IN THE SUPREME COURT OF FLORIDA. ROBERT HENRY, ) ) Appellant, ) ) v. ) ) CASE NO. SC STATE OF FLORIDA, ) L.T. NO CF10A ) Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA ROBERT HENRY, ) ) Appellant, ) ) v. ) ) CASE NO. SC STATE OF FLORIDA, ) L.T. NO CF10A ) Appellee. ) ) INITIAL BRIEF OF APPELLANT On Appeal from the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida KEVIN J. KULIK, ESQUIRE Florida Bar Number Southwest Third Street Fort Lauderdale, Florida Telephone (954) Facsimile (954) Attorneyfor Appellant

2 TABLEOFCONTENTS TABLEOFCONTENTS... ii TABLEOF AUTHORITIES... iii PRELIMINARYSTATEMENT...1 JURISDICTIONAL STATEMENT...1 STANDARDOFREVIEW STATEMENTOF THECASEANDFACTS...2 SUMMARYOFARGUMENT...9 ARGUMENT: THE TRIAL COURT ERRED IN SUMMARILY DENYING POSTCONVICTION RELIEF WITHOUT EVIDENTIARY HEARING AS ITS ALLEGATIONS ARE NOT CONCLUSIVELY REFUTED BY THE RECORD CONCLUSION...17 CERTIFICATE OF SERVICE CERTIFICATEOFFONTANDTYPESIZE

3 Cases TABLE OF AUTHORITIES Page(s) Cone v. Bell, 556 U.S. 449, 475, 129 S. Ct. 1769, 1786 (2009) Espinoza v. Florida, 505 U.S. 1079, 112 S.Ct (1992) Henry v. Florida, 505 U.S. 1216, 112 S.Ct (1992) , 4 Henry v. Florida, -- U.S. --, 114 S.Ct. 699 (1994) Henry v. Florida, -- U.S. --, 130 S.Ct (2010) Henry v. McNeil, Case No. 07-CV (S.D. Fla. 2009) Henry v. State, 586 So. 2d 1033 (Fla. 1991) Henry v. State, 613 So. 2d 429, 434 (Fla. 1992) Henry v. State, 937 So. 2d 563 (Fla. 2003) Henry v. State, 43 So. 3d 690 (Fla. 2010) Jones v. State, 709 So.2d 512, 521 (Fla. 1998) , 10 Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) Williams v. Taylor, 529 U.S. 362, 393, 120 S. Ct (2000) Constitutions Art. V, 3(b)(1), Fla. Const

4 Statutes TABLE OF AUTHORITIES (CONTINUED) Page(s) , Fla. Stat , Fla. Stat , Fla. Stat Federal Code 28 U.S.C Court Rules Rule 3.851, Florida Rules of Criminal Procedure , 10 Rule 3.853, Florida Rules of Criminal Procedure , 5 Other Authorities Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report September 17, Public Policy Statement: Short Definition ofaddiction (ASAM 2011 ) V

5 PRELIMINARY STATEMENT This is an appeal of the trial court's summary denial of Appellant's motion for postconviction relief alleging newly discovered evidence in a capital case. Appellant, Robert Henry, was Defendant in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The Appellee, State of Florida, was the Plaintiff. References to the Record on Appeal will be designated by the symbol "R" followed the appropriate page number(s), and encased in parentheses. JURISDICTIONAL STATEMENT This Court has jurisdiction in this capital case. Art. V, 3(b)(1), Fla. Const. STANDARD OF REVIEW In order to obtain a new trial based on newly discovered evidence, the defendant must demonstrate that: (1) the evidence was not known to the trial court, party or his counsel at the time of trial and it must appear the defendant or his counsel could not have known of it through the use of diligence, and (2) the newly discovered evidence must be of such a nature that it would probably lead to a less severe sentence. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 1

6 STATEMENT OF THE CASE AND FACTS This is an appeal from a denial of post-conviction relief after an evidentiary hearing based on newly discovered evidence which reasonably would have changed the outcome of the penalty phase proceedings at Appellant's jury trial. The Appellant is currently being held in custody pending a death sentence. Appellant, Robert Henry, was charged by Indictment with having committed the first-degree murders of Janet Thermidor and Phyllis Harris, contrary to , Fla. Stat. He was also charged with armed robbery contrary to , Fla. Stat., and arson, contrary to , Fla. Stat. See Henry v. State, 586 So. 2d 1033 (Fla. 1991). Henry was found guilty as charged on all four of the counts. Id. At a later penalty phase proceeding, the jury recommended death, which the trial court then imposed. The trial court also sentenced Henry to concurrent terms of life imprisonment on the armed robbery and arson convictions. Id. Henry filed his direct criminal appeal of these convictions and sentences, and this Court affirmed. Id. The relevant facts in this case appear in this Court's opinion on direct appeal: Robert Henry appeals his convictions of first-degree murder and the resultant death sentences as well as the two concurrent terms of life imprisonment for armed robbery with a deadly weapon and arson. We have jurisdiction. Art. V, 3(b)(1), Fla. Const. We affirm the convictions and sentences. 2

7 Around 9:30 p.m. on November 1, 1987 fire fighters and police officers responded to a fire at a fabric store in Deerfield Beach. Inside they found two of the store's employees, Phyllis Harris, tied up in the men's restroom, and Janet Thermidor, on the floor of the women's restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store's maintenance man, had entered the office, hit her in the head, and stolen the store's money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning. Based on Thermidor's statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed. After being arrested, Henry made a total of six oral and taped statements. In the first two he claimed that unknown robbers forced their way into the store and denied any personal involvement. In the other statements he confessed that he acted alone. Henry v. State, 586 So. 2d 1033, (Fla. 1991) cert. granted, judgment vacated, 505 U.S. 1216, 112 S. Ct (1992). 3

8 Mr. Henry sought certiorari in the United States Supreme Court, which granted the writ, vacated the judgment and remanded for reconsideration in light of its earlier decision in Espinoza v. Florida, 505 U.S. 1079, 112 S.Ct (1992). Henry v. Florida, 505 U.S. 1216, 112 S.Ct (1992). This Court again affirmed Mr. Henry's conviction and sentence on December 24, 1992, noting: In Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992), the United States Supreme Court vacated the judgment against Henry and remanded for our reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), which declared inadequate our former instruction on the heinous, atrocious, or cruel aggravator. Henry, however, requested, and his trial court gave, an expanded instruction defining the terms of and limiting the applicability of this aggravator. Thus, the instruction given to Henry's jury was not unconstitutionally vague, and we reaffirm his death sentences. Henry v. State, 613 So. 2d 429, 434 (Fla. 1992). A petition for writ of certiorari was denied January 10, Henry v. Florida, -- U.S. --, 114 S.Ct. 699 (1994). Mr. Henry filed a motion for postconviction relief, which was denied January 17, 2003, and was affirmed by this Court May 26, Henry v. State, 937 So. 2d 563 (Fla. 2003). Henry moved for DNA testing pursuant to Rule 3.853, Florida Rules of Criminal Procedure, which was denied and never appealed. 4

9 Henry sought belated appeal of the denial of his Rule motion, which this Court dismissed February 24, Henry v. State, 43 So. 3d 690 (Fla. 2010). Meanwhile, Henry had filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. 2254, Henry v. McNeil, Case No. 07-CV-61281, which was denied April 27, 2009, and a certificate of appealability denied by the Eleventh Circuit Court of Appeals on July 9, The United States Supreme Court denied certiorari on April 5, Henry v. Florida, -- U.S. -, 130 S.Ct (1994). On April 17, 2012, Henry filed a sworn pro se motion under Rule 3.851, Florida Rules of Criminal Procedure, alleging newly discovered evidence, the denial of which is at issue in the present appeal (R 23). Mr. Henry's motion to vacate raised a single issue: that chronic drug addiction of the type Mr. Henry suffered at the time of the homicides is now scientifically recognized in the medical community as a brain disease (R 3-41). This new medical consensus gives rise to a plethora of potential new evidence Henry could raise at a new penalty phase proceeding (R 6-14). Henry had decided against using a voluntary intoxication defense at trial, opting instead to avoid collateral crimes evidence, such as smoking crack cocaine on the day of the homicides: a strategy which had merit, as many jurors would be 5

10 more likely to convict had they known of this type of behavior. Instead, Henry focused on other viable defenses, such as misidentification. At the time of the trial, Henry's chronic drug addiction was in many ways considered a voluntary vice and negative character trait, which Henry knew, causing him to resist its introduction. Since Mr. Henry's arrest in 1987, the same facts that were considered negative are now recognized by the medical community as evidence of a brain disease and physical disability, supporting grounds for mitigation. In conjunction with his motion to vacate, Henry requested the appointment of medical experts to testify he had a brain disease which could explain many aspects of his behavior at the time of the offense (R 42-45). Additionally, Henry proffered a list of witnesses to testify about his extensive drug abuse (R 6-14). This evidence could be considered now by experts to determine the extent of Henry's disease and disability. None of these experts or the scientific evidence they rely upon could have been used in Henry's original trial more than twenty years ago because the scientific and medical communities did not recognize his condition as anything more than voluntary negative behavior. Despite the availability of from seven to ten witnesses who could testify about Henry's brain disease at the time of the offense, the trial judge refused to hear any live testimony on the matter (R 87-94). 6

11 The trial court appointed Mr. Henry postconviction counsel, who adopted Henry's pro se motion (R 3-41). The trial court ordered the State to file a written response to the motion (R 56) and, after the State responded, summarily denied Henry's motion without an evidentiary hearing (R 87-94). In denying the motion to vacate based on newly discovered evidence, the trial court held as follows: Defendant cannot meet the first prong for vacating his death sentence based on newly discovered evidence. Attached to Defendant's motion as Exhibit I are the following documents: (1) a press release regarding ASAM's new definition of addiction as a chronic brain disease; (2) ASAM's public policy statement providing a short definition of addiction; (3) ASAM's public policy statement providing a short and long definition of addiction; and (4) a document containing answers to frequently asked questions regarding the new definition of addiction. These documents contain a policy decision made by ASAM to elaborate a new definition of addiction. The new definition is based on two decades of advancements in neurosciences that would take into account what was actually happening in a person's brain, as opposed to explaining addiction by focusing on the substances associated with it. As correctly pointed out by the State in its response, these policy statements cannot me considered newly discovered evidence. Schwab [v. State], 969 So. 2d 318, 325 [(Fla. 2007)]; see also Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) (holding that the American Bar Association report regarding Florida's death penalty system, published in 2006 was not newly discovered evidence because it was "a compilation of previous available information related to Florida's death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches."). 7

12 (R 90-91). The trial court also concluded that the motion to vacate sentence was procedurally barred as "merely an attempt to relitigate the issue of his drug addiction" (R 91-92). Finally, the trial court concluded that "[t]he overwhelming evidence of premeditation adduced at trial makes it very unlikely that the alleged newly discovered evidence would lead to a less severe sentence" (R 92). Henry timely filed notice of appeal (R 95). This Initial Brief follows. 8

13 SUMMARY OF ARGUMENT The trial court erred in denying postconviction relief without holding an evidentiary hearing, as (a) the trial court's ruling lacked a proper evidentiary basis; (b) the proffered evidence constituted newly discovered evidence which was not available to the trial court, the defendant or defendant's counsel at the time of trial; and (c) the newly discovered evidence would likely result in a lesser sentence. 9

14 ARGUMENT THE TRIAL COURT ERRED IN DENYING WITHOUT EVIDENTIARY HEARING HENRY'S MOTION TO VACATE HIS DEATH SENTENCE BASED ON NEWLY DISCOVERED SCIENTIFIC EVIDENCE IN MITIGATION THAT WOULD PROBABLY RESULT IN A LESSER SENTENCE Appellant Robert Henry's motion to vacate alleges the new definition of "addiction" issued by the American Society of Addiction Medicine (ASAM) based upon substantial advances in the science of addiction medicine constitutes newly discovered evidence which, in conjunction with his addiction at the time of the offense, demonstrates he has a brain disease, creating the probability he would receive a less severe sentence by mitigation, and entitling Henry to postconviction relief pursuant to Rule 3.851, and Jones v. State, 709 So.2d 512, 521 (Fla. 1998). The ASAM's new (August 15, 2011) definition of the disease of "addiction" at issue in Mr. Henry's motion to vacate and in this appeal reads in part: Short Definition of Addiction: Addiction is a primary, chronic disease of brain reward, motivation, memory and related circuitry. Dysfunction in these circuits leads to characteristic biological, psychological, social and spiritual 10

15 manifestations. This is reflected in an individual pathologically pursuing reward and/or relief by substance use and other behaviors. Addiction is characterized by inability to consistently abstain, impairment in behavioral control, craving, diminished recognition of significant problems with one's behaviors and interpersonal relationships, and a dysfunctional emotional response. Like other chronic diseases, addiction often involves cycles of relapse and remission. Without treatment or engagement in recovery activities, addiction is progressive and can result in disability or premature death. Public Policy Statement: Short Definition ofaddiction (ASAM 2011 ). In denying Mr. Henry's motion to vacate sentence based on the asserted newly discovered evidence, the trial court held as follows: Defendant cannot meet the first prong for vacating his death sentence based on newly discovered evidence. Attached to Defendant's motion as Exhibit I are the following documents: (1) a press release regarding ASAM's new definition of addiction as a chronic brain disease; (2) ASAM's public policy statement providing a short definition of addiction; (3) ASAM's public policy statement providing a short and long definition of addiction; and (4) a document containing answers to frequently asked questions regarding the new definition of addiction. These documents contain a policy decision made by ASAM to elaborate a new definition of addiction. The new definition is based on two decades of advancements in neurosciences that would take into account what was actually happening in a person's brain, as opposed to explaining addiction by focusing on the substances associated with 2 Available on the internet at: _of addiction_long_4-11.pdf?sfvrsn=2 11

16 it. As correctly pointed out by the State in its response, these policy statements cannot me considered newly discovered evidence. Schwab [v. State], 969 So. 2d 318, 325 [(Fla. 2007)]; see also Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) (holding that the American Bar Association report regarding Florida's death penalty system, published in 2006 was not newly discovered evidence because it was "a compilation of previous available information related to Florida's death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches."). (R 90-91). A problem with the trial court's analogy to the American Bar Association (ABA) report erroneously relied upon as comprising newly discovered evidence in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) (ABA report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report would not constitute newly discovered evidence) is that, unlike that ABA report, which this Court described as "analyz[ing] Florida's death penalty laws, procedures and practices," Id., 940 So. 2d at 1117, ASAM's new def'mition of the cause and nature of "addiction" represents a previously non-existent scientific conclusion arrived at by scientists in that field after decades of official statements to the contrary. The new ASAM definition of "addiction" represents an upheaval in the scientific community's factual statements 12

17 concerning what "addiction" signifies, which-although the result of decades of raw research data-in its final form, comprises new evidence which could not have been discovered by a court, defendant or attorney exercising due diligence because, using due diligence, they would have been advised by experts to the contrary. A defendant facing the death penalty has the right to provide the jury with mitigating evidence. Williams v. Taylor, 529 U.S. 362, 393, 120 S. Ct (2000). The United States Supreme Court has pointed out the mitigating nature of drug abuse by a capital defendant. Cone v. Bell, 556 U.S. 449, 475, 129 SCt. 1769, 1786 (2009). The newly discovered evidence raised in Henry's motion to vacate concerning the scientific nature of addiction--so at odds with the evidence available at the time of Henry's trial-could have countered the argument made by the State, and would have provided a basis for the jury and trial court to consider the mitigating nature of Henry's drug addiction which "may well have been material to the [court's] assessment of the proper punishment in this case...." Id. The trial court also concluded that the motion to vacate was procedurally barred as "merely an attempt to relitigate the issue of his drug addiction" (R 91), which conclusion rested on the trial court's pyramided conclusion that Henry's earlier ineffective assistance of counsel claims citing counsel's failure to present 13

18 evidence in mitigation that Henry was suffering "cocaine-induced psychosis" at the time of the offense was somehow identical to the scientific upheaval in newly defining "addiction" as a brain disease. But there are distinct differences between mitigation based on reduced capacity due to cocaine-induced psychosis and a scientific about-face concerning the medical genesis and nature of drug addiction. Moreover, the new ASAM evidence was not even in existence at the time Henry's original postconviction motion was litigated, rending its "re-litigation" impossible. Finally, the trial court concluded that it would be "very unlikely that the alleged newly discovered evidence would lead to a less severe sentence" (R 92). The trial court based this conclusion on a contention that "the alleged newly discovered evidence is in complete contradiction to the overwhelming evidence of premeditation adduced at trial and with trial counsel's testimony during [previous] postconviction evidentiary proceedings that [Henry] vehemently refused to consider a defense based on substance abuse at either stage of his trial." (R 93). The problem with the trial court's rationale on premeditation is that it rests on the following: "As pointed out by the State in its response, [Henry] confessed he acted alone when he killed his two co-workers by setting them on fire" (R 92). 14

19 Whereas the foregoing is susceptible to a jury's finding of premeditation, it ignores the mitigating nature of a capital defendant's chronic drug abuse. Cf. Cone v. Bell. The defendant in Cone v. Bell robbed a Tennessee jewelry store, led police on a chase, shot an officer and bystander trying to stop his escape, tried to hijack a car, shoot the resisting driver and a police helicopter, attempted to enter a woman's home the next day, drew a gun before the woman closed the door, entered a couple's home, beat them to death with a blunt instrument and ransacked the place, shaving his beard, escaping to an airport, and traveling to Florida, where he was arrested days later robbing a drugstore. Id., 556 U.S. at , 129 S.Ct. at In Cone, involving suppressed evidence concerning the extent of the defendant's drug addiction in a capital trial for premeditated first-degree murder, "the State's strategy throughout trial was to present Cone as a calculating, intelligent criminal who was fully in control of his decisions and actions at the time of the crimes." Id., 556 U.S. at 454, 129 S.Ct. at Reversing for a full review of the suppressed addiction evidence, the Court held: "It is possible that the suppressed evidence, viewed cumulatively, may have persuaded the jury that Cone had a far more serious drug problem than the prosecution was prepared to 15

20 acknowledge and that Cone's drug use played a mitigating, though not exculpating, role in the crimes he committed." Id., 556 U.S. at 475, 129 S.Ct. at At bar, as in Cone (where evidence of premeditation was more extensive), potentially mitigating newly discovered evidence concerning the effects of chronic drug addiction should be examined within the context of an evidentiary hearing. Id. The problem with the trial court's rationale that Henry's vehement opposition at trial to "any defense that would involve his use of drugs" (R 92) somehow negates Jones' second prong, is that Henry reasonably avoided using a voluntary intoxication defense at the time of trial in order to avoid the introduction of collateral crime evidence, such as smoking crack cocaine on the day of the homicides, because--precisely due to the lacking newly discovered scientific evidence on the genesis and nature of addiction--many jurors would be more likely to condemn him had they known of this type of behavior. The fact that Henry's chronic drug addiction was considered a voluntary vice and negative character trait at the time of trial--in contrast to the newly discovered scientific evidence that chronic addiction is a brain disease--caused Henry to resist its introduction. 16

21 CONCLUSION The trial court's order denying the motion to vacate should be reversed and remanded for an evidentiary hearing at which Appellant may prove his claims. CERTIFICATE OF SERVICE I CERTIFY a true and correct copy of this Initial Brief has been furnished to: (1) Assistant State Attorney Susan Bailey, 201 S.E. 6th Street, Suite 675, Fort Lauderdale, FL 33301, (2) Assistant Attorney General Celia Terenzio, 1515 North Flagler Drive, Suite 900, West Palm Beach, FL 33401, and (3) Mr. Robert Henry, #607497, Union Correctional Institution, 7819 N.W. 228'" Street, Raiford, FL 32026, by United States Mail, this // day of February, CERTIFICATE OF FONT AND TYPE SIZE This brief is word-processed utilizing 14-point Times New Roman type. KEVIN J. KULIK, P.A. 500 Southwest Third Avenue Fort Lauderdale, Florida Tel. (954) Fax (954) By: K s 17 Florida Bar No