was
called. McClendon testified that during Henyard's ninth grade year,
his school was unable to register him because no parent would come
to register him. McClendon never saw Henyard's mother, and Henyard
told her that his mother was dead. McClendon remarked that Henyard
never had disciplinary problems in school.
The fifth mitigating witness was Henyard's
biological father, Richard Henyard, Senior (“Senior”). Senior
testified that he had held a steady job as a truck driver for twenty-eight
consecutive years, since before Henyard was born. Senior met Hattie
Gamble, Henyard's biological mother, in 1973, and lived with her
only briefly in Eustis, Florida. Senior subsequently moved from
Eustis to Pahokee, Florida, and his job as a truck driver required
that he travel frequently. However, Senior stated that he would
visit Henyard “[a]s often as I could, every chance I got.” Senior
acknowledged having “lost contact” with Henyard when Henyard was
seven or eight. Senior also acknowledged that before that time,
Henyard spent the night at Senior's house on only one occasion, for
two or three weeks.
Senior did not see Henyard again until he was
eleven, when Senior tracked Henyard to Jacqueline Turner's home in
Eustis. Senior stated that when he found Henyard, Henyard looked
“[d]irty, nasty” and was not dressed appropriately. Senior decided
to take Henyard from Turner, and brought Henyard into his home in
Pahokee, Florida, with Edith Ewing, Senior's common law wife. Aside
from a brief period when Henyard returned to live with Turner,
Henyard lived with Senior and Ewing until he was seventeen. However,
Senior's heavy workload made it difficult for him to have a one-on-one
relationship with his son. For instance, Senior was never involved
in Henyard's education in any way, never met Henyard's friends or
teachers, and never took him to ball games or other social
activities. Senior had no history of drug use or alcohol abuse.
Jacqueline Turner, Henyard's Godmother, was
Henyard's sixth witness. Turner testified that she had been friends
with Henyard's biological mother, Hattie Gamble, since both were
fourteen. Turner related that Gamble had drug and alcohol problems
before she became pregnant with Henyard, but that Gamble did not use
substances during the pregnancy.FN5
Turner also stated that Gamble had a difficult
time giving birth to Henyard. After Henyard's birth, Gamble began
drinking heavily again, to the point that she was drunk every day.
When Turner found Gamble naked, drunk, and having sex with multiple
men, she decided to take Henyard from Gamble. Henyard was ten months
old at the time. Turner cared for him exclusively until he was three.
Between the ages of three and eleven, Henyard continued to stay with
Turner but returned periodically to stay with his mother.
FN5. As Dr. Toomer later testified, there is no
evidence that Henyard suffered from fetal alcohol syndrome. However,
Gamble herself acknowledged abusing substances during her pregnancy.
Turner testified that other children would
ridicule Henyard, teasing that his mother was a lesbian. Even so,
Henyard often wanted to be with his mother, in part because Turner
disciplined him while his mother did not. When Henyard stayed with
Turner, Turner imposed rules on him, took him to church, and treated
him like one of her own. Turner acknowledged that by the time
Henyard turned eleven, he was becoming too much for her to control,
he stayed out late at night, and he frequently skipped school.
Henyard's seventh mitigation witness was Dr.
Jethro Toomer, an expert in psychology and forensic psychology. Dr.
Toomer met with Henyard in prison on two occasions, in February 1993
and October 1993. Dr. Toomer administered several machine-scored
psychological tests and other, subjective psychological tests to
assess Henyard's intelligence and personality. Dr. Toomer also
interviewed Jacqueline Turner and Hattie Gamble by phone, and
reviewed the transcripts of Henyard's confessions to police and
other records from the case. FN6
FN6. Dr. Toomer never spoke with Henyard's father
because Dr. Toomer “was not aware that he was involved in his son's
life.”
Based on the series of tests he administered, Dr.
Toomer testified that Henyard had an I.Q. of 85, placing him in the
twenty-fifth percentile, a level which Dr. Toomer described as “low
average.”FN7 Dr. Toomer assessed that Henyard had certain
deficiencies in visual motor coordination and perception and showed
patterns of insecurity and impulsivity. According to the test
results, Henyard also placed in approximately the ninetieth
percentile on scales measuring his likelihood for susceptibility to
substance abuse and thought disturbance.
Henyard showed extremely low self-esteem, and the
tests indicated to Dr. Toomer that Henyard had impaired emotional
responses and a chronic inability to handle stress and
responsibility. Dr. Toomer also noted that Henyard had faced
learning disabilities and irregular attendance at school, and
eventually had dropped out in the ninth or tenth grade. Dr. Toomer
testified that Henyard had “blunted affect,” meaning a low level of
emotionality with a mood that “tends to be very flat and very sober.”
FN7. On cross-examination, Dr. Toomer
acknowledged that Henyard had taken a scholastic achievement test in
school and obtained a “skill achieved” rating in all but three of a
number of areas of reading and writing proficiency. Dr. Toomer
admitted that these test results were “incompatible” with his
assessment of Henyard's I.Q., but asserted that the school test was
“not really that sophisticated” and asserted that these school
results should be discounted.
Dr. Toomer also acknowledged, however, that
Henyard did not show psychosis and that “there was nothing to
indicate any severe psychopathology in terms of [Henyard's]
functioning.” Dr. Toomer stated that he found no evidence that
Henyard had suffered from fetal alcohol syndrome. Dr. Toomer also
verified on cross-examination that while he believed Henyard had an
impaired capacity for appreciating the criminality of his conduct,
that impairment was not substantial and did not rise to the level of
being a statutory mitigating factor.
Based on the test results and his observations,
Dr. Toomer gave his opinion that Henyard was functioning at the
intellectual, emotional and mental level of a thirteen-year-old. Dr.
Toomer attributed many of Henyard's deficiencies to the fact that,
in Dr. Toomer's estimation, Henyard was raised “with an absence of
nurturing.” Dr. Toomer particularly emphasized that Henyard had
moved from a stable to a non-stable environment on multiple
occasions, and that his father had been mostly absent until he
turned eleven.
Dr. Toomer concluded that Henyard was unable to
foresee consequences with the same capacity as a normal eighteen- or
nineteen-year-old, and that he was under “some emotional disturbance”
at the time of the murders. However, Dr. Toomer acknowledged on
cross-examination that at the time of the crimes Henyard concretely
knew that it is wrong to kill someone.
Finally, Henyard called his biological mother,
Hattie Mae Gamble, to testify. Gamble testified that she drank
constantly at the time she was pregnant with Henyard and continued
to drink heavily after he was born. Gamble also began abusing
cocaine and marijuana by the time Henyard was eight. Gamble
recounted that due to her substance abuse, she often lost track of
Henyard even when he was an infant, when he would sometimes leave
the house without her noticing.
Gamble acknowledged that she had been arrested
ten or eleven times for shoplifting. Gamble also testified that
before Henyard moved to live with his father, Senior came around
only once or twice a year, and she had no contact with him. Finally,
Gamble emphasized that Henyard lived for the majority of his early
childhood with Turner and that Turner took good care of him.
3. Government's Rebuttal
The government called three witnesses to rebut
Henyard's mitigating evidence. First, the government recalled Dr.
Toomer. The government highlighted a number of Henyard's answers on
the tests Dr. Toomer had administered. Dr. Toomer acknowledged that
in his test responses, Henyard had stated that both his father and
mother were good people and that he loved them both; that he had not
gotten “a raw deal in life”; and that his life was “as pleasant as
that of most people I know.”
Dr. Toomer acknowledged a series of other answers
by Henyard that indicated his feelings that his family was neither
unloving nor unsupportive.FN8 Dr. Toomer also acknowledged that the
tests he administered were machine-scored and that the test
designers themselves cautioned against drawing any firm conclusions
based upon the test results.
FN8. In particular, Henyard answered (1) “false”
to the statement, “There is very little love and companionship in my
family as compared to other homes”; (2) “true” to the statement,
“When I feel really bad, I know I can count on my family to help”;
(3) “true” to the statement, “The members of my family and my
relatives get along well”; (4) “false” to the statement, “I hate my
whole family”; and (5) “false” to the statement, “I have little to
do with my relatives now.”
The government next recalled Jacqueline Turner.
Turner confirmed that when Henyard was young, he frequently had
moved between her house and Gamble's, which were within walking
distance. Turner testified that for the majority of the time,
Henyard lived with her, and that when Henyard stayed with his
biological mother, it was because Henyard wanted to do so.
Finally, the government called Edith Ewing,
Senior's common law wife. Ewing testified that Henyard had lived
with her since he was eleven. Ewing asserted that she loved Henyard
and had treated him as one of her own children. Ewing stated that
she provided Henyard with a loving home with rules and guidance, but
that Henyard did not always obey her rules and instructions. Ewing
acknowledged that Henyard's father was infrequently home because of
his long work hours.
4. Closing Arguments
At closing, the government began by disputing the
presence of significant mitigating factors. The government
acknowledged that Henyard was only eighteen at the time of the crime.
However, the government argued that: (1) Henyard's efforts to lie to
the police and his demeanor during his recorded statement indicated
his understanding of the wrongfulness of his actions as well as his
relative intelligence; (2) although Henyard's biological parents
were not always present, Henyard was raised in loving, relatively
stable environments by Turner and Ewing; (3) there was no evidence
that Henyard was under the substantial influence of drugs or alcohol
at the time of the crime; (4) the evidence overwhelmingly pointed to
Henyard as the planner and leader of the crimes and the shooter of
the two children, Jamilya and Jasmine; and (5) Dr. Toomer's
conclusions that Henyard was emotionally disturbed and incapable of
abstract reasoning were not credible in light of his reliance on
machine-scored tests and his dismissal of other trial evidence of
Henyard's capacities.
The government then argued for four aggravating
factors: (1) Henyard had committed the crimes in part for pecuniary
gain, i.e. to steal Ms. Lewis's car; (2) Henyard killed the two
children, Jamilya and Jasmine, to avoid arrest and eliminate
witnesses to his other crimes that night; (3) Henyard had multiple
prior felony convictions, in particular his 1989 robbery conviction
and the additional counts charged with the Lewis murders; and (4)
Henyard's crime terrorized the Lewises and was particularly heinous,
atrocious or cruel.
In closing, Henyard first addressed the
aggravating factors mentioned by the government, arguing: (1) there
was no evidence that the capital offenses-the murders of Jamilya and
Jasmine-were committed for pecuniary gain; (2) there was no evidence
that Henyard murdered Jamilya and Jasmine to silence witnesses; (3)
Henyard's only true “prior” conviction was for his minor role in a
minor robbery; and (4) although all murders are heinous, Jamilya and
Jasmine were killed instantly and without special pain.
Henyard then focused on mitigating factors,
including: (1) Henyard was eighteen at the time of the crime; (2)
Henyard was mentally and emotionally young even for that age, as
evidenced by his preference for younger friends and for being held
back in school; (3) Henyard's judgment at the time of the crime was
impaired by drugs and/or alcohol; (4) Henyard lacked a nurturing
childhood because his mother was a substance abuser and his father
was mostly absent from his life; (5) Henyard behaved well in school;
(6) Henyard would be sentenced to six life sentences if a death
penalty were not imposed; and (7) the evidence indicated that Smalls
was the one who shot Jamilya and Jasmine. Henyard suggested that the
jury recommend sentences of life imprisonment.
5. Sentence
After deliberation, the jury unanimously
recommended that Henyard be sentenced to death. The state trial
court held a sentencing hearing on August 19, 1994, and announced
its factual and legal findings.
* * *
II. POST-CONVICTION HISTORY
A. Direct Appeal
Henyard timely appealed his conviction and death
sentence, raising eleven assignments of error. In relevant part,
Henyard argued that (1) his statements to the police were improperly
admitted; and (2) the trial court erred by denying his motion to
change venue. On December 19, 1996, the Supreme Court of Florida
denied Henyard's appeal. Henyard v. State, 689 So.2d 239 (Fla.1996).
After reviewing Henyard's confession, the Florida
Supreme Court found that during the duration of his police
interrogation, Henyard had not made even an equivocal request to
cease questioning. Id. at 247. Even assuming arguendo that Henyard
had requested to cease questioning, the Florida Supreme Court held
that the admission of Henyard's statements represented harmless
error in light of the overwhelming evidence against him. Id. at 248.
With respect to Henyard's venue argument, the
Florida Supreme Court reviewed the trial record and concluded that
“[d]uring the actual voir dire here, each prospective juror was
questioned thoroughly and individually about his or her exposure to
the pretrial publicity surrounding the case.” Id. at 245-46. The
Florida Supreme Court emphasized that “[w]hile the jurors had all
read or heard something about the case, each stated that he or she
had not formed an opinion and would consider only the evidence
presented during the trial in making a decision.” Id. at 246.
The Florida Supreme Court concluded that “the
record demonstrates that the members of Henyard's venire did not
possess such prejudice or extensive knowledge of the case as to
require a change of venue,” and that therefore “the trial court did
not abuse its discretion in denying Henyard's motions for a change
of venue.” Id.
B. State 3.850 Proceedings
Pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure, on August 5, 1998, Henyard filed in the Circuit
Court of Lake County, Florida, a motion to vacate his conviction and
sentence (the “3.850 motion”). Henyard's 3.850 motion raised nine
claims, including a claim of ineffective assistance of counsel
during the penalty phase of his trial. On October 14, 1999, the
state 3.850 court held an evidentiary hearing.
1. Henyard's 3.850 Witnesses
Henyard called seven witnesses in support of his
claim of ineffective assistance of counsel. Henyard's first two
witnesses, Rosa Lee Adams and Lula Bell Davis, were neighbors of
Henyard's who had observed Henyard growing up. Adams and Davis
testified that Henyard's mother abused drugs and alcohol, was
promiscuous and was minimally involved in caring for Henyard. Both
witnesses averred that Henyard effectively was raised by many people
in the neighborhood and often went from home to home. On cross-examination,
Adams acknowledged that on the day of the murders, Henyard had a gun
in his possession while at Adams's house. Neither witness had been
contacted by Henyard's trial counsel prior to his sentencing.
Henyard next called Jacqueline Turner. Turner's
testimony was entirely consistent with her testimony during
sentencing at trial, but she added certain details to which she had
not testified at trial. These details included: (1) Gamble was
promiscuous; (2) Henyard had tried to set fire to Turner's house on
two occasions when he was seven; (3) while Henyard lived with his
father, his father would periodically put him out of the house; (4)
Henyard threw “a temper tantrum” when Turner tried to register him
for the ninth grade because he wanted to stay in middle school; (5)
Henyard frequently skipped school, despite Turner's efforts to keep
him there; was difficult to control; stole from Turner; and
committed other thefts and crimes; and (6) when Turner visited
Henyard in jail prior to trial, Henyard broke down crying and
related that as a child a man named Bruce Kyle had raped him. Turner
admitted that the first time Henyard told her that Kyle raped him
was while he was in jail awaiting trial. Turner testified that she
told Henyard's counsel, Michael Johnson, about Henyard's report of
sexual abuse.
Henyard next called Angelette Wiley, Turner's
daughter, who knew Henyard “all his life” and considered him like a
younger brother. Wiley testified that: (1) Henyard's mother had
frequent affairs with both men and women when Henyard was growing
up; (2) neighborhood children would pick on Henyard and beat him up
because of his mother's behavior; (3) Henyard was in the choir at
church at some point as a child; (4) Turner took good care of
Henyard and treated him as one of her own; and (5) Henyard had told
Wiley that he was molested and raped by Bruce Kyle when he was about
seven.
Wiley stated that Henyard's trial counsel never
talked to her and she never conveyed any information to Henyard's
lawyers prior to trial. Wiley was inconsistent as to whether
Henyard's trial counsel tried to contact her. At first, Wiley
acknowledged that before the trial, Henyard's counsel had left
messages for her with Turner and that she had made little effort to
return the messages. Wiley tried to retract this testimony later,
stating that she had never been aware of any efforts by Henyard's
counsel to contact her.
Henyard's fifth witness was Dr. Russell Bowers,
an expert in neuropsychology and clinical psychology. Dr. Bowers had
conducted a neuropsychological evaluation and clinical interview of
Henyard five years after the trial. Dr. Bowers related what Henyard
had told him about his upbringing, including his mother's problems
and his moving between households.
Dr. Bowers also mentioned that Henyard had
asserted that (1) Henyard was hyperactive and was placed in
emotionally handicapped classes in the first grade; (2) Henyard
never got along with Ewing, his father's common law wife, and began
stealing because she treated him poorly; and (3) he began using
marijuana and alcohol when he was eleven, although he was never
seriously intoxicated. Dr. Bowers gave no indication that Henyard
had reported any history of sexual abuse.
Dr. Bowers also administered psychological tests.
The test results and Dr. Bowers's interaction with Henyard led Dr.
Bowers to conclude that (1) Henyard's intelligence was “low average
to average”; (2) Henyard showed mild slowing in one test of
attention, but also performed normally on other tests, including
tests for abstract thinking and motor skills; and (3) Henyard showed
no evidence of excessive cognitive impairment that might be
indicative of fetal alcohol syndrome, and the tests did not support
such a diagnosis.
Henyard's sixth witness was Katherine Ann McCoy,
who was roughly Henyard's age and grew up across the street from
Henyard's mother's home. McCoy testified that her mother would not
allow her to go over to Henyard's mother's place because Henyard's
mother dated women. McCoy acknowledged that she did not know what
Henyard's home life had been like and denied that Henyard suffered
teasing or harassment at the hands of other neighborhood children.
Finally, Henyard called Trena Lenon, who
considered herself Henyard's sister. Lenon moved into Jacquelyn
Turner's home in Eustis, Florida, when she and Henyard were about
fourteen years old. Lenon stated that Henyard told her that when
Henyard stayed with his father and Ewing in Pahokee, Florida, Ewing
and Henyard did not get along, and that Ewing beat him and cussed at
him. Lenon, however, never observed those interactions directly.
Lenon also testified that while Henyard was in jail awaiting trial,
Henyard had told her during a phone conversation that he had been
sexually abused as a child by Bruce Kyle.
Lenon stated that Henyard's trial counsel had
never spoken to her before he was tried and sentenced. However,
Lenon also stated that she was living in Saint Petersburg at a
women's residence for about four months at the time that Henyard was
tried and sentenced.
2. Government's 3.850 Witnesses
The government called six witnesses. The
government's first witnesses were Henyard's father, Senior, and
Senior's common law wife, Ewing. Senior testified that to his
knowledge, Ewing had never spanked, beaten, or thrown anything at
Henyard. Ewing testified that she had spanked Henyard once or twice
with a belt, but otherwise had not beaten him or thrown anything at
him. Ewing explained that she had punished Henyard because he had
stolen from her multiple times, including stealing a VCR and a gun.
Ewing testified that she loved Henyard.
The government's next three witnesses were all
involved in Henyard's defense at trial: Henyard's lead trial counsel,
Thomas Michael Johnson, co-counsel Mark Nacke,FN10 and investigator
J.T. Williams. Johnson testified that he had been a public defender
for nearly his entire career between 1981 and 1995, at which point
Johnson became a circuit judge. At the time of Henyard's trial,
Johnson had previously tried five capital cases and perhaps 60 to 80
major felony cases.
FN10. Bill Stone also acted as co-counsel and
participated in the collection of mitigation evidence. Stone did not
testify at the hearing.
Johnson and the other witnesses recounted the
investigation they did on Henyard's case. Johnson and the defense
team met with Henyard in jail on many occasions, asking him to
identify any individuals who were significant or even insignificant
in his life in order to develop a mitigation case. Johnson met with
Henyard's mother and Turner on many occasions, as well as with
numerous family members. Johnson went to Pahokee, met with Ewing and
Henyard's father, and met with all of Henyard's school teachers.
Johnson retained two psychiatrists, Dr. ToomerFN11 and Dr. Elizabeth
McMann,FN12 to evaluate Henyard. Johnson reviewed Henyard's school
and medical records.
FN11. Johnson recounted that he prepared Dr.
Toomer by providing him with depositions of Gamble and Turner, with
Henyard's recorded interrogation with police, and with other trial
documents. He also consulted Dr. Toomer on a number of occasions.
FN12. Dr. McMann did not testify at sentencing.
Johnson testified that Dr. McMann herself stated that it would not
be wise to call her as a witness because she saw insufficient
evidence to support any of the three statutory mitigating
circumstances that are psychological in nature.
Other investigators assisted Johnson in meeting
yet more potential witnesses. Johnson's notes, for example, indicate
that Steve Bevill (an investigator who did not testify at the
hearing) visited Pahokee, Florida, and met with Ewing, with
Henyard's grandmother, with Ewing's next-door neighbor, and with
multiple officials at Henyard's school, including staff in the
cafeteria.
Investigator Michael Upton went to Eustis High
School and the school board office to speak with witnesses and
obtain records. Johnson stated that it was difficult to track down
many people, but that he and the defense team made a concerted, good
faith effort to find everyone Henyard and others mentioned as
possibly possessing mitigating evidence.
Johnson explained one of his tactical decisions
during the penalty phase. Johnson explained that he decided not to
introduce evidence that Henyard and Ewing did not get along, because
Ewing regarded Henyard as a “little thief” and Johnson did not want
to open the door to introduction of that evidence.
Johnson did not remember Henyard telling him
about being sexually abused. Johnson acknowledged that in his trial
notes, Johnson had recorded that Henyard had told the defense that
Bruce Kyle sexually abused him when he was eight or nine. However,
Johnson also affirmed that his case file included the notes of a
jailhouse doctor who evaluated Henyard prior to trial, and that
these notes stated that Henyard had told the doctor he had no
history of sexual abuse.
Co-counsel Nacke and investigator Williams also
could not remember any claim by Henyard that he had been sexually
abused, and their notes showed no such statements by Henyard. In
fact, Williams's notes indicated that, prior to trial, he had asked
Henyard whether he had suffered sexual abuse, and Henyard had stated
that he had not been sexually abused. Because none of Henyard's team
could recall ever being advised about the sexual abuse, they could
not state why they did not use that evidence during the penalty
phase.
Johnson did not recall whether Henyard had been
placed on suicide watch when first jailed. Johnson also stated that
he had never seen any reason to investigate further the possibility
that Henyard suffered from fetal alcohol syndrome.FN13 FN13. Defense
counsel did, however, contact Henyard's birth hospital and obtain
his birth records.
Finally, the government called Dan Pincus, a
registered nurse. In 1994, Pincus was the medical department
supervisor at the Lake County jail, where Henyard was in custody
awaiting trial. Pincus testified that he had treated Henyard at the
time of his purported suicide attempt by tying the cord of his
laundry bag around his neck. Pincus testified that he did not
believe it was a legitimate suicide attempt because the knot was not
tight and because Henyard pretended to be unconscious when he
clearly was not.
3. 3.850 Court's Ruling
On April 11, 2002, the state 3.850 court denied
Henyard's motion for post-conviction relief. The 3.850 court found,
in relevant part, that: (1) although evidence existed that Ewing had
spanked Henyard, Ewing provided him a loving and stable home, and
trial counsel wisely chose not to introduce this evidence because it
would have allowed the jury to hear about Henyard's frequent acts of
theft; (2) the evidence that neighborhood children teased Henyard
and beat him was not proof of ineffective assistance of counsel
because the jury was presented with such evidence at sentencing; (3)
there was no strong evidence that Henyard abused drugs or alcohol,
and trial counsel made a reasonable decision not to introduce such
evidence at sentencing; (4) counsel made a wise choice not to
introduce evidence of Henyard's suicide attempt in jail because it
appeared insincere and manipulative; (5) no evidence supported
Henyard's claim that his counsel inadequately prepared Dr. Toomer to
testify; and (6) no evidence supported Henyard's claim that he
suffered from fetal alcohol syndrome, so his counsel's decision not
to introduce such evidence was not ineffective assistance of counsel.
With respect to Henyard's argument that his trial
counsel should have investigated whether he was sexually abused and
should have introduced evidence of the abuse at sentencing, the
3.850 court found that (1) the evidence was inconsistent with regard
to whether Henyard was sexually abused and particularly with regard
to whether trial counsel had reason to know that Henyard had told
Turner, Lenon and Wiley that he had been sexually abused, and thus
his trial counsel had not performed unreasonably; and (2) even had
Henyard's counsel introduced the hearsay evidence that Henyard had
suffered sexual abuse, that evidence would not have affected the
jury's sentencing recommendation.
4. Florida Supreme Court 3.850 Ruling
Henyard timely appealed the trial court's denial
of his 3.850 motion. On May 27, 2004, the Florida Supreme Court
affirmed the denial of post-conviction relief. Henyard v. State, 883
So.2d 753 (Fla.2004). With respect to Henyard's claim of ineffective
assistance of counsel during the penalty phase, Henyard argued that
trial counsel was deficient for failing to present evidence of (1)
his difficult childhood, as described by Adams, Davis, Wiley and
Turner; (2) his physical abuse by Ewing; (3) his preference for
younger friends and the harassment he suffered at the hands of other
children; (4) his sexual abuse by Kyle; (5) his drug and alcohol
use; and (6) his suicide attempt in jail.
With respect to the first claim, the Florida
Supreme Court found that while Henyard presented four new witnesses
to testify to Henyard's difficult childhood, their testimony “was
substantially similar to and cumulative with testimony that was
actually presented during the penalty phase.” Id. at 759.
Regarding the alleged abuse by Ewing, the Florida
Supreme Court found little evidence to suggest that Henyard suffered
continual abuse by Ewing. Id. at 760-61. In any event, the Florida
Supreme Court concluded that Henyard's counsel made a reasonable
strategic choice not to introduce this evidence in order to prevent
evidence of any thefts from being introduced. Id. at 761.
The Florida Supreme Court found Wiley's testimony
regarding Henyard's mental age and his preference for younger
friends cumulative with the more extensive similar testimony
presented at sentencing by Turner, Nyoka Wiley, and Dr. Toomer. Id.
With respect to sexual abuse, the Florida Supreme
Court initially observed that all evidence that Henyard was sexually
abused came from hearsay witnesses repeating what Henyard had told
them. Id. at 762. The Florida Supreme Court also noted that prior to
trial, Henyard twice had denied experiencing sexual abuse, first
when he was asked by Williams and later when he was interviewed by
the jailhouse doctor. Id. Under these circumstances, the Florida
Supreme Court found that his trial counsel had not clearly performed
deficiently by failing to introduce this evidence at sentencing. Id.
Alternatively, the Florida Supreme Court found that second-hand
evidence of sexual abuse a decade prior to the crimes would not have
affected the jury's sentencing recommendation. Id.
The Florida Supreme Court rejected Henyard's
argument that his trial counsel should have introduced evidence of
his chronic use of alcohol, finding no evidence to support the
allegation that Henyard did, in fact, abuse alcohol or drugs. Id. at
762-63.
Finally, the Florida Supreme Court found that
trial counsel had not performed deficiently by choosing not to
introduce evidence of Henyard's suicide attempt in light of the fact
that the attempt might have been viewed as manipulative. Id. at 763.
C. Federal Habeas Petition
Henyard timely filed a petition for a writ of
habeas corpus in the District Court for the Middle District of
Florida. See 28 U.S.C. § 2254. On August 1, 2005, the district court
denied Henyard's § 2254 petition. Henyard timely appealed to this
Court, and we granted a Certificate of Appealability on the three
issues identified above.
* * *
In sum, none of the evidence presented in
Henyard's 3.850 hearing suggested the presence of any additional
statutory mitigating factors or the absence of any of the
aggravating factors found at trial. None of Henyard's evidence leads
us to doubt that his trial counsel diligently and strenuously worked
to develop as complete a mitigation case as possible. Nor does any
of the new testimony counter the overwhelming evidence of the
brutal, gruesome, and aggravated nature of Henyard's crimes, in
which Henyard carjacked and kidnaped a mother and her two young
children, raped the mother in her children's presence, shot her four
times, and then executed her children from close range.
VII. CONCLUSION
For the foregoing reasons, the Florida Supreme
Court's denial of habeas relief was neither contrary to, nor
involved an unreasonable application of, clearly established federal
law as determined by the United States Supreme Court. See 28 U.S.C.
§ 2254(d)(1). Accordingly, we affirm the district court's denial of
Henyard's § 2254 petition. AFFIRMED.
